[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10496-10499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6146]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[CS Docket No. 96-46; FCC 96-99]
Open Video Systems
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Notice of Proposed Rulemaking (``NPRM'') requests comment
on issues concerning the implementation of the open video system
provisions of the Telecommunications Act of 1996. The NPRM will assist
the Commission in devising regulations in this area. The NPRM will
provide interested parties an opportunity to submit comments that will
provide the Commission with a sufficient record on which to base
ultimate regulations.
DATES: Interested parties may file comments on or before April 1, 1996
and reply comments on or before April 11, 1996. Written comments by the
public on the proposed and/or modified information collections are due
on or before April 1, 1996. Written comments must be submitted by the
Office of Management and Budget (OMB) on the proposed and/or modified
information collections on or before May 13, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, D.C. 20554, with a copy to Larry Walke of the Cables
Services Bureau, 2033 M Street, N.W., Room 408A, Washington, D.C.
20554. Parties should also file one copy of any documents filed in this
docket with the Commission's copy contractor, International
Transcription Services, Inc., 2100 M Street, N.W., Suite 140,
Washington, D.C. 20037. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center, 1919 M Street, N.W., Room 239, Washington, D.C.
20554.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington, D.C. 20054, or via the Internet
to [email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725-17th Street, N.W., Washington, D.C. 20503 or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Rick Chessen or Larry Walke, Cable
Services Bureau, (202) 416-0800. For additional information concerning
the information collections contained herein, contact Dorothy Conway at
202-418-0217, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's NPRM
in CS Docket No. 96-46, FCC No. 96-99, adopted March 11, 1996 and
released March 11, 1996. The full text of this decision is available
for inspection and copying during normal business hours in the FCC
Reference Center (room 239), 1919 M Street, NW., Washington, D.C.
20554, and may be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 1919 M Street,
NW., Washington, D.C. 20554.
Paperwork, Reduction Act
This NPRM contains proposed or modified information collections
subject to the Paperwork Reduction Act of 1995 (PRA). It has been
submitted to the OMB for review under Section 3507(d) of the PRA. OMB,
the general public, and other Federal agencies are invited to comment
on the proposed or modified information collections contained in this
proceeding.
OMB Approval Number: None.
Title: Open Video System Operator Notification of Video Programming
Providers.
Type of Review: New Third Party Disclosure.
Respondents: 20. This number is our preliminary estimation of open
video system operators that may exist in the next year.
Number of Responses: 40. We anticipate that each open video system
operator may make two notifications, annually.
Estimated Time Per Response: 8 hours per response.
Total Annual Burden: 320 hours. This is the estimated total annual
burden though this burden will be determined by comments received.
Estimated costs per Respondent: At this stage in the rulemaking
process, it is too preliminary to determine the specific requirements
for the notifications to be made by open video system operators. This
will be determined by comments received. It is possible that
notifications may be required to be made in newspapers or trade
journals. Should this be required, the Commission estimates publication
costs of $1000 per notification. Estimated annual costs per respondent
are therefore $2000 (2 notifications @ $1000 each).
Needs and Uses: This notification will inform video programming
providers that the open video system operator intends to establish an
open video system. This will permit video programming providers to
assess their interest in seeking carriage on such systems.
I. Notice of Proposed Rulemaking
The 1996 Act repeals the Commission's ``video dialtone'' rules and
regulations, which were established to permit telephone companies to
participate in the video marketplace in a manner that was consistent
with the telephone-cable cross-ownership ban. The 1996 Act also repeals
the telephone-cable cross ownership rules imposed by the 1984 Cable
Act, which prohibited telephone companies from providing video
programming directly to subscribers in their telephone service
[[Page 10497]]
area. The general regulatory treatment for video programming services
provided by telephone companies is now set forth in Section 302 of the
1996 Act, which establishes new Sections 651-653 of Title VI of the
Communications Act of 1934 (``Communications Act'').
2. The 1996 Act has adopted a different regulatory approach, and
establishes various options for telephone companies to enter video
programming markets, one of which is providing cable service over an
``open video system'' under new Section 653 of the Communications Act.
Open video systems will be a new service offered by telephone companies
that will contain certain elements of both traditional cable service
and common carriage. In this NPRM, we seek comment on how the
Commission should implement the open video system provisions of the
1996 Act in a way that will promote Congress' goals of flexible market
entry, enhanced competition, streamlined regulation, diversity of
programming choices, investment in infrastructure and technology, and
increased consumer choice. In setting forth questions in the NPRM, we
do not mean to imply that we will find it necessary to adopt rules
addressing each of the issues raised. Rather, these questions are
designed to develop a record that will enable us to determine what
rules, if any, the Commission should adopt.
3. Generally, Section 653 provides that, if a telephone company
certifies that it complies with certain non-discrimination and other
requirements established by the Commission, it's open video system will
not be subject to regulation under Title II and will be entitled to
reduced regulation under Title VI. The 1996 Act provides that the
Commission must act upon a certification request within ten days of
receipt. The 1996 Act also states that the Commission has the authority
to resolve disputes regarding open video systems, but must do so within
180 days. The 1996 Act states that certain Title VI provisions shall
not apply to open video systems, including, leased access obligations,
franchise requirements and fees, cable rate regulation, and consumer
protection and customer service rules.
4. This NPRM solicits comment on a number of relevant issues.
First, new subsection 653(b)(1) of the Communications Act requires the
Commission to prescribe regulations that (1) prohibit an open video
system operator from discriminating among video programming providers
with regard to carriage on the system, and (2) if demand exceeds
capacity, prohibit the system operator and its affiliates from
selecting the programming on more than one-third of the system's
capacity. In order to implement Congress' directive, the NPRM seeks
comment on the best method of implementing this provision. We seek
comment on various issues related to implementing these provisions,
including: (1) permitting open video system operators to allocate
capacity on their system; (2) how much flexibility should be afforded
to system operators in complying with these provisions; (3) a system
operator's notifying video providers of its intent to establish an open
video system; (4) an operator's discretion regarding programming: (5)
how to measure capacity; (6) issues related to the distinction between
analog and digital channels; (7) allocating capacity where demand for
carriage exceeds capacity of the system; and (8) allocating capacity
where the level of demand changes after the initial allocation of
capacity.
5. Second, new subsection 653(b)(1)(A) also requires the Commission
to prescribe rules that will ensure that rates, terms, and conditions
for the carriage of video programming on an open video system meet the
conditions described above. In order to implement this directive, the
NPRM solicits comment on methods for the Commission's enforcement of
rules implementing this statutory provision, including whether the
rates determined under market forces will comport with this statutory
provision. We also seek comment on whether the Commission, if it were
to adopt rules in this area, should permit some measure of
discrimination consistent with the Act.
6. Third, new subsection 653(b)(1)(C) of the Communications Act
requires the Commission to prescribe regulations that permit an open
video system operator ``to carry on only one channel any video
programming service that is offered by more than one video programming
provider, provided that subscribers have ready and immediate access to
any such video programming service.'' In order to carry out this
Congressional mandate, we first tentatively conclude that the open
video system operator may administer channel sharing arrangements
consistent with the Act. In addition, the NPRM solicits comment on
issues relating to this provision, including: (1) the system operator's
designation of another entity to administer channel sharing; (2)
whether the Commission should prescribe any terms and conditions under
which channels may be shared; (3) any technical differences exist
between shared and non-shared channels that may permit system operators
to discriminate among video providers in designating certain channels
as shared; and (4) how to ensure that subscribers have ``ready and
immediate access'' to the shared channels.
7. Fourth, the 1996 Act directs the Commission to prescribe
regulations that extend our regulations concerning sports exclusivity,
network non-duplication, and syndicated exclusivity to the distribution
of video programming over open video systems. In order to implement
Congress' directives, we seek comment on our tentative conclusion that
these existing cable policies and procedures should be extended to open
video systems, and any related issues.
8. Fifth, the 1996 Act directs the Commission to prescribe
regulations that prohibit an open video system operator from
unreasonably discriminating in favor of the operator or its affiliates
with regard to material provided to subscribers for the purposes of
selecting programming on the system, or in the way such material is
presented to subscribers.
In addition, the Commission must require an open video system
operator to ensure that video programming providers or copyright
holders are able to identify their programming services to subscribers.
Finally, the 1996 Act directs that the Commission prescribe regulations
that prohibit an open video system operator from ``omitting television
broadcast or other unaffiliated video programming services carried on
such system from any navigational device, guide or menu.'' In order to
implement Congress' directives, we seek comment on how to implement the
various provisions of this subsection, including: (1) the meaning of
the term ``material or information;'' (2) the meaning of the term
``selecting programming;'' (3) whether the prohibition against omitting
broadcast stations and unaffiliated programmers from any ``navigational
device, guide or menu'' applies to programmers that are not part of the
subscriber's package; and (4) what would constitute proper
identification of programming services.
9. Sixth, the 1996 Act provides that any provision that applies to
cable operators under our PEG access, must-carry and retransmission
consent rules shall apply ``to any [certified] operator of an open
video system.'' It also provides that the Commission shall, to the
extent possible, impose obligations that are no greater or lesser than
the obligations imposed on cable operators. In order to carry out this
Congressional mandate, we solicit comment on issues relating to this
provision, including: (1)
[[Page 10498]]
how PEG obligations should be established given that the 1996 Act does
not require a video system operator to obtain a local franchise; (2)
the treatment of situations where an open video system overlaps several
cable franchise jurisdictions; (3) the general effect of technological
and administrative differences between open video systems and cable
television systems on implementing these provisions. With respect to
program access, the 1996 Act provides that these rules shall apply to
any operator of an open video system. In order to carry out this
Congressional mandate, the Commission should solicit comment on issues
relating to this provision, including: (1) what entity should be
subject to the rules, and (2) applying the program access provisions'
requirement that ``competing distributors'' be involved. We also seek
comment on applying other rules provisions of Title VI of the
Communications Act to open video systems, pursuant to the 1996 Act,
including those concerning ownership restrictions, regulation of
carriage agreements, negative option billing, subscriber privacy, and
equal employment opportunity.
10. Seventh, the 1996 Act provides generally that a local exchange
carrier may provide cable service to its cable service subscribers in
its telephone service area through an open video system, and that, to
the extent permitted by Commission regulations, consistent with the
public interest, convenience, and necessity, an operator of a cable
system or any other person may provide video programming through an
open video system that complies with this section. In order to
implement Congress' directives, we seek comment on: (1) whether this
language means that cable operators and others may or may not become
open video system operators, or may only provide video programming on
others' open video systems the circumstances under which this language
permits cable operators and others to become open video system
operators or programmers; (2) what public interest factors should be
considered in permitting cable operators to either become open video
system operators or provide video programming on open video systems;
and (3) the treatment of the situation where a local exchange carrier
jointly markets or bundles the offering of regulated telephone service
and open video system video programming.
11. Eighth, the 1996 Act provides that an operator of an open video
system shall qualify for reduced regulatory burdens under subsection
653(c) if the operator certifies to the Commission that it complies
with the Commission's regulations under subsection 653(b) and the
Commission approves such certification. The Commission must act on the
certification within 10 days of receiving the certification. In order
to implement Congress' directives, we seek comment on interpreting this
language, including: (1) the approach we should take in establishing
certification procedures, especially in light of this short statutory
review period; and (2) the type of information that an open video
system operator would be required to submit.
12. Ninth, the 1996 Act states that the Commission shall have the
authority to resolve disputes under this section. The Commission must
resolve any such dispute within 180 days, and may, in the case of a
violation, require carriage, award damages, or both. In order to
implement Congress' directives, we seek comment on: (1) whether the
Commission should establish a dispute resolution procedure, such as the
one employed to resolve program access disputes; and (2) in the
alternative, establish more informal procedures which would require or
encourage parties to first try to resolve the dispute without the
Commission's direct involvement.
II. Initial Regulatory Flexibility Analysis
13. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Commission's Initial Regulatory Flexibility Analysis with
respect to the NPRM is as follows:
14. Reason for action: The Commission is issuing this NPRM to seek
comment on various issues concerning implementation of the open video
system provisions of the 1996 Act.
15. Objectives: To provide an opportunity for public comment and to
provide a record for a Commission decision on the issues discussed in
the NPRM.
16. Legal Basis: The NPRM is adopted pursuant to Section 302 of the
1996 Act; and sections 1, 2, 4(i), 201-205, 215, 220, 303(r), 601-602,
611-616, 621-624, and 625-634 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154, 201-205, 215, 220, 303(r), 521-522,
531-536, and 545-554.
17. Description, potential impact, and number of small entities
affected: Amending our rules to, for example, increase the programming
distribution outlets for video programming providers, may directly
impact entities which are small business entities, as defined in
Section 601(3) of the Regulatory Flexibility Act.
18. Reporting, recordkeeping, and other compliance requirements:
None.
19. Federal rules which overlap, duplicate, or conflict with the
Commission's proposal: None.
20. Any significant alternatives minimizing impact on small
entities and consistent with state objectives: The NPRM solicits
comments on implementing the provisions of the 1996 Act concerning
carriage by open video system operators of PEG access channels.
21. Comments are solicited: Written comments are requested on this
Initial Regulatory Flexibility Analysis. These comments must be filed
in accordance with the same filing deadlines set for comments on the
other issues in this NPRM, but they must have a separate and distinct
heading designating them as responses to the Regulatory Flexibility
Analysis. The Secretary shall send a copy of the Notice to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq.
III. Initial Paperwork Reduction Act of 1995 Analysis
22. This NPRM contains either a proposed or modified information
collection. As part of our continuing effort to reduce paperwork
burdens, we invite the general public and the Office of Management and
Budget (``OMB'') to take this opportunity to comment on the information
collections contained in this NPRM, as required by the Paperwork
Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments
are due at the same time as other comments on the NPRM; OMB comments
are due May 13, 1996. Comments should address: (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 estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (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.
IV. Procedural Provisions
23. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided that they are disclosed as provided in Commission's
[[Page 10499]]
rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
24. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before April 1, 1996, and reply
comments on or before April 11, 1996. We find these periods for the
filing of comments and reply comments to be reasonable in light of the
1996 Act's mandate that the Commission complete all actions necessary
(including any reconsideration) to prescribe certain regulations
concerning open video systems. See Florida Power & Light Co, v. United
States, 846 F.2d 765 (D.C. Cir. 1988) cert. denied, 490 U.S. 1045
(1989). To file formally in this proceeding, you must file an original
and four copies of all comments, reply comments, and supporting
comments. If you want each Commissioner to receive a personal copy of
your comments, you must file an original and nine copies. Comments and
reply comments should be sent to Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Room 222, Washington,
D.C. 20554, with a copy to Larry Walke of the Cables Services Bureau,
2033 M Street, N.W., Room 408A, Washington, D.C. 20554. Parties should
also file one copy of any documents filed in this docket with the
Commission's copy contractor, International Transcription Services,
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037. Comments
and reply comments will be available for public inspection during
regular business hours in the FCC Reference Center, 1919 M Street,
N.W., Room 239, Washington, D.C. 20554.
25. Parties are also asked to submit comments and reply comments on
diskette. Such diskette submissions would be in addition to and not a
substitute for the formal filing requirements addressed above. Parties
submitting diskettes should submit them to Larry Walke of the Cable
Services Bureau, 2033 M Street, N.W., Room 408A, Washington, D.C.
20554. Such a submission should be on a 3.5 inch diskette formatted in
an IBM compatible form using MS DOS 5.0 and WordPerfect 5.1 software.
The diskette should be submitted in ``read only'' mode. The diskette
should be clearly labelled with the party's name, proceeding, type of
pleading (comment or reply comments) and date of submission. The
diskette should be accompanied by a cover letter.
V. Ordering Clauses
26. It is ordered that, pursuant to Section 302 of the 1996 Act;
and sections 1, 2, 4(i), 201-205, 215, 220, 303(r), 601-602, 611-616,
621-624, and 625-634 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 152, 154, 201-205, 215, 220, 303(r), 521-522, 531-536, and
545-554, Notice is hereby given of proposed amendments to Part 76, in
accordance with the proposals, discussions, and statement of issues in
this NPRM and that comment is sought regarding such proposals,
discussion, and statements of issues.
27. It is further ordered that, the Secretary shall send a copy of
this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with paragraph 603(a) of
the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
28. For additional information regarding this proceeding, contact
Rick Chessen or Larry Walke, Policy & Rules Division, Cable Services
Bureau (202) 416-0800.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-6146 Filed 3-11-96; 3:40 pm]
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