[Federal Register Volume 64, Number 27 (Wednesday, February 10, 1999)]
[Rules and Regulations]
[Pages 6565-6576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3139]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-54; FCC 98-348]


1998 Biennial Review--Part 76 Cable Television Service Pleading 
and Complaint Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This Report and Order reorganizes and simplifies the 
Commission's procedural rules for filing petitions and complaints 
pursuant to part 76. The intended effect of these changes is to make 
the part 76 rules more concise and easier to use.

DATES: These rules contain information collection requirements that 
have not been approved by OMB. The Commission will publish a document 
in the Federal Register announcing the effective date. Written comments 
by the public on the proposed information collection requirements 
should be submitted on or before April 12, 1999.

ADDRESSES: A copy of any comments on the information collections in 
Secs. 76.6, 76.7, 76.8, 76.9, 76.10, 76.61, 76.914, 76.1003, 76.1302, 
and 76.1513 should be submitted to Judy Boley, Federal Communications 
Commission, Room C804, 445 12th Street, SW, Washington, DC 20554, or 
via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Horan, Cable Services Bureau, 
(202) 418-7200. For additional information concerning the information 
collections contained herein, contact Judy Boley at 202-418-0214, or 
via the Internet at [email protected].

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act:

    This Report and Order has 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. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public to take this opportunity to comment 
on the information collection requirements contained in this Report and 
Order, as required by the 1995 Act. Public comments are due April 12, 
1999. Comments should address: (a) 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; (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-XXXX (new collection).
    Title: Part 76 Cable Television Service Pleading and Complaint 
Rules.
    Type of Review: New collection.
    Respondents: Businesses or other for-profit entities.
    Number of Respondents: 400.
    Estimated Time Per Response: 4 hours to 40 hours.
    Frequency of Response: On occasion.
    Total Annual Burden to Respondents: 8,800 hours.
    Total Annual Cost to Respondents: $1,204,000.
    Needs and Uses: The procedural requirements set forth in this 
proceeding describe the process for filing petitions and complaints 
under part 76 of the Commission's rules. This information contained in 
the petitions and complaints is part of the record used by the 
Commission in its decision-making. Without the information, the 
Commission would be unable to enforce its rules and would be 
unresponsive to entities regulated by the Commission.
    1. The Report and Order addresses the issues raised in the Notice 
of Proposed Rulemaking in CS Docket No. 98-54, 63 FR 24145 (May 1, 
1998) (``NPRM''), regarding the Commission's 1998 biennial regulatory 
review of its regulations conducted pursuant to section 11 of the 
Telecommunications Act of 1996. In the NPRM, the Commission sought 
comments and proposals on how to achieve a streamlined complaint 
process for part 76 pleadings.
    2. Discussion. This Order implements several rule changes designed 
to consolidate the procedural requirements for most part 76 filings. 
These requirements are codified at Secs. 76.6 through 76.10 of the 
Commission's rules. This Order also eliminates the provisions rendered 
redundant by the amendments to the rules. Specifically, Sec. 76.6 is 
adopted. This section contains the general pleading requirements for 
all written submissions made pursuant to part 76. In addition, 
Sec. 76.6 will require

[[Page 6566]]

that all submissions be verified by the submitting party or by the 
party's attorney. Further, each submission must contain a written 
verification that the signatory has read the submission and to the best 
of his or her knowledge, the submission is well grounded in fact and is 
warranted by existing law or a good faith argument for the extension, 
modification or reversal of existing law. Prior to this amendment not 
all submissions pursuant to the part 76 rules required verification.
    3. Section 76.7 is amended to provide a uniform filing format, 
deadlines, and other procedural requirements which most pleadings filed 
pursuant to part 76 will follow. Going forward, unless the rule in 
question contains its own specific procedural guidelines, a party 
seeking special relief, waiver of the Commission's rules, resolution of 
a complaint, determination of effective competition, or resolution of a 
disputed question relating to part 76 should file a petition pursuant 
to, and follow the procedural rules set forth in Sec. 76.7. To the 
extent a conflict is perceived between the general pleading 
requirements of Sec. 76.7 and the procedural requirements of a specific 
section, the procedural requirements of the specific section should be 
followed.
    4. To comport with its new generalized nature, those portions of 
Sec. 76.7 which pertain only to must-carry complaints have been moved 
to Sec. 76.61, thereby incorporating all unique procedural aspects of 
must carry complaints in that rule. Section 76.61 is further amended to 
merge the specific requirements of must-carry complaints filed by local 
commercial television stations and must-carry complaints filed by local 
noncommercial educational television stations in one rule.
    5. The procedures regarding petitions for effective competition are 
consolidated in Sec. 76.7. The result is that all effective competition 
petitions filed pursuant to Sec. 76.7 will be placed on public notice 
and have the same 20 day deadline to file comments or oppositions and 
10 days to reply. Additionally, Sec. 76.7 is revised to set forth rules 
providing for referrals to the referral of proceedings for an 
adjudicatory hearing before an administrative law judge (``ALJ'').
    6. Section 76.8 has been recast to provide that status conferences 
may be convened at the discretion of Cable Services Bureau (``Bureau'') 
staff for all part 76 proceedings. Section 76.9 is revised to set forth 
rules providing for confidential treatment of proprietary information. 
Section 76.10 is added to clarify and describe the review process 
available to parties following a Bureau ruling or an ALJ decision in a 
matter referred by the Bureau. This includes the procedures for 
interlocutory review, petitions for reconsideration, and applications 
for review.
    7. Although not a change to the part 76 rules, the Commission will 
change its public notice format to provide the public with additional 
information regarding proceedings filed with the Commission. The 
Commission is currently upgrading to a new computer system which will 
have the capacity to store and display more information about each 
filing. The improved public notice format will be implemented once the 
new case tracking system becomes operational.
    8. Additionally, the Order adopts a procedural amendment clarifying 
essentially similar provisions related to the one-year limitations 
period for filing program access (Sec. 76.1003(g)(2)), program carriage 
(Sec. 76.1302(f)(2)), and open video system complaints 
(Sec. 76.1513(h)(2)). These sections now provide that complaints based 
on allegedly discriminatory offers to the complainant must be unrelated 
to any existing contract between the complainant and the party making 
such offer. This amendment is intended to clarify that an offer to 
amend an existing contract that has been in effect for more than one 
year does not reopen the existing contract to complaints that the 
provisions thereof are discriminatory.

Final Regulatory Flexibility Analysis

    9. As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (``IRFA'') was incorporated into the 
Notice in this proceeding. The Commission sought written public comment 
on the possible impact of the proposed policies and rules on small 
entities in the Notice, including comments on the IRFA. This Final 
Regulatory Flexibility Analysis (``FRFA'') in this Report and Order 
conforms to the RFA.
    10. Need for Action and Objectives of the Rules. Section 11 of the 
1996 Telecommunications Act requires the Commission to conduct a 
biennial review of regulations that apply to operations and activities 
of any provider of telecommunications service and to repeal or modify 
any regulation it determines to be no longer in the public interest. 
Although Section 11 does not specifically refer to cable operators, the 
Commission has determined that the first biennial review presents an 
excellent opportunity for a thorough examination of all of the 
Commission's regulations.
    11. Summary of Significant Issues Raised by the Public Comments in 
Response to the IRFA. One comment was filed specifically in response to 
the IRFA. The commenter disagrees with the conclusion in the IRFA that 
the number of small cable businesses affected by the Commission's rules 
has declined since 1995.
    12. Description and Estimate of the Number of Small Entities to 
Which the Rules Will Apply. The RFA directs the Commission to provide a 
description of and, where feasible, an estimate of the number of small 
entities that might be affected by the rules here adopted. The RFA 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. Under the Small Business Act, a small business 
concern is one which: (a) Is independently owned and operated; (b) is 
not dominant in its field of operation; and (c) satisfies any 
additional criteria established by the SBA. The rules adopted in the 
Report and Order will affect cable systems, multipoint multichannel 
distribution systems, direct broadcast satellites, home satellite dish 
manufacturers, open video systems, satellite master antenna television, 
local multipoint distribution systems, program producers and 
distributors, and television stations. Below set forth are the general 
SBA and FCC cable small size standards. Each service is addresses 
individually to provides a more precise estimate of small entities. 
Also described are program producers and distributors.
    13. SBA Definitions for Cable and Other Pay Television Services: 
The SBA has developed a definition of small entities for cable and 
other pay television services, which includes all such companies 
generating $11 million or less in annual receipts. This definition 
includes cable system 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 data from 1992, there were approximately 
1,758 total cable and other pay television services and 1,423 had less 
than $11 million in revenue.
    14. Additional Cable System Definitions: In addition, the 
Commission has developed, with SBA's approval, our own definition of a 
small cable system operator for the purposes of rate regulation. Under 
the

[[Page 6567]]

Commission's rules, a ``small cable company'' is one serving no more 
than 400,000 subscribers nationwide. The Commission estimated that 
there were 1439 cable operators that qualified as small cable companies 
at the end of 1995. Since then, some of those companies may have grown 
to serve over 400,000 subscribers, and others may have been involved in 
transactions that caused them to be combined with other cable 
operators. Consequently, the Commission estimates that there are fewer 
than 1439 small entity cable system operators that may be affected by 
the decisions and rules adopted. The Commission concludes that only a 
small percentage of these entities currently provide qualifying 
``telecommunications services'' as required by the Communications Act 
and, therefore, estimates that the number of such entities are 
significantly fewer than noted.
    15. 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% 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 determined that there are 61,700,000 
cable subscribers in the United States. Therefore, the Commission found 
that an operator serving fewer than 617,000 subscribers shall be deemed 
a small operator, if its annual revenues, when combined with the total 
annual revenues of all of its affiliates, do not exceed $250 million in 
the aggregate. Based on available data, the number of cable operators 
serving 617,000 subscribers or less totals 1450. Although it seems 
certain that some of these cable system operators are affiliated with 
entities whose gross annual revenues exceed $250,000,000, the 
Commission is unable at this time to estimate with greater precision 
the number of cable system operators that would qualify as small cable 
operators under the definition in the Communications Act.
    16. Multipoint Multichannel Distribution Systems (``MMDS''): The 
Commission refined its definition of ``small entity'' for the auction 
of MMDS as an entity that together with its affiliates has average 
gross annual revenues that are not more than $40 million for the 
preceding three calendar years. This definition of a small entity in 
the context of MMDS auctions has been approved by the SBA.
    17. The Commission completed its MMDS auction in March 1996 for 
authorizations in 493 basic trading areas (``BTAs''). Of 67 winning 
bidders, 61 qualified as small entities. Five bidders indicated that 
they were minority-owned and four winners indicated that they were 
women-owned businesses. MMDS is an especially competitive service, with 
approximately 1573 previously authorized and proposed MMDS facilities. 
Available information indicates that no MMDS facility generates revenue 
in excess of $11 million annually. The Commission concludes that, for 
purposes of this FRFA, there are approximately 1634 small MMDS 
providers as defined by the SBA and the Commission's auction rules.
    18. Direct Broadcast Satellite (``DBS''): Because DBS provides 
subscription services, DBS falls within the SBA definition of cable and 
other pay television services (SIC 4841). As of December 1996, there 
were eight DBS licensees. The Notice concluded that no DBS operator 
qualifies as a small entity. Since the publication of the Notice, more 
information has become available. In light of the 1997 gross revenue 
figures for the various DBS operators, the Commission restates its 
conclusion that no DBS operator qualifies as a small entity.
    19. Home Satellite Dish (``HSD''): The market for HSD service is 
difficult to quantify. Indeed, the service itself bears little 
resemblance to other MVPDs. HSD owners have access to more than 500 
channels of programming placed on C-band satellites by programmers for 
receipt and distribution by MVPDs, of which 350 channels are scrambled 
and approximately 150 are unscrambled. HSD owners can watch unscrambled 
channels without paying a subscription fee. To receive scrambled 
channels, however, an HSD owner must purchase an integrated receiver-
decoder from an equipment dealer and pay a subscription fee to an HSD 
programming packager. Thus, HSD users include: (1) Viewers who 
subscribe to a packaged programming service, which affords them access 
to most of the same programming provided to subscribers of other MVPDs; 
(2) viewers who receive only non-subscription programming; and (3) 
viewers who receive satellite programming services illegally without 
subscribing.
    20. According to the most recently available information, there are 
approximately 20 to 25 program packagers nationwide offering packages 
of scrambled programming to retail consumers. These program packagers 
provide subscriptions to approximately 2,184,470 subscribers 
nationwide. This is an average of about 77,163 subscribers per program 
packager. This is substantially smaller than the 400,000 subscribers 
used in the Commission's definition of a small multiple system operator 
(``MSO'').
    21. Satellite Master Antenna Television (``SMATVs''): Industry 
sources estimate that approximately 5200 SMATV operators were providing 
service as of December 1995. Other estimates indicate that SMATV 
operators serve approximately 1.162 million residential subscribers as 
of June 30, 1997. The ten largest SMATV operators together pass 848,450 
units. Assuming that these SMATV operators serve 50% of the units 
passed, the ten largest SMATV operators serve approximately 40% of the 
total number of SMATV subscribers. Because these operators are not rate 
regulated, they are not required to file financial data with the 
Commission. Furthermore, the Commission is not aware of any privately 
published financial information regarding these operators. Based on the 
estimated number of operators and the estimated number of units served 
by the largest ten SMATVs, the Commission concludes that a substantial 
number of SMATV operators qualify as small entities.
    22. Local Multipoint Distribution System (``LMDS''): Unlike the 
above pay television services, LMDS technology and spectrum allocation 
will allow licensees to provide wireless telephony, data, and/or video 
services. A LMDS provider is not limited in the number of potential 
applications that will be available for this service. Therefore, the 
definition of a small LMDS entity may be applicable to both cable and 
other pay television (SIC 4841) and/or radiotelephone communications 
companies (SIC 4812). The SBA approved definition for cable and other 
pay services that qualify as a small business is defined above. A small 
radiotelephone entity is one with 1500 employees or fewer. However, for 
the purposes of this Report and Order, only an estimate of LMDS video 
service providers is included.
    23. An auction for licenses to operate LMDS systems was recently 
completed by the Commission. The vast majority of the LMDS license 
auction winners were small businesses under the SBA's definition of 
cable and pay television (SIC 4841). The Commission adopted a small 
business definition for entities bidding for LMDS licenses as an entity 
that, together with affiliates and controlling principles, has average 
gross revenues not exceeding $40 million for each of the three 
preceding years. The Commission has not yet received approval by the 
SBA for this definition.

[[Page 6568]]

    24. There is only one company, CellularVision, that is currently 
providing LMDS video services. In the IRFA, the Commission assumed that 
CellularVision was a small business under both the SBA definition and 
our auction rules. No commenters addressed the tentative conclusions 
reached in the Notice. Accordingly, the Commission affirms the 
tentative conclusion that a majority of the potential LMDS licensees 
will be small entities, as that term is defined by the SBA.
    25. Open Video System (``OVS''): The Commission has certified 15 
OVS operators. Of these nine, only two are providing service. On 
October 17, 1996, Bell Atlantic received approval for its certification 
to convert its Dover, New Jersey Video Dialtone (``VDT'') system to 
OVS. Bell Atlantic subsequently purchased the division of Futurevision 
which had been the only operating program package provider on the Dover 
system, and has begun offering programming on this system using these 
resources. Metropolitan Fiber Systems was granted certifications on 
December 9, 1996, for the operation of OVS systems in Boston and New 
York, both of which are being used to provide programming. Bell 
Atlantic and Metropolitan Fiber Systems have sufficient revenues to 
assure us that they do not qualify as small business entities. Little 
financial information is available for the other entities authorized to 
provide OVS that are not yet operational. One OVS licensee may qualify 
as a small business concern. Given that other entities have been 
authorized to provide OVS service but have not yet begun to generate 
revenues, the Commission concludes that at least some of the OVS 
operators qualify as small entities.
    26. Program Producers and Distributors: The Commission has not 
developed a definition of small entities applicable to producers or 
distributors of television programs and, therefore, will utilize the 
SBA classifications of Motion Picture and Video Tape Production (SIC 
7812), Motion Picture and Video Tape Distribution (SIC 7822), and 
Theatrical Producers (Except Motion Pictures) and Miscellaneous 
Theatrical Services (SIC 7922). These SBA definitions provide that a 
small entity in the television programming industry is an entity with 
$21.5 million or less in annual receipts for SIC 7812 and 7822, and $5 
million or less in annual receipts for SIC 7922. The 1992 Bureau of the 
Census data indicate the following: (1) There were 7265 U.S. firms 
classified as Motion Picture and Video Production (SIC 7812), and that 
6987 of these firms had $16,999 million or less in annual receipts and 
7002 of these firms had $24,999 million or less in annual receipts; (2) 
there were 1139 U.S. firms classified as Motion Picture and Tape 
Distribution (SIC 7822), and that 1007 of these firms had $16,999 
million or less in annual receipts and 1013 of these firms had $24,999 
million or less in annual receipts; and (3) there were 5671 U.S. firms 
classified as Theatrical Producers and Services (SIC 7922), and that 
5627 of these firms had less than $5 million in annual receipts.
    27. Each of these SIC categories is very broad and includes firms 
that may be engaged in various industries including television. 
Specific figures are not available as to how many of these firms 
exclusively produce and/or distribute programming for television or how 
many are independently owned and operated. Consequently, the Commission 
concludes that there are approximately 6987 small entities that produce 
and distribute taped television programs, 1013 small entities primarily 
engaged in the distribution of taped television programs, and 5627 
small producers of live television programs that may be affected by the 
rules adopted in this Report and Order.
    28. Television Stations: The rules will apply to television 
broadcasting licensees, and potential licensees of television service. 
The Small Business Administration defines a television broadcasting 
station that has no more than $10.5 million in annual receipts as a 
small business. Television broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational, and other television stations. Also included are 
establishments primarily engaged in television broadcasting and which 
produce taped television program materials. Separate establishments 
primarily engaged in producing taped television program materials are 
classified under another SIC number (SIC 7812). There were 1,509 
television stations operating in the nation in 1992. That number has 
remained fairly constant as indicated by the approximately 1,579 
operating full power television broadcasting stations in the nation as 
of May 31, 1998. In addition, as of October 31, 1997, there were 1,880 
LPTV stations that may also be affected by the Commission's rules. For 
1992, the number of television stations that produced less than $10.0 
million in revenue was 1,155 establishments.
    29. Thus, the rules will affect many of the approximately 1,579 
television stations; approximately 1,200 of those stations are 
considered small businesses. These estimates may overstate the number 
of small entities since the revenue figures on which they are based do 
not include or aggregate revenues from non-television affiliated 
companies.
    30. In addition to owners of operating television stations, any 
entity who seeks or desires to obtain a television broadcast license 
may be affected by the rules contained in this item. The number of 
entities that may seek to obtain a television broadcast license is 
unknown.
    31. Description of Reporting, Recordkeeping and Other Compliance 
Requirements. This analysis examines the costs and administrative 
burdens associated with our rules and requirements. The rules adopted 
do not add additional compliance requirements, except in that a party 
involved in a non-rulemaking part 76 proceeding may be required to 
participate in a status conference. The Commission believes, however, 
that this requirement would not necessitate significant additional 
costs or skills beyond those already utilized in the ordinary course of 
business. The Commission believes that this requirement will be 
beneficial to participants. The status conference is a useful mechanism 
for achieving a swift conclusion to disputes. The rules provide that 
such conferences may be conducted over the telephone, thereby 
eliminating the need for parties to incur travel expenses to attend the 
conference.
    32. Steps Taken to Minimize Significant Economic Impact On Small 
Entities and Significant Alternatives Considered. The Commission 
believes that the rules implemented to streamline the pleading 
requirements associated with part 76 filings, make the amended part 76 
easier to use than the current rules. Several rules have been shortened 
or eliminated in order to make the part 76 rules more concise. 
Additionally, where possible, the procedural requirements for part 76 
filings have been standardized.
    33. It is ordered that, pursuant to authority found in sections 
4(i)-(j) of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i)-(j), the Commission's rules are hereby amended as set forth 
below.
    34. It is further ordered that the rules as amended shall become 
effective upon approval by OMB.
    35. It is further ordered that the Commission's Office of Public 
Affairs, Reference Operations Division, shall

[[Page 6569]]

send a copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 76

    Cable television.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

    1. The authority citation for part 76 is revised 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, 549, 552, 554, 556, 
558, 560, 561, 571, 572, 573.

    1a. The heading of part 76 is revised to read as set forth above.
    2. Section 76.6 is added to read as follows:


Sec. 76.6  General pleading requirements.

    (a) General pleading requirements. All written submissions, both 
substantive and procedural, must conform to the following standards:
    (1) A pleading must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, should be pleaded 
fully and with specificity.
    (2) Pleadings must contain facts which, if true, are sufficient to 
warrant a grant of the relief requested.
    (3) Facts must be supported by relevant documentation or affidavit.
    (4) The original of all pleadings and submissions by any party 
shall be signed by that party, or by the party's attorney. Complaints 
must be signed by the complainant. The signing party shall state his or 
her address and telephone number and the date on which the document was 
signed. Copies should be conformed to the original. Each submission 
must contain a written verification that the signatory has read the 
submission and to the best of his or her knowledge, information and 
belief formed after reasonable inquiry, it is well grounded in fact and 
is warranted by existing law or a good faith argument for the 
extension, modification or reversal of existing law; and that it is not 
interposed for any improper purpose. If any pleading or other 
submission is signed in violation of this provision, the Commission 
shall upon motion or upon its own initiative impose appropriate 
sanctions.
    (5) Legal arguments must be supported by appropriate judicial, 
Commission, or statutory authority. Opposing authorities must be 
distinguished. Copies must be provided of all non-Commission 
authorities relied upon which are not routinely available in national 
reporting systems, such as unpublished decisions or slip opinions of 
courts or administrative agencies.
    (6) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending complaint proceeding. Information submitted, as well as 
relevant legal authorities, must be current and updated as necessary 
and in a timely manner at any time before a decision is rendered on the 
merits of the complaint.
    (b) Copies to be Filed. Unless otherwise directed by specific 
regulation or the Commission, an original and two (2) copies of all 
pleadings shall be filed in accordance with Sec. 0.401(a) of this 
chapter, except that petitions requiring fees as set forth at part 1, 
subpart G of this chapter must be filed in accordance with 
Sec. 0.401(b) of this chapter.
    (c) Frivolous pleadings. It shall be unlawful for any party to file 
a frivolous pleading with the Commission. Any violation of this 
paragraph shall constitute an abuse of process subject to appropriate 
sanctions.
    3. Section 76.7 is revised to read as follows:


Sec. 76.7  General special relief, waiver, enforcement, complaint, show 
cause, forfeiture, and declaratory ruling procedures.

    (a) Initiating pleadings. In addition to the general pleading 
requirements, initiating pleadings must adhere to the following 
requirements:
    (1) Petitions. On petition by any interested party, cable 
television system operator, a multichannel video programming 
distributor, local franchising authority, or an applicant, permittee, 
or licensee of a television broadcast or translator station, the 
Commission may waive any provision of this part 76, impose additional 
or different requirements, issue a ruling on a complaint or disputed 
question, issue a show cause order, revoke the certification of the 
local franchising authority, or initiate a forfeiture proceeding. 
Petitions may be submitted informally by letter.
    (2) Complaints. Complaints shall conform to the relevant rule 
section under which the complaint is being filed.
    (3) Certificate of service. Petitions and Complaints shall be 
accompanied by a certificate of service on any cable television system 
operator, franchising authority, station licensee, permittee, or 
applicant, or other interested person who is likely to be directly 
affected if the relief requested is granted.
    (4) Statement of relief requested. (i) The petition or complaint 
shall state the relief requested. It shall state fully and precisely 
all pertinent facts and considerations relied on to demonstrate the 
need for the relief requested and to support a determination that a 
grant of such relief would serve the public interest.
    (ii) The petition or complaint shall set forth all steps taken by 
the parties to resolve the problem, except where the only relief sought 
is a clarification or interpretation of the rules.
    (iii) A petition or complaint may, on request of the filing party, 
be dismissed without prejudice as a matter of right prior to the 
adoption date of any final action taken by the Commission with respect 
to the petition or complaint. A request for the return of an initiating 
document will be regarded as a request for dismissal.
    (5) Failure to prosecute. Failure to prosecute petition or 
complaint, or failure to respond to official correspondence or request 
for additional information, will be cause for dismissal. Such dismissal 
will be without prejudice if it occurs prior to the adoption date of 
any final action taken by the Commission with respect to the initiating 
pleading.
    (b) Responsive pleadings. In addition to the general pleading 
requirements, responsive pleadings must adhere to the following 
requirements:
    (1) Comments/oppositions to petitions. Unless otherwise directed by 
the Commission, interested persons may submit comments or oppositions 
within twenty (20) days after the date of public notice of the filing 
of such petition. Comments or oppositions shall be served on the 
petitioner and on all persons listed in petitioner's certificate of 
service, and shall contain a detailed full showing, supported by 
affidavit, of any facts or considerations relied on.
    (2) Answers to complaints. (i) Unless otherwise directed by the 
Commission, any party who is served with a complaint shall file an 
answer in accordance with the following, and the relevant rule section 
under which the complaint is being filed.
    (ii) The answer shall be filed within 20 days of service of the 
complaint,

[[Page 6570]]

unless another period is set forth in the relevant rule section.
    (iii) The answer shall advise the parties and the Commission fully 
and completely of the nature of any and all defenses, and shall respond 
specifically to all material allegations of the complaint. Collateral 
or immaterial issues shall be avoided in answers and every effort 
should be made to narrow the issues. Any party against whom a complaint 
is filed failing to file and serve an answer within the time and in the 
manner prescribed by these rules may be deemed in default and an order 
may be entered against defendant in accordance with the allegations 
contained in the complaint.
    (iv) The answer shall admit or deny the averments on which the 
adverse party relies. If the defendant is without knowledge or 
information sufficient to form a belief as to the truth of an averment, 
the defendant shall so state and this has the effect of a denial. When 
a defendant intends in good faith to deny only part of an averment, the 
answer shall specify so much of it as is true and shall deny only the 
remainder. The defendant may make its denials as specific denials of 
designated averments or paragraphs, or may generally deny all the 
averments except such designated averments or paragraphs as the 
defendant expressly admits. When the defendant intends to controvert 
all averments, the defendant may do so by general denial.
    (v) Averments in a complaint are deemed to be admitted when not 
denied in the answer.
    (c) Reply. In addition to the general pleading requirements, reply 
comments and replies must adhere to the following requirements:
    (1) The petitioner or complainant may file a reply to a responsive 
pleading which shall be served on all persons who have filed pleadings 
and shall also contain a detailed full showing, supported by affidavit, 
of any additional facts or considerations relied on. Unless expressly 
permitted by the Commission, reply comments and replies to an answer 
shall not contain new matters.
    (2) Failure to reply will not be deemed an admission of any 
allegations contained in the responsive pleading, except with respect 
to any affirmative defense set forth therein.
    (3) Unless otherwise directed by the Commission or the relevant 
rule section, comments and replies to answers must be filed within ten 
(10) days after submission of the responsive pleading.
    (d) Motions. Except as provided in this section, or upon a showing 
of extraordinary circumstances, additional motions or pleadings by any 
party will not be accepted.
    (e) Additional procedures and written submissions. (1) The 
Commission may specify other procedures, such as oral argument or 
evidentiary hearing directed to particular aspects, as it deems 
appropriate. In the event that an evidentiary hearing is required, the 
Commission will determine, on the basis of the pleadings and such other 
procedures as it may specify, whether temporary relief should be 
afforded any party pending the hearing and the nature of any such 
temporary relief.
    (2) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding, including copies of all contracts and 
documents reflecting arrangements and understandings alleged to violate 
the requirements set forth in the Communications Act and in this part, 
as well as affidavits and exhibits.
    (3) The Commission may, in its discretion, require the parties to 
file briefs summarizing the facts and issues presented in the pleadings 
and other record evidence.
    (i) These briefs shall contain the findings of fact and conclusions 
of law which that party is urging the Commission to adopt, with 
specific citations to the record, and supported by relevant authority 
and analysis.
    (ii) Any briefs submitted shall be filed concurrently by both the 
complainant and defendant at such time as is designated by the staff. 
Such briefs shall not exceed fifty (50) pages.
    (iii) Reply briefs may be submitted by either party within twenty 
(20) days from the date initial briefs are due. Reply briefs shall not 
exceed thirty (30) pages.
    (f) Discovery. (1) The Commission staff may in its discretion order 
discovery limited to the issues specified by the Commission. Such 
discovery may include answers to written interrogatories, depositions 
or document production.
    (2) The Commission staff may in its discretion direct the parties 
to submit discovery proposals, together with a memorandum in support of 
the discovery requested. Such discovery requests may include answers to 
written interrogatories, document production or depositions. The 
Commission staff may hold a status conference with the parties, 
pursuant to Sec. 76.8 of this part, to determine the scope of 
discovery, or direct the parties regarding the scope of discovery. If 
the Commission staff determines that extensive discovery is required or 
that depositions are warranted, the staff may advise the parties that 
the proceeding will be referred to an administrative law judge in 
accordance with paragraph (g) of this section.
    (g) Referral to administrative law judge. (1) After reviewing the 
pleadings, and at any stage of the proceeding thereafter, the 
Commission staff may, in its discretion, designate any proceeding or 
discrete issues arising out of any proceeding for an adjudicatory 
hearing before an administrative law judge.
    (2) Before designation for hearing, the staff shall notify, either 
orally or in writing, the parties to the proceeding of its intent to so 
designate, and the parties shall be given a period of ten (10) days to 
elect to resolve the dispute through alternative dispute resolution 
procedures, or to proceed with an adjudicatory hearing. Such election 
shall be submitted in writing to the Commission.
    (3) Unless otherwise directed by the Commission, or upon motion by 
the Cable Services Bureau Chief, the Cable Services Bureau Chief shall 
not be deemed to be a party to a proceeding designated for a hearing 
before an administrative law judge pursuant to this paragraph.
    (h) System community units outside the Contiguous States. On a 
finding that the public interest so requires, the Commission may 
determine that a system community unit operating or proposing to 
operate in a community located outside of the 48 contiguous states 
shall comply with provisions of subparts D, F, and G of this part in 
addition to the provisions thereof otherwise applicable.
    (i) Commission ruling. The Commission, after consideration of the 
pleadings, may determine whether the public interest would be served by 
the grant, in whole or in part, or denial of the request, or may issue 
a ruling on the complaint or dispute, issue an order to show cause, or 
initiate a forfeiture proceeding.

    Notes 1 through 4 to Sec. 76.7:

    Note 1: After issuance of an order to show cause pursuant to 
this section, the rules of procedure in Title 47, part 1, subpart A, 
Secs. 1.91-1.95 of this chapter shall apply.

    Note 2: Nothing in this section is intended to prevent the 
Commission from initiating show cause or forfeiture proceedings on 
its own motion; Provided, however, that show cause proceedings and 
forfeiture proceedings pursuant to Sec. 1.80(g) of this chapter will 
not be initiated by such motion until the affected parties are given 
an opportunity to respond to the Commission's charges.

    Note 3: Forfeiture proceedings are generally nonhearing matters 
conducted pursuant to the provisions of Sec. 1.80(f) of this

[[Page 6571]]

chapter (Notice of Apparent Liability). Petitioners who contend that 
the alternative hearing procedures of Sec. 1.80(g) of this chapter 
should be followed in a particular case must support this contention 
with a specific showing of the facts and considerations relied on.

    Note 4: To the extent a conflict is perceived between the 
general pleading requirements of this section, and the procedural 
requirements of a specific section, the procedural requirements of 
the specific section should be followed.

    4. Section 76.8 is revised to read as follows:


Sec. 76.8  Status conference.

    (a) In any proceeding subject to the part 76 rules, the Commission 
staff may in its discretion direct the attorneys and/or the parties to 
appear for a conference to consider:
    (1) Simplification or narrowing of the issues;
    (2) The necessity for or desirability of amendments to the 
pleadings, additional pleadings, or other evidentiary submissions;
    (3) Obtaining admissions of fact or stipulations between the 
parties as to any or all of the matters in controversy;
    (4) Settlement of the matters in controversy by agreement of the 
parties;
    (5) The necessity for and extent of discovery, including objections 
to interrogatories or requests for written documents;
    (6) The need and schedule for filing briefs, and the date for any 
further conferences; and
    (7) Such other matters that may aid in the disposition of the 
proceeding.
    (b) Any party may request that a conference be held at any time 
after an initiating document has been filed.
    (c) Conferences will be scheduled by the Commission at such time 
and place as it may designate, to be conducted in person or by 
telephone conference call.
    (d) The failure of any attorney or party, following advance notice 
with an opportunity to be present, to appear at a scheduled conference 
will be deemed a waiver and will not preclude the Commission from 
conferring with those parties or counsel present.
    (e) During a status conference, the Commission staff may issue oral 
rulings pertaining to a variety of matters relevant to the conduct of 
the proceeding including, inter alia, procedural matters, discovery, 
and the submission of briefs or other evidentiary materials. These 
rulings will be promptly memorialized in writing and served on the 
parties. When such rulings require a party to take affirmative action 
not subject to deadlines established by another provision of this 
subpart, such action will be required within ten (10) days from the 
date of the written memorialization unless otherwise directed by the 
staff.
    5. Section 76.9 is revised to read as follows:


Sec. 76.9  Confidentiality of proprietary information.

    (a) Any materials filed in the course of a proceeding under this 
provision may be designated as proprietary by that party if the party 
believes in good faith that the materials fall within an exemption to 
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C. 
552(b). Any party asserting confidentiality for such materials shall so 
indicate by clearly marking each page, or portion thereof, for which a 
proprietary designation is claimed. If a proprietary designation is 
challenged, the party claiming confidentiality will have the burden of 
demonstrating, by a preponderance of the evidence, that the material 
designated as proprietary falls under the standards for nondisclosure 
enunciated in FOIA.
    (b) Submissions containing information claimed to be proprietary 
under this section shall be submitted to the Commission in confidence 
pursuant to the requirements of Sec. 0.459 of this chapter and clearly 
marked ``Not for Public Inspection.'' An edited version removing all 
proprietary data shall be filed with the Commission for inclusion in 
the public file within five (5) days from the date the unedited reply 
is submitted, and shall be served on the opposing parties.
    (c) Except as provided in paragraph (d) of this section, materials 
marked as proprietary may be disclosed solely to the following persons, 
only for use in the proceeding, and only to the extent necessary to 
assist in the prosecution or defense of the case:
    (i) Counsel of record representing the parties in the proceeding 
and any support personnel employed by such attorneys;
    (ii) Officers or employees of the parties in the proceeding who are 
named by another party as being directly involved in the proceeding;
    (iii) Consultants or expert witnesses retained by the parties;
    (iv) The Commission and its staff; and
    (v) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (d) The Commission will entertain, subject to a proper showing, a 
party's request to further restrict access to proprietary information 
as specified by the party. The other parties will have an opportunity 
to respond to such requests.
    (e) The persons designated in paragraphs (c) and (d) of this 
section shall not disclose information designated as proprietary to any 
person who is not authorized under this section to receive such 
information, and shall not use the information in any activity or 
function other than the prosecution or defense of the case before the 
Commission. Each individual who is provided access to the information 
by the opposing party shall sign a notarized statement affirmatively 
stating, or shall certify under penalty of perjury, that the individual 
has personally reviewed the Commission's rules and understands the 
limitations they impose on the signing party.
    (f) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraphs (c) and (d) of 
this section. Each party shall maintain a log recording the number of 
copies made of all proprietary material and the persons to whom the 
copies have been provided.
    (g) Upon termination of the complaint proceeding, including all 
appeals and petitions, all originals and reproductions of any 
proprietary materials, along with the log recording persons who 
received copies of such materials, shall be provided to the producing 
party. In addition, upon final termination of the proceeding, any notes 
or other work product derived in whole or in part from the proprietary 
materials of an opposing or third party shall be destroyed.
    6. Section 76.10 is added to read as follows:


Sec. 76.10  Review.

    (a) Interlocutory review. (1) Except as provided below, no party 
may seek review of interlocutory rulings until a decision on the merits 
has been issued by the staff or administrative law judge.
    (2) Rulings listed in this paragraph are reviewable as a matter of 
right. An application for review of such ruling may not be deferred and 
raised as an exception to a decision on the merits.
    (i) If the staff's ruling denies or terminates the right of any 
person to participate as a party to the proceeding, such person, as a 
matter of right, may file an application for review of that ruling.
    (ii) If the staff's ruling requires production of documents or 
other written evidence, over objection based on a claim of privilege, 
the ruling on the claim of privilege is reviewable as a matter of 
right.
    (iii) If the staff's ruling denies a motion to disqualify a staff 
person from participating in the proceeding, the ruling is reviewable 
as a matter of right.

[[Page 6572]]

    (b) Petitions for reconsideration. Petitions for reconsideration of 
interlocutory actions by the Commission's staff or by an administrative 
law judge will not be entertained. Petitions for reconsideration of a 
decision on the merits made by the Commission's staff should be filed 
in accordance with Secs. 1.104 through 1.106 of this chapter.
    (c) Application for review. (1) Any party to a part 76 proceeding 
aggrieved by any decision on the merits issued by the staff pursuant to 
delegated authority may file an application for review by the 
Commission in accordance with Sec. 1.115 of this chapter.
    (2) Any party to a part 76 proceeding aggrieved by any decision on 
the merits by an administrative law judge may file an appeal of the 
decision directly with the Commission, in accordance with 
Secs. 1.276(a) and 1.277(a) through (c) of this chapter, except that in 
proceedings brought pursuant to Secs. 76.1003, 76.1302, and 76.1513 of 
this part, unless a stay is granted by the Commission, the decision by 
the administrative law judge will become effective upon release and 
will remain in effect pending appeal.
    7. Section 76.61 is amended by revising paragraphs (a)(3), (a)(4) 
and (b), and adding (a)(5) to read as follows:


Sec. 76.61  Disputes concerning carriage.

    (a) * * *
    (3) A local commercial television station or qualified low power 
television station that is denied carriage or channel positioning or 
repositioning in accordance with the must-carry rules by a cable 
operator may file a complaint with the Commission in accordance with 
the procedures set forth in Sec. 76.7 of this part. In addition to the 
requirements of Sec. 76.7 of this part, such complaint shall 
specifically:
    (i) Allege the manner in which such cable operator has failed to 
meet its obligations and the basis for such allegations.
    (ii) Be accompanied by the notice from the complainant to the cable 
television system operator, and the cable television system operator's 
response, if any. If no timely response was received, the complaint 
shall so state.
    (iii) Establish the complaint is being filed within the sixty-day 
deadline stated in paragraph (a)(5) of this section.
    (4) If the Commission determines that a cable operator has failed 
to meet its must-carry obligations, the Commission shall order that, 
within 45 days of such order or such other time period as the 
Commission may specify, the cable operator reposition the complaining 
station or, in the case of an obligation to carry a station, commence 
or resume carriage of the station and continue such carriage for at 
least 12 months. If the Commission determines that the cable operator 
has fully met the must-carry requirements, it shall dismiss the 
complaint.
    (5) No must-carry complaint filed pursuant to paragraph (a) of this 
section will be accepted by the Commission if filed more than sixty 
(60) days after--
    (i) The denial by a cable television system operator of request for 
carriage or channel position contained in the notice required by 
paragraph (a)(1) of this section, or
    (ii) The failure to respond to such notice within the time period 
allowed by paragraph (a)(2) of this section.
    (b) Complaints regarding carriage of qualified local NCE television 
stations. (1) Whenever a qualified local NCE television station 
believes that a cable operator has failed to comply with the signal 
carriage or channel positioning requirements, pursuant to Secs. 76.56 
through 76.57 of this part, the station may file a complaint with the 
Commission in accordance with the procedures set forth in Sec. 76.7 of 
this part. In addition to the requirements of Sec. 76.7 of this part, 
such complaint shall specifically:
    (i) Allege the manner in which such cable operator has failed to 
comply with such requirements and state the basis for such allegations.
    (ii) Be accompanied by any relevant correspondence between the 
complainant and the cable television system operator.
    (2) If the Commission determines that a cable operator has failed 
to meet its must-carry obligations, the Commission shall order that, 
within 45 days of such order or such other period as the Commission may 
specify, the cable operator reposition the complaining station or, in 
the case of an obligation to carry a station, commence or resume 
carriage of the station and continue such carriage for a period of time 
the Commission deems appropriate for the specific case under 
consideration. If the Commission determines that the cable operator has 
fully met the must-carry requirements, it shall dismiss the complaint.
    (3) With respect to must-carry complaints filed pursuant to 
paragraph (b) of this section, such complaints may be filed at any time 
the complainant believes that the cable television system operator has 
failed to comply with the applicable provisions of subpart D of this 
part.
    8. Section 76.914 is amended by revising paragraph (c) to read as 
follows:


Sec. 76.914  Revocation of certification.

* * * * *
    (c) A cable operator may file a petition for special relief 
pursuant to Sec. 76.7 of this part seeking revocation of a franchising 
authority's certification.
* * * * *
    9. Section 76.1003 is revised to read as follows:


Sec. 76.1003  Program access proceedings.

    (a) Complaints. Any multichannel video programming distributor 
aggrieved by conduct that it believes constitute a violation of the 
regulations set forth in this subpart may commence an adjudicatory 
proceeding at the Commission to obtain enforcement of the rules through 
the filing of a complaint. The complaint shall be filed and responded 
to in accordance with the procedures specified in Sec. 76.7 of this 
part with the following additions or changes:
    (b) Prefiling notice required. Any aggrieved multichannel video 
programming distributor intending to file a complaint under this 
section must first notify the potential defendant cable operator, and/
or the potential defendant satellite cable programming vendor or 
satellite broadcast programming vendor, that it intends to file a 
complaint with the Commission based on actions alleged to violate one 
or more of the provisions contained in Secs. 76.1001 or 76.1002 of this 
part. The notice must be sufficiently detailed so that its recipient(s) 
can determine the specific nature of the potential complaint. The 
potential complainant must allow a minimum of ten (10) days for the 
potential defendant(s) to respond before filing a complaint with the 
Commission.
    (c) Contents of complaint. In addition to the requirements of 
Sec. 76.7 of this part, a program access complaint shall contain:
    (1) The type of multichannel video programming distributor that 
describes complainant, the address and telephone number of the 
complainant, whether the defendant is a cable operator, satellite 
broadcast programming vendor or satellite cable programming vendor 
(describing each defendant), and the address and telephone number of 
each defendant;
    (2) Evidence that supports complainant's belief that the defendant, 
where necessary, meets the attribution standards for application of the 
program access requirements;
    (3) Evidence that the complainant competes with the defendant cable 
operator, or with a multichannel video programming distributor that is 
a customer of the defendant satellite cable

[[Page 6573]]

programming or satellite broadcast programming vendor;
    (4) In complaints alleging discrimination, documentary evidence 
such as a rate card or a programming contract that demonstrates a 
differential in price, terms or conditions between complainant and a 
competing multichannel video programming distributor or, if no 
programming contract or rate card is submitted with the complaint, an 
affidavit signed by an officer of complainant alleging that a 
differential in price, terms or conditions exits, a description of the 
nature and extent (if known or reasonably estimated by the complainant) 
of the differential, together with a statement that defendant refused 
to provide any further specific comparative information;
    (5) If a programming contract or a rate card is submitted with the 
complaint in support of the alleged violation, specific references to 
the relevant provisions therein;
    (6) In complaints alleging exclusivity violations:
    (i) The identity of both the programmer and cable operator who are 
parties to the alleged prohibited agreement,
    (ii) Evidence that complainant can or does serve the area specified 
in the complaint, and
    (iii) Evidence that the complainant has requested to purchase the 
relevant programming and has been refused or unanswered;
    (7) In complaints alleging a violation of Sec. 76.1001 of this 
part, evidence demonstrating that the behavior complained of has harmed 
complainant.
    (8) The complaint must be accompanied by appropriate evidence 
demonstrating that the required notification pursuant to paragraph (a) 
of this section has been made.
    (d) Damages requests. (1) In a case where recovery of damages is 
sought, the complaint shall contain a clear and unequivocal request for 
damages and appropriate allegations in support of such claim in 
accordance with the requirements of paragraph (d)(3) of this section.
    (2) Damages will not be awarded upon a complaint unless 
specifically requested. Damages may be awarded if the complaint 
complies fully with the requirement of paragraph (d)(3) of this section 
where the defendant knew, or should have known that it was engaging in 
conduct violative of section 628.
    (3) In all cases in which recovery of damages is sought, the 
complainant shall include within, or as an attachment to, the 
complaint, either:
    (i) A computation of each and every category of damages for which 
recovery is sought, along with an identification of all relevant 
documents and materials or such other evidence to be used by the 
complainant to determine the amount of such damages; or
    (ii) An explanation of:
    (A) The information not in the possession of the complaining party 
that is necessary to develop a detailed computation of damages;
    (B) The reason such information is unavailable to the complaining 
party;
    (C) The factual basis the complainant has for believing that such 
evidence of damages exists; and
    (D) A detailed outline of the methodology that would be used to 
create a computation of damages when such evidence is available.
    (e) Answer. 
    (1) Any cable operator, satellite cable programming vendor or 
satellite broadcast programming vendor upon which a program access 
complaint is served under this section shall answer within twenty (20) 
days of service of the complaint, unless otherwise directed by the 
Commission.
    (2) An answer to an exclusivity complaint shall provide the 
defendant's reasons for refusing to sell the subject programming to the 
complainant. In addition, the defendant may submit its programming 
contracts covering the area specified in the complaint with its answer 
to refute allegations concerning the existence of an impermissible 
exclusive contract. If there are no contracts governing the specified 
area, the defendant shall so certify in its answer. Any contracts 
submitted pursuant to this provision may be protected as proprietary 
pursuant to Sec. 76.9 of this part.
    (3) An answer to a discrimination complaint shall state the reasons 
for any differential in prices, terms or conditions between the 
complainant and its competitor, and shall specify the particular 
justification set forth in Sec. 76.1002(b) of this part relied upon in 
support of the differential.
    (i) When responding to allegations concerning price discrimination, 
except in cases in which the alleged price differential is de minimis 
(less than or equal to five cents per subscriber or five percent, 
whichever is greater), the defendant shall provide documentary evidence 
to support any argument that the magnitude of the differential is not 
discriminatory.
    (ii) In cases involving a price differential of less than or equal 
to five cents per subscriber or five percent, whichever is greater, the 
answer shall identify the differential as de minimis and state that the 
defendant is therefore not required to justify the magnitude of the 
differential.
    (iii) If the defendant believes that the complainant and its 
competitor are not sufficiently similar, the answer shall set forth the 
reasons supporting this conclusion, and the defendant may submit an 
alternative contract for comparison with a similarly situated 
multichannel video programming distributor that uses the same 
distribution technology as the competitor selected for comparison by 
the complainant. The answer shall state the defendant's reasons for any 
differential between the prices, terms and conditions between the 
complainant and such similarly situated distributor, and shall specify 
the particular justifications in Sec. 76.1002(b) of this part relied 
upon in support of the differential. The defendant shall also provide 
with its answer written documentary evidence to support its 
justification of the magnitude of any price differential between the 
complainant and such similarly situated distributor that is not de 
minimis.
    (4) An answer to a complaint alleging an unreasonable refusal to 
sell programming shall state the defendant's reasons for refusing to 
sell to the complainant, or for refusing to sell to the complainant on 
the same terms and conditions as complainant's competitor, and shall 
specify why the defendant's actions are not discriminatory.
    (f) Reply. Within fifteen (15) days after service of an answer, 
unless otherwise directed by the Commission, the complainant may file 
and serve a reply which shall be responsive to matters contained in the 
answer and shall not contain new matters.
    (g) Time limit on filing of complaints. Any complaint filed 
pursuant to this subsection must be filed within one year of the date 
on which one of the following events occurs:
    (1) The satellite cable programming or satellite broadcast 
programming vendor enters into a contract with the complainant that the 
complainant alleges to violate one or more of the rules contained in 
this subpart; or
    (2) The satellite cable programming or satellite broadcast 
programming vendor offers to sell programming to the complainant 
pursuant to terms that the complainant alleges to violate one or more 
of the rules contained in this subpart, and such offer to sell 
programming is unrelated to any existing contract between the 
complainant and the satellite cable programming or satellite broadcast 
programming vendor; or

[[Page 6574]]

    (3) The complainant has notified a cable operator, or a satellite 
cable programming vendor or a satellite broadcast programming vendor 
that it intends to file a complaint with the Commission based on a 
request to purchase or negotiate to purchase satellite cable 
programming or satellite broadcast programming, or has made a request 
to amend an existing contract pertaining to such programming pursuant 
to Sec. 76.1002(f) of this part that has been denied or unacknowledged, 
allegedly in violation of one or more of the rules contained in this 
subpart.
    (h) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission shall order 
appropriate remedies, including, if necessary, the imposition of 
damages, and/or the establishment of prices, terms, and conditions for 
the sale of programming to the aggrieved multichannel video programming 
distributor. Such order shall set forth a timetable for compliance, and 
shall become effective upon release.
    (2) Additional sanctions. The remedies provided in paragraph (h)(1) 
of this section are in addition to and not in lieu of the sanctions 
available under title V or any other provision of the Communications 
Act.
    (3) Imposition of damages. (i) Bifurcation. In all cases in which 
damages are requested, the Commission may bifurcate the program access 
violation determination from any damage adjudication.
    (ii) Burden of proof. The burden of proof regarding damages rests 
with the complainant, who must demonstrate with specificity the damages 
arising from the program access violation. Requests for damages that 
grossly overstate the amount of damages may result in a Commission 
determination that the complainant failed to satisfy its burden of 
proof to demonstrate with specificity the damages arising from the 
program access violation.
    (iii) Damages adjudication. (A) The Commission may, in its 
discretion, end adjudication of damages with a written order 
determining the sufficiency of the damages computation submitted in 
accordance with paragraph (d)(3)(i) of this section or the damages 
computation methodology submitted in accordance with paragraph 
(d)(3)(ii)(D) of this section, modifying such computation or 
methodology, or requiring the complainant to resubmit such computation 
or methodology.
    (1) Where the Commission issues a written order approving or 
modifying a damages computation submitted in accordance with paragraph 
(d)(3)(i) of this section, the defendant shall recompense the 
complainant as directed therein.
    (2) Where the Commission issues a written order approving or 
modifying a damages computation methodology submitted in accordance 
with paragraph (d)(3)(ii)(D) of this section, the parties shall 
negotiate in good faith to reach an agreement on the exact amount of 
damages pursuant to the Commission-mandated methodology.
    (B) Within thirty days of the issuance of a paragraph (d)(3)(ii)(D) 
of this section damages methodology order, the parties shall submit 
jointly to the Commission either:
    (1) A statement detailing the parties' agreement as to the amount 
of damages;
    (2) A statement that the parties are continuing to negotiate in 
good faith and a request that the parties be given an extension of time 
to continue negotiations; or
    (3) A statement detailing the bases for the continuing dispute and 
the reasons why no agreement can be reached.
    (C)(1) In cases in which the parties cannot resolve the amount of 
damages within a reasonable time period, the Commission retains the 
right to determine the actual amount of damages on its own, or through 
the procedures described in paragraph (h)(3)(iii)(C)(2) of this 
section.
    (2) Issues concerning the amount of damages may be designated by 
the Chief, Cable Services Bureau for hearing before, or, if the parties 
agree, submitted for mediation to, a Commission Administrative Law 
Judge.
    (D) Interest on the amount of damages awarded will accrue from 
either the date indicated in the Commission's written order issued 
pursuant to paragraph (h)(3)(iii)(A)(1) of this section or the date 
agreed upon by the parties as a result of their negotiations pursuant 
to paragraph (h)(3)(iii)(A)(2) of this section. Interest shall be 
computed at applicable rates published by the Internal Revenue Service 
for tax refunds.
    10. Section 76.1302 is revised to read as follows:


Sec. 76.1302  Carriage agreement proceedings.

    (a) Complaints. Any video programming vendor or multichannel video 
programming distributor aggrieved by conduct that it believes 
constitute a violation of the regulations set forth in this subpart may 
commence an adjudicatory proceeding at the Commission to obtain 
enforcement of the rules through the filing of a complaint. The 
complaint shall be filed and responded to in accordance with the 
procedures specified in Sec. 76.7 of this part with the following 
additions or changes:
    (b) Prefiling notice required. Any aggrieved video programming 
vendor or multichannel video programming distributor intending to file 
a complaint under this section must first notify the potential 
defendant multichannel video programming distributor that it intends to 
file a complaint with the Commission based on actions alleged to 
violate one or more of the provisions contained in Sec. 76.1301 of this 
part. The notice must be sufficiently detailed so that its recipient(s) 
can determine the specific nature of the potential complaint. The 
potential complainant must allow a minimum of ten (10) days for the 
potential defendant(s) to respond before filing a complaint with the 
Commission.
    (c) Contents of complaint. In addition to the requirements of 
Sec. 76.7 of this part, a carriage agreement complaint shall contain:
    (1) The type of multichannel video programming distributor that 
describes complainant, the address and telephone number of the 
complainant, and the address and telephone number of each defendant;
    (2) Evidence that supports complainant's belief that the defendant, 
where necessary, meets the attribution standards for application of the 
carriage agreement regulations;
    (3) For complaints alleging a violation of Sec. 76.1301(c) of this 
part, evidence that supports complainant's claim that the effect of the 
conduct complained of is to unreasonably restrain the ability of the 
complainant to compete fairly.
    (4) The complaint must be accompanied by appropriate evidence 
demonstrating that the required notification pursuant to paragraph (b) 
of this section has been made.
    (d) Answer. (1) Any multichannel video programming distributor upon 
which a carriage agreement complaint is served under this section shall 
answer within thirty (30) days of service of the complaint, unless 
otherwise directed by the Commission.
    (2) The answer shall address the relief requested in the complaint, 
including legal and documentary support, for such response, and may 
include an alternative relief proposal without any prejudice to any 
denials or defenses raised.
    (e) Reply. Within twenty (20) days after service of an answer, 
unless otherwise directed by the Commission, the complainant may file 
and serve a reply which shall be responsive to matters contained in the 
answer and shall not contain new matters.

[[Page 6575]]

    (f) Time limit on filing of complaints. Any complaint filed 
pursuant to this subsection must be filed within one year of the date 
on which one of the following events occurs:
    (1) The multichannel video programming distributor enters into a 
contract with a video programming distributor that a party alleges to 
violate one or more of the rules contained in this section; or
    (2) The multichannel video programming distributor offers to carry 
the video programming vendor's programming pursuant to terms that a 
party alleges to violate one or more of the rules contained in this 
section, and such offer to carry programming is unrelated to any 
existing contract between the complainant and the multichannel video 
programming distributor; or
    (3) A party has notified a multichannel video programming 
distributor that it intends to file a complaint with the Commission 
based on violations of one or more of the rules contained in this 
section.
    (g) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission shall order 
appropriate remedies, including, if necessary, mandatory carriage of a 
video programming vendor's programming on defendant's video 
distribution system, or the establishment of prices, terms, and 
conditions for the carriage of a video programming vendor's 
programming. Such order shall set forth a timetable for compliance, and 
shall become effective upon release, unless any order of mandatory 
carriage would require the defendant multichannel video programming 
distributor to delete existing programming from its system to 
accommodate carriage of a video programming vendor's programming. In 
such instances, if the defendant seeks review of the staff, or 
administrative law judge decision, the order for carriage of a video 
programming vendor's programming will not become effective unless and 
until the decision of the staff or administrative law judge is upheld 
by the Commission. If the Commission upholds the remedy ordered by the 
staff or administrative law judge in its entirety, the defendant will 
be required to carry the video programming vendor's programming for an 
additional period equal to the time elapsed between the staff or 
administrative law judge decision and the Commission's ruling, on the 
terms and conditions approved by the Commission.
    (2) Additional sanctions. The remedies provided in paragraph (g)(1) 
of this section are in addition to and not in lieu of the sanctions 
available under title V or any other provision of the Communications 
Act.
    11. In Section 76.1513, the heading, paragraphs (a), (d) through 
(h) are revised and paragraphs (i) through (u) are removed to read as 
follows:


Sec. 76.1513  Open video dispute resolution.

    (a) Complaints. Any party aggrieved by conduct that it believes 
constitute a violation of the regulations set forth in this part or in 
section 653 of the Communications Act (47 U.S.C. 573) may commence an 
adjudicatory proceeding at the Commission to obtain enforcement of the 
rules through the filing of a complaint. The Commission shall resolve 
any such dispute within 180 days after the filing of a complaint. The 
complaint shall be filed and responded to in accordance with the 
procedures specified in Sec. 76.7 of this part with the following 
additions or changes.
* * * * *
    (d) Contents of complaint. In addition to the requirements of 
Sec. 76.7 of this part, an open video system complaint shall contain:
    (1) The type of entity that describes complainant (e.g., 
individual, private association, partnership, or corporation), the 
address and telephone number of the complainant, and the address and 
telephone number of each defendant;
    (2) If discrimination in rates, terms, and conditions of carriage 
is alleged, documentary evidence shall be submitted such as a 
preliminary carriage rate estimate or a programming contract that 
demonstrates a differential in price, terms or conditions between 
complainant and a competing video programming provider or, if no 
programming contract or preliminary carriage rate estimate is submitted 
with the complaint, an affidavit signed by an officer of complainant 
alleging that a differential in price, terms or conditions exists, a 
description of the nature and extent (if known or reasonably estimated 
by the complainant) of the differential, together with a statement that 
defendant refused to provide any further specific comparative 
information;

    Note to paragraph (d)(2): 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.

    (3) If a programming contract or a preliminary carriage rate 
estimate is submitted with the complaint in support of the alleged 
violation, specific references to the relevant provisions therein.

    (4) The complaint must be accompanied by appropriate evidence 
demonstrating that the required notification pursuant to paragraph (c) 
of this section has been made.
    (e) Answer.
    (1) Any open video system operator upon which a complaint is served 
under this section shall answer within thirty (30) days of service of 
the complaint, unless otherwise directed by the Commission.
    (2) An answer to a discrimination complaint shall state the reasons 
for any differential in prices, terms or conditions between the 
complainant and its competitor, and shall specify the particular 
justification relied upon in support of the differential. Any documents 
or contracts submitted pursuant to this paragraph may be protected as 
proprietary pursuant to Sec. 76.9 of this part.
    (f) Reply. Within twenty (20) days after service of an answer, the 
complainant may file and serve a reply which shall be responsive to 
matters contained in the answer and shall not contain new matters.
    (g) Time limit on filing of complaints. Any complaint filed 
pursuant to this subsection must be filed within one year of the date 
on which one of the following events occurs
    (1) The open video system operator enters into a contract with the 
complainant that the complainant alleges to violate one or more of the 
rules contained in this part; or
    (2) The open video system operator offers to carry programming for 
the complainant pursuant to terms that the complainant alleges to 
violate one or more of the rules contained in this part, and such offer 
to carry programming is unrelated to any existing contract between the 
complainant and the open video system operator; or
    (3) The complainant has notified an open video system operator that 
it intends to file a complaint with the Commission based on a request 
for such operator to carry the complainant's programming on its open 
video system that has been denied or unacknowledged, allegedly in 
violation of one or more of the rules contained in this part.
    (h) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission shall order 
appropriate

[[Page 6576]]

remedies, including, if necessary, the requiring carriage, awarding 
damages to any person denied carriage, or any combination of such 
sanctions. Such order shall set forth a timetable for compliance, and 
shall become effective upon release.
    (2) Additional sanctions. The remedies provided in paragraph (h)(1) 
of this section are in addition to and not in lieu of the sanctions 
available under title V or any other provision of the Communications 
Act.

[FR Doc. 99-3139 Filed 2-9-99; 8:45 am]
BILLING CODE 6712-01-P