§ 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
   least 1⁄2 inch 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
   (§ 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 § 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]

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