Sec.  76.1503   Carriage of video programming providers on open video systems.

   (a)  Non-discrimination  principle.  Except  as otherwise permitted in
   applicable law or in this part, an operator of an open video system shall
   not discriminate among video programming providers with regard to carriage
   on its open video system, and its rates, terms and conditions for such
   carriage shall be just and reasonable and not unjustly or unreasonably
   discriminatory.

   (b) Demand for carriage. An operator of an open video system shall solicit
   and determine the level of demand for carriage on the system among potential
   video programming providers in a non-discriminatory manner.

   (1)  Notification.  An  open video system operator shall file with the
   Secretary of the Federal Communications Commission a “Notice of Intent” to
   establish an open video system, which the Commission will release in a
   Public Notice. Parties are required to attach a cover sheet to the filing
   indicating that the submission is an Open Video System Notice of Intent. The
   only wording on this cover sheet shall be “Open Video System Notice of
   Intent” and “Attention: Media Bureau.” This wording shall be located in the
   center of the page and should be in letters at least1/2inch in size. Parties
   shall  also  include  the  words “open video systems” on their mailing
   envelopes. Parties must submit copies of the Notice of Intent with the
   Office of the Secretary and the Bureau Chief, Media Bureau. The Notice of
   Intent shall include the following information:

   (i) A heading clearly indicating that the document is a Notice of Intent to
   establish an open video system;

   (ii)  The  name, address and telephone number of the open video system
   operator;

   (iii) A description of the system's projected service area;

   (iv) A description of the system's projected channel capacity, in terms of
   analog, digital and other type(s) of capacity upon activation of the system;

   (v) A description of the steps a potential video programming provider must
   follow  to seek carriage on the open video system, including the name,
   address and telephone number of a person to contact for further information;

   (vi) The starting and ending dates of the initial enrollment period for
   video programming providers;

   (vii) The process for allocating the system's channel capacity, in the event
   that demand for carriage on the system exceeds the system's capacity; and

   (viii) A certification that the operator has complied with all relevant
   notification  requirements  under  the  Commission's open video system
   regulations concerning must-carry and retransmission consent ( Sec. 76.1506),
   including a list of all local commercial and non-commercial television
   stations served, and a certificate of service showing that the Notice of
   Intent has been served on all local cable franchising authorities entitled
   to establish requirements concerning the designation of channels for public,
   educational and governmental use.

   (2) Information. An open video system operator shall provide the following
   information to a video programming provider within five business days of
   receiving a written request from the provider, unless otherwise included in
   the Notice of Intent:

   (i) The projected activation date of the open video system. If a system is
   to be activated in stages, the operator should describe the respective
   stages and the projected dates on which each stage will be activated;

   (ii) A preliminary carriage rate estimate;

   (iii) The information a video programming provider will be required to
   provide to qualify as a video programming provider, e.g., creditworthiness;

   (iv) Technical information that is reasonably necessary for potential video
   programming providers to assess whether to seek capacity on the open video
   system, including what type of customer premises equipment subscribers will
   need to receive service;

   (v) Any transmission or reception equipment needed by a video programming
   provider to interface successfully with the open video system; and

   (vi) The equipment available to facilitate the carriage of unaffiliated
   video programming and the electronic form(s) that will be accepted for
   processing and subsequent transmission through the system.

   (3) Qualifications of video programming providers. An open video system
   operator may impose reasonable, non-discriminatory requirements to assure
   that a potential video programming provider is qualified to obtain capacity
   on the open video system.

   (c) One-third limit. If carriage demand by video programming providers
   exceeds  the  activated channel capacity of the open video system, the
   operator of the open video system and its affiliated video programming
   providers may not select the video programming services for carriage on more
   than one-third of the activated channel capacity on such system.

   (1) Measuring capacity. For purposes of this section:

   (i) If an open video system carries both analog and digital signals, an open
   video system operator shall measure analog and digital activated channel
   capacity independently;

   (ii) Channels that an open video system is required to carry pursuant to the
   Commission's regulations concerning public, educational and governmental
   channels and must-carry channels shall be included in “activated channel
   capacity” for purposes of calculating the one-third of such capacity on
   which the open video system operator and its affiliates are allowed to
   select  the video programming for carriage. Such channels shall not be
   included  in  the one-third of capacity on which the open video system
   operator  is permitted to select programming where demand for carriage
   exceeds system capacity;

   (iii) Channels that an open video system operator carries pursuant to the
   Commission's regulations concerning retransmission consent shall be included
   in “activated channel capacity” for purposes of calculating the one-third of
   such capacity on which the open video system operator and its affiliates are
   allowed to select the video programming for carriage. Such channels shall be
   included  in  the one-third of capacity on which the open video system
   operator is permitted to select programming, where demand for carriage
   exceeds system capacity, to the extent that the channels are carried as part
   of the programming service of the operator or its affiliate, subject to
   paragraph (c)(1)(iv); and

   (iv) Any channel on which shared programming is carried shall be included in
   “activated channel capacity” for purposes of calculating the one-third of
   such capacity on which the open video system operator and its affiliates are
   allowed to select the video programming for carriage. Such channels shall be
   included  in  the one-third of capacity on which the open video system
   operator is permitted to select programming, where demand for carriage
   exceeds system capacity, to the extent the open video system operator or its
   affiliate is one of the video programming providers sharing such channel.

   Note to paragraph(c)(1)(iv): For example, if the open video system operator
   and two unaffiliated video programming providers each carry a programming
   service that is placed on a shared channel, the shared channel shall count
   as 0.33 channels against the one-third amount of capacity allocable to the
   open  video  system operator, where demand for carriage exceeds system
   capacity.

   (2) Allocating capacity. An operator of an open video system shall allocate
   activated channel capacity through a fair, open and non-discriminatory
   process; the process must be insulated from any bias of the open video
   system operator and verifiable.

   (i) If an open video system carries both analog and digital signals, an open
   video system operator shall treat analog and digital capacity separately in
   allocating system capacity.

   (ii) Subsequent changes in capacity or demand. An open video system operator
   must  allocate open capacity, if any, at least once every three years,
   beginning three years from the date of service commencement. Open capacity
   shall be allocated in accordance with this section. Open capacity shall
   include  all  capacity that becomes available during the course of the
   three-year  period,  as well as capacity in excess of one-third of the
   system's activated channel capacity on which the operator of the open video
   system or its affiliate selects programming.

   Note 1 to paragraph(c)(2)(ii): An open video system operator will not be
   required to comply with the regulations contained in this section if there
   is no open capacity to be allocated at the end of the three year period.

   Note  2 to paragraph(c)(2)(ii): An open video system operator shall be
   required  to  accommodate  changes  in  obligations concerning public,
   educational or governmental channels or must-carry channels in accordance
   with Sections 611, 614 and 615 of the Communications Act and the regulations
   contained in this part.

   Note  3 to paragraph(c)(2)(ii): An open video system operator shall be
   required to comply with the recordkeeping requirements of  Sec. 76.1712.

   (iii) Channel sharing. An open video system operator may carry on only one
   channel any video programming service that is offered by more than one video
   programming provider (including the operator's video programming affiliate),
   provided  that subscribers have ready and immediate access to any such
   programming service. Nothing in this section shall be construed to impair
   the rights of programming services.

   Note 1 to paragraph(c)(2)(iii): An open video system operator may implement
   channel  sharing only after it becomes apparent that one or more video
   programming  services  will  be  offered by multiple video programming
   providers. An open video system operator may not select, in advance of any
   duplication among video programming providers, which programming services
   shall be placed on shared channels.

   Note 2 to paragraph(c)(2)(iii): Each video programming provider offering a
   programming  service that is carried on a shared channel must have the
   contractual permission of the video programming service to offer the service
   to subscribers. The placement of a programming service on a shared channel,
   however, is not subject to the approval of the video programming service or
   vendor.

   Note 3 to paragraph(c)(2)(iii): Ready and immediate access in this context
   means that the channel sharing is “transparent” to subscribers.

   (iv) Open video system operator discretion. Notwithstanding the foregoing,
   an operator of an open video system may:

   (A)  Require  video programming providers to request and obtain system
   capacity in increments of no less than one full-time channel; however, an
   operator of an open video system may not require video programming providers
   to obtain capacity in increments of more than one full-time channel;

   (B) Limit video programming providers from selecting the programming on more
   capacity than the amount of capacity on which the system operator and its
   affiliates are selecting the programming for carriage; and

   (v)  Notwithstanding  the  general prohibition on an open video system
   operator's discrimination among video programming providers contained in
   paragraph (a) of this section, a competing, in-region cable operator or its
   affiliate(s) that offer cable service to subscribers located in the service
   area of an open video system shall not be entitled to obtain capacity on
   such open video system, except where a showing is made that facilities-based
   competition will not be significantly impeded.

   (3) Nothing in this paragraph shall be construed to limit the number of
   channels that the open video system operator and its affiliates, or another
   video programming provider, may offer to provide directly to subscribers.
   Co-packaging is permissible among video programming providers, but may not
   be a condition of carriage. Video programming providers may freely elect
   whether to enter into co-packaging arrangements.

   Note to paragraph(c)(3): Any video programming provider on an open video
   system may co-package video programming that is selected by itself, an
   affiliated video programming provider and/or unaffiliated video programming
   providers on the system.

   [ 61 FR 28708 , June 5, 1996, as amended at  61 FR 43176 , Aug. 21, 1996;  62 FR 26239 , May 13, 1997;  65 FR 377 , Jan. 5, 2000;  65 FR 53617 , Sept. 5, 2000;  67 FR 13235 , Mar. 21, 2002]