[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Rules and Regulations]
[Pages 20255-20258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03940]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 07-42; FCC 07-208]
Leased Commercial Access
AGENCY: Federal Communications Commission.
ACTION: Technical amendments.
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SUMMARY: The Federal Communications Commission (FCC) is making a
technical amendment to correct a final rule that appeared in the
Federal Register of February 28, 2008. The document revised rules
concerning Leased Commercial Access. Some of the revised rules
contained information collections that required approval by OMB. Some
other revised rules were held in abeyance pending OMB approval.
Finally, some rule revisions were effective without OMB approval. The
entire order, FCC 07-208, was judicially stayed pending judicial
review, which is being held in abeyance, and no rule revisions have
become effective. Therefore, the previously published rules are still
in effect. This document makes a technical amendment so that the rules
that are published in the Federal Register reflect the Leased
Commercial Access rules that have remained in effect continuously and
are currently still in effect.
[[Page 20256]]
DATES: Effective April 4, 2013.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Katie Costello, [email protected] of the Media
Bureau, Policy Division, (202) 418-2233.
SUPPLEMENTARY INFORMATION: We published a final rule document at 73 FR
10675, February 28, 2008, revising rules sections 76.970 and 76.975,
and adding sections 76.972 and 76.978, concerning Leased Commercial
Access. These rules contained information collections that required
approval by OMB which was denied. The entire Order [FCC 07-208] was
judicially stayed pending judicial review by the United States Court of
Appeals for the Sixth Circuit in United Church of Christ v. FCC, 6th
Cir. No. 08-3245 (and consolidated cases) (order issued May 22, 2008).
OMB disapproved the requested revisions to the rules that were subject
to OMB approval by Notice of Action dated July 9, 2008. Subsequently
the Court issued an order granting an FCC motion to hold the judicial
review in abeyance pending further action by the FCC in response to
OMB's disapproval. The Federal court stay of the Order and the hold on
further judicial review remain in effect. Our previous rules 76.970 and
76.975 remain in effect and are re-published herein. New sections
76.972 and 76.978 are removed entirely. Accordingly, the following
correcting amendments are made to restore the rules that are still in
effect. The OMB Control Number for this information collection is 3060-
0568.
List of Subjects in 47 CFR Part 76
Administrative practice and procedure and Cable television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Accordingly, 47 CFR part 76 is corrected by making the following
technical amendments:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
1. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 503, 521, 522,
531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549,
552, 554, 556, 558, 560, 561, 571, 572 and 573.
0
2. Revise Sec. 76.970 to read as follows:
Sec. 76.970 Commercial leased access rates.
(a) Cable operators shall designate channel capacity for commercial
use by persons unaffiliated with the operator in accordance with the
requirement of 47 U.S.C. 532. For purposes of 47 U.S.C. 532(b)(1)(A)
and (B), only those channels that must be carried pursuant to 47 U.S.C.
534 and 535 qualify as channels that are required for use by Federal
law or regulation. For cable systems with 100 or fewer channels,
channels that cannot be used due to technical and safety regulations of
the Federal Government (e.g., aeronautical channels) shall be excluded
when calculating the set-aside requirement.
(b) In determining whether an entity is an ``affiliate'' for
purposes of commercial leased access, entities are affiliated if either
entity has an attributable interest in the other or if a third party
has an attributable interest in both entities.
(c) Attributable interest shall be defined by reference to the
criteria set forth in Notes 1-5 to Sec. 76.501 provided, however,
that:
(1) The limited partner and LLC/LLP/RLLP insulation provisions of
Note 2(f) shall not apply; and;
(2) The provisions of Note 2(a) regarding five (5) percent
interests shall include all voting or nonvoting stock or limited
partnership equity interests of five (5) percent or more.
(d) The maximum commercial leased access rate that a cable operator
may charge for full-time channel placement on a tier exceeding a
subscriber penetration of 50 percent is the average implicit fee for
full-time channel placement on all such tier(s).
(e) The average implicit fee identified in paragraph (c) of this
section for a full-time channel on a tier with a subscriber penetration
over 50 percent shall be calculated by first calculating the total
amount the operator receives in subscriber revenue per month for the
programming on all such tier(s), and then subtracting the total amount
it pays in programming costs per month for such tier(s) (the ``total
implicit fee calculation''). A weighting scheme that accounts for
differences in the number of subscribers and channels on all such
tier(s) must be used to determine how much of the total implicit fee
calculation will be recovered from any particular tier. The weighting
scheme is determined in two steps. First, the number of subscribers is
multiplied by the number of channels (the result is the number of
``subscriber-channels'') on each tier with subscriber penetration over
50 percent. For instance, a tier with 10 channels and 1,000 subscribers
would have a total of 10,000 subscriber-channels. Second, the
subscriber-channels on each of these tiers is divided by the total
subscriber-channels on all such tiers. Given the percent of subscriber-
channels for the particular tier, the implicit fee for the tier is
computed by multiplying the subscriber-channel percentage for the tier
by the total implicit fee calculation. Finally, to calculate the
average implicit fee per channel, the implicit fee for the tier must be
divided by the corresponding number of channels on the tier. The final
result is the maximum rate per month that the operator may charge the
leased access programmer for a full-time channel on that particular
tier. The average implicit fee shall be calculated by using all
channels carried on any tier exceeding 50 percent subscriber
penetration (including channels devoted to affiliated programming,
must-carry and public, educational and government access channels). In
the event of an agreement to lease capacity on a tier with less than 50
percent penetration, the average implicit fee should be determined on
the basis of subscriber revenues and programming costs for that tier
alone. The license fees for affiliated channels used in determining the
average implicit fee shall reflect the prevailing company prices
offered in the marketplace to third parties. If a prevailing company
price does not exist, the license fee for that programming shall be
priced at the programmer's cost or the fair market value, whichever is
lower. The average implicit fee shall be based on contracts in effect
in the previous calendar year. The implicit fee for a contracted
service may not include fees, stated or implied, for services other
than the provision of channel capacity (e.g., billing and collection,
marketing, or studio services).
(f) The maximum commercial leased access rate that a cable operator
may charge for full-time channel placement as an a la carte service is
the highest implicit fee on an aggregate basis for full-time channel
placement as an a la carte service.
(g) The highest implicit fee on an aggregate basis for full-time
channel placement as an a la carte service shall be calculated by first
determining the total amount received by the operator in subscriber
revenue per month for each non-leased access a la carte channel on its
system (including affiliated a la carte channels) and deducting the
total amount paid by the operator in programming costs (including
license and copyright fees) per month for programming on such
individual channels. This calculation will result in implicit fees
determined on an aggregate
[[Page 20257]]
basis, and the highest of these implicit fees shall be the maximum rate
per month that the operator may charge the leased access programmer for
placement as a full-time a la carte channel. The license fees for
affiliated channels used in determining the highest implicit fee shall
reflect the prevailing company prices offered in the marketplace to
third parties. If a prevailing company price does not exist, the
license fee for that programming shall be priced at the programmer's
cost or the fair market value, whichever is lower. The highest implicit
fee shall be based on contracts in effect in the previous calendar
year. The implicit fee for a contracted service may not include fees,
stated or implied, for services other than the provision of channel
capacity (e.g., billing and collection, marketing, or studio services).
Any subscriber revenue received by a cable operator for an a la carte
leased access service shall be passed through to the leased access
programmer.
(h) The maximum commercial leased access rate that a cable operator
may charge for part-time channel placement shall be determined by
either prorating the maximum full-time rate uniformly, or by developing
a schedule of and applying different rates for different times of the
day, provided that the total of the rates for a 24-hour period does not
exceed the maximum daily leased access rate.
(i)(1) Cable system operators shall provide prospective leased
access programmers with the following information within 15 calendar
days of the date on which a request for leased access information is
made:
(i) How much of the operator's leased access set-aside capacity is
available;
(ii) A complete schedule of the operator's full-time and part-time
leased access rates;
(iii) Rates associated with technical and studio costs; and
(iv) If specifically requested, a sample leased access contract.
(2) Operators of systems subject to small system relief shall
provide the information required in paragraph (h)(1) of this section
within 30 calendar days of a bona fide request from a prospective
leased access programmer. For these purposes, systems subject to small
system relief are systems that either:
(i) Qualify as small systems under Sec. 76.901(c) and are owned by
a small cable company as defined under Sec. 76.901(e); or
(ii) Have been granted special relief.
(3) Bona fide requests, as used in this section, are defined as
requests from potential leased access programmers that have provided
the following information:
(i) The desired length of a contract term;
(ii) The time slot desired;
(iii) The anticipated commencement date for carriage; and
(iv) The nature of the programming.
(4) All requests for leased access must be made in writing and must
specify the date on which the request was sent to the operator.
(5) Operators shall maintain, for Commission inspection, sufficient
supporting documentation to justify the scheduled rates, including
supporting contracts, calculations of the implicit fees, and
justifications for all adjustments.
(j) Cable operators are permitted to negotiate rates below the
maximum rates permitted in paragraphs (c) through (g) of this section.
Sec. 76.972 [Removed]
0
3. Remove Sec. 76.972.
0
4. Revise Sec. 76.975 to read as follows:
Sec. 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, Sec. Sec.
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 Sec. 76.901(c) and are owned by
a small cable company as defined under Sec. 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.
[[Page 20258]]
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 Sec. Sec.
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.
Sec. 76.978 [Removed]
0
5. Remove Sec. 76.978.
[FR Doc. 2013-03940 Filed 4-3-13; 8:45 am]
BILLING CODE 6712-01-P