Goto Section: 76.972 | 76.977 | Table of Contents
FCC 76.975
Revised as of October 1, 2011
Goto Year:2010 |
2012
§ 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, § § 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 § 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
§ 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 § 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 § 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.
Goto Section: 76.972 | 76.977
Goto Year: 2010 |
2012
CiteFind - See documents on FCC website that
cite this rule
Want to support this service?
Thanks!
Report errors in
this rule. Since these rules are converted to HTML by machine, it's possible errors have been made. Please
help us improve these rules by clicking the Report FCC Rule Errors link to report an error.
hallikainen.com
Helping make public information public