516 PART 76—CABLE TELEVISION SERVICE

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516 PART 76—CABLE TELEVISION SERVICE Powered By Docstoc
					Pt. 76                                                    47 CFR Ch. I (10–1–98 Edition)

    PART 76—CABLE TELEVISION                    76.97 Effective dates.
                                                76.151 Syndicated program exclusivity: ex-
            SERVICE                                 tent of protection.
                                                76.153 Parties entitled to syndicated exclu-
            Subpart A—General                       sivity.
                                                76.155 Notification.
Sec.                                            76.156 Exceptions.
76.1 Purpose.                                   76.157 Exclusivity contracts.
76.3 Other pertinent rules.                     76.158 Indemnification contracts.
76.5 Definitions.                               76.159 Requirements for invocation of pro-
76.7 Special relief and must-carry com-
                                                    tection.
    plaint procedures.                          76.161 Substitutions.
76.8 Dismissal of special relief petitions.
                                                76.163 Effective dates.
76.9 Order to show cause; forfeiture proceed-
    ing.
                                                         Subpart G—Cablecasting
76.11 Lockbox enforcement.
                                                76.205 Origination cablecasts by legally
    Subpart B—Registration Statements               qualified candidates for public office;
                                                    equal opportunities.
76.12 Registration statement required.
                                                76.206 Candidate rates.
76.14 Who may sign registration state-
                                                76.207 Political file.
    ments.
                                                76.209 Fairness doctrine; personal attacks;
76.17 Public notice.
                                                    political editorials.
76.29 Special temporary authority.
                                                76.213 Lotteries.
                                                76.221 Sponsorship identification; list reten-
Subpart C—Federal-State/Local Regulatory
                                                    tion; related requirements.
        Relationships [Reserved]                76.225 Commercial limits in children’s pro-
                                                    grams.
     Subpart D—Carriage of Television           76.227 Blocking of indecent sexually-ori-
            Broadcast Signals                       ented programming channels.
76.51 Major television markets.
76.53 Reference points.                               Subpart H—General Operating
76.54 Significantly viewed signals; method                    Requirements
    to be followed for special showings.
                                                76.300 Scope of application.
76.55 Definitions applicable to the must-
                                                76.301 Copies of rules.
    carry rules.
                                                76.302 Required recordkeeping for must-
76.56 Signal carriage obligations.
                                                    carry purposes.
76.57 Channel positioning.
                                                76.305 Records to be maintained locally by
76.58 Notification.
                                                    cable system operators for public inspec-
76.59 Modification of television markets.
                                                    tion.
76.60 Compensation for carriage.
                                                76.307 System inspection.
76.61 Disputes concerning carriage.
                                                76.309 Customer service obligations.
76.62 Manner of carriage.
76.64 Retransmission consent.
76.67 Sports broadcasts.
                                                       Subpart I—Forms and Reports
76.70 Exemption from input selector switch      76.400 Operator, mail address, and oper-
    rules.                                          ational status changes.
                                                76.403 Cable television system reports.
Subpart E—Equal Employment Opportunity
             Requirements                         Subpart J—Ownership of Cable Systems
76.71 Scope of application.                     76.501 Cross-ownership.
76.73 General EEO policy.                       76.502 Time limits applicable to franchise
76.75 EEO program requirements.                     authority consideration of transfer appli-
76.77 Reporting requirements.                       cations.
76.79 Records available for public inspec-      76.503 National subscriber limits.
    tion.                                       76.504 Limits on carriage of vertically inte-
                                                    grated programming.
Subpart F—Nonduplication Protection and         76.505 Prohibition on buy outs.
         Syndicated Exclusivity
                                                      Subpart K—Technical Standards
76.92 Network non-duplication; extent of
    protection.                                 76.601 Performance tests.
76.93 Parties entitled to network non-dupli-    76.605 Technical standards.
    cation protection.                          76.606 Closed captioning.
76.94 Notification.                             76.607 Resolution of complaints.
76.95 Exceptions.                               76.609 Measurements.

                                            516
Federal Communications Commission                                                      Pt. 76
76.610 Operation in the frequency bands 108–      76.932 Notification of proposed rate in-
    137 and 225–400 MHz—scope of applica-             crease.
    tion.                                         76.933 Franchising authority review of basic
76.611 Cable television basic signal leakage          cable rates and equipment costs.
    performance criteria. (eff. 7–1–90)           76.934 Small systems and small cable com-
76.612 Cable television frequency separation          panies.
    standards.                                    76.935 Participation of interested parties.
76.613 Interference from a multichannel           76.936 Written decision.
    video programming distributor (MVPD).         76.937 Burden of proof.
76.614 Cable television system monitoring.
                                                  76.938 Proprietary information.
76.615 Notification requirements.
76.616 Operation near certain aeronautical        76.939 Truthful written statements and re-
    and marine emergency radio frequencies.           sponses to requests of franchising au-
76.617 Responsibility for interference.               thority.
76.618 Grandfathering.                            76.940 Prospective rate reduction.
76.619 Grandfathered operation in the fre-        76.941 Rate prescription.
    quency bands 108–136 and 225–400 MHz.         76.942 Refunds.
76.620 Non-cable multichannel video pro-          76.943 Fines.
    gramming distributors (MVPDs).                76.944 Commission review of franchising au-
76.630 Compatibility with consumer elec-              thority decisions on rates for the basic
    tronics equipment.                                service tier and associated equipment.
                                                  76.945 Procedures for Commission review of
    Subpart L—Cable Television Access                 basic service rates.
                                                  76.946 Advertising of rates.
76.701    Leased access channels.
                                                  76.950 Complaints regarding cable program-
76.702    Public access.
                                                      ming service rates.
         Subpart M—Cable Inside Wiring            76.951 Standard complaint form; other filing
                                                      requirements.
76.800 Definitions.                               76.952 Information to be provided by cable
76.801 Scope                                          operator on monthly subscriber bills.
76.802 Disposition of cable home wiring.          76.953 Limitation on filing a complaint.
76.804 Disposition of home run wiring.            76.954 Initial review of complaint; minimum
76.805 Access to molding.                             showing requirement; dismissal of defec-
76.806 Pre-termination access to cable home           tive complaints.
    wiring.                                       76.955 Additional opportunity to file cor-
                                                      rected complaint.
     Subpart N—Cable Rate Regulation              76.956 Cable operator response.
76.900 Temporary freeze of cable rates.           76.957 Commission adjudication of the com-
76.901 Definitions.                                   plaint.
76.905 Standards for identification of cable      76.958 Notice to Commission of rate change
    systems subject to effective competition.         while complaint pending.
76.906 Presumption of no effective competi-       76.960 Prospective rate reductions.
    tion.                                         76.961 Refunds.
76.910 Franchising authority certification.       76.962 Implementation and certification of
76.911 Petition for reconsideration of cer-           compliance.
    tification.                                   76.963 Forfeiture.
76.912 Joint certification.                       76.964 Written notification of changes in
76.913 Assumption of jurisdiction by the              rates and services.
    Commission.                                   76.970 Commercial leased access rates.
76.914 Revocation of certification.               76.971 Commercial leased access terms and
76.915 Change in status of cable operator.            conditions.
76.916 Petition for recertification.
                                                  76.975 Commercial leased access dispute res-
76.917 Notification of certification with-
                                                      olution.
    drawal.
                                                  76.977 Minority and educational program-
76.920 Composition of the basic tier.
                                                      ming used in lieu of designated commer-
76.921 Buy-through of other tiers prohib-
                                                      cial leased access capacity.
    ited.
76.922 Rates for the basic service tier and       76.980 Charges for customer changes.
    cable programming service tiers.              76.981 Negative option billing.
76.923 Rates for equipment and installation       76.982 Continuation of rate agreements.
    used to receive the basic service tier.       76.983 Discrimination.
76.924 Allocation to service cost categories.     76.984 Geographically uniform rate struc-
76.925 Costs of franchise requirements.               ture.
76.930 Initiation of review of basic cable        76.985 Subscriber bill itemization.
    service and equipment rates.                  76.986 ‘‘A la carte’’ offerings.
76.931 Notification of basic tier availability.   76.987 New product tiers.

                                              517
§ 76.1                                                      47 CFR Ch. I (10–1–98 Edition)

Subpart O—Competitive Access to Cable           76.1509 Syndicated program exclusivity.
           Programming                          76.1510 Application of certain Title VI pro-
                                                    visions.
76.1000 Definitions.                            76.1511 Fees.
76.1001 Unfair practices generally.             76.1512 Programming information.
76.1002 Specific unfair practices prohibited.   76.1513 Dispute resolution.
76.1003 Adjudicatory proceedings.               76.1514 Bundling of video and local exchange
76.1004 Applicability of program access             services.
    rules to common carriers and affiliates.    ALPHABETICAL INDEX—PART 76
76.1005—76.1010 [Reserved]
                                                  AUTHORITY: 47 U.S.C. 151, 152, 153, 154,          301,
  Subpart P—Competitive Availability of         302, 303, 303a, 307, 308, 309, 312, 315, 317,       325,
                                                503, 521, 522, 531, 532, 533, 534, 535, 536, 537,   543,
           Navigation Devices                   544, 544a, 545, 548, 549, 552, 554, 556, 558,       560,
76.1200 Definitions.                            561, 571, 572, 573.
76.1201 Rights of subscribers to use or at-       SOURCE: 37 FR 3278, Feb. 12, 1972, unless
    tach navigation devices.                    otherwise noted.
76.1202 Availability of navigation devices.
76.1203 Incidence of harm.
76.1204 Availability of equipment perform-                 Subpart A—General
    ing conditional access or security func-
    tions.                                      § 76.1 Purpose.
76.1205 Availability of interface informa-         The rules and regulations set forth in
    tion.                                       this part provide for the certification
76.1206 Equipment sale or lease charge sub-     of cable television systems and for
    sidy prohibition.
                                                their operation in conformity with
76.1207 Waivers.
76.1208 Sunset of regulations.                  standards for carriage of television
76.1209 Theft of service.                       broadcast signals, program exclusivity,
76.1210 Effect on other rules.                  cablecasting, access channels, and re-
                                                lated matters.
    Subpart Q—Regulation of Carriage
              Agreements                        § 76.3 Other pertinent rules.
76.1300 Definitions
                                                   Other pertinent provisions of the
76.1301 Prohibited practices                    Commission’s rules and regulations re-
76.1302 Adjudicatory proceedings                lating to the Cable Television Service
76.1303—1305 [Reserved]                         are included in the following parts of
                                                this chapter:
   Subpart R—Telecommunications Act
                                                Part 0—Commission Organization.
            Implementation                      Part 1—Practice and Procedure.
76.1400 Purpose.                                Part 11—Emergency Alert System (EAS)
76.1401 Effective competition and local ex-     Part 21—Domestic Public Radio Services
    change carriers.                               (Other Than Maritime Mobile).
76.1402 CPST rate complaints.                   Part 63—Extension of Lines and Discontinu-
76.1403 Small cable operators.                     ance of Service by Carriers.
76.1404 Use of cable facilities by local ex-    Part 64—Miscellaneous Rules Relating to
    change carriers.                               Common Carriers.
                                                Part 78—Cable Television Relay Service.
     Subpart S—Open Video Systems               Part 91—Industrial Radio Services.
                                                [37 FR 13864, June 14, 1972, as amended at 59
76.1500 Definitions.                            FR 67103, Dec. 28, 1994]
76.1501 Qualifications to be an open video
    system operator.                            § 76.5 Definitions.
76.1502 Certification.
76.1503 Carriage of video programming pro-         (a) Cable system or cable television sys-
    viders on open video systems.               tem. A facility consisting of a set of
76.1504 Rates, terms and conditions for car-    closed transmission paths and associ-
    riage on open video systems.                ated signal generation, reception, and
76.1505 Public, educational and govern-         control equipment that is designed to
    mental access.
                                                provide cable service which includes
76.1506 Carriage of television broadcast sig-
    nals.                                       video programming and which is pro-
76.1507 Competitive access to satellite cable   vided to multiple subscribers within a
    programming.                                community, but such term does not in-
76.1508 Network non-duplication.                clude:

                                            518
Federal Communications Commission                                                      § 76.5

  (1) A facility that services only to re-       after the initial grant of its construc-
transmit the television signals of one           tion permit.
or more television broadcast stations;              (f) Major television market. The speci-
  (2) A facility that serves subscribers         fied zone of a commercial television
without using any public right-of-way;           station licensed to a community listed
  (3) A facility of a common carrier             in § 76.51, or a combination of such
which is subject, in whole or in part, to        specified zones where more than one
the provisions of Title II of the Com-           community is listed.
munications Act of 1934, as amended,                (g) Designated community in a major
except that such facility shall be con-          television market. A community listed in
sidered a cable system to the extent             § 76.51.
such facility is used in the trans-                 (h) Smaller television market. The spec-
mission of video programming directly            ified zone of a commercial television
to subscribers, unless the extent of             station licensed to a community that
such use is solely to provide inter-             is not listed in § 76.51.
active on-demand services;                          (i) Significantly viewed. Viewed in
  (4) An open video system that com-             other than cable television households
plies with Section 653 of the Commu-             as follows: (1) For a full or partial net-
nications Act; or                                work station—a share of viewing hours
  (5) Any facilities of any electric util-       of at least 3 percent (total week hours),
ity used solely for operating its elec-          and a net weekly circulation of at least
tric utility systems.                            25 percent; and (2) for an independent
                                                 station—a share of viewing hours of at
  NOTE TO PARAGRAPH (a): The provisions of
Subparts D and F of this part shall also
                                                 least 2 percent (total week hours), and
apply to all facilities defined previously as    a net weekly circulation of at least 5
cable systems on or before April 28, 1985, ex-   percent. See § 76.54.
cept those that serve subscribers without          NOTE: As used in this paragraph, ‘‘share of
using any public right-of-way.                   viewing hours’’ means the total hours that
   (b) Television station; television broad-     noncable television households viewed the
cast station. Any television broadcast           subject station during the week, expressed as
                                                 a percentage of the total hours these house-
station operating on a channel regu-             holds viewed all stations during the period,
larly assigned to its community by               and ‘‘net weekly circulation’’ means the
§ 73.606 of this chapter, and any tele-          number of noncable television households
vision broadcast station licensed by a           that viewed the station for 5 minutes or
foreign government: Provided, however,           more during the entire week, expressed as a
That a television broadcast station li-          percentage of the total noncable television
censed by a foreign government shall             households in the survey area.
not be entitled to assert a claim to car-           (j) Full network station. A commercial
riage, program exclusivity, or retrans-          television broadcast station that gen-
mission consent authorization pursu-             erally carries in weekly prime time
ant to subpart D or F of this part, but          hours 85 percent of the hours of pro-
may otherwise be carried if consistent           graming offered by one of the three
with the rules on any service tier.              major national television networks
   (c) Television translator station. A tele-    with which it has a primary affiliation
vision broadcast translator station as           (i.e., right of first refusal or first call).
defined in § 74.701 of this chapter.                (k) Partial network station. A commer-
   (d) Grade A and Grade B contours. The         cial television broadcast station that
field intensity contours defined in              generally carries in prime time more
§ 73.683(a) of this chapter.                     than 10 hours of programming per week
   (e) Specified zone of a television broad-     offered by the three major national tel-
cast station. The area extending 56.3 air        evision networks, but less than the
km (35 air miles) from the reference             amount specified in paragraph (j) of
point in the community to which that             this section.
station is licensed or authorized by the            (l) Independent station. A commercial
Commission. A list of reference points           television broadcast station that gen-
is contained in § 76.53. A television            erally carries in prime time not more
broadcast station that is authorized             than 10 hours of programing per week
but not operating has a specified zone           offered by the three major national tel-
that terminates eighteen (18) months             evision networks.

                                             519
§ 76.5                                                  47 CFR Ch. I (10–1–98 Edition)

  (m) A network program is any pro-            substantial showing that he or she is a
gram delivered simultaneously to more          bona fide candidate for nomination or
than one broadcast station regional or         office.
national, commercial or noncommer-             Persons seeking election to the office
cial.                                          of President or Vice President of the
  (n) Prime time. The 5-hour period from       United States shall, for the purposes of
6 to 11 p.m., local time, except that in       the Communications Act and the rules
the central time zone the relevant pe-         thereunder, be considered legally quali-
riod shall be between the hours of 5 and       fied candidates only in those States or
10 p.m., and in the mountain time zone         territories (or the District of Colum-
each station shall elect whether the pe-       bia) in which they have met the re-
riod shall be 6 to 11 p.m. or 5 to 10 p.m.     quirements set forth in paragraphs (q)
  NOTE: Unless the Commission is notified to   (1) and (2) of this rule; except that any
the contrary, a station in the mountain time   such person who has met the require-
zone shall be presumed to have elected the 6   ments set forth in paragraphs (q) (1)
to 11 p.m. period.                             and (2) in at least 10 States (or nine
  (o) Cablecasting. Programming (exclu-        and the District of Columbia) shall be
sive of broadcast signals) carried on a        considered a legally qualified candidate
cable television system. See para-             for election in all States, territories
graphs (y), (z) and (aa) (Classes II, III,     and the District of Columbia for pur-
and IV cable television channels) of           poses of this Act.
this section.                                    (3) A person seeking nomination to
  (p) Origination cablecasting. Program-       any public office except that of Presi-
ing (exclusive of broadcast signals) car-      dent or Vice President of the United
ried on a cable television system over         States, by means of a convention, cau-
one or more channels and subject to            cus or similar procedure, shall be con-
the exclusive control of the cable oper-       sidered a legally qualified candidate if,
ator.                                          in addition to meeting the require-
  (q) Legally qualified candidate. (1) Any     ments set forth in paragraph (q)(1) of
person who:                                    this section, that person makes a sub-
  (i) Has publicly announced his or her        stantial showing that he or she is a
intention to run for nomination or of-         bona fide candidate for such nomina-
fice;                                          tion; except that no person shall be
  (ii) Is qualified under the applicable       considered a legally qualified candidate
local, State or Federal law to hold the        for nomination by the means set forth
office for which he or she is a can-           in this paragraph prior to 90 days be-
didate; and                                    fore the beginning of the convention,
  (iii) Has met the qualifications set         caucus or similar procedure in which
forth in either paragraphs (q)(2), (3) or      he or she seeks nomination.
(4) of this section.                             (4) A person seeking nomination for
  (2) A person seeking election to any         the office of President or Vice Presi-
public office including that of Presi-         dent of the United States shall, for the
dent or Vice President of the United           purposes of the Communications Act
States, or nomination for any public           and the rules thereunder, be considered
office except that of President or Vice        a legally qualified candidate only in
President, by means of a primary, gen-         those States or territories (or the Dis-
eral or special election, shall be consid-     trict of Columbia) in which, in addition
ered a legally qualified candidate if, in      meeting the requirements set forth in
addition to meeting the criteria set           paragraph (q)(1) of this section.
forth in paragraph (q)(1) of this section,       (i) He or she, or proposed delegates
that person:                                   on his or her behalf, have qualified for
  (i) Has qualified for a place on the         the primary of Presidential preference
ballot, or                                     ballot in that State, territory or the
  (ii) Has publicly committed himself          District of Columbia, or
or herself to seeking election by the            (ii) He or she has made a substantial
write-in method and is eligible under          showing of bona fide candidacy for such
applicable law to be voted for by stick-       nomination in that State, territory of
er, by writing in his or her name on the       the District of Columbia; except that
ballot or by other method, and makes a         such person meeting the requirements

                                           520
Federal Communications Commission                                                  § 76.5

set forth in paragraph (q) (1) and (4) in     another point in the cable television
at least 10 States (or nine and the Dis-      system.
trict of Columbia) shall be considered a        (v) Subscriber terminal. The cable tele-
legally qualified candidate for nomina-       vision system terminal to which a sub-
tion in all States, territories and the       scriber’s equipment is connected. Sepa-
District of Columbia for purposes of          rate terminals may be provided for de-
the Act.                                      livery of signals of various classes.
  (5) The term ‘‘substantial showing’’          NOTE: Terminal devices interconnected to
of bona fide candidacy as used in para-       subscriber terminals of a cable system shall
graph (q) (2), (3) and (4) of this section    comply with subpart H of part 15.
means evidence that the person claim-           (w) System noise. That combination of
ing to be a candidate has engaged to a        undesired and fluctuating disturbances
substantial degree in activities com-         within a cable television channel that
monly associated with political cam-          degrades the transmission of the de-
paigning. Such activities normally            sired signal and that is due to modula-
would     include     making      campaign    tion processes or thermal or other
speeches, distributing campaign lit-          noise-producing effects, but does not
erature, issuing press releases, main-        include hum and other undesired sig-
taining a campaign headquarters (even         nals of discrete frequency. System
though the headquarters in some in-           noise is specified in terms of its rms
stances might be the residence of the         voltage or its mean power level as
candidate or his campaign manager).           measured in the 4 MHz bandwidth be-
Not all of the listed activities are nec-     tween 1.25 and 5.25 MHz above the lower
essarily required in each case to dem-        channel boundary of a cable television
onstrate a substantial showing, and           channel.
there may be activities not listed here-        (x) Terminal isolation. The attenu-
in which would contribute to such a           ation, at any subscriber terminal, be-
showing.                                      tween that terminal and any other sub-
  (r) Class I cable television channel. A     scriber terminal in the cable television
signaling path provided by a cable tele-      system.
vision system to relay to subscriber            (y) Visual signal level. The rms volt-
terminals television broadcast pro-           age produced by the visual signal dur-
grams that are received off-the-air or        ing the transmission of synchronizing
are obtained by microwave or by direct        pulses.
connection to a television broadcast            (z) Affiliate. When used in relation to
station.                                      any person, another person who owns
  (s) Class II cable television channel. A    or controls, is owned or controlled by,
                                              or is under common ownership or con-
signaling path provided by a cable tele-
                                              trol with, such person.
vision system to deliver to subscriber
                                                (aa) Person. An individual, partner-
terminals television signals that are
                                              ship, association, joint stock company,
intended for reception by a television
                                              trust, corporation, or governmental en-
broadcast receiver without the use of         tity.
an auxilliary decoding device and               (bb) Significant interest. A cognizable
which signals are not involved in a           interest for attributing interests in
broadcast transmission path.                  broadcast, cable, and newspaper prop-
  (t) Class III cable television channel. A   erties pursuant to §§ 73.3555, 73.3615, and
signaling path provided by a cable tele-      76.501.
vision system to deliver to subscriber          (cc) Cable system operator. Any person
terminals signals that are intended for       or group of persons (1) who provides
reception by equipment other than a           cable service over a cable system and
television broadcast receiver or by a         directly or through one or more affili-
television broadcast receiver only            ates owns a significant interest in such
when used with auxiliary decoding             cable system; or (2) who otherwise con-
equipment.                                    trols or is responsible for, through any
  (u) Class IV cable television channel. A    arrangement, the management and op-
signaling path provided by a cable tele-      eration of such a cable system.
vision system to transmit signals of            (dd) System community unit: Commu-
any type from a subscriber terminal to        nity unit. A cable television system, or

                                          521
§ 76.5                                                47 CFR Ch. I (10–1–98 Edition)

portion of a cable television system,       such as amplifiers, converter or de-
that operates or will operate within a      coder boxes, or remote control units.
separate and distinct community or            (mm) Demarcation point. (1) For new
municipal entity (including unincor-        and existing single unit installations,
porated communities within unincor-         the demarcation point shall be a point
porated areas and including single, dis-    at (or about) twelve inches outside of
crete unincorporated areas).                where the cable wire enters the sub-
  (ee) Subscribers. A member of the gen-    scriber’s premises.
eral public who receives broadcast pro-       (2) For new and existing multiple
gramming distributed by a cable tele-       dwelling unit installations with non-
vision system and does not further dis-     loop-through wiring configurations,
tribute it.                                 the demarcation point shall be a point
  (ff) Cable service. The one-way trans-    at (or about) twelve inches outside of
                                            where the cable wire enters the sub-
mission to subscribers of video pro-
                                            scriber’s dwelling unit, or, where the
gramming, or other programming serv-
                                            wire is physically inaccessible at such
ice; and, subscriber interaction, if any,
                                            point, the closest practicable point
which is required for the selection or
                                            thereto that does not require access to
use of such video programming or
                                            the individual subscriber’s dwelling
other programming service. For the
                                            unit.
purposes of this definition, ‘‘video pro-     (3) For new and existing multiple
gramming’’ is programming provided          dwelling unit installations with loop-
by, or generally considered comparable      through wiring configurations, the de-
to programming provided by, a tele-         marcation points shall be at (or about)
vision broadcast station; and, ‘‘other      twelve inches outside of where the
programming service’’ is information        cable wire enters or exits the first and
that a cable operator makes available       last individual dwelling units on the
to all subscribers generally.               loop, or, where the wire is physically
  (gg) [Reserved]                           inaccessible at such point(s), the clos-
  (hh) Input selector switch. Any device    est practicable point thereto that does
that enables a viewer to select between     not require access to an individual sub-
cable service and off-the-air television    scriber’s dwelling unit.
signals. Such a device may be more so-        (4) As used in this paragraph (mm)(3),
phisticated than a mere two-sided           the term ‘‘physically inaccessible’’ de-
switch, may utilize other cable inter-      scribes a location that:
face equipment, and may be built into         (i) Would require significant modi-
consumer television receivers.              fication of, or significant damage to,
  (ii) A syndicated program is any pro-     preexisting structural elements, and
gram sold, licensed, distributed or of-       (ii) Would add significantly to the
fered to television station licensees in    physical difficulty and/or cost of ac-
more than one market within the             cessing the subscriber’s home wiring.
United States other than as network           NOTE TO PARAGRAPH (MM)(4): For example,
programming as defined in § 76.5(o).        wiring embedded in brick, metal conduit or
  (jj) Rural area. A community unit         cinder blocks with limited or without access
with a density of less than 19 house-       openings would likely be physically inacces-
holds per route kilometer or thirty         sible; wiring enclosed within hallway mold-
households per route mile of coaxial        ing would not.
and/or fiber optic cable trunk and feed-      (nn) Activated channels. Those chan-
er line.                                    nels engineered at the headend of a
  (kk) Technically integrated. Having       cable system for the provision of serv-
75% or more of the video channels re-       ices generally available to residential
ceived from a common headend.               subscribers of the cable system, regard-
  (ll) Cable home wiring. The internal      less of whether such services actually
wiring contained within the premises        are provided, including any channel
of a subscriber which begins at the de-     designated for public, educational or
marcation point. Cable home wiring in-      governmental use.
cludes passive splitters on the subscrib-     (oo) Usable activated channels. Those
er’s side of the demarcation point, but     activated channels of a cable system,
does not include any active elements        except those channels whose use for

                                        522
Federal Communications Commission                                                       § 76.7

the distribution of broadcast signals              § 76.61 (must-carry complaint), the
would conflict with technical and safe-            Commission may order a cable tele-
ty regulations. See part 76, subpart K.            vision system operator to commence or
   (pp) Principal headend. (1) The                 resume carriage of the complaining
headend, in the case of a cable system             station, or position or reposition the
with a single headend or,                          complaining station’s channel on the
   (2) In the case of a cable system with          cable television system, pursuant to
more than one headend, the principal               subpart D of this part.
headend designated by the cable opera-                (b) The petition for special relief or
tor, except that such designation shall            must-carry complaint may be submit-
not undermine or evade the require-                ted informally, by letter, but shall be
ments of subpart D of this part. The               accompanied by a certificate of service
designation of a principal headend                 on any cable television system opera-
shall be made by May 3, 1993, and each             tor, franchising authority, station li-
cable system shall place in its public             censee, permittee, or applicant, or
file the location of its designated prin-          other interested person who may be di-
cipal headend by June 17, 1993, as pro-            rectly affected if the relief requested is
vided in § 76.302. Except for good cause,          granted.
an operator may not change its choice                 (c)(1) The petition for special relief or
of principal headend.                              must-carry complaint shall state the
   (qq) Emergency Alert System (EAS).              relief requested. It shall state fully and
The EAS is composed of broadcast net-              precisely all pertinent facts and con-
works; cable networks and program                  siderations relied on to demonstrate
suppliers; AM, FM and TV broadcast
                                                   the need for the relief requested and to
stations; Low Power TV (LPTV) sta-
                                                   support a determination that a grant
tions; cable systems and wireless cable
                                                   of such relief would serve the public in-
systems; and other entities and indus-
                                                   terest. Factual allegations shall be
tries operating on an organized basis
                                                   supported by affidavit of a person or
during emergencies at the National,
                                                   persons with actual knowledge of the
State, or local levels.
                                                   facts, and exhibits shall be verified by
[37 FR 3278, Feb. 12, 1972]                        the person who prepares them.
  EDITORIAL NOTE: For FEDERAL REGISTER ci-            (2) A petition for special relief or
tations affecting § 76.5, see the List of CFR      must-carry complaint shall set forth
Sections Affected in the Finding Aids sec-         all steps taken by the parties to re-
tion of this volume.                               solve the problem, except where the
  EFFECTIVE DATE NOTE: At 61 FR 6137, Feb.         only relief sought is a clarification or
16, 1996, in § 76.5, paragraph (ll) was revised.   interpretation of the rules.
Paragraph (ll) contains information collec-           (3) An original and two (2) copies of
tion and recordkeeping requirements and            the petition for special relief or must-
will not become effective until approval has
been given by the Office of Management and
                                                   carry complaint, and all subsequent
Budget.                                            pleadings shall be filed in accordance
                                                   with § 0.401(a) of this chapter, except
§ 76.7 Special relief and must-carry               the petitions for special relief requir-
     complaint procedures.                         ing fees as set forth at part 1, subpart
   (a)(1) Petitions for special relief. On pe-     G of this chapter must be filed in ac-
tition by a cable television system op-            cordance with § 0.401(b) of this chapter.
erator, a franchising authority, an ap-            Must-carry complaints filed pursuant
plicant, permittee, or licensee of a tele-         to § 76.61 are not covered by part 1, sub-
vision broadcast or translator station,            part G of this chapter and do not re-
or by any other interested person, the             quire fees.
Commission may waive any provision                    (4)(i) Must-carry complaints filed
of the rules relating to cable television          pursuant to § 76.61(a) (Complaints re-
systems, impose additional or different            garding carriage of local commercial
requirements, or issue a ruling on a               television stations) shall be accom-
complaint or disputed question.                    panied by the notice from the com-
   (2) Complaints filed pursuant to § 76.61.       plainant to the cable television system
In response to a complaint filed by a              operator (§ 76.61(a)(1)), and the cable
television broadcast station under                 television system operator’s response

                                               523
§ 76.7                                                 47 CFR Ch. I (10–1–98 Edition)

(§ 76.61(a)(2)), if any. If no timely re-    oppositions within ten (10) days after
sponse was received, the complaint           their submission, which shall be served
should so state.                             on all persons who have filed pleadings
   (ii) Must-carry complaints filed pur-     and shall also contain a detailed full
suant to § 76.61(b) (Complaints regard-      showing, supported by affidavit, of any
ing carriage of qualified local NCE tel-     additional facts or considerations re-
evision stations) should be accom-           lied on. For good cause shown, the
panied by any relevant correspondence        Commission may specify a shorter
between the complainant and the cable        time for the filing of reply comments.
television system operator.                    (f) The Commission, after consider-
   (iii) No must-carry complaint filed
                                             ation of a petition for special relief and
pursuant to § 76.61(a) (complaints re-
                                             the responsive pleadings, may deter-
garding local commercial television
stations) will be accepted by the Com-       mine whether the public interest would
mission if filed more than sixty (60)        be served by the grant, in whole or in
days after the date of the specific event    part, or denial of the request, or may
described in this paragraph. Must-carry      issue a ruling on the complaint or dis-
complaints filed pursuant to § 76.61(a)      pute. The Commission will resolve
should affirmatively state the specific      must-carry complaints pursuant to
event upon which the complaint is            paragraphs (a)(4) and (b)(2) of § 76.61.
based, and shall establish that the          The Commission may specify other
complaint is being filed within sixty        procedures, such as oral argument, evi-
(60) days of such specific event. With       dentiary hearing, or further written
respect to such must-carry complaints,       submissions directed to particular as-
the specific event shall be—                 pects, as it deems appropriate. In the
   (A) The denial by a cable television      event that an evidentiary hearing is re-
system operator of request for carriage      quired, the Commission will determine,
or channel position contained in the         on the basis of the pleadings and such
notice required by § 76.61(a)(1), or         other procedures as it may specify,
   (B) The failure to respond to such no-    whether temporary relief should be af-
tice within the time period allowed by       forded any party pending the hearing
§ 76.61(a)(2).                               and the nature of any such temporary
   (iv) With respect to must-carry com-      relief.
plaints filed pursuant to § 76.61(b), such
                                               (g) On a finding that the public inter-
complaints may be filed at any time
                                             est so requires, the Commission may
the complainant believes that the
cable television system operator has         determine that a system community
failed to comply with the applicable         unit operating or proposing to operate
provisions of subpart D of this part.        in a community located outside of the
   (d) Interested persons may submit         48 contiguous states shall comply with
comments or oppositions to a petition        provisions of subparts D, F, and G of
for special relief or a must-carry com-      this part in addition to the provisions
plaint within twenty (20) days after the     thereof otherwise applicable.
date of public notice of the filing of         NOTE: Each party filing a petition, com-
such petition or complaint. For good         ments, opposition or other pleading pursuant
cause shown in the petition for special      to § 76.7 is responsible for the continuing ac-
relief or must-carry complaint, the          curacy and completeness of all information
Commission may, by letter or telegram        in such document. The provisions of § 1.65 of
to known interested persons, specify an      this chapter are wholly applicable to plead-
altered time for such submissions.           ings involving § 76.7, except that where spe-
Comments or oppositions shall be             cific provisions of the latter conflict with
served on the petitioner or complain-        the former, the specific provisions of § 76.7
ant and on all persons listed in peti-       are controlling, e.g., where requirements for
tioner’s or complainant’s certificate of     service on specified parties of certain infor-
service, and shall contain a detailed        mation may vary.
full showing, supported by affidavit, of
                                             [58 FR 17358, Apr. 2, 1993, as amended at 59
any facts or considerations relied on.
                                             FR 62344, Dec. 5, 1994]
   (e) The petitioner or complainant
may file a reply to the comments or

                                         524
Federal Communications Commission                                                 § 76.11

§ 76.8 Dismissal of special relief peti-    petition, the Commission may, by let-
     tions.                                 ter or telegram to known interested
  (a) A petition for special relief may,    persons, specify a shorter time for such
upon request of the petitioner, be dis-     submissions. Comments or oppositions
missed without prejudice as a matter        shall be served on petitioner and on all
of right prior to the adoption date of      persons listed in petitioner’s certifi-
any final action taken by the Commis-       cate of service, and shall contain a de-
sion with respect to the petition. A pe-    tailed full showing supported by affida-
titioner’s request for the return of a      vit, of any facts or circumstances re-
petition will be regarded as a request      lied on.
for dismissal.                                (e) The petitioner may file a reply to
  (b) Failure to prosecute a petition, or   the comments or oppositions within
failure to respond to official cor-         twenty (20) days after the time for fil-
respondence or request for additional       ing such comments or oppositions has
information, will be cause for dismis-      ended. A reply shall be served on all
sal. Such dismissal will be without         persons who have filed pleadings and
prejudice if it occurs prior to the adop-   shall also contain a detailed full show-
tion date of any final action taken by      ing, supported by affidavit, of any addi-
the Commission with respect to the pe-
                                            tional facts or considerations relied on.
tition.
                                            For good cause shown, the Commission
[40 FR 12797, Mar. 21, 1975]                may specify a shorter time for the fil-
                                            ing of reply comments.
§ 76.9 Order to show cause; forfeiture        (f) The Commission, after consider-
     proceeding.
                                            ation of the pleadings, shall determine
  (a) Upon petition by any interested       whether the public interest requires
person, the Commission may:                 the issuance of an order to show cause
  (1) Issue an order requiring a cable      or the initiation of a forfeiture pro-
television operator to show cause why       ceeding.
it should not be directed to cease and
desist from violating the Commission’s         NOTE 1: After issuance of an order to show
rules;                                      cause, the rules of procedure in title 47, part
  (2) Initiate a forfeiture proceeding      1, subpart A, §§1.91–1.95 shall apply.
against a cable television operator for       NOTE 2: Nothing in this section is intended
violation of the Commission’s Rules.        to prevent the Commission from initiating
  (b) The petition may be submitted in-     show cause or forfeiture proceedings on its
formally, by letter, but shall be accom-    own motion; Provided, however, That show
                                            cause proceedings and forfeiture proceedings
panied by a certificate of service on
                                            pursuant to § 1.80(g) of the rules will not be
any interested person who may be di-        initiated by such motion until the affected
rectly affected if an order to show         parties are given an opportunity to respond
cause is issued or a forfeiture proceed-    to the Commission’s charges.
ing initiated. An original and two cop-
                                              NOTE 3: Forfeiture proceedings are gen-
ies of the petition and all subsequent      erally nonhearing matters conducted pursu-
pleadings should be filed.                  ant to the provisions of § 1.80(f) of the rules
  (c) The petition shall state fully and    (Notice of Apparent Liability). Petitioners
precisely all pertinent facts and con-      who contend that the alternative hearing
siderations relied on to support a de-      procedures of § 1.80(g) of the rules should be
termination that issuance of an order       followed in a particular case must support
to show cause or initiation of a forfeit-   this contention with a specific showing of
ure proceeding would be in the public       the facts and considerations relied on.
interest. Factual allegations shall be
supported by affidavit of a person or       [42 FR 56507, Oct. 26, 1977, as amended at 44
persons with actual knowledge of the        FR 55575, Sept. 27, 1979]
facts, and exhibits shall be verified by
                                            § 76.11   Lockbox enforcement.
the person who prepares them.
  (d) Interested persons may submit           Any party aggrieved by the failure or
comments or oppositions to the peti-        refusal of a cable operator to provided
tion within thirty (30) days after it has   a lockbox as provided for in Title VI of
been filed. For good cause shown in the     the Communications Act may petition

                                        525
§ 76.12                                                            47 CFR Ch. I (10–1–98 Edition)

the Commission for relief in accord-                    case of the operator’s physical disabil-
ance with the provisions and proce-                     ity or of his absence from the United
dures set forth in § 76.7 for petitions for             States. The attorney shall in that
special relief.                                         event separately set forth the reasons
[50 FR 18661, May 2, 1985]                              why the registration statement was
                                                        not signed by the operator. In addition,
                                                        if any matter is stated on the basis of
        Subpart B—Registration                          the attorney’s belief only (rather than
             Statements                                 his knowledge), he shall separately set
§ 76.12 Registration      statement    re-              forth his reasons for believing that
      quired.                                           such statements are true.
   A system community unit shall be                     [43 FR 49008, Oct. 20, 1978]
authorized to commence operation
only after filing with the Commission                   § 76.17 Public notice.
the following information:                                 The Commission will give public no-
   (a) The legal name of the operator,                  tice of the filing of registration state-
entity identification or social security                ments.
number, and whether the operator is an                  [43 FR 49008, Oct. 20, 1978]
individual, private association, part-
nership, or corporation. If the operator                § 76.29 Special temporary authority.
is a partnership, the legal name of the
                                                           (a) In circumstances requiring the
partner responsible for communica-
                                                        temporary use of community units for
tions with the Commission shall be
                                                        operations not authorized by the Com-
supplied;
                                                        mission’s rules, a cable television sys-
   (b) The assumed name (if any) used
                                                        tem may request special temporary au-
for doing business in the community;
                                                        thority to operate. The Commission
   (c) The mail address, including ZIP
                                                        may grant special temporary author-
code, and the telephone number to
                                                        ity, upon a finding that the public in-
which all communications are to be di-
                                                        terest would be served thereby, for a
rected;
                                                        period not to exceed ninety (90) days,
   (d) The date the system provided
                                                        and may extend such authority, upon a
service to 50 subscribers;
   (e) The name of the community or                     like finding, for one additional period,
area served and the county in which it                  not to exceed ninety (90) days.
is located;                                                (b) Requests for special temporary
   (f) The television broadcast signals to              authority may be submitted infor-
be carried which previously have not                    mally, by letter, and shall contain the
been certified or registered.                           following:
                                                           (1) Name and address of the applicant
(Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317,   cable system.
48 Stat. 1064—1066, 1068, 1081—1085, 1088, 1089,           (2) Community in which the commu-
as amended; 47 U.S.C. 152, 153, 154, 155, 301,          nity unit is located.
303, 307, 308, 309, 315, 317)                              (3) Type of operation to be conducted.
[37 FR 3278, Feb. 12, 1972, as amended at 45               (4) Date of commencement of pro-
FR 52154, Aug. 6, 1980; 49 FR 27154, July 2,            posed operations.
1984; 50 FR 40855, Oct. 7, 1985]                           (5) Duration of time for which tem-
                                                        porary authority is required.
§ 76.14 Who may sign registration                          (6) All pertinent facts and consider-
     statements.                                        ations relied on to demonstrate the
   (a) Registration statements shall be                 need for special temporary authority
personally signed by the operator; by                   and to support a determination that a
one of the partners, if the operator is a               grant of such authority would serve the
partnership; by an officer, if the opera-               public interest.
tor is a corporation; by a member who                      (7) A certificate of service on all in-
is an officer, if the operator is an unin-              terested parties.
corporated association; or by any duly                     (c) A request for special temporary
authorized employee of the operator.                    authority shall be filed at least ten (10)
   (b) Registration statements may be                   days prior to the date of commence-
signed by the operator’s attorney in                    ment of the proposed operations, or

                                                    526
Federal Communications Commission                                                      § 76.51

shall be accompanied by a statement of              (34) Albany-Schenectady-Troy, N.Y.
reasons for the delay in submitting                 (35) Syracuse, N.Y.
such request.                                       (36) Charleston-Huntington, W. Va.
                                                    (37) Kalamazoo-Grand Rapids-Battle Creek,
  (d) A grant of special temporary au-
                                                  Mich.
thority may be rescinded by the Com-                (38) Louisville, Ky.
mission at any time upon a finding of               (39) Oklahoma City, Okla.
facts which warrant such action.                    (40) Birmingham, Ala.
                                                    (41) Dayton-Kettering, Ohio.
[39 FR 35166, Sept. 30, 1974; 42 FR 19346, Apr.
                                                    (42) Charlotte, N.C.
13, 1977, as amended at 43 FR 49008, Oct. 20,
                                                    (43) Phoenix-Mesa, Ariz.
1978]
                                                    (44) Norfolk-Newport News-Portsmouth-
                                                  Hampton, Va.
Subpart   C—Federal-State/Local                     (45) San Antonio, Tex.
   Regulatory     Relationships                     (46)      Greenville-Spartanburg-Anderson,
                                                  S.C.-Asheville, N.C.
   [Reserved]                                       (47)     Greensboro-High      Point-Winston
                                                  Salem, N.C.
Subpart D—Carriage of Television                    (48) Salt Lake City, Utah.
       Broadcast Signals                            (49) Wilkes Barre-Scranton, Pa.
                                                    (50) Little Rock-Pine Bluff, Arkansas.
§ 76.51 Major television markets.                  (b) Second 50 major television mar-
   For purposes of the cable television           kets:
rules, the following is a list of the
                                                    (51) San Diego, Calif.
major television markets and their                  (52) Toledo, Ohio.
designated communities:                             (53) Omaha, Nebr.
   (a) First 50 major television markets:           (54) Tulsa, Okla.
  (1) New York, New York-Linden-Paterson-           (55) Orlando-Daytona Beach-Melbourne-
Newark, New Jersey.                               Cocoa-Clermont, Florida.
  (2) Los Angeles-San Bernardino-Corona-            (56) Rochester, N.Y.
Fontana-Riverside, Calif.                           (57) Harrisburg-Lancaster-York, Pa.
  (3) Chicago, Ill.                                 (58) Texarkana, Tex.-Shreveport, La.
  (4) Philadelphia, Pa.-Burlington, N.J.            (59) Mobile, Ala.-Pensacola, Fla.
  (5) Detroit, Mich.                                (60) Davenport, Iowa-Rock Island-Moline,
  (6) Boston-Cambridge-Worcester-Lawrence,        Ill.
Mass.                                               (61) Flint-Bay City-Saginaw, Mich.
  (7) San Francisco-Oakland-San Jose, Calif.        (62) Green Bay, Wis.
  (8) Cleveland-Lorain-Akron, Ohio.                 (63) Richmond-Petersburg, Va.
  (9) Washington, DC.                               (64) Springfield-Decatur-Champaign, Illi-
  (10) Pittsburgh, Pa.                            nois.
  (11) St. Louis, Mo.                               (65) Cedar Rapids-Waterloo, Iowa.
  (12) Dallas-Fort Worth, Tex.                      (66) Des Moines-Ames, Iowa.
  (13) Minneapolis-St. Paul, Minn.                  (67) Wichita-Hutchinson, Kans.
  (14) Baltimore, Md.                               (68) Jacksonville, Fla.
  (15) Houston, Tex.                                (69) Cape Girardeau, Mo.-Paducah, Ky.-
  (16) Indianapolis-Bloomington, Ind.             Harrisburg, Ill.
  (17) Cincinnati, Ohio-Newport, Ky.                (70) Roanoke-Lynchburg, Va.
  (18) Atlanta-Rome, Ga.                            (71) Knoxville, Tenn.
  (19) Hartford-New Haven-New Britain-Wa-           (72) Fresno-Visalia-Hanford-Clovis, Califor-
terbury-New London, Ct.                           nia.
  (20) Seattle-Tacoma, Wash.                        (73)    Raleigh-Durham-Goldsboro-Fayette-
  (21) Miami, Fla.                                ville, North Carolina.
  (22) Kansas City, Mo.                             (74) Johnstown-Altoona, Pa.
  (23) Milwaukee, Wis.                              (75) Portland-Poland Spring, Maine.
  (24) Buffalo, N.Y.                                (76) Spokane, Wash.
  (25) Sacramento-Stockton-Modesto, Calif.          (77) Jackson, Miss.
  (26) Memphis, Tenn.                               (78) Chattanooga, Tenn.
  (27) Columbus-Chillicothe, Ohio.                  (79) Youngstown, Ohio.
  (28) Los Angeles-San Bernandino-Corona-           (80) South Bend-Elkhart, Ind.
Riverside-Anaheim, Calif.                           (81) Albuquerque, N. Mex.
  (29) Portland, Oreg.                              (82) Fort Wayne-Roanoke, Ind.
  (30) Nashville, Tenn.                             (83) Peoria, Ill.
  (31) New Orleans, La.                             (84) Greenville-Washington-New Bern, N.C.
  (32) Denver-Castle Rock, Colorado.                (85) Sioux Falls-Mitchell, S. Dak.
  (33) Providence, R.I.-New Bedford, Mass.          (86) Evansville, Ind.

                                              527
§ 76.53                                                                                         47 CFR Ch. I (10–1–98 Edition)
   (87) Baton Rouge, La.                                                           State and community                       Latitude     Longitude
   (88) Beaumont-Port Arthur, Tex.
   (89) Duluth, Minn.-Superior, Minn.                                            Tucson ................................     32°13′15′′   110°58′08′′
   (90) Wheeling, W. Va.-Steubenville, Ohio.                                     Yuma ..................................     32°43′16′′   114°37′01′′
                                                                            Arkansas:
   (91) Lincoln-Hastings-Kearney, Nebr.
                                                                                 El Dorado ...........................       33°12′39′′    92°39′40′′
   (92) Lansing-Onondaga, Mich.                                                  Fayetteville .........................      36°03′41′′    94°09′38′′
   (93) Madison, Wis.                                                            Fort Smith ...........................      35°23′10′′    94°25′36′′
   (94) Columbus, Ga.                                                            Jonesboro ...........................       35°50′14′′    90°42′11′′
   (95) Amarillo, Tex.                                                           Little Rock ..........................      34°44′42′′    92°16′37′′
   (96) Huntsville-Decatur, Ala.                                            California:
   (97) Rockford-Freeport, Ill.                                                  Bakersfield ..........................      35°22′31′′   119°01′16′′
   (98) Fargo-Valley City, N.D.                                                  Chico ..................................    39°44′07′′   121°49′57′′
                                                                                 Concord ..............................      37°58′46′′   122°01′51′′
   (99) Monroe, La.-El Dorado, Ark.
                                                                                 Corona ................................     33°52′35′′   117°33′56′′
   (100) Columbia, S.C.                                                          El Centro ............................      32°47′25′′   115°32′45′′
   NOTE: Requests for changes to this list                                       Eureka ................................     40°48′08′′   124°09′46′′
                                                                                 Fontana ..............................      34°05′45′′   117°26′29′′
shall be made in the form of a petition for
                                                                                 Fresno ................................     36°44′12′′   119°47′11′′
rulemaking pursuant to § 1.401 of this chap-                                     Guasti .................................    34°03′48′′   117°35′10′′
ter, except that such petitions shall not be                                     Hanford ...............................     36°19′51′′   119°38′48′′
subject to the public notice provisions of                                       Los Angeles .......................         34°03′15′′   118°14′28′′
§ 1.403 of this chapter.                                                         Modesto ..............................      37°38′26′′   120°59′44′′
                                                                                 Monterey ............................       36°35′44′′   121°53′39′′
[37 FR 3278, Feb. 12, 1972, as amended at 37                                     Oakland ..............................      37°48′03′′   122°15′54′′
                                                                                 Palm Springs ......................         33°49′22′′   116°32′46′′
FR 13866, July 14, 1972; 39 FR 24373, July 2,                                    Redding ..............................      40°34′57′′   122°23′34′′
1974; 39 FR 27572, July 30, 1974; 39 FR 37988,                                   Sacramento ........................         38°34′57′′   121°29′41′′
Oct. 25, 1974; 58 FR 17359, Apr. 2, 1993; 58 FR                                  Salinas ................................    36°40′24′′   121°39′25′′
30995, May 28, 1993; 58 FR 64168, Dec. 6, 1993;                                  San Bernardino ..................           34°06′30′′   117°17′28′′
58 FR 67694, Dec. 22, 1993; 59 FR 25344, May 16,                                 San Diego ..........................        32°42′53′′   117°09′21′′
1994; 59 FR 46358, Sept. 8, 1994; 60 FR 45376,                                   San Francisco ....................          37°46′39′′   122°24′40′′
                                                                                 San Jose ............................       37°20′16′′   121°53′24′′
Aug. 31, 1995; 60 FR 51928, Oct. 4, 1995; 61 FR
                                                                                 San Luis Obispo .................           35°16′49′′   120°39′34′′
18292, Apr. 25, 1996]                                                            San Mateo ..........................        37°34′08′′   122°19′16′′
                                                                                 Santa Barbara ....................          34°25′18′′   119°41′55′′
§ 76.53 Reference points.                                                        Santa Maria ........................        34°57′02′′   120°26′10′′
                                                                                 Stockton .............................      37°57′30′′   121°17′16′′
   The following list of reference points                                        Tulare .................................    36°12′31′′   119°20′35′′
shall be used to identify the boundaries                                         Ventura ...............................     34°16′47′′   119°17′22′′
of the major and smaller television                                              Visalia .................................   36°19′46′′   119°17′30′′
markets (defined in § 76.5). Where a                                        Colorado:
                                                                                 Colorado Springs ...............            38°50′07′′   104°49′16′′
community’s reference point is not                                               Denver ................................     39°44′58′′   104°59′22′′
given, the geographic coordinates of                                             Durango ..............................      37°16′29′′   107°52′25′′
the main post office in the community                                            Grand Junction ...................          39°04′06′′   108°33′54′′
                                                                                 Montrose ............................       38°28′44′′   107°52′31′′
shall be used.                                                                   Pueblo ................................     38°16′17′′   104°36′33′′
                                                                                 Sterling ...............................    40°37′29′′   103°12′25′′
       State and community                       Latitude     Longitude
                                                                            Connecticut:
Alabama:                                                                         Bridgeport ...........................      41°10′49′′    73°11′22′′
     Anniston .............................      33°39′49′′    85°49′47′′        Hartford ..............................     41°46′12′′    72°40′49′′
     Birmingham ........................         33°31′01′′    86°48′36′′        New Britain .........................       41°40′02′′    72°47′08′′
     Decatur ...............................     34°36′35′′    86°58′45′′        New Haven .........................         41°18′25′′    72°55′30′′
     Demopolis ..........................        32°30′56′′    87°50′07′′        Norwich ..............................      41°31′36′′    72°04′31′′
     Dothan ................................     31°13′27′′    85°23′35′′        Waterbury ...........................       41°33′13′′    73°02′31′′
     Dozier .................................    31°29′30′′    86°21′59′′   Delaware:
     Florence .............................      34°48′05′′    87°40′31′′        Wilmington ..........................       39°44′46′′    75°32′51′′
     Huntsville ............................     34°44′18′′    86°35′19′′   District of Columbia:
     Louisville .............................    31°47′00′′    85°33′09′′        Washington ........................         38°53′51′′    77°00′33′′
     Mobile .................................    30°41′36′′    88°02′33′′   Florida:
     Montgomery .......................          32°22′33′′    86°18′31′′        Clearwater ..........................       27°57′56′′    82°47′51′′
     Mount Cheaha State Park                     33°29′26′′    85°48′30′′        Daytona Beach ...................           29°12′44′′    81°01′10′′
     Selma .................................     24°24′26′′    87°01′15′′        Fort Lauderdale ..................          26°07′11′′    80°08′34′′
     Tuscaloosa .........................        33°12′05′′    87°33′44′′        Fort Myers ..........................       26°38′42′′    81°52′06′′
Alaska:                                                                          Fort Pierce ..........................      27°26′48′′    80°19′38′′
     Anchorage ..........................        61°13′09′′   149°53′29′′        Gainesville ..........................      29°38′56′′    82°19′19′′
     College ...............................     64°51′22′′   147°48′38′′        Jacksonville ........................       30°19′44′′    81°39′42′′
     Fairbanks ............................      64°50′35′′   147°41′51′′        Largo ..................................    27°54′54′′    82°47′32′′
     Juneau ................................     58°18′06′′   134°25′09′′        Leesburg ............................       28°48′43′′    81°52′30′′
     Sitka ...................................   57°02′58′′   135°20′12′′        Melbourne ..........................        28°04′41′′    80°36′29′′
Arizona:                                                                         Miami ..................................    25°46′37′′    80°11′32′′
     Flagstaff ..............................    35°11′54′′   111°39′02′′        Ocala ..................................    29°11′34′′    82°08′14′′
     Mesa ...................................    33°24′54′′   111°49′41′′        Orlando ...............................     28°32′42′′    81°22′38′′
     Nogales ..............................      31°20′14′′   110°56′12′′        Panama City .......................         30°09′24′′    85°39′47′′
     Phoenix ..............................      33°27′12′′   112°04′28′′        Pensacola ...........................       30°24′51′′    87°12′56′′


                                                                          528
Federal Communications Commission                                                                                                         § 76.53

        State and community                        Latitude     Longitude            State and community                     Latitude     Longitude

      St. Petersburg ....................          27°46′18′′    82°38′16′′       Cedar Rapids .....................         41°58′48′′    91°39′48′′
      Sarasota .............................       27°20′05′′    82°32′29′′       Davenport ...........................      41°31′24′′    90°34′21′′
      Tallahassee ........................         30°26′30′′    84°16′50′′       Des Moines ........................        41°35′14′′    93°37′00′′
      Tampa ................................       27°56′58′′    82°27′26′′       Dubuque .............................      42°29′55′′    90°40′08′′
      West Palm Beach ..............               26°42′36′′    80°03′05′′       Fort Dodge .........................       42°30′12′′    94°11′05′′
Georgia:                                                                          Iowa City ............................     41°39′37′′    91°31′52′′
      Albany ................................      31°34′36′′    84°09′22′′       Mason City .........................       43°09′15′′    93°12′00′′
      Athens ................................      33°57′34′′    83°22′39′′       Sioux City ...........................     42°29′46′′    96°24′30′′
      Atlanta ................................     33°45′10′′    84°23′37′′       Waterloo .............................     42°29′40′′    92°20′20′′
      Augusta ..............................       33°28′20′′    81°58′00′′   Kansas:
      Chatsworth .........................         34°46′08′′    84°46′10′′       Ensign ................................    37°38′48′′   100°14′00′′
      Cochran ..............................       32°23′18′′    83°21′18′′       Garden City ........................       37°57′54′′   100°52′20′′
      Columbus ...........................         32°28′07′′    84°59′24′′       Goodland ............................      39°20′53′′   101°42′35′′
      Dawson ..............................        31°46′33′′    84°26′20′′       Great Bend .........................       38°22′04′′    98°45′58′′
      Macon .................................      32°50′12′′    83°37′36′′       Hays ...................................   38°52′16′′    99°19′57′′
      Pelham ...............................       31°07′42′′    84°09′02′′       Hutchinson .........................       38°03′11′′    97°55′20′′
      Savannah ...........................         32°04′42′′    81°05′37′′       Pittsburg .............................    37°24′50′′    94°42′11′′
      Thomasville ........................         30°50′25′′    83°58′59′′       Salina .................................   38°50′36′′    97°36′46′′
      Waycross ............................        31°12′19′′    82°21′47′′       Topeka ...............................     39°03′16′′    95°40′23′′
      Wrens .................................      33°12′21′′    82°23′23′′       Wichita ................................   37°41′30′′    97°20′16′′
Guam:                                                                         Kentucky:
      Agana .................................      13°28′23′′   144°45′00′′       Ashland ..............................     38°28′36′′    82°38′23′′
Hawaii:                                                                           Bowling Green ....................         36°59′41′′    86°26′33′′
      Hilo .....................................   19°43′42′′   155°05′30′′       Covington ...........................      39°05′00′′    84°30′29′′
      Honolulu .............................       21°18′36′′   157°51′48′′       Elizabethtown .....................        37°41′38′′    85°51′35′′
      Wailuku ...............................      20°53′21′′   156°30′27′′       Hazard ................................    37°14′54′′    83°11′31′′
Idaho:                                                                            Lexington ............................     38°02′50′′    84°29′46′′
      Boise ..................................     43°37′07′′   116°11′58′′       Louisville .............................   38°14′47′′    85°45′49′′
      Idaho Falls ..........................       43°29′39′′   112°02′28′′       Madisonville ........................      37°19′45′′    87°29′54′′
      Lewiston .............................       46°25′05′′   117°01′10′′       Morehead ...........................       38°10′53′′    83°26′08′′
      Moscow ..............................        46°43′58′′   116°59′54′′       Murray ................................    36°36′35′′    88°18′39′′
      Pocatello .............................      42°51′38′′   112°27′01′′       Newport ..............................     39°05′28′′    84°29′20′′
      Twin Falls ...........................       42°33′25′′   114°28′21′′       Owensboro .........................        37°46′27′′    87°06′46′′
Illinois:                                                                         Owenton .............................      38°32′11′′    84°50′16′′
      Aurora .................................     41°45′22′′    88°18′56′′       Paducah .............................      37°05′13′′    88°35′56′′
      Bloomington .......................          40°28′58′′    88°59′32′′       Pikesville ............................    37°28′49′′    82°31′09′′
      Carbondale .........................         37°43′38′′    89°13′00′′       Somerset ............................      37°05′35′′    84°36′17′′
      Champaign .........................          40°07′05′′    88°14′48′′   Louisiana:
      Chicago ..............................       41°52′28′′    87°38′22′′       Alexandria ..........................      31°18′33′′    92°26′47′′
      Decatur ...............................      39°50′37′′    88°57′11′′       Baton Rouge ......................         30°26′58′′    91°11′00′′
      Elgin ...................................    42°02′14′′    88°16′53′′       Houma ................................     29°35′34′′    90°43′09′′
      Freeport ..............................      42°17′57′′    89°37′07′′       Lafayette .............................    30°13′24′′    92°01′06′′
      Harrisburg ...........................       37°44′20′′    88°32′25′′       Lake Charles ......................        30°13′45′′    93°12′52′′
      Jacksonville ........................        39°44′03′′    90°13′44′′       Monroe ...............................     32°30′02′′    92°06′55′′
      Joliet ...................................   41°31′37′′    88°04′52′′       New Orleans ......................         29°56′53′′    90°04′10′′
      La Salle ..............................      41°19′49′′    89°05′44′′       Shreveport ..........................      32°30′46′′    93°44′58′′
      Moline .................................     41°30′31′′    90°30′49′′       West Monroe ......................         32°30′51′′    92°08′13′′
      Mount Vernon .....................           38°18′29′′    88°54′26′′   Maine:
      Olney ..................................     38°43′47′′    88°05′00′′       Augusta ..............................     44°18′53′′    69°46′29′′
      Peoria .................................     40°41′42′′    89°35′33′′       Bangor ................................    44°48′13′′    68°46′18′′
      Quincy ................................      39°55′59′′    91°24′12′′       Calais .................................   45°11′04′′    67°16′43′′
      Rockford .............................       42°16′07′′    89°05′48′′       Orono .................................    44°53′15′′    68°40′12′′
      Rock Island ........................         41°30′40′′    90°34′24′′       Poland Spring .....................        44°01′42′′    70°21′40′′
      Springfield ..........................       39°47′58′′    89°38′51′′       Portland ..............................    43°39′33′′    70°15′19′′
      Urbana ................................      40°06′41′′    88°13′13′′       Presque Isle .......................       46°40′57′′    68°00′52′′
Indiana:                                                                      Maryland:
      Bloomington .......................          39°09′56′′    86°31′52′′       Baltimore ............................     39°17′26′′    76°36′45′′
      Elkhart ................................     41°40′56′′    85°58′15′′       Cumberland ........................        39°39′01′′    78°45′45′′
      Evansville ...........................       37°58′20′′    87°34′21′′       Hagerstown ........................        39°38′39′′    77°43′15′′
      Fort Wayne .........................         41°04′21′′    85°08′26′′       Salisbury .............................    38°21′56′′    75°35′56′′
      Gary ....................................    41°35′59′′    87°20′07′′   Massachusetts:
      Hammond ...........................          41°35′13′′    87°27′43′′       Adams ................................     42°37′30′′    73°07′05′′
      Indianapolis ........................        39°46′07′′    86°09′46′′       Boston ................................    42°21′24′′    71°03′25′′
      Lafayette .............................      40°25′11′′    86°53′39′′       Cambridge ..........................       42°21′58′′    71°06′24′′
      Marion ................................      40°33′17′′    85°39′49′′       Greenfield ...........................     42°35′15′′    72°35′54′′
      Muncie ................................      40°11′28′′    85°23′16′′       New Bedford ......................         41°38′13′′    70°55′41′′
      Richmond ...........................         39°49′49′′    84°53′26′′       Springfield ..........................     42°06′21′′    72°35′32′′
      Roanoke .............................        40°57′50′′    85°22′30′′       Worcester ...........................      42°15′37′′    71°48′17′′
      St. John ..............................      41°27′00′′    87°28′13′′   Michigan:
      South Bend ........................          41°40′33′′    86°15′01′′       Allen Park ...........................     42°15′12′′    83°12′57′′
      Terre Haute ........................         39°28′03′′    87°24′26′′       Battle Creek .......................       42°18′58′′    85°10′48′′
      Vincennes ...........................        38°40′52′′    87°31′12′′       Bay City ..............................    43°36′04′′    83°53′15′′
Iowa:                                                                             Cadillac ...............................   44°15′10′′    85°23′52′′
      Ames ..................................      42°01′36′′    93°36′44′′       Cheboygan .........................        45°38′38′′    84°28′38′′


                                                                            529
§ 76.53                                                                                          47 CFR Ch. I (10–1–98 Edition)

        State and community                       Latitude     Longitude            State and community                      Latitude     Longitude

    Detroit .................................     42°19′48′′    83°02′57′′       Merriman ............................       42°55′07′′   101°42′02′′
    Escanaba ...........................          45°44′45′′    87°03′18′′       Norfolk ................................    42°01′56′′    97°24′42′′
    Flint .....................................   43°00′50′′    83°41′33′′       North Platte ........................       41°08′14′′   100°45′43′′
    Grand Rapids .....................            42°58′03′′    85°40′13′′       Omaha ................................      41°15′42′′    95°56′14′′
    Jackson ..............................        42°14′43′′    84°24′22′′       Scottsbluff ...........................     41°51′40′′   103°39′00′′
    Kalamazoo .........................           42°17′29′′    85°35′14′′       Superior ..............................     40°01′12′′    98°04′00′′
    Lansing ...............................       42°44′01′′    84°33′15′′   Nevada:
    Marquette ...........................         46°32′37′′    87°23′43′′       Elko ....................................   40°50′00′′   115°45′41′′
    Mount Pleasant ..................             43°16′12′′    84°46′31′′       Henderson ..........................        36°02′00′′   114°58′57′′
    Muskegon ...........................          43°14′17′′    86°15′02′′       Las Vegas ..........................        36°10′20′′   115°08′37′′
    Onondaga ...........................          42°26′41′′    84°33′43′′       Reno ...................................    39°31′27′′   119°48′40′′
    Saginaw ..............................        43°25′52′′    83°56′05′′   New Hampshire:
    Sault Ste. Marie .................            46°29′58′′    84°20′37′′       Berlin ..................................   44°28′20′′    71°10′43′′
    Traverse City ......................          44°45′47′′    85°37′25′′       Durham ...............................      43°08′02′′    70°55′35′′
    University Center ................            43°33′31′′    83°59′09′′       Hanover ..............................      43°42′03′′    72°17′24′′
Minnesota:                                                                       Keene .................................     42°56′02′′    72°16′44′′
    Alexandria ..........................         45°53′06′′    95°22′39′′       Lebanon .............................       43°38′34′′    72°15′12′′
    Appleton .............................        45°12′00′′    96°01′02′′       Littleton ...............................   44°18′22′′    71°46′13′′
    Austin .................................      43°39′57′′    92°58′20′′       Manchester .........................        42°59′28′′    71°27′41′′
    Duluth .................................      46°46′56′′    92°06′24′′   New Jersey:
    Hibbing ...............................       47°25′43′′    92°56′21′′       Atlantic City ........................      39°21′32′′    74°25′53′′
    Mankato ..............................        44°09′49′′    94°00′09′′       Burlington ...........................      40°04′21′′    74°51′47′′
    Minneapolis ........................          44°58′57′′    93°15′43′′       Camden ..............................       39°56′45′′    75°07′20′′
    Rochester ...........................         44°01′21′′    92°28′03′′       Glen Ridge .........................        40°48′16′′    74°12′14′′
    St. Cloud ............................        45°33′35′′    94°09′38′′       Linden .................................    40°37′57′′    74°15′22′′
    St. Paul ...............................      44°56′50′′    93°05′11′′       Newark ...............................      40°44′14′′    74°10′19′′
    Walker ................................       47°05′57′′    94°35′12′′       New Brunswick ...................           40°29′38′′    74°26′49′′
Mississippi:                                                                     Paterson .............................      40°54′51′′    74°09′51′′
    Biloxi ...................................    30°23′43′′    88°53′08′′       Trenton ...............................     40°13′16′′    74°45′28′′
    Bude ...................................      31°27′46′′    90°50′34′′       Vineland .............................      39°29′13′′    75°01′17′′
    Columbus ...........................          33°29′40′′    88°25′33′′       Wildwood ............................       38°59′18′′    74°48′43′′
    Greenwood .........................           33°31′05′′    90°10′55′′   New Mexico:
    Gulfport ...............................      30°22′04′′    89°05′36′′       Albuquerque .......................         35°05′01′′   106°39′05′′
    Jackson ..............................        32°17′56′′    90°11′06′′       Carlsbad .............................      32°25′09′′   104°13′47′′
    Laurel .................................      31°41′40′′    89°07′48′′       Clovis ..................................   34°24′11′′   103°12′08′′
    Meridian ..............................       32°21′57′′    88°42′02′′       Portales ..............................     34°10′58′′   103°20′10′′
    Oxford .................................      34°22′00′′    89°31′07′′       Roswell ...............................     33°23′47′′   104°31′26′′
    State College ......................          33°27′18′′    88°47′13′′   New York:
    Tupelo ................................       34°15′26′′    88°42′30′′       Albany ................................     42°39′01′′    73°45′01′′
Missouri:                                                                        Binghamton ........................         42°06′03′′    75°54′47′′
    Cape Girardeau ..................             37°18′29′′    89°31′29′′       Buffalo ................................    42°52′52′′    78°52′21′′
    Columbia ............................         38°57′03′′    92°19′46′′       Carthage .............................      43°58′50′′    75°36′26′′
    Hannibal .............................        39°42′24′′    91°22′45′′       Elmira .................................    42°05′26′′    76°48′22′′
    Jefferson City .....................          38°34′40′′    92°10′24′′       Garden City ........................        40°43′26′′    73°38′03′′
    Joplin ..................................     37°05′26′′    94°30′50′′       Ithaca ..................................   42°26′33′′    76°29′42′′
    Kansas City ........................          39°04′56′′    94°35′20′′       Jamestown .........................         42°05′45′′    79°14′40′′
    Kirksville .............................      40°11′37′′    92°34′58′′       New York ............................       40°45′06′′    73°59′39′′
    Poplar Bluff .........................        36°45′20′′    90°23′38′′       North Pole ..........................       44°23′59′′    73°51′00′′
    St. Joseph ..........................         39°45′57′′    94°51′02′′       Norwood .............................       44°45′00′′    75°59′39′′
    St. Louis .............................       38°37′45′′    90°12′22′′       Oneonta ..............................      42°27′21′′    75°03′42′′
    Sedalia ...............................       38°42′08′′    93°13′26′′       Patchogue ..........................        40°45′56′′    73°00′42′′
    Springfield ..........................        37°13′03′′    93°17′32′′       Plattsburgh .........................       44°42′03′′    73°27′07′′
Montana:                                                                         Riverhead ...........................       40°55′06′′    72°39′51′′
    Anaconda ...........................          46°07′40′′   112°57′12′′       Rochester ...........................       43°09′41′′    77°36′21′′
    Billings ................................     45°47′00′′   108°30′04′′       Schenectady .......................         42°48′52′′    73°56′24′′
    Butte ...................................     46°01′06′′   112°32′11′′       Syracuse ............................       43°03′04′′    76°09′14′′
    Glendive .............................        47°06′42′′   104°43′02′′       Utica ...................................   43°06′12′′    75°13′33′′
    Great Falls ..........................        47°29′33′′   111°18′23′′       Watertown ..........................        43°58′30′′    75°54′48′′
    Helena ................................       46°35′33′′   112°02′24′′   North Carolina:
    Kalispell ..............................      48°11′45′′   114°18′44′′       Asheville .............................     35°35′42′′    82°33′26′′
    Miles City ............................       46°24′34′′   105°50′30′′       Chapel Hill ..........................      35°54′51′′    79°03′11′′
    Missoula .............................        46°52′23′′   113°59′29′′       Charlotte .............................     35°13′44′′    80°50′45′′
Nebraska:                                                                        Columbia ............................       35°55′06′′    76°15′04′′
    Albion .................................      41°41′23′′    97°59′53′′       Concord ..............................      35°24′29′′    80°34′45′′
    Alliance ...............................      42°06′04′′   102°52′08′′       Durham ...............................      35°59′48′′    78°54′00′′
    Bassett ...............................       42°35′00′′    99°32′10′′       Fayetteville .........................      35°03′12′′    78°52′54′′
    Grand Island .......................          40°55′33′′    98°20′23′′       Greensboro ........................         36°04′17′′    79°47′25′′
    Hastings .............................        40°35′21′′    98°23′20′′       Greenville ...........................      35°36′49′′    77°22′22′′
    Hayes Center .....................            40°30′36′′   101°01′18′′       Hickory ...............................     35°43′54′′    81°20′20′′
    Hay Springs ........................          42°41′03′′   102°41′22′′       High Point ...........................      35°57′14′′    80°00′15′′
    Kearney ..............................        40°41′58′′    99°04′53′′       Jacksonville ........................       34°45′00′′    77°25′54′′
    Lexington ............................        40°46′30′′    99°44′41′′       Linville ................................   36°04′06′′    81°52′16′′
    Lincoln ................................      40°48′59′′    96°42′15′′       New Bern ...........................        35°06′33′′    77°02′23′′
    McCook ..............................         40°12′02′′   100°37′32′′       Raleigh ...............................     35°46′38′′    78°38′21′′


                                                                           530
Federal Communications Commission                                                                                                        § 76.53

       State and community                       Latitude     Longitude            State and community                      Latitude     Longitude

    Washington ........................          35°32′35′′    77°03′16′′   Rhode Island:
    Wilmington ..........................        34°14′14′′    77°56′58′′       Providence .........................        41°49′32′′    71°24′41′′
    Winston-Salem ...................            36°05′52′′    80°14′42′′   South Carolina:
North Dakota:                                                                   Allendale .............................     33°00′30′′    81°18′26′′
    Bismark ..............................       46°48′23′′   100°47′17′′       Anderson ............................       34°30′06′′    82°38′54′′
    Devils Lake .........................        48°06′42′′    98°51′29′′       Charleston ..........................       32°46′35′′    79°55′53′′
    Dickinson ............................       46°52′55′′   102°47′06′′       Columbia ............................       34°00′02′′    81°02′00′′
    Fargo ..................................     46°52′30′′    96°47′18′′       Florence .............................      34°11′49′′    79°46′06′′
    Minot ...................................    48°14′09′′   101°17′38′′       Greenville ...........................      34°50′50′′    82°24′01′′
    Pembina .............................        48°58′00′′    97°14′37′′       Spartanburg ........................        34°57′03′′    81°56′06′′
    Valley City ..........................       46°55′31′′    98°00′04′′   South Dakota:
    Williston ..............................     48°08′47′′   103°36′59′′       Aberdeen ............................       45°27′31′′    98°29′03′′
Ohio:                                                                           Brookings ...........................       44°18′38′′    96°47′53′′
    Akron ..................................     41°05′00′′    81°30′44′′       Florence .............................      45°03′14′′    97°19′35′′
    Athens ................................      39°19′38′′    82°06′09′′       Lead ...................................    44°21′07′′   103°46′03′′
    Bowling Green ....................           41°22′37′′    83°39′03′′       Mitchell ...............................    43°42′48′′    98°01′36′′
    Canton ................................      40°47′50′′    81°22′37′′       Pierre ..................................   44°22′06′′   100°20′57′′
    Cincinnati ............................      39°06′07′′    84°30′35′′       Rapid City ...........................      44°04′52′′   103°13′11′′
    Cleveland ...........................        41°29′51′′    81°41′50′′       Reliance .............................      43°52′45′′    99°36′18′′
    Columbus ...........................         39°57′47′′    83°00′17′′       Sioux Falls ..........................      43°32′35′′    96°43′35′′
    Dayton ................................      39°45′32′′    84°11′43′′       Vermillion ............................     42°46′52′′    96°55′35′′
    Kettering .............................      39°41′22′′    84°10′07′′   Tennessee:
    Lima ....................................    40°44′29′′    84°06′34′′       Chattanooga .......................         35°02′41′′    85°18′32′′
    Lorain .................................     41°27′48′′    82°10′23′′       Jackson ..............................      35°36′48′′    88°49′15′′
    Marion ................................      40°35′14′′    83°07′36′′       Johnson City ......................         36°19′04′′    82°20′56′′
    Newark ...............................       40°03′35′′    82°24′15′′       Kingsport ............................      36°32′57′′    82°33′44′′
    Oxford .................................     39°30′28′′    84°44′26′′       Knoxville .............................     35°57′39′′    83°55′07′′
    Portsmouth .........................         38°44′06′′    82°59′39′′       Lexington ............................      35°38′58′′    88°23′31′′
    Springfield ..........................       39°55′38′′    83°48′29′′       Memphis .............................       35°08′46′′    90°03′13′′
    Steubenville ........................        40°21′42′′    80°36′53′′       Nashville .............................     36°09′33′′    86°46′55′′
    Toledo ................................      41°39′14′′    83°32′39′′       Sneedville ...........................      36°31′46′′    83°13′04′′
    Youngstown ........................          41°05′57′′    80°39′02′′   Texas:
    Zanesville ...........................       39°56′59′′    82°00′56′′       Abilene ...............................     32°27′05′′    99°43′51′′
Oklahoma:                                                                       Amarillo ..............................     35°12′27′′   101°50′04′′
                                                                                Austin .................................    30°16′09′′    97°44′37′′
    Ada .....................................    34°46′24′′    96°40′36′′
                                                                                Beaumont ...........................        30°05′20′′    94°06′09′′
    Ardmore ..............................       34°10′18′′    97°07′50′′
                                                                                Belton .................................    31°03′31′′    97°27′39′′
    Lawton ................................      34°36′27′′    98°23′41′′
                                                                                Big Spring ...........................      32°15′03′′   101°28′38′′
    Oklahoma City ....................           35°28′26′′    97°31′04′′
                                                                                Bryan ..................................    30°38′48′′    96°21′31′′
    Sayre ..................................     35°17′34′′    99°38′23′′
                                                                                College Station ...................         30°37′05′′    96°20′41′′
    Tulsa ...................................    36°09′12′′    95°59′34′′
                                                                                Corpus Christi ....................         27°47′51′′    97°23′45′′
Oregon:
                                                                                Dallas .................................    32°47′09′′    96°47′37′′
    Coos Bay ............................        43°22′02′′   124°13′09′′
                                                                                El Paso ...............................     31°45′36′′   106°29′11′′
    Corvallis ..............................     44°34′10′′   123°16′12′′
                                                                                Fort Worth ..........................       32°44′55′′    97°19′44′′
    Eugene ...............................       44°03′16′′   123°05′30′′       Galveston ...........................       29°18′10′′    94°47′43′′
    Klamath Falls .....................          42°13′32′′   121°46′32′′       Harlingen ............................      26°11′29′′    97°41′35′′
    La Grande ..........................         45°19′47′′   118°05′45′′       Houston ..............................      29°45′26′′    95°21′37′′
    Medford ..............................       42°19′33′′   122°52′31′′       Laredo ................................     27°30′22′′    99°30′30′′
    Portland ..............................      45°31′06′′   122°40′35′′       Longview ............................       32°28′24′′    94°43′45′′
    Roseburg ............................        43°12′34′′   123°20′26′′       Lubbock ..............................      33°35′05′′   101°50′33′′
    Salem .................................      44°56′21′′   123°01′59′′       Lufkin ..................................   31°20′14′′    94°43′21′′
Pennsylvania:                                                                   Midland ...............................     31°59′54′′   102°04′31′′
    Allentown ............................       40°36′11′′    75°28′06′′       Monahans ...........................        31°35′16′′   102°53′26′′
    Altoona ...............................      40°30′55′′    78°24′03′′       Nacogdoches .....................           31°36′13′′    94°39′20′′
    Bethlehem ..........................         40°37′57′′    75°21′36′′       Odessa ...............................      31°50′49′′   102°22′01′′
    Clearfield ............................      41°01′20′′    78°26′10′′       Port Arthur ..........................      29°52′09′′    93°56′01′′
    Erie .....................................   42°07′15′′    80°04′57′′       Richardson .........................        32°57′06′′    96°44′05′′
    Harrisburg ...........................       40°15′43′′    76°52′59′′       Rosenberg ..........................        29°33′30′′    95°48′15′′
    Hershey ..............................       40°17′04′′    76°39′01′′       San Angelo .........................        31°27′39′′   100°26′03′′
    Johnstown ..........................         40°19′35′′    78°55′03′′       San Antonio ........................        29°25′37′′    98°29′06′′
    Lancaster ............................       40°02′25′′    76°18′29′′       Sweetwater .........................        32°28′24′′   100°24′18′′
    Philadelphia ........................        39°56′58′′    75°09′21′′       Temple ...............................      31°06′02′′    97°20′22′′
    Pittsburgh ...........................       40°26′19′′    80°00′00′′       Texarkana ..........................        33°25′29′′    94°02′34′′
    Reading ..............................       40°20′09′′    75°55′40′′       Tyler ...................................   32°21′21′′    95°17′52′′
    Scranton .............................       41°24′32′′    75°39′46′′       Victoria ...............................    28°48′01′′    97°00′06′′
    Wilkes-Barre .......................         41°14′32′′    75°53′17′′       Waco ..................................     31°33′12′′    97°08′00′′
    York ....................................    39°57′35′′    76°43′36′′       Weslaco ..............................      26°09′24′′    97°59′33′′
Puerto Rico:                                                                    Wichita Falls .......................       33°54′34′′    98°29′28′′
    Aguadilla .............................      18°25′53′′    67°09′18′′   Utah:
    Arecibo ...............................      18°28′26′′    66°43′39′′       Logan .................................     41°44′03′′   111°50′11′′
    Caguas ...............................       18°13′59′′    66°02′06′′       Ogden .................................     41°13′31′′   111°58′21′′
    Fajardo ...............................      18°19′35′′    65°39′21′′       Provo ..................................    40°14′07′′   111°39′34′′
    Mayaguez ...........................         18°12′16′′    67°08′36′′       Salt Lake City .....................        40°45′23′′   111°53′26′′
    Ponce .................................      18°00′51′′    66°36′58′′   Vermont:
    San Juan ............................        18°26′55′′    66°03′55′′       Burlington ...........................      44°28′34′′    73°12′46′′


                                                                          531
§ 76.54                                                                               47 CFR Ch. I (10–1–98 Edition)

       State and community                       Latitude     Longitude     within all communities within the
                                                                            county) are those that are listed in Ap-
     Rutland ...............................     43°36′29′′    72°58′56′′
     St. Johnsbury .....................         44°25′16′′    72°01′13′′   pendix A of the memorandum opinion
     Windsor ..............................      43°28′38′′    72°23′32′′   and order on reconsideration of the
Virginia:
     Bristol .................................   36°35′48′′    82°11′04′′
                                                                            Cable Television Report and Order
     Charlottesville .....................       38°01′52′′    78°28′50′′   (Docket 18397 et al.), FCC 72–530.
     Goldvein .............................      38°26′54′′    77°39′19′′     (b) Significant viewing in a cable tel-
     Hampton .............................       37°01′32′′    76°20′32′′
     Harrisonburg .......................        38°27′01′′    78°52′07′′   evision community for signals not
     Lynchburg ...........................       37°24′51′′    79°08′37′′   shown as significantly viewed under
     Norfolk ................................    36°51′10′′    76°17′21′′   paragraph (a) or (d) of this section may
     Norton .................................    36°56′05′′    82°37′31′′
     Petersburg ..........................       37°13′40′′    77°24′15′′   be demonstrated by an independent
     Portsmouth .........................        36°50′12′′    76°17′54′′   professional audience survey of non-
     Richmond ...........................        37°32′15′′    77°26′09′′
     Roanoke .............................       37°16′13′′    79°56′44′′
                                                                            cable television homes that covers at
     Staunton .............................      38°09′02′′    79°04′34′′   least two weekly periods separated by
Virgin Islands:                                                             at least thirty (30) days but no more
     Charlotte Amalie .................          18°20′36′′    64°55′53′′
     Christiansted ......................        17°44′44′′    64°42′21′′
                                                                            than one of which shall be a week be-
Washington:                                                                 tween the months of April and Septem-
     Bellingham ..........................       48°45′02′′   122°28′36′′   ber. If two surveys are taken, they
     Kennewick ..........................        46°12′28′′   119°08′32′′
     Lakewood Center ...............             47°07′37′′   122°31′15′′   shall include samples sufficient to as-
     Pasco .................................     46°13′50′′   119°05′27′′   sure that the combined surveys result
     Pullman ..............................      46°43′42′′   117°10′46′′   in an average figure at least one stand-
     Richland .............................      46°16′36′′   119°16′21′′
     Seattle ................................    47°36′32′′   122°20′12′′   ard error above the required viewing
     Spokane .............................       47°39′32′′   117°25′33′′   level. If surveys are taken for more
     Tacoma ..............................       47°14′59′′   122°26′15′′
     Yakima ...............................      46°36′09′′   120°30′39′′
                                                                            than 2-weekly periods in any 12
West Virginia:                                                              months, all such surveys must result in
     Bluefield ..............................    37°15′29′′    81°13′20′′   an average figure at least one standard
     Charleston ..........................       38°21′01′′    81°37′52′′
     Clarksburg ..........................       39°16′50′′    80°20′38′′
                                                                            error above the required viewing level.
     Grandview ..........................        37°49′28′′    81°04′20′′   If a cable television system serves
     Huntington ..........................       38°25′12′′    82°26′33′′   more than one community, a single
     Morgantown ........................         39°37′41′′    79°57′28′′
     Oak Hill ...............................    37°58′31′′    81°08′45′′   survey may be taken, provided that the
     Parkersburg ........................        39°15′57′′    81°33′46′′   sample includes non-cable television
     Weston ...............................      39°02′19′′    80°28′05′′   homes from each community that are
     Wheeling ............................       40°04′03′′    80°43′20′′
Wisconsin:                                                                  proportional to the population.
     Eau Claire ..........................       44°48′31′′    91°29′49′′     (c) Notice of a survey to be made pur-
     Fond Du Lac ......................          43°46′35′′    88°26′52′′
     Green Bay ..........................        44°30′48′′    88°00′50′′
                                                                            suant to paragraph (b) of this section
     Janesville ............................     42°40′52′′    89°01′39′′   shall be served on all licensees or per-
     Kenosha .............................       42°35′04′′    87°49′14′′   mittees of television broadcast stations
     La Crosse ...........................       43°48′48′′    91°15′02′′
     Madison ..............................      43°04′23′′    89°22′55′′
                                                                            within whose predicted Grade B con-
     Milwaukee ..........................        43°02′19′′    87°54′15′′   tour the cable community or commu-
     Rhinelander ........................        45°38′09′′    89°24′50′′   nities are located, in whole or in part,
     Superior ..............................     46°43′14′′    92°06′07′′
     Wausau ..............................       44°57′30′′    89°37′40′′
                                                                            and on all other system community
Wyoming:                                                                    units, franchisees, and franchise appli-
     Casper ................................     42°51′00′′   106°19′22′′   cants in the cable community or com-
     Cheyenne ...........................        41°08′09′′   104°49′07′′
     Rawlins ...............................     41°47′23′′   107°14′37′′
                                                                            munities at least (30) days prior to the
     Riverton ..............................     43°01′29′′   108°23′03′′   initial survey period. Furthermore, if a
                                                                            survey is undertaken pursuant to the
[37 FR 3278, Feb. 12, 1972, as amended at 37                                provisions of § 76.33(a)(2)(i) of the rules,
FR 13866, July 14, 1972; 51 FR 18451, May 20,                               notice shall also be served on the fran-
1986; 51 FR 44608, Dec. 11, 1986; 54 FR 25716,                              chising authority. Such notice shall in-
June 19, 1989; 56 FR 49707, Oct. 1, 1991]                                   clude the name of the survey organiza-
                                                                            tion and a description of the proce-
§ 76.54 Significantly viewed signals;
     method to be followed for special                                      dures to be used. Objections to survey
     showings.                                                              organizations or procedures shall be
                                                                            served on the party sponsoring the sur-
   (a) Signals that are significantly
                                                                            vey within twenty (20) days after re-
viewed in a county (and thus are
deemed to be significantly viewed                                           ceipt of such notice.


                                                                          532
Federal Communications Commission                                                          § 76.55

  (d) Signals of television broadcast               (i) The translator of any NCE tele-
stations not encompassed by the sur-              vision station with five watts or higher
veys (for the periods May 1970, Novem-            power serving the franchise area,
ber 1970 and February/March 1971) used              (ii) A full-service station or trans-
in establishing appendix B of the Memo-           lator if such station or translator is li-
randum Opinion and Order on Reconsid-             censed to a channel reserved for NCE
eration of Cable Television Report and            use pursuant to § 73.606 of this chapter,
Order, FCC 72–530, 36 FCC 2d 326 (1972),          or any successor regulations thereto,
may be demonstrated as significantly              and
viewed on a county-wide basis by inde-              (iii) Such stations and translators op-
pendent professional audience surveys             erating on channels not so reserved but
which cover three separate, consecu-              otherwise qualified as NCE stations.
tive four-week periods and are other-               NOTE TO PARAGRAPH (a): For the purposes
wise comparable to the surveys used in            of § 76.55(a), ‘‘serving the franchise area’’ will
compiling the above-referenced appen-             be based on the predicted protected contour
dix B: Provided, however, That such               of the NCE translator.
demonstration shall be based upon au-                (b) Qualified local noncommercial edu-
dience survey data for the first three            cational (NCE) television station. A quali-
years of the subject station’s broadcast          fied local NCE television station is a
operations.                                       qualified NCE television station:
                                                     (1) That is licensed to a community
[37 FR 3278, Feb. 12, 1972, as amended at 37
FR 13866, July 14, 1972; 40 FR 48930, Oct. 20,    whose reference point, as defined in
1975; 41 FR 32429, Aug. 3, 1976; 42 FR 19346,     § 76.53 is within 80.45 km (50 miles) of
Apr. 13, 1977; 53 FR 17051, May 13, 1988; 56 FR   the principal headend, as defined in
33392, July 22, 1991]                             § 76.5(pp), of the cable system; or
                                                     (2) Whose Grade B service contour en-
§ 76.55 Definitions applicable to the             compasses the principal headend, as de-
     must-carry rules.                            fined in § 76.5(pp), of the cable system.
   For purposes of the must-carry rules              (3) Notwithstanding the provisions of
set forth in this subpart, the following          this section, a cable operator shall not
definitions apply:                                be required to add the signal of a quali-
                                                  fied local noncommercial educational
   (a) Qualified noncommercial edu-
                                                  television station not already carried
cational (NCE) television station. A quali-
                                                  under the provision of § 76.56(a)(5),
fied NCE television station is any tele-
                                                  where such signal would be considered
vision broadcast station which                    a distant signal for copyright purposes
   (1)(i) Under the rules and regulations         unless such station agrees to indemnify
of the Commission in effect on March              the cable operator for any increased
29, 1990, is licensed by the Commission           copyright liability resulting from car-
as an NCE television broadcast station            riage of such signal on the cable sys-
and which is owned and operated by a              tem.
public agency, nonprofit foundation,                 (c) Local commercial television station.
corporation, or association; and                  A local commercial television station
   (ii) Has as its licensee an entity             is any full power television broadcast
which is eligible to receive a commu-             station, other than a qualified NCE tel-
nity service grant, or any successor              evision station as defined in paragraph
grant thereto, from the Corporation for           (a) of this section, licensed and operat-
Public Broadcasting, or any successor             ing on a channel regularly assigned to
organization thereto, on the basis of             its community by the Commission
the formula set forth in section                  that, with respect to a particular cable
396(k)(6)(B) of the Communications Act            system, is within the same television
of 1934, as amended; or                           market, as defined below in paragraph
   (2) Is owned and operated by a mu-             (e) of this section, as the cable system,
nicipality and transmits noncommer-               except that the term local commercial
cial programs for educational programs            television station does not include:
for educational purposes, as defined in              (1) Low power television stations, tel-
§ 73.621 of this chapter, for at least 50         evision translator stations, and passive
percent of its broadcast week.                    repeaters with operate pursuant to
   (3) This definition includes:                  part 74 of this chapter.

                                              533
§ 76.55                                                47 CFR Ch. I (10–1–98 Edition)

   (2) A television broadcast station          (4) Such station is located no more
that would be considered a distant sig-      than 56.32 km (35 miles) from the cable
nal under the capable compulsory             system’s principal headend, as defined
copyright license, 17 U.S.C. 111, if such    in § 76.5(pp), and delivers to that
station does not agree to indemnify the      headend an over-the-air signal of good
cable operator for any increased copy-       quality;
right liability resulting from carriage        (5) The community of license of such
on the cable system; or                      station and the franchise area of the
   (3) A television broadcast station        cable system are both located outside
that does not deliver to the principal       of the largest 160 Metropolitan Statis-
headend, as defined in § 76.5(pp), of a      tical Areas, ranked by population, as
cable system either a signal level of        determined by the Office of Manage-
¥45dBm for UHF signals or ¥49dBm             ment and Budget on June 30, 1990, and
for VHF signals at the input terminals       the population of such community of
of the signal processing equipment, i.e.,    license on such date did not exceed
the input to the first active component      35,000; and
of the signal processing equipment rel-        (6) There is no full power television
evant to the signal at issue, if such sta-   broadcast station licensed to any com-
tion does not agree to be responsible        munity within the county or other
for the costs of delivering to the cable     equivalent political subdivision (of a
system a signal of good quality or a         State) served by the cable system.
baseband video signal.
                                               NOTE TO PARAGRAPH (d): For the purposes
   (d) Qualified low power station. A        of this section, a good quality signal shall
qualified low power station is any tele-     mean a signal level of either -45 dBm for
vision broadcast station conforming to       UHF signals or -49 dBm for VHF signals at
the low power television rules con-          the input terminals of the signal processing
tained in part 74 of this chapter, only      equipment, or a baseband video signal.
if:                                             (e) Television market. (1) Until Janu-
   (1) Such station broadcasts for at        ary 1, 2000, a commercial broadcast tel-
least the minimum number of hours of         evision     station’s   market,     unless
operation required by the Commission         amended pursuant to § 76.59, shall be
for full power television broadcast sta-     defined as its Area of Dominant Influ-
tions under part 73 of this chapter;         ence (ADI) as determined by Arbitron
   (2) Such station meets all obligations    and published in the Arbitron 1991–1992
and requirements applicable to full          Television ADI Market Guide, as noted
power television broadcast stations          below, except that for areas outside the
under part 73 of this chapter, with re-      contiguous 48 states, the market of a
spect to the broadcast of nonentertain-      station shall be defined using Nielsen’s
ment programming; programming and            Designated Market Area (DMA), where
rates involving political candidates,        applicable, as published in the Nielsen
election issues, controversial issues of     1991–92 DMA Market and Demographic
public importance, editorials, and per-      Rank Report, and that Puerto Rico, the
sonal attacks; programming for chil-         U.S. Virgin Islands, and Guam will
dren; and equal employment oppor-            each be considered a single market.
tunity; and the Commission determines           (2) Effective January 1, 2000, a com-
that the provision of such program-          mercial broadcast television station’s
ming by such station would address           market, unless amended pursuant to
local news and informational needs           § 76.59, shall be defined as its Des-
which are not being adequately served        ignated Market Area (DMA) as deter-
by full power television broadcast sta-      mined by Nielsen Media Research and
tions because of the geographic dis-         published in its DMA Market and Demo-
tance of such full power stations from       graphic Rank Report or any successor
the low power station’s community of         publication, as noted below.
license;                                        (3) A cable system’s television mar-
   (3) Such station complies with inter-     ket(s) shall be the one or more ADI
ference regulations consistent with its      markets in which the communities it
secondary status pursuant to part 74 of      serves are located until January 1, 2000,
this chapter;                                and the one or more DMA markets in

                                         534
Federal Communications Commission                                                    § 76.56

which the communities it serves are lo-         plicates the programming of another
cated thereafter.                               qualified local NCE station being car-
  (4) In addition, the county in which a        ried on the system.
station’s community of license is lo-              NOTE: For purposes of this paragraph, a
cated will be considered within its             station will be deemed to ‘‘substantially du-
market.                                         plicate’’ the programming of another station
                                                if it broadcasts the same programming, si-
  NOTE TO PARAGRAPH (e): For the 1996 must-
                                                multaneous or non-simultaneous, for more
carry/retransimission consent election, the
                                                than 50 percent of prime time, as defined in
ADI assignments specified in the 1991–1992
                                                § 76.5(n), and more than 50 percent outside of
Television ADI Market Guide, available from
                                                prime time over a three-month period.
the Arbitron Ratings Co., 9705 Patuxent
Woods Drive, Columbia, MD, will apply. For        (2)(i) In the case of a cable system
the 1999 election, which becomes effective on   with 12 or fewer channels that operates
January 1, 2000, DMA assignments specified      beyond the presence of any qualified
in the 1997–98 DMA Market and Demographic
Rank Report, available from Nielsen Media
                                                local NCE stations, the cable operator
Research, 299 Park Avenue, New York, NY,        shall import one qualified NCE tele-
shall be used. The applicable DMA list for      vision station.
the 2002 election will be the 2000–2001 list,     (ii) A cable system with between 13
etc.                                            and 36 channels that operates beyond
                                                the presence of any qualified local NCE
   (f) Network. For purposes of the must-
                                                stations, the cable operator shall im-
carry rules, a commercial television
                                                port at least one qualified NCE tele-
network is an entity that offers pro-
                                                vision station.
gramming on a regular basis for 15 or
                                                  (3) A cable system with 12 or fewer
more hours per week to at least 25 af-
                                                usable activated channels shall not be
filiates in 10 or more states.
                                                required to remove any programming
[58 FR 17359, Apr. 2, 1993, as amended at 58    service provided to subscribers as of
FR 44951, Aug. 25, 1993; 59 FR 62344, Dec. 5,   March 29, 1990, to satisfy these require-
1994; 61 FR 29313, June 10, 1996]               ments, except that the first available
                                                channel must be used to satisfy these
§ 76.56 Signal carriage obligations.
                                                requirements.
   (a) Carriage of qualified noncommercial        (4) A cable system with 13 to 36 usa-
educational stations. A cable television        ble activated channels which carries
system shall carry qualified NCE tele-          the signal of a qualified local NCE sta-
vision stations in accordance with the          tion affiliated with a State public tele-
following provisions:                           vision network shall not be required to
   (1) Each cable operator shall carry on       carry more than one qualified local
its cable television system any quali-          NCE station affiliated with such net-
fied local NCE television station re-           work, if the programming of such addi-
questing carriage, except that                  tional stations substantially dupli-
   (i) Systems with 12 or fewer usable          cates, as defined in the note in para-
activated channels, as defined in               graph (a)(1) of this section, the pro-
§ 76.6(oo), shall be required to carry the      gramming of a qualified local NCE tel-
signal of one such station;                     evision station receiving carriage.
   (ii) Systems with 13 to 36 usable acti-        (5) Notwithstanding the requirements
vated channels, as defined in § 76.5(oo),       of paragraph (a)(1) of this section, all
shall be required to carry at least one         cable operators shall continue to pro-
qualified local NCE station, but not            vide carriage to all qualified local NCE
more than three such stations; and              television stations whose signals were
   (iii) Systems with more than 36 usa-         carried on their systems as of March
ble activated channels shall be re-             29, 1990. In the case of a cable system
quired to carry the signals of all quali-       that is required to import a distance
fied local NCE television stations re-          qualified NCE signal, and such system
questing carriage, but in any event at          imported the signal of a qualified NCE
least three such signals; however a             station as of March 29, 1990, such cable
cable system with more than 36 chan-            system shall continue to import such
nels shall not be required to carry an          signal until such time as a qualified
additional qualified local NCE station          local NCE signal is available to the
whose programming substantially du-             cable system. This requirements may

                                            535
§ 76.56                                               47 CFR Ch. I (10–1–98 Edition)

be waived with respect to a particular       cipal headend, as defined in § 76.5(pp),
cable operator and a particular NCE          of the cable system.
station, upon the written consent of            (5) A cable operator is not required to
the cable operator and the station.          carry the signal of any local commer-
   (b) Carriage of local commercial tele-    cial television station that substan-
vision stations. Effective June 2, 1993, a   tially duplicates the signal of another
cable television system shall carry          local commercial television station
local commercial broadcast television        that is carried on its cable system, or
stations in accordance with the follow-      to carry the signals of more than one
ing provisions:                              local commercial television station af-
   (1) A cable system with 12 or fewer       filiated with a particular broadcast
usable activated channels, as defined in     network, as defined in § 76.55(f). How-
§ 76.5(oo), shall carry the signals of at    ever, if a cable operator declines to
least three qualified local commercial       carry duplicating signals, such cable
television stations, except that if such     operator shall carry the station whose
system serves 300 or fewer subscribers       community of license reference point,
it shall not be subject to these require-    as defined in § 76.53, is closest to the
ments as long as it does not delete          principal headend of the cable system.
from carriage the signal of a broadcast      For purposes of this paragraph, sub-
television station which was carried on      stantially duplicates means that a sta-
that system on October 5, 1992.              tion regularly simultaneously broad-
   (2) A cable system with more than 12      casts the identical programming as an-
usable activated channels, as defined in     other station for more than 50 percent
§ 76.5(oo), shall carry local commercial     of the broadcast week. For purposes of
television stations up to one-third of       this definition, only identical episodes
the aggregate number of usable acti-         of a television series are considered du-
vated channels of such system.               plicative and commercial inserts are
   (3) If there are not enough local com-    excluded from the comparison. When
mercial television stations to fill the      the stations being compared are li-
channels set aside under paragraphs          censed to communities in different
(b)(1) and (b)(2) of this section, a cable   time zones, programming aired by a
operator of a system with 35 or fewer        station within one hour of the identical
usable activated channels, as defined in     program being broadcast by another
§ 76.5(oo), shall, if such stations exist,   station will be considered duplicative.
carry one qualified low power tele-             (6) [Removed]
vision station and a cable system with          (7) A local commercial television sta-
more than 35 usable activated channels       tion carried to fulfill the requirements
shall carry two qualified low power sta-     of this paragraph, which subsequently
tions.                                       elects retransmission consent pursuant
   (4) Whenever the number of local          to § 76.64, shall continue to be carried
commercial television stations exceeds       by the cable system until the effective
the maximum number of signals a              date of such retransmission consent
cable system is required to carry under      election.
paragraph (b)(1) or (b)(2) of this sec-         (c) Use of public, educational, or gov-
tion, the cable operator shall have dis-     ernmental (PEG) channels. A cable oper-
cretion in selecting which such sta-         ator required to carry more than one
tions shall be carried on its cable sys-     signal of a qualified low power station
tem, except that                             or to add qualified local NCE stations
   (i) Under no circumstances shall a        in fulfillment of these must-carry obli-
cable operator carry a qualified low         gations may do so, subject to approval
power station in lieu of a local com-        by the franchising authority pursuant
mercial television station; and              to Section 611 of the Communications
   (ii) If the cable operator elects to      Act of 1934, as amended, by placing
carry an affiliate of a broadcast net-       such additional station on public, edu-
work, as defined in § 76.55(f), such cable   cational, or governmental channels not
operator shall carry the affiliate of        in use for their designated purposes.
such broadcast network whose commu-             (d) Availability of signals. (1) Local
nity of license reference point, as de-      commercial television stations carried
fined in § 76.53, is closest to the prin-    in fulfillment of the requirements of

                                         536
Federal Communications Commission                                                  § 76.57

this section shall be provided to every       not limited to, multichannel television
subscriber of a cable system. Such sig-       sound and teletext.
nals shall be viewable via cable on all       [58 FR 17360, Apr. 2, 1993, as amended at 58
television receivers of a subscriber          FR 39161, July 22, 1993; 58 FR 40368, July 28,
which are connected to a cable system         1993; 59 FR 62344, Dec. 5, 1994]
by a cable operator or for which a cable
operator provides a connection.               § 76.57 Channel positioning.
  (2) Qualified local NCE television sta-        (a) At the election of the licensee of
tions carried in fulfillment of the car-      a local commercial broadcast tele-
riage obligations of a cable operator         vision station, and for the purpose of
under this section shall be available to      this section, a qualified low power tele-
every subscriber as part of the cable         vision station, carried in fulfillment of
system’s lowest priced service tier that      the must-carry obligations, a cable op-
includes the retransmission of local          erator shall carry such signal on the
commercial television broadcast sig-          cable system channel number on which
nals.                                         the local commercial television station
  (3) If a cable operator authorizes sub-     is broadcast over the air, or on the
scribers to install additional receiver       channel on which it was carried on
connections, but does not provide the         July 19, 1985, or on the channel on
subscriber with such connections, or          which it was carried on January 1, 1992.
with the equipment and materials for             (b) At the election of the licensee of
such connections, the operator shall          a qualified local NCE broadcast tele-
notify such subscribers of all broadcast      vision station carried in fulfillment of
stations carried on the cable system          the must-carry obligations, a cable op-
                                              erator shall carry such signal on the
which cannot be viewed via cable with-
                                              cable system channel number on which
out a converter box and shall offer to
                                              the qualified NCE television station is
sell or lease such a converter box to
                                              broadcast over the air, or on the chan-
such subscribers. Such notification
                                              nel on which it was carried on July 19,
must be provided by June 2, 1993, and
                                              1985.
annually thereafter and to each new              (c) Any signal carried in fulfillment
subscriber upon initial installation.         of the must-carry obligations may be
The notice, which may be included in          carried on such other channel number
routine billing statements, shall iden-       as is mutually agreed upon by the sta-
tify the signals that are unavailable         tion and the cable operator.
without an additional connection, the            (d) At the time a local commercial
manner for obtaining such additional          station elects must-carry status pursu-
connection and instructions for instal-       ant to § 76.64, such station shall notify
lation.                                       the cable system of its choice of chan-
  (e) Identification of must-carry signals.   nel position as specified in paragraphs
A cable operator shall respond in writ-       (a)–(c) of this section. A qualified NCE
ing within 30 days to any written re-         stations shall notify the cable system
quest by any person for the identifica-       of its choice of channel position when
tion of the signals carried on its sys-       it requests carriage. Channel position-
tem in fulfillment of the requirements        ing requests from local commercial
of this section. Pursuant to § 76.302, a      stations shall be fulfilled by the cable
cable operator must place a list of the       operator no later than October 6, 1993.
broadcast television signals carried in         NOTE: Any existing agreement for channel
fulfillment of these must-carry obliga-       position between a local commercial station
tions in its public file.                     entitled to must-carry status and a cable op-
  (f) Carriage of additional broadcast        erator entered into prior to June 26, 1990,
television signals on such system shall       may continue through the expiration of such
be at the discretion of the cable opera-      agreement.
tor, subject to the retransmission con-         (e) Pursuant to § 76.64(f)(3), a local
sent rules, § 76.64. A cable system may       commercial broadcast television sta-
also carry any ancillary service trans-       tion that fails to make an election is
mission on the vertical blanking inter-       deemed a must-carry station. A cable
val or the aural baseband of any tele-        operator shall carry such a television
vision broadcast signal, including, but       station on the cable system channel

                                          537
§ 76.58                                                    47 CFR Ch. I (10–1–98 Edition)

number on which the local commercial              (2) May cause an increased copyright
television station is broadcast over the        liability to the cable system.
air, or on the channel on which it was            (e) By June 2, 1993, a cable operator
carried on July 19, 1985, or on the chan-       must send by certified mail a copy of a
nel on which it was carried on January          list of all broadcast television stations
1, 1992. In the event that none of these        carried by its system and their channel
specified channel positions is available        positions to all local commercial and
due to a channel positioning request            noncommercial television stations, in-
from a commercial television station            cluding those not designated as must-
affirmatively asserting its must-carry          carry stations and those not carried on
rights or such a request from a quali-          the system.
fied local noncommercial educational            [58 FR 17361, Apr. 2, 1993]
station, the cable operator shall place
the signal of such a television station         § 76.59 Modification of television mar-
on a channel of the cable system’s                   kets.
choice, so long as that channel is in-             (a) The Commission, following a writ-
cluded on the basic service tier.               ten request from a broadcast station or
[58 FR 17361, Apr. 2, 1993, as amended at 58    a cable system, may deem that the tel-
FR 40368, July 28, 1993; 59 FR 62345, Dec. 5,   evision market of a particular commer-
1994]                                           cial television broadcast station should
                                                include additional communities within
§ 76.58 Notification.                           its television market or exclude com-
  (a) Effective April 2, 1993, a cable op-      munities from such station’s television
erator shall provide written notice to          market. In this respect, communities
any broadcast television station at             may be considered part of more than
least 30 days prior to either deleting          one television market.
from carriage or repositioning that sta-           (b) Such requests for modification of
tion. Such notification shall also be           a television market shall be submitted
provided to subscribers of the cable            in accordance with § 76.7, petitions for
system.                                         special relief.
                                                   (c) A cable operator shall not delete
  NOTE: No deletion or repositioning of a       from carriage the signal of a commer-
local commercial television station shall
                                                cial television station during the pend-
occur during a period in which major tele-
vision ratings services measure the size of     ency of any proceeding pursuant to
audiences of local television stations. For     this section.
this purpose, such periods are the four na-     [58 FR 17361, Apr. 2, 1993]
tional four-week ratings periods—generally
including February, May, July and Novem-        § 76.60 Compensation for carriage.
ber—commonly known as audience sweeps.
                                                   A cable operator is prohibited from
   (b) By May 3, 1993, a cable operator         accepting or requesting monetary pay-
must notify all qualified NCE stations          ment or other valuable consideration
of its designated principal headend by          in exchange either for carriage or chan-
certified mail.                                 nel positioning of any broadcast tele-
   (c) A cable operator shall provide           vision station carried in fulfillment of
written notice by certified mail to all         the must-carry requirements, except
stations carried on its system pursuant         that
to the must-carry rules at least 60 days           (a) Any such station may be required
prior to any change in the designation          to bear the costs associated with deliv-
of its principal headend, and shall in-         ering a good quality signal or a
clude the new designation in its public         baseband video signal to the principal
file.                                           headend of the cable system; or
   (d) By May 3, 1993, a cable operator            (b) A cable operator may accept pay-
must notify all local commercial and            ments from stations which would be
NCE stations that may not be entitled           considered distant signals under the
to carriage because they either                 cable compulsory copyright license, 17
   (1) Fail to meet the standards for de-       U.S.C. 111, as indemnification for any
livery of a good quality signal to the          increased copyright liability resulting
cable system’s principal headend or             from carriage of such signal.

                                            538
Federal Communications Commission                                                    § 76.61
   NOTE: A cable operator may continue to        air signal processing equipment used,
accept monetary payment or other valuable        including sketches such as block dia-
consideration in exchange for carriage or        grams and a description of the meth-
channel positioning of the signal of any local
commercial television station carried in ful-    odology used for processing the signal
fillment of the must-carry requirements,         at issue, in its response.
through, but not beyond, the date of expira-        (3) A local commercial television sta-
tion of an agreement between a cable opera-      tion or qualified low power television
tor and a local commercial television station    station that is denied carriage or chan-
entered into prior to June 26, 1990.             nel positioning or repositioning in ac-
   (c) A cable operator may accept pay-          cordance with the must-carry rules by
ments from stations pursuant to a re-            a cable operator may file a complaint
transmission consent agreement, even             with the Commission in accordance
if such station will be counted towards          with the procedures set forth in § 76.7
the must-carry complement, as long as            relating to must-carry complaints. In
all other applicable rules are adhered           addition to the requirements of § 76.7,
to.                                              such complaint shall specifically allege
                                                 the manner in which such cable opera-
[58 FR 17362, Apr. 2, 1993, as amended at 59
FR 62345, Dec. 5, 1994]
                                                 tor has failed to meet its obligations
                                                 and the basis for such allegations.
§ 76.61 Disputes concerning carriage.               (4) If the Commission determines
                                                 that a cable operator has failed to meet
  (a) Complaints regarding carriage of
                                                 its must-carry obligations, the Com-
local commercial television stations. (1)
                                                 mission shall order that, within 45 days
Whenever a local commercial tele-
                                                 of such order or such other time period
vision station or a qualified low power
                                                 as the Commission may specify, the
television station believes that a cable
                                                 cable operator reposition the complain-
operator has failed to meet its carriage
                                                 ing station or, in the case of an obliga-
or channel positioning obligations, pur-
                                                 tion to carry a station, commence or
suant to §§ 76.56 and 76.57, such station
shall notify the operator, in writing, of        resume carriage of the station and con-
the alleged failure and identify its rea-        tinue such carriage for at least 12
sons for believing that the cable opera-         months. If the Commission determines
tor is obligated to carry the signal of          that the cable operator has fully met
such station or position such signal on          the must-carry requirements, it shall
a particular channel.                            dismiss the complaint.
  (2) The cable operator shall, within 30           (b) Complaints regarding carriage of
days of receipt of such written notifica-        qualified local NCE television stations. (1)
tion, respond in writing to such notifi-         Whenever a qualified local NCE tele-
cation and either commence to carry              vision station believes that a cable op-
the signal of such station in accord-            erator has failed to comply with the
ance with the terms requested or state           signal carriage or channel positioning
its reasons for believing that it is not         requirements, pursuant to §§ 76.56–
obligated to carry such signal or is in          76.57, the station may file a complaint
compliance with the channel position-            with the Commission in accordance
ing and repositioning and other re-              with the procedures set forth in § 76.7.
quirements of the must-carry rules. If           In addition to the requirements of
a refusal for carriage is based on the           § 76.7, such complaint shall specifically
station’s distance from the cable sys-           allege the manner in which such cable
tem’s principal headend, the operator’s          operator has failed to comply with
response shall include the location of           such requirements and state the basis
such headend. If a cable operator de-            for such allegations.
nies carriage on the basis of the failure           (2) If the Commission determines
of the station to deliver a good quality         that a cable operator has failed to meet
signal at the cable system’s principal           its must-carry obligations, the Com-
headend, the cable operator must pro-            mission shall order that, within 45 days
vide a list of equipment used to make            of such order or such other period as
the measurements, the point of meas-             the Commission may specify, the cable
urement and a list and detailed de-              operator reposition the complaining
scription of the reception and over-the-         station or, in the case of an obligation

                                             539
§ 76.62                                                 47 CFR Ch. I (10–1–98 Edition)

to carry a station, commence or re-             (f) Each qualified local NCE tele-
sume carriage of the station and con-        vision station carried pursuant to
tinue such carriage for a period of time     § 76.56 shall include in its entirety the
the Commission deems appropriate for         primary video, accompanying audio,
the specific case under consideration.       and closed captioning data contained
If the Commission determines that the        in line 21 of the vertical blanking inter-
cable operator has fully met the must-       val and, to the extent technically fea-
carry requirements, it shall dismiss the     sible, program-related material carried
complaint.                                   in the vertical blanking interval or on
[58 FR 17362, Apr. 2, 1993]                  subcarriers, that may be necessary for
                                             receipt of programming by handi-
§ 76.62 Manner of carriage.                  capped persons or for educational or
   (a) Cable operators shall carry the       language purposes.
entirety of the program schedule of          [58 FR 17362, Apr. 2, 1993, as amended at 59
any television station (including low        FR 62345, Dec. 5, 1994]
power television stations) carried by
the system unless carriage of specific       § 76.64   Retransmission consent.
programming is prohibited, and other           (a) After 12:01 a.m. on October 6, 1993,
programming authorized to be sub-            no multichannel video programming
stituted, under § 76.67 or subpart F of      distributor shall retransmit the signal
part 76, or unless carriage is pursuant      of any commercial broadcasting sta-
to a valid retransmission consent            tion without the express authority of
agreement for the entire signal or any       the originating station, except as pro-
portion thereof as provided in § 76.64.      vided in paragraph (b) of this section.
   (b) Each such television broadcast          (b) A commercial broadcast signal
signal carried shall be carried without      may be retransmitted without express
material degradation in compliance           authority of the originating station
with technical standards set forth in
                                             if—
subpart K of this part.
                                               (1) The distributor is a cable system
   (c) Each local commercial television
                                             and the signal is that of a commercial
station whose signal is carried shall, to
the extent technically feasible and con-     television station (including a low-
sistent with good engineering practice,      power television station) that is being
be provided no less than the same qual-      carried pursuant to the Commission’s
ity of signal processing and carriage        must-carry rules set forth in § 76.56;
provided for carriage of any other type        (2) The multichannel video program-
of standard television signal.               ming distributor obtains the signal of a
   (d) Each qualified local noncommer-       superstation that is distributed by a
cial educational television station          satellite carrier and the originating
whose signal is carried shall be pro-        station was a superstation on May 1,
vided with bandwidth and technical ca-       1991, and the distribution is made only
pacity equivalent to that provided to        to areas outside the local market of
commercial television broadcast sta-         the originating station; or
tions carried.                                 (3) The distributor is a satellite car-
   (e) Each commercial broadcast tele-       rier and the signal is transmitted di-
vision station carried pursuant to           rectly to a home satellite antenna, pro-
§ 76.56 shall include in its entirety the    vided that:
primary video, accompanying audio,             (i) The broadcast station is not
and closed captioning data contained         owned or operated by, or affiliated
in line 21 of the vertical blanking inter-   with, a broadcasting network and its
val and, to the extent technically fea-      signal was retransmitted by a satellite
sible, program-related material carried      carrier on May 1, 1991, or
in the vertical blanking interval or on        (ii) The broadcast station is owned or
subcarriers. Where appropriate and fea-      operated by, or affiliated with a broad-
sible, operators may delete signal en-       casting network, and the household re-
hancements, such as ghost-canceling,         ceiving the signal is an unserved house-
from the broadcast signal and employ         hold.
such enhancements at the system                (c) For purposes of this section, the
headend or headends.                         following definitions apply:

                                         540
Federal Communications Commission                                             § 76.64

   (1) A satellite carrier is an entity        (e) The retransmission consent re-
that uses the facilities of a satellite or   quirements of this section are not ap-
satellite service licensed by the Fed-       plicable to broadcast signals received
eral Communications Commission, to           by master antenna television facilities
establish and operate a channel of com-      or by direct over-the-air reception in
munications for point-to-multipoint          conjunction with the provision of serv-
distribution of television station sig-      ice by a multichannel video program
nals, and that owns or leases a capac-       distributor provided that the multi-
ity or service on a satellite in order to    channel video program distributor
provide such point-to-multipoint dis-        makes reception of such signals avail-
tribution, except to the extent that         able without charge and at the sub-
such entity provides such distribution       scribers option and provided further
pursuant to tariff under the Commu-          that the antenna facility used for the
nications Act of 1934, other than for        reception of such signals is either
private home viewing;                        owned by the subscriber or the building
   (2) A superstation is a television        owner; or under the control and avail-
broadcast station other than a network       able for purchase by the subscriber or
station, licensed by the Federal Com-        the building owner upon termination of
munications Commission that is sec-          service.
ondarily transmitted by a satellite car-       (f) Commercial television stations
rier;                                        are required to make elections between
   (3) An unserved household with re-        retransmission consent and must-carry
spect to a television network is a           status according to the following
household that                               schedule:
   (i) Cannot receive, through the use of      (1) The initial election must be made
a conventional outdoor rooftop receiv-       by June 17, 1993.
ing antenna, an over-the-air signal of         (2) Subsequent elections must be
grade B intensity of a primary network       made at three year intervals; the sec-
station affiliated with that network,        ond election must be made by October
and                                          1, 1996 and will take effect on January
   (ii) Has not, within 90 days before the   1, 1997; the third election must be made
date on which that household sub-            by October 1, 1999 and will take effect
scribes, either initially or on renewal,     on January 1, 2000, etc.
received secondary transmissions by a          (3) Television stations that fail to
satellite carrier of a network station       make an election by the specified dead-
affiliated with that network, sub-           line will be deemed to have elected
scribed to a cable system that provides      must carry status for the relevant
the signal of a primary network sta-         three-year period.
tion affiliated with the network.              (4) New television stations shall
   (4) A primary network station is a        make their initial election any time
network station that broadcasts or re-       between 60 days prior to commencing
broadcasts the basic programming             broadcast and 30 days after commenc-
service of a particular national net-        ing broadcast; such initial election
work;                                        shall take effect 90 days after they are
   (5) The terms ‘‘network station,’’ and    made.
‘‘secondary transmission’’ have the            (5) Television broadcast stations that
meanings given them in 17 U.S.C. 111(f).     become eligible for must carry status
   (d) A multichannel video program          with respect to a cable system or sys-
distributor is an entity such as, but not    tems due to a change in the market
limited to, a cable operator, a multi-       definition may, within 30 days of the
channel multipoint distribution serv-        effective date of the new definition,
ice, a direct broadcast satellite service,   elect must-carry status with respect to
a television receive-only satellite pro-     such system or systems. Such elections
gram distributor, or a satellite master      shall take effect 90 days after they are
antenna television system operator,          made.
that makes available for purchase, by          (g) If one or more franchise areas
subscribers or customers, multiple           served by a cable system overlaps with
channels of video programming.               one or more franchise areas served by

                                         541
§ 76.67                                                47 CFR Ch. I (10–1–98 Edition)

another cable system, television broad-      statement to the cable system. Such
cast stations are required to make the       election shall remain valid for the re-
same election for both cable systems.        mainder of any three-year election in-
  (h) On or before each must-carry/re-       terval, as established in § 76.64(f)(2).
transmission consent election deadline,      Noncommercial educational broadcast
each television broadcast station shall      stations should notify the cable opera-
place copies of all of its election state-   tor of their request for carriage and
ments in the station’s public file, and      their channel position. The new cable
shall send via certified mail to each        system must notify each station if its
cable system in the station’s defined        signal quality does not meet the stand-
market a copy of the station’s election      ards for carriage and if any copyright
statement with respect to that opera-        liability would be incurred for the car-
tor.                                         riage of such signal. Pursuant to
  (i) Notwithstanding a television sta-      § 76.57(e), a commercial broadcast sta-
tion’s election of must-carry status, if     tion which fails to respond to such a
a cable operator proposes to retransmit      notice shall be deemed to be a must-
that station’s signal without according      carry station for the remainder of the
the station must-carry rights (i.e., pur-    current three-year election period.
suant to § 76.56(f)), the operator must         (m) Exclusive retransmission consent
obtain the station’s express authority       agreements are prohibited. No tele-
prior to retransmitting its signal.          vision broadcast station shall make an
  (j) A cable system that changes its        agreement with one multichannel dis-
technical configuration in such a way        tributor for carriage, to the exclusion
as to integrate two formerly separate        of other multichannel distributors.
cable systems must give 90 days notice          (n) A multichannel video program-
of its intention to do so to any tele-       ming distributor providing an all-band
vision broadcast stations that have          FM radio broadcast service (a service
elected must-carry status with respect       that does not involve the individual
to one system and retransmission con-        processing of specific broadcast sig-
sent status with respect to the other. If    nals) shall obtain retransmission con-
the system and the station do not            sents from all FM radio broadcast sta-
agree on a uniform election 45 days          tions that are included on the service
prior to integration, the cable system       that have transmitters located within
may require the station to make such         92 kilometers (57 miles) of the receiv-
a uniform election 30 days prior to in-      ing antenna for such service. Stations
tegration.                                   outside of this 92 kilometer (57 miles)
  (k) Retransmission consent agree-          radius shall be presumed not to be car-
ments between a broadcast station and        ried in an all-band reception mode but
a multichannel video programming dis-        may affirmatively assert retrans-
tributor shall be in writing and shall       mission consent rights by providing 30
specify the extent of the consent being      days advance notice to the distributor.
granted, whether for the entire signal       [58 FR 17363, Apr. 2, 1993, as amended at 59
or any portion of the signal.                FR 62345, Dec. 5, 1994]
  (l) A cable system commencing new
operation is required to notify all local    § 76.67 Sports broadcasts.
commercial and noncommercial broad-             (a) No community unit located in
cast stations of its intent to commence      whole or in part within the specified
service. The cable operator must send        zone of a television broadcast station
such notification, by certified mail, at     licensed to a community in which a
least 60 days prior to commencing            sports event is taking place, shall, on
cable service. Commercial broadcast          request of the holder of the broadcast
stations must notify the cable system        rights to that event, or its agent, carry
within 30 days of the receipt of such        the live television broadcast of that
notice of their election for either must-    event if the event is not available live
carry or retransmission consent with         on a television broadcast signal carried
respect to such new cable system. If         by the community unit meeting the
the commercial broadcast station             criteria   specified   in    §§ 76.5(gg)(1)
elects must-carry, it must also indicate     through 76.5(gg)(3) of this part. For
its channel position in its election         purposes of this section, if there is no

                                         542
Federal Communications Commission                                                         § 76.70

television station licensed to the com-      tion, and the community unit need not
munity in which the sports event is          return to its regularly carried signal
taking place, the applicable specified       until it can do so without interrupting
zone shall be that of the television sta-    a program already in progress.
tion licensed to the community with            (e) The provisions of this section
which the sports event or team is iden-      shall not be deemed to require the dele-
tified, or, if the event or local team is    tion of any portion of a television sig-
not identified with any particular com-      nal which a community unit was law-
munity, the nearest community to             fully carrying prior to March 31, 1972.
which a television station is licensed.        (f) The provisions of this section
  (b) Notification of the programming        shall not apply to any community unit
to be deleted pursuant to this section       having fewer than 1,000 subscribers.
shall include the following informa-
tion:                                        (Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317,
                                             48 Stat., as amended, 1064, 1065, 1066, 1068,
  (1) As to programming to be deleted
                                             1081, 1082, 1083, 1084, 1085, 1088, 1089; (47 U.S.C.
from television broadcast signals regu-      152, 153, 154, 155, 301, 303, 307, 308, 309, 315, 317))
larly carried by the community unit:
  (i) The name and address of the party      [40 FR 30649, July 22, 1975, as amended at 40
                                             FR 53031, Nov. 14, 1975; 42 FR 19346, Apr. 13,
requesting the program deletion;             1977; 43 FR 20235, May 11, 1978; 52 FR 17577,
  (ii) The date, time and expected dura-     May 11, 1987; 54 FR 41843, Oct. 12, 1989]
tion of the sports event the television
broadcast of which is to be deleted;         § 76.70 Exemption from input selector
  (iii) The call letters of the television        switch rules.
broadcast station(s) from which the de-         (a) In any case of cable systems serv-
letion is to be made.                        ing communities where no portion of
  (2) As to programming to be deleted        the community is covered by the pre-
from television broadcast signals not        dicted Grade B contour of at least one
regularly carried by the community           full service broadcast television sta-
unit:                                        tion, or non-commercial educational
  (i) The name and address of the party      television translator station operating
requesting the program deletion;             with 5 or more watts output power and
  (ii) The date, time and expected dura-     where the signals of no such broadcast
tion of the sports event the television      stations are ‘‘significantly viewed’’ in
broadcast of which is to be deleted.         the county where such a cable system
  (c) Notifications given pursuant to        is located, the cable system shall be ex-
this section must be received, as to         empt from the provisions of § 76.66.
regularly scheduled events, no later         Cable systems may be eligible for this
than the Monday preceding the cal-           exemption where they demonstrate
endar week (Sunday–Saturday) during          with engineering studies prepared in
which the program deletion is to be          accordance with § 73.686 of this chapter
made. Notifications as to events not         or other showings that broadcast sig-
regularly scheduled and revisions of         nals meeting the above criteria are not
notices previously submitted, must be        actually viewable within the commu-
received within twenty-four (24) hours       nity.
after the time of the telecast to be de-        (b) Where a new full service broad-
leted is known, but in any event no          cast television station, or new non-
later than twenty-four (24) hours from       commercial      educational     television
the time the subject telecast is to take     translator station with 5 or more
place.                                       watts, or an existing such station of ei-
  (d) Whenever, pursuant to this sec-        ther type with newly upgraded facili-
tion, a community unit is required to        ties provides predicted Grade B service
delete a television program on a signal      to a community served by a cable sys-
regularly carried by the community           tem previously exempt under para-
unit, such community unit may, con-          graph (a) of this section, or the signal
sistent with the rules contained in          of any such broadcast station is newly
Subpart F of this part, substitute a         determined      to    be   ‘‘significantly
program from any other television            viewed’’ in the county where such a
broadcast station. A program sub-            cable system is located, the cable sys-
stituted may be carried to its comple-       tem at that time is required to comply

                                         543
§ 76.71                                                 47 CFR Ch. I (10–1–98 Edition)

fully with the provisions of § 76.66.         gramming over a leased transport fa-
Cable systems may retain their exemp-         cility. For purposes of this subpart,
tion under paragraph (a) of this section      programming services are ‘‘commonly-
where they demonstrate with engineer-         owned’’ if the same entity holds a ma-
ing studies prepared in accordance with       jority of the stock (or is a general part-
§ 73.686 of this chapter or other             ner) of each program service.
showings that broadcast signals meet-           (b) Employment units. The provisions
ing the above criteria are not actually       of this subpart shall apply to cable en-
viewable within the community.                tities as employment units. Each cable
                                              entity may be considered a separate
[54 FR 25716, June 19, 1989]
                                              employment unit; however, where two
                                              or more cable entities are under com-
   Subpart E—Equal Employment                 mon ownership or control and are
     Opportunity Requirements                 interrelated in their local manage-
                                              ment, operation, and utilization of em-
  SOURCE: 50 FR 40855, Oct. 7, 1985, unless   ployees, they shall constitute a single
otherwise noted.                              employment unit.
                                                (c) Headquarters office. A multiple
§ 76.71 Scope of application.                 cable operator shall treat as a separate
   (a) The provisions of this subpart         employment unit each headquarters of-
shall apply to any corporation, part-         fice to the extent the work of that of-
nership, association, joint-stock com-        fice is primarily related to the oper-
pany, or trust engaged primarily in the       ation of more than one employment
management or operation of any cable          unit as described in paragraph (b) of
system. Cable entities subject to these       this section.
provisions include those systems de-          [50 FR 40855, Oct. 7, 1985, as amended at 58 FR
fined in § 76.5(a), all satellite master      42250, Aug. 9, 1993]
antenna television systems serving 50
or more subscribers, and any multi-           § 76.73 General EEO policy.
channel video programming distribu-              (a) Equal opportunity in employment
tor. For purposes of the provisions of        shall be afforded by each cable entity
this subpart, a multichannel video pro-       to all qualified persons, and no person
gramming distributor is an entity such        shall be discriminated against in em-
as, but not limited to, a cable operator,     ployment by such entity because of
a multipoint distribution service, a          race, color, religion, national origin,
multichannel multipoint distribution          age or sex.
service, a direct broadcast satellite            (b) Each employment unit shall es-
service, a television receive-only sat-       tablish, maintain, and carry out a posi-
ellite program distributor, or a video        tive continuing program of specific
dialtone program service provider, who        practices designed to assure equal op-
makes available for purchase, by sub-         portunity to every aspect of cable sys-
scribers or customers, multiple chan-         tem employment policy and practice.
nels of video programming, whether or         Under the terms of its program, an em-
not a licensee. Multichannel video pro-       ployment unit shall:
gramming distributors do not include             (1) Define the responsibility of each
any entity which lacks control over           level of management to ensure a posi-
the video programming distributed.            tive application and vigorous enforce-
For purposes of this subpart, an entity       ment of its policy of equal opportunity,
has control over the video program-           and establish a procedure to review and
ming it distributes, if it selects video      control managerial and supervisory
programming channels or programs              performance;
and determines how they are presented            (2) Inform its employees and recog-
for       sale       to       consumers.      nized employee organizations of the
Nothwithstanding the foregoing, the           positive equal employment oppor-
regulations in this subpart are not ap-       tunity policy and program and enlist
plicable to the owners or originators         their cooperation;
(of programs or channels of program-             (3) Communicate its equal employ-
ming) that distribute six or fewer chan-      ment opportunity policy and progam
nels of commonly-owned video pro-             and its employment needs to sources of

                                          544
Federal Communications Commission                                             § 76.75

qualified applicants without regard to      the Federal Communications Commis-
race, color, religion, national origin,     sion, or other appropriate agency if
age or sex, and solicit their recruit-      they believe they have been discrimi-
ment assistance on a continuing basis;      nated against.
  (4) Conduct a continuing program to         (b) Use minority organizations, orga-
exclude every form of prejudice or dis-     nizations for women, media, edu-
crimination based upon race, color, re-     cational institutions, and other poten-
ligion, national origin, age or sex from    tial sources of minority and female ap-
its personnel policies and practices and    plicants, to supply referrals whenever
working conditions; and                     job vacancies are available in its oper-
  (5) Conduct a continuing review of        ation. For example, this requirement
job structure and employment prac-          may be met by:
tices and adopt positive recruitment,         (1) Placing employment advertise-
training, job design, and other meas-       ments in media that have significant
ures needed to ensure genuine equality      circulation among minority-group peo-
of opportunity to participate fully in      ple in the recruiting area;
all organizational units, occupations,        (2) Recruiting through schools and
and levels of responsibility.               colleges with significant minority-
                                            group enrollments;
§ 76.75 EEO program requirements.             (3) Maintaining systematic contacts
   An employment unit’s equal employ-       with minority and human relations or-
ment opportunity program should rea-        ganizations, leaders, and spokesmen to
sonably address itself to the specific      encourage referral of qualified minor-
areas set forth below, to the extent        ity or female applicants;
possible and to the extent that they          (4) Encouraging current employees to
are appropriate in terms of employ-         refer minority or female applicants;
ment unit size, location, etc.:               (5) Making known to the appropriate
   (a) Disseminate its equal employ-        recruitment sources in the employer’s
ment opportunity program to job appli-      immediate area that qualified minority
cants, employees, and those with whom       members and females are being sought
it regularly does business. For exam-       for consideration whenever the employ-
ple, this requirement may be met by:        ment unit hires.
   (1) Posting notices in the employ-         (c) Evaluate its employment profile
                                            and job turnover against the availabil-
ment unit’s office and places of em-
                                            ity of minorities and women in its
ployment informing employees, and ap-
                                            franchise area. For example, this re-
plicants for employment, of their equal
                                            quirement may be met by:
employment opportunity rights, and
                                              (1) Comparing composition of rel-
their right to notify the Equal Employ-
                                            evant labor area with the composition
ment Opportunity Commission, the
                                            of the entity’s employees;
Federal Communications Commission,
                                              (2) Comparing its employees, within
or other appropriate agency, if they be-
                                            each job category, with the people
lieve they have been discriminated
                                            available for such positions;
against. Where a significant percentage
                                              (3) Where there is underrepresenta-
of employees, employment applicants,
                                            tion of either minorities and/or women,
or residents of the community of a
                                            examining the company’s personnel
cable television system of the relevant
                                            policies and practices to assure that
labor area are Hispanic, such notices
                                            they do not inadvertently screen out
should be posted in Spanish and
                                            any protected group and take appro-
English. Similar use should be made of
                                            priate action where necessary.
other languages in such posted equal
employment       opportunity     notices,     NOTE: These data are generally available
where appropriate;                          on a metropolitan statistical area (MSA),
   (2) Placing a notice in bold type on     primany   metropolitan   statistical  area
                                            (PMSA) or county basis.
the employment application informing
prospective employees that discrimina-        (d) Undertake to offer promotions of
tion because of race, color, religion,      minorities and women in a non-dis-
national origin, age or sex is prohibited   criminatory fashion to positions of
and that they may notify the Equal          greater responsibility. For example,
Employment Opportunity Commission,          this requirement may be met by:

                                        545
§ 76.77                                                47 CFR Ch. I (10–1–98 Edition)

  (1) Instructing those who make deci-      duties, and eliminating any inequities
sions on placement and promotion that       based upon race or sex discrimination.
minority employees and females are to
be considered without discrimination,       § 76.77   Reporting requirements.
and that job areas in which there is lit-     (a) Annual employment report. Each
tle or no minority or female represen-      employment unit with six or more full-
tation should be reviewed to determine      time employees shall file an annual
whether this results from discrimina-       employment report (FCC Form 395–A)
tion;                                       with the Commission on or before Sep-
  (2) Giving minority groups and fe-        tember 30 of each year. Employment
male employees equal opportunity for        data on the annual employment report
positions which lead to higher posi-        shall reflect the figures from any one
tions. Inquiring as to the interest and     payroll period in July, August, or Sep-
skills of all lower paid employees with     tember of the year during which the re-
respect to any of the higher paid posi-     port is filed. Unless instructed other-
tions, followed by assistance, counsel-     wise by the FCC, the same payroll pe-
ling, and effective measures to enable      riod shall be used for each successive
employees with interest and potential       annual employment report.
to qualify themselves for such posi-          (b) Certification of Compliance. The
tions;                                      Commission will use the information
  (3) Providing opportunity to perform      submitted on Form 395A to determined
overtime work on a basis that does not      whether cable systems are in compli-
discriminate against qualified minor-       ance with the provisions of this sub-
ity group or female employees.              part. Cable systems found to be in com-
  (e) Encourage minority and female         pliance with these rules will receive a
entrepreneurs to conduct business with      Certificate of Compliance.
all parts of its operation. For example,      (c) Investigations. The Commission
this requirement may be met by:             will investigate each cable system at
  (1) Recruiting as wide as possible a      least once every five years. Cable sys-
pool of qualified entrepreneurs from        tems are required to submit supple-
sources such as employee referrals,         mental investigation information with
community groups, contractors, asso-        their regular Form 395A reports in the
ciations, and other sources likely to be    years they are investigated.
representative of minority and female
                                              (d) Job category definitions. The fol-
interests.
                                            lowing job category definitions are to
  (f) Analyze the results of its efforts
                                            be used when classifying employees for
to recruit, hire, promote, and use the
                                            purposes of this section:
services of minorities and women and
explain any difficulties encountered in       (1) Corporate officers. An employee
implementing its equal employment           who is responsible for setting broad
opportunity program. For example,           policies for the overall operation of the
this requirement may be met by:             company and who holds a corporate of-
  (1) Where union agreements exist, co-     fice as designated by the company’s
operating with the union or unions in       governing regulations (e.g., Articles of
the development of programs to assure       Incorporation, Articles of Partnership,
qualified minority persons or females       By-Laws). Examples of positions which
of equal opportunity for employment,        may fall within this category include,
and including an effective non-             Chairman of the Board, President and
discrimination clause in new or renego-     Vice President.
tiated union agreements;                      NOTE: Employees who perform responsibil-
  (2) Avoiding use of selection tech-       ities falling within the ‘‘Corporate Officers’’
niques or tests that have the effect of     and another of the job categories in para-
discriminating against qualified minor-     graphs (d) (2) through (6), should normally be
ity groups or females;                      classified in only one of the categories in
                                            paragraphs (d) (2) through (6). Specific job ti-
  (3) Reviewing seniority practices to
                                            tles for categories in paragraphs (d) (1)
ensure that such practices are non-         through (6) are merely illustrative. The prop-
discriminatory;                             er categorization of any employee depends
  (4) Examining rates of pay and fringe     on the kind and level of the employee’s re-
benefits for employees having the same      sponsibilities and not merely the employee’s

                                        546
Federal Communications Commission                                                    § 76.77
title. Employees who are appropriately clas-        equivalent positions. Employees appro-
sified into one of the categories in para-          priately falling within categories in
graphs (d) (1) through (6) also should fall
                                                    paragraphs (d) (1) through (6) also
within the category of paragraph (d)(7).
                                                    should fall within this category.
  (2) General manager. An employee who                (8) Professionals. Occupations requir-
exercises overall responsibility for a              ing either college graduation or experi-
cable unit or system. Related title may             ence of such kind and amount as to
include ‘‘systems manager.’’                        provide a comparable background. In-
  (3) Chief technician. An employee who             cludes: accountants and auditors, edi-
has overall responsibility for the sys-
                                                    tors, engineers, lawyers and labor rela-
tem’s technical operations. The incum-
                                                    tions specialists. This category would
bent ordinarily oversees technical
                                                    include persons engaged in the writing,
budgets and expenditures, inventory
control and fleet management. Individ-              preparation and reproduction of pro-
ual ordinarily supervises technical per-            gramming, writers or editors, produc-
sonnel in the installation, service,                ers and directors of programs, floor di-
maintenance and construction depart-                rectors, announcers, singers, actors,
ments and/or studio. Category includes              music librarians and those in similar
related titles such as ‘‘Technical Oper-            positions.
ations Manager,’’ ‘‘Technical Man-                    (9) Technicians. Occupations requiring
ager,’’ ‘‘Plant Manager,’’ or ‘‘Chief En-           a combination of basic scientific
gineer.’’                                           knowledge and manual skill which can
  (4) Comptroller. An employee who                  be obtained through about 2 years of
manages the activities of the account-              post high school education, such as is
ing department in the maintenance of                offered in many technical institutes
the accounting book and other such                  and junior colleges, or through equiva-
records.                                            lent on-the-job training. Includes: com-
  (5) General sales manager. A senior               puter programmers and operators, en-
sales or marketing employee who over-               gineering aides, junior engineers and
sees the marketing functions of the                 electronic technicians. This category
system which may include tele-                      also would include strand mappers,
marketing in addition to direct sales.              audio and video engineers, camera
  (6) Production manager. A senior em-              technicians (live or film), film proc-
ployee responsible for advertising and/             essors, light technicians, drafters and
or production of local community pro-               design personnel, electronic converter
gramming.                                           repair technicians (technicians who
  NOTE: An employee whose responsibilities          perform more than clear and recycle
fall within more than one of the job cat-           functions) and advertising sales pro-
egories in paragraphs (d) (2) through (6), (i.e.,   duction personnel.
General Manager/Comptroller), should be
listed in the one job category which rep-             (10) Sales. Occupations engaging
resents the most frequently performed task          wholly or primarily in direct selling.
by that person.                                     This category would include advertis-
                                                    ing agents, cable service sales person-
  (7) Managers. Occupations requiring
administrative personnel who set broad              nel (sales representatives), and individ-
policies, exercise overall responsibility           uals engaged in direct customer con-
for execution of these policies, and di-            tact for the purposes of product and
rect individual departments or special              service promotion. This category in-
phases or segments of a firm’s oper-                cludes employees who ordinarily are
ation or subdepartments of a major de-              paid by commissions.
partment. Incumbents within this cat-                 (11) Office and clerical. Includes all
egory ordinarily exercise authority to              clerical-type work regardless of level of
hire and terminate employees. This                  difficulty, where the activities are pre-
category would include systems man-                 dominantly nonmanual though some
agers and assistant managers, program               manual work not directly involved
directors and assistant directors, office           with altering or transporting the prod-
managers, budget officers, promotions               ucts is included. Includes: Book-
managers, public affairs directors,                 keepers, cashiers, collectors of bills
chief engineers and those holding                   and accounts, messengers and clerks,

                                                547
§ 76.79                                                       47 CFR Ch. I (10–1–98 Edition)

office machine operators, stenog-                   kind and level of the employee’s responsibil-
raphers, typists and secretaries, tele-             ities.
phone operators, kindred workers and
                                                    [50 FR 40855, Oct. 7, 1985, as amended at 58 FR
customer service representatives.                   42250, Aug. 9, 1993; 63 FR 16907, Apr. 7, 1998]
  (12) Craft workers (skilled). Manual
workers of relatively high skill level              § 76.79 Records available for public in-
having a thorough and comprehensive                      spection.
knowledge of the processes involved in                 (a) A copy of every annual employ-
their work. Exercise considerable inde-             ment report, and any other employ-
pendent judgment and usually receive                ment report filed with the Commission,
an extensive period of training. In-                and complaint report that has been
cludes: Hourly paid supervisors who are             filed with the Commission, and copies
not members of management, mechan-                  of all exhibits, letters, and other docu-
ics, and repair workers, electricians,              ments filed as part thereof, all amend-
motion picture projectionists, and                  ments thereto, all correspondence be-
splicers.                                           tween the cable entity and the Com-
  (13) Operatives (semi-skilled). Workers           mission pertaining to the reports after
who operate machine or processing                   they have been filed in all documents
equipment or perform other factory-                 incorporated therein by reference, un-
type duties of intermediate skill level             less specifically exempted from the re-
which can be mastered in a few weeks                quirement, are open for public inspec-
and require only limited training In-               tion at the offices of the Commission in
cludes: Apprentices, operatives, truck              Washington, DC.
and tractor drivers, welders, installers,              (b) Every employment unit shall
                                                    maintain for public inspection a file
line workers, and trenching machine
                                                    containing copies of all annual employ-
workers.
                                                    ment reports. Each document shall be
  NOTE: Apprentices—Persons employed in a           retained for a period of five years. The
program including work training and related         file shall be maintain at the central of-
instruction to learn a trade or craft which is      fice and at every location with more
traditionally considered an apprenticeship          than five full-time employees. A head-
regardless of whether the program is reg-           quarters employment unit file and a
istered with a Federal or State agency.             file containing a consolidated set of all
   (14) Laborers (unskilled). Workers in            documents pertaining to the other em-
manual occupations which generally                  ployment units of a multiple cable op-
require no special training. Perform el-            erator shall be maintained at the cen-
ementary duties that may be learned                 tral office of the headquarters employ-
in a few days and require the applica-              ment unit. The cable entity shall pro-
tion of little or no independent judg-              vide reasonable accommodations at
ment.      Includes:     gardeners   and            these locations for undisturbed inspec-
groundskeepers, laborers performing                 tion of his equal employment oppor-
lifting or digging, stage hands and kin-            tunity records by members of the pub-
                                                    lic during regular business hours.
dred workers.
   (15) Service workers. Workers in both
protective and nonprotective service                Subpart F—Nonduplication Pro-
occupations. Includes: Char workers                    tection and Syndicated Exclu-
and     cleaners,   elevator   operators,              sivity
guards and watch workers, janitors,
and kindred workers.                                  SOURCE: 53 FR 27171, July 19, 1988, unless
                                                    otherwise noted.
  NOTE: A person who does a job falling with-
in more than one of the job categories listed       § 76.92 Network non-duplication; ex-
in paragraphs (d) (7) through (15) is to be list-        tent of protection.
ed in the job category which represents the
most frequently performed task by that per-            (a) Upon receiving notification pur-
son; a person is to be listed only once. Spe-       suant to § 76.94, a cable community
cific job titles listed in the categories above     unit located in whole or in part within
are merely illustrative. The proper cat-            the geographic zone for a network pro-
egorization of any employee depends on the          gram, the network non-duplication

                                                548
Federal Communications Commission                                                 § 76.94

rights to which are held by a commer-        of the community of the community
cial television station licensed by the      unit.
Commission, shall not carry that pro-          (f) A community unit is not required
gram as broadcast by any other tele-         to delete the duplicating network pro-
vision signal, except as otherwise pro-      gramming of any television broadcast
vided below.                                 station which is significantly viewed in
  (b) For purposes of this section, the      the cable television community pursu-
order of nonduplication priority of tel-     ant to § 76.54.
evision signals carried by a community         (g) A community unit is not required
unit is as follows:                          to delete the duplicating network pro-
  (1) First, all television broadcast sta-   gramming of any qualified NCE tele-
tions within whose specified zone the        vision broadcast station that is carried
community of the community unit is           in fulfillment of the cable television
located, in whole or in part;                system’s mandatory signal carriage ob-
  (2) Second, all smaller market tele-       ligations, pursuant to § 76.56.
vision broadcast stations within whose         NOTE: With respect to network program-
secondary zone the community of the          ming, the geographic zone within which the
community unit is located, in whole or       television station is entitled to enforce net-
in part.                                     work non-duplication protection and priority
  (c) For purposes of this section, all      of shall be that geographic area agreed upon
noncommercial educational television         between the network and the television sta-
                                             tion. In no event shall such rights exceed the
broadcast stations licensed to a com-        area within which the television station may
munity located in whole or in part           acquire broadcast territorial exclusivity
within a major television market as          rights as defined in § 73.658(m), except that
specified in § 76.51 shall be treated in     small market television stations shall be en-
the same manner as a major market            titled to a secondary protection zone of 32.2
commercial television broadcast sta-         additional kilometers (20 additional miles).
tion, and all noncommercial edu-             To the extent rights are obtained for any hy-
                                             phenated market named in § 76.51, such
cational television broadcast stations       rights shall not exceed those permitted
not licensed to a community located in       under § 76.658(m) for each named community
whole or in part within a major tele-        in that market.
vision market shall be treated in the
same manner as a smaller market tele-        [53 FR 27171, July 19, 1988, as amended at 54
vision broadcast station.                    FR 12918, Mar. 29, 1989; 58 FR 17364, Apr. 2,
  (d) Any community unit operating in        1993; 58 FR 44951, Aug. 25, 1993]
a community to which a 100-watt or
                                             § 76.93 Parties entitled to network
higher power translator is located                non-duplication protection.
within the predicted Grade B signal
contour of the television broadcast sta-       Television broadcast station licens-
tion that the translator station re-         ees shall be entitled to exercise non-du-
transmits, and which translator is car-      plication rights pursuant to § 76.92 in
ried by the community unit shall, upon       accordance with the contractual provi-
request of such translator station li-       sions of the network-affiliate agree-
censee or permittee, delete the dupli-       ment.
cating network programming of any
television broadcast station whose ref-      § 76.94   Notification.
erence point (See § 76.53) is more than        (a) In order to exercise non-duplica-
88.5 km (55 miles) from the community        tion rights pursuant to § 76.92, tele-
of the community unit.                       vision stations shall notify each cable
  (e) Any community unit which oper-         television system operator of the non-
ates in a community located in whole         duplication sought in accordance with
or in part within the secondary zone of      the requirements of this Section. Ex-
a smaller market television broadcast        cept as otherwise provided in para-
station is not required to delete the du-    graph (b) of this section, non-duplica-
plicating network programming of any         tion protection notices shall include
major market television broadcast sta-       the following information:
tion whose reference point (See Section        (1) The name and address of the party
76.53) is also within 88.5 km (55 miles)     requesting non-duplication protection

                                         549
§ 76.94                                               47 CFR Ch. I (10–1–98 Edition)

and the television broadcast station           (1) In the event the protection speci-
holding the non-duplication right;           fied in the notices described in para-
  (2) The name of the program or series      graphs (a) or (b) of this section has
(including specific episodes where nec-      been limited or ended prior to the time
essary) for which protection is sought;      specified in the notice, or in the event
and                                          a time period, as identified to the cable
  (3) The dates on which protection is       system in a notice pursuant to para-
to begin and end.                            graph (b) of this section, for which a
  (b) Broadcasters entering into con-        broadcaster has obtained protection is
tracts providing for network non-dupli-      shifted to another time of day or an-
cation protection shall notify affected      other day (but not expanded), the
cable systems within 60 calendar days        broadcaster shall, as soon as possible,
of the signing of such a contract; pro-      inform each cable television system op-
vided, however, that for such contracts      erator that has previously received the
signed before May 5, 1989, a broadcaster     notice of all changes from the original
may provide notice on or before June         notice. Notice to be furnished ‘‘as soon
19, 1989. In the event the broadcaster is    as possible’’ under this subsection shall
unable based on the information con-         be furnished by telephone, telegraph,
tained in the contract, to furnish all       facsimile, overnight mail or other
the information required by paragraph        similar expedient means.
(a) of this section at that time, the          (2) In the event the protection speci-
broadcaster must provide modified no-        fied in the modified notices described
tices that contain the following infor-      in paragraph (b) of this section has
mation:                                      been expanded, the broadcaster shall,
                                             at least 60 calendar days prior to
  (1) The name of the network (or net-
                                             broadcast of a protected program enti-
works) which has (or have) extended
                                             tled to such expanded protection, no-
non-duplication protection to the
                                             tify each cable system operator that
broadcaster;
                                             has previously received notice of all
  (2) The time periods by time of day        changes from the original notice.
(local time) and by network (if more           (e) In determining which programs
than one) for each day of the week that      must be deleted from a television sig-
the broadcaster will be broadcasting         nal, a cable television system operator
programs from that network (or net-          may rely on information from any of
works) and for which non-duplication         the following sources published or oth-
protection is requested; and                 erwise made available:
  (3) The duration and extent (e.g., si-       (1) Newspapers or magazines of gen-
multaneous, same-day, seven-day, etc.)       eral circulation.
of the non-duplication protection              (2) A television station whose pro-
which has been agreed upon by the net-       grams may be subject to deletion. If a
work (or networks) and the broad-            cable television system asks a tele-
caster.                                      vision station for information about its
  (c) Except as otherwise provided in        program schedule, the television sta-
paragraph (d) of this section, a broad-      tion shall answer the request:
caster shall be entitled to non-duplica-       (i) Within ten business days following
tion protection beginning on the later       the television station’s receipt of the
of:                                          request; or
  (1) The date specified in its notice (as     (ii) Sixty days before the program or
described in paragraphs (a) or (b) of        programs mentioned in the request for
this section, whichever is applicable)       information will be broadcast; which-
to the cable television system; or           ever comes later.
  (2) The first day of the calendar week       (3) The broadcaster requesting exclu-
(Sunday-Saturday) that begins 60 days        sivity.
after the cable television system re-          (f) A broadcaster exercising exclusiv-
ceives notice from the broadcaster.          ity pursuant to § 76.92 shall provide to
  (d) A broadcaster shall provide the        the cable system, upon request, an
following information to the cable tele-     exact copy of those portions of the con-
vision system under the following cir-       tracts, such portions to be signed by
cumstances:                                  both the network and the broadcaster,

                                         550
Federal Communications Commission                                                    § 76.155

setting forth in full the provisions per-          NOTE: With respect to each syndicated pro-
tinent to the duration, nature, and ex-          gram, the geographic zone within which the
tent of the non-duplication terms con-           television station is entitled to enforce syn-
                                                 dicated exclusivity rights shall be that geo-
cerning broadcast signal exhibition to
                                                 graphic area agreed upon between the non-
which the parties have agreed.                   network program supplier, producer or dis-
[54 FR 12918, Mar. 29, 1989; 54 FR 25857, June   tributor and the television station. In no
20, 1989]                                        event shall such zone exceed the area within
                                                 which the television station has acquired
§ 76.95 Exceptions.                              broadcast territorial exclusivity rights as
                                                 defined in § 73.658(m). To the extent rights
  (a) The provisions of §§ 76.92–76.94           are obtained for any hyphenated market
shall not apply to a cable system serv-          named in § 76.51, such rights shall not exceed
ing fewer than 1,000 subscribers. Within         those permitted under § 73.658(m) for each
60 days following the provision of serv-         named community in that market.
ice to 1,000 subscribers, the operator of        [53 FR 27171, July 19, 1988, as amended at 54
each such system shall file a notice to          FR 12919, Mar. 29, 1989]
that effect with the Commission, and
serve a copy of that notice on every             § 76.153 Parties entitled to syndicated
television station that would be enti-                exclusivity.
tled to exercise network non-duplica-               (a) Television broadcast station li-
tion protection against it.                      censees shall be entitled to exercise ex-
  (b) Network non-duplication protec-            clusivity rights pursuant to § 76.151 in
tion need not be extended to a higher            accordance with the contractual provi-
priority station for one hour following          sions of their syndicated program li-
the scheduled time of completion of              cense agreements, consistent with
the broadcast of a live sports event by          § 76.159.
that station or by a lower priority sta-            (b) Distributors of syndicated pro-
tion against which a cable community             gramming shall be entitled to exercise
unit would otherwise be required to              exclusive rights pursuant to § 76.151 for
provide non-duplication protection fol-          a period of one year from the initial
lowing the scheduled time of comple-             broadcast syndication licensing of such
tion.                                            programming anywhere in the United
[53 FR 27171, July 19, 1989, as amended at 54    States; provided, however, that dis-
FR 12919, Mar. 29, 1989]                         tributors shall not be entitled to exer-
                                                 cise such rights in areas in which the
§ 76.97 Effective dates.                         programming has already been li-
                                                 censed.
   The network non–duplication protec-
tion and exceptions thereto outlined in          § 76.155 Notification.
§§ 76.92 through 76.95 shall become en-
forceable on January 1, 1990. The rules             (a) In order to exercise exclusivity
in effect on May 18, 1988, will remain           rights pursuant to § 76.151, distributors
operative until January 1, 1990.                 or television stations shall notify each
                                                 cable television system operator of the
[54 FR 12919, Mar. 29, 1989; 54 FR 25857, June   exclusivity sought in accordance with
20, 1989]                                        the requirements of this section. Syn-
                                                 dicated program exclusivity notices
§ 76.151 Syndicated program exclusiv-            shall include the following informa-
     ity: extent of protection.
                                                 tion:
  Upon receiving notification pursuant              (1) The name and address of the party
to § 76.155, a cable community unit lo-          requesting exclusivity and the tele-
cated in whole or in part within the ge-         vision broadcast station or other party
ographic zone for a syndicated pro-              holding the exclusive right;
gram, the syndicated exclusivity rights             (2) The name of the program or series
to which are held by a commercial tel-           (including specific episodes where nec-
evision station licensed by the Com-             essary) for which exclusivity is sought;
mission, shall not carry that program               (3) The dates on which exclusivity is
as broadcast by any other television             to begin and end.
signal, except as otherwise provided                (b) Broadcasters entering into con-
below.                                           tracts on or after August 18, 1988,

                                             551
§ 76.156                                               47 CFR Ch. I (10–1–98 Edition)

which contain syndicated exclusivity        is to begin and/or end, the distributor
protection shall notify affected cable      or broadcaster shall, as soon as pos-
systems within sixty calendar days of       sible, notify the cable television sys-
the signing of such a contract. Broad-      tem operator of the occurrence of the
casters who have entered into con-          relevant contingency. Notice to be fur-
tracts prior to August 18, 1988, and who    nished ‘‘as soon as possible’’ under this
comply with the requirements specified      subsection shall be furnished by tele-
in § 76.159 shall notify affected cable     phone, telegraph, facsimile, overnight
systems on or before June 19, 1989; pro-    mail or other similar expedient means.
vided, however, that with respect to        [53 FR 27171, July 19, 1988, as amended at 54
such pre-August 18, 1988, contracts that    FR 12919, Mar. 29, 1989]
require amendment in order to invoke
the provisions of these rules, notifica-    § 76.156 Exceptions.
tion may be given within sixty cal-            (a) Notwithstanding the require-
endar days of the signing of such           ments of §§ 76.151–76.155, a broadcast
amendment. A broadcaster shall be en-       signal is not required to be deleted
titled to exclusivity protection begin-     from a cable community unit when
ning on the later of:                       that cable community unit falls, in
  (1) The date specified in its notice to   whole or in part, within that signal’s
the cable television system; or             grade B contour, or when the signal is
  (2) The first day of the calendar week    significantly viewed pursuant to § 76.54
(Sunday-Saturday) that begins 60 days       in the cable community.
after the cable television system re-          (b) The provisions of §§ 76.151–76.155
ceives notice from the broadcaster;         shall not apply to a cable system serv-
  (c) In determining which programs         ing fewer than 1,000 subscribers. Within
must be deleted from a television           60 days following the provision of serv-
broadcast signal, a cable television sys-   ice to 1,000 subscribers, the operator of
tem operator may rely on information        each such system shall file a notice to
from any of the following sources pub-      that effect with the Commission, and
lished or otherwise made available.         serve a copy of that notice on every
  (1) Newspapers or magazines of gen-       television station that would be enti-
eral circulation;                           tled to exercise syndicated exclusivity
  (2) A television station whose pro-       protection against it.
grams may be subject to deletion. If a
cable television system asks a tele-        § 76.157 Exclusivity contracts.
vision station for information about its
                                               A distributor or television station ex-
program schedule, the television sta-
                                            ercising exclusivity pursuant to § 76.151
tion shall answer the request:
                                            shall provide to the cable system, upon
  (i) Within ten business days following
                                            request, an exact copy of those por-
the television station’s receipt of the
                                            tions of the exclusivity contracts, such
request; or
                                            portions to be signed by both the dis-
  (ii) Sixty days before the program or
                                            tributor and the television station, set-
programs mentioned in the request for
                                            ting forth in full the provisions perti-
information will be broadcast; which-
                                            nent to the duration, nature, and ex-
ever comes later.
                                            tent of the exclusivity terms concern-
  (3) The distributor or television sta-
                                            ing broadcast signal exhibition to
tion requesting exclusivity.
                                            which the parties have agreed.
  (d) In the event the exclusivity speci-
fied in paragraph (a) of this section has   § 76.158 Indemnification contracts.
been limited or has ended prior to the
time specified in the notice, the dis-         No licensee shall enter into any con-
tributor or broadcaster who has sup-        tract to indemnify a cable system for
plied the original notice shall, as soon    liability resulting from failure to de-
as possible, inform each cable tele-        lete programming in accordance with
vision system operator that has pre-        the provisions of this subpart unless
viously received the notice of all          the licensee has a reasonable basis for
changes from the original notice. In        concluding that such program deletion
the event the original notice specified     is not required by this subpart.
contingent dates on which exclusivity       [54 FR 12919, Mar. 29, 1989]

                                        552
Federal Communications Commission                                            § 76.205

§ 76.159 Requirements for invocation        ried under the Commission’s rules,
     of protection.                         such community unit may, consistent
  For a station licensee to be eligible     with these rules and the sports black-
to invoke the provisions of this sub-       out rules at 47 CFR 76.67, substitute a
part, it must have a contract or other      program from any other television
written indicia that it holds syndicated    broadcast station. Programs sub-
exclusivity rights for the exhibition of    stituted pursuant to this section may
the program in question. Contracts en-      be carried to their completion.
tered on or after August 18, 1988, must     [54 FR 12920, Mar. 29, 1989]
contain the following words: ‘‘the li-
censee [or substitute name] shall, by       § 76.163 Effective dates.
the terms of this contract, be entitled        No cable system shall be required to
to invoke the protection against dupli-     delete programming pursuant to the
cation of programming imported under        provisions of §§ 76.151 through 76.159
the Compulsory Copyright License, as        prior to January 1, 1990.
provided in § 76.151 of the FCC rules [or
                                            [54 FR 12920, Mar. 29, 1989]
‘as provided in the FCC’s syndicated
exclusivity rules’].’’ Contracts entered
into prior toAugust 18, 1988, must con-           Subpart G—Cablecasting
tain either the foregoing language or a
clear and specific reference to the li-     § 76.205 Origination cablecasts by le-
                                                 gally qualified candidates for public
censee’s authority to exercise exclusiv-         office; equal opportunities.
ity rights as to the specific program-
ming against cable television broad-           (a) General requirements. No cable tel-
cast signal carriage by the cable sys-      evision system is required to permit
tem in question upon the contingency        the use of its facilities by any legally
that the government reimposed syn-          qualified candidate for public office,
dicated exclusivity protection. In the      but if any system shall permit any
absence of such a specific reference in     such candidate to use its facilities, it
contracts entered into prior to August      shall afford equal opportunities to all
18, 1988, the provisions of these rules     other candidates for that office to use
may be invoked only if (a) the contract     such facilities. Such system shall have
is amended to include the specific lan-     no power of censorship over the mate-
guage referenced above or (b) a specific    rial broadcast by any such candidate.
written acknowledgment is obtained          Appearance by a legally qualified can-
from the party from whom the broad-         didate on any:
cast exhibition rights were obtained           (1) Bona fide newscast;
that the existing contract was in-             (2) Bona fide news interview;
tended, or should now be construed by          (3) Bona fide news documentary (if
agreement of the parties, to include        the appearance of the candidate is inci-
such rights. A general acknowledgment       dental to the presentation of the sub-
by a supplier of exhibition rights that     ject or subjects covered by the news
specific contract language was in-          documentary); or
tended to convey rights under these            (4) On-the-spot coverage of bona fide
rules will be accepted with respect to      news events (including, but not limited
all contracts containing that specific      to political conventions and activities
language. Nothing in this Section shall     incidental thereto) shall not be deemed
be construed as a grant of exclusive        to be use of a system. (section 315(a) of
rights to a broadcaster where such          the Communications Act.)
rights are not agreed to by the parties.       (b) Uses. As used in this section and
                                            § 76.206, the term ‘‘use’’ means a can-
[54 FR 12919, Mar. 29, 1989]                didate appearance (including by voice
                                            or picture) that is not exempt under
§ 76.161 Substitutions.                     paragraphs 76.205 (a)(1) through (a)(4) of
  Whenever, pursuant to the require-        this section.
ments of the syndicated exclusivity            (c) Timing of request. A request for
rules, a community unit is required to      equal opportunities must be submitted
delete a television program on a broad-     to the system within 1 week of the day
cast signal that is permitted to be car-    on which the first prior use giving rise

                                        553
§ 76.206                                                 47 CFR Ch. I (10–1–98 Edition)

to the right of equal opportunities oc-         tisers that enhance the value of adver-
curred: Provided, however, That where           tising spots must be disclosed and
the person was not a candidate at the           made available to candidates upon
time of such first prior use, he or she         equal terms. Such practices include but
shall submit his or her request within          are not limited to any discount privi-
1 week of the first subsequent use after        leges that affect the value of advertis-
he or she has become a legally quali-           ing, such as bonus spots, time-sensitive
fied candidate for the office in ques-          make goods, preemption priorities, or
tion.                                           any other factors that enhance the
  (d) Burden of proof. A candidate re-          value of the announcement.
questing equal opportunities of the sys-          (ii) The Commission recognizes non-
tem or complaining of noncompliance             preemptible, preemptible with notice,
to the Commission shall have the bur-           immediately preemptible and run-of-
den of proving that he or she and his or        schedule as distinct classes of time.
her opponent are legally qualified can-           (iii) Systems may establish and de-
didates for the same public office.             fine their own reasonable classes of im-
  (e) Discrimination between candidates.        mediately preemptible time so long as
In making time available to candidates          the differences between such classes
for public office, no system shall make         are based on one or more demonstrable
any discrimination between candidates           benefits associated with each class and
in practices, regulations, facilities, or       are not based solely upon price or iden-
services for or in connection with the          tity of the advertiser. Such demon-
service rendered pursuant to this part,         strable benefits include, but are not
or make or give any preference to any           limited to, varying levels of preemp-
candidate for public office or subject          tion protection, scheduling flexibility,
any such candidate to any prejudice or          or associated privileges, such as guar-
disadvantage; nor shall any system              anteed time-sensitive make goods. Sys-
make any contract or other agreement            tems may not use class distinctions to
which shall have the effect of permit-          defeat the purpose of the lowest unit
ting any legally qualified candidate for        charge requirement. All classes must
any public office to cablecast to the ex-       be fully disclosed and made available
clusion of other legally qualified can-         to candidates.
didates for the same public office.               (iv) Systems may establish reason-
[57 FR 210, Jan. 3, 1992, as amended at 59 FR   able classes of preemptible with notice
14568, Mar. 29, 1994]                           time so long as they clearly define all
                                                such classes, fully disclose them and
§ 76.206 Candidate rates.                       make them available to candidates.
   (a) Charges for use of cable television        (v)    Systems    may     treat   non-
systems. The charges, if any, made for          preemptible and fixed position as dis-
the use of any system by any person             tinct classes of time provided that sys-
who is a legally qualified candidate for        tems articulate clearly the differences
any public office in connection with his        between such classes, fully disclose
or her campaign for nomination for              them, and make them available to can-
election, or election, to such office           didates.
shall not exceed:                                 (vi) Systems shall not establish a
   (1) During the 45 days preceding the         separate, premium-priced class of time
date of a primary or primary runoff             sold only to candidates. Systems may
election and during the 60 days preced-         sell higher-priced non-preemptible or
ing the date of a general or special            fixed time to candidates if such a class
election in which such person is a can-         of time is made available on a bona fide
didate, the lowest unit charge of the           basis to both candidates and commer-
system for the same class and amount            cial advertisers, and provided such
of time for the same period.                    class is not functionally equivalent to
   (i) A candidate shall be charged no          any lower-priced class of time sold to
more per unit than the system charges           commercial advertisers.
its most favored commercial advertis-             (vii) [Reserved]
ers for the same classes and amounts of           (viii) Lowest unit charge may be cal-
time for the same periods. Any system           culated on a weekly basis with respect
practices offered to commercial adver-          to time that is sold on a weekly basis,

                                            554
Federal Communications Commission                                          § 76.206

such as rotations through particular        able program or daypart, the value of
programs or dayparts. Systems elect-        such make good must be included in
ing to calculate the lowest unit charge     the calculation of the lowest unit
by such a method must include in that       charge for that program or daypart.
calculation all rates for all announce-       (2) At any time other than the re-
ments scheduled in the rotation, in-        spective periods set forth in paragraph
cluding announcements aired under           (a)(1) of this section, systems may
long-term advertising contracts. Sys-       charge legally qualified candidates for
tems may implement rate increases           public office no more than the charges
during election periods only to the ex-     made for comparable use of the system
tent that such increases constitute         by commercial advertisers. The rates,
‘‘ordinary business practices,’’ such as    if any, charged all such candidates for
seasonal program changes or changes         the same office shall be uniform and
in audience ratings.                        shall not be rebated by any means, di-
   (ix) Systems shall review their adver-   rect or indirect. A candidate shall be
tising records periodically throughout      charged no more than the rate the sys-
the election period to determine            tem would charge for comparable com-
whether compliance with this section        mercial advertising. All discount privi-
requires that candidates receive re-        leges otherwise offered by a system to
bates or credits. Where necessary, sys-     commercial advertisers must be dis-
tems shall issue such rebates or credits    closed and made available upon equal
promptly.                                   terms to all candidates for public of-
   (x) Unit rates charged as part of any    fice.
package, whether individually nego-           (b) If a system permits a candidate to
tiated or generally available to all ad-    use its cablecast facilities, the system
vertisers, must be included in the low-     shall make all discount privileges of-
est unit charge calculation for the         fered to commercial advertisers, in-
same class and length of time in the        cluding the lowest unit charges for
same time period. A candidate cannot        each class and length of time in the
be required to purchase advertising in      same time period and all corresponding
every program or daypart in a package       discount privileges, available on equal
as a condition for obtaining package        terms to all candidates. This duty in-
unit rates.                                 cludes an affirmative duty to disclose
   (xi) Systems are not required to in-     to candidates information about rates,
clude non-cash promotional mer-             terms, conditions and all value-enhanc-
chandising incentives in lowest unit        ing discount privileges offered to com-
charge calculations; provided, however,     mercial advertisers. Systems may use
that all such incentives must be offered    reasonable discretion in making the
to candidates as part of any purchases      disclosure; provided, however, that the
permitted by the system. Bonus spots,       disclosure includes, at a minimum, the
however, must be included in the cal-       following information:
culation of the lowest unit charge cal-       (1) A description and definition of
culation.                                   each class of time available to com-
   (xii) Make goods, defined as the re-     mercial advertisers sufficiently com-
scheduling of preempted advertising,        plete enough to allow candidates to
shall be provided to candidates prior to    identify and understand what specific
election day if a system has provided a     attributes differentiate each class;
time-sensitive make good during the           (2) A description of the lowest unit
year preceding the pre-election periods,    charge and related privileges (such as
respectively set forth in paragraph         priorities against preemption and
(a)(1) of this section, to any commer-      make goods prior to specific deadlines)
cial advertiser who purchased time in       for each class of time offered to com-
the same class.                             mercial advertisers;
   (xiii) Systems must disclose and           (3) A description of the system’s
make available to candidates any            method of selling preemptible time
make good policies provided to com-         based upon advertiser demand, com-
mercial advertisers. If a system places     monly known as the ‘‘current selling
a make good for any commercial adver-       level,’’ with the stipulation that can-
tiser or other candidate in a more valu-    didates will be able to purchase at

                                        555
§ 76.207                                                 47 CFR Ch. I (10–1–98 Edition)

these demand-generated rates in the               (b) When, during such origination
same manner as commercial advertis-             cablecasting, an attack is made upon
ers;                                            the honesty, character, integrity, or
  (4) An approximation of the likeli-           like personal qualities of an identified
hood of preemption for each kind of             person or group, the cable television
preemptible time; and                           system operator shall, within a reason-
  (5) An explanation of the system’s            able time and in no event later than
sales practices, if any, that are based         one (1) week after the attack, transmit
on audience delivery, with the stipula-         to the person or group attacked:
tion that candidates will be able to              (1) Notification of the date, time, and
purchase this kind of time, if available
                                                identification of the cablecast;
to commercial advertisers.
  (c) Once disclosure is made, systems            (2) A script or tape (or an accurate
shall negotiate in good faith to actu-          summary if a script or tape is not
ally sell time to candidates in accord-         available) of the attack; and
ance with the disclosure.                         (3) An offer of a reasonable oppor-
                                                tunity to respond over the system’s fa-
[57 FR 210, Jan. 3, 1992, as amended at 57 FR
                                                cilities.
27709, June 22, 1992]
                                                  (c) The provisions of paragraph (b) of
§ 76.207 Political file.                        this section shall not apply to cable-
   (a) Every cable television system            cast material which falls within one or
shall keep and permit public inspection         more of the following categories:
of a complete and orderly record (polit-          (1) Personal attacks on foreign
ical file) of all requests for cablecast        groups or foreign public figures;
time made by or on behalf of a can-               (2) Personal attacks occurring during
didate for public office, together with         uses by legally qualified candidates.
an appropriate notation showing the               (3) Personal attacks made during
disposition made by the system of such          cablecasts not included in paragraph
requests, and the charges made, if any,         (b)(2) of this section and made by le-
if the request is granted. The ‘‘disposi-       gally qualified candidates, their au-
tion’’ includes the schedule of time            thorized spokespersons or those associ-
purchased, when spots actually aired,           ated with them in the campaign, on
the rates charged, and the classes of           other such candidates, their authorized
time purchased.                                 spokespersons or persons associated
   (b) When free time is provided for use       with the candidates in the campaign;
by or on behalf of candidates, a record         and
of the free time provided shall be
                                                  (4) Bona fide newscasts, bona fide
placed in the political file.
                                                news interviews, and on-the-spot cov-
   (c) All records required by this para-
                                                erage of bona fide news events (includ-
graph shall be placed in the political
file as soon as possible and shall be re-       ing commentary or analysis contained
tained for a period of two years. As            in the foregoing programs, but, the
soon as possible means immediately              provisions of paragraph (b) of this sec-
absent unusual circumstances.                   tion shall be applicable to editorials of
                                                the cable television system operator).
[57 FR 212, Jan. 3, 1992]
                                                  (d) Where a cable television system
§ 76.209 Fairness doctrine; personal at-        operator, in an editorial, (1) endorses
     tacks; political editorials.               or (2) opposes a legally qualified can-
                                                didate or candidates, the system opera-
   (a) A cable television system opera-
tor      engaging       in      origination     tor shall, within 24 hours of the edi-
cablecasting shall afford reasonable op-        torial, transmit to respectively (i) the
portunity for the discussion of conflict-       other qualified candidate or candidates
ing views on issues of public impor-            for the same office, or (ii) the can-
tance.                                          didate opposed in the editorial, (a) no-
                                                tification of the date, time, and chan-
  NOTE: See public notice, ‘‘Applicability of
                                                nel of the editorial; (b) a script or tape
the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance,’’    of the editorial; and (c) an offer of a
29 FR 10415.                                    reasonable opportunity for a candidate

                                            556
Federal Communications Commission                                                  § 76.221

or a spokesman of the candidate to re-            (i) By a cable system located in that
spond over the system’s facilities: Pro-        State;
vided, however, That where such edi-              (ii) By a cable system located in an-
torials are cablecast within 72 hours           other State which conducts such a lot-
prior to the day of the election, the           tery; or
system operator shall comply with the             (iii) By a cable system located in an-
provisions of this paragraph suffi-             other State which is integrated with a
ciently far in advance of the broadcast         cable system described in paragraphs
to enable the candidate or candidates           (c)(1)(i) or (c)(1)(ii) of this section, if
to have a reasonable opportunity to             termination of the receipt of such
prepare a response and to present it in         transmission by the cable systems in
a timely fashion.                               such other State would be technically
                                                infeasible.
[37 FR 3278, Feb. 12, 1972, as amended at 42      (2) Any gaming conducted by an In-
FR 19347, Apr. 13, 1977; 44 FR 45956, Aug. 6,
                                                dian Tribe pursuant to the Indian Gam-
1979]
                                                ing Regulatory Act. (25 U.S.C. 2701 et
§ 76.213 Lotteries.                             seq.).
                                                  (3) A lottery, gift enterprise or simi-
  (a) No cable television system opera-         lar scheme, other than one described in
tor, except as in paragraph (c), when           paragraph (c)(1) of this section, that is
engaged in origination cablecasting             authorized or not otherwise prohibited
shall transmit or permit to be trans-           by the State in which it is conducted
mitted on the origination cablecasting          and which is:
channel or channels any advertisement             (i) Conducted by a not-for-profit or-
of or information concerning any lot-           ganization or a governmental organiza-
tery, gift, enterprise, or similar              tion; or
scheme, offering prizes dependent in              (ii) Conducted as a promotional ac-
whole or in part upon lot or chance, or         tivity by a commercial organization
any list of prizes drawn or awarded by          and is clearly occasional and ancillary
means of any such lottery, gift enter-          to the primary business of that organi-
prise, or scheme, whether said list con-        zation.
tains any part or all of such prizes.             (d) For the purposes of paragraph (c)
  (b) The determination whether a par-          lottery means the pooling of proceeds
ticular program comes within the pro-           derived from the sale of tickets or
visions of paragraph (a) of this section        chances and allotting those proceeds or
depends on the facts of each case. How-         parts thereof by chance to one or more
ever, the Commission will in any event          chance takers or ticket purchasers. It
consider that a program comes within            does not include the placing or accept-
the provisions of paragraph (a) of this         ing of bets or wagers on sporting
section if in connection with such pro-         events or contests.
gram a prize consisting of money or               (e) For purposes of paragraph (c)(3)(i)
thing of value is awarded to any person         of this section, the term ‘‘not-for-profit
whose selection is dependent in whole           organization’’ means any organization
or in part upon lot or chance, if as a          that would qualify as tax exempt under
condition of winning or competing for           section 501 of the Internal Revenue
such prize, such winner or winners are          Code of 1986.
required to furnish any money or thing
                                                [37 FR 3278, Feb. 12, 1972, as amended at 40
of value or are required to have in their       FR 6210, Feb. 10, 1975; 42 FR 13947, Apr. 13,
possession any product sold, manufac-           1977; 54 FR 20856, May 15, 1989; 55 FR 18888,
tured, furnished, or distributed by a           May 7, 1990]
sponsor of a program cablecast on the
system in question.                             § 76.221 Sponsorship identification; list
  (c) The provisions of paragraphs (a)               retention; related requirements.
and (b) of this section shall not apply            (a) When a cable television system
to advertisements or lists of prizes or         operator     engaged     in   origination
information concerning:                         cablecasting presents any matter for
  (1) A lottery conducted by a State            which money, service, or other valu-
acting under authority of State law             able consideration is either directly or
which is transmitted:                           indirectly paid or promised to, or

                                            557
§ 76.221                                              47 CFR Ch. I (10–1–98 Edition)

charged or accepted by such cable tele-      vided, however, That in the case of any
vision system operator, the cable tele-      cablecast of 5 minutes’ duration or
vision system operator, at the time of       less, only one such announcement need
the cablecast, shall announce that such      be made either at the beginning or con-
matter is sponsored, paid for, or fur-       clusion of the cablecast.
nished, either in whole or in part, and        (d) The announcement required by
by whom or on whose behalf such con-         this section shall, in addition to stat-
sideration was supplied: Provided, how-      ing the fact that the origination
ever, That ‘‘service or other valuable       cablecasting matter was sponsored,
consideration’’ shall not include any        paid for or furnished, fully and fairly
service or property furnished either         disclose the true identity of the person
without or at a nominal charge for use       or persons, or corporation, committee,
on, or in connection with, a cablecast       association or other unincorporated
unless it is so furnished in consider-       group, or other entity by whom or on
ation for an identification of any per-      whose behalf such payment is made or
son, product, service, trademark, or         promised, or from whom or on whose
brand name beyond an identification          behalf such services or other valuable
reasonably related to the use of such        consideration is received, or by whom
service or property on the cablecast.        the material or services referred to in
For the purposes of this section, the        paragraph (c)of this section are fur-
term ‘‘sponsored’’ shall be deemed to        nished. Where an agent or other person
have the same meaning as ‘‘paid for.’’       or entity contracts or otherwise makes
In the case of any political advertise-      arrangements with a cable television
ment cablecast under this paragraph          system operator on behalf of another,
that concerns candidates for public of-      and such fact is known or by the exer-
fice, the sponsor shall be identified        cise of reasonable diligence, as speci-
with letters equal to or greater than        fied in paragraph (b) of this section,
four percent of the vertical picture         could be known to the system operator,
height that air for not less than four       the announcement shall disclose the
seconds.                                     identity of the person or persons or en-
  (b) Each cable television system op-       tity on whose behalf such agent is act-
erator     engaged      in     origination   ing instead of the name of such agent.
cablecasting shall exercise reasonable       Where the origination cablecasting ma-
diligence to obtain from employees,          terial is political matter or matter in-
and from other persons with whom the         volving the discussion of a controver-
system operator deals directly in con-       sial issue of public importance and a
nection     with    any     matter     for   corporation, committee, association or
cablecasting, information to enable          other unincorporated group, or other
such system operator to make the an-         entity is paying for or furnishing the
nouncement required by this section.         matter, the system operator shall, in
  (c) In the case of any political origi-    addition to making the announcement
nation cablecast matter or any origina-      required by this section, require that a
tion cablecast matter involving the          list of the chief executive officers or
discussion of public controversial           members of the executive committee
issues for which any film, record, tran-     or of the board of directors of the cor-
scription, talent, script, or other mate-    poration, committee, association or
rial or service of any kind is furnished,    other unincorporated group, or other
either directly or indirectly, to a cable    entity shall be made available for pub-
television system operator as an in-         lic inspection at the local office of the
ducement for cablecasting such matter,       system. Such lists shall be kept and
an announcement shall be made both           made available for a period of two
at the beginning and conclusion of such      years.
cablecast on which such material or            (e) In the case of origination cable-
service is used that such film, record,      cast matter advertising commercial
transcription, talent, script, or other      products or services, an announcement
material or service has been furnished       stating the sponsor’s corporate or
to such cable television system opera-       trade name, or the name of the spon-
tor in connection with the trans-            sor’s product, when it is clear that the
mission of such cablecast matter: Pro-       mention of the name of the product

                                         558
Federal Communications Commission                                                      § 76.227

constitutes a sponsorship identifica-             § 76.225 Commercial limits in chil-
tion, shall be deemed sufficient for the               dren’s programs.
purposes of this section and only one                (a) No cable operator shall air more
such announcement need be made at                 than 10.5 minutes of commercial mat-
any time during the course of the ca-             ter per hour during children’s program-
blecast.                                          ming on weekends, or more than 12
  (f) The announcement otherwise re-              minutes of commercial matter per
quired by this section is waived with             hour on weekdays.
respect to the origination cablecast or              (b) This rule shall not apply to pro-
‘‘want ad’’ or classified advertisements          grams aired on a broadcast television
sponsored by an individual. The waiver            channel which the cable operator pas-
granted in this paragraph shall not ex-           sively carries, or to access channels
tend to a classified advertisement or             over which the cable operator may not
want and sponsorship by any form of               exercise editorial control, pursuant to
business enterprise, corporate or other-          47 U.S.C. 531(e) and 532(c)(2).
wise. Whenever sponsorship announce-                 (c) Cable operators must maintain
ments are omitted pursuant to this                records sufficient to verify compliance
paragraph, the cable television system            with this rule and make such records
operator shall observe the following              available to the public. Such records
conditions:                                       must be retained for a period sufficient
  (1) Maintain a list showing the name,           to cover the limitations period speci-
address, and (where available) the tele-          fied in 47 U.S.C. 503(b)(6)(B).
phone number of each advertiser;
                                                    NOTE 1: Commercial matter means air time
  (2) Make this list available to mem-            sold for purposes of selling a product or serv-
bers of the public who have a legiti-             ice.
mate interest in obtaining the informa-             NOTE 2: For purposes of this section, chil-
tion contained in the list.                       dren’s programming refers to programs origi-
  (g) The announcements required by               nally produced and broadcast primarily for
this section are waived with respect to           an audience of children 12 years old and
feature motion picture film produced              younger.
initially and primarily for theatre ex-
                                                  [56 FR 19616, Apr. 29, 1991]
hibition.
   NOTE: The waiver heretofore granted by         § 76.227 Blocking of indecent sexually-
the Commission in its Report and Order,                oriented programming channels.
adopted November 16, 1960 (FCC 60–1369; 40           (a) In providing sexually explicit
F.C.C. 95), continues to apply to programs
                                                  adult programming or other program-
filmed or recorded on or before June 20, 1963,
when § 73.654(e), the predecessor television      ming that is indecent on any channel
rule, went into effect.                           of its service primarily dedicated to
                                                  sexually-oriented programming, a mul-
  (h) Commission interpretations in               tichannel video programming distribu-
connection with the provisions of the             tor shall fully scramble or otherwise
sponsorship identification rules for the          fully block the video and audio portion
broadcasting services are contained in            of such channel so that one not a sub-
the Commission’s Public Notice, enti-             scriber to such channel or program-
tled ‘‘Applicability of Sponsorship               ming does not receive it.
Indentification Rules,’’ dated May 6,                (b) Until a multichannel video pro-
1963 (40 F.C.C. 141), as modified by Pub-         gramming distributor complies with
lic Notice, dated April 21, 1975 (FCC 75–         the requirement set forth in paragraph
418). Further interpretations are print-          (a) of this section, the multichannel
ed in full in various volumes of the              video programming distributor shall
Federal Communications Commission                 not provide the programming referred
Reports. The interpretations made for             to in paragraph (a) of this section be-
the broadcasting services are equally             tween the hours of 6 a.m. and 10 p.m.
applicable to origination cablecasting.              (c) Scramble means to rearrange the
[39 FR 18401, Apr. 28, 1974, as amended at 42     content of the signal of the program-
FR 19348, Apr. 13, 1977; 42 FR 23510, May 9,      ming so that the programming cannot
1977; 57 FR 212, Jan. 3, 1992; 57 FR 8279, Mar.   be viewed or heard in an understand-
9, 1992]                                          able manner.

                                              559
§ 76.300                                                             47 CFR Ch. I (10–1–98 Edition)

  (d) Sexually explicit adult program-                    requirements pursuant to § 76.56. Such
ming or other programming that is in-                     list shall include the call sign, commu-
decent means any programming that                         nity of license, broadcast channel num-
describes or depicts sexual or excretory                  ber, cable channel number, and in the
activities or organs in a patently offen-                 case of a noncommercial educational
sive manner as measured by contem-                        broadcast station, whether that station
porary community standards for the                        was carried by the cable system on
cable or other multichannel video pro-                    March 29, 1990.
gramming distribution medium.                                (b) The operator of every cable tele-
                                                          vision system shall maintain for public
[61 FR 9650, Mar. 11, 1996]
                                                          inspection the designation and location
                                                          of its principal headend.
   Subpart H—General Operating                               (c) Such records must be maintained
           Requirements                                   in accordance with the provisions of
                                                          § 76.305(b).
§ 76.300 Scope of application.                               (d) Upon written request from any
   (a) The provisions of §§ 76.302, 76.306,               person, a cable operator is required to
and 76.307 are applicable to all cable                    provide the list of signals specified in
television systems.                                       paragraph (a) of this section in writing
   (b) The provisions of §§ 76.301 and                    within 30 days of receipt of such re-
76.305 are not applicable to any cable                    quest.
television system serving fewer than                      [58 FR 17364, Apr. 2, 1993]
1,000 subscribers.
                                                          § 76.305 Records to be maintained lo-
(Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317,          cally by cable system operators for
48 Stat., as amended, 1064, 1065, 1066, 1068,                  public inspection.
1081, 1082, 1083, 1084, 1085, 1088, 1089; (47 U.S.C.
152, 153, 154, 155, 301, 303, 307, 308, 309, 315, 317))      (a) Records to be maintained. The oper-
                                                          ator of every cable television system
[42 FR 19349, Apr. 13, 1977, as amended at 43             having 1,000 or more subscribers shall
FR 20235, May 11, 1978; 58 FR 17364, Apr. 2,
1993]
                                                          maintain for public inspection a file
                                                          containing a copy of all records which
§ 76.301 Copies of rules.                                 are required to be kept by § 76.207 (po-
                                                          litical file); 76.221(f) (sponsorship iden-
   The operator of a cable television
                                                          tifications); 76.79 (EEO records avail-
system shall have a current copy of
                                                          able for public inspection); 76.225(c)
Part 76 and, if subject to the Emer-
                                                          (commerical records for children’s pro-
gency Alert System (EAS) rules con-
                                                          gramming); 76.601(c) (proof-of-perform-
tained in Part 11 of this chapter, an
                                                          ance test data); 76.601(e) (signal leak-
EAS Operating Handbook, and is ex-
                                                          age logs and repair records) and
pected to be familiar with the rules
                                                          § 76.701(h)(records for leased access).
governing cable television systems and
                                                             (1) A record shall be kept of each test
the EAS. Copies of the Commission’s
                                                          and activation of the Emergency Alert
Rules may be obtained from the Super-
                                                          System (EAS) procedures pursuant to
intendent of Documents, Government
                                                          the requirement of part 11 of this chap-
Printing Office, Washington, D.C. 20402,
                                                          ter and the EAS Operating Handbook.
at nominal cost. Copies of the EAS Op-
                                                          These records shall be kept for three
erating Handbook may be obtained
                                                          years.
from the Commission’s EAS staff, in
                                                             (2) [Reserved]
Washington, DC.                                              (b) Location of records. The public in-
[59 FR 67103, Dec. 28, 1994]                              spection file shall be maintained at the
                                                          office which the system operator main-
§ 76.302 Required recordkeeping for                       tains for the ordinary collection of sub-
     must-carry purposes.                                 scriber charges, resolution of sub-
   (a) Effective June 17, 1993, the opera-                scriber complaints, and other business
tor of every cable television system                      or at any accessible place in the com-
shall maintain for public inspection a                    munity served by the system unit(s)
file containing a list of all broadcast                   (such as a public registry for docu-
television stations carried by its sys-                   ments or an attorney’s office). The
tem in fulfillment of the must-carry                      public inspection file shall be available

                                                      560
Federal Communications Commission                                                          § 76.309

for public inspection at any time dur-                      (2) A franchising authority from en-
ing regular business hours.                               forcing, through the end of the fran-
   (c) The records specified in paragraph                 chise term, pre-existing customer serv-
(a) of this section shall be retained for                 ice requirements that exceed the stand-
the period specified in §§ 76.207, 76.221(f),             ards set forth in paragraph (c) of this
76.79, 76.225(c), 76.601(c), and 76.601(e),               section and are contained in current
respectively.                                             franchise agreements;
   (d) Reproduction of records. Copies of                   (3) Any State or any franchising au-
any material in the public inspection                     thority from enacting or enforcing any
file shall be available for machine re-                   consumer protection law, to the extent
production upon request made in per-                      not specifically preempted herein; or
son, provided the requesting party                          (4) The establishment or enforcement
shall pay the reasonable cost of repro-                   of any State or municipal law or regu-
duction. Requests for machine copies                      lation concerning customer service
shall be fulfilled at a location specified                that imposes customer service require-
by the system operator, within a rea-                     ments that exceed, or address matters
sonable period of time, which in no                       not addressed by the standards set
event shall be longer than seven days.                    forth in paragraph (c) of this section.
The system operator is not required to                      (c) Effective July 1, 1993, a cable op-
honor requests made by mail but may                       erator shall be subject to the following
do so if it chooses.                                      customer service standards:
                                                            (1) Cable system office hours and
(Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317,
                                                          telephone availability—
48 Stat., as amended, 1064, 1065, 1066, 1068,
1081, 1082, 1083, 1084, 1085, 1088, 1089; (47 U.S.C.        (i) The cable operator will maintain a
152, 153, 154, 155, 301, 303, 307, 308, 309, 315, 317))   local, toll-free or collect call telephone
                                                          access line which will be available to
[39 FR 29186, Aug. 14, 1974, as amended at 40
                                                          its subscribers 24 hours a day, seven
FR 25024, June 12, 1975; 42 FR 19349, Apr. 13,
1977; 51 FR 26251, July 22, 1986; 56 FR 19617,            days a week.
Apr. 29, 1991; 57 FR 11001, Apr. 1, 1992; 58 FR             (A) Trained company representatives
7993, Feb. 11, 1993; 59 FR 67103, Dec. 28, 1994]          will be available to respond to cus-
                                                          tomer telephone inquiries during nor-
§ 76.307 System inspection.                               mal business hours.
   The operator of a cable television                       (B) After normal business hours, the
system shall make the system, its pub-                    access line may be answered by a serv-
lic inspection file (if required by                       ice or an automated response system,
§ 76.305), and its records of subscribers                 including an answering machine. In-
available for inspection upon request                     quiries received after normal business
by any authorized representative of the                   hours must be responded to by a
Commission at any reasonable hour.                        trained company representative on the
                                                          next business day.
[42 FR 19349, Apr. 13, 1977]                                (ii) Under normal operating condi-
                                                          tions, telephone answer time by a cus-
§ 76.309 Customer service obligations.
                                                          tomer representative, including wait
  (a) A cable franchise authority may                     time, shall not exceed thirty (30) sec-
enforce the customer service standards                    onds when the connection is made. If
set forth in paragraph (c) of this sec-                   the call needs to be transferred, trans-
tion against cable operators. The fran-                   fer time shall not exceed thirty (30)
chise authority must provide affected                     seconds. These standards shall be met
cable operators ninety (90) days writ-                    no less than ninety (90) percent of the
ten notice of its intent to enforce the                   time under normal operating condi-
standards.                                                tions, measured on a quarterly basis.
  (b) Nothing in this rule should be                        (iii) The operator will not be required
construed to prevent or prohibit:                         to acquire equipment or perform sur-
  (1) A franchising authority and a                       veys to measure compliance with the
cable operator from agreeing to cus-                      telephone answering standards above
tomer service requirements that ex-                       unless an historical record of com-
ceed the standards set forth in para-                     plaints indicates a clear failure to com-
graph (c) of this section;                                ply.

                                                      561
§ 76.309                                             47 CFR Ch. I (10–1–98 Edition)

  (iv) Under normal operating condi-        of service, at least annually to all sub-
tions, the customer will receive a busy     scribers, and at any time upon request:
signal less than three (3) percent of the     (1) Products and services offered;
time.                                         (2) Prices and options for program-
  (v) Customer service center and bill      ming services and conditions of sub-
payment locations will be open at least     scription to programming and other
during normal business hours and will       services;
be conveniently located.                      (3) Installation and service mainte-
  (2) Installations, outages and service    nance policies;
calls. Under normal operating condi-          (4) Instructions on how to use the
tions, each of the following four stand-    cable service;
ards will be met no less than ninety          (5) Channel positions programming
five (95) percent of the time measured      carried on the system; and,
on a quarterly basis:                         (6) Billing and complaint procedures,
  (i) Standard installations will be per-   including the address and telephone
formed within seven (7) business days       number       of  the   local    franchise
after an order has been placed. ‘‘Stand-    authority’s cable office.
ard’’ installations are those that are        (B) Customers will be notified of any
located up to 125 feet from the existing    changes in rates, programming services
distribution system.                        or channel positions as soon as possible
                                            in writing. Notice must be given to
  (ii) Excluding conditions beyond the
                                            subscribers a minimum of thirty (30)
control of the operator, the cable oper-
                                            days in advance of such changes if the
ator will begin working on ‘‘service
                                            change is within the control of the
interruptions’’ promptly and in no
                                            cable operator. In addition, the cable
event later than 24 hours after the
                                            operator shall notify subscribers thirty
interruption becomes known. The cable
                                            (30) days in advance of any significant
operator must begin actions to correct
                                            changes in the other information re-
other service problems the next busi-
                                            quired by paragraph (c)(3)(i)(A) of this
ness day after notification of the serv-
                                            section. Notwithstanding any other
ice problem.
                                            provision of Part 76, a cable operator
  (iii) The ‘‘appointment window’’ al-      shall not be required to provide prior
ternatives for installations, service       notice of any rate change that is the
calls, and other installation activities    result of a regulatory fee, franchise fee,
will be either a specific time or, at       or any other fee, tax, assessment, or
maximum, a four-hour time block dur-        charge of any kind imposed by any
ing normal business hours. (The opera-      Federal agency, State, or franchising
tor may schedule service calls and          authority on the transaction between
other installation activities outside of    the operator and the subscriber.
normal business hours for the express         (ii) Billing—
convenience of the customer.)                 (A) Bills will be clear, concise and
  (iv) An operator may not cancel an        understandable. Bills must be fully
appointment with a customer after the       itemized, with itemizations including,
close of business on the business day       but not limited to, basic and premium
prior to the scheduled appointment.         service charges and equipment charges.
  (v) If a cable operator representative    Bills will also clearly delineate all ac-
is running late for an appointment          tivity during the billing period, includ-
with a customer and will not be able to     ing optional charges, rebates and cred-
keep the appointment as scheduled, the      its.
customer will be contacted. The ap-           (B) In case of a billing dispute, the
pointment will be rescheduled, as nec-      cable operator must respond to a writ-
essary, at a time which is convenient       ten complaint from a subscriber within
for the customer.                           30 days.
  (3) Communications between cable            (iii) Refunds—Refund checks will be
operators and cable subscribers—            issued promptly, but no later than
  (i) Notifications to subscribers—         either—
  (A) The cable operator shall provide        (A) The customer’s next billing cycle
written information on each of the fol-     following resolution of the request or
lowing areas at the time of installation    thirty (30) days, whichever is earlier, or

                                        562
Federal Communications Commission                                                   § 76.403

   (B) The return of the equipment sup-         tions with the Commisson shall be sup-
plied by the cable operator if service is       plied;
terminated.                                       (b) The assumed name (if any) used
   (iv) Credits—Credits for service will        for doing business in each community;
be issued no later than the customer’s            (c) The new mail address, including
next billing cycle following the deter-         zip code, to which all communications
mination that a credit is warranted.            are to be directed;
   (4) Definitions—                               (d) The nature of the operational sta-
   (i) Normal business hours—The term           tus change (e.g., became operational on
‘‘normal business hours’’ means those           (year) (month), exceeded 49 subscribers,
hours during which most similar busi-           exceeded 499 subscribers, operation ter-
nesses in the community are open to             minated temporarily, operation termi-
serve customers. In all cases, ‘‘normal         nated permanently);
business hours’’ must include some                (e) The names and FCC identifiers
evening hours at least one night per            (e.g., CA0001) of the system commu-
week and/or some weekend hours.                 nities affected.
   (ii) Normal operating conditions—The
term ‘‘normal operating conditions’’              NOTE: FCC system community identifiers
means those service conditions which            are routinely assigned upon registration.
are within the control of the cable op-         They have been assigned to all reported sys-
                                                tem communities based on previous Form 325
erator. Those conditions which are not          data. If a system community in operation
within the control of the cable opera-          prior to March 31, 1972, has not previously
tor include, but are not limited to, nat-       been assigned a system community identi-
ural disasters, civil disturbances,             fier, the operator shall provide the following
power outages, telephone network out-           information in lieu of the identifier: Commu-
ages, and severe or unusual weather             nity Name, Community Type (i.e., incor-
conditions. Those conditions which are          porated town, unincorporated settlement,
ordinarily within the control of the            etc.) County Name, State, Operator Legal
cable operator include, but are not lim-        Name, Operator Assumed Name for Doing
                                                Business in the community, Operator Mail
ited to, special promotions, pay-per-           Address, and Year and Month service was
view events, rate increases, regular            first provided by the physical system.
peak or seasonal demand periods, and
maintenance or upgrade of the cable             [42 FR 20134, Apr. 18, 1977, as amended at 43
system.                                         FR 49009, Oct. 20, 1978; 54 FR 41843, Oct. 12,
   (iii) Service interruption—The term          1989]
‘‘service interruption’’ means the loss
of picture or sound on one or more              § 76.403 Cable     television   system    re-
cable channels.                                      ports.
[58 FR 21109, Apr. 19, 1993, as amended at 61
                                                  The operator of every operational
FR 18977, Apr. 30, 1996]                        cable television system shall correct
                                                and/or furnish information in response
                                                to forms, encompassing each commu-
   Subpart I—Forms and Reports                  nity unit, mailed to said operator by
§ 76.400 Operator, mail address, and            the Commission. These include:
     operational status changes.                Community unit data—‘‘Annual Report of
   Within 30 days following a change of          Cable Television System,’’ Form 325,
Cable Television System Operator, and/           Schedule 1
or change of the operator’s mail ad-            Physical system data—‘‘Annual Report of
                                                 Cable Television System,’’ Form 325,
dress, and/or change in the operational
                                                 Schedule 2
status of a cable television system, the        Operator ownership data—‘‘Annual Report of
Operator shall inform the Commission             Cable Television,’’ Form 325, Schedules 3
in writing of the following, as appro-           and 4
priate;
   (a) The legal name of the operator             These forms shall be completed and
and whether the operator is an individ-         returned to the Commission within 60
ual, private association, partnership or        days after the date of mailing by the
corporation. See § 76.5(cc). If the opera-      Commission.
tor is a partnership, the legal name of           NOTE: The operator of a cable television
the partner responsible for communica-          system having fewer than 1000 subscribers

                                            563
§ 76.501                                                   47 CFR Ch. I (10–1–98 Edition)
shall only be required to file Schedules 1 and   its franchise area if the cable opera-
2 of Form 325 for each community unit.           tor’s SMATV system was owned, oper-
                                                 ated, controlled by or under common
[50 FR 40857, Oct. 7, 1985]
                                                 control with the cable operator as of
                                                 October 5, 1992.
  Subpart J—Ownership of Cable                     (2) A cable operator may directly or
            Systems                              indirectly, through an affiliate owned,
                                                 operated, controlled by, or under com-
§ 76.501 Cross-ownership.                        mon control with the cable operator,
   (a) No cable television system (in-           offer service within its franchise area
cluding all parties under common con-            through SMATV facilities, provided
trol) shall carry the signal of any tele-        such service is offered in accordance
vision broadcast station if such system          with the terms and conditions of a
directly or indirectly owns, operates,           cable franchise agreement.
controls, or has an interest in a TV               (f) The restrictions in paragraphs (d)
broadcast station whose predicted                and (e) of this section shall not apply
Grade B contour, computed in accord-             to any cable operator in any franchise
ance with § 73.684 of part 73 of this            area in which a cable operator is sub-
chapter, overlaps in whole or in part            ject to effective competition as deter-
the service area of such system (i.e.,           mined under section 623(l) of the Com-
the area within which the system is              munications Act.
serving subscribers).                               NOTE 1: The word ‘‘control’’ as used herein
   (b) [Reserved]                                is not limited to majority stock ownership,
   (c) Effective date. The provisions of         but includes actual working control in what-
paragraph (a) of this section are not ef-        ever manner exercised.
fective until November 8, 1987, as to               NOTE 2: In applying the provisions of this
ownership interests proscribed herein if         section, ownership and other interests in
such interests were in existence on or           broadcast licensees and cable television sys-
before July 1, 1970 (e.g., if franchise          tems will be attributed to their holders and
were in existence on or before July              deemed cognizable pursuant to the following
                                                 criteria:
1970), and will be applied to cause di-
                                                    (a) Except as otherwise provided herein,
vestiture as to ownership interests pro-         partnership and direct ownership interest
scribed herein only where the cable              and any voting stock interest amounting to
system is directly or indirectly, owned,         5% or more of the outstanding voting stock
operated, controlled by, or has an in-           of a corporate broadcast licensee or cable
terest in a non-satellite television             television system will be cognizable;
broadcast station which places a prin-              (b) No minority voting stock interest will
cipal community contour encompass-               be cognizable if there is a single holder of
                                                 more than 50% of the outstanding voting
ing the entire community and there is
                                                 stock of the corporate broadcast licensee or
no other commercial non-satellite tele-          cable television system in which the minor-
vision broadcast station placing a prin-         ity interest is held;
cipal community contour encompass-                  (c) Investment companies, as defined in 15
ing the entire community.                        U.S.C. 80a–3, insurance companies and banks
   (d) No cable operator shall offer sat-        holding stock through their trust depart-
ellite master antenna television serv-           ments in trust accounts will be considered to
ice (‘‘SMATV’’), as that service is de-          have a cognizable interest only if they hold
                                                 10% or more of the outstanding voting stock
fined in § 76.5(a)(2), separate and apart
                                                 of a corporate broadcast licensee or cable
from any franchised cable service in             television system, or if any of the officers or
any portion of the franchise area                directors of the broadcast licensee or cable
served by that cable operator’s cable            television system are representatives of the
system, either directly or indirectly            investment company, insurance company or
through an affiliate owned, operated,            bank concerned. Holdings by a bank or insur-
controlled, or under common control              ance company will be aggregated if the bank
with the cable operator.                         or insurance company has any right to deter-
                                                 mine how the stock will be voted. Holdings
   (e)(1) A cable operator may directly
                                                 by investment companies will be aggregated
or indirectly, through an affiliate              if under common management.
owned, operated, controlled by, or                  (d) Attribution of ownership interests in a
under common control with the cable              broadcast licensee or cable television system
operator, offer SMATV service within             that are held indirectly by any party

                                             564
Federal Communications Commission                                                        § 76.501
through one or more intervening corpora-           sideration in the Memorandum Opinion and
tions will be determined by successive mul-        Order in MM Docket No. 83–46, FCC 86–410
tiplication of the ownership percentages for       (released November 28, 1986). Irrespective of
each link in the vertical ownership chain and      the terms of the certificate of limited part-
application of the relevant attribution            nership or partnership agreement, however,
benchmark to the resulting product, except         no such certification shall be made if the in-
that wherever the ownership percentage for         dividual or entity making the certification
any link in the chain exceeds 50%, it shall        has actual knowledge of any material in-
not be included for purposes of this mul-          volvement of the limited partners in the
tiplication. [For example, if A owns 10% of        management or operation of the media-relat-
company X, which owns 60% of company Y,            ed businesses of the partnership.
which owns 25% of ‘‘Licensee’’, then X’s in-         (h) Officers and directors of a broadcast li-
terest in ‘‘Licensee’’ would be 25% (the same      censee or cable television system are consid-
as Y’s interest since X’s interest in Y ex-        ered to have a cognizable interest in the en-
ceeds 50%), and A’s interest in ‘‘Licensee’’       tity with which they are so associated. If
would be 2.5% (0.1×0.25). Under the 5% attri-      any such entity engages in businesses in ad-
bution benchmark, X’s interest in ‘‘Li-            dition to its primary business of broadcast-
censee’’ would be cognizable, while A’s inter-     ing or cable television service, it may re-
est would not be cognizable.]                      quest the Commission to waive attribution
  (e) Voting stock interests held in trust         for any officer or director whose duties and
shall be attributed to any person who holds        responsibilities are wholly unrelated to its
or shares the power to vote such stock, to         primary business. The officers and directors
any person who has the sole power to sell          of a parent company of a broadcast licensee
such stock, and to any person who has the          or cable television system, with an attrib-
right to revoke the trust at will or to replace    utable interest in any such subsidiary en-
the trustee at will. If the trustee has a famil-   tity, shall be deemed to have a cognizable in-
ial, personal or extra-trust business relation-    terest in the subsidiary unless the duties and
ship to the grantor or the beneficiary, the        responsibilities of the officer or director in-
grantor or beneficiary, as appropriate, will       volved are wholly unrelated to the broadcast
be attributed with the stock interests held in     licensee or cable television system subsidi-
trust. An otherwise qualified trust will be in-    ary, and a statement properly documenting
effective to insulate the grantor or bene-         this fact is submitted to the Commission.
ficiary from attribution with the trust’s as-
                                                   [This statement may be included on appro-
sets unless all voting stock interests held by
                                                   priate Ownership Report.] The officers and
the grantor or beneficiary in the relevant
                                                   directors of a sister corporation of a broad-
broadcast licensee or cable television system
                                                   cast licensee or cable television system shall
are subject to said trust.
                                                   not be attributed with ownership of these en-
  (f) Holders of non-voting stock shall not be
                                                   tities by virtue of such status.
attributed an interest in the issuing entity.
Holders of debt and instruments such as war-         (i) Discrete ownership interests will be ag-
rants, convertible debentures, options or          gregated in determining whether or not an
other non-voting interests with rights of          interest is cognizable under this section. An
conversion to voting interests shall not be        individual or entity will be deemed to have a
attributed unless and until conversion is ef-      cognizable investment if:
fected.                                              (1) The sum of the interests held by or
  (g) (1) A limited partnership interest shall     through ‘‘passive investors’’ is equal to or
be attributed to a limited partner unless          exceeds 10 percent; or
that partner is not materially involved, di-         (2) The sum of the interests other than
rectly or indirectly, in the management or         those held by or through ‘‘passive investors’’
operation of the media-related activities of       is equal to or exceeds 5 percent; or
the partnership and the licensee or system so        (3) The sum of the interests computed
certifies.                                         under paragraph (i)(1) of this note plus the
  (2) In order for a licensee or system to         sum of the interests computed under para-
make the certification set forth in paragraph      graph (i)(2) of this note is equal to or exceeds
(g)(1) of this note, it must verify that the       10 percent.
partnership agreement or certificate of lim-         NOTE 3: In cases where record and bene-
ited partnership, with respect to the particu-     ficial ownership of voting stock is not iden-
lar limited partner exempt from attribution,       tical (e.g., bank nominees holding stock as
establishes that the exempt limited partner        record owners for the benefit of mutual
has not material involvement, directly or in-      funds, brokerage houses holding stock in
directly, in the management or operation of        street names for benefit of customers, in-
the media activities of the partnership. The       vestment advisors holding stock in their own
criteria which would assure adequate insula-       names for the benefit of clients, and insur-
tion for purposes of this certification are de-    ance companies holding stock), the party
scribed in the Memorandum Opinion and              having the right to determine how the stock
Order in MM Docket No. 83–46, FCC 85–252           will be voted will be considered to own it for
(released June 24, 1985) as modified on recon-     purposes of this subpart.

                                               565
§ 76.502                                                     47 CFR Ch. I (10–1–98 Edition)
  NOTE 4: Paragraph (a) of this section will      § 76.503   National subscriber limits.
not be applied so as to require the divesti-
ture of ownership interests proscribed herein       (a) Except as set forth in paragraph
solely because of the transfer of such inter-     (b) of this section no person or entity
ests to heirs or legatees by will or intestacy,   shall be permitted to reach more than
provided that the degree or extent of the pro-    30 percent of all homes passed nation-
scribed cross-ownership is not increased by       wide through cable systems owned by
such transfer.                                    such person or entity or in which such
  NOTE 5: In applying the provisions of para-     person or entity holds an attributable
graphs (d) and (e) of this section, control and   interest.
an attributable ownership interest shall be         (b) Ownership of cable systems reach-
defined by reference to the definitions con-      ing up to 35 percent of all homes passed
tained in Notes 1 through 4, provided how-        nationwide shall be permitted provided
ever, that:                                       the additional cable systems, beyond 30
  (a) The single majority shareholder provi-      percent of homes passed nationwide,
sions of Note 2(b) and the limited partner in-    are cable systems, beyond 30 percent of
sulation provisions of Note 2(g) shall not
                                                  homes passed nationwide, are minor-
apply; and
                                                  ity-controlled.
  (b) The provisions of Note 2(a) regarding
five (5) percent interests shall include all
                                                    (c) Prior to acquiring additional
voting or nonvoting stock or limited part-        cable systems any person or entity
nership equity interests of five (5) percent or   holding an attributable interest in
more.                                             cable systems reaching 20 percent, or
                                                  more, of homes passed nationwide must
[58 FR 27677, May 11, 1993, as amended at 60      certify to the Commission that no vio-
FR 37834, July 24, 1995; 61 FR 15388, Apr. 8,     lation of the national subscriber limits
1996]                                             prescribed in this section will occur as
                                                  a result of such acquisition.
§ 76.502 Time limits applicable to fran-            (d) Minority-controlled means more
     chise authority consideration of             than 50 percent owned by one or more
     transfer applications.                       members of a minority group.
  (a) A franchise authority shall have              (e) Minority means Black, Hispanic,
120 days from the date of submission of           American Indian, Alaska Native, Asian
a completed FCC Form 394, together                and Pacific Islander.
with all exhibits, and any additional               (f) Attributable interest shall be de-
information required by the terms of              fined by reference to the criteria set
the franchise agreement or applicable             forth in the Notes to § 76.501.
state or local law to act upon an appli-          [58 FR 60141, Nov. 15, 1993]
cation to sell, assign, or otherwise
transfer controlling ownership of a               § 76.504 Limits on carriage of verti-
cable system.                                          cally integrated programming.
  (b) A franchise authority that ques-              (a) Except as otherwise provided in
tions the accuracy of the information             this section no cable operator shall de-
provided under paragraph (a) must no-             vote more than 40 percent of its acti-
tify the cable operator within 30 days            vated channels to the carriage of na-
of the filing of such information, or             tional video programming services
such information shall be deemed ac-              owned by the cable operator or in
cepted, unless the cable operator has             which the cable operator has an attrib-
failed to provide any additional infor-           utable interest.
mation reasonably requested by the                  (b) The channel occupancy limits set
franchise authority within 10 days of             forth in paragraph (a) of this section
such request.                                     shall apply only to channel capacity up
  (c) If the franchise authority fails to         to 75 channels.
act upon such transfer request within               (c) A cable operator may devote two
120 days, such request shall be deemed            additional channels or up to 45 percent
granted unless the franchise authority            of its channel capacity, whichever is
and the requesting party otherwise                greater, to the carriage of video pro-
                                                  gramming services owned by the cable
agree to an extension of time.
                                                  operator or in which the cable operator
[61 FR 15388, Apr. 8, 1996]                       has an attributable interest provided

                                              566
Federal Communications Commission                                           § 76.505

such video programming services are           (c) A local exchange carrier and a
minority-controlled.                        cable operator whose telephone service
  (d) Cable operators carrying video        area and cable franchise area, respec-
programming services owned by the           tively, are in the same market may not
cable operator or in which the cable op-    enter into any joint venture or part-
erator holds an attributable interest in    nership to provide video programming
excess of limits set forth in paragraph     directly to subscribers or to provide
(a) of this section as of December 4,       telecommunications services within
1992, shall not be precluded by the re-     such market.
strictions in this section.                   (d) Exceptions:
  (e) Cable operators are required to         (1) Notwithstanding paragraphs (a),
maintain records in their public file for   (b), and (c) of this section, a local ex-
a period of three years regarding the       change carrier (with respect to a cable
nature and extent of their attributable     system located in its telephone service
interests in all video programming          area) and a cable operator (with re-
services as well as information regard-     spect to the facilities of a local ex-
ing their carriage of such vertically in-   change carrier used to provide tele-
tegrated video programming services         phone exchange service in its cable
on cable systems in which they also         franchise area) may obtain a control-
have an attributable interest. These        ling interest in, management interest
records must be made available to           in, or enter into a joint venture or
local franchise authorities, the Com-       partnership with the operator of such
mission, or members of the public on        system or facilities for the use of such
reasonable notice and during regular        system or facilities to the extent that:
business hours.                               (i) Such system or facilities only
  (f) Minority-controlled means more        serve incorporated or unincorporated :
than 50 percent owned by one or more          (A) Places or territories that have
members of a minority group.                fewer than 35,000 inhabitants; and
  (g) Minority means Black, Hispanic,         (B) Are outside an urbanized area, as
American Indian, Alaska Native, Asian       defined by the Bureau of the Census;
and Pacific Islander.                       and
  (h) Attributable interest shall be de-      (ii) In the case of a local exchange
fined by reference to the criteria set      carrier, such system, in the aggregate
forth in the Notes to § 76.501.             with any other system in which such
                                            carrier has an interest, serves less than
[58 FR 60141, Nov. 15, 1993]                10 percent of the households in the
                                            telephone service area of such carrier.
§ 76.505 Prohibition on buy outs.             (2) Notwithstanding paragraph (c) of
  (a) No local exchange carrier or any      this section, a local exchange carrier
affiliate of such carrier owned by, oper-   may obtain, with the concurrence of
ated by, controlled by, or under com-       the cable operator on the rates, terms,
mon control with such carrier may           and conditions, the use of that part of
purchase or otherwise acquire directly      the transmission facilities of a cable
or indirectly more than a 10 percent fi-    system extending from the last multi-
nancial interest, or any management         user terminal to the premises of the
interest, in any cable operator provid-     end user, if such use is reasonably lim-
ing cable service within the local ex-      ited in scope and duration, as deter-
change carrier’s telephone service area.    mined by the Commission.
  (b) No cable operator or affiliate of a     (3) Notwithstanding paragraphs (a)
cable operator that is owned by, oper-      and (c) of this section, a local exchange
ated by, controlled by, or under com-       carrier may obtain a controlling inter-
mon ownership with such cable opera-        est in, or form a joint venture or other
tor may purchase or otherwise acquire,      partnership with, or provide financing
directly or indirectly, more than a 10      to, a cable system (hereinafter in this
percent financial interest, or any man-     paragraph referred to as ‘‘the subject
agement interest, in any local ex-          cable system’’) if:
change carrier providing telephone ex-        (i) The subject cable system operates
change service within such cable opera-     in a television market that is not in
tor’s franchise area.                       the top 25 markets, and such market

                                        567
§ 76.601                                                47 CFR Ch. I (10–1–98 Edition)

has more than 1 cable system operator,         (6) The Commission may waive the
and the subject cable system is not the      restrictions of paragraphs (a), (b), or (c)
cable system with the most subscribers       of this section only if:
in such television market;                     (i) The Commission determines that,
  (ii) The subject cable system and the      because of the nature of the market
cable system with the most subscribers       served by the affected cable system or
in such television market held on May        facilities used to provide telephone ex-
1, 1995, cable television franchises from    change service:
the largest municipality in the tele-          (A) The affected cable operator or
vision market and the boundaries of          local exchange carrier would be sub-
such franchises were identical on such       jected to undue economic distress by
date;                                        the enforcement of such provisions;
  (iii) The subject cable system is not        (B) The system or facilities would
owned by or under common ownership           not be economically viable if such pro-
or control of any one of the 50 cable        visions were enforced; or
system operators with the most sub-            (C) The anticompetitive effects of the
scribers as such operators existed on        proposed transaction are clearly out-
May 1, 1995; and                             weighed in the public interest by the
  (iv) The system with the most sub-         probable effect of the transaction in
scribers in the television market is         meeting the convenience and needs of
owned by or under common ownership           the community to be served; and
or control of any one of the 10 largest        (ii) The local franchising authority
cable system operators as such opera-        approves of such waiver.
tors existed on May 1, 1995.                   (e) For purposes of this section, the
  (4) Paragraph (a) of this section does     term ‘‘telephone service area’’ when
                                             used in connection with a common car-
not apply to any cable system if:
                                             rier subject in whole or in part to title
  (i) The cable system serves no more
                                             II of the Communications Act means
than 17,000 cable subscribers, of which
                                             the area within which such carrier pro-
no less than 8,000 live within an urban      vided telephone exchange service as of
area, and no less than 6,000 live within     January 1, 1993, but if any common car-
a nonurbanized area as of June 1, 1995;      rier after such date transfers its tele-
  (ii) The cable system is not owned by,     phone exchange service facilities to an-
or under common ownership or control         other common carrier, the area to
with, any of the 50 largest cable system     which such facilities provide telephone
operators in existence on June 1, 1995;      exchange service shall be treated as
and                                          part of the telephone service area of
  (iii) The cable system operates in a       the acquiring common carrier and not
television market that was not in the        of the selling common carrier.
top 100 television markets as of June 1,
1995.                                        [61 FR 18977, Apr. 30, 1996]
  (5) Notwithstanding paragraphs (a)
and (c) of this section, a local exchange      Subpart K—Technical Standards
carrier with less than $100,000,000 in an-
nual operating revenues (or any affili-      § 76.601   Performance tests.
ate of such carrier owned by, operated         (a) The operator of each cable tele-
by, controlled by, or under common           vision system shall be responsible for
control with such carrier) may pur-          insuring that each such system is de-
chase or otherwise acquire more than a       signed, installed, and operated in a
10 percent financial interest in, or any     manner that fully complies with the
management interest in, or enter into        provisions of this subpart. Each system
a joint venture or partnership with,         operator shall be prepared to show, on
any cable system within the local ex-        request by an authorized representa-
change carrier’s telephone service area      tive of the Commission or the local
that serves no more than 20,000 cable        franchiser, that the system does, in
subscribers, if no more than 12,000 of       fact, comply with the rules.
those subscribers live within an urban-        (b) The operator of each cable tele-
ized area, as defined by the Bureau of       vision system shall maintain at its
the Census.                                  local office a current listing of the

                                         568
Federal Communications Commission                                               § 76.601

cable television channels which that         the qualifications of the person per-
system delivers to its subscribers.          forming the tests shall also be in-
   (c) The operator of each cable tele-      cluded.
vision system shall conduct complete            (2) Proof-of-performance tests to de-
performance tests of that system at          termine the extent to which a cable
least twice each calendar year (at in-       television system complies with the
tervals not to exceed seven months),         standards set forth in § 76.605(a) (3), (4),
unless otherwise noted below, and shall      and (5) shall be made on each of the
maintain the resulting test data on file     NTSC or similar video channels of that
at the operator’s local business office      system. Unless otherwise as noted,
for at least five (5) years. The test data   proof-of-performance tests for all other
shall be made available for inspection       standards in § 76.605(a) shall be made on
by the Commission or the local fran-         a minimum of four (4) channels plus
chiser, upon request. The performance        one additional channel for every 100
tests shall be directed at determining       MHz, or fraction thereof, of cable dis-
the extent to which the system com-          tribution system upper frequency limit
plies with all the technical standards       (e.g., 5 channels for cable television
set forth in § 76.605(a) and shall be as     systems with a cable distribution sys-
follows:                                     tem upper frequency limit of 101 to 216
   (1) For cable television systems with     MHz; 6 channels for cable television
1000 or more subscribers but with 12,500     systems with a cable distribution sys-
or fewer subscribers, proof-of-perform-      tem upper frequency limit of 217–300
ance tests conducted pursuant to this        MHz; 7 channels for cable television
section shall include measurements           systems with a cable distribution upper
taken at six (6) widely separated            frequency limit to 300 to 400 MHz, etc.).
points. However, within each cable sys-      The channels selected for testing must
tem, one additional test point shall be      be representative of all the channels
added for every additional 12,500 sub-       within the cable television system.
scribers or fraction thereof (e.g., 7 test      (3) The operator of each cable tele-
points if 12,501 to 25,000 subscribers; 8    vision system shall conduct semi-an-
test points if 25,001 to 37,500 subscrib-    nual proof-of-performance tests of that
ers, etc.). In addition, for technically     system, to determine the extent to
integrated portions of cable systems         which the system complies with the
that are not mechanically continuous         technical standards set forth in
(i.e., employing microwave connec-           § 76.605(a)(4) as follows. The visual sig-
tions), at least one test point will be      nal level on each channel shall be
required for each portion of the cable       measured and recorded, along with the
system served by a technically inte-         date and time of the measurement,
grated microwave hub. The proof-of-          once every six hours (at intervals of
performance test points chosen shall be      not less than five hours or no more
balanced to represent all geographic         than seven hours after the previous
areas served by the cable system. At         measurement), to include the warmest
least one-third of the test points shall     and the coldest times, during a 24-hour
be representative of subscriber termi-       period in January or February and in
nals most distant from the system            July or August.
input and from each microwave re-               (4) The operator of each cable tele-
ceiver (if microwave transmissions are       vision system shall conduct triennial
employed), in terms of cable length.         proof-of-performance tests of its sys-
The measurements may be taken at             tem to determine the extent to which
convenient monitoring points in the          the system complies with the technical
cable network: Provided, that data           standards set forth in § 76.605(a)(11).
shall be included to relate the meas-           (d) Successful completion of the per-
ured performance of the system as            formance tests required by paragraph
would be viewed from a nearby sub-           (c) of this section does not relieve the
scriber terminal. An identification of       system of the obligation to comply
the instruments, including the makes,        with all pertinent technical standards
model numbers, and the most recent           at all subscriber terminals. Additional
date of calibration, a description of the    tests, repeat tests, or tests involving
procedures utilized, and a statement of      specified subscriber terminals may be

                                         569
§ 76.605                                                    47 CFR Ch. I (10–1–98 Edition)

required by the Commission of the                  ance with the channel allocation plan
local franchiser to secure compliance              set forth in the Electronics Industries
with the technical standards.                      Association’s ‘‘Cable Television Chan-
   (e) The provisions of paragraphs (c)            nel Identification Plan, EIA IS–132,
and (d) of this section shall not apply            May 1994’’ (EIA IS–132). This incorpora-
to any cable television system having              tion by reference was approved by the
fewer than 1,000 subscribers: Provided,            Director of the Federal Register in ac-
however, that any cable television sys-            cordance with 5 U.S.C. 522(a) and 1 CFR
tem using any frequency spectrum                   Part 51. Cable systems are required to
other than that allocated to over-the-             use this channel allocation plan for sig-
air television and FM broadcasting (as             nals transmitted in the frequency
described in § 73.603 and § 73.210 of this         range 54 MHz to 1002 MHz. This incor-
chapter) is required to conduct all                poration by reference was approved by
tests, measurements and monitoring of              the Director of the Federal Register in
signal leakage that are required by this           accordance with 5 U.S.C. 522(a) and 1
subpart. A cable television system op-             CFR Part 51. Copies of EIA IS–132 may
erator complying with the monitoring,              be obtained from: Global Engineering
logging and the leakage repair require-            Documents, 2805 McGraw Ave., Irvine
ments of § 76.614, shall be considered to          CA 92714. Copies of EIA IS–132 may be
have met the requirements of this                  inspected during normal business hours
paragraph. However, the leakage log,               at the following locations: Federal
shall be retained for five years rather            Communications Commission, 1919 M
than the two years prescribed in                   Street, NW, Dockets Branch (Room
§ 76.614.                                          239), Washington, DC, or the Office of
  NOTE: Prior to requiring any additional          the Federal Register, 800 North Capitol
testing pursuant to § 76.601(d), the local fran-   Street, NW., suite 700, Washington, DC.
chising authority shall notify the cable oper-     This requirement is applicable on May
ator who will be allowed thirty days to come       31, 1995, for new and re-built cable sys-
into compliance with any perceived signal          tems, and on June 30, 1997, for all cable
quality problems which need to be corrected.
                                                   systems.
The Commission may request cable opera-
tors to test their systems at any time.              (2) The aural center frequency of the
                                                   aural carrier must be 4.5 MHz ± 5 kHz
[57 FR 11001, Apr. 1, 1992, as amended at 57       above the frequency of the visual car-
FR 61010, Dec. 23, 1992]                           rier at the output of the modulating or
                                                   processing equipment of a cable tele-
§ 76.605 Technical standards.                      vision system, and at the subscriber
   (a) As of December 30, 1992, unless             terminal.
otherwise noted, the following require-              (3) The visual signal level, across a
ments apply to the performance of a                terminating impedance which cor-
cable television system as measured at             rectly matches the internal impedance
any subscriber terminal with a                     of the cable system as viewed from the
matched impedance at the termination               subscriber terminal, shall not be less
point or at the output of the modulat-             than 1 millivolt across an internal im-
ing or processing equipment (generally             pedance of 75 ohms (0 dBmV). Addition-
the headend) of the cable television               ally, as measured at the end of a 30
system or otherwise as noted. The re-              meter (100 foot) cable drop that is con-
quirements are applicable to each                  nected to the subscriber tap, it shall
NTSC or similar video downstream                   not be less than 1.41 millivolts across
cable television channel in the system:            an internal impedance of 75 ohms (+3
   (1)(i) The cable television channels            dBmV). (At other impedance values,
delivered to the subscriber’s terminal             the minimum visual signal level, as
shall be capable of being received and             viewed from the subscriber terminal,
displayed by TV broadcast receivers                shall be the square root of 0.0133 (Z)
used for off-the-air reception of TV               millivolts and, as measured at the end
broadcast signals, as authorized under             of a 30 meter (100 foot) cable drop that
part 73 of this chapter; and                       is connected to the subscriber tap,
   (ii) Cable television systems shall             shall be 2 times the square root of
transmit signals to subscriber premises            0.00662(Z) millivolts, where Z is the ap-
equipment on frequencies in accord-                propriate impedance value.)

                                               570
Federal Communications Commission                                               § 76.605

  (4) The visual signal level on each          (7) The ratio of RF visual signal level
channel, as measured at the end of a 30      to system noise shall be as follows:
meter cable drop that is connected to          (i) From June 30, 1992, to June 30,
the subscriber tap, shall not vary more      1993, shall not be less than 36 decibels.
than 8 decibels within any six-month           (ii) From June 30, 1993 to June 30,
interval, which must include four tests      1995, shall not be less than 40 decibels.
performed in six-hour increments dur-          (iii) As of June 30, 1995, shall not be
ing a 24-hour period in July or August       less then 43 decibels.
and during a 24-hour period in January         (iv) For class I cable television chan-
or February, and shall be maintained         nels, the requirements of paragraphs
within:                                      (a)(7)(i), (a)(7)(ii) and (a)(7)(iii) of this
  (i) 3 decibels (dB) of the visual signal   section are applicable only to:
level of any visual carrier within a 6         (A) Each signal which is delivered by
MHz nominal frequency separation;            a cable television system to subscribers
  (ii) 10 dB of the visual signal level on   within the predicted Grade B contour
any other channel on a cable television      for that signal;
system of up to 300 MHz of cable dis-          (B) Each signal which is first picked
tribution system upper frequency             up within its predicted Grade B con-
limit, with a 1 dB increase for each ad-     tour;
ditional 100 MHz of cable distribution         (C) Each signal that is first received
system upper frequency limit (e.g., 11       by the cable television system by di-
dB for a system at 301–400 MHz; 12 dB        rect video feed from a TV broadcast
for a system at 401–500 MHz, etc.); and      station, a low power TV station, or a
  (iii) A maximum level such that sig-       TV translator station.
nal degradation due to overload in the         (8) The ratio of visual signal level to
subscriber’s receiver or terminal does       the rms amplitude of any coherent dis-
not occur.                                   turbances such as intermodulation
  (5) The rms voltage of the aural sig-      products, second and third order distor-
nal shall be maintained between 10 and       tions or discrete-frequency interfering
17 decibels below the associated visual      signals not operating on proper offset
signal level. This requirement must be       assignments shall be as follows:
met both at the subscriber terminal            (i) The ratio of visual signal level to
and at the output of the modulating          coherent disturbances shall not be less
and processing equipment (generally          than 51 decibels for noncoherent chan-
the headend). For subscriber terminals       nel cable television systems, when
that use equipment which modulate            measured with modulated carriers and
and remodulate the signal (e.g.,             time averaged; and
baseband converters), the rms voltage          (ii) The ratio of visual signal level to
of the aural signal shall be maintained      coherent disturbances which are fre-
between 6.5 and 17 decibels below the        quency-coincident with the visual car-
associated visual signal level at the        rier shall not be less than 47 decibels
subscriber terminal.                         for coherent channel cable systems,
  (6) The amplitude characteristic           when measured with modulated car-
shall be within a range of ±2 decibels       riers and time averaged.
from 0.75 MHz to 5.0 MHz above the             (9) The terminal isolation provided to
lower boundary frequency of the cable        each subscriber terminal:
television channel, referenced to the          (i) Shall not be less than 18 decibels.
average of the highest and lowest am-        In lieu of periodic testing, the cable op-
plitudes within these frequency bound-       erator may use specifications provided
aries.                                       by the manufacturer for the terminal
  (i) Prior to December 30, 1999, the        isolation equipment to meet this
amplitude characteristic may be meas-        standard; and
ured after a subscriber tap and before a       (ii) Shall be sufficient to prevent re-
converter that is provided and main-         flections caused by open-circuited or
tained by the cable operator.                short-circuited subscriber terminals
  (ii) As of December 30, 1999, the am-      from producing visible picture impair-
plitude characteristic shall be meas-        ments at any other subscriber termi-
ured at the subscriber terminal.             nal.

                                         571
§ 76.605                                                                                   47 CFR Ch. I (10–1–98 Edition)

   (10) The peak-to-peak variation in                                             (b) Cable television systems distrib-
visual signal level caused by undesired                                         uting signals by using methods such as
low frequency disturbances (hum or re-                                          nonconventional coaxial cable tech-
petitive transients) generated within                                           niques, noncoaxial copper cable tech-
the system, or by inadequate low fre-                                           niques, specialized coaxial cable and
quency response, shall not exceed 3 per-                                        fiber optical cable hybridization tech-
cent of the visual signal level. Meas-                                          niques or specialized compression tech-
urements made on a single channel                                               niques or specialized receiving devices,
using a single unmodulated carrier                                              and which, because of their basic de-
may be used to demonstrate compli-                                              sign, cannot comply with one or more
ance with this parameter at each test                                           of the technical standards set forth in
location.                                                                       paragraph (a) of this section, may be
   (11) As of June 30, 1995, the following                                      permitted to operate: Provided, That
requirements apply to the performance                                           an adequate showing is made pursuant
of the cable television system as meas-                                         to § 76.7 which establishes that the pub-
ured at the output of the modulating                                            lic interest is benefited. In such in-
or processing equipment (generally the                                          stances, the Commission may prescribe
headend) of the system:                                                         special technical requirements to en-
   (i) The chrominance-luminance delay                                          sure that subscribers to such systems
inequality (or chroma delay), which is                                          are provided with an equivalent level
the change in delay time of the chro-                                           of good quality service.
minance component of the signal rel-                                               NOTE 1: Local franchising authorities of
ative to the luminance component,                                               systems serving fewer than 1000 subscribers
shall be within 170 nanoseconds.                                                may adopt standards less stringent than
   (ii) The differential gain for the color                                     those in § 76.605(a). Any such agreement shall
                                                                                be reduced to writing and be associated with
subcarrier of the television signal,                                            the system’s proof-of-performance records.
which is measured as the difference in
                                                                                   NOTE 2: For systems serving rural areas as
amplitude between the largest and                                               defined in § 76.5, the system may negotiate
smallest segments of the chrominance                                            with its local franchising authority for
signal (divided by the largest and ex-                                          standards less stringent than those in
pressed in percent), shall not exceed                                           §§ 76.605(a)(3),     76.605(a)(7),   76.605(a)(8),
±20%.                                                                           76.605(a)(10) and 76.605(a)(11). Any such agree-
   (iii) The differential phase for the                                         ment shall be reduced to writing and be asso-
                                                                                ciated with the system’s proof-of-perform-
color subcarrier of the television signal
                                                                                ance records.
which is measured as the largest phase
                                                                                   NOTE 3: The requirements of this section
difference in degrees between each seg-
                                                                                shall not apply to devices subject to the pro-
ment of the chrominance signal and                                              visions of §§ 15.601 through 15.626.
reference segment (the segment at the
                                                                                   NOTE 4: Should subscriber complaints arise
blanking level of O IRE), shall not ex-                                         from a system failing to meet § 76.605(a)(6)
ceed ±10 degrees.                                                               prior to December 30, 1999, the cable operator
   (12) As an exception to the general                                          will be required to provide a converter that
provision requiring measurements to                                             will allow the system to meet the standard
be made at subscriber terminals, and                                            immediately at the complaining subscriber’s
without regard to the type of signals                                           terminal. Further, should the problem be
                                                                                found to be system-wide, the Commission
carried by the cable television system,
                                                                                may order all converters on the system be
signal leakage from a cable television                                          changed to meet the standard.
system shall be measured in accord-
                                                                                   NOTE 5: Should subscriber complaints arise
ance with the procedures outlined in                                            from a system failing to meet § 76.605(a)(10),
§ 76.609(h) and shall be limited as fol-                                        the cable operator will be required to remedy
lows:                                                                           the complaint and perform test measure-
                                                                                ments on § 76.605(a)(10) containing the full
                                                 Signal leak-                   number of channels as indicated in
                                                  age limit     Distance in
              Frequencies                                                       § 76.601(c)(2) at the complaining subscriber’s
                                                 (micro-volt/   meters (m)
                                                    meter)                      terminal. Further, should the problem be
                                                                                found to be system-wide, the Commission
Less than and including 54                                                      may order that the full number of channels
  MHz, and over 216 MHz .......                           15             30
                                                                                as indicated in § 76.601(c)(2) be tested at all
Over 54 up to and including 216
  MHz ........................................            20              3
                                                                                required locations for future proof-of-per-
                                                                                formance tests.

                                                                              572
Federal Communications Commission                                                  § 76.609
  NOTE 6: No State or franchising authority        § 76.609 Measurements.
may prohibit, condition, or restrict a cable
system’s use of any type of subscriber equip-         (a) Measurements made to dem-
ment or any transmission technology.               onstrate conformity with the perform-
                                                   ance requirements set forth in §§ 76.601
[37 FR 3278, Feb. 12, 1972, as amended at 37       and 76.605 shall be made under condi-
FR 13867, July 14, 1972; 40 FR 2690, Jan. 15,      tions which reflect system performance
1975; 40 FR 3296, Jan. 21, 1975; 41 FR 53028,      during normal operations, including
Dec. 3, 1976; 42 FR 21782, Apr. 29, 1977; 47 FR    the effect of any microwave relay oper-
21503, May 18, 1982; 50 FR 52466, Dec. 24, 1985;
                                                   ated in the Cable Television Relay
51 FR 1255, Jan. 10, 1986; 52 FR 22461, June 12,
1987; 57 FR 11002, Apr. 1, 1992; 57 FR 61010,      (CARS) Service intervening between
Dec. 23, 1992; 58 FR 44952, Aug. 25, 1993; 59 FR   pickup antenna and the cable distribu-
25342, May 16, 1994; 61 FR 18510, Apr. 26, 1996;   tion network. Amplifiers shall be oper-
61 FR 18978, Apr. 30, 1996]                        ated at normal gains, either by the in-
                                                   sertion of appropriate signals or by
§ 76.606 Closed captioning.                        manual adjustment. Special signals in-
  (a) As of June 30, 1992, the operator of         serted in a cable television channel for
each cable television system shall not             measurement purposes should be oper-
take any action to remove or alter                 ated at levels approximating those
closed captioning data contained on                used for normal operation. Pilot tones,
line 21 of the vertical blanking inter-            auxiliary or substitute signals, and
val.                                               nontelevision signals normally carried
  (b) As of July 1, 1993, the operator of          on the cable television system should
each cable television system shall de-             be operated at normal levels to the ex-
liver intact closed captioning data con-           tent possible. Some exemplary, but not
tained on line 21 of the vertical blank-           mandatory, measurement procedures
ing interval, as it arrives at the                 are set forth in this section.
headend or from another origination                   (b) When it may be necessary to re-
source, to subscriber terminals and                move the television signal normally
(when so delivered to the cable system)            carried on a cable television channel in
                                                   order to facilitate a performance meas-
in a format that can be recovered and
                                                   urement, it will be permissible to dis-
displayed by decoders meeting § 15.119
                                                   connect the antenna which serves the
of this chapter.
                                                   channel under measurement and to
[57 FR 11003, Apr. 1, 1992]                        substitute therefor a matching resist-
                                                   ance termination. Other antennas and
§ 76.607 Resolution of complaints.                 inputs should remain connected and
  Cable system operators shall estab-              normal signal levels should be main-
lish a process for resolving complaints            tained on other channels.
from subscribers about the quality of                 (c) As may be necessary to ensure
the television signal delivered. These             satisfactory service to a subscriber, the
records shall be maintained for at least           Commission may require additional
a one-year period. Aggregate data                  tests to demonstrate system perform-
based upon these complaints shall be               ance or may specify the use of different
made available for inspection by the               test procedures.
Commission and franchising authori-                   (d) The frequency response of a cable
ties, upon request. Subscribers shall be           television channel may be determined
advised, at least once each calendar               by one of the following methods, as ap-
year, of the procedures for resolution             propriate:
of complaints by the cable system op-                 (1) By using a swept frequency or a
erator, including the address of the re-           manually variable signal generator at
sponsible officer of the local franchis-           the sending end and a calibrated atten-
ing authority.                                     uator       and       frequency-selective
                                                   voltmeter at the subscriber terminal;
  NOTE: Prior to being referred to the Com-        or
mission, complaints from subscribers about
the quality of the television signal delivered
                                                      (2) By using either a multiburst gen-
must be referred to the local franchising au-      erator or vertical interval test signals
thority and the cable system operator.             and either a modulator or processor at
                                                   the sending end, and by using either a
[57 FR 61011, Dec. 23, 1992]                       demodulator and either an oscilloscope

                                               573
§ 76.609                                              47 CFR Ch. I (10–1–98 Edition)

display or a waveform monitor display       plying a signal of known amplitude to
at the subscriber terminal.                 one terminal and measuring the ampli-
   (e) System noise may be measured         tude of that signal at the other termi-
using a frequency-selective voltmeter       nal. The frequency of the signal should
(field strength meter) which has been       be close to the midfrequency of the
suitably calibrated to indicate rms         channel being tested. Measurements of
noise or average power level and which      terminal isolation are not required
has a known bandwidth. With the sys-        when either:
tem operating at normal level and with         (1) The manufacturer’s specifications
a properly matched resistive termi-         for subscriber tap isolation based on a
nation substituted for the antenna,         representative sample of no less than
noise power indications at the sub-         500 subscribers taps or
scriber terminal are taken in succes-          (2) Laboratory tests performed by or
sive increments of frequency equal to       for the operator of a cable television
the bandwidth of the frequency-selec-       system on a representative sample of
tive voltmeter, summing the power in-       no less than 50 subscriber taps, indi-
dications to obtain the total noise         cates that the terminal isolation
power present over a 4 MHz band cen-        standard of § 76.605(a)(9) is met.
tered within the cable television chan-     To     demonstrate      compliance     with
nel. If it is established that the noise    § 76.605(a)(9), the operator of a cable tel-
level is constant within this band-         evision system shall attach either such
width, a single measurement may be          manufacturer’s specifications or lab-
taken which is corrected by an appro-       oratory measurements as an exhibit to
priate factor representing the ratio of 4   each proof-of-performance record.
MHz to the noise bandwidth of the fre-         (h) Measurements to determine the
quency-selective voltmeter. If an am-       field strength of the signal leakage
plifier is inserted between the fre-        emanated by the cable television sys-
quency-selective voltmeter and the          tem shall be made in accordance with
subscriber terminal in order to facili-     standard engineering procedures. Meas-
tate this measurement, it should have       urements made on frequencies above 25
a bandwidth of at least 4 MHz and ap-       MHz shall include the following:
propriate corrections must be made to          (1) A field strength meter of adequate
account for its gain and noise figure.      accuracy using a horizontal dipole an-
Alternatively, measurements made in         tenna shall be employed.
accordance with the NCTA Rec-                  (2) Field strength shall be expressed
ommended Practices for Measurements         in terms of the rms value of synchro-
on Cable Television Systems, 2nd edi-       nizing peak for each cable television
tion, November 1989, on noise measure-      channel for which signal leakage can
ment may be employed.                       be measured.
   (f) The amplitude of discrete fre-          (3) The resonant half wave dipole an-
quency interfering signals within a         tenna shall be placed 3 meters from and
cable television channel may be deter-      positioned directly below the system
mined with either a spectrum analyzer       components and at 3 meters above
or with a frequency-selective voltmeter     ground. Where such placement results
(field strength meter), which instru-       in a separation of less than 3 meters
ments have been calibrated for ade-         between the center of the dipole an-
quate accuracy. If calibration accuracy     tenna and the system components, or
is in doubt, measurements may be ref-       less than 3 meters between the dipole
erenced to a calibrated signal genera-      and ground level, the dipole shall be
tor, or a calibrated variable attenu-       repositioned to provide a separation of
ator, substituted at the point of meas-     3 meters from the system components
urement. If an amplifier is used be-        at a height of 3 meters or more above
tween the subscriber terminal and the       ground.
measuring      instrument,   appropriate       (4) The horizontal dipole antenna
corrections must be made to account         shall be rotated about a vertical axis
for its gain.                               and the maximum meter reading shall
   (g) The terminal isolation between       be used.
any two terminals in the cable tele-           (5) Measurements shall be made
vision system may be measured by ap-        where other conductors are 3 or more

                                        574
Federal Communications Commission                                                           § 76.611

meters (10 or more feet) away from the              § 76.611 Cable television basic signal
measuring antenna.                                       leakage performance criteria.
   (i) For systems using cable traps and               (a) No cable television system shall
filters to control the delivery of spe-             commence or provide service in the fre-
cific channels to the subscriber termi-             quency bands 108–137 and 225–400 MHz
nal, measurements made to determine                 unless such systems is in compliance
compliance with § 76.605(a) (5) and (6)             with one of the following cable tele-
may be performed at the location im-                vision basic signal leakage perform-
mediately prior to the trap or filter for           ance criteria:
the specific channel. The effects of                   (1) prior to carriage of signals in the
these traps or filters, as certified by             aeronautical radio bands and at least
the system engineer or the equipment                once each calendar year, with no more
manufacturer, must be attached to                   than 12 months between successive
each proof-of-performance record.                   tests thereafter, based on a sampling of
   (j) Measurements made to determine               at least 75% of the cable strand, and in-
the differential gain, differential phase           cluding any portion of the cable system
and the chrominance-luminance delay                 which are known to have or can rea-
inequality (chroma delay) shall be                  sonably be expected to have less leak-
made in accordance with the NCTA                    age integrity than the average of the
Recommended Practices for Measure-                  system, the cable operator dem-
ments on Cable Television Systems,                  onstrates compliance with a cumu-
2nd edition, November 1989, on these                lative signal leakage index by showing
parameters.                                         either that (i) 10 log I3000 is equal to or
[37 FR 3278, Feb. 12, 1972, as amended at 37        less than ¥7 or (ii) 10 log I00 is equal to
FR 13867, July 14, 1972; 41 FR 10067, Mar. 9,       or less than 64, using one of the follow-
1976; 42 FR 21782, Apr. 29, 1977; 49 FR 45441,      ing formula:
Nov. 16, 1984; 57 FR 11004, Apr. 1, 1992; 57 FR
61011, Dec. 23, 1992; 58 FR 44952, Aug. 25, 1993]
                                                                             1 n E2 ,
§ 76.610 Operation in the frequency
                                                                  I 3000 =
                                                                             /
                                                                               ∑ i
                                                                             0 i=1 R 2
     bands 108–137 and 225–400 MHz—                                                  i
     scope of application.
                                                                             1 n 2
   The provisions of §§ 76.611 (effective
July 1, 1990), 76.612, 76.613, 76.614 and
                                                                   I∞ =
                                                                             /
                                                                               ∑ Ei ,
                                                                             0 i=1
76.615 are applicable to all cable tele-
                                                    where:
vision systems transmitting carriers or
                                                                 R 2 = ri2 + (3000)
other signal components carried at an                                                   2
average power level equal to or greater                            i
than 10¥4 watts across a 25 kHz band-               ri is the distance (in meters) between the
width in any 160 microsecond period, at                 leakage source and the center of the
any point in the cable distribution sys-                cable television system;
tem in the frequency bands 108–137 and              θ is the fraction of the system cable length
                                                        actually examined for leakage sources
225–400 MHz for any purpose. For grand-                 and is equal to the strand kilometers
fathered systems, refer to §§ 76.618 and                (strand miles) of plant tested divided by
76.619.                                                 the total strand kilometers (strand
  NOTE 1: See the provisions of § 76.616 for            miles) in the plant;
                                                    Ri is the slant height distance (in meters)
cable operation near certain aeronautical
                                                        from leakage source i to a point 3000 me-
and marine emergency radio frequencies.
                                                        ters above the center of the cable tele-
  NOTE 2: Until January 1, 1990, the band 136–          vision system;
137 MHz is allocated as an alternative alloca-      Ei is the electric field strength in microvolts
tion to the space operation, meteorological-            per meter (µV/m) measured pursuant to
satellite service and the space research serv-          § 76.609(h) 3 meters from the leak i; and
ice on a primary basis. After January 1, 1990,      n is the number of leaks found of field
the space service will become secondary to              strength equal to or greater than 50 µV/
aeronautical mobile service radio. Until Jan-           m pursuant to Section 76.609(h).
uary 1, 1990, the band 136 to 137 MHz is ex-
cluded from the rule sections regarding pro-        The sum is carried over all leaks i detected
tection of aeronautical frequencies.                in the cable examined; or
                                                      (2) prior to carriage of signals in the
[50 FR 29399, July 19, 1985]                        aeronautical radio bands and at least

                                                575
§ 76.612                                              47 CFR Ch. I (10–1–98 Edition)

once each calendar year, with no more       which would yield the RMS value of
than 12 months between successive           said unmodulated carrier.
tests thereafter, the cable operator          (d) If a sampling of at least 75% of
demonstrates by measurement in the          the cable strand (and including any
airspace that at no point does the field    portions of the cable system which are
strength generated by the cable system      known to have or can reasonably be ex-
exceed 10 microvolts per meter (µV/m)       pected to have less leakage integrity
RMS at an altitude of 450 meters above      than the average of the system) as de-
the average terrain of the cable sys-       scribed in paragraph (a)(1) cannot be
tem. The measurement system (includ-        obtained by the cable operator or is
ing the receiving antenna) shall be         otherwise not reasonably feasible, the
calibrated against a known field of 10      cable operator shall perform the air-
µV/m RMS produced by a well charac-         space measurements described in para-
terized antenna consisting of orthogo-      graph (a)(2).
nal reasonant dipoles, both parallel to       (e) Prior to providing service to any
and one quarter wavelength above the        subscriber on a new section of cable
ground plane of a diameter of two me-       plant, the operator shall show compli-
ters or more at ground level. The           ance with either: (1) The basic signal
dipoles shall have centers collocated       leakage criteria in accordance with
and be excited 90 degrees apart. The        paragraph (a)(1) or (a)(2) of this section
half-power bandwidth of the detector        for the entire plant in operation or (2)
shall be 25 kHz. If an aeronautical re-     a showing shall be made indicating
ceiver is used for this purpose it shall    that no individual leak in the new sec-
meet the standards of the Radio Tech-       tion of the plant exceeds 20      µV/m at
nical Commission for Aeronautics            3 meters in accordance with § 76.609 fo
(RCTA) for aeronautical communica-          the Rules.
tions receivers. The aircraft antenna         (f) Notwithstanding paragraph (a) of
shall be horizontally polarized. Cali-      this section, a cable operator shall be
bration shall be made in the commu-         permitted to operate on any frequency
nity unit or, if more than one, in any of   which is offset pursuant to § 76.612 in
the community units of the physical         the frequency band 108–137 MHz for the
system within a reasonable time period      purpose of demonstrating compliance
to performing the measurements. If          with the cable television basic signal
data is recorded digitally the 90th per-    leakage performance criteria.
centile level of points recorded over       [50 FR 29399, July 19, 1985, as amended at 53
the cable system shall not exceed 10        FR 2499, Jan. 28, 1988; 53 FR 5684, Feb. 25,
µV/m RMS; if analog recordings is used      1988; 58 FR 44952, Aug. 25, 1993]
the peak values of the curves, when
smoothed according to good engineer-        § 76.612 Cable television frequency
ing practices, shall not exceed 10 µV/m          separation standards.
RMS.                                           All cable television systems which
  (b) In paragraphs (a)(1) and (a)(2) of    operate in the frequency bands 108–137
this section the unmodulated test sig-      and 225–400 MHz shall comply with the
nal used on the cable plant shall: (1) Be   following frequency separation stand-
within the VHF aeronautical band 108–       ards:
137 MHz or any other frequency in              (a)     In      the      aeronautical
which the results can be correlated to      radiocommunication bands 118–137, 225–
the VHF aeronautical band and (2)           328.6 and 335.4–400 MHz, the frequency
have an average power level equal to        of all carrier signals or signal compo-
the average power level of the strong-      nents carried at an average power level
est cable television carrier on the sys-    equal to or greater than 10¥4 watts in
tem.                                        a 25 kHz bandwidth in any 160 micro-
  (c) In paragraph (a)(1) and (2) of this   second period must operate at fre-
section, if a modulated test signal is      quencies offset from certain fre-
used, the test signal and detector tech-    quencies which may be used by aero-
nique must, when considered together,       nautical radio services operated by
yield the same result as though an          Commission licensees or by the United
unmodulated test signal were used in        States Government or its Agencies.
conjunction with a detection technique      The aeronautical frequencies from

                                        576
Federal Communications Commission                                                  § 76.614

which offsets must be maintained are            radiocommunication service operating
those frequencies which are within one          in accordance with this chapter.
of the aeronautical bands defined in              (b) An MVPD that causes harmful in-
this subparagraph, and when expressed           terference shall promptly take appro-
in MHz and divided by 0.025 yield an in-        priate measures to eliminate the harm-
teger. The offset must meet one of the          ful interference.
following two criteria:                           (c) If harmful interference to radio
  (1) All such cable carriers or signal         communications involving the safety
components shall be offset by 12.5 kHz          of life and protection of property can-
with a frequency tolerance of ±5 kHz;           not be promptly eliminated by the ap-
or                                              plication of suitable techniques, oper-
  (2) The fundamental frequency from            ation of the offending MVPD or appro-
which the visual carrier frequencies are        priate elements thereof shall imme-
                                                diately be suspended upon notification
derived by multiplication by an integer
                                                by the District Director and/or Resi-
number which shall be 6.0003 MHz with
                                                dent Agent of the Commission’s local
a tolerance of ±1 Hz (Harmonically Re-
                                                field office, and shall not be resumed
lated Carrier (HRC) comb generators
                                                until the interference has been elimi-
only).                                          nated to the satisfaction of the District
  (b) In the aeronautical radio-                Director and/or Resident Agent. When
navigation bands 108–118 and 328.6–335.4        authorized by the District Director
MHz, the frequency of all carrier sig-          and/or Resident Agent, short test oper-
nals or signal components carrier at an         ations may be made during the period
average power level equal to or greater         of suspended operation to check the ef-
than 10¥4 watts in a 25 kHz bandwidth           ficacy of remedial measures.
in any 160 microsecond period shall be            (d) The MVPD may be required by
offset by 25 kHz with a tolerance of ±5         the District Director and/or Resident
kHz. The aeronautical radionavigation           Agent to prepare and submit a report
frequencies from which offsets must be          regarding the cause(s) of the inter-
maintained are defined as follows:              ference, corrective measures planned
  (1) Within the aeronautical band 108–         or taken, and the efficacy of the reme-
118 MHz when expressed in MHz and di-           dial measures.
vided by 0.025 yield an even integer.
                                                [42 FR 41296, Aug. 16, 1977, as amended at 62
  (2) Within the band 328.6–335.4 MHz,          FR 61031, Nov. 14, 1997]
the radionavigation glide path chan-
nels are listed in Section 87.501 of the        § 76.614 Cable television system regu-
Rules.                                               lar monitoring.
  NOTE: The HRC system, as described above,        Cable television operators transmit-
will meet this requirement in the 328.6–335.4   ting carriers in the frequency bands
MHz navigation glide path band. Those In-       108–137 and 225–400 MHz shall provide
crementally Related Carriers (IRC) systems,     for a program of regular monitoring for
with comb generator reference frequencies       signal leakage by substantially cover-
set at certain odd multiples equal to or        ing the plant every three months. The
greater than 3 times the 0.0125 MHz aero-
nautical communications band offset, e.g.
                                                incorporation of this monitoring pro-
(6n + 1.250 ± 0.0375) MHZ, MAY ALSO MEET THE    gram into the daily activities of exist-
25 KHZ OFFSET REQUIREMENT IN THE NAVIGA-        ing service personnel in the discharge
TION GLIDE PATH BAND.                           of their normal duties will generally
                                                cover all portions of the system and
[50 FR 29400, July 19, 1985]                    will therefore meet this requirement.
                                                Monitoring equipment and procedures
§ 76.613 Interference from a multi-             utilized by a cable operator shall be
     channel video programming dis-             adequate to detect a leakage source
     tributor (MVPD).                           which produces a field strength in
  (a) Harmful interference is any emis-         these bands of 20 µV/m or greater at a
sion, radiation or induction which en-          distance of 3 meters. During regular
dangers the functioning of a radio-             monitoring, any leakage source which
navigation service or of other safety           produces a field strength of 20 µV/m or
services or seriously degrades, ob-             greater at a distance of 3 meters in the
structs or repeatedly interrupts a              aeronautical radio frequency bands

                                            577
§ 76.615                                                 47 CFR Ch. I (10–1–98 Edition)

shall be noted and such leakage sources       plant, existing or planned, which de-
shall be repaired within a reasonable         fines a circle enclosing the entire cable
period of time. The operator shall            plant;
maintain a log showing the date and              (6) A description of the routine mon-
location of each leakage source identi-       itoring procedure to be used; and
fied, the date on which the leakage was          (7) For cable operators subject to
repaired, and the probable cause of the       § 76.611 (effective July 1, 1990), the cu-
leakage. The log shall be kept on file        mulative signal leakage index derived
for a period of two (2) years and shall       under § 76.611(a)(1) (effective July 1,
be made available to authorized rep-          1990) or the results of airspace meas-
resentatives of the Commission upon           urements derived under § 76.611(a)(2)
request.                                      (effective July 1, 1990), including a de-
[50 FR 29400, July 19, 1985]                  scription of the method by which com-
                                              pliance with basic signal leakage cri-
§ 76.615 Notification requirements.           teria is achieved and the method of
   All cable television operators shall       calibrating the measurement equip-
comply with each of the following noti-       ment. This information shall be pro-
fication requirements:                        vided to the Commission prior to July
   (a) The operator of the cable system       1, 1990 and each calendar year there-
shall notify the Commission annually          after.
of all signals carried in the aeronauti-      [50 FR 29400, July 19, 1985]
cal radio frequency bands, noting the
type of information carried by the sig-       § 76.616 Operation near certain aero-
nal (television picture, aural, pilot car-         nautical and marine emergency
rier, or system control, etc.) The time-           radio frequencies.
ly filing of FCC Form 325, Schedule 2,          The transmission of carriers or other
will meet this requirement.                   signal components capable of deliver-
   (b) The operator of a cable system         ing peak power levels equal to or great-
shall notify the Commission before            er than 10¥5 watts at any point in a
transmitting any carrier or other sig-        cable television system is prohibited
nal component with an average power           within 100 kHz of the frequency 121.5
level across a 25 kHz bandwidth in any        MHz, and is prohibited withn 50 kHz of
160 microsecond time period equal to or       the two frequencies 156.8 MHz and 243.0
greater than 10¥4 watts at any point in       MHz.
the cable distribution system on any
new frequency or frequencies in the           [50 FR 29401, July 19, 1985]
aeronautical radio frequency bands.
Such notification shall include:              § 76.617 Responsibility        for   inter-
   (1) Legal name and local address of             ference.
the cable television operator;                  Interference resulting from the use of
   (2) The names and FCC identifiers          cable system terminal equipment (in-
(e.g. CA0001) of the system commu-            cluding subscriber terminal, input se-
nities affected;                              lector switch and any other acces-
   (3) The names and telephone numbers        sories) shall be the responsibility of the
of local system officials who are re-         cable system terminal equipment oper-
sponsible for compliance with §§ 76.610,      ator in accordance with the provisions
76.611 (effective July 1, 1990), and 76.612   of part 15 of this chapter: provided,
through 76.616 of the Rules;                  however, that the operator of a cable
   (4) Carrier and subcarrier frequencies     system to which the cable system ter-
and tolerance, types of modulation and        minal equipment is connected shall be
the maximum average power levels of           responsible for detecting and eliminat-
all carriers and subcarriers occurring        ing any signal leakage where that leak-
at any location in the cable distribu-        age would cause interference outside
tion system.                                  the subscriber’s premises and/or would
   (5) The geographical coordinates of a      cause the cable system to exceed the
point near the center of the cable sys-       Part 76 signal leakage requirements. In
tem, together with the distance (in kil-      cases where excessive signal leakage
ometers) from the designated point to         occurs, the cable operator shall be re-
the most remote point of the cable            quired only to discontinue service to

                                          578
Federal Communications Commission                                                                            § 76.619

the subscriber until the problem is cor-     ing all portions of the cable system at
rected.                                      least once each calendar year. Monitor-
                                             ing equipment and procedures shall be
[53 FR 46619, Nov. 18, 1989]
                                             adequate to detect leakage sources
§ 76.618 Grandfathering.                     which produce field strengths in these
                                             bands of 20 microvolts per meter at a
  Cable television systems are per-          distance of 3 meters. The operator shall
mitted to use aeronautical frequencies       maintain a log showing the date and
which were requested or granted for          location of each leakage source identi-
use by November 30, 1984, under Sec-         fied, the date on which the leakage was
tion 76.619 of the Rules until July 1,       eliminated, and the probable cause of
1990.                                        the leakage. The log shall be kept on
[50 FR 29401, July 19, 1985]                 file for a period of two (2) years, and
                                             shall be made to authorized representa-
§ 76.619 Grandfathered Operation in          tives of the Commission on request.
     the frequency bands 108–136 and            (e) All carrier signals or signal com-
     225–400 MHz.
                                             ponents capable of delivering peak
   All cable television systems operat-      power equal to or greater than 10¥5
ing in a grandfathered status under          watts must be operated at frequencies
§ 76.618 of the Rules and transmitting       offset from aeronautical radio services
carriers or other signal components ca-      operated by Commission licensees or
pable of delivering peak power equal to      by the United States Government or
or greater than 10¥5 watts at any point      its agencies within 111 km (60 nautical
in the cable system in the frequency         miles) of any portion of the cable sys-
bands 108–136 and 225–400 MHz for any        tem as given in paragraph (f) of this
purpose are subject to the following re-     section. (The limit of 111 km may be
quirements:                                  increased by the Commission in cases
   (a) The operator of the cable system      of ‘‘extended service volumes’’ as de-
shall notify the Commission annually         fined by the Federal Aviation Adminis-
of all signals carried in these bands,       tration or other federal government
noting the type of information carried       agency for low altitude radio naviga-
by the signal (television, aural, or pilot   tion or communication services). If an
carrier and system control, etc.). The       operator of a cable system is notified
timely filing of FCC Form 325, Sched-        by the Commission that a change in
ule 2, will meet this requirement.           operation of an aeronautical radio
   (b) The operator of the cable system      service will place the cable system in
shall notify the Commission of the pro-      conflict with any of the offset criteria,
posed extension of the system radius in      the cable system operator is respon-
these bands. Notification shall include      sible for eliminating such conflict
carrier and subcarrier frequencies,          within 30 days of notification.
types of modulation, the previously no-         (f) A minimum frequency offset be-
tified geographical coordinates, the         tween the nominal carrier frequency of
new system radius and the maximum            an aeronautical radio service qualify-
peak power occurring at any location         ing under paragraph (d) of this Section
in the cable distribution system. No         and the nominal frequency of any cable
system shall extend its radius in these      system carrier or signal component ca-
bands without prior Commission au-           pable of delivering peak power equal to
thorization.                                 or greater than 10¥5 watts shall be
   (c) The operator of the cable system      maintained or exceeded at all times.
shall maintain at its local office a cur-    The minimum frequency offsets are as
rent listing of all signals carried in       follows:
these bands, noting carrier and subcar-
rier frequencies, types of modulation,                                                                      Minimun fre-
                                                                  Frequencies                              quency offsets
and maximum peak power which oc-
curs at any location within the cable        108–118 MHz ...............................................   (50+T) kHz.
distribution system.                         328.6–335.4 MHz .........................................
   (d) The operator of the system shall      108–136 MHz ...............................................
                                             225–328.6 MHz ............................................    (100+T) kHz.
provide for regular monitoring of the
                                             335.4–400 MHz ............................................
cable system for signal leakage cover-

                                         579
§ 76.620                                                     47 CFR Ch. I (10–1–98 Edition)

In this table, T is the absolute value of          waiver request). A copy of the request for
the frequency tolerance of the cable               waiver is on file for public inspection at (the
television signal. The actual frequency            address of the cable operator’s local place of
                                                   business).
tolerance will depend on the equipment
                                                     Individuals who wish to comment on this
and operating procedures of the cable              request for waiver should mail comments to
system, but in no case shall the fre-              the Federal Communications Commission by
quency tolerance T exceed ±25 kHz in               no later than 30 days from (the date the noti-
the bands 108–136 and 225–400 MHz.                 fication was mailed to subscribers). Those
[50 FR 29401, July 19, 1985]                       comments should be addressed to the: Fed-
                                                   eral Communications Commission, Cable
§ 76.620 Non-cable multichannel video              Services Bureau, Washington, DC 20554, and
     programming distributors (MVPDs).             should include the name of the cable opera-
                                                   tor to whom the comments are applicable.
   (a) Sections 76.605(a)(12), 76.610, 76.611,     Individuals should also send a copy of their
76.612, 76.614, 76.615(b)(1–6), 76.616, and        comments to (the cable operator at its local
76.617 shall apply to all non-cable                place of business).
MVPDs. However, non-cable MVPD
systems that are substantially built as            Cable operators may file comments in
of January 1, 1998 shall not be subject            reply no later than 7 days from the
to these sections until January 1, 2003.           date subscriber comments must be
‘‘Substantially built’’ shall be defined           filed.
as having 75 percent of the distribution              (b) Cable system operators that pro-
plant completed. As of January 1, 2003,            vide their subscribers with cable sys-
§ 76.615(b)(7) shall apply to all non-cable        tem terminal devices and other cus-
MVPDs.                                             tomer premises equipment that incor-
   (b) To comply with § 76.615(b)(2), a            porates remote control capability shall
non-cable MVPD shall submit its Inter-             permit the remote operation of such
nal Revenue Service’s Employer Identi-             devices with commercially available
fication (E.I.) number instead of an               remote control units or otherwise take
FCC identifier.                                    no action that would prevent the de-
                                                   vices from being operated by a com-
[62 FR 61031, Nov. 14, 1997]
                                                   mercially available remote control
§ 76.630 Compatibility with consumer               unit. Cable system operators are ad-
     electronics equipment.                        vised that this requirement obliges
   (a) Cable system operators shall not            them to actively enable the remote
scramble or otherwise encrypt signals              control functions of customer premises
carried on the basic service tier. Re-             equipment where those functions do
quests for waivers of this prohibition             not operate without a special activa-
must demonstrate either a substantial              tion procedure. Cable system operators
problem with theft of basic tier service           may, however, disable the remote con-
or a strong need to scramble basic sig-            trol functions of a subscriber’s cus-
nals for other reasons. As part of this            tomer premises equipment where re-
showing, cable operators are required              quested by the subscriber.
to notify subscribers by mail of waiver               (c) Cable system operators that use
requests. The notice to subscribers                scrambling, encryption or similar tech-
must be mailed no later than thirty                nologies in conjunction with cable sys-
calendar days from the date the re-                tem terminal devices, as defined in
quest waiver was filed with the Com-               § 15.3(e) of this chapter, that may affect
mission, and cable operators must in-              subscribers’ reception of signals shall
form the Commission in writing, as                 offer to supply each subscriber with
soon as possible, of that notification             special equipment that will enable the
date. The notification to subscribers              simultaneous reception of multiple sig-
must state:                                        nals. The equipment offered shall in-
                                                   clude a single terminal device with
   On (date of waiver request was filed with       dual descramblers/decoders and/or tim-
the Commission), (cable operator’s name)
filed with the Federal Communications Com-
                                                   ers and bypass switches. Other equip-
mission a request for waiver of the rule pro-      ment, such as two independent set-top
hibiting scrambling of channels on the basic       terminal devices may be offered at the
tier of service. 47 CFR § 76.630(a). The request   same time that the single terminal de-
for waiver states (a brief summary of the          vice with dual tuners/descramblers is

                                               580
Federal Communications Commission                                           § 76.630

offered. For purposes of this rule, two     means by which they comply with the
set-top devices linked by a control sys-    annual consumer information require-
tem that provides functionality equiva-     ment. This requirement may be satis-
lent to that of a single device with dual   fied by a once-a-year mailing to all
descramblers is considered to be the        subscribers. The information may be
same as a terminal device with dual         included in one of the cable system’s
descramblers/decoders.                      regular subscriber billings.
  (1) The offer of special equipment          (2) The consumer information pro-
shall be made to new subscribers at the     gram shall include the following infor-
time they subscribe and to all subscrib-    mation:
ers at least once each year.                  (i) Cable system operators shall in-
  (2) Such special equipment shall, at a    form their subscribers that some mod-
minimum, have the capability:               els of TV receivers and videocassette
  (i) To allow simultaneous reception       recorders may not be able to receive all
of any two scrambled or encrypted sig-      of the channels offered by the cable
nals and to provide for tuning to alter-    system when connected directly to the
native channels on a pre-programmed         cable system. In conjunction with this
schedule; and                               information, cable system operators
  (ii) To allow direct reception of all     shall briefly explain, the types of chan-
other signals that do not need to be        nel compatibility problems that could
processed through descrambling or           occur if subscribers connected their
decryption circuitry (this capability       equipment directly to the cable system
can generally be provided through a         and offer suggestions for resolving
separate by-pass switch or through in-      those problems. Such suggestions could
ternal by-pass circuitry in a cable sys-    include, for example, the use of a cable
tem terminal device).                       system terminal device such as a set-
  (3) Cable system operators shall de-      top channel converter. Cable system
termine the specific equipment needed       operators shall also indicate that chan-
by individual subscribers on a case-by-     nel compatibility problems associated
case basis, in consultation with the        with reception of programming that is
subscriber. Cable system operators are      not scrambled or encrypted program-
required to make a good faith effort to     ming could be resolved through use of
provide subscribers with the amount         simple converter devices without
and types of special equipment needed       descrambling or decryption capabili-
to resolve their individual compatibil-     ties that can be obtained from either
ity problems.                               the cable system or a third party retail
  (4) Cable operators shall provide such    vendor.
equipment at the request of individual        (ii) In cases where service is received
subscribers and may charge for pur-         through a cable system terminal de-
chase or lease of the equipment and its     vice, cable system operators shall indi-
installation in accordance with the         cate that subscribers may not be able
provisions of the rate regulation rules     to use special features and functions of
for customer premises equipment used        their TV receivers and videocassette
to receive the basic service tier, as set   recorders, including features that allow
forth in § 76.923. Notwithstanding the      the subscriber to: view a program on
required annual offering, cable opera-      one channel while simultaneously re-
tors shall respond to subscriber re-        cording a program on another channel;
quests for special equipment for recep-     record two or more consecutive pro-
tion of multiple signals that are made      grams that appear on different chan-
at any time.                                nels; and, use advanced picture genera-
  (d) Cable system operators shall pro-     tion and display features such as ‘‘Pic-
vide a consumer education program on        ture-in-Picture,’’ channel review and
compatibility matters to their sub-         other functions that necessitate chan-
scribers in writing, as follows:            nel selection by the consumer device.
  (1) The consumer information pro-           (iii) In cases where cable system op-
gram shall be provided to subscribers       erators offer remote control capability
at the time they first subscribe and at     with cable system terminal devices and
least once a year thereafter. Cable op-     other customer premises equipment
erators may choose the time and             that is provided to subscribers, they

                                        581
§ 76.701                                                     47 CFR Ch. I (10–1–98 Edition)

shall advise their subscribers that re-           portion of a leased access program that
mote control units that are compatible            the operator reasonably believes con-
with that equipment may be obtained               tains obscenity, indecency or nudity.
from other sources, such as retail out-
lets. Cable system operators shall also           [62 FR 28373, May 23, 1997]
provide a representative list of the
                                                  § 76.702   Public access.
models of remote control units cur-
rently available from retailers that are            A cable operator may refuse to trans-
compatible with the customer premises             mit any public access program or por-
equipment they employ. Cable system               tion of a public access program that
operators are required to make a good             the operator reasonably believes con-
faith effort in compiling this list and           tains obscenity.
will not be liable for inadvertent omis-
sions. This list shall be current as of no        [62 FR 28373, May 23, 1997]
more than six months before the date
the consumer education program is dis-              Subpart M—Cable Inside Wiring
tributed to subscribers. Cable operators
are also required to encourage sub-               § 76.800   Definitions.
scribers to contact the cable operator              (a) MDU. A multiple dwelling unit
to inquire about whether a particular             building (e.g., an apartment building,
remote control unit the subscriber                condominium building or cooperative).
might be considering for purchase                   (b) MDU owner. The entity that owns
would be compatible with the subscrib-            or controls the common areas of a mul-
er’s customer premises equipment.
                                                  tiple dwelling unit building.
  NOTE: § 76.630: The provisions of paragraphs      (c) MVPD. A multichannel video pro-
(a) and (b) of this section are applicable July   gramming distributor, as that term is
31, 1994, and June 30, 1994, respectively. The
                                                  defined in Section 602(13) of the Com-
provisions of paragraphs (c) and (d) of this
section are applicable October 31, 1994, ex-      munications Act, 47 U.S.C. 522(13).
cept for the requirement under paragraph (c)        (d) Home run wiring. The wiring from
of this section for cable system operators to     the demarcation point to the point at
supply cable system terminal devices with         which the MVPD’s wiring becomes de-
dual tuners (as needed), which is applicable      voted to an individual subscriber or in-
October 31, 1995. The initial offer of special
                                                  dividual loop.
equipment to all subscribers, as required
under paragraph (c) of this section, shall be     [62 FR 61031, Nov. 14, 1997]
made by October 31, 1994.
                                                  § 76.801   Scope.
[59 FR 25342, May 16, 1994, as amended at 61
FR 18510, Apr. 26, 1996]                            The provisions of this subpart set
                                                  forth rules and regulations for the dis-
    Subpart L—Cable Television                    position, after a subscriber voluntarily
             Access                               terminates cable service, of that cable
                                                  home wiring installed by the cable sys-
§ 76.701 Leased access channels.                  tem operator or its contractor within
   (a)   Notwithstanding     47    U.S.C.         the premises of the subscriber. The pro-
532(b)(2) (Communications Act of 1934,            visions do not apply where the cable
as amended, section 612), a cable opera-          home wiring belongs to the subscriber,
tor, in accordance with 47 U.S.C. 532(h)          such as where the operator has trans-
(Cable Consumer Protection and Com-               ferred ownership to the subscriber, the
petition Act of 1992, section 10(a)), may         operator has been treating the wiring
adopt and enforce prospectively a writ-           as belonging to the subscriber for tax
ten and published policy of prohibiting           purposes, or the wiring is considered to
programming which, it reasonably be-              be a fixture by state or local law in the
lieves, describes or depicts sexual or            subscriber’s jurisdiction. Nothing in
excretory activities or organs in a pat-          this subpart shall affect the cable sys-
ently offensive manner as measured by             tem operator’s rights and responsibil-
contemporary community standards.                 ities under § 76.617 to prevent excessive
   (b) A cable operator may refuse to             signal leakage while providing cable
transmit any leased access program or             service, or the cable operator’s right to

                                              582
Federal Communications Commission                                              § 76.802

access the      subscriber’s   property   or     (1) That the cable operator owns the
premises.                                      home wiring;
[58 FR 11971, Mar. 2, 1993]                      (2) That the cable operator intends to
                                               remove the home wiring;
§ 76.802 Disposition of cable home wir-          (3) That the subscriber has the right
     ing.                                      to purchase the home wiring; and
   (a)(1) Upon voluntary termination of          (4) What the per-foot replacement
cable service by a subscriber in a single      cost and total charge for the wiring
unit installation, a cable operator shall      would be (the total charge may be
not remove the cable home wiring un-           based on either the actual length of
less it gives the subscriber the oppor-        cable wiring and the actual number of
tunity to purchase the wiring at the re-       passive splitters on the customer’s side
placement cost, and the subscriber de-         of the demarcation point, or a reason-
clines. If the subscriber declines to pur-     able approximation thereof; in either
chase the cable home wiring, the cable         event, the information necessary for
system operator must then remove the           calculating the total charge must be
cable home wiring within seven days of         available for use during the initial
the subscriber’s decision, under normal        phone call).
operating conditions, or make no sub-            (c) If the subscriber voluntarily ter-
sequent attempt to remove it or to re-         minates cable service in person, the
strict its use.                                procedures set forth in paragraph (b) of
   (2) Upon voluntary termination of           this section apply.
cable service by an individual sub-
                                                 (d) If the subscriber requests termi-
scriber in a multiple-unit installation,
                                               nation of cable service in writing, it is
a cable operator shall not be entitled
                                               the operator’s responsibility—if it
to remove the cable home wiring un-
                                               wishes to remove the wiring—to make
less: it gives the subscriber the oppor-
tunity to purchase the wiring at the re-       reasonable efforts to contact the sub-
placement cost; the subscriber de-             scriber prior to the date of service ter-
clines, and neither the MDU owner nor          mination and follow the procedures set
an alternative MVPD, where permitted           forth in paragraph (b) of this section.
by the MDU owner, has provided rea-              (e) If the cable operator fails to ad-
sonable advance notice to the incum-           here to the procedures described in
bent provider that it would purchase           paragraph (b) of this section, it will be
the cable home wiring pursuant to this         deemed to have relinquished imme-
section if and when a subscriber de-           diately any and all ownership interests
clines. If the cable system operator is        in the home wiring; thus, the operator
entitled to remove the cable home wir-         will not be entitled to compensation
ing, it must then remove the wiring            for the wiring and shall make no subse-
within seven days of the subscriber’s          quent attempt to remove it or restrict
decision, under normal operating con-          its use.
ditions, or make no subsequent at-               (f) If the cable operator adheres to
tempt to remove it or to restrict its          the procedures described in paragraph
use.                                           (b) of this section, and, at that point,
   (3) The cost of the cable home wiring       the subscriber agrees to purchase the
is to be based on the replacement cost         wiring, constructive ownership over
per foot of the wiring on the subscrib-        the home wiring will transfer to the
er’s side of the demarcation point mul-        subscriber immediately, and the sub-
tiplied by the length in feet of such          scriber will be permitted to authorize a
wiring, and the replacement cost of            competing service provider to connect
any passive splitters located on the           with and use the home wiring.
subscriber’s side of the demarcation             (g) If the cable operator adheres to
point.                                         the procedures described in paragraph
   (b) During the initial telephone call       (b) of this section, and the subscriber
in which a subscriber contacts a cable         asks for more time to make a decision
operator to voluntarily terminate              regarding whether to purchase the
cable service, the cable operator—if it        home wiring, the seven (7) day period
owns and intends to remove the home            described in paragraph (b) of this sec-
wiring—must inform the subscriber:             tion will not begin running until the

                                           583
§ 76.804                                               47 CFR Ch. I (10–1–98 Edition)

subscriber declines to purchase the wir-      (l) The provisions of § 76.802, except
ing; in addition, the subscriber may        for § 76.802(a)(1), shall apply to all
not use the wiring to connect to an al-     MVPDs in the same manner that they
ternative service provider until the        apply to cable operators.
subscriber notifies the operator wheth-     [61 FR 6137, Feb. 16, 1996, as amended at 62
er or not the subscriber wishes to pur-     FR 61031, Nov. 14, 1997]
chase the wiring.
                                              EFFECTIVE DATE NOTE: At 61 FR 6137, Feb.
  (h) If an alternative video program-
                                            16, 1996, § 76.802 was revised. This section con-
ming service provider connects its wir-     tains information collection and record-
ing to the home wiring before the in-       keeping requirements and will not become
cumbent cable operator has terminated       effective until approval has been given by
service and has capped off its line to      the Office of Management and Budget.
prevent signal leakage, the alternative
video programming service provider          § 76.804 Disposition of home run wir-
shall be responsible for ensuring that           ing.
the incumbent’s wiring is properly             (a) Building-by-building disposition of
capped off in accordance with the Com-      home run wiring. (1) Where an MVPD
mission’s signal leakage requirements.      owns the home run wiring in an MDU
See Subpart K (technical standards) of      and does not (or will not at the conclu-
the Commission’s Cable Television           sion of the notice period) have a legally
Service rules (47 CFR 76.605(a)(13) and     enforceable right to remain on the
76.610 through 76.617).                     premises against the wishes of the
  (i) Where the subscriber terminates       MDU owner, the MDU owner may give
cable service but will not be using the     the MVPD a minimum of 90 days’ writ-
home wiring to receive another alter-       ten notice that its access to the entire
native video programming service, the       building will be terminated to invoke
cable operator shall properly cap off its   the procedures in this section. The
own line in accordance with the Com-        MVPD will then have 30 days to notify
mission’s signal leakage requirements.      the MDU owner in writing of its elec-
See Subpart K (technical standards) of      tion for all the home run wiring inside
the Commission’s Cable Television           the MDU building: to remove the wir-
Service rules (47 CFR 76.605(a)(13) and     ing and restore the MDU building con-
76.610 through 76.617).                     sistent with state law within 30 days of
  (j) Cable operators are prohibited        the end of the 90-day notice period or
from using any ownership interests          within 30 days of actual service termi-
they may have in property located on        nation, whichever occurs first; to aban-
the subscriber’s side of the demarca-       don and not disable the wiring at the
tion point, such as molding or conduit,     end of the 90-day notice period; or to
to prevent, impede, or in any way           sell the wiring to the MDU building
interfere with, a subscriber’s right to     owner. If the incumbent provider elects
use his or her home wiring to receive       to remove or abandon the wiring, and
an alternative service. In addition, in-    it intends to terminate service before
cumbent cable operators must take           the end of the 90-day notice period, the
reasonable steps within their control       incumbent provider shall notify the
to ensure that an alternative service       MDU owner at the time of this election
provider has access to the home wiring      of the date on which it intends to ter-
at the demarcation point. Cable opera-      minate service. If the incumbent pro-
tors and alternative multichannel           vider elects to remove its wiring and
video programming delivery service          restore the building consistent with
providers are required to minimize the      state law, it must do so within 30 days
potential for signal leakage in accord-     of the end of the 90-day notice period or
ance with the guidelines set forth in 47    within 30 days of actual service termi-
CFR 76.605(a)(13) and 76.610 through        nation, which ever occurs first. For
76.617, theft of service and unnecessary    purposes of abandonment, passive de-
disruption of the consumer’s premises.      vices, including splitters, shall be con-
  (k) Definitions—Normal operating          sidered part of the home run wiring.
conditions—The term ‘‘normal operat-        The incumbent provider that has elect-
ing conditions’’ shall have the same        ed to abandon its home run wiring may
meaning as at 47 CFR 76.309(c)(4)(ii).      remove its amplifiers or other active

                                        584
Federal Communications Commission                                            § 76.804

devices used in the wiring if an equiva-    ther obligations under the Commis-
lent replacement can easily be re-          sion’s home run wiring disposition pro-
attached. In addition, an incumbent         cedures. If the incumbent fails to com-
provider removing any active elements       ply with any of the deadlines estab-
shall comply with the notice require-       lished herein, it shall be deemed to
ments and other rules regarding the re-     have elected to abandon its home run
moval of home run wiring. If the MDU        wiring at the end of the 90-day notice
owner declines to purchase the home         period.
run wiring, the MDU owner may per-            (4) The MDU owner shall be per-
mit an alternative provider that has        mitted to exercise the rights of individ-
been authorized to provide service to       ual subscribers under this subsection
the MDU to negotiate to purchase the        for purposes of the disposition of the
wiring.                                     cable home wiring under § 76.802. When
  (2) If the incumbent provider elects      an MDU owner notifies an incumbent
to sell the home run wiring under para-     provider under this section that the in-
graph (a)(1) of this section, the incum-    cumbent provider’s access to the entire
bent and the MDU owner or alternative       building will be terminated and that
provider shall have 30 days from the        the MDU owner seeks to use the home
date of election to negotiate a price. If   run wiring for another service, the in-
the parties are unable to agree on a        cumbent provider shall, in accordance
price within that 30-day time period,       with our current home wiring rules:
the incumbent must elect: to abandon        offer to sell to the MDU owner any
without disabling the wiring; to re-        home wiring within the individual
move the wiring and restore the MDU         dwelling units that the incumbent pro-
consistent with state law; or to submit     vider owns and intends to remove; and
the price determination to binding ar-      provide the MDU owner with the total
bitration by an independent expert. If      per-foot replacement cost of such home
the incumbent provider chooses to           wiring. This information must be pro-
abandon or remove its wiring, it must       vided to the MDU owner within 30 days
notify the MDU owner at the time of         of the initial notice that the incum-
this election if and when it intends to     bent’s access to the building will be
terminate service before the end of the     terminated. If the MDU owner declines
90-day notice period. If the incumbent      to purchase the cable home wiring, the
service provider elects to abandon its      MDU owner may allow the alternative
wiring at this point, the abandonment       provider to purchase the home wiring
shall become effective at the end of the    upon service termination under the
90-day notice period or upon service        terms and conditions of § 76.802. If the
termination, whichever occurs first. If     MDU owner or the alternative provider
the incumbent elects at this point to       elects to purchase the home wiring
remove its wiring and restore the           under these rules, it must so notify the
building consistent with state law, it      incumbent MVPD provider not later
must do so within 30 days of the end of     than 30 days before the incumbent’s
the 90-day notice period or within 30       termination of access to the building
days of actual service termination,         will become effective. If the MDU
which ever occurs first.                    owner and the alternative provider fail
  (3) If the incumbent elects to submit     to elect to purchase the home wiring,
to binding arbitration, the parties shall   the incumbent provider must then re-
have seven days to agree on an inde-        move the cable home wiring, under
pendent expert or to each designate an      normal operating conditions, within 30
expert who will pick a third expert         days of actual service termination, or
within an additional seven days. The        make no subsequent attempt to remove
independent expert chosen will be re-       it or to restrict its use.
quired to assess a reasonable price for       (5) The parties shall cooperate to
the home run wiring by the end of the       avoid disruption in service to subscrib-
90-day notice period. If the incumbent      ers to the extent possible.
elects to submit the matter to binding        (b) Unit-by-unit disposition of home run
arbitration and the MDU owner (or the       wiring: (1) Where an MVPD owns the
alternative provider) refuses to partici-   home run wiring in an MDU and does
pate, the incumbent shall have no fur-      not (or will not at the conclusion of the

                                        585
§ 76.804                                             47 CFR Ch. I (10–1–98 Edition)

notice period) have a legally enforce-     for the home run wiring within 14 days.
able right to maintain any particular      If subscribers wish to switch service
home run wire dedicated to a particu-      providers after the expiration of the 60-
lar unit on the premises against the       day notice period but before the expert
MDU owner’s wishes, the MDU owner          issues its price determination, the pro-
may permit multiple MVPDs to com-          cedures set forth in paragraph (b)(3) of
pete for the right to use the individual   this section shall be followed, subject
home run wires dedicated to each unit      to the price established by the arbitra-
in the MDU. The MDU owner must pro-        tor. If the incumbent elects to submit
vide at least 60 days’ written notice to   the matter to binding arbitration and
the incumbent MVPD of the MDU own-         the MDU owner (or the alternative pro-
er’s intention to invoke this procedure.   vider) refuses to participate, the in-
The incumbent MVPD will then have 30       cumbent shall have no further obliga-
days to provide a single written elec-     tions under the Commission’s home
tion to the MDU owner as to whether,       run wiring disposition procedures.
for each and every one of its home run       (3) When an MVPD that is currently
wires dedicated to a subscriber who        providing service to a subscriber is no-
chooses an alternative provider’s serv-    tified either orally or in writing that
ice, the incumbent MVPD will: remove       that subscriber wishes to terminate
the wiring and restore the MDU build-      service and that another service pro-
ing consistent with state law; abandon     vider intends to use the existing home
the wiring without disabling it; or sell   run wire to provide service to that par-
the wiring to the MDU owner. If the        ticular subscriber, a provider that has
MDU owner refuses to purchase the          elected to remove its home run wiring
home run wiring, the MDU owner may         pursuant to paragraph (b)(1) or (b)(2) of
permit the alternative provider to pur-    this section will have seven days to re-
chase it. If the alternative provider is   move its home run wiring and restore
permitted to purchase the wiring, it       the building consistent with state law.
will be required to make a similar elec-   If the subscriber has requested service
tion within this 30-day period for each    termination more than seven days in
home run wire solely dedicated to a        the future, the seven-day removal pe-
subscriber who switches back from the      riod shall begin on the date of actual
alternative provider to the incumbent      service termination (and, in any event,
MVPD.                                      shall end no later than seven days after
  (2) If the incumbent provider elects     the requested date of termination). If
to sell the home run wiring under para-    the provider has elected to abandon or
graph (b)(1), the incumbent and the        sell the wiring pursuant to paragraph
MDU owner or alternative provider          (b)(1) or (b)(2) of this section, the aban-
shall have 30 days from the date of        donment or sale will become effective
election to negotiate a price. During      upon actual service termination or
this 30-day negotiation period, the par-   upon the requested date of termi-
ties may arrange for an up-front lump      nation, whichever occurs first. For pur-
sum payment in lieu of a unit-by-unit      poses of abandonment, passive devices,
payment. If the parties are unable to      including splitters, shall be considered
agree on a price during this 30-day time   part of the home run wiring. The in-
period, the incumbent must elect: to       cumbent provider may remove its am-
abandon without disabling the wiring;      plifiers or other active devices used in
to remove the wiring and restore the       the wiring if an equivalent replace-
MDU consistent with state law; or to       ment can easily be reattached. In addi-
submit the price determination to          tion, an incumbent provider removing
binding arbitration by an independent      any active elements shall comply with
expert. If the incumbent elects to sub-    the notice requirements and other
mit to binding arbitration, the parties    rules regarding the removal of home
shall have seven days to agree on an       run wiring. If the incumbent provider
independent expert or to each des-         intends to terminate service prior to
ignate an expert who will pick a third     the end of the seven-day period, the in-
expert within an additional seven days.    cumbent shall inform the party re-
The independent expert chosen will be      questing service termination, at the
required to assess a reasonable price      time of such request, of the date on

                                       586
Federal Communications Commission                                            § 76.805

which service will be terminated. The       MDU upon the termination of the con-
incumbent provider shall make the           tract.
home run wiring accessible to the al-         (e) Incumbents are prohibited from
ternative provider within twenty-four       using any ownership interest they may
(24) hours of actual service termi-         have in property located on or near the
nation.                                     home run wiring, such as molding or
  (4) If the incumbent provider fails to    conduit, to prevent, impede, or in any
comply with any of the deadlines es-        way interfere with, the ability of an al-
tablished herein, the home run wiring       ternative MVPD to use the home run
shall be considered abandoned, and the      wiring pursuant to this section.
incumbent may not prevent the alter-          (f) Section 76.804 shall apply to all
native provider from using the home         MVPDs.
run wiring immediately to provide
service. The alternative provider or the    [62 FR 61032, Nov. 14, 1997]
MDU owner may act as the subscriber’s
agent in providing notice of a subscrib-    § 76.805   Access to molding.
er’s desire to change services, consist-      (a) An MVPD shall be permitted to
ent with state law. If a subscriber’s       install one or more home run wires
service is terminated without notifica-     within the existing molding of an MDU
tion that another service provider in-      where the MDU owner finds that there
tends to use the existing home run wir-     is sufficient space to permit the instal-
ing to provide service to that particu-     lation of the additional wiring without
lar subscriber, the incumbent provider      interfering with the ability of an exist-
will not be required to carry out its       ing MVPD to provide service, and gives
election to sell, remove or abandon the     its affirmative consent to such instal-
home run wiring; the incumbent pro-         lation. This paragraph shall not apply
vider will be required to carry out its
                                            where the incumbent provider has an
election, however, if and when it re-
                                            exclusive contractual right to occupy
ceives notice that a subscriber wishes
                                            the molding.
to use the home run wiring to receive
an alternative service. Section 76.802 of     (b) If an MDU owner finds that there
the Commission’s rules regarding the        is insufficient space in existing mold-
disposition of cable home wiring will       ing to permit the installation of the
apply where a subscriber’s service is       new wiring without interfering with
terminated without notifying the in-        the ability of an existing MVPD to pro-
cumbent provider that the subscriber        vide service, but gives its affirmative
wishes to use the home run wiring to        consent to the installation of larger
receive an alternative service.             molding and additional wiring, the
  (5) The parties shall cooperate to        MDU owner (with or without the as-
avoid disruption in service to subscrib-    sistance of the incumbent and/or the
ers to the extent possible.                 alternative provider) shall be per-
  (6) Section 76.802 of the Commission’s    mitted to remove the existing molding,
rules regarding the disposition of cable    return such molding to the incumbent,
home wiring will continue to apply to       if appropriate, and install additional
the wiring on the subscriber’s side of      wiring and larger molding in order to
the cable demarcation point.                contain the additional wiring. This
  (c) The procedures set forth in para-     paragraph shall not apply where the in-
graphs (a) and (b) of this section shall    cumbent provider possesses a contrac-
apply unless and until the incumbent        tual right to maintain its molding on
provider obtains a court ruling or an       the premises without alteration by the
injunction within forty-five (45) days      MDU owner.
following the initial notice enjoining        (c) The alternative provider shall be
its displacement.                           required to pay any and all installation
  (d) After the effective date of this      costs associated with the implementa-
rule, MVPDs shall include a provision       tion of paragraphs (a) or (b) of this sec-
in all service contracts entered into       tion, including the costs of restoring
with MDU owners setting forth the dis-
position of any home run wiring in the

                                        587
§ 76.806                                                   47 CFR Ch. I (10–1–98 Edition)

the MDU owner’s property to its origi-          effective September 1, 1993, and will remain
nal condition, and the costs of repair-         in effect until the Commission terminates
ing any damage to the incumbent pro-            the stay and establishes a new effective date
vider’s wiring or other property.               in an order on reconsideration addressing the
                                                administrative burdens and costs of compli-
[62 FR 61033, Nov. 14, 1997]                    ance for small cable systems. The Commis-
                                                sion will publish in the FEDERAL REGISTER
§ 76.806 Pre-termination     access    to       the new effective date of the rules with re-
     cable home wiring.                         spect to small cable systems at that time.
   (a) Prior to termination of service, a
customer may: install or provide for            § 76.900 Temporary        freeze   of   cable
the installation of their own cable                  rates.
home wiring; or connect additional                (a) The average monthly subscriber
home wiring, splitters or other equip-          bill for services provided by cable oper-
ment within their premises to the wir-          ators subject to regulation under Sec-
ing owned by the cable operator, so             tion 623 of the Communications Act
long as no electronic or physical harm          shall not increase above the average
is caused to the cable system and the           monthly subscriber bill determined
physical integrity of the cable opera-
                                                under rates in effect on April 5, 1993,
tor’s wiring remains intact.
                                                for a period of 120 days.
   (b) Cable operators may require that
home wiring (including passive split-             (b) The average monthly subscriber
ters, connectors and other equipment            bill shall be calculated by determining
used in the installation of home wir-           for a monthly billing cycle the sum of
ing) meets reasonable technical speci-          all billed monthly charges for all cable
fications, not to exceed the technical          services subject to regulation under
specifications of such equipment in-            section 623 of the Communications Act
stalled by the cable operator; provided         and dividing that sum by the number
however, that if electronic or physical         of subscribers receiving any of those
harm is caused to the cable system, the         services. The average monthly sub-
cable operator may impose additional            scriber bill determined under rates in
technical specifications to eliminate           effect on April 5, 1993, shall be cal-
such harm. To the extent a customer’s           culated based on customer charges for
installations or rearrangements of wir-         the most recent monthly billing cycle
ing degrade the signal quality of or            ending prior to April 5, 1993.
interfere with other customers’ signals,
or cause electronic or physical harm to         § 76.901   Definitions.
the cable system, the cable operator
                                                  (a) Basic service. The basic service
may discontinue service to that sub-
                                                tier shall, at a minimum, include all
scriber until the degradation or inter-
                                                signals of domestic television broad-
ference is resolved.
   (c) Customers shall not physically           cast stations provided to any sub-
cut, substantially alter, improperly            scriber (except a signal secondarily
terminate or otherwise destroy cable            transmitted by satellite carrier beyond
operator-owned home wiring.                     the local service area of such station,
                                                regardless of how such signal is ulti-
[62 FR 61034, Nov. 14, 1997]                    mately received by the cable system)
                                                any public, educational, and govern-
Subpart N—Cable Rate Regulation                 mental programming required by the
                                                franchise to be carried on the basic
  SOURCE: 58 FR 29753, May 21, 1993, unless     tier, and any additional video program-
otherwise noted.                                ming signals a service added to the
  EFFECTIVE DATE NOTE: The effective date       basic tier by the cable operator.
of the amendments to part 76, published at 58     (b) Cable programming service. Cable
FR 29737 (May 21, 1993), extended to October    programming service includes any
1, 1993, by an order published at 58 FR 33560   video programming provided over a
(June 18, 1993), and moved to September 1,
1993, by an order published at 58 FR 41042
                                                cable system, regardless of service tier,
(August 2, 1993), is temporarily stayed for     including installation or rental of
those cable systems that have 1,000 or fewer    equipment used for the receipt of such
subscribers. This limited, temporary stay is    video programming, other than:

                                            588
Federal Communications Commission                                                § 76.905

  (1) Video programming carried on the             (ii) the number of households sub-
basic service tier as defined in this sec-      scribing to multichannel video pro-
tion;                                           gramming other than the largest mul-
  (2) Video programming offered on a            tichannel video programming distribu-
pay-per-channel or pay-per-program              tor exceeds 15 percent of the house-
basis; or                                       holds in the franchise area.
  (3) A combination of multiple chan-              (3) A multichannel video program-
nels of pay-per-channel or pay-per-pro-         ming distributor, operated by the fran-
gram video programming offered on a             chising authority for that franchise
multiplexed or time-shifted basis so            area, offers video programming to at
long as the combined service:                   least 50 percent of the households in
  (i) Consists of commonly-identified           the franchise area.
video programming; and                             (4) A local exchange carrier or its af-
  (ii) Is not bundled with any regulated        filiate (or any multichannel video pro-
tier of service.                                gramming distributor using the facili-
  (c) Small System. A small system is a         ties of such carrier or its affiliate) of-
cable television system that serves             fers video programming services di-
15,000 or fewer subscribers. The service        rectly to subscribers by any means
area of a small system shall be deter-          (other than direct-to-home satellite
mined by the number of subscribers              services) in the franchise area of an un-
that are served by the system’s prin-           affiliated cable operator which is pro-
cipal headend, including any other              viding cable service in that franchise
headends or microwave receive sites             area, but only if the video program-
that are technically integrated to the          ming services so offered in that area
principal headend.                              are comparable to the video program-
  (d) New Product Tier. A new product           ming services provided by the unaffili-
tier (‘‘NPT’’) is a cable programming           ated cable operator in that area.
service tier meeting the conditions set            (c) For purposes of paragraphs (b)(1)
forth in § 76.987.                              through (b)(3) of this section, each sep-
  (e) Small cable company. A small cable        arately billed or billable customer will
company is a cable television operator          count as a household subscribing to or
that serves a total of 400,000 or fewer         being offered video programming serv-
subscribers over one or more cable sys-         ices, with the exception of multiple
tems.                                           dwelling buildings billed as a single
[58 FR 29753, May 21, 1993, as amended at 59    customer. Individual units of multiple
FR 62623, Dec. 6, 1994; 60 FR 35864, July 12,   dwelling buildings will count as sepa-
1995]                                           rate households. The term ‘‘house-
                                                holds’’ shall not include those dwell-
§ 76.905 Standards for identification of        ings that are used solely for seasonal,
     cable systems subject to effective         occasional, or recreational use.
     competition.                                  (d) A multichannel video program
  (a) Only the rates of cable systems           distributor, for purposes of this sec-
that are not subject to effective com-          tion, is an entity such as, but not lim-
petition may be regulated.                      ited to, a cable operator, a multi-
  (b) A cable system is subject to effec-       channel multipoint distribution serv-
tive competition when any one of the            ice, a direct broadcast satellite service,
following conditions is met:                    a television receive-only satellite pro-
  (1) Fewer than 30 percent of the              gram distributor, a video dialtone serv-
households in its franchise area sub-           ice provider, or a satellite master an-
scribe to the cable service of a cable          tenna television service provider that
system.                                         makes available for purchase, by sub-
  (2) The franchise area is:                    scribers or customers, multiple chan-
  (i) Served by at least two unaffiliated       nels of video programming.
multichannel video programming dis-                (e) Service of a multichannel video
tributors each of which offers com-             programming       distributor   will    be
parable programming to at least 50 per-         deemed offered:
cent of the households in the franchise            (1) When the multichannel video pro-
area; and                                       gramming distributor is physically

                                            589
§ 76.906                                                  47 CFR Ch. I (10–1–98 Edition)

able to deliver service to potential sub-          (2) The franchising authority has the
scribers, with the addition of no or             legal authority to adopt, and the per-
only minimal additional investment by            sonnel to administer, such regulations;
the distributor, in order for an individ-          (3) Procedural laws and regulations
ual subscriber to receive service; and           applicable to rate regulation proceed-
  (2) When no regulatory, technical or           ings by such authority provide a rea-
other impediments to households tak-             sonable opportunity for consideration
ing service exist, and potential sub-            of the views of interested parties; and
scribers in the franchise area are rea-
                                                   (4) The cable system in question is
sonably aware that they may purchase
                                                 not subject to effective competition.
the services of the multichannel video
                                                 Unless a franchising authority has ac-
programming distributor.
  (f) For purposes of determining the            tual knowledge to the contrary, the
number of households subscribing to              franchising authority may rely on the
the services of a multichannel video             presumption in § 76.906 that the cable
programming distributor other than               operator is not subject to effective
the largest multichannel video pro-              competition.
gramming distributor, under paragraph              (c) The written certification de-
(b)(2)(ii) of this section, the number of        scribed in paragraph (b) of this section
subscribers of all multichannel video            shall be made by filing the FCC form
programming distributors that offer              designated for that purpose. The form
service in the franchise area will be ag-        must be filed by
gregated.                                          (1) Registered mail, return receipt re-
  (g) In order to offer comparable pro-          quested, or
gramming within the meaning of para-               (2) Hand-delivery to the Commission
graph (b)(2)(i) of this section, a compet-       and a date-stamped copy obtained. The
ing multichannel video programming               date on the return receipt or on the
distributor must offer at least 12 chan-         date-stamped copy is the date filed.
nels of video programming, including
                                                   (d) A copy of the certification form
at least one channel of nonbroadcast
service programming.                             described in paragraph (c) of this sec-
                                                 tion must be served on the cable opera-
[58 FR 29753, May 21, 1993, as amended at 59     tor before or on the same day it is filed
FR 17972, Apr. 15, 1994; 61 FR 18978, Apr. 30,
                                                 with the Commission.
1996; 62 FR 6495, Feb. 12, 1997]
                                                   (e) Unless the Commission notifies
§ 76.906 Presumption of no effective             the franchising authority otherwise,
     competition.                                the certification will become effective
   In the absence of a demonstration to          30 days after the date filed, provided,
the contrary, cable systems are pre-             however, That the franchising author-
sumed not to be subject to effective             ity may not regulate the rates of a
competition.                                     cable system unless it:
                                                   (1) Adopts regulations:
§ 76.910 Franchising authority certifi-            (i) Consistent with the Commission’s
     cation.
                                                 regulations governing the basic tier;
   (a) A franchising authority must be           and
certified by the Commission in order to            (ii) Providing a reasonable oppor-
regulate the basic service tier and asso-        tunity for consideration of the views of
ciated equipment of a cable system               interested parties, within 120 days of
within its jurisdiction.
                                                 the effective date of certification; and
   (b) To be certified, the franchising
                                                   (2) Notifies the cable operator that
authority must file with the Commis-
sion a written certification that:               the authority has been certified and
   (1) The franchising authority will            has adopted the regulations required
adopt and administer regulations with            by paragraph (e)(1) of this section.
respect to the rates for the basic serv-           (f) If the Commission denies a fran-
ice tier that are consistent with the            chising authority’s certification, the
regulations prescribed by the Commis-            Commission will notify the franchising
sion for regulation of the basic service         authority of any revisions or modifica-
tier;                                            tions necessary to obtain approval.

                                             590
Federal Communications Commission                                                § 76.913

§ 76.911 Petition for reconsideration of      authority of the revisions necessary to
     certification.                           secure approval and provide the au-
   (a) A cable operator (or other inter-      thority an opportunity to amend its
ested party) may challenge a franchis-        certification however necessary to se-
ing authority’s certification by filing a     cure approval. Provided, however, That
petition for reconsideration. The peti-       pending approval of certification, the
tion may allege either of the following:      Commission will assume jurisdiction
   (1) The cable operator is not subject      over basic cable service rates in that
to rate regulation because effective          franchise area.
competition exists as defined in § 76.905.    [58 FR 29753, May 21, 1993, as amended at 58
   (2) The franchising authority does         FR 46735, Sept. 2, 1993]
not meet the certification standards
set forth in 47 U.S.C. 543(a)(3).             §76.912   Joint certification.
   (b)(1) The cable operator bears the
                                                (a) Franchising authorities may
burden of rebutting the presumption
                                              apply for joint certification and may
that effective competition does not
                                              engage in joint regulation, including,
exist with evidence that effective com-
                                              but not limited to, joint hearings, data
petition, as defined in § 76,905, exists in
                                              collection, and ratemaking. Franchis-
the franchise area.
                                              ing authorities jointly certified to reg-
   (2) For purposes of paragraph (a)(1) of
                                              ulate their cable system(s) may make
this section, if the evidence establish-
                                              independent rate decisions.
ing effective competition is not other-
                                                (b) Franchising authorities may
wise available, cable operators may re-
                                              apply for joint certification regardless
quest from a competitor information
                                              of whether the authorities are served
regarding the competitor’s reach and
                                              by the same cable system or by dif-
number of subscribers. A competitor
                                              ferent cable systems and regardless of
must respond to such request within 15
                                              whether the rates in each franchising
days. Such responses may be limited to
                                              area are uniform.
numerical totals.
   (c) Stay of rate regulation. (1) The       § 76.913 Assumption of jurisdiction by
filing of a petition for reconsideration           the Commission.
pursuant to paragraph (a)(1) of this sec-
tion will automatically stay the impo-           (a) Upon denial or revocation of the
sition of rate regulation pending the         franchising authority’s certification,
outcome of the reconsideration pro-           the Commission will regulate rates for
ceeding.                                      cable services and associated equip-
   (2) A petitioner filing pursuant to        ment of a cable system not subject to
paragraph (a)(2) of this section may re-      effective competition, as defined in
quest a stay of rate regulation.              § 76.905, in a franchise area. Such regu-
   (3) In any case in which a stay of rate    lation by the Commission will continue
regulation has been granted, if the pe-       until the franchising authority has ob-
tition for reconsideration is denied, the     tained certification or recertification.
cable operator may be required to re-            (b) A franchising authority unable to
fund any rates or portion of rates            meet certification standards may peti-
above the permitted tier charge or per-       tion the Commission to regulate the
mitted equipment charge which were            rates for basic cable service and associ-
collected from the date the operator          ated equipment of its franchisee when:
implements a prospective rate reduc-             (1) The franchising authority lacks
tion back in time to September 1, 1993,       the resources to administer rate regu-
or one year, whichever is shorter.            lation.
   (d) The filing of a petition for recon-       (2) The franchising authority lacks
sideration alleging the presence of ef-       the legal authority to regulate basic
fective competition based on frivolous        service rates; Provided, however, That
grounds is prohibited, and may be sub-        the authority must submit with its re-
ject to forfeitures.                          quest a statement detailing the nature
   (e) If the Commission upholds a chal-      of the legal infirmity.
lenge to a certification filed pursuant          (c) The Commission will regulate
to paragraph (a)(2) of this section, the      basic service rates pursuant to this
Commission will notify the franchising        Section until the franchising authority

                                          591
§ 76.914                                                     47 CFR Ch. I (10–1–98 Edition)

qualifies to exercise jurisdiction pursu-         the existence of effective competition.
ant to § 76.916.                                  Oppositions may be filed within 15 days
[58 FR 29753, May 21, 1993, as amended at 62      of public notice of the filing of the pe-
FR 6495, Feb. 12, 1997]                           tition, and must be served on the oper-
  EFFECTIVE DATE NOTE: At 62 FR 6495, Feb.
                                                  ator. Cable operators may reply within
12, 1997, in § 76.913, paragraph (b)(1) was re-   7 days of filing of oppositions.
vised. This amendment contains information          (b) Franchising authority decisions
collection and recordkeeping requirements         on petitions for change in status must
and will not become effective until approval      be made within 30 days after the plead-
has been given by the Office of Management
and Budget.
                                                  ing cycle set forth in paragraph (a) of
                                                  this section closes. Franchising au-
§ 76.914 Revocation of certification.             thorities must notify the Commission
   (a) A franchising authority’s certifi-         within ten days of any decision chang-
cation shall be revoked if:                       ing status. Unless the Commission re-
   (1) After the franchising authority            ceives an opposition to such change in
has been given a reasonable oppor-                status, the decision will become final
tunity to comment and cure any minor              30 days after adoption by the franchis-
nonconformance, it is determined that             ing authority.
state and local laws and regulations                (c) After an initial determination of
are in substantial and material conflict          the franchising authority that effective
with the Commission’s regulations gov-            competition exists becomes final, the
erning cable rates.                               franchising authority will then cease
   (2) After being given an opportunity           regulating basic cable service rates,
to cure the defect, a franchising au-             and the Commission’s regulatory au-
thority fails to fulfill one of the three         thority over cable programming serv-
conditions for certification, set forth in        ices for the system in the franchise
47 U.S.C. 543(a)(3), or any of the provi-
                                                  area will also cease.
sions of § 76.910(b).
   (b) In all cases of revocation, the              (d) A cable operator and a franchising
Commission will assume jurisdiction               authority may submit a joint state-
over basic service rates until an au-             ment that effective competition exists.
thority becomes recertified. The Com-             The joint statement must stipulate
mission will also notify the franchising          which of the three statutory tests for
authority regarding the corrective ac-            effective competition has been met and
tion that may be taken.                           explain how the test has been satisfied.
   (c) A petition for revocation must be          These joint statements will become
served on the franchising authority               final decisions within 30 days of filing
and contain a statement that service              with the Commission, unless chal-
was made. The franchising authority               lenged by an interested party.
may file an opposition within 30 days               (e) Cable operators denied a change
of filing of the petition. A reply may be         in status by a franchising authority
filed within 15 days of filing the opposi-        may seek review of that finding at the
tion.                                             Commission by filing a petition for
   (d) While a petition for revocation is         revocation.
pending, and absent grant of a stay, the            (f) In cases where a local franchising
franchising authority may continue to
                                                  authority has not been certified to reg-
regulate the basic service rates of its
                                                  ulate rates, a cable operator may peti-
franchisees.
                                                  tion the Commission for change in its
[58 FR 29753, May 21, 1993, as amended at 59      regulatory status. The time periods in
FR 17972, Apr. 15, 1994]                          paragraph (a) of this section will apply
§ 76.915 Change in status of cable op-            to oppositions and replies concerning
     erator.                                      these petitions.
   (a) A cable operator that becomes              § 76.916   Petition for recertification.
subject to effective competition, may
petition the franchising authority for              (a) After its request for certification
change in its regulatory status. The              has been denied or its existing certifi-
operator bears the burden of proving              cation has been revoked, a franchising

                                              592
Federal Communications Commission                                                         § 76.921

authority wishing to assume jurisdic-               video programming or to purchase any
tion to regulate basic service and asso-            other video programming.
ciated equipment rates must file a ‘‘Pe-
tition for Recertification’’ accom-                 § 76.921 Buy-through          of   other   tiers
panied by a copy of the earlier decision                 prohibited.
denying or revoking certification.                     (a) No cable system operator, other
   (b) The petition must:                           than an operator subject to effective
   (1) Meet the requirements set forth in           competition, may require the subscrip-
47 U.S.C. 543(a)(3);                                tion to any tier other than the basic
   (2) State that the cable system is not           service tier as a condition of subscrip-
subject to effective competition; and               tion to video programming offered on a
   (3) Contain a clear showing, sup-                per channel or per program charge
ported by either objectively verifiable             basis. A cable operator may, however,
data such as a state statute, or by affi-           require the subscription to one or more
davit, that the reasons for the earlier             tiers of cable programming services as
denial or revocation no longer pertain.             a condition of access to one or more
   (c) The petition must be served on               tiers of cable programming services.
the cable operator and on any inter-                   (b) A cable operator not subject to ef-
ested party that participated in the                fective competition may not discrimi-
proceeding denying or revoking the                  nate between subscribers to the basic
original certification.                             service tier and other subscribers with
   (d) Oppositions may be filed within 15           regard to the rates charged for video
days after the petition is filed, and               programming offered on a per-channel
must be served on the petitioner. Re-               or per-program charge basis.
plies may be filed within seven days of
                                                       (c) With respect to cable systems not
filing of oppositions, and must be
                                                    subject to effective competition, prior
served on the opposing party(ies).
                                                    to October 5, 2002, the provisions of
§ 76.917 Notification          of   certification   paragraph (a) of this section shall not
     withdrawal.                                    apply to any cable system that lacks
                                                    the capacity to offer basic service and
  A franchising authority that has
been certified to regulate rates may, at            all programming distributed on a per
any time, notify the Commission that                channel or per program basis without
it no longer intends to regulate basic              also providing other intermediate tiers
cable rates. Such notification shall in-            of service:
clude the franchising authority’s deter-               (1) By controlling subscriber access
mination that rate regulation no                    to nonbasic channels of service through
longer serves the interests of cable sub-           addressable equipment electronically
scribers served by the cable system                 controlled from a central control point;
within the franchising authority’s ju-              or
risdiction, and that it has received no                (2) Through the installation, non-
consideration for its withdrawal of cer-            installation, or removal of frequency
tification. Such notification shall be              filters (traps) at the premises of sub-
served on the cable operator. The Com-              scribers without other alteration in
mission retains the right to review                 system configuration or design and
such determinations and to request the              without causing degradation in the
factual finding of the franchising au-              technical quality of service provided.
thority underlying its decision to with-               (d) With respect to cable systems not
draw certification. The franchising                 subject to effective competition, any
authority’s withdrawal becomes effec-               retiering of channels or services that is
tive upon notification to the Commis-               not undertaken in order to accomplish
sion.                                               legitimate regulatory, technical, or
[59 FR 17972, Apr. 15, 1994]
                                                    customer service objectives and that is
                                                    intended to frustrate or has the effect
§ 76.920 Composition of the basic tier.             of frustrating compliance with para-
                                                    graphs (a) through (c) of this section is
  Every subscriber of a cable system
                                                    prohibited.
must subscribe to the basic tier in
order to subscribe to any other tier of             [62 FR 6495, Feb. 12, 1997]

                                                593
§ 76.922                                               47 CFR Ch. I (10–1–98 Edition)

§ 76.922 Rates for the basic service tier    per subscriber basis, reduced by 17 per-
      and cable programming services         cent, and then adjusted for the follow-
      tiers.                                 ing:
   (a) Basic and cable programming service      (i) The establishment of permitted
tier rates. Basic service tier and cable     equipment rates as required by § 76.923;
programming service rates shall be              (ii) Inflation measured by the GNP–
subject to regulation by the Commis-         PI between October 1, 1992 and Septem-
sion and by state and local authorities,     ber 30, 1993;
as is appropriate, in order to assure           (iii) Changes in the number of pro-
that they are in compliance with the         gram channels subject to regulation
requirements of 47 U.S.C. 543. Rates         that are offered on the system’s pro-
that are demonstrated, in accordance         gram tiers between September 30, 1992
with this part, not to exceed the ‘‘Ini-     and the earlier of the initial date of
tial Permitted Per Channel Charge’’ or       regulation for any tier or February 28,
the ‘‘Subsequent Permitted Per Chan-         1994; and
nel Charge’’ as described in this sec-          (iv) Changes in external costs that
tion, or the equipment charges as spec-      have occurred between the earlier of
ified in § 76.923, will be accepted as in    the initial date of regulation for any
compliance. The maximum monthly              tier or February 28, 1994, and March 31,
charge per subscriber for a tier of regu-    1994.
lated programming services offered by           (3) March 31, 1994 benchmark rate. The
a cable system shall consist of a per-       ‘‘March 31, 1994 benchmark rate’’ is the
mitted per channel charge multiplied         rate so designated using the calcula-
by the number of channels on the tier,       tions in Form 1200.
plus a charge for franchise fees. The           (4) Transition rates—(i) Termination of
maximum monthly charges for regu-            transition relief for systems other than
lated programming services shall not         low price systems. Systems other than
include any charges for equipment or         low-price systems that already have es-
installations. Charges for equipment         tablished a transition rate as of the ef-
and installations are to be calculated       fective date of this rule may maintain
separately pursuant to § 76.923. The         their current rates, as adjusted under
same rate-making methodology (either         the      price   cap    requirements      of
the benchmark methodology found in           § 76.922(d), until two years from the ef-
paragraph (b) of this section, or a cost-    fective date of this rule. These systems
of-service showing) shall be used to set     must begin charging reasonable rates
initial rates on all rate regulated tiers,   in accordance with applicable rules,
and shall continue to provide the basis      other than transition relief, no later
for subsequent permitted charges.            than that date.
   (b) Permitted charge on May 15, 1994.        (ii) Low-price systems. Low price sys-
(1) The permitted charge for a tier of       tems shall be eligible to establish a
regulated program service shall be, at       transition rate for a tier.
the election of the cable system, ei-           (A) A low-price system is a system:
ther:                                           (1) Whose March 31, 1994 rate is below
   (i) A rate determined pursuant to a       its March 31, 1994 benchmark rate, or
cost-of-service showing;                        (2) Whose March 31, 1994 rate is above
   (ii) The full reduction rate;             its March 31, 1994 benchmark rate, but
   (iii) The transition rate, if the sys-    whose March 31, 1994 full reduction rate
tem is eligible for transition relief; or    is below its March 31, 1994 benchmark
   (iv) A rate based on a streamlined        rate, as defined in § 76.922(b)(2), above.
rate reduction, if the system is eligible       (B) The transition rate on May 15,
to implement such a rate reduction.          1994 for a system whose March 31, 1994
Except where noted, the term ‘‘rate’’ in     rate is below its March 31, 1994 bench-
this subsection means a rate measured        mark rate is the system’s March 31,
on an average regulated revenue per          1994 rate. The March 31, 1994 rate is in
subscriber basis.                            both cases adjusted:
   (2) Full reduction rate. The ‘‘full re-      (1) To establish permitted rates for
duction rate’’ on May 15, 1994 is the        equipment as required by § 76.923 if
system’s September 30, 1992 rate, meas-      such rates have not already been estab-
ured on an average regulated revenue         lished; and

                                         594
Federal Communications Commission                                            § 76.922

   (2) For changes in external costs in-    not already restructured their rates to
curred between the earlier of initial       comply with the Commission’s rules
date of regulation of any tier or Feb-      may establish rates for regulated pro-
ruary 28, 1994, and March 31, 1994, to      gram services and equipment by mak-
the extent changes in such costs are        ing a streamlined rate reduction.
not already reflected in the system’s       Small systems owned by small cable
March 31, 1994 rate. The transition rate    companies shall not be eligible for
on May 15, 1994 for a system whose          streamlined rate reductions if they are
March 31, 1994 adjusted rate is above its   owned or controlled by, or are under
March 31, 1994 benchmark rate, but          common control or affiliated with, a
whose March 31, 1994 full reduction rate    cable operator that exceeds these sub-
is below its March 31, 1994 benchmark       scriber limits. For purposes of this
rate, is the March 31, 1994 benchmark       rule, a small system will be considered
rate, adjusted to establish permitted       ‘‘affiliated with’’ such an operator if
rates for equipment as required by          the operator has a 20 percent or greater
§ 76.923 if such rates have not already     equity interest in the small system.
been established.                              (B) The streamlined rate for a tier on
   (iii) Notwithstanding the foregoing,     May 15, 1994 shall be the system’s
the transition rate for a tier shall be     March 31, 1994 rate for the tier, reduced
adjusted to reflect any determination       by 14 percent. A small system that
by a local franchising authority and/or     elects to establish its rate for a tier by
the Commission that the rate in effect      implementing this streamlined rate re-
on March 31, 1994 was higher (or lower)     duction must also reduce, at the same
than that permitted under applicable        time, each billed item of regulated
Commission regulations. A filing re-        cable service, including equipment, by
flecting the adjusted rate shall be sub-    14 percent. Regulated rates established
mitted to all relevant authorities with-    using the streamlined rate reduction
in 30 days after issuance of the local      process shall remain in effect until:
franchising authority and/or Commis-           (1) Adoption of a further order by the
sion determination. A system whose          Commission establishing a schedule of
March 31, 1994 rate is determined by a      average equipment costs;
local franchising authority or the Com-        (2) The system increases its rates
mission to be too high under the Com-       using the calculations and time periods
mission’s rate regulations in effect be-    set forth in FCC Form 1211; or
fore May 15, 1994 will be subject to any       (3) The system elects to establish
refund liability that may accrue under      permitted rates under another avail-
those rules. In addition, the system        able option set forth in paragraph (b)(1)
will be liable for refund liability under   of this section.
the rules in effect on and after May 15,       (C) Implementation and notification.
1994. Such refund liability will be meas-   An eligible small system that elects to
ured by the difference in the system’s      use the streamlined rate reduction
March 31, 1994 rate and its permitted       process must implement the required
March 31, 1994 rate as calculated under     rate reductions and provide written no-
the Commission’s rate regulations in        tice of such reductions to subscribers,
effect before May 15, 1994. The refund      the local franchising authority and the
liability will accrue according to the      Commission according to the following
time periods set forth in §§ 76.942, and    schedule:
76.961 of the Commission’s rules.              (1) Within 60 days from the date it re-
   (5) Streamlined rate reductions. (i)     ceives the initial notice of regulation
Upon becoming subject to rate regula-       from the franchising authority or the
tion, a small system owned by a small       Commission, the small system must
cable company may make a stream-            provide written notice to subscribers
lined rate reduction, subject to the fol-   and the franchising authority, or to
lowing conditions, in lieu of establish-    the Commission if the Commission is
ing initial rates pursuant to the other     regulating the basic tier, that it is
methods of rate regulation set forth in     electing to set its regulated rates by
this subpart:                               the streamlined rate reduction process.
   (A) Small systems that are owned by      The system must then implement the
small cable companies and that have         streamlined rate reductions within 30

                                        595
§ 76.922                                              47 CFR Ch. I (10–1–98 Edition)

days after the written notification has      Commission according to the following
been provided to subscribers and the         schedule:
local franchise authority or Commis-           (A) Where the franchising authority
sion.                                        has been certified by the Commission
  (2) If a cable programming services        to regulate the small system’s basic
complaint is filed against the system,       service tier rates as of May 15, 1994, the
the system must provide the required         system must notify the franchising au-
written notice, described in paragraph       thority and its subscribers in writing
(b)(5)(iii)(C)(1) of this section, to sub-   that it is electing to set its regulated
scribers, the local franchising author-      rates by the streamline rate reduction
ity or the Commission within 60 days         process. Such notice must be given by
after the complaint is filed. The system     June 15, 1994, and must also describe
must then implement the streamlined          the new rates that will result from the
rate reductions within 30 days after the     streamlined rate reduction process.
written notification has been provided.      Those rates must then be implemented
  (3) A small system is required to give     within 30 days after the written notifi-
written notice of, and to implement,         cation has been provided to subscribers
the rates that are produced by the           and the local franchising authority.
streamlined rate reduction process             (B) Where the franchising authority
only once. If a system has already pro-      has not been certified to regulate basic
vided notice of, and implemented, the        service tier rates by May 15, 1994, the
streamlined rate reductions when a           small system must provide the written
given tier becomes subject to regula-        notice to subscribers and the franchis-
tion, it must report to the relevant         ing authority, described in paragraph
regulator (either the franchising au-        (b)(5)(iii)(A) of this section, within 30
thority or the Commission) in writing        days from the date it receives the ini-
within 30 days of becoming subject to        tial notice of regulation from the fran-
regulation that it has already provided      chising authority. The system must
the required notice and implemented          then implement the streamlined rate
the required rate reductions.                reductions within 30 days after the
  (ii) The stremlined rate for a tier on     written notification has been provided
May 15, 1994 shall be the system’s           to subscribers and the local franchise
March 31, 1994 rate for the tier, reduced    authority.
by 14 percent. A small system that             (C) Where the Commission is regulat-
elects to establish its rate for a tier by   ing the small system’s basic service
implementing this streamlined rate re-       tier rates as of May 15, 1994, the system
duction must also reduce, at the same        must notify the Commission and its
time, each billed item of regulated          subscribers in writing that it is elect-
cable service, including equipment, by       ing to set its regulated rates by the
14 percent. Regulated rates established      streamlined rate reduction process.
using the streamlined rate reduction         Such notice must be given by June 15,
process shall remain in effect until:        1994, and must also describe the new
  (A) Adoption of a further order by         rates that will result from the stream-
the Commission establishing a sched-         lined rate reduction process. Those
ule of average equipment costs;              rates must then be implemented within
  (B) The system increases its rates         30 days after the written notification
using the calculations and time periods      has been provided to subscribers and
set forth in FCC Form 1211; or               the Commission.
  (C) The system elects to establish           (D) Where the Commission begins
permitted rates under another avail-         regulating basic service rates after
able option set forth in paragraph (b)(1)    May 15, 1994, the small system must
of this section.                             provide the written notice to subscrib-
  (iii) Implementation and notification.     ers and the Commission, described in
An eligible small system that elects to      paragraph (b)(5)(iii)(C) of this section,
use the streamlined rate reduction           within 30 days from the date it receives
process must implement the required          an initial notice of regulation. The sys-
rate reductions and provide written no-      tem must then implement the stream-
tice of such reductions to subscribers,      lined rate reductions within 30 days
the local franchising authority and the      after the written notification has been

                                         596
Federal Communications Commission                                             § 76.922

provided to subscribers and the Com-           (B) The system establishes a per-
mission.                                     mitted rate defined in paragraph (b) of
   (E) If a complaint about its cable pro-   this section by July 14, 1994. The defer-
gramming service rates has been filed        ral of refund liability permitted by this
with the Commission on or before May         subsection will terminate if, after
15, 1994, the small system must provide      March 31, 1994, the system changes any
the written notice described in para-        rate for, or restructures, any program
graph (b)(5)(iii)(A) of this section, to     service or equipment offering subject
subscribers, the local franchising au-       to regulation, and in all events will ex-
thority and the Commission by June           pire on July 14, 1994. Moreover, the de-
15, 1994. If a cable programming serv-       ferral of refund liability permitted by
ices complaint is filed against the sys-     this paragraph does not apply to refund
tem after May 15, 1994, the system           liability that occurs because the sys-
must provide the required written no-        tem’s March 31, 1994 rates for program
tice to subscribers, the local franchis-     services and equipment subject to regu-
ing authority or the Commission with-        lation are higher than the levels per-
in 30 days after the complaint is filed.     mitted under the Commission’s rules in
The system must then implement the           effect before May 15, 1994.
streamlined rate reductions within 30          (7) For purposes of this section, the
days after the written notification has      initial date of regulation for the basic
been provided.                               service tier shall be the date on which
   (F) A small system is required to give    notice is given pursuant to § 76.910, that
written notice of, and to implement,         the provision of the basic service tier is
the rates that are produced by the           subject to regulation. For a cable pro-
streamlined rate reduction process           gramming services tier, the initial date
only once. If a system has already pro-      of regulation shall be the first date on
vided notice of, and implemented, the        which a complaint on the appropriate
streamlined rate reductions when a           form is filed with the Commission con-
given tier becomes subject to regula-        cerning rates charged for the cable pro-
tion, it must report to the relevant         gramming services tier.
regulator (either the franchising au-          (8) For purposes of this section, rates
thority or the Commission) in writing        in effect on the initial date of regula-
within 30 days of becoming subject to        tion or on September 30, 1992 shall be
regulation that it has already provided      the rates charged to subscribers for
the required notice and implemented          service received on that date.
the required rate reductions.                  (9) Updating data calculations.
   (6) Establishment of initial regulated      (i) For purposes of this section, if:
rates. (i) Cable systems, other than
                                               (A) A cable operator, prior to becom-
those eligible for streamlined rate re-
                                             ing subject to regulation, revised its
ductions, shall file FCC Forms 1200,
                                             rates to comply with the Commission’s
1205, and 1215 for a tier that is regu-
                                             rules; and
lated on May 15, 1994 by June 15, 1994,
or thirty days after the initial date of       (B) The data on which the cable oper-
regulation for the tier. A system that       ator relied was current and accurate at
becomes subject to regulation for the        the time of revision, and the rate is ac-
first time on or after July 1, 1994 shall    curate and justified by the prior data;
also file FCC Form 1210 at the time it       and
files FCC Forms 1200, 1205 and 1215.           (C) Through no fault of the cable op-
   (ii) A cable system will not incur re-    erator, the rates that resulted from
fund liability under the Commission’s        using such data differ from the rates
rules governing regulated cable rates        that would result from using data cur-
on and after May 15, 1994 if:                rent and accurate at the time the cable
   (A) Between March 31, 1994 and July       operator’s system becomes subject to
14, 1994, the system does not change the     regulation;
rate for, or restructure in any fashion,     then the cable operator is not required
any program service or equipment of-         to change its rates to reflect the data
fering that is subject to regulation         current at the time it becomes subject
under the 1992 Cable Act; and                to regulation.

                                         597
§ 76.922                                              47 CFR Ch. I (10–1–98 Edition)

   (ii) Notwithstanding the above, any          (i) Whenever an operator switches
subsequent changes in a cable opera-         from the current quarterly system to
tor’s rates must be made from rate lev-      the annual system, the operator may
els derived from data [that was current      not file a Form 1240 earlier than 90
as of the date of the rate change].          days after the operator proposed its
   (iii) For purposes of this subsection,    last rate adjustment on a Form 1210;
if the rates charged by a cable operator     and
are not justified by an analysis based          (ii) When an operator changes from
on the data available at the time it ini-    the annual system to the quarterly
tially adjusted its rates, the cable oper-   system, the operator may not return to
ator must adjust its rates in accord-        a quarterly adjustment using a Form
ance with the most accurate data             1210 until a full quarter after it has
available at the time of the analysis.       filed a true up of its annual rate on a
   (c) Subsequent permitted charge. (1)      Form 1240 for the preceding filing pe-
The permitted charge for a tier after        riod.
May 15, 1994 shall be, at the election of       (4) An operator that does not set its
the cable system, either:                    rates pursuant to a cost-of-service fil-
   (i) A rate determined pursuant to a       ing must use the quarterly rate adjust-
cost-of-service showing,                     ment methodology pursuant to para-
                                             graph (d) of this section or annual rate
   (ii) A rate determined by application
                                             adjustment methodology pursuant to
of the Commission’s price cap require-
                                             paragraph (e) of this section for both
ments set forth in paragraph (d) of this
                                             its basic service tier and its cable pro-
section to a permitted rate determined
                                             gramming services tier(s).
in accordance with paragraph (b) of             (d) Quarterly rate adjustment method—
this section, or                             (1) Calendar year quarters. All systems
   (iii) A rate determined by application    using the quarterly rate adjustment
of the Commission’s price cap require-       methodology must use the following
ments set forth in paragraph (e) of this     calendar year quarters when adjusting
section to a permitted rate determined       rates under the price cap requirements.
in accordance with paragraph (b) of          The first quarter shall run from Janu-
this section.                                ary 1 through March 31 of the relevant
   (2) The Commission’s price cap re-        year; the second quarter shall run from
quirements allow a system to adjust its      April 1 through June 30; the third quar-
permitted       charges   for   inflation,   ter shall run from July 1 through Sep-
changes in the number of regulated           tember 30; and the fourth quarter shall
channels on tiers, or changes in exter-      run from October 1 through December
nal costs. After May 15, 1994, adjust-       31.
ments for changes in external costs             (2) Inflation adjustments. The residual
shall be calculated by subtracting ex-       component of a system’s permitted
ternal costs from the system’s per-          charge may be adjusted annually for
mitted charge and making changes to          inflation. The annual inflation adjust-
that ‘‘external cost component’’ as nec-     ment shall be used on inflation occur-
essary. The remaining charge, referred       ring from June 30 of the previous year
to as the ‘‘residual component,’’ will be    to June 30 of the year in which the in-
adjusted annually for inflation. Cable       flation adjustment is made, except that
systems may adjust their rates by            the first annual inflation adjustment
using the price cap rules contained in       shall cover inflation from September
either paragraph (d) or (e) of this sec-     30, 1993 until June 30 of the year in
tion. In addition, cable systems may         which the inflation adjustment is
further adjust their rates using the         made. The adjustment may be made
methodologies set forth in paragraph         after September 30, but no later than
(n) of this section.                         August 31, of the next calendar year.
   (3) An operator may switch between        Adjustments shall be based on changes
the quarterly rate adjustment option         in the Gross National Product Price
contained in paragraph (d) of this sec-      Index as published by the Bureau of
tion and the annual rate adjustment          Economic Analysis of the United
option contained in paragraph (e) of         States Department of Commerce. Cable
this section, provided that:                 systems that establish a transition

                                         598
Federal Communications Commission                                            § 76.922

rate pursuant to paragraph (b)(4) of           (ii) A system must adjust its rates in
thissection may not begin adjusting         the next calendar year quarter for any
rates on account of inflation before        decrease in programming costs that re-
April 1, 1995. Between April 1, 1995 and    sults from the deletion of a channel or
August 31, 1995 cable systems that es-      channels from a regulated tier.
tablished a transition rate may adjust         (iii) Any rate increase made to re-
their rates to reflect the net of a 5.21%   flect an increase in external costs must
inflation adjustment minus any infla-       also fully account for all other changes
tion adjustments they have already re-      in external costs, inflation and the
ceived. Low price systems that had          number of channels on regulated tiers
their March 31, 1994 rates above the        that occurred during the same period.
benchmark, but their full reduction         Rate adjustments made to reflect
rate below the benchmark will be per-       changes in external costs shall be based
mitted to adjust their rates to reflect     on any changes in those external costs
the full 5.21% inflation factor unless      that occurred from the end of the last
the rate reduction was less than the in-    quarter for which an adjustment was
flation adjustment received on an FCC       previously made through the end of the
Form 393 for rates established prior to     quarter that has most recently closed
May 15, 1994. If the rate reduction es-     preceding the filing of the FCC Form
tablished by a low price system that        1210 (or FCC Form 1211, where applica-
reduced its rate to the benchmark was       ble). A system may adjust its rates
                                            after the close of a quarter to reflect
less than the inflation adjustment re-
                                            changes in external costs that occurred
ceived on an FCC Form 393, the system
                                            during that quarter as soon as it has
will be permitted to receive the 5.21%
                                            sufficient information to calculate the
inflation adjustment minus the dif-
                                            rate change.
ference between the rate reduction and
                                               (e) Annual rate adjustment method—(1)
the inflation adjustment the system         Generally. Except as provided for in
made on its FCC Form 393. Cable sys-        paragraphs           (e)(2)(iii)(B)    and
tems that established a transition rate     (e)(2)(iii)(C) of this section and Section
may make future inflation adjustments       76.923(o), operators that elect the an-
on an annual basis with all other cable     nual rate adjustment method may not
operators, no earlier than October 1 of     adjust their rates more than annually
each year and no later than August 31       to reflect inflation, changes in external
of the following year to reflect the        costs, changes in the number of regu-
final GNP–PI through June 30 of the         lated channels, and changes in equip-
applicable year.                            ment costs. Operators that make rate
  (3) External costs. (i) Permitted         adjustments using this method must
charges for a tier may be adjusted up       file on the same date a Form 1240 for
to quarterly to reflect changes in ex-      the purpose of making rate adjust-
ternal costs experienced by the cable       ments to reflect inflation, changes in
system as defined by paragraph (f) of       external costs and changes in the num-
this section. In all events, a system       ber of regulated channels and a Form
must adjust its rates annually to re-       1205 for the purpose of adjusting rates
flect any decreases in external costs       for regulated equipment and installa-
that have not previously been ac-           tion. Operators may choose the annual
counted for in the system’s rates. A        filing date, but they must notify the
system must also adjust its rates annu-     franchising authority of their proposed
ally to reflect any changes in external     filing date prior to their filing. Fran-
costs, inflation and the number of          chising authorities or their designees
channels on regulated tiers that oc-        may reject the annual filing date cho-
curred during the year if the system        sen by the operator for good cause. If
wishes to have such changes reflected       the franchising authority finds good
in its regulated rates. A system that       cause to reject the proposed filing date,
does not adjust its permitted rates an-     the franchising authority and the oper-
nually to account for those changes         ator should work together in an effort
will not be permitted to increase its       to reach a mutually acceptable date. If
rates subsequently to reflect the           no agreement can be reached, the fran-
changes.                                    chising authority may set the filing

                                        599
§ 76.922                                              47 CFR Ch. I (10–1–98 Edition)

date up to 60 days later than the date       pass through increases in franchise fees
chosen by the operator. An operator          pursuant to Section 76.933(g).
may change its filing date from year-          (B) In all events, a system must ad-
to-year, but except as described in          just its rates every twelve months to
paragraphs         (e)(2)(iii)(B)     and    reflect any net decreases in external
(e)(2)(iii)(C) of this section, at least     costs that have not previously been ac-
twelve months must pass before the op-       counted for in the system’s rates.
erator can implement its next annual           (C) Any rate increase made to reflect
adjustment.                                  increases or projected increases in ex-
  (2) Projecting inflation, changes in ex-   ternal costs must also fully account for
ternal costs, and changes in number of       all other changes and projected
regulated channels. An operator that         changes in external costs, inflation and
elects the annual rate adjustment            the number of channels on regulated
method may adjust its rates to reflect       tiers that occurred or will occur during
inflation, changes in external costs and     the same period. Rate adjustments
changes in the number of regulated           made to reflect changes in external
channels that are projected for the 12       costs shall be based on any changes,
months following the date the operator       plus projections, in those external
is scheduled to make its rate adjust-        costs that occurred or will occur in the
ment pursuant to Section 76.933(g).          relevant time periods since the periods
  (i) Inflation Adjustments. The residual    used in the operator’s most recent pre-
component of a system’s permitted            vious FCC Form 1240.
charge may be adjusted annually to             (iii) Channel adjustments. (A) Per-
project for the 12 months following the      mitted charges for a tier may be ad-
date the operator is scheduled to make       justed annually to reflect changes not
a rate adjustment. The annual infla-         yet accounted for in the number of reg-
tion adjustment shall be based on infla-
                                             ulated channels provided by the cable
tion that occurred in the most recently
                                             system, as well as for projected
completed July 1 to June 30 period. Ad-
                                             changes in the number of regulated
justments shall be based on changes in
                                             channels for the 12-month period on
the Gross National Product Price Index
                                             which the filing is based. In order that
as published by the Bureau of Eco-
nomic Analysis of the United States          rates be adjusted for projected changes
Department of Commerce.                      to the number of regulated channels,
                                             the operator must demonstrate that
  (ii) External costs. (A) Permitted
                                             such projections are reasonably certain
charges for a tier may be adjusted an-
nually to reflect changes in external        and reasonably quantifiable.
costs experienced but not yet ac-              (B) An operator may make rate ad-
counted for by the cable system, as          justments for the addition of required
well as for projections in these external    channels to the basic service tier that
costs for the 12-month period on which       are required under federal or local law
the filing is based. In order that rates     at any time such additions occur, sub-
be adjusted for projections in external      ject to the filing requirements of Sec-
costs, the operator must demonstrate         tion 76.933(g)(2), regardless of whether
that such projections are reasonably         such additions occur outside of the an-
certain and reasonably quantifiable.         nual filing cycle. Required channels
Projections involving copyright fees,        may include must-carry, local origina-
retransmission consent fees, other pro-      tion, public, educational and govern-
gramming costs, Commission regu-             mental access and leased access chan-
latory fees, and cable specific taxes are    nels. Should the operator elect not to
presumed to be reasonably certain and        pass through the costs immediately, it
reasonably quantifiable. Operators may       may accrue the costs of the additional
project for increases in franchise relat-    channels plus interest, as described in
ed costs to the extent that they are         paragraph (e)(3) of this section.
reasonably certain and reasonably              (C) An operator may make one addi-
quantifiable, but such changes are not       tional rate adjustment during the year
presumed reasonably certain and rea-         to reflect channel additions to the
sonably quantifiable. Operators may          cable programming services tiers or,

                                         600
Federal Communications Commission                                            § 76.922

where the operator offers only one reg-      not apply to revenues received by an
ulated tier, the basic service tier. Oper-   operator from a programmer as com-
ators may make this additional rate          missions on sales of products or serv-
adjustment at any time during the            ices offered through home shopping
year, subject to the filing requirements     services.
of Section 76.933(g)(2), regardless of         (iii) If an operator has underesti-
whether the channel addition occurs          mated its cost changes and elects not
outside of the annual filing cycle.          to recover these accrued costs with in-
Should the operator elect not to pass        terest on the date the operator is enti-
through the costs immediately, it may        tled to make its annual rate adjust-
accrue the costs of the additional chan-     ment, the interest will cease to accrue
nels plus interest, as described in para-    as of the date the operator is entitled
graph (e)(3) of this section.                to make the annual rate adjustment,
  (3) True-up and accrual of charges not     but the operator will not lose its abil-
projected. As part of the annual rate ad-    ity to recover such costs and interest.
justment, an operator must ‘‘true up’’       An operator may recover accrued costs
its previously projected inflation,          between the date such costs are in-
changes in external costs and changes        curred and the date the operator actu-
in the number of regulated channels          ally implements its rate adjustment.
and adjust its rates for these actual          (iv) Operators that use the annual
cost changes. The operator must de-          methodology in their next filing after
crease its rates for overestimation of       the release date of this Order may ac-
its projected cost changes, and may in-      crue costs and interest incurred since
crease its rates to adjust for underesti-    July 1, 1995 in that filing. Operators
mation of its projected cost changes.        that file a Form 1210 in their next fil-
  (i) Where an operator has underesti-       ing after the release date of this Order,
mated costs, future rates may be in-         and elect to use Form 1240 in a subse-
creased to permit recovery of the ac-        quent filing, may accrue costs incurred
crued costs plus 11.25% interest be-         since the end of the last quarter to
tween the date the costs are incurred        which a Form 1210 applies.
and the date the operator is entitled to       (4) Sunset provision. The Commission
make its rate adjustment.                    will review paragraph (e) of this sec-
  (ii) Per channel adjustment. Operators     tion prior to December 31, 1998 to de-
may increase rates by a per channel ad-      termine whether the annual rate ad-
justment of up to 20 cents per sub-          justment methodology should be kept,
scriber per month, exclusive of pro-         and whether the quarterly system
gramming costs, for each channel             should be eliminated and replaced with
added to a CPST between May 15, 1994,        the annual rate adjustment method.
and December 31, 1997, except that an          (f) External costs. (1) External costs
operator may take the per channel ad-        shall consist of costs in the following
justment only for channel additions          categories:
that result in an increase in the high-        (i) State and local taxes applicable to
est number of channels offered on all        the provision of cable television serv-
CPSTs as compared to May 14, 1994,           ice;
and each date thereafter. Any revenues         (ii) Franchise fees;
received from a programmer, or shared          (iii) Costs of complying with fran-
by a programmer and an operator in           chise requirements, including costs of
connection with the addition of a chan-      providing public, educational, and gov-
nel to a CPST shall first be deducted        ernmental access channels as required
from programming costs for that chan-        by the franchising authority;
nel pursuant to paragraph (d)(3)(x) of         (iv) Retransmission consent fees and
this section and then, to the extent         copyright fees incurred for the carriage
revenues received from the program-          of broadcast signals;
mer are greater than the programming           (v) Other programming costs; and
costs, shall be deducted from the per          (vi) Commission cable television sys-
channel adjustment. This deduction           tem regulatory fees imposed pursuant
will apply on a channel by channel           to 47 U.S.C. § 159.
basis. With respect to the per channel         (2) The permitted charge for a regu-
adjustment only, this deduction shall        lated tier shall be adjusted on account

                                         601
§ 76.922                                              47 CFR Ch. I (10–1–98 Edition)

of programming costs, copyright fees           (8) In calculating programming ex-
and retransmission consent fees only         pense, operators may add a mark-up of
for the program channels or broadcast        7.5% for increases in programming
signals offered on that tier.                costs occurring after March 31, 1994, ex-
  (3) The permitted charge shall not be      cept that operators may not file for or
adjusted for costs of retransmission         take the 7.5% mark-up on program-
consent fees or changes in those fees        ming costs for new channels added on
incurred prior to October 6, 1994.           or after May 15, 1994 for which the op-
  (4) The starting date for adjustments      erator has used the methodology set
on account of external costs for a tier      forth in paragraph (g)(3) of this section
of regulated programming service shall       for adjusting rates for channels added
be the earlier of the initial date of reg-   to cable programming service tiers. Op-
ulation for any basic or cable service       erators shall reduce rates by decreases
tier or February 28, 1994. Except, for       in programming expense plus an addi-
regulated FCC Form 1200 rates set on         tional 7.5% for decreases occurring
the basis of rates at September 30, 1992     after May 15, 1994 except with respect
(using either March 31, 1994 rates ini-      to programming cost decreases on
tially determined from FCC Form 393          channels added after May 15, 1994 for
Worksheet 2 or using Form 1200 Full          which the rate adjustment methodol-
Reduction Rates from Line J6), the           ogy in paragraph (g)(3) of this section
starting date shall be September 30,         was used.
1992. Operators in this latter group may       (g) Changes in the number of channels
make adjustment for changes in exter-        on regulated tiers.(1) Generally. A system
nal costs for the period between Sep-        may adjust the residual component of
tember 30, 1992, and the initial date of     its permitted rate for a tier to reflect
regulation or February 28, 1994, which-      changes in the number of channels
ever is applicable, based either on          offeredon the tier on a quarterly basis.
                                             Cable systems shall use FCC Form 1210
changes in the GNP–PI over that pe-
                                             (or FCC Form 1211, where applicable) or
riod or on the actual change in the ex-
                                             FCC Form 1240 to justify rate changes
ternal costs over that period. There-
                                             made on account of changes in the
after, adjustment for external costs
                                             number of channels on a basic service
may be made on the basis of actual
                                             tier (‘‘BST’’) or a cable programming
changes in external costs only.
                                             service tier (‘‘CPST’’). Such rate ad-
  (5) Changes in franchise fees shall not    justments shall be based on any
result in an adjustment to permitted         changes in the number of regulated
charges, but rather shall be calculated      channels that occurred from the end of
separately as part of the maximum            the last quarter for which an adjust-
monthly charge per subscriber for a          ment was previously made through the
tier of regulated programming service.       end of the quarter that has most re-
  (6) Adjustments to permitted charges       cently closed preceding the filing of
to reflect changes in the costs of pro-      the FCC Form 1210 (or FCC Form 1211,
gramming purchased from affiliated           where applicable) or FCC Form 1240.
programmers, as defined in § 76.901,         However, when a system deletes chan-
shall be permitted as long as the price      nels in a calendar quarter, the system
charged to the affiliated system re-         must adjust the residual component of
flects either prevailing company prices      the tier charge in the next calendar
offered in the marketplace to third          quarter to reflect that deletion. Opera-
parties (where the affiliated program        tors must elect between the channel
supplier has established such prices) or     addition rules in paragraphs (g)(2) and
the fair market value of the program-        (g)(3) of this section the first time they
ming.                                        adjust rates after December 31, 1994, to
  (7) Adjustments to permitted charges       reflect a channel addition to a CPST
on account of increases in costs of pro-     that occurred on or after May 15, 1994,
gramming shall be further adjusted to        and must use the elected methodology
reflect any revenues received by the         for all rate adjustments through De-
operator from the programmer. Such           cember 31, 1997. A system that adjusted
adjustments shall apply on a channel-        rates after May 15, 1994, but before Jan-
by-channel basis.                            uary 1, 1995 on account of a change in

                                         602
Federal Communications Commission                                                                                                                                   § 76.922

the number of channels on a CPST that                                                                                                                               Per-channel
occurred after May 15, 1994, may elect                                                               Average No. of regulated channels                              adjustment
                                                                                                                                                                       factor
to revise its rates to charge the rates
permitted by paragraph (g)(3) of this                                                       46.5–99.5 ...........................................................          0.01
section on or after January 1, 1995, but
is not required to do so as a condition                                                       In order to adjust the residual com-
for using the methodology in para-                                                          ponent of the tier charge when there is
graph (g)(3) of this section for rate ad-                                                   an increase in the number of channels
justments after January 1, 1995. Rates                                                      on a tier, the operator shall perform
for the BST will be governed exclu-                                                         the following calculations:
sively by paragraph (g)(2) of this sec-                                                       (i) Take the sum of the old total
tion, except that where a system of-                                                        number of channels on tiers subject to
fered only one tier on May 14, 1994, the                                                    regulation (i.e., tiers that are, or could
cable operator will be allowed to elect                                                     be, regulated but excluding New Prod-
between paragraphs (g)(2) and (g)(3) of                                                     uct Tiers) and the new total number of
this section as if the tier was a CPST.                                                     channels and divide the resulting num-
  (2) Adjusting rates for increases in the                                                  ber by two;
number of channels offered between May                                                        (ii) Consult the above table to find
15, 1994, and December 31, 1997, on a basic                                                 the applicable per channel adjustment
service tier and at the election of the oper-                                               factor for the number of channels pro-
ator on a cable programming service tier.                                                   duced by the calculations in step (1).
The following table shall be used to ad-                                                    For each tier for which there has been
just permitted rates for increases in                                                       an increase in the number of channels,
the number of channels offered between                                                      multiply the per-channel adjustment
May 15, 1994, and December 31, 1997, on                                                     factor times the change in the number
a basic service tier and subject to the                                                     of channels on that tier. The result is
conditions in paragraph (g)(1) of this
                                                                                            the total adjustment for that tier.
section at the election of the operator
                                                                                              (3) Alternative methodology for adjust-
on a CPST. The entries in the table
provide the cents per channel per sub-                                                      ing rates for changes in the number of
scriber per month by which cable oper-                                                      channels offered on a cable programming
ators will adjust the residual compo-                                                       service tier or a single tier system between
nent using FCC Form 1210 (or FCC                                                            May 15, 1994, and December 31, 1997. This
Form 1211, where applicable) or FCC                                                         paragraph at the Operator’s discretion
Form 1240.                                                                                  as set forth in paragraph (g)(1) of this
                                                                                            section shall be used to adjust per-
                                                                              Per-channel   mitted rates for a CPST after Decem-
         Average No. of regulated channels                                    adjustment
                                                                                 factor     ber 31, 1994, for changes in the number
                                                                                            of channels offered on a CPST between
7 .........................................................................         $0.52
7.5 ......................................................................           0.45
                                                                                            May 15, 1994, and December 31, 1997. For
8 .........................................................................          0.40   purposes of paragraph (g)(3) of this sec-
8.5 ......................................................................           0.36   tion, a single tier system may be treat-
9 .........................................................................          0.33
9.5 ......................................................................           0.29
                                                                                            ed as if it were a CPST.
10 .......................................................................           0.27     (i) Operators cap attributable to new
10.5 ....................................................................            0.24   channels on all CPSTs through December
11 .......................................................................           0.22
11.5 ....................................................................            0.20   31, 1997. Operators electing to use the
12 .......................................................................           0.19   methodology set forth in this para-
12.5 ....................................................................            0.17   graph may increase their rates between
13 .......................................................................           0.16
13.5 ....................................................................            0.15   January 1, 1995, and December 31, 1997,
14 .......................................................................           0.14   by up to 20 cents per channel, exclusive
14.5 ....................................................................            0.13   of programming costs, for new chan-
15–15.5 ..............................................................               0.12
16 .......................................................................           0.11   nels added to CPSTs on or after May
16.5–17 ..............................................................               0.10   15, 1994, except that they may not
17.5–18 ..............................................................               0.09   make rate adjustments totalling more
18.5–19 ..............................................................               0.08
19.5–21.5 ...........................................................                0.07   than $1.20 per month, per subscriber
22–23.5 ..............................................................               0.06   through December 31, 1996, and by more
24–26 .................................................................              0.05   than $1.40 per month, per subscriber
26.5–29.5 ...........................................................                0.04
30–35.5 ..............................................................               0.03   through December 31, 1997 (the ‘‘Opera-
36–46 .................................................................              0.02   tor’s Cap’’). Except to the extent that

                                                                                        603
§ 76.922                                                47 CFR Ch. I (10–1–98 Edition)

the programming costs of such chan-           vided that the total amount recovered
nels are covered by the License Fee Re-       from subscribers for such channels, in-
serve provided for in paragraph               cluding the License Fee Reserve, does
(g)(3)(iii) of this section, programming      not exceed $1.50 per subscriber, per
costs associated with channels for            month. After December 31, 1996, license
which a rate adjustment is made pursu-        fees may be passed through to subscrib-
ant to this paragraph (g)(3) of this sec-     ers pursuant to paragraph (f) of this
tion must fall within the Operators’          section, except that license fees associ-
Cap if the programming costs (includ-         ated with channels added pursuant to
ing any increases therein) are reflected      this paragraph (3) will not be eligible
in rates before January 1, 1997. Infla-       for the 7.5% mark-up on increases in
tion adjustments pursuant to para-            programming costs.
graph (d)(2) or (e)(2) of this section are       (iv) Timing. For purposes of determin-
not counted against the Operator’s            ing whether a rate increase counts
Cap.                                          against the maximum rate increases
  (ii) Per channel adjustment. Operators      specified in paragraphs (g)(3)(i) through
may increase rates by a per channel ad-       (g)(3)(ii) of this section, the relevant
justment of up to 20 cents per sub-           date shall be when rates are increased
scriber per month, exclusive of pro-          as a result of channel additions, not
gramming costs, for each channel              when the addition occurs.
added to a CPST between May 15, 1994,            (4) Deletion of channels. When drop-
and December 31, 1997, except that an         ping a channel from a BST or CPST,
operator may take the per channel ad-         operators shall reflect the net reduc-
justment only for channel additions           tion in external costs in their rates
that result in an increase in the high-       pursuant to paragraphs (d)(3)(i) and
est number of channels offered on all         (d)(3)(ii) of this section, or paragraphs
CPSTs as compared to May 14, 1994,            (e)(2)(ii)(A) and (e)(2)(ii)(B) of this sec-
and each date thereafter. Any revenues        tion. With respect to channels to which
received from a programmer, or shared         the 7.5% mark-up on programming
by a programmer and an operator in            costs applied pursuant to paragraph
connection with the addition of a chan-       (f)(8) of this section, the operator shall
nel to a CPST shall first be deducted         treat the mark-up as part of its pro-
from programming costs for that chan-         gramming costs and subtract the
nel pursuant to paragraph (f)(7) of this      mark-up from its external costs. Opera-
section and then, to the extent reve-         tors shall also reduce the price of that
nues received from the programmer are         tier by the ‘‘residual’’ associated with
greater than the programming costs,           that channel. For channels that were
shall be deducted from the per channel        on a BST or CPST on May 14, 1994, or
adjustment. This deduction will apply         channels added after that date pursu-
on a channel by channel basis.                ant to paragraph (g)(2) of this section,
  (iii) License fee reserve. In addition to   the per channel residual is the charge
the rate adjustments permitted in             for their tier, minus the external costs
paragraphs (g)(3)(i) and (g)(3)(ii) of this   for the tier, and any per channel ad-
section, operators that make channel          justments made after that date, di-
additions on or after May 15, 1994 may        vided by the total number of channels
increase their rates by a total of 30         on the tier minus the number of chan-
cents per month, per subscriber be-           nels on the tier that received the per
tween January 1, 1995, and December           channel adjustment specified in para-
31, 1996, for license fees associated with    graph (g)(3) of this section. For chan-
such channels (the ‘‘License Fee Re-          nels added to a CPST after May 14,
serve’’). The License Fee Reserve may         1994, pursuant to paragraph (g)(3) of
be applied against the initial license        this section, the residuals shall be the
fee and any increase in the license fee       actual per channel adjustment taken
for such channels during this period.         for that channel when it was added to
An operator may pass-through to sub-          the tier.
scribers more than the 30 cents be-              (5) Movement of Channels Between
tween January 1, 1995, and December           Tiers. When a channel is moved from a
31, 1996, for license fees associated with    CPST or a BST to another CPST or
channels added after May 15, 1994, pro-       BST, the price of the tier from which

                                          604
Federal Communications Commission                                             § 76.922

the channel is dropped shall be reduced      tional monthly per subscriber headend
to reflect the decrease in programming       costs of one full cent or more for an ad-
costs and residual as described in para-     ditional channel may choose among
graph (g)(4) of this section. The resid-     the methodologies set forth in para-
ual associated with the shifted channel      graphs (g)(2) and (g)(3) of this section.
shall then be converted from per sub-        In addition, such systems may increase
scriber to aggregate numbers to ensure       rates to recover the actual cost of the
aggregate revenues from the channel          headend equipment required to add up
remain the same when the channel is          to seven such channels to CPSTs and
moved. The aggregate residual associ-        single-tier systems, not to exceed $5,000
ated with the shifted channel may be         per additional channel. Rate increases
shifted to the tier to which the channel     pursuant to this paragraph may occur
is being moved. The residual shall then      between January 1, 1995, and December
be converted to per subscriber figures       31, 1997, as a result of additional chan-
on the new tier, plus any subsequent
                                             nels offered on those tiers after May 14,
inflation adjustment. The price of the
                                             1994. Headend costs shall be depreciated
tier to which the channel is shifted
                                             over the useful life of the equipment.
may then be increased to reflect this
amount. The price of that tier may           The rate of return on this investment
also be increased to reflect any in-         shall not exceed 11.25 percent. In order
crease in programming cost. An opera-        to recover costs for headend equipment
tor may not shift a channel for which        pursuant to this paragraph, systems
it received a per channel adjustment         must certify to the Commission their
pursuant to paragraph (g)(3) of this sec-    eligibility to use this paragraph, and
tion from a CPST to a BST.                   the level of costs they have actually in-
  (6) Substitution of channels on a BST or   curred for adding the headend equip-
CPST. If an operator substitutes a new       ment and the depreciation schedule for
channel for an existing channel on a         the equipment.
CPST or a BST, no per channel adjust-          (8) Sunset provision. Paragraph (g) of
ment may be made. Operators sub-             this section shall cease to be effective
stituting channels on a CPST or a BST        on January 1, 1998 unless renewed by
shall be required to reflect any reduc-      the Commission.
tion in programming costs in their             (h) Permitted charges for a tier shall
rates and may reflect any increase in        be determined in accordance with
programming costs pursuant to para-          forms and associated instructions es-
graphs (d)(3)(i) and (d)(3)(ii), or para-    tablished by the Commission.
graphs (e)(2)(ii)(A) and (e)(2)(ii)(B) of      (i) Cost of Service Charge. (1) For pur-
this section. If the programming cost        poses of this section, a monthly cost-
for the new channel is greater than the      of-service charge for a basic service
programming cost for the replaced            tier or a cable programming service
channel, and the operator chooses to
                                             tier is an amount equal to the annual
pass that increase through to subscrib-
                                             revenue requirement for that tier di-
ers, the excess shall count against the
                                             vided by a number that is equal to 12
License Fee Reserve or the Operator
Cap when the increased cost is passed        times the average number of subscrib-
through to subscribers. Where an oper-       ers to that tier during the test year,
ator substitutes a new channel for a         except that a monthly charge for a sys-
channel on which a 7.5% mark-up on           tem or tier in service less than one
programming costs was taken pursuant         year shall be equal to the projected an-
to paragraph (f)(8) of this section, the     nual revenue requirement for the first
operator may retain the 7.5% mark-up         12 months of operation or service di-
on the license fee of the dropped chan-      vided by a number that is equal to 12
nel to the extent that it is no greater      times the projected average number of
than 7.5% of programming cost of the         subscribers during the first 12 months
new service.                                 of operation or service. The calculation
  (7) Headend upgrades. When adding          of the average number of subscribers
channels to CPSTs and single-tier sys-       shall include all subscribers, regardless
tems, cable systems that are owned by        of whether they receive service at full
a small cable company and incur addi-        rates or at discounts.

                                         605
§ 76.922                                             47 CFR Ch. I (10–1–98 Edition)

  (2) A test year for an initial regu-      sence of a showing that the overrun oc-
lated charge is the cable operator’s fis-   curred through no fault of the opera-
cal year preceding the initial date of      tor.
regulation. A test year for a change in        (ii) An allowance for start-up losses
the basic service charge that is after      including depreciation, amortization
the initial date of regulation is the       and interest expenses related to assets
cable operator’s fiscal year preceding      that are included in the ratebase. Cap-
the mailing or other delivery of writ-      italized start-up losses, may include
ten notice pursuant to Section 76.932. A    cumulative net losses, plus any unre-
test year for a change in a cable pro-      covered interest expenses connected to
gramming service charge after the ini-      funding the regulated ratebase, amor-
tial date of regulation is the cable op-    tized over the unexpired life of the
erator’s fiscal year preceding the filing   franchise, commencing with the end of
of a complaint regarding the increase.      the loss accumulation phase. However,
  (3) The annual revenue requirement        losses attributable to accelerated de-
for a tier is the sum of the return com-    preciation methodologies are not per-
ponent and the expense component for        mitted.
that tier.                                     (iii) An allowance for start-up losses,
  (4) The return component for a tier is    if any, that is equal to the lesser of the
the average allowable test year             first two years of operating costs or ac-
ratebase allocable to the tier adjusted     cumulated losses incurred until the
for known and measurable changes oc-        system reached the end of its pre-
curring between the end of the test         maturity stage as defined in Financial
year and the effective date of the rate     Accounting Standards Board Standard
multiplied by the rate of return speci-     51 (‘‘FASB 51’’) less straight-line amor-
fied by the Commission or franchising       tization over a reasonable period not
authority.                                  exceeding 15 years that commences at
  (5) The expense component for a tier      the end of the prematurity phase of op-
is the sum of allowable test year ex-       eration.
penses allocable to the tier adjusted for      (iv) Intangible assets less amortiza-
known and measurable changes occur-         tion that reflect the original costs pru-
ring between the end of the test year       dently incurred by a cable operator in
and the effective date of the rate.         organizing and incorporating a com-
  (6) The ratebase may include the fol-     pany that provides regulated cable
lowing:                                     services, obtaining a government fran-
  (i) Prudent investment by a cable op-     chise to provide regulated cable serv-
erator in tangible plant that is used       ices, or obtaining patents that are used
and useful in the provision of regulated    and useful in the provision of cable
cable services less accumulated depre-      services.
ciation. Tangible plant in service shall       (v) The cost of customer lists if such
be valued at the actual money cost (or      costs were capitalized during the pre-
the money value of any consideration        maturity phase of operations less am-
other than money) at the time it was        ortization.
first used to provide cable service, ex-       (vi) An amount for working capital
cept that in the case of systems pur-       to the extent that an allowance or dis-
chased before May 15, 1994 shall be pre-    allowance for funds needed to sustain
sumed to equal 66% of the total pur-        the ongoing operations of the regulated
chase price allocable to assets (includ-    cable service is demonstrated.
ing tangible and intangible assets) used       (vii) Other intangible assets to the
to provide regulated services. The 66%      extent the cable operator demonstrates
allowance shall not be used to justify      that the asset reflects costs incurred in
any rate increase taken after the effec-    an activity or transaction that pro-
tive date of this rule. The actual          duced concrete benefits or savings for
money cost of plant may include an al-      subscribers to regulated cable services
lowance for funds used during con-          that would not have been realized oth-
struction at the prime rate or the oper-    erwise and the cable operator dem-
ator’s actual cost of funds during con-     onstrates that a return on such an
struction. Cost overruns are presumed       asset does not exceed the value of such
to be imprudent investment in the ab-       a subscriber benefit.

                                        606
Federal Communications Commission                                           § 76.922

  (viii) The portion of the capacity of    cate net cost increases in conformance
plant not currently in service that will   with the cost allocation rules as set
be placed in service within twelve         forth in § 76.924.
months of the end of the test year.          (5) Cable operators that undertake
  (7) Deferred income taxes accrued        significant upgrades shall be permitted
after the date upon which the operator     to increase rates by adding the bench-
became subject to regulation shall be      mark/price cap rate to the rate incre-
deducted from items included in the        ment necessary to recover the net in-
ratebase.                                  crease in cost attributable to the up-
  (8) Allowable expenses may include       grade.
the following:                               (k) Hardship rate relief. A cable opera-
  (i) All regular expenses normally in-    tor may adjust charges by an amount
curred by a cable operator in the provi-   specified by the Commission for the
sion of regulated cable service, but not   cable programming service tier or the
including any lobbying expense, chari-     franchising authority for the basic
table contributions, penalties and fines   service tier if it is determined that:
paid on account of violations of stat-       (1) Total revenues from cable oper-
utes or rules, or membership fees in so-   ations, measured at the highest level of
cial, service, recreational or athletic    the cable operator’s cable service orga-
clubs or organizations.                    nization, will not be sufficient to en-
  (ii) Reasonable depreciation expense
                                           able the operator to attract capital or
attributable to tangible assets allow-
                                           maintain credit necessary to enable
able in the ratebase.
                                           the operator to continue to provide
  (iii) Reasonable amortization expense
                                           cable service;
for prematurely abandoned tangible as-
sets    formerly   includable   in   the     (2) The cable operator has prudent
ratebase that are amortized over the       and efficient management; and
remainder of the original expected life      (3) Adjusted charges on account of
of the asset.                              hardship will not result in total
  (iv) Reasonable amortization expense     charges for regulated cable services
for start-up losses and capitalized in-    that are excessive in comparison to
tangible assets that are includable in     charges of similarly situated systems.
ratebase.                                    (l) Cost of service showing. A cable op-
  (v) Taxes other than income taxes at-    erator that elects to establish a charge,
tributable to the provision of regulated   or to justify an existing or changed
cable services.                            charge for regulated cable service,
  (vi) An income tax allowance.            based on a cost-of-service showing
  (j) Network upgrade rate increase. (1)   must submit data to the Commission
Cable operators that undertake signifi-    or the franchising authority in accord-
cant network upgrades requiring added      ance with forms established by the
capital investment may justify an in-      Commission. The cable operator must
crease in rates for regulated services     also submit any additional information
by demonstrating that the capital in-      requested by franchising authorities or
vestment will benefit subscribers.         the Commission to resolve questions in
  (2) A rate increase on account of up-    cost-of-service proceedings.
grades shall not be assessed on cus-         (m) Subsequent Cost of Service Charges.
tomers until the upgrade is complete       No cable operator may use a cost-of-
and providing benefits to customers of     service showing to justify an increase
regulated services.                        in any charge established on a cost-of-
  (3) Cable operators seeking an up-       service basis for a period of 2 years
grade rate increase have the burden of     after that rate takes effect, except that
demonstrating the amount of the net        the Commission or the franchising au-
increase in costs, taking into account     thority may waive this prohibition
current depreciation expense, likely       upon a showing of unusual cir-
changes in maintenance and other           cumstances that would create undue
costs, changes in regulated revenues       hardship for a cable operator.
and expected economies of scale.             (n) Further rate adjustments—Uniform
  (4) Cable operators seeking a rate in-   rates. A cable operator that has estab-
crease for network upgrades shall allo-    lished rates in accordance with this

                                       607
§ 76.923                                                      47 CFR Ch. I (10–1–98 Edition)

section may then be permitted to es-                 Such equipment shall include, but is
tablish a uniform rate for uniform                   not limited to:
services offered in multiple franchise                 (i) Converter boxes;
areas. This rate shall be determined in                (ii) Remote control units; and
accordance with the Commission’s pro-                  (iii) Inside wiring.
cedures and requirements set forth in
                                                       (2) Subscriber charges for such equip-
CS Docket No. 95–174.
                                                     ment shall not exceed charges based on
[58 FR 29753, May 21, 1993, as amended at 58         actual costs in accordance with the re-
FR 46735, Sept. 2, 1993; 59 FR 17957, 17973,         quirements set forth in this section.
17989, Apr. 15, 1994; 59 FR 53115, Oct. 21, 1994;
59 FR 62623, Dec. 6, 1994; 60 FR 4865, Jan. 25,        Subscriber charges for such equip-
1995; 60 FR 10514, Feb. 27, 1995; 60 FR 35864,       ment shall not exceed charges based on
July 12, 1995; 60 FR 52113, Oct. 5, 1995; 60 FR      actual costs in accordance with the re-
54817, Oct. 26, 1995; 61 FR 9367, Mar. 8, 1996; 61   quirements set forth below.
FR 45359, Aug. 29, 1996; 62 FR 6495, Feb. 12,          (b) Unbundling. A cable operator shall
1997; 62 FR 15121, 15127, Mar. 31, 1997; 62 FR
53576, Oct. 15, 1997]                                establish rates for remote control
                                                     units, converter boxes, other customer
  EFFECTIVE DATE NOTES: 1. At 60 FR 62633,
                                                     equipment, installation, and additional
Dec. 6, 1994, in § 76.922, paragraph (e) was re-
vised. Paragraphs (e)(1) and (e)(2) contain in-      connections separate from rates for
formation collection and recordkeeping re-           basic tier service. In addition, the rates
quirements and will not become effective             for such equipment and installations
until approval has been given by the Office of       shall be unbundled one from the other.
Management and Budget.
                                                       (c) Equipment basket. A cable operator
  2. At 60 FR 52113, Oct. 5, 1995, in § 76.922,      shall establish an Equipment Basket,
paragraphs (e) through (k) were redesignated         which shall include all costs associated
as (g) through (m); (c), (d), and new (g)
through new (m) were revised; a new (e) and
                                                     with providing customer equipment
a new (f) were added. This amendment con-            and installation under this section.
tains information collection and record-             Equipment Basket costs shall be lim-
keeping requirements and will not become             ited to the direct and indirect material
effective until 30 days after approval has           and labor costs of providing, leasing,
been given by the Office of Management and
                                                     installing, repairing, and servicing cus-
Budget.
                                                     tomer equipment, as determined in ac-
   3. At 61 FR 9367, Mar. 8, 1996, in § 76.922,      cordance with the cost accounting and
paragraphs (i)(6)(i) and (i)(7) were revised;
(i)(6)(ii) through (vii) were redesignated as        cost allocation requirements of § 76.924,
(i)(6)(iii) through (viii); a new (i)(6)(ii) was     except that operators do not have to
added. This amendment contains informa-              aggregate costs in a manner consistent
tion collection and recordkeeping require-           with the accounting practices of the
ments and will not become effective until ap-        operator on April 3, 1993. The Equip-
proval has been given by the Office of Man-
                                                     ment Basket shall not include general
agement and Budget.
                                                     administrative      overhead    including
  4. At 62 FR 6495, Feb. 12, 1997, in § 76.922,      marketing expenses. The Equipment
paragraph (f)(4) was revised. This amend-
ment contains information collection and
                                                     Basket shall include a reasonable prof-
recordkeeping requirements and will not be-          it.
come effective until approval has been given           (1) Customer equipment. Costs of cus-
by the Office of Management and Budget.              tomer equipment included in the
                                                     Equipment Basket may be aggregated,
§ 76.923 Rates for equipment and in-
     stallation used to receive the basic            on a franchise, system, regional, or
     service tier.                                   company level, into broad categories.
                                                     Except to the extent indicated in para-
   (a) Scope. (1) The equipment regu-
                                                     graph (c)(2) of this section, such cat-
lated under this section consists of all
                                                     egorization may be made, provided
equipment in a subscriber’s home, pro-
vided and maintained by the operator,                that each category includes only equip-
that is used to receive the basic service            ment of the same type, regardless of
tier, regardless of whether such equip-              the levels of functionality of the equip-
ment is additionally used to receive                 ment within each such broad category.
other tiers of regulated programming                 When submitting its equipment costs
service and/or unregulated service.

                                                 608
Federal Communications Commission                                               § 76.923

based on average charges, the cable op-     is calculated according to the following
erator must provide a general descrip-      formula:
tion of the averaging methodology em-
ployed and a justification that its aver-                        EB - CE
aging methodology produces reason-                      HSC =
                                                                   H
able equipment rates. Equipment rates
should be set at the same organiza-         Where, EB=annual Equipment Basket
                                                 Cost; CE=annual purchase cost of
tional level at which an operator ag-
                                                 all   customer     equipment;   and
gregates its costs.
                                                 H=person hours involved in install-
  (2) Basic service tier only equipment.         ing and repairing equipment per
Costs of customer equipment used by              year. The purchase cost of cus-
basic-only subscribers may not be ag-            tomer equipment shall include the
gregated with the costs of equipment             cable operator’s invoice price plus
used by non-basic-only subscribers.              all other costs incurred with re-
Costs of customer equipment used by              spect to the equipment until the
basic-only subscribers may, however,             time it is provided to the customer.
be aggregated, consistent with an oper-       (e) Installation charges. Installation
ator’s aggregation under paragraph          charges shall be either:
(c)(1) of this section, on a franchise,       (1) The HSC multiplied by the actual
system, regional, or company level.         time spent on each individual installa-
The prohibition against aggregation         tion; or
applies to subscribers, not to a particu-     (2) The HSC multiplied by the aver-
lar type of equipment. Alternatively,       age time spent on a specific type of in-
operators may base its basic-only sub-      stallation.
scriber cost aggregation on the as-           (f) Remote charges. Monthly charges
sumption that all basic-only subscrib-      for rental of a remote control unit
ers use equipment that is the lowest        shall consist of the average annual unit
level and least expensive model of          purchase cost of remotes leased, in-
equipment offered by the operator,          cluding acquisition price and inciden-
even if some basic-only subscribers ac-     tal costs such as sales tax, financing
tually have higher level, more expen-       and storage up to the time it is pro-
sive equipment.                             vided to the customer, added to the
  (3) Installation costs. Installation      product of the HSC times the average
costs, consistent with an operator’s ag-    number of hours annually repairing or
gregation under paragraph (c)(1) of this    servicing a remote, divided by 12 to de-
section, may be aggregated, on a fran-      termine the monthly lease rate for a
chise, system, regional, or company         remote according to the following for-
level. When submitting its installation     mula:
costs based on average charges, the
cable operator must provide a general                            UCE + (HSC × HR)
description of the averaging methodol-        Monthly Charge =
ogy employed and a justification that                                      12
its averaging methodology produces          Where, HR=average hours repair per
reasonable equipment rates. Installa-           year; and UCE=average annual unit
tion rates should be set at the same or-        cost of remote.
ganizational level at which an operator       (g) Other equipment charges. The
aggregates its costs.                       monthly charge for rental of converter
  (d) Hourly service charge. A cable op-    boxes and other customer equipment
erator shall establish charges for          shall be calculated in the same manner
equipment and installation using the        as for remote control units. Separate
Hourly Service Charge (HSC) meth-           charges may be established for each
odology. The HSC shall equal the oper-      category of other customer equipment.
ator’s annual Equipment Basket costs,         (h) Additional connection charges. The
excluding the purchase cost of cus-         costs of installation and monthly use
tomer equipment, divided by the total       of additional connections shall be re-
person hours involved in installing, re-    covered as charges associated with the
pairing, and servicing customer equip-      installation and equipment cost cat-
ment during the same period. The HSC        egories, and at rate levels determined

                                        609
§ 76.923                                               47 CFR Ch. I (10–1–98 Edition)

by the actual cost methodology pre-          lished only for similar types of equip-
sented in the foregoing paragraphs (e),      ment. When submitting its equipment
(f), and (g) of this section. An operator    costs based on average charges to the
may recover additional programming           local franchising authority or the Com-
costs and the costs of signal boosters       mission, an operator that elects com-
on the customers premises, if any, as-       pany-wide averaging of equipment
sociated with the additional connec-         costs must provide a general descrip-
tion as a separate monthly unbundled         tion of the averaging methodology em-
charge for additional connections.           ployed and a justification that its aver-
   (i) Charges for equipment sold. A cable   aging methodology produces reason-
operator may sell customer premises          able equipment rates. The local author-
equipment to a subscriber. The equip-        ity or the Commission may require the
ment price shall recover the operator’s      operator to set equipment rates based
cost of the equipment, including costs       on the operator’s level of averaging in
associated with storing and preparing        effect on April 3, 1993, as required by
the equipment for sale up to the time        § 76.924(d).
it is sold to the customer, plus a rea-         (m) Cable operators shall set charges
sonable profit. An operator may sell         for equipment and installations to re-
service contracts for the maintenance        cover Equipment Basket costs. Such
and repair of equipment sold to sub-         charges shall be set, consistent with
scribers. The charge for a service con-      the level at which Equipment Basket
tract shall be the HSC times the esti-       costs are aggregated as provided in
mated average number of hours for            § 76.923(c). Cable operators shall main-
maintenance and repair over the life of      tain adequate documentation to dem-
the equipment.                               onstrate that charges for the sale and
   (j) Promotions. A cable operator may      lease of equipment and for installa-
offer equipment or installation at           tions have been developed in accord-
charges below those determined under         ance with the rules set forth in this
paragraphs (e) through (g) of this sec-      section.
tion, as long as those offerings are rea-
                                                (n) Timing of Filings. An operator
sonable in scope in relation to the op-
                                             shall file FCC Form 1205 in order to es-
erator’s overall offerings in the Equip-
                                             tablish its maximum permitted rates
ment Basket and not unreasonably dis-
                                             at the following times:
criminatory. Operators may not re-
cover the cost of a promotional offer-          (1) When the operator sets its initial
ing by increasing charges for other          rates under either the benchmark sys-
Equipment Basket elements, or by in-         tem or through a cost-of-service show-
creasing programming service rates           ing;
above the maximum monthly charge                (2) Within 60 days of the end of its fis-
per subscriber prescribed by these           cal year, for an operator that adjusts
rules. As part of a general cost-of-serv-    its rates under the system described in
ice showing, an operator may include         Section 76.922(d) that allows it to file
the cost of promotions in its general        up to quarterly;
system overhead costs.                          (3) On the same date it files its FCC
   (k) Franchise fees. Equipment charges     Form 1240, for an operator that adjusts
may include a properly allocated por-        its rates under the annual rate adjust-
tion of franchise fees.                      ment system described in Section
   (l) Company-wide averaging of equip-      76.922(e). If an operator elects not to
ment costs. For the purpose of develop-      file an FCC Form 1240 for a particular
ing unbundled equipment charges as re-       year, the operator must file a Form
quired by paragraph (b) of this section,     1205 on the anniversary date of its last
a cable operator may average the             Form 1205 filing; and
equipment costs of its small systems at         (4) When seeking to adjust its rates
any level, or several levels, within its     to reflect the offering of new types of
operations. This company-wide averag-        customer equipment other than in con-
ing applies only to an operator’s small      junction with an annual filing of Form
systems as defined in § 76.901(c); is per-   1205, 60 days before it seeks to adjust
mitted only for equipment charges, not       its rates to reflect the offering of new
installation charges; and may be estab-      types of customer equipment.

                                         610
Federal Communications Commission                                                   § 76.924

  (o) Introduction of new equipment. In             electing cost of service regulation or
setting the permitted charge for a new              seeking adjustments due to changes in
type of equipment at a time other than              external costs shall identify invest-
at its annual filing, an operator shall             ments, expenses and revenues at the
only complete Schedule C and the rel-               franchise, system, regional, and/or
evant step of the Worksheet for Cal-                company level(s) in a manner consist-
culating Permitted Equipment and In-                ent with the accounting practices of
stallation Charges of a Form 1205. The              the operator on April 3, 1993. However,
operator shall rely on entries from its             in all events, cable operators shall
most recently filed FCC Form 1205 for               identify at the franchise level their
information not specifically related to             costs of franchise requirements, fran-
the new equipment, including but not                chise fees, local taxes and local pro-
limited to the Hourly Service Charge.               gramming.
In calculating the annual maintenance                 (d) Summary accounts. (1) Cable opera-
and service hours for the new equip-                tors filing for cost-of-service regula-
ment, the operator should base its                  tion, other than small systems owned
entry on the average annual expected                by small cable companies, shall report
time required to maintain the unit,                 all investments, expenses, and revenue
i.e., expected service hours required               and income adjustments accounted for
over the life of the equipment unit                 at the franchise, system, regional and/
being introduced divided by the equip-              or company level(s) to the summary
ment unit’s expected life.                          accounts listed below.
[58 FR 29753, May 21, 1993, as amended at 59                        RATEBASE
FR 17960, 17973, Apr. 15, 1994; 60 FR 52118, Oct.
                                                    Net Working Capital
5, 1995; 61 FR 32709, June 25, 1996]
                                                    Headend
  EFFECTIVE DATE NOTE: At 60 FR 52118, Oct.         Trunk and Distribution Facilities
5, 1995, in § 76.923, paragraphs (n) and (o) were   Drops
added. This amendment contains informa-             Customer Premises Equipment
tion collection and recordkeeping require-          Construction/Maintenance Facilities and
ments and will not become effective until 30          Equipment
days after approval has been given by the Of-       Programming Production Facilities and
fice of Management and Budget.                        Equipment
                                                    Business Offices Facilities and Equipment
§ 76.924 Allocation to service cost cat-            Other Tangible Assets
     egories.                                       Accumulated Depreciation
                                                    Plant Under Construction
  (a) Applicability. The requirements of            Organization and Franchise Costs
this section are applicable to cable op-            Subscriber Lists
erators for which the basic service tier            Capitalized Start-up Losses
is regulated by local franchising au-               Goodwill
thorities or the Commission, or, with               Other Intangibles
                                                    Accumulated Amortization
respect to a cable programming serv-                Deferred Taxes
ices tier, for which a complaint has
been filed with the Commission. The                           OPERATING EXPENSES
requirements of this section are appli-             Cable Plant Employee Payroll
cable for purposes of rate adjustments              Cable Plant Power Expense
on account of external costs and for                Pole Rental, Duct, Other Rental for Cable
cost-of-service showings.                             Plant
  (b) Accounting requirements. Cable op-            Cable Plant Depreciation Expense
                                                    Cable Plant Expenses—Other
erators electing cost-of-service regula-            Plant Support Employee Payroll Expense
tion or seeking rate adjustments due to             Plant Support Depreciation Expense
changes in external costs shall main-               Plant Support Expense—Other
tain their accounts:                                Programming Activities Employee Payroll
  (1) in accordance with generally ac-              Programming Acquisition Expense
cepted accounting principles; and                   Programming Activities Depreciation Ex-
  (2) in a manner that will enable iden-              pense
                                                    Programming Expense—Other
tification of appropriate investments,              Customer Services Expense
revenues, and expenses.                             Advertising Activities Expense
  (c) Accounts level. Except to the ex-             Management Fees
tent indicated below, cable operators               General and Administrative Expenses

                                                611
§ 76.924                                                47 CFR Ch. I (10–1–98 Edition)
Selling General and Administrative Depre-     Franchise Fees
  ciation Expenses                            Interest Expense
Selling General and Administrative Ex-
  penses—Other                                    REVENUE AND INCOME ADJUSTMENTS
Amortization Expense—Franchise and Orga-      Advertising Revenues
  nizational Costs                            Other Cable Revenue Offsets
Amortization Expense—Customer Lists
                                              Gains and Losses on Sale of Assets
Amortization Expense—Capitalized Start-up
                                              Extraordinary Items
  Loss
Amortization Expense—Goodwill                 Other Adjustments
Amortization Expense—Other Intangibles          (e) Allocation to service cost categories.
Operating Taxes                                 (1) For cable operators electing cost-
Other Expenses (Excluding Franchise Fees)
Franchise Fees                                of-service regulation, investments, ex-
Interest on Funded Debt                       penses, and revenues contained in the
Interest on Capital Leases                    summary accounts identified in para-
Other Interest Expenses                       graph (d) of this section shall be allo-
                                              cated among the Equipment Basket, as
    REVENUE AND INCOME ADJUSTMENTS
                                              specified in § 76.923, and the following
Advertising Revenues                          service cost categories:
Other Cable Revenue Offsets                     (i) Basic service cost category. The
Gains and Losses on Sale of Assets
Extraordinary Items                           basic service category, shall include
Other Adjustments                             the cost of providing basic service as
                                              defined by § 76.901(a). The basic service
  (2) Except as provided in § 76.934(h),      cost category may only include allow-
small systems owned by small cable            able costs as defined by §§ 76.922(g)
companies that file for cost-of-service       through 76.922(k).
regulation shall report all investments,        (ii) Cable programming services cost
expenses, and revenue and income ad-          category. The cable programming serv-
justments accounted for at the fran-          ices category shall include the cost of
chise, system, regional and/or company        providing cable programming services
level(s) to the following summary ac-         as defined by § 76.901(b). This service
counts:                                       cost category shall contain subcat-
                 RATEBASE                     egories that represent each program-
                                              ming tier that is offered as a part of
Net Working Capital
Headend, Trunk and Distribution System        the operator’s cable programming serv-
  and Support Facilities and Equipment        ices. All costs that are allocated to the
Drops                                         cable     programming       service    cost
Customer Premises Equipment                   cateogry shall be further allocated
Production and Office Facilities, Furniture   among the programming tiers in this
  and Equipment                               category. The cable programming serv-
Other Tangible Assets
                                              ice cost category may include only al-
Accumulated Depreciation
Plant Under Construction                      lowable costs as defined in § 76.922(g)
Goodwill                                      through 76.922(k).
Other Intangibles                               (iii) All other services cost category.
Accumulated Amortization                      The all other services cost category
Deferred Taxes                                shall include the costs of providing all
           OPERATING EXPENSES                 other services that are not included the
                                              basic service or a cable programming
Cable Plant Maintenance, Support and Oper-    services cost categories as defined in
 ations Expense
Programming Production and Acquisition        paragraphs (e)(1)(i) and (ii) of this sec-
 Expense                                      tion.
Customer Services Expense                       (2) Cable operators seeking an adjust-
Advertising Activities Expense                ment due to changes in external costs
Management Fees                               identified in FCC Form 1210 shall allo-
Selling, General and Administrative Ex-       cate such costs among the equipment
 penses                                       basket, as specified in § 76.923, and the
Depreciation Expense
Amortization Expense—Goodwill                 following service cost categories:
Amortization Expense—Other Intangibles          (i) The basic service category as de-
Other Operating Expense (Excluding Fran-      fined by paragraph (e)(1)(i) of this sec-
 chise Fees)                                  tion;

                                          612
Federal Communications Commission                                              § 76.924

  (ii) The cable programming services         signed or allocated to the service cost
category as defined by paragraph              categories and the equipment basket.
(e)(1)(ii) of this section;                     (iii) Where neither direct nor indirect
  (iii) The all other services cost cat-      measures of cost allocation can be
egory as defined by paragraph (e)(1)(iii)     found, common costs shall be allocated
of this section.                              to each service cost category based on
  (f) Cost allocation requirements. (1) Al-   the ratio of all other costs directly as-
locations of investments, expenses and        signed and attributed to a service cost
revenues among the service cost cat-          category over total costs directly or in-
egories and the equipment basket shall        directly assigned and directly or indi-
be made at the organizational level in        rectly attributable.
which such costs and revenues have              (g) Cost identification at the franchise
been identified for accounting purposes       level. After costs have been directly as-
pursuant to § 76.924(c).                      signed to and allocated among the
  (2) Costs of programming and re-            service cost categories and the equip-
transmission consent fees shall be di-        ment basket, cable operators that have
rectly assigned or allocated only to the      aggregated costs at a higher level than
service cost category in which the pro-       the franchise level must identify all
gramming or broadcast signal at issue         applicable costs at the franchise level
is offered.                                   in the following manner:
  (3) Costs of franchise fees shall be al-
                                                (1) Recoverable costs that have been
located among the equipment basket
                                              identified at the highest organizational
and the service cost categories in a
                                              level at which costs have been identi-
manner that is most consistent with
                                              fied shall be allocated to the next
the methodology of assessment of fran-
                                              (lower) organizational level at which
chise fees by local authorities.
                                              recoverable costs have been identified
  (4) Costs of public, educational, and
                                              on the basis of the ratio of the total
governmental access channels carried
                                              number of subscribers served at the
on the basic tier shall be directly as-
                                              lower level to the total number of sub-
signed to the basic tier where possible.
                                              scribers served at the higher level.
  (5) Commission cable television sys-
tem regulatory fees imposed pursuant            (2) Cable operators shall repeat the
to 47 U.S.C. 159 shall be directly as-        procedure specified in paragraph (g)(1)
signed to the basic service tier.             of this section at every organizational
  (6) All other costs that are incurred       level at which recoverable costs have
exclusively to support the equipment          been identified until such costs have
basket or a specific service cost cat-        been allocated to the franchise level.
egory shall be directly assigned to that        (h) Part-time channels. In situations
service cost category or the equipment        where a single channel is divided on a
basket where possible.                        part-time basis and is used to deliver
  (7) Costs that are not directly as-         service associated with different tiers
signed shall be allocated to the service      or with pay per channel or pay per view
cost categories in accordance with the        service, a reasonable and documented
following allocation procedures:              allocation of that channel between
  (i) Wherever possible, common costs         services shall be required along with
for which no allocator has been speci-        the associated revenues and costs.
fied by the Commission are to be allo-          (i) Transactions and affiliates. Adjust-
cated among the service cost cat-             ments on account of external costs and
egories and the equipment basket              rates set on a cost-of-service basis shall
based on direct analysis of the origin of     exclude any amounts not calculated in
the costs.                                    accordance with the following:
  (ii) Where allocation based on direct         (1) Charges for assets purchased by or
analysis is not possible, common costs        transferred to the regulated activity of
for which no allocator has been speci-        a cable operator from affiliates shall
fied by the Commission shall, if pos-         equal the invoice price if that price is
sible, be allocated among the service         determined by a prevailing company
costs categories and the equipment            price. The invoice price is the prevail-
basket based on indirect, cost-causa-         ing company price if the affiliate has
tive linkage to other costs directly as-      sold a substantial number of like assets

                                          613
§ 76.925                                                47 CFR Ch. I (10–1–98 Edition)

to nonaffiliates. If a prevailing com-       allocated between them in accordance
pany price for the assets received by        with paragraph (f) of this section.
the regulated activity is not available,
                                             [58 FR 29753, May 21, 1993, as amended at 59
the changes for such assets shall be the
                                             FR 17990, Apr. 15, 1994; 59 FR 53115, Oct. 21,
lower of their cost to the originating       1994; 60 FR 35865, July 12, 1995; 61 FR 9367,
activity of the affiliated group less all    Mar. 8, 1996]
applicable valuation reserves, or their
fair market value.                             EFFECTIVE DATE NOTE: At 61 FR 9367, Mar.
  (2) The proceeds from assets sold or       8, 1996, in § 76.924, the section heading and
                                             paragraphs (e)(1)(iii) and (2)(iii) were revised;
transferred from the regulated activity
                                             (e)(1)(iv), (v), (2)(iv), and (v) were removed.
of the cable operator to affiliates shall    This amendment contains information col-
equal the prevailing company price if        lection and recordkeeping requirements and
the cable operator has sold a substan-       will not become effective until approval has
tial number of like assets to nonaffili-     been given by the Office of Management and
ates. If a prevailing company price is       Budget.
not available, the proceeds from such
sales shall be determined at the higher      § 76.925 Costs      of   franchise     require-
of cost less all applicable valuation re-         ments.
serves, or estimated fair market value         (a) Franchise requirement costs may
of the asset.                                include cost increases required by the
  (3) Charges for services provided to       franchising authority in the following
the regulated activity of a cable opera-     categories:
tor by an affiliate shall equal the in-
                                               (1) Costs of providing PEG access
voice price if that price is determined
by a prevailing company price. The in-       channels;
voice price is the prevailing company          (2) Costs of PEG access programming;
price if the affiliate has sold like serv-     (3) Costs of technical and customer
ices to a substantial number of non-         service standards to the extent that
affiliates. If a prevailing company price    they exceed federal standards;
for the services received by the regu-         (4) Costs of institutional networks
lated activity is not available, the         and the provision of video services,
charges of such services shall be at         voice transmissions and data trans-
cost.                                        missions to or from governmental in-
  (4) The proceeds from services sold or     stitutions and educational institutions,
transferred from the regulated activity      including private schools, to the extent
of the cable operator to affiliates shall    such services are required by the fran-
equal the prevailing company price if        chise agreement; and
the cable operator has sold like serv-         (5) When the operator is not already
ices to a substantial number of non-         in the process of upgrading the system,
affiliates. If a prevailing company price    costs of removing cable from utility
is not available, the proceeds from such     poles and placing the same cable un-
sales shall be determined at cost.           derground.
  (5) For purposes of § 76.924(i)(1)           (b) The costs of satisfying franchise
through 76.924(i)(4), costs shall be de-     requirements to support public, edu-
termined in accordance with the stand-       cational, and governmental channels
ards and procedures specified in § 76.922
                                             shall consist of the sum of:
and paragraphs (b) and (d) of this sec-
                                               (1) All per channel costs for the num-
tion.
  (j) Unrelated expenses and revenues.       ber of channels used to meet franchise
Cable operators shall exclude from cost      requirements for public, educational,
categories used to develop rates for the     and governmental channels;
provision of regulated cable service,          (2) Any direct costs of meeting such
equipment, and leased commercial ac-         franchise requirements; and
cess, any direct or indirect expenses          (3) A reasonable allocation of general
and revenues not related to the provi-       and administrative overhead.
sion of such services. Common costs of         (c) The costs of satisfying any re-
providing regulated cable service,           quirements under the franchise other
equipment, and leased commercial ac-         than PEG access costs shall consist of
cess and unrelated activities shall be       the direct and indirect costs including

                                         614
Federal Communications Commission                                                    § 76.933

a reasonable allocation of general and                (c) A list of all services included in
administrative overhead.                            the basic service tier.
[58 FR 29753, May 21, 1993, as amended at 60        [58 FR 46735, Sept. 2, 1993]
FR 52119, Oct. 5, 1995]
  EFFECTIVE DATE NOTE: At 60 FR 52119, Oct.
                                                    § 76.932 Notification of proposed rate
                                                         increase.
5, 1995, in § 76.925, paragraphs (a) and (b) were
redesignated as (b) and (c); a new (a) was             A cable operator shall provide writ-
added; a new (c) was revised. This amend-           ten notice to a subscriber of any in-
ment contains information collection and            crease in the price to be charged for
recordkeeping requirements and will not be-         the basic service tier or associated
come effective until 30 days after approval         equipment at least 30 days before any
has been given by the Office of Management
and Budget.
                                                    proposed increase is effective. The no-
                                                    tice should include the name and ad-
§ 76.930 Initiation of review of basic              dress of the local franchising author-
     cable service and equipment rates.             ity.
   A cable operator shall file its sched-           § 76.933 Franchising authority review
ule of rates for the basic service tier                  of basic cable rates and equipment
and associated equipment with a fran-                    costs.
chising authority within 30 days of re-                (a) After a cable operator has submit-
ceiving written notification from the               ted for review its existing rates for the
franchising authority that the fran-                basic service tier and associated equip-
chising authority has been certified by             ment costs, or a proposed increase in
the Commission to regulate rates for                these rates (including increases in the
the basic service tier. Basic service and           baseline channel change that results
equipment rate schedule filings for ex-             from reductions in the number of chan-
isting rates or proposed rate increases             nels in a tier) under the quarterly rate
(including increases in the baseline                adjustment system pursuant to Section
channel change that results from re-                76.922(d), the existing rates will remain
ductions in the number of channels in               in effect or the proposed rates will be-
a tier) must use the appropriate offi-              come effective after 30 days from the
cial FCC form, a copy thereof, or a                 date of submission; Provided, however,
copy generated by FCC software. Fail-               that the franchising authority may toll
ure to file on the official FCC form, a             this 30-day deadline for an additional
copy thereof, or a copy generated by                time by issuing a brief written order as
FCC software, may result in the impo-               described in paragraph (b) within 30
sition    of   sanctions   specified   in           days of the rate submission explaining
§ 76.937(d). A cable operator shall in-             that it needs additional time to review
clude rate cards and channel line-ups               the rates.
with its filing and include an expla-                  (b) If the franchising authority is un-
nation of any discrepancy in the fig-               able to determine, based upon the ma-
ures provided in these documents and                terial submitted by the cable operator,
its rate filing.                                    that the existing, or proposed rates
[59 FR 17973, Apr. 15, 1994]                        under the quarterly adjustment system
                                                    pursuant to Section 76.922(d), are with-
§ 76.931 Notification of basic tier avail-          in the Commission’s permitted basic
     ability.                                       service tier charge or actual cost of
   A cable operator shall provide writ-             equipment as defined in §§ 76.922 and
ten notification to subscribers of the              76.923, or if a cable operator has sub-
availability of basic tier service by No-           mitted a cost-of-service showing pursu-
vember 30, 1993, or three billing cycles            ant §§ 76.937(c) and 76.924, seeking to
from September 1, 1993, and to new sub-             justify a rate above the Commission’s
scribers at the time of installation.               basic service tier charge as defined in
This notification shall include the fol-            §§ 76.922 and 76.923, the franchising au-
lowing information:                                 thority may toll the 30-day deadline in
   (a) That basic tier service is avail-            paragraph (a) of this section to request
able;                                               and/or consider additional information
   (b) The cost per month for basic tier            or to consider the comments from in-
service;                                            terested parties as follows:

                                                615
§ 76.933                                               47 CFR Ch. I (10–1–98 Edition)

  (1) For an additional 90 days in cases     tor or franchising authority may seek
not involving cost-of-service showings;      reconsideration of the ruling pursuant
or                                           to § 1.106(a)(1) of this chapter or review
  (2) For an additional 150 days in cases    by the Commission pursuant to
involving cost-of-service showings.          § 1.115(a) of this chapter.
  (c) If a franchising authority has            (e) Notwithstanding paragraphs (a)
availed itself of the additional 90 or 150   through (d) of this section, when the
days permitted in paragraph (b) of this      franchising authority is regulating
section, and has taken no action within      basic service tier rates, a cable opera-
these additional time periods, then the      tor that sets its rates pursuant to the
proposed rates will go into effect at the    quarterly rate adjustment system pur-
end of the 90 or 150 day periods, or ex-     suant to § 76.922(d) may increase its
isting rates will remain in effect at        rates for basic service to reflect the
such times, subject to refunds if the        imposition of, or increase in, franchise
franchising authority subsequently           fees or Commission cable television
issues a written decision disapproving       system regulatory fees imposed pursu-
any portion of such rates: Provided,         ant to 47 U.S.C. 159. For the purposes of
however, That in order to order refunds,     paragraphs (a) through (c) of this sec-
a franchising authority must have            tion, the increased rate attributable to
issued a brief written order to the cable    Commission regulatory fees or fran-
operator by the end of the 90 or 150-day     chise fees shall be treated as an ‘‘exist-
period permitted in paragraph (b) of         ing rate’’, subject to subsequent review
this section directing the operator to       and refund if the franchising authority
keep an accurate account of all              determines that the increase in basic
amounts received by reason of the rate       tier rates exceeds the increase in regu-
in issue and on whose behalf such            latory fees or in franchise fees alloca-
amounts were paid.                           ble to the basic tier. This determina-
  (d) A franchising authority may re-        tion shall be appealable to the Com-
quest, pursuant to a petition for spe-       mission pursuant to § 76.944. When the
cial relief under § 76.7, that the Com-      Commission is regulating basic service
mission examine a cable operator’s           tier rates pursuant to § 76.945 or cable
cost-of-service showing, submitted to        programming service rates pursuant to
the franchising authority as justifica-      § 76.960, an increase in those rates re-
tion of basic tier rates, within 30 days     sulting from franchise fees or Commis-
of receipt of a cost-of-service showing.     sion regulatory fees shall be reviewed
In its petition, the franchising author-     by the Commission pursuant to the
ity shall document its reasons for seek-     mechanisms set forth in § 76.945. A
ing Commission assistance. The fran-         cable operator must adjust its rates to
chising authority shall issue an order       reflect decreases in franchise fees or
stating that it is seeking Commission        Commission regulatory fees within the
assistance and serve a copy before the       periods set forth in § 76.922(d)(3)(i),(iii).
30-day deadline on the cable operator           (f) For an operator that sets its rates
submitting the cost showing. The cable       pursuant to the quarterly rate adjust-
operator shall deliver a copy of the         ment system pursuant to Section
cost showing, together with all rel-         76.922(d), cable television system regu-
evant attachments, to the Commission         latory fees assessed by the Commission
within 15 days of receipt of the local       pursuant to 47 U.S.C. § 159 shall be re-
authority’s notice to seek Commission        covered in monthly installments dur-
assistance. The Commission shall no-         ing the fiscal year following the year
tify the local franchising authority and     for which the payment was imposed.
the cable operator of its ruling and of      Payments shall be collected in equal
the basic tier rate, as established by       monthly installments, except that for
the Commission. The rate shall take ef-      so many months as may be necessary
fect upon implementation by the fran-        to avoid fractional payments, an addi-
chising authority of such ruling and re-     tional $0.01 payment per month may be
fund liability shall be governed there-      collected. All such additional pay-
on. The Commission’s ruling shall be         ments shall be collected in the last
binding on the franchising authority         month or months of the fiscal year, so
and the cable operator. A cable opera-       that once collections of such payments

                                         616
Federal Communications Commission                                               § 76.933

begin there shall be no month remain-        rate reduction and refund if the fran-
ing in the year in which the operator is     chising authority subsequently issues a
not entitled to such an additional pay-      written decision disapproving any por-
ment. Operators may not assess inter-        tion of such rates, provided, however,
est. Operators may provide notice of         that in order to order a prospective
the entire fiscal year’s regulatory fee      rate reduction and refund, if an opera-
pass-through in a single notice.             tor inquires as to whether the franchis-
   (g) A cable operator that submits for     ing authority intends to issue a rate
review a proposed change in its exist-       order after the initial review period,
ing rates for the basic service tier and     the franchising authority or its des-
associated equipment costs using the         ignee must notify the operator of its
annual filing system pursuant to Sec-        intent in this regard within 15 days of
tion 76.922(e) shall do so no later than     the operator’s inquiry. If a proposed
90 days from the effective date of the       rate goes into effect before the fran-
proposed rates. The franchising author-      chising authority issues its rate order,
ity will have 90 days from the date of       the franchising authority will have 12
the filing to review it. However, if the     months from the date the operator
franchising authority or its designee        filed for the rate adjustment to issue
concludes that the operator has sub-         its rate order. In the event that the
mitted a facially incomplete filing, the     franchising authority does not act
franchising authority’s deadline for         within this 12-month period, it may not
issuing a decision, the date on which        at a later date order a refund or a pro-
rates may go into effect if no decision
                                             spective rate reduction with respect to
is issued, and the period for which re-
                                             the rate filing.
funds are payable will be tolled while
                                                (3) At the time an operator files its
the franchising authority is waiting for
this information, provided that, in          rates with the franchising authority,
order to toll these effective dates, the     the operator may give customers no-
franchising authority or its designee        tice of the proposed rate changes. Such
must notify the operator of the incom-       notice should state that the proposed
plete filing within 45 days of the date      rate change is subject to approval by
the filing is made.                          the franchising authority. If the opera-
   (1) If there is a material change in an   tor is only permitted a smaller in-
operator’s circumstances during the 90-      crease than was provided for in the no-
day review period and the change af-         tice, the operator must provide an ex-
fects the operator’s rate change filing,     planation to subscribers on the bill in
the operator may file an amendment to        which the rate adjustment is imple-
its Form 1240 prior to the end of the 90-    mented. If the operator is not per-
day review period. If the operator files     mitted to implement any of the rate
such an amendment, the franchising           increase that was provided for in the
authority will have at least 30 days to      notice, the operator must provide an
review the filing. Therefore, if the         explanation to subscribers within 60
amendment is filed more than 60 days         days of the date of the franchising
after the operator made its initial fil-     authority’s decision. Additional ad-
ing, the operator’s proposed rate            vance notice is only required in the un-
change may not go into effect any ear-       likely event that the rate exceeds the
lier than 30 days after the filing of its    previously noticed rate.
amendment. However, if the operator             (4) If an operator files for a rate ad-
files its amended application on or          justment             under          Section
prior to the sixtieth day of the 90-day      76.922(e)(2)(iii)(B) for the addition of re-
review period, the operator may imple-       quired channels to the basic service
ment its proposed rate adjustment, as        tier that the operator is required by
modified by the amendment, 90 days           federal or local law to carry, or, if a
after its initial filing.                    single-tier operator files for a rate ad-
   (2) If a franchising authority has        justment based on a mid-year channel
taken no action within the 90-day re-        addition      allowed      under    Section
view period, then the proposed rates         76.922(e)(2)(iii)(C), the franchising au-
may go into effect at the end of the re-     thority has 60 days to review the re-
view period, subject to a prospective        quested rate. The proposed rate shall

                                         617
§ 76.934                                               47 CFR Ch. I (10–1–98 Edition)

take effect at the end of this 60-day pe-   scribed in paragraph (g)(1) of this sec-
riod unless the franchising authority       tion.
rejects the proposed rate as unreason-      [58 FR 29753, May 21, 1993, as amended at 59
able. In order to order refunds and pro-    FR 17973, Apr. 15, 1994; 59 FR 53115, Oct. 21,
spective rate reductions, the franchis-     1994; 60 FR 52119, Oct. 5, 1995; 61 FR 18978,
ing authority shall be subject to the re-   Apr. 30, 1996]
quirements described in paragraph              EFFECTIVE DATE NOTE: At 60 FR 52119, Oct.
(g)(1) of this section.                     5, 1995, in § 76.933, paragraphs (a), (b), (e), and
   (5) Notwithstanding paragraphs (a)       (f) were revised; (g) and (h) were added. This
                                            amendment contains information collection
through (f) of this section, when the       and recordkeeping requirements and will not
franchising authority is regulating         become effective until 30 days after approval
basic service tier rates, a cable opera-    has been given by the Office of Management
tor may increase its rates for basic        and Budget.
service to reflect the imposition of, or
increase in, franchise fees. The in-        § 76.934 Small systems and small cable
                                                 companies.
creased rate attributable to Commis-
sion regulatory fees or franchise fees         (a) For purposes of rules governing
shall be subject to subsequent review       the reasonableness of rates charged by
and refund if the franchising authority     small systems, the size of a system or
                                            company shall be determined by ref-
determines that the increase in basic
                                            erence to its size as of the date the sys-
tier rates exceeds the increase in regu-
                                            tem files with its franchising authority
latory fees or in franchise fees alloca-    or the Commission the documentation
ble to the basic tier. This determina-      necessary to qualify for the relief
tion shall be appealable to the Com-        sought or, at the option of the com-
mission pursuant to § 76.944. When the      pany, by reference to system or com-
Commission is regulating basic service      pany size as of the effective date of this
tier rates pursuant to § 76.945 or cable    paragraph. Where relief is dependent
programming service rates pursuant to       upon the size of both the system and
§ 76.960, an increase in those rates re-    the company, the operator must meas-
sulting from franchise fees or Commis-      ure the size of both the system and the
sion regulatory fees shall be reviewed      company as of the same date. A small
by the Commission pursuant to the           system shall be considered affiliated
mechanisms set forth in § 76.945.           with a cable company if the company
   (h) If an operator files an FCC Form     holds a 20 percent or greater equity in-
1205 for the purpose of setting the rate    terest in the system or exercises de
for a new type of equipment under Sec-      jure control over the system.
                                               (b) A franchising authority that has
tion 76.923(o), the franchising authority
                                            been certified, pursuant to § 76.910, to
has 60 days to review the requested         regulate rates for basic service and as-
rate. The proposed rate shall take ef-      sociated equipment may permit a
fect at the end of this 60-day period un-   small system as defined in § 76.901 to
less the franchising authority rejects      certify that the small system’s rates
the proposed rate as unreasonable.          for basic service and associated equip-
   (1) If the operator’s most recent rate   ment comply with § 76.922, the Commis-
filing was based on the system that en-     sion’s substantive rate regulations.
ables them to file up to once per quar-        (c) Initial regulation of small sys-
ter found at Section 76.922(d), the fran-   tems:
chising authority must issue an ac-            (1) If certified by the Commission, a
counting order before the end of the 60-    local franchising authority may pro-
day period in order to order refunds        vide an initial notice of regulation to a
and prospective rate reductions.            small system, as defined by § 76.901(c),
   (2) If the operator’s most recent rate   on May 15, 1994. Any initial notice of
filing was based on the annual rate sys-    regulation issued by a certified local
                                            franchising authority prior to May 15,
tem at Section 76.922(e), in order to
                                            1994 shall be considered as having been
order refunds and prospective rate re-
                                            issued on May 15, 1994.
ductions, the franchising authority            (2) The Commission will accept com-
shall be subject to the requirements de-    plaints concerning the rates for cable

                                        618
Federal Communications Commission                                            § 76.934

programming service tiers provided by         (g) Alternative rate regulation agree-
small systems on or after May 15, 1994.     ments:
Any complaints filed with the Commis-         (1) Local franchising authorities, cer-
sion about the rates for a cable pro-       tified pursuant to § 76.910, and small
gramming service tier provided by a         systems owned by small cable compa-
small system prior to May 15, 1994 shall    nies may enter into alternative rate
be considered as having been filed on       regulation agreements affecting the
May 15, 1994.                               basic service tier and the cable pro-
  (3) A small system that receives an       gramming service tier.
initial notice of regulation from its         (i) Small systems must file with the
local franchising authority, or a com-      Commission a copy of the operative al-
plaint filed with the Commission for its    ternative rate regulation agreement
cable programming service tier, must        within 30 days after its effective date.
respond within the time periods pre-          (ii) [Reserved]
scribed in §§ 76.930 and 76.956.              (2) Alternative rate regulation agree-
  (d) Statutory period for filing initial   ments affecting the basic service tier
complaint: A complaint concerning a         shall take into account the following:
rate for cable programming service or         (i) The rates for cable systems that
associated equipment provided by a          are subject to effective competition;
small system that was in effect on May        (ii) The direct costs of obtaining,
15, 1994 must be filed within 180 days      transmitting, and otherwise providing
from May 15, 1994.                          signals carried on the basic service
  (e) Petitions for extension of time:      tier, including signals and services car-
Small systems may obtain an exten-          ried on the basic service tier, pursuant
sion of time to establish compliance        to §§ 76.56 and 76.64 of this subpart, and
with rate regulations provided they         changes in such costs;
can demonstrate that timely compli-           (iii) Only such portion of the joint
ance would result in severe economic        and common costs of obtaining, trans-
hardship. Requests for extension of         mitting, and otherwise providing such
time should be addressed to the local       signals as is determined to be reason-
franchising authority concerning basic      ably and properly allocable to the basic
service and equipment rates and to the      service tier, and changes in such costs;
Commission concerning rates for a             (iv) The revenues received by a cable
cable programming service tier and as-      operator from advertising from pro-
sociated equipment. The filing of a re-     gramming that is carried as part of the
quest for an extension of time to com-      basic service tier or from other consid-
ply with the rate regulations will not      eration obtained in connection with
toll the effective date of rate regula-     the basic service tier;
tion for small systems or alter refund        (v) The reasonably and properly allo-
liability for rates that exceed per-        cable portion of any amount assessed
mitted levels after May 15, 1994.           as a franchise fee, tax, or charge of any
  (f) Small Systems Owned by Small Cable    kind imposed by any State or local au-
Companies. Small systems owned by           thority on the transactions between
small cable companies shall have 90         cable operators and cable subscribers
days from their initial date of regula-     or any other fee, tax, or assessment of
tion on a tier to bring their rates for     general applicability imposed by a gov-
that tier into compliance with the re-      ernmental entity applied against cable
quirements of Sections 76.922 and           operators or cable subscribers;
76.923. Such systems shall have sixty         (vi) Any amount required to satisfy
days from the initial date of regulation    franchise requirements to support pub-
to file FCC Forms 1200, 1205, 1210, 1211,   lic, educational, or governmental chan-
1215, 1220, 1225, 1230, and 1240 and any    nels or the use of such channels or any
similar forms as appropriate. Rates es-     other services required under the fran-
tablished during the 90-day period shall    chise; and
not be subject to prior approval by           (vii) A reasonable profit. The rate
franchising authorities or the Commis-      agreed to in such an alternative rate
sion, but shall be subject to refund pur-   regulation agreement shall be deemed
suant to sections 76.942 and 76.961.        to be a reasonable rate.

                                        619
§ 76.934                                              47 CFR Ch. I (10–1–98 Edition)

  (3) Alternative rate regulation agree-     pany cost-of-service methodology de-
ments affecting the cable programming        scribed below.
service tier shall take into account,           (2) The maximum annual per sub-
among other factors, the following:          scriber rate permitted initially by the
  (i) The rates for similarly situated       small cable company cost-of-service
cable systems offering comparable            methodology shall be calculated by
cable programming services, taking           adding
into account similarities in facilities,        (i) The system’s annual operating ex-
regulatory and governmental costs, the       penses to
number of subscribers, and other rel-           (ii) The product of its net rate base
evant factors;                               and its rate of return, and then divid-
  (ii) The rates for cable systems, if       ing that sum by (iii) the product of
any, that are subject to effective com-         (A) The total number of channels car-
petition;                                    ried on the system’s basic and cable
  (iii) The history of the rates for cable   programming service tiers and
programming services of the system,             (B) The number of subscribers. The
including the relationship of such rates     annual rate so calculated must then be
to changes in general consumer prices;       divided by 12 to arrive at a monthly
  (iv) The rates, as a whole, for all the    rate.
cable programming, cable equipment,             (3) The system shall calculate its
and cable services provided by the sys-      maximum permitted rate as described
tem, other than programming provided         in paragraph (b) of this section by com-
on a per channel or per program basis;       pleting Form 1230. The system shall
  (v) Capital and operating costs of the     file Form 1230 as follows:
cable system, including the quality and         (i) Where the franchising authority
costs of the customer service provided       has been certified by the Commission
by the cable system; and                     to regulate the system’s basic service
  (vi) The revenues received by a cable      tier rates, the system shall file Form
operator from advertising from pro-          1230 with the franchising authority.
gramming that is carried as part of the         (ii) Where the Commission is regulat-
service for which a rate is being estab-     ing the system’s basic service tier
lished, and changes in such revenues,        rates, the system shall file Form 1230
or from other considerations obtained        with the Commission.
in connection with the cable program-           (iii) Where a complaint about the
ming services concerned. The rate            system’s cable programming service
agreed to in such an alternative rate        rates is filed with the Commission, the
regulation agreement shall be deemed         system shall file Form 1230 with the
to be a reasonable rate.                     Commission.
  (4) Certified local franchising au-           (4) In completing Form 1230:
thorities shall provide a reasonable op-        (i) The annual operating expenses re-
portunity for consideration of the           ported by the system shall equal the
views of interested parties prior to fi-     system’s operating expenses allocable
nally entering into an alternative rate      to its basic and cable programming
regulation agreement.                        service tiers for the most recent 12
  (5) A basic service rate decision by a     month period for which the system has
certified local franchising authority        the relevant data readily available, ad-
made pursuant to an alternative rate         justed for known and measurable
regulation agreement may be appealed         changes occurring between the end of
by an interested party to the Commis-        the 12 month period and the effective
sion pursuant to § 76.944 as if the deci-    date of the rate. Expenses shall include
sion were made according to §§ 76.922        all regular expenses normally incurred
and 76.923.                                  by a cable operator in the provision of
  (h) Small system cost-of-service           regulated cable service, but shall not
showings:                                    include any lobbying expense, chari-
  (1) At any time, a small system            table contributions, penalties and fines
owned by a small cable company may           paid one account of statutes or rules,
establish new rates, or justify existing     or membership fees in social service,
rates, for regulated program services in     recreational or athletic clubs or asso-
accordance with the small cable com-         ciations.

                                         620
Federal Communications Commission                                            § 76.934

  (ii) The net rate base of a system is     judging the validity of methods used
the value of all of the system’s assets,    for calculating its operating costs, rate
less depreciation.                          base, and rate of return. If the maxi-
  (iii) The rate of return claimed by       mum rate established in Form 1230
the system shall reflect the operator’s     does not exceed $1.24 per channel, any
actual cost of debt, its cost of equity,    request for information by the fran-
or an assumed cost of equity, and its       chising authority shall be limited to
capital structure, or an assumed cap-       existing relevant documents or other
ital structure.                             data compilations and should not re-
  (iv) The number of subscribers re-        quire the operator to create docu-
ported by the system shall be cal-          ments, although the operator should
culated according to the most recent        replicate responsive documents that
reliable data maintained by the sys-        are missing or destroyed.
tem.                                          (iii) A system may file with the Cable
  (v) The number of channels reported       Services Bureau an interlocutory ap-
by the system shall be the number of        peal from any decision by the franchis-
channels it has on its basic and cable      ing authority requesting information
programming service tiers on the day        from the system or tolling the effective
it files Form 1230.                         date of a system’s proposed rates. The
  (vi) In establishing its operating ex-    appeal may be made by an informal
penses, net rate base, and reasonable       letter to the Chief of the Cable Serv-
rate of return, a system may rely on        ices Bureau, served on the franchising
previously existing information such as
                                            authority. The franchising authority
tax forms or company financial state-
                                            must respond within seven days of its
ments, rather than create or recreate
                                            receipt of the appeal and shall serve
financial calculations. To the extent
                                            the operator with its response. The op-
existing information is incomplete or
                                            erator shall have four days from its re-
otherwise insufficient to make exact
                                            ceipt of the response in which to file a
calculations, the system may establish
                                            reply, if desired. If the maximum rate
its operating expenses, net rate base,
                                            established on Form 1230 does not ex-
and reasonable rate of return on the
                                            ceed $1.24 per channel, the burden shall
basis of reasonable, good faith esti-
                                            be on the franchising authority to
mates.
  (5) After the system files Form 1230,     show the reasonableness of its order. If
review by the franchising authority, or     the maximum rate established on Form
the Commission when appropriate,            1230 exceeds $1.24 per channel, the bur-
shall be governed by § 76.933, subject to   den shall be on the operator to show
the following conditions.                   the unreasonableness of the order.
  (i) If the maximum rate established         (iv) In reviewing Form 1230 and
on Form 1230 does not exceed $1.24 per      issuing a decision, the franchising au-
channel, the rate shall be rebuttably       thority shall determine the reasonable-
presumed reasonable. To disallow such       ness of the maximum rate permitted by
a rate, the franchising authority shall     the form, not simply the rate which
bear the burden of showing that the op-     the operator intends to establish.
erator did not reasonably interpret and       (v) A final decision of the franchising
allocate its cost and expense data in       authority with respect to the requested
deriving its annual operating expenses,     rate shall be subject to appeal pursuant
its net rate base, and a reasonable rate    to § 76.944. The filing of an appeal shall
of return. If the maximum rate estab-       stay the effectiveness of the final deci-
lished on Form 1230 exceeds $1.24 per       sion pending the disposition of the ap-
channel, the franchising authority          peal by the Commission. An operator
shall bear such burden only if the rate     may bifurcate its appeal of a final rate
that the cable operator actually seeks      decision by initially limiting the scope
to charge does not exceed $1.24 per         of the appeal to the reasonableness of
channel.                                    any request for information made by
  (ii) In the course of reviewing Form      the franchising authority. The opera-
1230, a franchising authority shall be      tor may defer addressing the sub-
permitted to obtain from the cable op-      stantive rate-setting decision of the
erator the information necessary for        franchising authority until after the

                                        621
§ 76.934                                             47 CFR Ch. I (10–1–98 Edition)

Commission has ruled on the reason-         justments made prior to the effective
ableness of the request for information.    date of this rule shall be charged
At its option, the operator may forego      against the system’s Operator’s Cap
the bifurcated appeal and address both      and License Reserve Fee described in
the request for documentation and the       § 76.922(e)(3).
substantive rate-setting decision in a         (iii) The system may adjust its maxi-
single appeal. When filing an appeal        mum permitted rate by filing a new
from a final rate-setting decision by       Form 1230 that permits a higher rate.
the franchising authority, the operator        (iv) The system may adjust its maxi-
may raise as an issue the scope of the      mum permitted rate by complying with
request for information only if that re-    any of the options set forth in
quest was not approved by the Commis-       § 76.922(b)(1) for which it qualifies or
sion on a previous interlocutory appeal     under an alternative rate agreement as
by the operator.                            provided in paragraph (g) of this sec-
   (6) Complaints concerning the rates      tion.
charged for a cable programming serv-          (9) In any rate proceeding before a
ices tier by a system that has elected      franchising authority in which a final
the small cable company cost-of-serv-       decision had not been issued as of June
ice methodology may be filed pursuant       5, 1995, a small system owned by a
to § 76.957. Upon receipt of a complaint,   small cable company may elect the
the Commission shall review the sys-        form of rate regulation set forth in this
tem’s rates in accordance with the          section to justify the rates that are the
standards set forth above with respect      subject of the proceeding, if the system
to basic tier rates.                        and affiliated company were a small
   (7) Unless otherwise ordered by the      system and small company respec-
franchising authority or the Commis-        tively as of the June 5, 1995 and as of
sion, the system may establish its per      the period during which the disputed
channel rate at any level that does not     rates were in effect. However, the va-
exceed the maximum rate permitted by        lidity of a final rate decision made by
Form 1230, provided that the system         a franchising authority before June 5,
has given the required written notice       1995 is not affected.
to subscribers. If the system estab-           (10) In any proceeding before the
lishes its per channel rate at a level      Commission involving a cable program-
that is less than the maximum amount        ming services tier complaint in which
permitted by the form, it may increase      a final decision had not been issued as
rates at any time thereafter to the         of June 5, 1995, a small system owned
maximum amount upon providing the           by a small cable company may elect
required written notice to subscribers.     the form of rate regulation set forth in
   (8) After determining the maximum        this section to justify rates charged
rate permitted by Form 1230, the sys-       prior to the adoption of this rule and to
tem may adjust that rate in accord-         establish new rates. For purposes of
ance with this paragraph. Electing to       this paragraph, a decision shall not be
adjust rates pursuant to one of the op-     deemed final until the operator has ex-
tions set forth below shall not prohibit    hausted or is time-barred from pursu-
the system from electing a different        ing any avenue of appeal, review, or re-
option when adjusting rates thereafter.     consideration.
The system may adjust its maximum              (11) A system that is eligible to es-
permitted rate without adjusting the        tablish its rates in accordance with the
actual rate it charges subscribers.         small system cost-of-service approach
   (i) The system may adjust its maxi-      shall remain eligible for so long as the
mum permitted rate in accordance            system serves no more than 15,000 sub-
with the price cap requirements set         scribers. When a system that has estab-
forth in § 76.922(d).                       lished rates in accordance with the
   (ii) The system may adjust its maxi-     small system cost-of-service approach
mum permitted rate in accordance            exceeds 15,000 subscribers, the system
with the requirements set forth in          may maintain its then existing rates.
§ 76.922(e) for changes in the number of    After exceeding the 15,000 subscriber
channels on regulated tiers. For any        limit, any further rate adjustments
system that files Form 1230, no rate ad-    shall not reflect increases in external

                                        622
Federal Communications Commission                                                     § 76.938

costs, inflation or channel additions                 (b) For an existing or a proposed rate
until the system has re-established ini-           for basic tier service or associated
tial permitted rates in accordance with            equipment that is within the permitted
some other method of rate regulation               tier charge and actual cost of equip-
prescribed in this subpart.                        ment as set forth in §§ 76.922 and 76.923,
                                                   the cable operator must submit the ap-
[60 FR 35865, July 12, 1995, as amended at 60
                                                   propriate FCC form.
FR 52120, Oct. 5, 1995; 62 FR 53576, Oct. 15,
1997]                                                 (c) For an existing or a proposed rate
                                                   for basic tier service that exceeds the
  EFFECTIVE DATE NOTE: At 60 FR 52120, Oct.        permitted tier charge as set forth in
5, 1995, in § 76.934, paragraph (f) was revised.
                                                   §§ 76.922 and 76.923, the cable operator
Paragraph (f) contains information collec-
tion and recordkeeping requirements and            must submit a cost-of-service showing
will not become effective until 30 days after      to justify the proposed rate.
approval has been given by the Office of              (d) A franchising authority or the
Management and Budget.                             Commission may find a cable operator
                                                   that does not attempt to demonstrate
§ 76.935 Participation        of   interested      the reasonableness of its rates in de-
     parties.                                      fault and, using the best information
  In order to regulate basic tier rates            available, enter an order finding the
or associated equipment costs, a fran-             cable operator’s rates unreasonable and
chising authority must have proce-                 mandating appropriate relief, as speci-
dural laws or regulations applicable to            fied in §§ 76.940, 76.941, and 76.942.
rate regulation proceedings that pro-                 (e) A franchising authority or the
vide a reasonable opportunity for con-             Commission may order a cable opera-
sideration of the views of interested              tor that has filed a facially incomplete
parties. Such rules must take into ac-             form to file supplemental information,
count the 30, 120, or 180-day time peri-           and the franchising authority’s dead-
ods that franchising authorities have              line to rule on the reasonableness of
to review rates under § 76.933.                    the proposed rates will be tolled pend-
                                                   ing the receipt of such information. A
§ 76.936 Written decision.                         franchising authority may set reason-
  (a) A franchising authority must                 able deadlines for the filing of such in-
issue a written decision in a rate-                formation, and may find the cable op-
making proceeding whenever it dis-                 erator in default and mandate appro-
approves an initial rate for the basic             priate relief, pursuant to paragraph (d)
service tier or associated equipment in            of this section, for the cable operator’s
whole or in part, disapproves a request            failure to comply with the deadline or
for a rate increase in whole or in part,           otherwise provide complete informa-
or approves a request for an increase in           tion in good faith.
whole or in part over the objections of            [58 FR 29753, May 21, 1993, as amended at 59
interested parties. A franchising au-              FR 17973, Apr. 15, 1994]
thority is not required to issue a writ-
ten decision that approves an unop-                § 76.938   Proprietary information.
posed existing or proposed rate for the              A franchising authority may require
basic service tier or associated equip-            the production of proprietary informa-
ment.                                              tion to make a rate determination in
  (b) Public notice must be given of               those cases where cable operators have
any written decision required in para-             submitted initial rates, or have pro-
graph (a) of this section, including re-           posed rate increases, pursuant to an
leasing the text of any written decision           FCC Form 393 (and/or FCC Forms 1200/
to the public.                                     1205) filing or a cost-of-service showing.
                                                   The franchising authority shall state a
§ 76.937 Burden of proof.                          justification for each item of informa-
  (a) A cable operator has the burden of           tion requested and, where related to an
proving that its existing or proposed              FCC Form 393 (and/or FCC Forms 1200/
rates for basic service and associated             1205) filing, indicate the question or
equipment comply with 47 U.S.C. 543,               section of the form to which the re-
and §§ 76.922 and 76.923.                          quest specifically relates. Upon request

                                               623
§ 76.939                                             47 CFR Ch. I (10–1–98 Edition)

to the franchising authority, the par-      rates and the sum of the new
ties to a rate proceeding shall have ac-    unbundled program service charge(s)
cess to such information, subject to the    and the new unbundled equipment
franchising authority’s procedures gov-     charge(s). Where an operator was
erning non-disclosure by the parties.       charging separately for program serv-
Public access to such proprietary infor-    ices and equipment but the rates were
mation shall be governed by applicable      not in compliance with the Commis-
state or local law.                         sion’s rules, the operator’s refund li-
[59 FR 17973, Apr. 15, 1994]                ability shall be based on the difference
                                            between the sum of the old charges and
§ 76.939 Truthful written statements        the sum of the new, unbundled program
     and responses to requests of fran-     service and equipment charges. Before
     chising authority.                     ordering a cable operator to refund pre-
   Cable operators shall comply with        viously paid rates to subscribers, a
franchising authorities’ and the Com-       franchising authority (or the Commis-
mission’s requests for information, or-     sion) must give the operator notice and
ders, and decisions. No cable operator      opportunity to comment.
shall, in any information submitted to        (b) An operator’s liability for refunds
a franchising authority or the Commis-      in limited to a one-year period, except
sion in making a rate determination         that an operator that fails to comply
pursuant to an FCC Form 393 (and/or         with a valid rate order issued by a fran-
FCC Forms 1200/1205) filing or a cost-of-
                                            chising authority or the Commission
service showing, make any misrepre-
                                            shall be liable for refunds commencing
sentation or willful material omission
                                            from the effective date of such order
bearing on any matter within the fran-
                                            until such time as it complies with
chising authority’s or the Commis-
                                            such order.
sion’s jurisdiction.
                                              (c) The refund period shall run as fol-
[59 FR 17974, Apr. 15, 1994]                lows:
                                              (1) From the date the operator imple-
§ 76.940 Prospective rate reduction.
                                            ments a prospective rate reduction
   A franchising authority may order a      back in time to September 1, 1993, or
cable operator to implement a reduc-        one year, whichever is shorter.
tion in basic service tier or associated      (2) From the date a franchising au-
equipment rates where necessary to          thority issues an accounting order pur-
bring rates into compliance with the        suant to § 76.933(c), to the date a pro-
standards set forth in §§ 76.922 and
                                            spective rate reduction is issued, then
76.923
                                            back in time from the date of the ac-
§ 76.941 Rate prescription.                 counting order to the effective date of
                                            the rules; however, the total refund pe-
   A franchising authority may pre-
                                            riod shall not exceed one year from the
scribe a reasonable rate for the basic
                                            date of the accounting order.
service tier or associated equipment
after it determines that a proposed           (3) Refund liability shall be cal-
rate is unreasonable.                       culated on the reasonableness of the
                                            rates as determined by the rules in ef-
§ 76.942 Refunds.                           fect during the period under review by
   (a) A franchising authority (or the      the franchising authority or the Com-
Commission, pursuant to § 76.945) may       mission.
order a cable operator to refund to sub-      (d) The cable operator, in its discre-
scribers that portion of previously paid    tion, may implement a refund in the
rates determined to be in excess of the     following manner:
permitted tier charge or above the ac-        (1) By returning overcharges to those
tual cost of equipment, unless the oper-    subscribers who actually paid the over-
ator has submitted a cost-of-service        charges, either through direct payment
showing which justifies the rate            or as a specifically identified credit to
charged as reasonable. An operator’s li-    those subscribers’ bills; or
ability for refunds shall be based on the     (2) By means of a prospective per-
difference between the old bundled          centage reduction in the rates for the

                                        624
Federal Communications Commission                                                     § 76.944

basic service tier or associated equip-            has such power under state or local
ment to cover the cumulative over-                 laws.
charge. This shall be reflected as a spe-             (b) If a cable operator willfully fails
cifically identified, one-time credit on           to comply with the terms of any fran-
prospective bills to the class of sub-             chising authority’s order, decision, or
scribers that currently subscribe to the           request for information, as required by
cable system.                                      § 76.939, the Commission may, in addi-
  (e) Refunds shall include interest               tion to other remedies, impose a for-
computed at applicable rates published             feiture pursuant to section 503(b) of the
by the Internal Revenue Service for tax            Communications Act of 1934, as amend-
refunds and additional tax payments.               ed, 47 U.S.C. 503(b).
  (f) Once an operator has implemented                (c) A cable operator shall not be sub-
a rate refund to subscribers in accord-            ject to forfeiture because its rate for
ance with a refund order by the fran-              basic service or equipment is deter-
chising authority (or the Commission,              mined to be unreasonable.
pursuant to paragraph (a) of this sec-             [58 FR 29753, May 21, 1993, as amended at 59
tion), the franchising authority must              FR 17974, Apr. 15, 1994]
return to the cable operator an amount
equal to that portion of the franchise             § 76.944 Commission review of fran-
fee that was paid on the total amount                   chising authority decisions on rates
                                                        for the basic service tier and associ-
of the refund to subscribers. The fran-                 ated equipment.
chising authority must promptly re-
turn the franchise fee overcharge ei-                 (a) The Commission shall be the sole
ther in an immediate lump sum pay-                 forum for appeals of decisions by fran-
ment, or the cable operator may deduct             chising authorities on rates for the
it from the cable system’s future fran-            basic service tier or associated equip-
chise fee payments. The franchising au-            ment involving whether or not a fran-
thority has the discretion to determine            chising authority has acted consist-
a reasonable repayment period, but in-             ently with the Cable Act or §§ 76.922 and
                                                   76.923. Appeals of ratemaking decisions
terest shall accrue on any outstanding
                                                   by franchising authorities that do not
portion of the franchise fee starting on
                                                   depend upon determining whether a
the date the operator has completed
                                                   franchising authority has acted con-
implementation of the refund order. In
                                                   sistently with the Cable Act or §§ 76.922
determining the amount of the refund,
                                                   and 76.923, may be heard in state or
the franchise fee overcharge should be
                                                   local courts.
offset against franchise fees the opera-
                                                      (b) Any participant at the franchis-
tor holds on behalf of the franchising
                                                   ing authority level in a ratemaking
authority for lump sum payment. The                proceeding may file an appeal of the
interest rate on any refund owed to the            franchising authority’s decision with
operator presumptively shall be 11.25%.            the Commission within 30 days of re-
[58 FR 29753, May 21, 1993, as amended at 58       lease of the text of the franchising
FR 46736, Sept. 2, 1993; 59 FR 17974, Apr. 15,     authority’s decision as computed under
1994; 60 FR 52120, Oct. 5, 1995]                   § 1.4(b) of this chapter. Appeals shall be
  EFFECTIVE DATE NOTE: At 60 FR 52120, Oct.        served on the franchising authority or
5, 1995, in § 76.942, paragraph (f) was revised.   other authority that issued the rate de-
Paragraph (f) contains information collec-         cision. Where the state is the appro-
tion and recordkeeping requirements and            priate decisionmaking authority, the
will not beecome effective until 30 days after     state shall forward a copy of the appeal
approval has been given by the Office of           to the appropriate local official(s). Op-
Management and Budget.                             positions may be filed within 15 days
                                                   after the appeals is filed, and must be
§ 76.943 Fines.                                    served on the party(ies) appealing the
  (a) A franchising authority may im-              rate decision. Replies may be filed 7
pose fines or monetary forfeitures on a            days after the last day for oppositions
cable operator that does not comply                and shall be served on the parties to
with a rate decision or refund order di-           the proceeding.
rected specifically at the cable opera-               (c) An operator that uses the annual
tor, provided the franchising authority            rate adjustment method under Section

                                               625
§ 76.945                                                    47 CFR Ch. I (10–1–98 Edition)

76.922(e) may include in its next true up        to service on both the petitioner and
under Section 76.922(e)(3) any amounts           the local franchising authority.
to which the operator would have been               (d) Filings proposing a rate not with-
entitled but for a franchising authority         in the rate regulation standards of
decision that is not upheld on appeal.           §§ 76.922 and 76.923, must be made 90
[58 FR 29753, May 21, 1993, as amended at 59     days before the requested effective
FR 17974, Apr. 15, 1994; 60 FR 52121, Oct. 5,    date. Petitions opposing such filings
1995]                                            must be filed within 30 days of public
  EFFECTIVE DATE NOTE: At 60 FR 52121, Oct.
                                                 notice of the filing, and be accom-
5, 1995, in § 76.944, paragraph (c) was added.   panied by a certificate that service was
Paragraph (c) contains information collec-       made on the cable operator and the
tion and recordkeeping requirements and          local franchising authority. The cable
will not become effective until 30 days after    operator may file an opposition within
approval has been given by the Office of         10 days of the filing of the petition, and
Management and Budget.                           certifying that service was made on the
                                                 petitioner and the local franchising au-
§ 76.945 Procedures for Commission
     review of basic service rates.              thority.
  (a) Upon assumption of rate regula-            [58 FR 29753, May 21, 1993, as amended at 59
tion authority, the Commission will              FR 17974, Apr. 15, 1994]
notify the cable operator and require
the cable operator to file its basic rate        § 76.946   Advertising of rates.
schedule with the Commission within                Cable operators that advertise rates
30 days, with a copy to the local fran-          for basic service and cable program-
chising authority.                               ming service tiers shall be required to
  (b) Basic service and equipment rate           advertise rates that include all costs
schedule filings for existing rates or           and fees. Cable systems that cover mul-
proposed rate increases (including in-           tiple franchise areas having differing
creases in the baseline channel change           franchise fees or other franchise costs,
that results from reductions in the              different channel line-ups, or different
number of channels in a tier) must use           rate structures may advertise a com-
the official FCC form, a copy thereof,           plete range of fees without specific
or a copy generated by FCC software.             identification of the rate for each indi-
Failure to file on the official FCC form         vidual area. In such circumstances, the
or a copy may result in the imposition           operator may advertise a ‘‘fee plus’’
of sanctions specified in § 76.937(d).           rate that indicates the core rate plus
Cable operators seeking to justify the           the range of possible additions, depend-
reasonableness of existing or proposed           ing on the particular location of the
rates above the permitted tier rate              subscriber.
must submit a cost-of-service showing
sufficient to support a finding that the         [59 FR 17974, Apr. 15, 1994]
rates are reasonable.
                                                 § 76.950 Complaints regarding         cable
  (c) Filings proposing annual adjust-
                                                      programming service rates.
ments or rates within the rates regula-
tion standards in §§ 76.922 and 76.923,            (a) A franchising authority may file
must be made 30 days prior to the pro-           with the Commission a complaint chal-
posed effective date and can become ef-          lenging the reasonableness of its cable
fective on the proposed effective date           operator’s rate for cable programming
unless the Commission issues an order            service, or the reasonableness of the
deferring the effective date or denying          cable operator’s charges for installa-
the rate proposal. Petitions opposing            tion or rental of equipment used for
such filings must be filed within 15             the receipt of cable programming serv-
days of public notice of the filing by           ice. The franchise authority may file a
the cable operator and be accompanied            complaint with the Commission only
by a certificate that service was made           upon receipt of more than one sub-
on the cable operator and the local              scriber complaint made to the fran-
franchising authority. The cable opera-          chise authority within 90 days after the
tor may file an opposition within five           effective date of the challenged rate in-
days of filing of the petition, certifying       crease.

                                             626
Federal Communications Commission                                                   § 76.954

  (b) The Commission shall not review        § 76.952 Information to be provided by
any complaint with respect to cable               cable operator on monthly sub-
programming services filed after March            scriber bills.
31, 1999.                                      All cable operators must provide the
[61 FR 18979, Apr. 30, 1996]
                                             following information to subscribers on
                                             monthly bills:
§ 76.951 Standard       complaint   form;      (a) The name, mailing address and
     other filing requirements.              phone number of the local franchising
                                             authority and the Cable Services Bu-
  (a) Any complaint regarding a cable        reau of this Commission.
operator’s rate for cable programming          (b) The FCC community unit identi-
service or associated equipment must         fier for the cable system.
be filed using standard complaint form,
FCC 329.                                     [58 FR 29753, May 21, 1993, as amended at 59
                                             FR 17960, Apr. 15, 1994]
  (b) The following information must
be provided on the standard complaint        § 76.953 Limitation on filing a com-
form:                                             plaint.
  (1) The name, mailing address and
                                               (a) Complaint regarding a rate change.
phone number of the franchising au-          A complaint alleging an unreasonable
thority that is filing the complaint;        rate for cable programming service or
  (2) The name, mailing address, and         associated equipment may be filed
FCC community unit identifier of the         against a cable operator only in the
relevant cable operator;                     event of a rate change, including an in-
  (3) A description of the cable pro-        crease or decrease in rates, or a change
gramming service or associated equip-        in rates that results from a change in a
ment involved and, if applicable, how        system’s service tiers. A rate change
the service or associated equipment          may involve an implicit rate increase
has changed;                                 (such as deleting channels from a tier
  (4) The current rate for the cable pro-    without a corresponding lowering of
gramming service or associated equip-        the rate for that tier). A complaint re-
ment at issue and, if the complainant        garding a rate change for cable pro-
is challenging the reasonableness of a       gramming service or associated equip-
rate increase, the most recent rate for      ment may be filed against a cable oper-
the service or associated equipment          ator only in the event of a rate change.
immediately prior to the rate increase;        (b) Late-filed complaints will be dis-
                                             missed with prejudice.
  (5) If the complainant is filing a cor-
rected complaint, an indication of the       [58 FR 29753, May 21, 1993, as amended at 58
date the complainant filed the prior         FR 46736, Sept. 2, 1993; 59 FR 17960, 17974, Apr.
complaint and the date the complain-         15, 1994; 60 FR 35868, July 12, 1995; 61 FR 18979,
                                             Apr. 30, 1996]
ant received notification from the
Commission that the prior complaint          § 76.954 Initial review of complaint;
was defective;                                    minimum showing requirement;
  (6) A certification that a copy of the          dismissal of defective complaints.
complaint, including all attachments,          (a) The Commission will conduct an
is being served contemporaneously via        initial review of a complaint to deter-
certified mail on the cable operator;        mine if it meets the minimum showing
  (7) An indication that the complain-       required to allow the complaint to go
ant franchising authority received           forward. The minimum showing shall
more than one subscriber complaint           be satisfied if the complaint is filed
within 90 days of the operator’s imposi-     using the standard complaint form de-
tion of the rate in question; and            scribed in § 76.951 and includes all infor-
  (8) A certification that, to the best of   mation and attachments required by
the complainant’s knowledge, the in-         that form. A complainant will not be
formation provided on the form is true       required, as part of the minimum show-
and correct.                                 ing, to provide the underlying informa-
                                             tion and calculations necessary to
[61 FR 18979, Apr. 30, 1996]                 judge the cable programming service

                                         627
§ 76.955                                            47 CFR Ch. I (10–1–98 Edition)

rate in question against the Commis-       carry its burden in the following man-
sion’s rate standards.                     ner:
   (b) A complaint that does not meet        (1) For a service rate at or below the
the minimum showing requirement de-        permitted level, by providing informa-
scribed in paragraph (a) of this section   tion and calculations that demonstrate
will be considered defective. A defec-     that the rate in question falls at or
tive complaint will be dismissed with-     below the permitted level;
out prejudice to filing a corrected com-     (2) For a service rate that exceeds the
plaint as provided by § 76.955. The Com-   permitted level;
mission will notify the complainant by       (i) By providing proof that the cable
mail of the dismissal. The filing of a     system has reduced the rate for the
complaint on the applicable form, but      cable programming service at issue to
which is otherwise defective, will toll    a level at or below the permitted level;
the limitation period established by       or
§ 76.953.                                    (ii) By providing detailed cost-based
                                           information that demonstrates that
§ 76.955 Additional opportunity to file    the rate in question is reasonable de-
     corrected complaint.                  spite the fact that it exceeds the per-
   (a) If the Commission dismisses an      mitted level.
initial complaint without prejudice          (3) For a charge for equipment instal-
pursuant to § 76.954, the complainant      lation or rental, by providing informa-
shall have one additional opportunity      tion that demonstrates that the charge
to cure the defect and file a corrected    is based on the cable operator’s actual
complaint.                                 cost.
   (b) For a complaint filed on the ap-      (c) In addition to responding to the
plicable form but is otherwise defec-      merits of a complaint, the cable opera-
tive, the complainant must cure the        tor may also move for dismissal of the
defect and file a corrected complaint      complaint for failure to meet the mini-
with the Commission within 30 days         mum showing requirement. Any such
from the date of the Commission’s dis-     motion for dismissal must state with
missal notice. Failure to cure the de-     particularity the reasons the cable op-
fect and file a corrected complaint        erator believes the complaint is defec-
within this time period will result in     tive and shall not relieve the cable op-
dismissal of the complaint with preju-     erator of its obligation to respond to
dice.                                      the merits of the complaint.
                                             (d) A cable operator may file a con-
§ 76.956 Cable operator response.          solidated response to multiple com-
   (a) Unless the Commission notifies a    plaints regarding the identical rate or
cable operator to the contrary, the        rate increase. A consolidated response
cable operator must file with the Com-     must be filed within 30 days from the
mission a response to the complaint        date of service of the first complaint
filed on the applicable form, within 30    received, unless the Commission noti-
days of the date of service of the com-    fies the cable operator to the contrary.
plaint. The response shall indicate        A cable operator may amend a consoli-
when service occurred. Service by mail     dated response to address new issues
is complete upon mailing. See § 1.47(f)    raised by complaints received after the
of this chapter. The response shall in-    cable operator’s initial response.
clude the information required by the        (e) A cable operator that fails to file
appropriate FCC Form, including rate       and serve a response to a valid com-
cards, channel line-ups, and an expla-     plaint may be deemed in default. If the
nation of any discrepancy in the fig-      Commission deems a cable operator in
ures provided in these documents and       default, the Commission may enter an
the rate filing. The cable operator        order against the cable operator find-
must serve its response on the com-        ing the rate to be unreasonable and
plainant via first class mail.             mandating appropriate relief.
   (b) The burden shall be on the cable      (f) A cable operator need not respond
operator to prove that the service rate    to any complaint that is:
or equipment charge in question is not       (1) Not filed on the applicable form;
unreasonable. The cable operator may       or

                                       628
Federal Communications Commission                                                        § 76.961

  (2) That the Commission determined               76.922(d), the Commission’s decision re-
is defective and has so notified the               garding a prospective rate reduction
cable operator.                                    shall remain binding on the cable oper-
                                                   ator for one year unless the Commis-
[58 FR 29753, May 21, 1993, as amended at 59
FR 17975, Apr. 15, 1994; 61 FR 18979, Apr. 30,     sion specifies otherwise.
1996]                                                (b) For an operator that adjusts its
                                                   rates using the annual rate adjustment
§ 76.957 Commission            adjudication   of   system pursuant to Section 76.922(e),
     the complaint.                                for one year following the Commis-
  The Commission will consider the                 sion’s decision, the operator shall pro-
complaint and the cable operator’s re-             vide the Commission at least 30 days’
sponse and then determine by written               notice of any proposed change.
decision whether the rate for the cable            [60 FR 52121, Oct. 5, 1995]
programming service or associated
equipment is unreasonable or not. In                 EFFECTIVE DATE NOTE: At 60 FR 52121, Oct.
making its determination, the Com-                 5, 1995, § 76.960 was revised. This section con-
                                                   tains information collection and record-
mission will only review the amount of
                                                   keeping requirements and will not become
the rate increase subject to the com-              effective until 30 days after approval has
plaint. If the Commission determines               been given by the Office of Management and
that the rate change in question is un-            Budget.
reasonable, it will grant the complaint
and may order appropriate relief, in-              § 76.961   Refunds.
cluding, but not limited to, prospective             (a) Upon a finding that a rate for
rate reductions and refunds. If it deter-          cable programming service or associ-
mines that the rate in question is rea-            ated equipment is unreasonable, the
sonable, the Commission will deny the              Commission may order the cable opera-
complaint.                                         tor to refund to subscribers that por-
[60 FR 52121, Oct. 5, 1995]                        tion of previously paid rates which is
  EFFECTIVE DATE NOTE: At 60 FR 52121, Oct.
                                                   deemed unreasonable.
5, 1995, § 76.957 was revised. This section con-     (b) The cumulative refund due sub-
tains information collection and record-           scribers shall be calculated from the
keeping requirements and will not become           date a valid complaint is filed until the
effective until 30 days after approval has         date a cable operator implements a
been given by the Office of Management and         prospective rate reduction as ordered
Budget.                                            by the Commission pursuant to § 76.960.
§ 76.958 Notice to Commission of rate              The Commission shall calculate refund
     change while complaint pending.               liability according to the rules in ef-
                                                   fect for determining the reasonableness
  A regulated cable operator that pro-             of the rates for the period of time cov-
poses to change any rate while a cable             ered by the complaint.
service tier complaint is pending before             (c) The cable operator, in its discre-
the Commission shall provide the Com-              tion, may implement a refund in the
mission at least 30 days notice of the             following manner:
proposed change.
                                                     (1) By returning overcharges to those
[59 FR 17960, Apr. 15, 1994]                       subscribers who actually paid the over-
                                                   charges, either through direct payment
§ 76.960 Prospective rate reductions.              or as a specifically identified, one-time
  Upon a finding that a rate for cable             credit to those subscribers’ bills; or
programming service or associated                    (2) By means of a prospective per-
equipment is unreasonable, the Com-                centage reduction in the unreasonable
mission may order the cable operator               cable programming service rate or
to implement a prospective rate reduc-             equipment charge to cover the cumu-
tion to the class of customers subscrib-           lative overcharge. This shall be re-
ing to the cable programming service               flected as a specifically identified, one-
at issue.                                          time credit on prospective bills to the
  (a) For an operator that adjusts its             class of subscribers that currently sub-
rates using the quarterly rate adjust-             scribe to the cable programming serv-
ment system pursuant to Section                    ice or associated equipment at issue.

                                               629
§ 76.962                                                  47 CFR Ch. I (10–1–98 Edition)

  (d) Refunds shall include interest           or any Commission rule, the Commis-
computed at applicable rates published         sion may, in addition to other rem-
by the Internal Revenue Service for tax        edies, impose a forfeiture pursuant to
refunds and additional tax payments.           Section 503(b) of the Communications
Interest shall accrue from the date a          Act of 1934, as amended, 47 U.S.C.
valid complaint is filed until the re-         503(b).
fund issues.                                     (b) A cable operator shall not be sub-
  (e) At the time the Commission or-
                                               ject to forfeiture because its rate for
ders a cable operator to pay refunds to
                                               cable programming service or equip-
subscribers, the franchising authority
must return to the cable operator an           ment is determined to be unreasonable.
amount equal to that portion of the
                                               § 76.964 Written       notification    of
franchise fee that was paid on the total            changes in rates and services.
amount of the refund to subscribers.
The franchising authority may return              (a) In addition to the requirement of
the franchise fee overcharge either in         § 76.309(c)(3)(i)(B) regarding advance no-
an immediate lump sum payment, or              tification to customers of any changes
the cable operator may deduct it from          in rates, programming services or
the cable system’s future franchise fee        channel positions, cable systems shall
payments.                                      give 30 days written notice to both sub-
[58 FR 29753, May 21, 1993, as amended at 59   scribers and local franchising authori-
FR 17975, Apr. 15, 1994]                       ties before implementing any rate or
                                               service change. Such notice shall state
§ 76.962 Implementation and certifi-           the precise amount of any rate change
     cation of compliance.                     and briefly explain in readily under-
   (a) Implementation. A cable operator        standable fashion the cause of the rate
must implement remedial require-               change (e.g., inflation, changes in ex-
ments, including prospective rate re-          ternal costs or the addition/deletion of
ductions and refunds, within 60 days           channels). When the change involves
from the date the Commission releases          the addition or deletion of channels,
an order mandating a remedy.                   each channel added or deleted must be
   (b) Certification of compliance. A cable    separately identified. Notices to sub-
operator must certify to the Commis-           scribers shall inform them of their
sion its compliance with any Commis-
                                               right to file complaints about changes
sion order mandating remedial require-
                                               in cable programming service tier rates
ments. Such certification shall:
   (1) Be filed with the Commission            and services, shall state that the sub-
within 90 days from the date the Com-          scriber may file the complaint within
mission releases an order mandating a          90 days of the effective date of the rate
remedy;                                        change, and shall provide the address
   (2) Reference the applicable Commis-        and phone number of the local fran-
sion order;                                    chising authority.
   (3) State that the cable operator has          (b) To the extent the operator is re-
complied fully with all provisions of          quired to provide notice of service and
the Commission’s order;                        rate changes to subscribers, the opera-
   (4) Include a description of the pre-       tor may provide such notice using any
cise measures the cable operator has           reasonable means at its sole discretion.
taken to implement the remedies or-               (c) Notwithstanding any other provi-
dered by the Commission; and                   sion of Part 76, a cable operator shall
   (5) Be signed by an authorized rep-         not be required to provide prior notice
resentative of the cable operator.             of any rate change that is the result of
§ 76.963 Forfeiture.                           a regulatory fee, franchise fee, or any
                                               other fee, tax, assessment, or charge of
   (a) If any cable operator willfully         any kind imposed by any Federal agen-
fails to comply with the terms of any          cy, State, or franchising authority on
Commission order, including an order           the transaction between the operator
mandating remedial requirements after
                                               and the subscriber.
a finding of unreasonable cable pro-
gramming service or equipment rates,           [61 FR 18979, Apr. 30, 1996]

                                           630
Federal Communications Commission                                              § 76.970

§ 76.970 Commercial       leased   access    ticular tier. The weighting scheme is
     rates.                                  determined in two steps. First, the
   (a) Cable operators shall designate       number of subscribers is multiplied by
channel capacity for commercial use          the number of channels (the result is
by persons unaffiliated with the opera-      the number of ‘‘subscriber-channels’’)
tor in accordance with the requirement       on each tier with subscriber penetra-
of 47 U.S.C. 532. For purposes of 47         tion over 50 percent. For instance, a
U.S.C. 532(b)(1)(A) and (B), only those      tier with 10 channels and 1,000 subscrib-
channels that must be carried pursuant       ers would have a total of 10,000 sub-
to 47 U.S.C. 534 and 535 qualify as chan-    scriber-channels. Second, the sub-
nels that are required for use by Fed-       scriber-channels on each of these tiers
eral law or regulation. For cable sys-       is divided by the total subscriber-chan-
tems with 100 or fewer channels, chan-       nels on all such tiers. Given the per-
nels that cannot be used due to tech-        cent of subscriber-channels for the par-
nical and safety regulations of the Fed-     ticular tier, the implicit fee for the tier
eral Government (e.g., aeronautical          is computed by multiplying the sub-
channels) shall be excluded when cal-        scriber-channel percentage for the tier
culating the set-aside requirement.          by the total implicit fee calculation.
   (b) In determining whether a party is     Finally, to calculate the average im-
an ‘‘affiliate’’ for purposes of commer-     plicit fee per channel, the implicit fee
cial leased access, the definitions con-     for the tier must be divided by the cor-
tained in the notes to § 76.501 shall be     responding number of channels on the
used, provided, however, that the sin-       tier. The final result is the maximum
gle majority shareholder provision of        rate per month that the operator may
Note 2(b) to § 76.501 and the limited        charge the leased access programmer
partner insulation provisions of Note        for a full-time channel on that
2(g) to § 76.501 shall not apply, and the    particulartier. The average implicit fee
provisions of Note 2(a) to § 76.501 re-      shall be calculated by using all chan-
garding five (5) percent interest shall      nels carried on any tier exceeding 50
include all voting or nonvoting stock        percent subscriber penetration (includ-
or limited partnership equity interest       ing channels devoted to affiliated pro-
of five (5) percent or more. Actual          gramming, must-carry and public, edu-
working control, in whatever manner          cational and government access chan-
exercised, shall also be deemed a cog-       nels). In the event of an agreement to
nizable interest.                            lease capacity on a tier with less than
   (c) The maximum commercial leased         50 percent penetration, the average im-
access rate that a cable operator may        plicit fee should be determined on the
charge for full-time channel placement       basis of subscriber revenues and pro-
on a tier exceeding a subscriber pene-       gramming costs for that tier alone.
tration of 50 percent is the average im-     The license fees for affiliated channels
plicit fee for full-time channel place-      used in determining the average im-
ment on all such tier(s).                    plicit fee shall reflect the prevailing
   (d) The average implicit fee identi-      company prices offered in the market-
fied in paragraph (c) of this section for    place to third parties. If a prevailing
a full-time channel on a tier with a         company price does not exist, the li-
subscriber penetration over 50 percent       cense fee for that programming shall
shall be calculated by first calculating     be priced at the programmer’s cost or
the total amount the operator receives       the fair market value, whichever is
in subscriber revenue per month for the      lower. The average implicit fee shall be
programming on all such tier(s), and         based on contracts in effect in the pre-
then subtracting the total amount it         vious calendar year. The implicit fee
pays in programming costs per month          for a contracted service may not in-
for such tier(s) (the ‘‘total implicit fee   clude fees, stated or implied, for serv-
calculation’’). A weighting scheme that      ices other than the provision of chan-
accounts for differences in the number       nel capacity (e.g., billing and collec-
of subscribers and channels on all such      tion, marketing, or studio services).
tier(s) must be used to determine how          (e) The maximum commercial leased
much of the total implicit fee calcula-      access rate that a cable operator may
tion will be recovered from any par-         charge for full-time channel placement

                                         631
§ 76.970                                              47 CFR Ch. I (10–1–98 Edition)

as an a la carte service is the highest     tion within 15 calendar days of the date
implicit fee on an aggregate basis for      on which a request for leased access in-
full-time channel placement as an a la      formation is made:
carte service.                                 (i) How much of the operator’s leased
  (f) The highest implicit fee on an ag-    access set-aside capacity is available;
gregate basis for full-time channel            (ii) A complete schedule of the opera-
placement as an a la carte service shall    tor’s full-time and part-time leased ac-
be calculated by first determining the      cess rates;
total amount received by the operator
                                               (iii) Rates associated with technical
in subscriber revenue per month for
                                            and studio costs; and
each non-leased access a la carte chan-
nel on its system (including affiliated a      (iv) If specifically requested, a sam-
la carte channels) and deducting the        ple leased access contract.
total amount paid by the operator in           (2) Operators of systems subject to
programming costs (including license        small system relief shall provide the
and copyright fees) per month for pro-      information required in paragraph
gramming on such individual channels.       (h)(1) of this section within 30 calendar
This calculation will result in implicit    days of a bona fide request from a pro-
fees determined on an aggregate basis,      spective leased access programmer. For
and the highest of these implicit fees      these purposes, systems subject to
shall be the maximum rate per month         small system relief are systems that ei-
that the operator may charge the            ther:
leased access programmer for place-            (i) Qualify as small systems under
ment as a full-time a la carte channel.     § 76.901(c) and are owned by a small
The license fees for affiliated channels    cable company as defined under
used in determining the highest im-         § 76.901(e); or
plicit fee shall reflect the prevailing        (ii) Have been granted special relief.
company prices offered in the market-
                                               (3) Bona fide requests, as used in this
place to third parties. If a prevailing
company price does not exist, the li-       section, are defined as requests from
cense fee for that programming shall        potential leased access programmers
be priced at the programmer’s cost or       that have provided the following infor-
the fair market value, whichever is         mation:
lower. The highest implicit fee shall be       (i) The desired length of a contract
based on contracts in effect in the pre-    term;
vious calendar year. The implicit fee          (ii) The time slot desired;
for a contracted service may not in-           (iii) The anticipated commencement
clude fees, stated or implied, for serv-    date for carriage; and
ices other than the provision of chan-         (iv) The nature of the programming.
nel capacity (e.g., billing and collec-        (4) All requests for leased access
tion, marketing, or studio services).       must be made in writing and must
Any subscriber revenue received by a        specify the date on which the request
cable operator for an a la carte leased     was sent to the operator.
access service shall be passed through         (5) Operators shall maintain, for
to the leased access programmer.
                                            Commission inspection, sufficient sup-
  (g) The maximum commercial leased
                                            porting documentation to justify the
access rate that a cable operator may
charge for part-time channel place-         scheduled rates, including supporting
ment shall be determined by either          contracts, calculations of the implicit
prorating the maximum full-time rate        fees, and justifications for all adjust-
uniformly, or by developing a schedule      ments.
of and applying different rates for dif-       (i) Cable operators are permitted to
ferent times of the day, provided that      negotiate rates below the maximum
the total of the rates for a 24-hour pe-    rates permitted in paragraphs (c)
riod does not exceed the maximum            through (g) of this section.
daily leased access rate.
                                            [58 FR 29753, May 21, 1993, as amended at 61
  (h)(1) Cable system operators shall       FR 16400, Apr. 15, 1996; 62 FR 11380, Mar. 12,
provide prospective leased access pro-      1997]
grammers with the following informa-

                                        632
Federal Communications Commission                                          § 76.971

§ 76.971 Commercial       leased   access   every day. However, regardless of the
     terms and conditions.                  availability of partially programmed
   (a)(1) Cable operators shall place       part-time leased access channels, a
leased access programmers that re-          cable operator shall be required to open
quest access to a tier actually used by     an additional channel to accommodate
most subscribers on any tier that has a     any request for part-time leased access
subscriber penetration of more than 50      for at least eight contiguous hours, for
percent, unless there are technical or      the same time period every day, for at
other compelling reasons for denying        least a year. Once an operator has
access to such tiers.                       opened a vacant channel to accommo-
   (2) Cable operators shall be permitted   date such a request, our other leased
to make reasonable selections when          access rules apply. If, however, the op-
placing leased access channels at spe-      erator has accommodated such a re-
cific channel locations. The Commis-        quest on a channel already carrying an
sion will evaluate disputes involving       existing full-time non-leased access
channel placement on a case-by-case         programmer, the operator does not
basis and will consider any evidence        have to accommodate other part-time
that an operator has acted unreason-        requests of less than eight hours on
ably in this regard.                        that channel until all other existing
   (3) On systems with available leased     part-time leased access channels are
access capacity sufficient to satisfy       substantially filled with leased access
current leased access demand, cable op-     programming.
erators shall be required to accommo-         (b) Cable operators may not apply
date as expeditiously as possible all       programming production standards to
leased access requests for programming      leased access that are any higher than
that is not obscene or indecent. On sys-    those applied to public, educational
tems with insufficient available leased     and governmental access channels.
access capacity to satisfy current            (c) Cable operators are required to
leased access demand, cable operators       provide unaffiliated leased access users
shall be permitted to select from           the minimal level of technical support
among leased access programmers             necessary for users to present their
using objective, content-neutral cri-       material on the air, and may not un-
teria.                                      reasonably refuse to cooperate with a
   (4) Cable operators that have not sat-   leased access user in order to prevent
isfied their statutory leased access re-    that user from obtaining channel ca-
quirements shall accommodate part-          pacity. Leased access users must reim-
time leased access requests as set forth    burse operators for the reasonable cost
in this paragraph. Cable operators shall    of any technical support actually pro-
not be required to accept leases for less   vided by the operator that is beyond
than one half-hour of programming.          that provided for non-leased access pro-
Cable operators may accommodate             grammers on the system. A cable oper-
part-time leased access requests by         ator may charge leased access pro-
opening additional channels for part-       grammers for the use of technical
time use or providing comparable time       equipment that is provided at no
slots on channels currently carrying        charge for public, educational and gov-
leased or non-leased access program-        ernmental access programming, pro-
ming. The comparability of time slots       vided that the operator’s franchise
shall be determined by objective fac-       agreement requires it to provide the
tors such as day of the week, time of       equipment and does not preclude such
day, and audience share. A cable opera-     use, and the equipment is not being
tor that is unable to provide a com-        used for any other non-leased access
parable timeslot to accommodate a           programming. Cable operators that are
part-time programming request shall         required to purchase technical equip-
be required to open an additional chan-     ment in order to accommodate a leased
nel for part-time use unless such opera-    access programmer shall have the op-
tor has at least one channel designated     tion of either requiring the leased ac-
for part-time leased access use that is     cess programmer to pay the full pur-
programmed with less than 18 hours of       chase price of the equipment, or pur-
part-time leased access programming         chasing the equipment and leasing it to

                                        633
§ 76.975                                              47 CFR Ch. I (10–1–98 Edition)

the leased access programmer at a rea-      rate for the capacity shall be the maxi-
sonable rate. Leased access program-        mum permissible rate.
mers that are required to pay the full
                                            [58 FR 29753, May 21, 1993, as amended at 61
purchase price of additional equipment      FR 16401, Apr. 15, 1996; 62 FR 11381, Mar. 12,
shall have all rights of ownership asso-    1997]
ciated with the equipment under appli-
cable state and local law.                  § 76.975 Commercial leased access dis-
   (d) Cable operators may require rea-          pute resolution.
sonable security deposits or other as-
                                               (a) Any person aggrieved by the fail-
surances from users who are unable to
                                            ure or refusal of a cable operator to
prepay in full for access to leased com-
                                            make commercial channel capacity
mercial channels. Cable operators may
impose reasonable insurance require-        available in accordance with the provi-
ments on leased access programmers.         sions of Title VI of the Communica-
Cable operators shall bear the burden       tions Act may bring an action in the
of proof in establishing reasonableness.    district court of the United States for
   (e) Cable operators may not set terms    the Judicial district in which the cable
and conditions for commercial leased        system is located to compel that such
access use based on content, except:        capacity be made available.
   (1) To the limited extent necessary to      (b)(1) Any person aggrieved by the
establish a reasonable price for the        failure or refusal of a cable operator to
commercial use of designated channel        make commercial channel capacity
capacity by an unaffiliated person; or      available or to charge rates for such
   (2) To comply with 47 U.S.C. 532 (h),    capacity in accordance with the provi-
(j) and § 76.701.                           sions of Title VI of the Communica-
   (f)(1) A cable operator shall provide    tions Act, or our implementing regula-
billing and collection services for com-    tions, §§ 76.970 and 76.971, may file a pe-
mercial leased access cable program-        tition for relief with the Commission.
mers, unless the operator demonstrates      Persons alleging that a cable opera-
the existence of third party billing and    tor’s leased access rate is unreasonable
collection services which in terms of       must receive a determination of the
cost and accessibility, offer leased ac-    cable operator’s maximum permitted
cess programmers an alternative sub-        rate from an independent accountant
stantially equivalent to that offered to    prior to filing a petition for relief with
comparable non-leased access program-       the Commission.
mers.                                          (2) Parties to a dispute over leased
   (2) If an operator can make the show-    access rates shall have five business
ing required in paragraph (f)(1) of this    days to agree on a mutually acceptable
section, it must, to the extent tech-       accountant from the date on which the
nically feasible make available data        programmer provides the cable opera-
necessary to enable a third party to        tor with a written request for a review
bill and collect for the leased access      of its leased access rates. Parties that
user.                                       fail to agree on a mutually acceptable
   (g) Cable operators shall not unrea-     accountant within five business days of
sonably limit the length of leased ac-      the programmer’s request for a review
cess contracts. The termination provi-      shall each be required to select an inde-
sions of leased access contracts shall be   pendent accountant on the sixth busi-
commercially reasonable and may not         ness day. The two accountants selected
allow operators to terminate leased ac-     shall have five business days to select a
cess contracts without a reasonable         third independent accountant to per-
basis.                                      form the review. Operators of systems
   (h) Cable operators may not prohibit     subject to small system relief shall
the resale of leased access capacity to     have 14 business days to select an inde-
persons unaffiliated with the operator,     pendent accountant when an agree-
but may provide in their leased access      ment cannot be reached. For these pur-
contracts that any sublessees will be       poses, systems subject to small system
subject to the non-price terms and con-     relief are systems that either:
ditions that apply to the initial lessee,      (i) Qualify as small systems under
and that, if the capacity is resold, the    § 76.901(c) and are owned by a small

                                        634
Federal Communications Commission                                               § 76.977

cable company as defined under               Aggrieved parties must certify that
§ 76.901(e); or                              their petition was filed within 60 days
   (ii) Have been granted special relief.    of the termination of ADR proceedings
   (3) The final accountant’s report         in order to file a petition later than 60
must be completed within 60 days of          days after completion of the final ac-
the date on which the final accountant       countant’s report. Cable operators may
is selected to perform the review. The       rebut such certifications.
final accountant’s report must, at a            (e) The cable operator or other re-
minimum, state the maximum per-              spondent will have 30 days from the fil-
mitted rate, and explain how it was de-      ing of the petition to file a response. If
termined without revealing proprietary       a leased access rate is disputed, the re-
information. The report must be              sponse must show that the rate
signed, dated and certified by the ac-       charged is not higher than the maxi-
countant. The report shall be filed in       mum permitted rate for such leased ac-
the cable system’s local public file.        cess, and must be supported by the affi-
   (4) If the accountant’s report indi-      davit of a responsible company official.
cates that the cable operator’s leased       If, after a response is submitted, the
access rate exceeds the maximum per-         staff finds a prima facie violation of
mitted rate by more than a de minimis        our rules, the staff may require a re-
amount, the cable operator shall be re-      spondent to produce additional infor-
quired to pay the full cost of the re-       mation, or specify other procedures
view. If the final accountant’s report       necessary for resolution of the proceed-
does not indicate that the cable opera-      ing.
tor’s leased access rate exceeds the            (f) The Commission, after consider-
maximum permitted rate by more than          ation of the pleadings, may grant the
a de minimis amount, each party shall        relief requested, in whole or in part, in-
be required to split the cost of the final   cluding, but not limited to ordering re-
accountant’s review, and to pay its          funds, injunctive measures, or forfeit-
own expenses incurred in making the          ures pursuant 47 U.S.C. 503, denying the
review.                                      petition, or issuing a ruling on the pe-
   (5) Parties may use alternative dis-      tition or dispute.
pute resolution (ADR) processes to set-         (g) To be afforded relief, the peti-
tle disputes that are not resolved by        tioner must show by clear and convinc-
the final accountant’s report.               ing evidence that the cable operator
   (c) A petition must contain a concise     has violated the Commission’s leased
statement of the facts constituting a        access provisions in 47 U.S.C. 532 or
violation of the statute or the Commis-      §§ 76.970 and 76.971, or otherwise acted
sion’s Rules, the specific statute(s) or     unreasonably or in bad faith in failing
rule(s) violated, and certify that the       or refusing to make capacity available
petition was served on the cable opera-      or to charge lawful rates for such ca-
tor. Where a petition is based on alle-      pacity to an unaffiliated leased access
gations that a cable operator’s leased       programmer.
access rates are unreasonable, the peti-        (h) During the pendency of a dispute,
tioner must attach a copy of the final       a party seeking to lease channel capac-
accountant’s report. In proceedings be-      ity for commercial purposes, shall
fore the Commission, there will be a re-     comply with the rates, terms and con-
buttable presumption that the final ac-      ditions prescribed by the cable opera-
countant’s report is correct.                tor, subject to refund or other appro-
   (d) Where a petition is not based on      priate remedy.
allegations that a cable operator’s          [58 FR 29753, May 21, 1993, as amended at 62
leased access rates are unreasonable,        FR 11382, Mar. 12, 1997]
the petition must be filed within 60
days of the alleged violation. Where a       § 76.977 Minority and educational pro-
petition is based on allegations that             gramming used in lieu of des-
the cable operator’s leased access rates          ignated commercial leased access
are unreasonable, the petition must be            capacity.
filed within 60 days of the final ac-           (a) A cable operator required by this
countant’s report, or within 60 days of      section to designate channel capacity
the termination of ADR proceedings.          for commercial use pursuant to 47

                                         635
§ 76.980                                                47 CFR Ch. I (10–1–98 Edition)

U.S.C. 532, may use any such channel         Alaska Natives, Asians and Pacific Is-
capacity for the provision of program-       landers.
ming from a qualified minority pro-          [58 FR 29753, May 21, 1993, as amended at 62
gramming source or from any qualified        FR 11382, Mar. 12, 1997]
educational     programming     sources,
whether or not such source is affiliated     § 76.980   Charges for customer changes.
with cable operator. The channel ca-           (a) This section shall govern charges
pacity used to provide programming           for any changes in service tiers or
from a qualified minority program-           equipment provided to the subscriber
ming source or from any qualified edu-       that are initiated at the request of a
cational programming source pursuant         subscriber after initial service installa-
to this section may not exceed 33 per-       tion.
cent of the channel capacity designated        (b) The charge for customer changes
pursuant to 47 U.S.C. 532 and must be        in service tiers effected solely by coded
located on a tier with more than 50 per-     entry on a computer terminal or by
cent subscriber penetration.                 other similarly simple methods shall
  (b) For purposes of this section, a        be a nominal amount, not exceeding
qualified minority programming source        actual costs, as defined in paragraph
is a programming source that devotes         (c) of this section.
substantially all of its programming to        (c) The charge for customers changes
coverage of minority viewpoints, or to       in service tiers or equipment that in-
                                             volve more than coded entry on a com-
programming directed at members of
                                             puter or other similarly simple method
minority groups, and which is over 50
                                             shall be based on actual cost. The ac-
percent minority-owned.
                                             tual cost charge shall be either the
  (c) For purposes of this section, a        HSC, as defined in Section 76.923 of the
qualified educational programming            rules, multiplied by the number of per-
source is a programming source that          sons hours needed to implement the
devotes substantially all of its pro-        change, or the HSC multiplied by the
gramming to educational or instruc-          average number of persons hours in-
tional programming that promotes             volved in implementing customer
public understanding of mathematics,         changes.
the sciences, the humanities, or the           (d) A cable operator may establish a
arts and has a documented annual ex-         higher charge for changes effected sole-
penditure on programming exceeding           ly by coded entry on a computer termi-
$15 million. The annual expenditure on       nal or by other similarly simple meth-
programming means all annual costs           ods, subject to approval by the fran-
incurred by the programming source to        chising authority, for a subscriber
produce or acquire programs which are        changing service tiers more than two
scheduled to be televised, and specifi-      times in a twelve month period, except
cally excludes marketing, promotion,         for such changes ordered in response to
satellite transmission and operational       a change in price or channel line-up. If
costs, and general administrative            a cable system adopts such an in-
costs.                                       creased charge, the cable system must
                                             notify all subscribers in writing that
  (d) For purposes of paragraphs (b)
                                             they may be subject to such a charge
and (c) of this section, substantially all   for changing service tiers more than
means that 90% or more of the pro-           the specified number of times in any
gramming offered must be devoted to          twelve month period.
minority or educational purposes, as           (e) Downgrade charges that are the
defined in paragraphs (b) and (c) of this    same as, or lower than, upgrade
section, respectively.                       charges are evidence of the reasonable-
  (e) For purposes of paragraph (b) of       ness of such downgrade charges.
this section, ‘‘minority’’ is defined as       (f) For 30 days after notice of
in 47 U.S.C. 309(i)(3)(c)(ii) to include     retiering or rate increases, a customer
Blacks, Hispanics, American Indians,         may obtain changes in service tiers at
                                             no additional charge.

                                         636
Federal Communications Commission                                            § 76.984

§ 76.981 Negative option billing.            intent to continue regulating basic
                                             cable rates.
  (a) A cable operator shall not charge
a subscriber for any service or equip-       § 76.983 Discrimination.
ment that the subscriber has not af-
firmatively requested by name. A sub-           (a) No Federal agency, state, or local
scriber’s failure to refuse a cable opera-   franchising authority may prohibit a
tor’s proposal to provide such service       cable operator from offering reasonable
or equipment is not an affirmative re-       discounts to senior citizens or to eco-
quest for service or equipment. A sub-       nomically disadvantaged groups.
scriber’s affirmative request for service       (1) Such discounts must be offered
or equipment may be made orally or in        equally to all subscribers in the fran-
writing.                                     chise area who qualify as members of
  (b) The requirements of paragraph (a)      these categories, or any reasonable
of this section shall not preclude the       subcategory thereof.
adjustment of rates to reflect inflation,       (2) For purposes of this section, mem-
cost of living and other external costs,     bers of economically disadvantaged
the addition or deletion of a specific       groups are those individuals who re-
program from a service offering, the         ceive federal, state or local welfare as-
addition or deletion of specific chan-       sistance.
nels from an existing tier or service,          (b) Nothing herein shall preclude any
the restructuring or division of exist-      Federal agency, state, or local fran-
ing tiers of service, or the adjustment      chising authority from requiring and
of rates as a result of the addition, de-    regulating the reception of cable serv-
letion or substitution of channels pur-      ice by hearing impaired individuals.
suant to § 76.922, provided that such        § 76.984 Geographically uniform rate
changes do not constitute a fundamen-             structure.
tal change in the nature of an existing
                                                (a) The rates charged by cable opera-
service or tier of service and are other-
                                             tors for basic service, cable program-
wise consistent with applicable regula-
                                             ming service, and associated equip-
tions.
                                             ment and installation shall be provided
  (c) State and local governments may
                                             pursuant to a rate structure that is
not enforce state and local consumer
                                             uniform throughout each franchise
protection laws that conflict with or
                                             area in which cable service is provided.
undermine paragraph (a) or (b) of this
                                                (b) This section does not prohibit the
section or any other sections of this
                                             establishment by cable operators of
Subpart that were established pursuant
                                             reasonable categories of service and
to Section 3 of the 1992 Cable Act, 47
                                             customers with separate rates and
U.S.C. 543.
                                             terms and conditions of service, within
[59 FR 62625, Dec. 6, 1994]                  a franchise area. Cable operators may
                                             offer different rates to multiple dwell-
§ 76.982 Continuation of rate agree-         ing units of different sizes and may set
     ments.                                  rates based on the duration of the con-
  During the term of an agreement exe-       tract, provided that the operator can
cuted before July 1, 1990, by a franchis-    demonstrate that its costs savings vary
ing authority and a cable operator pro-      with the size of the building and the
viding for the regulation of basic cable     duration of the contract, and as long as
service rates, where there was not ef-       the same rate is offered to buildings of
fective competition under Commission         the same size with contracts of similar
rules in effect on that date, the fran-      duration.
chising authority may regulate basic            (c) This section does not apply to:
cable rates without following section           (1) A cable operator with respect to
623 of the 1992 Cable Act or §§ 76.910       the provision of cable service over its
through 76.942. A franchising authority      cable system in any geographic area in
regulating basic cable rates pursuant        which the video programming services
to such a rate agreement is not re-          offered by the operator in that area are
quired to file for certification during      subject to effective competition, or
the remaining term of the agreement             (2) Any video programming offered on
but shall notify the Commission of its       a per channel or per program basis.

                                         637
§ 76.985                                                 47 CFR Ch. I (10–1–98 Edition)

Bulk discounts to multiple dwelling               (2) The amount of the total bill as-
units shall not be subject to this sec-         sessed to satisfy any requirements im-
tion, except that a cable operator of a         posed on the cable operator by the
cable system that is not subject to ef-         franchise agreement to support public,
fective competition may not charge              educational, or governmental channels
predatory prices to a multiple dwelling         or the use of such channels.
unit. Upon a prima facie showing by a             (3) The amount of any other fee, tax,
complainant that there are reasonable           assessment, or charge of any kind im-
grounds to believe that the discounted          posed by any governmental authority
price is predatory, the cable system            on the transaction between the opera-
shall have the burden of showing that           tor and the subscriber. In order for a
its discounted price is not predatory.          governmental fee or assessment to be
[59 FR 17975, Apr. 15, 1994, as amended at 61   separately identified under this sec-
FR 18979, Apr. 30, 1996]                        tion, it must be directly imposed by a
                                                governmental body on a transaction
§ 76.985 Subscriber bill itemization.           between a subscriber and an operator.
  (a) Cable operators may identify as a           (b) The charge identified on the sub-
separate line item of each regular sub-         scriber bill as the total charge for cable
scriber bill the following:                     service should include all fees and
  (1) The amount of the total bill as-          costs itemized pursuant to this section.
sessed as a franchise fee and the iden-           (c) Local franchising authorities may
tity of the franchising authority to            adopt regulations consistent with this
which the fee is paid.                          section.




                                            638
Federal Communications Commission         § 76.985




                                    639
§ 76.985         47 CFR Ch. I (10–1–98 Edition)




           640
Federal Communications Commission         § 76.985




                                    641
§ 76.985         47 CFR Ch. I (10–1–98 Edition)




           642
Federal Communications Commission                                            § 76.987

§ 76.986 ‘‘A la carte’’ offerings.             (e) A limited initial decision under
   (a) Collective offerings of unregu-       paragraph (b) of this section shall toll
lated per-channel or per-program (‘‘a la     the time periods under § 76.933 within
carte’’) video programming shall be          which local authorities must decide
regulated as CPSTs pursuant to § 76.922.     local rate cases. The time period shall
For purposes of this section, ‘‘multi-       resume running seven days after the
plexed’’ channels shall be treated as        Commission decides the interlocutory
one channel.                                 appeal, or seven days following the ex-
   (b) A discounted package price of-        piration of the period in which an in-
fered by a cable system is not unrea-        terlocutory appeal pursuant to para-
sonable with respect to any collective       graph (b) of this section may be filed.
offering of channels if the component          (f) A local franchising authority al-
channels’ collective offering also have      ternatively may decide whether a col-
been continuously available on the sys-      lective offering of ‘‘a la carte’’ chan-
tem on a per channel basis since April       nels will be treated as an NPT as a part
1, 1993.                                     of its final decision setting rates for
   (c) A collective offering of per chan-    the basic service tier. That decision
nel offerings may be treated as New          may then be appealed to the Commis-
Product Tier if:                             sion as provided for under § 76.945.
   (1) The collective offering meets the     [59 FR 62625, Dec. 6, 1994]
conditions set forth in § 76.987; or
   (2) The operator had reasonable           § 76.987   New product tiers.
grounds to believe the collective offer-
ing involving only a small number of           (a) Operators may establish a cat-
migrated channels complied with the          egory of CPSTs, referred to as ‘‘new
Commission’s requirements as of the          product tiers’’ (‘‘NPTs’’), and offer
date it was first offered.                   these tiers to subscribers at prices they
   (d) In reviewing a basic service rate     elect.
filing, local franchising authorities          (b) In order to be eligible to offer
may make an initial decision address-        NPTs, cable operators must meet the
ing whether a collective offering of ‘‘a     following conditions:
la carte’’ channels will be treated as a       (1) Operators offering NPTs are pro-
cable programming service tier that is       hibited from making fundamental
an NPT under § 76.987 or a CPST that is      changes to what they offer on their
regulated under § 76.922. The franchis-      BSTs and CPSTs offerings on Septem-
ing authority must make this initial         ber 30, 1994. Operators may drop chan-
decision within the 30 day period estab-     nels or move channels between BSTs
lished for review of basic cable rates       and/or CPSTs or to an a la carte offer-
and equipment costs in § 76.933(a), or       ing so long as the aggregation of such
within the first 60 days of an extended      changes do not constitute a fundamen-
120 day period (if the franchise author-     tal change in their BST or CPSTs.
ity has requested an additional 90 days)       (2) Operators may not drop channels
pursuant to § 76.933(b). The franchising     that were offered on their BSTs or
authority shall provide notice of its de-    CPSTs on September 30, 1994 and move
cision to the cable system and shall         them to NPTs unless they wait at least
provide public notice of its initial deci-   two years from the date the channels
sion within seven days pursuant to           were dropped from the BSTs or CPSTs.
local procedural rules for public notice.    Time shifted versions, slightly altered
Operators or consumers may make an           versions or renamed versions of chan-
interlocutory appeal of the initial deci-    nels offered on BSTs and CPSTs on
sion to the Commission within 14 days        September 30, 1994 shall not be exempt
of the initial decision. Operators shall     from this restriction.
provide notice to franchise authorities        (3) Operators must market their
of their decision whether or not to ap-      BSTs and CPSTs so that customers
peal to the Commission within this pe-       should be reasonably aware that:
riod. Consumers shall provide notice to        (i) Those tiers are being offered to
franchise authorities of their decision      the public;
to appeal to the Commission within             (ii) The names of the channels avail-
this period.                                 able on those tiers; and

                                         643
§ 76.1000                                                47 CFR Ch. I (10–1–98 Edition)

   (iii) The price of the tiers. A sub-         (f) If the Commission receives a com-
scriber may not be charged for an NPT         plaint about an NPT, the operator need
unless the cable operator has obtained        not file the rate justification provided
the subscriber’s affirmative consent.         in § 76.956, but shall within the time pe-
Changes to the fundamental nature of          riod provided by that rule file docu-
an NPT must be approved by subscrib-          mentation that the NPT meets all the
ers in accordance with § 76.981.              conditions set forth in this section.
   (4) Operators may not require the            (g) Within 30 days of the offering of
subscription to any tier, other than a        an NPT, operators shall file with the
BST, as a condition for subscribing to        Commission, a copy of the new rate
an NPT and operators may not require          card that contains the following infor-
subscription to an NPT as a condition         mation on their BSTs, CPSTs and
for subscribing to a CPST. These re-          NPTs:
strictions will not apply to cable opera-       (1) The names of the programming
                                              services contained on each tier; and
tors prior to October 5, 2002, if such op-
                                                (2) The price of each tier. Operators
erators lack the capacity to offer BSTs
                                              also must file with the Commission,
and NPTs without also providing other
                                              copies of notifications that were sent
intermediate tiers of service as pro-
                                              to subscribers regarding the initial of-
vided in § 76.900(c).                         fering of NPTs. After this initial filing,
   (c) Operators may offer the same           cable operators must file updated rate
service on NPTs as are on one or more         cards and copies of customer notifica-
BSTs or CPSTs. A channel that occu-           tions with the Commission within 30
pied a CPST or BST part-time on Sep-          days of rate or service changes affect-
tember 30, 1994 also may be offered full-     ing the NPT.
time on an NPT as long as it continues
to be offered at least part-time on           [59 FR 62625, Dec. 6, 1994]
CPST or BST, under substantially the            EFFECTIVE DATE NOTE: At 60 FR 62625, Dec.
same conditions as before it was of-          6, 1994, § 76.987, was revised. Paragraph (g)
fered on the NPT. If a channel occupies       contains information collection and record-
                                              keeping requirements and will not become
a BST or CPST (regulated pursuant to          effective until approval has been given by
§ 76.922) full-time on September 30, 1994,    the Office of Management and Budget.
and is subsequently reduced to part-
time on the BST or CPST, that channel
                                                Subpart O—Competitive Access
may not be offered on an NPT full-
time. Operators that offer a channel
                                                    to Cable Programming
both on an NPT and a BST or CPST              § 76.1000 Definitions
will have a continuing obligation to en-
sure that subscribers are aware that             As used in this subpart:
                                                 (a) Area served by cable system. The
the channels are available on the CPST
                                              term ‘‘area served’’ by a cable system
or BST.
                                              means an area actually passed by a
   (d) Operators may temporarily place        cable system and which can be con-
new channels on CPSTs for marketing           nected for a standard connection fee.
purposes and then move them to NPTs.             (b) Attributable interest. For purposes
In order for an operator to move a            of determining whether a party has an
channel from a CPST to an NPT pursu-          ‘‘attributable interest’’ as used in this
ant to this paragraph, the channel            subpart, the definitions contained in
must not have been offered on a BST or        the notes to § 76.501 shall be used, pro-
CPST prior to October 1, 1994.                vided, however that:
   (e) After initially electing to offer an      (1) The single majority shareholder
NPT, a cable operator may cease to            provisions of Note 2(b) to § 76.501 and
provide the NPT, upon proper notice to        the limited partner insulation provi-
subscribers pursuant to § 76.964. If an       sions of Note 2(g) to § 76.501 shall not
operator drops an NPT and subse-              apply; and
quently determines to reestablish that           (2) The provisions of Note 2(a) to
tier, at the time of the reestablishment      § 76.501 regarding five (5) percent inter-
it must comply with the conditions for        ests shall include all voting or nonvot-
offering NPTs set forth in paragraph          ing stock or limited partnership equity
(b) of this section.                          interests of five (5) percent or more.

                                          644
Federal Communications Commission                                             § 76.1000

   (c) Buying groups. The term ‘‘buying      of and with the specific consent of the
group’’ or ‘‘agent,’’ for purposes of the    broadcaster.
definition of a multichannel video pro-        (g) Satellite broadcast programming
gramming distributor set forth in para-      vendor. The term ‘‘satellite broadcast
graph (e) of this section, means an en-      programming vendor’’ means a fixed
tity representing the interests of more      service satellite carrier that provides
than one entity distributing multi-          service pursuant to section 119 of title
channel video programming that:              17, United States Code, with respect to
   (1) Agrees to be financially liable for   satellite broadcast programming.
any fees due pursuant to a satellite           (h) Satellite cable programming. The
cable programming, or satellite broad-       term ‘‘satellite cable programming’’
cast programming, contract which it          means video programming which is
signs as a contracting party as a rep-       transmitted via satellite and which is
resentative of its members or whose          primarily intended for direct receipt by
members, as contracting parties, agree       cable operators for their retrans-
to joint and several liability; and          mission to cable subscribers, except
   (2) Agrees to uniform billing and         that such term does not include sat-
standardized contract provisions for in-     ellite broadcast programming.
dividual members; and                          NOTE TO PARAGRAPH (h): Satellite program-
   (3) Agrees either collectively or indi-   ming which is primarily intended for the di-
vidually on reasonable technical qual-       rect receipt by open video system operators
ity standards for the individual mem-        for their retransmission to open video sys-
bers of the group.                           tem subscribers shall be included within the
   (d) Competing distributors. The term      definition of satellite cable programming.
‘‘competing,’’ as used with respect to          (i) Satellite cable programming vendor.
competing multichannel video pro-            The term ‘‘satellite cable programming
gramming distributors, means distribu-       vendor’’ means a person engaged in the
tors whose actual or proposed service        production, creation, or wholesale dis-
areas overlap.                               tribution for sale of satellite cable pro-
   (e) Multichannel video programming        gramming, but does not include a sat-
distributor. The term ‘‘multichannel         ellite broadcast programming vendor.
video programming distributor’’ means           (j) Similarly situated. The term ‘’simi-
an entity engaged in the business of         larly situated’’ means, for the purposes
making available for purchase, by sub-       of evaluating alternative programming
scribers or customers, multiple chan-        contracts offered by a defendant pro-
nels of video programming. Such enti-        gramming vendor, that an alternative
ties include, but are not limited to, a      multichannel video programming dis-
cable     operator,    a    multichannel     tributor has been identified by the de-
multipoint distribution service, a di-       fendant as being more properly com-
rect broadcast satellite service, a tele-    pared to the complainant in order to
vision receive-only satellite program        determine whether a violation of
distributor, and a satellite master an-      § 76.1002(b) has occurred. The analysis
tenna television system operator, as         of whether an alternative multichannel
well as buying groups or agents of all       video programming distributor is prop-
such entities.                               erly comparable to the complainant in-
  NOTE TO PARAGRAPH (e): A video program-    cludes consideration of, but is not lim-
ming provider that provides more than one    ited to, such factors as whether the al-
channel of video programming on an open      ternative multichannel video program-
video system is a multichannel video pro-    ming distributor operates within a geo-
gramming distributor for purposes of this    graphic region proximate to the com-
subpart O and Section 76.1507.
                                             plainant, has roughly the same number
  (f) Satellite broadcast programming.       of subscribers as the complainant, and
The term ‘‘satellite broadcast program-      purchases a similar service as the com-
ming’’ means broadcast video program-        plainant. Such alternative multi-
ming when such programming is re-            channel video programming distribu-
transmitted by satellite and the entity      tor, however, must use the same dis-
retransmitting such programming is           tribution technology as the ‘‘compet-
not the broadcaster or an entity per-        ing’’ distributor with whom the com-
forming such retransmission on behalf        plainant seeks to compare itself.

                                         645
§ 76.1001                                                 47 CFR Ch. I (10–1–98 Edition)

  (k) Subdistribution agreement. The             (1) The imposition of reasonable re-
term    ‘‘subdistribution    agreement’’       quirements for creditworthiness, offer-
means an arrangement by which a                ing of service, and financial stability
local cable operator is given the right        and standards regarding character and
by a satellite cable programming ven-          technical quality;
dor or satellite broadcast programming           NOTE 1: Vendors are permitted to create a
vendor to distribute the vendor’s pro-         distinct class or classes of service in pricing
gramming to competing multichannel             based on credit considerations or financial
video programming distributors.                stability, although any such distinctions
                                               must be applied for reasons for other than a
[58 FR 27670, May 11, 1993, as amended at 61   multichannel video programming distribu-
FR 28708, June 5, 1996]                        tor’s technology. Vendors are not permitted
                                               to manifest factors such as creditworthiness
§ 76.1001 Unfair practices generally.          or financial stability in price differentials if
                                               such factors are already taken into account
  No cable operator, satellite cable
                                               through different terms or conditions such
programming vendor in which a cable            as special credit requirements or payment
operator has an attributable interest,         guarantees.
or satellite broadcast programming               NOTE 2: Vendors may establish price dif-
vendor shall engage in unfair methods          ferentials based on factors related to offering
of competition or unfair or deceptive          of service, or difference related to the actual
acts or practices, the purpose or effect       service exchanged between the vendor and
of which is to hinder significantly or         the distributor, as manifested in standardly
prevent any multichannel video pro-            applied contract terms based on a distribu-
                                               tor’s particular characteristics or willing-
gramming distributor from providing
                                               ness to provide secondary services that are
satellite cable programming or sat-            reflected as a discount or surcharge in the
ellite broadcast programming to sub-           programming service’s price. Such factors
scribers or consumers.                         include, but are not limited to, penetration
                                               of programming to subscribers or to particu-
[58 FR 27671, May 11, 1993]                    lar systems; retail price of programming to
                                               the consumer for pay services; amount and
§ 76.1002 Specific unfair practices pro-       type of promotional or advertising services
     hibited.                                  by a distributor; a distributor’s purchase of
  (a) Undue or improper influence. No          programming in a package or a la carte;
                                               channel position; importance of location for
cable operator that has an attributable
                                               non-volume reasons; prepayment discounts;
interest in a satellite cable program-         contract duration; date of purchase, espe-
ming vendor or in a satellite broadcast        cially purchase of service at launch; meeting
programming vendor shall unduly or             competition at the distributor level; and
improperly influence the decision of           other legitimate factors as standardly ap-
such vendor to sell, or unduly or im-          plied in a technology neutral fashion.
properly influence such vendor’s prices,         (2) The establishment of different
terms and conditions for the sale of,          prices, terms, and conditions to take
satellite cable programming or sat-            into account actual and reasonable dif-
ellite broadcast programming to any            ferences in the cost of creation, sale,
unaffiliated multichannel video pro-           delivery, or transmission of satellite
gramming distributor.                          cable programming or satellite broad-
  (b) Discrimination in prices, terms or       cast programming;
conditions. No satellite cable program-
                                                 NOTE: Vendors may base price differen-
ming vendor in which a cable operator          tials, in whole or in part, on differences in
has an attributable interest, or sat-          the cost of delivering a programming service
ellite broadcast programming vendor,           to particular distributors, such as differences
shall discriminate in the prices, terms,       in costs, or additional costs, incurred for ad-
and conditions of sale or delivery of          vertising expenses, copyright fees, customer
satellite cable programming or sat-            service, and signal security. Vendors may
ellite broadcast programming among             base price differentials on cost differences
                                               that occur within a given technology as well
or between competing cable systems,
                                               as between technologies. A price differential
competing cable operators, or any com-         for a program service may not be based on a
peting multichannel video program-             distributor’s retail costs in delivering serv-
ming distributors. Nothing in this sub-        ice to subscribers unless the program vendor
section, however, shall preclude:              can demonstrate that subscribers do not or

                                           646
Federal Communications Commission                                                  § 76.1002
will not benefit from the distributor’s cost       programming vendor in which a cable
savings that result from a lower program-          operator has an attributable interest
ming price.                                        or a satellite broadcast programming
  (3) The establishment of different               vendor in which a cable operator has
prices, terms, and conditions which                an attributable interest, with respect
take into account economies of scale,              to areas served by a cable operator, un-
cost savings, or other direct and legiti-          less the Commission determines in ac-
mate economic benefits reasonably at-              cordance with paragraph (c)(4) of this
tributable to the number of subscribers            section that such contract, practice,
served by the distributor; or                      activity or arrangement is in the pub-
  NOTE: Vendors may use volume-related jus-
                                                   lic interest.
tifications to establish price differentials to      (3) Specific arrangements: Subdistribu-
the extent that such justifications are made       tion agreements—(i) Served areas. No
available to similarly situated distributors       cable operator shall enter into any sub-
on a technology-neutral basis. When relying        distribution agreement or arrangement
upon standardized volume-related factors           for satellite cable programming or sat-
that are made available to all multichannel        ellite broadcast programming with a
video programming distributors using all
technologies, the vendor may be required to
                                                   satellite cable programming vendor in
demonstrate that such volume discounts are         which a cable operator has an attrib-
reasonably related to direct and legitimate        utable interest or a satellite broadcast
economic benefits reasonably attributable to       programming vendor in which a cable
the number of subscribers served by the dis-       operator has an attributable interest,
tributor if questions arise about the applica-     with respect to areas served by a cable
tion of that discount. In such demonstra-          operator, unless such agreement or ar-
tions, vendors will not be required to provide
a strict cost justification for the structure of
                                                   rangement complies with the limita-
such standard volume-related factors, but          tions set forth in paragraph (c)(3)(iii) of
may also identify non-cost economic benefits       this section.
related to increased viewership.                     (ii) Limitations on subdistribution
  (4) Entering into exclusive contracts            agreements in served areas. No cable op-
in areas that are permitted under para-            erator engaged in subdistribution of
graphs (c)(2) and (c)(4) of this section.          satellite cable programming or sat-
  (c) Exclusive contracts and practices—           ellite broadcast programming may re-
(1) Unserved areas. No cable operator              quire a competing multichannel video
shall engage in any practice or activity           programming distributor to
or enter into any understanding or ar-               (A) Purchase additional or unrelated
rangement, including exclusive con-                programming as a condition of such
tracts, with a satellite cable program-            subdistribution; or
ming vendor or satellite broadcast pro-              (B) Provide access to private prop-
gramming vendor for satellite cable                erty in exchange for access to program-
programming or satellite broadcast                 ming. In addition, a subdistributor
programming that prevents a multi-                 may not charge a competing multi-
channel video programming distributor              channel video programming distributor
from obtaining such programming from               more for said programming than the
any satellite cable programming ven-               satellite cable programming vendor or
dor in which a cable operator has an               satellite broadcast programming ven-
attributable interest, or any satellite            dor itself would be permitted to charge.
broadcast programming vendor in                    Any cable operator acting as a sub-
which a cable operator has an attrib-              distributor of satellite cable program-
utable interest for distribution to per-           ming or satellite broadcast program-
sons in areas not served by a cable op-            ming must respond to a request for ac-
erator as of October 5, 1992.                      cess to such programming by a compet-
  (2) Served areas. No cable operator              ing multichannel video programming
shall enter into any exclusive con-                distributor within fifteen (15) days of
tracts, or engage in any practice, activ-          the request. If the request is denied,
ity or arrangement tantamount to an                the competing multichannel video pro-
exclusive contract, for satellite cable            gramming distributor must be per-
programming or satellite broadcast                 mitted to negotiate directly with the
programming with a satellite cable                 satellite cable programming vendor or

                                               647
§ 76.1002                                              47 CFR Ch. I (10–1–98 Edition)

satellite broadcast programming ven-          ing each of the five factors set forth in
dor.                                          paragraph (c)(4) of this section.
  (4) Public interest determination. In de-      (ii) Any competing multichannel
termining whether an exclusive con-           video programming distributor affected
tract is in the public interest for pur-      by the proposed exclusivity may file an
poses of paragraph (c)(2) of this section,    opposition to the petition for exclusiv-
the Commission will consider each of          ity within thirty (30) days of the date
the following factors with respect to         on which the petition is placed on pub-
the effect of such contract on the dis-       lic notice, setting forth its reasons to
tribution of video programming in             support a finding that the contract is
areas that are served by a cable opera-       not in the public interest under the cri-
tor:                                          teria set forth in paragraph (c)(4) of
  (i) The effect of such exclusive con-       this section. Any such formal opposi-
tract on the development of competi-          tion must be served on petitioner on
tion in local and national multichannel       the same day on which it is filed with
video programming distribution mar-           the Commission.
kets;                                            (iii) The petitioner may file a re-
  (ii) The effect of such exclusive con-      sponse within ten (10) days of receipt of
tract on competition from multi-              any formal opposition. The Commis-
channel video programming distribu-           sion will then approve or deny the peti-
tion technologies other than cable;           tion for exclusivity.
  (iii) The effect of such exclusive con-        (6) Sunset provision. The prohibition
tract on the attraction of capital in-        of exclusive contracts set forth in para-
vestment in the production and dis-           graph (c)(2) of this section shall cease
tribution of new satellite cable pro-         to be effective on October 5, 2002, un-
gramming;                                     less the Commission finds, during a
                                              proceeding to be conducted during the
  (iv) The effect of such exclusive con-
                                              year preceding such date, that said pro-
tract on diversity of programming in
                                              hibition continues to be necessary to
the multichannel video programming
                                              preserve and protect competition and
distribution market; and
                                              diversity in the distribution of video
  (v) The duration of the exclusive con-
                                              programming.
tract.
                                                 (d) Limitations—(1) Geographic limita-
  (5) Prior Commission approval required.     tions. Nothing in this section shall re-
Any cable operator, satellite cable pro-      quire any person who is engaged in the
gramming vendor in which a cable op-          national or regional distribution of
erator has an attributable interest, or       video programming to make such pro-
satellite broadcast programming ven-          gramming available in any geographic
dor in which a cable operator has an          area beyond which such programming
attributable interest seeking to enforce      has been authorized or licensed for dis-
or enter into an exclusive contract in        tribution.
an area served by a cable operator               (2) Applicability to satellite retrans-
must submit a ‘‘Petition for Exclusiv-        missions. Nothing in this section shall
ity’’ to the Commission for approval.         apply:
  (i) The petition for exclusivity shall         (i) To the signal of any broadcast af-
contain those portions of the contract        filiate of a national television network
relevant to exclusivity, including:           or other television signal that is re-
  (A) A description of the programming        transmitted by satellite but that is not
service;                                      satellite broadcast programming; or
  (B) The extent and duration of exclu-          (ii) To any internal satellite commu-
sivity proposed; and                          nication of any broadcast network or
  (C) Any other terms or provisions di-       cable network that is not satellite
rectly related to exclusivity or to any       broadcast programming.
of the criteria set forth in paragraph           (e) Exemptions for prior contracts.—(1)
(c)(4) of this section. The petition for      In general. Nothing in this section shall
exclusivity shall also include a state-       affect any contract that grants exclu-
ment setting forth the petitioner’s rea-      sive distribution rights to any person
sons to support a finding that the con-       with respect to satellite cable pro-
tract is in the public interest, address-     gramming and that was entered into or

                                          648
Federal Communications Commission                                             § 76.1003

before June 1, 1990, except that the pro-      submissions, both substantive and pro-
visions of paragraph (c)(1) of this sec-       cedural, must conform to the following
tion shall apply for distribution to per-      standards :
sons in areas not served by a cable op-          (1) Pleadings must be clear, concise,
erator.                                        and explicit. All matters concerning a
  (2) Limitation on renewals. A contract       claim, defense or requested remedy,
that was entered into on or before June        should be pleaded fully and with speci-
1, 1990, but that was renewed or ex-           ficity.
tended after October 5, 1992, shall not          (2) Pleadings must contain facts
be exempt under paragraph (e)(1) of
                                               which, if true, are sufficient to con-
this section.
                                               stitute a violation of the Act or Com-
  (f) Application to existing contracts. All
                                               mission order or regulation, or a de-
contracts, except those specified in
paragraph (e) of this section, related to      fense to such alleged violation.
the provision of satellite cable pro-            (3) Facts must be supported by rel-
gramming or satellite broadcast pro-           evant documentation or affidavit.
gramming to any multichannel video               (4) Legal arguments must be sup-
programming distributor must be                ported by appropriate judicial, Com-
brought into compliance with the re-           mission, or statutory authority.
quirements specified in this subpart no          (5) Opposing authorities must be dis-
later than November 15, 1993.                  tinguished.
[58 FR 27671, May 11, 1993, as amended at 59     (6) Copies must be provided of all
FR 66259, Dec. 23, 1994]                       non-Commission      authorities    relied
                                               upon which are not routinely available
§ 76.1003 Adjudicatory proceedings.            in national reporting systems, such as
   Any competing multichannel video            unpublished decisions or slip opinions
programming distributor aggrieved by           of courts or administrative agencies.
conduct that it alleges to constitute a          (7) Parties are responsible for the
violation of the regulations set forth in      continuing accuracy and completeness
this subpart may commence an adju-             of all information and supporting au-
dicatory proceeding at the Commis-             thority furnished in a pending com-
sion.                                          plaint proceeding. Information submit-
   (a) Notice required. Any aggrieved          ted, as well as relevant legal authori-
multichannel video programming dis-            ties, must be current and updated as
tributor intending to file a complaint         necessary and in a timely manner at
under this section must first notify the       any time before a decision is rendered
potential defendant cable operator,            on the merits of the complaint.
and/or the potential defendant satellite         (c) Complaint. (1) A program access
cable programming vendor or satellite          complaint shall contain:
broadcast programming vendor, that it            (i) The name of the complainant and
intends to file a complaint with the
                                               each defendant;
Commission based on actions alleged
                                                 (ii) The type of multichannel video
to violate one or more of the provisions
contained in § 76.1001 or 76.1002. The no-     programming distributor that de-
tice must be sufficiently detailed so          scribes complainant, the address and
that its recipient(s) can determine the        telephone number of the complainant,
specific nature of the potential com-          whether the defendant is a cable opera-
plaint. The potential complainant              tor, satellite broadcast programming
must allow a minimum of ten (10) days          vendor or satellite cable programming
for the potential defendant(s) to re-          vendor (describing each defendant), and
spond before filing a complaint with           the address and telephone number of
the Commission.                                each defendant;
   (b) General pleading requirements. Pro-       (iii) The name, address and telephone
gram access complaint proceedings are          number of complainant’s attorney, if
generally resolved on a written record         represented by counsel;
consisting of a complaint, answer and            (iv) Citation to the section of the
reply, but may also include other writ-        Communications Act and/or Commis-
ten submissions such as briefs and             sion regulation or order alleged to have
written interrogatories. All written           been violated;

                                           649
§ 76.1003                                              47 CFR Ch. I (10–1–98 Edition)

   (v) A complete statement of facts,       ments shall be accompanied by a sworn
which, if proven true, would constitute     affidavit signed by an authorized offi-
such a violation;                           cer or agent of the complainant. This
   (vi) Any evidence that supports the      affidavit shall contain a statement
truth or accuracy of the alleged facts;     that the affiant has read the complaint
   (vii) Evidence that supports com-        and that to the best of the affiant’s
plainant’s belief that the defendant,       knowledge, information and belief
where necessary, meets the attribution      formed after reasonable inquiry it is
standards for application of the pro-       well grounded in fact and is warranted
gram access requirements;                   under Commission regulations and
   (viii) Evidence that the complainant     policies or is a good faith argument for
competes with the defendant cable op-       the extension, modification or reversal
erator, or with a multichannel video        of such regulations or policies, and it is
programming distributor that is a cus-      not interposed for any improper pur-
tomer of the defendant satellite cable      pose. If the complaint is signed in vio-
programming or satellite broadcast          lation of this rule, the Commission
programming vendor;                         upon motion or its own initiative shall
   (ix) In complaints alleging discrimi-    impose upon the complainant an appro-
nation, documentary evidence such as        priate sanction.
a rate card or a programming contract         (3) The following format may be used
that demonstrates a differential in         in cases to which it is applicable, with
price, terms or conditions between          such    modifications     as   the    cir-
complainant and a competing multi-          cumstances may render necessary;
channel video programming distributor
                                              Before The Federal Communications Com-
or, if no programming contract or rate
                                            mission, Washington, DC 20554. In the matter
card is submitted with the complaint,       of Complainant, v. Defendant. File No. (To
an affidavit signed by an officer of        be inserted by the Commission) [Insert Sub-
complainant alleging that a differen-       ject/Nature of Issue: Discrimination; Exclu-
tial in price, terms or conditions exits,   sivity; Undue Influence; Unfair Practice]
a description of the nature and extent
(if known or reasonably estimated by                  Program Access Complaint
the complainant) of the differential,         To: The Commission.
together with a statement that defend-        The complainant (here insert full name of
ant refused to provide any further spe-     complainant, and if a corporation, the cor-
cific comparative information;              porate title of such complainant).
   (x) If a programming contract or a         1. (Here state the complainant’s method of
                                            multichannel video program distribution;
rate card is submitted with the com-
                                            post office address, and telephone number of
plaint in support of the alleged viola-     the complainant).
tion, specific references to the relevant     2. (Here insert the name, whether a cable
provisions therein;                         operator, satellite broadcast programming
   (xi) In complaints alleging exclusiv-    vendor or satellite cable programming ven-
ity violations:                             dor, address and telephone number of each
   (A) The identity of both the program-    defendant).
mer and cable operator who are parties        3. (Here insert fully and clearly the specific
to the alleged prohibited agreement,        act or thing complained of, together with
                                            such facts as are necessary to give full un-
   (B) Evidence that complainant can or
                                            derstanding of the matter, including rel-
does serve the area specified in the        evant legal and documentary support).
complaint, and                                Wherefore, complainant asks (here state
   (C) Evidence that the complainant        specifically the relief desired).
has requested to purchase the relevant      (Date)
programming and has been refused or
                                            (Name of complainant)
unanswered;
   (xii) In complaints alleging a viola-    (Name, address, and telephone number of at-
                                            torney, if any)
tion of § 76.1001, evidence demonstrat-
ing that the behavior complained of           (4) The complaint must be accom-
has harmed complainant; and                 panied by appropriate evidence dem-
   (xiii) The specific relief sought.       onstrating that the required notifica-
   (2) Every complaint alleging a viola-    tion pursuant to paragraph (a) of this
tion of the program access require-         section has been made.

                                        650
Federal Communications Commission                                          § 76.1003

  (5) Damages requests. (i) In a case       upon a document or documents within
where recovery of damages is sought,        its control in asserting a defense or re-
the complaint shall contain a clear and     sponding to a material allegation, such
unequivocal request for damages and         document or documents shall be in-
appropriate allegations in support of       cluded as part of the answer. Collateral
such claim in accordance with the re-       or immaterial issues shall be avoided
quirements of paragraph (c)(iii) of this    in answers and every effort should be
section.                                    made to narrow the issues. Any defend-
  (ii) Damages will not be awarded          ant failing to file and serve an answer
upon a complaint unless specifically        within the time and in the manner pre-
requested. Damages may be awarded if        scribed by these rules may be deemed
the complaint complies fully with the       in default and an order may be entered
requirement of paragraph (c)(iii) of this   against defendant in accordance with
section where the defendant knew, or        the allegations contained in the com-
should have known that it was engag-        plaint.
ing in conduct violative of section 628       (3) The answer shall state concisely
of the Communications Act.                  any and all defenses to each claim as-
  (iii) In all cases in which recovery of   serted and shall admit or deny the
damages is sought, the complainant          averments on which the adverse party
shall include within, or as an attach-      relies. If the defendant is without
ment to, the complaint, either:             knowledge or information sufficient to
  (A) A computation of each and every       form a belief as to the truth of an aver-
category of damages for which recov-        ment, the defendant shall so state and
ery is sought, along with an identifica-    this has the effect of a denial. When a
tion of all relevant documents and ma-      defendant intends in good faith to deny
terials or such other evidence to be        only part of an averment, the answer
used by the complainant to determine        shall specify so much of it as is true
the amount of such damages; or              and shall deny only the remainder. The
  (B) An explanation of:                    defendant may make its denials as spe-
  (1) The information not in the posses-
                                            cific denials of designated averments
sion of the complaining party that is
                                            or paragraphs, or may generally deny
necessary to develop a detailed com-
                                            all the averments except such des-
putation of damages;
                                            ignated averments or paragraphs as the
  (2) The reason such information is
                                            defendant expressly admits. When the
unavailable to the complaining party;
                                            defendant intends to controvert all
  (3) The factual basis the complainant
                                            averments, the defendant may do so by
has for believing that such evidence of
                                            general denial.
damages exists; and
  (4) A detailed outline of the meth-         (4) Averments in a complaint are
odology that would be used to create a      deemed to be admitted when not denied
computation of damages when such            in the answer.
evidence is available.                        (5) An answer to an exclusivity com-
  (d) Answer. (1) Any cable operator,       plaint shall provide the defendant’s
satellite cable programming vendor or       reasons for refusing to sell the subject
satellite broadcast programming ven-        programming to the complainant. In
dor upon which a program access com-        addition, the defendant may submit to
plaint is served under this section shall   the Commission its programming con-
answer within twenty (20) days of serv-     tracts covering the area specified in
ice of the complaint, unless otherwise      the complaint with its answer to refute
directed by the Commission.                 allegations concerning the existence of
  (2) The answer shall advise the par-      an impermissible exclusive contract. If
ties and the Commission fully and com-      there are no contracts governing the
pletely of the nature of any and all de-    specified area, the defendant shall so
fenses, and shall respond specifically to   certify in its answer. Any contracts
all material allegations of the com-        submitted pursuant to this provision
plaint. To the extent that a cable oper-    may be protected as proprietary pursu-
ator, satellite cable programming ven-      ant to paragraph (h) of this section.
dor or satellite broadcast programming        (6) An answer to a discrimination
vendor expressly references and relies      complaint shall state the reasons for

                                        651
§ 76.1003                                               47 CFR Ch. I (10–1–98 Edition)

any differential in prices, terms or con-     conditions as complainant’s competi-
ditions between the complainant and           tor, and shall specify why the defend-
its competitor, and shall specify the         ant’s actions are not discriminatory.
particular justification set forth in            (e) Reply. Within fifteen (15) days
§ 76.1002(b) relied upon in support of the    after service of an answer, unless oth-
differential.                                 erwise directed by the Commission, the
   (i) When responding to allegations         complainant may file and serve a reply
concerning price discrimination, ex-          which shall be responsive to matters
cept in cases in which the alleged price      contained in the answer and shall not
differential is de minimis (less than or      contain new matters. Failure to reply
equal to five cents per subscriber or         will not be deemed an admission of any
five percent, whichever is greater), the      allegations contained in the answer,
defendant shall provide documentary           except with respect to any affirmative
evidence to support any argument that         defense set forth therein. Replies con-
the magnitude of the differential is not      taining information claimed by defend-
discriminatory.                               ant to be proprietary under paragraph
   (ii) In cases involving a price dif-       (h) of this section shall be submitted to
ferential of less than or equal to five       the Commission in confidence pursuant
cents per subscriber or five percent,         to the requirements of § 0.459 of this
whichever is greater, the answer shall        chapter and clearly marked ‘‘Not for
identify the differential as de minimis       Public Inspection.’’ An edited version
and state that the defendant is there-        removing all proprietary data shall be
fore not required to justify the mag-         filed with the Commission for inclusion
nitude of the differential.                   in the public file within five (5) days
   (iii) If the defendant believes that the   from the date the unedited reply is sub-
complainant and its competitor are not        mitted, and shall be served on the de-
sufficiently similar, the answer shall        fendant.
set forth the reasons supporting this            (f) Motions. Except as provided in this
conclusion, and the defendant may sub-        section, or upon a showing of extraor-
mit an alternative contract for com-          dinary circumstances, additional mo-
parison with a similarly situated mul-        tions or pleadings by any party will
tichannel video programming distribu-         not be accepted.
tor that uses the same distribution              (g) Discovery. (1) The Commission
technology as the competitor selected         staff may in its discretion order discov-
for comparison by the complainant.            ery limited to the issues specified by
The answer shall state the defendant’s        the Commission. Such discovery may
reasons for any differential between          include answers to written interrog-
the prices, terms and conditions be-          atories or document production.
tween the complainant and such simi-             (2) The Commission staff may in its
larly situated distributor, and shall         discretion direct the parties to submit
specify the particular justifications in      discovery proposals, together with a
§ 76.1002(b) relied upon in support of the    memorandum in support of the discov-
differential. The defendant shall also        ery requested. Such discovery requests
provide with its answer written docu-         may include answers to written inter-
mentary evidence to support its jus-          rogatories, document production or
tification of the magnitude of any            depositions. The Commission staff will
price differential between the com-           then hold a status conference with the
plainant and such similarly situated          parties, pursuant to paragraph (j) of
distributor that is not de minimus.           this section, to determine the scope of
   (iv) Any documents or contracts sub-       discovery. If the Commission staff de-
mitted pursuant to this subparagraph          termines that extensive discovery is re-
may be protected as proprietary pursu-        quired or that depositions are war-
ant to paragraph (h) of this section.         ranted, the staff will advise the parties
   (7) An answer to a complaint alleging      that the proceeding will be referred to
an unreasonable refusal to sell pro-          an administrative law judge in accord-
gramming shall state the defendant’s          ance with paragraph (m) of this sec-
reasons for refusing to sell to the com-      tion.
plainant, or for refusing to sell to the         (h) Confidentiality of proprietary infor-
complainant on the same terms and             mation. (1) Any materials generated or

                                          652
Federal Communications Commission                                          § 76.1003

provided by a party in connection with     tion to receive such information, and
the pre-complaint notification proce-      shall not use the information in any
dure required under § 76.1003(a) and in    activity or function other than the
the course of adjudicating a program       prosecution or defense in the case be-
access complaint under this provision      fore the Commission. Each individual
may be designated as proprietary by        who is provided access to the informa-
that party if the party believes in good   tion by the opposing party shall sign a
faith that the materials fall within an    notarized statement affirmatively stat-
exemption to disclosure contained in       ing, or shall certify under penalty of
the Freedom of Information Act             perjury, that the individual has person-
(FOIA), 5 U.S.C. 552(b). Any party as-     ally reviewed the Commission’s rules
serting confidentiality for such mate-     and understands the limitations they
rials shall so indicate by clearly mark-   impose on the signing party.
ing each page, or portion thereof, for       (5) No copies of materials marked
which a proprietary designation is         proprietary may be made except copies
claimed. If a proprietary designation is   to be used by persons designated in
challenged, the party claiming con-        paragraphs (h) (2) or (3) of this section.
fidentiality will have the burden of       Each party shall maintain a log record-
demonstrating, by a preponderance of       ing the number of copies made of all
the evidence, that the material des-       proprietary material and the persons
ignated as proprietary falls under the     to whom the copies have been provided.
standards for nondisclosure enunciated       (6) Upon termination of the com-
in the FOIA.                               plaint proceeding, including all appeals
  (2) Except as provided in paragraph      and petitions, all originals and repro-
(h)(3) of this section, materials marked   ductions of any proprietary materials,
as proprietary may be disclosed solely     along with the log recording persons
to the following persons, only for use     who received copies of such materials,
in prosecuting or defending a party to
                                           shall be provided to the producing
the complaint action, and only to the
                                           party. In addition, upon final termi-
extent necessary to assist in the pros-
                                           nation of the complaint proceeding,
ecution or defense of the case:
                                           any notes or other work product de-
  (i) Counsel of record representing the
                                           rived in whole or in part from the pro-
parties in the complaint action and
                                           prietary materials of an opposing or
any support personnel employed by
                                           third party shall be destroyed.
such attorneys;
  (ii) Officers or employees of the op-      (i) Other required written submissions.
posing party who are named by the op-      (1) The Commission may, in its discre-
posing party as being directly involved    tion, require the parties to file briefs
in the prosecution or defense of the       summarizing the facts and issues pre-
case;                                      sented in the pleadings and other
  (iii) Consultants or expert witnesses    record evidence. These briefs shall con-
retained by the parties;                   tain the findings of fact and conclu-
  (iv) The Commission and its staff;       sions of law which that party is urging
and                                        the Commission to adopt, with specific
  (v) Court reporters and stenographers    citations to the record, and supported
in accordance with the terms and con-      by relevant authority and analysis.
ditions of this section.                     (2) The Commission may require the
  (3) The Commission will entertain,       parties to submit any additional infor-
subject to a proper showing, a party’s     mation it deems appropriate for a full,
request to further restrict access to      fair, and expeditious resolution of the
proprietary information as specified by    proceeding, including copies of all con-
the party. The opposing party will have    tracts and documents reflecting ar-
an opportunity to respond to such re-      rangements and understandings alleged
quests.                                    to violate the program access require-
  (4) The persons designated in para-      ments set forth in the Communications
graphs (h) (2) and (3) of this section     Act and §§ 76.1001 and 76.1002, as well as
shall not disclose information des-        affidavits and exhibits.
ignated as proprietary to any person         (3) Any briefs submitted shall be filed
who is not authorized under this sec-      concurrently by both the complainant

                                       653
§ 76.1003                                            47 CFR Ch. I (10–1–98 Edition)

and defendant at such time as is des-       be deemed a waiver and will not pre-
ignated by the staff. Such briefs shall     clude the Commission from conferring
not exceed fifty (50) pages.                with those parties or counsel present.
   (4) Reply briefs may be submitted by       (5) During a status conference, the
either party within twenty (20) days        Commission staff may issue oral rul-
from the date initial briefs are due.       ings pertaining to a variety of inter-
Reply briefs shall not exceed thirty (30)   locutory matters relevant to the con-
pages.                                      duct of a program access complaint
   (5) Briefs containing information        proceeding including, inter alia, proce-
which is claimed by an opposing or          dural matters, discovery, and the sub-
third party to be proprietary under         mission of briefs or other evidentiary
paragraph (h) of this section shall be      materials. These rulings will be
submitted to the Commission in con-         promptly memorialized in writing and
fidence pursuant to the requirements        served on the parties. When such rul-
of § 0.459 of this chapter, and shall be    ings require a party to take affirmative
clearly marked ‘‘Not for Public Inspec-     action not subject to deadlines estab-
tion.’’ An edited version removing all      lished by another provision of this sub-
proprietary data shall be filed with the    part, such action will be required with-
Commission for inclusion in the public      in ten (10) days from the date of the
file within five (5) days from the date     written memorialization unless other-
the unedited version is submitted and       wise directed by the staff.
served on opposing parties.                   (k) Specifications as to pleadings,
   (j) Status conference. (1) In any pro-   briefs, and other documents; subscrip-
gram access complaint proceeding, the       tions. (1) All papers filed in a program
Commission staff may in its discretion      access compliant proceeding must be
direct the attorneys and/or the parties     drawn in conformity with the require-
to appear for a conference to consider:     ments of §§ 1.49 and 1.50 of this chapter.
   (i) Simplification or narrowing of the     (2) All averments of claims or de-
issues;                                     fenses in complaints and answers shall
   (ii) The necessity for or desirability   be made in numbered paragraphs. The
of amendments to the pleadings, addi-       contents of each paragraph shall be
tional pleadings, or other evidentiary      limited as far as practicable to a state-
submissions;                                ment of a single set of circumstances.
   (iii) Obtaining admissions of fact or    Each claim founded on a separate
stipulations between the parties as to      transaction or occurrence and each af-
any or all of the matters in con-           firmative defense shall be separately
troversy;                                   stated to facilitate the clear presen-
   (iv) Settlement of the matters in        tation of the matters set forth.
controversy by agreement of the par-          (3) The original of all pleadings and
ties;                                       submissions by any party shall be
   (v) The necessity for and extent of      signed by that party, or by the party’s
discovery, including objections to in-      attorney. Complaints must be signed
terrogatories or requests for written       by the complainant. The signing party
documents;                                  shall state his or her address and tele-
   (vi) The need and schedule for filing    phone number and the date on which
briefs, and the date for any further        the document was signed. Copies
conferences; and                            should be conformed to the original.
   (vii) Such other matters that may        Except when otherwise specifically
aid in the disposition of the complaint.    provided by rule or statute, pleadings
   (2) Any party may request that a con-    need not be verified. The signature of
ference be held at any time after the       an attorney or party shall be a certifi-
complaint has been filed.                   cate that the attorney or party has
   (3) Conferences will be scheduled by     read the pleading, motion, or other
the Commission at such time and place       paper; that to the best of his or her
as it may designate, to be conducted in     knowledge, information and belief
person or by telephone conference call.     formed after reasonable inquiry, it is
   (4) The failure of any attorney or       well grounded in fact and is warranted
party, following reasonable notice, to      by existing law or a good faith argu-
appear at a scheduled conference will       ment for the extension, modification or

                                        654
Federal Communications Commission                                             § 76.1003

reversal of existing law; and that it is         (3) Unless otherwise directed by the
not interposed for any improper pur-          Commission, or upon motion by the
pose. If any pleading or other submis-        Mass Media Bureau Chief, the Mass
sion is signed in violation of this provi-    Media Bureau Chief shall not be
sion, the Commission shall upon mo-           deemed to be a party to a program ac-
tion or upon its own initiative impose        cess compliant proceeding designated
upon the party an appropriate sanc-           for a hearing before an administrative
tion. Where the pleading or submission        law judge pursuant to this paragraph.
is signed by counsel, the provisions of          (n) Petitions for reconsideration. Peti-
§§ 1.52 and 1.24 of this chapter shall also   tions for reconsideration of interlocu-
apply.                                        tory actions by the Commission’s staff
   (l) Copies; service. (1) The complainant   or by an administrative law judge will
shall file an original plus three copies      not be entertained. Petitions for recon-
of the complaint with the Commission.         sideration of a decision on the merits
However, if the complaint is addressed        made by the Commission’s staff should
against multiple defendants, complain-        be filed in accordance with §§ 1.104–1.106
ant shall provide three additional cop-       of this chapter.
ies of the complaint for each additional         (o) Interlocutory review. (1) Except as
defendant.                                    provided below, no party may seek re-
   (2) An original plus two copies shall      view of interlocutory rulings until a
be filed of all pleadings and documents       decision on the merits has been issued
other than the complaint.                     by the staff or administrative law
   (3) The complainant shall serve the        judge.
compliant on each defendant at the               (2) Rulings listed in this paragraph
same time that it is filed at the Com-        are reviewable as a matter of right. An
mission.                                      application for review of such ruling
   (4) All subsequent pleadings and           may not be deferred and raised as an
briefs, as well as all letters, documents     exception to a decision on the merits.
or other written submissions, shall be           (i) If the staff’s ruling denies or ter-
served by the filing party on all other       minates the right of any person to par-
parties to the proceeding, together           ticipate as a party to the proceeding,
with proof of such service in accord-         such person, as a matter of right, may
ance with the requirements of § 1.47 of       file an application for review of that
this chapter.                                 ruling.
   (5) The parties to any program access         (ii) If the staff’s ruling requires pro-
compliant proceeding brought pursuant         duction of documents or other written
to this section may be required to file       evidence, over objection based on a
additional copies of any or all papers        claim of privilege, the ruling on the
filed in the proceeding.                      claim of privilege is reviewable as a
   (m) Referral to administrative law         matter of right.
judge. (1) After reviewing the com-              (iii) If the staff’s ruling denies a mo-
plaint, answer and reply, and at any          tion to disqualify a staff person from
stage of the proceeding thereafter, the       participating in the proceeding, the
Commission staff may, in its discre-          ruling is reviewable as a matter of
tion, designate any program access            right.
compliant proceeding for an adjudica-            (p) Expedited review. (1) Any party to
tory hearing before an administrative         a program access complaint proceeding
law judge.                                    aggrieved by any decision on the mer-
   (2) Before designation for hearing,        its issued by the staff pursuant to dele-
the staff shall notify, either orally or      gated authority may file an application
in writing, the parties to the proceed-       for review by the Commission in ac-
ing of its intent to so designate, and        cordance with § 1.115 of this chapter.
the parties shall be given a period of           (2) Any party to a program access
ten (10) days to elect to resolve the dis-    complaint proceeding aggrieved by any
pute through alternative dispute reso-        decision on the merits by an adminis-
lution procedures, or to proceed with         trative law judge may file an appeal of
an adjudicatory hearing. Such election        the decision directly with the Commis-
shall be submitted in writing to the          sion, in accordance with § 1.276(a) and
Commission.                                   §§ 1.277(a)–(c) of this chapter, except

                                          655
§ 76.1003                                            47 CFR Ch. I (10–1–98 Edition)

that unless a stay is granted by the          (2) Additional sanctions. The remedies
Commission, the decision by the ad-         provided in paragraph (s)(1) of this sec-
ministrative law judge will become ef-      tion are in addition to and not in lieu
fective upon release and will remain in     of the sanctions available under title V
effect pending appeal.                      or any other provision of the Commu-
  (q) Frivolous complaints. It shall be     nications Act.
unlawful for any party to file a frivo-       (3) Imposition of damages. (i) Bifurca-
lous complaint with the Commission          tion. In all cases in which damages are
alleging any violation of this subpart.     requested, the Commission may bifur-
Any violation of this paragraph shall       cate the program access violation de-
constitute an abuse of process subject      termination from any damage adju-
to appropriate sanctions.                   dication.
  (r) Statute of limitations. Any com-        (ii) Burden of proof. The burden of
plaint filed pursuant to this subsection    proof regarding damages rests with the
must be filed within one year of the        complainant, who must demonstrate
date on which one of the following          with specificity the damages arising
events occurs:                              from the program access violation. Re-
  (1) The satellite cable programming       quests for damages that grossly over-
or satellite broadcast programming          state the amount of damages may re-
vendor enters into a contract with the      sult in a Commission determination
                                            that the complainant failed to satisfy
complainant that the complainant al-
                                            its burden of proof to demonstrate with
leges to violate one or more of the
                                            specificity the damages arising from
rules contained in this subpart; or
                                            the program access violation.
  (2) The satellite cable programming         (iii) Damages adjudication. (A) The
or satellite broadcast programming          Commission may, in its discretion, end
vendor offers to sell programming to        adjudication of damages with a written
the complainant pursuant to terms           order determining the sufficiency of
that the complainant alleges to violate     the damages computation submitted in
one or more of the rules contained in       accordance with paragraph (c)(5)(iii)(A)
this subpart; or                            of this section or the damages com-
  (3) The complainant has notified a        putation methodology submitted in ac-
cable operator, or a satellite cable pro-   cordance with paragraph (c)(5)(iii)(B)(4)
gramming vendor or a satellite broad-       of this section, modifying such com-
cast programming vendor that it in-         putation or methodology, or requiring
tends to file a complaint with the Com-     the complainant to resubmit such com-
mission based on a request to purchase      putation or methodology.
or negotiate to purchase satellite cable      (1) Where the Commission issues a
programming or satellite broadcast          written order approving or modifying a
programming, or a request to amend an       damages computation submitted in ac-
existing contract pertaining to such        cordance with paragraph (c)(5)(iii)(A)
programming pursuant to § 76.1002(f)        of this section, the defendant shall rec-
that      has     been     denied      or   ompense the complainant as directed
unacknowledged, allegedly in violation      therein.
of one or more of the rules contained in      (2) Where the Commission issues a
this subpart.                               written order approving or modifying a
  (s) Remedies for violations—(1) Rem-      damages computation methodology
edies authorized. Upon completion of        submitted in accordance with para-
such adjudicatory proceeding, the           graph (c)(5)(iii)(B)(4) of this section,
Commission shall order appropriate          the parties shall negotiate in good
remedies, including, if necessary, (i)      faith to reach an agreement on the
the imposition of damages, and/or           exact amount of damages pursuant to
  (ii) the establishment of prices,         the Commission-mandated methodol-
terms, and conditions for the sale of       ogy.
programming to the aggrieved multi-           (B) Within thirty days of the
channel video programming distribu-         issuance of a paragraph (c)(5)(iii)(B)(4)
tor. Such order shall set forth a time-     of this section damages methodology
table for compliance, and shall become      order, the parties shall submit jointly
effective upon release.                     to the Commission either:

                                        656
Federal Communications Commission                                                      § 76.1200

  (1) A statement detailing the parties’            operator has an attributable interest
agreement as to the amount of dam-                  shall apply to any satellite cable pro-
ages;                                               gramming vendor in which such com-
  (2) A statement that the parties are              mon carrier has an attributable inter-
continuing to negotiate in good faith               est. For the purposes of this section,
and a request that the parties be given             two or fewer common officers or direc-
an extension of time to continue nego-              tors shall not by itself establish an at-
tiations; or                                        tributable interest by a common car-
  (3) A statement detailing the bases               rier in a satellite cable programming
for the continuing dispute and the rea-             vendor (or its parent company).
sons why no agreement can be reached.                 (b) Sections 76.1002(c)(1) through (3)
  (C) (1) In cases in which the parties             shall be applied to a common carrier or
cannot resolve the amount of damages                its affiliate that provides video pro-
within a reasonable time period, the                gramming by any means directly to
Commission retains the right to deter-              subscribers in such a way that such
mine the actual amount of damages on                common carrier or its affiliate shall be
its own, or through the procedures de-              generally restricted from entering into
scribed in paragraph (s)(3)(iii)(C)(2) of           an exclusive arrangement for satellite
this section.                                       cable programming or satellite broad-
  (2) Issues concerning the amount of               cast programming with a satellite
damages may be designated by the                    cable programming vendor in which a
Chief, Cable Services Bureau for hear-              common carrier or its affiliate has an
ing before, or, if the parties agree, sub-          attributable interest or a satellite
mitted for mediation to, a Commission               broadcast programming vendor in
Administrative Law Judge.                           which a common carrier or its affiliate
  (D) Interest on the amount of dam-                has an attributable interest, unless the
ages awarded will accrue from either                arrangement pertains to an area served
the date indicated in the Commission’s              by a cable system as of October 5, 1992,
written order issued pursuant to para-              and the Commission determines in ac-
graph (s)(3)(iii)(A)(1) of this section or          cordance with Section § 76.1002(c)(4)
the date agreed upon by the parties as              that such arrangment is in the public
a result of their negotiations pursuant             interest.
to paragraph (s)(3)(iii)(A)(2) of this sec-
tion. Interest shall be computed at ap-             [61 FR 18980, Apr. 30, 1996, as amended at 61
plicable rates published by the Internal            FR 28708, June 5, 1996]
Revenue Service for tax refunds.
                                                    §§ 76.1005—76.1010     [Reserved]
[58 FR 27673, May 11, 1993, as amended at 59
FR 66258, Dec. 23, 1994; 63 FR 45745, Aug. 27,             Subpart P—Competitive
1998]
                                                      Availability of Navigation Devices
  EFFECTIVE DATE NOTE: At 63 FR 45745, Aug.
27, 1998, § 76.1003 was amended by adding
paragraphs (c)(5) and (s)(3); and by revising         SOURCE: 63 FR 38094, July 15, 1998, unless
paragraphs (d)(1), (d)(2), (e), and (s)(1). These   otherwise noted.
amendments contain information collection             EFFECTIVE DATE NOTE: At 63 FR 38094, July
and recordkeeping requirements and will not         15, 1998, subpart P was added. This subpart
become effective until approval has been            contains information collection and record-
given by the Office of Management and               keeping requirements and will not become
Budget.                                             effective until approval has been given by
                                                    the Office of Management and Budget, ex-
§ 76.1004 Applicability of program ac-              cept for § 76.1204, which will become effective
     cess rules to common carriers and              July 1, 2000.
     affiliates.
   (a) Any provision that applies to a              § 76.1200 Definitions.
cable operator under §§ 76.1000 through                As used in this subpart:
76.1003 shall also apply to a common                   (a) Multichannel video programming
carrier or its affiliate that provides              system. A distribution system that
video programming by any means di-                  makes available for purchase, by cus-
rectly to subscribers. Any such provi-              tomers or subscribers, multiple chan-
sion that applies to a satellite cable              nels of video programming other than
programming vendor in which a cable                 an open video system as defined by

                                                657
§ 76.1201                                                47 CFR Ch. I (10–1–98 Edition)

§ 76.1500(a). Such systems include, but      from being made available to subscrib-
are not limited to, cable television sys-    ers from retailers, manufacturers, or
tems, multichannel multipoint dis-           other vendors that are unaffiliated
tribution systems, direct broadcast          with such owner or operator, subject to
satellite systems, other systems for         § 76.1209.
providing direct-to-home multichannel
video programming via satellite, and         § 76.1203   Incidence of harm.
satellite master antenna systems.              A multichannel video programming
   (b) Multichannel video programming
                                             distributor may restrict the attach-
distributor. A person such as, but not
                                             ment or use of navigation devices with
limited to, a cable operator, a multi-
                                             its system in those circumstances
channel multipoint distribution serv-
                                             where electronic or physical harm
ice, a direct broadcast satellite service,
or a television receive-only satellite       would be caused by the attachment or
program distributor, who owns or oper-       operation of such devices or such de-
ates a multichannel video program-           vices that assist or are intended or de-
ming system.                                 signed to assist in the unauthorized re-
   (c) Navigation devices. Devices such as   ceipt of service. Such restrictions may
converter boxes, interactive commu-          be accomplished by publishing and pro-
nications equipment, and other equip-        viding to subscribers standards and de-
ment used by consumers to access mul-        scriptions of devices that may not be
tichannel video programming and              used with or attached to its system.
other services offered over multi-           Such standards shall foreclose the at-
channel video programming systems.           tachment or use only of such devices as
   (d) Affiliate. A person or entity that    raise reasonable and legitimate con-
(directly or indirectly) owns or con-        cerns of electronic or physical harm or
trols, is owned or controlled by, or is      theft of service. In any situation where
under common ownership or control            theft of service or harm occurs or is
with, another person, as defined in the      likely to occur, service may be discon-
notes accompanying § 76.501.                 tinued.
   (e) Conditional access. The mecha-
nisms that provide for selective access      § 76.1204 Availability of equipment
and denial of specific services and               performing conditional access or
make use of signal security that can              security functions.
prevent a signal from being received            (a)(1) A multichannel video program-
except by authorized users.                  ming distributor that utilizes naviga-
                                             tion devices to perform conditional ac-
§ 76.1201 Rights of subscribers to use
     or attach navigation devices.           cess functions shall make available
                                             equipment that incorporates only the
   No multichannel video programming         conditional access functions of such de-
distributor shall prevent the connec-
                                             vices. Commencing on January 1, 2005,
tion or use of navigation devices to or
                                             no multichannel video programming
with its multichannel video program-
                                             distributor subject to this section shall
ming system, except in those cir-
cumstances where electronic or phys-         place in service new navigation devices
ical harm would be caused by the at-         for sale, lease, or use that perform both
tachment or operation of such devices        conditional access and other functions
or such devices may be used to assist        in a single integrated device.
or are intended or designed to assist in        (2) The foregoing requirement shall
the unauthorized receipt of service.         not apply to a multichannel video pro-
                                             gramming distributor that supports
§ 76.1202 Availability of navigation de-     the active use by subscribers of naviga-
     vices.                                  tion devices that: (i) operate through-
   No multichannel video programming         out the continental United States, and
distributor shall by contract, agree-        (ii) are available from retail outlets
ment, patent right, intellectual prop-       and other vendors throughout the
erty right or otherwise prevent naviga-      United States that are not affiliated
tion devices that do not perform condi-      with the owner or operator of the mul-
tional access or security functions          tichannel video programming system.

                                         658
Federal Communications Commission                                                   § 76.1210

  (b) Conditional access function equip-           state the charges to consumers for
ment made available pursuant to para-              such services and equipment.
graph (a)(1) of this section shall be de-
signed to connect to and function with             § 76.1207   Waivers.
other navigation devices available                   The Commission may waive a regula-
through the use of a commonly used                 tion adopted under this subpart for a
interface or an interface that conforms            limited time, upon an appropriate
to appropriate technical standards pro-            showing by a provider of multichannel
mulgated by a national standards orga-             video programming and other services
nization.                                          offered over multichannel video pro-
  (c) No multichannel video program-               gramming systems, or an equipment
ming distributor shall by contract,                provider that such a waiver is nec-
agreement, patent, intellectual prop-              essary to assist the development or in-
erty right or otherwise preclude the ad-           troduction of a new or improved multi-
dition of features or functions to the
                                                   channel video programming or other
equipment made available pursuant to
                                                   service offered over multichannel video
this section that are not designed, in-
                                                   programming systems, technology, or
tended or function to defeat the condi-
                                                   products. Such waiver requests should
tional access controls of such devices
                                                   be made pursuant to § 76.7. Such a
or to provide unauthorized access to
service.                                           waiver shall be effective for all service
                                                   providers and products in the category
  (d) Notwithstanding the foregoing,
                                                   in which the waiver is granted.
navigation devices need not be made
available pursuant to this section                 § 76.1208   Sunset of regulations.
where:
  (1) It is not reasonably feasible to               The regulations adopted under this
prevent such devices from being used               subpart shall cease to apply when the
for the unauthorized reception of serv-            Commission determines that (1) the
ice; or                                            market for multichannel video dis-
  (2) It is not reasonably feasible to             tributors is fully competitive; (2) the
separate conditional access from other             market for converter boxes, and inter-
functions without jeopardizing secu-               active   communications     equipment,
rity.                                              used in conjunction with that service is
  (e) The requirements of this section             fully competitive; and (3) elimination
shall become applicable on July 1, 2000.           of the regulations would promote com-
                                                   petition and the public interest. Any
  EFFECTIVE DATE NOTE: At 63 FR 38095, July        interested party may petition the Com-
15, 1998, § 76.1204 was added, effective July 1,
2000.
                                                   mission for such a determination.

§ 76.1205 Availability of interface in-            § 76.1209   Theft of service.
     formation.                                      Nothing in this subpart shall be con-
  Technical information concerning                 strued to authorize or justify any use,
interface parameters that are needed               manufacture, or importation of equip-
to permit navigation devices to operate            ment that would violate 47 U.S.C. 553
with multichannel video programming                or any other provision of law intended
systems shall be provided by the sys-              to preclude the unauthorized reception
tem operator upon request in a timely              of multichannel video programming
manner.                                            service.

§ 76.1206 Equipment sale or               lease    § 76.1210   Effect on other rules.
     charge subsidy prohibition.                      Nothing in this subpart affects
  Multichannel video programming dis-              § 64.702(d) of the Commission’s regula-
tributors offering navigation devices              tions or other Commission regulations
subject to the provisions of § 76.923 for          governing interconnection and com-
sale or lease directly to subscribers,             petitive provision of customer premises
shall adhere to the standards reflected            equipment used in connection with
therein relating to rates for equipment            basic common carrier communications
and installation and shall separately              services.

                                               659
§ 76.1300                                               47 CFR Ch. I (10–1–98 Edition)

     Subpart Q—Regulation of                   rect broadcast satellite service, a tele-
       Carriage Agreements                     vision receive-only satellite program
                                               distributor, and a satellite master an-
                                               tenna television system operator, as
  SOURCE: 58 FR 60395, Nov. 16, 1993, unless
otherwise noted.
                                               well as buying groups or agents of all
                                               such entities.
§ 76.1300 Definitions.                           (d) Video programming vendor. The
                                               term ‘‘video programming vendor’’
   As used in this subpart:
                                               means a person engaged in the produc-
   (a) Affiliated. For purposes of deter-
                                               tion, creation, or wholesale distribu-
mining whether a video programming
                                               tion of video programming for sale.
vendor is ‘‘affiliated’’ with a multi-
channel video programming distribu-            § 76.1301 Prohibited practices.
tor, as used in this subpart, the defini-
tions for ‘‘attributable interest’’ con-          (a) Financial interest. No cable opera-
tained in the notes to § 76.501 shall be       tor or other multichannel video pro-
used, provided, however that:                  gramming distributor shall require a
   (1) The single majority shareholder         financial interest in any program serv-
provisions of Note 2(b) to § 76.501 and        ice as a condition for carriage on one
the limited partner insulation provi-          or more of such operator’s/provider’s
sions of Note 2(g) to § 76.501 shall not       systems.
apply; and                                        (b) Exclusive rights. No cable operator
   (2) The provisions of Note 2(a) to          or other multichannel video program-
§ 76.501 regarding five (5) percent inter-     ming distributor shall coerce any video
ests shall include all voting or nonvot-       programming vendor to provide, or re-
ing stock or limited partnership equity        taliate against such a vendor for fail-
interests of five (5) percent or more.         ing to provide, exclusive rights against
   (b) Buying groups. The term ‘‘buying        any other multichannel video program-
group’’ or ‘‘agent,’’ for purposes of the      ming distributor as a condition for car-
definition of a multichannel video pro-        riage on a system.
gramming distributor set forth in para-           (c) Discrimination. No multichannel
graph (e) of this section, means an en-        video programming distributor shall
tity representing the interests of more        engage in conduct the effect of which is
than one entity distributing multi-            to unreasonably restrain the ability of
channel video programming that:                an unaffiliated video programming
   (1) Agrees to be financially liable for     vendor to compete fairly by discrimi-
any fees due pursuant to a satellite           nating in video programming distribu-
cable programming, or satellite broad-         tion on the basis of affiliation or non-
cast programming, contract which it            affiliation of vendors in the selection,
signs as a contracting party as a rep-         terms, or conditions for carriage of
resentative of its members or whose            video programming provided by such
members, as contracting parties, agree         vendors.
to joint and several liability; and
   (2) Agrees to uniform billing and           § 76.1302 Adjudicatory proceedings.
standardized contract provisions for in-          Any video programming vendor or
dividual members; and                          multichannel video programming dis-
   (3) Agrees either collectively or indi-     tributor aggrieved by conduct that it
vidually on reasonable technical qual-         alleges to constitute a violation of the
ity standards for the individual mem-          regulations set forth in this subpart
bers of the group.                             may commence an adjudicatory pro-
   (c) Multichannel video programming          ceeding at the Commission.
distributor. The term ‘‘multichannel              (a) Notice required. Any aggrieved
video programming distributor’’ means          video programming vendor or multi-
an entity engaged in the business of           channel video programming distributor
making available for purchase, by sub-         intending to file a complaint under this
scribers or customers, multiple chan-          section must first notify the defendant
nels of video programming. Such enti-          multichannel video programming dis-
ties include, but are not limited to, a        tributor that it intends to file a com-
cable     operator,     a    multichannel      plaint with the Commission based on
multipoint distribution service, a di-         actions alleged to violate one or more

                                           660
Federal Communications Commission                                            § 76.1302

of the provisions contained in § 76.1301.    multichannel video programming dis-
The notice must be sufficiently de-          tributor that describes the defendant,
tailed so that its recipient(s) can deter-   and the address and telephone number
mine the specific nature of the poten-       of the defendant;
tial complaint. The potential com-             (iii) The name, address and telephone
plainant must allow a minimum of ten         number of complainant’s attorney, if
(10) days for the potential defendant(s)     represented by counsel;
to respond before filing a complaint           (iv) Citation to the section of the
with the Commission.                         Communications Act and/or Commis-
  (b) General pleading requirements. Car-    sion regulation or order alleged to have
riage agreement complaint proceedings        been violated;
are generally resolved on a written            (v) A complete statement of facts,
record consisting of a complaint, an-        which, if proven true, would constitute
swer and reply, but may also include         such a violation;
other written submissions such as              (vi) Any evidence that supports the
briefs and written interrogatories. All      truth or accuracy of the alleged facts,
written submissions, both substantive        including, when relevant, any written
and procedural, must conform to the          carriage agreement between the com-
following standards:                         plainant and the defendant, with pro-
  (1) Pleadings must be clear, concise,      prietary information redacted;
and explicit. All matters concerning a         (vii) Evidence that supports com-
claim, defense or requested remedy           plainant’s belief that the defendant,
should be pleaded fully and with speci-      where necessary, meets the attribution
ficity.                                      standards for application of the car-
  (2) Pleadings must contain facts           riage agreement regulations;
which, if true, are sufficient to con-         (viii) For complaints alleging a viola-
stitute a violation of the Act or Com-       tion of § 76.1301(c), evidence that sup-
mission order or regulation, or a de-        ports complainant’s claim that the ef-
fense to such alleged violation.             fect of the conduct complained of is to
  (3) Facts must be supported by rel-        unreasonably restrain the ability of
evant documentation or affidavit.            the complainant to compete fairly;
  (4) Legal arguments must be sup-             (ix) The specific relief sought, and
ported by appropriate judicial, Com-         the rationale and any evidence in sup-
mission, or statutory authority.             port of the relief sought.
  (5) Opposing authorities must be dis-        (2) Every complaint alleging a viola-
tinguished.                                  tion of the carriage agreement require-
  (6) Copies must be provided of all         ments shall be accompanied by a sworn
non-Commission       authorities    relied   affidavit signed by an authorized offi-
upon which are not routinely available       cer or agent of the complainant. This
in national reporting systems, such as       affidavit shall contain a statement
unpublished decisions or slip opinions       that the affiant has read the complaint
of courts or administrative agencies.        and that to the best of the affiant’s
  (7) Parties are responsible for the        knowledge, information and belief
continuing accuracy and completeness         formed after reasonable inquiry it is
of all information and supporting au-        well grounded in fact and is warranted
thority furnished in a pending com-          under Commission regulations and
plaint proceeding. Information submit-       policies or is a good faith argument for
ted, as well as relevant legal authori-      the extension, modification or reversal
ties, must be current and updated as         of such regulations or policies, and it is
necessary and in a timely manner at          not interposed for any improper pur-
any time before a decision is rendered       pose. If the complaint is signed in vio-
on the merits of the complaint.              lation of this rule, the Commission
  (c) Complaint.                             upon motion or its own initiative shall
  (1) A carriage agreement complaint         impose upon the complainant an appro-
shall contain:                               priate sanction.
  (i) The name of the complainant and          (3) The following format may be used
defendant;                                   in cases to which it is applicable, with
  (ii) The address and telephone num-        such     modifications    as   the    cir-
ber of the complainant, the type of          cumstances may render necessary:

                                         661
§ 76.1302                                                   47 CFR Ch. I (10–1–98 Edition)
    Before the Federal Communications              averments on which the adverse party
    Commission, Washington, DC 20554               relies. If the defendant is without
  In the matter of Complainant, v. Defend-         knowledge or information sufficient to
ant.                                               form a belief as to the truth of an aver-
  File No. (To be inserted by the Commis-          ment, the defendant shall so state and
sion) [Insert Subject/Nature of Violation]
                                                   this has the effect of a denial. When a
        Carriage Agreement Complaint               defendant intends in good faith to deny
  To: The Commission.                              only part of an averment, the answer
  The complainant (here insert full name of
                                                   shall specify so much of it as is true
complainant, and if a corporation, the cor-        and shall deny only the remainder. The
porate title of such complainant).                 defendant may make its denials as spe-
  1. (Here state the complainant’s post office     cific denials of designated averments
address and telephone number.)                     or paragraphs, or may generally deny
  2. (Here insert the name, defendant’s meth-      all the averments except such des-
od of multichannel video distribution, ad-
dress and telephone number of defendant.)          ignated averments or paragraphs as the
  3. (Here insert fully and clearly the specific   defendant expressly admits. When the
act or thing complained of, together with          defendant intends to controvert all
such facts as are necessary to give full un-       averments, the defendant may do so by
derstanding of the matter, including rel-          general denial.
evant legal and documentary support.)
                                                      (4) Averments in a complaint are
  Wherefore, complainant asks (here state
specifically the relief desired, including ra-     deemed to be admitted when not denied
tionale and relevant legal and documentary         in the answer.
support for such relief).                             (5) The answer shall also address the
(Date)                                             relief requested in the complaint, in-
(Name of complainant)                              cluding legal and documentary support
(Name, address, and telephone number of at-
torney, if any)                                    for such response, and may include an
                                                   alternative relief proposal without
  (4) The complaint must be accom-                 prejudice to any denials or defenses
panied by appropriate evidence dem-                raised.
onstrating that the required notifica-                (e) Reply. Within twenty (20) days
tion pursuant to paragraph (a) of this
                                                   after service of an answer, the com-
section has been made.
                                                   plainant may file and serve a reply
  (d) Answer.
  (1) Any multichannel video program-              which shall be responsive to matters
ming distributor upon which a carriage             contained in the answer and shall not
agreement complaint is served under                contain new matters. Failure to reply
this section shall answer within thirty            will not be deemed an admission of any
(30) days of service of the complaint,             allegations contained in the answer,
unless otherwise directed by the Com-              except with respect to any affirmative
mission.                                           defenses set forth therein.
  (2) The answer shall advise the par-                (f) Motions. Except as provided in this
ties and the Commission fully and com-             section, or upon a showing of extraor-
pletely of the nature of any and all de-           dinary circumstances, additional mo-
fenses, and shall respond specifically to          tions or pleadings by any party will
all material allegations of the com-               not be accepted.
plaint. Collateral or immaterial issues               (g) Discovery.
shall be avoided in answers and every                 (1) The Commission staff may in its
effort should be made to narrow the                discretion order discovery limited to
issues. Any defendant failing to file              the issues specified by the Commission.
and serve an answer within the time                Such discovery may include answers to
and in the manner prescribed by these
                                                   written interrogatories or document
rules may be deemed in default and an
                                                   production.
order may be entered against defendant
in accordance with the allegations con-               (2) The Commission staff may in its
tained in the complaint.                           discretion hold a status conference
  (3) The answer shall state concisely             with the parties, pursuant to paragraph
any and all defenses to each claim as-             (j) of this section, to determine the
serted and shall admit or deny the                 scope of discovery.

                                               662
Federal Communications Commission                                            § 76.1302

  (3) If the Commission staff deter-          shall not use the information in any
mines that extensive discovery is re-         activity or function other than the
quired or that resolution of the com-         prosecution or defense in the case be-
plaint will require resolution of dis-        fore the Commission. Each individual
puted facts, the staff will advise the        who is provided access to the informa-
parties that the proceeding will be re-       tion by the opposing party shall sign a
ferred to an administrative law judge         notarized statement affirmatively stat-
in accordance with paragraph (m) of           ing, or shall certify under penalty of
this section.                                 perjury, that the individual has person-
  (h) Confidentiality of proprietary infor-   ally reviewed the Commission’s rules
mation.                                       and understands the limitations they
  (1) Any materials generated or pro-         impose on the signing party.
vided by a party in the course of adju-
                                                (3) No copies of materials marked
dicating a carriage agreement com-
                                              proprietary may be made except copies
plaint under this subpart may be des-
                                              to be used by persons designated in
ignated as proprietary by that party if
                                              paragraph (h)(2) of this section. Each
the party believes in good faith that
the materials fall within an exemption        party shall maintain a log recording
to disclosure contained in the Freedom        the number of copies made of all pro-
of Information Act (FOIA), 5 U.S.C.           prietary material and the persons to
552(b). Any party asserting confiden-         whom the copies have been provided.
tiality for such materials shall so indi-       (4) Upon termination of the com-
cate by clearly marking each page, or         plaint proceeding, including all appeals
portion thereof, for which a propri-          and petitions, all originals and repro-
etary designation is claimed. If a pro-       ductions of any proprietary materials,
prietary designation is challenged, the       along with the log recording persons
party claiming confidentiality will           who received copies of such materials,
have the burden of demonstrating, by a        shall be provided to the producing
preponderance of the evidence, that the       party. In addition, upon final termi-
material designated as proprietary            nation of the complaint proceeding,
falls under the standards for nondisclo-      any notes or other work product de-
sure enunciated in the FOIA.                  rived in whole or in part from the pro-
  (2) Materials marked as proprietary         prietary materials of an opposing or
may be disclosed solely to the follow-        third party shall be destroyed
ing persons, only for use in prosecuting        (i) Other required written submissions.
or defending a party to the complaint           (1) The Commission may, in its dis-
action, and only to the extent nec-           cretion, require the parties to file
essary to assist in the prosecution or        briefs summarizing the facts and issues
defense of the case:
                                              presented in the pleadings and other
  (i) Counsel of record representing the
                                              record evidence. These briefs shall con-
parties in the complaint action and
                                              tain the findings of fact and conclu-
any support personnel employed by
                                              sions of law which that party is urging
such attorneys;
                                              the Commission to adopt, with specific
  (ii) Officers or employees of the op-
posing party who are named by the op-         citations to the record, and supported
posing party as being directly involved       by relevant authority and analysis.
in the prosecution or defense of the            (2) The Commission may require the
case;                                         parties to submit any additional infor-
  (iii) Consultants or expert witnesses       mation it deems appropriate for a full,
retained by the parties;                      fair, and expeditious resolution of the
  (iv) The Commission and its staff;          proceeding, including copies of all con-
and                                           tracts and documents reflecting ar-
  (v) Court reporters and stenographers       rangements and understandings alleged
in accordance with the terms and con-         to violate the carriage agreement re-
ditions of this section. These individ-       quirements set forth in the Commu-
uals shall not disclose information des-      nications Act and § 76.1301, as well as
ignated as proprietary to any person          affidavits and exhibits.
who is not authorized under this sec-           (3) Any briefs submitted shall be filed
tion to receive such information, and         concurrently by both the complainant

                                          663
§ 76.1302                                            47 CFR Ch. I (10–1–98 Edition)

and defendant at such time as is des-       appear at a scheduled conference will
ignated by the staff. Such briefs shall     be deemed a waiver and will not pre-
not exceed fifty (50) pages.                clude the Commission from conferring
   (4) Reply briefs may be submitted by     with those parties or counsel present.
either party within twenty (20) days          (5) During a status conference, the
from the date initial briefs are due.       Commission staff may issue oral rul-
Reply briefs shall not exceed thirty (30)   ings pertaining to a variety of inter-
pages.                                      locutory matters relevant to the con-
   (5) Briefs containing information        duct of a carriage agreement complaint
which is claimed by an opposing or          proceeding including, inter alia, proce-
third party to be proprietary under         dural matters, discovery, and the sub-
paragraph (h) of this section shall be      mission of briefs or other evidentiary
submitted to the Commission in con-         materials. These rulings will be
fidence pursuant to the requirements        promptly memorialized in writing and
of § 0.459 of this chapter, and shall be    served on the parties. When such rul-
clearly marked ‘‘Not for Public Inspec-     ings require a party to take affirmative
tion.’’ An edited version removing all      action not subject to deadlines estab-
proprietary data shall be filed with the    lished by another provision of this sub-
Commission for inclusion in the public      part, such action will be required with-
file within five (5) days from the date     in ten (10) days from the date of the
the unedited version is submitted and       written memorialization unless other-
served on opposing parties.                 wise directed by the staff.
   (j) Status conference.                     (k) Specifications as to pleadings,
   (1) In any carriage agreement com-       briefs, and other documents; subscrip-
plaint proceeding, the Commission           tions.
staff may in its discretion direct the        (1) All papers filed in a carriage
attorneys and/or the parties to appear      agreement complaint proceeding must
for a conference to consider:               be drawn in conformity with the re-
   (i) Simplification or narrowing of the   quirements of §§ 1.49 and 1.50 of this
issues;                                     chapter.
   (ii) The necessity for or desirability     (2) All averments of claims or de-
of amendments to the pleadings, addi-       fenses in complaints and answers shall
tional pleadings, or other evidentiary      be made in numbered paragraphs. The
submissions;                                contents of each paragraph shall be
   (iii) Obtaining admissions of fact or    limited as far as practicable to a state-
stipulations between the parties as to      ment of a single set of circumstances.
any or all of the matters in con-           Each claim founded on a separate
troversy;                                   transaction or occurrence and each af-
   (iv) Settlement of the matters in        firmative defense shall be separately
controversy by agreement of the par-        stated to facilitate the clear presen-
ties;                                       tation of the matters set forth.
   (v) The necessity for and extent of        (3) The original of all pleadings and
discovery, including objections to in-      submissions by any party shall be
terrogatories or requests for written       signed by that party, or by the party’s
documents;                                  attorney. Complaints must be signed
   (vi) The need and schedule for filing    by the complainant. The signing party
briefs, and the date for any further        shall state his or her address and tele-
conferences; and                            phone number and the date on which
   (vii) Such other matters that may        the document was signed. Copies
aid in the disposition of the complaint.    should be conformed to the original.
   (2) Any party may request that a con-    Except when otherwise specifically
ference be held at any time after the       provided by rule or statute, pleadings
complaint has been filed.                   need not be verified. The signature of
   (3) Conferences will be scheduled by     an attorney or party shall be a certifi-
the Commission at such time and place       cation that the attorney or party has
as it may designate, to be conducted in     read the pleading, motion, or other
person or by telephone conference call.     paper; that to the best of his or her
   (4) The failure of any attorney or       knowledge, information and belief
party, following reasonable notice, to      formed after reasonable inquiry, it is

                                        664
Federal Communications Commission                                             § 76.1302

well grounded in fact and is warranted        Mass Media Bureau Chief, the Mass
by existing law or a good faith argu-         Media Bureau Chief shall not be
ment for the extension, modification or       deemed to be a party to a carriage
reversal of existing law; and that it is      agreement complaint proceeding des-
not interposed for any improper pur-          ignated for a hearing before an admin-
pose. If any pleading or other submis-        istrative law judge pursuant to this
sion is signed in violation of this provi-    paragraph (m).
sion, the Commission shall upon mo-              (n) Petitions for reconsideration. Peti-
tion or upon its own initiative impose        tions for reconsideration of interlocu-
upon the party an appropriate sanc-           tory actions by the Commission’s staff
tion. Where the pleading or submission        or by an administrative law judge will
is signed by counsel, the provisions of       not be entertained. Petitions for recon-
§§ 1.52 and 1.24 of this chapter shall also   sideration of a decision on the merits
apply                                         made by the Commission’s staff should
   (l) Copies; service.                       be filed in accordance with §§ 1.104
   (1) The complainant shall file an          through 1.106 of this chapter.
original plus three copies of the com-           (o) Interlocutory review.
plaint with the Commission.                      (1) Except as provided in paragraph
   (2) An original plus two copies shall      (o)(2) of this section, no party may
be filed of all pleadings and documents       seek review of interlocutory rulings
other than the complaint.                     until a decision on the merits has been
   (3) The complainant shall serve the        issued by the staff or administrative
complaint on each defendant at the            law judge.
same time that it is filed at the Com-           (2) Rulings listed in this paragraph
mission.                                      are reviewable as a matter of right. An
   (4) All subsequent pleadings and           application for review of such ruling
briefs, as well as all letters, documents     may not be deferred and raised as an
or other written submissions, shall be        exception to a decision on the merits.
served by the filing party on all other          (i) If the staff’s ruling denies or ter-
parties to the proceeding, together           minates the right of any person to par-
with proof of such service in accord-         ticipate as a party to the proceeding,
ance with the requirements of § 1.47 of       such person, as a matter of right, may
this chapter.                                 file an application for review of that
   (5) The parties to any carriage agree-     ruling.
ment complaint proceeding brought                (ii) If the staff’s ruling requires pro-
pursuant to this section may be re-           duction of documents or other written
quired to file additional copies of any       evidence, over objection based on a
or all papers filed in the proceeding.        claim of privilege, the ruling on the
   (m) Referral to administrative law         claim of privilege is reviewable as a
judge.                                        matter of right.
   (1) After reviewing the complaint, an-        (iii) If the staff’s ruling denies a mo-
swer and reply, and at any stage of the       tion to disqualify a staff person from
proceeding thereafter, the Commission         participating in the proceeding, the
staff may, in its discretion, designate       ruling is reviewable as a matter of
any carriage agreement complaint pro-         right.
ceeding for an adjudicatory hearing be-          (p) Expedited review.
fore an administrative law judge.                (1) Any party to a carriage agree-
   (2) Before designation for hearing,        ment complaint proceeding aggrieved
the staff shall notify, either orally or      by any decision on the merits issued by
in writing, the parties to the proceed-       the staff pursuant to delegated author-
ing of its intent to so designate, and        ity may file an application for review
the parties shall be given a period of        by the Commission in accordance with
ten (10) days to elect to resolve the dis-    § 1.115 of this chapter.
pute resolution procedures, or to pro-           (2) Any party to a carriage agree-
ceed with an adjudicatory hearing.            ment complaint proceeding aggrieved
Such election shall be submitted in           by any decision on the merits by an ad-
writing to the Commission.                    ministrative judge may file an appeal
   (3) Unless otherwise directed by the       of the decision directly with the Com-
Commission, or upon motion by the             mission in accordance with § 1.276(a)

                                          665
§§ 76.1303—76.1305                                     47 CFR Ch. I (10–1–98 Edition)

and §§ 1.277 (a) through (c) of this chap-   video programming vendor’s program-
ter, except that unless a stay is grant-     ming will not become effective unless
ed by the Commission, the decision by        and until the decision of the staff or
the administrative law judge will be-        administrative law judge is upheld by
come effective upon release and will re-     the Commission. If the Commission up-
main in effect pending appeal.               holds the remedy ordered by the staff
  (q) Frivolous complaints. It shall be      or administrative law judge in its en-
unlawful for any party to file a frivo-      tirety, the defendant will be required
lous complaint with the Commission           to carry the video programming ven-
alleging any violation of this subpart.      dor’s programming for an additional
Any violation of this paragraph shall        period of time equal to the time
constitute an abuse of process subject       elapsed between the staff or adminis-
to appropriate sanctions.                    trative law judge decision and the
  (r) Statute of limitations. Any com-       Commission’s ruling, on the terms and
plaint filed pursuant to this paragraph      conditions approved by the Commis-
must be filed within one year of the         sion.
date on which one of the following             (2) Additional sanctions. The remedies
events occurs:                               provided in paragraph (s)(1) of this sec-
  (1) The multichannel video program-        tion are in addition to and not in lieu
ming distributor enters into a contract      of the sanctions available under title V
with a video programming vendor that         or any other provision of the Commu-
a party alleges to violate one or more       nications Act.
of the rules contained in this section;      [58 FR 60395, Nov. 16, 1993, as amended at 59
or                                           FR 43777, Aug. 25, 1994]
  (2) The multichannel video program-
ming distributor offers to carry the         §§ 76.1303—76.1305    [Reserved]
video programming vendor’s program-
ming pursuant to terms that a party            Subpart R—Telecommunications
alleges to violate one or more of the               Act Implementation
rules contained in this section; or
  (3) A party has notified a multi-            SOURCE: 61 FR 18980, Apr. 30, 1996, unless
channel video programming distributor        otherwise noted.
that it intends to file a complaint with
the Commission based on violations of        § 76.1400 Purpose.
one or more of the rules contained in           The rules and regulations set forth in
this section.                                this subpart provide procedures for ad-
  (s) Remedies for violations.               ministering certain aspects of cable
  (1) Remedies authorized. Upon comple-      regulation. These rules and regulations
tion of such adjudicatory proceeding,        provide guidance for operators, sub-
the Commission shall order appropriate       scribers and franchise authorities with
remedies, including, if necessary, man-      respect to matters that are subject to
datory carriage of a video program-          immediate implementation under gov-
ming vendor’s programming on defend-         erning statutes but require specific
ant’s video distribution system, or the      regulatory procedures or definitions.
establishment of prices, terms, and
conditions for the carriage of a video       § 76.1401 Effective competition and
programming vendor’s programming.                 local exchange carriers.
Such order shall set forth a timetable          (a) As used in § 76.905(b)(4), the term
for compliance, and shall become effec-      ‘‘comparable’’ programming means ac-
tive upon release, unless any order of       cess to at least 12 channels of program-
mandatory carriage would require the         ming, at least some of which are local
defendant multichannel video program-        television broadcasting signals.
ming distributor to delete existing pro-        (b) As used in § 76.905(b)(4), the term
gramming from its system to accom-           ‘‘affiliate’’ means a person that (di-
modate carriage of a video program-          rectly or indirectly) owns or controls,
ming vendor’s programming. In such           is owned or controlled by, or is under
instances, if the defendant seeks review     common ownership or control with an-
of the staff or administrative law judge     other person. For purposes of the sec-
decision, the order for carriage of a        tion, the term ‘‘own’’ means to own an

                                         666
Federal Communications Commission                                            § 76.1403

equity interest (or the equivalent           filed with the local franchise authority
thereof) of more than 10 percent.            without filing specific FCC Forms.
  (c) An operator meeting the relevant
criteria under § 76.905(b)(4), may, at       § 76.1403   Small cable operators.
any time, file a petition for a deter-          (a) Effective February 8, 1996, a small
mination of effective competition with       cable operator is exempt from rate reg-
the Commission. The petition should          ulation on its cable programming serv-
set forth information supporting a de-       ices tier, or on its basic service tier if
termination that effective competition       that tier was the only service tier sub-
exists as defined in § 76.905(d)(4).         ject to rate regulation as of December
  (d) Upon filing of a petition described    31, 1994, in any franchise area in which
in paragraph (c) of this section with        that operator services 50,000 or fewer
the Commission, the operator filing the      subscribers.
petition shall provide a copy of the pe-
                                                (b) A small cable operator is an oper-
tition to the local franchise authority.
                                             ator who, directly or through an affili-
The Commission will issue a public no-
                                             ate, serves in the aggregate fewer than
tice of the petition’s filing to allow in-
                                             617,000 subscribers in the United States
terested parties to respond. The Com-
mission may then issue an order grant-       and whose annual revenues, when com-
ing or denying the petition. The Com-        bined with the total annual revenues of
mission may issue an order directing         all of its affiliates, do not exceed $250
one or more persons to produce infor-        million in the aggregate.
mation relevant to the petition’s dis-          (c) As used in this section, an opera-
position.                                    tor shall be deemed affiliated with an-
                                             other entity if that entity holds a 20
§ 76.1402 CPST rate complaints.              percent or greater equity interest, pas-
   (a) A local franchise authority may       sive or active, in the operator or exer-
file rate complaints with the Commis-        cises de jure or de facto control over
sion within 180 days of the effective        the operator.
date of a rate increase on the cable op-        (d) Procedures. (1) If a small cable op-
erator’s cable programming services          erator has only a single tier that is
tier if within 90 days of that increase      subject to regulation, the operator, at
the local franchise authority receives       any time, may certify in writing to its
more than one subscriber complaint           local franchise authority that it meets
concerning the increase.                     all criteria necessary to qualify as a
   (b) Before filing a rate complaint        small operator. Upon request of the
with the Commission, the local fran-         local franchising authority, the opera-
chise authority must first give the          tor shall identify in writing all of its
cable operator written notice, includ-       affiliates that provide cable service,
ing a draft FCC Form 329, of the local       the total subscriber base of itself and
franchise authority’s intent to file the     each affiliate, and the aggregate gross
complaint. The local franchise author-       revenues of its cable and non-cable af-
ity must give an operator a minimum          filiates. Within 90 days of receiving the
of 30 days to file with the local fran-      original certification, the local fran-
chise authority the relevant FCC forms       chising authority shall determine
that must be filed to justify a rate in-     whether the operator qualifies for de-
crease or, where appropriate, certifi-       regulation and shall notify the opera-
cation that the operator is not subject      tor in writing of its decision, although
to rate regulation. The operator must        this 90-day period shall be tolled for so
file a complete response with the local      long as it takes the operator to respond
franchise authority within the time pe-      to a proper request for information by
riod specified by the local franchise au-    the local franchising authority. If the
thority. The local franchise authority       local franchising authority finds that
shall file with the Commission the           the operator does not qualify for de-
complaint and the operator’s response        regulation, its notice shall state the
to the Complaint. If the operator’s re-      grounds for that decision. The operator
sponse to the complaint asserts that         may appeal the local franchising
the operator is exempt from rate regu-       authority’s decision to the Commission
lation, the operator’s response can be       within 30 days.

                                         667
§ 76.1404                                                47 CFR Ch. I (10–1–98 Edition)

   (2) Once the operator has certified its   change carrier to use that part of the
eligibility for deregulation on the basic    transmission facilities of a cable sys-
service tier, the local franchising au-      tem extending from the last multi-user
thority shall not prohibit the operator      terminal to the premises of the end
from taking a rate increase and shall        use, the parties shall submit a copy of
not order the operator to make any re-       such contract, along with an expla-
funds unless and until the local fran-       nation of how such contract is reason-
chising authority has rejected the cer-      ably limited in scope and duration, to
tification in a final order that is no       the Commission for review. The parties
longer subject to appeal or that the         shall serve a copy of this submission on
Commission has affirmed. The operator        the local franchising authority, along
shall be liable for refunds for revenues
                                             with a notice of the local franchising
gained (beyond revenues that could be
                                             authority’s right to file comments with
gained under regulation) as a result of
any rate increase taken during the pe-       the Commission consistent with § 76.7.
riod in which it claimed to be deregu-         (b) Based on the record before it, the
lated, plus interest, in the event the       Commission shall determine whether
operator is later found not to be de-        the local exchange carrier’s use of that
regulated. The one-year limitation on        part of the transmission facilities of a
refund liability will not be applicable      cable system extending from the last
during that period to ensure that the        multi-use terminal to the premises of
filing of an invalid small operator cer-     the end user is reasonably limited in
tification does not reduce any refund        scope and duration. In making this de-
liability that the operator would other-     termination, the Commission will
wise incur.                                  evaluate whether the proposed joint
   (3) Within 30 days of being served        use of cable facilities promotes com-
with a local franchising authority’s no-     petition in both services and facilities,
tice that the local franchising author-      and encourages long-term investment
ity intends to file a cable programming      in telecommunications infrastructure.
services tier rate complaint, an opera-
tor may certify to the local franchising
authority that it meets the criteria for
                                               Subpart S—Open Video Systems
qualification as a small cable operator.
This certification shall be filed in ac-       SOURCE: 61 FR 28708, June 5, 1996, unless
cordance with the cable programming          otherwise noted.
services rate complaint procedure set
forth in § 76.1402. Absent a cable pro-      § 76.1500   Definitions.
gramming services rate complaint, the          (a) Open video system. A facility con-
operator need not file for small cable       sisting of a set of transmission paths
operator certification in order to treat     and associated signal generation, re-
its cable programming services tier as       ception, and control equipment that is
deregulated.                                 designed to provide cable service which
   (4) If a pending CPST rate complaint      includes video programming and which
was filed with the Commission before         is provided to multiple subscribers
April 30, 1996 the operator should file      within a community, provided that the
its certification of small cable operator    Commission has certified that such
status directly with the Commission
                                             system complies with this part.
within 15 days of that date.
                                               (b) Open video system operator (opera-
§ 76.1404 Use of cable facilities by local   tor). Any person or group of persons
     exchange carriers.                      who provides cable service over an open
   For purposes of § 76.505(d)(2), the       video system and directly or through
Commission will determine whether            one or more affiliates owns a signifi-
use of a cable operator’s facilities by a    cant interest in such open video sys-
local exchange carrier is reasonably         tem, or otherwise controls or is respon-
limited in scope and duration accord-        sible for the management and oper-
ing to the following procedures:             ation of such an open video system.
   (a) Within 10 days of final execution       (c) Video programming provider. Any
of a contract permitting a local ex-         person or group of persons who has the

                                         668
Federal Communications Commission                                                     § 76.1502

right under the copyright laws to se-              cation within its cable service area un-
lect and contract for carriage of spe-             less it is subject to ‘‘effective competi-
cific video programming on an open                 tion,’’ as defined in Section 623(l)(1) of
video system.                                      the Communications Act, 47 U.S.C.
   (d) Activated channels. This term shall         543(l)(1). A cable operator that is not
have the same meaning as provided in               subject to effective competition within
the cable television rules, 47 CFR                 its cable service area may file a peti-
76.5(nn).                                          tion with the Commission, seeking a
   (e) Shared channel. Any channel that            finding that particular circumstances
carries video programming that is se-              exist that make it consistent with the
lected by more than one video pro-                 public interest, convenience, and ne-
gramming provider and offered to sub-              cessity to allow the operator to con-
scribers.                                          vert its cable system to an open video
   (f) Cable service. This term shall have         system. Nothing herein shall be con-
the same meaning as provided in the                strued to affect the terms of any fran-
cable television rules, 47 CFR 76.5(ff).           chising agreement or other contractual
   (g) Affiliate. For purposes of deter-           agreement.
mining whether a party is an ‘‘affili-               NOTE: § 76.1501: An example of a cir-
ate’’ as used in this subpart, the defini-         cumstance in which the public interest, con-
tions contained in the notes to § 76.501           venience and necessity would be served by
shall be used, provided, however that:             permitting a cable operator not subject to ef-
   (1) The single majority shareholder             fective competition to become an open video
provisions of Note 2(b) to § 76.501 and            system operator within its cable service area
the limited partner insulation provi-              is where the entry of a facilities-based com-
                                                   petitor into its cable service area would like-
sions of Note 2(g) to § 76.501 shall not
                                                   ly be infeasible.
apply; and
   (2) The provisions of Note 2(a) to
§ 76.501 regarding five (5) percent inter-         § 76.1502 Certification.
ests shall include all voting or nonvot-              (a) An operator of an open video sys-
ing stock or limited partnership equity            tem must certify to the Commission
interests of five (5) percent or more.             that it will comply with the Commis-
   (h) Other terms. Unless otherwise ex-           sion’s regulations in 47 CFR 76.1503,
pressly stated, words not defined in               76.1504, 76.1506(m), 76.1508, 76.1509, and
this part shall be given their meaning             76.1513. If construction of new physical
as used in Title 47 of the United States           plant is required, the Commission must
Code, as amended, and, if not defined              approve such certification prior to the
therein, their meaning as used in Part             commencement of construction. If no
47 of the Code of Federal Regulations.             new construction is required, the Com-
                                                   mission must approve such certifi-
[61 FR 28708, June 5, 1996, as amended at 61
FR 43175, Aug. 21, 1996]                           cation prior to the commencement of
                                                   service at such a point in time that
  EFFECTIVE DATE NOTE: At 61 FR 43175, Aug.        would allow the applicant sufficient
21, 1996, in § 76.1500, paragraph (g) was redes-
                                                   time to comply with the Commission’s
ignated as (h); a new paragraph (g) was
added. This amendment contains informa-            notification requirements.
tion collection and recordkeeping require-            (b) Certifications must be verified by
ments and will not become effective until ap-      an officer or director of the applicant,
proval has been given by the Office of Man-        stating that, to the best of his or her
agement and Budget.                                information and belief, the representa-
                                                   tions made therein are accurate.
§ 76.1501 Qualifications to be an open                (c) Certifications must be filed on
     video system operator.                        FCC Form 1275 and must include:
   Any person may obtain a certifi-                   (1) The applicant’s name, address and
cation to operate an open video system             telephone number;
pursuant to Section 653(a)(1) of the                  (2) A statement of ownership, includ-
Communications       Act,   47   U.S.C.            ing all affiliated entities;
573(a)(1), except that an operator of a               (3) If the applicant is a cable operator
cable system, regardless of any other              applying for certification in its cable
service that the cable operator may                franchise area, a statement that the
provide, may not obtain such a certifi-            applicant is qualified to operate an

                                               669
§ 76.1502                                              47 CFR Ch. I (10–1–98 Edition)

open video system under Section              tification. If, after making the nec-
76.1501.                                     essary calculations, the due date for
   (4) A statement that the applicant        filing comments falls on a holiday,
agrees to comply and to remain in            comments shall be filed on the next
compliance with each of the Commis-          business day before noon, unless the
sion’s regulations in §§ 76.1503, 76.1504,   nearest business day precedes the fifth
76.1506(m), 76.1508, 76.1509, and 76.1513;   calendar day following a filing, in
   (5) If the applicant is required under    which case the comments will be due
47 CFR 64.903(a) of this chapter to file     on the preceding business day. For ex-
a cost allocation manual, a statement        ample, if the fifth day falls on a Satur-
that the applicant will file changes to      day, then the filing would be due on
its manual at least 60 days before the       that preceding Friday. However, if the
commencement of service;                     fifth day falls on Sunday, then the fil-
   (6) A list of the names of the antici-    ing will be due on the next day, Mon-
pated local communities to be served         day, before noon (or Tuesday, before
upon completion of the system;               noon if the Monday is a holiday).
   (7) The anticipated amount and type          (2) Parties wishing to respond to a
(i.e., analog or digital) of capacity (for   FCC Form 1275 filing must submit com-
switched digital systems, the antici-        ments or oppositions with the Office of
pated number of available channel            the Secretary and the Bureau Chief,
input ports); and                            Cable Services Bureau. Comments will
   (8) A statement that the applicant        not be considered properly filed unless
will comply with the Commission’s no-        filed with both of these Offices. Parties
tice and enrollment requirements for         are required to attach a cover sheet to
unaffiliated video programming provid-       the filing indicating that the submis-
ers.                                         sion is a pleading related to an open
   (d)(1) On or before the date an FCC       video system application, the only
Form 1275 is filed with the Commis-          wording on this cover sheet shall be
sion, the applicant must serve a copy        ‘‘Open Video System Certification Ap-
of its filing on all local communities       plication Comments.’’ This wording
identified pursuant to paragraph (c)(6)      shall be located in the center of the
of this section and must include a           page and should be in letters at least 1⁄2
statement informing the local commu-         inch in size. Parties shall also include
nities of the Commission’s require-          the words ‘‘open video systems’’ on
ments in paragraph (e) of this section       their mailing envelopes.
for filing oppositions and comments.            (f) If the Commission does not dis-
Service by mail is complete upon mail-       approve the certification application
ing, but if mailed, the served docu-         within ten days after receipt of an ap-
ments must be postmarked at least 3          plicant’s request, the certification ap-
days prior to the filing of the FCC          plication will be deemed approved. If
Form 1275 with the Commission.               disapproved, the applicant may file a
   (2) Parties are required to attach a      revised certification or refile its origi-
cover sheet to the filing indicating         nal submission with a statement ad-
that the submission is an open video         dressing the issues in dispute. Such re-
system certification application. The        filings must be served on any objecting
only wording on this cover sheet shall       party or parties and on all local com-
be ‘‘Open Video System Certification         munities in which the applicant in-
Application’’ and ‘‘Attention: Cable         tends to operate. The Commission will
Services Bureau.’’ This wording shall        consider any revised or refiled FCC
be located in the center of the page and     Form 1275 to be a new proceeding and
should be in letters at least 1⁄2 inch in    any party who filed comments regard-
size. Parties shall also include the         ing the original FCC Form 1275 will
words ‘‘open video systems’’ on their        have to refile their original comments
mailing envelope.                            if they think such comments should be
   (e)(1) Comments or oppositions to a       considered in the subsequent proceed-
certification must be filed within five      ing.
calendar days of the Commission’s re-        [61 FR 28708, June 5, 1996, as amended at 61
ceipt of the certification and must be       FR 43175, Aug. 21, 1996; 62 FR 26238, May 13,
served on the party that filed the cer-      1997; 63 FR 31934, June 11, 1998]

                                         670
Federal Communications Commission                                           § 76.1503

§ 76.1503 Carriage of video program-         dress and telephone number of a person
      ming providers on open video sys-      to contact for further information;
      tems.                                    (vi) The starting and ending dates of
   (a) Non-discrimination principle. Ex-     the initial enrollment period for video
cept as otherwise permitted in applica-      programming providers;
ble law or in this part, an operator of        (vii) The process for allocating the
an open video system shall not dis-          system’s channel capacity, in the event
criminate among video programming            that demand for carriage on the system
providers with regard to carriage on its     exceeds the system’s capacity; and
open video system, and its rates, terms        (viii) A certification that the opera-
and conditions for such carriage shall       tor has complied with all relevant noti-
be just and reasonable and not unjustly      fication requirements under the Com-
or unreasonably discriminatory.              mission’s open video system regula-
   (b) Demand for carriage. An operator      tions concerning must-carry and re-
of an open video system shall solicit
                                             transmission consent (§ 76.1506), includ-
and determine the level of demand for
                                             ing a list of all local commercial and
carriage on the system among poten-
                                             non-commercial television stations
tial video programming providers in a
                                             served, and a certificate of service
non-discriminatory manner.
   (1) Notification. An open video system    showing that the Notice of Intent has
operator shall file with the Secretary       been served on all local cable franchis-
of the Federal Communications Com-           ing authorities entitled to establish re-
mission a ‘‘Notice of Intent’’ to estab-     quirements concerning the designation
lish an open video system, which the         of channels for public, educational and
Commission will release in a Public          governmental use.
Notice. Parties are required to attach a       (2) Information. An open video system
cover sheet to the filing indicating         operator shall provide the following in-
that the submission is an Open Video         formation to a video programming pro-
System Notice of Intent. The only            vider within five business days of re-
wording on this cover sheet shall be         ceiving a written request from the pro-
‘‘Open Video System Notice of Intent’’       vider, unless otherwise included in the
and ‘‘Attention: Cable Services Bu-          Notice of Intent:
reau.’’ This wording shall be located in       (i) The projected activation date of
the center of the page and should be in      the open video system. If a system is to
letters at least 1⁄2 inch in size. Parties   be activated in stages, the operator
shall also include the words ‘‘open          should describe the respective stages
video systems’’ on their mailing enve-       and the projected dates on which each
lopes. Parties must submit copies of         stage will be activated;
the Notice of Intent with the Office of        (ii) A preliminary carriage rate esti-
the Secretary and the Bureau Chief,          mate;
Cable Services Bureau. The Notice of           (iii) The information a video pro-
Intent shall include the following in-       gramming provider will be required to
formation:                                   provide to qualify as a video program-
   (i) A heading clearly indicating that     ming provider, e.g., creditworthiness;
the document is a Notice of Intent to
                                               (iv) Technical information that is
establish an open video system;
                                             reasonably necessary for potential
   (ii) The name, address and telephone
number of the open video system oper-        video programming providers to assess
ator;                                        whether to seek capacity on the open
   (iii) A description of the system’s       video system, including what type of
projected service area;                      customer premises equipment subscrib-
   (iv) A description of the system’s pro-   ers will need to receive service;
jected channel capacity, in terms of           (v) Any transmission or reception
analog, digital and other type(s) of ca-     equipment needed by a video program-
pacity upon activation of the system;        ming provider to interface successfully
   (v) A description of the steps a poten-   with the open video system; and
tial video programming provider must           (vi) The equipment available to fa-
follow to seek carriage on the open          cilitate the carriage of unaffiliated
video system, including the name, ad-        video programming and the electronic

                                         671
§ 76.1503                                              47 CFR Ch. I (10–1–98 Edition)

form(s) that will be accepted for proc-      extent that the channels are carried as
essing and subsequent transmission           part of the programming service of the
through the system.                          operator or its affiliate, subject to
   (3) Qualifications of video programming   paragraph (c)(1)(iv); and
providers. An open video system opera-          (iv) Any channel on which shared
tor may impose reasonable, non-dis-          programming is carried shall be in-
criminatory requirements to assure           cluded in ‘‘activated channel capacity’’
that a potential video programming           for purposes of calculating the one-
provider is qualified to obtain capacity     third of such capacity on which the
on the open video system.                    open video system operator and its af-
   (c) One-third limit. If carriage demand   filiates are allowed to select the video
by video programming providers ex-           programming for carriage. Such chan-
ceeds the activated channel capacity of
                                             nels shall be included in the one-third
the open video system, the operator of
                                             of capacity on which the open video
the open video system and its affiliated
                                             system operator is permitted to select
video programming providers may not
                                             programming, where demand for car-
select the video programming services
for carriage on more than one-third of       riage exceeds system capacity, to the
the activated channel capacity on such       extent the open video system operator
system.                                      or its affiliate is one of the video pro-
   (1) Measuring capacity. For purposes      gramming providers sharing such chan-
of this section:                             nel.
   (i) If an open video system carries         NOTE TO PARAGRAPH (c)(1)(iv): For example,
both analog and digital signals, an          if the open video system operator and two
open video system operator shall meas-       unaffiliated video programming providers
ure analog and digital activated chan-       each carry a programming service that is
nel capacity independently;                  placed on a shared channel, the shared chan-
   (ii) Channels that an open video sys-     nel shall count as 0.33 channels against the
tem is required to carry pursuant to         one-third amount of capacity allocable to
the Commission’s regulations concern-        the open video system operator, where de-
ing public, educational and govern-          mand for carriage exceeds system capacity.
mental channels and must-carry chan-           (2) Allocating capacity. An operator of
nels shall be included in ‘‘activated        an open video system shall allocate ac-
channel capacity’’ for purposes of cal-      tivated channel capacity through a
culating the one-third of such capacity      fair, open and non-discriminatory proc-
on which the open video system opera-        ess; the process must be insulated from
tor and its affiliates are allowed to se-    any bias of the open video system oper-
lect the video programming for car-          ator and verifiable.
riage. Such channels shall not be in-
                                               (i) If an open video system carries
cluded in the one-third of capacity on
                                             both analog and digital signals, an
which the open video system operator
                                             open video system operator shall treat
is permitted to select programming
                                             analog and digital capacity separately
where demand for carriage exceeds sys-
tem capacity;                                in allocating system capacity.
   (iii) Channels that an open video sys-      (ii) Subsequent changes in capacity or
tem operator carries pursuant to the         demand. An open video system operator
Commission’s regulations concerning          must allocate open capacity, if any, at
retransmission consent shall be in-          least once every three years, beginning
cluded in ‘‘activated channel capacity’’     three years from the date of service
for purposes of calculating the one-         commencement. Open capacity shall be
third of such capacity on which the          allocated in accordance with this sec-
open video system operator and its af-       tion. Open capacity shall include all
filiates are allowed to select the video     capacity that becomes available during
programming for carriage. Such chan-         the course of the three-year period, as
nels shall be included in the one-third      well as capacity in excess of one-third
of capacity on which the open video          of the system’s activated channel ca-
system operator is permitted to select       pacity on which the operator of the
programming, where demand for car-           open video system or its affiliate se-
riage exceeds system capacity, to the        lects programming. An operator shall

                                         672
Federal Communications Commission                                                     § 76.1503

maintain a file of qualified video pro-             (A) Require video programming pro-
gramming providers who have re-                   viders to request and obtain system ca-
quested carriage or additional carriage           pacity in increments of no less than
since the previous allocation of capac-           one full-time channel; however, an op-
ity. Information regarding how a video            erator of an open video system may not
programming provider should apply for             require video programming providers
carriage must be made available upon              to obtain capacity in increments of
request.                                          more than one full-time channel;
                                                    (B) Limit video programming provid-
  NOTE 1 TO PARAGRAPH (c)(2)(ii): An open
                                                  ers from selecting the programming on
video system operator will not be required to
comply with the regulations contained in          more capacity than the amount of ca-
this section if there is no open capacity to be   pacity on which the system operator
allocated at the end of the three year period.    and its affiliates are selecting the pro-
  NOTE 2 TO PARAGRAPH (c)(2)(ii): An open         gramming for carriage; and
video system operator shall be required to          (v) Notwithstanding the general pro-
accommodate changes in obligations con-           hibition on an open video system oper-
cerning public, educational or governmental       ator’s discrimination among video pro-
channels or must-carry channels in accord-        gramming providers contained in para-
ance with Sections 611, 614 and 615 of the        graph (a) of this section, a competing,
Communications Act and the regulations
                                                  in-region cable operator or its affili-
contained in this part.
                                                  ate(s) that offers cable service to sub-
  (iii) Channel sharing. An open video            scribers located in the service area of
system operator may carry on only one             an open video system shall not be enti-
channel any video programming serv-               tled to obtain capacity on such an open
ice that is offered by more than one              video system, except:
video programming provider (including               (A) Where the operator of an open
the operator’s video programming affil-           video system determines that granting
iate), provided that subscribers have             access to the competing, in-region
ready and immediate access to any                 cable operator is in its interests; or
such programming service. Nothing in                (B) Where a showing is made that fa-
this section shall be construed to im-            cilities-based competition will not be
pair the rights of programming serv-              significantly impeded.
ices.                                               NOTE TO PARAGRAPH (c)(2)(v)(B): The Com-
  NOTE 1 TO PARAGRAPH (c)(2)(iii): An open        mission finds that facilities-based competi-
video system operator may implement chan-         tion will not be significantly impeded, for
nel sharing only after it becomes apparent        example, where:
that one or more video programming serv-            (1) The competing, in-region cable operator
ices will be offered by multiple video pro-       and affiliated systems offer service to less
gramming providers. An open video system          than 20% of the households passed by the
operator may not select, in advance of any        open video system; and
duplication among video programming pro-            (2) The competing, in-region cable operator
viders, which programming services shall be       and affiliated systems provide cable service
placed on shared channels.                        to a total of less than 17,000 subscribers with-
                                                  in the open video system’s service area.
  NOTE 2 TO PARAGRAPH (c)(2)(iii): Each video
programming provider offering a program-            (3) Nothing in this paragraph shall be
ming service that is carried on a shared          construed to limit the number of chan-
channel must have the contractual permis-         nels that the open video system opera-
sion of the video programming service to
                                                  tor and its affiliates, or another video
offer the service to subscribers. The place-
ment of a programming service on a shared         programming provider, may offer to
channel, however, is not subject to the ap-       provide directly to subscribers. Co-
proval of the video programming service or        packaging is permissible among video
vendor.                                           programming providers, but may not
  NOTE 3 TO PARAGRAPH (c)(2)(iii): Ready and      be a condition of carriage. Video pro-
immediate access in this context means that       gramming providers may freely elect
the channel sharing is ‘‘transparent’’ to sub-    whether to enter into co-packaging ar-
scribers.                                         rangements.
  (iv) Open video system operator discre-           NOTE TO PARAGRAPH (c)(3): Any video pro-
tion. Notwithstanding the foregoing, an           gramming provider on an open video system
operator of an open video system may:             may co-package video programming that is

                                              673
§ 76.1504                                                 47 CFR Ch. I (10–1–98 Edition)
selected by itself, an affiliated video pro-    rates subject to the complaint are just
gramming provider and/or unaffiliated video     and reasonable.
programming providers on the system.
                                                  (e) Determining just and reasonable
[61 FR 28708, June 5, 1996, as amended at 61    rates subject to complaints pursuant to
FR 43176, Aug. 21, 1996; 62 FR 26239, May 13,   the imputed rate approach or other mar-
1997]                                           ket based approach. Carriage rates sub-
                                                ject to complaint shall be found just
§ 76.1504 Rates, terms and conditions           and reasonable if one of the two follow-
     for carriage on open video systems.
                                                ing tests are met:
   (a) Reasonable rate principle. An open         (1) The imputed rate will reflect what
video system operator shall set rates,          the open video system operator, or its
terms, and conditions for carriage that         affiliate, ‘‘pays’’ for carriage of its own
are just and reasonable, and are not            programming. Use of this approach is
unjustly or unreasonably discrimina-            appropriate in circumstances where the
tory.                                           pricing is applicable to a new market
   (b) Differences in rates. (1) An open        entrant (the open video system opera-
video system operator may charge dif-           tor) that will face competition from an
ferent rates to different classes of video
                                                existing incumbent provider (the in-
programming providers, provided that the
                                                cumbent cable operator), as opposed to
bases for such differences are not unjust
                                                circumstances where the pricing is
or unreasonably discriminatory.
                                                used to establisha rate for an essential
   (2) An open video system operator
shall not impose different rates, terms,        input service that is charged to a com-
or conditions based on the content of           peting new entrant by an incumbent
the programming to be offered by any            provider. With respect to new market
unaffiliated video programming pro-             entrants, an efficient component pric-
vider.                                          ing model will produce rates that en-
   (c) Just and reasonable rate presump-        courage market entry. If the carriage
tion. A strong presumption will apply           rate to an unaffiliated program pro-
that carriage rates are just and reason-        vider surpasses what an operator earns
able for open video system operators            from carrying its own programming,
where at least one unaffiliated video           the rate can be presumed to exceed a
programming provider, or unaffiliated           just and reasonable level. An open
programming providers as a group, oc-           video system operator’s price to its
cupy capacity equal to the lesser of            subscribers will be determined by sev-
one-third of the system capacity or             eral separate costs components. One
that occupied by the open video system          general category are those costs relat-
operator and its affiliates, and where          ed to the creative development and
any rate complained of is no higher             production of programming. A second
than the average of the rates paid by           category are costs associated with
unaffiliated programmers receiving              packaging various programs for the
carriage from the open video system             open video system operator’s offering.
operator.                                       A third category related to the infra-
   (d) Examination of rates. Complaints         structure or engineering costs identi-
regarding rates shall be limited to             fied with building and maintaining the
video programming providers that have           open video system. Contained in each
sought carriage on the open video sys-          is a profit allowance attributed to the
tem. If a video programming provider            economic value of each component.
files a complaint against an open video         When an open video system operator
system operator meeting the above               provides only carriage through its in-
just and reasonable rate presumption,           frastructure, however, the program-
the burden of proof will rest with the          ming and packaging flows from the
complainant. If a complaint is filed            independent program provider, who
against an open video system operator           bears the cost. The open video system
that does not meet the just and reason-         operator avoids programming and
able rate presumption, the open video           packaging costs, including profits.
system operator will bear the burden of         These avoided costs should not be re-
proof to demonstrate, using the prin-           flected in the price charged an inde-
ciples set forth below, that the carriage       pendent program provider for carriage.

                                            674
Federal Communications Commission                                               § 76.1505

The imputed rate also seeks to recog-            obligations with respect to public, edu-
nize the loss of subscribers to the open         cational and governmental access
video system operator’s programming              channel capacity, services, facilities
package resulting from carrying com-             and equipment within the local fran-
peting programming.                              chising authority’s jurisdiction:
   NOTE TO PARAGRAPH (e)(1): Examples of spe-      (1) The open video system operator
cific ‘‘avoided costs’’ include:                 must satisfy the same public, edu-
   (1) All amounts paid to studios, syn-         cational and governmental access obli-
dicators, networks or others, including but      gations as the local cable operator by
not limited to payments for programming          providing the same amount of channel
and all related rights;                          capacity for public, educational and
   (2) Packaging, including marketing and        governmental access and by matching
other fees;
   (3) Talent fees; and                          the local cable operator’s annual finan-
   (4) A reasonable overhead allowance for af-   cial contributions towards public, edu-
filiated video service support.                  cational and governmental access serv-
                                                 ices, facilities and equipment that are
  (2) An open video system operator
                                                 actually used for public, educational
can demonstrate that its carriage serv-
                                                 and governmental access services, fa-
ice rates are just and reasonable
                                                 cilities and equipment. For in-kind
through other market based ap-
                                                 contributions (e.g., cameras, produc-
proaches.
                                                 tion studios), the open video system
[61 FR 28708, June 5, 1996, as amended at 61     operator may satisfy its statutory obli-
FR 43176, Aug. 21, 1996]                         gation by negotiating mutually agree-
  EFFECTIVE DATE NOTE: At 61 FR 43176, Aug.      able terms with the local cable opera-
21, 1996, in § 76.1504, paragraph (e) was re-    tor, so that public, educational and
vised. This amendment contains information       governmental access services to the
collection and recordkeeping requirements        community is improved or increased. If
and will not become effective until approval     such terms cannot be agreed upon, the
has been given by the Office of Management
and Budget.                                      open video system operator must pay
                                                 the local franchising authority the
§ 76.1505 Public, educational and gov-           monetary equivalent of the local cable
     ernmental access.                           operator’s depreciated in-kind con-
   (a) An open video system operator             tribution, or, in the case of facilities,
shall be subject to public, educational          the annual amortization value. Any
and governmental access requirements             matching contributions provided by
for every cable franchise area with              the open video system operator must
which its system overlaps.                       be used to fund activities arising under
   (b) An open video system operator             Section 611 of the Communications
must ensure that all subscribers re-             Act.
ceive any public, educational and gov-             (2) The local franchising authority
ernmental access channels within the             shall impose the same rules and proce-
subscribers’ franchise area.                     dures on an open video system operator
   (c) An open video system operator             as it imposes on the local cable opera-
may negotiate with the local cable               tor with regard to the open video sys-
franchising authority of the jurisdic-           tem operator’s use of channel capacity
tion(s) which the open video system              designated for public, educational and
serves to establish the open video sys-          governmental access use when such ca-
tem operator’s obligations with respect          pacity is not being used for such pur-
to public, educational and govern-               poses.
mental access channel capacity, serv-              (3) The local cable operator is re-
ices, facilities and equipment. These            quired to permit the open video system
negotiations may include the local               operator to connect with its public,
cable operator if the local franchising          educational and governmental access
authority, the open video system oper-           channel feeds. The open video system
ator and the cable operator so desire.           operator and the cable operator may
   (d) If an open video system operator          decide how to accomplish this connec-
and a local franchising authority are            tion, taking into consideration the
unable to reach an agreement regard-             exact physical and technical cir-
ing the open video system operator’s             cumstances of the cable and open video

                                             675
§ 76.1505                                             47 CFR Ch. I (10–1–98 Edition)

systems involved. If the cable and open     and governmental access and that
video system operator cannot agree on       serves a franchise area with a similar
how to accomplish the connection, the       population size.
local franchising authority may decide.
                                              NOTE TO PARAGRAPH (d)(6): This paragraph
The local franchising authority may         shall apply, for example, if a cable operator
require that the connection occur on        converts its cable system to an open video
government property or on public            system under § 76.1501.
rights of way.
  (4) The costs of connection to the          (7) The open video system operator
cable operator’s public, educational        must adjust its system(s) to comply
and governmental access channel feed        with new public, educational and gov-
shall be borne by the open video sys-       ernmental access obligations imposed
tem operator. Such costs shall be           by a cable franchise renewal; provided,
counted towards the open video system       however, that an open video system op-
operator’s matching financial con-          erator will not be required to displace
tributions set forth in paragraph (d)(4)    other programmers using its open
of this section.                            video system to accommodate public,
  (5) The local franchising authority       educational and governmental access
may not impose public, educational          channels. The open video system opera-
and governmental access obligations         tor shall comply with such public, edu-
on the open video system operator that      cational and governmental access obli-
would exceed those imposed on the           gations whenever additional capacity
local cable operator.                       is or becomes available, whether it is
  (6) Where there is no existing local      due to increased channel capacity or
cable operator, the open video system       decreased demand for channel capac-
operator must make a reasonable             ity.
amount of channel capacity available          (8) The open video system operator
for public, educational and govern-         and/or the local franchising authority
mental use, as well as provide reason-      may file a complaint with the Commis-
able support for services, facilities and   sion, pursuant to our dispute resolu-
equipment relating to such public, edu-     tion procedures set forth in § 76.1514, if
cational and governmental use. If a         the open video system operator and the
franchise agreement previously existed      local franchising authority cannot
in that franchise area, the local fran-     agree as to the application of the Com-
chising authority may elect either to       mission’s rules regarding the open
impose the previously existing public,      video system operator’s public, edu-
educational and governmental access         cational and governmental access obli-
obligations or determine the open           gations under paragraph (d) of this sec-
video system operator’s public, edu-        tion.
cational and governmental access obli-        (e) If an open video system operator
gations by comparison to the franchise      maintains an institutional network, as
agreement for the nearest operating         defined in Section 611(f) of the Commu-
cable system that has a commitment          nications Act, the local franchising au-
to provide public, educational and gov-     thority may require that educational
ernmental access and that serves a          and governmental access channels be
franchise area with a similar popu-         designated on that institutional net-
lation size. The local franchising au-      work to the extent such channels are
thority shall be permitted to make a        designated on the institutional net-
similar election every 15 years there-      work of the local cable operator.
after. Absent a previous franchise            (f) An open video system operator
agreement, the open video system oper-      shall not exercise any editorial control
ator shall be required to provide chan-     over any public, educational, or gov-
nel capacity, services, facilities and      ernmental use of channel capacity pro-
equipment relating to public, edu-          vided pursuant to this subsection, pro-
cational and governmental access            vided, however, that any open video
equivalent to that prescribed in the        system operator may prohibit the use
franchise agreement(s) for the nearest      on its system of any channel capacity
operating cable system with a commit-       of any public, educational, or govern-
ment to provide public, educational         mental facility for any programming

                                        676
Federal Communications Commission                                                      § 76.1506

which contains nudity, obscene mate-                  programming distributors that viewed the
rial, indecent material as defined in                 station for 5 minutes or more during the en-
§ 76.701(g), or material soliciting or pro-           tire week, expressed as a percentage of the
                                                      total households that do not receive tele-
moting unlawful conduct. For purposes
                                                      vision signals from multichannel video pro-
of this section, ‘‘material soliciting or             gramming distributors in the survey area.
promoting unlawful conduct’’ shall
mean material that is otherwise pro-                     (c) Significantly viewed signals; method
scribed by law. An open video system                  to be followed for special showings. Any
operator may require any access user,                 provision of § 76.54 that refers to a
or access manager or administrator                    ‘‘cable television community’’ or
agreeing to assume the responsibility                 ‘‘cable community or communities’’
of certifying, to certify that its pro-               shall apply to an open video system
gramming does not contain any of the                  community or communities. Any pro-
materials described above and that rea-               vision of § 76.54 that refers to ‘‘non-
sonable efforts will be used to ensure                cable television homes’’ shall apply to
that live programming does not con-                   households that do not receive tele-
tain such material.                                   vision signals from multichannel video
[61 FR 28708, June 5, 1996, as amended at 61
                                                      programming distributors. Any provi-
FR 43176, Aug. 21, 1996]                              sion of § 76.54 that refers to a ‘‘cable
                                                      television system’’ shall apply to an
  EFFECTIVE DATE NOTE: At 61 FR 43176, Aug.
                                                      open video system.
21, 1996, in § 76.1505, paragraphs (d)(1), (4), (6)
and (8) were revised. This amendment con-                (d) Definitions applicable to the must-
tains information collection and record-              carry rules. Section 76.55 shall apply to
keeping requirements and will not become              all open video systems in accordance
effective until approval has been given by            with the provisions contained in this
the Office of Management and Budget.                  section. Any provision of § 76.55 that re-
                                                      fers to a ‘‘cable system’’ shall apply to
§ 76.1506 Carriage of television broad-               an open video system. Any provision of
     cast signals.
                                                      § 76.55 that refers to a ‘‘cable operator’’
   (a) The provisions of Subpart D shall              shall apply to an open video system op-
apply to open video systems in accord-                erator. Any provision of § 76.55 that re-
ance with the provisions contained in                 fers to the ‘‘principal headend’’ of a
this subpart.                                         cable system as defined in § 76.5(pp)
   (b) For the purposes of this Subpart               shall apply to the equivalent of the
S, television stations are significantly              principal headend of an open video sys-
viewed when they are viewed in house-                 tem. Any provision of § 76.55 that refers
holds that do not receive television sig-             to a ‘‘franchise area’’ shall apply to the
nals from multichannel video program-                 service area of an open video system.
ming distributors as follows:                         The provisions of § 76.55 that permit
   (1) For a full or partial network sta-             cable operators to refuse carriage of
tion—a share of viewing hours of at                   signals considered distant signals for
least 3 percent (total week hours), and               copyright purposes shall not apply to
a net weekly circulation of at least 25               open video system operators. If an open
percent; and                                          video system operator cannot limit its
   (2) For an independent station—a                   distribution of must-carry signals to
share of viewing hours of at least 2 per-             the local service area of broadcast sta-
cent (total week hours), and a net                    tions as used in 17 U.S.C. 111(d), it will
weekly circulation of at least 5 per-                 be liable for any increase in copyright
cent. See § 76.1506(c).                               fees assessed for distant signal carriage
  NOTE TO PARAGRAPH (b): As used in this              under 17 U.S.C. 111.
paragraph, ‘‘share of viewing hours’’ means              (e) Signal carriage obligations. Any
the total hours that households that do not           provision of § 76.56 that refers to a
receive television signals from multichannel          ‘‘cable television system’’ or ‘‘cable
video programming distributors viewed the             system’’ shall apply to an open video
subject station during the week, expressed as
                                                      system. Any provision of § 76.56 that re-
a percentage of the total hours these house-
holds viewed all stations during the period,          fers to a ‘‘cable operator’’ shall apply
and ‘‘net weekly circulation’’ means the              to an open video system operator. Sec-
number of households that do not receive              tion 76.56(d)(2) shall apply to open
television signals from multichannel video            video systems as follows: An open video

                                                  677
§ 76.1506                                               47 CFR Ch. I (10–1–98 Edition)

system operator shall make available          tor’’ shall apply to an open video sys-
to every subscriber of the open video         tem operator.
system all qualified local commercial            (l) Retransmission consent. Section
television stations and all qualified         76.64 shall apply to open video systems
non-commercial educational television         in accordance with the provisions con-
stations carried in fulfillment of its        tained in this paragraph.
carriage obligations under this section.         (1) Any provision of § 76.64 that refers
   (f) Channel positioning. Open video        to a ‘‘cable system’’ shall apply to an
system operators shall comply with the        open video system. Any provision of
provisions of § 76.57 to the closest ex-      § 76.64 that refers to a ‘‘cable operator’’
tent possible. Any provision of § 76.57       shall apply to an open video system op-
that refers to a ‘‘cable operator’’ shall     erator.
apply to an open video system opera-             (2) Must-carry/retransmission con-
tor. Any provision of § 76.57 that refers     sent election notifications shall be sent
to a ‘‘cable system’’ shall apply to an       to the open video system operator. An
open video system, except the ref-            open video system operator shall make
erences to ‘‘cable system’’ in § 76.57(d)     all must-carry/retransmission consent
which shall apply to an open video sys-       election notifications received avail-
tem operator.                                 able to the appropriate programming
   (g) Notification. Any provision of         providers on its system.
§ 76.58 that refers to a ‘‘cable operator’’      (3) Television broadcast stations are
shall apply to an open video system op-       required to make the same election for
erator. Any provision of § 76.58 that re-     open video systems and cable systems
fers to a ‘‘cable system’’ shall apply to     serving the same geographic area, un-
an open video system. Any provision of        less the overlapping open video system
§ 76.58 that refers to a ‘‘principal          is unable to deliver appropriate signals
headend’’ shall apply to the equivalent       in conformance with the broadcast sta-
of the principal headend for an open          tion’s elections for all cable systems
video system.                                 serving the same geographic area.
   (h) Modification of television markets.       (4) An open video system commenc-
Any provision of § 76.59 that refers to a     ing new operations shall notify all
‘‘cable system’’ shall apply to an open       local commercial and noncommercial
video system. Any provision of § 76.59        broadcast stations as required under
that refers to a ‘‘cable operator’’ shall     paragraph (l) of this section on or be-
apply to an open video system opera-          fore the date on which it files with the
tor.                                          Commission its Notice of Intent to es-
   (i) Compensation for carriage. Any pro-    tablish an open video system.
vision of § 76.60 that refers to a ‘‘cable       (m) Sports broadcast. Section 76.67
operator’’ shall apply to an open video       shall apply to open video systems in
system operator. Any provision of             accordance with the provisions con-
§ 76.60 that refers to a ‘‘cable system’’     tained in this paragraph.
shall apply to an open video system.             (1) Any provisions of § 76.67 that re-
Any provision of § 76.60 that refers to a     fers to a ‘‘community unit’’ shall apply
‘‘principal headend’’ shall apply to the      to an open video system or that por-
equivalent of the principal headend for       tion of an open video system that oper-
an open video system.                         ates or will operate within a separate
   (j) Disputes concerning carriage. Any      and distinct community or municipal
provision of § 76.61 that refers to a         entity (including unincorporated com-
‘‘cable operator’’ shall apply to an open     munities within unincorporated areas
video system operator. Any provision          and including single, discrete unincor-
of § 76.61 that refers to a ‘‘cable sys-      porated areas).
tem’’ shall apply to an open video sys-          (2) Notification of programming to be
tem. Any provision of § 76.61 that refers     deleted pursuant to this section shall
to a ‘‘principal headend’’ shall apply to     be served on the open video system op-
the equivalent of the principal headend       erator. The open video system operator
for an open video system.                     shall make all notifications imme-
   (k) Manner of carriage. Any provision      diately available to the appropriate
of § 76.62 that refers to a ‘‘cable opera-    video programming providers on its

                                          678
Federal Communications Commission                                                    § 76.1507

open video system. Operators may ef-                 § 76.1507 Competitive access to sat-
fect the deletion of signals for which                    ellite cable programming.
they have received deletion notices un-                 (a) Any provision that applies to a
less they receive notice within a rea-               cable operator under §§ 76.1000 through
sonable time from the appropriate pro-               76.1003 shall also apply to an operator
gramming provider that the rights                    of an open video system and its affili-
claimed are invalid. The open video                  ate which provides video programming
system operator shall not delete sig-                on its open video system, except as
nals for which it has received notice                limited by paragraph (a) (1)–(3) of this
from the programming provider that                   section. Any such provision that ap-
the rights claimed are invalid. An open              plies to a satellite cable programming
video system operator shall be subject               vendor in which a cable operator has
to sanctions for any violation of this               an attributable interest shall also
subpart. An open video system opera-                 apply to any satellite cable program-
                                                     ming vendor in which an open video
tor may require indemnification as a
                                                     system operator has an attributable in-
condition of carriage for any sanctions
                                                     terest, except as limited by paragraph
it may incur in reliance on a program-               (a) (1)–(3) of this section.
mer’s claim that certain exclusive or                   (1) Section 76.1002(c)(1) shall only re-
non-duplication rights are invalid.                  strict the conduct of an open video sys-
   (n) Exemption from input selector                 tem operator, its affiliate that provides
switch rules. Any provision of § 76.70               video programming on its open video
that refers to a ‘‘cable system’’ or                 system and a satellite cable program-
‘‘cable systems’’ shall apply to an open             ming vendor in which an open video
video system or open video systems.                  system operator has an attributable in-
   (o) Special relief and must-carry com-            terest, as follows: No open video sys-
plaint procedures. The procedures set                tem operator or its affiliate that pro-
forth in § 76.7 shall apply to special re-           vides video programming on its open
lief and must-carry complaints relat-                video system shall engage in any prac-
ing to open video systems, and not the               tice or activity or enter into any un-
procedures set forth in § 76.1514 (Dis-              derstanding or arrangement, including
pute resolution). Any provision of § 76.7            exclusive contracts, with a satellite
that refers to a ‘‘cable television sys-             cable programming vendor or satellite
                                                     broadcast programming vendor for sat-
tem operator’’ or ‘‘cable operator’’
                                                     ellite cable programming or satellite
shall apply to an open video system op-
                                                     broadcast programming that prevents
erator. Any provision of § 76.7 that re-             a multichannel video programming dis-
fers to a ‘‘cable television system’’                tributor from obtaining such program-
shall apply to an open video system.                 ming from any satellite cable program-
Any provision of § 76.7 that refers to a             ming vendor in which an open video
‘‘system community unit’’ shall apply                system operator has an attributable in-
to an open video system or that por-                 terest, or any satellite broadcasting
tion of an open video system that oper-              vendor in which an open video system
ates or will operate within a separate               operator has an attributable interest
and distinct community or municipal                  for distribution to person in areas not
entity (including unincorporated com-                served by a cable operator as of Octo-
munities within unincorporated areas                 ber 5, 1992.
and including single, discrete unincor-                 (2) Section 76.1002(c)(2) shall only re-
porated areas).                                      strict the conduct of an open video sys-
                                                     tem operator, its affiliate that provides
[61 FR 28708, June 5, 1996, as amended at 61         video programming on its open video
FR 43177, Aug. 21, 1996]
                                                     system and a satellite cable program-
  EFFECTIVE DATE NOTE: At 61 FR 43177, Aug.          ming vendor in which an open video
21, 1996, in § 76.1506, paragraphs (d), (l)(3) and   system operator has an attributable in-
(m)(2) were revised. This amendment con-             terest, as follows: No open video sys-
tains information collection and record-             tem operator or its affiliate that pro-
keeping requirements and will not become             vides video programming on its open
effective until approval has been given by           video system shall enter into any ex-
the Office of Management and Budget.                 clusive contracts, or engage in any

                                                 679
§ 76.1508                                                  47 CFR Ch. I (10–1–98 Edition)

practice, activity or arrangement tan-         programming that prevents a multi-
tamount to an exclusive contract, for          channel video programming distributor
satellite cable programming or sat-            from obtaining such programming from
ellite broadcast programming with a            any satellite cable programming ven-
satellite cable programming vendor in          dor in which a cable operator has an
which an open video system operator            attributable interest, or any satellite
has an attributable interest or a sat-         broadcasting vendor in which a cable
ellite broadcast programming vendor,           operator has an attributable interest
unless the Commission determines in            for distribution to person in areas not
accordance with § 76.1002(c)(4) that such      served by a cable operator as of Octo-
a contract, practice, activity or ar-          ber 5, 1992.
rangement is in the public interest.             (2) Enter into any exclusive con-
  (3) Section 76.1002(c)(3) (i) through (ii)   tracts, or engage in any practice, activ-
shall only restrict the conduct of an          ity or arrangement tantamount to an
open video system operator, its affili-        exclusive contract, for satellite cable
ate that provides video programming            programming or satellite broadcast
on its open video system and a satellite       programming with a satellite cable
cable programming vendor in which an           programming vendor in which a cable
open video system operator has an at-          operator has an attributable interest
tributable interest, as follows:               or a satellite broadcast programming
  (i) Unserved areas. No open video sys-       vendor, unless the Commission deter-
tem operator shall enter into any sub-         mines in accordance with Section
distribution agreement or arrangement          76.1002(c)(4) that such a contract, prac-
for satellite cable programming or sat-        tice, activity or arrangement is in the
ellite broadcast programming with a            public interest.
satellite cable programming vendor in
which an open video system operator            § 76.1508   Network non-duplication.
has an attributable interest or a sat-
ellite broadcast programming vendor               (a) Sections 76.92 through 76.97 shall
in which an open video system operator         apply to open video systems in accord-
has an attributable interest for dis-          ance with the provisions contained in
tribution to persons in areas not served       this section.
by a cable operator as of October 5,              (b) Any provision of § 76.92 that refers
1992.                                          to a ‘‘cable community unit’’ or ‘‘com-
  (ii) Served areas. No open video sys-        munity unit’’ shall apply to an open
tem operator shall enter into any sub-         video system or that portion of an open
distribution agreement or arrangement          video system that operates or will op-
for satellite cable programming or sat-        erate within a separate and distinct
ellite broadcast programming with a            community or municipal entity (in-
satellite cable programming vendor in          cluding unincorporated communities
which an open video system operator            within unincorporated areas and in-
has an attributable interest or a sat-         cluding single, discrete unincorporated
ellite broadcast programming vendor            areas). Any provision of § 76.92 that re-
in which an open video system operator         fers to a ‘‘cable television community’’
has an attributable interest, with re-         shall apply to an open video system
spect to areas served by a cable opera-        community. Any provision of § 76.92
tor, unless such agreement or arrange-         that refers to a ‘‘cable television sys-
ment complies with the limitations set         tem’s mandatory signal carriage obli-
forth in § 76.1002(c)(3)(iii).                 gations’’ shall apply to an open video
  (b) No open video system program-            system’s mandatory signal carriage ob-
ming provider in which a cable opera-          ligations.
tor has an attributable interest shall:           (c) Any provision of § 76.94 that refers
  (1) Engage in any practice or activity       to a ‘‘cable system operator’’ or ‘‘cable
or enter into any understanding or ar-         television system operator’’ shall apply
rangement, including exclusive con-            to an open video system operator. Any
tracts, with a satellite cable program-        provision of § 76.94 that refers to a
ming vendor or satellite broadcast pro-        ‘‘cable system’’ or ‘‘cable television
gramming vendor for satellite cable            system’’ shall apply to an open video
programming or satellite broadcast             system except § 76.94 (e) and (f) which

                                           680
Federal Communications Commission                                             § 76.1511

shall apply to an open video system op-       the infringing program once it was no-
erator. Open video system operators           tified of a violation.
shall make all notifications and infor-          (d) Any provision of § 76.156 that re-
mation regarding the exercise of net-         fers to a ‘‘cable community’’ shall
work non-duplication rights imme-             apply to an open video system commu-
diately available to all appropriate          nity. Any provision of § 76.156 that re-
video programming provider on the             fers to a ‘‘cable community unit’’ or
system. An open video system operator         ‘‘community unit’’ shall apply to an
shall not be subject to sanctions for         open video system or that portion of an
any violation of these rules by an unaf-      open video system that operates or will
filiated program supplier if the opera-       operate within a separate and distinct
tor provided proper notices to the pro-       community or municipal entity (in-
gram supplier and subsequently took           cluding unincorporated communities
prompt steps to stop the distribution of      within unincorporated areas and in-
the infringing program once it was no-        cluding single, discrete unincorporated
tified of a violation.                        areas). Any provision of §§ 76.156
   (d) Any provision of § 76.95 that refers   through 76.158, and 76.163 that refers to
to a ‘‘cable system’’ or a ‘‘cable com-       a ‘‘cable system’’ shall apply to an
munity unit’’ shall apply to an open          open video system.
video system or that portion of an open          (e) Any provision of § 76.159 that re-
video system that operates or will op-        fers to ‘‘cable television’’ or a ‘‘cable
erate within a separate and distinct          system’’ shall apply to an open video
community or municipal entity (in-            system.
cluding unincorporated communities               (f) Any provision of § 76.161 that re-
within unincorporated areas and in-           fers to a ‘‘community unit’’ shall apply
cluding single, discrete unincorporated       to an open video system or that por-
areas).                                       tion of an open video system that is af-
                                              fected by this rule.
§ 76.1509 Syndicated program exclusiv-
     ity.                                     § 76.1510 Application of certain Title
   (a) Sections 76.151 through 76.163              VI provisions.
shall apply to open video systems in             The following sections within Part 76
accordance with the provisions con-           shall also apply to open video systems:
tained in this section.                       §§ 76.71, 76.73, 76.75, 76.77 and 76.79
   (b) Any provision of § 76.151 that re-     (Equal Employment Opportunity Re-
fers to a ‘‘cable community unit’’ shall      quirements); §§ 76.503 and 76.504 (owner-
apply to an open video system.                ship restrictions); § 76.981 (negative op-
   (c) Any provision of § 76.155 that re-     tion billing); and §§ 76,1300, 76.1301 and
fers to a ‘‘cable system operator’’ or        76.1302 (regulation of carriage agree-
‘‘cable television system operator’’          ments); provided, however, that these
shall apply to an open video system op-       sections shall apply to open video sys-
erator. Any provision of § 76.155 that re-    tems only to the extent that they do
fers to a ‘‘cable system’’ or ‘‘cable tele-   not conflict with this subpart S. Sec-
vision system’’ shall apply to an open        tion 631 of the Communications Act
video system except § 76.155(c) which         (subscriber privacy) shall also apply to
shall apply to an open video system op-       open video systems.
erator. Open video system operators
shall make all notifications and infor-       § 76.1511 Fees.
mation regarding exercise of syn-                An open video system operator may
dicated program exclusivity rights im-        be subject to the payment of fees on
mediately available to all appropriate        the gross revenues of the operator for
video programming provider on the             the provision of cable service imposed
system. An open video system operator         by a local franchising authority or
shall not be subject to sanctions for         other governmental entity, in lieu of
any violation of these rules by an unaf-      the franchise fees permitted under Sec-
filiated program supplier if the opera-       tion 622 of the Communications Act.
tor provided proper notices to the pro-       Local governments shall have the au-
gram supplier and subsequently took           thority to assess and receive the gross
prompt steps to stop the distribution of      revenue fee. Gross revenues under this

                                          681
§ 76.1512                                                 47 CFR Ch. I (10–1–98 Edition)

paragraph means all gross revenues re-             (1) An open video system operator
ceived by an open video system opera-            shall not discriminate in favor of itself
tor or its affiliates, including all reve-       or its affiliate on any navigational de-
nues received from subscribers and all           vice, guide or menu;
carriage revenues received from unaf-              (2) An open video system operator
filiated video programming providers.            shall not omit television broadcast sta-
In addition gross revenues under this            tions or other unaffiliated video pro-
paragraph includes any advertising               gramming services carried on the open
revenues received by an open video sys-          video system from any navigational de-
tem operator or its affiliates in connec-        vice, guide (electronic or paper) or
tion with the provision of video pro-            menu;
gramming, where such revenues are in-              (3) An open video system operator
cluded in the calculation of the incum-          shall not restrict a video programming
bent cable operator’s cable franchise            provider’s ability to use part of the
fee. Gross revenues does not include             provider’s channel capacity to provide
revenues collected by unaffiliated               an individualized guide or menu to the
video programming providers, such as             provider’s subscribers;
subscriber or advertising revenues. Any            (4) Where an open video system oper-
gross revenues fee that the open video           ator provides no navigational device,
system operator or its affiliate collects        guide or menu, its affiliate’s naviga-
from subscribers or video programming
                                                 tional device, guide or menu shall be
providers shall be excluded from gross
                                                 subject to the requirements of Section
revenues. An operator of an open video
                                                 653(b)(1)(E) of the Communications
system or any programming provider
                                                 Act;
may designate that portion of a sub-
scriber’s bill attributable to the fee as          (5) An open video system operator
a separate item on the bill. An opera-           may permit video programming provid-
tor of an open video system may re-              ers, including its affiliate, to develop
cover the gross revenue fee from pro-            and use their own navigational devices.
gramming providers on a proportional             If an open video system operator per-
basis as an element of the carriage              mits video programming providers, in-
rate.                                            cluding its affiliate, to develop and use
                                                 their own navigational devices, the op-
[61 FR 43177, Aug. 21, 1996]                     erator must create an electronic menu
  EFFECTIVE DATE NOTE: At 61 FR 43177, Aug.      or guide that all video programming
21, 1996, § 76.1511 was revised. This section    providers must carry containing a non-
contains information collection and record-      discriminatory listing of programming
keeping requirements and will not become         providers or programming services
effective until approval has been given by       available on the system and informing
the Office of Management and Budget.
                                                 the viewer how to obtain additional in-
§ 76.1512 Programming information.               formation on each of the services list-
                                                 ed;
  (a) An open video system operator                (6) An open video system operator
shall not unreasonably discriminate in           must grant access, for programming
favor of itself or its affiliates with re-       providers that do not wish to use their
gard to material or information (in-             own navigational device, to the naviga-
cluding advertising) provided by the             tional device used by the open video
operator to subscribers for the purpose          system operator or its affiliate; and
of selecting programming on the open               (7) If an operator provides an elec-
video system, or in the way such mate-           tronic guide or menu that complies
rial or information is provided to sub-          with paragraph (b)(5) of this section,
scribers.                                        its programming affiliate may create
  NOTE TO PARAGRAPH (a): ‘‘Material or infor-    its own menu or guide without being
mation’’ as used in paragraph (a) of this sec-   subject to the requirements of Section
tion means material or information that a        653(b)(1)(E) of the Communications
subscriber uses to actively select program-      Act.
ming at the point of program selection.
                                                   (c) An open video system operator
  (b) In accordance with paragraph (a)           shall ensure that video programming
of this section:                                 providers or copyright holders (or both)

                                             682
Federal Communications Commission                                                     § 76.1513

are able to suitably and uniquely iden-               record consisting of a complaint, an-
tify their programming services to sub-               swer, and reply, but may also include
scribers.                                             other written submissions such as
  (d) An open video system operator                   briefs and written interrogatories. All
shall transmit programming identifica-                written submissions, both substantive
tion without change or alteration if                  and procedural, must conform to the
such identification is transmitted as                 following standard:
part of the programming signal.                         (1) Pleadings must be clear, concise,
[61 FR 28708, June 5, 1996, as amended at 61
                                                      and explicit. All matters concerning a
FR 43177, Aug. 21, 1996]                              claim, defense or requested remedy,
                                                      should be pleaded fully and with speci-
  EFFECTIVE DATE NOTE: At 61 FR 43177, Aug.
                                                      ficity;
21, 1996, in § 76.1512, paragraphs (b), (c) and (d)
were revised. This amendment contains in-
                                                        (2) Pleadings must contain facts
formation collection and recordkeeping re-            which, if true, are sufficient to con-
quirements and will not become effective              stitute a violation of the Communica-
until approval has been given by the Office of        tions Act or of a Commission regula-
Management and Budget.                                tion or order, or a defense to such al-
                                                      leged violation;
§ 76.1513 Dispute resolution.                           (3) Facts must be supported by rel-
   (a) Complaints. Any party aggrieved                evant documentation or affidavit;
by conduct that it alleges to constitute                (4) Legal arguments must be sup-
a violation of the regulations set forth              ported by appropriate judicial, Com-
in this part or in Section 653 of the                 mission, or statutory authority;
Communications Act (47 U.S.C. 573)                      (5) Opposing authorities must be dis-
may commence an adjudicatory pro-                     tinguished;
ceeding at the Commission. The Com-                     (6) Copies must be provided of all
mission shall resolve any such dispute                non-Commission       authorities    relied
within 180 days after the filing of a                 upon which are not routinely available
complaint.                                            in national reporting systems, such as
   (b) Alternate dispute resolution. An               unpublished decisions or slip opinions
open video system operator may not                    of courts or administrative agencies;
provide in its carriage contracts with                and
programming providers that any dis-                     (7) Parties are responsible for the
pute must be submitted to arbitration,                continuing accuracy and completeness
mediation, or any other alternative                   of all information and supporting au-
method for dispute resolution prior to                thority furnished in a pending com-
submission of a complaint to the Com-                 plaint proceeding. Information submit-
mission.                                              ted, as well as relevant legal authori-
   (c) Notice required prior to filing of             ties, must be current and updated as
complaint. Any aggrieved party intend-                necessary and in a timely manner at
ing to file a complaint under this sec-               any time before a decision is rendered
tion must first notify the potential de-              on the merits of the complaint.
fendant open video system operator                      (8) Parties are required to submit the
that it intends to file a complaint with              complaint and materials related to
the Commission based on actions al-                   these proceedings simultaneously to
leged to violate one or more of the pro-              the Office of the Secretary and the Bu-
visions contained in this part or in Sec-             reau Chief, Cable Services Bureau.
tion 653 of the Communications Act.                     (9) Pleadings must include a cover
The notice must be in writing and                     sheet indicating that the submission is
must be sufficiently detailed so that its             either an Open Video System Channel
recipient(s) can determine the specific               Carriage Complaint or related plead-
nature of the potential complaint. The                ing. In either case, the only wording on
potential complainant must allow a                    this cover sheet shall be ‘‘Open Video
minimum of ten (10) days for the poten-               System Channel Carriage Dispute Res-
tial defendant(s) to respond before fil-              olution’’ and ‘‘Attention: Cable Serv-
ing a complaint with the Commission.                  ices Bureau.’’ This wording shall be lo-
   (d) General pleading requirements.                 cated in the center of the page and
Complaint proceedings under this part                 should be in letters at least 1⁄2 in size.
are generally resolved on a written                   Parties shall also include the words

                                                  683
§ 76.1513                                                   47 CFR Ch. I (10–1–98 Edition)

‘‘open video systems’’ on their mailing          carriage rates that the operator has included
envelopes.                                       in the average rate.
   (e) Complaint. (1) A complaint filed            (ix) If a programming contract or a
under this part shall contain:                   preliminary carriage rate estimate is
   (i) The name of the complainant and           submitted with the complaint in sup-
each defendant;                                  port of the alleged violation, specific
   (ii) The type of entity that describes        references to the relevant provisions
complainant (e.g., individual, private           therein; and
association, partnership, or corpora-              (x) The specific relief sought.
tion), the address and telephone num-              (2) Every complaint alleging a viola-
ber of the complainant, and the address          tion of the open video system require-
and telephone number of each defend-             ments shall be accompanied by a sworn
ant;                                             affidavit signed by an authorized offi-
   (iii) The name, address and telephone         cer or agent of the complainant. This
number of complainant’s attorney, if             affidavit shall contain a statement
complainant is represented by counsel;           that the affiant has read the complaint
   (iv) Citation to the section of the           and that to the best of the affiant’s
Communications Act and/or the Com-               knowledge, information, and belief
mission regulation or order alleged to           formed after reasonable inquiry, it is
have been violated;                              well grounded in fact and is warranted
   (v) A complete statement of facts,            under Commission regulations and
which, if proven true, would constitute          policies, or is a good faith argument for
such a violation;                                the extension, modification or reversal
   (vi) Any evidence that supports the           of such regulations or policies, and it is
truth or accuracy of the alleged facts;          not interposed for any improper pur-
   (vii) Evidence that the open video            pose. If the complaint is signed in vio-
system operator’s conduct at issue vio-          lation of this rule, the Commission
lated a section of the Communications            upon motion or its own initiative, shall
Act and/or Commission regulation or              impose upon the complainant an appro-
order.                                           priate sanction.
   (viii) If discrimination in rates,              (3) The following format may be used
terms, and conditions of carriage is al-         in cases to which it is applicable, with
leged, documentary evidence shall be             such     modifications     as   the   cir-
submitted such as a preliminary car-             cumstances may render necessary:
riage rate estimate or a programming               Before The Federal Communications Com-
contract that demonstrates a differen-           mission, Washington, D.C. 20554
tial in price, terms or conditions be-             In the Matter of Complainant
tween complainant and a competing                  File No. (To be inserted by the Commis-
video programming provider or, if no             sion) v. Defendant.
programming contract or preliminary              [Insert Subject or Nature of Issue: Unjust or
carriage rate estimate is submitted              Unreasonable Discrimination in Rates,
with the complaint, an affidavit signed          Terms, and Conditions; Discriminatory De-
by an officer of complainant alleging            nial of Carriage]
                                                   Open Video System Complaint
that a differential in price, terms or
                                                 To: The Commission.
conditions exists, a description of the            The complainant (here insert full name of
nature and extent (if known or reason-           complainant and type of entity of such com-
ably estimated by the complainant) of            plainant):
the differential, together with a state-           1. (Here state the complainant’s post office
ment that defendant refused to provide           address and telephone number).
any further specific comparative infor-            2. (Here insert the name, address and tele-
mation;                                          phone number of each defendant).
                                                   3. (Here insert fully and clearly the specific
  NOTE TO PARAGRAPH (e)(1)(viii): Upon re-       act or thing complained of, together with
quest by a complainant, the preliminary car-     such facts as are necessary to give full un-
riage rate estimate shall include a calcula-     derstanding of the matter, including rel-
tion of the average of the carriage rates paid   evant legal and documentary support).
by the unaffiliated video programming pro-         Wherefore, complainant asks (here state
viders receiving carriage from the open video    specifically the relief desired).
system operator, including the information       (Date)
needed for any weighting of the individual       (Name of complainant)

                                             684
Federal Communications Commission                                            § 76.1513

                                              particular justification relied upon in
(Name, address, and telephone number of at-   support of the differential. Any docu-
torney, if any)
                                              ments or contracts submitted pursuant
  (4) The complaint must be accom-            to this paragraph (f)(5) may be pro-
panied by appropriate evidence dem-           tected as proprietary pursuant to para-
onstrating that the required notifica-        graph (j) of this section.
tion pursuant to paragraph (c) of this           (g) Reply. Within twenty (20) days
section has been made.                        after service of an answer, the com-
  (f) Answer. (1) Any open video system       plainant may file and serve a reply
operator upon which a complaint is            which shall be responsive to matters
served under this section shall answer        contained in the answer and shall not
within thirty (30) days of service of the     contain new matters. Failure to reply
complaint, unless otherwise directed          will not be deemed an admission of any
by the Commission.                            allegations contained in the answer,
  (2) The answer shall advise the par-        except with respect to any affirmative
ties and the Commission fully and com-        defense set forth therein. Replies con-
pletely of the nature of any and all de-      taining information claimed by defend-
fenses, and shall respond specifically to     ant to be proprietary under paragraph
all material allegations of the com-          (j) of this section shall be submitted to
plaint. Collateral or immaterial issues       the Commission in confidence pursuant
shall be avoided in answers and every         to the requirements of § 0.459 of this
effort should be made to narrow the           chapter and clearly marked ‘‘Not for
issues. Any defendant failing to file         Public Inspection.’’ An edited version
and serve an answer within the time           removing all proprietary data shall be
and in the manner prescribed by these         filed with the Commission for inclusion
rules may be deemed in default and an         in the public file within five (5) days
order may be entered against defendant        from the date the unedited reply is sub-
in accordance with the allegations con-       mitted, and shall be served on the de-
tained in the complaint.                      fendant.
  (3) The answer shall state concisely
                                                 (h) Motions. Except as provided in
any and all defenses to each claim as-
                                              this section, or upon a showing of ex-
serted and shall admit or deny the
                                              traordinary circumstances, additional
averments on which the adverse party
                                              motions or pleadings by any party will
relies. If the defendant is without
                                              not be accepted.
knowledge or information sufficient to
form a belief as to the truth of an aver-        (i) Discovery. (1) The Commission
ment, the defendant shall so state and        staff may in its discretion order discov-
this has the effect of a denial. When a       ery limited to the issues specified by
defendant intends in good faith to deny       the Commission. Such discovery may
only part of an averment, the answer          include answers to written interrog-
shall specify so much of it as is true        atories or document production.
and shall deny only the remainder. The           (2) The Commission staff may in its
defendant may make its denials as spe-        discretion direct the parties to submit
cific denials of designated averments         discovery proposals, together with a
or paragraphs, or may generally deny          memorandum in support of the discov-
all the averments except such des-            ery requested. Such discovery requests
ignated averments or paragraphs as the        may include answers to written inter-
defendant expressly admits. When the          rogatories, document production or
defendant intends to controvert all           depositions. The Commission staff will
averments, the defendant may do so by         then hold a status conference with the
general denial.                               parties, pursuant to paragraph (l) of
  (4) Averments in a complaint are            this section, to determine the scope of
deemed to be admitted when not denied         discovery. If the Commission staff de-
in the answer.                                termines that extensive discovery is re-
  (5) An answer to a discrimination           quired or that depositions are war-
complaint shall state the reasons for         ranted, the staff will advise the parties
any differential in prices, terms or con-     that the proceeding will be referred to
ditions between the complainant and           an administrative law judge in accord-
its competitor, and shall specify the         ance with paragraph (o) of this section.

                                          685
§ 76.1513                                              47 CFR Ch. I (10–1–98 Edition)

  (j) Confidentiality of proprietary infor-   party shall sign a notarized statement
mation. (1) Any materials generated or        affirmatively stating, or shall certify
provided by a party in connection with        under penalty of perjury, that the indi-
the pre-complaint notification proce-         vidual has personally reviewed the
dure required under paragraph (c) of          Commission’s rules and understands
this section and in the course of adju-       the limitations they impose on the
dicating a complaint under this provi-        signing party.
sion may be designated as proprietary           (4) No copies of materials marked
by that party if the party believes in        proprietary may be made except copies
good faith that the materials fall with-      to be used by persons designated in
in an exemption to disclosure con-            paragraph (j)(2) of this section. Each
tained in the Freedom of Information          party shall maintain a log recording
Act (FOIA), 5 U.S.C. 552(b). Any party        the number of copies made of all pro-
asserting confidentiality for such ma-        prietary material and the persons to
terials shall so indicate by clearly          whom the copies have been provided.
marking each page, or portion thereof,          (5) Upon termination of the com-
for which a proprietary designation is        plaint proceeding, including all appeals
claimed. If a proprietary designation is      and petitions, all originals and repro-
challenged, the party claiming con-           ductions of any proprietary materials,
fidentiality will have the burden of          along with the log recording persons
demonstrating, by a preponderance of          who received copies of such materials,
the evidence, that the material des-          shall be provided to the producing
ignated as proprietary falls under the        party. In addition, upon final termi-
standards for nondisclosure enunciated        nation of the complaint proceeding,
in the FOIA.                                  any notes or other work product de-
  (2) Materials marked as proprietary         rived in whole or in part from the pro-
may be disclosed solely to the follow-        prietary materials of an opposing or
ing persons, only for use in prosecuting      third party shall be destroyed.
or defending a party to the complaint           (k) Other required written submissions.
action, and only to the extent nec-           (1) The Commission may, in its discre-
essary to assist in the prosecution or        tion, require the parties to file briefs
defense of the case:                          summarizing the facts and issues pre-
  (i) Counsel of record representing the      sented in the pleadings and other
parties in the complaint action and           record evidence. These briefs shall con-
any support personnel employed by             tain the findings of fact and conclu-
such attorneys;                               sions of law which that party is urging
  (ii) Officers or employees of the op-       the Commission to adopt, with specific
posing party who are named by the op-         citations to the record, and supported
posing party as being directly involved       by relevant authority and analysis.
in the prosecution or defense of the            (2) The Commission may require the
case;                                         parties to submit any additional infor-
  (iii) Consultants or expert witnesses       mation it deems appropriate for a full,
retained by the parties;                      fair, and expeditious resolution of the
  (iv) The Commission and its staff;          proceeding, including copies of all con-
and                                           tracts and documents reflecting ar-
  (v) Court reporters and stenographers       rangements and understandings alleged
in accordance with the terms and con-         to violate the requirements set forth in
ditions of this section.                      the Communications Act and in this
  (3) The persons designated in para-         part, as well as affidavits and exhibits.
graph (j)(2) of this section shall not dis-     (3) Any briefs submitted shall be filed
close information designated as propri-       concurrently by both the complainant
etary to any person who is not author-        and defendant at such time as is des-
ized under this section to receive such       ignated by the staff. Such briefs shall
information, and shall not use the in-        not exceed fifty (50) pages.
formation in any activity or function           (4) Reply briefs may be submitted by
other than the prosecution or defense         either party within twenty (20) days
in the case before the Commission.            from the date initial briefs are due.
Each individual who is provided access        Reply briefs shall not exceed thirty (30)
to the information by the opposing            pages.

                                          686
Federal Communications Commission                                           § 76.1513

   (5) Briefs containing information        cluding, inter alia, procedural matters,
which is claimed by an opposing or          discovery, and the submission of briefs
third party to be proprietary under         or other evidentiary materials. These
paragraph (j) of this section shall be      rulings will be promptly memorialized
submitted to the Commission in con-         in writing and served on the parties.
fidence pursuant to the requirements        When such rulings require a party to
of § 0.459 of this chapter, and shall be    take affirmative action not subject to
clearly marked ‘‘Not for Public Inspec-     deadlines established by another provi-
tion.’’ An edited version removing all      sion of this part, such action will be re-
proprietary data shall be filed with the    quired within ten (10) days from the
Commission for inclusion in the public      date of the written memorialization
file within five (5) days from the date     unless otherwise directed by the staff.
the unedited version is submitted and         (m) Specifications as to pleadings,
served on opposing parties.                 briefs, and other documents; subscrip-
   (l) Status conference. (1) In any com-   tions. (1) All papers filed in a complaint
plaint proceeding under this part, the      proceeding under this part must be
Commission staff may in its discretion      drawn in conformity with the require-
direct the attorneys and/or the parties     ments of Sections 1.49 and 1.50 of this
to appear for a conference to consider:     chapter.
   (i) Simplification or narrowing of the     (2) All averments of claims or de-
issues;                                     fenses in complaints and answers shall
   (ii) The necessity for or desirability   be made in numbered paragraphs. The
of amendments to the pleadings, addi-       contents of each paragraph shall be
tional pleadings, or other evidentiary      limited as far as practicable to a state-
submissions;                                ment of a single set of circumstances.
   (iii) Obtaining admissions of fact or    Each claim founded on a separate
stipulations between the parties as to      transaction or occurrence and each af-
any or all of the matters in con-           firmative defense shall be separately
troversy;                                   stated to facilitate the clear presen-
   (iv) Settlement of the matters in        tation of the matters set forth.
controversy by agreement of the par-          (3) The original of all pleadings and
ties;                                       submissions by any party shall be
   (v) The necessity for and extent of      signed by that party, or by the party’s
discovery, including objections to in-      attorney. Complaints must be signed
terrogatories or requests for written       by the complainant. The signing party
documents;                                  shall state his or her address and tele-
   (vi) The need and schedule for filing    phone number and the date on which
briefs, and the date for any further        the document was signed. Copies
conferences; and                            should be conformed to the original.
   (vii) Such other matters that may        Except when otherwise specifically
aid in the disposition of the complaint.    provided by rule or statute, pleadings
   (2) Any party may request that a con-    need not be verified. The signature of
ference be held at any time after the       an attorney or party shall be a certifi-
complaint has been filed.                   cate that the attorney or party has
   (3) Conferences will be scheduled by     read the pleading, motion, or other
the Commission at such time and place       paper; that to the best of his or her
as it may designate, to be conducted in     knowledge, information and belief
person or by telephone conference call.     formed after reasonable inquiry, it is
   (4) The failure of any attorney or       well grounded in fact and is warranted
party, following reasonable notice, to      by existing law or a good faith argu-
appear at a scheduled conference will       ment for the extension, modification or
be deemed a waiver and will not pre-        reversal of existing law; and that it is
clude the Commission from conferring        not interposed for any improper pur-
with those parties or counsel present.      pose. If any pleading or other submis-
   (5) During a status conference, the      sion is signed in violation of this provi-
Commission staff may issue oral rul-        sion, the Commission shall upon mo-
ings pertaining to a variety of inter-      tion or upon its own initiative impose
locutory matters relevant to the con-       upon the party an appropriate sanc-
duct of the complaint proceeding in-        tion. Where the pleading or submission

                                        687
§ 76.1513                                               47 CFR Ch. I (10–1–98 Edition)

is signed by counsel, the provisions of          (p) Petitions for reconsideration. Peti-
Sections 1.52 and 1.24 of this chapter        tions for reconsideration of interlocu-
shall also apply.                             tory actions by the Commission’s staff
  (n) Copies; service. (1) The complain-      or by an administrative law judge will
ant shall file an original plus three         not be entertained. Petitions for recon-
copies of the complaint with the Com-         sideration of a decision on the merits
mission. However, if the complaint is         made by the Commission’s staff should
addressed against multiple defendants,        be filed in accordance with §§ 1.104
complainant shall provide three addi-         through 1.106 of this chapter.
tional copies of the complaint for each          (q) Interlocutory review. Except as pro-
additional defendant.                         vided below, no party may seek review
  (2) An original plus two copies shall       of interlocutory rulings until a deci-
be filed of all pleadings and documents       sion on the merits has been issued by
other than the complaint.                     the staff or administrative law judge.
  (3) The complainant shall serve the            (2) Rulings listed in this paragraph
complaint on each defendant at the            are reviewable as a matter of right. An
same time that it is filed at the Com-        application for review of such ruling
mission.                                      may not be deferred and raised as an
  (4) All subsequent pleadings and            exception to a decision on the merits:
briefs, as well as all letters, documents        (i) If the staff’s ruling denies or ter-
or other written submissions, shall be        minates the right of any person to par-
served by the filing party on all other       ticipate as a party to the proceeding,
parties to the proceeding, together           such person, as a matter of right, may
with proof of such service in accord-         file an application for review of that
ance with the requirements of § 1.47 of       ruling:
this chapter.                                    (ii) If the staff’s ruling requires pro-
  (5) The parties to any complaint pro-       duction of documents or other written
ceeding brought pursuant to this sec-         evidence, over objection based on a
tion may be required to file additional       claim of privilege, the ruling on the
copies of any or all papers filed in the      claim of privilege is reviewable as a
proceeding.                                   matter of right; and/or
  (o) Referral to administrative law judge.      (iii) If the staff’s ruling denies a mo-
(1) After reviewing the complaint, an-        tion to disqualify a staff person from
swer and reply, and at any stage of the       participating in the proceeding, the
proceeding thereafter, the Commission         ruling is reviewable as a matter of
staff may, in its discretion, designate       right.
any complaint proceeding for an adju-            (r) Expedited review. (1) Any party to
dicatory hearing before an administra-        a complaint proceeding under this part
tive law judge.                               aggrieved by any decision on the mer-
  (2) Before designation for hearing,         its issued by the staff pursuant to dele-
the staff shall notify, either orally or      gated authority may file an application
in writing, the parties to the proceed-       for review by the Commission in ac-
ing of its intent to so designate, and        cordance with Section 1.115 of this
the parties shall be given a period of        chapter.
ten (10) days to elect to resolve the dis-       (2) Any party to a complaint proceed-
pute through alternative dispute reso-        ing aggrieved by any decision on the
lution procedures, or to proceed with         merits by an administrative law judge
an adjudicatory hearing. Such election        may file an appeal of the decision di-
shall be submitted in writing to the          rectly with the Commission, in accord-
Commission.                                   ance with § 1.276(a) and §§ 1.277 (a)
  (3) Unless otherwise directed by the        through (c) of this chapter, except that
Commission, or upon motion by the             unless a stay is granted by the Com-
Cable Services Bureau Chief, the Cable        mission, the decision by the adminis-
Services Bureau Chief shall not be            trative law judge will become effective
deemed to be a party to a complaint           upon release and will remain in effect
proceeding designated for a hearing be-       pending appeal.
fore an administrative law judge pursu-          (s) Frivolous complaints. It shall be un-
ant to this paragraph.                        lawful for any party to file a frivolous

                                          688
Federal Communications Commission                                                                           Pt. 76, Index

complaint with the Commission alleg-              (a) The open video system operator,
ing any violation of this part. Any vio-        where it is the incumbent local ex-
lation of this paragraph shall con-             change carrier, may not require that a
stitute an abuse of process subject to          subscriber purchase its video service in
appropriate sanctions.                          order to receive local exchange service;
  (t) Statute of limitations. Any com-          and
plaint filed pursuant to this subsection          (b) Any local exchange carrier offer-
must be filed within one year of the            ing such a package must impute the
date on which the following acts or             unbundled tariff rate for the regulated
conduct occur which form the basis of           service.
the complaint:                                  [61 FR 28708, June 5, 1996, as amended at 61
  (1) The open video system operator            FR 43178, Aug. 21, 1996]
enters into a contract with the com-
plainant that the complainant alleges             EFFECTIVE DATE NOTE: At 61 FR 43178, Aug.
                                                21, 1996, in § 76.1514, paragraph (b) was re-
to violate one or more of the rules con-
                                                vised. This amendment contains information
tained in this part; or                         collection and recordkeeping requirements
  (2) The open video system operator            and will not become effective until approval
offers to carry programming for the             has been given by the Office of Management
complainant pursuant to terms that              and Budget.
the complainant alleges to violate one
or more of the rules contained in this                    ALPHABETICAL INDEX—PART 76
part; or                                                               A
  (3) The complainant has notified an           A and B grade contours ......................................           76.5
                                                Access, Channel enforcement ............................                76.10
open video system operator that it in-          Address, operator or status change reports .......                      76.400
tends to file a complaint with the Com-         Aeronautical and marine emergency fre-                                  76.616
mission based on a request for such op-           quencies, Operation near.
                                                Aeronautical band usage, Notification require-                          76.615
erator to carry the complainant’s pro-            ments.
gramming on its open video system               Authority, Special temporary ...............................            76.29
that      has     been     denied     or                                  B
unacknowledged, allegedly in violation          B and A grade contours ......................................           76.5
of one or more of the rules contained in        Boundaries, TV markets .....................................            76.53
this part.                                      Broadcast, Sports ................................................      76.67
                                                Broadcast station, TV ..........................................        76.5
  (u) Remedies for violations. (1) Rem-
edies authorized. Upon completion of                                         C
such adjudicatory proceeding, the               Cable TV channel: Classes I, II, III, IV ...............                76.5
                                                Cablecasting ........................................................   76.5
Commission shall order appropriate              CATV basic signal leakage performance criteria                          76.611
remedies, including, if necessary, the          CATV system ......................................................      76.5
requiring carriage, awarding damages            CATV system interference ..................................             76.613
                                                Candidates for public office, Cablecast by .........                    76.205
to any person denied carriage, or any           Carriage disputes ................................................      76.58
combination of such sanctions. Such             Carriage, mandatory, Expiration of .....................                76.64
order shall set forth a timetable for           Carriage, Manner of ............................................        76.62
compliance, and shall become effective          Carriage of other TV signals ...............................            76.60
                                                Carriage of TV stations, Mandatory ....................                 76.56
upon release.                                   Carriage of TV stations, Mandatory, Exemption                           76.70
  (2) Additional sanctions. The rem-              from.
edies provided in paragraph (u)(1) of           Channel access enforcement .............................                76.10
                                                Communities, Designated ...................................             76.51
this section are in addition to and not         Community, Principal contour .............................              76.5
in lieu of the sanctions available under        Community unit ...................................................      76.5
Title VI or any other provision of the          Consumer education-selector switches ..............                     76.66
                                                Cross-ownership .................................................       76.501
Communications Act.
                                                                           D
[61 FR 28708, June 5, 1996, as amended at 61
                                                Definitions, Part 76 ..............................................     76.5
FR 43178, Aug. 21, 1996; 62 FR 26239, May 13,   Designated communities .....................................            76.51
1997]                                           Dismissal: Special relief petitions .......................             76.8
                                                Disputes concerning carriage .............................              76.58
§ 76.1514 Bundling of video and local           Doctrine, Fairness ...............................................      76.209
     exchange services.                                                      E
   An open video system operator may            Editorials, Political ...............................................   76.209
offer video and local exchange services         Enforcement, Channel access ............................                76.10
                                                Enforcement, Lockbox ........................................           76.11
for sale in a single package at a single        Equal employment opportunity—
price, provided that:                               Scope ...........................................................   76.71


                                            689
Pt. 76, Index                                                                                                 47 CFR Ch. I (10–1–98 Edition)
    General Policy ..............................................           76.73        Notification requirements: network nonduplica-                            76.94
    Program requirements .................................                  76.75          tion.
    Reporting requirements ...............................                  76.77
    Public inspection of records .........................                  76.79                                 O
Exceptions, to rules provisions—                                                         Operation in frequency bands 108–136 and                                  76.610
    Network program nonduplication .................                        76.95          225–400 MHz.
    Signal leakage performance criteria ............                        76.618       Operator, address or status change reports .......                        76.400
    Frequency separation standards .................                        76.618       Order, Show cause .............................................           76.9
                                                                                         Ownership, Cross ................................................         76.501
                               F
Fairness doctrine .................................................         76.209                                     P
File, Public inspection .........................................           76.305       Partial network station .........................................         76.5
Forfeitures ...........................................................     76.9         Performance measurements ...............................                  76.609
Forms, Report .....................................................         76.403       Personal attacks: political cablecasts .................                  76.209
Frequency bands 108–136; 225–400 MHz, Op-                                   76.610       Petitions, Dismissal of .........................................         76.8
   eration in.                                                                           Petitions for waiver ..............................................       76.7
Frequency separation standards ........................                     76.612       Political editorials ................................................     76.209
Frequency separation standards, Exception to ..                             76.618       Possession of rules .............................................         76.301
Full network station .............................................          76.5         Prime time ...........................................................    76.5
                                                                                         Program carriages, STV .....................................              76.64
                        G                                                                Programming, Network .......................................              76.5
Grandfathering, exceptions to rules provisions—                                          Protection extent: network nonduplication ..........                      76.94
    Non-network program exclusivity .................                       76.99        Public inspection file ...........................................        76.305
    Non-applicability of §§ 76.611 and 76.612 ..                            76.618       Public office, Cablecasts by candidates for ........                      76.205
    Operation in frequency bands 108–136;                                   76.619       PURPOSE—Part 76 ...........................................               76.1
      225–400 mHz.
                                                                                                                      Q
                         H–I                                                             Qualified TV station, Showing .............................               76.55
Identification Sponsorship; list retention .............                    76.221                                    R
Independent station .............................................           76.5         Rate regulation standards ...................................             76.33
Input selector switches ........................................            76.66        Receiver generated interference .........................                 76.617
Input selector switches, consumer education .....                           76.66        Reference points, Major/smaller markets ...........                       76.53
Input selector switches, Exemption ....................                     76.70        Registration statement: signature .......................                 76.14
Inspection, CATV systems, by FCC ...................                        76.307       Registration statement ........................................           76.12
Interference from CATV system .........................                     76.613       Relief, Special .....................................................     76.7
Interference, REceiver-generated, Responsibility                            76.617       Report forms .......................................................      76.403
Isolation, Terminal ...............................................         76.5         Reports: Change of operator, address, status ...                          76.400
                                                                                         Responsibility for receiver-generated inter-                              76.617
                               J–L
                                                                                           ference.
Leakage measurements, Signal .........................                      76.601       Rule waiver .........................................................     76.7
Leakage, Signal, performance criteria ................                      76.611       Rules, Possession ...............................................         76.301
Leakage, Signal, performance criteria, Excep-                               76.618
  tion.                                                                                                                 S
List retention, Sponsorship identification ............                     76.221       Selector switches, Input ......................................           76.66
Lockbox enforcement ..........................................              76.11        Selector switches, input, Exemption ...................                   76.70
Lotteries ...............................................................   76.213       Show cause order ...............................................          76.9
                                                                                         Signal leakage measurements ............................                  76.601
                        M                                                                Signal leakage performance criteria ...................                   76.611
Mandatory carriage of TV stations ......................                    76.56        Signature: registration statement ........................                76.14
Mandatory carriage of TV stations, Exemption                                76.70        Significantly viewed signals ................................             76.54
 from.                                                                                   Special relief ........................................................   76.7
Manner of carriage ..............................................           76.62        Special relief petitions, Dismissal of ...................                76.8
Marine and aeronautical emergency fre-                                      76.716       Special temporary authority ................................              76.29
 quencies, Operation near.                                                               Specified zone, TV station ..................................             76.5
Major TV markets ................................................           76.51        Sponsorship identification, List retention ............                   76.221
Market size operation provisions—                                                        Sports broadcasts ...............................................         76.67
Measurements, Performance ..............................                    76.609       Standards for rate regulation ..............................              76.33
Measurements, Signal leakage ...........................                    76.601       Standards, Technical ..........................................           76.605
Monitoring, CATV system ...................................                 76.614       Station protection: network program nonduplica-                           76.92
Must carry requirements .....................................               76.55,         tion.
                                                                              76.59,     Status, operator or address change reports .......                        76.400
                                                                              76.61,     Subscriber terminal .............................................         76.5
                                                                              76.64      Subscribers .........................................................     76.5
                                                                                         System community unit .......................................             76.5
                           N
                                                                                         System inspection (by FCC) ...............................                76.307
Network nonduplication: protection extent ..........                        76.94        System monitoring ..............................................          76.614
Network nonduplication waivers .........................                    76.97        System noise .......................................................      76.5
Network program nonduplication: Exceptions ....                             76.95
Network program nonduplication: Notification ....                           76.94                                   T
Network programming .........................................               76.5         Technical standards ............................................          76.605
Network programs: nonduplication protection ....                            76.92        Terminal isolation ................................................       76.5
Network station, Full ...........................................           76.5         Terminal, Subscriber ...........................................          76.5
Network station, Partial .......................................            76.5         Tests, Performance .............................................          76.601
Noise, System .....................................................         76.5         Translator station, TV ..........................................         76.5
Nonduplication protection, Network programs ....                            76.92        TV markets, Boundaries of .................................               76.53
Non-network program exclusivity, exceptions ....                            76.99        TV markets, Major ...............................................         76.51
Notification requirements: aeronautical bands ....                          76.615       TV signals, Carriage non-mandatory ..................                     76.60


                                                                                       690
Federal Communications Commission                                                                                             § 78.3
                                                                                 78.105 Antenna systems.
                       U–V
                                                                                 78.106 Interferences to geostationary-sat-
Vertical blanking interval, Services on ................               76.64
                                                                                     ellites.
                           W                                                     78.107 Equipment and installation.
Waiver, Network nonduplication .........................               76.97     78.108 Minimum path lengths for fixed
Waiver, Rules ......................................................   76.7          links.
                     X–Y–Z                                                       78.109 Equipment changes.
Zone, Specified, of TV station ............................            76.5      78.111 Frequency tolerance.
                                                                                 78.113 Frequency monitors and measure-
[50 FR 38536, Sept. 23, 1985; 50 FR 39114, Sept.                                     ments.
27, 1985, as amended at 51 FR 34622, Sept. 30,                                   78.115 Modulation limits.
1986; 52 FR 37316, Oct. 6, 1987]                                                 ALPHABETICAL INDEX—PART 78
                                                                                   AUTHORITY: Secs. 2, 3, 4, 301, 303, 307, 308,
PART 78—CABLE TELEVISION RELAY                                                   309, 48 Stat., as amended, 1064, 1065, 1066, 1081,
          SERVICE                                                                1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301,
                                                                                 303, 307, 308, 309.
                       Subpart A—General                                           SOURCE: 37 FR 3292, Feb. 12, 1972, unless
Sec.                                                                             otherwise noted.
78.1 Purpose.
78.3 Other pertinent rules.                                                                 Subpart A—General
78.5 Definitions.
                                                                                 § 78.1   Purpose.
     Subpart B—Applications and Licenses
                                                                                   The rules and regulations set forth in
78.11 Permissible service.                                                       this part provide for the licensing and
78.13 Eligibility for license.                                                   operation of fixed or mobile cable tele-
78.15 Contents of applications.
78.16 Who may sign applications.
                                                                                 vision relay service stations (CARS)
78.17 Amendment of applications.                                                 used for the transmission of television
78.18 Frequency assignments.                                                     and related audio signals, signals of
78.19 Interference.                                                              standard and FM broadcast stations,
78.20 Acceptance of applications; public no-                                     signals of instructional television fixed
    tice.                                                                        stations, and cablecasting from the
78.21 Dismissal of applications.                                                 point of reception to a terminal point
78.22 Objections to applications.
78.23 Equipment tests.
                                                                                 from which the signals are distributed
78.27 License conditions.                                                        to the public by cable. In addition
78.29 License period.                                                            CARS stations may be used to trans-
78.31 Temporary extension of license.                                            mit television and related audio sig-
78.33 Special temporary authority.                                               nals to TV translator and low power
78.35 Assignment or transfer of control.                                         TV stations.
78.36 Frequency coordination.
                                                                                 [43 FR 1952, Jan. 13, 1978, as amended at 47
            Subpart C—General Operating                                          FR 21503, May 18, 1982]
                    Requirements
                                                                                 § 78.3   Other pertinent rules.
78.51 Remote control operation.
78.53 Unattended operation.                                                        Other pertinent provisions of the
78.55 Time of operation.                                                         Commission’s rules and regulations re-
78.57 Station inspection.                                                        lating to the cable television relay
78.59 Posting of station and operator li-                                        service (CARS) are included in the fol-
    censes.                                                                      lowing parts of this chapter:
78.61 Operator requirements.
78.63 Antenna structure marking and light-                                       Part 0—Commission Organization.
    ing.                                                                         Part 1—Practice and Procedure.
78.65 Additional orders.                                                         Part 2—Frequency Allocations and Radio
78.67 Copies of rules.                                                              Treaty Matters; General Rules and Regu-
78.69 Station records.                                                              lations.
78.75 Equal employment opportunities.                                            Part 17—Construction Marking and Lighting
                                                                                    of Antenna Structures.
         Subpart D—Technical Regulations                                         Part 21—Domestic Public Fixed Radio Serv-
                                                                                    ices.
78.101 Power limitations.                                                        Part 74—Experimental, Auxiliary, and Spe-
78.103 Emissions and emission limitations.                                          cial Broadcast, and Other Program Dis-
78.104 Authorized bandwidth and emission                                            tribution Services.
    designator.

                                                                               691

				
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