§  76.1003   Program access proceedings

   (a) Complaints. Any 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 multichannel video
   programming distributor intending to file a complaint under this
   section must first notify the potential defendant cable operator,
   and/or the potential defendant satellite cable programming vendor or
   satellite broadcast programming vendor, that it intends to file a
   complaint with the Commission based on actions alleged to violate one
   or more of the provisions contained in § 76.1001 or § 76.1002 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 of
   this part, a program access complaint shall contain:

   (1) The type of multichannel video programming distributor that
   describes complainant, the address and telephone number of the
   complainant, whether the defendant is a cable operator, satellite
   broadcast programming vendor or satellite cable programming vendor
   (describing each defendant), 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
   program access requirements;

   (3) Evidence that the complainant competes with the defendant cable
   operator, or with a multichannel video programming distributor that is
   a customer of the defendant satellite cable programming or satellite
   broadcast programming vendor or a terrestrial cable programming vendor
   alleged to have engaged in conduct described in § 76.1001(b)(1);

   (4) In complaints alleging discrimination, documentary evidence such as
   a rate card or a programming contract that demonstrates a differential
   in price, terms or conditions between complainant and a competing
   multichannel video programming distributor or, if no programming
   contract or rate card is submitted with the complaint, an affidavit
   signed by an officer of complainant alleging that a differential in
   price, terms or conditions exits, a description of the nature and
   extent (if known or reasonably estimated by the complainant) of the
   differential, together with a statement that defendant refused to
   provide any further specific comparative information;

   (5) If a programming contract or a rate card is submitted with the
   complaint in support of the alleged violation, specific references to
   the relevant provisions therein;

   (6) In complaints alleging exclusivity violations:

   (i) The identity of both the programmer and cable operator who are
   parties to the alleged prohibited agreement,

   (ii) Evidence that complainant can or does serve the area specified in
   the complaint, and

   (iii) Evidence that the complainant has requested to purchase the
   relevant programming and has been refused or unanswered;

   (7) In complaints alleging a violation of § 76.1001 of this part,
   evidence demonstrating that the behavior complained of has harmed
   complainant.

   (8) The complaint must be accompanied by appropriate evidence
   demonstrating that the required notification pursuant to paragraph (a)
   of this section has been made.

   (d) Damages requests. (1) In a case where recovery of damages is
   sought, the complaint shall contain a clear and unequivocal request for
   damages and appropriate allegations in support of such claim in
   accordance with the requirements of paragraph (d)(3) of this section.

   (2) Damages will not be awarded upon a complaint unless specifically
   requested. Damages may be awarded if the complaint complies fully with
   the requirement of paragraph (d)(3) of this section where the defendant
   knew, or should have known that it was engaging in conduct violative of
   section 628.

   (3) In all cases in which recovery of damages is sought, the
   complainant shall include within, or as an attachment to, the
   complaint, either:

   (i) A computation of each and every category of damages for which
   recovery is sought, along with an identification of all relevant
   documents and materials or such other evidence to be used by the
   complainant to determine the amount of such damages; or

   (ii) An explanation of:

   (A) The information not in the possession of the complaining party that
   is necessary to develop a detailed computation of damages;

   (B) The reason such information is unavailable to the complaining
   party;

   (C) The factual basis the complainant has for believing that such
   evidence of damages exists; and

   (D) A detailed outline of the methodology that would be used to create
   a computation of damages when such evidence is available.

   (e) Answer. (1) Except as otherwise provided or directed by the
   Commission, any cable operator, satellite cable programming vendor or
   satellite broadcast programming vendor upon which a program access
   complaint is served under this section shall answer within twenty (20)
   days of service of the complaint, provided that the answer shall be
   filed within forty-five (45) days of service of the complaint if the
   complaint alleges a violation of section 628(b) of the Communications
   Act of 1934, as amended, or § 76.1001(a). To the extent that a cable
   operator, satellite cable programming vendor or satellite broadcast
   programming vendor expressly references and relies upon a document or
   documents in asserting a defense or responding to a material
   allegation, such document or documents shall be included as part of the
   answer.

   (2) An answer to an exclusivity complaint shall provide the defendant's
   reasons for refusing to sell the subject programming to the
   complainant. In addition, the defendant may submit its programming
   contracts covering the area specified in the complaint with its answer
   to refute allegations concerning the existence of an impermissible
   exclusive contract. If there are no contracts governing the specified
   area, the defendant shall so certify in its answer. Any contracts
   submitted pursuant to this provision may be protected as proprietary
   pursuant to § 76.9 of this part.

   (3) An answer to a discrimination complaint shall state the reasons for
   any differential in prices, terms or conditions between the complainant
   and its competitor, and shall specify the particular justification set
   forth in § 76.1002(b) of this part relied upon in support of the
   differential.

   (i) When responding to allegations concerning price discrimination,
   except in cases in which the alleged price differential is de minimis
   (less than or equal to five cents per subscriber or five percent,
   whichever is greater), the defendant shall provide documentary evidence
   to support any argument that the magnitude of the differential is not
   discriminatory.

   (ii) In cases involving a price differential of less than or equal to
   five cents per subscriber or five percent, whichever is greater, the
   answer shall identify the differential as de minimis and state that the
   defendant is therefore not required to justify the magnitude of the
   differential.

   (iii) If the defendant believes that the complainant and its competitor
   are not sufficiently similar, the answer shall set forth the reasons
   supporting this conclusion, and the defendant may submit an alternative
   contract for comparison with a similarly situated multichannel video
   programming distributor that uses the same distribution technology as
   the competitor selected for comparison by the complainant. The answer
   shall state the defendant's reasons for any differential between the
   prices, terms and conditions between the complainant and such similarly
   situated distributor, and shall specify the particular justifications
   in § 76.1002(b) of this part relied upon in support of the differential.
   The defendant shall also provide with its answer written documentary
   evidence to support its justification of the magnitude of any price
   differential between the complainant and such similarly situated
   distributor that is not de minimis.

   (4) An answer to a complaint alleging an unreasonable refusal to sell
   programming shall state the defendant's reasons for refusing to sell to
   the complainant, or for refusing to sell to the complainant on the same
   terms and conditions as complainant's competitor, and shall specify why
   the defendant's actions are not discriminatory.

   (f) Reply. Within fifteen (15) 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) 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 satellite cable programming vendor, satellite broadcast
   programming vendor, or terrestrial cable programming vendor enters into
   a contract with the complainant that the complainant alleges to violate
   one or more of the rules contained in this subpart; or

   (2) The satellite cable programming vendor, satellite broadcast
   programming vendor, or terrestrial cable programming vendor offers to
   sell programming to the complainant pursuant to terms that the
   complainant alleges to violate one or more of the rules contained in
   this subpart, and such offer to sell programming is unrelated to any
   existing contract between the complainant and the satellite cable
   programming vendor, satellite broadcast programming vendor, or
   terrestrial cable programming vendor; or

   (3) A cable operator, or a satellite cable programming vendor or a
   satellite broadcast programming vendor has denied or failed to
   acknowledge a request to purchase or negotiate to purchase satellite
   cable programming, satellite broadcast programming, or terrestrial
   cable programming, or a request to amend an existing contract
   pertaining to such programming pursuant to § 76.1002(f), allegedly in
   violation of one or more of the rules contained in this subpart.

   (h) Remedies for violations—(1) Remedies authorized. Upon completion of
   such adjudicatory proceeding, the Commission, Commission staff, or
   Administrative Law Judge shall order appropriate remedies, including,
   if necessary, the imposition of damages, and/or the establishment of
   prices, terms, and conditions for the sale of programming to the
   aggrieved multichannel video programming distributor. Such order shall
   set forth a timetable for compliance. Such order issued by the
   Commission or Commission staff shall be effective upon release. See
   § § 1.102(b) and 1.103 of this chapter. The effective date of such order
   issued by the Administrative Law Judge is set forth in § 1.276(d) of
   this chapter.

   (2) Additional sanctions. The remedies provided in paragraph (h)(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.

   (3) Imposition of damages. (i) Bifurcation. In all cases in which
   damages are requested, the Commission may bifurcate the program access
   violation determination from any damage adjudication.

   (ii) Burden of proof. The burden of proof regarding damages rests with
   the complainant, who must demonstrate with specificity the damages
   arising from the program access violation. Requests for damages that
   grossly overstate the amount of damages may result in a Commission
   determination that the complainant failed to satisfy its burden of
   proof to demonstrate with specificity the damages arising from the
   program access violation.

   (iii) Damages adjudication. (A) The Commission may, in its discretion,
   end adjudication of damages with a written order determining the
   sufficiency of the damages computation submitted in accordance with
   paragraph (d)(3)(i) of this section or the damages computation
   methodology submitted in accordance with paragraph (d)(3)(ii)(D) of
   this section, modifying such computation or methodology, or requiring
   the complainant to resubmit such computation or methodology.

   (1) Where the Commission issues a written order approving or modifying
   a damages computation submitted in accordance with paragraph (d)(3)(i)
   of this section, the defendant shall recompense the complainant as
   directed therein.

   (2) Where the Commission issues a written order approving or modifying
   a damages computation methodology submitted in accordance with
   paragraph (d)(3)(ii)(D) of this section, the parties shall negotiate in
   good faith to reach an agreement on the exact amount of damages
   pursuant to the Commission-mandated methodology.

   (B) Within thirty days of the issuance of a paragraph (d)(3)(ii)(D) of
   this section damages methodology order, the parties shall submit
   jointly to the Commission either:

   (1) A statement detailing the parties' agreement as to the amount of
   damages;

   (2) A statement that the parties are continuing to negotiate in good
   faith and a request that the parties be given an extension of time to
   continue negotiations; or

   (3) A statement detailing the bases for the continuing dispute and the
   reasons why no agreement can be reached.

   (C)(1) In cases in which the parties cannot resolve the amount of
   damages within a reasonable time period, the Commission retains the
   right to determine the actual amount of damages on its own, or through
   the procedures described in paragraph (h)(3)(iii)(C)(2) of this
   section.

   (2) Issues concerning the amount of damages may be designated by the
   Chief, Media Bureau for hearing before, or, if the parties agree,
   submitted for mediation to, a Commission Administrative Law Judge.

   (D) Interest on the amount of damages awarded will accrue from either
   the date indicated in the Commission's written order issued pursuant to
   paragraph (h)(3)(iii)(A)(1) of this section or the date agreed upon by
   the parties as a result of their negotiations pursuant to paragraph
   (h)(3)(iii)(A)(2) of this section. Interest shall be computed at
   applicable rates published by the Internal Revenue Service for tax
   refunds.

   (i) Alternative dispute resolution. Within 20 days of the close of the
   pleading cycle, the parties to the program access dispute may
   voluntarily engage in alternative dispute resolution, including
   commercial arbitration. The Commission will suspend action on the
   complaint if both parties agree to use alternative dispute resolution.

   (j) Discovery. In addition to the general pleading and discovery rules
   contained in § 76.7, parties to a program access complaint may serve
   requests for discovery directly on opposing parties, and file a copy of
   the request with the Commission. The respondent shall have the
   opportunity to object to any request for documents that are not in its
   control or relevant to the dispute or protected from disclosure by the
   attorney-client privilege, the work-product doctrine, or other
   recognized protections from disclosure. Such request shall be heard,
   and determination made, by the Commission. Until the objection is ruled
   upon, the obligation to produce the disputed material is suspended. Any
   party who fails to timely provide discovery requested by the opposing
   party to which it has not raised an objection as described above, or
   who fails to respond to a Commission order for discovery material, may
   be deemed in default and an order may be entered in accordance with the
   allegations contained in the complaint, or the complaint may be
   dismissed with prejudice.

   (k) Protective orders. In addition to the procedures contained in § 76.9
   of this part related to the protection of confidential material, the
   Commission may issue orders to protect the confidentiality of
   proprietary information required to be produced for resolution of
   program access complaints. A protective order constitutes both an order
   of the Commission and an agreement between the party executing the
   protective order declaration and the party submitting the protected
   material. The Commission has full authority to fashion appropriate
   sanctions for violations of its protective orders, including but not
   limited to suspension or disbarment of attorneys from practice before
   the Commission, forfeitures, cease and desist orders, and denial of
   further access to confidential information in Commission proceedings.

   (l) Petitions for temporary standstill. (1) A program access
   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. 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 cable operator, satellite cable programming vendor or
   satellite broadcast programming vendor 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 Commission's
   decision acting on the complaint will provide for remedies that make
   the terms of the new agreement between the parties retroactive to the
   expiration date of the previous programming contract.

   (m) Deadline for Media Bureau action on complaints alleging a denial of
   programming. For complaints alleging a denial of programming, the
   Chief, Media Bureau shall release a decision resolving the complaint
   within six (6) months from the date the complaint is filed.

   [ 64 FR 6572 , Feb. 10, 1999, as amended at  67 FR 13235 , Mar. 21, 2002;
    72 FR 56661 , Oct. 4, 2007;  75 FR 9724 , Mar. 3, 2010;  77 FR 66048 , Oct.
   31, 2012;  85 FR 81812 , Dec. 17, 2020]