§ 76.1302   Carriage agreement proceedings.

   (a)  Complaints.  Any  video  programming vendor or 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 video programming vendor or
   multichannel video programming distributor intending to file a complaint
   under this section must first notify the potential defendant multichannel
   video programming distributor that it intends to file a complaint with the
   Commission based on actions alleged to violate one or more of the provisions
   contained in § 76.1301 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, a
   carriage agreement complaint shall contain:

   (1) Whether the complainant is a multichannel video programming distributor
   or  video programming vendor, and, in the case of a multichannel video
   programming distributor, identify the type of multichannel video programming
   distributor, the address and telephone number of the complainant, what type
   of multichannel video programming distributor the defendant is, 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 carriage
   agreement regulations;

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

   (d)  Prima  facie  case. In order to establish a prima facie case of a
   violation of § 76.1301, the complaint must contain evidence of the following:

   (1) The complainant is a video programming vendor as defined in section
   616(b) of the Communications Act of 1934, as amended, and § 76.1300(e) or a
   multichannel video programming distributor as defined in section 602(13) of
   the Communications Act of 1934, as amended, and § 76.1300(d);

   (2) The defendant is a multichannel video programming distributor as defined
   in  section 602(13) of the Communications Act of 1934, as amended, and
   § 76.1300(d); and

   (3)(i)  Financial  interest.  In  a  complaint alleging a violation of
   § 76.1301(a), documentary evidence or testimonial evidence (supported by an
   affidavit from a representative of the complainant) that supports the claim
   that the defendant required a financial interest in any program service as a
   condition for carriage on one or more of such defendant's systems.

   (ii) Exclusive rights. In a complaint alleging a violation of § 76.1301(b),
   documentary evidence or testimonial evidence (supported by an affidavit from
   a  representative of the complainant) that supports the claim that the
   defendant coerced a video programming vendor to provide, or retaliated
   against such a vendor for failing to provide, exclusive rights against any
   other multichannel video programming distributor as a condition for carriage
   on a system.

   (iii) Discrimination. In a complaint alleging a violation of § 76.1301(c):

   (A)  Evidence  that the conduct alleged has the effect of unreasonably
   restraining the ability of an unaffiliated video programming vendor to
   compete fairly; and

   (B)  (1) Documentary evidence or testimonial evidence (supported by an
   affidavit from a representative of the complainant) that supports the claim
   that the defendant discriminated in video programming distribution on the
   basis of affiliation or non-affiliation of vendors in the selection, terms,
   or conditions for carriage of video programming provided by such vendors; or

   (2) (i) Evidence that the complainant provides video programming that is
   similarly situated to video programming provided by a video programming
   vendor  affiliated  (as  defined  in  § 76.1300(a))  with the defendant
   multichannel  video programming distributor, based on a combination of
   factors,  such as genre, ratings, license fee, target audience, target
   advertisers, target programming, and other factors; and

   (ii) Evidence that the defendant multichannel video programming distributor
   has treated the video programming provided by the complainant differently
   than the similarly situated, affiliated video programming described in
   paragraph  (d)(3)(iii)(B)(2)(i)  of  this  section with respect to the
   selection, terms, or conditions for carriage.

   (e) Answer. (1) Any multichannel video programming distributor upon which a
   carriage agreement complaint is served under this section shall answer
   within  sixty  (60) days of service of the complaint, unless otherwise
   directed by the Commission.

   (2)  The  answer  shall address the relief requested in the complaint,
   including legal and documentary support, for such response, and may include
   an alternative relief proposal without any prejudice to any denials or
   defenses raised.

   (f)  Reply. Within twenty (20) 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) Prima facie determination. (1) Within sixty (60) calendar days after the
   complainant's reply to the defendant's answer is filed (or the date on which
   the reply would be due if none is filed), the Chief, Media Bureau shall
   release a decision determining whether the complainant has established a
   prima facie case of a violation of § 76.1301.

   (2) The Chief, Media Bureau may toll the sixty (60)-calendar-day deadline
   under the following circumstances:

   (i) If the complainant and defendant jointly request that the Chief, Media
   Bureau toll these deadlines in order to pursue settlement discussions or
   alternative dispute resolution or for any other reason that the complainant
   and defendant mutually agree justifies tolling; or

   (ii) If complying with the deadline would violate the due process rights of
   a party or would be inconsistent with fundamental fairness.

   (3) A finding that the complainant has established a prima facie case of a
   violation of § 76.1301 means that the complainant has provided sufficient
   evidence in its complaint to allow the case to proceed to a ruling on the
   merits.

   (4)  If  the  Chief,  Media  Bureau finds that the complainant has not
   established a prima facie case of a violation of § 76.1301, the Chief, Media
   Bureau will dismiss the complaint.

   (h) 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 multichannel video programming distributor enters into a contract
   with a video programming distributor that a party alleges to violate one or
   more of the rules contained in this section; or

   (2) The multichannel video programming distributor offers to carry the video
   programming vendor's programming pursuant to terms that a party alleges to
   violate one or more of the rules contained in this section, and such offer
   to carry programming is unrelated to any existing contract between the
   complainant and the multichannel video programming distributor; or

   (3) A party has notified a multichannel video programming distributor that
   it intends to file a complaint with the Commission based on violations of
   one or more of the rules contained in this section.

   (i)  Deadline  for decision on the merits. (1)(i) For program carriage
   complaints that the Chief, Media Bureau decides on the merits based on the
   complaint, answer, and reply without discovery, the Chief, Media Bureau
   shall release a decision on the merits within sixty (60) calendar days after
   the Chief, Media Bureau's prima facie determination.

   (ii) For program carriage complaints that the Chief, Media Bureau decides on
   the merits after discovery, the Chief, Media Bureau shall release a decision
   on the merits within 150 calendar days after the Chief, Media Bureau's prima
   facie determination.

   (iii) The Chief, Media Bureau may toll these deadlines under the following
   circumstances:

   (A) If the complainant and defendant jointly request that the Chief, Media
   Bureau toll these deadlines in order to pursue settlement discussions or
   alternative dispute resolution or for any other reason that the complainant
   and defendant mutually agree justifies tolling; or

   (B) If complying with the deadline would violate the due process rights of a
   party or would be inconsistent with fundamental fairness.

   (2) For program carriage complaints that the Chief, Media Bureau refers to
   an administrative law judge for an initial decision, the deadlines set forth
   in § 0.341(f) of this chapter apply.

   (j) Remedies for violations—(1) Remedies authorized. Upon completion of such
   adjudicatory proceeding, the Commission shall order appropriate remedies,
   including, if necessary, mandatory carriage of a video programming vendor's
   programming on defendant's video distribution system, or the establishment
   of prices, terms, and conditions for the carriage of a video programming
   vendor's programming. Such order shall set forth a timetable for compliance,
   and shall become effective upon release, unless any order of mandatory
   carriage  would  require  the defendant multichannel video programming
   distributor to delete existing programming from its system to accommodate
   carriage of a video programming vendor's programming. In such instances, if
   the  defendant  seeks review of the staff, or administrative law judge
   decision, the order for carriage of a video programming vendor's programming
   will not become effective unless and until the decision of the staff or
   administrative law judge is upheld by the Commission. If the Commission
   upholds the remedy ordered by the staff or administrative law judge in its
   entirety, the defendant will be required to carry the video programming
   vendor's programming for an additional period equal to the time elapsed
   between the staff or administrative law judge decision and the Commission's
   ruling, on the terms and conditions approved by the Commission.

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

   (k) Petitions for temporary standstill. (1) A program carriage 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. To allow for sufficient time to consider the
   petition for temporary standstill prior to the expiration of the existing
   programming contract, the petition for temporary standstill and complaint
   shall be filed no later than thirty (30) days prior to the expiration of the
   existing programming contract. 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 multichannel video programming distributor 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 adjudicator
   deciding the case on the merits (i.e., either the Chief, Media Bureau or an
   administrative law judge) will provide for remedies that are applied as of
   the expiration date of the previous programming contract.

   [ 64 FR 6574 , Feb. 10, 1999, as amended at  76 FR 60673 , Sept. 29, 2011]

   return arrow Back to Top