§ 76.65   Good faith and exclusive retransmission consent complaints.

   (a) Duty to negotiate in good faith. Television broadcast stations and
   multichannel video programming distributors shall negotiate in good
   faith the terms and conditions of retransmission consent agreements to
   fulfill the duties established by section 325(b)(3)(C) of the Act;
   provided, however, that it shall not be a failure to negotiate in good
   faith if:

   (1) The television broadcast station proposes or enters into
   retransmission consent agreements containing different terms and
   conditions, including price terms, with different multichannel video
   programming distributors if such different terms and conditions are
   based on competitive marketplace considerations; or

   (2) The multichannel video programming distributor enters into
   retransmission consent agreements containing different terms and
   conditions, including price terms, with different broadcast stations if
   such different terms and conditions are based on competitive
   marketplace considerations. If a television broadcast station or
   multichannel video programming distributor negotiates in accordance
   with the rules and procedures set forth in this section, failure to
   reach an agreement is not an indication of a failure to negotiate in
   good faith.

   (b) Good faith negotiation--(1) Standards. The following actions or
   practices violate a broadcast television station's or multichannel
   video programming distributor's (the "Negotiating Entity") duty to
   negotiate retransmission consent agreements in good faith:

   (i) Refusal by a Negotiating Entity to negotiate retransmission
   consent;

   (ii) Refusal by a Negotiating Entity to designate a representative with
   authority to make binding representations on retransmission consent;

   (iii) Refusal by a Negotiating Entity to meet and negotiate
   retransmission consent at reasonable times and locations, or acting in
   a manner that unreasonably delays retransmission consent negotiations;

   (iv) Refusal by a Negotiating Entity to put forth more than a single,
   unilateral proposal;

   (v) Failure of a Negotiating Entity to respond to a retransmission
   consent proposal of the other party, including the reasons for the
   rejection of any such proposal;

   (vi) Execution by a Negotiating Entity of an agreement with any party,
   a term or condition of which, requires that such Negotiating Entity not
   enter into a retransmission consent agreement with any other television
   broadcast station or multichannel video programming distributor;

   (vii) Refusal by a Negotiating Entity to execute a written
   retransmission consent agreement that sets forth the full understanding
   of the television broadcast station and the multichannel video
   programming distributor; and

   (viii) Joint negotiation. (A) Joint negotiation includes the following
   activities:

   (1) Delegation of authority to negotiate or approve a retransmission
   consent agreement by one Top Four broadcast television station (or its
   representative) to another such station (or its representative) that is
   not commonly owned, operated, or controlled, and that serves the same
   designated market area ("DMA");

   (2) Delegation of authority to negotiate or approve a retransmission
   consent agreement by two or more Top Four broadcast television stations
   that are not commonly owned, operated, or controlled, and that serve
   the same DMA (or their representatives), to a common third party;

   (3) Any informal, formal, tacit or other agreement and/or conduct that
   signals or is designed to facilitate collusion regarding retransmission
   terms or agreements between or among Top Four broadcast television
   stations that are not commonly owned, operated, or controlled, and that
   serve the same DMA. This provision shall not be interpreted to apply to
   disclosures otherwise required by law or authorized under a Commission
   or judicial protective order.

   (B) For the purpose of applying this paragraph (b)(1)(viii):

   (1) Whether a station is not commonly owned, operated, or controlled is
   determined based on the Commission's broadcast attribution rules. See
   the Notes to 47 CFR 73.3555.

   (2) A station is deemed to be a Top Four station if it is ranked among
   the top four stations in a DMA, based on the most recent all-day (9
   a.m.-midnight) audience share, as measured by Nielsen Media Research or
   by any comparable professional, accepted audience ratings service; and

   (3) DMA is determined by Nielsen Media Research or any successor
   entity.

   (2) Totality of the circumstances. In addition to the standards set
   forth in § 76.65(b)(1), a Negotiating Entity may demonstrate, based on
   the totality of the circumstances of a particular retransmission
   consent negotiation, that a television broadcast station or
   multichannel video programming distributor breached its duty to
   negotiate in good faith as set forth in § 76.65(a).

   (c) Good faith negotiation and exclusivity complaints. Any television
   broadcast station or multichannel video programming distributor
   aggrieved by conduct that it believes constitutes a violation of the
   regulations set forth in this section or § 76.64(l) may commence an
   adjudicatory proceeding at the Commission to obtain enforcement of the
   rules through the filing of a complaint. The complaint shall be filed
   and responded to in accordance with the procedures specified in § 76.7.

   (d) Burden of proof. In any complaint proceeding brought under this
   section, the burden of proof as to the existence of a violation shall
   be on the complainant.

   (e) 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) A complainant enters into a retransmission consent agreement with a
   television broadcast station or multichannel video programming
   distributor that the complainant alleges to violate one or more of the
   rules contained in this subpart; or

   (2) A television broadcast station or multichannel video programming
   distributor engages in retransmission consent negotiations with a
   complainant that the complainant alleges to violate one or more of the
   rules contained in this subpart, and such negotiation is unrelated to
   any existing contract between the complainant and the television
   broadcast station or multichannel video programming distributor; or

   (3) The complainant has notified the television broadcast station or
   multichannel video programming distributor that it intends to file a
   complaint with the Commission based on a request to negotiate
   retransmission consent that has been denied, unreasonably delayed, or
   unacknowledged in violation of one or more of the rules contained in
   this subpart.

   (f) Termination of rules. This section shall terminate at midnight on
   February 28, 2010, provided that if Congress further extends this date,
   the rules remain in effect until the statutory authorization expires.

   [ 70 FR 40224 , July 13, 2005, as amended at  74 FR 69286 , Dec. 31, 2009;
    79 FR 28630 , May 19, 2014]

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