[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43160-43178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21262]


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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76

[CS Docket No. 96-46; FCC 96-334]


Open Video Systems

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Third Report and Order and Second Order on Reconsideration 
adopts and modifies rules and policies concerning open video systems. 
The Third Report and Order amends our regulations to reflect the 
provisions regarding open video systems of the Telecommunications Act 
of 1996 (the ``1996 Act'') with respect to the definition of 
``affiliate.'' The Second Order on Reconsideration amends or adopts 
regulations with respect to open video systems in response to petitions 
for reconsideration regarding the Second Report and Order in this 
proceeding. This item further fulfills Congress' mandate in adopting 
the 1996 Act and will provide guidance to open video system operators, 
video programming providers, and consumers concerning open video 
systems.

DATES: Effective Date: The requirements and regulations established in 
this decision shall become effective upon approval by OMB of the new 
information requirements adopted herein, but no sooner than September 
20, 1996. The Commission will publish a document at a later date 
notifying the public as to the effective date.
    Comments: Written comments by the public on the proposed and/or 
modified information collections are due on or before September 20, 
1996. Written comments must be submitted by the Office of Management 
and Budget (OMB) on the proposed and/or modified information 
collections on or before October 21, 1996.

ADDRESSES: A copy of any comments on the information collections 
contained herein should be submitted to Dorothy Conway, Federal 
Communications Commission, Room 234, 1919 M Street, NW., Washington, DC 
20554, or via the Internet to [email protected], and to Timothy Fain, OMB 
Desk Officer, 10236 NEOB, 725-17th Street, NW., Washington, DC 20503 or 
via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Rick Chessen, Cable Services Bureau, 
(202) 418-7200. For additional information concerning the information 
collections contained herein, contact Dorothy Conway at 202-418-0217, 
or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Third 
Report and Order and Second Order on Reconsideration in CS Docket No. 
96-46, FCC No. 96-334, adopted August 7, 1996 and released August 8, 
1996. The full text of this decision is available for inspection and 
copying during normal business hours in the FCC Reference Center (room 
239), 1919 M Street, NW., Washington, DC 20554, and may be purchased 
from the Commission's copy contractor, International Transcription 
Service, (202) 857-3800, 1919 M Street, NW., Washington, DC 20554.
    The Second Order on Reconsideration contains proposed and/or 
modified information collections. It has been submitted to the OMB for 
review, as required by the Paperwork Reduction Act of 1995. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and OMB to comment on the 
information collections contained in the Second Order on 
Reconsideration. Comments should address: (a) Whether the proposed 
collections of information are necessary to the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Approval Number: 3060-0700.
    Title: Implementation of Section 302 of the Telecommunications Act 
of 1996; Open Video Systems.
    Form Number: FCC Form 1275.
    Type of Review: Revision of a currently approved collection.
    Respondents: 740. (10 OVS operators, 250 video programming 
providers that may request additional Notice of Intent information, 
file rate complaints, or initiate dispute cases, 60 broadcast stations 
that may elect type of carriage or make network non-duplication 
notifications, 100 programming providers that may make notification of 
invalid rights claimed, 300 must-carry list requesters, 20 oppositions 
to OVS operator certifications.)
    Number of Responses: 3754. (10 Notices of Intent, 14 certifications 
of compliance filings and refilings, 250 requests for additional Notice 
of Intent information, 250 responses to requests for additional Notice 
of Intent information, 50 rate complaints, 50 rate justifications, 60 
carriage elections, 10 must-carry recordkeepers, 300 must-carry list 
requests, 300 provisions of must-carry lists, 1200 notifications of 
network non-duplication rights to OVS operators, 100 programming 
provider notifications of invalid rights claimed, 1100 OVS operator 
notifications of network non-duplication rights to programming 
providers, 20 oppositions to certifications of compliance, 20 dispute 
case complainants, and 20 dispute case defendants.)
    Estimated Burden to Respondents: Notice of Intent requirements: 10 
prospective OVS operators are estimated to be in existence within the 
next year. Average number of entities that prospective OVS operators 
must notify with each Notice of Intent: 45. Average burden to each OVS 
operator to complete a Notice of Intent and to provide copies to all 
applicable entities: 8 hours apiece; therefore 10 x 8=80 hours. 
Estimated number of written requests for additional information that 
will be received subsequent to Notices of Intent: 25 per Notice of 
Intent x 10 Notices=250. Average burden to prospective video 
programming providers to make each written request: 2 hours apiece; 
therefore 10 x 25 x 2=500 hours. Average burden to each OVS operator to 
provide the additional information to all prospective video programming 
providers: 8 hours apiece; therefore 10 x 8=80 hours. Total burden for 
all respondents=80+500+80=660 hours. Form 1275 Certification Process

[[Page 43161]]

requirements: We estimate that 14 certification filings and refilings 
will result in 10 certified OVS operators. Annual burden to OVS 
operators to complete certifications and serve on applicable local 
communities and opposition filers: 2 hours apiece; therefore 14 x 2=28 
hours. Number of oppositions estimated to be filed with the Commission: 
2 per certification; therefore 2 x 14=28. Average burden for completing 
oppositions: 4 hours per opposition; therefore 28 x 4=112 hours. Total 
burden for all respondents: 28+112=140 hours.
    Rate Justification requirements: Estimated number of rate 
complaints that video programming providers will file: 5 per OVS 
operator; therefore 10 x 5=50. Estimated number of rate justifications 
filed by OVS operators in response to rate complaints: 50. Burden to 
video programming providers for filing complaints: 1 hour per 
complaint; therefore 50 x 1=50 hours. Burden to OVS operators for 
filing rate justifications: 20 hours per justification; therefore 
10 x 5 x 20=1000 hours. Total burden for all respondents: 50+1,000=1050 
hours.
    Must-Carry and Retransmission Consent requirements: Number of OVS 
operators: 10. Average number of broadcast stations in each OVS 
operator's area of carriage: 6. Average burden to broadcast stations 
for each election for must-carry or retransmission consent: 2 hours per 
election; therefore 10 x 6 x 2 hours=120 hours. Annual recordkeeping 
burden for OVS operators to maintain list of its broadcast stations 
carried in fulfillment of must-carry requirements: 4 hours per OVS 
operator; therefore 10 x 4=40 hours. Estimated annual number of written 
requests received by OVS operators: 30 per OVS operator; therefore 
10 x 30=300. Burden for completing written requests: .25 hours per 
request; therefore 10 x 30 x .25=75 hours. Burden to OVS operators to 
respond to requests: .25 hours per request; therefore 10 x 30 x .25=75 
hours. Total burden for all respondents: 120+40+75+75=310 hours.
    Sports Exclusivity, Network Non-Duplication and Syndicated 
Exclusivity requirements: Estimated number of notifications filed by 
television broadcast stations to notify OVS operators of exclusive or 
non-duplication rights being exercised: 6 stations in each OVS 
operator's area of carriage x 20 annual notifications x 10 OVS 
operators=1200. Burden to television stations to make notifications: .5 
hours per notification; therefore 1200 x .5=600 hours. Estimated number 
of notifications filed by programming providers to notify OVS operators 
of invalid exclusivity rights claimed: 100. Burden to programming 
providers to make notifications: .5 hours per notification; therefore 
100 x .5 hours=50 hours. Burden for OVS operator to make notifications 
to delete signals available to all programming providers on their 
systems: 1 hour per notification x 1100 occurrences=1100 hours. Total 
burden for all respondents: 600+150+100=1750 hours.
    Dispute Resolution requirements: Estimated number of notices filed 
by complainant: 20. Estimated number of defendants' responses to 
notices filed: 20. Average burden for each notice and response to 
notice: 4 hours apiece; therefore 40 x 4=160 hours. We estimate that 
the 20 notices will result in the initiation of 10 dispute cases. The 
average burden for complainants and defendants for undergoing all 
aspects of the dispute case: 25 hours per case; therefore 20 (10 
complainants+10 defendants) x 25=500 hours. Total burden to all 
respondents: 160+500=660 hours.
    Total Annual Burden to Respondents: 4570 hours. (660+140+1050+ 
310+1750+660).
    Estimated Cost to Respondents: Notices of Intent costs of 
stationery and postage at $2 apiece for (10 Notices of Intent x 45 
entities)+250 requests for additional information+250 responses to 
requests for additional information=$1900.
    Form 1275 Certification Process costs of stationery, diskettes, and 
postage at $10 for 14 filings and refilings sent to the Commission and 
all applicable local communities=$140. Costs of stationery and postage 
at $2 apiece for 28 opposition filings=$48. $140+$48=$188.
    Rate Justifications costs of stationery and postage at $2 apiece 
for 50 rate complaints+50 rate justifications=$200.
    Must-Carry and Retransmission Consent costs of stationery and 
postage at $2 apiece for 60 carriage elections+300 requests for 
lists+300 provisions of lists=$1320.
    Sports Exclusivity, Network Non-Duplication and Syndicated 
Exclusivity costs of stationery and postage at $2 apiece for 1200 
notifications to OVS operators+100 notifications of invalid rights 
claimed+1100 OVS operator notifications to programming providers=$4800.
    Dispute Resolutions costs of stationery and postage at $2 apiece 
for 20 notices+20 responses to notices=$80. Costs of stationery and 
postage at $10 apiece for 10 complainants in dispute cases+10 
defendants in dispute cases=$200. $80+$200=$280.
    Total Estimated Costs to Respondents: $8688. ($1900+ 
$188+$200+$1320+ $4800+ $280).
    Needs and Uses: The information collections contained herein are 
necessary to implement the statutory provisions for Open Video Systems 
contained in the Telecommunications Act of 1996.

I. Introduction

    1. The Telecommunications Act of 1996 added Section 653 to the 
Communications Act, establishing open video systems as a new framework 
for entry into the video programming marketplace. Section 653 required 
that the Commission, within six months after the date of enactment of 
the 1996 Act, ``complete all actions necessary (including any 
reconsideration) to prescribe regulations'' to govern the operation of 
open video systems. Accordingly, on March 11, 1996, the Commission 
issued a Notice of Proposed Rulemaking regarding open video systems. 
Report and Order and Notice of Proposed Rulemaking in CS Docket No. 96-
46 and CC Docket No. 87-266 (terminated), 61 FR 10496 (March 14, 1996), 
FCC 96-99, released March 11, 1996 (``NPRM''). Based on the record 
submitted in response to the NPRM, on May 31, 1996, the Commission 
adopted a Second Report and Order in which we prescribed rules and 
policies for governing the establishment and operation of open video 
systems. Second Report and Order in CS Docket No. 96-46, 61 FR 28698 
(June 5, 1996), FCC 96-249, released June 3, 1996 (``Second Report and 
Order'').
    2. In this Second Order on Reconsideration, we address issues 
raised in these filings, and modify or clarify our regulations 
accordingly. In addition, in the Order and Notice of Proposed 
Rulemaking in CS Docket No. 96-85 (``Cable Reform Proceeding''), we 
sought comment on the definition of ``affiliate'' in the context of 
open video systems. Order and Notice of Proposed Rulemaking in CS 
Docket No. 96-85 (Implementation of the Cable Act Reform Provisions of 
the Telecommunications Act of 1996) (``Cable Reform Proceeding''), 61 
FR 19013 (April 30, 1996) 11 FCC Rcd 5937 (1996). In light of the six-
month deadline set by Congress for the Commission to establish final 
open video system regulations, we address the affiliate issue in this 
Third Report and Order.

[[Page 43162]]

II. Third Report and Order--Definition of ``Affiliate''

    3. Background. In the Cable Reform Proceeding, we specifically 
sought comment regarding the definition of ``affiliate'' in the context 
of the new statutory provisions governing open video systems. We 
subsequently received comments in the Cable Reform Proceeding 
addressing this issue. For purposes of our decision in this Third 
Report and Order, we incorporate those comments to the extent they 
specifically address the definition of affiliation in the context of 
the statutory provisions for open video systems. We noted that Congress 
added a new definition of ``affiliate'' in Section 3 of Title I of the 
Communications Act. This new provision defined ``affiliate'' for 
purposes of the Act, unless the context otherwise requires, as: a 
person that (directly or indirectly) owns or controls, is owned or 
controlled by, or is under common ownership or control with, another 
person. For purposes of this paragraph, the term ``own'' means to ``own 
an equity interest (or the equivalent thereof) of more than 10 percent. 
We noted also, however, that Congress did not alter the separate 
definition of ``affiliate'' set forth under Title VI. Under Title VI, 
the term ``affiliate'' is defined, when used in relation to any person, 
to mean ``another person who owns or controls, is owned or controlled 
by, or is under common ownership or control with, such person.'' We 
sought comment regarding the definition of the term ``affiliate'' in 
the context of the new statutory provisions for open video systems. We 
will address the affiliation definition for these provisions in the 
Cable Reform Proceeding.
    4. Discussion. We agree with those commenters that argue that the 
new definition of ``affiliate'' in Title I does not apply to matters 
under Title VI since Title VI contains a separate definition of that 
term that does not set a percentage threshold as to what constitutes 
ownership. For our purposes, therefore, we must determine the point at 
which an open video system operator's ownership or control of another 
entity, or another entity's ownership or control of the open video 
system operator, makes that entity an affiliate for purposes of Section 
653. In defining ``affiliate'' for purposes of Section 653, we will 
adopt the attribution standard that we use in the program access 
context. Thus, as we do in the program access context, we will apply 
the definitions contained in the notes to 47 CFR Sec. 76.501 (which 
reflect the broadcast attribution rules contained in the notes to 47 
CFR Sec. 73.3555), with certain modifications. For instance, in 
contrast to the broadcast attribution rules: (a) We will consider an 
entity to be an open video system operator's ``affiliate'' if the open 
video system operator holds 5% or more of the entity's stock, whether 
voting or non-voting; (b) we will not adopt a single majority 
shareholder exception; and (c) all limited partnership interests of 5% 
or greater will qualify, regardless of insulation. Under the single 
majority shareholder exception, where there is a single holder of more 
than 50% of a corporation's outstanding voting stock, minority voting 
stock interests in the corporation are not attributable to shareholders 
irrespective of whether they exceed the 5% benchmark. See 47 CFR 
Sec. 73.3555 note 2. In addition, as with both the program access 
standard and the broadcast attribution rules, actual working control, 
in whatever manner exercised, will also be deemed a cognizable 
interest.

III. Second Order on Reconsideration

A. Qualifications to be an Open Video System Operator

    5. We decline to modify our decision in the Second Report and Order 
to allow non-LECs to operate open video systems, and to allow cable 
operators that are subject to effective competition in their cable 
franchise areas to convert their cable systems to open video systems. 
We disagree with Michigan Cities, et al. that our decision allowing 
non-LECs to operate open video systems is inconsistent with the plain 
language of the 1996 Act or the Act's legislative history. Permitting 
non-LECs to become open video system operators is not only a 
permissible reading of the statute, but is most consistent with 
Congress' goal of opening all telecommunications markets to 
competition. In addition, we disagree with the argument of the National 
League of Cities, et al. that our decision to permit cable operators to 
convert to open video may defeat the purposes of other Title VI 
requirements that apply to cable operators. Congress established cable 
and open video systems as two distinct video delivery models, each 
offering a particular combination of regulatory benefits and burdens. 
That an entity, by assuming the regulatory responsibilities of an open 
video system, may be relieved of regulatory responsibilities relating 
to cable is neither novel nor improper.
    6. While we believe that cable operators should be allowed to 
operate open video systems, we also decline to alter our decision that 
cable operators may do so in their existing cable franchise areas only 
if they are subject to ``effective competition.'' The underlying 
premise of Section 653 is that open video system operators would be new 
entrants in established markets, competing directly with an incumbent 
cable operator. We believe that Congress exempted open video system 
operators from much of Title VI regulation because, in the vast 
majority of cases, they will be competing with incumbent cable 
operators for subscribers. Our effective competition restriction 
implements Congress' intent by ensuring that, where it is the incumbent 
cable operator itself that seeks to enter the marketplace as an open 
video system operator, there is at least one other multichannel video 
programming provider competing in the market.
    7. We are not convinced, as NCTA argues, that the potential 
presence of multiple video programming providers on open video systems 
obviates the need for an effective competition requirement. There is no 
assurance that any particular system will generate sufficient 
competition between providers of ``comparable'' video programming 
services to qualify as a meaningful stand-in for effective facilities-
based competition. While we agree with U S West that the expiration of 
a franchise agreement may remove a contractual impediment to a cable 
operator's conversion to an open video system, the public interest 
rationale that gave rise to the effective competition restriction 
remains. So long as a cable operator has the ability to exercise market 
power--i.e., is not subject to effective competition--it has not met 
the necessary pre-condition for operating an open video system.
    8. We also continue to disagree with Cox's argument that the 
Commission has no authority to determine whether cable operators that 
are also LECs may operate open video systems. The second sentence of 
Section 653(a)(1) authorizes the Commission to determine whether any 
cable operator may convert to open video, regardless of other services 
it may also provide, including local exchange service. The Commission 
retains its authority over cable operators that also become LECs 
because, as Sprint notes, a cable operator does not lose its identity 
as a cable operator simply by offering additional types of services.

B. Certification Process

    9. The Second Report and Order fully explains our reasons for not 
imposing pre-certification requirements regarding public rights-of-way, 
PEG obligations, revisions to cost allocation manuals, or separate 
subsidiaries. Petitioners have presented no new evidence or

[[Page 43163]]

arguments that would cause us to change our earlier conclusion.
    10. In addition, we will maintain our rule that certification 
filings will be deemed approved unless disapproved by the Commission 
within ten days. Petitioners have not demonstrated that affirmative 
approval is necessary to provide notice to outside parties or to assure 
adequate Commission review. Also, because certification precedes the 
operator's actual implementation of the Commission's rules, we disagree 
with NCTA that the Commission is required, at this stage of the 
process, to do more than obtain adequate representations that the 
applicant will comply with the Commission's requirements. Further, we 
believe that any conflicts that arise regarding the operator's conduct 
can be addressed more fully in the 180-day dispute resolution process 
than in the ten-day certification process. Finally, we will not modify 
our rule that, if new physical plant is required, open video system 
operators must obtain Commission approval of their certification prior 
to the commencement of construction.
    11. We do believe, however, that it is appropriate for a local 
government to have a reasonable opportunity to respond to a 
certification filing that implicates its community. We therefore will 
revise FCC Form 1275, our proposed certification form, to require 
applicants to list the names of the local communities in which they 
intend to operate, rather than describe them generally. Because some 
local communities may not have ready access to the Internet or to the 
Commission's public notices, we will also require applicants for 
certification to serve a copy of their FCC Form 1275 filing on the 
clerk or other designated official of all affected local communities on 
or before the date on which it is filed with the Commission. Service by 
mail is complete upon mailing, but if mailed, the served documents must 
be postmarked at least three days prior to the filing of the FCC Form 
1275 with the Commission. Applicants also must inform the local 
communities that any oppositions and comments must be filed with the 
Commission within five days of an applicant's filing and must be served 
on the applicant.

C. Carriage of Video Programming Providers

    12. Notification and Enrollment of Video Programming Providers. We 
fully considered the costs and benefits of requiring an open video 
system operator to provide local notice of its intent to establish an 
open video system. The Alliance for Community Media, et al. do not 
provide additional evidence concerning these costs or benefits. We 
reiterate our finding that dissemination of the Notice of Intent as 
required under the Second Report and Order will be a sufficient means 
for an entity to notify the public of its intention to establish an 
open video system.
    13. Open Video System Operator Discretion Regarding Video 
Programming Providers. We find that the Second Report and Order fully 
considered most of the arguments and evidence raised on reconsideration 
by NCTA and Cox, as described above. We explained in the Second Report 
and Order that Section 653(a)(1) specifically permits the Commission, 
``consistent with the public interest, convenience and necessity'' to 
determine when a cable operator may provide programming through an open 
video system. We also fully explained our construction of Section 
653(b)(1)(A), which gives the Commission the discretion to determine 
when it is in the public interest, convenience and necessity for a 
cable operator either to become an open video system operator or to 
provide video programming over another entity's open video system. We 
therefore deny the petitions of NCTA and Cox to the extent they raise 
these particular contentions.
    14. We also reject the cable operators' argument concerning access 
to open video systems by DBS and wireless service providers. The 1996 
Act expressed a clear preference for facilities-based competition 
between cable operators and telephone companies, and allowing an open 
video system operator generally to limit the ability of a competing, 
in-region cable operator to obtain capacity on its system would 
encourage cable operators to develop and upgrade their own wireline 
systems. Cable operators possess substantial market power, and because 
these markets have been protected by high entry barriers, cable 
operators have been able to maintain prices above the level that would 
prevail if the market were competitive. Because of this market power, 
cable operators may have different incentives for seeking open video 
system capacity than would MVPDs that do not have such market power, 
such as DBS and wireless cable providers. Enabling a cable operator to 
obtain open video system capacity means that less capacity will be 
available for use by the system operator and for other entities. The 
open video system therefore could become a less attractive alternative 
for consumers, which would help preserve the cable operator's market 
power. We believe that these rationales currently do not apply to DBS 
or wireless cable providers because these MVPDs do not enjoy 
substantial market power. We therefore reaffirm our conclusion in the 
Second Report and Order. However, at such time that DBS or wireless 
cable providers possess sufficient market power to raise concerns 
similar to those associated with existing in-region, competing cable 
operators, we will reexamine this conclusion.
    15. We also disagree with NCTA's argument that the Commission 
impermissibly delegated to open video system operators the discretion 
to preclude cable operators from obtaining capacity on the system. In 
determining that Section 653(a)(1) allows the Commission to determine 
when a cable operator may access an open video system, we merely 
interpreted the statute to allow the Commission to prescribe 
regulations to govern this situation. We adopted regulations that set 
forth the parameters for where a competing, in-region cable operator's 
access to an open video system may be limited, and for where access may 
not be limited. In any case, we will modify our regulations to 
emphasize our decision that, pursuant to the second sentence of Section 
653(a)(1), the public interest, convenience and necessity is served by 
generally prohibiting a competing, in-region cable operator from 
obtaining capacity on an open video system.
    16. There are two exceptions to this general rule. First, a 
competing, in-region cable operator may access an open video system 
when the open video system operator determines that it is in its 
interests to grant access. Second, a competing, in-region cable 
operator will be granted access to an open video system when such 
access will not significantly impede facilities-based competition. As 
previously determined, one situation in which facilities-based 
competition will be deemed not to be significantly impeded is where: 
(a) the competing, in-region cable operator and affiliated systems 
offer service to less than 20% of the households passed by the open 
video system; and (b) the competing, in-region cable operator and 
affiliated systems provide cable service to a total of less than 17,000 
subscribers within the open video system's service area.
    17. Allocation of Open Video System Channel Capacity. In the Second 
Report and Order, we permitted an open video system operator to 
implement its own method for allocating channel capacity to 
unaffiliated video programming providers, so long as capacity is 
allocated in an open, fair, non-discriminatory manner. We stated that

[[Page 43164]]

the process must be verifiable and insulated from any bias by the 
system operator. NCTA's arguments were fully considered and addressed 
in the Second Report and Order. NCTA offers no additional facts or 
arguments to support their position. Accordingly, we decline to 
reconsider our previous conclusion.
    18. Reallocation of Channel Capacity. In the Second Report and 
Order, we required open video system operators to allocate open 
capacity, if any is available, at least once every three years, stating 
that requiring reallocation every three years will permit an open video 
system operator to sufficiently accommodate subsequent requests for 
carriage by video programming providers, while not causing unreasonable 
disruption to the system. The Telephone Joint Petitioners do not 
provide evidence that would compel the Commission to reconsider that 
conclusion. We note in this regard that no new programming service, 
which the Telephone Joint Petitioners assert would favor a longer 
reallocation period, have filed for reconsideration in this proceeding.
    19. Channel Positioning. In the Second Report and Order, we 
permitted an open video system operator to assign channel positions, 
subject to Section 653's non-discrimination requirements. In the Second 
Report and Order we determined that the statute and our implementing 
regulations will prevent discrimination against unaffiliated video 
programming providers, notwithstanding an open video system operator's 
participation in the channel allocation process. The Alliance for 
Community Media, et al. do not present new facts or arguments to 
support the mandatory involvement of an independent entity. 
Accordingly, we decline the Alliance for Community Media's request for 
reconsideration.
    20. Channel Sharing. In response to the Alliance for Community 
Media, et al.'s petition, we clarify that there is no requirement that 
a system operator charge a video programming provider a pro-rata fee 
because a programming service carried by that provider is placed on a 
shared channel. Thus, even if a video programming provider's 
programming service is placed on a shared channel, the video 
programming provider may be required to pay the same rate as if the 
programming service was placed on a non-shared channel. We think this 
clarification addresses the Alliance for Community Media, et al.'s 
concern that an open video system operator will engage in rate 
discrimination by placing favored video programming providers' 
programming services on shared channels. Second, ESPN argued that 
channel sharing should be conditioned on the approval of programming 
services in its reply comments to the NPRM. We fully considered those 
views in the Second Report and Order, where we stated that so long as 
each video programming provider has the contractual right to offer a 
particular program service to subscribers, it is unnecessary for the 
open video system operator to obtain the consent of the programming 
service in order to place that service on a shared channel. Third, we 
agree with NCTA that ad avails associated with a programming service 
carried by both the open video system operator or its affiliated video 
programming provider and an unaffiliated provider must be shared in an 
equitable manner. Examples of acceptable methods of sharing ad avails 
include apportioning the revenues from such ad avails on a per 
subscriber basis or apportioning the rights to sell the avails 
themselves. We will clarify that arrangements with regard to ad avails 
will be considered a term or condition of carriage, and an open video 
system operator must comply with Section 653(b)(1)(A) in negotiating 
their apportionment.
    21. Open Video System Operator Co-Packaging of Video Programming 
Selected by Unaffiliated Video Programming Providers. We decline to 
adopt ESPN's proposal to require the consent of any programming 
services involved before a video programming provider may enter into a 
co-packaging agreement. We recognize ESPN's legitimate concerns that 
its program license agreements frequently contain negotiated terms 
related to the marketing of a programming service, including packaging 
parameters and trademark use guidelines. However, these are contractual 
matters that we believe are best left to the individual negotiations 
between the parties involved. If a video programming provider enters 
into a co-packaging arrangement that breaches its contractual 
obligations, we believe that ESPN and other such programming services 
already possess adequate remedies at law. Nothing in our rules should 
be construed to infringe upon the rights of programming services with 
respect to their program license obligations.

D. Rates, Terms, and Conditions of Service

    22. Just and Reasonable Carriage Rates. In its petition, MCI has 
provided no new facts or arguments to justify reconsideration of these 
concerns in the instant proceeding. We also decline to impose the other 
pre-certification and reporting requirements MCI seeks. We believe that 
these requirements are inconsistent with our flexible regulatory 
approach to the provision of open video system, and are not necessary 
to protect either unaffiliated programmers or the public in general. In 
addition, we decline to require open video system operators to base 
their carriage rates on detailed studies of incremental and stand alone 
cost and estimates of actual opportunity cost, as suggested by MCI, 
because of the 1996 Act's direction that Title II requirements not be 
applied to open video systems, and the limited time allowed for the 
review of certifications and complaints. Instead, we reaffirm our 
imputed rate approach for determining whether carriage rates are just 
and reasonable where the presumption conditions are not present. We 
also decline to adopt MCI's proposal to allow parties other than 
potential video programming providers seeking carriage on the open 
video system to file complaints with the Commission regarding the 
carriage rates offered by the system operator. This decision does not 
leave other parties who claim to be adversely affected by an open video 
system operator's carriage rate without remedies. For example, a party 
seeking to challenge a rate it pays for common carrier services 
provided by that operator on the ground of improper cost-shifting from 
an open video system, retains its rights under section 208 of the 
Communications Act to file a complaint.
    23. We disagree with the general assertion by the National League 
of Cities, et al. that our presumption conditions will not provide 
adequate protection to unaffiliated video programming providers. The 
National League of Cities et al. have presented no new arguments or 
data to refute this conclusion. Moreover, we disagree with National 
League of Cities et al.'s contention that the presumption approach 
places an undue financial and regulatory burden on the unaffiliated 
programmer to determine whether the operators' rates are fair. Our 
presumption approach strikes an appropriate balance between the 
interests of the open video system operator in establishing service to 
end users quickly, without undue regulatory intervention by 
competitors, and the interests of unaffiliated programmers in obtaining 
just and reasonable carriage rates. The National League of Cities, et 
al. also expressed the specific concern that the presumption conditions 
will allow the average rate paid by the unaffiliated programming 
providers receiving carriage to be ``weighted'' or

[[Page 43165]]

adjusted, but that only the open video system operator will possess the 
information necessary to calculate the average or to ``weight'' the 
average. We clarify that, as part of its burden of showing that the 
presumption conditions are met, an open video system operator will be 
required to make available to a complainant all information needed to 
calculate the average rate paid by the unaffiliated programming 
providers receiving carriage on its system, including the information 
needed for any weighting of the individual carriage rates that the 
operator has included in the average rate. The complainant may 
challenge the weighting methodology used by the open video system 
operator as part of its case.
    24. In response to the Telephone Joint Petitioners' request, we 
clarify that in the Second Report and Order, the phrase ``unaffiliated 
programmers as a group'' does not impose a requirement that the 
programmers market their programming in competition with the operator. 
Rather, the phrase is used to give open video system operators greater 
flexibility in meeting the presumption conditions. It allows operators 
to meet the requirement by providing carriage to several unaffiliated 
programmers that in total occupy the threshold capacity requirement.
    25. We reaffirm our basic imputed rate approach for ensuring just 
and reasonable open video system carriage rates where the presumption 
conditions are not met, but clarify our use of certain terminology. We 
structured the imputed rate in the Second Report and Order to reflect 
what the open video system operator, or its affiliate, effectively 
``pays'' for its own carriage of programming over the system by 
starting with the revenues received from the end user subscriber, and 
subtracting the costs avoided by the open video system operator by 
permitting another programming provider to serve that subscriber. No 
petitioner has convinced us that an imputed rate approach is not 
suitable to the circumstances of open video system carriage, where a 
new market entrant (the open video system operator) will, in the 
majority of areas, face competition from an established incumbent (the 
cable operator).
    26. As we noted in the Second Report and Order, open video systems 
are essentially a combination of: (a) the creative development and 
production of programming, (b) the packaging of various programs for 
the open video system operator's offering, and (c) the creation and 
maintenance of infrastructure for the carriage of both the operator's 
affiliated programming and unaffiliated programming. Our rules are 
intended to ensure that unaffiliated programming providers pay a rate 
for carriage that is no more than the carriage price that can be fairly 
imputed for the carriage of the operator's affiliated programming 
packages. In so doing we seek to attain an important result of the 
ECPR, which is that the price the operator charges unaffiliated 
programming providers for carriage must be no higher than the sum of 
its incremental cost of carriage and the contribution to fixed 
infrastructure costs in its retail price of programming.
    27. We disagree with the assertion by the Telephone Joint 
Petitioners that the Commission errs by using an ECPR methodology to 
establish carriage pricing on open video systems, where it is not 
appropriate, while declining to use ECPR to establish LEC 
interconnection pricing in situations where they assert it is 
appropriate. Like ECPR, our imputed rate approach will provide the open 
video system operator the same return when it carries unaffiliated 
programming as when it carries its own programming. We believe that in 
the case of open video systems, application of an ECPR methodology 
provides full economic incentives for LEC entry into video in 
competition with incumbent cable providers.
    28. We disagree also with the assertion by the Telephone Joint 
Petitioners that the imputed price omits the incremental cost of 
carriage. Under normal market conditions, the imputed price of carriage 
will exceed the open video system operator's incremental cost of 
carriage (which is greater than zero) and make a contribution to the 
fixed infrastructure cost of the open video system. For this reason, we 
reject the Telephone Joint Petitioners' assertion that the imputed rate 
approach will produce a carriage rate of zero or less. The imputed rate 
is based in part on the price charged by the open video system operator 
or its affiliate to end-user subscribers. The price charged the 
subscriber will generally be greater than the incremental cost of 
carriage. In addition, the imputed rate subtracts out the costs of 
developing the programming and creating the package, which removes the 
costs avoided when unaffiliated programming is carried. After 
subtracting these costs, the imputed rate will correspond to the 
carriage rate that the open video system operator ``pays'' to carry its 
own programming. The imputed rate approach is designed to give the open 
video system operator the same economic return when it sells carriage 
to unaffiliated programming providers as when it ``sells'' carriage to 
its own programming. Consequently, we would expect the use of the ECPR 
approach to minimize any disincentives the open video system operator 
may have to carry unaffiliated programming.
    29. We believe that this result of the imputed rate approach should 
be achieved even under the competitive conditions assumed by the 
Telephone Joint Petitioners in their petition. Even assuming that, at 
the outset of open video system operations, competition lowered the 
retail price of video programming to subscribers to the point that the 
open video system operator incurred losses, this would not justify the 
operator's shifting the burden of such losses to unaffiliated video 
programming providers by charging them a higher carriage rate than the 
rate that it effectively ``charges'' itself. The unaffiliated 
programming providers would also face lower retail prices for their 
programming under the competitive conditions assumed by the Telephone 
Joint Petitioners. We disagree with the Telephone Joint Petitioners' 
assertion that unaffiliated programmers would be largely unaffected by 
retail price competition.
    30. The imputed rate approach was chosen as a flexible regulatory 
approach for determining what are just and reasonable carriage rates in 
an imperfectly competitive carriage market. However, it may not be the 
sole means of establishing just and reasonable carriage rates. There 
may be alternative, market-based approaches to demonstrating that a 
challenged rate is just and reasonable, that may also be useful in 
particular cases. We would consider such an argument in response to a 
complaint regarding a carriage rate. The open video system operator 
would be required to demonstrate that its carriage service is subject 
to sufficiently strong competitive forces to ensure that its carriage 
rates are just and reasonable, or that it has computed its rate using a 
methodology that aims to produce or replicate the working of a 
competitive carriage market.
    31. In addition, on reconsideration, we find that certain aspects 
of our explanation and use of terminology should be clarified. As we 
stated above, under our approach, the imputed price of carriage for an 
affiliated programming package equals the price of the package 
delivered to a subscriber minus the cost of creating the package. To 
clarify the terms identified by the Telephone Joint Petitioners, in the 
Second Report and Order we use the term ``earning'' to refer to the 
difference between the price of the package delivered to a subscriber 
and the cost of creating the package. We

[[Page 43166]]

use the term ``profit allowance'' to refer to one type of cost of 
creating the programming package, namely the cost of capital used to 
create the package. We also clarify Section 76.1504 of the rules to 
indicate more clearly the types of avoided costs that must be 
subtracted by an open video system operator in calculating the imputed 
rate.
    32. We also clarify in response to the National League of Cities, 
et al. that the imputed rate formula will not allow open video system 
operators to charge unaffiliated programming providers a price for 
carriage equal to the price they charge subscribers for affiliated 
programming. The imputed rate formula, as we have discussed, requires 
open video system operators to subtract the cost of creating affiliated 
programming from the price of the programming. The carriage rate that 
unaffiliated programming providers pay will be less than the price 
subscribers pay for affiliated programming.
    33. Open Video System Carriage Rates Must Not be Unjustly or 
Unreasonably Discriminatory. The petitioners' concerns about whether 
open video system rates are nondiscriminatory ignores the wording of 
the 1996 Act, which prohibits rate differences only when unjust or 
unreasonable. As we noted in the Second Report and Order, we decided to 
permit carriage rate differentiation because requiring open video 
system operators to charge all programming providers the same carriage 
rate would exclude providers whose programming has a low market value. 
Neither NCTA nor MCI has offered new factual or legal arguments to 
refute this reasoning.
    34. We disagree with the Alliance for Community Media, et al., that 
open video system operators should be required to charge reduced 
carriage rates to non-profit programming providers. In the Second 
Report and Order, we identified not-for-profit status as one of the 
legitimate, objective factors on which open video system operators 
could base reduced rates. Moreover, we are concerned about the impact 
of mandatory reduced carriage rates on a new entrant in the markets for 
video carriage and distribution. Our decision to allow preferred 
carriage rates for non-profit programmers on a voluntary basis reflects 
our goals of promoting open video system entry and competition with 
incumbent cable systems, while providing access to carriage by 
unaffiliated programming providers.

E. Gross Revenues Fee

    35. We generally reaffirm our conclusions in the Second Report and 
Order. We continue to believe that our interpretation represents the 
best reading of Section 653(c)(2)(B). We will, however, clarify our 
rule to make clear our intent that local governments have the authority 
to charge and receive the gross revenue fee. In addition, consistent 
with Congress' intent of ensuring ``parity among video providers,'' we 
will clarify that any advertising revenues received by an open video 
system operator or its affiliates in connection with the provision of 
video programming should be included in the fee calculation, where such 
revenues are included in the incumbent cable operator's franchise fee 
calculation.
    36. We agree with NYNEX and U S West that the application of the 
gross revenues fee provision should not disadvantage any particular 
video programming provider. Like the costs of PEG and must-carry, we 
believe that the gross revenues fee is a cost of the platform--in this 
case, the cost of using the rights-of-way--that should be shared 
equitably among all users of the system. We therefore will permit open 
video system operators to recover the gross revenues fee from all video 
programming providers on a proportional basis as an element of the 
carriage rate.

F. Applicability of Title VI Provisions

    37. Public, Educational and Governmental Access Channels. We 
continue to believe that open video system operators should in the 
first instance be permitted to negotiate their PEG access obligations 
with the relevant local franchising authority and, if the parties so 
desire, the local cable operator. Furthermore, we continue to believe 
that it is necessary to have a default mechanism in case the open video 
system operator and the local franchising authority are unable to 
agree. We disagree with Comcast that open video system operators should 
be required to negotiate with local franchising authorities. Providing 
a ``backstop'' is an appropriate balance between imposing Section 611's 
requirements and not imposing franchise requirements on open video 
systems. If the open video system operator matches the PEG access 
obligations of the cable operator, the actual PEG access obligations 
imposed on the open video system operator will be, as the statute 
requires, to the extent possible no greater or lesser than those 
imposed on the cable operator. This is true even if the open video 
system operator's obligations are established through our default 
mechanism and the cable operator's obligations are established through 
negotiation and the franchise process.
    38. After considering the arguments made by the various 
petitioners, we believe, however, that some modification of our rule 
regarding how to establish open video system PEG access obligations is 
appropriate. We believe that imposing Section 611 obligations on open 
video system operators so that to the extent possible the obligations 
are ``no greater or lesser'' than those imposed on cable operators 
means that, in the absence of an agreement with the local franchising 
authority, an open video system operator must match, rather than share, 
the annual PEG access financial contributions of the local cable 
operator. Under our current rule, open video system operators are 
required to match the PEG access channel capacity provided by the local 
cable operator, but are required to share the contributions towards PEG 
access services, facilities and equipment. Our modified rule will apply 
the matching principle which we have applied to channel capacity also 
to PEG contributions that cable operators make, and that are actually 
used for PEG access services, facilities and equipment.
    39. For in-kind contributions (e.g., cameras, production studios), 
we believe that precise duplication would often be unnecessary, 
wasteful and inappropriate. Instead, open video system operators may 
work out mutually agreeable terms with cable operators over in-kind 
equipment, studios and the like so that PEG service to the community is 
improved or increased and the open video system operator fulfills its 
statutory obligation. As a backstop, however, we will permit the open 
video system operator to pay the local franchising authority the 
monetary equivalent of the depreciated in-kind contribution, or in the 
case of facilities, the annual amortization value. Any matching PEG 
access contributions provided by an open video system operator are to 
be used by the local franchising authority to fund activities arising 
under Section 611.
    40. We decline to modify our rule that requires the local cable 
operator to permit the open video system operator to connect with the 
cable operator's PEG access channel feed. We clarify, however, that any 
costs associated with the open video system operator's connection to 
the cable operator's PEG access channel feed shall be borne by the open 
video system operator. These costs shall be counted towards the open 
video system operator's matching obligation described above. We are not 
requiring the local cable operator to

[[Page 43167]]

permit others to interconnect with and use their cable system to reach 
consumers. Rather, we are simply requiring the local cable operator to 
provide its PEG access channel feed to a particular competitor that 
shares a similar PEG access obligation in order to avoid an unnecessary 
duplication of facilities and promote Congress' goal of competitive 
entry.
    41. In response to the request of Municipal Services, et al., we 
clarify that the negotiated PEG access obligations of an open video 
system operator may be enforced regardless of where and when the 
agreement is made. Regarding City of Indianapolis's assertion that 
channel alignment should not be at the discretion of the open video 
system, we affirm our decision in the Second Report and Order that 
there is insufficient evidence to support mandating that PEG access 
channels be carried at the same channel location on the open video 
system operator as on the cable system. City of Indianapolis has 
presented no new evidence or argument not presented to the Commission 
before.
    42. Establishing Open Video System PEG Access Obligations Where No 
Local Cable Operator Exists. Our discussion in the Second Report and 
Order regarding the establishment of open video system PEG access 
obligations where no local cable operator exists was not intended to 
foreclose a local franchising authority from negotiating with the open 
video system operator. The discussion was intended to explain how to 
establish open video system PEG access obligations where no local cable 
operator exists and the local franchising authority and the open video 
system operator cannot agree. The parties are therefore free to 
negotiate PEG access obligations as Alliance for Community, et al. 
request. However, if the open video system operator and the local 
franchising authority cannot agree, the operator must make a reasonable 
amount of channel capacity available for PEG use. In the Second Report 
and Order, we found that where a cable franchise previously existed, 
such as where a cable system is able to convert to an open video 
system, what constitutes a reasonable amount of channel capacity is to 
be governed by the previously existing franchise agreement with respect 
to PEG access obligations.
    43. While we do not believe that Congress intended open video 
system PEG access obligations to correct deficiencies in what the local 
franchising authority negotiated for cable operator PEG access 
obligations, we also recognize the concern that PEG access requirements 
should not be frozen in time in perpetuity. We will therefore modify 
our approach for a situation in which there was a previously existing 
cable franchise, such as where a cable system converts to an open video 
system, and provide that, when the open video system operator and the 
local franchising authority cannot agree on PEG access obligations, the 
local franchising authority may either keep the previously existing PEG 
access obligations or may elect to have the open video system 
operator's PEG access obligations determined by comparison to the 
franchise agreement for the nearest operating cable system that has a 
commitment to provide PEG access and that serves a franchise area with 
a similar population size. The local franchising authority shall be 
permitted to make a similar election every 15 years thereafter.
    44. Open Video System PEG Obligations Where System Overlaps with 
More than One Franchise Area. While we do not disagree with Telephone 
Joint Petitioners that open video systems may be configured differently 
from cable systems, as Alliance for Community Media, et al. point out, 
Telephone Joint Petitioners provide insufficient support for why open 
video systems will not be able to be configured to comply with the PEG 
access obligations for each franchise area with which each system 
overlaps. In fact, Michigan Cities, et al. demonstrate that, in at 
least one situation, it is indeed possible. We therefore deny Telephone 
Joint Petitioners' petition with respect to this matter.
    45. Institutional Networks. We affirm our decision to preclude 
local franchising authorities from requiring open video system 
operators to build institutional networks because the cable operator is 
required to do so under the terms of its franchise agreement. Because 
there is confusion over our interpretation of Section 611 as it applies 
to institutional networks, however, we make the following 
clarifications. Contrary to the understanding of certain petitioners, 
we agree that institutional networks may be required of a cable 
operator, but we do not agree that this requirement is found in Section 
611. Section 611 only provides that a local franchising authority may 
require that channel capacity on institutional networks be designated 
for educational or governmental use and does not authorize local 
franchising authorities to require cable operators to build 
institutional networks. The building of an institutional network is a 
requirement negotiated in the franchise agreement. Section 
621(b)(3)(D), as added by the 1996 Act, makes clear that a local 
franchising authority may require a cable operator to provide 
institutional networks as a condition of the initial grant, renewal or 
transfer of a franchise. Pursuant to Section 653(c)(1)(C), open video 
system operators are not subject to franchise requirements, so we 
cannot apply an institutional network requirement to open video 
systems.
    46. While institutional networks may or may not function like PEG 
access as National League of Cities, et al. assert, the statutory 
definition is broader than merely PEG use. We do not agree that 
precluding the local franchising authority from requiring an open video 
system operator to build an institutional network, but permitting the 
local franchising authority to require channel capacity on a network if 
an open video system operator does build one, is inconsistent, as 
Michigan Cities, et al. suggest. Rather, once an open video system 
operator decides to build an institutional network, the 1996 Act's 
mandate that an open video system operator's PEG access obligations be 
no greater or lesser than those of the cable operator become operative.
    47. Must-Carry and Retransmission Consent. In the Second Report and 
Order, the Commission considered and rejected suggestions similar to 
NCTA's that we specifically require the use of a basic tier-type 
arrangement in order to provide all subscribers on a system with the 
signals carried in fulfillment of the must-carry requirements. As we 
noted in the Second Report and Order, the basic tier requirement is 
contained in Section 623 of the Communications Act, which does not 
apply to open video systems. NCTA has presented no new evidence in 
support of a basic tier requirement. We therefore decline to adopt 
NCTA's request. We agree with NCTA, however, that video programming 
providers should not be required to duplicate must-carry programming 
already provided to subscribers from another source.
    48. The Commission recognizes ALTV's valid concern that stations 
electing must-carry status will have to reimburse open video system 
operators for extensive copyright fees that may result from carriage 
beyond their local market areas. As ALTV notes, these dangers may be 
avoided if open video system operators tailor the distribution of must-
carry signals to the parts of their system that are located within a 
station's local market. We believe that our rules provide open video 
system operators with an incentive to design

[[Page 43168]]

and construct their systems with this capability. Where an open video 
system has such a capability, we will require open video system 
operators to limit the distribution of must-carry signals to the 
appropriate local markets, unless a local broadcast station consents 
otherwise. If an open video system operator cannot limit its 
distribution of must-carry signals in this manner, the open video 
system operator will be responsible for any increase in copyright fees 
and may not pass through such increases to the local station electing 
must-carry treatment.
    49. Finally, we agree with Tele-TV and U S West that we should 
amend our current rule that allows broadcasters to make different 
elections among open video systems and cable systems serving the same 
geographic area. The ``common election'' requirement is contained in 
Section 325(b)(3)(B): ``If there is more than one cable system which 
services the same geographic area, a station's election shall apply to 
all such cable systems.'' In Section 653(c), Congress provided that 
Section 325 should apply to open video system operators, to the extent 
possible, no greater or lesser than it applies to cable operators. By 
directing equal treatment under Section 325, we believe that Congress 
intended to remove Section 325 as a distinguishing factor between those 
entering the video marketplace as a cable operator and those entering 
as an open video operator. In the Second Report and Order, however, we 
found that as a practical matter the potential size differences between 
open video systems and cable systems could make common election on 
overlapping cable and open video systems infeasible. We agree with 
Tele-TV that our concern in the Second Report and Order may no longer 
apply to the extent that an open video system can tailor the 
distribution of local broadcast stations to the appropriate 
communities. We will therefore amend our rules to require that 
broadcasters make the same election for open video systems and cable 
systems serving the same geographic area unless the overlapping open 
video system is unable to deliver appropriate signals in conformance 
with the broadcast station's elections for all cable systems serving 
the same geographic area.
    50. Program Access. We believe that our initial interpretation 
applying the provisions of Section 628 to open video system programming 
providers is reasonable and should stand. Rainbow and NCTA's argument 
that Congress limited the applicability of the program access rules to 
open video system operators was expressly considered and rejected in 
the Second Report and Order.
    51. As we stated in the Second Report and Order, an exclusive 
contract between a cable-affiliated video programming provider on an 
open video system and a cable-affiliated programmer presents many of 
the same concerns as an exclusive contract between a cable operator and 
a vertically integrated satellite programming vendor. A primary 
objective of the program access requirements is the release of 
programming to existing or potential competitors of traditional cable 
systems so that the public may benefit from the development of 
competitive distributors. Exclusive arrangements among cable-affiliated 
open video system programming providers and cable-affiliated satellite 
programmers may impede the development of open video systems as a 
viable competitor to cable. NCTA and Rainbow fail to challenge or 
address these concerns.
    52. Second, we believe that the benefits of the program access 
provisions apply to open video system providers. Contrary to Rainbow's 
arguments, open video system programming providers fall within the 
definition of MVPDs, which Section 628 identified as the intended 
beneficiaries of the program access regime. We believe that Section 
602(13)'s list of entities enumerated in that section is expressly a 
non-exclusive list. Section 602(13) states that the term MVPD ``means a 
person such as, but not limited to, a cable operator, a multichannel 
multipoint distribution service, a direct broadcast satellite service. 
* * * `` We also agree with those commenters that asserted that open 
video system video programming providers fit the definition of MVPD 
because they make ``available for purchase, by subscribers or 
customers, multiple channels of video programming.
    53. Third, we reject NCTA's argument that intra-system competition 
would be harmed by applying the program access rules to cable-
affiliated video programming providers on an open video system. Our 
concern is the same as in the cable context--that a cable operator 
would use its control over programming to keep that programming from 
other competing MVPDs. We are concerned that exclusive arrangements 
among cable-affiliated open video system programming providers and 
cable-affiliated satellite programmers may serve to impede development 
of open video systems as a viable competitor to cable to the extent 
that popular programming services are denied to open video system 
operators or unaffiliated open video system programming providers that 
seek to package such programming for distribution to subscribers.
    54. We reiterate that the prohibition, absent a Commission public 
interest finding, on exclusive contracts applies only to contracts 
between cable-affiliated satellite programmers and cable-affiliated 
open video system programming providers and contracts between satellite 
programmers affiliated with an open video system operator and open 
video system programming providers affiliated with an open video system 
operator. We note that a vertically integrated satellite programmer is 
not generally restricted from entering into an exclusive contract with 
an MVPD that is not affiliated with a cable operator, although such a 
contract is subject to challenge under Section 628(b) of the 
Communications Act and Section 76.1001 of the Commission's rules.
    55. Sports Exclusivity, Network Non-Duplication and Syndicated 
Exclusivity. Upon reconsideration, we grant the petition filed by the 
Joint Sports Petitioners regarding our current rule governing sports 
exclusivity. We find merit in their position that, unlike network non-
duplication and syndicated exclusivity, sports exclusivity requires 
infrequent deletions that cannot be recouped once missed. We believe 
that our rule that extends the Commission's regulations concerning 
sports exclusivity to open video systems must be amended in order to 
preserve the same level of protection received by sports teams and 
leagues in the cable context. While we hold open video system operators 
responsible for compliance with our rules, we also recognize that they 
are forced by the structure of an open video system to rely, to a 
degree, on individual programming providers who may dispute a claim of 
exclusivity or may attempt to substitute a signal for the signal that 
is to be deleted. We amend our rule to provide that open video system 
operators will be subject to sanctions for any violation of our sports 
exclusivity rules. Operators generally may effect the deletion of 
signals for which they receive deletion notices unless they receive 
notice within a reasonable time from the appropriate programming 
provider that the rights claimed are invalid. If a programmer 
challenges the validity of claimed exclusive or non-duplication rights, 
the open video system operator shall not delete the signal. However, an 
open video system operator should be allowed to require indemnification 
as a

[[Page 43169]]

condition of carriage for any sanctions it may incur in reliance on a 
programmer's claim that certain exclusive or non-duplication rights are 
invalid.
    56. Contrary to the further concerns mentioned by the Joint Sports 
Petitioners, our current rules do not require a sports team or league 
to provide notifications to individual video programming providers in 
addition to the open video system operator. The holder of exclusive or 
non-duplication rights is, of course, free to notify individual 
programming providers when it notifies the open video system operator 
as required by our rules. In addition, our rules require an open video 
system operator to make the notices it receives ``immediately 
available'' to the appropriate programming providers on its system. 
Given the different types of systems and different circumstances in 
which notice will be provided, we do not believe at this time that a 
specific time requirement is necessary or appropriate.
    57. We also deny U S West's petition for reconsideration which 
suggests that the Commission hold individual programming providers 
responsible for compliance with our exclusivity and non-duplication 
rules, and asks the Commission to further define the ``prompt steps'' 
that must be taken by an operator in order to avoid liability after a 
violation of our rules has occurred. In the Second Report and Order, 
the Commission responded to the issues raised in U S West's petition. U 
S West does not present any further evidence to support the adoption of 
different rules.
    58. Local Franchising Requirements. We thoroughly explained the 
bases of our findings in the Second Report and Order on these issues. 
No parties on reconsideration raise any arguments that lead us to 
revisit our conclusions therein. We continue to believe that the 
general distinction we adopted reflects Congress' stated intent: state 
and local authorities may manage the public rights-of-way in a non-
discriminatory and competitively neutral manner, but may not impose 
Title VI franchise or Title VI ``franchise-like'' requirements on open 
video system operators.
    59. We do, however, clarify our decision in several respects. 
First, we clarify that the preemption is limited to Title VI or Title 
VI ``franchise-like'' requirements, and does not extend to all types of 
potential franchises. If, for example, a state or local government 
characterizes permission to use the public rights-of-way as a 
``franchise,'' such franchises are not preempted so long as they are 
issued in a non-discriminatory and competitively neutral manner. We 
agree with U S West that the key in this regard is not how such 
requirements are labeled, but their effect. If the local requirements 
are Title VI-like requirements that would frustrate Congress' intent in 
adopting the 1996 Act's open video provisions, we continue to believe 
they are preempted.
    60. Second, we clarify that ``non-discriminatory and competitively 
neutral'' treatment does not necessarily mean ``equal'' treatment. For 
instance, it could be a non-discriminatory and competitively neutral 
regulation for a state or local authority to impose higher insurance 
requirements based on the number of street cuts an entity planned to 
make, even though such a regulation would not treat all entities 
``equally.'' Third, we clarify that when the Second Report and Order 
stated that local authorities may ensure the public safety in the use 
of rights-of-way by ``gas, telephone, electric, cable and similar 
companies,'' an open video system would qualify as a ``similar 
company.''
    61. We continue to disagree with the National League of Cities, et 
al. that the narrow preemption in the Second Report and Order violates 
the Fifth Amendment. First, although the National League of Cities, et 
al. assert that the Second Report and Order ``grossly underestimates'' 
the compensation due to local authorities, they fail to address the 
Commission's finding that the ``before and after'' test--in which the 
measure of compensation is the difference in the value of the property 
before a partial taking and the value of the property after the partial 
taking--is the proper test to apply. Second, we do not agree with the 
National League of Cities, et al. that the local community has not 
received just compensation unless an open video system operator matches 
the franchise and other obligations imposed upon the incumbent cable 
operator. Such a requirement would obviously render meaningless 
Congress' exemption of open video from Section 621 franchising 
requirements, since an open video system operator would be forced to 
comply with each of the incumbent cable operator's franchise terms or 
be subject to a Fifth Amendment ``takings'' claim. Third, the Second 
Report and Order specifically permits the recovery of normal fees 
associated with the construction of an open video system: ``[A] state 
or local government could impose normal fees associated with zoning and 
construction of an open video system, so long as such fees [are] 
applied in a non-discriminatory and competitively neutral manner.'' We 
clarify, however, that these ``normal fees associated with zoning and 
construction'' should not duplicate the compensation provided by the 
gross revenues fee. As we stated in the Second Report and Order, it is 
apparent that the gross revenue fee ``in lieu of'' a franchise fee was 
intended as compensation by open video system operators for use of the 
public rights-of-way. The National League of Cities, et al. have not 
explained why the fees associated with the construction of open video 
systems would be any different than the fees associated with any other 
users of the rights-of-way, and why regulations applied in a non-
discriminatory, competitively neutral manner on all users of the 
rights-of-way would be insufficient to deal with such matters.
    62. Finally, we find that a determination of whether LECs that use 
the rights-of-way for open video service remain subject to the same 
conditions contained in the pre-existing telephone franchise agreements 
can only be made on a case-by-case basis in light of the particular 
agreement between the parties. Thus, we make no general conclusions 
here.

G. Information Provided to Subscriber

    63. On reconsideration, we agree that video programming providers, 
including those affiliated with the open video system operator, should 
be permitted to develop and use their own navigational devices. We 
agree with Tele-TV and NYNEX that individualized navigational devices 
could be a factor in subscribers' choice of programming providers, 
thereby fostering innovation and competition among providers. While for 
technical considerations we will not require open video system 
operators to permit programming providers to use their own navigational 
devices, we do not believe that the same limitation should be placed on 
a provider's right to develop and use their own individualized guides 
and menus. We believe that it would be an impermissible term or 
condition of carriage under Section 653(b)(1) for an open video system 
operator to restrict a video programming provider's ability to use part 
of its channel capacity to provide an individualized guide or menu to 
its subscribers.
    64. We believe that several safeguards are necessary to effectuate 
congressional intent and protect unaffiliated programming providers. 
First, we reaffirm our conclusion in the Second Report and Order that 
an open video system operator cannot evade its non-discrimination 
obligations under Section 653(b)(1)(E) simply by having its 
navigational devices, guides, or

[[Page 43170]]

menus nominally provided by an affiliate. By this statement, we meant 
that where an open video system operator provides no navigational 
device, guide or menu of its own, its affiliate's navigational device, 
guide or menu will be subject to the requirements of Section 
653(b)(1)(E) even though such services are not formally provided by the 
open video system operator. We therefore will continue to apply the 
non-discrimination requirements of Section 653(b)(1)(E) to the open 
video system operator's affiliate where the affiliate provides a 
navigational device, guide or menu and the operator does not.
    65. Second, if an open video system operator permits video 
programming providers, including its affiliate, to develop and use 
their own navigational devices, the operator must create an electronic 
menu or guide that all video programming providers must carry 
containing a non-discriminatory listing of programming providers or 
programming services available on the system. These menus or guides 
should also inform the viewer how to obtain additional information on 
each of the services listed. If an operator provides a system-wide menu 
or guide that meets these requirements, its programming affiliate may 
create its own menu or guide without being subject to the requirements 
of Section 653(b)(1)(E).
    66. Third, an open video system operator may not require 
programming providers to develop and/or use their own navigational 
devices. Upon request, such programming providers must have access to 
the navigational device used by the open video system operator or its 
affiliate. Thus, for example, an open video system operator may not 
require a subscriber of its affiliated programming package to purchase 
a second set-top box in order to receive service from an unaffiliated 
programming provider that does not wish to use its own set-top box. An 
open video system operator need not physically integrate such 
programming providers into its affiliated programming package, or list 
such programming providers on its affiliate's guide or menu, so long as 
it meets the requirement set forth in the Second Report and Order that 
no programming service on its navigational device be more difficult to 
select than any other programming service.

H. Dispute Resolution

    67. We disagree with the Alliance for Community Media, et al. that 
not mandating public disclosure and filing of carriage contracts will 
result in economic inefficiency. Economic efficiency is promoted by 
increased competition. Open video system operators generally will be 
new entrants into markets that, although characterized by a degree of 
competition, have relatively few sellers of channel capacity over which 
video programming may be offered to subscribers. In such markets, 
increased competition is promoted when sellers of capacity, such as 
open video system operators, can negotiate contracts privately with 
individual buyers (i.e., video programming providers), and rival 
sellers cannot immediately match the contracts' terms and conditions. 
Thus, our rules are designed to increase economic efficiency by 
promoting competition in video programming carriage markets.
    68. We believe that the National League of Cities, et al. raise 
valid concerns that would-be complainants may lack sufficient 
information to file a complaint under our pleading rules. We believe it 
appropriate to give unaffiliated programming providers seeking carriage 
on open video systems some access to other programmer's carriage rates 
under certain circumstances. To ensure that the open video system 
operator provides useful information to the would-be complainant, we 
clarify that the preliminary rate estimates must include, upon request, 
all information needed to calculate the average rate paid by the 
unaffiliated programmers receiving carriage on the system, including 
the information needed for any weighting of the individual carriage 
rates that the operator has included in the average rate. This 
information may be made available subject to a reasonable non-
disclosure agreement. In addition, we reiterate that the operator's 
carriage contracts may be subject to discovery as part of the complaint 
procedure.

I. Joint Marketing, Bundling and Structural Separation

    69. Joint Marketing. We again decline to adopt NCTA's proposed 
restriction on joint marketing. While we agree that Congress' silence 
is not determinative, in light of Congress' silence on the issue, we 
believe that the burden is on those proposing joint marketing 
restrictions to demonstrate that such restrictions are necessary. NCTA 
requests that open video system operators be required to inform 
incoming callers that other video service providers exist in the area. 
To justify such a requirement, NCTA, at a minimum, would have to make 
some showing that consumers otherwise would likely be unaware of the 
existence of other video service options, such as cable service. NCTA 
made no such showing in its initial comments and has presented no new 
evidence here. In the absence of record evidence, the Commission 
declines to find that consumers would be unaware of the existence of 
other video providers such as cable, especially since cable currently 
accounts for 91% of multichannel video programming subscribers 
nationally, and passes 96% of all television households. NCTA's 
petition is denied.
    70. Bundling. AT&T and NCTA's concerns were considered and 
addressed in the Second Report and Order. They adduce no new evidence 
here, nor have they explained why the safeguards adopted by the 
Commission are inadequate to protect consumers' interests. The 
petitions for reconsideration are denied. On our own motion, we will 
correct a typographical error in our rule regarding the bundling of 
video and local exchange services. The current text provides, in part, 
that any local exchange carrier offering a bundled package must impute 
the unbundled tariff rate for the ``unregulated service.'' The rule 
will be corrected to be consistent with the text of the Second Report 
and Order, which states that a bundled package must impute the 
unbundled tariff rate for the ``regulated service.''
    71. Structural Separation. We deny the motions of NCTA and the 
Alliance for Community Media, et al. to reconsider our decision in the 
Second Report and Order, and accordingly decline to impose a separate 
affiliate requirement. First, while both NCTA and the Alliance for 
Community Media, et al. point out that the Commission need not be 
restricted by congressional silence, they both fail to address the 
point raised in the Second Report and Order that Congress expressly 
directed in Section 653 that Title II requirements not be applied to 
``the establishment and operation of an open video system.'' In 
addition, as we stated in the Second Report and Order, we believe that 
the Commission's Part 64 cost allocation rules and any amendment 
thereto will adequately protect regulated telephone ratepayers from a 
misallocation of costs that could lead to excessive telephone rates. 
Neither NCTA nor the Alliance for Community Media, et al. has advanced 
any new evidence or substantive arguments that a separate affiliate 
requirement is a necessary additional safeguard to protect against 
cross-subsidization.

IV. Regulatory Flexibility Act Analysis

    72. As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. Sec. 603 (RFA), an Initial Regulatory

[[Page 43171]]

Flexibility Analysis (IRFA) was incorporated in the Report and Order 
and Notice of Proposed Rulemaking (``NPRM'') in CS Docket No. 96-46 and 
CC Docket No. 87-266 (terminated) (In the Matter of Implementation of 
Section 302 of the Telecommunications Act of 1996--Open Video Systems), 
FCC 96-99, 61 FR 10496 (March 14, 1996), released March 11, 1996. The 
Commission sought written public comments on the proposals in the NPRM 
including comments on the IRFA, and addressed these responses in the 
Second Report and Order in CS Docket No. 96-46 (In the Matter of 
Implementation of Section 302 of the Telecommunications Act of 1996--
Open Video Systems), FCC 96-249, 61 FR 28698 (June 5, 1996), released 
June 3, 1996. No IRFA was attached to the Second Report and Order 
because the Second Report and Order only adopted final regulations and 
did not propose regulations. This Final Regulatory Flexibility Analysis 
(FRFA) therefore addresses the impact of regulations on small entities 
only as adopted or modified in this Third Report and Order and Second 
Order on Reconsideration and not as adopted or modified in earlier 
stages of this rulemaking proceeding. The FRFA conforms to the RFA, as 
amended by the Contract with America Advancement Act of 1996 (CWAAA), 
Public Law No. 104-121, 110 Stat. 847.
    73. Need for Action and Objectives of the Rule. The rulemaking 
implements Section 302 of the Telecommunications Act of 1996, Public 
Law No. 104-104, 110 Stat. 56. Section 302 directs the Commission to 
promulgate regulations governing the establishment and operation of 
open video systems. The purposes of this action are to establish a 
structure for open video systems that provides competitive benefits, 
including market entry by new service providers, enhanced competition, 
streamlined regulation, investment in infrastructure and technology, 
diversity of video programming choices and increased consumer choice.
    74. Summary and Assessment of Issues Raised by Petitioners in 
Response to the IRFA. With respect to the Third Report and Order, 
several parties filed comments in the Cable Reform Proceeding and also 
filed petitions for reconsideration of the Second Report and Order 
regarding the definition of the term ``affiliate'' in the context of 
the new statutory provisions for open video systems. These comments and 
the Commission's report are summarized in Section III, above. As 
mentioned, no IRFA was attached to the Second Report and Order. In 
petitions for reconsideration of the Second Report and Order, however, 
some parties raised issues that generally could involve small entities. 
For example, local cities urge the Commission to: (1) further ensure 
that local governments receive notification of an operator's intent to 
establish an open video system, by requiring an operator to serve a 
copy of FCC Form 1275 on all affected local municipalities; and (3) 
require an open video system operator to match, rather than share, the 
local cable operator's PEG access obligations. We grant reconsideration 
of these issues. Other parties, including potentially small business 
video programming providers, urge the Commission to enhance programming 
providers' ability to access information necessary to pursue a rate 
complaint against an open video system operator. We also grant 
reconsideration on this issue. Local television stations urge the 
Commission to require that open video system operators tailor the 
distribution of must-carry signals to the parts of their system that 
are located within a station's local service area so that stations 
electing must-carry status do not have to reimburse the operators for 
extensive copyright fees that may result from carriage beyond their 
local service areas. We grant reconsideration on this point.
    75. Description and Estimate of the Number of Small Entities 
Impacted. The RFA defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction,'' and the same meaning as the term 
``small business concern'' under Section 3 of the Small Business Act. A 
small concern is one which: (1) is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA). The rules we adopt today apply to municipalities, television 
stations, and business video programming providers. The rules also 
apply to entities that are likely to become open video system 
operators, including local exchange carriers and cable systems.
    76. Local Exchange Carriers. Neither the Commission nor SBA has 
developed a definition of small providers of local exchange services 
(LECs). The closest applicable definition under SBA rules is for 
telephone communications companies other than radiotelephone (wireless) 
companies. The most reliable source of information regarding the number 
of LECs nationwide of which we are aware appears to be the data that we 
collect annually in connection with the Telecommunications Relay 
Service (TRS). According to our most recent data, 1,347 companies 
reported that they were engaged in the provision of local exchange 
services. Although it seems certain that some of these carriers are not 
independently owned and operated, or have more than 1,500 employees, we 
are unable at this time to estimate with greater precision the number 
of LECs that would qualify as small business concerns under SBA's 
definition. Consequently, we estimate that there are fewer than 1,347 
small incumbent LECs that may be affected by this Order.
    77. Cable Systems: SBA has developed a definition of small entities 
for cable and other pay television services, which includes all such 
companies generating less than $11 million in revenue annually. This 
definition includes cable systems operators, closed circuit television 
services, direct broadcast satellite services, multipoint distribution 
systems, satellite master antenna systems and subscription television 
services. According to the Census Bureau, there were 1,323 such cable 
and other pay television services generating less than $11 million in 
revenue that were in operation for at least one year at the end of 
1992.
    78. The Commission has developed its own definition of a small 
cable system operator for the purposes of rate regulation. Under the 
Commission's rules, a ``small cable company,'' is one serving fewer 
than 400,000 subscribers nationwide. Based on our most recent 
information, we estimate that there were 1,439 cable operators that 
qualified as small cable system operators at the end of 1995. Since 
then, some of those companies may have grown to serve over 400,000 
subscribers; thus, we estimate that there are fewer than 1,439 small 
entity cable system operators that may be affected by this Order.
    79. The Communications Act also contains a definition of a small 
cable system operator, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than 1 percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has found that an operator serving fewer 
than 617,000 subscribers shall be deemed a small operator. Based on 
available data, we find that the number of cable operators serving 
617,000 subscribers or less totals 1,450. Although it seems certain 
that some of these cable system operators are affiliated with entities 
whose gross annual revenues exceed $250,000,000,

[[Page 43172]]

we cannot estimate with greater precision the number of cable system 
operators that would qualify as small cable operators under the 
definition in the Communications Act.
    80. Municipalities: The term ``small governmental jurisdiction'' is 
defined as ``governments of * * * districts, with a population of less 
than fifty thousand.'' There are 85,006 governmental entities in the 
United States. This number includes such entities as states, counties, 
cities, utility districts and school districts. We note that any 
official actions with respect to open video systems will typically be 
undertaken by LFAs, which primarily consist of counties, cities and 
towns. Of the 85,006 governmental entities, 38,978 are counties, cities 
and towns. The remainder are primarily utility districts, school 
districts, and states, which typically are not LFAs. Of the 38,978 
counties, cities and towns, 37,566 or 96%, have populations of fewer 
than 50,000. Thus, approximately 37,500 ``small governmental 
jurisdictions'' may be affected by the rules adopted in this Third 
Report and Order and Second Order on Reconsideration.
    81. Television Stations: The SBA defines small television 
broadcasting stations as television broadcasting stations with $10.5 
million or less in annual receipts. 13 CFR Sec. 121.201. According to 
the Census Bureau, in 1992, there were 1,155 out of 1,478 operating 
television stations reported revenues of less than $10 million for 
1992. This represents 78% of all television stations, including non-
commercial stations. The Census Bureau does not separate the revenue 
data by commercial and non-commercial stations in this report. Neither 
does it allow us to determine the number of stations with a maximum of 
10.5 million dollars in annual receipts. Census data also indicates 
that 81 percent of operating firms (that owned at least one television 
station) had revenues of less than 10 million dollars.
    82. Based on the foregoing worst case analysis using census data, 
we estimate that our rules will apply to as many as 1,150 commercial 
and non-commercial television stations (78 percent of all stations) 
that could be classified as small entities. Using a worst case analysis 
based on the data in the BIA data base, we estimate that as many as 
approximately 771 commercial television stations (about 68 percent of 
all commercial televisions stations) could be classified as small 
entities. As we noted above, these estimates are based on a definition 
that we tentatively believe greatly overstates the number of television 
broadcasters that are small businesses. Further, it should be noted 
that under the SBA's definitions, revenues of affiliates that are not 
television stations should be aggregated with the television station 
revenues in determining whether a concern is small. The estimates 
overstate the number of small entities since the revenue figures on 
which they are based do not include or aggregate such revenues from 
non-television affiliated companies.
    83. Video Programming Providers: Open video systems are an entirely 
new framework for delivering video programming to consumers. No open 
video systems have yet been certified to operate. Therefore, it is not 
possible at this time to estimate the size or number of video 
programming providers that may seek capacity on open video systems. We 
anticipate that two types of video programming providers may arise: (1) 
video programming providers seeking to utilize an open video system to 
offer a package of individual programming services via open video 
systems to subscribers; and (2) providers seeking to offer only one 
programming service. It is not possible to estimate the impact on or 
the number of video programming providers in the first category because 
no such entities exist. With respect to the second category, however, 
we believe that small cable programming services may provide a 
reasonable substitute. The Census Bureau category most similar to cable 
programming services is ``motion picture and video tape production.'' 
SIC Code 7812. Under this category, entities with less than $21.5 
million in annual receipts are defined as small motion picture and 
video tape production entities. There are a total of 7,265 motion 
picture and video tape production entities; of those, 7,002 have annual 
receipts of less than $24.5 million. The figures are not broken down 
further. We estimate that approximately 7,000 small cable programming 
services, or video programming providers, may be affected by the rules 
adopted in this Order. The Census Bureau data does not reflect a likely 
significant number of small, independent motion picture and video tape 
production companies. It is not possible at this time to estimate this 
number because no publicly available data is available that is specific 
to such entities. We therefore estimate that a minimum of 7,000 small 
cable programming services, or video programming providers, may be 
affected by this rule.
    84. Reporting, Recordkeeping and Other Compliance Requirements. The 
following addresses the requirements of regulations adopted, amended, 
modified or clarified on reconsideration in the Third Report and Order 
and Second Order on Reconsideration. We adopt a definition of 
``affiliate'' that will impact open video system operators and their 
affiliates, including open video system operators that are small 
entities. A primary effect of this rule concerns situations where 
demand for carriage exceeds the open video system's channel capacity, 
where the open video system operator and its affiliates are prohibited 
from selecting the video programming services for carriage on more than 
one-third of the activated channel capacity on its system. We revise 
FCC Form 1275 to require that applicants to become open video system 
operators, including applicants that are small businesses, list the 
names of the local communities in which they intend to operate. Listing 
the names of the communities will neither require any specialized 
skills nor impose significant new burdens.
    85. We modify our regulations to require that an open video system 
applicant, including those that are small entities, serve a copy of its 
FCC Form 1275 on all affected local communities on or before the date 
it is filed with the Commission. Merely serving the form on all 
affected local communities will not require any specialized skills. We 
modify our regulations to require that advertising availabilities (``ad 
avails'') associated with a programming service carried by both the 
open video system operator or its affiliated video programming provider 
and an unaffiliated provider must be shared in an equitable manner. 
This may impose burdens on open video system operators, including those 
that are small entities, because an operator must now share the 
revenues or other benefits of such ad avails with unaffiliated 
entities, rather than keeping all such revenues. We find that 
implementing this approach requires no specialized skills.
    86. We modify our regulations to permit an open video system 
operator to recover the gross revenues fee from all video programming 
providers using the platform on a proportional basis as an element of 
the carriage rate. This approach may impose additional burdens on video 
programming providers, including those that are small entities, because 
the carriage rate may be increased to reflect the open video system 
operator's gross revenues fees. We find that implementing this approach 
requires no specialized skills. We modify our regulations to require 
open video system operators, in the absence of a negotiated agreement, 
to match, rather than share, all public, educational and governmental 
(``PEG'')

[[Page 43173]]

access financial contributions of the local cable operator. This 
matching requirement could result in additional financial burdens on 
open video system operators, including those that are small entities, 
because matching the cable operator's PEG access financial 
contributions will be more costly in many situations than merely 
sharing the cable operator's contributions towards PEG access services, 
facilities and equipment, as permitted under the previous approach. We 
find that implementing this approach requires no specialized skills.
    87. We modify our regulations so that, in areas where a cable 
franchise previously existed, the local franchise authority will be 
permitted, absent a negotiated agreement, to elect either: (1) to 
maintain the previously existing PEG access requirements; or (2) to 
have the open video system operator's PEG access obligations determined 
by comparison to the nearest operating cable system that has a 
commitment to provide PEG access and that serves a franchise area with 
a similar population size. Every 15 years thereafter, the LFA is 
permitted to make a similar election. This requirement could impose new 
burdens on open video system operators, including those that are small 
entities, because an operator's PEG access obligations may be increased 
when compared to the nearest operating cable system that has a 
commitment to provide PEG access and that serves a franchise area with 
a similar population size. The order requires a broadcast station to 
make the same election for open video systems and cable systems in the 
same geographic area, unless the overlapping open video system is 
unable to deliver appropriate signals in conformance with the broadcast 
station's elections for all cable systems serving the same geographic 
area. We estimate that this requirement will have an impact on some 
broadcast stations. We anticipate that this requirement will not 
require any more professional skills than are required to make such 
elections and notify operators in the context of cable systems.
    88. The order requires an open video system operator to pay for any 
additional copyright fees incurred as a result of carrying a local 
signal outside of its local service area. We estimate that this 
requirement may affect a limited number of large open video system 
operators. We anticipate that distribution of signals outside of a 
local market will most likely occur on large systems that overlap 
several markets. If additional copyright fees are incurred by an open 
video system operator, we do not anticipate that the operator will have 
to use any professional skills beyond those already used to comply with 
the copyright rules. The order holds an open video system operator 
responsible for any violation of our sports exclusivity rules. We 
estimate that this requirement will have an impact on open video system 
operators and programmers, but will not require the use of any 
additional professional skills.
    89. We allow open video system operators to permit programming 
providers, including those affiliated with the open video system, to 
use their own navigational devices, subject to certain conditions. If 
the open video system operator permits programming providers to use 
their own navigational devices, the open video system operator must 
provide a nondiscriminatory guide or menu that all programming 
providers must carry, showing all programming available on the systems. 
We estimate that the requirement could result in additional burdens on 
open video system operators including small open video system 
operators. We find that implementing this approach requires no 
specialized skills. We clarify our regulations to require that the 
preliminary rate estimate provided by an open video system operator to 
video programming providers must include, upon request, all information 
needed to calculate the average rate paid by unaffiliated programming 
providers receiving carriage on the system, including the information 
needed for any weighting of the individual carriage rates that the 
operator has included in the average rate. This clarification may 
impose new burdens on open video system operators, including those that 
are small entities, because an open video system operator may have to 
prepare this information earlier than under the previous approach.
    90. Steps Taken to Minimize the Significant Economic Impact on 
Small Entities and Significant Alternatives Rejected. This section 
analyzes the impact on small entities in the contexts of regulations 
adopted, amended, modified or clarified in this Third Report and Order 
and Second Order on Reconsideration. With respect to the definition of 
affiliate, we adopt the attribution standard that applies in the cable 
program access context. The factual, legal and policy reasons are set 
forth in Section II, above. The definition of affiliate we adopt will 
create opportunities for unaffiliated programmers, many of which may be 
small entities, by promoting diversity of video programming sources. We 
rejected several alternatives to this definition of affiliate, as 
described in Section II, above. Requiring applicants to list the names 
of all local communities in which they intend to operate will not 
impose significant new burdens on applicants for the reasons stated 
above and will reduce burdens on the affected local communities, 
including those that are small entities. This approach will also reduce 
the burdens on open video system operators by reducing the potential 
for confusion over which local communities will be served by the open 
video system.
    91. Requiring service of FCC Form 1275 on local communities, as 
described above, will impose only minimal new burdens on open video 
system operators, including those that are small entities. These 
burdens are outweighed by the benefits to local communities, such as 
ensuring that a local community without ready access to the Internet or 
the Commission's Public Notices will be made aware of the applicant's 
filing. The factual, legal and policy reasons are described in Section 
III.B. This approach will reduce the burdens on open video system 
operators by reducing the potential for confusion over which local 
communities will be served by the open video system. The primary 
significant alternative is not requiring such service, but as stated, 
we find that the benefits to local communities outweigh any minimal 
burdens of complying with this rule. Requiring that ad avails 
associated with a programming service carried by both the open video 
system operator or its affiliated video programming provider and an 
unaffiliated provider be shared in an equitable manner may impose 
burdens on open video system operators, including those that are small 
entities. Such burdens are described in the preceeding section of this 
FRFA. However, we find these burdens are outweighed by the benefits of 
this requirement, which include providing unaffiliated video 
programming providers with an equitable share of income from ad avails 
and preventing the open video system operator or its affiliate from 
having a significant financial advantage over unaffiliated video 
programming providers. The factual, legal and policy reasons are 
described in Section III.C. We reduce the burdens on open video system 
operators by specifying examples of acceptable methods of sharing ad 
avails, including apportioning the relevant revenues or apportioning 
the rights to sell the avails themselves. The primary significant 
alternative is maintaining our current rules which do not require such 
sharing; however, as stated, we find that the benefits to unaffiliated

[[Page 43174]]

video programming providers outweigh the burdens of complying with this 
rule.
    92. Modifying our rules to permit an open video system operator to 
recover the gross revenues fee from all video programming providers 
using the platform on a proportional basis as an element of the 
carriage rate may impose additional burdens on video programming 
providers, including those that are small entities. However, we find 
that these burdens, as described above, are outweighed by the benefits 
to open video system operators and are in the interests of competition. 
Permitting this recoupment of the gross revenues fee should promote 
competition on the platform among video programming providers by not 
disadvantaging any particular video programming provider with respect 
to the payment of the gross revenues fee. The factual, legal and policy 
reasons for this approach are described above in Section III.E. This 
approach will reduce burdens on open video system operators by 
permitting them to recoup a proportion of these costs from video 
programming providers. The primary significant alternative we rejected 
is maintaining our current regulations which may have permitted 
unaffiliated video programming providers to avoid paying any share of 
the gross revenues fee; however, as stated, we find that the benefits 
to open video system operators outweigh the burdens of this approach on 
video programming providers. Requiring open video system operators to 
match, rather than share, all PEG access financial contributions of the 
local cable operator may impose burdens on open video system operators, 
including those that are small entities. These burdens are described in 
the preceeding section of this FRFA. We find that these burdens are 
outweighed by the benefits of this revised approach. The factual, 
policy and legal reasons for this approach are described in Section 
III.F. We believe that this approach may reduce burdens on open video 
system operators by providing further certainty as to their PEG access 
financial obligations. Significant alternatives we rejected include: 
(1) maintaining our current rules which permit an open video system 
operator to share the PEG access contributions. Generally, we rejected 
this alternative because we find that the matching principle more 
accurately fulfills the 1996 Act's mandate to impose PEG access 
obligations on open video system operators that are ``no greater or 
lesser'' than those imposed on cable operators.
    93. Modifying a local franchise authority's ability to make an 
election concerning the PEG access obligations of an open video system 
operator, as described in the preceeding section of this FRFA, may 
impose additional burdens on open video system operators, including 
those that are small entities. These burdens are described above. 
However, we find that these burdens are outweighed by the benefits of 
this approach, which include preventing PEG access obligations from 
being frozen in perpetuity, thereby providing significant benefits to 
local franchise areas and communities. The factual, policy and legal 
reasons for this approach are described above in Section III.F. This 
approach may reduce burdens on local communities by permitting them to 
negotiate with open video system operators with respect to PEG access 
obligations, and on open video system operators by providing them 
certainty as to their PEG access obligations for a period of up to 15 
years. The primary significant alternative we rejected is maintaining 
our current regulations which do not permit local franchise areas to 
make this election; however, as stated, we find that the benefits to 
local communities outweigh the burdens of this approach on open video 
system operators. The rule which requires a broadcast station to make 
the same election for open video systems and cable systems in the same 
geographic area, unless the overlapping open video system is unable to 
deliver appropriate signals in conformance with the broadcast station's 
elections for all cable systems serving the same geographic area, may 
impose a burden on broadcast stations. The policy, factual and legal 
reasons for adopting this final rule are set forth in Section 
III.F.2.b. of this Order. The rule adopted in this order may reduce 
burdens on both open video system operators and television stations by 
providing further certainty with respect to the must-carry status of 
television stations.
    94. The rule which requires an open video system operator to pay 
for any additional copyright fees incurred as a result of carrying a 
local station beyond its local market area may impose a burden on open 
video system operators. It has not been necessary to take significant 
steps to minimize the burden on small open video system operators 
because we do not believe that this rule is likely to affect many open 
video systems and especially not smaller open video systems, because it 
will only apply to open video systems capable of carrying broadcast 
signals beyond their local service areas. The factual policies and 
legal reasons for adopting this final rule are set forth in Section 
III.F.2.b. Any burden on open video system operators is outweighed by 
the benefit to broadcast stations, especially small stations that might 
not be able to elect must-carry status if they were subject to 
copyright fees in distant markets. The rule which holds an open video 
system operator responsible for any violation of our sports exclusivity 
rules may impose a burden on open video system operators. This burden 
is justified by the interest in protecting exclusive rights to sports 
programming. The factual policies and legal reasons for adopting this 
final rule are set forth in Section III.F.4.b. The rule adopted in this 
order applies our sports exclusivity rules to open video systems more 
fairly than the Commission's previous rule for the reasons cited in 
Section III.F.4.b.
    95. Allowing open video system operators to permit programming 
providers, including those affiliated with the open video system 
operator, to use their own navigational devices subject to certain 
conditions may impact open video system operators and their affiliates, 
including those that are small entities. If an operator permits 
programming providers, including its affiliate, to develop their own 
navigational devices, the operator must create an electronic menu or 
guide containing a non-discriminatory listing of programming providers 
or programming services available on the system that every programming 
provider must carry. The factual and policy reasons for adopting the 
final rule are found in Section III.G., above. We believe that this 
rule minimizes burdens on open video system operators and their 
programming affiliates, by allowing the affiliated programmers the 
flexibility to develop and use their own navigational devices, guides 
and menus. However, under the rule adopted, programming providers 
cannot be required to use their own navigational devices. Such 
providers must, upon request, have access to the navigational device 
used by the open video system operator or its affiliate. This 
requirement can help minimize burdens on small programming providers by 
allowing them access to the navigational device used by the open video 
system operator or its affiliate. Requiring that the preliminary rate 
estimate provided by an open video system operator to video programming 
providers include, upon request, all information needed to calculate 
the average rate paid by unaffiliated programming providers receiving 
carriage on the system, including the information needed for any 
weighting of the individual carriage rates that the operator has 
included in

[[Page 43175]]

the average rate, may impose burdens on open video system operator, 
including those that are small entities. These burdens are described in 
the preceeding section of this FRFA. However, we find that these 
burdens are outweighed by the benefits of this clarification, which 
include providing an unaffiliated video programming provider with 
relevant information regarding whether to pursue a rate complaint 
against an open video system operator. The factual, policy and legal 
reasons are described above in Section III.H. The primary significant 
alternative rejected by the Commission is to maintain our current rules 
which do not require a system operator's provision of such information 
upon request but only in formal discovery; however, as stated, we find 
that the benefits to unaffiliated video programming providers outweigh 
the burdens of complying with this rule.
    96. Report to Congress. The Commission shall send a copy of this 
FRFA, along with this Third Report and Order and Second Order on 
Reconsideration, in a report to Congress pursuant to the SBREFA, 5 
U.S.C. Sec. 801(a)910(A). A copy of this FRFA will also be published in 
the Federal Register.

V. Paperwork Reduction Act of 1995 Analysis

    97. The requirements adopted in the Third Report and Order and 
Second Order on Reconsideration have been analyzed with respect to the 
Paperwork Reduction Act of 1995 (the ``1995 Act'') and found to impose 
new or modified information collection requirements on the public. 
Implementation of any new or modified requirement will be subject to 
approval by the Office of Management and Budget (``OMB'') as prescribed 
by the 1995 Act. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and OMB to comment 
on the information collections contained in this Third Report and Order 
and Second Order on Reconsideration as required by the 1995 Act. OMB 
comments are due October 21, 1996. Comments should address: (1) Whether 
the proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (2) the accuracy of the 
Commission's burden estimates; (3) ways to enhance the quality, 
utility, and clarity of the information collected; and (4) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.
    98. Written comments by the public on the proposed and/or modified 
information collections are due on or before September 20, 1996. 
Written comments must be submitted by the Office of Management and 
Budget (OMB) on the proposed and/or modified information collections on 
or before October 21, 1996. A copy of any comments on the information 
collections contained herein should be submitted to Dorothy Conway, 
Federal Communications Commission, Room 234, 1919 M Street, N.W., 
Washington, DC 20554, or via the Internet to [email protected] and to 
Timothy Fain, OMB Desk Officer, 10236, NEOB, 725--17th Street, N.W., 
Washington, DC 20503 or via the Internet to [email protected]. For 
additional information concerning the information collections contained 
herein contact Dorothy Conway at 202-418-0217, or via the Internet at 
[email protected].

VI. Ordering Clauses

    99. Accordingly, it is ordered that, pursuant to Sections 4(i), 
4(j), 303(r), and 653 of the Communications Act of 1934, as amended, 47 
U.S.C. Secs. 154(i), 154(j), 303(r), and 573 the rules, requirements 
and policies discussed in this Third Report and Order and Second Order 
on Reconsideration ARE ADOPTED and Sections 76.1000 and 76.1500 through 
76.1515 of the Commission's rules, 47 CFR Secs. 76.1000 and 76.1500 
through 1515, ARE AMENDED as set forth below.
    100. It is further ordered that, pursuant to Sections 4(i), 4(j), 
303(r), and 653 of the Communications Act of 1934, as amended, 47 
U.S.C. Secs. 154(i), 154(j), 303(r), and 573 the rules, the Petitions 
for Reconsideration set forth in Appendix A are granted in part and 
denied in part, as provided herein.
    101. It is further ordered that the requirements and regulations 
established in this decision shall become effective upon approval by 
OMB of the new information collection requirements adopted herein, but 
no sooner than October 21, 1996. The Commission will issue a document 
at such time to notify parties that the regulations established in this 
decision are effective.
    102. It is further ordered that the Motion to Accept Late-Filed 
Opposition filed by the Telephone Joint Petitioners is hereby granted.
    103. It is further ordered that the Secretary shall send a copy of 
this Third Report and Order and Second Order on Reconsideration 
including the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration in accordance 
with paragraph 603(a) of the Regulatory Flexibility Act, Public Law No. 
96-354, 94 Stat. 1164, 5 U.S.C. Secs. 601 et seq. (1981).

List of Subjects 47 CFR Part 76

    Cable television.

Federal Communications Commission
William F. Caton,
Acting Secretary.

Rule Changes

    Part 76 of Title 47 of the Code of Federal Regulations is amended 
as follows:

PART 76--CABLE TELEVISION SERVICE

    1. The authority citation for Part 76 continues to read as follows:
    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 
534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558, 
560, 561, 571, 572, 573.

    2. Section 76.1500 is amended by redesignating paragraph (g) as 
paragraph (h) and adding new paragraph (g) to read as follows:


Sec. 76.1500  Definitions.

* * * * *
    (g) Affiliate. For purposes of determining whether a party is an 
``affiliate'' as used in this subpart, the definitions contained in the 
notes to Sec. 76.501 shall be used, provided, however that:
    (1) The single majority shareholder provisions of Note 2(b) to 
Sec. 76.501 and the limited partner insulation provisions of Note 2(g) 
to Sec. 76.501 shall not apply; and
    (2) The provisions of Note 2(a) to Sec. 76.501 regarding five (5) 
percent interests shall include all voting or nonvoting stock or 
limited partnership equity interests of five (5) percent or more.
* * * * *
    3. Section 76.1502 is amended by revising paragraphs (c)(6) and (d) 
and by adding paragraph (e) to read as follows:


Sec. 76.1502  Certification.

* * * * *
    (c) * * *
    (6) A list of the names of the anticipated local communities to be 
served upon completion of the system;
* * * * *
    (d) On or before the date an FCC Form 1275 is filed with the 
Commission, the applicant must serve a copy of its filing

[[Page 43176]]

on all local communities identified pursuant to paragraph (c)(6) of 
this section and must include a statement informing the local 
communities of the Commission's requirements in paragraph (e) of this 
section for filing oppositions and comments. Service by mail is 
complete upon mailing, but if mailed, the served documents must be 
postmarked at least three days prior to the filing of the FCC Form 1275 
with the Commission.
    (e) Comments or oppositions to a certification must be filed within 
five days of the Commission's receipt of the certification and must be 
served on the party that filed the certification. If the Commission 
does not disapprove certification within ten days after receipt of an 
applicant's request, the certification will be deemed approved. If 
disapproved, the applicant may file a revised certification or refile 
its original submission with a statement addressing the issues in 
dispute. Such refilings must be served on any objecting party or 
parties and on all local communities in which the applicant intends to 
operate.
    4. Section 76.1503 is amended by removing paragraph (c)(2)(iv)(C) 
and adding new paragraph (c)(2)(v) to read as follows:


Sec. 76.1503  Carriage of video programming providers on open video 
systems.

* * * * *
    (c) * * *
    (2) * * *
    (v) Notwithstanding the general prohibition on an open video system 
operator's discrimination among video programming providers contained 
in paragraph (a) of this section, a competing, in-region cable operator 
or its affiliate(s) that offers cable service to subscribers located in 
the service area of an open video system shall not be entitled to 
obtain capacity on such an open video system, except:
    (A) Where the operator of an open video system determines that 
granting access to the competing, in-region cable operator is in its 
interests; or
    (B) Where a showing is made that facilities-based competition will 
not be significantly impeded.

    Note to paragraph (c)(2)(v)(B): The Commission finds that 
facilities-based competition will not be significantly impeded, for 
example, where:
    (1) The competing, in-region cable operator and affiliated 
systems offer service to less than 20% of the households passed by 
the open video system; and
    (2) The competing, in-region cable operator and affiliated 
systems provide cable service to a total of less than 17,000 
subscribers within the open video system's service area.
* * * * *
    5. Section 76.1504 is amended by revising paragraph (e) to read as 
follows:


Sec. 76.1504  Rates, terms and conditions for carriage on open video 
systems.

* * * * *
    (e) Determining just and reasonable rates subject to complaints 
pursuant to the imputed rate approach or other market based approach. 
Carriage rates subject to complaint shall be found just and reasonable 
if one of the two following tests are met:
    (1) The imputed rate will reflect what the open video system 
operator, or its affiliate, ``pays'' for carriage of its own 
programming. Use of this approach is appropriate in circumstances where 
the pricing is applicable to a new market entrant (the open video 
system operator) that will face competition from an existing incumbent 
provider (the incumbent cable operator), as opposed to circumstances 
where the pricing is used to establish a rate for an essential input 
service that is charged to a competing new entrant by an incumbent 
provider. With respect to new market entrants, an efficient component 
pricing model will produce rates that encourage market entry. If the 
carriage rate to an unaffiliated program provider surpasses what an 
operator earns from carrying its own programming, the rate can be 
presumed to exceed a just and reasonable level. An open video system 
operator's price to its subscribers will be determined by several 
separate costs components. One general category are those costs related 
to the creative development and production of programming. A second 
category are costs associated with packaging various programs for the 
open video system operator's offering. A third category related to the 
infrastructure or engineering costs identified with building and 
maintaining the open video system. Contained in each is a profit 
allowance attributed to the economic value of each component. When an 
open video system operator provides only carriage through its 
infrastructure, however, the programming and packaging flows from the 
independent program provider, who bears the cost. The open video system 
operator avoids programming and packaging costs, including profits. 
These avoided costs should not be reflected in the price charged an 
independent program provider for carriage. The imputed rate also seeks 
to recognize the loss of subscribers to the open video system 
operator's programming package resulting from carrying competing 
programming.

    Note to paragraph (e)(1): Examples of specific ``avoided costs'' 
include:
    (1) All amounts paid to studios, syndicators, networks or 
others, including but not limited to payments for programming and 
all related rights;
    (2) Packaging, including marketing and other fees;
    (3) Talent fees; and
    (4) A reasonable overhead allowance for affiliated video service 
support.

    (2) An open video system operator can demonstrate that its carriage 
service rates are just and reasonable through other market based 
approaches.
    6. Section 76.1505 is amended by revising paragraphs (d)(1), 
(d)(4), (d)(6), the note to paragraph (d)(6), and (d)(8) to read as 
follows:


Sec. 76.1505  Public, educational and governmental access.

* * * * *
    (d) * * *
    (1) The open video system operator must satisfy the same public, 
educational and governmental access obligations as the local cable 
operator by providing the same amount of channel capacity for public, 
educational and governmental access and by matching the local cable 
operator's annual financial contributions towards public, educational 
and governmental access services, facilities and equipment that are 
actually used for public, educational and governmental access services, 
facilities and equipment. For in-kind contributions (e.g., cameras, 
production studios), the open video system operator may satisfy its 
statutory obligation by negotiating mutually agreeable terms with the 
local cable operator, so that public, educational and governmental 
access services to the community is improved or increased. If such 
terms cannot be agreed upon, the open video system operator must pay 
the local franchising authority the monetary equivalent of the local 
cable operator's depreciated in-kind contribution, or, in the case of 
facilities, the annual amortization value. Any matching contributions 
provided by the open video system operator must be used to fund 
activities arising under Section 611 of the Communications Act.
* * * * *
    (4) The costs of connection to the cable operator's public, 
educational and governmental access channel feed shall be borne by the 
open video system operator. Such costs shall be counted towards the 
open video system operator's matching financial contributions set forth 
in paragraph (d)(4) of this section.
* * * * *
    (6) Where there is no existing local cable operator, the open video 
system operator must make a reasonable

[[Page 43177]]

amount of channel capacity available for public, educational and 
governmental use, as well as provide reasonable support for services, 
facilities and equipment relating to such public, educational and 
governmental use. If a franchise agreement previously existed in that 
franchise area, the local franchising authority may elect either to 
impose the previously existing public, educational and governmental 
access obligations or determine the open video system operator's 
public, educational and governmental access obligations by comparison 
to the franchise agreement for the nearest operating cable system that 
has a commitment to provide public, educational and governmental access 
and that serves a franchise area with a similar population size. The 
local franchising authority shall be permitted to make a similar 
election every 15 years thereafter. Absent a previous franchise 
agreement, the open video system operator shall be required to provide 
channel capacity, services, facilities and equipment relating to 
public, educational and governmental access equivalent to that 
prescribed in the franchise agreement(s) for the nearest operating 
cable system with a commitment to provide public, educational and 
governmental access and that serves a franchise area with a similar 
population size.

    Note to paragraph (d)(6): This paragraph shall apply, for 
example, if a cable operator converts its cable system to an open 
video system under Sec. 76.1501.
* * * * *
    (8) The open video system operator and/or the local franchising 
authority may file a complaint with the Commission, pursuant to our 
dispute resolution procedures set forth in Sec. 76.1514, if the open 
video system operator and the local franchising authority cannot agree 
as to the application of the Commission's rules regarding the open 
video system operator's public, educational and governmental access 
obligations under paragraph (d) of this section.
* * * * *
    7. Section 76.1506 is amended by revising paragraphs (d), (l)(3) 
and (m)(2) to read as follows:


Sec. 76.1506  Carriage of television broadcast signals.

* * * * *
    (d) Definitions applicable to the must-carry rules. Section 76.55 
shall apply to all open video systems in accordance with the provisions 
contained in this section. Any provision of Sec. 76.55 that refers to a 
``cable system'' shall apply to an open video system. Any provision of 
Sec. 76.55 that refers to a ``cable operator'' shall apply to an open 
video system operator. Any provision of Sec. 76.55 that refers to the 
``principal headend'' of a cable system as defined in Sec. 76.5(pp) 
shall apply to the equivalent of the principal headend of an open video 
system. Any provision of Sec. 76.55 that refers to a ``franchise area'' 
shall apply to the service area of an open video system. The provisions 
of Sec. 76.55 that permit cable operators to refuse carriage of signals 
considered distant signals for copyright purposes shall not apply to 
open video system operators. If an open video system operator cannot 
limit its distribution of must-carry signals to the local service area 
of broadcast stations as used in 17 U.S.C. 111(d), it will be liable 
for any increase in copyright fees assessed for distant signal carriage 
under 17 U.S.C. 111.
* * * * *
    (l) * * *
    (3) Television broadcast stations are required to make the same 
election for open video systems and cable systems serving the same 
geographic area, unless the overlapping open video system is unable to 
deliver appropriate signals in conformance with the broadcast station's 
elections for all cable systems serving the same geographic area.
* * * * *
    (m) * * *
    (2) Notification of programming to be deleted pursuant to this 
section shall be served on the open video system operator. The open 
video system operator shall make all notifications immediately 
available to the appropriate video programming providers on its open 
video system. Operators may effect the deletion of signals for which 
they have received deletion notices unless they receive notice within a 
reasonable time from the appropriate programming provider that the 
rights claimed are invalid. The open video system operator shall not 
delete signals for which it has received notice from the programming 
provider that the rights claimed are invalid. An open video system 
operator shall be subject to sanctions for any violation of this 
subpart. An open video system operator may require indemnification as a 
condition of carriage for any sanctions it may incur in reliance on a 
programmer's claim that certain exclusive or non-duplication rights are 
invalid.
* * * * *
    8. Section 76.1511 is revised to read as follows:


Sec. 76.1511  Fees.

    An open video system operator may be subject to the payment of fees 
on the gross revenues of the operator for the provision of cable 
service imposed by a local franchising authority or other governmental 
entity, in lieu of the franchise fees permitted under Section 622 of 
the Communications Act. Local governments shall have the authority to 
assess and receive the gross revenue fee. Gross revenues under this 
paragraph means all gross revenues received by an open video system 
operator or its affiliates, including all revenues received from 
subscribers and all carriage revenues received from unaffiliated video 
programming providers. In addition gross revenues under this paragraph 
includes any advertising revenues received by an open video system 
operator or its affiliates in connection with the provision of video 
programming, where such revenues are included in the calculation of the 
incumbent cable operator's cable franchise fee. Gross revenues does not 
include revenues collected by unaffiliated video programming providers, 
such as subscriber or advertising revenues. Any gross revenues fee that 
the open video system operator or its affiliate collects from 
subscribers or video programming providers shall be excluded from gross 
revenues. An operator of an open video system or any programming 
provider may designate that portion of a subscriber's bill attributable 
to the fee as a separate item on the bill. An operator of an open video 
system may recover the gross revenue fee from programming providers on 
a proportional basis as an element of the carriage rate.
    9. Section 76.1512 is amended by revising paragraphs (b), (c) and 
(d) to read as follows:


Sec. 76.1512  Programming information.

* * * * *
    (b) In accordance with paragraph (a) of this section:
    (1) An open video system operator shall not discriminate in favor 
of itself or its affiliate on any navigational device, guide or menu;
    (2) An open video system operator shall not omit television 
broadcast stations or other unaffiliated video programming services 
carried on the open video system from any navigational device, guide 
(electronic or paper) or menu;
    (3) An open video system operator shall not restrict a video 
programming provider's ability to use part of the provider's channel 
capacity to provide an individualized guide or menu to the provider's 
subscribers;
    (4) Where an open video system operator provides no navigational 
device, guide or menu, its affiliate's

[[Page 43178]]

navigational device, guide or menu shall be subject to the requirements 
of Section 653(b)(1)(E) of the Communications Act;
    (5) An open video system operator may permit video programming 
providers, including its affiliate, to develop and use their own 
navigational devices. If an open video system operator permits video 
programming providers, including its affiliate, to develop and use 
their own navigational devices, the operator must create an electronic 
menu or guide that all video programming providers must carry 
containing a non-discriminatory listing of programming providers or 
programming services available on the system and informing the viewer 
how to obtain additional information on each of the services listed;
    (6) An open video system operator must grant access, for 
programming providers that do not wish to use their own navigational 
device, to the navigational device used by the open video system 
operator or its affiliate; and
    (7) If an operator provides an electronic guide or menu that 
complies with paragraph (b)(5) of this section, its programming 
affiliate may create its own menu or guide without being subject to the 
requirements of Section 653(b)(1)(E) of the Communications Act.
    (c) An open video system operator shall ensure that video 
programming providers or copyright holders (or both) are able to 
suitably and uniquely identify their programming services to 
subscribers.
    (d) An open video system operator shall transmit programming 
identification without change or alteration if such identification is 
transmitted as part of the programming signal.
    10. Section 76.1513 is amended by adding a note following paragraph 
(e)(1)(viii) to read as follows:


Sec. 76.1513  Dispute resolution.

* * * * *
    (e) * * *
    (1) * * *
    (viii) * * *
    Note to paragraph (e)(1)(viii): Upon request by a complainant, 
the preliminary carriage rate estimate shall include a calculation 
of the average of the carriage rates paid by the unaffiliated video 
programming providers receiving carriage from the open video system 
operator, including the information needed for any weighting of the 
individual carriage rates that the operator has included in the 
average rate.
* * * * *
    11. Section 76.1514 is amended by revising paragraph (b) to read as 
follows:


Sec. 76.1514  Bundling of video and local exchange services.

* * * * *
    (b) Any local exchange carrier offering such a package must impute 
the unbundled tariff rate for the regulated service.

[FR Doc. 96-21262 Filed 8-20-96; 8:45 am]
BILLING CODE 6712-01-P