Sec. 76.1003 Adjudicatory proceedings.
Any competing multichannel video programming distributor aggrieved
by conduct that it alleges to constitute a violation of the regulations
set forth in this subpart may commence an adjudicatory proceeding at the
(a) 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 Sec. 76.1001 or 76.1002. 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.
(b) General pleading requirements. Program access complaint
proceedings are generally resolved on a written record consisting of a
complaint, answer and reply, but may also include other written
submissions such as briefs and written interrogatories. All written
submissions, both substantive and procedural, must conform to the
following standards :
(1) Pleadings 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
constitute a violation of the Act or Commission order or regulation, or
a defense to such alleged violation.
(3) Facts must be supported by relevant documentation or affidavit.
(4) Legal arguments must be supported by appropriate judicial,
Commission, or statutory authority.
(5) Opposing authorities must be distinguished.
(6) 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such as unpublished decisions or slip opinions of courts or
(7) 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
(c) Complaint. (1) A program access complaint shall contain:
(i) The name of the complainant and each defendant;
(ii) 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
(iii) The name, address and telephone number of complainant's
attorney, if represented by counsel;
(iv) Citation to the section of the Communications Act and/or
Commission regulation or order alleged to have been violated;
(v) A complete statement of facts, which, if proven true, would
constitute such a violation;
(vi) Any evidence that supports the truth or accuracy of the alleged
(vii) Evidence that supports complainant's belief that the
defendant, where necessary, meets the attribution standards for
application of the program access requirements;
(viii) 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 programming or
satellite broadcast programming vendor;
(ix) 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;
(x) 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;
(xi) In complaints alleging exclusivity violations:
(A) The identity of both the programmer and cable operator who are
parties to the alleged prohibited agreement,
(B) Evidence that complainant can or does serve the area specified
in the complaint, and
(C) Evidence that the complainant has requested to purchase the
relevant programming and has been refused or unanswered;
(xii) In complaints alleging a violation of Sec. 76.1001, evidence
demonstrating that the behavior complained of has harmed complainant;
(xiii) The specific relief sought.
(2) Every complaint alleging a violation of the program access
requirements shall be accompanied by a sworn affidavit signed by an
authorized officer or agent of the complainant. This affidavit shall
contain a statement that the affiant has read the complaint and that to
the best of the affiant's knowledge, information and belief formed after
reasonable inquiry it is well grounded in fact and is warranted under
Commission regulations and policies or is a good faith argument for the
extension, modification or reversal of such regulations or policies, and
it is not interposed for any improper purpose. If the complaint is
signed in violation of this rule, the Commission upon motion or its own
initiative shall impose upon the complainant an appropriate sanction.
(3) The following format may be used in cases to which it is
applicable, with such modifications as the circumstances may render
Before The Federal Communications Commission, Washington, DC 20554.
In the matter of Complainant, v. Defendant. File No. (To be inserted by
the Commission) [Insert Subject/Nature of Issue: Discrimination;
Exclusivity; Undue Influence; Unfair Practice]
Program Access Complaint
To: The Commission.
The complainant (here insert full name of complainant, and if a
corporation, the corporate title of such complainant).
1. (Here state the complainant's method of multichannel video
program distribution; post office address, and telephone number of the
2. (Here insert the name, whether a cable operator, satellite
broadcast programming vendor or satellite cable programming vendor,
address and telephone number of each defendant).
3. (Here insert fully and clearly the specific act or thing
complained of, together with such facts as are necessary to give full
understanding of the matter, including relevant legal and documentary
Wherefore, complainant asks (here state specifically the relief
(Name of complainant)
(Name, address, and telephone number of attorney, if any)
(4) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (a)
of this section has been made.
(d) 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 thirty
(30) days of service of the complaint, unless otherwise directed by the
(2) 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 defendant 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.
(3) The answer shall state concisely any and all defenses to each
claim asserted and 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.
(4) Averments in a complaint are deemed to be admitted when not
denied in the answer.
(5) 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 to the Commission 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 paragraph (h) of this section.
(6) 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) relied upon in support of the
(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
(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
(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) 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 minimus.
(iv) Any documents or contracts submitted pursuant to this
may be protected as proprietary pursuant to paragraph (h) of this
(7) 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.
(e) 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.
Failure to reply will not be deemed an admission of any allegations
contained in the answer, except with respect to any affirmative defense
set forth therein. Replies containing information claimed by defendant
to be proprietary under paragraph (h) of 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 defendant.
(f) 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.
(g) 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 or document
(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 will then hold a status conference with the parties,
pursuant to paragraph (j) of this section, to determine the scope of
discovery. If the Commission staff determines that extensive discovery
is required or that depositions are warranted, the staff will advise the
parties that the proceeding will be referred to an administrative law
judge in accordance with paragraph (m) of this section.
(h) Confidentiality of proprietary information. (1) Any materials
generated or provided by a party in connection with the pre-complaint
notification procedure required under Sec. 76.1003(a) and in the course
of adjudicating a program access complaint 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
(2) Except as provided in paragraph (h)(3) of this section,
materials marked as proprietary may be disclosed solely to the following
persons, only for use in prosecuting or defending a party to the
complaint action, 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 complaint
action and any support personnel employed by such attorneys;
(ii) Officers or employees of the opposing party who are named by
the opposing party as being directly involved in the prosecution or
defense of the case;
(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.
(3) 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 opposing party will have
an opportunity to respond to such requests.
(4) The persons designated in paragraphs (h) (2) and (3) 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 in 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.
(5) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraphs (h) (2) or (3) 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.
(6) 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 complaint 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.
(i) Other required written submissions. (1) 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. 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.
(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 program access requirements set forth in the Communications Act and
Secs. 76.1001 and 76.1002, as well as affidavits and exhibits.
(3) 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.
(4) 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.
(5) Briefs containing information which is claimed by an opposing or
third party to be proprietary under paragraph (h) of this section shall
be submitted to the Commission in confidence pursuant to the
requirements of Sec. 0.459 of this chapter, and shall be 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 version is
submitted and served on opposing parties.
(j) Status conference. (1) In any program access complaint
proceeding, the Commission staff may in its discretion direct the
attorneys and/or the parties to appear for a conference to consider:
(i) Simplification or narrowing of the issues;
(ii) The necessity for or desirability of amendments to the
pleadings, additional pleadings, or other evidentiary submissions;
(iii) Obtaining admissions of fact or stipulations between the
parties as to any or all of the matters in controversy;
(iv) Settlement of the matters in controversy by agreement of the
(v) The necessity for and extent of discovery, including objections
to interrogatories or requests for written documents;
(vi) The need and schedule for filing briefs, and the date for any
further conferences; and
(vii) Such other matters that may aid in the disposition of the
(2) Any party may request that a conference be held at any time
after the complaint has been filed.
(3) Conferences will be scheduled by the Commission at such time and
place as it may designate, to be conducted in person or by telephone
(4) The failure of any attorney or party, following reasonable
notice, to appear at a scheduled conference will be deemed a waiver and
will not preclude the Commission from conferring with those parties or
(5) During a status conference, the Commission staff may issue oral
rulings pertaining to a variety of interlocutory matters relevant to the
conduct of a program access complaint 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.
(k) Specifications as to pleadings, briefs, and other documents;
subscriptions. (1) All papers filed in a program access compliant
proceeding must be drawn in conformity with the requirements of
Secs. 1.49 and 1.50 of this chapter.
(2) All averments of claims or defenses in complaints and answers
shall be made in numbered paragraphs. The contents of each paragraph
shall be limited as far as practicable to a statement of a single set of
circumstances. Each claim founded on a separate transaction or
occurrence and each affirmative defense shall be separately stated to
facilitate the clear presentation of the matters set forth.
(3) 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. Except when
otherwise specifically provided by rule or statute, pleadings need not
be verified. The signature of an attorney or party shall be a
certificate that the attorney or party has read the pleading, motion, or
other paper; that 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 upon the party an appropriate sanction. Where
the pleading or submission is signed by counsel, the provisions of
Secs. 1.52 and 1.24 of this chapter shall also apply.
(l) Copies; service. (1) The complainant shall file an original plus
three copies of the complaint with the Commission. However, if the
complaint is addressed against multiple defendants, complainant shall
provide three additional copies of the complaint for each additional
(2) An original plus two copies shall be filed of all pleadings and
documents other than the complaint.
(3) The complainant shall serve the compliant on each defendant at
the same time that it is filed at the Commission.
(4) All subsequent pleadings and briefs, as well as all letters,
documents or other written submissions, shall be served by the filing
party on all other parties to the proceeding, together with proof of
such service in accordance with the requirements of Sec. 1.47 of this
(5) The parties to any program access compliant proceeding brought
pursuant to this section may be required to file additional copies of
any or all papers filed in the proceeding.
(m) Referral to administrative law judge. (1) After reviewing the
complaint, answer and reply, and at any stage of the proceeding
thereafter, the Commission staff may, in its discretion, designate any
program access compliant 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
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 Mass Media Bureau Chief, the Mass Media Bureau Chief shall not be
deemed to be a party to a program access compliant proceeding designated
for a hearing before an administrative law judge pursuant to this
(n) 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. 1.104-1.106 of this chapter.
(o) 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.
(p) Expedited review. (1) Any party to a program access complaint
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 program access complaint 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
Sec. 1.276(a) and Secs. 1.277(a)-(c) of this chapter, except that 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
(q) Frivolous complaints. It shall be unlawful for any party to file
a frivolous complaint with the Commission alleging any violation of this
subpart. Any violation of this paragraph shall constitute an abuse of
process subject to appropriate sanctions.
(r) Statute of limitations. 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; or
(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 a request to amend an existing
contract pertaining to such programming pursuant to Sec. 76.1002(f) that
has been denied or unacknowledged, allegedly in violation of one or more
of the rules contained in this subpart.
(s) Remedies for violations--(1) Remedies authorized. Upon
completion of such adjudicatory proceeding, the Commission shall order
appropriate remedies, including, if necessary, 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
(2) Additional sanctions. The remedies provided in paragraph (s)(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
[ 58 FR 27673 , May 11, 1993, as amended at 59 FR 66258 , Dec. 23, 1994]
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