[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60652-60674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24240]



[[Page 60651]]

Vol. 76

Thursday,

No. 189

September 29, 2011

Part III





Federal Communications Commission





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47 CFR Parts 0, 1 and 76





Leased Commercial Access; Development of Competition and Diversity in 
Video Programming Distribution and Carriage; Revision of the 
Commission's Program Carriage Rules; Final Rule and Proposed Rule

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

[[Page 60652]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 76

[MB Docket No. 07-42; FCC 11-119]


Leased Commercial Access; Development of Competition and 
Diversity in Video Programming Distribution and Carriage

AGENCY: Federal Communications Commission.

ACTION: Final 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 amends its rules 
to improve the procedures for addressing complaints alleging violations 
of the program carriage rules.

DATES: Effective October 31, 2011, except for Sec. Sec.  1.221(h), 
1.229(b)(3), 1.229(b)(4), 1.248(a), 1.248(b), 76.7(g)(2), 
76.1302(c)(1), 76.1302 (d), 76.1302(e)(1), and 76.1302(k), which 
contain information collection requirements that are not effective 
until approved by the Office of Management and Budget. The FCC will 
publish a document in the Federal Register announcing the effective 
date for those sections.

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, contact Cathy Williams at 202-
418-2918, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, FCC 11-119, adopted on July 29, 2011 and released on 
August 1, 2011. The full text of this document is available for public 
inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street, 
SW., CY-A257, Washington, DC 20554. This document will also be 
available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be 
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request 
this document in accessible formats (computer diskettes, large print, 
audio recording, and Braille), send an e-mail to [email protected] or call 
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    This document adopts new or revised information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13 (44 U.S.C. 3501-3520). The requirements will be 
submitted to the Office of Management and Budget (OMB) for review under 
section 3507 of the PRA. The Commission will publish a separate notice 
in the Federal Register inviting comment on the new or revised 
information collection requirements adopted in this document. The 
requirements will not go into effect until OMB has approved it and the 
Commission has published a notice announcing the effective date of the 
information collection requirements. In addition, we note that pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how 
the Commission might ``further reduce the information collection burden 
for small business concerns with fewer than 25 employees.'' In this 
present document, we have assessed the potential effects of the various 
policy changes with regard to information collection burdens on small 
business concerns, and find that these requirements will benefit many 
companies with fewer than 25 employees by promoting the fair and 
expeditious resolution of program access complaints. In addition, we 
have described impacts that might affect small businesses, which 
includes most businesses with fewer than 25 employees, in the Final 
Regulatory Flexibility Analysis (``FRFA'') below.

Summary of the Second Report and Order

I. Introduction

    1. In 1993, the Commission adopted rules implementing a provision 
of the 1992 Cable Act \1\ pertaining to carriage of video programming 
vendors by multichannel video programming distributors (``MVPDs'') 
intended to benefit consumers by promoting competition and diversity in 
the video programming and video distribution markets (the ``program 
carriage'' rules).\2\ 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; (ii) coerced a video 
programming vendor to provide, or retaliated against a vendor for 
failing to provide, exclusive rights as a condition of carriage; 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. 
Congress specifically directed the Commission to provide for 
``expedited review'' of these complaints and to provide for appropriate 
penalties and remedies for any violations. 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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    \1\ 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.
    \2\ 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.
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    2. In this Second Report and Order in MB Docket No. 07-42,\3\ we 
take initial steps to improve our procedures for addressing program 
carriage complaints by \4\:
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    \3\ The initial Notice of Proposed Rulemaking in MB Docket No. 
07-42 was released in June 2007 and pertains to both program 
carriage and leased access issues. See Leased Commercial Access; 
Development of Competition and Diversity in Video Programming 
Distribution and Carriage, MB Docket No. 07-42, Notice of Proposed 
Rule Making, 22 FCC Rcd 11222 (2007) (``Program Carriage NPRM''). 
The Commission released a Report and Order and Further Notice of 
Proposed Rulemaking in this docket in February 2008 pertaining only 
to leased access issues. See Leased Commercial Access; Development 
of Competition and Diversity in Video Programming Distribution and 
Carriage, MB Docket No. 07-42, Report and Order, 23 FCC Rcd 2909 
(2008), stayed by United Church of Christ, et al. v. FCC, No. 08-
3245 (6th Cir. 2008).
    \4\ The new procedures adopted in the Second Report and Order do 
not apply to program carriage complaints that are currently pending 
or to program carriage complaints that are filed before the 
effective date of the new procedures adopted herein. See The Tennis 
Channel Inc. v. Comcast Cable Communications, LLC, MB Docket No. 10-
204, File No. CSR-8258-P (filed January 5, 2010); Bloomberg, L.P. v. 
Comcast Cable Communications, LLC, MB Docket No. 11-104 (filed June 
13, 2011).

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[[Page 60653]]

     Codifying in our rules what a program carriage complainant 
must demonstrate in its complaint to establish a prima facie case of a 
program carriage violation;
     Providing the defendant with 60 days (rather than the 
current 30 days) to file an answer to a program carriage complaint;
     Establishing deadlines for action by the Media Bureau and 
Administrative Law Judges (``ALJ'') when acting on program carriage 
complaints; and
     Establishing 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.
    3. In the Notice of Proposed Rulemaking in MB Docket No. 11-131, we 
seek comment on the following proposed revisions to or clarifications 
of our program carriage rules, which are intended to further improve 
our procedures and to advance the goals of the program carriage 
statute:
     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;
     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;
     Permitting the award of damages in program carriage cases;
     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;
     Clarifying the rule that delays the effectiveness of a 
mandatory carriage 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;
     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;
     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;
     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; and
     Codifying in our rules which party bears the burden of 
proof in program carriage discrimination cases.

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.

II. Background

    4. In the 1992 Cable Act, Congress sought to promote competition 
and diversity in the video distribution market as well as in the market 
for video programming carried by cable operators and other MVPDs. 
Congress expressed concern that the market power held by cable 
operators would adversely impact programming vendors, noting that 
``programmers are sometimes required to give cable operators an 
exclusive right to carry the programming, a financial interest, or some 
other added consideration as a condition of carriage on the cable 
system.'' \5\ Congress also explained that increased vertical 
integration in the cable industry could harm programming vendors 
because it gives cable operators ``the incentive and ability to favor 
their affiliated programmers.'' \6\ Congress concluded that this harm 
to programming vendors could adversely affect both competition \7\ and 
diversity \8\ in the video programming market, as well as hinder 
competition in the video distribution market.\9\
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    \5\ S. Rep. No. 102-92 (1991), at 24, reprinted in 1992 
U.S.C.C.A.N. 1133, 1157; see also id. (``[T]he Committee continues 
to believe that the operator in certain instances can abuse its 
locally-derived market power to the detriment of programmers and 
competitors.''); H.R. Rep. No. 102-628 (1992), at 41 (``Submissions 
to the Committee also suggest that some vertically integrated MSOs 
have agreed to carry a programming service only in exchange for an 
ownership interest in the service.'').
    \6\ 1992 Cable Act 2(a)(5) (``The cable industry has become 
vertically integrated; cable operators and cable programmers often 
have common ownership. As a result, 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.''); see also 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''); see id. (``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.''); H.R. Rep. No. 102-628 (1992), at 41 
(``Submissions to the Committee allege that some cable operators 
favor programming services in which they have an interest, denying 
system access to programmers affiliated with rival MSOs and 
discriminating against rival programming services with regard to 
price, channel positioning, and promotion.'').
    \7\ See S. Rep. No. 102-92 (1991), at 25-26, reprinted in 1992 
U.S.C.C.A.N. 1133, 1158-59 (``Because of the trend toward vertical 
integration, cable operators now have a clear vested interest in the 
competitive success of some of the programming services seeking 
access through their conduit.''); H.R. Rep. No. 102-628 (1992), at 
41 (``[T]he Committee received testimony that vertically integrated 
operators have impeded the creation of new programming services by 
refusing or threatening to refuse carriage to such services that 
would compete with their existing programming services.''); see also 
47 U.S.C. 536(a)(3) (requiring the Commission to adopt regulations 
prohibiting discrimination on the basis of affiliation that has 
``the effect of * * * unreasonably restrain[ing] the ability of an 
unaffiliated video programming vendor to compete fairly''); 1993 
Program Carriage Order, 9 FCC Rcd at 2643, para. 2 (``Congress 
concluded that vertically integrated cable operators have the 
incentive and ability to favor affiliated programmers over 
unaffiliated programmers with respect to granting carriage on their 
systems. Cable operators or programmers that compete with the 
vertically integrated entities may suffer harm to the extent that 
they do not receive such favorable terms.'').
    \8\ See H.R. Rep. No. 102-628 (1992), at 41 (``The Committee 
received testimony that vertically integrated companies reduce 
diversity in programming by threatening the viability of rival cable 
programming services.'').
    \9\ In addition to promoting competition and diversity in the 
video programming market, the Commission has explained that the 
program carriage provision of the 1992 Cable Act is also intended to 
promote competition in the video distribution market by ensuring 
that MVPDs have access to programming. See 1994 Program Carriage 
Order, 9 FCC Rcd at 4419, para. 28 (``[I]n passing section 616, 
Congress was concerned with the effect a cable operator's market 
power would have both on programmers and on competing MVPDs * * 
*.''); see also S. Rep. No. 102-92 (1991), at 23, reprinted in 1992 
U.S.C.C.A.N. 1133, 1156 (``In addition to using its market power to 
the detriment of consumers directly, a cable operator with market 
power may be able to use this power to the detriment of programmers. 
Through greater control over programmers, a cable operator may be 
able to use its market power to the detriment of video distribution 
competitors.'').
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    5. To address these concerns, Congress passed section 616 of the 
Communications Act of 1934, as amended (the ``Act''), which directs the 
Commission to ``establish regulations governing program carriage 
agreements and related practices between cable

[[Page 60654]]

operators or other [MVPDs] and video programming vendors.'' \10\ 
Congress mandated that these regulations shall include provisions 
prohibiting a cable operator or other MVPD from engaging in three types 
of conduct: (i) ``Requiring a financial interest in a program service 
as a condition for carriage on one or more of such operator's systems'' 
(the ``financial interest'' provision); (ii) ``coercing a video 
programming vendor to provide, and from retaliating against such a 
vendor for failing to provide, exclusive rights against other [MVPDs] 
as a condition of carriage on a system'' (the ``exclusivity'' 
provision); and (iii) ``engaging in conduct the effect of which is to 
unreasonably restrain 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 of video 
programming provided by such vendors'' (the ``discrimination'' 
provision). Section 616 also directs the Commission to (i) ``Provide 
for expedited review of any complaints made by a video programming 
vendor pursuant to'' section 616; (ii) ``provide for appropriate 
penalties and remedies for violations of [section 616], including 
carriage''; and (iii) ``provide penalties to be assessed against any 
person filing a frivolous complaint pursuant to'' section 616.
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    \10\ 47 U.S.C. 536. A ``video programming vendor'' is defined as 
``a person engaged in the production, creation, or wholesale 
distribution of video programming for sale.'' 47 U.S.C. 536(b).
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    6. In the 1993 Program Carriage Order, the Commission implemented 
section 616 by adopting procedures for the review of program carriage 
complaints as well as penalties and remedies. In doing so, the 
Commission explained that its rules were intended to prohibit the 
activities specified by Congress ``without unduly interfering with 
legitimate negotiating practices between [MVPDs] and programming 
vendors.'' The Commission's procedures generally provide for resolution 
of a program carriage complaint in one of four ways: (i) If the Media 
Bureau determines that the complainant has not made a prima facie 
showing in its complaint of a violation of the program carriage rules, 
the Media Bureau will dismiss the complaint; (ii) if the Media Bureau 
determines that the complainant has made a prima facie showing and the 
record is sufficient to resolve the complaint, the Media Bureau will 
rule on the merits of the complaint based on the pleadings without 
discovery; (iii) if the Media Bureau determines that the complainant 
has made a prima facie showing but the record is not sufficient to 
resolve the complaint, the Media Bureau will outline procedures for 
discovery before proceeding to rule on the merits of the complaint; and 
(iv) if the Media Bureau determines that the complainant has made a 
prima facie showing but the disposition of the complaint or discrete 
issues raised in the complaint will require resolution of factual 
disputes in an adjudicatory hearing or extensive discovery, the Media 
Bureau will refer the proceeding or discrete issues arising in the 
proceeding for an adjudicatory hearing before an ALJ. The Commission 
decided that appropriate relief for violations of the program carriage 
rules would be determined on a case-by-case basis, and could include 
forfeitures, mandatory carriage, or carriage on terms revised or 
specified by the Commission.\11\
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    \11\ See 1993 Program Carriage Order, 9 FCC Rcd at 2653, para. 
26. Eleven program carriage complaints have been filed in the 
approximately two decades since Congress passed section 616 in the 
1992 Cable Act, two of which are currently pending before an ALJ or 
the Media Bureau. See The Tennis Channel Inc. v. Comcast Cable 
Communications, LLC, Hearing Designation Order and Notice of 
Opportunity for Hearing for Forfeiture, 25 FCC Rcd 14149 (MB 2010) 
(``Tennis Channel HDO''); Bloomberg, L.P. v. Comcast Cable 
Communications, LLC, MB Docket No. 11-104 (filed June 13, 2011). In 
addition, the Commission has resolved on the merits a program 
carriage claim arising through the program carriage arbitration 
condition applicable to Regional Sports Networks (``RSNs'') adopted 
in the Adelphia Order. See TCR Sports Broadcasting Holding, L.L.P., 
d/b/a Mid-Atlantic Sports Network v. Time Warner Cable Inc., Order 
on Review, 23 FCC Rcd 15783 (MB 2008), reversed by Memorandum 
Opinion and Order, 25 FCC Rcd 18099 (2010) (``MASN v. Time Warner 
Cable''), appeal pending sub nom. TCR Sports Broadcasting Holding, 
L.L.P., d/b/a Mid-Atlantic Sports Network v. FCC, No. 11-1151 (4th 
Cir.).
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    7. In June 2007, the Commission released the Program Carriage NPRM 
seeking comment on revisions to the Commission's program carriage rules 
and complaint procedures. The Commission sought comment on whether and 
how the processes for resolving program carriage complaints should be 
modified; whether the elements of a prima facie case should be 
clarified; whether the deadline for resolving the program carriage 
complaint at issue in the MASN I HDO or a similar deadline should apply 
to all program carriage complaints; and whether additional rules are 
necessary to protect programming vendors from potential retaliation for 
filing a program carriage complaint.

III. Second Report and Order in MB Docket No. 07-42

    8. As discussed below, the record reflects that our current program 
carriage procedures are ineffective and in need of reform.\12\ Among 
other concerns, programming vendors and other commenters cite 
uncertainty concerning the evidence a complainant must provide to 
establish a prima facie case, \13\ unpredictable delays in the

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Commission's resolution of complaints,\14\ and fear of retaliation \15\ 
as impeding the filing of legitimate program carriage complaints. While 
MVPDs contend that the limited number of program carriage complaints 
filed to date demonstrates that the current procedures are working and 
that rule changes are not necessary, \16\ programming vendors contend 
that the lack of complaints is a direct result of our inadequate 
procedures, not a lack of program carriage claims.\17\ As discussed 
below, we take initial steps to improve these procedures by: (i) 
Codifying in our rules what a program carriage complainant must 
demonstrate in its complaint to establish a prima facie case of a 
program carriage violation; (ii) providing the defendant with 60 days 
(rather than the current 30 days) to file an answer to a program 
carriage complaint; (iii) establishing deadlines for action by the 
Media Bureau and an ALJ when acting on program carriage complaints; and 
(iv) establishing procedures for the Commission'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.
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    \12\ See Ex Parte Reply Comments of HDNet (June 2, 2010) at 6 
(``A right without an effective remedy is like having no right at 
all. Today, neither MVPDs nor independent programmers have reason to 
think that a possible statutory violation will be redressed by the 
FCC in a timely and effective manner.''); Comments of Black 
Television News Channel, LLC at 4 (``BTNC Comments''); Comments of 
National Alliance of Media Arts and Culture et al. at 18-19 (``NAMAC 
Comments''); Comments of NFL Enterprises LLC at 6-8 (``NFL 
Enterprises Comments''); Comments of The America Channel at 9-11 
(``TAC Comments''); Reply Comments of Crown Media Holdings, Inc. at 
10-11 (``Hallmark Channel Reply''); Reply Comments of HDNet at 1 
(``HDNet Reply''); Reply Comments of National Alliance of Media Arts 
and Culture et al. at 18-19 (``NAMAC Reply''); Reply Comments of NFL 
Enterprises LLC at 5-6 (``NFL Enterprises Reply''); Reply Comments 
of WealthTV at 1-2 (``WealthTV Reply''); see also Letter from 
Stephen A. Weiswasser, Counsel for the Outdoor Channel, to Marlene 
H. Dortch, Secretary, FCC, MB Docket No. 07-42 (Nov. 16, 2007) at 2 
(``Outdoor Channel Nov. 16, 2007 Ex Parte Letter''); Letter from 
Larry F. Darby, American Consumer Institute, to Marlene H. Dortch, 
Secretary, FCC, MB Docket No. 07-42 (Nov. 20, 2007) at 14 (``ACI 
Nov. 20, 2007 Ex Parte Letter''); Letter from David S. Turetsky, 
Counsel for HDNet LLC, to Marlene H. Dortch, Secretary, FCC, MB 
Docket No. 07-42 (Nov. 20, 2007) at 1-2 (``HDNet Nov. 20, 2007 Ex 
Parte Letter''); Letter from Kathleen Wallman, Counsel for National 
Association of Independent Networks (``NAIN''), to Marlene H. 
Dortch, Secretary, FCC, MB Docket No. 07-42 (June 5, 2008), 
Attachment (``NAIN June 5, 2008 Ex Parte Letter''); Letter from John 
Lawson, Executive Vice President, ION Media Networks, to Kevin J. 
Martin, Chairman, FCC, MB Docket No. 07-42 (Dec. 11, 2008), 
Attachment at 1 (``ION Dec. 11, 2008 Ex Parte Letter''). Members of 
Congress have also expressed concern with the program carriage 
complaint process. See Letter from Kathleen Wallman, Counsel for 
WealthTV, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 
(Aug. 4, 2008) (``WealthTV Aug. 4, 2008 Ex Parte Letter'') 
(attaching Letter from U.S. Sen. Kay Bailey Hutchison to Kevin J. 
Martin, Chairman, FCC (July 27, 2008) at 1 (expressing continued 
concern that ``the existing dispute resolution processes are not 
encouraging the timely resolution of these disputes or providing the 
proper incentives for the parties to negotiate terms'')); id. 
(attaching Letter from U.S. Sen. Amy Klobuchar to Kevin J. Martin, 
Chairman, FCC (July 24, 2008) at 1 (``Without an effective and 
timely FCC process to decide complaints * * * the integrity of any 
safeguards against program carriage discrimination is 
undermined.'')); Letter from David S. Turetsky, Counsel for HDNet 
LLC, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (July 
22, 2008) (``HDNet July 22, 2008 Ex Parte Letter'') (attaching 
Letter from U.S. Sen. Herb Kohl to Kevin J. Martin, Chairman, FCC 
(June 23, 2008) at 2 (urging the Commission ``to strengthen the 
program carriage rules and to simplify and make more efficient the 
process by which program carriage complaints are adjudicated'')); 
id. (attaching Letter from U.S. Reps. Gene Green, Mike Doyle, and 
Charles Gonzalez to Kevin J. Martin, Chairman, FCC (June 30, 2008) 
at 1-2 (``The current complaint process is not as efficient as it 
could be * * * . [W]e urge you to provide more effective remedies 
and streamline the complaint process * * * .'')).
    \13\ See TAC Comments at 10; NAMAC Reply at 18-19; WealthTV 
Reply at 1; NAIN June 5, 2008 Ex Parte Letter, Attachment at 1; 
Letter from Harold Feld, Counsel for NAMAC et al., to Marlene H. 
Dortch, Secretary, FCC, MB Docket No. 07-42 (May 2, 2008) at 1 
(``NAMAC May 2, 2008 Ex Parte Letter'').
    \14\ See Letter from Jonathan D. Blake, Counsel for the National 
Football League, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 
07-42 (Nov. 5, 2009) at 2 (``Based on the experience in the now-
settled NFL Network/Comcast hearing, the NFL believes that the 
Commission's processes are too slow * * *.''); BTNC Comments at 4; 
TAC Comments at 9; Letter from David S. Turetsky, Counsel for HDNet, 
to Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (June 16, 
2010), at 5 (``HDNet June 16, 2010 Ex Parte Letter''); see also 
NAMAC Comments at 18; HDNet Reply at 1; NFL Enterprises Reply at 8; 
WealthTV Reply at 1; ION Dec. 11, 2008 Ex Parte Letter, Attachment 
at 1; NAIN June 5, 2008 Ex Parte Letter, Attachment at 1.
    \15\ See BTNC Comments at 4; NAMAC Comments at 18-19; NFL 
Enterprises Comments at 8 n.28; NFL Enterprises Reply at 6; NAIN 
June 5, 2008 Ex Parte Letter, Attachment at 1.
    \16\ See Comments of Comcast Corporation at 27, 33 (``Comcast 
Comments''); Comments of the National Cable and Telecommunications 
Association at 14-15 (``NCTA Comments''); Comments of Time Warner 
Cable Inc. at 27-29 (``TWC Comments''); Reply Comments of Comcast 
Corporation at 21-23 (``Comcast Reply''); Reply Comments of the 
National Cable and Telecommunications Association at 18-19 (``NCTA 
Reply''); Reply Comments of Time Warner Cable Inc. at 2-3 (``TWC 
Reply''); Reply Comments of Verizon at 9-10 (``Verizon Reply'').
    \17\ See Letter from Stephen A. Weiswasser, Counsel for the 
Hallmark Channel, to Marlene H. Dortch, Secretary, FCC, MB Docket 
No. 07-42 (Nov. 6, 2007) at 1-2 (``[T]he absence of complaints under 
the existing program carriage regime is not evidence of lack of 
discrimination, but, to the contrary, a reflection of the 
difficulties presented to independents by the high burdens of going 
forward under the existing rules and the prospects for retaliation 
by MVPDs.'') (``Hallmark Channel Nov. 6, 2007 Ex Parte Letter''); 
see also BTNC Comments at 4 (citing fear of retaliation, 
unpredictable cost and delay, and uncertainty regarding evidence 
required and adequacy of relief as reasons for why few program 
carriage complaints have been filed to date); Hallmark Channel Reply 
at 11 (``[I]t simply is not the case that only two programmers have 
experienced discrimination during the time the rules have been in 
effect. The reality is that programmers do not bring complaints 
under the existing rules because of their high burden of proof with 
respect to predatory practices, the difficulty of fashioning 
meaningful resolutions, and the fear of retribution, not because 
discrimination does not, in fact, occur.'').
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A. Prima Facie Case

    9. In the 1993 Program Carriage Order, the Commission described the 
evidence a program carriage complainant must provide in its complaint 
to establish a prima facie case. Among other things, the Commission 
stated that the ``complaint must be supported by documentary evidence 
of the alleged violation, or by an affidavit (signed by an authorized 
representative or agent of the complaining programming vendor) setting 
forth the basis for the complainant's allegations.'' The Commission 
also emphasized that the complaint ``may not merely reflect conjecture 
or allegations based only on information and belief.'' The record 
reflects that programming vendors are uncertain as to what evidence 
must be provided in a complaint to meet the prima facie 
requirement.\18\ The National Association of Independent Networks 
(``NAIN''), for example, notes that our rules do not contain a 
definition of what constitutes a prima facie case and that this lack of 
clarity impedes programming vendors from asserting their program 
carriage rights through the complaint process.\19\
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    \18\ See TAC Comments at 10 (``[T]here are no clear guidelines 
on what constitutes a prima facie case of discrimination.''); NAMAC 
Reply at 18-19 (``[T]he current prima facie case requirement 
actively prevents the Commission from fulfilling the statutory 
command to resolve complaints `expeditiously.' Similarly, evidence 
in the record from independent programmers demonstrates that the 
prima facie case requirement may dissuade independent programmers 
from bringing genuine complaints due to confusion over the 
appropriate standard * * *.''); WealthTV Reply at 1 (``It is 
critical for independent programmers to know exactly what kind of 
evidence, and how much evidence, they need to present to move 
forward with a complaint.''); see also HDNet July 22, 2008 Ex Parte 
Letter (attaching Letter from U.S. Reps. Gene Green, Mike Doyle, and 
Charles Gonzalez to Kevin J. Martin, Chairman, FCC (June 30, 2008) 
at 2 (urging the Commission to adopt a ``better defined and more 
reasonable definition of a prima facie case''); NAMAC May 2, 2008 Ex 
Parte Letter at 1 (``If the Commission elects to retain the prima 
facie screen, the Commission must clarify what applicants must prove 
to meet this burden * * * .'').
    \19\ See NAIN June 5, 2008 Ex Parte Letter, Attachment 
(``Currently, there is no definition in the rules of what 
constitutes a prima facie case. Consequently, defendants argue their 
own versions of the standard to try to get independent programmers' 
complaints dismissed. This lack of clarity is a problem for 
independent programmers who are in litigation before the Commission, 
and for programmers who are contemplating litigation to vindicate 
their rights.'').
---------------------------------------------------------------------------

    10. While one commenter notes that the prima facie step is not 
required by the statute and urges the Commission to eliminate this step 
entirely,\20\ we believe that retaining this requirement is important 
to dispose promptly of frivolous complaints and to ensure that only 
legitimate complaints proceed to further evidentiary proceedings. We 
agree, however, that clarifying what is required to establish a prima 
facie case and codifying these requirements in our rules will help to 
reduce uncertainty regarding the prima facie requirement. In the 
following paragraphs, we clarify the requirements for establishing a 
prima facie case.
---------------------------------------------------------------------------

    \20\ See NAMAC Reply at 18 (``[T]he Commission adopted the 
requirement to establish a prima facie case solely on the basis of 
its own initiative.* * * [N]othing in section 616 requires the 
Commission to use a prima facie case requirement to limit the number 
of potentially frivolous complaints.'').
---------------------------------------------------------------------------

    11. As an initial matter, all complaints alleging a violation of 
any of the program carriage rules (i.e., the financial interest, 
exclusivity, or discrimination provisions) must contain evidence that 
(i) the complainant is a video programming vendor as defined in section 
616(b) of the Act and Sec.  76.1300(e) of the Commission's rules or an 
MVPD as defined in section 602(13) of the Act and Sec.  76.1300(d) of 
the Commission's rules; \21\ and (ii) the defendant is an MVPD as 
defined in section 602(13) of the Act and Sec.  76.1300(d) of the 
Commission's rules. We note that, as originally adopted in the 1993 
Program Carriage Order, the Commission's rules provided that a 
complaint must contain the ``address and telephone number of the

[[Page 60656]]

complainant, the type of multichannel video programming distributor 
that describes the defendant, and the address and telephone number of 
the defendant.'' In 1999, the Commission reorganized the part 76 
pleading and complaint process rules and, in the course of doing so, 
amended this rule to require the complaint to contain the ``type of 
multichannel video programming distributor that describes complainant, 
the address and telephone number of the complainant, and the address 
and telephone number of each defendant.'' We find this revised language 
confusing because it fails to reflect that a program carriage 
complainant can be either an MVPD or a video programming vendor. We 
amend this rule to clarify that the complaint must specify ``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.''
---------------------------------------------------------------------------

    \21\ See 1993 Program Carriage Order, 9 FCC Rcd at 2654, para. 
29; see also 47 U.S.C. 522(13), 536(b); 47 CFR 76.1300(d), (e). In 
the 1994 Program Carriage Order, the Commission amended the program 
carriage rules to allow MVPDs, in addition to video programming 
vendors, to file complaints alleging a violation of the program 
carriage rules. See 1994 Program Carriage Order, 9 FCC Rcd at 4418-
20, paras. 24-33. The Commission expressed concern that a video 
programming vendor that had been coerced into granting 
anticompetitive concessions, including exclusivity, to a cable 
operator might be dissuaded from filing a program carriage complaint 
based on fears of alienating the cable operator. See id. at 4416, 
para. 10 and 4420, paras. 30-31. Accordingly, the Commission amended 
its rules to provide MVPDs aggrieved by a violation of section 616 
to file a program carriage complaint with the Commission. See id. at 
4415, para. 3 and 4418-19, para. 24.
---------------------------------------------------------------------------

    12. Evidence supporting a program carriage claim may be based on an 
explicit or implicit threat.\22\ In complaints alleging a violation of 
the exclusivity or financial interest provisions, the complaint must 
contain direct evidence (either documentary or testimonial) supporting 
the facts underlying the claim. For example, a complainant alleging 
that an MVPD has coerced a programming vendor to grant exclusive 
carriage rights or required a financial interest in a program service 
must provide documentary evidence, such as an e-mail from the defendant 
MVPD, documenting the prohibited action, or an affidavit from a 
representative of the programming vendor involved in the relevant 
carriage negotiations detailing the facts supporting the alleged 
violation of the program carriage rules.
---------------------------------------------------------------------------

    \22\ See 1993 Program Carriage Order, 9 FCC Rcd at 2650, para. 
18 (``[W]e reject TCI's suggestion that we should require evidence 
of explicit threats, because we believe that actual threats may not 
always comprise a necessary condition for a finding of coercion. 
Requiring such evidence would establish an unreasonably high burden 
of proof that could undermine the intent of section 616 by allowing 
multichannel distributors to engage in bad faith negotiations that 
apparently would not violate the statute and our regulations simply 
because explicit threats were not made during such negotiations. In 
contrast, we believe that section 616(a)(2) was intended to prohibit 
implicit as well as explicit behavior that amounts to `coercion.' 
'').
---------------------------------------------------------------------------

    13. For complaints alleging a violation of the discrimination 
provision, however, direct evidence supporting a claim that the 
defendant MVPD discriminated ``on the basis of affiliation or non-
affiliation'' is sufficient to establish this element of a prima facie 
case but is not required. For example, an e-mail from the defendant 
MVPD stating that the MVPD took an adverse carriage action against the 
programming vendor because it is not affiliated with the MVPD will 
generally be sufficient to establish this element of a prima facie 
case. However, such documentary evidence is highly unlikely to be 
available to a programming vendor in advance of discovery, and may not 
exist at all.\23\ In addition, an affidavit from a representative of 
the programming vendor involved in the relevant carriage negotiations 
detailing the facts supporting a claim that a representative of the 
defendant MVPD informed the vendor that the MVPD took an adverse 
carriage action because the vendor is not affiliated with the MVPD will 
generally be sufficient to establish this element of a prima facie 
case. Again, however, we recognize that such direct evidence of 
affiliation-based discrimination will seldom be available to 
complainants and is not required to establish this element of a prima 
facie case.
---------------------------------------------------------------------------

    \23\ See Hallmark Channel Reply at 10 (``[D]iscrimination is 
often subtle, and the evidence of its existence is likely outside 
the control of an independent programmer.''); NFL Enterprises Reply 
at 5-6 (``[T]he best evidence of discriminatory motive is under the 
exclusive control of the MVPD * * *. [V]ertically integrated MVPDs 
are determined not to provide potential complainants with direct 
evidence of the underlying purpose of their discriminatory 
conduct.'').
---------------------------------------------------------------------------

    14. Because it is unlikely that direct evidence of a discriminatory 
motive will be available to potential complainants,\24\ we clarify that 
a complainant can establish this element of a prima facie case of a 
violation of the program carriage discrimination provision by providing 
the following circumstantial evidence of discrimination ``on the basis 
of affiliation or non-affiliation.'' First, the complainant programming 
vendor must provide evidence that it provides video programming that is 
similarly situated to video programming provided by a programming 
vendor affiliated with the defendant MVPD,\25\ based on a combination 
of factors, such as genre, ratings, license fee, target audience, 
target advertisers, target programming,\26\ and other factors.\27\ We 
emphasize that a finding at the prima facie stage that affiliated and 
unaffiliated video programming is similarly situated should be based on 
examination of a combination of factors put forth by the complainant. 
Although no single factor is necessarily dispositive, the more factors 
that are found to be similar, the more likely the programming in 
question will be considered similarly situated to the affiliated 
programming. On the other hand, it is unlikely that programming would 
be considered ``similarly situated'' if only one of these factors is 
found to be similar. For example, a complainant is unlikely to 
establish a prima facie case of

[[Page 60657]]

discrimination on the basis of affiliation by demonstrating that the 
defendant MVPD carries an affiliated music channel targeted to younger 
viewers but has declined to carry an unaffiliated music channel 
targeted to older viewers with lower ratings and a higher license fee. 
Second, the complaint must contain evidence that the defendant MVPD has 
treated the video programming provided by the complainant programming 
vendor differently than the similarly situated video programming 
provided by the programming vendor affiliated with the defendant MVPD 
with respect to the selection, terms, or conditions for carriage.\28\ 
In the absence of direct evidence supporting the claim that the 
defendant MVPD discriminated ``on the basis of affiliation or non-
affiliation,'' the circumstantial evidence discussed here will 
establish this element of a prima facie case of a violation of the 
program carriage discrimination provision.
---------------------------------------------------------------------------

    \24\ See NFL Enterprises Reply at 6 (stating that requiring only 
documentary evidence of improper motive before a programmer can file 
a complaint ``would make it extremely difficult to bring any 
complaint, since * * * vertically integrated MVPDs are skillful at 
ensuring that the best evidence of discrimination--and the only 
evidence of discriminatory intent--is found only in the control of 
the MVPD''); Outdoor Channel Nov. 16 2007 Ex Parte Letter at 2 
(``Because evidence of predatory intent is commonly controlled by 
the MVPD, and not the programmer, it is unrealistic to expect a 
programmer to have clear evidence of predation before it can bring a 
claim.'').
    \25\ 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. 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); but 
see NPRM in MB Docket No. 11-131, paras. 72-77 (seeking comment on 
whether to interpret 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).
    \26\ By ``target programming,'' we refer to programming rights 
that a video programming vendor seeks to acquire to display on its 
network.
    \27\ The Media Bureau will assess on a case-by-case basis 
whether the complaint contains evidence to establish at the prima 
facie stage that the affiliated and unaffiliated video programming 
is similarly situated. In previous cases assessing at the prima 
facie stage whether the complaint contains evidence that the 
affiliated and unaffiliated video programming is similarly situated, 
the Media Bureau has assessed similar factors. See Tennis Channel 
HDO, 25 FCC Rcd at 14159-60, paras. 17-18; Herring Broadcasting 
Inc., d/b/a WealthTV, et al., Memorandum Opinion and Hearing 
Designation Order, 23 FCC Rcd 14787, 14795-97, paras. 12-17 (MB 
2008) (``WealthTV HDO''); NFL Enters. LLC v. Comcast Cable 
Communications, LLC, Memorandum Opinion and Hearing Designation 
Order, 23 FCC Rcd 14787, 14822-23, para. 75 (MB 2008) (``NFL 
Enterprises HDO''); TCR Sports Broadcasting Holding, LLP, d/b/a Mid-
Atlantic Sports Network v. Comcast Corp., Memorandum Opinion and 
Hearing Designation Order, 23 FCC Rcd 14787, 14835-36, para. 108 (MB 
2008) (``MASN II HDO'').
    \28\ See Tennis Channel HDO, 25 FCC Rcd at 14160-61, para. 19; 
WealthTV HDO, 23 FCC Rcd at 14797, para. 18, 14801, para. 28, 14806, 
para. 40, 14812, para. 52; NFL Enterprises HDO, 23 FCC Rcd at 14823, 
para. 76; MASN II HDO, 23 FCC Rcd at 14836, para. 109; MASN I HDO, 
21 FCC Rcd at 8993-94, para. 11; but see Hutchens Communications, 
Inc. v. TCI Cablevision of Georgia, Inc., Memorandum Opinion and 
Order, 9 FCC Rcd 4849, 4853, para. 27 (CSB 1994) (finding that 
complainant programming vendor did not make a prima facie showing of 
discrimination on the basis of affiliation because it failed to 
demonstrate that it was offered different price, terms, or 
conditions as compared to that offered to an affiliated programming 
vendor).
---------------------------------------------------------------------------

    15. In addition, we note that the program carriage discrimination 
provision prohibits only conduct that has ``the effect of * * * 
unreasonably restrain[ing] the ability of an unaffiliated video 
programming vendor to compete fairly.'' Thus, regardless of whether the 
complainant relies on direct or circumstantial evidence of 
discrimination ``on the basis of affiliation or non-affiliation,'' 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.\29\
---------------------------------------------------------------------------

    \29\ See 1993 Program Carriage Order, 9 FCC Rcd at 2648, para. 
14 (citing 47 U.S.C. 536(a)(3)). The Media Bureau will assess on a 
case-by-case basis whether the complaint contains evidence at the 
prima facie stage to establish that the effect of the defendant 
MVPD's conduct is to unreasonably restrain the ability of the 
complainant video programming vendor to compete fairly. In previous 
cases, the Media Bureau has made this assessment based on the impact 
of the defendant MVPD's adverse carriage action on the programming 
vendor's subscribership, licensee fee revenues, advertising 
revenues, ability to compete for advertisers and programming, and 
ability to realize economies of scale. See Tennis Channel HDO, 25 
FCC Rcd at 14161-62, paras. 20-21; WealthTV HDO, 23 FCC Rcd at 
14798, para. 19, 14802, paras. 29-31, 14807-08, paras. 41-42, 14812-
13, paras. 53-54; NFL Enterprises HDO, 23 FCC Rcd at 14823-25, 
paras. 77-78; MASN II HDO, 23 FCC Rcd at 14836, para. 110; MASN I 
HDO, 21 FCC Rcd at 8993-94, para. 11.
---------------------------------------------------------------------------

    16. We emphasize that a Media Bureau finding that a complainant has 
established a prima facie case does not mean that the complainant has 
proven its case or any elements of its case on the merits. Rather, a 
prima facie finding means that the complainant has provided sufficient 
evidence in its complaint, without the Media Bureau having considered 
any evidence to the contrary, to proceed. If the complainant 
establishes a prima facie case but the record is not sufficient to 
resolve the complaint, the adjudicator (i.e., either the Media Bureau 
or an ALJ) will allow the parties to engage in discovery \30\ and will 
then conduct a de novo examination of all relevant evidence on each 
factual and legal issue. For example, although the Media Bureau may 
find that a complaint contains sufficient evidence to establish a prima 
facie case that a defendant MVPD's conduct has the effect of 
unreasonably restraining the ability of the complainant programming 
vendor to compete fairly, thus allowing the case to proceed, the 
adjudicator when ruling on the merits may reach an opposite conclusion 
after conducting further proceedings and developing a more complete 
evidentiary record.\31\
---------------------------------------------------------------------------

    \30\ 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. 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). In the NPRM in MB Docket No. 11-131, we propose to 
revise these procedures by providing for expanded discovery, whereby 
parties to a program carriage 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. See NPRM in MB Docket No. 11-131, paras. 42-43. 
We also seek comment on an automatic document production process 
whereby both parties would have a certain period of time after the 
Media Bureau's prima facie determination to produce basic threshold 
documents listed in the Commission's rules that are relevant to the 
program carriage claim at issue. See NPRM in MB Docket No. 11-131, 
paras. 44-47.
    \31\ Compare WealthTV HDO, 23 FCC Rcd 14787 with Herring 
Broadcasting Inc., d/b/a WealthTV, et al., Recommended Decision, 24 
FCC Rcd 12967 (Chief ALJ Sippel 2009) (``WealthTV Recommended 
Decision'') and Herring Broadcasting Inc., d/b/a WealthTV, et al., 
Memorandum Opinion and Order, FCC 11-94 (2011) (``WealthTV 
Commission Order''). We note, however, the Media Bureau in the 
course of making a prima facie determination may rule on the merits 
of certain elements of the case based on the pleadings and refrain 
from referring these specific issues for further evidentiary 
proceedings. For example, to the extent that the parties concede 
that the complainant is a video programming vendor and the defendant 
is an MVPD, further evidentiary proceedings on these issues are 
unnecessary.
---------------------------------------------------------------------------

    17. We also clarify that the Media Bureau's determination of 
whether a complainant has established a prima facie case is based on a 
review of the complaint (including any attachments) only. If the Media 
Bureau determines that the complainant has established a prima facie 
case, the Media Bureau will then review the answer (including any 
attachments) and reply to determine whether there are procedural 
defenses that might warrant dismissal of the case (e.g., arguments 
pertaining to the statute of limitations); whether there are any issues 
that the defendant MVPD concedes; whether there are substantial and 
material questions of fact as to whether the defendant MVPD has engaged 
in conduct that violates the program carriage rules; whether the case 
can be addressed by the Media Bureau on the merits based on the 
pleadings or whether further evidentiary proceedings are necessary; and 
whether the proceeding should be referred to an ALJ in light of the 
nature of the factual disputes. For example, if the Media Bureau 
determines that the complainant has established a prima facie case but 
the defendant MVPD provides legitimate and non-discriminatory business 
reasons in its answer for its adverse carriage decision, the Media 
Bureau might conclude that there are substantial and material questions 
of fact that warrant allowing the parties to engage in discovery or 
referring the matter to an ALJ for an adjudicatory hearing, or it might 
conclude that the complaint can be resolved on the merits based on the 
pleadings.

B. Deadline for Defendant's Answer to a Program Carriage Complaint

    18. Our current rule provides that an MVPD served with a program 
carriage complaint shall answer the complaint within 30 days of 
service. We amend this rule to provide an MVPD with 60 days to answer a 
program carriage complaint.\32\ Having established specific evidentiary 
requirements for what the complainant must provide in its

[[Page 60658]]

complaint to establish a prima facie case of a program carriage 
violation, we believe it is appropriate to provide the defendant with 
additional time to answer the complaint in order to develop a full, 
case-specific response, with supporting evidence, to the evidence put 
forth by the complainant. As discussed in the next section, Congress 
directed the Commission to ``provide for expedited review'' of program 
carriage complaints, and we adopt deadlines herein for the Media Bureau 
and ALJs when acting on program carriage complaints to satisfy this 
requirement. Providing additional time for a defendant to file an 
Answer to a complaint does not conflict with this requirement. By 
requiring a complainant to provide specific evidence in its complaint 
and providing a defendant with additional time to respond to this 
evidence and provide specific evidence supporting its response, the 
rules we adopt today will allow for the development of a more robust 
factual record earlier in the complaint process than under our current 
rules. We believe that this will better enable the Media Bureau to 
either resolve cases on the merits based on the pleadings without 
referring the matter to an ALJ, or narrow the factual issues in dispute 
that warrant discovery or referral to an ALJ. As a result, this will 
lead to the more expeditious resolution of disputes than under other 
current program carriage complaint procedures.
---------------------------------------------------------------------------

    \32\ See Letter from Ryan G. Wallach, Counsel for Comcast, to 
Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (Dec. 10, 
2008), Attachment at 2 (urging the Commission to allow defendants 60 
days to file an answer); Letter from Arthur H. Harding, Counsel for 
Time Warner Cable, to Marlene H. Dortch, Secretary, FCC, MB Docket 
No. 07-42 (June 1, 2011), at 2 (stating that a program carriage 
defendant needs a full and fair opportunity to respond to a 
complaint) (``Time Warner Cable June 1 2011 Ex Parte Letter'').
---------------------------------------------------------------------------

C. Deadlines for Media Bureau and ALJ Decisions

    19. The record reflects that the unpredictable and sometimes 
lengthy time frames for Commission action on program carriage 
complaints have discouraged programming vendors from filing 
complaints.\33\ Both programming vendors \34\ and MVPDs support 
expeditious action on program carriage complaints. We believe that 
establishing deadlines for the Media Bureau and ALJs when acting on 
program carriage complaints will help to resolve disputes quickly and 
efficiently and thus fulfill our statutory mandate to ``provide for 
expedited review'' of program carriage complaints. While the Commission 
in the 1993 Program Carriage Order directed both the Media Bureau and 
ALJs to resolve cases ``expeditiously,'' we now conclude that a 
specific deadline codified in our rules is needed to ensure that this 
goal is achieved.\35\
---------------------------------------------------------------------------

    \33\ See TAC Comments at 9 (``Faced with the likelihood of FCC 
inaction, combined with the real risk of retaliation by cable 
operators, [] no independent channel would want to file with the 
FCC.''); HDNet June 16 2010 Ex Parte Letter at 5 (``Independent 
programmers simply cannot commence proceedings against potential 
carriers, even in cases of clear misconduct, unless these 
proceedings are truly expedited, as Congress directed, because they 
risk retaliation and, for some independent programmers, financially 
ruinous delays in acquiring carriage for their programming.''); see 
also BTNC Comments at 4.
    \34\ See TAC Comments at 9 (requesting that the Commission 
provide a ``shot clock,'' such as a requirement that the Commission 
hear and resolve the complaint within 60 to 90 days); NFL 
Enterprises Reply at 8 (explaining that, given the time-sensitivity 
of program carriage disputes, it is critical that the Commission 
adopt a streamlined complaint process and an expedited timeline for 
dispute resolution); HDNET Reply at 1 (endorsing an expedited 
complaint resolution process); WealthTV Reply at 1 (same); see also 
NAMAC Comments at 18; ION Dec. 11 2008 Ex Parte Letter, Attachment 
at 1; NAIN June 5 2008 Ex Parte Letter, Attachment at 1; HDNet July 
22 2008 Ex Parte Letter (attaching Letter from U.S. Sen. Herb Kohl 
to Kevin J. Martin, Chairman, FCC (June 23, 2008) at 2 (``I urge 
that the FCC set a deadline by which program carriage complaints by 
programmers be decided in prompt and reasonable time * * *.'')); id. 
(attaching Letter from U.S. Sen. Byron L. Dorgan to Kevin J. Martin, 
Chairman, FCC (June 13, 2008) at 1 (``I worry that while the FCC has 
a shot clock for consideration of forbearance petitions, in a 
separate area of programming discrimination, the Commission lacks 
any type of timeline.'')); id. (attaching Letter from U.S. Reps. 
Gene Green, Mike Doyle, and Charles Gonzalez to Kevin J. Martin, 
Chairman, FCC (June 30, 2008) at 2 (urging the Commission to adopt a 
``shot clock'')).
    \35\ See 1993 Program Carriage Order, 9 FCC Rcd at 2655-56, 
para. 32 (directing Media Bureau staff to ``develop a discovery 
process and timetable to resolve the dispute expeditiously''); see 
id. at 2656, para. 34 (``ALJs are expected to resolve program 
carriage complaints expeditiously, and should hold an immediate 
status conference to establish timetables for discovery, hearing and 
submission of briefs and proposed findings of fact and conclusions 
of law.'').
---------------------------------------------------------------------------

    20. Action on program carriage complaints entails a two-step 
process: The initial prima facie determination by the Media Bureau, 
followed (if necessary) by a decision on the merits by an adjudicator 
(i.e., either the Media Bureau or an ALJ).\36\ We adopt deadlines 
herein for both of these steps. For the first step, we direct the Media 
Bureau to release a decision determining whether the complainant has 
established a prima facie case within 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). Based on our past 
experience in addressing program carriage complaints, we believe that 
60 calendar days after the complainant files its reply \37\ provides 
sufficient time for the Media Bureau to make a prima facie 
determination while providing for the ``expedited review'' required by 
Congress. In light of this expedited timeframe for the Media Bureau's 
prima facie determination, we again emphasize that complainants should 
not raise new matters in a reply \38\ and that additional pleadings 
outside of the pleading cycle will not be accepted.\39\
---------------------------------------------------------------------------

    \36\ A potential third step applies to the extent a party 
appeals the decision of the Media Bureau or an ALJ to the 
Commission. See 47 CFR 1.115, 76.10(c)(1) (pertaining to 
Applications for Review of actions taken on delegated authority); 47 
CFR 1.276, 76.10(c)(2) (pertaining to exceptions to initial 
decisions of an ALJ). We decline at this time to establish a 
deadline for Commission action on review of decisions by the Media 
Bureau or an ALJ.
    \37\ As amended herein, the program carriage rules provide for a 
80-calendar-day initial pleading cycle (i.e., a 60-calendar-day 
period for filing an answer to a complaint and a 20-calendar-day 
period for filing a reply to the answer). See 47 CFR 76.1302(e)(1), 
(f).
    \38\ See 47 CFR 76.1302(e) (stating that a reply ``shall be 
responsive to matters contained in the answer and shall not contain 
new matters'').
    \39\ See 1993 Program Carriage Order, 9 FCC Rcd at 2652, para. 
23 (``Given the statute's explicit direction to the Commission to 
handle program carriage complaints expeditiously, additional 
pleadings will not be accepted or entertained unless specifically 
requested by the reviewing staff.''); see id. at 2654-55, para. 30 
n.51 (``[U]nless specifically requested by the Commission or its 
staff, additional pleadings such as motions to dismiss or motions 
for summary judgment will not be considered. We intend to keep 
pleadings to a minimum to comply with the statutory directive for an 
expedited adjudicatory process.'') (emphasis in original).
---------------------------------------------------------------------------

    21. For the second step, we impose different deadlines for a ruling 
on the merits of the complaint depending upon whether the adjudicator 
is the Media Bureau or an ALJ. After the Media Bureau concludes that 
the complaint contains sufficient evidence to establish a prima facie 
case, the Media Bureau has three options for addressing the merits of 
the complaint: (i) The Media Bureau can rule on the merits of the 
complaint based on the pleadings without discovery; \40\ (ii) if the 
Media Bureau determines that the record is not sufficient to resolve 
the complaint, the Media Bureau may outline procedures for discovery 
before proceeding to rule on the merits of the complaint; \41\ or (iii) 
if the Media Bureau determines that disposition of the complaint or 
discrete issues raised in the complaint requires resolution of factual 
disputes or other extensive discovery in an adjudicatory proceeding, 
the Media Bureau will refer the proceeding or discrete issues arising 
in the proceeding for an adjudicatory

[[Page 60659]]

hearing before an ALJ.\42\ We establish the following deadlines for the 
adjudicator's decision on the merits. For complaints that the Media 
Bureau decides on the merits based on the pleadings without discovery, 
the Media Bureau must release a decision within 60 calendar days after 
its prima facie determination. We believe this timeframe is sufficient 
to allow the Media Bureau to review the record and draft and release a 
decision on the merits. For complaints that the Media Bureau decides on 
the merits after discovery is conducted, the Media Bureau must release 
a decision within 150 calendar days after its prima facie 
determination. We believe this timeframe is sufficient to allow for the 
entry of a protective order, discovery, and the submission of 
supplemental briefs and other information required by the Media Bureau, 
as well as for the Media Bureau to review the record and draft and 
release a decision on the merits. For complaints referred to an ALJ for 
a decision on the merits, we believe that a longer timeframe is 
warranted to allow for, among other things, the preparation for and 
conduct of a fair hearing, the submission of proposed findings of fact 
and conclusions of law, and the ALJ's preparation of an initial 
decision and, if necessary, formulation of a remedy. Accordingly, we 
direct the ALJ to release an initial decision within 240 calendar days 
after one of the parties informs the Chief ALJ that it elects not to 
pursue ADR or, if the parties have mutually elected to pursue ADR, 
within 240 calendar days after the parties inform the Chief ALJ that 
they have failed to resolve their dispute through ADR.\43\ To the 
extent that the Media Bureau refers only discrete issues raised in the 
proceeding to the ALJ rather than the entire proceeding, we expect that 
the ALJ will be able to act in less than 240 calendar days. We note 
that the Commission has previously stated that ``[t]ime limits on the 
ALJs are permissible so long as they do not unduly interfere with a 
judge's independence to control the course of the proceeding * * * or 
subject the judge to performance appraisals.'' \44\ We do not believe 
that the 240-calendar-day deadline adopted herein will unduly interfere 
with the ALJ's independence, and this deadline will not be used for 
performance appraisals.\45\
---------------------------------------------------------------------------

    \40\ See id. at 2652, para. 23 (``[W]e hereby adopt a system 
that promotes resolution of as many cases as possible on the basis 
of a complaint, answer and reply.''); but see id. at 2652, para. 24 
(``As a practical matter, however, given that alleged violations of 
section 616, especially those involving potentially `coercive' 
practices, will require an evaluation of contested facts and 
behavior related to program carriage negotiations, we believe that 
the staff will be unable to resolve most program carriage complaints 
on the sole basis of a written record as described above. Rather, we 
anticipate that resolution of most program carriage complaints will 
require an administrative hearing to evaluate contested facts 
related to the parties' specific negotiations.'').
    \41\ See id. at 2655-56, paras. 31-33; see also 47 CFR 76.7(f).
    \42\ See 1993 Program Carriage Order, 9 FCC Rcd at 2652, para. 
24 and 2656, para. 34; see also 47 CFR 76.7(g)(1). In cases referred 
to an ALJ, the parties have ten days after the Media Bureau's prima 
facie determination to elect whether to attempt to resolve their 
dispute through ADR. See 47 CFR 76.7(g)(2); see also 1993 Program 
Carriage Order, 9 FCC Rcd at 2652, para. 24 and 2656, para. 34.
    \43\ Sec.  76.7(g)(2) of the Commission's rules currently states 
that a party must submit in writing to the Commission its election 
as to whether to proceed to ADR. See 47 CFR 76.7(g)(2). We amend 
this rule to further specify that this election must also be 
submitted with the Chief ALJ.
    \44\ See Proposals to Reform the Commission's Comparative 
Hearing Process to Expedite the Resolution of Cases, Report and 
Order, 5 FCC Rcd 157, para. 40 n.26 (1990) (citing Butz v. Economou, 
438 U.S. 478, 513 (1978) and 5 CFR 930.211) (``1990 Comparative 
Hearing Order'').
    \45\ We note that only one previous ALJ decision has addressed 
the merits of a program carriage complaint. See WealthTV Recommended 
Decision. In that case, the ALJ reached a decision one year after 
the Media Bureau's HDO. We do not believe this timeframe is 
necessarily reflective of the time required to reach a decision on 
the merits of a program carriage complaint given the unique 
circumstances of this case, including the following: (i) The case 
consolidated four separate complaints involving the same complainant 
against four separate defendant MVPDs; and (ii) the proceeding was 
delayed by the Media Bureau's decision to take back jurisdiction 
over the case, which was subsequently rescinded by the Commission. 
See Herring Broadcasting Inc., d/b/a WealthTV, et al., Memorandum 
Opinion and Order, 23 FCC Rcd 18316 (MB 2008), rescinded by Herring 
Broadcasting Inc., d/b/a WealthTV, et al., Order, 24 FCC Rcd 1581 
(2009). Although the type and complexity of cases referred to ALJs 
vary considerably, we note that the ALJ has ruled within 
approximately 240 calendar days after referral in previous cases. 
See Under His Direction, Inc., Initial Decision, 11 FCC Rcd 16831 
(ALJ Luton 1996) (approximately eight months from HDO to ALJ's 
decision); AJI Broad., Inc., Initial Decision, 11 FCC Rcd 19756 (ALJ 
Luton 1996) (approximately eight months from HDO to ALJ's decision); 
Community Educ. Ass'n, Initial Decision, 10 FCC Rcd 3179 (ALJ 
Chachkin 1995) (approximately eight months from HDO to ALJ's 
decision); Aurio A. Matos, Initial Decision, 8 FCC Rcd 7920 (ALJ 
Gonzalez 1993) (approximately seven months from HDO to ALJ's 
decision).
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    22. We also amend certain procedural deadlines applicable to 
adjudicatory hearings to reflect that an adjudicatory hearing involving 
a program carriage complaint does not commence until a party elects not 
to pursue ADR pursuant to Sec.  76.7(g)(2) or, if the parties have 
mutually elected to pursue ADR, the parties fail to resolve their 
dispute through ADR. We also adopt expedited deadlines to account for 
the 240-calendar-day deadline for the ALJ's initial decision. First, we 
revise the deadline for filing a written appearance in a program 
carriage matter referred to an ALJ. Section 1.221(c) of the 
Commission's rules provides that a written appearance must be filed 
within 20 days of the mailing of the HDO. We amend this rule to provide 
that, in a program carriage complaint proceeding that the Media Bureau 
refers to an ALJ, a party must file a written appearance within five 
calendar days after the party informs the Chief ALJ that it elects not 
to pursue ADR or, if the parties have mutually elected to pursue ADR, 
within five calendar days after the parties inform the Chief ALJ that 
they have failed to resolve their dispute through ADR. Because the 
parties would have already been involved in a complaint proceeding 
before the Media Bureau resulting in the prima facie determination and 
will have had the opportunity to retain counsel for litigating the 
complaint before the Media Bureau, we believe that reducing the time 
for filing a written appearance in a program carriage matter referred 
to an ALJ from 20 to five days is reasonable. We also amend our rules 
to specify the consequences of failing to timely file a written 
appearance in a program carriage matter referred to an ALJ. If the 
complainant fails to file a written appearance by this deadline, or 
fails to file prior to the deadline either a petition to dismiss the 
proceeding without prejudice or a petition to accept, for good cause 
shown, a written appearance beyond such deadline, the Chief ALJ shall 
dismiss the complaint with prejudice for failure to prosecute. If the 
defendant fails to file a written appearance by this deadline, or fails 
to file prior to this deadline a petition to accept, for good cause 
shown, a written appearance beyond such deadline, its opportunity to 
present evidence at hearing will be deemed to have been waived. If the 
hearing is so waived, the Chief ALJ will terminate the proceeding and 
certify to the Commission the complaint for resolution based on the 
existing record. Second, we revise the deadline for filing a motion to 
enlarge, change, or delete issues. Section 1.229(a) provides that a 
motion to enlarge, change, or delete issues shall be filed within 15 
days after the HDO is published in the Federal Register. We amend this 
rule to provide that, in a program carriage complaint proceeding that 
the Media Bureau refers to an ALJ, a motion to enlarge, change, or 
delete issues shall be filed within 15 calendar days after the deadline 
for filing a written notice of appearance. Third, we revise the 
deadline for holding an initial prehearing conference. Section 1.248 of 
the Commission's rules provides that, to the extent an initial 
prehearing conference is scheduled, it shall be scheduled 30 days after 
the effective date of the HDO, unless good cause is shown for 
scheduling the conference at a later date. We amend this rule to 
provide that, to the extent the ALJ in a program carriage complaint 
proceeding conducts an initial prehearing conference, the conference 
shall be held no later than ten calendar days after the deadline for 
filing a written notice of appearance, or within such shorter or

[[Page 60660]]

longer period as the ALJ may allow consistent with the public 
interest.\46\
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    \46\ We note that the parties may commence discovery before the 
prehearing conference is held. See 47 CFR 1.311(c)(2).
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    23. We believe that the deadlines established herein for a decision 
by the Media Bureau or an ALJ on a program carriage complaint provide 
sufficient time for the adjudicator to reach a decision on the merits 
while also providing for the ``expedited review'' required by Congress 
and ensuring fairness to all parties.\47\ We will allow the adjudicator 
to toll these deadlines only under certain circumstances. First, the 
adjudicator can toll a deadline if the parties jointly request tolling 
in order to pursue settlement discussions or ADR or for any other 
reason that the parties mutually agree justifies tolling.\48\ Second, 
the adjudicator may toll a deadline if complying with the deadline 
would violate the due process rights of a party or would be 
inconsistent with fundamental fairness. Finally, in extraordinary 
situations, tolling a deadline may be necessary in light of the 
adjudicatory resources available at the time in the Office of 
Administrative Law Judges. The Commission has a number of alternatives 
under such circumstances to ensure expedited review, but a brief 
tolling of deadlines may be required in pending hearing cases. To the 
extent an ALJ decides to toll the deadline, we emphasize that this 
interlocutory decision will not be appealable to the Commission as a 
matter of right. Rather, pursuant to Sec.  1.301(b) of the Commission's 
rules, an appeal to the Commission of an ALJ's decision to toll the 
deadline shall be filed only if allowed by the ALJ. To the extent the 
ALJ does not allow an appeal, or if no permission to file an appeal is 
requested, an objection to the ALJ's decision to toll the deadline may 
be raised on review of the ALJ's initial decision.
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    \47\ We note that the Commission in the 1993 Program Carriage 
Order rejected a 90-day deadline for resolution of program carriage 
complaints. See 1993 Program Carriage Order, 9 FCC Rcd at 2655, 
para. 32 n.52. We continue to believe that a 90-day deadline is 
impractical, but the longer deadlines established herein are 
realistic given our experience with program carriage cases since 
1993. We also note that the Commission previously declined to adopt 
revised deadlines for resolving program access complaints, stating 
that ``overly accelerated pleading and discovery time periods can 
lead to increased litigation costs if the parties are required to 
hire additional staff and counsel in attempting to meet unrealistic 
deadlines.'' See Review of the Commission's Program Access Rules and 
Examination of Programming Tying Arrangements, MB Docket No. 07-198, 
Report and Order, 22 FCC Rcd 17791, 17857, para. 108 (2007) (``2007 
Program Access Order''). We find these concerns are not presented 
here because the deadlines we adopt for resolving program carriage 
complaints are not ``overly accelerated'' or unrealistic.
    \48\ For example, if the parties jointly request to toll the 
Media Bureau's 60-calendar-day deadline for reaching a prima facie 
determination to pursue settlement discussions or ADR, the Media 
Bureau will toll the deadline until the parties jointly inform the 
Media Bureau that efforts to resolve the dispute were unsuccessful. 
Similarly, if the parties jointly request to toll the deadline for 
reaching a decision on the merits, the adjudicator will toll the 
deadline until the parties jointly inform the adjudicator that 
efforts to resolve the dispute were unsuccessful.
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    24. Taken together, the 80-calendar-day initial pleading cycle, the 
60-calendar-day deadline for a prima facie determination, the 10-
calendar-day ADR election period in cases referred to an ALJ, and the 
60- or 150-calendar-day (in cases decided by the Media Bureau, 
depending on whether discovery is conducted) or 240-calendar-day (in 
cases decided by an ALJ) deadline for a ruling on the merits mean that 
program carriage complaints will be resolved within approximately seven 
or ten months (in cases decided by the Media Bureau, depending on 
whether discovery is conducted) or thirteen months (in cases decided by 
an ALJ) after a complaint is filed, assuming that the parties do not 
elect ADR or seek to toll the deadlines. While these timeframes are 
longer than our aspirational goals for resolving program access 
complaints,\49\ we believe these time frames are necessary given the 
often fact-intensive nature of program carriage claims, which will 
often focus on the details of the negotiation process and similarities 
and differences in programming.\50\
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    \49\ See 2007 Program Access Order, 22 FCC Rcd at 17857, para. 
108 (retaining goal of resolving program access complaints within 
five months from the submission of a complaint for denial of 
programming cases, and nine months for all other program access 
complaints, such as price discrimination cases).
    \50\ See Comcast Comments at 31-33 (arguing that program 
carriage cases are more complex than program access cases).
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D. Temporary Standstill of Existing Contract Pending Resolution of a 
Program Carriage Complaint

    25. We establish 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. The 
procedures we adopt herein mirror the procedures adopted previously for 
temporary standstills involving program access complaints.\51\ The 
record reflects that, absent a standstill, an MVPD will have the 
ability to retaliate against a programming vendor that files a 
legitimate complaint by ceasing carriage of the programming vendor's 
video programming, thereby harming the programming vendor as well as 
viewers who have come to expect to be able to view that video 
programming.\52\ Moreover, absent a standstill, programming vendors may 
feel compelled to agree to the carriage demands of MVPDs, even if these 
demands violate the program carriage rules, in order to maintain 
carriage of video programming in which they have made substantial 
investments. While some MVPDs may offer month-to-month extensions after 
expiration of a carriage contract, programming vendors explain that 
such extensions may lead to uncertainty for viewers and programming 
vendors and impede the ability of programming vendors to attract 
financing.
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    \51\ See 47 CFR 76.1003(l); Review of the Commission's Program 
Access Rules and Examination of Programming Tying Arrangements, 
First Report and Order, 25 FCC Rcd 746, 794-797, paras. 71-75 (2010) 
(``2010 Program Access Order''), vac'd in part, Cablevision Sys. 
Corp. v. FCC, 2011 WL 2277217 (D.C. Cir. June 10, 2011). Comcast 
contends that the Commission ``should be wary'' of importing a 
standstill adopted for program access complaints into the program 
carriage context because, unlike the program access context where a 
network is under an obligation not to withhold the network from an 
MVPD, there is no duty to carry a network in the program carriage 
context. See Letter from David P. Murray, Counsel for Comcast, to 
Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (July 25, 
2011), at 3 n.9 (``Comcast July 25 2011 Ex Parte Letter''). In fact, 
the Commission adopted a program access standstill requirement for 
both satellite-delivered and terrestrially delivered networks, 
despite the fact that a terrestrially delivered network is under no 
obligation to refrain from withholding the network from an MVPD in 
the absence of a Commission order. See 2010 Program Access Order, 25 
FCC Rcd at 794, para. 71. We also note that there are important 
parallels between the program access and program carriage regimes, 
inasmuch as both are based on concerns with the impact of vertical 
integration on competition in the video distribution and video 
programming markets. Moreover, Comcast ignores the fact that the 
program carriage regime may also impose a duty on an MVPD to carry a 
programming vendor if the MVPD otherwise refuses to do so on the 
basis of affiliation or non-affiliation.
    \52\ See WealthTV Aug. 4 2008 Ex Parte Letter (attaching Letter 
from U.S. Sen. Amy Klobuchar to Kevin J. Martin, Chairman, FCC (July 
24, 2008) at 1 (``Independent programming providers continue to 
express concern that continued uncertainties and delays create a 
chilling effect on their willingness to bring discrimination 
complaints, because of their fear of potential retaliation by MVPDs 
while a complaint remains pending.'')); HDNet Nov. 20 2007 Ex Parte 
Letter at 2 (``An MVPD could retaliate by allowing the clock to run 
and harmful uncertainty about the unaffiliated video programming 
provider to mount, or even by allowing the arrangement to expire and 
then removing the unaffiliated video programming provider from the 
platform.''); see also NAIN June 5 2008 Ex Parte Letter, Attachment 
at 1; Letter from David S. Turetsky, Counsel for HDNet LLC, to 
Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (June 4, 
2008) at 2.
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    26. The Supreme Court has affirmed the Commission's authority to 
impose interim injunctive relief, in the form of a standstill order, 
pursuant to section

[[Page 60661]]

4(i).\53\ The Commission recently relied on this authority in adopting 
standstill procedures for program access cases. Under section 4(i), the 
Commission is authorized to ``make such rules and regulations * * * as 
may be necessary in the execution of its functions,'' and to ``[m]ake 
such rules and regulations * * * not inconsistent with law, as may be 
necessary to carry out the provisions of this Act.'' \54\ Accordingly, 
the Commission has statutory authority to impose a temporary standstill 
of an existing contract in appropriate cases pending resolution of a 
program carriage complaint. While a complainant could request, and the 
Commission or Media Bureau could issue, a standstill order in a program 
carriage complaint proceeding under the same standards described in 
this order without the new procedures adopted herein, we believe that 
codifying uniform procedures will help to expedite action on standstill 
requests and provide guidance to complainants and MVPDs.\55\
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    \53\ United States v. Southwestern Cable Co., 392 U.S. 157, 181 
(1968); see also AT&T Corp. v. Ameritech Corp., Memorandum Opinion 
and Order, 13 FCC Rcd 14508 (1998) (standstill order issued pursuant 
to 47 U.S.C. 154(i) temporarily preventing Ameritech from enrolling 
additional customers in, and marketing and promoting, a ``teaming'' 
arrangement with Qwest Corporation pending a decision concerning the 
lawfulness of the program); Formal Complaints Order, 12 FCC Rcd at 
22566, para. 159 and n.464 (1997) (stating that the Commission has 
authority under section 4(i) of the Act to award injunctive relief); 
Time Warner Cable, Order on Reconsideration, 21 FCC Rcd 9016 (MB 
2006) (standstill order issued pursuant to section 4(i) denying a 
stay and reconsideration of the Media Bureau's order requiring Time 
Warner temporarily to reinstate carriage of the NFL Network on 
systems that it recently acquired from Adelphia Communications and 
Comcast Corporation until the Commission could resolve on the merits 
the Emergency Petition for Declaratory Ruling filed by the NFL).
    \54\ 47 U.S.C. 154(i), 303(r). In contract to the retransmission 
consent context, there is no statutory provision with which the 
Commission-ordered standstill of a program carriage agreement would 
be inconsistent. See 47 U.S.C. 325(b)(1)(A) (``No cable system or 
other multichannel video programming distributor shall retransmit 
the signal of a broadcasting station, or any part thereof, except- 
(A) with the express authority of the originating station''); 
Amendment of the Commission's rules Related to Retransmission 
Consent, MB Docket No. 10-71, Notice of Proposed Rulemaking, 26 FCC 
Rcd 2718, 2727-29, paras. 18-19 (2011) (``Retransmission Consent 
NPRM'') (concluding that section 325(b) prevents the Commission from 
ordering interim carriage over the objection of the broadcaster, 
even upon a finding of a violation of the good faith negotiation 
requirement, and seeking comment on this conclusion).
    \55\ NCTA has suggested that section 624(f)(1) of the 
Communications Act, which generally prohibits any Federal agency, 
State, or franchising authority from imposing ``requirements 
regarding the provision or content of cable services, except as 
expressly provided in this title,'' precludes all temporary 
standstill orders in the context of a program carriage complaint 
proceeding. 47 U.S.C. 544(f)(1); see Letter from Rick Chessen, NCTA, 
to Marlene H. Dortch, Secretary, FCC, MB Docket No. 07-42 (July 1, 
2011) (``NCTA July 1 2011 Ex Parte Letter''); see also Comcast July 
25 2011 Ex Parte Letter at 1-2. We disagree. Section 616(a) 
expressly directs the Commission to ``establish regulations 
governing program carriage agreements and related practices.'' 47 
U.S.C. 536(a). Further, a temporary standstill order could be found 
necessary to prevent the likely occurrence of one of the practices 
expressly prohibited in section 616(a). See 47 U.S.C. 536(a)(1)-(3). 
Moreover, we note that section 624(f)(1) is directed at the 
``provision or content of cable services'' and thus by its terms 
does not apply to other types of MVPD services, such as direct 
broadcast satellite service. 47 U.S.C. 544(f)(1). We need not, and 
do not, decide whether section 624(f)(1) would bar granting 
temporary injunctive relief in the program carriage context in some 
circumstances. Instead, we ask for comment on that issue in the 
accompanying NPRM in MB Docket No. 11-131.
    We also reject Comcast's claim that the Commission cannot rely 
on section 4(i) as authority for granting a standstill because 
section 616(a)(5) of the Act and Sec.  76.1302(g)(1) of the 
Commission's rules prevent the Commission from imposing remedies or 
penalties unless and until a violation of section 616 has been found 
after an adjudication on the merits. See Comcast July 25 2011 Ex 
Parte Letter at 1-2 (citing 47 U.S.C. 536(a)(5) (requiring the 
Commission to establish regulations ``provid[ing] for appropriate 
penalties and remedies for violations of this subsection, including 
carriage''); 47 CFR 76.1302(g)(1) (``Upon completion of such 
adjudicatory proceeding, the Commission shall order appropriate 
remedies * * *.''); AT&T Co. v. FCC, 487 F.2d 865, 874-76 (2d Cir. 
1973)). As an initial matter, as noted above, the Commission has 
longstanding authority to grant injunctive relief pursuant to 
section 4(i) and recently relied on that authority in adopting 
standstill procedures for program access cases. We do not believe 
that the provisions cited by Comcast preclude the Commission from 
imposing interim injunctive relief upon an appropriate showing. 
Indeed, the Commission relied on section 4(i) in adopting a 
standstill procedure for program access complaints despite language 
in the program access provisions of the Act and the Commission's 
rules similar to the language cited by Comcast. See 47 U.S.C. 
548(e)(1) (``Upon completion of such adjudicatory proceeding, the 
Commission shall have the power to order appropriate remedies * * 
*.''); 47 CFR 76.1003(h)(1) (``Upon completion of such adjudicatory 
proceeding, the Commission shall order appropriate remedies * * 
*.'').
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    27. Pursuant to the rules we adopt herein, a program carriage 
complainant seeking renewal of an existing programming contract, under 
which programming is then being provided, may submit along with its 
complaint a petition for a temporary standstill of its programming 
contract pending resolution of the complaint.\56\ We encourage 
complainants to file the petition and complaint sufficiently in advance 
of the expiration of the existing contract, and in no case later than 
30 days prior to such expiration, to provide the Media Bureau with 
sufficient time to act prior to expiration. In its petition, the 
complainant must demonstrate how grant of the standstill will meet the 
following four criteria: (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.\57\ As part of a showing of 
irreparable harm, a complainant may discuss, among other things, the 
impact on subscribers and the extent to which the programming vendor's 
advertising and license fee revenues and its ability to compete for 
advertisers and programming will be adversely affected absent a 
standstill.\58\

[[Page 60662]]

In order to ensure an expedited decision, the defendant will have ten 
calendar days after service to file an answer to the petition for a 
standstill order. In acting on the petition, the Media Bureau may limit 
the length of the standstill to a defined period or may specify that 
the standstill will continue until the adjudicator resolves the 
underlying program carriage complaint. The adjudicator may lift the 
temporary standstill to the extent that it finds that the stay is 
having a negative effect on settlement negotiations or is otherwise no 
longer in the public interest.
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    \56\ We note that program carriage claims involving existing 
contracts do not arise solely at renewal. The Media Bureau has 
previously found at the prima facie stage of review that a 
complainant may have a timely program carriage claim in the middle 
of a contract term if the basis for the claim is an allegedly 
discriminatory decision made by the MVPD that the contract left to 
the MVPD's discretion. See Tennis Channel HDO, 25 FCC Rcd at 14154-
59, paras. 11-16; see also NFL Enterprises HDO, 23 FCC Rcd at 14819-
20, paras. 69-70; MASN II HDO, 23 FCC Rcd at 14833-35, paras. 102-
105. We will consider the availability of a standstill outside of 
the renewal context on a case-by-case basis.
    \57\ See, e.g., Virginia Petroleum Jobbers Ass'n v. FPC, 259 
F.2d 921, 925 (D.C. Cir. 1958); see also Washington Metropolitan 
Area Transit Comm'n v. Holiday Tours, 559 F.2d 841 (D.C. 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). We reject Comcast's claim 
that the first criterion requires a showing of a ``substantial'' 
likelihood of success on the merits. See Comcast July 25 2011 Ex 
Parte Letter at 3. The factors set forth above are consistent with 
Supreme Court precedent (Winter v. Natural Resources Defense 
Council, Inc., 555 U.S. 7 (2008)) and a recent D.C. Circuit case 
applying Winter. See Winter, 505 U.S. at 20 (``A plaintiff seeking a 
preliminary injunction must establish that he is likely to succeed 
on the merits, that he is likely to suffer irreparable harm in the 
absence of preliminary relief, that the balance of equities tips in 
his favor, and that an injunction is in the public interest.'') 
(emphasis added; citations omitted); Sherley v. Sebelius, 2011 WL 
1599685, *4 (D.C. Cir. Apr. 29, 2011) (quoting and applying the 
Winter test). We also reject Comcast's claim that a program carriage 
standstill is a ``mandatory injunction'' subject to a heightened 
standard because it will not preserve the status quo but will 
instead extend the term of a contract set to expire on an agreed-
upon date and form a new, government-mandated contract. See Comcast 
July 25 2011 Ex Parte Letter at 2. As discussed above, we require a 
complainant to file a standstill request at least 30 days prior to 
the expiration of a contract to allow the Media Bureau with 
sufficient time to act prior to expiration. Accordingly, despite 
Comcast's claims, a program carriage standstill, if granted, will 
preserve the status quo by requiring continued carriage of a network 
that is being carried at the time the standstill is granted.
    \58\ Comcast claims that a complainant is unlikely to meet the 
requirements for a standstill because (i) Under the first factor, it 
is unlikely that the facts will be developed at the standstill stage 
to demonstrate a likelihood of success on the merits, at least with 
respect to program carriage complaints alleging discrimination based 
on circumstantial evidence; (ii) under the second factor, 
irreparable harm cannot be established when there is an adequate 
remedy at law, which Comcast claims exists through a mandatory 
carriage remedy after a finding of a program carriage violation; and 
(iii) under the third factor, forced carriage would result in 
substantial harm to MVPDs by violating their First Amendment rights. 
See Comcast July 25 2011 Ex Parte Letter at 4-5. The Media Bureau 
will have the opportunity to consider these arguments when assessing 
the facts and circumstances presented in a standstill request on a 
case-by-case basis. We find no basis to deny complainants the 
opportunity to pursue a standstill in the program carriage context 
simply because of the potential difficulty in satisfying the 
requirements for a standstill. In this regard, we note that 
``injunctive relief [is] an extraordinary remedy that may only be 
awarded upon a clear showing that the plaintiff is entitled to such 
relief.'' Winter, 505 U.S. at 21 (citation omitted); see also 2010 
Program Access Order, 25 FCC Rcd at 795, para. 73 n.266 (```when a 
party seeks injunctive relief (which is precisely what a standstill 
is), the law is clear that this is a request for `extraordinary 
relief,' and courts therefore require such party to demonstrate, on 
a case-by-case basis with a sufficient evidentiary record, that it 
satisfies' the criteria set forth in Virginia Petroleum Jobbers 
Ass'n)'') (quoting with approval Time Warner Comments at 14 n.42); 
Sky Angel, 25 FCC Rcd 3879, 3884, para. 10 (MB 2010) (``we are 
unable to conclude that Sky Angel has met its burden of 
demonstrating that the extraordinary relief of a standstill order is 
warranted'').
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    28. If the Media Bureau grants the temporary standstill, the 
adjudicator ruling on the merits of the complaint (i.e., either the 
Media Bureau or an ALJ) will apply the terms of the new agreement 
between the parties, if any, as of the expiration date of the previous 
agreement. For example, if carriage of the video programming has 
continued uninterrupted during resolution of the complaint, and if the 
decision on the merits requires the defendant MVPD to pay a higher 
amount to the programming vendor than was required under the terms of 
the expired contract, the defendant MVPD will make an additional 
payment to the programming vendor in an amount representing the 
difference between the amount that is required to be paid pursuant to 
the decision and the amount the defendant MVPD paid under the terms of 
the expired contract pending resolution of the complaint. Conversely, 
if carriage of the video programming has continued uninterrupted during 
resolution of the complaint, and if the decision on the merits requires 
the defendant MVPD to pay a lesser amount to the programming vendor 
than was required under the terms of the expired contract, the 
programming vendor will credit the defendant MVPD with an amount 
representing the difference between the amount actually paid under the 
terms of the expired contract during resolution of the complaint and 
the amount that is required to be paid pursuant to the decision.
    29. We note that program carriage complaints do not entail solely 
price disputes. Rather, complaints may entail the issue of whether the 
MVPD should be required to carry a programming vendor's video 
programming at all or whether the MVPD should carry the video 
programming on a specific tier. In these cases, it may be difficult to 
apply the new terms to the standstill period, especially in cases where 
the adjudicator does not ultimately order carriage. Despite these 
complications, we believe that the adjudicator can address these issues 
on a case-by-case basis. To facilitate expeditious resolution of these 
issues, we propose in the NPRM in MB Docket No. 11-131 specific 
procedures to assist an adjudicator to reach a fair and just result.
    30. As explained in the 2010 Program Access Order, we expect 
parties to deal and negotiate with one another in good faith to come to 
settlement while the program carriage complaint is pending at the 
Commission. We also note that the standstill requirement imposed in 
connection with previous merger conditions is automatic upon notice of 
the MVPD's intent to arbitrate, whereas the process we adopt here 
requires a complainant to seek Commission approval based on the four-
criteria test described above.\59\ Thus, the Commission will be able to 
take into account all relevant facts in each case. Moreover, because 
the new carriage terms will be applied as of the expiration date of the 
previous contract, we believe that complainants will not have an 
incentive to seek a temporary standstill solely to benefit from the 
status quo or to gain leverage.\60\
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    \59\ See supra para. 27; see also Time Warner Cable June 1 2011 
Ex Parte Letter at 2 (``An MVPD should remain free to exercise its 
contractual rights to drop or reposition a programmer who has filed 
a program carriage complaint unless the Commission determines that 
the traditional factors for granting a stay are satisfied.'').
    \60\ Comcast claims that the possibility of a program carriage 
standstill presents practical and policy problems, such as affecting 
existing business negotiations; making it riskier for MVPDs to agree 
to carry new or less popular networks given the potential for a 
standstill request to be filed at the end of the carriage term; and 
making it more likely that parties will fail to reach agreement by 
allowing only programming vendors to request a standstill. See 
Comcast July 25 2011 Ex Parte Letter at 5-7. In making these claims, 
Comcast ignores the fact that a complainant could request, and the 
Commission or Media Bureau could issue, a standstill order in a 
program carriage complaint proceeding today under the same 
procedures adopted herein. Thus, all of the alleged practical and 
policy problems raised by Comcast exist today and are not created by 
these procedural rules. Moreover, the procedural rules we adopt 
herein will help to mitigate these alleged practical and policy 
problems. By setting forth the standard that will be applied to a 
program carriage standstill request and establishing specific 
deadlines for submitting and responding to such a request, we 
provide certainty to both complainants and MVPDs with respect to the 
standstill process. While Comcast claims that requiring a 
complainant to file a standstill request no later than 30 days prior 
to the expiration of a contract will chill business negotiations by 
placing parties in litigation before a contract ends (see id. at 6), 
the fact is that, without the procedures we adopt herein, a program 
carriage standstill request could be filed at any time, thereby 
creating greater uncertainty for MVPDs.
---------------------------------------------------------------------------

E. Constitutional Issues

    31. Our efforts in this Second Report and Order to create an 
improved program carriage complaint regime are consistent with 
constitutional requirements. TWC argues that the constitutionality of 
the program carriage rules has never been tested under the First and 
Fifth Amendments. TWC argues that, to the extent the goal of the 
program carriage rules is to promote diversity of speech, the rules are 
content-based and thus subject to strict scrutiny, which requires a 
``compelling'' government interest and ``narrow tailoring.'' Diversity, 
however, is not the sole or even primary goal of the program carriage 
provision. Rather, through the program carriage provision, Congress 
also specifically intended to promote competition in both the video 
programming market and the video distribution market. Indeed, the 
program carriage discrimination provision specifically requires the 
Commission to assess on a case-by-case basis whether conduct amounting 
to discrimination on the basis of affiliation has the effect of 
``unreasonably restrain[ing] the ability of an unaffiliated video 
programming vendor to compete fairly.'' By favoring its affiliated 
programming vendor on the basis of affiliation, an MVPD can hinder the 
ability of an unaffiliated programming vendor to compete in the video 
programming market, thereby allowing the affiliated programming vendor 
to charge higher license fees and reducing competition in the markets 
for the acquisition of advertising and programming rights.
    32. The D.C. Circuit has already decided that the leased access 
provision of the 1992 Cable Act is not content-based. The court held 
that the leased access provision does not favor or disfavor speech on 
the basis of the ideas

[[Page 60663]]

contained therein; rather, it regulates speech based on affiliation 
with a cable operator. The same conclusion applies to the program 
carriage provision of the 1992 Cable Act, which prevents MVPDs from 
demanding exclusivity or financial interests from, or discriminating on 
the basis of affiliation with respect to, unaffiliated programming 
vendors and, accordingly, regulates speech based on affiliation with an 
MVPD, not based on its content. The court held in Time Warner that the 
provisions of the 1992 Cable Act that regulate speech based on 
affiliation are subject to intermediate scrutiny and are constitutional 
if the government's interest is important or substantial and the means 
chosen to promote that interest do not burden substantially more speech 
than necessary to achieve the aim. The Time Warner court found that 
there are substantial government interests in promoting diversity and 
competition in the video programming market.\61\ The program carriage 
rules, like the leased access requirements, promote diversity in video 
programming by promoting fair treatment of unaffiliated programming 
vendors and providing these vendors with an avenue to seek redress of 
anticompetitive carriage practices of MVPDs. Moreover, because MVPDs 
have an incentive to shield their affiliated programming vendors from 
competition with unaffiliated programming vendors for viewers, 
advertisers, and programming rights, the program carriage rules promote 
competition in the video programming market by promoting fair treatment 
of unaffiliated programming vendors. Thus, like the leased access 
rules, the program carriage rules would be subject to, and would 
withstand, intermediate scrutiny.
---------------------------------------------------------------------------

    \61\ See id. (stating that after Turner, ``promoting the 
widespread dissemination of information from a multiplicity of 
sources'' and ``promoting fair competition in the market for 
television programming'' must be treated as important governmental 
objectives unrelated to the suppression of speech (quoting Turner 
Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994))).
---------------------------------------------------------------------------

    33. TWC argues that whatever justification existed for the program 
carriage provisions at the time they were adopted no longer exists 
today. Despite TWC's claim to the contrary, we find that the 
substantial government interests in promoting diversity and competition 
remain. TWC notes that the number of all national programming networks 
has grown since 1992; \62\ the percentage of these networks affiliated 
with cable operators has decreased; \63\ channel capacity has 
increased, thereby providing more room for unaffiliated programming 
vendors, and cable operators face more competition in the distribution 
market today than in 1992.\64\ In the program carriage discrimination 
provision, however, Congress directed the Commission to assess on a 
case-by-case basis the impact of anticompetitive conduct on an 
unaffiliated programming vendor's ability to compete. These nationwide 
figures do not undermine Congress's finding that cable operators and 
other MVPDs have the incentive and ability to favor their affiliated 
programming vendors in individual cases, with the potential to 
unreasonably restrain the ability of an unaffiliated programming vendor 
to compete fairly. While the D.C. Circuit in vacating the Commission's 
horizontal ownership cap stated that ``[c]able operators * * * no 
longer have the bottleneck power over programming that concerned the 
Congress in 1992,'' the court in that case was reviewing a broad 
prophylactic rule that would limit individual cable operators to a 
maximum percentage of subscribers nationwide. Unlike the rule at issue 
in that case, the program carriage statute requires an assessment of 
the facts of each case and the impact on the ability of an unaffiliated 
programming vendor to compete fairly. In addition, we note that the 
number of cable-affiliated networks recently increased significantly 
after the merger of Comcast and NBC Universal, thereby highlighting the 
continued need for an effective program carriage complaint regime. The 
Commission noted that that transaction would ``result in an entity with 
increased ability and incentive to harm competition in video 
programming by engaging in foreclosure strategies or other 
discriminatory actions against unaffiliated video programming 
networks.'' \65\ The Commission specifically relied upon the program 
carriage complaint process to address these concerns.
---------------------------------------------------------------------------

    \62\ See TWC Comments at 8; Comcast Reply at 5; compare H.R. 
Rep. No. 102-628, at 41 (1992) (68 nationally delivered cable 
networks) with Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Thirteenth Annual 
Report, 24 FCC Rcd 542, 550-51, para. 24 (2009) (``13th Annual 
Report'') (based on data from 2006, finding that there are 565 
nationally delivered cable networks).
    \63\ See TWC Comments at 8; Comcast Reply at 5; compare H.R. 
Rep. No. 102-628, at 41 (1992) (stating that 57 percent of 
nationally delivered cable networks are affiliated with cable 
operators) with 13th Annual Report, 24 FCC Rcd at 550-51, para. 24 
(based on data from 2006, finding that 14.9 percent of nationally 
delivered cable networks are affiliated with cable operators).
    \64\ See id. at ii and 9-10 (stating that competition in the 
distribution market requires a cable operator to make programming 
decisions ``based on business and editorial judgments as to whether 
particular channels meet the needs and interests of the operator's 
subscribers and to attempt to maximize consumer value by making the 
best deal possible in arm's length negotiations''); see also Comcast 
Reply at 5, 28 n.100, 30.
    \65\ See id. at 4284-85, para. 116; see also id. at 4282, para. 
110 (``We agree that the vertical integration of Comcast's 
distribution network with NBCU's programming assets will increase 
the ability and incentive for Comcast to discriminate against or 
foreclose unaffiliated programming.'').
---------------------------------------------------------------------------

    34. Moreover, the program carriage rules are no broader than 
necessary because the Commission will find a violation of the rules 
only after conducting a proceeding in which the complaining 
unaffiliated programming vendor or MVPD proves that an MVPD has 
demanded exclusivity from a programming vendor, has demanded a 
financial interest in a programming vendor, or has discriminated 
against the programming vendor on the basis of affiliation and that 
such discrimination has unreasonably restrained the programming 
vendor's ability to compete fairly. Thus, the program carriage rules 
burden no more speech than necessary to vindicate the government's goal 
of protecting competition and diversity.
    35. We also reject TWC's claim that the program carriage rules 
infringe cable operators' rights under the Takings Clause of the Fifth 
Amendment. Quoting Dolan v. City of Tigard, 512 U.S. 374, 386 (1994), 
TWC argues that, ``[g]iven the existence of a fiercely competitive 
landscape fostering the development of diverse programming sources, 
there is no `essential nexus' or `rough proportionality' that would 
justify the taking that occurs under the * * * program carriage 
rules.'' TWC's reliance on Dolan is misplaced, as the ``essential 
nexus'' test concerns land use regulations that allegedly impose 
``unconstitutional conditions'' and is inapplicable here.\66\ None of 
the factors that the Supreme Court has identified as particularly 
significant in evaluating regulatory takings claims supports TWC's 
claim.\67\ First, the program

[[Page 60664]]

carriage rules merely prohibit a cable operator from requiring a 
financial interest in a video programming vendor as a condition for 
carriage, from coercing a video programming vendor to provide 
exclusivity as a condition of carriage, or from discriminating on the 
basis of affiliation that unreasonably restrains the ability of 
unaffiliated video programming vendors to compete fairly. The program 
carriage provision of the Act, as well as our rules implementing that 
provision, do not compel a cable operator to carry certain programming, 
nor do they specify the rates for carriage. Second, the rules, which 
have been in force since 1993 and were required by Congress in 1992, do 
not interfere with any current investment-backed expectations. Third, 
the rules substantially advance the legitimate governmental interest in 
promoting competition and diversity in the video programming market, an 
interest that Congress has directed the Commission to vindicate and 
that the courts have recognized as important. Finally, our examination 
of the record in this proceeding refutes the premise of TWC's argument 
that the program carriage rules serve no purpose in light of the 
current state of competition in the video programming market. Thus, the 
rules do not effect a ``taking'' within the meaning of the Fifth 
Amendment.
---------------------------------------------------------------------------

    \66\ See Dolan, 512 U.S. at 385-86; see also id. at 390 (Fifth 
Amendment requirement of ``rough proportionality'' applies where 
government requires a landowner to dedicate private land for some 
future public use in exchange for a discretionary benefit such as a 
building permit).
    \67\ See Connolly v. Pension Ben. Guaranty Corp., 475 U.S. 211, 
224-25 (1986) (``In all of these cases, we have eschewed development 
of any set formula for identifying a `taking' forbidden by the Fifth 
Amendment, and have relied instead on ad hoc, factual inquiries into 
the circumstances of each particular case. To aid in this 
determination, however, we have identified three factors which have 
particular significance: (1) The economic impact of the regulation 
on the claimant; (2) the extent to which the regulation has 
interfered with distinct investment-backed expectations; and (3) the 
character of the governmental action.'') (citations and internal 
quotes omitted), quoted in Exclusive Service Contracts for Provision 
of Video Services in Multiple Dwelling Units and Other Real Estate 
Developments, Report and Order and Further Notice of Proposed 
Rulemaking, 22 FCC Rcd 20235, 20262, para. 56 (2007) (``MDU 
Exclusives Order''), aff'd sub nom. Nat'l Cable & Telecomm. Ass'n v. 
FCC, 567 F.3d 659 (D.C. Cir. 2009).
---------------------------------------------------------------------------

F. Adequate Notice

    36. We reject arguments that the Program Carriage NPRM failed to 
provide the specificity required under the Administrative Procedure Act 
(``APA'') and that the Commission must issue another notice before 
adopting final rules. Sections 553(b) and (c) of the APA require 
agencies to give public notice of a proposed rule making that includes 
``either the terms or substance of the proposed rule or a description 
of the subjects and issues involved'' and to give interested parties an 
opportunity to submit comments on the proposal. Such notice is not, 
however, required for rules involving agency procedure. The standstill 
procedures and the revised procedural rules adopted herein, including 
extending the deadline for a defendant to file an answer to a 
complaint, are rules of agency procedure for which no notice is 
required under the APA.\68\ When notice is required under the APA, the 
notice ``need not specify every precise proposal which [the agency] may 
ultimately adopt as a rule''; it need only ``be sufficient to fairly 
apprise interested parties of the issues involved.'' In particular, the 
APA's notice requirements are satisfied where the final rule is a 
``logical outgrowth'' of the actions proposed. Here, the Program 
Carriage NPRM specifically sought comment on, among other questions, 
``whether the elements of a prima facie case should be clarified,'' 
``whether specific time limits on the Commission, cable operators, or 
others would promote a speedy and just resolution'' of program carriage 
disputes, and ``whether the Commission should adopt rules to address 
the complaint process itself.'' But in any event, with respect to the 
standstill procedures, the Commission specifically sought comment on 
whether to ``adopt additional rules to protect programmers from 
potential retaliation if they file a complaint.'' As discussed above, 
the standstill procedure will help to prevent retaliation while a 
program carriage complaint is pending, and thus is a ``logical 
outgrowth'' of this proposal.\69\
---------------------------------------------------------------------------

    \68\ While Comcast claims that the procedures we adopt herein 
for a program carriage standstill will have ``substantive effects,'' 
the fact is that these procedures codify the process for requesting 
a standstill that a complainant could request, and the Commission or 
Media Bureau could issue, today without the new procedures adopted 
herein. See Comcast July 25 2011 Ex Parte Letter at 7; supra n.60. 
Any ``substantive effects'' resulting from the filing and 
consideration of a program carriage standstill request exist today 
and are not affected by the procedures we adopt herein. See JEM 
Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (Commission's 
``hard look'' rules were procedural because they ``did not change 
the substantive standards by which the Commission evaluates license 
applications''); Bachow Commc'ns, Inc. v. FCC, 237 F.3d 683 (D.C. 
Cir. 2001) (Commission cut-off date for certain amendments to 
pending applications was procedural); Neighborhood TV Co. v. FCC, 
742 F.2d 629 (D.C. Cir. 1984) (Commission interim processing rules 
were procedural); Kessler v. FCC, 326 F.2d 673 (1963) (same); Ranger 
v. FCC, 294 F.2d 240, 243-44 (D.C. Cir. 1961) (Commission cut-off 
date for filing applications was procedural). The procedures we 
adopt herein do not alter the existence or scope of any substantive 
rights, but simply codify a pre-existing procedure for obtaining 
equitable relief to vindicate those rights. Any alleged burden 
stemming from a procedural rule is not sufficient to convert the 
rule into a substantive one that requires notice and comment. See, 
e.g., James V. Hurson Assocs, Inc. v. Glickman, 229 F.3d 277, 281 
(D.C. Cir. 2000) (``even if the [agency's] elimination of [the 
procedural rule] did impose a substantial burden * * *, that burden 
would not convert the rule into a substantive one that triggers the 
APA's notice-and-comment requirement * * *. [A]n otherwise-
procedural rule does not become a substantive one, for notice-and-
comment purposes, simply because it imposes a burden on regulated 
parties.'').
    \69\ See supra para. 25. The fact that the Commission may have 
been more explicit in seeking comment on a standstill process in 
other contexts does not undermine the fact that the program carriage 
standstill procedures are rules of agency procedure for which no 
notice is required under the APA and, in any event, are a logical 
outgrowth of the request for comment on rules to protect programmers 
from retaliation. See Comcast July 25 2011 Ex Parte Letter at 7 
(citing Retransmission Consent NPRM, 26 FCC Rcd at 2727-29, paras. 
18-19 and Review of the Commission's Program Access Rules and 
Examination of Programming Tying Arrangements, Notice of Proposed 
Rulemaking, 22 FCC Rcd 17791, 17868-70, paras. 136-138 (2007)).
---------------------------------------------------------------------------

IV. Procedural Matters

G. Congressional Review Act

    37. The Commission will send a copy of this Second Report and Order 
in a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

H. Final Regulatory Flexibility Analysis

Final Regulatory Flexibility Act Analysis
    1. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\70\ an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rulemaking in MB 
Docket No. 07-42 (hereinafter referred to as the Program Carriage 
NPRM).\71\ The Commission sought written public comment on the 
proposals in the Program Carriage NPRM, including comment on the IRFA. 
This present Final Regulatory Flexibility Analysis (``FRFA'') conforms 
to the RFA.\72\
---------------------------------------------------------------------------

    \70\  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).
    \71\ See Leased Commercial Access; Development of Competition 
and Diversity in Video Programming Distribution and Carriage, MB 
Docket No. 07-42, Notice of Proposed Rule Making, 22 FCC Rcd 11222, 
11231-40, Appendix (2007) (``Program Carriage NPRM'').
    \72\  See 5 U.S.C. 604.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rule Changes

    2. In 1993, the Commission adopted rules implementing a provision 
of the 1992 Cable Act \73\ pertaining to carriage of video programming 
vendors by multichannel video programming distributors (``MVPDs'') 
intended to benefit consumers by promoting competition and diversity in 
the video programming and video distribution markets (the ``program 
carriage'' rules).\74\ As required by Congress, these

[[Page 60665]]

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); (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); 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). Congress 
specifically directed the Commission to provide for ``expedited 
review'' of these complaints and to provide for appropriate penalties 
and remedies for any violations. 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. In 
the Second Report and Order in MB Docket No. 07-42, the Commission 
takes the following initial steps to improve its procedures for 
addressing program carriage complaints.
---------------------------------------------------------------------------

    \73\ 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.
    \74\ 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.
---------------------------------------------------------------------------

    3. First, in response to concerns that programming vendors are 
uncertain as to what evidence must be provided in a complaint to 
establish a prima facie case of a program carriage violation, the 
Commission codifies in its rules the evidence required to establish a 
prima facie case.\75\ A prima facie finding means that the complainant 
has provided sufficient evidence in its complaint, without the Media 
Bureau having considered any evidence to the contrary, to proceed to a 
ruling on the merits. The Second Report and Order in MB Docket No. 07-
42 explains that, in complaints alleging a violation of the exclusivity 
or financial interest provisions, the complaint must contain direct 
evidence (either documentary or testimonial) supporting the facts 
underlying the claim. For complaints alleging a violation of the 
discrimination provision, however, direct evidence supporting a claim 
that the defendant MVPD discriminated ``on the basis of affiliation or 
non-affiliation'' is sufficient to establish this element of a prima 
facie case but is not required. Because it is unlikely that direct 
evidence of a discriminatory motive will be available to potential 
complainants, the Second Report and Order in MB Docket No. 07-42 
clarifies that a complainant can establish this element of a prima 
facie case of a violation of the program carriage discrimination 
provision by providing the following circumstantial evidence of 
discrimination ``on the basis of affiliation or non-affiliation'': (i) 
The complainant programming vendor must provide evidence that it 
provides video programming that is similarly situated to video 
programming provided by a programming vendor affiliated with the 
defendant MVPD, based on a combination of factors, such as genre, 
ratings, license fee, target audience, target advertisers, target 
programming, and other factors; and (ii) the complaint must contain 
evidence that the defendant MVPD has treated the video programming 
provided by the complainant programming vendor differently than the 
similarly situated video programming provided by the programming vendor 
affiliated with the defendant MVPD with respect to the selection, 
terms, or conditions for carriage. In addition, regardless of whether 
the complainant relies on direct or circumstantial evidence of 
discrimination ``on the basis of affiliation or non-affiliation,'' 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.
---------------------------------------------------------------------------

    \75\ See Second Report and Order in MB Docket No. 07-42 at 
paras. 9-17.
---------------------------------------------------------------------------

    4. Second, having established specific evidentiary requirements for 
what the complainant must provide in its complaint to establish a prima 
facie case of a program carriage violation, the Second Report and Order 
provides the defendant with additional time to answer the complaint in 
order to develop a full, case-specific response, with supporting 
evidence, to the evidence put forth by the complainant. Specifically, 
while the Commission's current rule provides that an MVPD served with a 
program carriage complaint shall answer the complaint within 30 days of 
service, the Second Report and Order amends this rule to provide an 
MVPD with 60 days to answer the complaint.
    5. Third, in response to concerns that the unpredictable and 
sometimes lengthy time frames for Commission action on program carriage 
complaints have discouraged programming vendors from filing legitimate 
complaints, the Commission establishes deadlines for action by the 
Media Bureau and Administrative Law Judges (``ALJ'') when acting on 
program carriage complaints. Action on program carriage complaints 
entails a two-step process: the initial prima facie determination by 
the Media Bureau, followed (if necessary) by a decision on the merits 
by an adjudicator (i.e., either the Media Bureau or an ALJ). For the 
first step, the Commission in the Second Report and Order in MB Docket 
No. 07-42 directs the Media Bureau to release a decision determining 
whether the complainant has established a prima facie case within 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). For the second step, the Commission imposes different deadlines 
for a ruling on the merits of the complaint depending upon whether the 
adjudicator is the Media Bureau or the ALJ. After the Media Bureau 
concludes that the complaint contains sufficient evidence to establish 
a prima facie case, the Media Bureau has three options for addressing 
the merits of the complaint: (i) The Media Bureau can rule on the 
merits of the complaint based on the pleadings without discovery; (ii) 
if the Media Bureau determines that the record is not sufficient to 
resolve the complaint, the Media Bureau may outline procedures for 
discovery before proceeding to rule on the merits of the complaint; or 
(iii) if the Media Bureau determines that disposition of the complaint 
or discrete issues raised in the complaint requires resolution of 
factual disputes or other extensive discovery in an adjudicatory 
proceeding, the Media Bureau will refer the proceeding or discrete 
issues arising in the proceeding for an adjudicatory hearing before an 
ALJ. The Commission in the Second Report and Order in MB Docket No. 07-
42 establishes the following deadlines for the adjudicator's decision 
on the merits. For complaints that the Media Bureau decides on the 
merits based on the pleadings without discovery, the Media Bureau must 
release a decision within 60 calendar days after its prima facie 
determination. For complaints that the Media Bureau decides on the 
merits after discovery, the Media Bureau must release a decision within 
150 calendar days after its prima facie determination. For complaints 
referred to an ALJ for a decision on the merits, the ALJ must release 
an initial decision within 240

[[Page 60666]]

calendar days after one of the parties informs the Chief ALJ that it 
elects not to pursue Alternative Dispute Resolution (``ADR'') or, if 
the parties have mutually elected to pursue ADR, within 240 calendar 
days after the parties inform the Chief ALJ that they have failed to 
resolve their dispute through ADR. In adopting this deadline for 
program carriage complaints referred to an ALJ, the Second Report and 
Order in MB Docket No. 07-42 also adopts revised procedural deadlines 
applicable to adjudicatory hearings involving program carriage 
complaints. The deadlines for the Media Bureau or an ALJ to reach a 
decision may be tolled only under the following circumstances: (i) If 
the parties jointly request tolling in order to pursue settlement 
discussions or ADR or for any other reason that the parties 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. In addition, in extraordinary situations, the ALJ 
may toll the deadline for reaching a decision due to a lack of 
adjudicatory resources available at the time in the Office of 
Administrative Law Judges.
    6. Fourth, in response to concerns that MVPDs have the ability to 
retaliate against a programming vendor that files a program carriage 
complaint by ceasing carriage of the programming vendor's video 
programming, the Commission in the Second Report and Order in MB Docket 
No. 07-42 establishes 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. Pursuant to these 
procedures, a program carriage complainant seeking renewal of an 
existing programming contract may submit along with its complaint a 
petition for a temporary standstill of its programming contract pending 
resolution of the complaint. The Commission encourages complainants to 
file the petition and complaint sufficiently in advance of the 
expiration of the existing contract, and in no case later than 30 days 
prior to such expiration, to provide the Media Bureau with sufficient 
time to act prior to expiration. In its petition, the complainant must 
demonstrate how grant of the standstill will meet the following four 
criteria: (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. The defendant will have ten calendar days after service to file 
an answer to the petition for a standstill order. If the Media Bureau 
grants the temporary standstill, the adjudicator ruling on the merits 
of the complaint (i.e., either the Media Bureau or an ALJ) will apply 
the terms of the new agreement between the parties, if any, as of the 
expiration date of the previous agreement.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    7. There were no comments filed specifically in response to the 
IRFA.

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

    8. 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.\76\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \77\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\78\ 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.\79\ Below, we provide a description of such 
small entities, as well as an estimate of the number of such small 
entities, where feasible.
---------------------------------------------------------------------------

    \76\ 5 U.S.C. 603(b)(3).
    \77\ 5 U.S.C. 601(6).
    \78\ 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).
    \79\ 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.
---------------------------------------------------------------------------

    9. 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.'' \80\ The SBA has developed a 
small business size standard for wireline firms within the broad 
economic census category, ``Wired Telecommunications Carriers.'' \81\ 
Under this category, the SBA deems a wireline business to be small if 
it has 1,500 or fewer employees.\82\ 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.\83\
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    \80\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \81\ 13 CFR 121.201, 2007 NAICS code 517110.
    \82\ See id.
    \83\ 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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    10. 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.\84\ 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,

[[Page 60667]]

the majority of these firms can be considered small.\85\
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    \84\ 13 CFR 121.201, 2007 NAICS code 517110.
    \85\ 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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    11. 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.\86\ Industry data 
indicate that all but ten cable operators nationwide are small under 
this size standard.\87\ In addition, under the Commission's rules, a 
``small system'' is a cable system serving 15,000 or fewer 
subscribers.\88\ 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.\89\ Thus, under 
this standard, most cable systems are small.
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    \86\ 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).
    \87\ See Broadcasting & Cable Yearbook 2010 at C-2 (2009) (data 
current as of Dec. 2008).
    \88\ 47 CFR 76.901(c).
    \89\ 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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    12. 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.'' \90\ 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.\91\ 
Industry data indicate that all but nine cable operators nationwide are 
small under this subscriber size standard.\92\ 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,\93\ and therefore we are unable to 
estimate more accurately the number of cable system operators that 
would qualify as small under this size standard.
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    \90\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
    \91\ 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).
    \92\ See Broadcasting & Cable Yearbook 2010 at C-2 (2009) (data 
current as of Dec. 2008).
    \93\ 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).
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    13. 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,'' \94\ 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.\95\ 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.\96\ 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).\97\ Each currently offers subscription services. DIRECTV 
\98\ and EchoStar \99\ 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.
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    \94\ See 13 CFR 121.201, 2007 NAICS code 517110. The 2007 NAICS 
definition of the category of ``Wired Telecommunications Carriers'' 
is in paragraph 8, above.
    \95\ 13 CFR 121.201, 2007 NAICS code 517110.
    \96\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \97\ 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).
    \98\ 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.
    \99\ 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.
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    14. 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,'' \100\ 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.\101\ 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.\102\
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    \100\ 13 CFR 121.201, 2007 NAICS code 517110.
    \101\ See id.
    \102\ 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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    15. 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.\103\ The SBA has developed a small business size standard for 
this category, which is: all such firms having 1,500 or fewer 
employees.\104\ Census Bureau data for

[[Page 60668]]

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.\105\
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    \103\ 13 CFR 121.201, 2007 NAICS code 517110.
    \104\ See id.
    \105\ 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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    16. 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)).\106\ 
In connection with the 1996 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.\107\ 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.\108\ 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.\109\ 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.\110\ Auction 86 concluded in 2009 with the sale of 61 
licenses.\111\ 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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    \106\ 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).
    \107\ 47 CFR 21.961(b)(1).
    \108\ 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.
    \109\ 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).
    \110\ Id. at 8296.
    \111\ 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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    17. 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.\112\ 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.'' \113\ The SBA has developed a small 
business size standard for this category, which is: all such firms 
having 1,500 or fewer employees.\114\ 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.\115\
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    \112\ 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.
    \113\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers,'' (partial definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \114\ 13 CFR 121.201, 2007 NAICS code 517110.
    \115\ 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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    18. Fixed Microwave Services. Microwave services include common 
carrier,\116\ private-operational fixed,\117\ and broadcast auxiliary 
radio services.\118\ They also include the Local Multipoint 
Distribution Service (LMDS),\119\ the Digital Electronic Message 
Service (DEMS),\120\ and the 24 GHz Service,\121\ where licensees can 
choose between common carrier and non-common carrier status.\122\ 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.\123\

[[Page 60669]]

Under the present and prior categories, the SBA has deemed a wireless 
business to be small if it has 1,500 or fewer employees.\124\ 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.\125\ 
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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    \116\ See 47 CFR part 101, Subparts C and I.
    \117\ See 47 CFR part 101, Subparts C and H.
    \118\ 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.
    \119\ See 47 CFR part 101, subpart L.
    \120\ See 47 CFR part 101, subpart G.
    \121\ See id.
    \122\ See 47 CFR 101.533, 101.1017.
    \123\ 13 CFR 121.201, 2007 NAICS code 517210.
    \124\ See id. The now-superseded, pre-2007 CFR citations were 13 
CFR 121.201, NAICS codes 517211 and 517212 (referring to the 2002 
NAICS).
    \125\ 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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    19. Open Video Systems. The open video system (``OVS'') framework 
was established in 1996, and is one of four statutorily recognized 
options for the provision of video programming services by local 
exchange carriers.\126\ The OVS framework provides opportunities for 
the distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services,\127\ OVS falls 
within the SBA small business size standard covering cable services, 
which is ``Wired Telecommunications Carriers.'' \128\ The SBA has 
developed a small business size standard for this category, which is: 
all such firms having 1,500 or fewer employees.\129\ 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.\130\ In addition, we note that 
the Commission has certified some OVS operators, with some now 
providing service.\131\ Broadband service providers (``BSPs'') are 
currently the only significant holders of OVS certifications or local 
OVS franchises.\132\ 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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    \126\ 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC 
Rcd at 606, para. 135.
    \127\ See 47 U.S.C. 573.
    \128\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \129\ 13 CFR 121.201, 2007 NAICS code 517110.
    \130\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \131\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
    \132\ 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.
---------------------------------------------------------------------------

    20. 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.'' \133\ 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.\134\ 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.\135\ Of that number, 325 operated with annual revenues of 
$9,999,999 or less.\136\ Seventy-one (71) operated with annual revenues 
of between $10 million and $100 million or more.\137\ Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.
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    \133\ U.S. Census Bureau, 2007 NAICS Definitions, ``515210 Cable 
and Other Subscription Programming''; http://www.census.gov/naics/2007/def/ND515210.HTM#N515210.
    \134\ 13 CFR 121.201, 2007 NAICS code 515210.
    \135\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=700&-ds_name=EC0751SSSZ4&-_lang=en.
    \136\ Id.
    \137\ Id.
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    21. 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.'' \138\ 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.\139\ 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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    \138\ 15 U.S.C. 632.
    \139\ 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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    22. 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.\140\ 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.\141\
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    \140\ 13 CFR 121.201, 2007 NAICS code 517110.
    \141\ 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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    23. 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

[[Page 60670]]

fewer employees.\142\ 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.\143\ 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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    \142\ 13 CFR 121.201, 2007 NAICS code 517110.
    \143\ 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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    24. 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.\144\ Business concerns included 
in this industry are those ``primarily engaged in broadcasting images 
together with sound.'' \145\ The Commission has estimated the number of 
licensed commercial television stations to be 1,390.\146\ 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 \147\ (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.\148\ We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \149\ 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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    \144\  See 13 CFR 121.201, 2007 NAICS Code 515120.
    \145\ 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.
    \146\ 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.
    \147\ We recognize that this total differs slightly from that 
contained in Broadcast Station Totals, supra, note 105; however, we 
are using BIA's estimate for purposes of this revenue comparison.
    \148\ See Broadcast Station Totals, supra, note 146.
    \149\ ``[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).
---------------------------------------------------------------------------

    25. 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.
    26. 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.'' 
\150\ 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.\151\ 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.\152\ Of these, 8995 
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.\153\ 
Thus, under this category and associated small business size standard, 
the majority of firms can be considered small.
---------------------------------------------------------------------------

    \150\ U.S. Census Bureau, 2007 NAICS Definitions, ``51211 Motion 
Picture and Video Production''; http://www.census.gov/naics/2007/def/NDEF512.HTM#N51211.
    \151\ 13 CFR 121.201, 2007 NAICS code 512110.
    \152\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
    \153\ Id.
---------------------------------------------------------------------------

    27. 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.'' \154\ 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.\155\ 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.\156\ 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.\157\ Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.
---------------------------------------------------------------------------

    \154\ See U.S. Census Bureau, 2007 NAICS Definitions, ``51212 
Motion Picture and Video Distribution''; http://www.census.gov/naics/2007/def/NDEF512.HTM#N51212.
    \155\ 13 CFR 121.201, 2007 NAICS code 512120.
    \156\  http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=200&-ds_name=EC0751SSSZ4&-_lang=en.
    \157\ Id.

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[[Page 60671]]

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    28. The rules adopted in the Second Report and Order in MB Docket 
No. 07-42 will impose additional reporting, recordkeeping, and 
compliance requirements on video programming vendors and MVPDs. First, 
the Second Report and Order in MB Docket No. 07-42 clarifies what 
evidence a complainant must provide in its program carriage complaint 
in order to establish a prima facie case of a program carriage 
violation.\158\ Second, to enable the defendant to develop a full, 
case-specific response to the evidence put forth by the complainant, 
with supporting evidence, the Second Report and Order in MB Docket No. 
07-42 provides the defendant with 60 days (rather than the current 30 
days) to answer the complaint.\159\ Third, in adopting a deadline for 
an ALJ to issue a decision on the merits of a program carriage 
complaint referred by Media Bureau, the Second Report and Order in MB 
Docket No. 07-42 adopts revised procedural deadlines applicable to 
adjudicatory hearings involving program carriage complaints.\160\ 
Fourth, the Second Report and Order in MB Docket No. 07-42 establishes 
procedures for the Commission'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.\161\
---------------------------------------------------------------------------

    \158\ See Second Report and Order in MB Docket No. 07-42 at 
paras. 9-17.
    \159\ See Second Report and Order in MB Docket No. 07-42 at 
para. 18.
    \160\ See Second Report and Order in MB Docket No. 07-42 at 
paras. 19-24.
    \161\ See Second Report and Order in MB Docket No. 07-42 at 
paras. 25-30.
---------------------------------------------------------------------------

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    29. 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.\162\ The Program Carriage NPRM invited comment on issues that 
had the potential to have significant economic impact on some small 
entities.\163\
---------------------------------------------------------------------------

    \162\ 5 U.S.C. 603(c)(1)-(c)(4).
    \163\ See Program Carriage NPRM, 22 FCC Rcd at 11231-11240, 
Appendix.
---------------------------------------------------------------------------

    30. As discussed in section A, the Second Report and Order in MB 
Docket No. 07-42 is intended to improve the Commission's procedures for 
addressing program carriage complaints. By clarifying the evidence a 
complainant must provide in its complaint to establish a prima facie 
case of a program carriage violation, providing defendants with 
additional time to answer a complaint, establishing deadlines for 
action on program carriage complaints, and establishing procedures for 
requesting a standstill of an existing programming contract, the 
decision confers benefits upon both video programming vendors and 
MVPDs, including those that are smaller entities, as well as MVPD 
subscribers. Thus, the decision benefits smaller entities as well as 
larger entities. For this reason, an analysis of alternatives to the 
proposed rules is unnecessary.

F. Report to Congress

    31. The Commission will send a copy of the Second Report and Order 
in MB Docket No. 07-42, including this FRFA, in a report to be sent to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act.\164\ In addition, the Commission will send a 
copy of the Second Report and Order in MB Docket No. 07-42, including 
this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Second Report and Order in MB Docket No. 07-42 and FRFA (or summaries 
thereof) will also be published in the Federal Register.\165\
---------------------------------------------------------------------------

    \164\ See 5 U.S.C. 801(a)(1)(A).
    \165\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

V. Ordering Clauses

    32. It is ordered, pursuant to the authority found 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, the Second Report 
and Order in MB Docket No. 07-42 Is Adopted.
    33. It is further ordered that, pursuant to the authority found 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, the Commission's 
rules Are Hereby Amended as set forth in the Rules Changes below.
    34. It is further ordered that the rules adopted herein are 
effective October 31, 2011, except for Sec. Sec.  1.221(h), 
1.229(b)(3), 1.229(b)(4), 1.248(a), 1.248(b), 76.7(g)(2), 
76.1302(c)(1), 76.1302(d), 76.1302 (e)(1), and 76.1302(k) which contain 
new or modified information collection requirements that require 
approval by the Office of Management and Budget (``OMB'') under the 
Paperwork Reduction Act (PRA) and will become effective after the 
Commission publishes a notice in the Federal Register announcing such 
approval and the relevant effective date.
    35. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, Shall Send a 
copy of this Second Report and Order in MB Docket No. 07-42, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    36. It is further ordered that the Commission Shall Send a copy of 
this Second Report and Order in MB Docket No. 07-42 in a report to be 
sent to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects

 47 CFR Part 0

    Organization and functions (Government agencies).

 47 CFR Part 1

    Administrative practice and procedure, claims, Investigations, 
Lawyers, Telecommunications.

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.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Parts 0, 1, and 76 as follows:

PART 0--COMMISSION ORGANIZATION

0
1. The authority citation for Part 0 continues to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 
225, unless otherwise noted.


0
2. Section 0.341 is amended by adding paragraph (f) to read as follows:

[[Page 60672]]

Sec.  0.341  Authority of administrative law judge.

* * * * *
    (f)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to an 
administrative law judge for an initial decision, the presiding 
administrative law judge shall release an initial decision in 
compliance with one of the following deadlines:
    (i) 240 calendar days after a party informs the Chief 
Administrative Law Judge that it elects not to pursue alternative 
dispute resolution as set forth in Sec.  76.7(g)(2) of this chapter; or
    (ii) If the parties have mutually elected to pursue alternative 
dispute resolution pursuant to Sec.  76.7(g)(2) of this chapter, within 
240 calendar days after the parties inform the Chief Administrative Law 
Judge that they have failed to resolve their dispute through 
alternative dispute resolution.
    (2) The presiding administrative law judge may toll these deadlines 
under the following circumstances:
    (i) If the complainant and defendant jointly request that the 
presiding administrative law judge 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; 
or
    (iii) In extraordinary situations, due to a lack of adjudicatory 
resources available at the time in the Office of Administrative Law 
Judges.

PART 1--PRACTICE AND PROCEDURE

0
3. The authority citation for Part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 227, 303(r), and 309.


0
4. Section 1.221 is amended by adding paragraph (h) to read as follows:


Sec.  1.221  Notice of hearing; appearances.

* * * * *
    (h)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to an 
administrative law judge for an initial decision, each party, in person 
or by attorney, shall file a written appearance within five calendar 
days after the party informs the Chief Administrative Law Judge that it 
elects not to pursue alternative dispute resolution pursuant to Sec.  
76.7(g)(2) of this chapter or, if the parties have mutually elected to 
pursue alternative dispute resolution pursuant to Sec.  76.7(g)(2) of 
this chapter, within five calendar days after the parties inform the 
Chief Administrative Law Judge that they have failed to resolve their 
dispute through alternative dispute resolution. The written appearance 
shall state that the party will appear on the date fixed for hearing 
and present evidence on the issues specified in the hearing designation 
order.
    (2) If the complainant fails to file a written appearance by this 
deadline, or fails to file prior to the deadline either a petition to 
dismiss the proceeding without prejudice or a petition to accept, for 
good cause shown, a written appearance beyond such deadline, the Chief 
Administrative Law Judge shall dismiss the complaint with prejudice for 
failure to prosecute.
    (3) If the defendant fails to file a written appearance by this 
deadline, or fails to file prior to this deadline a petition to accept, 
for good cause shown, a written appearance beyond such deadline, its 
opportunity to present evidence at hearing will be deemed to have been 
waived. If the hearing is so waived, the Chief Administrative Law Judge 
shall expeditiously terminate the proceeding and certify to the 
Commission the complaint for resolution based on the existing record.
* * * * *

0
5. Section 1.229 is amended by redesignating paragraph (b)(3) as 
(b)(4), revising newly redesignated paragraph (b)(4), and adding new 
paragraph (b)(3), to read as follows:


Sec.  1.229  Motions to enlarge, change, or delete issues.

* * * * *
    (b) * * *
    (3) For program carriage complaints filed pursuant to Sec.  76.1302 
of this chapter that the Chief, Media Bureau refers to an 
administrative law judge for an initial decision, such motions shall be 
filed within 15 calendar days after the deadline for submitting written 
appearances pursuant to Sec.  1.221(h), except that persons not named 
as parties to the proceeding in the designation order may file such 
motions with their petitions to intervene up to 30 days after 
publication of the full text or a summary of the designation order in 
the Federal Register. (See Sec.  1.223).
    (4) Any person desiring to file a motion to modify the issues after 
the expiration of periods specified in paragraphs (a), (b)(1), (b)(2), 
and (b)(3) of this section, shall set forth the reason why it was not 
possible to file the motion within the prescribed period. Except as 
provided in paragraph (c) of this section, the motion will be granted 
only if good cause is shown for the delay in filing. Motions for 
modifications of issues which are based on new facts or newly 
discovered facts shall be filed within 15 days after such facts are 
discovered by the moving party.
* * * * *

0
6. Section 1.248 is amended by revising paragraphs (a) and (b)(1) to 
read as follows:


Sec.  1.248  Prehearing conferences; hearing conferences.

    (a) The Commission, on its own initiative or at the request of any 
party, may direct the parties or their attorneys to appear at a 
specified time and place for a conference prior to a hearing, or to 
submit suggestions in writing, for the purpose of considering, among 
other things, the matters set forth in paragraph (c) of this section. 
The initial prehearing conference shall be scheduled 30 days after the 
effective date of the order designating a case for hearing, unless good 
cause is shown for scheduling such conference at a later date, except 
that for program carriage complaints filed pursuant to Sec.  76.1302 of 
this chapter that the Chief, Media Bureau refers to an administrative 
law judge for an initial decision, the initial prehearing conference 
shall be held no later than 10 calendar days after the deadline for 
submitting written appearances pursuant to Sec.  1.221(h) or within 
such shorter or longer period as the Commission may allow on motion or 
notice consistent with the public interest.
    (b)(1) The presiding officer (or the Commission or a panel of 
commissioners in a case over which it presides), on his own initiative 
or at the request of any party, may direct the parties or their 
attorneys to appear at a specified time and place for a conference 
prior to or during the course of a hearing, or to submit suggestions in 
writing, for the purpose of considering any of the matters set forth in 
paragraph (c) of this section. The initial prehearing conference shall 
be scheduled 30 days after the effective date of the order designating 
a case for hearing, unless good cause is shown for scheduling such 
conference at a later date, except that for program carriage complaints 
filed pursuant to Sec.  76.1302 of this chapter that the Chief, Media 
Bureau refers to an administrative law judge for an initial decision, 
the initial prehearing conference shall be held no later than 10 
calendar days after the deadline for submitting written appearances 
pursuant to Sec.  1.221(h) or within such

[[Page 60673]]

shorter or longer period as the presiding officer may allow on motion 
or notice consistent with the public interest.
* * * * *

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
7. 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.


0
8. Section 76.7 is amended by revising paragraph (g)(2) to read as 
follows:


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

* * * * *
    (g) * * *
    (2) Before designation for hearing, the staff shall notify, either 
orally or in writing, the parties to the proceeding of its intent to so 
designate, and the parties shall be given a period of ten (10) days to 
elect to resolve the dispute through alternative dispute resolution 
procedures, or to proceed with an adjudicatory hearing. Such election 
shall be submitted in writing to the Commission and the Chief 
Administrative Law Judge.
* * * * *

0
9. Section 76.1302 is amended by revising paragraphs (c) through (g) 
and adding paragraphs (h) through (k) 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.
    (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 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, 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 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.
    (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.
    (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

[[Page 60674]]

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 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.
    (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 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 Commission shall order 
appropriate remedies, including, if necessary, mandatory carriage of a 
video programming vendor's programming on defendant's video 
distribution system, or the establishment of prices, terms, and 
conditions for the carriage of a video programming vendor's 
programming. Such order shall set forth a timetable for compliance, and 
shall become effective upon release, unless any order of mandatory 
carriage would require the defendant multichannel video programming 
distributor to delete existing programming from its system to 
accommodate carriage of a video programming vendor's programming. In 
such instances, if the defendant seeks review of the staff, or 
administrative law judge decision, the order for carriage of a video 
programming vendor's programming will not become effective unless and 
until the decision of the staff or administrative law judge is upheld 
by the Commission. If the Commission upholds the remedy ordered by the 
staff or administrative law judge in its entirety, the defendant will 
be required to carry the video programming vendor's programming for an 
additional period equal to the time elapsed between the staff or 
administrative law judge decision and the Commission's ruling, on the 
terms and conditions approved by the Commission.
    (2) Additional sanctions. The remedies provided in paragraph (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.
    (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.

[FR Doc. 2011-24240 Filed 9-28-11; 8:45 am]
BILLING CODE 6712-01-P