§  76.1905   Petitions to modify encoding rules for new services within
defined business models.

   (a) The encoding rules for defined business models in §  76.1904
   reflect the conventional methods for packaging programs in the MVPD
   market as of December 31, 2002, and are presumed to be the appropriate
   rules for defined business models. A covered entity may petition the
   Commission for approval to allow within a defined business model, other
   than unencrypted broadcast television, the encoding of a new service in
   a manner different from the encoding rules set forth in
   §  76.1904(b)(1) and (2). No such petition will be approved under the
   public interest test set forth in paragraph (c)(4) of this section
   unless the new service differs from existing services provided by any
   covered entity under the applicable defined business model prior to
   December 31, 2002.

   (b) Petitions. A petition to encode a new service within a defined
   business model other than as permitted by the encoding rules set forth
   in §  76.1904(b)(1) and (2) shall describe:

   (1) The defined business model, the new service, and the proposed
   encoding terms, including the use of copy never and copy one generation
   encoding, and the encoding of content with respect to "pause" set forth
   in §  76.1904(b)(2).

   (2) Whether the claimed benefit to consumers of the new service,
   including, but not limited to, the availability of content in earlier
   release windows, more favorable terms, innovation or original
   programming, outweighs the limitation on the consumers' control over
   the new service;

   (3) The ways in which the new service differs from existing services
   offered by any covered entity within the applicable defined business
   model prior to December 31, 2002;

   (4) All other pertinent facts and considerations relied on to support a
   determination that grant of the petition would serve the public
   interest.

   (5) Factual allegations shall be supported by affidavit or declaration
   of a person or persons with actual knowledge of the facts, and exhibits
   shall be verified by the person who prepares them.

   (c) Petition process --(1) Public notice. The Commission shall give
   public notice of any such petition.

   (2) Comments. Interested persons may submit comments or oppositions to
   the petition within thirty (30) days after the date of public notice of
   the filing of such petition. Comments or oppositions shall be served on
   the petitioner and on all persons listed in petitioner's certificate of
   service, and shall contain a detailed full statement of any facts or
   considerations relied on. Factual allegations shall be supported by
   affidavit or declaration of a person or persons with actual knowledge
   of the facts, and exhibits shall be verified by the person who prepares
   them.

   (3) Replies. The petitioner may file a reply to the comments or
   oppositions within ten (10) days after their submission, which shall be
   served on all persons who have filed pleadings and shall also contain a
   detailed full showing, supported by affidavit or declaration, of any
   additional facts or considerations relied on. There shall be no further
   pleadings filed after petitioner's reply, unless authorized by the
   Commission.

   (4) Commission determination as to encoding rules for a new service
   within a defined business model. (i) Proceedings initiated by petitions
   pursuant to this section shall be permit-but-disclose proceedings,
   unless otherwise specified by the Commission. The covered entity shall
   have the burden of proof to establish that the proposed change in
   encoding rules for a new service is in the public interest. In making
   its determination, the Commission shall take into account the following
   factors:

   (A) Whether the benefit to consumers of the new service, including but
   not limited to earlier release windows, more favorable terms,
   innovation or original programming, outweighs the limitation on the
   consumers' control over the new service;

   (B) Ways in which the new service differs from existing services
   offered by any covered entity within the applicable defined business
   model prior to December 31, 2002; and

   (ii) The Commission may specify other procedures, such as oral
   argument, evidentiary hearing, or further written submissions directed
   to particular aspects, as it deems appropriate.

   (iii) A petition may, upon request of the petitioner, be dismissed
   without prejudice as a matter of right prior to the adoption date of
   any final action taken by the Commission with respect to the petition.
   A petitioner's request for the return of a petition will be regarded as
   a request for dismissal.

   (d) Complaint regarding a new service not subject to petition. In an
   instance in which an interested party has a substantial basis to
   believe and does believe in good faith that a new service within a
   defined business model has been launched without a petition as required
   by this section, such party may file a complaint pursuant to §  76.7.

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