§  76.1513   Open video dispute resolution.

   (a) Complaints. Any party aggrieved by conduct that it believes
   constitute a violation of the regulations set forth in this part or in
   section 653 of the Communications Act (47 U.S.C. 573) may commence an
   adjudicatory proceeding at the Commission to obtain enforcement of the
   rules through the filing of a complaint. The Commission shall resolve
   any such dispute within 180 days after 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) Alternate dispute resolution. An open video system operator may not
   provide in its carriage contracts with programming providers that any
   dispute must be submitted to arbitration, mediation, or any other
   alternative method for dispute resolution prior to submission of a
   complaint to the Commission.

   (c) Notice required prior to filing of complaint. Any aggrieved party
   intending to file a complaint under this section must first notify the
   potential defendant open video system operator that it intends to file
   a complaint with the Commission based on actions alleged to violate one
   or more of the provisions contained in this part or in Section 653 of
   the Communications Act. The notice must be in writing and 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.

   (d) Contents of complaint. In addition to the requirements of §  76.7
   of this part, an open video system complaint shall contain:

   (1) The type of entity that describes complainant (e.g., individual,
   private association, partnership, or corporation), the address and
   telephone number of the complainant, and the address and telephone
   number of each defendant;

   (2) If discrimination in rates, terms, and conditions of carriage is
   alleged, documentary evidence shall be submitted such as a preliminary
   carriage rate estimate or a programming contract that demonstrates a
   differential in price, terms or conditions between complainant and a
   competing video programming provider or, if no programming contract or
   preliminary carriage rate estimate is submitted with the complaint, an
   affidavit signed by an officer of complainant alleging that a
   differential in price, terms or conditions exists, 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;

   Note to paragraph ( d )(2): Upon request by a complainant, the
   preliminary carriage rate estimate shall include a calculation of the
   average of the carriage rates paid by the unaffiliated video
   programming providers receiving carriage from the open video system
   operator, including the information needed for any weighting of the
   individual carriage rates that the operator has included in the average
   rate.

   (3) If a programming contract or a preliminary carriage rate estimate
   is submitted with the complaint in support of the alleged violation,
   specific references to the relevant provisions therein.

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

   (e) Answer. (1) Any open video system operator upon which a complaint
   is served under this section shall answer within thirty (30) days of
   service of the complaint, unless otherwise directed by the Commission.

   (2) 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
   relied upon in support of the differential. Any documents or contracts
   submitted pursuant to this paragraph may be protected as proprietary
   pursuant to §  76.9 of this part.

   (f) 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.

   (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 open video system operator enters into a contract with the
   complainant that the complainant alleges to violate one or more of the
   rules contained in this part; or

   (2) The open video system operator offers to carry programming for the
   complainant pursuant to terms that the complainant alleges to violate
   one or more of the rules contained in this part, and such offer to
   carry programming is unrelated to any existing contract between the
   complainant and the open video system operator; or

   (3) The complainant has notified an open video system operator that it
   intends to file a complaint with the Commission based on a request for
   such operator to carry the complainant's programming on its open video
   system that has been denied or unacknowledged, allegedly in violation
   of one or more of the rules contained in this part.

   (h) Remedies for violations --(1) Remedies authorized. Upon completion
   of such adjudicatory proceeding, the Commission shall order appropriate
   remedies, including, if necessary, the requiring carriage, awarding
   damages to any person denied carriage, or any combination of such
   sanctions. Such order shall set forth a timetable for compliance, and
   shall become effective upon release.

   (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.

   [ 61 FR 28708 , June 5, 1996, as amended at  61 FR 43178 , Aug. 21, 1996;
    62 FR 26239 , May 13, 1997;  64 FR 6575 , Feb. 10, 1999]

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