Sec. 76.1513  Dispute resolution.

    (a) Complaints. Any party aggrieved by conduct that it alleges to 
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. The Commission shall resolve 
any such dispute within 180 days after the filing of a complaint.
    (b) Alternate dispute resolution. An open video system operator may 
not provide in its carriage contracts with programming providers that 
any dispute must be submitted to arbitration, mediation, or any other 
alternative method for dispute resolution prior to submission of a 
complaint to the Commission.
    (c) Notice required prior to filing of complaint. Any aggrieved 
party intending to file a complaint under this section must first notify 
the potential defendant open video system operator that it intends to 
file a complaint with the Commission based on actions alleged to violate 
one or more of the provisions contained in this part or in Section 653 
of the Communications Act. The notice must be in writing and 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.
    (d) General pleading requirements. Complaint proceedings under this 
part 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 standard:
    (1) Pleadings must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, should be pleaded fully 
and with specificity;

[[Page 654]]

    (2) Pleadings must contain facts which, if true, are sufficient to 
constitute a violation of the Communications Act or of a Commission 
regulation or order, 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; and
    (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.
    (8) Parties are required to submit the complaint and materials 
related to these proceedings simultaneously to the Office of the 
Secretary and the Bureau Chief, Cable Services Bureau.
    (9) Pleadings must include a cover sheet indicating that the 
submission is either an Open Video System Channel Carriage Complaint or 
related pleading. In either case, the only wording on this cover sheet 
shall be ``Open Video System Channel Carriage Dispute Resolution'' and 
``Attention: Cable Services Bureau.'' This wording shall be located in 
the center of the page and should be in letters at least \1/2\ in size. 
Parties shall also include the words ``open video systems'' on their 
mailing envelopes.
    (e) Complaint. (1) A complaint filed under this part shall contain:
    (i) The name of the complainant and each defendant;
    (ii) 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;
    (iii) The name, address and telephone number of complainant's 
attorney, if complainant is represented by counsel;
    (iv) Citation to the section of the Communications Act and/or the 
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;
    (vii) Evidence that the open video system operator's conduct at 
issue violated a section of the Communications Act and/or Commission 
regulation or order.
    (viii) 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 (e)(1)(viii): 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.

    (ix) 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; and
    (x) The specific relief sought.
    (2) Every complaint alleging a violation of the open video system 
requirements shall be accompanied by a sworn

[[Page 655]]

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, D.C. 20554
    In the Matter of Complainant
    File No. (To be inserted by the Commission) v. Defendant.

[Insert Subject or Nature of Issue: Unjust or Unreasonable 
Discrimination in Rates, Terms, and Conditions; Discriminatory Denial of 
Carriage]
    Open Video System Complaint
To: The Commission.
    The complainant (here insert full name of complainant and type of 
entity of such complainant):
    1. (Here state the complainant's post office address and telephone 
number).
    2. (Here insert the name, 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 
support).
    Wherefore, complainant asks (here state specifically the relief 
desired).
 (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 (c) 
of this section has been made.
    (f) 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) 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 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 (f)(5) may be 
protected as proprietary pursuant to paragraph (j) of this section.
    (g) 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

[[Page 656]]

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 (j) 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.
    (h) 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.
    (i) 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 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 (l) 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 (o) of this section.
    (j) Confidentiality of proprietary information. (1) Any materials 
generated or provided by a party in connection with the pre-complaint 
notification procedure required under paragraph (c) of this section and 
in the course of adjudicating a 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 
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
    (v) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (3) The persons designated in paragraph (j)(2) 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.
    (4) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraph (j)(2) of this 
section. Each party shall maintain a log recording

[[Page 657]]

the number of copies made of all proprietary material and the persons to 
whom the copies have been provided.
    (5) 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.
    (k) 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 requirements set forth in the Communications Act and in this part, 
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 (j) 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.
    (l) Status conference. (1) In any complaint proceeding under this 
part, 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.
    (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 the 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 part, such action will be required within ten (10) 
days from the date of the written memorialization unless otherwise 
directed by the staff.

[[Page 658]]

    (m) Specifications as to pleadings, briefs, and other documents; 
subscriptions. (1) All papers filed in a complaint proceeding under this 
part must be drawn in conformity with the requirements of Sections 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 
Sections 1.52 and 1.24 of this chapter shall also apply.
    (n) 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 
defendant.
    (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 complaint proceeding brought pursuant to this 
section may be required to file additional copies of any or all papers 
filed in the proceeding.
    (o) 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 
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 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 complaint proceeding designated for a 
hearing before an administrative law judge pursuant to this paragraph.
    (p) 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.
    (q) Interlocutory review. Except as provided below, no party may 
seek review

[[Page 659]]

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; 
and/or
    (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.
    (r) Expedited review. (1) Any party to a complaint proceeding under 
this part 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 Section 1.115 of this chapter.
    (2) Any party to a 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) 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.
    (s) Frivolous complaints. It shall be unlawful for any party to file 
a frivolous complaint with the Commission alleging any violation of this 
part. Any violation of this paragraph shall constitute an abuse of 
process subject to appropriate sanctions.
    (t) Statute of limitations. Any complaint filed pursuant to this 
subsection must be filed within one year of the date on which the 
following acts or conduct occur which form the basis of the complaint:
    (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; 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.
    (u) Remedies for violations. (1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission shall order 
appropriate 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 (u)(1) 
of this section are in addition to and not in lieu of the sanctions 
available under Title VI or any other provision of the Communications 
Act.

[ 61 FR 28708 , June 5, 1996, as amended at  61 FR 43178 , Aug. 21, 1996;  62 FR 26239 , May 13, 1997]