Sec. 76.1003  Adjudicatory proceedings.

    Any competing multichannel video programming distributor aggrieved 
by conduct that it alleges to constitute a violation of the regulations 
set forth in this subpart may commence an adjudicatory proceeding at the 
Commission.
    (a) 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 Sec. 76.1001 or 76.1002. 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.
    (b) General pleading requirements. Program access complaint 
proceedings are generally resolved on a written record consisting of a 
complaint, answer and reply, but may also include other written 
submissions such as briefs and written interrogatories. All written 
submissions, both substantive and procedural, must conform to the 
following standards :
    (1) Pleadings must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, should be pleaded fully 
and with specificity.
    (2) Pleadings must contain facts which, if true, are sufficient to 
constitute a violation of the Act or Commission order or regulation, or 
a defense to such alleged violation.
    (3) Facts must be supported by relevant documentation or affidavit.
    (4) Legal arguments must be supported by appropriate judicial, 
Commission, or statutory authority.
    (5) Opposing authorities must be distinguished.
    (6) Copies must be provided of all non-Commission authorities relied 
upon which are not routinely available in national reporting systems, 
such as unpublished decisions or slip opinions of courts or 
administrative agencies.
    (7) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending complaint proceeding. Information submitted, as well as relevant 
legal authorities, must be current and updated as necessary and in a 
timely manner at any time before a decision is rendered on the merits of 
the complaint.
    (c) Complaint. (1) A program access complaint shall contain:
    (i) The name of the complainant and each defendant;
    (ii) 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;
    (iii) The name, address and telephone number of complainant's 
attorney, if represented by counsel;
    (iv) Citation to the section of the Communications Act and/or 
Commission regulation or order alleged to have been violated;

[[Page 624]]

    (v) A complete statement of facts, which, if proven true, would 
constitute such a violation;
    (vi) Any evidence that supports the truth or accuracy of the alleged 
facts;
    (vii) Evidence that supports complainant's belief that the 
defendant, where necessary, meets the attribution standards for 
application of the program access requirements;
    (viii) 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;
    (ix) 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;
    (x) 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;
    (xi) In complaints alleging exclusivity violations:
    (A) The identity of both the programmer and cable operator who are 
parties to the alleged prohibited agreement,
    (B) Evidence that complainant can or does serve the area specified 
in the complaint, and
    (C) Evidence that the complainant has requested to purchase the 
relevant programming and has been refused or unanswered;
    (xii) In complaints alleging a violation of Sec. 76.1001, evidence 
demonstrating that the behavior complained of has harmed complainant; 
and
    (xiii) The specific relief sought.
    (2) Every complaint alleging a violation of the program access 
requirements shall be accompanied by a sworn affidavit signed by an 
authorized officer or agent of the complainant. This affidavit shall 
contain a statement that the affiant has read the complaint and that to 
the best of the affiant's knowledge, information and belief formed after 
reasonable inquiry it is well grounded in fact and is warranted under 
Commission regulations and policies or is a good faith argument for the 
extension, modification or reversal of such regulations or policies, and 
it is not interposed for any improper purpose. If the complaint is 
signed in violation of this rule, the Commission upon motion or its own 
initiative shall impose upon the complainant an appropriate sanction.
    (3) The following format may be used in cases to which it is 
applicable, with such modifications as the circumstances may render 
necessary;

    Before The Federal Communications Commission, Washington, DC 20554. 
In the matter of Complainant, v. Defendant. File No. (To be inserted by 
the Commission) [Insert Subject/Nature of Issue: Discrimination; 
Exclusivity; Undue Influence; Unfair Practice]

                        Program Access Complaint

    To: The Commission.
    The complainant (here insert full name of complainant, and if a 
corporation, the corporate title of such complainant).
    1. (Here state the complainant's method of multichannel video 
program distribution; post office address, and telephone number of the 
complainant).
    2. (Here insert the name, whether a cable operator, satellite 
broadcast programming vendor or satellite cable programming vendor, 
address and telephone number of each defendant).
    3. (Here insert fully and clearly the specific act or thing 
complained of, together with such facts as are necessary to give full 
understanding of the matter, including relevant legal and documentary 
support).
    Wherefore, complainant asks (here state specifically the relief 
desired).

(Date)

(Name of complainant)

(Name, address, and telephone number of attorney, if any)

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

[[Page 625]]

    (d) Answer. (1) 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 thirty 
(30) days of service of the complaint, unless otherwise directed by the 
Commission.
    (2) The answer shall advise the parties and the Commission fully and 
completely of the nature of any and all defenses, and shall respond 
specifically to all material allegations of the complaint. Collateral or 
immaterial issues shall be avoided in answers and every effort should be 
made to narrow the issues. Any defendant failing to file and serve an 
answer within the time and in the manner prescribed by these rules may 
be deemed in default and an order may be entered against defendant in 
accordance with the allegations contained in the complaint.
    (3) The answer shall state concisely any and all defenses to each 
claim asserted and shall admit or deny the averments on which the 
adverse party relies. If the defendant is without knowledge or 
information sufficient to form a belief as to the truth of an averment, 
the defendant shall so state and this has the effect of a denial. When a 
defendant intends in good faith to deny only part of an averment, the 
answer shall specify so much of it as is true and shall deny only the 
remainder. The defendant may make its denials as specific denials of 
designated averments or paragraphs, or may generally deny all the 
averments except such designated averments or paragraphs as the 
defendant expressly admits. When the defendant intends to controvert all 
averments, the defendant may do so by general denial.
    (4) Averments in a complaint are deemed to be admitted when not 
denied in the answer.
    (5) 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 to the Commission 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 paragraph (h) of this section.
    (6) 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 Sec. 76.1002(b) 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 Sec. 76.1002(b) 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 minimus.
    (iv) Any documents or contracts submitted pursuant to this 
subparagraph

[[Page 626]]

may be protected as proprietary pursuant to paragraph (h) of this 
section.
    (7) 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.
    (e) Reply. Within twenty (20) days after service of an answer, the 
complainant may file and serve a reply which shall be responsive to 
matters contained in the answer and shall not contain new matters. 
Failure to reply will not be deemed an admission of any allegations 
contained in the answer, except with respect to any affirmative defense 
set forth therein. Replies containing information claimed by defendant 
to be proprietary under paragraph (h) of this section shall be submitted 
to the Commission in confidence pursuant to the requirements of 
Sec. 0.459 of this chapter and clearly marked ``Not for Public 
Inspection.'' An edited version removing all proprietary data shall be 
filed with the Commission for inclusion in the public file within five 
(5) days from the date the unedited reply is submitted, and shall be 
served on the defendant.
    (f) Motions. Except as provided in this section, or upon a showing 
of extraordinary circumstances, additional motions or pleadings by any 
party will not be accepted.
    (g) Discovery. (1) The Commission staff may in its discretion order 
discovery limited to the issues specified by the Commission. Such 
discovery may include answers to written interrogatories or document 
production.
    (2) The Commission staff may in its discretion direct the parties to 
submit discovery proposals, together with a memorandum in support of the 
discovery requested. Such discovery requests may include answers to 
written interrogatories, document production or depositions. The 
Commission staff will then hold a status conference with the parties, 
pursuant to paragraph (j) of this section, to determine the scope of 
discovery. If the Commission staff determines that extensive discovery 
is required or that depositions are warranted, the staff will advise the 
parties that the proceeding will be referred to an administrative law 
judge in accordance with paragraph (m) of this section.
    (h) Confidentiality of proprietary information. (1) Any materials 
generated or provided by a party in connection with the pre-complaint 
notification procedure required under Sec. 76.1003(a) and in the course 
of adjudicating a program access complaint under this provision may be 
designated as proprietary by that party if the party believes in good 
faith that the materials fall within an exemption to disclosure 
contained in the Freedom of Information Act (FOIA), 5 U.S.C. 552(b). Any 
party asserting confidentiality for such materials shall so indicate by 
clearly marking each page, or portion thereof, for which a proprietary 
designation is claimed. If a proprietary designation is challenged, the 
party claiming confidentiality will have the burden of demonstrating, by 
a preponderance of the evidence, that the material designated as 
proprietary falls under the standards for nondisclosure enunciated in 
the FOIA.
    (2) Except as provided in paragraph (h)(3) of this section, 
materials marked as proprietary may be disclosed solely to the following 
persons, only for use in prosecuting or defending a party to the 
complaint action, and only to the extent necessary to assist in the 
prosecution or defense of the case:
    (i) Counsel of record representing the parties in the complaint 
action and any support personnel employed by such attorneys;
    (ii) Officers or employees of the opposing party who are named by 
the opposing party as being directly involved in the prosecution or 
defense of the case;
    (iii) Consultants or expert witnesses retained by the parties;
    (iv) The Commission and its staff; and
    (v) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (3) The Commission will entertain, subject to a proper showing, a 
party's request to further restrict access to proprietary information as 
specified by the party. The opposing party will have

[[Page 627]]

an opportunity to respond to such requests.
    (4) The persons designated in paragraphs (h) (2) and (3) of this 
section shall not disclose information designated as proprietary to any 
person who is not authorized under this section to receive such 
information, and shall not use the information in any activity or 
function other than the prosecution or defense in the case before the 
Commission. Each individual who is provided access to the information by 
the opposing party shall sign a notarized statement affirmatively 
stating, or shall certify under penalty of perjury, that the individual 
has personally reviewed the Commission's rules and understands the 
limitations they impose on the signing party.
    (5) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraphs (h) (2) or (3) of 
this section. Each party shall maintain a log recording the number of 
copies made of all proprietary material and the persons to whom the 
copies have been provided.
    (6) Upon termination of the complaint proceeding, including all 
appeals and petitions, all originals and reproductions of any 
proprietary materials, along with the log recording persons who received 
copies of such materials, shall be provided to the producing party. In 
addition, upon final termination of the complaint proceeding, any notes 
or other work product derived in whole or in part from the proprietary 
materials of an opposing or third party shall be destroyed.
    (i) Other required written submissions. (1) The Commission may, in 
its discretion, require the parties to file briefs summarizing the facts 
and issues presented in the pleadings and other record evidence. These 
briefs shall contain the findings of fact and conclusions of law which 
that party is urging the Commission to adopt, with specific citations to 
the record, and supported by relevant authority and analysis.
    (2) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding, including copies of all contracts and 
documents reflecting arrangements and understandings alleged to violate 
the program access requirements set forth in the Communications Act and 
Secs. 76.1001 and 76.1002, as well as affidavits and exhibits.
    (3) Any briefs submitted shall be filed concurrently by both the 
complainant and defendant at such time as is designated by the staff. 
Such briefs shall not exceed fifty (50) pages.
    (4) Reply briefs may be submitted by either party within twenty (20) 
days from the date initial briefs are due. Reply briefs shall not exceed 
thirty (30) pages.
    (5) Briefs containing information which is claimed by an opposing or 
third party to be proprietary under paragraph (h) of this section shall 
be submitted to the Commission in confidence pursuant to the 
requirements of Sec. 0.459 of this chapter, and shall be clearly marked 
``Not for Public Inspection.'' An edited version removing all 
proprietary data shall be filed with the Commission for inclusion in the 
public file within five (5) days from the date the unedited version is 
submitted and served on opposing parties.
    (j) Status conference. (1) In any program access complaint 
proceeding, the Commission staff may in its discretion direct the 
attorneys and/or the parties to appear for a conference to consider:
    (i) Simplification or narrowing of the issues;
    (ii) The necessity for or desirability of amendments to the 
pleadings, additional pleadings, or other evidentiary submissions;
    (iii) Obtaining admissions of fact or stipulations between the 
parties as to any or all of the matters in controversy;
    (iv) Settlement of the matters in controversy by agreement of the 
parties;
    (v) The necessity for and extent of discovery, including objections 
to interrogatories or requests for written documents;
    (vi) The need and schedule for filing briefs, and the date for any 
further conferences; and
    (vii) Such other matters that may aid in the disposition of the 
complaint.
    (2) Any party may request that a conference be held at any time 
after the complaint has been filed.

[[Page 628]]

    (3) Conferences will be scheduled by the Commission at such time and 
place as it may designate, to be conducted in person or by telephone 
conference call.
    (4) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled conference will be deemed a waiver and 
will not preclude the Commission from conferring with those parties or 
counsel present.
    (5) During a status conference, the Commission staff may issue oral 
rulings pertaining to a variety of interlocutory matters relevant to the 
conduct of a program access complaint proceeding including, inter alia, 
procedural matters, discovery, and the submission of briefs or other 
evidentiary materials. These rulings will be promptly memorialized in 
writing and served on the parties. When such rulings require a party to 
take affirmative action not subject to deadlines established by another 
provision of this subpart, such action will be required within ten (10) 
days from the date of the written memorialization unless otherwise 
directed by the staff.
    (k) Specifications as to pleadings, briefs, and other documents; 
subscriptions. (1) All papers filed in a program access compliant 
proceeding must be drawn in conformity with the requirements of 
Secs. 1.49 and 1.50 of this chapter.
    (2) All averments of claims or defenses in complaints and answers 
shall be made in numbered paragraphs. The contents of each paragraph 
shall be limited as far as practicable to a statement of a single set of 
circumstances. Each claim founded on a separate transaction or 
occurrence and each affirmative defense shall be separately stated to 
facilitate the clear presentation of the matters set forth.
    (3) The original of all pleadings and submissions by any party shall 
be signed by that party, or by the party's attorney. Complaints must be 
signed by the complainant. The signing party shall state his or her 
address and telephone number and the date on which the document was 
signed. Copies should be conformed to the original. Except when 
otherwise specifically provided by rule or statute, pleadings need not 
be verified. The signature of an attorney or party shall be a 
certificate that the attorney or party has read the pleading, motion, or 
other paper; that to the best of his or her knowledge, information and 
belief formed after reasonable inquiry, it is well grounded in fact and 
is warranted by existing law or a good faith argument for the extension, 
modification or reversal of existing law; and that it is not interposed 
for any improper purpose. If any pleading or other submission is signed 
in violation of this provision, the Commission shall upon motion or upon 
its own initiative impose upon the party an appropriate sanction. Where 
the pleading or submission is signed by counsel, the provisions of 
Secs. 1.52 and 1.24 of this chapter shall also apply.
    (l) Copies; service. (1) The complainant shall file an original plus 
three copies of the complaint with the Commission. However, if the 
complaint is addressed against multiple defendants, complainant shall 
provide three additional copies of the complaint for each additional 
defendant.
    (2) An original plus two copies shall be filed of all pleadings and 
documents other than the complaint.
    (3) The complainant shall serve the compliant on each defendant at 
the same time that it is filed at the Commission.
    (4) All subsequent pleadings and briefs, as well as all letters, 
documents or other written submissions, shall be served by the filing 
party on all other parties to the proceeding, together with proof of 
such service in accordance with the requirements of Sec. 1.47 of this 
chapter.
    (5) The parties to any program access compliant proceeding brought 
pursuant to this section may be required to file additional copies of 
any or all papers filed in the proceeding.
    (m) Referral to administrative law judge. (1) After reviewing the 
complaint, answer and reply, and at any stage of the proceeding 
thereafter, the Commission staff may, in its discretion, designate any 
program access compliant proceeding for an adjudicatory hearing before 
an administrative law judge.
    (2) Before designation for hearing, the staff shall notify, either 
orally or in writing, the parties to the proceeding of its intent to so 
designate, and

[[Page 629]]

the parties shall be given a period of ten (10) days to elect to resolve 
the dispute through alternative dispute resolution procedures, or to 
proceed with an adjudicatory hearing. Such election shall be submitted 
in writing to the Commission.
    (3) Unless otherwise directed by the Commission, or upon motion by 
the Mass Media Bureau Chief, the Mass Media Bureau Chief shall not be 
deemed to be a party to a program access compliant proceeding designated 
for a hearing before an administrative law judge pursuant to this 
paragraph.
    (n) Petitions for reconsideration. Petitions for reconsideration of 
interlocutory actions by the Commission's staff or by an administrative 
law judge will not be entertained. Petitions for reconsideration of a 
decision on the merits made by the Commission's staff should be filed in 
accordance with Secs. 1.104-1.106 of this chapter.
    (o) Interlocutory review. (1) Except as provided below, no party may 
seek review of interlocutory rulings until a decision on the merits has 
been issued by the staff or administrative law judge.
    (2) Rulings listed in this paragraph are reviewable as a matter of 
right. An application for review of such ruling may not be deferred and 
raised as an exception to a decision on the merits.
    (i) If the staff's ruling denies or terminates the right of any 
person to participate as a party to the proceeding, such person, as a 
matter of right, may file an application for review of that ruling.
    (ii) If the staff's ruling requires production of documents or other 
written evidence, over objection based on a claim of privilege, the 
ruling on the claim of privilege is reviewable as a matter of right.
    (iii) If the staff's ruling denies a motion to disqualify a staff 
person from participating in the proceeding, the ruling is reviewable as 
a matter of right.
    (p) Expedited review. (1) Any party to a program access complaint 
proceeding aggrieved by any decision on the merits issued by the staff 
pursuant to delegated authority may file an application for review by 
the Commission in accordance with Sec. 1.115 of this chapter.
    (2) Any party to a program access complaint proceeding aggrieved by 
any decision on the merits by an administrative law judge may file an 
appeal of the decision directly with the Commission, in accordance with 
Sec. 1.276(a) and Secs. 1.277(a)-(c) of this chapter, except that unless 
a stay is granted by the Commission, the decision by the administrative 
law judge will become effective upon release and will remain in effect 
pending appeal.
    (q) Frivolous complaints. It shall be unlawful for any party to file 
a frivolous complaint with the Commission alleging any violation of this 
subpart. Any violation of this paragraph shall constitute an abuse of 
process subject to appropriate sanctions.
    (r) Statute of limitations. 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 or satellite broadcast 
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 or satellite broadcast 
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; or
    (3) The complainant has notified a cable operator, or a satellite 
cable programming vendor or a satellite broadcast programming vendor 
that it intends to file a complaint with the Commission based on a 
request to purchase or negotiate to purchase satellite cable programming 
or satellite broadcast programming, or a request to amend an existing 
contract pertaining to such programming pursuant to Sec. 76.1002(f) that 
has been denied or unacknowledged, allegedly in violation of one or more 
of the rules contained in this subpart.
    (s) Remedies for violations--(1) Remedies authorized. Upon 
completion of such adjudicatory proceeding, the Commission shall order 
appropriate remedies, including, if necessary, the establishment of 
prices, terms, and conditions for the sale of programming

[[Page 630]]

to the aggrieved multichannel video programming distributor. Such order 
shall set forth a timetable for compliance, and shall become effective 
upon release.
    (2) Additional sanctions. The remedies provided in paragraph (s)(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.

[ 58 FR 27673 , May 11, 1993, as amended at  59 FR 66258 , Dec. 23, 1994]