[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31561]
[[Page Unknown]]
[Federal Register: December 23, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MM Docket No. 92-265; FCC 94-287]
Cable Television Act of 1992--Program Distribution and Carriage
Agreements
AGENCY: Federal Communications Commission.
ACTION: Final Rule; petitions for reconsideration.
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SUMMARY: In this Memorandum Opinion and Order (MO&O) the Commission
addresses nine (9) petitions for reconsideration of the rules adopted
in the First Report and Order in MM Docket 92-265 (First R&O),
implementing section 19 of the Cable Television Consumer Protection and
Competition Act of 1992 (``1992 Cable Act''). Specifically, we amend,
affirm or clarify certain aspects of the implementing rules in order to
ensure that competitors to cable distributors have fair and non-
discriminatory access to video programming.
EFFECTIVE DATE: January 23, 1995.
FOR FURTHER INFORMATION CONTACT: Nancy Markowitz or Maura Cantrill,
Cable Services Bureau, (202) 416-0800.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Memorandum Opinion and Order adopted November 10, 1994, and released
December 9, 1994. A synopsis of the First Report and Order (First R&O)
that was reconsidered in the MO&O may be found at 58 FR 27658 (May 11,
1993). This action will not add or decrease the public reporting
burden. The full text of this Commission decision is available for
inspection and copying during regular business hours in the FCC
Reference Center (room 239), 1919 M Street, NW., Washington, DC. The
complete text of this decision may also be purchased from the
Commission's duplication contractor, International Transcription
Service, (202) 857-3800, 2100 M Street, NW., Washington, DC 20037.
Synopsis of Memorandum Opinion and Order
I. Introduction
1. By this action, the Commission amends, clarifies or affirms
certain aspects of its rule implementing the program access provisions
on the Cable Television Consumer Protection and Competition Act of 1992
(1992 Cable Act).\1\ This action is taken in response to nine (9)
petitions for reconsideration of the rules adopted in the First Report
and Order in MM Docket 92-265 (First R&O), 8 FCC Rcd 3359 (1993); 58 FR
27658 (May 11, 1993). This MO&O, disposes of all but one\2\ of the
petitions for reconsideration.
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\1\Pub. L. No. 102-385, 106 Stat. 1460 section 19 (1992),
amending Communications Act of 1934, section 208.
\2\The National Rural Telecommunications Cooperative's (NRTC)
petition for reconsideration of the Commission's rule implementing
section 628(c)(2)(C) of the Communications Act will be addressed in
a separate MO&O.
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2. The 1992 Cable Act amended the Communications Act of 1934, in
part, by adding among other things, new section 628. Section 628 is
intended to foster the development of competition to traditional cable
systems by governing the access by competing multichannel video
programming distributors (MVPDs) to cable programming services. Section
628(b) prohibits ``unfair methods of competition or unfair or deceptive
acts or practices, the purpose or effect of which is to hinder
significantly or to prevent'' competing distributors from providing
programming to their customers. Section 628(c) instructs the Commission
to adopt regulations to specify particular conduct that is prohibited
by subsection (b). Pursuant to that mandate, on April 1, 1993 the
Commission adopted its First Report and Order, which set forth the
Commission's program access rules and procedures to implement these
statutory provisions.
II. Damages
3. Section 628(e) grants the Commission the authority, upon
completion of the adjudication of a program access complaint, ``to
order appropriate remedies, including, if necessary, the power to
establish prices, terms, and conditions of sale of programming.'' 47
U.S.C. 548(e). In the First R&O, we stated that we did not believe that
the 1992 Cable Act provided us with the authority to assess damages
against a cable operator or programming vendor. Petitioners claim that
the statute provides the Commission with broad authority to order
appropriate remedies and that damages are appropriate remedies.
Petitioners also argue that damages are a necessary incentive to comply
with the program access provisions. In response to the petitions, we
have reexamined the statute and the legislative history and we now
conclude that section 628(e) provides the Commission with broad
authority to order appropriate remedies, including damages. While we
have determined that the statute's grant of power to the Commission to
award appropriate remedies is broad enough to include damages, we are
not persuaded that creating such a remedy for violations of the program
access rules is necessary at this time. We believe that the sanctions
available to the Commission, together with the program access complaint
process are sufficient to deter entities from violating the program
access rules. If, contrary to our expectations, it is brought to our
attention that our current processes are not working, we will consider
revisiting this issue.
III. Attribution Issues
4. The program access provisions in the 1992 Cable Act apply to
cable operators, satellite cable programming vendors in which a cable
operator has an attributable interest, and satellite broadcast
programming vendors. 47 U.S.C. 548(b), (c)(2). In assessing vertical
integration, the Commission stated in the First R&O that a cable
operator would have an attributable interest in a programming vendor if
the cable operator holds five percent or more of the stock of the
programming vendor, whether voting or non-voting. In the interest of
clarity and certainty, the Commission declined to adopt a behavioral
test for assessing attributable interests. The Commission also declined
to adopt an exemption based on a programming vendor's de minimis
vertical interests, noting that the data in the record was insufficient
to support a point at which a programming vendor's vertical interests
no longer provide the incentives to favor their affiliated cable
operators. First R&O, 8 FCC Rcd at 3371 n. 19.
5. Petitioners support their renewed request for a de minimis
exemption to the attribution standard with an economic study which
analyzes the profitability of discriminatory practices in terms of the
potential for such discrimination successfully to induce customers to
switch to the vertically integrated firm's cable system. The study
concludes that there are no economic incentives for anticompetitive
behavior by vertically integrated firms with small (under 5%) national
subscriber levels. The Commission finds that the analysis in the
economic study does not provide a sufficient basis for reversing our
previous denial of this exemption. Moreover, in passing the program
access provisions of the 1992 Cable Act, Congress was concerned with
the ability of competing distributors to obtain access to programming
and there is no indication that Congress intended the Commission to
carve out various across-the-board exemptions to the program access
rules.
6. Petitioners also sought exemptions to the attribution standard
for minority-owned cable programming vendors, educational or
informational programming, and marketing or technological experiments.
The Commission has determined not to adopt a more flexible attribution
rule for minority-owned programming vendors or the single majority
shareholder provisions of the broadcast attribution standard. Among
other reasons, the Commission does not believe that the adoption of
such standards will further the goal of encouraging minority ownership
or promote the public interest goal of programming diversity. Instead,
we believe that it has the potential to affect the consistent
application of the vertical integration standard and the program access
rules. With respect to educational and informational type programming,
the Commission recognizes Congress' intent to promote such programming;
however, we do not believe that altering the attribution standard is
the most appropriate way of effectuating this policy. Moreover, we
believe that altering the standard does not further diversity goals.
Finally, the Commission recognizes the necessity for programmers to
conduct marketing and technology experiments and demonstrations,
however, to adopt the requested exemption to the rules would raise the
potential for abuse and circumvention of the rules. In any event, we
believe that the program access rules already accommodate the need for
experiments and demonstrations, and a general exemption is unnecessary.
7. Petitioners challenge the Commission's determination in the
First R&O rejecting the imposition of a showing of vertical integration
in the specific market at issue as an element of a claim under section
628(c). We affirm our prior determination, noting that Congress was
concerned with industry-wide influences that can occur even in the
absence of a vertical relationship in a complainant's specific market.
IV. Competitive Harm or Hindrance to Access
8. Section 628(b) prohibits conduct ``the purpose or effect of
which is to hinder significantly or to prevent'' any MVPD from
distributing programming to subscribers or consumers. 47 U.S.C. 548(b).
Section 628(c) requires the Commission to adopt regulations proscribing
particular specified conduct. In the First R&O, the Commission
determined that a complainant alleging a violation of section 628(b)
must demonstrate that its ability to distribute programming to its
customers has been hampered by the conduct. 8 FCC Rcd at 3374. However,
with respect to complaints alleging violations of the rules adopted
pursuant to Section 628(c), the Commission determined that the
complainant need not demonstrate either specific or generalized harm to
competition, rather the harm is implicit in the practices specified in
the subsections of 628(c). Id. at 3377. In response to petitions to
reconsider this determination, we affirm that there is no requirement
to show harm in a complaint alleging violations of conduct prohibited
by the rules adopted pursuant to Section 628(c).
V. Confidentiality
9. In the First R&O, the Commission established procedures for the
adjudication of program access complaints, including a requirement that
before filing a complaint the aggrieved MVPD must notify the potential
defendant of his intent to file the complaint based on conduct
allegedly in violation of the rules and must wait at least ten days
after notification before filing the complaint. 47 CFR 76.1003(a). In
addition, within its program access rules, the Commission provided
confidentiality protection for proprietary information submitted or
generated in the course of adjudicating a complaint. 47 CFR 76.1003(h).
The Commission's rule allows a party to designate materials as
proprietary ``if the party believes in good faith that the materials
fall within an exemption to disclosure contained in the Freedom of
Information Act (FOIA), 5 U.S.C. 552(b).'' 47 CFR 76.1003(h)(1). The
rule also designates persons to whom the proprietary material may be
disclosed only for use in the defense or prosecution of the complaint
action.\3\
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\3\47 CFR 76.1003(h)(2) provides that: Materials marked as
proprietary may be disclosed solely to the following persons, only
for use in prosecuting or defending a party to the complaint action,
and only to the extent necessary to assist in the prosecution or
defense of the case:
(i) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(ii) Officers or employees of the opposing party who are named
by the opposing party as being directly involved in the prosecution
or defense of the case;
(iii) Consultants or expert witnesses retained by the parties;
(iv) The Commission and its staff; and
(v) Court reporters and stenographers in accordance with the
terms and conditions of this section.
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10. In response to petitions regarding the exchange of proprietary
information at the pre-complaint notification stage, and the sensitive
nature of certain proprietary information, we amend our rules relating
to confidential protection of proprietary information. The Commission
extends the confidentiality protection for proprietary information
contained in Secs. 76.1003 (h) and (i) to proprietary information that
is exchanged among parties during the pre-complaint negotiation period
required under Sec. 76.1003(a). In addition, the Commission believes
that there may be situations, due to the competitively sensitive nature
of some information, where it is necessary to restrict access to a
party's proprietary information to a smaller group of individuals than
that provided under the current rules. Therefore, the Commission amends
Sec. 76.1003(h)(3) to provide that the Commission will entertain,
subject to a proper showing, a party's request to restrict further
access to proprietary information as specified by the party. The
opposing party will have an opportunity to respond to such requests.
VI. Cost Justification
11. Section 628(c)(2)(B) requires the Commission to promulgate
regulations that prohibit a vertically integrated satellite cable
programming vendor or a satellite broadcast programming vendor from
discriminating in the price, terms and conditions in the sale and
delivery of satellite cable or satellite broadcast programming.
However, under section 628(c)(2)(B)(ii), a vertically integrated
satellite cable programming vendor or a satellite broadcast programming
vendor may establish different prices ``to take into account
differences in the cost of creation, sale, delivery, or transmission of
* * * programming.'' 47 U.S.C. 548(c)(2)(B)(ii). In the First R&O, we
adopted definitions and guidelines for permitted cost justifications
for pricing differentials, including cost differences at the wholesale
level among distributors. In connection with pricing based on
differences in wholesale costs, we noted that the record supported the
Notice's preliminary conclusion that delivery of programming to home
satellite dish distributors may have a higher cost than service to
other distributors using different delivery systems such as cable
operators. First R&O, 8 FCC Rcd at 3406. In addition, we assessed
whether a vendor may take into account cost differences incurred by
distributors in providing service to subscribers, and concluded that
this would be contrary to the purposes of the Act as it could
artificially raise the retail price of programming and discourage the
development of low-cost technologies. First R&O, 8 FCC Rcd at 3406.
12. Petitioners contend that the Commission should allow a
programming vendor to consider the differences in distributors' costs,
e.g. costs at the retail level. The Commission reaffirms its prior
determination that a programming vendor may not take into account
distributors' cost differences at the retail level. In response to a
petition claiming that the Commission pre-judged questions regarding
possible cost justifications for pricing differentials in sales to home
satellite dish distributors, we state that we have not pre-judged the
costs that may be involved in supplying programming to HSD distributors
in any particular situation, but merely recognized that cost
differentials can exist and may be used to justify a price
differential.
VII. Effective Date/Application of the Rules
13. In First R&O, the Commission determined that the rules adopted
under Section 628 apply prospectively to all existing contracts,
whether the contracts were executed before or after the effective date
of the rules. The Commission based its determination on its belief that
by expressly grandfathering only a narrow class of contracts in Section
628(h), Congress did not intend to exempt generally all existing
contracts from the scope of the anti-discrimination requirements of
section 628 and on the fact that the long term nature of many
programming agreements would delay for several years the uniform
implementation of the anti-discrimination rules. First R&O, 8 FCC Rcd
at 3415. To avoid disruption to the market and to the entities
involved, the Commission afforded the parties until November 15, 1993
(120 days after the effective date of the new rules) to bring their
agreements into compliance. Id.; 47 CFR 76.1002(f). Petitioners contend
that the rules should not apply to existing contracts. The Commission
reaffirms its determination in the First R&O that only the narrow class
of contracts, grandfathered by section 628(h) are exempt from the
Commission's rules.\4\
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\4\Three additional petitions were filed that relate to the
effective date of the program access rules. The issues raised in
those petitions are now moot. Specifically, a petition was filed
contending that the program access rules against exclusive contracts
should be deemed effective immediately upon the enactment of the
1992 Cable Act (December 4, 1992) or on the effective date of the
Commission's program access rules (July 16, 1993) in contrast to
delaying the effective date of the rules until the end of the 120
day renegotiation period that was provided for under the rules.
Because the rules are now effective, the issue raised is moot.
Another petition was filed requesting the Commission to specify a
specific date before which any party intending to enforce an
existing exclusive programming agreement must file an exclusivity
petition. Petitioner contended that the 120-day renegotiation period
before the program access rules became effective applies only to
discrimination barred by the rules and not exclusive agreements.
Because all existing contracts must be in compliance with the rules,
this request also is moot. Finally, petitions were filed contending
that distributors seeking to revise existing contracts should be
required to demonstrate that the current contracts terms have the
purpose or effect to harm the distributor's ability to compete.
Petitioners contended that under this proposal only the contracts
that create a potential for harm will need to be reformed, while
other agreements can be brought into strict compliance with the
rules as they come up for renewal, thereby avoiding administrative
upheavals to programmers. The November 15, 1993 deadline by which
all contracts were required to come into compliance with the Act and
our rules has now passed and thus these issues are moot.
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VIII. Subdistribution Agreements
14. Subdistribution agreements are sales agreements between a
programming vendor and, in most instances, a franchised cable operator,
through which the franchised cable operator sells the vendor's
programming to competing MVPDs. In the First R&O, the Commission
expressed its concern that in areas served and unserved by a cable
operator a distributor's access to programming may be impaired by the
use of subdistribution agreements. The Commission's rule 76.1002(c)(3)
limited subdistribution agreements by prohibiting all subdistribution
agreements in unserved areas and placing limitations on such agreements
in served areas. These limitations prohibit the cable operator who
subdistributes a vertically integrated programming service from
requiring a competing MVPD to purchase additional or unrelated
programming as a condition of such subdistribution; to provide access
to private property in exchange for access to programming; or from
charging a competing MVPD more for the programming than the programming
vendor itself would be permitted to charge. The rule further requires
any cable operator acting as a subdistributor to respond to a request
for access to the programming by a competing MVPD within fifteen (15)
days and requires that if its request is denied, the competing MVPD be
permitted to negotiate directly with the satellite cable programming
vendor or satellite broadcast programming vendor. 47 CFR
76.1002(c)(3)(iii).
15. Petitioner requested the Commission to clarify the rules on
subdistribution agreements so that the same rules apply to served and
unserved areas. We have determined that there is no need to prohibit
all subdistribution arrangements in unserved areas, as long as no cable
operator has exclusive subdistribution rights in unserved areas and,
thus, an MVPD would have a choice of outlets for its programming needs.
The requirement in Sec. 76.1002(c)(3)(iii) to allow direct negotiations
with the programmer is intended to make all subdistribution agreements
in served areas nonexclusive. Therefore, the Commission amends its
rules to clarify that nonexclusive subdistribution arrangements both in
served and unserved areas are treated consistently and subject to the
protection provided by the requirements of Sec. 76.1002(c)(3)(iii).
IX. De minimis Price Differentials and Similarly Situated Distributors
16. In the First R&O, the Commission determined that in price
discrimination cases, in order to conserve administrative resources and
avoid protracted adjudication solely to resolve accounting issues, we
will not require a vendor to justify the magnitude of a price
differential between a complainant and its competitor that is equal to
or less than five cents per subscriber or five percent, whichever is
larger, so long as the vendor provides sufficient reasons, justified by
the statutory factors, for a difference in price. First R&O, 8 FCC Rcd
at 3420. The Commission further determined that, although an MVPD can
bring a discrimination claim merely by demonstrating that another MVPD
with which it does or proposes to compete has received more favorable
terms from the vertically integrated programming vendor, the competing
MVPD identified by the complainant may not be a proper point of
comparison. Id. at 3401. Therefore, the Commission determined that, in
justifying the price, terms and conditions of a contract, a programming
vendor may demonstrate that the proper comparison is between the
complainant and a similarly-situated distributor, rather than the
complainant and the competitor named in the complaint. Id. at 3401-02.
17. Petitioner sought, and we grant the request, for clarification
that under Sec. 76.1003(d), once a programmer has persuaded the
Commission that a ``similarly-situated'' competitor is the proper focus
for comparison, the same rationale would apply with respect to making a
determination as to whether the price differential is de minimis. That
is, the price charged or offered to the complainant will be compared to
the price charged to the similarly-situated distributor.
X. Buying Groups
18. Section 628(c)(2)(B) allows a programming vender to justify
differences in price, terms or conditions of sale of programming on
factors such as economies of scale or other efficiencies to the
programming vendor due to the number of subscribers served by the
distributor. In the First R&O, the Commission stated that in order to
benefit from unitary treatment for purposes of subscriber volume, a
buying group should offer advantages similar to a single distributor,
including assurance of satisfactory financial performance. 8 FCC Rcd at
3411. The Commission adopted a definition of a buying group requiring
the group to be financially liable for any fees due under a programming
contract which it signs or whose members agree to joint and several
liability. Id. at 3412; 47 CFR 76. 1000(c).
19. Petitioners claimed that the definition of ``buying group'' in
the rules offers little or no assurance that such buying group is
capable of satisfying its financial obligations because it enable
members of the group to shift all liability to the corporate entity
acting as the buying group, without requiring each member to agree to
joint and several liability. While we affirm the definition of buying
group in Sec. 76.1000(c) as adopted, to address the concerns raised by
the petitioning parties, we clarify that, in those situations where a
seller has reasonable doubts about the financial stability and
responsibility of the buying group, it may insist on appropriate
assurances of creditworthiness. Buying groups could satisfy this burden
through various measures, such as requiring each individual member of
the group to guarantee to the group its pro rata share of the fees due
under a programming contract.
XI. Competing Distributors
20. Section 628(c)(2)(B) requires the Commission to adopt
regulations which prohibit discrimination in the prices, terms, and
conditions of sale or delivery of programming. In the First R&O, the
Commission determined that discrimination exists when the same
programming is sold to a competing distributor at a different price
without justification by one of the factors enumerated in section
628(c)(2)(B). To establish that another distributor is a competitor,
the Commission requires some overlap in actual or proposed service
area, First R&O, 8 FCC Rcd at 3400. The Commission received petitions
for reconsideration with respect to the definition of competing
distributor, requesting that the Commission require cable operators
bringing complaints of discrimination to show a substantial (at least
50%) overlap with the service area of a competing MVPD. The Commission
does not find that a change in the definition of a competing
distributor is necessary or justified.
XII. Clarifying the First R&O
21. On our own motion, we take the opportunity in this Order to
emphasize certain procedural requirements under the program access
rules and clarify the discussion of those requirements in the First
Report and Order.\5\ The Commission initially notes that the actual
rules that set forth the procedural requirements for program access
complaints are clear that they apply both to section 628(b) and section
628(c) cases. 47 CFR 76.1003(a)-(s). However, these procedural
requirements are not consistently discussed throughout the text of the
First Report and Order. The Commission emphasizes here that these
procedural requirements are applicable to every type of program access
complaint.
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\5\See 47 CFR 1.108.
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22. For example, the First R&O discusses the requirement set forth
in the rules that prior to filing a complaint, the complainant must
notify the opposing party of its intention to file a complaint.\6\ This
pre-complaint notice provision is applicable to all program access
complaints. Similarly, the First R&O discusses the one year ``statute
of limitations'' within which to bring complaints.\7\ This one year
limit is applicable to all types of program access complaints. In
addition, the First R&O discusses the contents of program access
complaints and states that they must specify the relief requested.\8\
This requirement is applicable to all program access complaints.
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\6\See First R&O, 8 FCC Rcd at 3416, 3422, 3424. In addition,
the general Complaint and Enforcement Procedures contain a notice
requirement provision. Id. at 3389.
\7\Id. at 3416, 3422, 3425. There also is a one year statute of
limitations set out in the general Complaint and Enforcement
Procedures. Id. at 3389.
\8\Id. at 3389, 3422, 3425.
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XIII. Ordering Clauses
23. Accordingly, it is ordered, that the Petitions for
Reconsideration are granted in part and denied in part, as indicated
above and to the extent that Petitions raise issues concerning
exclusive contracts with non-cable distributors, they will be disposed
of in future orders.
24. It is further ordered that part 76 of the Commission's rules,
47 U.S.C. part 76, is amended, as set forth below.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
LaVera F. Marshall,
Acting Secretary.
Amendatory Text
Part 76 of title 47 of the Code of Federal Regulations is amended
as follows:
Part 76--Cable Television Service
1. The authority citation for part 76 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 1101; 47
U.S.C. secs. 152, 153, 154, 301, 303, 307, 308, 309, 532, 533, 535,
542, 543, 552 as amended, 106 Stat. 1460.
2. Section 76.1003 is amended by revising paragraph (h) to read as
follows:
Sec. 76.1003 Adjudicatory proceedings.
* * * * *
(h) Confidentiality of proprietary information. (1) Any materials
generated or provided by a party in connection with the pre-complaint
notification procedure required under Sec. 76.1003(a) and in the course
of adjudicating a program access complaint under this provision may be
designated as proprietary by that party if the party believes in good
faith that the materials fall within an exemption to disclosure
contained in the Freedom of Information Act (FOIA), 5 U.S.C. 552(b).
Any party asserting confidentiality for such materials shall so
indicate by clearly marking each page, or portion thereof, for which a
proprietary designation is claimed. If a proprietary designation is
challenged, the party claiming confidentiality will have the burden of
demonstrating, by a preponderance of the evidence, that the material
designated as proprietary falls under the standards for nondisclosure
enunciated in the FOIA.
(2) Except as provided in paragraph (h)(3) of this section,
materials marked as proprietary may be disclosed solely to the
following persons, only for use in prosecuting or defending a party to
the complaint action, and only to the extent necessary to assist in the
prosecution or defense of the case:
(i) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(ii) Officers or employees of the opposing party who are named by
the opposing party as being directly involved in the prosecution or
defense of the case;
(iii) Consultants or expert witnesses retained by the parties;
(iv) The Commission and its staff; and
(v) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(3) The Commission will entertain, subject to a proper showing, a
party's request to further restrict access to proprietary information
as specified by the party. The opposing party will have an opportunity
to respond to such requests.
(4) The persons designated in paragraphs (h) (2) and (3) of this
section shall not disclose information designated as proprietary to any
person who is not authorized under this section to receive such
information, and shall not use the information in any activity or
function other than the prosecution or defense in the case before the
Commission. Each individual who is provided access to the information
by the opposing party shall sign a notarized statement affirmatively
stating, or shall certify under penalty of perjury, that the individual
has personally reviewed the Commission's rules and understands the
limitations they impose on the signing party.
(5) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraphs (h) (2) or (3) of
this section. Each party shall maintain a log recording the number of
copies made of all proprietary material and the persons to whom the
copies have been provided.
(6) Upon termination of the complaint proceeding, including all
appeals and petitions, all originals and reproductions of any
proprietary materials, along with the log recording persons who
received copies of such materials, shall be provided to the producing
party. In addition, upon final termination of the complaint proceeding,
any notes or other work product derived in whole or in part from the
proprietary materials of an opposing or third party shall be destroyed.
* * * * *
3. Section 76.1002 is amended by removing paragraph (c)(3)(i) and
redesignating (c)(3)(ii) and (c)(3)(iii) as paragraphs (c)(3)(i) and
(c)(3)(ii), respectively, and revising them to read as follows:
Sec. 76.1002 Specific unfair practices prohibited.
* * * * *
(c) Exclusive contracts and other practices and arrangements. * * *
(3) Specific arrangements: subdistribution agreements.--(i)
Unserved and served areas. No cable operator shall enter into any
subdistribution agreement or arrangement for satellite cable
programming or satellite broadcast programming with a satellite cable
programming vendor in which a cable operator has an attributable
interest or a satellite broadcast programming vendor in which a cable
operator has an attributable interest, with respect to areas served or
unserved by a cable operator, unless such agreement or arrangement
complies with the limitations set forth in paragraph (c)(3)(ii) of this
section.
(ii) Limitations on subdistribution agreements. No cable operator
engaged in subdistribution of satellite cable programming or satellite
broadcast programming may require a competing multichannel video
programming distributor to:
(A) Purchase additional or unrelated programming as a condition of
such subdistribution; or
(B) Provide access to private property in exchange for access to
programming. In addition, a subdistributor may not charge a competing
multichannel video programming distributor more for said programming
than the satellite cable programming vendor or satellite broadcast
programming vendor itself would be permitted to charge. Any cable
operator acting as a subdistributor of satellite cable programming or
satellite broadcast programming must respond to a request for access to
such programming by a competing multichannel video programming
distributor within fifteen (15) days of the request. If the request is
denied, the competing multichannel video programming distributor must
be permitted to negotiate directly with the satellite cable programming
vendor or satellite broadcast programming vendor.
* * * * *
[FR Doc. 94-31561 Filed 12-22-94; 8:45 am]
BILLING CODE 6712-01-M