Goto Section: 76.1301 | 76.1400 | Table of Contents
FCC 76.1302
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 76.1302 Carriage agreement proceedings.
(a) Complaints. Any video programming vendor or multichannel video
programming distributor aggrieved by conduct that it believes constitute a
violation of the regulations set forth in this subpart 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 of this
part with the following additions or changes:
(b) Prefiling notice required. Any aggrieved video programming vendor or
multichannel video programming distributor intending to file a complaint
under this section must first notify the potential defendant multichannel
video programming distributor that it intends to file a complaint with the
Commission based on actions alleged to violate one or more of the provisions
contained in § 76.1301 of this part. The notice must be sufficiently detailed
so that its recipient(s) can determine the specific nature of the potential
complaint. The potential complainant must allow a minimum of ten (10) days
for the potential defendant(s) to respond before filing a complaint with the
Commission.
(c) Contents of complaint. In addition to the requirements of § 76.7, a
carriage agreement complaint shall contain:
(1) Whether the complainant is a multichannel video programming distributor
or video programming vendor, and, in the case of a multichannel video
programming distributor, identify the type of multichannel video programming
distributor, the address and telephone number of the complainant, what type
of multichannel video programming distributor the defendant is, and the
address and telephone number of each defendant;
(2) Evidence that supports complainant's belief that the defendant, where
necessary, meets the attribution standards for application of the carriage
agreement regulations;
(3) The complaint must be accompanied by appropriate evidence demonstrating
that the required notification pursuant to paragraph (b) of this section has
been made.
(d) Prima facie case. In order to establish a prima facie case of a
violation of § 76.1301, the complaint must contain evidence of the following:
(1) The complainant is a video programming vendor as defined in section
616(b) of the Communications Act of 1934, as amended, and § 76.1300(e) or a
multichannel video programming distributor as defined in section 602(13) of
the Communications Act of 1934, as amended, and § 76.1300(d);
(2) The defendant is a multichannel video programming distributor as defined
in section 602(13) of the Communications Act of 1934, as amended, and
§ 76.1300(d); and
(3)(i) Financial interest. In a complaint alleging a violation of
§ 76.1301(a), documentary evidence or testimonial evidence (supported by an
affidavit from a representative of the complainant) that supports the claim
that the defendant required a financial interest in any program service as a
condition for carriage on one or more of such defendant's systems.
(ii) Exclusive rights. In a complaint alleging a violation of § 76.1301(b),
documentary evidence or testimonial evidence (supported by an affidavit from
a representative of the complainant) that supports the claim that the
defendant coerced a video programming vendor to provide, or retaliated
against such a vendor for failing to provide, exclusive rights against any
other multichannel video programming distributor as a condition for carriage
on a system.
(iii) Discrimination. In a complaint alleging a violation of § 76.1301(c):
(A) Evidence that the conduct alleged has the effect of unreasonably
restraining the ability of an unaffiliated video programming vendor to
compete fairly; and
(B) (1) Documentary evidence or testimonial evidence (supported by an
affidavit from a representative of the complainant) that supports the claim
that the defendant discriminated in video programming distribution on the
basis of affiliation or non-affiliation of vendors in the selection, terms,
or conditions for carriage of video programming provided by such vendors; or
(2) (i) Evidence that the complainant provides video programming that is
similarly situated to video programming provided by a video programming
vendor affiliated (as defined in § 76.1300(a)) with the defendant
multichannel video programming distributor, based on a combination of
factors, such as genre, ratings, license fee, target audience, target
advertisers, target programming, and other factors; and
(ii) Evidence that the defendant multichannel video programming distributor
has treated the video programming provided by the complainant differently
than the similarly situated, affiliated video programming described in
paragraph (d)(3)(iii)(B)(2)(i) of this section with respect to the
selection, terms, or conditions for carriage.
(e) Answer. (1) Any multichannel video programming distributor upon which a
carriage agreement complaint is served under this section shall answer
within sixty (60) days of service of the complaint, unless otherwise
directed by the Commission.
(2) The answer shall address the relief requested in the complaint,
including legal and documentary support, for such response, and may include
an alternative relief proposal without any prejudice to any denials or
defenses raised.
(f) Reply. Within twenty (20) days after service of an answer, unless
otherwise directed by the Commission, the complainant may file and serve a
reply which shall be responsive to matters contained in the answer and shall
not contain new matters.
(g) Prima facie determination. (1) Within sixty (60) calendar days after the
complainant's reply to the defendant's answer is filed (or the date on which
the reply would be due if none is filed), the Chief, Media Bureau shall
release a decision determining whether the complainant has established a
prima facie case of a violation of § 76.1301.
(2) The Chief, Media Bureau may toll the sixty (60)-calendar-day deadline
under the following circumstances:
(i) If the complainant and defendant jointly request that the Chief, Media
Bureau toll these deadlines in order to pursue settlement discussions or
alternative dispute resolution or for any other reason that the complainant
and defendant mutually agree justifies tolling; or
(ii) If complying with the deadline would violate the due process rights of
a party or would be inconsistent with fundamental fairness.
(3) A finding that the complainant has established a prima facie case of a
violation of § 76.1301 means that the complainant has provided sufficient
evidence in its complaint to allow the case to proceed to a ruling on the
merits.
(4) If the Chief, Media Bureau finds that the complainant has not
established a prima facie case of a violation of § 76.1301, the Chief, Media
Bureau will dismiss the complaint.
(h) Time limit on filing of complaints. Any complaint filed pursuant to this
subsection must be filed within one year of the date on which one of the
following events occurs:
(1) The multichannel video programming distributor enters into a contract
with a video programming distributor that a party alleges to violate one or
more of the rules contained in this section; or
(2) The multichannel video programming distributor offers to carry the video
programming vendor's programming pursuant to terms that a party alleges to
violate one or more of the rules contained in this section, and such offer
to carry programming is unrelated to any existing contract between the
complainant and the multichannel video programming distributor; or
(3) A party has notified a multichannel video programming distributor that
it intends to file a complaint with the Commission based on violations of
one or more of the rules contained in this section.
(i) Deadline for decision on the merits. (1)(i) For program carriage
complaints that the Chief, Media Bureau decides on the merits based on the
complaint, answer, and reply without discovery, the Chief, Media Bureau
shall release a decision on the merits within sixty (60) calendar days after
the Chief, Media Bureau's prima facie determination.
(ii) For program carriage complaints that the Chief, Media Bureau decides on
the merits after discovery, the Chief, Media Bureau shall release a decision
on the merits within 150 calendar days after the Chief, Media Bureau's prima
facie determination.
(iii) The Chief, Media Bureau may toll these deadlines under the following
circumstances:
(A) If the complainant and defendant jointly request that the Chief, Media
Bureau toll these deadlines in order to pursue settlement discussions or
alternative dispute resolution or for any other reason that the complainant
and defendant mutually agree justifies tolling; or
(B) If complying with the deadline would violate the due process rights of a
party or would be inconsistent with fundamental fairness.
(2) For program carriage complaints that the Chief, Media Bureau refers to
an administrative law judge for an initial decision, the deadlines set forth
in § 0.341(f) of this chapter apply.
(j) Remedies for violations—(1) Remedies authorized. Upon completion of such
adjudicatory proceeding, the Commission shall order appropriate remedies,
including, if necessary, mandatory carriage of a video programming vendor's
programming on defendant's video distribution system, or the establishment
of prices, terms, and conditions for the carriage of a video programming
vendor's programming. Such order shall set forth a timetable for compliance,
and shall become effective upon release, unless any order of mandatory
carriage would require the defendant multichannel video programming
distributor to delete existing programming from its system to accommodate
carriage of a video programming vendor's programming. In such instances, if
the defendant seeks review of the staff, or administrative law judge
decision, the order for carriage of a video programming vendor's programming
will not become effective unless and until the decision of the staff or
administrative law judge is upheld by the Commission. If the Commission
upholds the remedy ordered by the staff or administrative law judge in its
entirety, the defendant will be required to carry the video programming
vendor's programming for an additional period equal to the time elapsed
between the staff or administrative law judge decision and the Commission's
ruling, on the terms and conditions approved by the Commission.
(2) Additional sanctions. The remedies provided in paragraph (j)(1) of this
section are in addition to and not in lieu of the sanctions available under
title V or any other provision of the Communications Act.
(k) Petitions for temporary standstill. (1) A program carriage complainant
seeking renewal of an existing programming contract may file a petition
along with its complaint requesting a temporary standstill of the price,
terms, and other conditions of the existing programming contract pending
resolution of the complaint. To allow for sufficient time to consider the
petition for temporary standstill prior to the expiration of the existing
programming contract, the petition for temporary standstill and complaint
shall be filed no later than thirty (30) days prior to the expiration of the
existing programming contract. In addition to the requirements of § 76.7, the
complainant shall have the burden of proof to demonstrate the following in
its petition:
(i) The complainant is likely to prevail on the merits of its complaint;
(ii) The complainant will suffer irreparable harm absent a stay;
(iii) Grant of a stay will not substantially harm other interested parties;
and
(iv) The public interest favors grant of a stay.
(2) The defendant multichannel video programming distributor upon which a
petition for temporary standstill is served shall answer within ten (10)
days of service of the petition, unless otherwise directed by the
Commission.
(3) If the Commission grants the temporary standstill, the adjudicator
deciding the case on the merits (i.e., either the Chief, Media Bureau or an
administrative law judge) will provide for remedies that are applied as of
the expiration date of the previous programming contract.
[ 64 FR 6574 , Feb. 10, 1999, as amended at 76 FR 60673 , Sept. 29, 2011]
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Goto Section: 76.1301 | 76.1400
Goto Year: 2014 |
2016
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