§ 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, provided that the answer shall be filed within forty-five (45)
   days of service of the complaint if the complaint alleges a violation of
   section  628(b)  of  the  Communications  Act  of 1934, as amended, or
   § 76.1001(a).  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, 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 or protected from disclosure by the attorney-client privilege, the
   work-product doctrine, or other recognized protections from disclosure. 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.

   (m) Deadline for Media Bureau action on complaints alleging a denial of
   programming. For complaints alleging a denial of programming, the Chief,
   Media Bureau shall release a decision resolving the complaint within six (6)
   months from the date the complaint is filed.

   [ 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;  77 FR 66048 , Oct. 31, 2012]

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