[Federal Register Volume 64, Number 27 (Wednesday, February 10, 1999)]
[Rules and Regulations]
[Pages 6565-6576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3139]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 98-54; FCC 98-348]
1998 Biennial Review--Part 76 Cable Television Service Pleading
and Complaint Rules
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This Report and Order reorganizes and simplifies the
Commission's procedural rules for filing petitions and complaints
pursuant to part 76. The intended effect of these changes is to make
the part 76 rules more concise and easier to use.
DATES: These rules contain information collection requirements that
have not been approved by OMB. The Commission will publish a document
in the Federal Register announcing the effective date. Written comments
by the public on the proposed information collection requirements
should be submitted on or before April 12, 1999.
ADDRESSES: A copy of any comments on the information collections in
Secs. 76.6, 76.7, 76.8, 76.9, 76.10, 76.61, 76.914, 76.1003, 76.1302,
and 76.1513 should be submitted to Judy Boley, Federal Communications
Commission, Room C804, 445 12th Street, SW, Washington, DC 20554, or
via the Internet to jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Thomas Horan, Cable Services Bureau,
(202) 418-7200. For additional information concerning the information
collections contained herein, contact Judy Boley at 202-418-0214, or
via the Internet at jboley@fcc.gov.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act:
This Report and Order has been analyzed with respect to the
Paperwork Reduction Act of 1995 (the ``1995 Act'') and found to impose
new or modified information collection requirements on the public. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to take this opportunity to comment
on the information collection requirements contained in this Report and
Order, as required by the 1995 Act. Public comments are due April 12,
1999. Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-XXXX (new collection).
Title: Part 76 Cable Television Service Pleading and Complaint
Rules.
Type of Review: New collection.
Respondents: Businesses or other for-profit entities.
Number of Respondents: 400.
Estimated Time Per Response: 4 hours to 40 hours.
Frequency of Response: On occasion.
Total Annual Burden to Respondents: 8,800 hours.
Total Annual Cost to Respondents: $1,204,000.
Needs and Uses: The procedural requirements set forth in this
proceeding describe the process for filing petitions and complaints
under part 76 of the Commission's rules. This information contained in
the petitions and complaints is part of the record used by the
Commission in its decision-making. Without the information, the
Commission would be unable to enforce its rules and would be
unresponsive to entities regulated by the Commission.
1. The Report and Order addresses the issues raised in the Notice
of Proposed Rulemaking in CS Docket No. 98-54, 63 FR 24145 (May 1,
1998) (``NPRM''), regarding the Commission's 1998 biennial regulatory
review of its regulations conducted pursuant to section 11 of the
Telecommunications Act of 1996. In the NPRM, the Commission sought
comments and proposals on how to achieve a streamlined complaint
process for part 76 pleadings.
2. Discussion. This Order implements several rule changes designed
to consolidate the procedural requirements for most part 76 filings.
These requirements are codified at Secs. 76.6 through 76.10 of the
Commission's rules. This Order also eliminates the provisions rendered
redundant by the amendments to the rules. Specifically, Sec. 76.6 is
adopted. This section contains the general pleading requirements for
all written submissions made pursuant to part 76. In addition,
Sec. 76.6 will require
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that all submissions be verified by the submitting party or by the
party's attorney. Further, each submission must contain a written
verification that the signatory has read the submission and to the best
of his or her knowledge, the submission is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification or reversal of existing law. Prior to this amendment not
all submissions pursuant to the part 76 rules required verification.
3. Section 76.7 is amended to provide a uniform filing format,
deadlines, and other procedural requirements which most pleadings filed
pursuant to part 76 will follow. Going forward, unless the rule in
question contains its own specific procedural guidelines, a party
seeking special relief, waiver of the Commission's rules, resolution of
a complaint, determination of effective competition, or resolution of a
disputed question relating to part 76 should file a petition pursuant
to, and follow the procedural rules set forth in Sec. 76.7. To the
extent a conflict is perceived between the general pleading
requirements of Sec. 76.7 and the procedural requirements of a specific
section, the procedural requirements of the specific section should be
followed.
4. To comport with its new generalized nature, those portions of
Sec. 76.7 which pertain only to must-carry complaints have been moved
to Sec. 76.61, thereby incorporating all unique procedural aspects of
must carry complaints in that rule. Section 76.61 is further amended to
merge the specific requirements of must-carry complaints filed by local
commercial television stations and must-carry complaints filed by local
noncommercial educational television stations in one rule.
5. The procedures regarding petitions for effective competition are
consolidated in Sec. 76.7. The result is that all effective competition
petitions filed pursuant to Sec. 76.7 will be placed on public notice
and have the same 20 day deadline to file comments or oppositions and
10 days to reply. Additionally, Sec. 76.7 is revised to set forth rules
providing for referrals to the referral of proceedings for an
adjudicatory hearing before an administrative law judge (``ALJ'').
6. Section 76.8 has been recast to provide that status conferences
may be convened at the discretion of Cable Services Bureau (``Bureau'')
staff for all part 76 proceedings. Section 76.9 is revised to set forth
rules providing for confidential treatment of proprietary information.
Section 76.10 is added to clarify and describe the review process
available to parties following a Bureau ruling or an ALJ decision in a
matter referred by the Bureau. This includes the procedures for
interlocutory review, petitions for reconsideration, and applications
for review.
7. Although not a change to the part 76 rules, the Commission will
change its public notice format to provide the public with additional
information regarding proceedings filed with the Commission. The
Commission is currently upgrading to a new computer system which will
have the capacity to store and display more information about each
filing. The improved public notice format will be implemented once the
new case tracking system becomes operational.
8. Additionally, the Order adopts a procedural amendment clarifying
essentially similar provisions related to the one-year limitations
period for filing program access (Sec. 76.1003(g)(2)), program carriage
(Sec. 76.1302(f)(2)), and open video system complaints
(Sec. 76.1513(h)(2)). These sections now provide that complaints based
on allegedly discriminatory offers to the complainant must be unrelated
to any existing contract between the complainant and the party making
such offer. This amendment is intended to clarify that an offer to
amend an existing contract that has been in effect for more than one
year does not reopen the existing contract to complaints that the
provisions thereof are discriminatory.
Final Regulatory Flexibility Analysis
9. As required by the Regulatory Flexibility Act (RFA), an Initial
Regulatory Flexibility Analysis (``IRFA'') was incorporated into the
Notice in this proceeding. The Commission sought written public comment
on the possible impact of the proposed policies and rules on small
entities in the Notice, including comments on the IRFA. This Final
Regulatory Flexibility Analysis (``FRFA'') in this Report and Order
conforms to the RFA.
10. Need for Action and Objectives of the Rules. Section 11 of the
1996 Telecommunications Act requires the Commission to conduct a
biennial review of regulations that apply to operations and activities
of any provider of telecommunications service and to repeal or modify
any regulation it determines to be no longer in the public interest.
Although Section 11 does not specifically refer to cable operators, the
Commission has determined that the first biennial review presents an
excellent opportunity for a thorough examination of all of the
Commission's regulations.
11. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA. One comment was filed specifically in response to
the IRFA. The commenter disagrees with the conclusion in the IRFA that
the number of small cable businesses affected by the Commission's rules
has declined since 1995.
12. Description and Estimate of the Number of Small Entities to
Which the Rules Will Apply. The RFA directs the Commission to provide a
description of and, where feasible, an estimate of the number of small
entities that might be affected by the rules here adopted. The RFA
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. Under the Small Business Act, a small business
concern is one which: (a) Is independently owned and operated; (b) is
not dominant in its field of operation; and (c) satisfies any
additional criteria established by the SBA. The rules adopted in the
Report and Order will affect cable systems, multipoint multichannel
distribution systems, direct broadcast satellites, home satellite dish
manufacturers, open video systems, satellite master antenna television,
local multipoint distribution systems, program producers and
distributors, and television stations. Below set forth are the general
SBA and FCC cable small size standards. Each service is addresses
individually to provides a more precise estimate of small entities.
Also described are program producers and distributors.
13. SBA Definitions for Cable and Other Pay Television Services:
The SBA has developed a definition of small entities for cable and
other pay television services, which includes all such companies
generating $11 million or less in annual receipts. This definition
includes cable system operators, closed circuit television services,
direct broadcast satellite services, multipoint distribution systems,
satellite master antenna systems and subscription television services.
According to the Census Bureau data from 1992, there were approximately
1,758 total cable and other pay television services and 1,423 had less
than $11 million in revenue.
14. Additional Cable System Definitions: In addition, the
Commission has developed, with SBA's approval, our own definition of a
small cable system operator for the purposes of rate regulation. Under
the
[[Page 6567]]
Commission's rules, a ``small cable company'' is one serving no more
than 400,000 subscribers nationwide. The Commission estimated that
there were 1439 cable operators that qualified as small cable companies
at the end of 1995. Since then, some of those companies may have grown
to serve over 400,000 subscribers, and others may have been involved in
transactions that caused them to be combined with other cable
operators. Consequently, the Commission estimates that there are fewer
than 1439 small entity cable system operators that may be affected by
the decisions and rules adopted. The Commission concludes that only a
small percentage of these entities currently provide qualifying
``telecommunications services'' as required by the Communications Act
and, therefore, estimates that the number of such entities are
significantly fewer than noted.
15. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1% of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that there are 61,700,000
cable subscribers in the United States. Therefore, the Commission found
that an operator serving fewer than 617,000 subscribers shall be deemed
a small operator, if its annual revenues, when combined with the total
annual revenues of all of its affiliates, do not exceed $250 million in
the aggregate. Based on available data, the number of cable operators
serving 617,000 subscribers or less totals 1450. Although it seems
certain that some of these cable system operators are affiliated with
entities whose gross annual revenues exceed $250,000,000, the
Commission is unable at this time to estimate with greater precision
the number of cable system operators that would qualify as small cable
operators under the definition in the Communications Act.
16. Multipoint Multichannel Distribution Systems (``MMDS''): The
Commission refined its definition of ``small entity'' for the auction
of MMDS as an entity that together with its affiliates has average
gross annual revenues that are not more than $40 million for the
preceding three calendar years. This definition of a small entity in
the context of MMDS auctions has been approved by the SBA.
17. The Commission completed its MMDS auction in March 1996 for
authorizations in 493 basic trading areas (``BTAs''). Of 67 winning
bidders, 61 qualified as small entities. Five bidders indicated that
they were minority-owned and four winners indicated that they were
women-owned businesses. MMDS is an especially competitive service, with
approximately 1573 previously authorized and proposed MMDS facilities.
Available information indicates that no MMDS facility generates revenue
in excess of $11 million annually. The Commission concludes that, for
purposes of this FRFA, there are approximately 1634 small MMDS
providers as defined by the SBA and the Commission's auction rules.
18. Direct Broadcast Satellite (``DBS''): Because DBS provides
subscription services, DBS falls within the SBA definition of cable and
other pay television services (SIC 4841). As of December 1996, there
were eight DBS licensees. The Notice concluded that no DBS operator
qualifies as a small entity. Since the publication of the Notice, more
information has become available. In light of the 1997 gross revenue
figures for the various DBS operators, the Commission restates its
conclusion that no DBS operator qualifies as a small entity.
19. Home Satellite Dish (``HSD''): The market for HSD service is
difficult to quantify. Indeed, the service itself bears little
resemblance to other MVPDs. HSD owners have access to more than 500
channels of programming placed on C-band satellites by programmers for
receipt and distribution by MVPDs, of which 350 channels are scrambled
and approximately 150 are unscrambled. HSD owners can watch unscrambled
channels without paying a subscription fee. To receive scrambled
channels, however, an HSD owner must purchase an integrated receiver-
decoder from an equipment dealer and pay a subscription fee to an HSD
programming packager. Thus, HSD users include: (1) Viewers who
subscribe to a packaged programming service, which affords them access
to most of the same programming provided to subscribers of other MVPDs;
(2) viewers who receive only non-subscription programming; and (3)
viewers who receive satellite programming services illegally without
subscribing.
20. According to the most recently available information, there are
approximately 20 to 25 program packagers nationwide offering packages
of scrambled programming to retail consumers. These program packagers
provide subscriptions to approximately 2,184,470 subscribers
nationwide. This is an average of about 77,163 subscribers per program
packager. This is substantially smaller than the 400,000 subscribers
used in the Commission's definition of a small multiple system operator
(``MSO'').
21. Satellite Master Antenna Television (``SMATVs''): Industry
sources estimate that approximately 5200 SMATV operators were providing
service as of December 1995. Other estimates indicate that SMATV
operators serve approximately 1.162 million residential subscribers as
of June 30, 1997. The ten largest SMATV operators together pass 848,450
units. Assuming that these SMATV operators serve 50% of the units
passed, the ten largest SMATV operators serve approximately 40% of the
total number of SMATV subscribers. Because these operators are not rate
regulated, they are not required to file financial data with the
Commission. Furthermore, the Commission is not aware of any privately
published financial information regarding these operators. Based on the
estimated number of operators and the estimated number of units served
by the largest ten SMATVs, the Commission concludes that a substantial
number of SMATV operators qualify as small entities.
22. Local Multipoint Distribution System (``LMDS''): Unlike the
above pay television services, LMDS technology and spectrum allocation
will allow licensees to provide wireless telephony, data, and/or video
services. A LMDS provider is not limited in the number of potential
applications that will be available for this service. Therefore, the
definition of a small LMDS entity may be applicable to both cable and
other pay television (SIC 4841) and/or radiotelephone communications
companies (SIC 4812). The SBA approved definition for cable and other
pay services that qualify as a small business is defined above. A small
radiotelephone entity is one with 1500 employees or fewer. However, for
the purposes of this Report and Order, only an estimate of LMDS video
service providers is included.
23. An auction for licenses to operate LMDS systems was recently
completed by the Commission. The vast majority of the LMDS license
auction winners were small businesses under the SBA's definition of
cable and pay television (SIC 4841). The Commission adopted a small
business definition for entities bidding for LMDS licenses as an entity
that, together with affiliates and controlling principles, has average
gross revenues not exceeding $40 million for each of the three
preceding years. The Commission has not yet received approval by the
SBA for this definition.
[[Page 6568]]
24. There is only one company, CellularVision, that is currently
providing LMDS video services. In the IRFA, the Commission assumed that
CellularVision was a small business under both the SBA definition and
our auction rules. No commenters addressed the tentative conclusions
reached in the Notice. Accordingly, the Commission affirms the
tentative conclusion that a majority of the potential LMDS licensees
will be small entities, as that term is defined by the SBA.
25. Open Video System (``OVS''): The Commission has certified 15
OVS operators. Of these nine, only two are providing service. On
October 17, 1996, Bell Atlantic received approval for its certification
to convert its Dover, New Jersey Video Dialtone (``VDT'') system to
OVS. Bell Atlantic subsequently purchased the division of Futurevision
which had been the only operating program package provider on the Dover
system, and has begun offering programming on this system using these
resources. Metropolitan Fiber Systems was granted certifications on
December 9, 1996, for the operation of OVS systems in Boston and New
York, both of which are being used to provide programming. Bell
Atlantic and Metropolitan Fiber Systems have sufficient revenues to
assure us that they do not qualify as small business entities. Little
financial information is available for the other entities authorized to
provide OVS that are not yet operational. One OVS licensee may qualify
as a small business concern. Given that other entities have been
authorized to provide OVS service but have not yet begun to generate
revenues, the Commission concludes that at least some of the OVS
operators qualify as small entities.
26. Program Producers and Distributors: The Commission has not
developed a definition of small entities applicable to producers or
distributors of television programs and, therefore, will utilize the
SBA classifications of Motion Picture and Video Tape Production (SIC
7812), Motion Picture and Video Tape Distribution (SIC 7822), and
Theatrical Producers (Except Motion Pictures) and Miscellaneous
Theatrical Services (SIC 7922). These SBA definitions provide that a
small entity in the television programming industry is an entity with
$21.5 million or less in annual receipts for SIC 7812 and 7822, and $5
million or less in annual receipts for SIC 7922. The 1992 Bureau of the
Census data indicate the following: (1) There were 7265 U.S. firms
classified as Motion Picture and Video Production (SIC 7812), and that
6987 of these firms had $16,999 million or less in annual receipts and
7002 of these firms had $24,999 million or less in annual receipts; (2)
there were 1139 U.S. firms classified as Motion Picture and Tape
Distribution (SIC 7822), and that 1007 of these firms had $16,999
million or less in annual receipts and 1013 of these firms had $24,999
million or less in annual receipts; and (3) there were 5671 U.S. firms
classified as Theatrical Producers and Services (SIC 7922), and that
5627 of these firms had less than $5 million in annual receipts.
27. Each of these SIC categories is very broad and includes firms
that may be engaged in various industries including television.
Specific figures are not available as to how many of these firms
exclusively produce and/or distribute programming for television or how
many are independently owned and operated. Consequently, the Commission
concludes that there are approximately 6987 small entities that produce
and distribute taped television programs, 1013 small entities primarily
engaged in the distribution of taped television programs, and 5627
small producers of live television programs that may be affected by the
rules adopted in this Report and Order.
28. Television Stations: The rules will apply to television
broadcasting licensees, and potential licensees of television service.
The Small Business Administration defines a television broadcasting
station that has no more than $10.5 million in annual receipts as a
small business. Television broadcasting stations consist of
establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational, and other television stations. Also included are
establishments primarily engaged in television broadcasting and which
produce taped television program materials. Separate establishments
primarily engaged in producing taped television program materials are
classified under another SIC number (SIC 7812). There were 1,509
television stations operating in the nation in 1992. That number has
remained fairly constant as indicated by the approximately 1,579
operating full power television broadcasting stations in the nation as
of May 31, 1998. In addition, as of October 31, 1997, there were 1,880
LPTV stations that may also be affected by the Commission's rules. For
1992, the number of television stations that produced less than $10.0
million in revenue was 1,155 establishments.
29. Thus, the rules will affect many of the approximately 1,579
television stations; approximately 1,200 of those stations are
considered small businesses. These estimates may overstate the number
of small entities since the revenue figures on which they are based do
not include or aggregate revenues from non-television affiliated
companies.
30. In addition to owners of operating television stations, any
entity who seeks or desires to obtain a television broadcast license
may be affected by the rules contained in this item. The number of
entities that may seek to obtain a television broadcast license is
unknown.
31. Description of Reporting, Recordkeeping and Other Compliance
Requirements. This analysis examines the costs and administrative
burdens associated with our rules and requirements. The rules adopted
do not add additional compliance requirements, except in that a party
involved in a non-rulemaking part 76 proceeding may be required to
participate in a status conference. The Commission believes, however,
that this requirement would not necessitate significant additional
costs or skills beyond those already utilized in the ordinary course of
business. The Commission believes that this requirement will be
beneficial to participants. The status conference is a useful mechanism
for achieving a swift conclusion to disputes. The rules provide that
such conferences may be conducted over the telephone, thereby
eliminating the need for parties to incur travel expenses to attend the
conference.
32. Steps Taken to Minimize Significant Economic Impact On Small
Entities and Significant Alternatives Considered. The Commission
believes that the rules implemented to streamline the pleading
requirements associated with part 76 filings, make the amended part 76
easier to use than the current rules. Several rules have been shortened
or eliminated in order to make the part 76 rules more concise.
Additionally, where possible, the procedural requirements for part 76
filings have been standardized.
33. It is ordered that, pursuant to authority found in sections
4(i)-(j) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i)-(j), the Commission's rules are hereby amended as set forth
below.
34. It is further ordered that the rules as amended shall become
effective upon approval by OMB.
35. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall
[[Page 6569]]
send a copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
1. The authority citation for part 76 is revised to read as
follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,
534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556,
558, 560, 561, 571, 572, 573.
1a. The heading of part 76 is revised to read as set forth above.
2. Section 76.6 is added to read as follows:
Sec. 76.6 General pleading requirements.
(a) General pleading requirements. All written submissions, both
substantive and procedural, must conform to the following standards:
(1) A pleading must be clear, concise, and explicit. All matters
concerning a claim, defense or requested remedy, should be pleaded
fully and with specificity.
(2) Pleadings must contain facts which, if true, are sufficient to
warrant a grant of the relief requested.
(3) Facts must be supported by relevant documentation or affidavit.
(4) The original of all pleadings and submissions by any party
shall be signed by that party, or by the party's attorney. Complaints
must be signed by the complainant. The signing party shall state his or
her address and telephone number and the date on which the document was
signed. Copies should be conformed to the original. Each submission
must contain a written verification that the signatory has read the
submission and to the best of his or her knowledge, information and
belief formed after reasonable inquiry, it is well grounded in fact and
is warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law; and that it is not
interposed for any improper purpose. If any pleading or other
submission is signed in violation of this provision, the Commission
shall upon motion or upon its own initiative impose appropriate
sanctions.
(5) Legal arguments must be supported by appropriate judicial,
Commission, or statutory authority. Opposing authorities must be
distinguished. Copies must be provided of all non-Commission
authorities relied upon which are not routinely available in national
reporting systems, such as unpublished decisions or slip opinions of
courts or administrative agencies.
(6) Parties are responsible for the continuing accuracy and
completeness of all information and supporting authority furnished in a
pending complaint proceeding. Information submitted, as well as
relevant legal authorities, must be current and updated as necessary
and in a timely manner at any time before a decision is rendered on the
merits of the complaint.
(b) Copies to be Filed. Unless otherwise directed by specific
regulation or the Commission, an original and two (2) copies of all
pleadings shall be filed in accordance with Sec. 0.401(a) of this
chapter, except that petitions requiring fees as set forth at part 1,
subpart G of this chapter must be filed in accordance with
Sec. 0.401(b) of this chapter.
(c) Frivolous pleadings. It shall be unlawful for any party to file
a frivolous pleading with the Commission. Any violation of this
paragraph shall constitute an abuse of process subject to appropriate
sanctions.
3. Section 76.7 is revised to read as follows:
Sec. 76.7 General special relief, waiver, enforcement, complaint, show
cause, forfeiture, and declaratory ruling procedures.
(a) Initiating pleadings. In addition to the general pleading
requirements, initiating pleadings must adhere to the following
requirements:
(1) Petitions. On petition by any interested party, cable
television system operator, a multichannel video programming
distributor, local franchising authority, or an applicant, permittee,
or licensee of a television broadcast or translator station, the
Commission may waive any provision of this part 76, impose additional
or different requirements, issue a ruling on a complaint or disputed
question, issue a show cause order, revoke the certification of the
local franchising authority, or initiate a forfeiture proceeding.
Petitions may be submitted informally by letter.
(2) Complaints. Complaints shall conform to the relevant rule
section under which the complaint is being filed.
(3) Certificate of service. Petitions and Complaints shall be
accompanied by a certificate of service on any cable television system
operator, franchising authority, station licensee, permittee, or
applicant, or other interested person who is likely to be directly
affected if the relief requested is granted.
(4) Statement of relief requested. (i) The petition or complaint
shall state the relief requested. It shall state fully and precisely
all pertinent facts and considerations relied on to demonstrate the
need for the relief requested and to support a determination that a
grant of such relief would serve the public interest.
(ii) The petition or complaint shall set forth all steps taken by
the parties to resolve the problem, except where the only relief sought
is a clarification or interpretation of the rules.
(iii) A petition or complaint may, on request of the filing party,
be dismissed without prejudice as a matter of right prior to the
adoption date of any final action taken by the Commission with respect
to the petition or complaint. A request for the return of an initiating
document will be regarded as a request for dismissal.
(5) Failure to prosecute. Failure to prosecute petition or
complaint, or failure to respond to official correspondence or request
for additional information, will be cause for dismissal. Such dismissal
will be without prejudice if it occurs prior to the adoption date of
any final action taken by the Commission with respect to the initiating
pleading.
(b) Responsive pleadings. In addition to the general pleading
requirements, responsive pleadings must adhere to the following
requirements:
(1) Comments/oppositions to petitions. Unless otherwise directed by
the Commission, interested persons may submit comments or oppositions
within twenty (20) days after the date of public notice of the filing
of such petition. Comments or oppositions shall be served on the
petitioner and on all persons listed in petitioner's certificate of
service, and shall contain a detailed full showing, supported by
affidavit, of any facts or considerations relied on.
(2) Answers to complaints. (i) Unless otherwise directed by the
Commission, any party who is served with a complaint shall file an
answer in accordance with the following, and the relevant rule section
under which the complaint is being filed.
(ii) The answer shall be filed within 20 days of service of the
complaint,
[[Page 6570]]
unless another period is set forth in the relevant rule section.
(iii) The answer shall advise the parties and the Commission fully
and completely of the nature of any and all defenses, and shall respond
specifically to all material allegations of the complaint. Collateral
or immaterial issues shall be avoided in answers and every effort
should be made to narrow the issues. Any party against whom a complaint
is filed failing to file and serve an answer within the time and in the
manner prescribed by these rules may be deemed in default and an order
may be entered against defendant in accordance with the allegations
contained in the complaint.
(iv) The answer shall admit or deny the averments on which the
adverse party relies. If the defendant is without knowledge or
information sufficient to form a belief as to the truth of an averment,
the defendant shall so state and this has the effect of a denial. When
a defendant intends in good faith to deny only part of an averment, the
answer shall specify so much of it as is true and shall deny only the
remainder. The defendant may make its denials as specific denials of
designated averments or paragraphs, or may generally deny all the
averments except such designated averments or paragraphs as the
defendant expressly admits. When the defendant intends to controvert
all averments, the defendant may do so by general denial.
(v) Averments in a complaint are deemed to be admitted when not
denied in the answer.
(c) Reply. In addition to the general pleading requirements, reply
comments and replies must adhere to the following requirements:
(1) The petitioner or complainant may file a reply to a responsive
pleading which shall be served on all persons who have filed pleadings
and shall also contain a detailed full showing, supported by affidavit,
of any additional facts or considerations relied on. Unless expressly
permitted by the Commission, reply comments and replies to an answer
shall not contain new matters.
(2) Failure to reply will not be deemed an admission of any
allegations contained in the responsive pleading, except with respect
to any affirmative defense set forth therein.
(3) Unless otherwise directed by the Commission or the relevant
rule section, comments and replies to answers must be filed within ten
(10) days after submission of the responsive pleading.
(d) Motions. Except as provided in this section, or upon a showing
of extraordinary circumstances, additional motions or pleadings by any
party will not be accepted.
(e) Additional procedures and written submissions. (1) The
Commission may specify other procedures, such as oral argument or
evidentiary hearing directed to particular aspects, as it deems
appropriate. In the event that an evidentiary hearing is required, the
Commission will determine, on the basis of the pleadings and such other
procedures as it may specify, whether temporary relief should be
afforded any party pending the hearing and the nature of any such
temporary relief.
(2) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including copies of all contracts and
documents reflecting arrangements and understandings alleged to violate
the requirements set forth in the Communications Act and in this part,
as well as affidavits and exhibits.
(3) The Commission may, in its discretion, require the parties to
file briefs summarizing the facts and issues presented in the pleadings
and other record evidence.
(i) These briefs shall contain the findings of fact and conclusions
of law which that party is urging the Commission to adopt, with
specific citations to the record, and supported by relevant authority
and analysis.
(ii) Any briefs submitted shall be filed concurrently by both the
complainant and defendant at such time as is designated by the staff.
Such briefs shall not exceed fifty (50) pages.
(iii) Reply briefs may be submitted by either party within twenty
(20) days from the date initial briefs are due. Reply briefs shall not
exceed thirty (30) pages.
(f) Discovery. (1) The Commission staff may in its discretion order
discovery limited to the issues specified by the Commission. Such
discovery may include answers to written interrogatories, depositions
or document production.
(2) The Commission staff may in its discretion direct the parties
to submit discovery proposals, together with a memorandum in support of
the discovery requested. Such discovery requests may include answers to
written interrogatories, document production or depositions. The
Commission staff may hold a status conference with the parties,
pursuant to Sec. 76.8 of this part, to determine the scope of
discovery, or direct the parties regarding the scope of discovery. If
the Commission staff determines that extensive discovery is required or
that depositions are warranted, the staff may advise the parties that
the proceeding will be referred to an administrative law judge in
accordance with paragraph (g) of this section.
(g) Referral to administrative law judge. (1) After reviewing the
pleadings, and at any stage of the proceeding thereafter, the
Commission staff may, in its discretion, designate any proceeding or
discrete issues arising out of any proceeding for an adjudicatory
hearing before an administrative law judge.
(2) Before designation for hearing, the staff shall notify, either
orally or in writing, the parties to the proceeding of its intent to so
designate, and the parties shall be given a period of ten (10) days to
elect to resolve the dispute through alternative dispute resolution
procedures, or to proceed with an adjudicatory hearing. Such election
shall be submitted in writing to the Commission.
(3) Unless otherwise directed by the Commission, or upon motion by
the Cable Services Bureau Chief, the Cable Services Bureau Chief shall
not be deemed to be a party to a proceeding designated for a hearing
before an administrative law judge pursuant to this paragraph.
(h) System community units outside the Contiguous States. On a
finding that the public interest so requires, the Commission may
determine that a system community unit operating or proposing to
operate in a community located outside of the 48 contiguous states
shall comply with provisions of subparts D, F, and G of this part in
addition to the provisions thereof otherwise applicable.
(i) Commission ruling. The Commission, after consideration of the
pleadings, may determine whether the public interest would be served by
the grant, in whole or in part, or denial of the request, or may issue
a ruling on the complaint or dispute, issue an order to show cause, or
initiate a forfeiture proceeding.
Notes 1 through 4 to Sec. 76.7:
Note 1: After issuance of an order to show cause pursuant to
this section, the rules of procedure in Title 47, part 1, subpart A,
Secs. 1.91-1.95 of this chapter shall apply.
Note 2: Nothing in this section is intended to prevent the
Commission from initiating show cause or forfeiture proceedings on
its own motion; Provided, however, that show cause proceedings and
forfeiture proceedings pursuant to Sec. 1.80(g) of this chapter will
not be initiated by such motion until the affected parties are given
an opportunity to respond to the Commission's charges.
Note 3: Forfeiture proceedings are generally nonhearing matters
conducted pursuant to the provisions of Sec. 1.80(f) of this
[[Page 6571]]
chapter (Notice of Apparent Liability). Petitioners who contend that
the alternative hearing procedures of Sec. 1.80(g) of this chapter
should be followed in a particular case must support this contention
with a specific showing of the facts and considerations relied on.
Note 4: To the extent a conflict is perceived between the
general pleading requirements of this section, and the procedural
requirements of a specific section, the procedural requirements of
the specific section should be followed.
4. Section 76.8 is revised to read as follows:
Sec. 76.8 Status conference.
(a) In any proceeding subject to the part 76 rules, the Commission
staff may in its discretion direct the attorneys and/or the parties to
appear for a conference to consider:
(1) Simplification or narrowing of the issues;
(2) The necessity for or desirability of amendments to the
pleadings, additional pleadings, or other evidentiary submissions;
(3) Obtaining admissions of fact or stipulations between the
parties as to any or all of the matters in controversy;
(4) Settlement of the matters in controversy by agreement of the
parties;
(5) The necessity for and extent of discovery, including objections
to interrogatories or requests for written documents;
(6) The need and schedule for filing briefs, and the date for any
further conferences; and
(7) Such other matters that may aid in the disposition of the
proceeding.
(b) Any party may request that a conference be held at any time
after an initiating document has been filed.
(c) Conferences will be scheduled by the Commission at such time
and place as it may designate, to be conducted in person or by
telephone conference call.
(d) The failure of any attorney or party, following advance notice
with an opportunity to be present, to appear at a scheduled conference
will be deemed a waiver and will not preclude the Commission from
conferring with those parties or counsel present.
(e) During a status conference, the Commission staff may issue oral
rulings pertaining to a variety of matters relevant to the conduct of
the proceeding including, inter alia, procedural matters, discovery,
and the submission of briefs or other evidentiary materials. These
rulings will be promptly memorialized in writing and served on the
parties. When such rulings require a party to take affirmative action
not subject to deadlines established by another provision of this
subpart, such action will be required within ten (10) days from the
date of the written memorialization unless otherwise directed by the
staff.
5. Section 76.9 is revised to read as follows:
Sec. 76.9 Confidentiality of proprietary information.
(a) Any materials filed in the course of a proceeding under this
provision may be designated as proprietary by that party if the party
believes in good faith that the materials fall within an exemption to
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.
552(b). Any party asserting confidentiality for such materials shall so
indicate by clearly marking each page, or portion thereof, for which a
proprietary designation is claimed. If a proprietary designation is
challenged, the party claiming confidentiality will have the burden of
demonstrating, by a preponderance of the evidence, that the material
designated as proprietary falls under the standards for nondisclosure
enunciated in FOIA.
(b) Submissions containing information claimed to be proprietary
under this section shall be submitted to the Commission in confidence
pursuant to the requirements of Sec. 0.459 of this chapter and clearly
marked ``Not for Public Inspection.'' An edited version removing all
proprietary data shall be filed with the Commission for inclusion in
the public file within five (5) days from the date the unedited reply
is submitted, and shall be served on the opposing parties.
(c) Except as provided in paragraph (d) of this section, materials
marked as proprietary may be disclosed solely to the following persons,
only for use in the proceeding, and only to the extent necessary to
assist in the prosecution or defense of the case:
(i) Counsel of record representing the parties in the proceeding
and any support personnel employed by such attorneys;
(ii) Officers or employees of the parties in the proceeding who are
named by another party as being directly involved in the proceeding;
(iii) Consultants or expert witnesses retained by the parties;
(iv) The Commission and its staff; and
(v) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(d) The Commission will entertain, subject to a proper showing, a
party's request to further restrict access to proprietary information
as specified by the party. The other parties will have an opportunity
to respond to such requests.
(e) The persons designated in paragraphs (c) and (d) of this
section shall not disclose information designated as proprietary to any
person who is not authorized under this section to receive such
information, and shall not use the information in any activity or
function other than the prosecution or defense of the case before the
Commission. Each individual who is provided access to the information
by the opposing party shall sign a notarized statement affirmatively
stating, or shall certify under penalty of perjury, that the individual
has personally reviewed the Commission's rules and understands the
limitations they impose on the signing party.
(f) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraphs (c) and (d) of
this section. Each party shall maintain a log recording the number of
copies made of all proprietary material and the persons to whom the
copies have been provided.
(g) Upon termination of the complaint proceeding, including all
appeals and petitions, all originals and reproductions of any
proprietary materials, along with the log recording persons who
received copies of such materials, shall be provided to the producing
party. In addition, upon final termination of the proceeding, any notes
or other work product derived in whole or in part from the proprietary
materials of an opposing or third party shall be destroyed.
6. Section 76.10 is added to read as follows:
Sec. 76.10 Review.
(a) Interlocutory review. (1) Except as provided below, no party
may seek review of interlocutory rulings until a decision on the merits
has been issued by the staff or administrative law judge.
(2) Rulings listed in this paragraph are reviewable as a matter of
right. An application for review of such ruling may not be deferred and
raised as an exception to a decision on the merits.
(i) If the staff's ruling denies or terminates the right of any
person to participate as a party to the proceeding, such person, as a
matter of right, may file an application for review of that ruling.
(ii) If the staff's ruling requires production of documents or
other written evidence, over objection based on a claim of privilege,
the ruling on the claim of privilege is reviewable as a matter of
right.
(iii) If the staff's ruling denies a motion to disqualify a staff
person from participating in the proceeding, the ruling is reviewable
as a matter of right.
[[Page 6572]]
(b) Petitions for reconsideration. Petitions for reconsideration of
interlocutory actions by the Commission's staff or by an administrative
law judge will not be entertained. Petitions for reconsideration of a
decision on the merits made by the Commission's staff should be filed
in accordance with Secs. 1.104 through 1.106 of this chapter.
(c) Application for review. (1) Any party to a part 76 proceeding
aggrieved by any decision on the merits issued by the staff pursuant to
delegated authority may file an application for review by the
Commission in accordance with Sec. 1.115 of this chapter.
(2) Any party to a part 76 proceeding aggrieved by any decision on
the merits by an administrative law judge may file an appeal of the
decision directly with the Commission, in accordance with
Secs. 1.276(a) and 1.277(a) through (c) of this chapter, except that in
proceedings brought pursuant to Secs. 76.1003, 76.1302, and 76.1513 of
this part, unless a stay is granted by the Commission, the decision by
the administrative law judge will become effective upon release and
will remain in effect pending appeal.
7. Section 76.61 is amended by revising paragraphs (a)(3), (a)(4)
and (b), and adding (a)(5) to read as follows:
Sec. 76.61 Disputes concerning carriage.
(a) * * *
(3) A local commercial television station or qualified low power
television station that is denied carriage or channel positioning or
repositioning in accordance with the must-carry rules by a cable
operator may file a complaint with the Commission in accordance with
the procedures set forth in Sec. 76.7 of this part. In addition to the
requirements of Sec. 76.7 of this part, such complaint shall
specifically:
(i) Allege the manner in which such cable operator has failed to
meet its obligations and the basis for such allegations.
(ii) Be accompanied by the notice from the complainant to the cable
television system operator, and the cable television system operator's
response, if any. If no timely response was received, the complaint
shall so state.
(iii) Establish the complaint is being filed within the sixty-day
deadline stated in paragraph (a)(5) of this section.
(4) If the Commission determines that a cable operator has failed
to meet its must-carry obligations, the Commission shall order that,
within 45 days of such order or such other time period as the
Commission may specify, the cable operator reposition the complaining
station or, in the case of an obligation to carry a station, commence
or resume carriage of the station and continue such carriage for at
least 12 months. If the Commission determines that the cable operator
has fully met the must-carry requirements, it shall dismiss the
complaint.
(5) No must-carry complaint filed pursuant to paragraph (a) of this
section will be accepted by the Commission if filed more than sixty
(60) days after--
(i) The denial by a cable television system operator of request for
carriage or channel position contained in the notice required by
paragraph (a)(1) of this section, or
(ii) The failure to respond to such notice within the time period
allowed by paragraph (a)(2) of this section.
(b) Complaints regarding carriage of qualified local NCE television
stations. (1) Whenever a qualified local NCE television station
believes that a cable operator has failed to comply with the signal
carriage or channel positioning requirements, pursuant to Secs. 76.56
through 76.57 of this part, the station may file a complaint with the
Commission in accordance with the procedures set forth in Sec. 76.7 of
this part. In addition to the requirements of Sec. 76.7 of this part,
such complaint shall specifically:
(i) Allege the manner in which such cable operator has failed to
comply with such requirements and state the basis for such allegations.
(ii) Be accompanied by any relevant correspondence between the
complainant and the cable television system operator.
(2) If the Commission determines that a cable operator has failed
to meet its must-carry obligations, the Commission shall order that,
within 45 days of such order or such other period as the Commission may
specify, the cable operator reposition the complaining station or, in
the case of an obligation to carry a station, commence or resume
carriage of the station and continue such carriage for a period of time
the Commission deems appropriate for the specific case under
consideration. If the Commission determines that the cable operator has
fully met the must-carry requirements, it shall dismiss the complaint.
(3) With respect to must-carry complaints filed pursuant to
paragraph (b) of this section, such complaints may be filed at any time
the complainant believes that the cable television system operator has
failed to comply with the applicable provisions of subpart D of this
part.
8. Section 76.914 is amended by revising paragraph (c) to read as
follows:
Sec. 76.914 Revocation of certification.
* * * * *
(c) A cable operator may file a petition for special relief
pursuant to Sec. 76.7 of this part seeking revocation of a franchising
authority's certification.
* * * * *
9. Section 76.1003 is revised to read as follows:
Sec. 76.1003 Program access proceedings.
(a) Complaints. Any multichannel video programming distributor
aggrieved by conduct that it believes constitute a violation of the
regulations set forth in this subpart may commence an adjudicatory
proceeding at the Commission to obtain enforcement of the rules through
the filing of a complaint. The complaint shall be filed and responded
to in accordance with the procedures specified in Sec. 76.7 of this
part with the following additions or changes:
(b) Prefiling notice required. Any aggrieved multichannel video
programming distributor intending to file a complaint under this
section must first notify the potential defendant cable operator, and/
or the potential defendant satellite cable programming vendor or
satellite broadcast programming vendor, that it intends to file a
complaint with the Commission based on actions alleged to violate one
or more of the provisions contained in Secs. 76.1001 or 76.1002 of this
part. The notice must be sufficiently detailed so that its recipient(s)
can determine the specific nature of the potential complaint. The
potential complainant must allow a minimum of ten (10) days for the
potential defendant(s) to respond before filing a complaint with the
Commission.
(c) Contents of complaint. In addition to the requirements of
Sec. 76.7 of this part, a program access complaint shall contain:
(1) The type of multichannel video programming distributor that
describes complainant, the address and telephone number of the
complainant, whether the defendant is a cable operator, satellite
broadcast programming vendor or satellite cable programming vendor
(describing each defendant), and the address and telephone number of
each defendant;
(2) Evidence that supports complainant's belief that the defendant,
where necessary, meets the attribution standards for application of the
program access requirements;
(3) Evidence that the complainant competes with the defendant cable
operator, or with a multichannel video programming distributor that is
a customer of the defendant satellite cable
[[Page 6573]]
programming or satellite broadcast programming vendor;
(4) In complaints alleging discrimination, documentary evidence
such as a rate card or a programming contract that demonstrates a
differential in price, terms or conditions between complainant and a
competing multichannel video programming distributor or, if no
programming contract or rate card is submitted with the complaint, an
affidavit signed by an officer of complainant alleging that a
differential in price, terms or conditions exits, a description of the
nature and extent (if known or reasonably estimated by the complainant)
of the differential, together with a statement that defendant refused
to provide any further specific comparative information;
(5) If a programming contract or a rate card is submitted with the
complaint in support of the alleged violation, specific references to
the relevant provisions therein;
(6) In complaints alleging exclusivity violations:
(i) The identity of both the programmer and cable operator who are
parties to the alleged prohibited agreement,
(ii) Evidence that complainant can or does serve the area specified
in the complaint, and
(iii) Evidence that the complainant has requested to purchase the
relevant programming and has been refused or unanswered;
(7) In complaints alleging a violation of Sec. 76.1001 of this
part, evidence demonstrating that the behavior complained of has harmed
complainant.
(8) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (a)
of this section has been made.
(d) Damages requests. (1) In a case where recovery of damages is
sought, the complaint shall contain a clear and unequivocal request for
damages and appropriate allegations in support of such claim in
accordance with the requirements of paragraph (d)(3) of this section.
(2) Damages will not be awarded upon a complaint unless
specifically requested. Damages may be awarded if the complaint
complies fully with the requirement of paragraph (d)(3) of this section
where the defendant knew, or should have known that it was engaging in
conduct violative of section 628.
(3) In all cases in which recovery of damages is sought, the
complainant shall include within, or as an attachment to, the
complaint, either:
(i) A computation of each and every category of damages for which
recovery is sought, along with an identification of all relevant
documents and materials or such other evidence to be used by the
complainant to determine the amount of such damages; or
(ii) An explanation of:
(A) The information not in the possession of the complaining party
that is necessary to develop a detailed computation of damages;
(B) The reason such information is unavailable to the complaining
party;
(C) The factual basis the complainant has for believing that such
evidence of damages exists; and
(D) A detailed outline of the methodology that would be used to
create a computation of damages when such evidence is available.
(e) Answer.
(1) Any cable operator, satellite cable programming vendor or
satellite broadcast programming vendor upon which a program access
complaint is served under this section shall answer within twenty (20)
days of service of the complaint, unless otherwise directed by the
Commission.
(2) An answer to an exclusivity complaint shall provide the
defendant's reasons for refusing to sell the subject programming to the
complainant. In addition, the defendant may submit its programming
contracts covering the area specified in the complaint with its answer
to refute allegations concerning the existence of an impermissible
exclusive contract. If there are no contracts governing the specified
area, the defendant shall so certify in its answer. Any contracts
submitted pursuant to this provision may be protected as proprietary
pursuant to Sec. 76.9 of this part.
(3) An answer to a discrimination complaint shall state the reasons
for any differential in prices, terms or conditions between the
complainant and its competitor, and shall specify the particular
justification set forth in Sec. 76.1002(b) of this part relied upon in
support of the differential.
(i) When responding to allegations concerning price discrimination,
except in cases in which the alleged price differential is de minimis
(less than or equal to five cents per subscriber or five percent,
whichever is greater), the defendant shall provide documentary evidence
to support any argument that the magnitude of the differential is not
discriminatory.
(ii) In cases involving a price differential of less than or equal
to five cents per subscriber or five percent, whichever is greater, the
answer shall identify the differential as de minimis and state that the
defendant is therefore not required to justify the magnitude of the
differential.
(iii) If the defendant believes that the complainant and its
competitor are not sufficiently similar, the answer shall set forth the
reasons supporting this conclusion, and the defendant may submit an
alternative contract for comparison with a similarly situated
multichannel video programming distributor that uses the same
distribution technology as the competitor selected for comparison by
the complainant. The answer shall state the defendant's reasons for any
differential between the prices, terms and conditions between the
complainant and such similarly situated distributor, and shall specify
the particular justifications in Sec. 76.1002(b) of this part relied
upon in support of the differential. The defendant shall also provide
with its answer written documentary evidence to support its
justification of the magnitude of any price differential between the
complainant and such similarly situated distributor that is not de
minimis.
(4) An answer to a complaint alleging an unreasonable refusal to
sell programming shall state the defendant's reasons for refusing to
sell to the complainant, or for refusing to sell to the complainant on
the same terms and conditions as complainant's competitor, and shall
specify why the defendant's actions are not discriminatory.
(f) Reply. Within fifteen (15) days after service of an answer,
unless otherwise directed by the Commission, the complainant may file
and serve a reply which shall be responsive to matters contained in the
answer and shall not contain new matters.
(g) Time limit on filing of complaints. Any complaint filed
pursuant to this subsection must be filed within one year of the date
on which one of the following events occurs:
(1) The satellite cable programming or satellite broadcast
programming vendor enters into a contract with the complainant that the
complainant alleges to violate one or more of the rules contained in
this subpart; or
(2) The satellite cable programming or satellite broadcast
programming vendor offers to sell programming to the complainant
pursuant to terms that the complainant alleges to violate one or more
of the rules contained in this subpart, and such offer to sell
programming is unrelated to any existing contract between the
complainant and the satellite cable programming or satellite broadcast
programming vendor; or
[[Page 6574]]
(3) The complainant has notified a cable operator, or a satellite
cable programming vendor or a satellite broadcast programming vendor
that it intends to file a complaint with the Commission based on a
request to purchase or negotiate to purchase satellite cable
programming or satellite broadcast programming, or has made a request
to amend an existing contract pertaining to such programming pursuant
to Sec. 76.1002(f) of this part that has been denied or unacknowledged,
allegedly in violation of one or more of the rules contained in this
subpart.
(h) Remedies for violations--(1) Remedies authorized. Upon
completion of such adjudicatory proceeding, the Commission shall order
appropriate remedies, including, if necessary, the imposition of
damages, and/or the establishment of prices, terms, and conditions for
the sale of programming to the aggrieved multichannel video programming
distributor. Such order shall set forth a timetable for compliance, and
shall become effective upon release.
(2) Additional sanctions. The remedies provided in paragraph (h)(1)
of this section are in addition to and not in lieu of the sanctions
available under title V or any other provision of the Communications
Act.
(3) Imposition of damages. (i) Bifurcation. In all cases in which
damages are requested, the Commission may bifurcate the program access
violation determination from any damage adjudication.
(ii) Burden of proof. The burden of proof regarding damages rests
with the complainant, who must demonstrate with specificity the damages
arising from the program access violation. Requests for damages that
grossly overstate the amount of damages may result in a Commission
determination that the complainant failed to satisfy its burden of
proof to demonstrate with specificity the damages arising from the
program access violation.
(iii) Damages adjudication. (A) The Commission may, in its
discretion, end adjudication of damages with a written order
determining the sufficiency of the damages computation submitted in
accordance with paragraph (d)(3)(i) of this section or the damages
computation methodology submitted in accordance with paragraph
(d)(3)(ii)(D) of this section, modifying such computation or
methodology, or requiring the complainant to resubmit such computation
or methodology.
(1) Where the Commission issues a written order approving or
modifying a damages computation submitted in accordance with paragraph
(d)(3)(i) of this section, the defendant shall recompense the
complainant as directed therein.
(2) Where the Commission issues a written order approving or
modifying a damages computation methodology submitted in accordance
with paragraph (d)(3)(ii)(D) of this section, the parties shall
negotiate in good faith to reach an agreement on the exact amount of
damages pursuant to the Commission-mandated methodology.
(B) Within thirty days of the issuance of a paragraph (d)(3)(ii)(D)
of this section damages methodology order, the parties shall submit
jointly to the Commission either:
(1) A statement detailing the parties' agreement as to the amount
of damages;
(2) A statement that the parties are continuing to negotiate in
good faith and a request that the parties be given an extension of time
to continue negotiations; or
(3) A statement detailing the bases for the continuing dispute and
the reasons why no agreement can be reached.
(C)(1) In cases in which the parties cannot resolve the amount of
damages within a reasonable time period, the Commission retains the
right to determine the actual amount of damages on its own, or through
the procedures described in paragraph (h)(3)(iii)(C)(2) of this
section.
(2) Issues concerning the amount of damages may be designated by
the Chief, Cable Services Bureau for hearing before, or, if the parties
agree, submitted for mediation to, a Commission Administrative Law
Judge.
(D) Interest on the amount of damages awarded will accrue from
either the date indicated in the Commission's written order issued
pursuant to paragraph (h)(3)(iii)(A)(1) of this section or the date
agreed upon by the parties as a result of their negotiations pursuant
to paragraph (h)(3)(iii)(A)(2) of this section. Interest shall be
computed at applicable rates published by the Internal Revenue Service
for tax refunds.
10. Section 76.1302 is revised to read as follows:
Sec. 76.1302 Carriage agreement proceedings.
(a) Complaints. Any video programming vendor or multichannel video
programming distributor aggrieved by conduct that it believes
constitute a violation of the regulations set forth in this subpart may
commence an adjudicatory proceeding at the Commission to obtain
enforcement of the rules through the filing of a complaint. The
complaint shall be filed and responded to in accordance with the
procedures specified in Sec. 76.7 of this part with the following
additions or changes:
(b) Prefiling notice required. Any aggrieved video programming
vendor or multichannel video programming distributor intending to file
a complaint under this section must first notify the potential
defendant multichannel video programming distributor that it intends to
file a complaint with the Commission based on actions alleged to
violate one or more of the provisions contained in Sec. 76.1301 of this
part. The notice must be sufficiently detailed so that its recipient(s)
can determine the specific nature of the potential complaint. The
potential complainant must allow a minimum of ten (10) days for the
potential defendant(s) to respond before filing a complaint with the
Commission.
(c) Contents of complaint. In addition to the requirements of
Sec. 76.7 of this part, a carriage agreement complaint shall contain:
(1) The type of multichannel video programming distributor that
describes complainant, the address and telephone number of the
complainant, and the address and telephone number of each defendant;
(2) Evidence that supports complainant's belief that the defendant,
where necessary, meets the attribution standards for application of the
carriage agreement regulations;
(3) For complaints alleging a violation of Sec. 76.1301(c) of this
part, evidence that supports complainant's claim that the effect of the
conduct complained of is to unreasonably restrain the ability of the
complainant to compete fairly.
(4) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (b)
of this section has been made.
(d) Answer. (1) Any multichannel video programming distributor upon
which a carriage agreement complaint is served under this section shall
answer within thirty (30) days of service of the complaint, unless
otherwise directed by the Commission.
(2) The answer shall address the relief requested in the complaint,
including legal and documentary support, for such response, and may
include an alternative relief proposal without any prejudice to any
denials or defenses raised.
(e) Reply. Within twenty (20) days after service of an answer,
unless otherwise directed by the Commission, the complainant may file
and serve a reply which shall be responsive to matters contained in the
answer and shall not contain new matters.
[[Page 6575]]
(f) Time limit on filing of complaints. Any complaint filed
pursuant to this subsection must be filed within one year of the date
on which one of the following events occurs:
(1) The multichannel video programming distributor enters into a
contract with a video programming distributor that a party alleges to
violate one or more of the rules contained in this section; or
(2) The multichannel video programming distributor offers to carry
the video programming vendor's programming pursuant to terms that a
party alleges to violate one or more of the rules contained in this
section, and such offer to carry programming is unrelated to any
existing contract between the complainant and the multichannel video
programming distributor; or
(3) A party has notified a multichannel video programming
distributor that it intends to file a complaint with the Commission
based on violations of one or more of the rules contained in this
section.
(g) Remedies for violations--(1) Remedies authorized. Upon
completion of such adjudicatory proceeding, the Commission shall order
appropriate remedies, including, if necessary, mandatory carriage of a
video programming vendor's programming on defendant's video
distribution system, or the establishment of prices, terms, and
conditions for the carriage of a video programming vendor's
programming. Such order shall set forth a timetable for compliance, and
shall become effective upon release, unless any order of mandatory
carriage would require the defendant multichannel video programming
distributor to delete existing programming from its system to
accommodate carriage of a video programming vendor's programming. In
such instances, if the defendant seeks review of the staff, or
administrative law judge decision, the order for carriage of a video
programming vendor's programming will not become effective unless and
until the decision of the staff or administrative law judge is upheld
by the Commission. If the Commission upholds the remedy ordered by the
staff or administrative law judge in its entirety, the defendant will
be required to carry the video programming vendor's programming for an
additional period equal to the time elapsed between the staff or
administrative law judge decision and the Commission's ruling, on the
terms and conditions approved by the Commission.
(2) Additional sanctions. The remedies provided in paragraph (g)(1)
of this section are in addition to and not in lieu of the sanctions
available under title V or any other provision of the Communications
Act.
11. In Section 76.1513, the heading, paragraphs (a), (d) through
(h) are revised and paragraphs (i) through (u) are removed to read as
follows:
Sec. 76.1513 Open video dispute resolution.
(a) Complaints. Any party aggrieved by conduct that it believes
constitute a violation of the regulations set forth in this part or in
section 653 of the Communications Act (47 U.S.C. 573) may commence an
adjudicatory proceeding at the Commission to obtain enforcement of the
rules through the filing of a complaint. The Commission shall resolve
any such dispute within 180 days after the filing of a complaint. The
complaint shall be filed and responded to in accordance with the
procedures specified in Sec. 76.7 of this part with the following
additions or changes.
* * * * *
(d) Contents of complaint. In addition to the requirements of
Sec. 76.7 of this part, an open video system complaint shall contain:
(1) The type of entity that describes complainant (e.g.,
individual, private association, partnership, or corporation), the
address and telephone number of the complainant, and the address and
telephone number of each defendant;
(2) If discrimination in rates, terms, and conditions of carriage
is alleged, documentary evidence shall be submitted such as a
preliminary carriage rate estimate or a programming contract that
demonstrates a differential in price, terms or conditions between
complainant and a competing video programming provider or, if no
programming contract or preliminary carriage rate estimate is submitted
with the complaint, an affidavit signed by an officer of complainant
alleging that a differential in price, terms or conditions exists, a
description of the nature and extent (if known or reasonably estimated
by the complainant) of the differential, together with a statement that
defendant refused to provide any further specific comparative
information;
Note to paragraph (d)(2): Upon request by a complainant, the
preliminary carriage rate estimate shall include a calculation of
the average of the carriage rates paid by the unaffiliated video
programming providers receiving carriage from the open video system
operator, including the information needed for any weighting of the
individual carriage rates that the operator has included in the
average rate.
(3) If a programming contract or a preliminary carriage rate
estimate is submitted with the complaint in support of the alleged
violation, specific references to the relevant provisions therein.
(4) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (c)
of this section has been made.
(e) Answer.
(1) Any open video system operator upon which a complaint is served
under this section shall answer within thirty (30) days of service of
the complaint, unless otherwise directed by the Commission.
(2) An answer to a discrimination complaint shall state the reasons
for any differential in prices, terms or conditions between the
complainant and its competitor, and shall specify the particular
justification relied upon in support of the differential. Any documents
or contracts submitted pursuant to this paragraph may be protected as
proprietary pursuant to Sec. 76.9 of this part.
(f) Reply. Within twenty (20) days after service of an answer, the
complainant may file and serve a reply which shall be responsive to
matters contained in the answer and shall not contain new matters.
(g) Time limit on filing of complaints. Any complaint filed
pursuant to this subsection must be filed within one year of the date
on which one of the following events occurs
(1) The open video system operator enters into a contract with the
complainant that the complainant alleges to violate one or more of the
rules contained in this part; or
(2) The open video system operator offers to carry programming for
the complainant pursuant to terms that the complainant alleges to
violate one or more of the rules contained in this part, and such offer
to carry programming is unrelated to any existing contract between the
complainant and the open video system operator; or
(3) The complainant has notified an open video system operator that
it intends to file a complaint with the Commission based on a request
for such operator to carry the complainant's programming on its open
video system that has been denied or unacknowledged, allegedly in
violation of one or more of the rules contained in this part.
(h) Remedies for violations--(1) Remedies authorized. Upon
completion of such adjudicatory proceeding, the Commission shall order
appropriate
[[Page 6576]]
remedies, including, if necessary, the requiring carriage, awarding
damages to any person denied carriage, or any combination of such
sanctions. Such order shall set forth a timetable for compliance, and
shall become effective upon release.
(2) Additional sanctions. The remedies provided in paragraph (h)(1)
of this section are in addition to and not in lieu of the sanctions
available under title V or any other provision of the Communications
Act.
[FR Doc. 99-3139 Filed 2-9-99; 8:45 am]
BILLING CODE 6712-01-P
