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) 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,  Sec.  Sec. 76.970, 76.971, and 76.972 may file
   a petition for relief with the Commission.

   (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.

   (d) The petition must be filed within 60 days of the alleged violation. The
   time limit on filing complaints will be suspended if the complainant files a
   notice with the Commission prior to the expiration of the filing period,
   stating that it seeks an extension of the filing deadline in order to pursue
   active negotiations with the cable operator, and the cable operator agrees
   to the extension.

   (e) Discovery. In addition to the general pleading and discovery rules
   contained in  Sec. 76.7 of this part, parties to a leased access complaint may
   serve requests for discovery directly on opposing parties, and file a copy
   of  the  request  with  the  Commission. The respondent shall have the
   opportunity to object to any request for documents that are not in its
   control  or  relevant to the dispute. Such request shall be heard, and
   determination made, by the Commission. Until the objection is ruled upon,
   the obligation to produce the disputed material is suspended. Any party who
   fails to timely provide discovery requested by the opposing party to which
   it has not raised an objection, or who fails to respond to a Commission
   order for discovery material, may be deemed in default and an order may be
   entered in accordance with the allegations contained in the complaint, or
   the complaint may be dismissed with prejudice.

   (f) Protective Orders. In addition to the procedures contained in  Sec. 76.9 of
   this part related to the protection of confidential material, the Commission
   may issue orders to protect the confidentiality of proprietary information
   required  to be produced for resolution of leased access complaints. A
   protective  order  constitutes  both an order of the Commission and an
   agreement between the party executing the protective order declaration and
   the  party  submitting the protected material. The Commission has full
   authority to fashion appropriate sanctions for violations of its protective
   orders, including but not limited to suspension or disbarment of attorneys
   from practice before the Commission, forfeitures, cease and desist orders,
   and denial of further access to confidential information in Commission
   proceedings.

   (g) The cable operator or other respondent will have 30 days from the filing
   of the petition to file a response. To the extent that a cable operator
   expressly references and relies upon a document or documents in asserting a
   defense or responding to a material allegation, such document or documents
   shall  be included as part of the 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.

   (h)(1) The Media Bureau will resolve a leased access complaint within 90
   days of the close of the pleading cycle.

   (2) The Media Bureau, 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.

   (3) 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  Sec.  Sec. 76.970, 76.971, or 76.972, 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.

   (4) As part of the remedy phase of the leased access complaint process, the
   Media Bureau will have discretion to request that the parties file their
   best and final offer for the prices, terms, or conditions in dispute. The
   Commission will have the discretion to adopt one of the proposals or choose
   to fashion its own remedy.

   (i) 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;  73 FR 10692 , Feb. 28, 2008]

   Effective Date Note:   At  73 FR 10692 , Feb. 28, 2008, in  Sec. 76.975, paragraphs
   (b) through (g) were revised, paragraph (h) was redesignated as paragraph
   (i) and a new paragraph (h) was added. Paragraphs (d), (e),(g), and (h)(4)
   of this section, which contain information collection and recordkeeping
   requirements, and paragraphs (b), (c), and (f), which contains requirements
   related  to those information collection requirements, will not become
   effective until approval has been given by the Office of Management and
   Budget.