§  76.975   Commercial leased access dispute resolution.

   (a) Any person aggrieved by the failure or refusal of a cable operator
   to make commercial channel capacity available in accordance with the
   provisions of Title VI of the Communications Act may bring an action in
   the district court of the United States for the Judicial district in
   which the cable system is located to compel that such capacity be made
   available.

   (b) Any person aggrieved by the failure or refusal of a cable operator
   to make commercial channel capacity available or to charge rates for
   such capacity in accordance with the provisions of Title VI of the
   Communications Act, or our implementing regulations, § §  76.970, 76.971,
   and 76.972 may file a petition for relief with the Commission.

   (c) A petition must contain a concise statement of the facts
   constituting a violation of the statute or the Commission's rules, the
   specific statute(s) or rule(s) violated, and certify that the petition
   was served on the cable operator.

   (d) The petition must be filed within 60 days of the alleged violation.
   The time limit on filing complaints will be suspended if the
   complainant files a notice with the Commission prior to the expiration
   of the filing period, stating that it seeks an extension of the filing
   deadline in order to pursue active negotiations with the cable
   operator, and the cable operator agrees to the extension.

   (e) Discovery. In addition to the general pleading and discovery rules
   contained in §  76.7 of this part, parties to a leased access complaint
   may serve requests for discovery directly on opposing parties, and file
   a copy of the request with the Commission. The respondent shall have
   the opportunity to object to any request for documents that are not in
   its control or relevant to the dispute. Such request shall be heard,
   and determination made, by the Commission. Until the objection is ruled
   upon, the obligation to produce the disputed material is suspended. Any
   party who fails to timely provide discovery requested by the opposing
   party to which it has not raised an objection, or who fails to respond
   to a Commission order for discovery material, may be deemed in default
   and an order may be entered in accordance with the allegations
   contained in the complaint, or the complaint may be dismissed with
   prejudice.

   (f) Protective orders. In addition to the procedures contained in
   §  76.9 of this part related to the protection of confidential material,
   the Commission may issue orders to protect the confidentiality of
   proprietary information required to be produced for resolution of
   leased access complaints. A protective order constitutes both an order
   of the Commission and an agreement between the party executing the
   protective order declaration and the party submitting the protected
   material. The Commission has full authority to fashion appropriate
   sanctions for violations of its protective orders, including but not
   limited to suspension or disbarment of attorneys from practice before
   the Commission, forfeitures, cease and desist orders, and denial of
   further access to confidential information in Commission proceedings.

   (g) The cable operator or other respondent will have 30 days from the
   filing of the petition to file a response. To the extent that a cable
   operator expressly references and relies upon a document or documents
   in asserting a defense or responding to a material allegation, such
   document or documents shall be included as part of the response. If a
   leased access rate is disputed, the response must show that the rate
   charged is not higher than the maximum permitted rate for such leased
   access, and must be supported by the affidavit of a responsible company
   official. If, after a response is submitted, the staff finds a prima
   facie violation of our rules, the staff may require a respondent to
   produce additional information, or specify other procedures necessary
   for resolution of the proceeding.

   (h)(1) The Media Bureau will resolve a leased access complaint within
   90 days of the close of the pleading cycle.

   (2) The Media Bureau, after consideration of the pleadings, may grant
   the relief requested, in whole or in part, including, but not limited
   to ordering refunds, injunctive measures, or forfeitures pursuant 47
   U.S.C. 503, denying the petition, or issuing a ruling on the petition
   or dispute.

   (3) To be afforded relief, the petitioner must show by clear and
   convincing evidence that the cable operator has violated the
   Commission's leased access provisions in 47 U.S.C. 532 or §  76.970,
   §  76.971, or §  76.972, or otherwise acted unreasonably or in bad faith
   in failing or refusing to make capacity available or to charge lawful
   rates for such capacity to an unaffiliated leased access programmer.

   (4) As part of the remedy phase of the leased access complaint process,
   the Media Bureau will have discretion to request that the parties file
   their best and final offer for the prices, terms, or conditions in
   dispute. The Commission will have the discretion to adopt one of the
   proposals or choose to fashion its own remedy.

   (i) During the pendency of a dispute, a party seeking to lease channel
   capacity for commercial purposes, shall comply with the rates, terms
   and conditions prescribed by the cable operator, subject to refund or
   other appropriate remedy.

   [ 58 FR 29753 , May 21, 1993, as amended at  62 FR 11382 , Mar. 12, 1997;
    73 FR 10692 , Feb. 28, 2008]

   Effective Date Note: At  73 FR 10692 , Feb. 28, 2008, in §  76.975,
   paragraphs (b) through (g) were revised, paragraph (h) was redesignated
   as paragraph (i) and a new paragraph (h) was added. Paragraphs (d),
   (e),(g), and (h)(4) of this section, which contain information
   collection and recordkeeping requirements, and paragraphs (b), (c), and
   (f), which contains requirements related to those information
   collection requirements, will not become effective until approval has
   been given by the Office of Management and Budget.

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