§ 76.975   Commercial leased access dispute resolution.

   (a) Any person aggrieved by the failure or refusal of a cable operator to
   make commercial channel capacity available in accordance with the provisions
   of Title VI of the Communications Act may bring an action in the district
   court of the United States for the Judicial district in which the cable
   system is located to compel that such capacity be made available.

   (b)(1) Any person aggrieved by the failure or refusal of a cable operator to
   make commercial channel capacity available or to charge rates for such
   capacity in accordance with the provisions of Title VI of the Communications
   Act,  or our implementing regulations, § § 76.970 and 76.971, may file a
   petition for relief with the Commission. Persons alleging that a cable
   operator's leased access rate is unreasonable must receive a determination
   of  the  cable  operator's  maximum permitted rate from an independent
   accountant prior to filing a petition for relief with the Commission.

   (2) Parties to a dispute over leased access rates shall have five business
   days to agree on a mutually acceptable accountant from the date on which the
   programmer provides the cable operator with a written request for a review
   of  its  leased access rates. Parties that fail to agree on a mutually
   acceptable accountant within five business days of the programmer's request
   for a review shall each be required to select an independent accountant on
   the  sixth  business day. The two accountants selected shall have five
   business  days to select a third independent accountant to perform the
   review. Operators of systems subject to small system relief shall have 14
   business days to select an independent accountant when an agreement cannot
   be reached. For these purposes, systems subject to small system relief are
   systems that either:

   (i) Qualify as small systems under § 76.901(c) and are owned by a small cable
   company as defined under § 76.901(e); or

   (ii) Have been granted special relief.

   (3) The final accountant's report must be completed within 60 days of the
   date on which the final accountant is selected to perform the review. The
   final accountant's report must, at a minimum, state the maximum permitted
   rate,  and explain how it was determined without revealing proprietary
   information.  The  report  must  be signed, dated and certified by the
   accountant. The report shall be filed in the cable system's local public
   file.

   (4) If the accountant's report indicates that the cable operator's leased
   access rate exceeds the maximum permitted rate by more than a de minimis
   amount, the cable operator shall be required to pay the full cost of the
   review. If the final accountant's report does not indicate that the cable
   operator's leased access rate exceeds the maximum permitted rate by more
   than a de minimis amount, each party shall be required to split the cost of
   the final accountant's review, and to pay its own expenses incurred in
   making the review.

   (5) Parties may use alternative dispute resolution (ADR) processes to settle
   disputes that are not resolved by the final accountant's report.

   (c) A petition must contain a concise statement of the facts constituting a
   violation of the statute or the Commission's rules, the specific statute(s)
   or rule(s) violated, and certify that the petition was served on the cable
   operator. Where a petition is based on allegations that a cable operator's
   leased access rates are unreasonable, the petitioner must attach a copy of
   the final accountant's report. In proceedings before the Commission, there
   will be a rebuttable presumption that the final accountant's report is
   correct.

   (d) Where a petition is not based on allegations that a cable operator's
   leased access rates are unreasonable, the petition must be filed within 60
   days of the alleged violation. Where a petition is based on allegations that
   the cable operator's leased access rates are unreasonable, the petition must
   be filed within 60 days of the final accountant's report, or within 60 days
   of the termination of ADR proceedings. Aggrieved parties must certify that
   their  petition  was  filed  within  60 days of the termination of ADR
   proceedings in order to file a petition later than 60 days after completion
   of  the  final  accountant's  report.  Cable  operators may rebut such
   certifications.

   (e) The cable operator or other respondent will have 30 days from the filing
   of the petition to file a response. If a leased access rate is disputed, the
   response must show that the rate charged is not higher than the maximum
   permitted  rate  for  such leased access, and must be supported by the
   affidavit  of  a responsible company official. If, after a response is
   submitted, the staff finds a prima facie violation of our rules, the staff
   may require a respondent to produce additional information, or specify other
   procedures necessary for resolution of the proceeding.

   (f) The Commission, after consideration of the pleadings, may grant the
   relief  requested,  in whole or in part, including, but not limited to
   ordering refunds, injunctive measures, or forfeitures pursuant 47 U.S.C.
   503, denying the petition, or issuing a ruling on the petition or dispute.

   (g) To be afforded relief, the petitioner must show by clear and convincing
   evidence that the cable operator has violated the Commission's leased access
   provisions in 47 U.S.C. 532 or § § 76.970 and 76.971, or otherwise acted
   unreasonably  or  in bad faith in failing or refusing to make capacity
   available or to charge lawful rates for such capacity to an unaffiliated
   leased access programmer.

   (h) During the pendency of a dispute, a party seeking to lease channel
   capacity for commercial purposes, shall comply with the rates, terms and
   conditions prescribed by the cable operator, subject to refund or other
   appropriate remedy.

   [ 78 FR 20257 , Apr. 4, 2013]

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