Goto Section: 76.963 | 76.971 | Table of Contents
FCC 76.970
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 76.970 Commercial leased access rates.
(a) Cable operators shall designate channel capacity for commercial use by
persons unaffiliated with the operator in accordance with the requirement of
47 U.S.C. 532. For purposes of 47 U.S.C. 532(b)(1)(A) and (B), only those
channels that must be carried pursuant to 47 U.S.C. 534 and 535 qualify as
channels that are required for use by Federal law or regulation. For cable
systems with 100 or fewer channels, channels that cannot be used due to
technical and safety regulations of the Federal Government (e.g.,
aeronautical channels) shall be excluded when calculating the set-aside
requirement.
(b) In determining whether an entity is an “affiliate” for purposes of
commercial leased access, entities are affiliated if either entity has an
attributable interest in the other or if a third party has an attributable
interest in both entities.
(c) Attributable interest shall be defined by reference to the criteria set
forth in Notes 1-5 to § 76.501 provided, however, that:
(1) The limited partner and LLC/LLP/RLLP insulation provisions of Note 2(f)
shall not apply; and;
(2) The provisions of Note 2(a) regarding five (5) percent interests shall
include all voting or nonvoting stock or limited partnership equity
interests of five (5) percent or more.
(d) The maximum commercial leased access rate that a cable operator may
charge for full-time channel placement on a tier exceeding a subscriber
penetration of 50 percent is the average implicit fee for full-time channel
placement on all such tier(s).
(e) The average implicit fee identified in paragraph (c) of this section for
a full-time channel on a tier with a subscriber penetration over 50 percent
shall be calculated by first calculating the total amount the operator
receives in subscriber revenue per month for the programming on all such
tier(s), and then subtracting the total amount it pays in programming costs
per month for such tier(s) (the “total implicit fee calculation”). A
weighting scheme that accounts for differences in the number of subscribers
and channels on all such tier(s) must be used to determine how much of the
total implicit fee calculation will be recovered from any particular tier.
The weighting scheme is determined in two steps. First, the number of
subscribers is multiplied by the number of channels (the result is the
number of “subscriber-channels”) on each tier with subscriber penetration
over 50 percent. For instance, a tier with 10 channels and 1,000 subscribers
would have a total of 10,000 subscriber-channels. Second, the
subscriber-channels on each of these tiers is divided by the total
subscriber-channels on all such tiers. Given the percent of
subscriber-channels for the particular tier, the implicit fee for the tier
is computed by multiplying the subscriber-channel percentage for the tier by
the total implicit fee calculation. Finally, to calculate the average
implicit fee per channel, the implicit fee for the tier must be divided by
the corresponding number of channels on the tier. The final result is the
maximum rate per month that the operator may charge the leased access
programmer for a full-time channel on that particular tier. The average
implicit fee shall be calculated by using all channels carried on any tier
exceeding 50 percent subscriber penetration (including channels devoted to
affiliated programming, must-carry and public, educational and government
access channels). In the event of an agreement to lease capacity on a tier
with less than 50 percent penetration, the average implicit fee should be
determined on the basis of subscriber revenues and programming costs for
that tier alone. The license fees for affiliated channels used in
determining the average implicit fee shall reflect the prevailing company
prices offered in the marketplace to third parties. If a prevailing company
price does not exist, the license fee for that programming shall be priced
at the programmer's cost or the fair market value, whichever is lower. The
average implicit fee shall be based on contracts in effect in the previous
calendar year. The implicit fee for a contracted service may not include
fees, stated or implied, for services other than the provision of channel
capacity (e.g., billing and collection, marketing, or studio services).
(f) The maximum commercial leased access rate that a cable operator may
charge for full-time channel placement as an a la carte service is the
highest implicit fee on an aggregate basis for full-time channel placement
as an a la carte service.
(g) The highest implicit fee on an aggregate basis for full-time channel
placement as an a la carte service shall be calculated by first determining
the total amount received by the operator in subscriber revenue per month
for each non-leased access a la carte channel on its system (including
affiliated a la carte channels) and deducting the total amount paid by the
operator in programming costs (including license and copyright fees) per
month for programming on such individual channels. This calculation will
result in implicit fees determined on an aggregate basis, and the highest of
these implicit fees shall be the maximum rate per month that the operator
may charge the leased access programmer for placement as a full-time a la
carte channel. The license fees for affiliated channels used in determining
the highest implicit fee shall reflect the prevailing company prices offered
in the marketplace to third parties. If a prevailing company price does not
exist, the license fee for that programming shall be priced at the
programmer's cost or the fair market value, whichever is lower. The highest
implicit fee shall be based on contracts in effect in the previous calendar
year. The implicit fee for a contracted service may not include fees, stated
or implied, for services other than the provision of channel capacity (e.g.,
billing and collection, marketing, or studio services). Any subscriber
revenue received by a cable operator for an a la carte leased access service
shall be passed through to the leased access programmer.
(h) The maximum commercial leased access rate that a cable operator may
charge for part-time channel placement shall be determined by either
prorating the maximum full-time rate uniformly, or by developing a schedule
of and applying different rates for different times of the day, provided
that the total of the rates for a 24-hour period does not exceed the maximum
daily leased access rate.
(i)(1) Cable system operators shall provide prospective leased access
programmers with the following information within 15 calendar days of the
date on which a request for leased access information is made:
(i) How much of the operator's leased access set-aside capacity is
available;
(ii) A complete schedule of the operator's full-time and part-time leased
access rates;
(iii) Rates associated with technical and studio costs; and
(iv) If specifically requested, a sample leased access contract.
(2) Operators of systems subject to small system relief shall provide the
information required in paragraph (h)(1) of this section within 30 calendar
days of a bona fide request from a prospective leased access programmer. For
these purposes, systems subject to small system relief are systems that
either:
(i) Qualify as small systems under § 76.901(c) and are owned by a small cable
company as defined under § 76.901(e); or
(ii) Have been granted special relief.
(3) Bona fide requests, as used in this section, are defined as requests
from potential leased access programmers that have provided the following
information:
(i) The desired length of a contract term;
(ii) The time slot desired;
(iii) The anticipated commencement date for carriage; and
(iv) The nature of the programming.
(4) All requests for leased access must be made in writing and must specify
the date on which the request was sent to the operator.
(5) Operators shall maintain, for Commission inspection, sufficient
supporting documentation to justify the scheduled rates, including
supporting contracts, calculations of the implicit fees, and justifications
for all adjustments.
(j) Cable operators are permitted to negotiate rates below the maximum rates
permitted in paragraphs (c) through (g) of this section.
[ 78 FR 20256 , Apr. 4, 2013]
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Goto Section: 76.963 | 76.971
Goto Year: 2014 |
2016
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