[Federal Register Volume 85, Number 74 (Thursday, April 16, 2020)]
[Proposed Rules]
[Pages 21131-21139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07822]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket Nos. 20-70, 17-105, 11-131; FCC 20-39; FRS 16644]


Modernization of Media Regulation Initiative; Program Carriage

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on whether to 
adopt changes to our rules governing the resolution of program carriage 
disputes between video programming vendors and multichannel video 
programming distributors (MVPDs) to ensure an expeditious dispute 
resolution process. Specifically, we propose to modify one of the time 
limit requirements for filing program carriage complaints in order to 
make it consistent with the time limits for other types of complaints. 
For consistency, we also propose to revise the parallel time limit 
requirements for filing program access, open video system (OVS), and 
good-faith retransmission consent complaints. We also propose to revise 
the effective date and review procedures of initial decisions issued by 
an administrative law judge (ALJ) in program carriage proceedings so 
they comport with the Commission's generally applicable procedures for 
review of ALJ initial decisions. We propose to extend this change to 
program access and OVS proceedings as well.

DATES: Comments due on or before May 18, 2020; reply comments due on or 
before June 1, 2020.

ADDRESSES: You may submit comments, identified by MB Docket Nos. 20-70, 
17-105, 11-131, by any of the following methods:
    [ssquf] Federal Communications Commission's website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    [ssquf] People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact John Cobb, [email protected] of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking 
(FNPRM), MB Docket Nos. 20-70, 17-105, 11-131; FCC 20-39, adopted on 
March 31, 2020 and released on April 1, 2020. 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. The 
full text of this document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in 
ASCII, Word, 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 these documents in accessible 
formats (computer diskettes, large print, audio recording, and 
Braille), send an email to [email protected] or call the Commission's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

Synopsis

    This Further Notice of Proposed Rulemaking and Notice of Proposed 
Rulemaking (FNPRM) proposes changes to the Commission's rules governing 
the resolution of program carriage disputes between video programming 
vendors and multichannel video programming distributors (MVPDs). 
Specifically, we propose to modify one of the time limit requirements 
for filing program carriage complaints in order to make it

[[Page 21132]]

consistent with the time limits for other types of complaints. For 
consistency, we also propose to revise the parallel time limit 
requirements for filing program access, open video system (OVS), and 
good-faith retransmission consent complaints. We also propose to revise 
the effective date and review procedures of initial decisions issued by 
an administrative law judge (ALJ) in program carriage proceedings so 
they comport with the Commission's generally applicable procedures for 
review of ALJ initial decisions. We propose to extend this change to 
program access and OVS proceedings as well. We believe that these 
changes will help ensure an expeditious program access, program 
carriage, retransmission consent, and OVS complaint process and provide 
additional clarity to both potential complainants and defendants, as 
well as adjudicators, consistent with the Communications Act of 1934, 
as amended (the Act). With this proceeding, we continue our efforts to 
modernize our media regulations.
    Background. Congress passed the Cable Television Consumer 
Protection and Competition Act of 1992 (1992 Cable Act) to, among other 
goals, ``ensure that cable television operators do not have undue 
market power vis-[agrave]-vis video programmers and consumers.'' 
Congress was concerned that the local market power then held by cable 
operators along with increasing vertical integration in the industry 
would hinder diversity and competition in the video programming market. 
To address these concerns, Congress instructed the Commission in 
section 616 of the Act to adopt regulations governing program carriage 
agreements between MVPDs and video programming vendors. Specifically, 
section 616 directed the Commission to prohibit several anti-
competitive practices, and to adopt procedures for expedited review of 
program carriage complaints. In this FNPRM, we propose changes to two 
of these procedural provisions: First, the statute of limitations, and 
second, the rule governing the effective date of program carriage 
decisions.
    For a program carriage complaint to be considered timely, a 
complainant must satisfy one of the three prongs of the statute of 
limitations set forth in Sec.  76.1302(h) of the Commission's rules. 
The first prong provides that a complaint is timely if it is filed 
within one year of the date that the defendant MVPD enters into a 
program carriage contract that a party alleges to violate the program 
carriage rules. The second prong provides that a complaint is timely if 
it is filed within one year of the date that the defendant MVPD 
presents a carriage offer that a party alleges violates the program 
carriage rules. The third prong of the statute of limitations for 
program carriage complaints provides that a complaint ``must be filed 
within one year of the date on which . . . [a] party has notified [an 
MVPD] that it intends to file a complaint with the Commission based on 
violations of one or more of the rules contained in this section.'' As 
originally adopted in the 1993 Program Carriage Order, this third prong 
included additional limiting language. In particular, it provided that 
a complaint would be timely if it was filed within one year of the date 
on which ``the complainant has notified [an MVPD] that it intends to 
file a complaint with the Commission based on a request for carriage or 
to negotiate for carriage of its programming on defendant's 
distribution system that has been denied or unacknowledged, allegedly 
in violation of one or more of the rules contained in this subpart.'' 
In the 1994 Program Carriage Order, however, the Commission removed 
this limiting language without providing a rationale for this specific 
modification. Subsequently, in 1999, while discussing an amendment made 
to the second prong of the statutes of limitations for program access, 
program carriage, and OVS complaints, the Commission suggested that the 
third prong of these statutes of limitations is triggered when a 
``defendant unreasonably refuses to negotiate with [the] complainant.'' 
We note that these three statutes of limitations were functionally 
identical when originally adopted by the Commission. But while the 1994 
amendment to Sec.  76.1302 removed any reference to a denial or non-
acknowledgement of a request to negotiate from the text of the 
provision, the third prong of the other statutes of limitation was not 
similarly modified. And although the Commission suggested in 1999 that 
the third prong of the program carriage statute of limitations should 
be interpreted consistent with the statutes of limitation for program 
access and OVS complaints, in a series of decisions beginning in 2008, 
the Media Bureau and Commission applied the third prong in a manner 
consistent with the language of the rule.
    Most recently, in the 2011 Program Carriage NPRM, the Commission 
expressed concern that the third prong of the statute of limitations 
could be read to mean that a complaint is timely if filed within one 
year of when the complainant notified the defendant MVPD of its 
intention to file, regardless of when the actual act alleged to have 
violated the rules occurred. The Commission recognized that an 
interpretation of the program carriage statute of limitations that 
allows filing within one year of notice of intent to file, regardless 
of when the allegedly unlawful conduct occurred, ``undermines the 
fundamental purpose of a statute of limitations.'' Thus, the Commission 
proposed to revise the rule in the 2011 Program Carriage NPRM by 
replacing the three-pronged statute of limitations with a single 
provision providing ``that a complaint must be filed within one year of 
the act that allegedly violated the program carriage rules.''
    The program carriage procedural rules also provide that the Chief 
of the Media Bureau may refer a carriage dispute case to an ALJ after 
determining that the complainant has established a prima facie 
violation of Sec.  76.1301. Section 76.1302(j) then specifies that a 
decision issued by an ALJ on the merits shall become effective upon 
release, except in limited circumstances. If review of an ALJ decision 
is sought, the rules require that the decision remain in effect pending 
review, unlike the generally applicable procedures of Sec.  1.276(d), 
that automatically stay an ALJ's initial decision pending review. We 
note that while Congress instructed the Commission to adopt procedures 
for expedited review of program carriage complaints, there is no 
specific statutory requirement mandating that ALJ initial decisions 
take immediate effect, nor that they remain in effect pending review. 
These rules governing when an ALJ's initial decision in a program 
carriage matter takes effect and whether it remains in effect pending 
review have caused confusion for both parties and adjudicators, and 
ultimately can create inconsistent outcomes pending appeal. In this 
FNPRM, we propose rule changes to eliminate this confusion.
    The procedural rules for program access complaints and OVS 
complaints contain parallel provisions requiring that orders take 
immediate effect and remain in effect pending review. Section 628 of 
the 1992 Cable Act instructed the Commission to adopt procedures for 
the expedited review of program access complaints. Accordingly, in the 
1993 Program Access Order, the Commission adopted regulations providing 
for the expedited review of program access complaints, including a 
provision that ALJ initial decisions would take effect upon release. 
The Commission subsequently adopted nearly identical procedures for the 
filing of OVS complaints pursuant to section 653 of the Act, including 
the rule providing that ALJ initial decisions would take

[[Page 21133]]

immediate effect. In 1999, the Commission consolidated review 
procedures from the program carriage, program access, and OVS rules 
into a newly created section, which provides that review of an initial 
decision on the merits by an ALJ in any part 76 proceeding will be 
handled in accordance with the Commission's general procedures, except 
that orders issued pursuant to the program carriage, program access, 
and OVS rules will remain in effect pending review.
    In May 2017, the Commission launched a proceeding to review its 
media regulations to eliminate or modify regulations that are outdated, 
unnecessary, or unduly burdensome. Commenters in that proceeding 
suggested that the program carriage rules should be reviewed and 
updated as part of this initiative.
    Discussion. This FNPRM seeks comment on two different proposals to 
amend the part 76 procedural rules. First, we propose to revise the 
program carriage statute of limitations provision in Sec.  76.1302(h) 
to modify subsection (3) of that provision. As explained below, this 
proposal differs from the proposal in the 2011 Program Carriage NPRM to 
revise this same provision. Second, we propose to amend Sec. Sec.  
76.10(c)(2), 76.1003(h)(1), 76.1302(j)(1), and 76.1513(h)(1) to provide 
that review of all initial decisions issued by an ALJ pursuant to the 
program access, program carriage, and OVS complaint rules will be 
handled in accordance with the Commission's generally applicable 
procedures for review of ALJ initial decisions. We believe that 
amending these provisions as proposed will make the Commission's 
procedures more consistent and encourage the timely resolution of 
program carriage disputes.
    Program Carriage Statute of Limitations. The third prong of the 
program carriage statute of limitations provides that a complaint is 
timely as long as it is filed within one year of the complainant 
notifying the defendant of its intent to file a complaint with the 
Commission, regardless of when the actual act alleged to have violated 
the rules occurred. As discussed above, the Commission has previously 
expressed concern that this undermines ``the fundamental purpose of a 
statute of limitations `to protect a potential defendant against stale 
and vexatious claims by ending the possibility of litigation after a 
reasonable period of time has elapsed.' '' We propose to revise the 
third prong of the program carriage statute of limitations to clarify 
that it applies only in circumstances where there is not an existing 
program carriage contract or contract offer and a defendant MVPD has 
denied or failed to acknowledge either a request for program carriage 
or a request to negotiate for program carriage. The revised rule will 
provide that, ``in instances where there is no existing contract or an 
offer for carriage,'' program carriage complaints relying on the third 
triggering event must be filed within one year of the date on which 
``[an MVPD] has denied or failed to acknowledge a request by a video 
programming vendor for carriage or to negotiate for carriage of that 
video programming vendor's programming on defendant's distribution 
system, allegedly in violation of one or more of the [program carriage 
rules].'' With this proposed revision, we intend to ensure that parties 
file program carriage complaints on a timely basis and provide 
certainty to both MVPDs and prospective complainants. We seek comment 
on the potential effects of this proposal on the program carriage 
complaint process and the parties involved.
    We tentatively find persuasive comments responding to the 2011 
Program Carriage NPRM suggesting that the Commission should 
reincorporate limiting language that would make clear that the third 
prong applies only in instances where an MVPD denies or fails to 
acknowledge either a request for carriage or a request to negotiate for 
carriage, similar to the language of the rule as originally adopted in 
1993, rather than adopt the single statute of limitations provision 
proposed in that item. We tentatively agree with commenters that this 
revision would provide clarity as to when an MVPD's alleged violation 
occurred and eliminate the possibility of an open-ended interpretation 
of the program carriage statute of limitations, a concern raised by the 
Commission itself and by multiple commenters in the 2011 proceeding. 
Commenters in the 2011 proceeding argued that the proposal to replace 
the three-pronged statute of limitations with a single provision would 
not alleviate the problems caused by the current statute of 
limitations, as it would ``effectively eliminate any time limitation by 
allowing complaints to be filed within one year of any `alleged 
violation' of the rules without any limitation on what `alleged 
violations' program carriage claims may be based on.'' We seek comment 
on this analysis. Would the revision proposed herein better fulfill the 
general aim of a statute of limitations by protecting potential MVPD 
defendants against ``stale and vexatious'' claims? Relatedly, would it 
provide greater certainty for potential complainants regarding when 
their claims expire? How should we determine when a potential defendant 
has failed to acknowledge a request? Should we specify a set number of 
days (e.g., 30 or 60) after the initial request for program carriage is 
made by which the MVPD must acknowledge the request or else the statute 
of limitations begins to run? If we specify a time period, should that 
time period instead run from the date that the initial request is 
received by the MVPD? What evidence should the Commission rely on in 
determining when that request is made or received? What are other ways 
that we could determine whether an MVPD has failed to acknowledge a 
request? Are there other objective means by which we can make this 
determination or is it inherently fact specific and thus better 
determined on a case-by-case basis? How, if at all, would making the 
changes discussed above affect the ability of MVPDs to file program 
carriage complaints? What would the effect of this revision be on the 
expeditious resolution of program carriage complaints by Commission 
staff or an ALJ, an explicit goal of section 616? We encourage 
commenters to provide specific examples where possible of how this 
proposed revision, if adopted, would affect the resolution of program 
carriage complaints.
    We note that the statutes of limitations for program access, OVS, 
and good-faith retransmission consent complaints contain a similar 
triggering event that runs from the moment that a potential complainant 
notifies a defendant that it intends to file a complaint based on a 
denial or failure to acknowledge a request. For consistency, we propose 
to revise those provisions so that the triggering event for each would 
be the denial or failure to acknowledge a request, rather than notice 
of intent to file a complaint on that basis. We seek comment on this 
proposal. We propose to determine when a potential defendant has failed 
to acknowledge a request with regard to program access, OVS, and good-
faith retransmission consent complaints in the same way we would make 
this determination in the context of program carriage complaints. Or 
are there reasons why these determinations should differ in the context 
of these different types of substantive disputes?
    We note that the Commission or Bureau has previously entertained 
several program carriage complaints which involved a contract that 
provided a defendant MVPD with the discretion to re-tier a complainant 
programmer or to carry the complainant programmer on additional 
systems. In those

[[Page 21134]]

proceedings, the complainant programmer had alleged that the defendant 
MVPD exercised its discretion in a way that violated the program 
carriage statute and rules. The Commission or Bureau found that such 
complaints were timely filed under the third prong of the program 
carriage statute of limitations. Would similar complaints be timely 
filed under any of the three prongs of the program carriage statute of 
limitations if we were to adopt the rule revisions proposed herein? If 
not, how would complainant programmers be impacted? We propose to add 
language to the third prong to clarify that it applies only in 
circumstances where there is not an existing program carriage contract 
or contract offer. Having agreed to a contractual provision that 
provides an MVPD with the discretion to take future carriage actions 
unilaterally, what basis, if any, would there be for allowing such 
programmer to file a program carriage complaint when an MVPD exercises 
that discretion?
    We recognize that determining when an MVPD has denied or failed to 
acknowledge a request for carriage or a request to negotiate for 
carriage may require a fact-specific analysis and that parties may view 
circumstances giving rise to the dispute differently. To the extent 
necessary, we expect that the adjudicator will be able to resolve such 
issues on a case-by-case basis. Relatedly, we tentatively disagree with 
suggestions from comments to the 2011 Program Carriage NPRM that 
complainants would manufacture triggering events, resulting in a 
statute of limitations that lacks any clarity for defendant MVPDs. We 
tentatively conclude that Pprt 76's general pleading requirements, 
which prohibit the filing of false or frivolous claims and provide for 
sanctions against parties doing so, would sufficiently dissuade parties 
from filing vexatious claims in the program carriage context. We seek 
comment on this tentative conclusion.
    Some commenters responding to the 2011 Program Carriage NPRM argued 
that the statute of limitations should not begin to run until 
discriminatory conduct that is alleged to violate the program carriage 
rules has become apparent to video programming vendors. Video 
programming vendors suggested that they are at an information 
disadvantage because they do not have access to all of the terms 
offered by MVPDs to comparably situated vendors making it difficult to 
determine whether they have a meritorious claim of discrimination. We 
seek additional comment on this argument. For discriminatory conduct to 
violate the program carriage rules, it must be ``on the basis of 
affiliation or non-affiliation of'' programmers and it must 
``unreasonably restrain the ability of an unaffiliated video 
programming vendor to compete fairly.'' If an MVPD makes an offer or 
the parties enter into a contract that discriminates ``on the basis of 
affiliation or non-affiliation of'' programmers and to an extent that 
it unreasonably restrains the ability of an unaffiliated video 
programming vendor to compete fairly, then the video programming vendor 
has one year from the date on which that offer was made or that 
contract was executed to file a complaint with the Commission. Does 
this preclude video programming vendors from being eligible to file 
meritorious program carriage complaints because of their alleged 
information disadvantage? Other commenters alleged that MVPDs ``have 
historically strung out negotiations with unaffiliated programmers, 
permitting them to discriminate against unaffiliated vendors without 
ever having to issue a formal denial.'' We seek comment on this 
argument. Are there alternative proposals that would address these 
issues, while still foreclosing stale and vexatious claims?
    Review of Initial ALJ Decisions. The differences between the part 1 
and part 76 review procedures for ALJ initial decisions have caused 
confusion for both adjudicators and parties in program carriage 
proceedings. The part 76 review procedures for ALJ initial decisions 
contain two major differences from the part 1 procedures. First, ALJ 
decisions following the part 1 procedures do not take effect for at 
least 50 days following release, while part 76 provides that they take 
immediate effect. Second, part 1 provides that ALJ decisions are stayed 
automatically upon the filing of exceptions, while part 76 provides 
that ALJ decisions will remain in effect pending review. To address 
this confusion, we propose to amend the program access, program 
carriage, and OVS procedural rules so that review of initial decisions 
issued by an ALJ is handled in accordance with the Commission's 
generally applicable procedures in part 1 of our rules for review of 
ALJ initial decisions. In practice, this will mean that decisions on 
the merits issued by an ALJ in program access, program carriage, and 
OVS proceedings will not take effect before 50 days after issuance and 
decisions will be automatically stayed upon the filing of exceptions by 
an aggrieved party.
    We tentatively conclude that this revision would reduce the 
potential for confusion by making the part 76 procedures consistent 
with the Commission's generally applicable procedures in part 1 of our 
rules for review of ALJ initial decisions. We seek comment on this 
proposal. Are there valid reasons for requiring that ALJ initial 
decisions in program access, program carriage, and OVS proceedings take 
effect upon release, but delaying the effectiveness of ALJ initial 
decisions in other contexts? Further, what are the reasons, if any, for 
allowing ALJ initial decisions in program access, program carriage, and 
OVS proceedings to remain in effect while the parties seek review? 
Would there be any potential negative effects for consumers from making 
this change? Are there any potential negative effects for complainants? 
Would there be any harms to complainants from staying the effect of ALJ 
initial decisions during review that could not be alleviated by 
extending the effect of the remedial order commensurate with the length 
of the stay? Would any potential costs to complainants resulting from 
our proposed rule revisions outweigh the benefits? Commenters are 
encouraged to provide specific examples where possible. What, if any, 
other technical rule revisions would reduce confusion in the 
application of these ALJ review procedures and aid in the efficient 
resolution of program access, program carriage, and OVS complaints by 
ALJs?
    We also propose a simple technical edit in the respective program 
access, program carriage, and OVS provisions to make clear that 
decisions under those rules may be issued by the Commission, Commission 
staff, or an ALJ. This revision does not reflect a substantive change 
to the rules and would merely increase the clarity of the program 
access, program carriage and OVS rules. Are there any additional 
proposals related to the effective date of program access, program 
carriage, and OVS complaint decisions issued by ALJs that we should 
consider as a part of this proceeding?
    Other Program Carriage Proposals. The 2011 Program Carriage NPRM 
sought comment on a number of additional issues related to the 
Commission's program carriage rules, including: Revising the discovery 
procedures; permitting the award of damages; adopting a best ``final 
offer'' dispute resolution model; heightening the evidentiary showing 
to obtain a mandatory carriage remedy; explicitly prohibiting 
retaliation for filing a complaint; adopting a good-faith negotiation 
rule; clarifying what constitutes discrimination; and codifying the 
burden of proof requirements for discrimination cases.

[[Page 21135]]

Given the significant amount of time that has passed since the 2011 
Program Carriage NPRM and the vast changes in the media marketplace in 
the intervening years, we seek comment on whether those proposals are 
necessary to ensure an efficient program carriage marketplace.
    Initial Regulatory Flexibility Act Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) relating 
to this NPRM. The IRFA is set forth below.
    Paperwork Reduction Act. This NPRM may result in new or revised 
information collection requirements subject to the Paperwork Reduction 
Act of 1995, Public Law 104-13 (44 U.S.C. 3501 through 3520). If the 
Commission adopts any new or revised information collection 
requirement, the Commission will publish a notice in the Federal 
Register inviting the public to comment on the requirement, as required 
by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 
3501-3520). In addition, pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the 
Commission seeks specific comment on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    Ex Parte Rules--Permit-But-Disclose. This proceeding shall be 
treated as a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Ex parte presentations are permissible if 
disclosed in accordance with Commission rules, except during the 
Sunshine Agenda period when presentations, ex parte or otherwise, are 
generally prohibited. Persons making ex parte presentations must file a 
copy of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. Memoranda must contain a 
summary of the substance of the ex parte presentation and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
If the presentation consisted in whole or in part of the presentation 
of data or arguments already reflected in the presenter's written 
comments, memoranda or other filings in the proceeding, the presenter 
may provide citations to such data or arguments in his or her prior 
comments, memoranda, or other filings (specifying the relevant page 
and/or paragraph numbers where such data or arguments can be found) in 
lieu of summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with Sec.  1.1206(b) 
of the rules. In proceedings governed by Sec.  1.49(f) of the rules or 
for which the Commission has made available a method of electronic 
filing, written ex parte presentations and memoranda summarizing oral 
ex parte presentations, and all attachments thereto, must be filed 
through the electronic comment filing system available for that 
proceeding, and must be filed in their native format (e.g., .doc, .xml, 
.ppt, searchable .pdf). Participants in this proceeding should 
familiarize themselves with the Commission's ex parte rules.
    Filing Requirements--Comments and Replies. Pursuant to Sec. Sec.  
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, 
interested parties may file comments and reply comments on or before 
the dates indicated on the first page of this document. Comments may be 
filed using the Commission's Electronic Comment Filing System (ECFS). 
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 
24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
    Effective March 19, 2020, and until further notice, the Commission 
no longer accepts any hand or messenger delivered filings. This is a 
temporary measure taken to help protect the health and safety of 
individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (Mar. 19, 2020) available 
https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    During the time the Commission's building is closed to the general 
public and until further notice, if more than one docket or rulemaking 
number appears in the caption of a proceeding, paper filers need not 
submit two additional copies for each additional docket or rulemaking 
number; an original and one copy are sufficient.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).
    Availability of Documents. Comments and reply comments will be 
publicly available online via ECFS. These documents will also be 
available for public inspection during regular business hours in the 
FCC Reference Information Center, which is located in Room CY-A257 at 
FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The 
Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m.
    Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared this present Initial Regulatory Flexibility Analysis 
(IRFA) concerning the possible significant economic impact on small 
entities by the policies and rules proposed in the Further Notice of 
Proposed Rulemaking and Notice of Proposed Rulemaking (FNPRM). Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments provided on the first page of the FNPRM. The Commission will 
send a copy of the FNPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
FNPRM and IRFA (or summaries thereof) will be published in the Federal 
Register.
    Need for, and Objectives of, the Proposed Rules. Congress passed 
the Cable Television Consumer Protection

[[Page 21136]]

and Competition Act of 1992 (1992 Cable Act) to, among other goals, 
``ensure that cable television operators do not have undue market power 
vis-[agrave]-vis video programmers and consumers.'' Congress was 
concerned that the local market power held by cable operators along 
with increased vertical integration in the industry would hinder 
diversity and competition in the video programming market. To address 
these concerns, Congress instructed the Commission in section 616 of 
the 1992 Cable Act to adopt regulations governing program carriage 
agreements between MVPDs and video programming vendors. Section 616 
directed the Commission to adopt procedures for expedited review for 
complaints filed pursuant to section 616 and provide for penalties and 
remedies for violations of the same.
    This FNPRM seeks comment on two different proposals to amend the 
part 76 procedural rules. First, we propose to revise the program 
carriage statute of limitations provision in Sec.  76.1302(h) to revise 
subsection (3) to clarify that it applies only in circumstances where 
there is not an existing program carriage contract or contract offer 
and a defendant MVPD has denied or failed to acknowledge either a 
request for program carriage or a request to negotiate for program 
carriage. For consistency, we propose to revise the parallel program 
access, OVS, and good-faith retransmission consent rules, so that the 
triggering event for each would be the denial or failure to acknowledge 
a request, rather than notice of intent to file a complaint on that 
basis, as we propose to do with the program carriage rules here. 
Second, we propose to amend Sec. Sec.  76.10(c)(2), 76.1003(h)(1), 
76.1302(j)(1), and 76.1513(h)(1) to provide that all initial decisions 
issued by an administrative law judge (ALJ) pursuant to the program 
access, program carriage, and OVS rules will not take effect before 50 
days after issuance and decisions will be automatically stayed upon the 
filing of exceptions by an aggrieved party in accordance with the 
Commission's generally applicable procedures for review of ALJ 
decisions. We believe that amending these provisions as proposed will 
better ensure that program access, program carriage, OVS, and good-
faith retransmission consent complaints are addressed expeditiously by 
providing additional clarity to both potential complainants and 
defendants, consistent with Congress's intent in the Act, and will 
apply existing Commission procedures uniformly.
    Legal Basis. The proposed action is authorized pursuant to 1, 4(i), 
4(j), 616, 628, and 653 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(j), 536, 548, and 573.
    Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply. 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. The 
RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. 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. Below, we provide a description of such small 
entities, as well as an estimate of the number of such small entities, 
where feasible.
    Cable Companies and Systems (Rate Regulation Standard). The 
Commission has 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. Industry data indicate that, of 4,200 cable operators 
nationwide, all but 9 are small under this size standard. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Industry data indicate that, of 
4,200 systems nationwide, 3,900 have fewer than 15,000 subscribers, 
based on the same records. Thus, under this second size standard, the 
Commission believes that most cable systems are small.
    Cable System Operators (Telecommunications Act Standard). The Act 
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.'' There are 
approximately 49,011,210 cable subscribers in the United States today. 
Accordingly, an operator serving fewer than 490,112 subscribers shall 
be deemed a small operator, if its annual revenues, when combined with 
the total revenues of all its affiliates, do not exceed $250 million in 
the aggregate. Based on the available data, we find that all but five 
independent cable operators are affiliated with entities whose gross 
annual revenues exceed $250 million. Although it seems certain that 
some of these cable system operators are affiliated with entities whose 
gross annual revenues exceed $250 million, 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, and therefore we are unable to estimate more 
accurately the number of cable system operators that would qualify as 
small under the definition in the Communications Act.
    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 is now included in SBA's economic census 
category ``Wired Telecommunications Carriers.'' The Wired 
Telecommunications Carriers 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 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. The SBA determines that a wireline business is small if 
it has fewer than 1,500 employees. Economic census data for 2012 
indicate that 3,117 wireline companies were operational during that 
year. Of that number, 3,083 operated with fewer than 1,000 employees. 
Based on that data, we conclude that the majority of wireline firms are 
small under the applicable standard. Currently, however, only two 
entities provide DBS service, which requires a great deal of capital 
for operation: DIRECTV (owned by AT&T) and DISH Network. DIRECTV and 
DISH Network each report annual revenues that are in excess of the 
threshold for a small business. Accordingly, we conclude that, in 
general, DBS service is provided only by large firms.
    Motion Picture and Video Production. The Census Bureau defines this 
category as follows: ``This industry comprises

[[Page 21137]]

establishments primarily engaged in producing, or producing and 
distributing motion pictures, videos, television programs, or 
television commercials.'' We notes 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 $35,000,000 or less in annual revenue. 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 Bureau for the year 2012. Census Bureau data for 2012 show 
that there were 8,203 firms in this category that operated for the 
entire year. Of these, 8075 firms had annual receipts of $24,999,999 or 
less, and 61 firms had annual receipts exceeding $50,000,000. 67 firms 
had annual receipts between $25,000,000 and $49,000,000. Thus, under 
this category and associated small business size standard, the majority 
of firms can be considered small.
    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.'' 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 $34,500,000 million or less in annual 
revenue. 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 Bureau for the year 2012. Census Bureau 
data for 2012 show that there were 307 firms in this category that 
operated for the entire year. Of these, 294 firms had annual receipts 
of $24,999,999 or less, and 8 firms had annual receipts exceeding 
$50,000,000. 5 firms had annual receipts between $25,000,000 and 
$49,000,000. Thus, under this category and associated small business 
size standard, the majority of firms can be considered small.
    Television Broadcasting. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast 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 studio, from an affiliated 
network, or from external sources. The SBA has created the following 
small business size standard for such businesses: Those having $41.5 
million or less in annual receipts. The 2012 Economic Census reports 
that 751 firms in this category operated in that year. Of this number, 
656 had annual receipts of less than $25 million, 25 had annual 
receipts ranging from $25 million to $49,999,999, and 70 had annual 
receipts of $50 million or more. Based on this data we therefore 
estimate that the majority of commercial television broadcasters are 
small entities under the applicable SBA size standard.
    Additionally, the Commission has estimated the number of licensed 
commercial television stations to be 1,374. Of this total, 1,282 
stations (or 94.2%) had revenues of $41.5 million or less in 2018, 
according to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on April 15, 2019, and therefore 
these licensees qualify as small entities under the SBA definition. In 
addition, the Commission estimates the number of licensed noncommercial 
educational (NCE) television stations to be 388. The Commission does 
not compile and 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.
    We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations 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. In addition, 
another element of the definition of ``small business'' requires that 
an 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 broadcast station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply does not exclude any television station from the 
definition of a small business on this basis and is therefore possibly 
over-inclusive.
    There are also 387 Class A stations. Given the nature of these 
services, the Commission presumes that all of these stations qualify as 
small entities under the applicable SBA size standard. In addition, 
there are 1,892 LPTV stations and 3,621 TV translator stations. Given 
the nature of these services as secondary and in some cases purely a 
``fill-in'' service, we will presume that all of these entities qualify 
as small entities under the above SBA small business size standard.
    Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. As discussed above, this FNPRM proposes two 
revisions to the part 76 procedural rules. The first revision concerns 
the statute of limitations provision contained in Sec.  76.1302(h) and 
would insert limiting language to clarify that it applies only in 
circumstances where there is not an existing program carriage contract 
or contract offer and a defendant MVPD has denied or failed to 
acknowledge either a request for program carriage or a request to 
negotiate for program carriage. For consistency, we propose to revise 
the parallel program access, OVS, and good-faith retransmission consent 
rules, so that the triggering event for each would be the denial or 
failure to acknowledge a request, rather than notice of intent to file 
a complaint on that basis, as we propose to do with the program 
carriage rules here. The second would amend Sec.  76.1302(j)(1) to 
provide that initial decisions by an administrative law judge are 
automatically stayed upon the filing of exceptions by an aggrieved 
party, rather than only in the event of an order mandating carriage of 
a video programming vendor's content that requires a defendant MVPD to 
delete existing programming from its system to accommodate carriage. 
For consistency, we propose to extend this change to parallel 
provisions in program access, Sec.  76.1003(h)(1), and OVS, Sec.  
76.1513(h)(1), proceedings as well. These revisions should result in a 
more streamlined and clear part 76 complaint process, which would 
ultimately reduce the burden on entities potentially involved in part 
76 complaints.
    Steps Taken to Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered. 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

[[Page 21138]]

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, 
standard; and (4) an exemption from coverage of the rule, or any part 
thereof, for small entities.
    Through this FNPRM, the Commission seeks to minimize the burdens 
associated with the resolution of program carriage, program access, 
OVS, and good-faith retransmission consent complaints, by clarifying 
that the third triggering for all four types of complaints is the 
denial or failure to acknowledged a request and providing for automatic 
stays of initial decisions by an ALJ pending review for program 
carriage, program access, and OVS complaints. It is our hope that these 
revisions will aid in the expeditious resolution of program access, 
program carriage, OVS, good-faith retransmission consent complaints 
consistent with the Act. These changes would reduce the costs 
associated with litigating program access, program carriage, OVS, good-
faith retransmission consent complaints before the Commission by 
eliminating any confusion surrounding the statute of limitations in all 
four contexts and eliminating the need to seek a stay of an initial 
decision issued by an ALJ pending review for program carriage, program 
access, and OVS complaints. The Commission invites comment on 
alternative proposals that we should consider that would better 
minimize any adverse impact on small businesses, while still furthering 
the goal of reducing the costs associated with the efficient resolution 
of part 76 complaints.
    Federal Rules that May Duplicate, Overlap or Conflict With the 
Proposed Rule. None.
    It is ordered that, pursuant to the authority found in sections 1, 
4(i), 4(j), 303(r), 616, 628, and 653 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 536, 548, and 
573, this Further Notice of Proposed Rulemaking in MB Docket No. 11-131 
and Notice of Proposed Rulemaking in MB Docket No. 20-70 is adopted. It 
is further ordered that the Commission's Consumer and Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Further Notice of Proposed Rulemaking in MB Docket No. 11-131 and 
Notice of Proposed Rulemaking in MB Docket No. 20-70, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 76

    Administrative practice and procedure, Cable Television.

Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer, Office of the Secretary.

Proposed Rules

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

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, 338, 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, 573.

0
2. Amend Sec.  76.10 by revising paragraph (c)(2) to read as follows:


Sec.  76.10   Review.

* * * * *
    (c) * * *
    (2) Any party to a part 76 proceeding aggrieved by any decision on 
the merits by an administrative law judge may file an appeal of the 
decision directly with the Commission, in accordance with Sec. Sec.  
1.276(a) and 1.277(a) through (c) of this chapter.
0
3. Amend Sec.  76.65 by revising paragraph (e)(3) to read as follows:


Sec.  76.65   Good faith and exclusive retransmission consent 
complaints.

* * * * *
    (e) * * *
    (3) The television broadcast station or multichannel video 
programming distributor has denied, unreasonably delayed, or failed to 
acknowledge a request to negotiate retransmission consent in violation 
of one or more of the rules contained in this subpart.
* * * * *
0
4. Amend Sec.  76.1003 by revising paragraphs (g)(3) and (h)(1) to read 
as follows:


Sec.  76.1003  Program access proceedings.

* * * * *
    (g) * * *
    (3) A cable operator, or a satellite cable programming vendor or a 
satellite broadcast programming vendor has denied or failed to 
acknowledge a request to purchase or negotiate to purchase satellite 
cable programming, satellite broadcast programming, or terrestrial 
cable programming, or has made a request to amend an existing contract 
pertaining to such programming pursuant to Sec.  76.1002(f), allegedly 
in violation of one or more of the rules contained in this subpart.
    (h) Remedies for violations-- (1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission, Commission 
staff, or Administrative Law Judge shall order appropriate remedies, 
including, if necessary, the imposition of damages, and/or the 
establishment of prices, terms, and conditions for the sale of 
programming to the aggrieved multichannel video programming 
distributor. Such order shall set forth a timetable for compliance. 
Such order issued by the Commission or Commission staff shall be 
effective upon release. See 47 CFR 1.102(b); 1.103. The effective date 
of such order issued by the Administrative Law Judge is set forth in 47 
CFR 1.276(d).
* * * * *
0
5. Amend Sec.  76.1302 by revising paragraphs (h)(1) and (3) and (j)(1) 
to read as follows:


Sec.  76.1302  Carriage agreement proceedings.

* * * * *
    (h) * * *
    (1) The multichannel video programming distributor enters into a 
contract with a video programming vendor that a party alleges to 
violate one or more of the rules contained in this section; or
* * * * *
    (3) In instances where there is no existing contract or an offer 
for carriage, the multichannel video programming distributor has denied 
or failed to acknowledge a request by a video programming vendor for 
carriage or to negotiate for carriage of that video programming 
vendor's programming on defendant's distribution system, allegedly in 
violation of one or more of the rules contained in this section.
* * * * *
    (j) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission, Commission 
staff, or Administrative Law Judge shall order appropriate remedies, 
including, if necessary, mandatory carriage of a video programming 
vendor's programming on defendant's video distribution system, or the 
establishment of prices, terms, and conditions for the carriage of a 
video programming vendor's programming. Such order shall set forth a 
timetable for compliance. The effective date of such order issued by 
the Administrative Law Judge is set forth in 47 CFR 1.276(d). Such 
order

[[Page 21139]]

issued by the Commission or Commission staff shall become effective 
upon release, see 47 CFR 1.102(b), 1.103, unless any order of mandatory 
carriage issued by the staff 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 decision, the order for carriage of a video programming vendor's 
programming will not become effective unless and until the decision of 
the staff is upheld by the Commission. If the Commission upholds the 
remedy ordered by the staff or administrative law judge in its 
entirety, the defendant MVPD 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.
* * * * *
0
6. Amend Sec.  76.1513 by revising paragraphs (g)(3) and (h)(1) to read 
as follows:


Sec.  76.1513  Open video dispute resolution.

* * * * *
    (g) * * *
    (3) An open video system operator has denied or failed to 
acknowledge a request for such operator to carry the complainant's 
programming on its open video system, allegedly in violation of one or 
more of the rules contained in this part.
    (h) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission, Commission 
staff, or Administrative Law Judge shall order appropriate remedies, 
including, if necessary, the requiring carriage, awarding damages to 
any person denied carriage, or any combination of such sanctions. Such 
order shall set forth a timetable for compliance. Such order issued by 
the Commission or Commission staff shall be effective upon release. See 
47 CFR 1.102(b); 1.103. The effective date of such order issued by the 
Administrative Law Judge is set forth in 47 CFR 1.276(d).
* * * * *
[FR Doc. 2020-07822 Filed 4-15-20; 8:45 am]
 BILLING CODE 6712-01-P