Sec. 76.975  Commercial leased access dispute resolution.

    (a) Any person aggrieved by the failure or refusal of a cable 
operator to make commercial channel capacity available in accordance 
with the provisions of Title VI of the Communications Act may bring an 
action in the district court of the United States for the Judicial 
district in which the cable system is located to compel that such 
capacity be made available.
    (b)(1) Any person aggrieved by the failure or refusal of a cable 
operator to make commercial channel capacity available or to charge 
rates for such capacity in accordance with the provisions of Title VI of 
the Communications Act, or our implementing regulations, Secs. 76.970 
and 76.971, may file a petition for relief with the Commission. Persons 
alleging that a cable operator's leased access rate is unreasonable must 
receive a determination of the cable operator's maximum permitted

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rate from an independent accountant prior to filing a petition for 
relief with the Commission.
    (2) Parties to a dispute over leased access rates shall have five 
business days to agree on a mutually acceptable accountant from the date 
on which the programmer provides the cable operator with a written 
request for a review of its leased access rates. Parties that fail to 
agree on a mutually acceptable accountant within five business days of 
the programmer's request for a review shall each be required to select 
an independent accountant on the sixth business day. The two accountants 
selected shall have five business days to select a third independent 
accountant to perform the review. Operators of systems subject to small 
system relief shall have 14 business days to select an independent 
accountant when an agreement cannot be reached. For these purposes, 
systems subject to small system relief are systems that either:
    (i) Qualify as small systems under Sec. 76.901(c) and are owned by a 
small cable company as defined under Sec. 76.901(e); or
    (ii) Have been granted special relief.
    (3) The final accountant's report must be completed within 60 days 
of the date on which the final accountant is selected to perform the 
review. The final accountant's report must, at a minimum, state the 
maximum permitted rate, and explain how it was determined without 
revealing proprietary information. The report must be signed, dated and 
certified by the accountant. The report shall be filed in the cable 
system's local public file.
    (4) If the accountant's report indicates that the cable operator's 
leased access rate exceeds the maximum permitted rate by more than a de 
minimis amount, the cable operator shall be required to pay the full 
cost of the review. If the final accountant's report does not indicate 
that the cable operator's leased access rate exceeds the maximum 
permitted rate by more than a de minimis amount, each party shall be 
required to split the cost of the final accountant's review, and to pay 
its own expenses incurred in making the review.
    (5) Parties may use alternative dispute resolution (ADR) processes 
to settle disputes that are not resolved by the final accountant's 
report.
    (c) A petition must contain a concise statement of the facts 
constituting a violation of the statute or the Commission's Rules, the 
specific statute(s) or rule(s) violated, and certify that the petition 
was served on the cable operator. Where a petition is based on 
allegations that a cable operator's leased access rates are 
unreasonable, the petitioner must attach a copy of the final 
accountant's report. In proceedings before the Commission, there will be 
a rebuttable presumption that the final accountant's report is correct.
    (d) Where a petition is not based on allegations that a cable 
operator's leased access rates are unreasonable, the petition must be 
filed within 60 days of the alleged violation. Where a petition is based 
on allegations that the cable operator's leased access rates are 
unreasonable, the petition must be filed within 60 days of the final 
accountant's report, or within 60 days of the termination of ADR 
proceedings. Aggrieved parties must certify that their petition was 
filed within 60 days of the termination of ADR proceedings in order to 
file a petition later than 60 days after completion of the final 
accountant's report. Cable operators may rebut such certifications.
    (e) The cable operator or other respondent will have 30 days from 
the filing of the petition to file a response. If a leased access rate 
is disputed, the response must show that the rate charged is not higher 
than the maximum permitted rate for such leased access, and must be 
supported by the affidavit of a responsible company official. If, after 
a response is submitted, the staff finds a prima facie violation of our 
rules, the staff may require a respondent to produce additional 
information, or specify other procedures necessary for resolution of the 
proceeding.
    (f) The Commission, after consideration of the pleadings, may grant 
the relief requested, in whole or in part, including, but not limited to 
ordering refunds, injunctive measures, or forfeitures pursuant 47 U.S.C. 
503, denying the petition, or issuing a ruling on the petition or 
dispute.

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    (g) To be afforded relief, the petitioner must show by clear and 
convincing evidence that the cable operator has violated the 
Commission's leased access provisions in 47 U.S.C. 532 or Secs. 76.970 
and 76.971, or otherwise acted unreasonably or in bad faith in failing 
or refusing to make capacity available or to charge lawful rates for 
such capacity to an unaffiliated leased access programmer.
    (h) During the pendency of a dispute, a party seeking to lease 
channel capacity for commercial purposes, shall comply with the rates, 
terms and conditions prescribed by the cable operator, subject to refund 
or other appropriate remedy.

[ 58 FR 29753 , May 21, 1993, as amended at  62 FR 11382 , Mar. 12, 1997]