§ 76.1906   Encoding rules for undefined business models.

   (a) Upon public notice and subject to requirements as set forth herein, a
   covered  entity  may launch a program service pursuant to an undefined
   business model. Subject to Commission review upon complaint, the covered
   entity may initially encode programs pursuant to such undefined business
   model without regard to limitations set forth in § 76.1904(b).

   (1) Notice. Concurrent with the launch of an undefined business model by a
   covered entity, the covered entity shall issue a press release to the PR
   Newswire so as to provide public notice of the undefined business model, and
   the proposed encoding terms. The notice shall provide a concise summary of
   the commercial audiovisual content to be provided pursuant to the undefined
   business model, and of the terms on which such content is to be available to
   consumers.  Immediately  upon  request  from  a party entitled to be a
   complainant,  the covered entity shall make available information that
   indicates the proposed encoding terms, including the use of copy never or
   copy one generation encoding, and the encoding of content with respect to
   “pause” as defined in § 76.1904(b)(2).

   (2) Complaint process. Any interested party (“complainant”) may file a
   complaint with the Commission objecting to application of encoding as set
   forth in the notice.

   (i) Pre-complaint resolution. Prior to initiating a complaint with the
   Commission under this section, the complainant shall notify the covered
   entity that it may file a complaint under this section. The notice must be
   sufficiently detailed so that the covered entity can determine the specific
   nature of the potential complaint. The potential complainant must allow a
   minimum of thirty (30) days from such notice before filing such complaint
   with the Commission. During this period the parties shall endeavor in good
   faith to resolve the issue(s) in dispute. If the parties fail to reach
   agreement within this 30 day period, complainant may initiate a complaint in
   accordance with the procedures set forth herein.

   (ii) Complaint. Within two years of publication of a notice under paragraph
   (a)(1)  of  this  section, a complainant may file a complaint with the
   Commission objecting to application of the encoding terms to the service at
   issue. Such complaint shall state with particularity the basis for objection
   to the encoding terms.

   (A) The complaint shall contain the name and address of the complainant and
   the name and address of the covered entity.

   (B) The complaint shall be accompanied by a certification of service on the
   named covered entity.

   (C) The complaint shall set forth with specificity all information and
   arguments relied upon. Specific factual allegations shall be supported by a
   declaration of a person or persons with actual knowledge of the facts, and
   exhibits shall be verified by the person who prepares them.

   (D)  The complaint shall set forth attempts made by the complainant to
   resolve its complaint pursuant to paragraph (a)(2)(i) of this section.

   (iii) Public notice. The Commission shall give public notice of the filing
   of the complaint. Once the Commission has issued such public notice, any
   person otherwise entitled to be a complainant shall instead have the status
   of a person submitting comments under paragraph (a)(2)(iv) of this section
   rather than a complainant.

   (iv) Comments and reply. (A) Any person may submit comments regarding the
   complaint within thirty (30) days after the date of public notice by the
   Commission. Comments shall be served on the complainant and the covered
   entity and on any persons listed in relevant certificates of service, and
   shall contain a detailed full statement of any facts or considerations
   relied on. Specific factual allegations shall be supported by a declaration
   of a person or persons with actual knowledge of the facts, and exhibits
   shall be verified by the person who prepares them.

   (B) The covered entity may file a response to the complaint and comments
   within twenty (20) days after the date that comments are due. Such response
   shall be served on all persons who have filed complaints or comments and
   shall  also contain a detailed full showing, supported by affidavit or
   declaration, of any additional facts or considerations relied on. Replies
   shall be due ten (10) days from the date for filing a response.

   (v) Basis for Commission determination as to encoding terms for an undefined
   business  model. In a permit-but-disclose proceeding, unless otherwise
   specified by the Commission, to determine whether encoding terms as noticed
   may be applied to an undefined business model, the covered entity shall have
   the burden of proof to establish that application of the encoding terms in
   the undefined business model is in the public interest. In making any such
   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 services offered by any
   covered entity prior to December 31, 2002;

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

   (b) Complaint regarding a service not subject to notice. In an instance in
   which an interested party has a substantial basis to believe and believes in
   good faith that a service pursuant to an undefined business model has been
   launched without requisite notice, such party may file a complaint pursuant
   to § 76.7.

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