Goto Section: 76.971 | 76.977 | Table of Contents
Revised as of
Goto Year:1996 |
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
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
(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
(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
(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]
Goto Section: 76.971 | 76.977
Goto Year: 1996 |
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