[Federal Register Volume 76, Number 172 (Tuesday, September 6, 2011)]
[Notices]
[Pages 55061-55065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22616]
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FEDERAL COMMUNICATIONS COMMISSION
Information Collection Being Reviewed by the Federal
Communications Commission
AGENCY: Federal Communications Commission.
ACTION: Notice and request for comments.
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SUMMARY: The Federal Communications Commission (FCC), as part of its
continuing effort to reduce paperwork burdens, invites the general
public and other Federal agencies to take this opportunity to comment
on the following information collection, as required by the Paperwork
Reduction Act (PRA) of 1995. Comments are requested concerning (a)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) the accuracy
of the Commission's burden estimate; (c) ways to enhance the quality,
utility, and clarity of the information collected; (d) ways to minimize
the burden of the collection of information on the respondents,
including the use of automated collection techniques or other forms of
information technology; and (e) ways to further reduce the information
collection burden on small business concerns with fewer than 25
employees.
The FCC may not conduct or sponsor a collection of information
unless it displays a currently valid control number. No person shall be
subject to any penalty for failing to comply with a collection of
information subject to the PRA that does not display a valid Office of
Management and Budget (OMB) control number.
DATES: Written PRA comments should be submitted on or before November
7, 2011. If you anticipate that you will be submitting comments, but
find it difficult to do so within the period of time allowed by this
notice, you should advise the contact listed below as soon as possible.
ADDRESSES: Direct all PRA comments to the Federal Communications
Commission via e-mail to [email protected] and [email protected].
FOR FURTHER INFORMATION CONTACT: For additional information about the
information collection, contact Cathy Williams at (202) 418-2918.
SUPPLEMENTARY INFORMATION:
OMB Control Number: 3060-0888.
Title: Section 1.221, Notice of hearing; appearances; Section 1.229
Motions to
[[Page 55062]]
enlarge, change, or delete issues; Section 1.248 Prehearing
conferences; hearing conferences; Section 76.7, Petition Procedures;
Section 76.9, Confidentiality of Proprietary Information; Section
76.61, Dispute Concerning Carriage; Section 76.914, Revocation of
Certification; Section 76.1001, Unfair Practices; Section 76.1003,
Program Access Proceedings; Section 76.1302, Carriage Agreement
Proceedings; Section 76.1513, Open Video Dispute Resolution.
Form Number: Not applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Businesses or other for-profit.
Number of Respondents and Responses: 668 respondents; 668
responses.
Estimated Time per Response: 6 to 88 hours.
Frequency of Response: On occasion reporting requirement; Third
party disclosure requirement.
Obligation to Respond: Required to obtain or retain benefits. The
statutory authority for this collection of information is contained in
Sections 4(i), 303(r), and 616 of the Communications Act of 1934, as
amended.
Total Annual Burden: 31,396 hours.
Total Annual Cost: $2,505,000.
Privacy Act Impact Assessment: No impact(s).
Nature and Extent of Confidentiality: A party that wishes to have
confidentiality for proprietary information with respect to a
submission it is making to the Commission must file a petition pursuant
to the pleading requirements in Section 76.7 and use the method
described in Sections 0.459 and 76.9 to demonstrate that
confidentiality is warranted.
Needs and Uses: On August 1, 2011, the Commission adopted a Second
Report and Order, Leased Commercial Access; Development of Competition
and Diversity in Video Programming Distribution and Carriage, MB Docket
No. 07-42, FCC 11-119. In the Second Report and Order, the Commission
took initial steps to improve the procedures for addressing program
carriage complaints by: (i) Codifying in the Commission's rules what a
program carriage complainant must demonstrate in its complaint to
establish a prima facie case of a program carriage violation; (ii)
providing the defendant with 60 days (rather than the current 30 days)
to file an answer to a program carriage complaint; (iii) establishing
deadlines for action by the Media Bureau and Administrative Law Judges
(``ALJ'') when acting on program carriage complaints; and (iv)
establishing procedures for the Media Bureau's consideration of
requests for a temporary standstill of the price, terms, and other
conditions of an existing programming contract by a program carriage
complainant seeking renewal of such a contract.
The following rule sections contain new or revised information
collection requirements that the Commission is seeking approval for
from the Office of Management and Budget (OMB):
47 CFR 1.221(h) requires that, in a program carriage complaint
proceeding filed pursuant to Section 76.1302 that the Chief, Media
Bureau refers to an administrative law judge for an initial decision,
each party, in person or by attorney, shall file a written appearance
within five calendar days after the party informs the Chief
Administrative Law Judge that it elects not to pursue alternative
dispute resolution pursuant to Section 76.7(g)(2) or, if the parties
have mutually elected to pursue alternative dispute resolution pursuant
to Section 76.7(g)(2), within five calendar days after the parties
inform the Chief Administrative Law Judge that they have failed to
resolve their dispute through alternative dispute resolution. The
written appearance shall state that the party will appear on the date
fixed for hearing and present evidence on the issues specified in the
hearing designation order.
47 CFR 1.229(b)(3) requires that, in a program carriage complaint
proceeding filed pursuant to Section 76.1302 that the Chief, Media
Bureau refers to an administrative law judge for an initial decision, a
motion to enlarge, change, or delete issues shall be filed within 15
calendar days after the deadline for submitting written appearances
pursuant to Section 1.221(h), except that persons not named as parties
to the proceeding in the designation order may file such motions with
their petitions to intervene up to 30 days after publication of the
full text or a summary of the designation order in the Federal
Register.
47 CFR 1.229(b)(4) provides that any person desiring to file a
motion to modify the issues after the expiration of periods specified
in paragraphs (a), (b)(1), (b)(2), and (b)(3) of 47 CFR Section 1.229,
shall set forth the reason why it was not possible to file the motion
within the prescribed period.
47 CFR 1.248(a) provides that the initial prehearing conference as
directed by the Commission shall be scheduled 30 days after the
effective date of the order designating a case for hearing, unless good
cause is shown for scheduling such conference at a later date, except
that for program carriage complaints filed pursuant to Section 76.1302
that the Chief, Media Bureau refers to an administrative law judge for
an initial decision, the initial prehearing conference shall be held no
later than 10 calendar days after the deadline for submitting written
appearances pursuant to Section 1.221(h) or within such shorter or
longer period as the Commission may allow on motion or notice
consistent with the public interest.
47 CFR 1.248(b) provides that the initial prehearing conference as
directed by the presiding officer shall be scheduled 30 days after the
effective date of the order designating a case for hearing, unless good
cause is shown for scheduling such conference at a later date, except
that for program carriage complaints filed pursuant to Section 76.1302
that the Chief, Media Bureau refers to an administrative law judge for
an initial decision, the initial prehearing conference shall be held no
later than 10 calendar days after the deadline for submitting written
appearances pursuant to Section 1.221(h) or within such shorter or
longer period as the presiding officer may allow on motion or notice
consistent with the public interest.
47 CFR 76.7(g)(2) provides that, in a proceeding initiated pursuant
to Section 76.7 that is referred to an administrative law judge, the
parties may elect to resolve the dispute through alternative dispute
resolution procedures, or may proceed with an adjudicatory hearing,
provided that the election shall be submitted in writing to the
Commission and the Chief Administrative Law Judge.
47 CFR 76.1302(c)(1) provides that a program carriage complaint
filed pursuant to Section 76.1302 must contain the following: 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.
47 CFR 76.1302(d) sets forth the evidence that a program carriage
complaint filed pursuant to Section 76.1302 must contain in order to
establish a prima facie case of a violation of Section 76.1301.
47 CFR 76.1302(e)(1) provides that a multichannel video programming
[[Page 55063]]
distributor upon whom a program carriage complaint filed pursuant to
Section 76.1302 is served shall answer within sixty (60) days of
service of the complaint, unless otherwise directed by the Commission.
47 CFR 76.1302(k) permits a program carriage complainant seeking
renewal of an existing programming contract to 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 which the defendant will have
the opportunity to respond within 10 days of service of the petition,
unless otherwise directed by the Commission. 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.
The following rule sections are also covered in this information
collection but do not require additional OMB review and approval:
47 CFR 76.7. Pleadings seeking to initiate FCC action must adhere
to the requirements of Section 76.6 (general pleading requirements) and
Section 76.7 (initiating pleading requirements). Section 76.7 is used
for numerous types of petitions and special relief petitions, including
general petitions seeking special relief, waivers, enforcement, show
cause, forfeiture and declaratory ruling procedures.
47 CFR 76.9. A party that wishes to have confidentiality for
proprietary information with respect to a submission it is making to
the FCC must file a petition pursuant to the pleading requirements in
Section 76.7 and use the method described in Sections 0.459 and 76.9 to
demonstrate that confidentiality is warranted. The petitions filed
pursuant to this provision are contained in the existing information
collection requirement and are not changed by the rule changes.
47 CFR 76.61(a) permits a local commercial television station or
qualified low power television station that is denied carriage or
channel positioning or repositioning in accordance with the must-carry
rules by a cable operator to file a complaint with the FCC in
accordance with the procedures set forth in Section 76.7. Section
76.61(b) permits a qualified local noncommercial educational television
station that believes a cable operator has failed to comply with the
FCC's signal carriage or channel positioning requirements (Sections
76.56 through 76.57) to file a complaint with the FCC in accordance
with the procedures set forth in Section 76.7.
47 CFR 76.61(a)(1) states that whenever a local commercial
television station or a qualified low power television station believes
that a cable operator has failed to meet its carriage or channel
positioning obligations, pursuant to Sections 76.56 and 76.57, such
station shall notify the operator, in writing, of the alleged failure
and identify its reasons for believing that the cable operator is
obligated to carry the signal of such station or position such signal
on a particular channel.
47 CFR 76.61(a)(2) states that the cable operator shall, within 30
days of receipt of such written notification, respond in writing to
such notification and either commence to carry the signal of such
station in accordance with the terms requested or state its reasons for
believing that it is not obligated to carry such signal or is in
compliance with the channel positioning and repositioning and other
requirements of the must-carry rules. If a refusal for carriage is
based on the station's distance from the cable system's principal
headend, the operator's response shall include the location of such
headend. If a cable operator denies carriage on the basis of the
failure of the station to deliver a good quality signal at the cable
system's principal headend, the cable operator must provide a list of
equipment used to make the measurements, the point of measurement and a
list and detailed description of the reception and over-the-air signal
processing equipment used, including sketches such as block diagrams
and a description of the methodology used for processing the signal at
issue, in its response.
47 CFR 76.914(c) permits a cable operator seeking revocation of a
franchising authority's certification to file a petition with the FCC
in accordance with the procedures set forth in Section 76.7.
47 CFR 76.1001(b)(2) permits any multichannel video programming
distributor to commence an adjudicatory proceeding by filing a
complaint with the Commission alleging that a cable operator, a
satellite cable programming vendor in which a cable operator has an
attributable interest, or a satellite broadcast programming vendor, has
engaged in an unfair act involving terrestrially delivered, cable-
affiliated programming, which must be filed and responded to in
accordance with the procedures specified in Section 76.7, except to the
extent such procedures are modified by Sections 76.1001(b)(2) and
76.1003. In program access cases involving terrestrially delivered,
cable-affiliated programming, the defendant has 45 days from the date
of service of the complaint to file an answer, unless otherwise
directed by the Commission. A complainant shall have the burden of
proof that the defendant's alleged conduct has the purpose or effect of
hindering significantly or preventing the complainant from providing
satellite cable programming or satellite broadcast programming to
subscribers or consumers; an answer to such a complaint shall set forth
the defendant's reasons to support a finding that the complainant has
not carried this burden. In addition, a complainant alleging that a
terrestrial cable programming vendor has engaged in discrimination
shall have the burden of proof that the terrestrial cable programming
vendor is wholly owned by, controlled by, or under common control with
a cable operator or cable operators, satellite cable programming vendor
or vendors in which a cable operator has an attributable interest, or
satellite broadcast programming vendor or vendors; an answer to such a
complaint shall set forth the defendant's reasons to support a finding
that the complainant has not carried this burden. In addition, a
complainant that wants a currently pending complaint involving
terrestrially delivered, cable-affiliated programming considered under
the rules must submit a supplemental filing alleging that the defendant
has engaged in an unfair act after the effective date of the rules. In
such case, the complaint and supplement will be considered pursuant to
the rules and the defendant will have an opportunity to answer the
supplemental filing, as set forth in the rules.
47 CFR 76.1003(a) permits any multichannel video programming
distributor (MVPD) aggrieved by conduct that it believes constitutes a
violation of he FCC's competitive access to cable programming rules to
commence an adjudicatory proceeding at the FCC to obtain enforcement of
the rules through the filing of a compliant, which must be filed and
responded to in accordance with the procedures specified in Section
76.7, except to the extent such procedures are modified by Section
76.1003.
47 CFR 76.1003(b) requires any aggrieved MVPD intending to file a
complaint under this section to first notify the potential defendant
cable operator, and/or the potential defendant satellite cable
programming vendor or satellite broadcast programming vendor, that it
intends to file a complaint with the Commission based on actions
[[Page 55064]]
alleged to violate one or more of the provisions contained in Sections
76.1001 or 76.1002 of this part. The notice must be sufficiently
detailed so that its recipient(s) can determines the nature of the
potential complainant. The potential complainant must allow a minimum
of ten (10) days for the potential defendant(s) to respond before
filing complaint with the Commission.
47 CFR 76.1003(c) describes the required contents of a program
access complaint, in addition to the requirements of Section 76.7 of
this part.
47 CFR 76.1003(c)(3) requires a program access complaint to contain
evidence that the complainant competes with the defendant cable
operator, or with a multichannel video programming distributor that is
a customer of the defendant satellite cable programming or satellite
broadcast programming vendor or a terrestrial cable programming vendor
alleged to have engaged in conduct described in Section 76.1001(b)(1).
47 CFR 76.1003(d) states that, in a case where recovery of damages
is sought, the complaint shall contain a clear and unequivocal request
for damages and appropriate allegations in support of such claim.
47 CFR 76.1003(e)(1) requires a cable operator, satellite cable
programming vendor, or satellite broadcast programming vendor that
expressly references and relies upon a document in asserting a defense
to a program access complaint filed pursuant to Section 76.1003 or in
responding to a material allegation in a program access complaint filed
pursuant to Section 76.1003, to include such document or documents as
part of the answer. Except as otherwise provided or directed by the
Commission, any cable operator, satellite cable programming vendor or
satellite broadcast programming vendor upon which a program access
complaint is served under this section shall answer within twenty (20)
days of service of the complaint.
47 CFR 76.1003(e)(2) requires an answer to an exclusivity complaint
to provide the defendant's reasons for refusing to sell the subject
programming to the complainant. In addition, the defendant may submit
its programming contracts covering the area specified in the complaint
with its answer to refute allegations concerning the existence of an
impermissible exclusive contract. If there are no contracts governing
the specified area, the defendant shall so certify in its answer. Any
contracts submitted pursuant to this provision may be protected as
proprietary pursuant to Section 76.9 of this part.
47 CFR 76.1003(e)(3) requires an answer to a discrimination
complaint to state the reasons for any differential in prices, terms or
conditions between the complainant and its competitor, and to specify
the particular justification set forth in Section 76.1002(b) of this
part relied upon in support of the differential.
47 CFR 76.1003(e)(4) requires an answer to a complaint alleging an
unreasonable refusal to sell programming to state the defendant's
reasons for refusing to sell to the complainant, or for refusing to
sell to the complainant on the same terms and conditions as
complainant's competitor, and to specify why the defendant's actions
are not discriminatory.
47 CFR 76.1003(f) provides that, within fifteen (15) 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.
47 CFR 76.1003(g) states that any complaint filed pursuant to this
subsection must be filed within one year of the date on which one of
three specified events occurs.
47 CFR 76.1003(h) sets forth the remedies that are available for
violations of the program access rules, which include the imposition of
damages, and/or the establishment of prices, terms, and conditions for
the sale of programming to the aggrieved multichannel video programming
distributor, as well as sanctions available under title V or any other
provision of the Communications Act.
47 CFR 76.1003(j) states in addition to the general pleading and
discovery rules contained in Section 76.7 of this part, parties to a
program access complaint may serve requests for discovery directly on
opposing parties, and file a copy of the request with the Commission.
The respondent shall have the opportunity to object to any request for
documents that are not in its control or relevant to the dispute. Such
request shall be heard, and determination made, by the Commission.
Until the objection is ruled upon, the obligation to produce the
disputed material is suspended. Any party who fails to timely provide
discovery requested by the opposing party to which it has not raised an
objection as described above, or who fails to respond to a Commission
order for discovery material, may be deemed in default and an order may
be entered in accordance with the allegations contained in the
complaint, or the complaint may be dismissed with prejudice.
47 CFR 76.1003(l) permits a program access complainant seeking
renewal of an existing programming contract to 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 which the defendant will have
the opportunity to respond within 10 days of service of the petition,
unless otherwise directed by the Commission.
47 CFR Section 76.1302(a) permits any video programming vendor or
multichannel video programming distributor aggrieved by conduct that it
believes constitutes a violation of the FCC's regulation of carriage
agreements to commence an adjudicatory proceeding at the FCC to obtain
enforcement of the rules through the filing of a complaint, which must
be filed and responded to in accordance with the procedures specified
in Section 76.7, except to the extent such procedures are modified by
Section 76.1302.
47 CFR 76.1302(b) states that 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 Section 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.
47 CFR 76.1302(c) specifies the content of carriage agreement
complaints.
47 CFR 76.1302(e) states that an answer to a program carriage
complaint 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. (This subsection has been redesignated from
subsection (d) to subsection (e).)
47 CFR 76.1302(f) states that 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.
(This subsection has been redesignated from subsection (e) to
subsection (f).)
[[Page 55065]]
47 CFR 76.1302(h) states that any complaint filed pursuant to this
subsection must be filed within one year of the date on which one of
three events occurs. (This subsection has been redesignated from
subsection (f) to subsection (h).)
47 CFR 76.1302(j)(1) states that 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. (This subsection
has been redesignated from subsection (g) to subsection (j).)
47 CFR 76.1513(a) permits any party aggrieved by conduct that it
believes constitute a violation of the FCC's regulations or in section
653 of the Communications Act (47 U.S.C. 573) to commence an
adjudicatory proceeding at the Commission to obtain enforcement of the
rules through the filing of a complaint, which must be filed and
responded to in accordance with the procedures specified in Section
76.7, except to the extent such procedures are modified by Section
76.1513.
47 CFR 76.1513(b) provides that 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.
47 CFR 76.1513(c) requires that 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.
47 CFR 76.1513(d) describes the contents of an open video system
complaint.
47 CFR 76.1513(e) addresses answers to open video system
complaints.
47 CFR 76.1513(f) states 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.
47 CFR 76.1513(g) requires that any complaint filed pursuant to
this subsection must be filed within one year of the date on which one
of three events occurs.
47 CFR 76.1513(h) states that upon completion of the 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.
Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager, Office of the Secretary, Office of Managing Director.
[FR Doc. 2011-22616 Filed 9-2-11; 8:45 am]
BILLING CODE 6712-01-P