Goto Section: 76.1002 | 76.1004 | Table of Contents
FCC 76.1003
Revised as of October 1, 2011
Goto Year:2010 |
2012
§ 76.1003 Program access proceedings.
(a) Complaints. Any multichannel video programming distributor
aggrieved by conduct that it believes constitute a violation of the
regulations set forth in this subpart 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 § 76.7 of this part
with the following additions or changes:
(b) Prefiling notice required. Any aggrieved multichannel video
programming distributor intending to file a complaint under this
section must first notify the potential defendant cable operator,
and/or the potential defendant satellite cable programming vendor or
satellite broadcast programming vendor, that it intends to file a
complaint with the Commission based on actions alleged to violate one
or more of the provisions contained in § 76.1001 or § 76.1002 of this
part. The notice 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.
(c) Contents of complaint. In addition to the requirements of § 76.7 of
this part, a program access complaint shall contain:
(1) The type of multichannel video programming distributor that
describes complainant, the address and telephone number of the
complainant, whether the defendant is a cable operator, satellite
broadcast programming vendor or satellite cable programming vendor
(describing each defendant), and the address and telephone number of
each defendant;
(2) Evidence that supports complainant's belief that the defendant,
where necessary, meets the attribution standards for application of the
program access requirements;
(3) Evidence that the complainant competes with the defendant cable
operator, or with a multichannel video programming distributor that is
a customer of the defendant satellite cable programming or satellite
broadcast programming vendor or a terrestrial cable programming vendor
alleged to have engaged in conduct described in § 76.1001(b)(1);
(4) In complaints alleging discrimination, documentary evidence such as
a rate card or a programming contract that demonstrates a differential
in price, terms or conditions between complainant and a competing
multichannel video programming distributor or, if no programming
contract or rate card is submitted with the complaint, an affidavit
signed by an officer of complainant alleging that a differential in
price, terms or conditions exits, 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;
(5) If a programming contract or a rate card is submitted with the
complaint in support of the alleged violation, specific references to
the relevant provisions therein;
(6) In complaints alleging exclusivity violations:
(i) The identity of both the programmer and cable operator who are
parties to the alleged prohibited agreement,
(ii) Evidence that complainant can or does serve the area specified in
the complaint, and
(iii) Evidence that the complainant has requested to purchase the
relevant programming and has been refused or unanswered;
(7) In complaints alleging a violation of § 76.1001 of this part,
evidence demonstrating that the behavior complained of has harmed
complainant.
(8) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (a)
of this section has been made.
(d) Damages requests. (1) In a case where recovery of damages is
sought, the complaint shall contain a clear and unequivocal request for
damages and appropriate allegations in support of such claim in
accordance with the requirements of paragraph (d)(3) of this section.
(2) Damages will not be awarded upon a complaint unless specifically
requested. Damages may be awarded if the complaint complies fully with
the requirement of paragraph (d)(3) of this section where the defendant
knew, or should have known that it was engaging in conduct violative of
section 628.
(3) In all cases in which recovery of damages is sought, the
complainant shall include within, or as an attachment to, the
complaint, either:
(i) A computation of each and every category of damages for which
recovery is sought, along with an identification of all relevant
documents and materials or such other evidence to be used by the
complainant to determine the amount of such damages; or
(ii) An explanation of:
(A) The information not in the possession of the complaining party that
is necessary to develop a detailed computation of damages;
(B) The reason such information is unavailable to the complaining
party;
(C) The factual basis the complainant has for believing that such
evidence of damages exists; and
(D) A detailed outline of the methodology that would be used to create
a computation of damages when such evidence is available.
(e) Answer. (1) Except as otherwise provided or directed by the
Commission, any cable operator, satellite cable programming vendor or
satellite broadcast programming vendor upon which a program access
complaint is served under this section shall answer within twenty (20)
days of service of the complaint. To the extent that a cable operator,
satellite cable programming vendor or satellite broadcast programming
vendor 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 answer.
(2) An answer to an exclusivity complaint shall provide the defendant's
reasons for refusing to sell the subject programming to the
complainant. In addition, the defendant may submit its programming
contracts covering the area specified in the complaint with its answer
to refute allegations concerning the existence of an impermissible
exclusive contract. If there are no contracts governing the specified
area, the defendant shall so certify in its answer. Any contracts
submitted pursuant to this provision may be protected as proprietary
pursuant to § 76.9 of this part.
(3) 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 set
forth in § 76.1002(b) of this part relied upon in support of the
differential.
(i) When responding to allegations concerning price discrimination,
except in cases in which the alleged price differential is de minimis
(less than or equal to five cents per subscriber or five percent,
whichever is greater), the defendant shall provide documentary evidence
to support any argument that the magnitude of the differential is not
discriminatory.
(ii) In cases involving a price differential of less than or equal to
five cents per subscriber or five percent, whichever is greater, the
answer shall identify the differential as de minimis and state that the
defendant is therefore not required to justify the magnitude of the
differential.
(iii) If the defendant believes that the complainant and its competitor
are not sufficiently similar, the answer shall set forth the reasons
supporting this conclusion, and the defendant may submit an alternative
contract for comparison with a similarly situated multichannel video
programming distributor that uses the same distribution technology as
the competitor selected for comparison by the complainant. The answer
shall state the defendant's reasons for any differential between the
prices, terms and conditions between the complainant and such similarly
situated distributor, and shall specify the particular justifications
in § 76.1002(b) of this part relied upon in support of the
differential. The defendant shall also provide with its answer written
documentary evidence to support its justification of the magnitude of
any price differential between the complainant and such similarly
situated distributor that is not de minimis .
(4) An answer to a complaint alleging an unreasonable refusal to sell
programming shall state the defendant's reasons for refusing to sell to
the complainant, or for refusing to sell to the complainant on the same
terms and conditions as complainant's competitor, and shall specify why
the defendant's actions are not discriminatory.
(f) Reply. Within fifteen (15) days after service of an answer, unless
otherwise directed by the Commission, the complainant may file and
serve a reply which shall be responsive to matters contained in the
answer and shall not contain new matters.
(g) 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) The satellite cable programming vendor, satellite broadcast
programming vendor, or terrestrial cable programming vendor enters into
a contract with the complainant that the complainant alleges to violate
one or more of the rules contained in this subpart; or
(2) The satellite cable programming vendor, satellite broadcast
programming vendor, or terrestrial cable programming vendor offers to
sell programming to the complainant pursuant to terms that the
complainant alleges to violate one or more of the rules contained in
this subpart, and such offer to sell programming is unrelated to any
existing contract between the complainant and the satellite cable
programming vendor, satellite broadcast programming vendor, or
terrestrial cable programming vendor; or
(3) The complainant has notified a cable operator, or a satellite cable
programming vendor or a satellite broadcast programming vendor that it
intends to file a complaint with the Commission based on a request to
purchase or negotiate to purchase satellite cable programming,
satellite broadcast programming, or terrestrial cable programming, or
has made a request to amend an existing contract pertaining to such
programming pursuant to § 76.1002(f) of this part that has been denied
or unacknowledged, allegedly in violation of one or more of the rules
contained in this subpart.
(h) Remedies for violations --(1) Remedies authorized. Upon completion
of such adjudicatory proceeding, the Commission shall order appropriate
remedies, including, if necessary, the imposition of damages, and/or
the establishment of prices, terms, and conditions for the sale of
programming to the aggrieved multichannel video programming
distributor. Such order shall set forth a timetable for compliance, and
shall become effective upon release.
(2) Additional sanctions. The remedies provided in paragraph (h)(1) of
this section are in addition to and not in lieu of the sanctions
available under title V or any other provision of the Communications
Act.
(3) Imposition of damages. (i) Bifurcation. In all cases in which
damages are requested, the Commission may bifurcate the program access
violation determination from any damage adjudication.
(ii) Burden of proof. The burden of proof regarding damages rests with
the complainant, who must demonstrate with specificity the damages
arising from the program access violation. Requests for damages that
grossly overstate the amount of damages may result in a Commission
determination that the complainant failed to satisfy its burden of
proof to demonstrate with specificity the damages arising from the
program access violation.
(iii) Damages adjudication. (A) The Commission may, in its discretion,
end adjudication of damages with a written order determining the
sufficiency of the damages computation submitted in accordance with
paragraph (d)(3)(i) of this section or the damages computation
methodology submitted in accordance with paragraph (d)(3)(ii)(D) of
this section, modifying such computation or methodology, or requiring
the complainant to resubmit such computation or methodology.
( 1 ) Where the Commission issues a written order approving or
modifying a damages computation submitted in accordance with paragraph
(d)(3)(i) of this section, the defendant shall recompense the
complainant as directed therein.
( 2 ) Where the Commission issues a written order approving or
modifying a damages computation methodology submitted in accordance
with paragraph (d)(3)(ii)(D) of this section, the parties shall
negotiate in good faith to reach an agreement on the exact amount of
damages pursuant to the Commission-mandated methodology.
(B) Within thirty days of the issuance of a paragraph (d)(3)(ii)(D) of
this section damages methodology order, the parties shall submit
jointly to the Commission either:
( 1 ) A statement detailing the parties' agreement as to the amount of
damages;
( 2 ) A statement that the parties are continuing to negotiate in good
faith and a request that the parties be given an extension of time to
continue negotiations; or
( 3 ) A statement detailing the bases for the continuing dispute and
the reasons why no agreement can be reached.
(C)( 1 ) In cases in which the parties cannot resolve the amount of
damages within a reasonable time period, the Commission retains the
right to determine the actual amount of damages on its own, or through
the procedures described in paragraph (h)(3)(iii)(C)( 2 ) of this
section.
( 2 ) Issues concerning the amount of damages may be designated by the
Chief, Media Bureau for hearing before, or, if the parties agree,
submitted for mediation to, a Commission Administrative Law Judge.
(D) Interest on the amount of damages awarded will accrue from either
the date indicated in the Commission's written order issued pursuant to
paragraph (h)(3)(iii)(A)( 1 ) of this section or the date agreed upon
by the parties as a result of their negotiations pursuant to paragraph
(h)(3)(iii)(A)( 2 ) of this section. Interest shall be computed at
applicable rates published by the Internal Revenue Service for tax
refunds.
(i) Alternative dispute resolution. Within 20 days of the close of the
pleading cycle, the parties to the program access dispute may
voluntarily engage in alternative dispute resolution, including
commercial arbitration. The Commission will suspend action on the
complaint if both parties agree to use alternative dispute resolution.
(j) Discovery. In addition to the general pleading and discovery rules
contained in § 76.7 of this part, parties to a program 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 as described above, 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.
(k) Protective orders. In addition to the procedures contained in
§ 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
program 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.
(l) Petitions for temporary standstill. (1) A program access
complainant seeking renewal of an existing programming contract may
file a petition along with its complaint requesting a temporary
standstill of the price, terms, and other conditions of the existing
programming contract pending resolution of the complaint. In addition
to the requirements of § 76.7, the complainant shall have the burden of
proof to demonstrate the following in its petition:
(i) The complainant is likely to prevail on the merits of its
complaint;
(ii) The complainant will suffer irreparable harm absent a stay;
(iii) Grant of a stay will not substantially harm other interested
parties; and
(iv) The public interest favors grant of a stay.
(2) The defendant cable operator, satellite cable programming vendor or
satellite broadcast programming vendor upon which a petition for
temporary standstill is served shall answer within ten (10) days of
service of the petition, unless otherwise directed by the Commission.
(3) If the Commission grants the temporary standstill, the Commission's
decision acting on the complaint will provide for remedies that make
the terms of the new agreement between the parties retroactive to the
expiration date of the previous programming contract.
[ 64 FR 6572 , Feb. 10, 1999, as amended at 67 FR 13235 , Mar. 21, 2002;
72 FR 56661 , Oct. 4, 2007; 75 FR 9724 , Mar. 3, 2010]
Goto Section: 76.1002 | 76.1004
Goto Year: 2010 |
2012
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