[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Rules and Regulations]
[Pages 20255-20258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03940]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 07-42; FCC 07-208]


Leased Commercial Access

AGENCY: Federal Communications Commission.

ACTION: Technical amendments.

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SUMMARY: The Federal Communications Commission (FCC) is making a 
technical amendment to correct a final rule that appeared in the 
Federal Register of February 28, 2008. The document revised rules 
concerning Leased Commercial Access. Some of the revised rules 
contained information collections that required approval by OMB. Some 
other revised rules were held in abeyance pending OMB approval. 
Finally, some rule revisions were effective without OMB approval. The 
entire order, FCC 07-208, was judicially stayed pending judicial 
review, which is being held in abeyance, and no rule revisions have 
become effective. Therefore, the previously published rules are still 
in effect. This document makes a technical amendment so that the rules 
that are published in the Federal Register reflect the Leased 
Commercial Access rules that have remained in effect continuously and 
are currently still in effect.

[[Page 20256]]


DATES: Effective April 4, 2013.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Katie Costello, [email protected] of the Media 
Bureau, Policy Division, (202) 418-2233.

SUPPLEMENTARY INFORMATION: We published a final rule document at 73 FR 
10675, February 28, 2008, revising rules sections 76.970 and 76.975, 
and adding sections 76.972 and 76.978, concerning Leased Commercial 
Access. These rules contained information collections that required 
approval by OMB which was denied. The entire Order [FCC 07-208] was 
judicially stayed pending judicial review by the United States Court of 
Appeals for the Sixth Circuit in United Church of Christ v. FCC, 6th 
Cir. No. 08-3245 (and consolidated cases) (order issued May 22, 2008). 
OMB disapproved the requested revisions to the rules that were subject 
to OMB approval by Notice of Action dated July 9, 2008. Subsequently 
the Court issued an order granting an FCC motion to hold the judicial 
review in abeyance pending further action by the FCC in response to 
OMB's disapproval. The Federal court stay of the Order and the hold on 
further judicial review remain in effect. Our previous rules 76.970 and 
76.975 remain in effect and are re-published herein. New sections 
76.972 and 76.978 are removed entirely. Accordingly, the following 
correcting amendments are made to restore the rules that are still in 
effect. The OMB Control Number for this information collection is 3060-
0568.

List of Subjects in 47 CFR Part 76

    Administrative practice and procedure and Cable television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    Accordingly, 47 CFR part 76 is corrected by making the following 
technical amendments:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 503, 521, 522, 
531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 
552, 554, 556, 558, 560, 561, 571, 572 and 573.


0
2. Revise Sec.  76.970 to read as follows:


Sec.  76.970  Commercial leased access rates.

    (a) Cable operators shall designate channel capacity for commercial 
use by persons unaffiliated with the operator in accordance with the 
requirement of 47 U.S.C. 532. For purposes of 47 U.S.C. 532(b)(1)(A) 
and (B), only those channels that must be carried pursuant to 47 U.S.C. 
534 and 535 qualify as channels that are required for use by Federal 
law or regulation. For cable systems with 100 or fewer channels, 
channels that cannot be used due to technical and safety regulations of 
the Federal Government (e.g., aeronautical channels) shall be excluded 
when calculating the set-aside requirement.
    (b) In determining whether an entity is an ``affiliate'' for 
purposes of commercial leased access, 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.
    (c) Attributable interest shall be defined by reference to the 
criteria set forth in Notes 1-5 to Sec.  76.501 provided, however, 
that:
    (1) The limited partner and LLC/LLP/RLLP insulation provisions of 
Note 2(f) shall not apply; and;
    (2) The provisions of Note 2(a) regarding five (5) percent 
interests shall include all voting or nonvoting stock or limited 
partnership equity interests of five (5) percent or more.
    (d) The maximum commercial leased access rate that a cable operator 
may charge for full-time channel placement on a tier exceeding a 
subscriber penetration of 50 percent is the average implicit fee for 
full-time channel placement on all such tier(s).
    (e) The average implicit fee identified in paragraph (c) of this 
section for a full-time channel on a tier with a subscriber penetration 
over 50 percent shall be calculated by first calculating the total 
amount the operator receives in subscriber revenue per month for the 
programming on all such tier(s), and then subtracting the total amount 
it pays in programming costs per month for such tier(s) (the ``total 
implicit fee calculation''). A weighting scheme that accounts for 
differences in the number of subscribers and channels on all such 
tier(s) must be used to determine how much of the total implicit fee 
calculation will be recovered from any particular tier. The weighting 
scheme is determined in two steps. First, the number of subscribers is 
multiplied by the number of channels (the result is the number of 
``subscriber-channels'') on each tier with subscriber penetration over 
50 percent. For instance, a tier with 10 channels and 1,000 subscribers 
would have a total of 10,000 subscriber-channels. Second, the 
subscriber-channels on each of these tiers is divided by the total 
subscriber-channels on all such tiers. Given the percent of subscriber-
channels for the particular tier, the implicit fee for the tier is 
computed by multiplying the subscriber-channel percentage for the tier 
by the total implicit fee calculation. Finally, to calculate the 
average implicit fee per channel, the implicit fee for the tier must be 
divided by the corresponding number of channels on the tier. The final 
result is the maximum rate per month that the operator may charge the 
leased access programmer for a full-time channel on that particular 
tier. The average implicit fee shall be calculated by using all 
channels carried on any tier exceeding 50 percent subscriber 
penetration (including channels devoted to affiliated programming, 
must-carry and public, educational and government access channels). In 
the event of an agreement to lease capacity on a tier with less than 50 
percent penetration, the average implicit fee should be determined on 
the basis of subscriber revenues and programming costs for that tier 
alone. The license fees for affiliated channels used in determining the 
average implicit fee shall reflect the prevailing company prices 
offered in the marketplace to third parties. If a prevailing company 
price does not exist, the license fee for that programming shall be 
priced at the programmer's cost or the fair market value, whichever is 
lower. The average implicit fee shall be based on contracts in effect 
in the previous calendar year. The implicit fee for a contracted 
service may not include fees, stated or implied, for services other 
than the provision of channel capacity (e.g., billing and collection, 
marketing, or studio services).
    (f) The maximum commercial leased access rate that a cable operator 
may charge for full-time channel placement as an a la carte service is 
the highest implicit fee on an aggregate basis for full-time channel 
placement as an a la carte service.
    (g) The highest implicit fee on an aggregate basis for full-time 
channel placement as an a la carte service shall be calculated by first 
determining the total amount received by the operator in subscriber 
revenue per month for each non-leased access a la carte channel on its 
system (including affiliated a la carte channels) and deducting the 
total amount paid by the operator in programming costs (including 
license and copyright fees) per month for programming on such 
individual channels. This calculation will result in implicit fees 
determined on an aggregate

[[Page 20257]]

basis, and the highest of these implicit fees shall be the maximum rate 
per month that the operator may charge the leased access programmer for 
placement as a full-time a la carte channel. The license fees for 
affiliated channels used in determining the highest implicit fee shall 
reflect the prevailing company prices offered in the marketplace to 
third parties. If a prevailing company price does not exist, the 
license fee for that programming shall be priced at the programmer's 
cost or the fair market value, whichever is lower. The highest implicit 
fee shall be based on contracts in effect in the previous calendar 
year. The implicit fee for a contracted service may not include fees, 
stated or implied, for services other than the provision of channel 
capacity (e.g., billing and collection, marketing, or studio services). 
Any subscriber revenue received by a cable operator for an a la carte 
leased access service shall be passed through to the leased access 
programmer.
    (h) The maximum commercial leased access rate that a cable operator 
may charge for part-time channel placement shall be determined by 
either prorating the maximum full-time rate uniformly, or by developing 
a schedule of and applying different rates for different times of the 
day, provided that the total of the rates for a 24-hour period does not 
exceed the maximum daily leased access rate.
    (i)(1) Cable system operators shall provide prospective leased 
access programmers with the following information within 15 calendar 
days of the date on which a request for leased access information is 
made:
    (i) How much of the operator's leased access set-aside capacity is 
available;
    (ii) A complete schedule of the operator's full-time and part-time 
leased access rates;
    (iii) Rates associated with technical and studio costs; and
    (iv) If specifically requested, a sample leased access contract.
    (2) Operators of systems subject to small system relief shall 
provide the information required in paragraph (h)(1) of this section 
within 30 calendar days of a bona fide request from a prospective 
leased access programmer. For these purposes, systems subject to small 
system relief are systems that either:
    (i) Qualify as small systems under Sec.  76.901(c) and are owned by 
a small cable company as defined under Sec.  76.901(e); or
    (ii) Have been granted special relief.
    (3) Bona fide requests, as used in this section, are defined as 
requests from potential leased access programmers that have provided 
the following information:
    (i) The desired length of a contract term;
    (ii) The time slot desired;
    (iii) The anticipated commencement date for carriage; and
    (iv) The nature of the programming.
    (4) All requests for leased access must be made in writing and must 
specify the date on which the request was sent to the operator.
    (5) Operators shall maintain, for Commission inspection, sufficient 
supporting documentation to justify the scheduled rates, including 
supporting contracts, calculations of the implicit fees, and 
justifications for all adjustments.
    (j) Cable operators are permitted to negotiate rates below the 
maximum rates permitted in paragraphs (c) through (g) of this section.


Sec.  76.972  [Removed]

0
3. Remove Sec.  76.972.

0
4. Revise Sec.  76.975 to read as follows:


Sec.  76.975  Commercial leased access dispute resolution.

    (a) Any person aggrieved by the failure or refusal of a cable 
operator to make commercial channel capacity available in accordance 
with the provisions of Title VI of the Communications Act may bring an 
action in the district court of the United States for the Judicial 
district in which the cable system is located to compel that such 
capacity be made available.
    (b)(1) Any person aggrieved by the failure or refusal of a cable 
operator to make commercial channel capacity available or to charge 
rates for such capacity in accordance with the provisions of Title VI 
of the Communications Act, or our implementing regulations, Sec. Sec.  
76.970 and 76.971, may file a petition for relief with the Commission. 
Persons alleging that a cable operator's leased access rate is 
unreasonable must receive a determination of the cable operator's 
maximum permitted rate from an independent accountant prior to filing a 
petition for relief with the Commission.
    (2) Parties to a dispute over leased access rates shall have five 
business days to agree on a mutually acceptable accountant from the 
date on which the programmer provides the cable operator with a written 
request for a review of its leased access rates. Parties that fail to 
agree on a mutually acceptable accountant within five business days of 
the programmer's request for a review shall each be required to select 
an independent accountant on the sixth business day. The two 
accountants selected shall have five business days to select a third 
independent accountant to perform the review. Operators of systems 
subject to small system relief shall have 14 business days to select an 
independent accountant when an agreement cannot be reached. For these 
purposes, systems subject to small system relief are systems that 
either:
    (i) Qualify as small systems under Sec.  76.901(c) and are owned by 
a small cable company as defined under Sec.  76.901(e); or
    (ii) Have been granted special relief.
    (3) The final accountant's report must be completed within 60 days 
of the date on which the final accountant is selected to perform the 
review. The final accountant's report must, at a minimum, state the 
maximum permitted rate, and explain how it was determined without 
revealing proprietary information. The report must be signed, dated and 
certified by the accountant. The report shall be filed in the cable 
system's local public file.
    (4) If the accountant's report indicates that the cable operator's 
leased access rate exceeds the maximum permitted rate by more than a de 
minimis amount, the cable operator shall be required to pay the full 
cost of the review. If the final accountant's report does not indicate 
that the cable operator's leased access rate exceeds the maximum 
permitted rate by more than a de minimis amount, each party shall be 
required to split the cost of the final accountant's review, and to pay 
its own expenses incurred in making the review.
    (5) Parties may use alternative dispute resolution (ADR) processes 
to settle disputes that are not resolved by the final accountant's 
report.
    (c) A petition must contain a concise statement of the facts 
constituting a violation of the statute or the Commission's rules, the 
specific statute(s) or rule(s) violated, and certify that the petition 
was served on the cable operator. Where a petition is based on 
allegations that a cable operator's leased access rates are 
unreasonable, the petitioner must attach a copy of the final 
accountant's report. In proceedings before the Commission, there will 
be a rebuttable presumption that the final accountant's report is 
correct.
    (d) Where a petition is not based on allegations that a cable 
operator's leased access rates are unreasonable, the petition must be 
filed within 60 days of the alleged violation. Where a petition is 
based on allegations that the cable operator's leased access rates are 
unreasonable, the petition must be filed within 60 days of the final 
accountant's report, or within 60 days of the termination of ADR 
proceedings.

[[Page 20258]]

Aggrieved parties must certify that their petition was filed within 60 
days of the termination of ADR proceedings in order to file a petition 
later than 60 days after completion of the final accountant's report. 
Cable operators may rebut such certifications.
    (e) The cable operator or other respondent will have 30 days from 
the filing of the petition to file a response. If a leased access rate 
is disputed, the response must show that the rate charged is not higher 
than the maximum permitted rate for such leased access, and must be 
supported by the affidavit of a responsible company official. If, after 
a response is submitted, the staff finds a prima facie violation of our 
rules, the staff may require a respondent to produce additional 
information, or specify other procedures necessary for resolution of 
the proceeding.
    (f) The Commission, after consideration of the pleadings, may grant 
the relief requested, in whole or in part, including, but not limited 
to ordering refunds, injunctive measures, or forfeitures pursuant 47 
U.S.C. 503, denying the petition, or issuing a ruling on the petition 
or dispute.
    (g) To be afforded relief, the petitioner must show by clear and 
convincing evidence that the cable operator has violated the 
Commission's leased access provisions in 47 U.S.C. 532 or Sec. Sec.  
76.970 and 76.971, or otherwise acted unreasonably or in bad faith in 
failing or refusing to make capacity available or to charge lawful 
rates for such capacity to an unaffiliated leased access programmer.
    (h) During the pendency of a dispute, a party seeking to lease 
channel capacity for commercial purposes, shall comply with the rates, 
terms and conditions prescribed by the cable operator, subject to 
refund or other appropriate remedy.


Sec.  76.978  [Removed]

0
5. Remove Sec.  76.978.
[FR Doc. 2013-03940 Filed 4-3-13; 8:45 am]
BILLING CODE 6712-01-P