Sec.  76.65   Good faith and exclusive retransmission consent complaints.

   (a) Duty to negotiate in good faith. Television broadcast stations and
   multichannel video programming distributors shall negotiate in good faith
   the terms and conditions of retransmission consent agreements to fulfill the
   duties established by section 325(b)(3)(C) of the Act; provided, however,
   that it shall not be a failure to negotiate in good faith if:

   (1) The television broadcast station proposes or enters into retransmission
   consent agreements containing different terms and conditions, including
   price terms, with different multichannel video programming distributors if
   such different terms and conditions are based on competitive marketplace
   considerations; or

   (2) The multichannel video programming distributor enters into
   retransmission consent agreements containing different terms and conditions,
   including price terms, with different broadcast stations if such different
   terms and conditions are based on competitive marketplace considerations. If
   a television broadcast station or multichannel video programming distributor
   negotiates in accordance with the rules and procedures set forth in this
   section, failure to reach an agreement is not an indication of a failure to
   negotiate in good faith.

   (b) Good faith negotiation—(1) Standards. The following actions or practices
   violate a broadcast television station's or multichannel video programming
   distributor's (the “Negotiating Entity”) duty to negotiate retransmission
   consent agreements in good faith:

   (i) Refusal by a Negotiating Entity to negotiate retransmission consent;

   (ii) Refusal by a Negotiating Entity to designate a representative with
   authority to make binding representations on retransmission consent;

   (iii) Refusal by a Negotiating Entity to meet and negotiate retransmission
   consent at reasonable times and locations, or acting in a manner that
   unreasonably delays retransmission consent negotiations;

   (iv) Refusal by a Negotiating Entity to put forth more than a single,
   unilateral proposal;

   (v) Failure of a Negotiating Entity to respond to a retransmission consent
   proposal of the other party, including the reasons for the rejection of any
   such proposal;

   (vi) Execution by a Negotiating Entity of an agreement with any party, a
   term or condition of which, requires that such Negotiating Entity not enter
   into a retransmission consent agreement with any other television broadcast
   station or multichannel video programming distributor; and

   (vii) Refusal by a Negotiating Entity to execute a written retransmission
   consent agreement that sets forth the full understanding of the television
   broadcast station and the multichannel video programming distributor.

   (2) Totality of the circumstances. In addition to the standards set forth in
    Sec. 76.65(b)(1), a Negotiating Entity may demonstrate, based on the totality of
   the circumstances of a particular retransmission consent negotiation, that a
   television broadcast station or multichannel video programming distributor
   breached its duty to negotiate in good faith as set forth in  Sec. 76.65(a).

   (c) Good faith negotiation and exclusivity complaints. Any television
   broadcast station or multichannel video programming distributor aggrieved by
   conduct that it believes constitutes a violation of the regulations set
   forth in this section or  Sec. 76.64(l) may commence an adjudicatory proceeding
   at the Commission to obtain enforcement of the rules through the filing of a
   complaint. The complaint shall be filed and responded to in accordance with
   the procedures specified in  Sec. 76.7.

   (d) Burden of proof. In any complaint proceeding brought under this section,
   the burden of proof as to the existence of a violation shall be on the
   complainant.

   (e) Time limit on filing of complaints. 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) A complainant enters into a retransmission consent agreement with a
   television broadcast station or multichannel video programming distributor
   that the complainant alleges to violate one or more of the rules contained
   in this subpart; or

   (2) A television broadcast station or multichannel video programming
   distributor engages in retransmission consent negotiations with a
   complainant that the complainant alleges to violate one or more of the rules
   contained in this subpart, and such negotiation is unrelated to any existing
   contract between the complainant and the television broadcast station or
   multichannel video programming distributor; or

   (3) The complainant has notified the television broadcast station or
   multichannel video programming distributor that it intends to file a
   complaint with the Commission based on a request to negotiate retransmission
   consent that has been denied, unreasonably delayed, or unacknowledged in
   violation of one or more of the rules contained in this subpart.

   (f) Termination of rules. This section shall terminate at midnight on
   December 31, 2009.

   [ 70 FR 40224 , July 13, 2005]