§  76.1302   Carriage agreement proceedings.

   (a) Complaints. Any video programming vendor or multichannel video
   programming distributor aggrieved by conduct that it believes
   constitute a violation of the regulations set forth in this subpart may
   commence an adjudicatory proceeding at the Commission to obtain
   enforcement of the rules through the filing of a complaint. The
   complaint shall be filed and responded to in accordance with the
   procedures specified in §  76.7 of this part with the following
   additions or changes:

   (b) Prefiling notice required. Any aggrieved video programming vendor
   or multichannel video programming distributor intending to file a
   complaint under this section must first notify the potential defendant
   multichannel video programming distributor that it intends to file a
   complaint with the Commission based on actions alleged to violate one
   or more of the provisions contained in §  76.1301 of this part. The
   notice must be sufficiently detailed so that its recipient(s) can
   determine the specific nature of the potential complaint. The potential
   complainant must allow a minimum of ten (10) days for the potential
   defendant(s) to respond before filing a complaint with the Commission.

   (c) Contents of complaint. In addition to the requirements of §  76.7, a
   carriage agreement complaint shall contain:

   (1) Whether the complainant is a multichannel video programming
   distributor or video programming vendor, and, in the case of a
   multichannel video programming distributor, identify the type of
   multichannel video programming distributor, the address and telephone
   number of the complainant, what type of multichannel video programming
   distributor the defendant is, and the address and telephone number of
   each defendant;

   (2) Evidence that supports complainant's belief that the defendant,
   where necessary, meets the attribution standards for application of the
   carriage agreement regulations;

   (3) The complaint must be accompanied by appropriate evidence
   demonstrating that the required notification pursuant to paragraph (b)
   of this section has been made.

   (d) Prima facie case. In order to establish a prima facie case of a
   violation of §  76.1301, the complaint must contain evidence of the
   following:

   (1) The complainant is a video programming vendor as defined in section
   616(b) of the Communications Act of 1934, as amended, and §  76.1300(e)
   or a multichannel video programming distributor as defined in section
   602(13) of the Communications Act of 1934, as amended, and
   §  76.1300(d);

   (2) The defendant is a multichannel video programming distributor as
   defined in section 602(13) of the Communications Act of 1934, as
   amended, and §  76.1300(d); and

   (3)(i) Financial interest. In a complaint alleging a violation of
   §  76.1301(a), documentary evidence or testimonial evidence (supported
   by an affidavit from a representative of the complainant) that supports
   the claim that the defendant required a financial interest in any
   program service as a condition for carriage on one or more of such
   defendant's systems.

   (ii) Exclusive rights. In a complaint alleging a violation of
   §  76.1301(b), documentary evidence or testimonial evidence (supported
   by an affidavit from a representative of the complainant) that supports
   the claim that the defendant coerced a video programming vendor to
   provide, or retaliated against such a vendor for failing to provide,
   exclusive rights against any other multichannel video programming
   distributor as a condition for carriage on a system.

   (iii) Discrimination. In a complaint alleging a violation of
   §  76.1301(c):

   (A) Evidence that the conduct alleged has the effect of unreasonably
   restraining the ability of an unaffiliated video programming vendor to
   compete fairly; and

   (B) ( 1 ) Documentary evidence or testimonial evidence (supported by an
   affidavit from a representative of the complainant) that supports the
   claim that the defendant discriminated in video programming
   distribution on the basis of affiliation or non-affiliation of vendors
   in the selection, terms, or conditions for carriage of video
   programming provided by such vendors; or

   ( 2 ) ( i ) Evidence that the complainant provides video programming
   that is similarly situated to video programming provided by a video
   programming vendor affiliated (as defined in §  76.1300(a)) with the
   defendant multichannel video programming distributor, based on a
   combination of factors, such as genre, ratings, license fee, target
   audience, target advertisers, target programming, and other factors;
   and

   ( ii ) Evidence that the defendant multichannel video programming
   distributor has treated the video programming provided by the
   complainant differently than the similarly situated, affiliated video
   programming described in paragraph (d)(3)(iii)(B)( 2 )( i ) of this
   section with respect to the selection, terms, or conditions for
   carriage.

   (e) Answer. (1) Any multichannel video programming distributor upon
   which a carriage agreement complaint is served under this section shall
   answer within sixty (60) days of service of the complaint, unless
   otherwise directed by the Commission.

   (2) The answer shall address the relief requested in the complaint,
   including legal and documentary support, for such response, and may
   include an alternative relief proposal without any prejudice to any
   denials or defenses raised.

   (f) Reply. Within twenty (20) days after service of an answer, unless
   otherwise directed by the Commission, the complainant may file and
   serve a reply which shall be responsive to matters contained in the
   answer and shall not contain new matters.

   (g) Prima facie determination. (1) Within sixty (60) calendar days
   after the complainant's reply to the defendant's answer is filed (or
   the date on which the reply would be due if none is filed), the Chief,
   Media Bureau shall release a decision determining whether the
   complainant has established a prima facie case of a violation of
   §  76.1301.

   (2) The Chief, Media Bureau may toll the sixty (60)-calendar-day
   deadline under the following circumstances:

   (i) If the complainant and defendant jointly request that the Chief,
   Media Bureau toll these deadlines in order to pursue settlement
   discussions or alternative dispute resolution or for any other reason
   that the complainant and defendant mutually agree justifies tolling; or

   (ii) If complying with the deadline would violate the due process
   rights of a party or would be inconsistent with fundamental fairness.

   (3) A finding that the complainant has established a prima facie case
   of a violation of §  76.1301 means that the complainant has provided
   sufficient evidence in its complaint to allow the case to proceed to a
   ruling on the merits.

   (4) If the Chief, Media Bureau finds that the complainant has not
   established a prima facie case of a violation of §  76.1301, the Chief,
   Media Bureau will dismiss the complaint.

   (h) Time limit on filing of complaints. Any complaint filed pursuant to
   this subsection must be filed within one year of the date on which one
   of the following events occurs:

   (1) The multichannel video programming distributor enters into a
   contract with a video programming distributor that a party alleges to
   violate one or more of the rules contained in this section; or

   (2) The multichannel video programming distributor offers to carry the
   video programming vendor's programming pursuant to terms that a party
   alleges to violate one or more of the rules contained in this section,
   and such offer to carry programming is unrelated to any existing
   contract between the complainant and the multichannel video programming
   distributor; or

   (3) A party has notified a multichannel video programming distributor
   that it intends to file a complaint with the Commission based on
   violations of one or more of the rules contained in this section.

   (i) Deadline for decision on the merits. (1)(i) For program carriage
   complaints that the Chief, Media Bureau decides on the merits based on
   the complaint, answer, and reply without discovery, the Chief, Media
   Bureau shall release a decision on the merits within sixty (60)
   calendar days after the Chief, Media Bureau's prima facie
   determination.

   (ii) For program carriage complaints that the Chief, Media Bureau
   decides on the merits after discovery, the Chief, Media Bureau shall
   release a decision on the merits within 150 calendar days after the
   Chief, Media Bureau's prima facie determination.

   (iii) The Chief, Media Bureau may toll these deadlines under the
   following circumstances:

   (A) If the complainant and defendant jointly request that the Chief,
   Media Bureau toll these deadlines in order to pursue settlement
   discussions or alternative dispute resolution or for any other reason
   that the complainant and defendant mutually agree justifies tolling; or

   (B) If complying with the deadline would violate the due process rights
   of a party or would be inconsistent with fundamental fairness.

   (2) For program carriage complaints that the Chief, Media Bureau refers
   to an administrative law judge for an initial decision, the deadlines
   set forth in §  0.341(f) of this chapter apply.

   (j) Remedies for violations— (1) Remedies authorized. Upon completion
   of such adjudicatory proceeding, the Commission shall order appropriate
   remedies, including, if necessary, mandatory carriage of a video
   programming vendor's programming on defendant's video distribution
   system, or the establishment of prices, terms, and conditions for the
   carriage of a video programming vendor's programming. Such order shall
   set forth a timetable for compliance, and shall become effective upon
   release, unless any order of mandatory carriage would require the
   defendant multichannel video programming distributor to delete existing
   programming from its system to accommodate carriage of a video
   programming vendor's programming. In such instances, if the defendant
   seeks review of the staff, or administrative law judge decision, the
   order for carriage of a video programming vendor's programming will not
   become effective unless and until the decision of the staff or
   administrative law judge is upheld by the Commission. If the Commission
   upholds the remedy ordered by the staff or administrative law judge in
   its entirety, the defendant will be required to carry the video
   programming vendor's programming for an additional period equal to the
   time elapsed between the staff or administrative law judge decision and
   the Commission's ruling, on the terms and conditions approved by the
   Commission.

   (2) Additional sanctions. The remedies provided in paragraph (j)(1) of
   this section are in addition to and not in lieu of the sanctions
   available under title V or any other provision of the Communications
   Act.

   (k) Petitions for temporary standstill. (1) A program carriage
   complainant seeking renewal of an existing programming contract may
   file a petition along with its complaint requesting a temporary
   standstill of the price, terms, and other conditions of the existing
   programming contract pending resolution of the complaint. To allow for
   sufficient time to consider the petition for temporary standstill prior
   to the expiration of the existing programming contract, the petition
   for temporary standstill and complaint shall be filed no later than
   thirty (30) days prior to the expiration of the existing programming
   contract. In addition to the requirements of §  76.7, the complainant
   shall have the burden of proof to demonstrate the following in its
   petition:

   (i) The complainant is likely to prevail on the merits of its
   complaint;

   (ii) The complainant will suffer irreparable harm absent a stay;

   (iii) Grant of a stay will not substantially harm other interested
   parties; and

   (iv) The public interest favors grant of a stay.

   (2) The defendant multichannel video programming distributor upon which
   a petition for temporary standstill is served shall answer within ten
   (10) days of service of the petition, unless otherwise directed by the
   Commission.

   (3) If the Commission grants the temporary standstill, the adjudicator
   deciding the case on the merits ( i.e., either the Chief, Media Bureau
   or an administrative law judge) will provide for remedies that are
   applied as of the expiration date of the previous programming contract.

   [ 64 FR 6574 , Feb. 10, 1999, as amended at  76 FR 60673 , Sept. 29, 2011]

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