Sec. 76.1302  Adjudicatory proceedings.

    Any video programming vendor or 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 Commission.
    (a) Notice required. Any aggrieved video programming vendor or 
multichannel video programming distributor intending to file a complaint 
under this section must first notify the 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. 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. Carriage agreement 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such as unpublished decisions or slip opinions of courts or 
administrative agencies.
    (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 
the complaint.
    (c) Complaint.

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    (1) A carriage agreement complaint shall contain:
    (i) The name of the complainant and defendant;
    (ii) The address and telephone number of the complainant, the type 
of multichannel video programming distributor that describes the 
defendant, and the address and telephone number of the defendant;
    (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 
facts, including, when relevant, any written carriage agreement between 
the complainant and the defendant, with proprietary information 
redacted;
    (vii) Evidence that supports complainant's belief that the 
defendant, where necessary, meets the attribution standards for 
application of the carriage agreement regulations;
    (viii) For complaints alleging a violation of Sec. 76.1301(c), 
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;
    (ix) The specific relief sought, and the rationale and any evidence 
in support of the relief sought.
    (2) Every complaint alleging a violation of the carriage agreement 
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 
necessary:

   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 Violation]

                      Carriage Agreement 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 post office address and telephone 
number.)
    2. (Here insert the name, defendant's method of multichannel video 
distribution, address and telephone number of 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 
support.)
    Wherefore, complainant asks (here state specifically the relief 
desired, including rationale and relevant legal and documentary support 
for such relief).
(Date)
(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 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 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

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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) The answer shall also address the relief requested in the 
complaint, including legal and documentary support for such response, 
and may include an alternative relief proposal without prejudice to any 
denials or defenses raised.
    (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 defenses 
set forth therein.
    (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 production.
    (2) The Commission staff may in its discretion hold a status 
conference with the parties, pursuant to paragraph (j) of this section, 
to determine the scope of discovery.
    (3) If the Commission staff determines that extensive discovery is 
required or that resolution of the complaint will require resolution of 
disputed facts, 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 the course of 
adjudicating a carriage agreement complaint under this subpart 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 
the FOIA.
    (2) 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

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    (v) Court reporters and stenographers in accordance with the terms 
and conditions of this section. These individuals 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.
    (3) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraph (h)(2) 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.
    (4) 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 carriage agreement requirements set forth in the Communications Act 
and Sec. 76.1301, 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 carriage agreement 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 
parties;
    (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 
complaint.
    (2) Any party may request that a conference be held at any time 
after the complaint has been filed.

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    (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 
conference call.
    (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 
counsel present.
    (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 carriage agreement 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 carriage agreement complaint 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 
certification 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.
    (2) An original plus two copies shall be filed of all pleadings and 
documents other than the complaint.
    (3) The complainant shall serve the complaint 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 
chapter.
    (5) The parties to any carriage agreement complaint 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 carriage agreement complaint 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

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ten (10) days to elect to resolve the 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 carriage agreement complaint proceeding 
designated for a hearing before an administrative law judge pursuant to 
this paragraph (m).
    (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 through 1.106 of this chapter.
    (o) Interlocutory review.
    (1) Except as provided in paragraph (o)(2) of this section, 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 carriage agreement 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 carriage agreement complaint proceeding aggrieved 
by any decision on the merits by an administrative judge may file an 
appeal of the decision directly with the Commission in accordance with 
Sec. 1.276(a) and Secs. 1.277 (a) through (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 pending appeal.
    (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 
paragraph 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 vendor 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; 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.
    (s) 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

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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 of time 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 (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 
Act.

[ 58 FR 60395 , Nov. 16, 1993, as amended at  59 FR 43777 , Aug. 25, 1994]

Secs. 76.1303--76.1305  [Reserved]

            Subpart R--Telecommunications Act Implementation

    Source:   61 FR 18980 , Apr. 30, 1996, unless otherwise noted.