[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60675-60700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24239]



  Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / 
Proposed Rules  

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 11-131; FCC 11-119]


Revision of the Commission's Program Carriage Rules

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In 1993, the Federal Communications Commission (FCC) adopted 
rules pertaining to carriage of video programming vendors by 
multichannel video programming distributors (``MVPDs''), known as the 
``program carriage rules.'' The rules are intended to benefit consumers 
by promoting competition and diversity in the video programming and 
video distribution markets. In this document, the FCC seeks comment on 
proposed revisions to or clarifications of the program carriage rules, 
which are intended to further improve the Commission's procedures and 
to advance the goals of the program carriage statute.

DATES: Submit comments on or before November 28, 2011, and submit reply 
comments on or before December 28, 2011. See SUPPLEMENTARY INFORMATION 
section for additional comment dates.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-131, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act proposed information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via e-mail to [email protected] and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to [email protected] or via fax at 202-395-5167. For detailed 
instructions for submitting comments and additional information on the 
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact David Konczal, [email protected], of the Media 
Bureau, Policy Division, 202-418-2120. For additional information 
concerning the Paperwork Reduction Act information collection 
requirements contained in this document, send an e-mail to [email protected] 
or contact Cathy Williams at 202-418-2918. To view or obtain a copy of 
this information collection request (ICR) submitted to OMB: (1) Go to 
this OMB/GSA Web page: http://www.reginfo.gov/public/do/PRAMain, (2) 
look for the section of the Web page called ``Currently Under Review,'' 
(3) click on the downward-pointing arrow in the ``Select Agency'' box 
below the ``Currently Under Review'' heading, (4) select ``Federal 
Communications Commission'' from the list of agencies presented in the 
``Select Agency'' box, (5) click the ``Submit'' button to the right of 
the ``Select Agency'' box, and (6) when the list of FCC ICRs currently 
under review appears, look for the OMB control number of the ICR as 
show in the SUPPLEMENTARY INFORMATION section below (3060-0649) and 
then click on the ICR Reference Number. A copy of the FCC submission to 
OMB will be displayed.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), MB Docket No. 11-131, FCC No. 11-119, 
adopted on July 29, 2011 and released on August 1, 2011. The full text 
of the NPRM is available for public inspection and copying during 
regular business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also 
may be purchased from the Commission's duplicating contractor at 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; 
the contractor's Web site, http://www.bcpiweb.com; or by calling 800-
378-3160, facsimile 202-488-5563, or e-mail [email protected]. Copies of 
the NPRM also may be obtained via the Commission's Electronic Comment 
Filing System (ECFS) by entering the docket number, MB Docket No. 11-
131. Additionally, the complete item is available on the Federal 
Communications Commission's Web site at http://www.fcc.gov.
    This document contains proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Written comments on the 
Paperwork Reduction Act proposed information collection requirements 
must be submitted by the public, Office of Management and Budget (OMB), 
and other interested parties on or before November 28, 2011.
    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; (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; and (e) 
ways to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.
    OMB Control Number: 3060-0888.
    Title: Section 76.7, Petition Procedures; Sec.  76.9, 
Confidentiality of Proprietary Information; Sec.  76.61, Dispute 
Concerning Carriage; Sec.  76.914, Revocation of Certification; Sec.  
76.1001, Unfair Practices; Sec.  76.1003, Program Access Proceedings; 
Sec.  76.1302, Carriage Agreement Proceedings; Sec.  76.1303, 
Discovery; Sec.  76.1513, Open Video Dispute Resolution.
    Form Number: Not applicable.
    Type of Review: Revision of a currently approved collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents and Responses: 648.
    Estimated Time per Response: 5.2 to 78 hours.

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    Frequency of Response: On occasion reporting requirement; third 
party disclosure requirement.
    Obligation to Respond: Required to obtain or retain benefits. The 
statutory authority for this collection of information is contained in 
contained in sections 4(i), 303(r), and 616 of the Communications Act 
of 1934, as amended.
    Total Annual Burden: 26,957 hours.
    Total Annual Cost: $1,749,600.
    Privacy Act Impact Assessment: No impact.
    Nature and Extent of Confidentiality: A party that wishes to have 
confidentiality for proprietary information with respect to a 
submission it is making to the Commission must file a petition pursuant 
to the pleading requirements in Sec.  76.7 and use the method described 
in Sec. Sec.  0.459 and 76.9 to demonstrate that confidentiality is 
warranted.
    Needs and Uses: On August 1, 2011, the Commission adopted a Notice 
of Proposed Rulemaking (``NPRM''), Revision of the Commission's Program 
Carriage Rules, MB Docket No. 11-131, FCC 11-119. The Commission seeks 
comment on revisions to or clarifications of the program carriage 
rules, which are intended to further improve the Commission's 
procedures and to advance the goals of the program carriage statute.
    The NPRM proposes to add or revise the following rules sections: 47 
CFR 76.1302(c)(4), 47 CFR 76.1302(d)(3)(iii), 47 CFR 76.1302(d)(3)(iv), 
47 CFR 76.1302(d)(3)(v), 47 CFR 76.1302(e)(3), 47 CFR 76.1302(h), 47 
CFR 76.1302(j)(1), 47 CFR 76.1302(j)(3), 47 CFR 76.1302(j)(4), 47 CFR 
76.1302(k)(3), and 47 CFR 76.1303.
    If adopted, 47 CFR 76.1302(c)(4) would provide that, 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, and lists the information that must be 
included in the complaint when requesting damages.
    47 CFR 76.1302(d)(3)(iii) sets forth the evidence that a program 
carriage complaint filed pursuant to Sec.  76.1302 must contain in 
order to establish a prima facie case of discrimination in violation of 
Sec.  76.1301, and, if the revision in the NPRM is adopted, would also 
apply to new claims alleging that a vertically integrated MVPD has 
discriminated on the basis of a programming vendor's lack of 
affiliation with another MVPD.
    If adopted, 47 CFR 76.1302(d)(3)(iv) would set forth the evidence 
that a program carriage complaint filed pursuant to Sec.  76.1302 must 
contain in order to establish a prima facie case of retaliation in 
violation of Sec.  76.1301.
    If adopted, 47 CFR 76.1302(d)(3)(v) would set forth the evidence 
that a program carriage complaint filed pursuant to Sec.  76.1302 must 
contain in order to establish a prima facie case of bad faith 
negotiations in violation of Sec.  76.1301.
    If adopted, 47 CFR 76.1302(e)(3) would require a multichannel video 
programming distributor that expressly references and relies upon a 
document or documents in asserting a defense to a program carriage 
complaint or in responding to a material allegation in a program 
carriage complaint, to include such document or documents as part of 
the answer.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(h) would 
state that any complaint filed pursuant to this subsection must be 
filed within one year of the date on which the alleged violation of the 
program carriage rules occurred.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(j)(1) would 
state that upon completion of an adjudicatory proceeding, the 
adjudicator deciding the case on the merits (i.e., either the Chief, 
Media Bureau or an administrative law judge) 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 the adjudicator rules that the defendant has made a 
sufficient evidentiary showing that demonstrates that an 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 adopted, 47 CFR 76.1302(j)(3) would provide that, to assist in 
ordering an appropriate remedy, the adjudicator has the discretion to 
order the complainant and the defendant to each submit a final offer 
for the prices, terms, or conditions in dispute. The adjudicator has 
the discretion to adopt one of the final offers or to fashion its own 
remedy.
    If adopted, 47 CFR 76.1302(j)(4) would provide that the (i) 
adjudicator may require the complainant to resubmit a damages 
computation or damages methodology filed pursuant to Sec.  
76.1302(c)(4); and (ii) where the adjudicator issues a written order 
approving or modifying a damages methodology, the parties shall 
negotiate in good faith to reach an agreement on the exact amount of 
damages pursuant to the adjudicator-mandated methodology and within 
thirty (30) days of the issuance of a damages methodology order, the 
parties shall submit jointly to the adjudicator 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.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(k)(3) would 
provide that, in cases where a standstill petition is granted, the 
adjudicator, in order to facilitate the application of remedies as of 
the expiration date of the previous programming contract, may request 
after deciding the case on the merits that the party seeking to apply 
the remedies as of the expiration date of the previous programming 
contract to submit a proposal for such application of remedies pursuant 
to the procedures for requesting damages set forth in Sec.  
76.1302(c)(4) and Sec.  76.1302(j)(4). An opposition to such a proposal 
shall be filed within ten (10) days after the proposal is filed. A 
reply to an opposition shall be filed within five (5) days after the 
opposition is filed.
    If adopted, 47 CFR 76.1303 would provide for discovery procedures 
in complaint proceedings alleging a violation of Sec.  76.1301 in which 
the Chief, Media Bureau acts as the adjudicator. With respect to 
automatic document production, within ten (10) calendar days after the 
Chief, Media Bureau releases a decision finding that the complainant 
has established a prima facie case of a violation of Sec.  76.1301 and 
stating that the Chief, Media Bureau will issue a ruling on the merits 
of the complaint after discovery, each party must provide certain 
documents listed in the Commission's rules to the opposing party. With 
respect to party-to-party discovery, within twenty (20) calendar days 
after the Chief, Media Bureau releases a decision finding that the 
complainant has established a prima

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facie case of a violation of Sec.  76.1301 and stating that the Chief, 
Media Bureau will issue a ruling on the merits of the complaint after 
discovery, each party to the complaint may serve requests for discovery 
directly on the opposing party, and file a copy of the request with the 
Commission. Within five (5) calendar days after being served with a 
discovery request, the respondent may serve directly on the party 
requesting discovery an objection to any request for discovery that is 
not in the respondent's control or relevant to the dispute, and file a 
copy of the objection with the Commission. Within five (5) calendar 
days after being served with an objection to a discovery request, the 
party requesting discovery may serve a reply to the objection directly 
on the respondent, and file a copy of the reply with the Commission. To 
the extent that a party has objected to a discovery request, the 
parties shall meet and confer to resolve the dispute. Within forty (40) 
calendar days after the Chief, Media Bureau releases a decision finding 
that the complainant has established a prima facie case of a violation 
of Sec.  76.1301 and stating that the Chief, Media Bureau will issue a 
ruling on the merits of the complaint after discovery, the parties 
shall file with the Commission a joint proposal for discovery as well 
as a list of issues pertaining to discovery that have not been 
resolved.
    All other remaining existing information collection requirements 
would stay as they are, and the various burden estimates would be 
revised to reflect the new and revised rules noted above.

Summary of the Notice of Proposed Rulemaking

I. Notice of Proposed Rulemaking

    1. In this NPRM in MB Docket No. 11-131, we seek comment on the 
following additional revisions or clarifications to both our procedural 
and substantive program carriage rules, which are intended to 
facilitate the resolution of program carriage claims.\1\ We also invite 
commenters to suggest any other changes to our program carriage rules 
that would improve our procedures and promote the goals of the program 
carriage statute.
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    \1\ Unless otherwise noted, all references to comments, reply 
comments, or letters in this NPRM refer to submissions filed in 
response to the Program Carriage NPRM in MB Docket No. 07-42. See 
Program Carriage NPRM, MB Docket No. 07-42, 22 FCC Rcd 11222 (2007).
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A. Statute of Limitations

    2. The current program carriage statute of limitations set forth in 
Sec.  76.1302(f) provides that a complaint 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.'' \2\
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    \2\ 47 CFR 76.1302(f). This rule will now appear at Sec.  
76.1302(h) once the amendments adopted in the Second Report and 
Order in MB Docket No. 07-42 take effect.
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    Our concern is with Sec.  76.1302(f)(3), which states that a 
complaint is timely if filed within one year of when the complainant 
notified the defendant MVPD of its intention to file a complaint and 
contains no reference to when the alleged violation of the program 
carriage rules occurred.\3\ In other words, the rule could be read to 
provide that, even if the act alleged to have violated the program 
carriage rules occurred many years before the filing of the complaint, 
the complaint is nonetheless timely if filed within one year of when 
the complainant notified the defendant MVPD of its intention to file. 
Moreover, the introductory language to Sec.  76.1302(f) provides that a 
complaint must be filed ``within one year of the date on which one of 
the following events occurs,'' which implies that a complaint filed in 
compliance with Sec.  76.1302(f)(3) is timely even if it would be 
untimely under Sec. Sec.  76.1302(f)(1) or (f)(2). Thus, it appears 
that Sec.  76.1302(f)(3) undermines the fundamental purpose of a 
statute of limitations ``to protect a potential defendant against stale 
and vexatious claims by ending the possibility of litigation after a 
reasonable period of time has elapsed.''
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    \3\ As originally adopted in the 1993 Program Carriage Order, 
the rule that is now Sec.  76.1302(f)(3) formerly read that a 
complaint must be filed within one year of the date when ``the 
complainant has notified a multichannel video programming 
distributor that it intends to file a complaint with the Commission 
based on a request for carriage or to negotiate for carriage of its 
programming on defendant's distribution system that has been denied 
or unacknowledged, allegedly in violation of one or more of the 
rules contained in this subpart.'' See 1993 Program Carriage Order, 
9 FCC Rcd at 2652-53, para. 25 and 2676, Appendix D (47 CFR 
76.1302(r)(3)). In the 1994 Program Carriage Order, the Commission 
eliminated without explanation the language in this rule specifying 
that the complainant's notice of intent would be ``based on a 
request for carriage or to negotiate for carriage of its programming 
on defendant's distribution system that has been denied or 
unacknowledged.'' The Commission replaced the rule with the current 
language, with a minor edit adopted in the 1998 Biennial Regulatory 
Review Order. See 1994 Program Carriage Order, 9 FCC Rcd at 4421, 
Appendix A (47 CFR 76.1302(r)(3)); 1998 Biennial Regulatory Review 
Order, 14 FCC Rcd at 441, Appendix A (changing the word ``subpart'' 
to ``section'').
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    3. In light of these concerns, we propose to revise our program 
carriage statute of limitations to provide that a complaint must be 
filed within one year of the act that allegedly violated the program 
carriage rules. We seek comment on any potential ramifications of this 
revised statute of limitations on programming vendors and MVPDs. We 
recognize that the issue of when the act that allegedly violated the 
rules occurred is fact-specific and in some cases may be subject to 
differing views between the parties. For example, to the extent that 
the claim involves denial of carriage, an issue might arise as to 
whether the denial occurred when the MVPD first rejected a programming 
vendor's request for carriage early in the negotiation process or 
whether the denial occurred later after further carriage discussions. 
We expect that the adjudicator will be able to resolve such issues on a 
case-by-case basis. We believe our proposed rule revision will ensure 
that program carriage complaints are filed on a timely basis and will 
provide certainty to both MVPDs and prospective complainants. We 
propose that this revised statute of limitations will replace Sec.  
76.1302(f) in its entirety, thereby providing for one broad rule 
covering all program carriage claims. Alternatively, we could replace 
only Sec.  76.1302(f)(3) with this revised statute of limitations and 
retain Sec.  76.1302(f)(1) and (f)(2). Because this revised statute of 
limitations would appear to cover the claims referred to in Sec.  
76.1302(f)(1) and (f)(2), however, replacing Sec.  76.1302(f) in its 
entirety appears to be warranted. We ask parties to comment on this 
issue.
    4. To the extent we retain Sec.  76.1302(f)(1), we propose to make 
a minor clarification. As amended in the 1998 Biennial Regulatory 
Review Order, the rule currently provides that a complaint must be 
filed within one year of the date when a ``multichannel video 
programming distributor enters into a contract with a video programming 
distributor'' that a party alleges to

[[Page 60678]]

violate one or more of the program carriage rules. The program carriage 
statute and rules, however, pertain to contracts, and negotiations 
related thereto, between MVPDs and video programming vendors, not 
distributors. Indeed, section 616 of the Act refers to ``video 
programming vendors.'' Consistent with the statute, the previous 
version of this rule adopted in the 1994 Program Carriage Order 
accurately stated that the contract must be entered into with a ``video 
programming vendor,'' not a ``distributor.'' Accordingly, to the extent 
we retain Sec.  76.1302(f)(1), we propose to replace the term ``video 
programming distributor'' with ``video programming vendor.''

B. Discovery

    5. We seek comment on whether to revise our discovery procedures 
for program carriage complaint proceedings in which the Media Bureau 
rules on the merits of the complaint after discovery. As discussed 
above, if the Media Bureau finds that the complainant has established a 
prima facie case but determines that it cannot resolve the complaint 
based on the existing record, the Media Bureau may outline procedures 
for discovery before proceeding to rule on the merits of the complaint 
or it may refer the proceeding or discrete issues raised in the 
proceeding for an adjudicatory hearing before an ALJ. To the extent the 
Media Bureau proceeds to develop discovery procedures, the 1993 Program 
Carriage Order provides that ``[w]herever possible, to avoid discovery 
disputes and arguments pertaining to relevance, the staff will itself 
conduct discovery by issuing appropriate letters of inquiry or 
requiring that specific documents be produced.'' \4\ We seek comment on 
revising the Media Bureau's discovery process for program carriage 
complaints based on the following: (i) Expanded discovery procedures 
(also known as party-to-party discovery) similar to the procedures that 
exist for program access complaints; and (ii) an automatic document 
production process that is narrowly tailored to program carriage 
complaints. This discovery process would be in addition to the Media 
Bureau's ability to order discovery under Sec.  76.7(f). We also seek 
comment on any other approaches to discovery. Our goal is to establish 
a discovery process that ensures the expeditious resolution of 
complaints while also ensuring fairness to all parties.
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    \4\ See 1993 Program Carriage Order, 9 FCC Rcd at 2655-56, para. 
32; see also id. at 2652, para. 23 (providing that discovery will 
``not necessarily be permitted as a matter of right in all cases, 
but only as needed on a case-by-case basis, as determined by the 
staff''); see also 47 CFR 76.7(f).
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1. Expanded Discovery Procedures
    6. We seek comment on whether to adopt expanded discovery 
procedures for program carriage complaint proceedings in which the 
Media Bureau rules on the merits of the complaint after discovery 
similar to the procedures that exist for program access cases. Under 
the current program carriage rules, discovery is Commission-controlled, 
meaning that Media Bureau staff identifies the matters for which 
discovery is needed and then issues letters of inquiry to the parties 
on those matters or requires the parties to produce specific documents 
related to those matters. Under the expanded discovery procedures 
applicable to program access cases, however, discovery is controlled by 
the parties. As an initial matter, the program access rules provide 
that, to the extent the defendant expressly references and relies upon 
a document in asserting a defense or responding to a material 
allegation, the document must be included as part of the answer. In 
addition, parties to a program access complaint may serve requests for 
discovery directly on opposing parties rather than relying on the Media 
Bureau staff to seek discovery through letters of inquiry or document 
requests. The respondent may object to any request for documents that 
are not in its control or relevant to the dispute.\5\ The obligation to 
produce the disputed material is suspended until the Commission rules 
on the objection. Any party who fails to timely provide discovery 
requested by the opposing party to which it has not raised an 
objection, or who fails to respond to a Commission order for discovery 
material, may be deemed in default and an order may be entered in 
accordance with the allegations contained in the complaint, or the 
complaint may be dismissed with prejudice. We seek comment on whether 
these are appropriate discovery procedures for program carriage 
complaints decided on by the Media Bureau after discovery. Is there any 
basis to believe that expanded discovery procedures are appropriate for 
program access cases but not program carriage cases? Will expanded 
discovery procedures hinder the Media Bureau's ability to comply with 
the expedited deadline adopted in the Second Report and Order for the 
resolution of program carriage complaints? \6\ Are the parties to a 
complaint in a better position to determine what information is needed 
to support their cases than Media Bureau staff, thus establishing 
expanded discovery procedures as fairer to all parties than Commission-
controlled discovery? Should we make clear that expanded discovery 
procedures apply to all forms of discovery, including document 
production, interrogatories, and depositions? \7\ We note that, as 
described below, to ensure that confidential information is not 
improperly used for competitive business purposes, we seek comment on 
adopting a more stringent standard protective order and declaration 
than is currently used in program access cases.
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    \5\ See 47 CFR 76.1003(j); 2007 Program Access Order, 22 FCC Rcd 
at 17852, para. 98. We note that a Petition for Reconsideration of 
the 2007 Program Access Order is pending that argues that our rules 
should clarify that a party is able to object based on privilege in 
addition to objecting on the grounds of lack of control or 
relevance. See Fox Entertainment Group, Inc., Petition for 
Reconsideration, MB Docket No. 07-29 (Nov. 5, 2007), at 10.
    \6\ See Second Report and Order in MB Docket No. 07-42, para. 21 
(establishing that, in cases that the Media Bureau decides on the 
merits after discovery, the Media Bureau must issue a decision 
within 150 calendar days after its prima facie determination). We 
note that while the Commission has established aspirational goals 
for the resolution of program access complaints, those deadlines do 
not apply to cases involving complex discovery. See Implementation 
of the Cable Television Consumer Protection and Competition Act of 
1992: Petition for Rulemaking of Ameritech New Media, Inc. Regarding 
Development of Competition and Diversity in Video Programming 
Distribution and Carriage, Report and Order, 13 FCC Rcd 15822, 
15842-43, para. 41 (1998) (``1998 Program Access Order''); see also 
2007 Program Access Order, 22 FCC Rcd at 17857, para. 108 
(reaffirming aspirational goals set forth in the 1998 Program Access 
Order).
    \7\ Compare 1993 Program Carriage Order, 9 FCC Rcd at 2652, 
para. 23 and 2655-56, para. 32 (referring to the Media Bureau's 
ordering of document production and interrogatories) with 47 CFR 
76.7(f)(1) (referring to the Media Bureau's ordering of depositions 
in addition to document production and interrogatories).
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    7. One potential concern with expanded discovery procedures is that 
they will lead to overbroad discovery requests and extended disputes 
pertaining to relevance, which the Commission recognized as a concern 
in the 1993 Program Carriage Order when it allowed for only Commission-
controlled discovery. To ensure an expeditious discovery process, 
should we impose a numerical limit on the number of document requests, 
interrogatories, and depositions a party may request? Should we 
establish specific deadlines for the discovery process in order to 
enable the Media Bureau to meet the 150-calendar-day resolution 
deadline? For example, although not currently specified in our program 
access rules, we seek comment on whether to establish deadlines by when 
parties must submit discovery requests, objections thereto, and replies

[[Page 60679]]

to objections, such as 20, 25, and 30 calendar days respectively after 
the Media Bureau's prima facie determination in which it states that it 
will rule on the merits of the complaint after discovery.\8\ We also 
seek comment on whether to require the parties to meet and confer to 
attempt to mutually resolve their discovery disputes and to submit a 
joint comprehensive discovery proposal to the Media Bureau within 40 
calendar days after the Media Bureau's prima facie determination, with 
any remaining unresolved issues to be ruled on by the Media Bureau. We 
also seek input on whether to establish a firm deadline for when 
discovery must be completed, such as 75 calendar days after the Media 
Bureau's prima facie determination, and for the submission of post-
discovery briefs and reply briefs, such as 20 calendar days and ten 
calendar days, respectively, after the conclusion of discovery.\9\ With 
these deadlines, the Media Bureau would have 45 days to prepare and 
release a decision on the merits.
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    \8\ As discussed above, after finding that the complainant has 
established a prima facie case, the Media Bureau could rule on the 
merits of a complaint based on the pleadings without discovery. See 
Second Report and Order in MB Docket No. 07-42, para. 21. The 
deadlines related to discovery discussed here would be triggered 
only if the Media Bureau's decision finding that the complainant has 
established a prima facie case states that the Media Bureau will 
issue a ruling on the merits of the complaint after discovery.
    \9\ See 47 CFR 76.7(e)(3) (stating that 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).
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2. Automatic Document Production
    8. In addition to expanded discovery procedures, we seek comment on 
an automatic document production process that is narrowly tailored to 
the issues raised in program carriage complaints. Under this approach, 
if the Media Bureau issues a decision finding that a complaint contains 
sufficient evidence to establish a prima facie case and stating that it 
will rule on the merits of the complaint after discovery, both parties 
would have a certain period of time to produce basic threshold 
documents listed in the Commission's rules that are relevant to the 
program carriage claim at issue. The Commission adopted a similar 
approach for comparative broadcast proceedings involving applications 
for new facilities. Under those procedures, after the issuance of an 
HDO, applicants were required to produce documents enumerated in a 
standardized document production order set forth in the Commission's 
rules. The Commission adopted this approach because it would result in 
``substantial time savings.'' \10\ Should we establish a similar 
approach for program carriage cases? We believe that this process could 
work in conjunction with the expanded discovery procedures outlined 
above. For example, within ten calendar days after the Media Bureau 
issues a decision finding that the complaint contains sufficient 
evidence to establish a prima facie case and stating that it will rule 
on the merits of the complaint after discovery, both parties would 
produce the documents in the automatic document production list set 
forth in the Commission's rules for the specific program carriage claim 
at issue.\11\ Is this a sufficient amount of time for production, 
considering that the required documents will be listed in our rules and 
thus parties will have advanced notice as to what documents must be 
produced? Based on the documents produced, the parties would then 
proceed to request additional discovery pursuant to the deadlines set 
forth above (i.e., discovery requests, objections thereto, and 
responses to objections would be due 20, 25 and 30 calendar days 
respectively after the Media Bureau's prima facie determination). To 
the extent that we do not adopt automatic document production, the 
initial ten-day production period would not be required; thus, we also 
seek comment on more expeditious deadlines for submitting discovery 
requests, objections thereto, and responses to objections in the event 
we do not adopt automatic document production.
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    \10\ See 1990 Comparative Hearing Order, 5 FCC Rcd 157, para. 
25; see also id. at para. 27 (``With the early provision of the 
information required in the standardized document production order 
and the uniform integration statement, we would expect that the 
remainder of the discovery process could be expedited.'').
    \11\ As discussed above, after finding that the complainant has 
established a prima facie case, the Media Bureau might rule on the 
merits of a complaint based on the pleadings without discovery. See 
Second Report and Order in MB Docket No. 07-42, para. 21. The 
deadlines related to automatic document production discussed here 
would be triggered only if the Media Bureau's decision finding that 
the complainant has established a prima facie case states that the 
Media Bureau will issue a ruling on the merits of the complaint 
after discovery.
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    9. We seek input on whether automatic document production will 
result in substantial time savings and thereby more expeditious 
resolution of program carriage complaints. We ask commenters to 
consider the following ways in which automatic document production 
might expedite discovery. First, by establishing that certain documents 
are relevant for a program carriage claim, automatic document 
production should reduce delay resulting from debates over relevancy. 
Second, automatic document production should enable the parties to 
identify early in the discovery process any individuals they seek to 
depose. Third, by providing advanced notice of documents that are 
relevant, parties should have sufficient time to gather these documents 
and to produce them promptly. Fourth, automatic document production may 
prevent delays in obtaining any necessary third-party consent. 
Production of certain documents, such as programming contracts, may 
require third-party consent before disclosure, resulting in a delay in 
the production of documents. The automatic document production list 
should help address this concern by providing the parties with advanced 
notice that they may have to produce certain documents in the event of 
a prima facie finding, thus providing parties with time to secure any 
required third-party consents. Are there any other advantages or 
disadvantages with an automatic document production process?
    10. To the extent we adopt an automatic document production 
process, we seek comment on what documents must be produced. The types 
of documents will necessarily vary based on whether the claim is a 
violation of the financial interest, exclusivity, or discrimination 
provision. Below we suggest some documents that might be considered 
sufficiently relevant to include in the automatic document production 
list. We seek comment on whether specific documents should be added or 
removed.
Financial Interest Claim
     All documents relating to carriage or requests for 
carriage of the video programming at issue in the complaint by the 
defendant MVPD;
     All documents relating to the defendant MVPD's interest in 
obtaining or plan to obtain a financial interest in the complainant or 
the video programming at issue in the complaint; and
     All documents relating to the programming vendor's 
consideration of whether to provide the defendant MVPD with a financial 
interest in the complainant or the video programming at issue in the 
complaint.
Exclusivity Claim
     All documents relating to carriage or requests for 
carriage of the video programming at issue in the complaint by the 
defendant MVPD;

[[Page 60680]]

     All documents relating to the defendant MVPD's interest in 
obtaining or plan to obtain exclusive rights to the video programming 
at issue in the complaint; and
     All documents relating to the programming vendor's 
consideration of whether to provide the defendant MVPD with exclusive 
rights to the video programming at issue in the complaint.
Discrimination Claim
     All documents relating to the defendant MVPD's carriage 
decision with respect to the complainant's video programming at issue 
in the complaint, including (i) the defendant MVPD's reasons for not 
carrying the video programming or the defendant MVPD's reasons for 
proposing, rejecting, or accepting specific carriage terms; and (ii) 
the defendant MVPD's evaluation of the video programming;
     All documents comparing, discussing the similarities or 
differences between, or discussing the extent of competition between 
the complainant's video programming at issue in the complaint and the 
allegedly similarly situated, affiliated video programming, including 
in terms of genre, ratings, license fee, target audience, target 
advertisers, and target programming;
     All documents relating to the impact of defendant MVPD's 
carriage decision on the ability of the complainant, the complainant's 
video programming at issue in the complaint, the defendant MVPD, and 
the allegedly similarly situated, affiliated video programming to 
compete, including the impact on (i) subscribership; (ii) license fee 
revenues; (iii) advertising revenues; (iv) acquisition of advertisers; 
and (v) acquisition of programming rights;
     For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, all documents (both internal documents as well as 
documents received from MVPDs, but limited to the ten largest MVPDs in 
terms of subscribers with which the complainant or the affiliated 
programming vendor have engaged in carriage discussions regarding the 
video programming) discussing the reasons for the MVPD's carriage 
decisions with respect to the video programming, including (i) the 
MVPD's reasons for not carrying the video programming or the MVPD's 
reasons for proposing, rejecting, or accepting specific carriage terms; 
and (ii) the MVPD's evaluation of the video programming; and
     For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, current affiliation agreements with the ten largest MVPDs 
(including, if not otherwise covered, the defendant MVPD) carrying the 
video programming in terms of subscribers.
    11. Should our rules limit the automatic production of documents to 
those generated or received after a certain date, such as within three 
years prior to the complaint? Should our rules require the parties to 
establish a privilege log describing the documents that have been 
withheld along with support for any claim of privilege? Should we 
specify in our rules that the Media Bureau has the discretion to add or 
remove documents from this automatic production list based on the 
specific facts of a case when issuing its prima facie decision? Rather 
than specifying a list of documents in our rules, should we instead 
require the Media Bureau when issuing a prima facie decision to order 
the production of documents based on the specific facts of the case? 
Will this eliminate the benefits of advanced notice discussed above?
3. Protective Orders
    12. We note that one source of delay in the discovery process is 
the need for the parties to negotiate and obtain approval of a 
protective order before producing confidential information. For program 
access cases, we have established a standard protective order and 
declaration.\12\ While parties to program access cases are free to 
negotiate their own protective order, they may also rely upon this 
standard protective order. We seek comment on whether the program 
access protective order is sufficiently stringent to ensure that 
confidential information is not improperly used for competitive 
business purposes, or whether we should adopt a more stringent standard 
protective order for program carriage cases. To the extent commenters 
have specific concerns with using the program access standard 
protective order and declaration for program carriage cases, we ask 
that they propose specific changes and an explanation of their reason 
for their proposed changes.\13\ If parties to a program carriage 
complaint are unable to mutually agree to their own protective order 
prior to the ten-day automatic production deadline discussed above, 
should the parties be deemed to have agreed to the standard protective 
order, thereby allowing document production to proceed? To the extent 
that the automatic document production list or discovery in general 
requires production of documents, such as programming contracts, that 
require third-party consent before disclosure, does the standard 
protective order address reasonable concerns commonly expressed by 
third parties or should specific provisions be added to address those 
concerns? Are there any other actions we can take to prevent third-
party consent requirements from delaying the completion of discovery?
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    \12\ See 47 CFR 76.1003(k); 2007 Program Access Order, 22 FCC 
Rcd at 17853-55, paras. 100-103 and Appendix E, 17894-99.
    \13\ We note that a Petition for Reconsideration of the 2007 
Program Access Order is pending that argues that the standard 
protective order should include a mechanism whereby a party can 
object to a specific individual seeking access to confidential 
information; should allow only outside counsel to access certain 
information; and should provide the parties with the right to 
prohibit copying of highly sensitive documents. See Fox 
Entertainment Group, Inc., Petition for Reconsideration, MB Docket 
No. 07-29 (Nov. 5, 2007), at 8-10.
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4. Use of Discovery Procedures in Program Carriage Cases Referred to an 
ALJ
    13. We also seek comment on the extent to which any of the 
discovery proposals outlined above should apply to program carriage 
complaints referred to an ALJ. As an initial matter, we note that cases 
referred to an ALJ generally involve a hearing, which raises additional 
complexities not applicable to cases handled by the Media Bureau. 
Moreover, our rules set forth specific discovery procedures applicable 
to adjudicatory proceedings conducted before an ALJ and also provide 
the ALJ with authority to ``[r]egulate the course of the hearing.'' 
Nonetheless, we seek comment as to whether and how the discovery 
deadlines suggested above, the automatic document production lists, or 
the model protective order might be used in conjunction with program 
carriage complaints referred to an ALJ.

C. Damages

    14. We propose to adopt rules allowing for the award of damages for 
violations of the program carriage rules that are identical to those 
adopted for program access cases. Section 616(a)(5) of the Act directs 
the Commission to adopt regulations that ``provide for appropriate 
penalties and remedies for violations of [section 616], including 
carriage.'' Although the program carriage statute does not explicitly 
direct the Commission to allow for the award of damages as a remedy for 
a program carriage violation, the statute does require the Commission 
to adopt ``appropriate * * * remedies.'' \14\ The

[[Page 60681]]

Commission has interpreted this same term as used in the program access 
statute \15\ as broad enough to include a remedy of damages, stating 
that:

    \14\ In the 1993 Program Carriage Order, the Commission stated 
that it would ``determine the appropriate relief for program 
carriage violations on a case-by-case basis'' and that available 
remedies and sanctions ``include forfeitures, mandatory carriage, or 
carriage on terms revised or specified by the Commission,'' but did 
not explicitly include or exclude damages. 1993 Program Carriage 
Order, 9 FCC Rcd at 2653, para. 26.
    \15\ 47 U.S.C. 548(e)(1) (``Upon completion of such adjudicatory 
proceeding, the Commission shall have the power to order appropriate 
remedies, including, if necessary, the power to establish prices, 
terms, and conditions of sale of programming to the aggrieved 
multichannel video programming distributor.'') (emphasis added). 
Although the Commission initially concluded that it did not have 
authority to assess damages in program access cases, it later 
reversed that decision. Compare Implementation of Sections 12 and 19 
of the Cable Television Consumer Protection and Competition Act of 
1992: Development of Competition and Diversity in Video Programming 
Distribution and Carriage, First Report and Order, 8 FCC Rcd 3359, 
3392, para. 81 (1993) (``1993 Program Access Order'') with 
Implementation of Sections 12 and 19 of the Cable Television 
Consumer Protection and Competition Act of 1992: Development of 
Competition and Diversity in Video Programming Distribution and 
Carriage, Memorandum Opinion and Order on Reconsideration of the 
First Report and Order, 10 FCC Rcd 1902, 1910-11, para. 17 (1994) 
(``1994 Program Access Reconsideration Order'').

    Although petitioners are correct that the statute does not 
expressly use the term ``damages,'' it does expressly empower the 
Commission to order ``appropriate remedies.'' Because the statute 
does not limit the Commission's authority to determine what is an 
appropriate remedy, and damages are clearly a form of remedy, the 
plain language of this part of section 628(e) is consistent with a 
finding that the Commission has authority to afford relief in the 
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form of damages.\16\

    \16\ See 1994 Program Access Reconsideration Order, 10 FCC Rcd 
at 1910-11, para. 17; see also 1998 Program Access Order, 13 FCC Rcd 
at 15831-32, paras. 14-15 (reaffirming the Commission's statutory 
authority to award damages in program access cases). Although the 
Commission held that it had authority to award damages in program 
access cases, it initially elected not to exercise that authority, 
finding that other sanctions available to the Commission were 
sufficient to deter entities from violating the program access 
rules. See 1994 Program Access Reconsideration Order, 10 FCC Rcd at 
1911, para. 18. The Commission later adopted rules allowing for the 
award of damages in program access cases, stating that 
``[r]estitution in the form of damages is an appropriate remedy to 
return improper gains.'' 1998 Program Access Order, 13 FCC Rcd at 
15833, para. 17. We note that the Commission has held that section 
325(b)(3)(C) of the Act pertaining to retransmission consent 
negotiations, which does not contain the same ``appropriate 
remedies'' language, does not authorize the award of damages. See 
Implementation of the Satellite Home Viewer Improvement Act of 1999; 
Retransmission Consent Issues: Good Faith Negotiation and 
Exclusivity, First Report and Order, 15 FCC Rcd 5445, 5480, para. 82 
(2000) (``We can divine no intent in section 325(b)(3)(C) to impose 
damages for violations thereof * * *. Commenters' reliance on the 
program access provisions as support for a damages remedy in this 
context is misplaced. The Commission's authority to impose damages 
for program access violations is based upon a statutory grant of 
authority.'').
---------------------------------------------------------------------------

We seek comment on whether the Commission has authority to award 
damages in program carriage cases under the same analysis.
    15. We believe that allowing for the award of damages would be 
useful in deterring program carriage violations and promoting 
settlement of any disputes. We seek comment on this view. If we adopt 
rules allowing for the award of damages in program carriage cases, we 
propose to apply the same policies that apply in program access cases. 
In the program access context, the Commission has stated that damages 
would not promote competition or otherwise benefit the video 
marketplace in cases where a defendant relies upon a good faith 
interpretation of an ambiguous aspect of our rules for which there is 
no guidance. Conversely, the Commission has explained that damages are 
appropriate when a defendant knew or should have known that its conduct 
would violate the rules. We request comment on this approach. In 
addition, consistent with our program access rules, we propose to adopt 
rules allowing for the award of compensatory damages in program 
carriage cases. We do not propose to allow for awards of attorney's 
fees. We seek comment on whether the Commission has legal authority to 
make awards of punitive damages. Section 616(a)(5) of the Act directs 
the Commission to adopt regulations that ``provide for appropriate 
penalties.'' Courts have recognized that ``penalties'' may take various 
forms, including punitive damages, fines, and statutory penalties, all 
of which are aimed at deterring wrongful conduct. We note, however, 
that the Commission previously declined to allow for the award of 
punitive damages in program access cases.\17\ We seek comment on 
whether there is any basis for awarding punitive damages in program 
carriage cases but not in program access cases. To what extent would 
the potential award of punitive damages help to deter program carriage 
violations and promote settlement of any disputes?
---------------------------------------------------------------------------

    \17\ The Commission based its decision to decline to allow for 
the award of punitive damages in program access cases based on a 
lack of record evidence regarding the need for this type of damages. 
See 1998 Program Access Order, 13 FCC Rcd at 15834, para. 21.
---------------------------------------------------------------------------

    16. We note that the Commission has also adopted specific 
procedures for requesting and awarding damages in program access cases. 
We propose to apply these same procedures to the award of damages in 
the program carriage context. While we briefly summarize some of these 
procedures here, we encourage commenters to review these procedures in 
their entirety as set forth in Sec.  76.1003(d) and 76.1003(h)(3) of 
the Commission's rules and the 1998 Program Access Order to determine 
whether they are appropriate for program carriage cases. Under the 
program access rules, a complainant seeking damages must provide in its 
complaint either (i) a detailed computation of damages (the ``damages 
calculation''); or (ii) an explanation of the information that is not 
in its possession and needed to compute damages, why such information 
is unavailable to the complainant, the factual basis the complainant 
has for believing that such evidence of damages exists, and a detailed 
outline of the methodology that would be used to compute damages with 
such evidence (the ``damages computation methodology''). The burden of 
proof regarding damages rests with the complainant. The procedures 
provide for the bifurcation of the program access violation 
determination from the damages determination. In ruling on whether 
there has been a program access violation, the Media Bureau is required 
to indicate in its decision whether damages are appropriate. The 
Commission's aspirational deadline for resolving the program access 
complaint applies solely to the program access violation determination 
and not to the damages determination. The Commission has explained that 
the appropriate date from which damages accrue is the date on which the 
violation first occurred, and that the burden is on the complainant to 
establish this date. Moreover, based on the one-year limitations period 
for bringing program access complaints, the Commission has explained 
that it will not entertain damages claims asserting injury pre-dating 
the complaint by more than one year. In cases in which the complainant 
has submitted a damages calculation and the Media Bureau approves or 
modifies the calculation, the defendant is required to compensate the 
complainant as directed in the Media Bureau's order. In cases in which 
the complainant has submitted a damages computation methodology and the 
Media Bureau approves or modifies the methodology, the parties are 
required to negotiate in good faith to reach an agreement on the exact 
amount of damages pursuant to the methodology. We seek comment on the 
appropriateness of adopting similar rules in the program carriage 
context.
    17. We also propose to adopt similar procedures for requesting the 
application of new prices, terms, and conditions in the event an 
adjudicator

[[Page 60682]]

reaches a decision on the merits of a program carriage complaint after 
the Media Bureau issues a standstill order. In the Second Report and 
Order in MB Docket No. 07-42, we adopted specific procedures for the 
Media Bureau's consideration of requests for a temporary standstill of 
the price, terms, and other conditions of an existing programming 
contract by a program carriage complainant seeking renewal of such a 
contract. If the Media Bureau grants the temporary standstill, the 
rules adopted provide that the adjudicator ruling on the merits of the 
complaint will apply the terms of the new agreement between the 
parties, if any, as of the expiration date of the previous agreement. 
We noted that application of new terms may be difficult in some cases, 
such as if carriage of the video programming has continued 
uninterrupted during resolution of the complaint as a result of the 
Media Bureau's standstill order, but the decision on the merits 
provides that the defendant MVPD may discontinue carriage. While we 
believe the adjudicator can address these issues on a case-by-case 
basis in the absence of a new rule on this point, adoption of specific 
procedures addressing compensation of the parties during the standstill 
period, if any, may facilitate the expeditious resolution of these 
issues. For example, should a defendant MVPD that ultimately prevails 
on the merits nonetheless be required to pay for carriage during the 
standstill period? Should we assume that the previously negotiated 
carriage fees reflected in the parties' expired agreement represent 
reasonable compensation for the carriage of the programming during the 
standstill period? We propose to adopt procedures similar to those set 
forth above for requesting damages. Specifically, in the event the 
Media Bureau has issued a standstill order, the adjudicator after 
reaching a decision on the merits may request the prevailing party to 
submit either (i) a detailed computation of the fees and/or 
compensation it believes it is owed during the standstill period based 
on the new prices, terms, and conditions ordered by the adjudicator 
(the ``true-up calculation''); or (ii) a detailed outline of the 
methodology used to calculate the fees and/or compensation it believes 
it is owed during the standstill period based on the new prices, terms, 
and conditions ordered by the adjudicator (the ``true-up computation 
methodology''). The burden of proof would rest with the party seeking 
compensation during the standstill period based on the new prices, 
terms, and conditions. In cases in which the adjudicator approves or 
modifies a prevailing party's true-up calculation, the opposing party 
would be required to compensate the prevailing party as directed in the 
adjudicator's order. In cases in which the adjudicator approves or 
modifies a true-up computation methodology, the parties would be 
required to negotiate in good faith to reach an agreement on the exact 
amount of compensation pursuant to the methodology. We seek comment on 
this approach.

D. Submission of Final Offers

    18. Among the remedies an adjudicator can order for a program 
carriage violation is the establishment of prices, terms, and 
conditions for the carriage of a complainant's video programming.\18\ 
To the extent that the adjudicator orders this remedy, we propose to 
adopt a rule providing that the adjudicator will have the discretion to 
order each party to submit their ``final offer'' for the rates, terms, 
and conditions for the video programming at issue.\19\ In previous 
merger orders, the Commission has explained that requiring parties to a 
programming dispute to submit their final offer for carriage and 
requiring the adjudicator to select the offer that most closely 
approximates fair market value ``has the attractive `ability to induce 
two sides to reach their own agreement, lest they risk the possibility 
that a relatively extreme offer of the other side may be selected * * 
*.' '' We seek comment on the extent to which providing the adjudicator 
with the discretion to require the parties to submit final offers will 
encourage the parties to resolve their differences through settlement 
and will assist the adjudicator in crafting an appropriate remedy 
should the parties not settle their dispute.\20\ We also seek comment 
on whether submission of final offers will enable the adjudicator to 
reach a more expeditious resolution of the complaint.
---------------------------------------------------------------------------

    \18\ See 47 CFR 76.1302(g)(1); 1993 Program Carriage Order, 9 
FCC Rcd at 2653, para. 26 (``Available remedies and sanctions 
include forfeitures, mandatory carriage, or carriage on terms 
revised or specified by the Commission.''). This rule will now 
appear at Sec.  76.1302(j)(1) once the amendments adopted in the 
Second Report and Order in MB Docket No. 07-42 take effect.
    \19\ See Reexamination of Roaming Obligations of Commercial 
Mobile Radio Service Providers and Other Providers of Mobile Data 
Services, Second Report and Order, FCC 11-52, para. 79 (2011) 
(stating that, when considering the commercial reasonableness of the 
terms and conditions of a proffered data roaming arrangement, the 
Commission staff may, in resolving such a claim, require both 
parties to provide to the Commission their best and final offers 
that were presented during the negotiation).
    \20\ See Comcast Reply at 34 n.116 (noting practical concerns 
with a mandatory carriage remedy).
---------------------------------------------------------------------------

    19. To the extent the adjudicator requests the submission of final 
offers, we seek comment on whether the adjudicator should be required 
to select one of the parties' final offers as the remedy or whether the 
adjudicator should have the discretion to craft a remedy that combines 
elements of both final offers or contains other terms that the 
adjudicator finds to be appropriate. While requiring the adjudicator to 
select one of the final offers might be more effective in encouraging 
the parties to submit reasonable offers and promoting a settlement, we 
expect that providing the adjudicator with the discretion to craft a 
remedy combining elements of both final offers (e.g., the rate in one 
offer and the contract term in the other offer) or other terms that the 
adjudicator finds to be appropriate will provide greater flexibility, 
possibly resulting in a more appropriate remedy. We seek comment on the 
ramifications of each approach. We also seek comment on when the 
adjudicator should solicit final offers to the extent the adjudicator 
exercises the discretion to do so. As in the case of damages discussed 
above, should the adjudicator bifurcate the program carriage violation 
determination from the remedy phase to facilitate the submission of 
final offers, similar to the way damages are handled in program access 
cases?

E. Mandatory Carriage Remedy

    20. The program carriage rules provide that the remedy ordered by 
the Media Bureau or ALJ is effective upon release of the decision, 
except when the adjudicator orders mandatory carriage that will require 
the defendant MVPD to ``delete existing programming from its system to 
accommodate carriage'' of a programming vendor's video programming.\21\ 
In such a case, if the defendant MVPD seeks Commission review of the 
decision, the mandatory carriage remedy does not take effect unless and 
until the decision is upheld by the Commission. If the Commission 
upholds in its entirety the relief granted by the adjudicator, the 
defendant MVPD is required to carry the video programming at issue in 
the complaint for an additional time period beyond that originally 
ordered by the

[[Page 60683]]

adjudicator, equal to the amount of time that elapsed between the 
adjudicator's decision and the Commission's final decision, on the 
terms ordered by the adjudicator and upheld by the Commission. One 
potential benefit of this rule is that it ensures that consumers do not 
lose programming carried by their MVPD in the event a Media Bureau or 
ALJ decision granting carriage is ultimately overturned by the 
Commission.
---------------------------------------------------------------------------

    \21\ See 47 CFR 76.1302(g)(1); 1993 Program Carriage Order, 9 
FCC Rcd at 2656, para. 33 (discussing mandatory carriage remedy in 
cases ruled on by Media Bureau); id. at 2656, para. 34 (discussing 
mandatory carriage remedy in cases ruled on by ALJ). This rule will 
now appear at Sec.  76.1302(j)(1) once the amendments adopted in the 
Second Report and Order in MB Docket No. 07-42 take effect.
---------------------------------------------------------------------------

    21. As an initial matter, we seek comment on the need for this 
rule. We note that any party can seek a stay of a Media Bureau or ALJ 
decision while a review is pending before the Commission.\22\ Is it 
necessary to have a rule specific to program carriage complaints that 
allows only the defendant MVPD to avoid the need to seek a stay? Should 
a similar rule apply if a programming vendor's video programming will 
be deleted from the defendant MVPD's system as a result of a Media 
Bureau or ALJ decision, thereby resulting in lost video programming for 
consumers? For example, if the Media Bureau grants a standstill for a 
complainant programming vendor seeking renewal of an existing contract 
but the adjudicator rules on the merits that the defendant MVPD's 
decision to delete the video programming does not violate the program 
carriage rules, should that ruling take effect only if the decision is 
upheld by the Commission?
---------------------------------------------------------------------------

    \22\ See Brunson Commc'ns, Inc. v. RCN Telecom. Servs. Inc., 
Memorandum Opinion and Order, 15 FCC Rcd 12883 (CSB 2000) (granting 
stay request pending action on Application for Review); see also 47 
CFR 76.10(c)(2). To obtain a stay, a petitioner must demonstrate 
that (i) it is likely to prevail on the merits; (ii) it will suffer 
irreparable harm absent a stay; (iii) grant of a stay will not 
substantially harm other interested parties; and (iv) the public 
interest favors grant of a stay. See, e.g., Virginia Petroleum 
Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (DC Cir. 1958); see also 
Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 559 
F.2d 841 (DC Cir. 1977) (clarifying the standard set forth in 
Virginia Petroleum Jobbers Ass'n v. FPC); Hispanic Information and 
Telecomm. Network, Inc., 20 FCC Rcd 5471, 5480, para. 26 (2005) 
(affirming Bureau's denial of request for stay on grounds applicant 
failed to establish four criteria demonstrating stay is warranted).
---------------------------------------------------------------------------

    22. To the extent that we retain Sec.  76.1302(g)(1), we are 
concerned that the rule is unclear with respect to the type of showing 
a defendant MVPD must make to satisfy the rule and thereby delay the 
effectiveness of the remedy. We propose to amend this rule to clarify 
that the defendant MVPD must make a sufficient evidentiary showing to 
the adjudicator demonstrating that it would be required to delete 
existing programming to accommodate the video programming at issue in 
the complaint. As in the case of damages and submission of final offers 
discussed above, should the adjudicator bifurcate the program carriage 
violation determination from the remedy phase to allow for the 
defendant MVPD's evidentiary showing on this issue?
    23. We also seek comment on whether we should clarify what 
``deletion'' of existing programming means in this context. For 
example, if the mandatory carriage remedy forces the defendant MVPD to 
move existing programming to a less-penetrated tier but does not force 
the defendant MVPD to remove the programming from its channel line-up 
entirely, should that be considered ``deletion'' of existing 
programming? While we expect that an adjudicator can resolve such 
issues on a case-by-case basis,\23\ should we provide specific guidance 
in our rules as to what constitutes ``deletion''? Would providing 
guidance on this issue avoid the need for the adjudicator to make a 
case-by-case determination and thereby lead to a more expeditious and 
consistent resolution of program carriage complaints?
---------------------------------------------------------------------------

    \23\ See Tennis Channel HDO, 25 FCC Rcd at 14163, para. 24 n.120 
(directing the ALJ to determine whether a remedy requiring a 
defendant MVPD to carry the complainant programming vendor's video 
programming on a specific tier or to a specific number or percentage 
of subscribers would ``require [the defendant MVPD] to delete 
existing programming from its system to accommodate carriage of'' 
the complainant programming vendor's video programming).
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F. Retaliation

    24. Programming vendors have expressed concern that MVPDs will 
retaliate against them for filling program carriage complaints. They 
state that the fear of retaliation is preventing programming vendors 
from filing legitimate program carriage complaints. As an initial 
matter, we note that the standstill procedure we adopt in the Second 
Report and Order in MB Docket No. 07-42 will help to prevent 
retaliation in part while a program carriage complaint is pending. If 
granted, the standstill will keep in place the price, terms, and other 
conditions of an existing programming contract during the pendency of 
the complaint, thus preventing the defendant MVPD from taking adverse 
action during this time against the programming vendor with respect to 
the video programming at issue in the complaint. We seek comment on 
whether there are any circumstances in the program carriage context in 
which the Commission's authority to issue temporary standstill orders 
is statutorily or otherwise limited.\24\
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    \24\ See NCTA July 1 2011 Ex Parte Letter at 1 (citing 47 U.S.C. 
544(f)(1)). But see United Video, Inc. v. FCC, 890 F.2d 1173, 1189 
(DC Cir. 1989) (``The House report [to section 624(f)] suggests that 
Congress thought a cable company's owners, not government officials, 
should decide what sorts of programming the company would provide. 
But it does not suggest a concern with regulations of cable that are 
not based on the content of cable programming, and do not require 
that particular programs or types of programs be provided.'').
---------------------------------------------------------------------------

    25. Programming vendors' concerns regarding retaliation, however, 
extend beyond the period while a complaint is pending and beyond the 
particular programming that is the subject of the complaint. They fear 
that an MVPD will seek to punish a programming vendor for availing 
itself of the program carriage rules after the complaint has been 
resolved. Another potential form of retaliation could impact 
programming vendors owning more than one video programming network. For 
example, if a programming vendor owning more than one video programming 
network brings a program carriage complaint involving one particular 
video programming network, the defendant MVPD could potentially take a 
retaliatory adverse carriage action involving another video programming 
network owned by the programming vendor.
    26. We seek comment on the extent to which retaliation has occurred 
in the past. We note that eleven program carriage complaints have been 
filed since the Commission adopted its program carriage rules in 1993. 
Have any of the complainants experienced retaliation by MVPDs? Have any 
other programming vendors experienced retaliation by MVPDs for merely 
suggesting that they might avail themselves of the program carriage 
rules? We note that examples of actual retaliation or threats of 
retaliation will assist in developing a record on whether and how to 
address concerns regarding retaliation.
    27. We also seek comment on what measures the Commission should 
take to address retaliation. As an initial matter, we believe that 
retaliation may be addressed in some cases through a program carriage 
complaint alleging discrimination on the basis of affiliation. For 
example, if an MVPD takes an adverse carriage action against a 
programming vendor after the vendor files a complaint, the programming 
vendor may have a legitimate discrimination complaint if it can 
establish a prima facie case of discrimination on the basis of 
affiliation, such as by showing that the defendant MVPD treated its 
similarly situated, affiliated video programming differently.\25\ If 
the case proceeds to the

[[Page 60684]]

merits, the defendant MVPD obviously could not defend its action by 
claiming it was motivated by a desire to retaliate against the 
programming vendor.
---------------------------------------------------------------------------

    \25\ See Second Report and Order in MB Docket No. 07-42, para. 
14 (discussing evidence required to establish a prima face case of a 
violation of the discrimination provision). The complaint must also 
contain evidence that the defendant MVPD's conduct has the effect of 
unreasonably restraining the ability of the complainant programming 
vendor to compete fairly. See Second Report and Order in MB Docket 
No. 07-42, para. 15.
---------------------------------------------------------------------------

    28. Addressing retaliation through a discrimination complaint, 
however, is not useful in cases where the defendant MVPD takes 
retaliatory action with respect to video programming affiliated with 
the complainant programming vendor that is not similarly situated to 
video programming affiliated with the defendant MVPD. For example, a 
programming vendor owning an RSN may bring a complaint alleging that 
the defendant MVPD engaged in discrimination on the basis of 
affiliation by refusing to carry the RSN. The defendant MVPD could 
potentially retaliate by refusing to carry a news channel affiliated 
with the complainant programming vendor. To the extent the defendant 
MVPD is not affiliated with a news channel, however, the programming 
vendor would be unable to establish a prima facie case of 
discrimination on the basis of affiliation by showing that the 
defendant MVPD treated its own affiliated news channel differently. To 
address this concern, we seek comment on whether we should adopt a new 
rule prohibiting an MVPD from taking an adverse carriage action against 
a programming vendor because the programming vendor availed itself of 
the program carriage rules. The adverse carriage action could involve 
any video programming owned by or affiliated with the complainant 
programming vendor, not just the particular video programming subject 
to the initial complaint that triggered the retaliatory action. To the 
extent we adopt the automatic document production process described 
above, we seek comment on what documents might be considered 
sufficiently relevant to a retaliation claim to include in the 
automatic document production list.
    29. We seek comment on the extent of our authority to adopt an 
anti-retaliation provision in light of the fact that this program 
carriage practice is not explicitly mentioned in section 616. We note 
that section 616 contains broad language directing the Commission to 
``establish regulations governing program carriage agreements and 
related practices between cable operators or other [MVPDs] and video 
programming vendors'' and then lists six specific requirements that the 
Commission's program carriage regulations ``shall provide for,'' 
``shall contain,'' or ``shall include.'' While there is no specific 
statutory provision prohibiting MVPDs from retaliating against 
programming vendors for filing complaints, the statute does not 
preclude the Commission from adopting additional requirements beyond 
the six listed in the statute. Thus, we believe that we have authority 
to adopt a rule prohibiting retaliatory carriage practices. We seek 
comment on this interpretation. To the extent any new substantive 
program carriage requirement must be based on one of the six 
requirements listed in the statute, does the discrimination provision 
in section 616(a)(3) provide the statutory basis for an anti-
retaliation rule? For example, we foresee that only a programming 
vendor that is unaffiliated with the defendant MVPD would bring a 
program carriage complaint against that MVPD; thus, absent such non-
affiliation, a complaint would not have been filed and the MVPD would 
have no basis to retaliate. Thus, does an MVPD's decision to take a 
retaliatory adverse carriage action against a programming vendor 
specifically because the programming vendor availed itself of the 
program carriage rules amount to ``discrimination on the basis of 
affiliation or non-affiliation''? To the extent our authority to 
address retaliation is based on the discrimination provision in section 
616(a)(3), would the complainant also need to establish that the 
retaliatory adverse carriage action ``unreasonably restrain[ed] the 
ability of [the programming vendor] to compete fairly''? Does this 
limit the practical effect of the anti-retaliation provision by 
authorizing MVPDs to take retaliatory actions that fall short of an 
unreasonable restraint on the programming vendor's ability to compete 
fairly?
    30. We seek comment on the practical impact of an anti-retaliation 
provision given that acts of retaliation are unlikely to be overt. That 
is, while an MVPD could potentially take a retaliatory adverse carriage 
action against a programming vendor following the filing of a 
complaint, it is highly doubtful that the defendant MVPD will inform 
the programming vendor that its action was motivated by retaliation. We 
seek comment on how programming vendors could bring legitimate 
retaliation complaints in the absence of direct evidence of 
retaliation. For example, should we establish as a prima facie 
violation of the anti-retaliation rule any adverse carriage action 
taken by a defendant MVPD against a complainant programming vendor 
(other than the action at issue in the initial program carriage 
complaint) that occurs while a program carriage complaint is pending or 
within two years after the complaint is resolved on the merits? We seek 
comment on whether two years would be the appropriate time period. In 
establishing this time period, we seek to capture the period during 
which the defendant MVPD can reasonably be expected to have an 
incentive to retaliate while at the same time ensuring that we do not 
unduly hinder the defendant MVPD's legitimate carriage decisions with 
respect to the complainant programming vendor.
    31. As discussed above, a finding of a prima facie violation does 
not resolve the merits of the case nor does it mean that the defendant 
has violated the Commission's rules. Rather, it means that the 
complainant has alleged sufficient facts that, if left unrebutted, may 
establish a violation of the program carriage rules and thus parties 
may proceed to discovery (if necessary) and a decision on the merits. 
We do not believe that an anti-retaliation rule should apply to the 
defendant MVPD's action at issue in the initial program carriage 
complaint. For example, if the action at issue in the initial program 
carriage complaint involves the defendant MVPD's decision not to renew 
a contract for the complainant programming vendor's RSN and a 
standstill has not been granted, the action of the defendant MVPD to 
delete the RSN while the complaint is pending would not be a prima 
facie violation of the anti-retaliation rule. If, however, the 
defendant MVPD proceeds to move the complainant programming vendor's 
news channel to a less-penetrated tier after the filing of a complaint 
pertaining to an RSN, this may establish a prima facie violation under 
this rule. We seek comment on the extent to which such a rule would 
encourage the filing of frivolous program carriage complaints by 
programming vendors hoping to take advantage of the anti-retaliation 
rule to prevent MVPDs from taking adverse carriage actions based on 
legitimate business concerns. As set forth above, the rule would apply 
to adverse carriage actions while a complaint is pending or within two 
years after the complaint is resolved on the merits. A frivolous 
complaint would likely be dismissed at the prima facie stage, which the 
Media Bureau must resolve within no more than approximately 140 days 
after the complaint is filed.\26\ Will this limited

[[Page 60685]]

time period, along with our existing prohibition on frivolous 
complaints, deter the filing of frivolous complaints intended to 
wrongly invoke the anti-retaliation rule as a shield against legitimate 
MVPD business decisions?
---------------------------------------------------------------------------

    \26\ See Second Report and Order in MB Docket No. 07-42, para. 
20 (requiring the Media Bureau to release a prima facie 
determination within 60 calendar days after the close of the 80-
calendar-day pleading cycle on a program carriage complaint).
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G. Good Faith Negotiation Requirement

    32. We seek comment on whether to adopt a rule requiring vertically 
integrated MVPDs to negotiate in good faith with an unaffiliated 
programming vendor with respect to video programming that is similarly 
situated to video programming affiliated with the MVPD (or with another 
MVPD \27\). Some programming vendors claim that MVPDs do not overtly 
deny requests for carriage; rather, they claim that MVPDs effectively 
deny carriage and harm programming vendors in more subtle forms, such 
as failing to respond to carriage requests in a timely manner, simply 
ignoring requests to negotiate for carriage, making knowingly 
inadequate counter-offers, or failing to engage in renewal negotiations 
until just prior to the expiration of an existing agreement.\28\ We 
seek comment on the extent to which these concerns are legitimate and 
widespread and whether they would be addressed through the explicit 
good faith negotiation requirement described here for vertically 
integrated MVPDs.\29\
---------------------------------------------------------------------------

    \27\ As discussed below, we seek comment on whether MVPDs favor 
not only their own affiliated programming vendors but also 
programming vendors affiliated with other MVPDs. See infra paras. 
36-42. To the extent this is the case, we seek comment below on 
whether a vertically integrated MVPD must negotiate in good faith 
with an unaffiliated programming vendor with respect to video 
programming that is similarly situated to video programming 
affiliated with the MVPD or with another MVPD. See infra para. 41.
    \28\ See BTNC Comments at 11-12; Outdoor Channel Nov. 16, 2007 
Ex Parte Letter at 1 (stating that MVPD-imposed negotiating delays 
after a prior contract has expired put programmers in the position 
of having to accept uncertain, month-to-month carriage arrangements 
that makes it difficult to invest in content); Hallmark Channel Nov. 
20 Ex Parte Letter at 1 (``[S]ome MVPDs frequently fail to make 
carriage offers or respond to an independent programmer's offers 
until just before an existing agreement is set to expire, 
effectively turning post-expiration carriage into a month-to-month 
proposition.''); see id. (stating that some MVPDs make ``knowingly 
inadequate offers that give the superficial appearance of good faith 
negotiation but that are not intended or expected to be accepted, 
let alone thought responsive to the programmers' offers'' and that 
such practices undercut the ability of the programmer to attract 
investors).
    \29\ See NFL Enterprises Comments at 7 (urging the Commission to 
impose ``on MVPDs the same duty to bargain in good faith that 
currently applies to their retransmission consent negotiations with 
broadcasters'').
---------------------------------------------------------------------------

    33. We note two important limitations on this good faith 
requirement. First, we are not aware of concerns regarding the 
negotiating tactics of non-vertically integrated MVPDs with respect to 
unaffiliated programming vendors. Accordingly, we believe it is 
appropriate to limit a good faith negotiation requirement to vertically 
integrated MVPDs only.\30\ Second, we believe that this good faith 
requirement should extend only to negotiations involving video 
programming that is similarly situated to video programming affiliated 
with the MVPD (or with another MVPD). That is, to the extent that a 
vertically integrated MVPD is engaged in negotiations with an 
unaffiliated programming vendor involving video programming that is not 
similarly situated to video programming affiliated with the MVPD (or 
with another MVPD), there would appear to be no basis to assume that 
the MVPD would seek to favor its own video programming (or video 
programming affiliated with another MVPD) over the unaffiliated 
programming vendor's video programming on the basis of ``affiliation'' 
as opposed to legitimate business reasons. We seek comment on these 
views. Is this approach workable given that the concept of ``similarly 
situated'' is a subjective standard? That is, will an MVPD that does 
not want to carry the video programming simply claim that it does not 
have to negotiate because the video programming is not ``similarly 
situated,'' leaving the programming vendor with claims for both 
discrimination and failure to negotiate in good faith, but not 
materially better off than if it just had the discrimination claim? 
Will this requirement encourage vertically integrated MVPDs to 
negotiate in good faith with both similarly situated and non-similarly 
situated video programming to avoid violating the good faith 
requirement? Will such a requirement unreasonably interfere with 
negotiations and limit the ability of vertically integrated MVPDs to 
pursue legitimate negotiation tactics?
---------------------------------------------------------------------------

    \30\ See Letter from American Cable Association et al. to 
Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (Dec. 10, 
2008) at 2 (stating that non-vertically integrated operators do not 
have any incentive to engage in conduct that would unreasonably 
restrain the ability of independent programmers to compete that 
would warrant changing existing rules to allow programmers to file 
discrimination or good faith complaints against them); Letter from 
John D. Goodman, Broadband Service Providers Association, to Marlene 
H. Dortch, Secretary, FCC, MB Docket No. 07-42 (Dec. 9, 2008) at 2-3 
(stating that non-vertically integrated operators have ``no history 
of discriminating against independent programmers, nor have any 
incentive or ability to do so'').
---------------------------------------------------------------------------

    34. We also seek comment on the extent of our authority to adopt 
this explicit good faith negotiation requirement for vertically 
integrated MVPDs in the program carriage context. As discussed above, 
we seek comment on the extent of our authority to adopt a new 
substantive program carriage rule, such as a good faith requirement, 
considering that this requirement is not explicitly mentioned in 
section 616. Does the general grant of rulemaking authority under 
section 616 provide a sufficient statutory basis for adopting this 
requirement? To the extent any new substantive program carriage 
requirement must be based on one of the six requirements listed in the 
statute, does the discrimination provision in section 616(a)(3) provide 
statutory authority for a good faith negotiation requirement? 
Allegations that a vertically integrated MVPD has not negotiated in 
good faith could form the basis of a legitimate program carriage 
discrimination complaint. For example, to the extent that a vertically 
integrated MVPD carries affiliated video programming but refuses to 
engage in or needlessly delays negotiations with a programming vendor 
with respect to similarly situated, unaffiliated video programming, 
this may reflect discrimination on the basis of affiliation. To the 
extent that such a claim could already be addressed through a 
discrimination complaint, is it necessary to codify the requirement 
described above that vertically integrated MVPDs negotiate in good 
faith? Would codifying this requirement nonetheless provide guidance to 
programming vendors and vertically integrated MVPDs alike that action 
or inaction by a vertically integrated MVPD that effectively amounts to 
a denial of carriage is cognizable under the program carriage rules as 
a form of discrimination on the basis of affiliation? To the extent 
that our authority to adopt the good faith negotiation requirement 
described above would be based on the discrimination provision in 
section 616(a)(3), would the complainant also need to establish that 
the adverse carriage action ``unreasonably restrain[ed] the ability of 
[the programming vendor] to compete fairly''? Does this limit the 
practical effect of a good faith negotiation requirement by authorizing 
vertically integrated MVPDs to engage in bad faith tactics that fall 
short of an unreasonable restraint on the programming vendor's ability 
to compete fairly? To the extent we adopt the automatic document 
production process described above, we seek comment on what documents 
might be considered sufficiently relevant to a good faith claim to 
include

[[Page 60686]]

in the automatic document production list.
    35. To the extent we adopt the explicit good faith negotiation 
requirement for vertically integrated MVPDs described above, should we 
establish specific guidelines for assessing good faith negotiations? 
For example, in the retransmission consent context, the Commission has 
established seven objective good faith negotiation standards, the 
violation of which is considered a per se violation of the good faith 
negotiation obligation.\31\ Should the Commission consider the same 
standards to determine whether a vertically integrated MVPD has 
negotiated in good faith in the program carriage context? Moreover, in 
the retransmission consent context, even if the seven standards are 
met, the Commission may consider whether, based on the totality of the 
circumstances, a party failed to negotiate retransmission consent in 
good faith.\32\ Should a similar policy apply to vertically integrated 
MVPDs in the program carriage context?
---------------------------------------------------------------------------

    \31\ See 47 CFR 76.65(b)(1) (The seven actions or practices that 
violate a duty to negotiate retransmission consent agreements in 
good faith are: ``(i) Refusal by a Negotiating Entity to negotiate 
retransmission consent; (ii) Refusal by a Negotiating Entity to 
designate a representative with authority to make binding 
representations on retransmission consent; (iii) Refusal by a 
Negotiating Entity to meet and negotiate retransmission consent at 
reasonable times and locations, or acting in a manner that 
unreasonably delays retransmission consent negotiations; (iv) 
Refusal by a Negotiating Entity to put forth more than a single, 
unilateral proposal; (v) Failure of a Negotiating Entity to respond 
to a retransmission consent proposal of the other party, including 
the reasons for the rejection of any such proposal; (vi) Execution 
by a Negotiating Entity of an agreement with any party, a term or 
condition of which, requires that such Negotiating Entity not enter 
into a retransmission consent agreement with any other television 
broadcast station or multichannel video programming distributor; and 
(vii) Refusal by a Negotiating Entity to execute a written 
retransmission consent agreement that sets forth the full 
understanding of the television broadcast station and the 
multichannel video programming distributor.''). We note that we are 
currently considering revisions to these rules. See Retransmission 
Consent NPRM, 26 FCC Rcd at 2729-35, paras. 20-30.
    \32\ See 47 CFR 76.65(b)(2) (``In addition to the standards set 
forth in Sec.  76.65(b)(1), a Negotiating Entity may demonstrate, 
based on the totality of the circumstances of a particular 
retransmission consent negotiation, that a television broadcast 
station or multichannel video programming distributor breached its 
duty to negotiate in good faith as set forth in 76.65(a).''). We 
note that we are currently considering revisions to these rules. See 
Retransmission Consent NPRM, 26 FCC Rcd at 2735-37, paras. 31-33.
---------------------------------------------------------------------------

H. Scope of the Discrimination Provision

    36. In the 1993 Program Carriage Order, the Commission interpreted 
the discrimination provision in section 616(a)(3) to require a 
complainant alleging discrimination that favors an ``affiliated'' 
programming vendor to provide evidence that the defendant MVPD has an 
attributable interest in the allegedly favored ``affiliated'' 
programming vendor.\33\ Commenters, however, have claimed that 
vertically integrated MVPDs favor not only their own affiliated 
programming vendors but also programming vendors affiliated with other 
MVPDs.\34\ For example, vertically integrated MVPD A might treat a news 
channel affiliated with MVPD B more favorably than an unaffiliated news 
channel in exchange for MVPD B's reciprocal favorable treatment of MVPD 
A's affiliated sports channel. In this case, the unaffiliated news 
channel would be unable to provide evidence that the defendant MVPD 
(MVPD A) has an attributable interest in the allegedly favored 
programming vendor (the news channel affiliated with MVPD B) as 
required under the 1993 Program Carriage Order. We seek comment on 
whether we should address such situations by interpreting the 
discrimination provision in section 616(a)(3) more broadly to preclude 
a vertically integrated MVPD from discriminating on the basis of a 
programming vendor's lack of affiliation with another MVPD. Similar to 
the discussion above regarding the good faith requirement, we are not 
aware of concerns that a non-vertically integrated MVPD would have an 
incentive to favor an MVPD-affiliated programming vendor over an 
unaffiliated programming vendor based on reasons of ``affiliation'' as 
opposed to legitimate business reasons. Accordingly, we believe it is 
appropriate to limit this interpretation of section 616(a)(3) to 
vertically integrated MVPDs only. We seek comment on this proposed 
limitation.
---------------------------------------------------------------------------

    \33\ See 1993 Program Carriage Order, 9 FCC Rcd at 2654, para. 
29 (``For complaints alleging discriminatory treatment that favors 
`affiliated' programming vendors, the complainant must provide 
evidence that the defendant has an attributable interest in the 
allegedly favored programming vendor, as set forth in Sec.  
76.1300(a).''); see also 47 CFR 76.1300(a) (``For purposes of this 
subpart, entities are affiliated if either entity has an 
attributable interest in the other or if a third party has an 
attributable interest in both entities.''); Review of the 
Commission's Cable Attribution Rules, Report and Order, 14 FCC Rcd 
19014, 19063, para. 132 n.333 (1999) (amending definition of 
``affiliated'' in the program carriage rules to be consistent with 
definition of this term in other cable rules).
    \34\ See Hallmark Channel Reply at 8 n.16 (``In one important 
respect, an MVPD's incentive to discriminate against its competitor 
MVPDs is reduced. Specifically, an MVPD can have an incentive to 
advantage the affiliated services of other vertically-integrated 
MVPDs, over independent services, in exchange for favorable 
treatment when the first MVPD seeks to obtain carriage of its own 
affiliated services by the second MVPD. Like an MVPD's incentive to 
favor its own affiliated services, this behavior has a dramatic and 
anticompetitive impact on independent programmers' ability to 
bargain for fair carriage terms.''); see id. at 20; NAMAC Reply at 
16 (referring to the ``common practice of cable operators to swap 
programming with each other'').
---------------------------------------------------------------------------

    37. We note that the Commission previously addressed a similar 
issue in connection with the channel occupancy limit set forth in 
section 613(f)(1)(B) of the Act, which requires the Commission to 
establish ``reasonable limits on the number of channels on a cable 
system that can be occupied by a video programmer in which a cable 
operator has an attributable interest.'' The Commission explained that 
this language is ``not entirely clear because it can also be read as 
applying to carriage of video programmers affiliated with the 
particular cable operator or to carriage of any vertically integrated 
cable programmer on any cable system.'' The Commission concluded that 
the ``most reasoned approach'' was to interpret this language ``to 
apply such limits only to video programmers that are vertically 
integrated with the particular cable operator in question.'' In 
adopting this interpretation, the Commission also concluded that 
``cable operators have very little incentive to favor video programming 
services that are affiliated solely with a rival MSO'' and absent 
``significant empirical evidence of existing discriminatory practices, 
we see no useful purpose in limiting the ability of cable operators to 
carry programming affiliated with a rival MSO.'' In 2008, however, the 
Commission adopted an FNPRM seeking comment on this conclusion in light 
of subsequent empirical studies as well as technological and 
marketplace developments. In doing so, the Commission tentatively 
concluded to ``expand the channel occupancy limit to include video 
programming networks owned by or affiliated with any cable operator,'' 
noting that such an interpretation is consistent with section 
628(c)(2)(D) of the Act, which prohibits any cable operator from 
entering into an exclusive contract with any cable-affiliated 
programmer.
    38. We seek comment on the extent to which there are real-world 
examples or reliable empirical studies demonstrating that vertically 
integrated MVPDs tend to favor programming vendors affiliated with 
other MVPDs. We note that the United States Court of Appeals for the DC 
Circuit previously struck down the Commission's horizontal cable 
ownership cap based in part on the Commission's failure to provide 
support for the concept that cable operators ``have incentives to agree 
to buy their

[[Page 60687]]

programming from one another.'' \35\ In adopting a new horizontal 
ownership cap in 2008, the Commission concluded that it ``lack[ed] 
evidence to draw definitive conclusions regarding the likelihood that 
cable operators will behave in a coordinated fashion.'' In an 
accompanying FNPRM pertaining to the Commission's channel occupancy 
limits, the Commission sought comment on the reliability of certain 
studies and criticisms thereof, including one study based on data from 
1999 finding that ``vertically integrated MSOs are more likely than 
non-vertically integrated MSOs to carry the start-up basic cable 
networks of other MSOs.'' \36\ We seek comment on how these studies or 
any other studies, including studies based on more recent data, either 
support or refute the position that vertically integrated MVPDs tend to 
favor programming vendors affiliated with other MVPDs over unaffiliated 
programming vendors. Is there sufficient evidence to warrant allowing 
programming vendors to make a case-by-case showing through the program 
carriage complaint process that a vertically integrated MVPD has 
discriminated on the basis of a programming vendor's lack of 
affiliation with another MVPD?
---------------------------------------------------------------------------

    \35\ Implementation of section 11(c) of the Cable Television 
Consumer Protection and Competition Act of 1992, Third Report and 
Order, 14 FCC Rcd 19098, 19116, para. 43 (1999) (``Third Report and 
Order''), rev'd and remanded in part and aff'd in part, Time Warner 
Entertainment Co. v. FCC, 240 F.3d 1126, 1132 (DC Cir. 2001) (``The 
Commission never explains why the vertical integration of MSOs gives 
them `mutual incentive to reach carriage decisions beneficial to 
each other,' what may be the firms' `incentives to buy * * * from 
one another,' or what the probabilities are that firms would engage 
in reciprocal buying (presumably to reduce each other's average 
programming costs).'' (quoting Third Report and Order, 14 FCC Rcd at 
19116, para. 43)).
    \36\ See Cable Ownership Rules FNPRM, 23 FCC Rcd at 2194, paras. 
139-141 (citing Jun-Seok Kang, Reciprocal Carriage of Vertically 
Integrated Cable Networks: An Empirical Study (``Kang Study'')); see 
also id. at 2194, para. 141 (seeking comment on whether ``Kang's 
study show[s] that a more extended form of vertical foreclosure 
exists, based on `reciprocal carriage' of integrated programming, in 
which a coalition of cable operators unfairly favor each others' 
affiliated programming''). We note that the Kang Study states that 
it is based on data from 1999. See Kang Study at 13.
---------------------------------------------------------------------------

    39. We also seek comment on whether it is reasonable to interpret 
section 616(a)(3) to preclude a vertically integrated MVPD from 
discriminating on the basis of a programming vendor's lack of 
affiliation with another MVPD. Section 616(a)(3) requires the 
Commission to adopt regulations that prevent an MVPD from engaging in 
conduct that unreasonably restrains the ability of ``an unaffiliated 
video programming vendor'' to compete fairly by discriminating on the 
basis of ``affiliation or non-affiliation'' of programming vendors. The 
terms ``unaffiliated,'' ``affiliation,'' and ``non-affiliation'' are 
not defined in section 616. These terms could be interpreted narrowly 
as in the 1993 Program Carriage Order to prohibit a vertically 
integrated MVPD only from discriminating on the basis of ``affiliation 
or non-affiliation'' in a manner that favors its own affiliated 
programming vendor, but would not prevent a vertically integrated MVPD 
from discriminating on the basis of ``affiliation or non-affiliation'' 
in a manner that favors a programming vendor affiliated with another 
MVPD. Alternatively, these terms might be interpreted more broadly to 
prevent a vertically integrated MVPD from discriminating on the basis 
of ``affiliation or non-affiliation'' in a manner that favors any 
programming vendor affiliated with any MVPD. We note that one cable 
operator has previously advanced a broad interpretation of section 
616(a)(3), stating that this provision precludes collusion among cable 
operators.\37\
---------------------------------------------------------------------------

    \37\ In opposing the horizontal cable ownership cap, Comcast 
Corporation has stated that ``there are alternative, better tailored 
legal remedies that could be relied upon to reduce the risk of 
collusion, even if such a risk were shown to exist. The Commission's 
program carriage rules, which explicitly prohibit a cable operator 
from `discriminating in video programming distribution on the basis 
of affiliation or nonaffiliation,' already proscribe collusive 
behavior.'' See Supplemental Comments of Comcast, MM Docket No. 92-
264 (February 14, 2007), at 15 (citing 47 U.S.C. 536(a)(3) and 47 
CFR 76.1301(c)) (emphasis in original).
---------------------------------------------------------------------------

    40. We seek comment on which interpretation is more consistent with 
Congressional intent. Is the broad interpretation more consistent with 
Congress's goal to ensure that cable operators provide the ``widest 
possible diversity of information sources and services to the public'' 
\38\ as well as with the program access requirements, which prohibit 
exclusive contracts and discriminatory conduct between a cable operator 
and any cable-affiliated programmer, not just its own affiliated 
programmer? Is the narrow interpretation more consistent with certain 
language in the legislative history of the 1992 Cable Act? For example, 
language in the House Report states that section 616 ``was crafted to 
ensure that a multichannel video programming operator does not 
discriminate against an unaffiliated video programming vendor in which 
it does not hold a financial interest.'' \39\ How should we interpret 
other language in the legislative history of the 1992 Cable Act? For 
example, one of the stated findings of the 1992 Cable Act is that 
``cable operators have the incentive and ability to favor their 
affiliated programmers. This could make it more difficult for noncable-
affiliated programmers to secure carriage on cable systems.'' This 
language is unclear as to whether Congress was referring to the 
incentives of individual cable operators to favor their own affiliated 
programmers, or whether Congress was referring to the incentives of 
cable operators as a whole to favor cable-affiliated programmers, both 
their own affiliates and those affiliated with other cable 
operators.\40\
---------------------------------------------------------------------------

    \38\ 47 U.S.C. 521(4); see also 1992 Cable Act, section 2(a)(5) 
(expressing concern regarding the inability of unaffiliated 
programming vendors to secure carriage); see also 1993 Program 
Carriage Order, 9 FCC Rcd at 2643, para. 2 (noting Congress's 
concern in passing the 1992 Cable Act that unaffiliated programming 
vendors could not obtain carriage on the same favorable terms as 
vertically integrated programming vendors).
    \39\ H.R. Rep. No. 102-628 (1992), at 110 (emphasis added); see 
also S. Rep. No. 102-92 (1991), at 25, reprinted in 1992 
U.S.C.C.A.N. 1133, 1158 (``For example, the cable operator might 
give its affiliated programmer a more desirable channel position 
than another programmer, or even refuse to carry other 
programmers.'') (emphasis added).
    \40\ See S. Rep. No. 102-92 (1991), at 25, reprinted in 1992 
U.S.C.C.A.N. 1133, 1158 (``vertical integration gives cable 
operators the incentive and ability to favor their affiliated 
programming services'') (emphasis added); see id. at 27, reprinted 
in 1992 U.S.C.C.A.N. 1133, 1160 (``To ensure that cable operators do 
not favor their affiliated programmers over others, the legislation 
bars cable operators from discriminating against unaffiliated 
programmers.'') (emphasis added).
---------------------------------------------------------------------------

    41. We also seek comment on the practical implications of an 
interpretation of section 616(a)(3) that would preclude a vertically 
integrated MVPD from discriminating on the basis of a programming 
vendor's lack of affiliation with another MVPD. For example, how should 
we amend the requirements for establishing a prima facie case of 
discrimination on the basis of affiliation in the absence of direct 
evidence? Should we provide that the complaint must contain evidence 
that the complainant provides video programming that is similarly 
situated to video programming provided by a programming vendor 
affiliated with the defendant MVPD or with another MVPD? Should we also 
require the complainant to provide evidence that the defendant MVPD is 
vertically integrated? We also seek comment on how this interpretation 
of section 616(a)(3) will impact the proposed good faith negotiation 
requirement for vertically integrated MVPDs described above. Should the 
rule provide that a vertically integrated MVPD must negotiate in good 
faith with an unaffiliated programming vendor with respect to video 
programming that is

[[Page 60688]]

similarly situated to video programming affiliated with the MVPD or 
with another MVPD? We also seek comment on how this interpretation of 
section 616(a)(3) will impact discovery. Should we expect that the 
programming vendor affiliated with the non-defendant MVPD will have 
relevant information, such as contracts with other MVPDs? For cases 
decided on the merits by the Media Bureau, should our rules specify 
procedures for requesting that the Media Bureau issue a subpoena 
pursuant to section 409 of the Act to compel a third-party affiliated 
programming vendor to participate in discovery? \41\
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    \41\ See 47 U.S.C. 409. We note that the hearing rules 
applicable to ALJs contain procedures for requesting and issuing 
subpoenas. See 47 CFR 1.331-340.
---------------------------------------------------------------------------

    42. In addition to the foregoing, we seek comment on whether to 
broaden the definition of ``affiliated'' and ``attributable interest'' 
in Sec.  76.1300 of the Commission's rules to reflect changes in the 
marketplace. These rules focus on the extent to which a programming 
vendor and an MVPD have common ownership or management.\42\ Are there 
other kinds of relationships between a programming vendor and an MVPD, 
other than those involving common ownership or management, that should 
nonetheless be considered ``affiliation'' under our rules? For example, 
to the extent that a programming vendor and an MVPD have entered into a 
contractual relationship that requires carriage of commonly owned 
channels and adversely affects the ability of other programming vendors 
to obtain carriage, should this relationship be considered 
``affiliation'' under the program carriage rules? In addition, we seek 
comment on the extent to which MVPDs are making investments in 
programming vendors or sports teams that were not common when the 1992 
Cable Act was enacted and that may not be considered ``affiliation'' 
under our current rules but that might nonetheless provide the MVPD 
with an incentive to favor certain programming vendors for other than 
legitimate business reasons. To the extent this is a concern, how 
should our rules be amended to address this issue? We also seek comment 
on the extent to which MVPDs are affiliated with ``video programming 
vendors'' that are not necessarily programming networks. Are the 
protections afforded by section 616 limited to programming networks? 
\43\ If not, do our current rules need to be amended to address 
concerns that MVPDs favor affiliated content over non-affiliated 
content for other than legitimate business reasons? Should our rules be 
amended to better address discrimination against a video programming 
vendor that seeks to distribute its own content, such as sports, movie 
or other programming, in order to favor similar content associated with 
the MVPD?
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    \42\ See 47 CFR 76.1300(a) (``Affiliated. For purposes of this 
subpart, entities are affiliated if either entity has an 
attributable interest in the other or if a third party has an 
attributable interest in both entities.''); 47 CFR 76.1300(b) 
(``Attributable interest. The term `attributable interest' shall be 
defined by reference to the criteria set forth in Notes 1 through 5 
to 76.501 provided, however, that: (1) The limited partner and LLC/
LLP/RLLP insulation provisions of Note 2(f) shall not apply; and (2) 
The provisions of Note 2(a) regarding five (5) percent interests 
shall include all voting or nonvoting stock or limited partnership 
equity interests of five (5) percent or more.'').
    \43\ Section 616 defines the term ``video programming vendor'' 
broadly as ``a person engaged in the production, creation, or 
wholesale distribution of video programming for sale.'' 47 U.S.C. 
536(b). The Act defines ``video programming'' as ``programming 
provided by, or generally considered comparable to programming 
provided by, a television broadcast station.'' 47 U.S.C. 522(20). 
The Senate Report accompanying the 1992 Cable Act, however, appears 
to indicate that the term ``video programmer'' includes only 
networks, and not program suppliers. S. Rep. No. 102-92 (1991), at 
73, reprinted in 1992 U.S.C.C.A.N. 1133, 1206 (``The term `video 
programmer' means a person engaged in the production, creation, or 
wholesale distribution of a video programming service for sale. This 
term applies to those video programmers which enter into 
arrangements with cable operators for carriage of a programming 
service. For example, the term `video programmer' applies to Home 
Box Office (HBO) but not to those persons who sell movies and other 
programming to HBO. It applies to a pay-per-view service but not to 
the supplier of the programming for this service.''). We note, 
however, that section 616 of the Act uses the term ``video 
programming vendor'' as stated in the House version of what became 
section 616, not ``video programmer'' as stated in the Senate 
version. See 47 U.S.C. 536(b); see also H.R. Rep. No. 102-628 
(1992), at 18-19, 110, 143-44.
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I. Burden of Proof in Program Carriage Discrimination Cases

    43. After a complainant establishes a prima facie case of program 
carriage discrimination, the case proceeds to a decision on the merits. 
Only two program carriage cases have been decided on the merits to 
date. In neither case was the Commission required to decide the issue 
of which party bears the burdens of production and persuasion after the 
complainant establishes a prima facie case. In MASN v. Time Warner 
Cable, an arbitrator determined that the burdens shift to the defendant 
after the complainant establishes a prima facie case. Conversely, in 
WealthTV, an ALJ ruled that the burdens remain with the complainant 
after the complainant establishes a prima facie case.\44\ On review of 
these cases, however, the Commission found no reason to address this 
issue because the facts demonstrated that the defendant would prevail 
even assuming that the burdens shifted to the defendant.\45\
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    \44\ See WealthTV Recommended Decision, 24 FCC Rcd at 12995-96, 
para. 58 and 12997, para. 61 (reaffirming ruling of the Presiding 
Judge that the program carriage complainant after establishing a 
prima facie case bears the burden of proceeding with the 
introduction of evidence and the burden of proof). The ALJ also 
concluded that the allocation of the burden of proof was immaterial 
to the decision because ``[w]hatever the allocation of burdens, the 
preponderance of the evidence, viewed in its entirety, demonstrates 
that the defendants never violated section 616 of the Act or Sec.  
76.1301(c) of the rules.'' See id. at 12997, para. 62.
    \45\ See MASN v. Time Warner Cable, 25 FCC Rcd at 18105, para. 
11 (``We need not, and do not, address in this decision the issue of 
the appropriate legal framework, however, because we find that TWC 
would prevail under either framework. That is, even assuming that 
the burdens of production and persuasion shift to TWC to establish 
legitimate and non-discriminatory reasons for its carriage decision 
after MASN establishes a prima facie case of discrimination, we find 
that TWC prevails because it has established legitimate reasons for 
its carriage decision that are borne out by the record and are not 
based on the programmer's affiliation or non-affiliation.''); 
WealthTV Commission Order at para. 18 (``[W]e need not decide here 
whether the ALJ properly allocated the burdens. * * * We conclude 
that the defendants would have prevailed even if they had been 
required to carry the burdens of production and proof, as WealthTV 
contends was proper. Accordingly, we need not consider whether the 
burdens were properly allocated. * * *'').
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    44. We propose to codify in our rules which party bears the burdens 
of production and persuasion in a program carriage discrimination case 
after the complainant has established a prima facie case. We seek 
comment on two alternative frameworks for assigning these burdens: The 
program access discrimination framework and the intentional 
discrimination framework. Under the program access discrimination 
framework, after a complainant establishes a prima facie case of 
discrimination based on either direct or circumstantial evidence, the 
burdens of production and persuasion shift to the defendant to 
establish legitimate and non-discriminatory reasons for its carriage 
decision.\46\ Under the intentional discrimination framework, the 
shifting of burdens

[[Page 60689]]

varies depending upon whether the complainant relies on direct or 
circumstantial evidence to establish a prima facie case of 
discrimination. If a complainant relies on direct evidence to establish 
a prima facie case of discrimination, the burdens of production and 
persuasion shift to the defendant to establish that the carriage 
decision would have been the same absent considerations of affiliation. 
If a complainant relies on circumstantial evidence to establish a prima 
facie case of discrimination, the burden of production (but not the 
burden of persuasion) shifts to the defendant to produce evidence of 
legitimate and non-discriminatory reasons for its carriage 
decision.\47\ If the defendant meets this burden of production, the 
complainant would then have the burden of persuasion to show that these 
reasons are so implausible that they constitute pretexts for 
discrimination.\48\
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    \46\ See 1993 Program Access Order, 8 FCC Rcd at 3416, para. 125 
(``When filing a complaint, the burden is on the complainant MVPD to 
make a prima facie showing that there is a difference between the 
terms, conditions or rates charged (or offered) to the complainant 
and its competitor by a satellite broadcast programming vendor or a 
vertically integrated satellite cable programming vendor that meets 
our attribution test.''); id. at 3364, para. 15 (``When evaluating a 
discrimination complaint, we will initially focus on the difference 
in price paid by (or offered to) the complainant as compared to that 
paid by (or offered to) a competing distributor. The [defendant] 
program vendor will then have to justify the difference using the 
statutory factors set forth in section 628(c)(2)(B). * * * In all 
cases, the [defendant] programmer will bear the burden to establish 
that the price differential is adequately explained by the statutory 
factors.'').
    \47\ See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 
(1993) (to meet its burden of production, the defendant must clearly 
set forth, through the introduction of admissible evidence, reasons 
for the action which, if believed by the trier of fact, would 
support a finding that unlawful discrimination was not the cause of 
the action in question).
    \48\ See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 
133, 143 (2000) (``And in attempting to satisfy this burden, the 
plaintiff--once the employer produces sufficient evidence to support 
a nondiscriminatory explanation for its decision--must be afforded 
the `opportunity to prove by a preponderance of the evidence that 
the legitimate reasons offered by the defendant were not its true 
reasons, but were a pretext for discrimination.' '' (citations 
omitted)).
---------------------------------------------------------------------------

    45. We seek comment on whether one of these frameworks is compelled 
by the language of section 616(a)(3). If not, we seek comment on 
whether one of these frameworks is more consistent with the statutory 
scheme of section 616, its underlying policy objectives, and its 
legislative history.\49\ We also seek comment on the potential 
ramifications of each framework for consumers, MVPDs, and unaffiliated 
programming vendors.
---------------------------------------------------------------------------

    \49\ See, e.g., H.R. Rep. No. 102-628 (1992), at 110 (``The 
Committee intends that the term `discrimination' is to be 
distinguished from how that term is used in connection with actions 
by common carriers subject to title II of the Communications Act. 
The Committee does not intend, however, for the Commission to create 
new standards for conduct in determining discrimination under this 
section. An extensive body of law exists addressing discrimination 
in normal business practices, and the Committee intends the 
Commission to be guided by these precedents.'').
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II. Procedural Matters

A. Initial Regulatory Flexibility Act Analysis

    46. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') \50\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
significant economic impact on small entities by the policies and rules 
proposed in this Notice of Proposed Rulemaking in MB Docket No. 11-131 
(``NPRM''). Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments provided on the first page of the NPRM. 
The Commission will send a copy of the NPRM, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration 
(``SBA'').\51\ In addition, the NPRM and IRFA (or summaries thereof) 
will be published in the Federal Register.\52\
---------------------------------------------------------------------------

    \50\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \51\ See 5 U.S.C. 603(a).
    \52\ See id.
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B. Need for, and Objectives of, the Proposed Rule Changes

    47. In 1993, the Commission adopted rules implementing a provision 
of the 1992 Cable Act \53\ pertaining to carriage of video programming 
vendors by multichannel video programming distributors (``MVPDs''). 
These rules are intended to benefit consumers by promoting competition 
and diversity in the video programming and video distribution markets 
(the ``program carriage'' rules).\54\ As required by Congress, these 
rules allow for the filing of complaints with the Commission alleging 
that an MVPD has (i) required a financial interest in a video 
programming vendor's program service as a condition for carriage (the 
``financial interest'' provision); \55\ (ii) coerced a video 
programming vendor to provide, or retaliated against a vendor for 
failing to provide, exclusive rights as a condition of carriage (the 
``exclusivity'' provision); \56\ or (iii) unreasonably restrained the 
ability of an unaffiliated video programming vendor to compete fairly 
by discriminating in video programming distribution on the basis of 
affiliation or nonaffiliation of vendors in the selection, terms, or 
conditions for carriage (the ``discrimination'' provision).\57\ 
Congress specifically directed the Commission to provide for 
``expedited review'' of these complaints and to provide for appropriate 
penalties and remedies for any violations.\58\ Programming vendors have 
complained that the Commission's procedures for addressing program 
carriage complaints have hindered the filing of legitimate complaints 
and have failed to provide for the expedited review envisioned by 
Congress.
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    \53\ See Cable Television Consumer Protection and Competition 
Act of 1992, Public Law 102-385, 106 Stat. 1460 (1992) (``1992 Cable 
Act''); see also 47 U.S.C. 536.
    \54\ See Implementation of sections 12 and 19 of the Cable 
Television Consumer Protection and Competition Act of 1992, 
Development of Competition and Diversity in Video Programming 
Distribution and Carriage, MM Docket No. 92-265, Second Report and 
Order, 9 FCC Rcd 2642 (1993) (``1993 Program Carriage Order''); see 
also Implementation of the Cable Television Consumer Protection And 
Competition Act of 1992, Development of Competition and Diversity in 
Video Programming Distribution and Carriage, MM Docket No. 92-265, 
Memorandum Opinion and Order, 9 FCC Rcd 4415 (1994) (``1994 Program 
Carriage Order''). The Commission's program carriage rules are set 
forth at 47 CFR 76.1300-76.1302.
    \55\ See 47 CFR 76.1301(a); see also 47 U.S.C. 536(a)(1).
    \56\ See 47 CFR 76.1301(b); see also 47 U.S.C. 536(a)(2).
    \57\ See 47 CFR 76.1301(c); see also 47 U.S.C. 536(a)(3).
    \58\ See 47 U.S.C. 536(a)(4).
---------------------------------------------------------------------------

    48. The NPRM seeks comment on a series of proposals to revise or 
clarify the Commission's program carriage rules intended to improve the 
Commission's procedures for handling program carriage complaints and to 
further the goals of the program carriage statute. The NPRM seeks 
comment on the following:
     Modifying the program carriage statute of limitations to 
provide that a complaint must be filed within one year of the act that 
allegedly violated the rules; \59\
---------------------------------------------------------------------------

    \59\ See NPRM in MB Docket No. 11-131 at paras. 38-40.
---------------------------------------------------------------------------

     Revising discovery procedures for program carriage 
complaint proceedings in which the Media Bureau rules on the merits of 
the complaint after discovery is conducted, including expanded 
discovery procedures (also known as party-to-party discovery) and an 
automatic document production process, to ensure fairness to all 
parties while also ensuring compliance with the expedited resolution 
deadlines adopted in the Second Report and Order in MB Docket No. 07-
42; \60\
---------------------------------------------------------------------------

    \60\ See id. at paras. 41-49.
---------------------------------------------------------------------------

     Permitting the award of damages in program carriage cases; 
\61\
---------------------------------------------------------------------------

    \61\ See id. at paras. 50-53.
---------------------------------------------------------------------------

     Providing the Media Bureau or ALJ with the discretion to 
order parties to submit their best ``final offer'' for the rates, 
terms, and conditions for the programming at issue in a complaint 
proceeding to assist in crafting a remedy; \62\
---------------------------------------------------------------------------

    \62\ See id. at paras. 54-55.
---------------------------------------------------------------------------

     Clarifying the rule that delays the effectiveness of a 
mandatory carriage

[[Page 60690]]

remedy until it is upheld by the Commission on review, including 
codifying a requirement that the defendant MVPD must make an 
evidentiary showing to the Media Bureau or an ALJ as to whether a 
mandatory carriage remedy would result in deletion of other 
programming; \63\
---------------------------------------------------------------------------

    \63\ See id. at paras. 56-59.
---------------------------------------------------------------------------

     Codifying in our rules that retaliation by an MVPD against 
a programming vendor for filing a program carriage complaint is 
actionable as a potential form of discrimination on the basis of 
affiliation and adopting other measures to address retaliation; \64\
---------------------------------------------------------------------------

    \64\ See id. at paras. 60-67.
---------------------------------------------------------------------------

     Adopting a rule that requires a vertically integrated MVPD 
to negotiate in good faith with an unaffiliated programming vendor with 
respect to video programming that is similarly situated to video 
programming affiliated with the MVPD; \65\
---------------------------------------------------------------------------

    \65\ See id. at paras. 68-71.
---------------------------------------------------------------------------

     Clarifying that the discrimination provision precludes a 
vertically integrated MVPD from discriminating on the basis of a 
programming vendor's lack of affiliation with another MVPD; \66\ and
---------------------------------------------------------------------------

    \66\ See id. at paras. 72-78.
---------------------------------------------------------------------------

     Codifying in our rules which party bears the burden of 
proof in program carriage discrimination cases after the complainant 
has established a prima facie case.\67\
---------------------------------------------------------------------------

    \67\ See id. at paras. 79-81.
---------------------------------------------------------------------------

    The NPRM also invites commenters to suggest any other changes to 
the program carriage rules that would improve the Commission's 
procedures and promote the goals of the program carriage statute.\68\
---------------------------------------------------------------------------

    \68\ See id. at para. 37.
---------------------------------------------------------------------------

C. Legal Basis

    49. The proposed action is authorized pursuant to sections 4(i), 
4(j), 303(r), and 616 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 154(j), 303(r), and 536.

D. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    50. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted.\69\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \70\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\71\ A small business 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 SBA.\72\ Below, we provide a description of such 
small entities, as well as an estimate of the number of such small 
entities, where feasible.
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    \69\ 5 U.S.C. 603(b)(3).
    \70\ 5 U.S.C. 601(6).
    \71\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy 
of the Small Business Administration and after opportunity for 
public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \72\ 15 U.S.C. 632. Application of the statutory criteria of 
dominance in its field of operation and independence are sometimes 
difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
---------------------------------------------------------------------------

    51. Wired Telecommunications Carriers. The 2007 North American 
Industry Classification System (``NAICS'') defines ``Wired 
Telecommunications Carriers'' as follows: ``This industry comprises 
establishments primarily engaged in operating and/or providing access 
to transmission facilities and infrastructure that they own and/or 
lease for the transmission of voice, data, text, sound, and video using 
wired telecommunications networks. Transmission facilities may be based 
on a single technology or a combination of technologies. Establishments 
in this industry use the wired telecommunications network facilities 
that they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet services. 
By exception, establishments providing satellite television 
distribution services using facilities and infrastructure that they 
operate are included in this industry.'' \73\ The SBA has developed a 
small business size standard for wireline firms within the broad 
economic census category, ``Wired Telecommunications Carriers.'' \74\ 
Under this category, the SBA deems a wireline business to be small if 
it has 1,500 or fewer employees.\75\ Census Bureau data for 2007, which 
now supersede data from the 2002 Census, show that there were 3,188 
firms in this category that operated for the entire year. Of this 
total, 3,144 had employment of 999 or fewer, and 44 firms had 
employment of 1,000 employees or more. Thus under this category and the 
associated small business size standard, the majority of these firms 
can be considered small.\76\
---------------------------------------------------------------------------

    \73\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \74\ 13 CFR 121.201, 2007 NAICS code 517110.
    \75\ See id.
    \76\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

    52. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined above. The 
SBA has developed a small business size standard for this category, 
which is: All such firms having 1,500 or fewer employees.\77\ Census 
Bureau data for 2007, which now supersede data from the 2002 Census, 
show that there were 3,188 firms in this category that operated for the 
entire year. Of this total, 3,144 had employment of 999 or fewer, and 
44 firms had had employment of 1,000 employees or more. Thus under this 
category and the associated small business size standard, the majority 
of these firms can be considered small.\78\
---------------------------------------------------------------------------

    \77\ 13 CFR 121.201, 2007 NAICS code 517110.
    \78\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

    53. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers nationwide.\79\ Industry data 
indicate that all but ten cable operators nationwide are small under 
this size standard.\80\ In addition, under the Commission's rules, a 
``small system'' is a cable system serving 15,000 or fewer 
subscribers.\81\ Industry data indicate that, of 6,101 systems 
nationwide, 4,410 systems have under 10,000 subscribers, and an 
additional 258 systems have 10,000-19,999 subscribers.\82\ Thus, under 
this standard, most cable systems are small.
---------------------------------------------------------------------------

    \79\ 47 CFR 76.901(e). The Commission determined that this size 
standard equates approximately to a size standard of $100 million or 
less in annual revenues. Implementation of Sections of the 1992 
Cable Act: Rate Regulation, Sixth Report and Order and Eleventh 
Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
    \80\ See Broadcasting & Cable Yearbook 2010 at C-2 (2009) (data 
current as of Dec. 2008).
    \81\ 47 CFR 76.901(c).
    \82\ See Television & Cable Factbook 2009 at F-2 (2009) (data 
current as of Oct. 2008). The data do not include 957 systems for 
which classifying data were not available.

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[[Page 60691]]

    54. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, 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.'' \83\ The Commission has determined that an operator 
serving fewer than 677,000 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate.\84\ 
Industry data indicate that all but nine cable operators nationwide are 
small under this subscriber size standard.\85\ We note that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million,\86\ and therefore we are unable to 
estimate more accurately the number of cable system operators that 
would qualify as small under this size standard.
---------------------------------------------------------------------------

    \83\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
    \84\ 47 CFR 76.901(f); see FCC Announces New Subscriber Count 
for the Definition of Small Cable Operator, Public Notice, 16 FCC 
Rcd 2225 (Cable Services Bureau 2001).
    \85\ See Broadcasting & Cable Yearbook 2010 at C-2 (2009) (data 
current as of Dec. 2008).
    \86\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to 76.901(f) of the Commission's rules. See 47 CFR 
76.901(f).
---------------------------------------------------------------------------

    55. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS, by exception, is now included in the 
SBA's broad economic census category, ``Wired Telecommunications 
Carriers,'' \87\ which was developed for small wireline firms. Under 
this category, the SBA deems a wireline business to be small if it has 
1,500 or fewer employees.\88\ Census Bureau data for 2007, which now 
supersede data from the 2002 Census, show that there were 3,188 firms 
in this category that operated for the entire year. Of this total, 
3,144 had employment of 999 or fewer, and 44 firms had had employment 
of 1,000 employees or more. Thus under this category and the associated 
small business size standard, the majority of these firms can be 
considered small.\89\ Currently, only two entities provide DBS service, 
which requires a great investment of capital for operation: DIRECTV and 
EchoStar Communications Corporation (``EchoStar'') (marketed as the 
DISH Network).\90\ Each currently offers subscription services. DIRECTV 
\91\ and EchoStar \92\ each report annual revenues that are in excess 
of the threshold for a small business. Because DBS service requires 
significant capital, we believe it is unlikely that a small entity as 
defined by the SBA would have the financial wherewithal to become a DBS 
service provider.
---------------------------------------------------------------------------

    \87\ See 13 CFR 121.201, 2007 NAICS code 517110. The 2007 NAICS 
definition of the category of ``Wired Telecommunications Carriers'' 
is in paragraph 6, above.
    \88\ 13 CFR 121.201, 2007 NAICS code 517110.
    \89\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \90\ See Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Thirteenth Annual 
Report, 24 FCC Rcd 542, 580, para. 74 (2009) (``13th Annual 
Report''). We note that, in 2007, EchoStar purchased the licenses of 
Dominion Video Satellite, Inc. (``Dominion'') (marketed as Sky 
Angel). See Public Notice, ``Policy Branch Information; Actions 
Taken,'' Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
    \91\ As of June 2006, DIRECTV is the largest DBS operator and 
the second largest MVPD, serving an estimated 16.20% of MVPD 
subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, 
Table B-3.
    \92\ As of June 2006, DISH Network is the second largest DBS 
operator and the third largest MVPD, serving an estimated 13.01% of 
MVPD subscribers nationwide. Id.
---------------------------------------------------------------------------

    56. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths without 
using any public right-of-way. They acquire video programming and 
distribute it via terrestrial wiring in urban and suburban multiple 
dwelling units such as apartments and condominiums, and commercial 
multiple tenant units such as hotels and office buildings. SMATV 
systems or PCOs are now included in the SBA's broad economic census 
category, ``Wired Telecommunications Carriers,'' \93\ which was 
developed for small wireline firms. Under this category, the SBA deems 
a wireline business to be small if it has 1,500 or fewer employees.\94\ 
Census Bureau data for 2007, which now supersede data from the 2002 
Census, show that there were 3,188 firms in this category that operated 
for the entire year. Of this total, 3,144 had employment of 999 or 
fewer, and 44 firms had had employment of 1,000 employees or more. 
Thus, under this category and the associated small business size 
standard, the majority of these firms can be considered small.\95\
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    \93\ 13 CFR 121.201, 2007 NAICS code 517110.
    \94\ See id.
    \95\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    57. Home Satellite Dish (``HSD'') Service. HSD or the large dish 
segment of the satellite industry is the original satellite-to-home 
service offered to consumers, and involves the home reception of 
signals transmitted by satellites operating generally in the C-band 
frequency. Unlike DBS, which uses small dishes, HSD antennas are 
between four and eight feet in diameter and can receive a wide range of 
unscrambled (free) programming and scrambled programming purchased from 
program packagers that are licensed to facilitate subscribers' receipt 
of video programming. Because HSD provides subscription services, HSD 
falls within the SBA-recognized definition of Wired Telecommunications 
Carriers.\96\ The SBA has developed a small business size standard for 
this category, which is: All such firms having 1,500 or fewer 
employees.\97\ Census Bureau data for 2007, which now supersede data 
from the 2002 Census, show that there were 3,188 firms in this category 
that operated for the entire year. Of this total, 3,144 had employment 
of 999 or fewer, and 44 firms had had employment of 1,000 employees or 
more. Thus, under this category and the associated small business size 
standard, the majority of these firms can be considered small.\98\
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    \96\ 13 CFR 121.201, 2007 NAICS code 517110.
    \97\ See id.
    \98\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    58. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)).\99\ 
In connection with the 1996

[[Page 60692]]

BRS auction, the Commission established a small business size standard 
as an entity that had annual average gross revenues of no more than $40 
million in the previous three calendar years.\100\ The BRS auctions 
resulted in 67 successful bidders obtaining licensing opportunities for 
493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the 
definition of a small business. BRS also includes licensees of stations 
authorized prior to the auction. At this time, we estimate that of the 
61 small business BRS auction winners, 48 remain small business 
licensees. In addition to the 48 small businesses that hold BTA 
authorizations, there are approximately 392 incumbent BRS licensees 
that are considered small entities.\101\ After adding the number of 
small business auction licensees to the number of incumbent licensees 
not already counted, we find that there are currently approximately 440 
BRS licensees that are defined as small businesses under either the SBA 
or the Commission's rules. In 2009, the Commission conducted Auction 
86, the sale of 78 licenses in the BRS areas.\102\ The Commission 
offered three levels of bidding credits: (i) A bidder with attributed 
average annual gross revenues that exceed $15 million and do not exceed 
$40 million for the preceding three years (small business) received a 
15 percent discount on its winning bid; (ii) a bidder with attributed 
average annual gross revenues that exceed $3 million and do not exceed 
$15 million for the preceding three years (very small business) 
received a 25 percent discount on its winning bid; and (iii) a bidder 
with attributed average annual gross revenues that do not exceed $3 
million for the preceding three years (entrepreneur) received a 35 
percent discount on its winning bid.\103\ Auction 86 concluded in 2009 
with the sale of 61 licenses.\104\ Of the ten winning bidders, two 
bidders that claimed small business status won 4 licenses; one bidder 
that claimed very small business status won three licenses; and two 
bidders that claimed entrepreneur status won six licenses.
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    \99\ Amendment of Parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, MM 
Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10 FCC 
Rcd 9589, 9593, para. 7 (1995).
    \100\ 47 CFR 21.961(b)(1).
    \101\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard of 1500 or fewer employees.
    \102\ Auction of Broadband Radio Service (BRS) Licenses, 
Scheduled for October 27, 2009, Notice and Filing Requirements, 
Minimum Opening Bids, Upfront Payments, and Other Procedures for 
Auction 86, Public Notice, 24 FCC Rcd 8277 (2009).
    \103\ Id. at 8296.
    \104\ Auction of Broadband Radio Service Licenses Closes, 
Winning Bidders Announced for Auction 86, Down Payments Due November 
23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to 
Deny Period, Public Notice, 24 FCC Rcd 13572 (2009).
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    59. In addition, the SBA's Cable Television Distribution Services 
small business size standard is applicable to EBS. There are presently 
2,032 EBS licensees. All but 100 of these licenses are held by 
educational institutions. Educational institutions are included in this 
analysis as small entities.\105\ Thus, we estimate that at least 1,932 
licensees are small businesses. Since 2007, Cable Television 
Distribution Services have been defined within the broad economic 
census category of Wired Telecommunications Carriers; that category is 
defined as follows: ``This industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies.'' \106\ The SBA has developed a small 
business size standard for this category, which is: All such firms 
having 1,500 or fewer employees.\107\ Census Bureau data for 2007, 
which now supersede data from the 2002 Census, show that there were 
3,188 firms in this category that operated for the entire year. Of this 
total, 3,144 had employment of 999 or fewer, and 44 firms had 
employment of 1,000 employees or more. Thus, under this category and 
the associated small business size standard, the majority of these 
firms can be considered small.\108\
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    \105\ The term ``small entity'' within SBREFA applies to small 
organizations (nonprofits) and to small governmental jurisdictions 
(cities, counties, towns, townships, villages, school districts, and 
special districts with populations of less than 50,000). 5 U.S.C. 
601(4)-(6). We do not collect annual revenue data on EBS licensees.
    \106\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers,'' (partial definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \107\ 13 CFR 121.201, 2007 NAICS code 517110.
    \108\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    60. Fixed Microwave Services. Microwave services include common 
carrier,\109\ private-operational fixed,\110\ and broadcast auxiliary 
radio services.\111\ They also include the Local Multipoint 
Distribution Service (LMDS),\112\ the Digital Electronic Message 
Service (DEMS),\113\ and the 24 GHz Service,\114\ where licensees can 
choose between common carrier and non-common carrier status.\115\ At 
present, there are approximately 31,428 common carrier fixed licensees 
and 79,732 private operational-fixed licensees and broadcast auxiliary 
radio licensees in the microwave services. There are approximately 120 
LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of the IRFA, we will use the SBA's 
definition applicable to Wireless Telecommunications Carriers (except 
satellite)--i.e., an entity with no more than 1,500 persons.\116\ Under 
the present and prior categories, the SBA has deemed a wireless 
business to be small if it has 1,500 or fewer employees.\117\ For the 
category of Wireless Telecommunications Carriers (except Satellite), 
Census data for 2007, which supersede data contained in the 2002 
Census, show that there were 1,383 firms that operated that year.\118\ 
Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had 
more than 100 employees. Thus under this category and the associated 
small business size standard, the majority of firms can be considered 
small. We note that the number of firms does not necessarily track the 
number of licensees. We estimate that virtually all of the Fixed 
Microwave licensees (excluding broadcast auxiliary licensees) would 
qualify as small entities under the SBA definition.
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    \109\ See 47 CFR part 101, subparts C and I.
    \110\ See 47 CFR part 101, subparts C and H.
    \111\ Auxiliary Microwave Service is governed by Part 74 of 
Title 47 of the Commission's Rules. See 47 CFR Part 74. Available to 
licensees of broadcast stations and to broadcast and cable network 
entities, broadcast auxiliary microwave stations are used for 
relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \112\ See 47 CFR part 101, subpart L.
    \113\ See 47 CFR part 101, subpart G.
    \114\ See id.
    \115\ See 47 CFR 101.533, 101.1017.
    \116\ 13 CFR 121.201, 2007 NAICS code 517210.
    \117\ See id. The now-superseded, pre-2007 CFR citations were 13 
CFR 121.201, NAICS codes 517211 and 517212 (referring to the 2002 
NAICS).
    \118\ U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 
NAICS code 517210 (rel. Oct. 20, 2009), http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&-ds_name=EC0751SSSZ5&-_lang=en.
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    61. Open Video Systems. The open video system (``OVS'') framework 
was established in 1996, and is one of four

[[Page 60693]]

statutorily recognized options for the provision of video programming 
services by local exchange carriers.\119\ The OVS framework provides 
opportunities for the distribution of video programming other than 
through cable systems. Because OVS operators provide subscription 
services,\120\ OVS falls within the SBA small business size standard 
covering cable services, which is ``Wired Telecommunications 
Carriers.'' \121\ The SBA has developed a small business size standard 
for this category, which is: All such firms having 1,500 or fewer 
employees.\122\ Census Bureau data for 2007, which now supersede data 
from the 2002 Census, show that there were 3,188 firms in this category 
that operated for the entire year. Of this total, 3,144 had employment 
of 999 or fewer, and 44 firms had had employment of 1,000 employees or 
more. Thus, under this category and the associated small business size 
standard, the majority of these firms can be considered small.\123\ In 
addition, we note that the Commission has certified some OVS operators, 
with some now providing service.\124\ Broadband service providers 
(``BSPs'') are currently the only significant holders of OVS 
certifications or local OVS franchises.\125\ The Commission does not 
have financial or employment information regarding the entities 
authorized to provide OVS, some of which may not yet be operational. 
Thus, at least some of the OVS operators may qualify as small entities.
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    \119\ 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC 
Rcd at 606, para. 135.
    \120\ See 47 U.S.C. 573.
    \121\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \122\ 13 CFR 121.201, 2007 NAICS code 517110.
    \123\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \124\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
    \125\ See 13th Annual Report, 24 FCC Rcd at 606-07, para. 135. 
BSPs are newer firms that are building state-of-the-art, facilities-
based networks to provide video, voice, and data services over a 
single network.
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    62. Cable and Other Subscription Programming. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in operating studios and facilities 
for the broadcasting of programs on a subscription or fee basis * * *. 
These establishments produce programming in their own facilities or 
acquire programming from external sources. The programming material is 
usually delivered to a third party, such as cable systems or direct-to-
home satellite systems, for transmission to viewers.'' \126\ The SBA 
has developed a small business size standard for this category, which 
is: All such firms having $15 million dollars or less in annual 
revenues.\127\ To gauge small business prevalence in the Cable and 
Other Subscription Programming industries, the Commission relies on 
data currently available from the U.S. Census for the year 2007. Census 
Bureau data for 2007, which now supersede data from the 2002 Census, 
show that there were 396 firms in this category that operated for the 
entire year.\128\ Of that number, 325 operated with annual revenues of 
$9,999,999 dollars or less.\129\ Seventy-one (71) operated with annual 
revenues of between $10 million and $100 million or more.\130\ Thus, 
under this category and associated small business size standard, the 
majority of firms can be considered small.
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    \126\ U.S. Census Bureau, 2007 NAICS Definitions, ``515210 Cable 
and Other Subscription Programming''; http://www.census.gov/naics/2007/def/ND515210.HTM#N515210.
    \127\ 13 CFR 121.201, 2007 NAICS code 515210.
    \128\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=700&-ds_name=EC0751SSSZ4&-_lang=en.
    \129\ Id.
    \130\ Id.
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    63. Small Incumbent Local Exchange Carriers. We have included small 
incumbent local exchange carriers in this present RFA analysis. A 
``small business'' under the RFA is one that, inter alia, meets the 
pertinent small business size standard (e.g., a telephone 
communications business having 1,500 or fewer employees), and ``is not 
dominant in its field of operation.'' \131\ The SBA's Office of 
Advocacy contends that, for RFA purposes, small incumbent local 
exchange carriers are not dominant in their field of operation because 
any such dominance is not ``national'' in scope.\132\ We have therefore 
included small incumbent local exchange carriers in this RFA analysis, 
although we emphasize that this RFA action has no effect on Commission 
analyses and determinations in other, non-RFA contexts.
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    \131\ 15 U.S.C. 632.
    \132\ Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small-business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 
601(3) (RFA). SBA regulations interpret ``small business concern'' 
to include the concept of dominance on a national basis. See 13 CFR 
121.102(b).
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    64. Incumbent Local Exchange Carriers (``LECs''). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees.\133\ Census Bureau data 
for 2007, which now supersede data from the 2002 Census, show that 
there were 3,188 firms in this category that operated for the entire 
year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms 
had employment of 1,000 employees or more. Thus, under this category 
and the associated small business size standard, the majority of these 
firms can be considered small.\134\
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    \133\ 13 CFR 121.201, 2007 NAICS code 517110.
    \134\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    65. Competitive Local Exchange Carriers, Competitive Access 
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other 
Local Service Providers.'' Neither the Commission nor the SBA has 
developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees.\135\ 
Census Bureau data for 2007, which now supersede data from the 2002 
Census, show that there were 3,188 firms in this category that operated 
for the entire year. Of this total, 3,144 had employment of 999 or 
fewer, and 44 firms had had employment of 1,000 employees or more. 
Thus, under this category and the associated small business size 
standard, the majority of these firms can be considered small.\136\ 
Consequently, the Commission estimates that most providers of 
competitive local exchange service, competitive access providers, 
``Shared-Tenant Service Providers,'' and ``Other Local Service 
Providers'' are small entities.
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    \135\ 13 CFR 121.201, 2007 NAICS code 517110.
    \136\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    66. Television Broadcasting. The SBA defines a television 
broadcasting station as a small business if such station has no more 
than $14.0 million in annual receipts.\137\ Business concerns included 
in this industry are those ``primarily engaged in broadcasting images 
together

[[Page 60694]]

with sound.'' \138\ The Commission has estimated the number of licensed 
commercial television stations to be 1,390.\139\ According to 
Commission staff review of the BIA/Kelsey, MAPro Television Database 
(``BIA'') as of April 7, 2010, about 1,015 of an estimated 1,380 
commercial television stations \140\ (or about 74 percent) have 
revenues of $14 million or less and, thus, qualify as small entities 
under the SBA definition. The Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 
391.\141\ We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \142\ must be included. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. The Commission 
does not compile and otherwise does not have access to information on 
the revenue of NCE stations that would permit it to determine how many 
such stations would qualify as small entities.
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    \137\ See 13 CFR 121.201, 2007 NAICS Code 515120.
    \138\ U.S. Census Bureau, 2007 NAICS Definitions, ``515120 
Television Broadcasting''; http://www.census.gov/naics/2007/def/ND515120.HTM. This category description continues, ``These 
establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \139\ See News Release, ``Broadcast Station Totals as of 
December 31, 2010,'' 2011 WL 484756 (dated Feb. 11, 2011) 
(``Broadcast Station Totals''); also available at http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf.
    \140\ We recognize that this total differs slightly from that 
contained in Broadcast Station Totals, supra, note 139; however, we 
are using BIA's estimate for purposes of this revenue comparison.
    \141\ See Broadcast Station Totals, supra, note 139.
    \142\ ``[Business concerns] are affiliates of each other when 
one concern controls or has the power to control the other or a 
third party or parties controls or has to power to control both.'' 
13 CFR 121.103(a)(1).
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    67. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    68. Motion Picture and Video Production. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in producing, or producing and distributing motion 
pictures, videos, television programs, or television commercials.'' 
\143\ We note that firms in this category may be engaged in various 
industries, including cable programming. Specific figures are not 
available regarding how many of these firms produce and/or distribute 
programming for cable television. The SBA has developed a small 
business size standard for this category, which is: All such firms 
having $29.5 million dollars or less in annual revenues.\144\ To gauge 
small business prevalence in the Motion Picture and Video Production 
industries, the Commission relies on data currently available from the 
U.S. Census for the year 2007. Census Bureau data for 2007, which now 
supersede data from the 2002 Census, show that there were 9,095 firms 
in this category that operated for the entire year.\145\ Of these, 
8,995 had annual receipts of $24,999,999 or less, and 100 has annual 
receipts ranging from not less that $25,000,000 to $100,000,000 or 
more.\146\ Thus, under this category and associated small business size 
standard, the majority of firms can be considered small.
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    \143\ U.S. Census Bureau, 2007 NAICS Definitions, ``51211 Motion 
Picture and Video Production''; http://www.census.gov/naics/2007/def/NDEF512.HTM#N51211.
    \144\ 13 CFR 121.201, 2007 NAICS code 512110.
    \145\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=200&-ds_name=EC0751SSSZ4&-_lang=en.
    \146\ Id.
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    69. Motion Picture and Video Distribution. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in acquiring distribution rights and 
distributing film and video productions to motion picture theaters, 
television networks and stations, and exhibitors.'' \147\ We note that 
firms in this category may be engaged in various industries, including 
cable programming. Specific figures are not available regarding how 
many of these firms produce and/or distribute programming for cable 
television. The SBA has developed a small business size standard for 
this category, which is: all such firms having $29.5 million dollars or 
less in annual revenues.\148\ To gauge small business prevalence in the 
Motion Picture and Video Distribution industries, the Commission relies 
on data currently available from the U.S. Census for the year 2007. 
Census Bureau data for 2007, which now supersede data from the 2002 
Census, show that there were 450 firms in this category that operated 
for the entire year.\149\ Of these, 434 had annual receipts of 
$24,999,999 or less, and 16 had annual receipts ranging from not less 
that $25,000,000 to $100,000,000 or more.\150\ Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.
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    \147\ See U.S. Census Bureau, 2007 NAICS Definitions, ``51212 
Motion Picture and Video Distribution''; http://www.census.gov/naics/2007/def/NDEF512.HTM#N51212.
    \148\ 13 CFR 121.201, 2007 NAICS code 512120.
    \149\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=200&-ds_name=EC0751SSSZ4&-_lang=en.
    \150\ Id.
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E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    70. Certain proposed rule changes discussed in the NPRM would 
affect reporting, recordkeeping, or other compliance requirements. 
These proposed changes would primarily impact video programming vendors 
and MVPDs, and would only apply in the event a program carriage 
complaint is filed. First, the NPRM proposes revised discovery 
procedures for program carriage complaint proceedings in which the 
Media Bureau rules on the merits of the complaint after discovery.\151\ 
The revised discovery procedures would require parties to a complaint 
to produce certain documents to the other party within defined time 
periods.\152\ Under the expanded discovery process, a party to a 
program carriage complaint can request discovery directly from the 
other party, which that party may oppose, with the obligation to 
produce the disputed material suspended until the Commission rules on 
the objection.\153\ Under automatic document production, a party to a 
program carriage complaint

[[Page 60695]]

would be required to provide certain documents set forth in the 
Commission's rules to the other party within ten days after the Media 
Bureau's determination that the complainant has established a prima 
facie case.\154\ Second, the NPRM proposes adopting procedures allowing 
for the award of damages in program carriage cases.\155\ These 
procedures would require a program carriage complainant to provide 
either a detailed computation of damages or a detailed outline of the 
methodology that would be used to create a computation of damages.\156\ 
To the extent the Commission approves a damages computation 
methodology, the rules would require the parties to file with the 
Commission a statement regarding their efforts to agree upon a final 
amount of damages pursuant to the approved methodology.\157\ The NPRM 
proposes similar procedures for the application of new rates, terms, 
and conditions as of the expiration date of the previous contract in 
cases where the Media Bureau issues a standstill order in a program 
carriage complaint proceeding.\158\ Third, the NPRM proposes to adopt a 
rule providing that the Media Bureau or an ALJ may order parties to a 
program carriage complaint to submit their best ``final offer'' for the 
rates, terms, and conditions for the programming at issue in a 
complaint to assist in crafting a remedy.\159\ Fourth, the NPRM 
proposes to codify a requirement that the defendant MVPD in a program 
carriage complaint proceeding must make an evidentiary showing to the 
Media Bureau or an ALJ as to whether a mandatory carriage remedy would 
result in deletion of other programming on the MVPD's system.\160\ 
Fifth, the NPRM proposes to adopt a rule prohibiting an MVPD from 
retaliating against a video programming vendor for filing a program 
carriage complaint.\161\ If adopted, this rule would enable a video 
programming vendor to file a program carriage complaint alleging 
retaliation, and would require the defendant MVPD to defend its 
actions. Sixth, the NPRM proposes to adopt a rule requiring a 
vertically integrated MVPD to negotiate in good faith with an 
unaffiliated programming video programming vendor with respect to video 
programming that is similarly situated to video programming affiliated 
with the MVPD.\162\ If adopted, this rule would enable a video 
programming vendor to file a program carriage complaint alleging that a 
vertically integrated MVPD failed to negotiate in good faith, and would 
require the defendant MVPD to defend its actions. In addition, the rule 
would list objective good faith negotiation standards, the violation of 
which would be considered a per se violation of the good faith 
negotiation obligation.\163\ Seventh, the NPRM proposes to clarify that 
the program carriage discrimination provision precludes a vertically 
integrated MVPD from discriminating on the basis of a programming 
vendor's lack of affiliation with another MVPD.\164\ If adopted, this 
rule would enable a video programming vendor to file a program carriage 
complaint alleging that a vertically integrated MVPD discriminated on 
the basis of a programming vendor's lack of affiliation with another 
MVPD, and would require the defendant MVPD to defend its actions.
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    \151\ See NPRM in MB Docket No. 11-131 at paras. 41-49.
    \152\ See NPRM at paras. 43-44.
    \153\ See NPRM at para. 42.
    \154\ See NPRM at para. 44.
    \155\ See NPRM at paras. 51-52.
    \156\ See NPRM at para. 52.
    \157\ See NPRM at para. 52.
    \158\ See NPRM at para. 53.
    \159\ See NPRM at paras. 54-55.
    \160\ See NPRM at para. 58.
    \161\ See NPRM at paras. 60-67.
    \162\ See NPRM at paras. 68-71.
    \163\ See NPRM at para. 71.
    \164\ See NPRM at paras. 72-77.
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F. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    71. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\165\
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    \165\ 5 U.S.C. 603(c)(1)-(c)(4).
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    72. As discussed in the NPRM, our goal in this proceeding is to 
further improve our procedures for addressing program carriage 
complaints and to advance the goals of the program carriage statute. 
The specific changes on which we seek comment, set forth in Paragraph 3 
above, are intended to achieve these goals. By improving and clarifying 
the Commission's procedures for addressing program carriage complaints, 
the proposals would benefit both video programming vendors and MVPDs, 
including those that are smaller entities, as well as MVPD subscribers. 
Thus, the proposed rules would benefit smaller entities as well as 
larger entities. For this reason, an analysis of alternatives to the 
proposed rules is unnecessary. Further, we note that in the discussion 
of whether to require MVPDs to negotiate in good faith with 
unaffiliated video programming vendors \166\ and whether to clarify 
that the discrimination provision precludes an MVPD from discriminating 
on the basis of a programming vendor's lack of affiliation with another 
MVPD,\167\ the Commission in the NPRM specifically proposes to apply 
these rules to only vertically integrated MVPDs. Because small entities 
are unlikely to be vertically integrated MVPDs, this proposed 
limitation would provide particular benefit to small entities.
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    \166\ See NPRM in MB Docket No. 11-131 at para. 69.
    \167\ See NPRM at para. 72.
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    73. We invite comment on whether there are any alternatives we 
should consider that would minimize any adverse impact on small 
businesses, but which maintain the benefits of our proposals.

G. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    74. None.

III. Ordering Clauses

    75. Accordingly, It is ordered that pursuant to the authority 
contained in sections 4(i), 4(j), 303(r), and 616 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 536, 
this Notice of Proposed Rulemaking in MB Docket No. 11-131 Is Adopted.
    76. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, Shall Send a 
copy of this Notice of Proposed Rulemaking in MB Docket No. 11-131, 
including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 76

    Administrative practice and procedure, Cable television, Equal 
employment opportunity, Political candidates, and Reporting and 
recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

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

[[Page 60696]]

PART 76--MULTICHANNEL VIDEO AND 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, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 
522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 
552, 554, 556, 558, 560, 561, 571, 572 and 573.

    2. Section 76.1301 is amended by adding paragraphs (d) and (e) to 
read as follows:


Sec.  76.1301  Prohibited practices.

* * * * *
    (d) Retaliation. No multichannel video programming distributor 
shall retaliate against a video programming vendor for filing a 
complaint with the Commission alleging a violation of Sec.  76.1301, if 
the effect of the conduct is to unreasonably restrain the ability of 
the video programming vendor to compete fairly.
    (e) Bad faith negotiations. (1) No multichannel video programming 
distributor shall fail to negotiate in good faith with an unaffiliated 
video programming vendor with respect to video programming that is 
similarly situated to video programming affiliated (as defined in Sec.  
76.1300(a)) with the multichannel video programming distributor, if the 
effect of such a failure to negotiate in good faith is to unreasonably 
restrain the ability of the unaffiliated video programming vendor to 
compete fairly.
    (2) Video programming will be considered similarly situated based 
on a combination of factors, such as genre, ratings, license fee, 
target audience, target advertisers, target programming, and other 
factors.
    (3) The following actions or practices violate the multichannel 
video programming distributor's duty to negotiate in good faith as set 
forth in Sec.  76.1301(e)(1):
    (i) Refusal by the multichannel video programming distributor to 
negotiate for carriage;
    (ii) Refusal by the multichannel video programming distributor to 
designate a representative with authority to make binding 
representations on carriage;
    (iii) Refusal by the multichannel video programming distributor to 
meet and negotiate for carriage at reasonable times and locations, or 
acting in a manner that unreasonably delays carriage negotiations;
    (iv) Refusal by the multichannel video programming distributor to 
put forth more than a single, unilateral proposal;
    (v) Failure of the multichannel video programming distributor to 
respond to a carriage proposal of the other party, including the 
reasons for the rejection of any such proposal;
    (vi) Execution by the multichannel video programming distributor of 
an agreement with any party, a term or condition of which, requires 
that the multichannel video programming distributor not enter into a 
carriage agreement with an unaffiliated video programming vendor; and
    (vii) Refusal by the multichannel video programming distributor to 
execute a written carriage agreement that sets forth the full 
understanding of the unaffiliated video programming vendor and the 
multichannel video programming distributor.
    (4) In addition to the standards set forth in Sec.  76.1301(e)(3), 
an unaffiliated video programming vendor may demonstrate, based on the 
totality of the circumstances of a particular carriage negotiation, 
that a multichannel video programming distributor breached its duty to 
negotiate in good faith as set forth in Sec.  76.1301(e)(1).
    3. Section 76.1302 is amended by revising paragraphs (c) through 
(g) and by adding paragraphs (h) through (l) to read as follows:


Sec.  76.1302  Carriage agreement proceedings.

* * * * *
    (c) Contents of complaint. In addition to the requirements of Sec.  
76.7, a carriage agreement complaint shall contain:
    (1) Whether the complainant is a multichannel video programming 
distributor or video programming vendor, and, in the case of a 
multichannel video programming distributor, identify the type of 
multichannel video programming distributor, the address and telephone 
number of the complainant, what type of multichannel video programming 
distributor the defendant is, 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) The complaint must be accompanied by appropriate evidence 
demonstrating that the required notification pursuant to paragraph (b) 
of this section has been made.
    (4)(i) 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 (c)(4)(iii) of this section.
    (ii) 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 (c)(4)(iii) of this 
section where the defendant knew, or should have known that it was 
engaging in conduct violative of section 616.
    (iii) In all cases in which recovery of damages is sought, the 
complainant shall include within, or as an attachment to, the 
complaint, either:
    (A) 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
    (B) An explanation of:
    (1) The information not in the possession of the complaining party 
that is necessary to develop a detailed computation of damages;
    (2) The reason such information is unavailable to the complaining 
party;
    (3) The factual basis the complainant has for believing that such 
evidence of damages exists; and
    (4) A detailed outline of the methodology that would be used to 
create a computation of damages when such evidence is available.
    (d) Prima facie case. In order to establish a prima facie case of a 
violation of Sec.  76.1301, the complaint must contain evidence of the 
following:
    (1) The complainant is a video programming vendor as defined in 
section 616(b) of the Communications Act of 1934, as amended, and Sec.  
76.1300(e) or a multichannel video programming distributor as defined 
in section 602(13) of the Communications Act of 1934, as amended, and 
Sec.  76.1300(d);
    (2) The defendant is a multichannel video programming distributor 
as defined in section 602(13) of the Communications Act of 1934, as 
amended, and Sec.  76.1300(d); and
    (3) (i) Financial interest. In a complaint alleging a violation of 
Sec.  76.1301(a), documentary evidence or testimonial evidence 
(supported by an affidavit from a representative of the complainant) 
that supports the claim that the defendant required a financial 
interest in any program service as a condition for carriage on one or 
more of such defendant's systems.
    (ii) Exclusive rights. In a complaint alleging a violation of Sec.  
76.1301(b), documentary evidence or testimonial evidence (supported by 
an affidavit from a representative of the complainant) that supports 
the claim that the defendant coerced a video

[[Page 60697]]

programming vendor to provide, or retaliated against such a vendor for 
failing to provide, exclusive rights against any other multichannel 
video programming distributor as a condition for carriage on a system.
    (iii) Discrimination. In a complaint alleging a violation of Sec.  
76.1301(c):
    (A) Evidence that the conduct alleged has the effect of 
unreasonably restraining the ability of an unaffiliated video 
programming vendor to compete fairly; and
    (B)(1) Documentary evidence or testimonial evidence (supported by 
an affidavit from a representative of the complainant) that supports 
the claim that the defendant discriminated in video programming 
distribution on the basis of affiliation or non-affiliation of vendors 
in the selection, terms, or conditions for carriage of video 
programming provided by such vendors; or
    (2)(i) Evidence that the complainant provides video programming 
that is similarly situated to video programming provided by a video 
programming vendor affiliated (as defined in Sec.  76.1300(a)) with the 
defendant multichannel video programming distributor or with another 
multichannel video programming distributor, based on a combination of 
factors, such as genre, ratings, license fee, target audience, target 
advertisers, target programming, and other factors; and
    (ii) Evidence that the defendant multichannel video programming 
distributor is affiliated (as defined in Sec.  76.1300(a)) with any 
video programming vendor and has treated the video programming provided 
by the complainant differently than the similarly situated, affiliated 
video programming described in paragraph (d)(3)(iii)(B)(2)(i) of this 
section with respect to the selection, terms, or conditions for 
carriage.
    (iv) Retaliation. In a complaint alleging a violation of Sec.  
76.1301(d):
    (A) Evidence that the conduct alleged has the effect of 
unreasonably restraining the ability of the complainant to compete 
fairly; and
    (B)(1) Documentary evidence or testimonial evidence (supported by 
an affidavit from a representative of the complainant) that supports 
the claim that the defendant retaliated against the complainant for 
filing a complaint with the Commission alleging a violation of Sec.  
76.1301; or
    (2)(i) Evidence that the defendant multichannel video programming 
distributor has taken an adverse carriage action while the complainant 
has pending with the Commission a complaint alleging a violation of 
Sec.  76.1301 (the ``initial complaint'') or within two years after the 
initial complaint is resolved on the merits.
    (ii) An ``adverse carriage action'' for purposes of paragraph 
(d)(3)(iv)(B)(2)(i) of this section is any action taken by the 
defendant multichannel video programming distributor with respect to 
any video programming affiliated with the complainant that adversely 
impacts the complainant, including, but not limited to, refusing to 
carry any video programming affiliated with the complainant or moving 
any video programming affiliated with the complainant to a less 
favorable channel position or tier, provided that an ``adverse carriage 
action'' does not include the action at issue in the initial complaint.
    (v) Bad faith negotiations. In a complaint alleging a violation of 
Sec.  76.1301(e):
    (A) Evidence that the conduct alleged has the effect of 
unreasonably restraining the ability of the complainant to compete 
fairly;
    (B) Evidence that the complainant provides video programming that 
is similarly situated to video programming provided by a video 
programming vendor affiliated (as defined in Sec.  76.1300(a)) with the 
defendant multichannel video programming distributor based on a 
combination of factors, such as genre, ratings, license fee, target 
audience, target advertisers, target programming, and other factors; 
and
    (C) Evidence that the defendant multichannel video programming 
distributor breached its duty to negotiate in good faith pursuant to 
Sec.  76.1301(e).
    (e) Answer. (1) Any multichannel video programming distributor upon 
which a carriage agreement complaint is served under this section shall 
answer within sixty (60) 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.
    (3) To the extent that a defendant expressly references and relies 
upon a document or documents in asserting a defense or responding to a 
material allegation, such document or documents shall be included as 
part of the answer.
    (f) 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.
    (g) Prima facie determination. (1) Within sixty (60) calendar days 
after the complainant's reply to the defendant's answer is filed (or 
the date on which the reply would be due if none is filed), the Chief, 
Media Bureau shall release a decision determining whether the 
complainant has established a prima facie case of a violation of Sec.  
76.1301.
    (2) The Chief, Media Bureau may toll the sixty (60)-calendar-day 
deadline under the following circumstances:
    (i) If the complainant and defendant jointly request that the 
Chief, Media Bureau toll these deadlines in order to pursue settlement 
discussions or alternative dispute resolution or for any other reason 
that the complainant and defendant mutually agree justifies tolling; or
    (ii) If complying with the deadline would violate the due process 
rights of a party or would be inconsistent with fundamental fairness.
    (3) A finding that the complainant has established a prima facie 
case of a violation of Sec.  76.1301 means that the complainant has 
provided sufficient evidence in its complaint to allow the case to 
proceed to a ruling on the merits.
    (4) If the Chief, Media Bureau finds that the complainant has not 
established a prima facie case of a violation of Sec.  76.1301, the 
Chief, Media Bureau will dismiss the complaint.
    (h) Time limit on filing of complaints. Any complaint filed 
pursuant to this subsection must be filed within one year of the date 
on which the alleged violation of the program carriage rules occurred.
    (i) Deadline for decision on the merits. (1)(i) For program 
carriage complaints that the Chief, Media Bureau decides on the merits 
based on the complaint, answer, and reply without discovery, the Chief, 
Media Bureau shall release a decision on the merits within sixty (60) 
calendar days after the Chief, Media Bureau's prima facie 
determination.
    (ii) For program carriage complaints that the Chief, Media Bureau 
decides on the merits after discovery, the Chief, Media Bureau shall 
release a decision on the merits within 150 calendar days after the 
Chief, Media Bureau's prima facie determination.
    (iii) The Chief, Media Bureau may toll these deadlines under the 
following circumstances:
    (A) If the complainant and defendant jointly request that the 
Chief, Media Bureau toll these deadlines in order to pursue settlement 
discussions or alternative dispute resolution or for any other reason 
that the complainant and

[[Page 60698]]

defendant mutually agree justifies tolling; or
    (B) If complying with the deadline would violate the due process 
rights of a party or would be inconsistent with fundamental fairness.
    (2) For program carriage complaints that the Chief, Media Bureau 
refers to an administrative law judge for an initial decision, the 
deadlines set forth in Sec.  0.341(f) of this chapter apply.
    (j) Remedies for violations. (1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the adjudicator deciding 
the case on the merits (i.e., either the Chief, Media Bureau or an 
administrative law judge) 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 the adjudicator rules that the defendant has made a sufficient 
evidentiary showing that demonstrates that an 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 (j)(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) Submission of final offers. To assist in ordering an 
appropriate remedy, the adjudicator has the discretion to order the 
complainant and the defendant to each submit a final offer for the 
prices, terms, or conditions in dispute. The adjudicator has the 
discretion to adopt one of the final offers or to fashion its own 
remedy.
    (4) Imposition of damages.
    (i) Bifurcation. In all cases in which damages are requested, the 
adjudicator deciding the case on the merits (i.e., either the Chief, 
Media Bureau or an administrative law judge) may bifurcate the program 
carriage 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 carriage violation. Requests for damages that 
grossly overstate the amount of damages may result in a determination 
by the adjudicator that the complainant failed to satisfy its burden of 
proof to demonstrate with specificity the damages arising from the 
program carriage violation.
    (iii) Damages adjudication. (A) The adjudicator may, in its 
discretion, end adjudication of damages with a written order 
determining the sufficiency of the damages computation submitted in 
accordance with paragraph (c)(4)(iii)(A) of this section or the damages 
computation methodology submitted in accordance with paragraph 
(c)(4)(iii)(B)(4) of this section, modifying such computation or 
methodology, or requiring the complainant to resubmit such computation 
or methodology.
    (1) Where the adjudicator issues a written order approving or 
modifying a damages computation submitted in accordance with paragraph 
(c)(4)(iii)(A) of this section, the defendant shall recompense the 
complainant as directed therein.
    (2) Where the adjudicator issues a written order approving or 
modifying a damages computation methodology submitted in accordance 
with paragraph (c)(4)(iii)(B)(4) of this section, the parties shall 
negotiate in good faith to reach an agreement on the exact amount of 
damages pursuant to the adjudicator-mandated methodology.
    (B) Within thirty (30) days of the issuance of a paragraph 
(c)(4)(iii)(B)(4) of this section damages methodology order, the 
parties shall submit jointly to the adjudicator 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 adjudicator retains the 
right to determine the actual amount of damages on its own, or through 
the procedures described in paragraph (j)(4)(iii)(C)(2) of this 
section.
    (2) In cases in which the Chief, Media Bureau acts as the 
adjudicator, issues concerning the amount of damages may be designated 
by the Chief, Media Bureau for hearing before, or, if the parties 
agree, submitted for mediation to, an administrative law judge.
    (D) Interest on the amount of damages awarded will accrue from 
either the date indicated in the adjudicator's written order issued 
pursuant to paragraph (j)(4)(iii)(A)(1) of this section or the date 
agreed upon by the parties as a result of their negotiations pursuant 
to paragraph (j)(4)(iii)(A)(2) of this section. Interest shall be 
computed at applicable rates published by the Internal Revenue Service 
for tax refunds.
    (k) Petitions for temporary standstill. (1) A program carriage 
complainant seeking renewal of an existing programming contract may 
file a petition along with its complaint requesting a temporary 
standstill of the price, terms, and other conditions of the existing 
programming contract pending resolution of the complaint. To allow for 
sufficient time to consider the petition for temporary standstill prior 
to the expiration of the existing programming contract, the petition 
for temporary standstill and complaint shall be filed no later than 
thirty (30) days prior to the expiration of the existing programming 
contract. In addition to the requirements of Sec.  76.7, the 
complainant shall have the burden of proof to demonstrate the following 
in its petition:
    (i) The complainant is likely to prevail on the merits of its 
complaint;
    (ii) The complainant will suffer irreparable harm absent a stay;
    (iii) Grant of a stay will not substantially harm other interested 
parties; and
    (iv) The public interest favors grant of a stay.
    (2) The defendant multichannel video programming distributor upon 
which a petition for temporary standstill is served shall answer within 
ten (10) days of service of the petition, unless otherwise directed by 
the Commission.
    (3) If the Commission grants the temporary standstill, the 
adjudicator deciding the case on the merits (i.e., either the Chief, 
Media Bureau or an administrative law judge) will provide for remedies 
that are applied as of the expiration date of the previous programming 
contract. To facilitate the

[[Page 60699]]

application of remedies as of the expiration date of the previous 
programming contract, the adjudicator, after deciding the case on the 
merits, may request the party seeking to apply the remedies as of the 
expiration date of the previous programming contract to submit a 
proposal for such application of remedies pursuant to the procedures 
set forth in Sec.  76.1302(c)(4)(iii) and 76.1302(j)(4) for requesting 
damages. An opposition to such a proposal shall be filed within ten 
(10) days after the proposal is filed. A reply to an opposition shall 
be filed within five (5) days after the opposition is filed.
    (l) Protective Orders. In addition to the procedures contained in 
Sec.  76.9 related to the protection of confidential material, the 
Commission may issue orders to protect the confidentiality of 
proprietary information required to be produced for resolution of 
program carriage complaints. A protective order constitutes both an 
order of the Commission and an agreement between the party executing 
the protective order declaration and the party submitting the protected 
material. The Commission has full authority to fashion appropriate 
sanctions for violations of its protective orders, including but not 
limited to suspension or disbarment of attorneys from practice before 
the Commission, forfeitures, cease and desist orders, and denial of 
further access to confidential information in Commission proceedings.
    4. Section 76.1303 is added to read as follows:


Sec.  76.1303  Discovery.

    (a) Procedures. In addition to the general pleading and discovery 
rules contained in Sec.  76.7, the following procedures apply to 
complaints alleging a violation of Sec.  76.1301 in which the Chief, 
Media Bureau acts as the adjudicator.
    (b) Automatic document production. Within ten (10) calendar days 
after the Chief, Media Bureau releases a decision finding that the 
complainant has established a prima facie case of a violation of Sec.  
76.1301 and stating that the Chief, Media Bureau will issue a ruling on 
the merits of the complaint after discovery, each party must provide 
the following documents to the opposing party:
    (1) In a complaint alleging a violation of Sec.  76.1301(a):
    (i) All documents relating to carriage or requests for carriage of 
the video programming at issue in the complaint by the defendant 
multichannel video programming distributor;
    (ii) All documents relating to the defendant multichannel video 
programming distributor's interest in obtaining or plan to obtain a 
financial interest in the complainant or the video programming at issue 
in the complaint; and
    (iii) All documents relating to the programming vendor's 
consideration of whether to provide the defendant multichannel video 
programming distributor with a financial interest in the complainant or 
the video programming at issue in the complaint.
    (2) In a complaint alleging a violation of Sec.  76.1301(b):
    (i) All documents relating to carriage or requests for carriage of 
the video programming at issue in the complaint by the defendant 
multichannel video programming distributor;
    (ii) All documents relating to the defendant multichannel video 
programming distributor's interest in obtaining or plan to obtain 
exclusive rights to the video programming at issue in the complaint; 
and
    (iii) All documents relating to the programming vendor's 
consideration of whether to provide the defendant multichannel video 
programming distributor with exclusive rights to the video programming 
at issue in the complaint.
    (3) In a complaint alleging a violation of Sec.  76.1301(c):
    (i) All documents relating to the defendant multichannel video 
programming distributor's carriage decision with respect to the 
complainant's video programming at issue in the complaint, including 
the defendant multichannel video programming distributor's reasons for 
not carrying the video programming or the defendant multichannel video 
programming distributor's reasons for proposing, rejecting, or 
accepting specific carriage terms; and the defendant multichannel video 
programming distributor's evaluation of the video programming;
    (ii) All documents comparing, discussing the similarities or 
differences between, or discussing the extent of competition between 
the complainant's video programming at issue in the complaint and the 
allegedly similarly situated, affiliated video programming, including 
in terms of genre, ratings, license fee, target audience, target 
advertisers, and target programming;
    (iii) All documents relating to the impact of defendant 
multichannel video programming distributor's carriage decision on the 
ability of the complainant, the complainant's video programming at 
issue in the complaint, the defendant multichannel video programming 
distributor, and the allegedly similarly situated, affiliated video 
programming to compete, including the impact on subscribership; license 
fee revenues; advertising revenues; acquisition of advertisers; and 
acquisition of programming rights;
    (iv) For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, all documents (both internal documents as well as 
documents received from multichannel video programming distributors, 
but limited to the ten largest multichannel video programming 
distributors in terms of subscribers with which the complainant or the 
affiliated programming vendor have engaged in carriage discussions 
regarding the video programming) discussing the reasons for the 
multichannel video programming distributor's carriage decisions with 
respect to the video programming, including the multichannel video 
programming distributor's reasons for not carrying the video 
programming or the multichannel video programming distributor's reasons 
for proposing, rejecting, or accepting specific carriage terms; and the 
multichannel video programming distributor's evaluation of the video 
programming; and
    (v) For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, current affiliation agreements with the ten largest 
multichannel video programming distributors (including, if not 
otherwise covered, the defendant multichannel video programming 
distributor) carrying the video programming in terms of subscribers.
    (c) Party-to-party discovery. (1) Within twenty (20) calendar days 
after the Chief, Media Bureau releases a decision finding that the 
complainant has established a prima facie case of a violation of Sec.  
76.1301 and stating that the Chief, Media Bureau will issue a ruling on 
the merits of the complaint after discovery, each party to the 
complaint may serve requests for discovery directly on the opposing 
party, and file a copy of the request with the Commission.
    (2) Within five (5) calendar days after being served with a 
discovery request, the respondent may serve directly on the party 
requesting discovery an objection to any request for discovery that is 
not in the respondent's control or relevant to the dispute, and file a 
copy of the objection with the Commission.
    (3) Within five (5) calendar days after being served with an 
objection to a discovery request, the party requesting discovery may 
serve a reply to the objection directly on the respondent,

[[Page 60700]]

and file a copy of the reply with the Commission.
    (4) To the extent that a party has objected to a discovery request, 
the parties shall meet and confer to resolve the dispute. Within forty 
(40) calendar days after the Chief, Media Bureau releases a decision 
finding that the complainant has established a prima facie case of a 
violation of Sec.  76.1301 and stating that the Chief, Media Bureau 
will issue a ruling on the merits of the complaint after discovery, the 
parties shall file with the Commission a joint proposal for discovery 
as well as a list of issues pertaining to discovery that have not been 
resolved.
    (5) Until any objection to a discovery request is resolved either 
by the parties or by the Chief, Media Bureau, the obligation to produce 
the disputed discovery is suspended.
    (6) Unless the parties agree to extend the 150-calendar-day 
deadline for a decision on the merits by the Chief, Media Bureau set 
forth in Sec.  76.1302(i)(1)(ii), discovery must conclude within 75 
calendar days after the Chief, Media Bureau releases a decision finding 
that the complainant has established a prima facie case of a violation 
of Sec.  76.1301 and stating that the Chief, Media Bureau will issue a 
ruling on the merits of the complaint after discovery.
    (7) Any party who fails to timely provide discovery requested by 
the opposing party to which it has not raised an objection as described 
above, or who fails to respond to a Commission order for discovery, may 
be deemed in default and an order may be entered in accordance with the 
allegations contained in the complaint, or the complaint may be 
dismissed with prejudice.
    (8) Unless the parties agree to extend the 150-calendar-day 
deadline for a decision on the merits by the Chief, Media Bureau set 
forth in Sec.  76.1302(i)(1)(ii), the parties must submit post-
discovery briefs and reply briefs within twenty (20) calendar days and 
ten (10) calendar days, respectively, after the conclusion of 
discovery. Such briefs shall summarize the facts and issues presented 
in the pleadings and other record evidence, including the information 
exchanged during discovery.

[FR Doc. 2011-24239 Filed 9-28-11; 8:45 am]
BILLING CODE 6712-01-P