§ 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)(1) 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
   and 76.971, may file a petition for relief with the Commission. Persons
   alleging that a cable operator's leased access rate is unreasonable
   must receive a determination of the cable operator's maximum permitted
   rate from an independent accountant prior to filing a petition for
   relief with the Commission.

   (2) Parties to a dispute over leased access rates shall have five
   business days to agree on a mutually acceptable accountant from the
   date on which the programmer provides the cable operator with a written
   request for a review of its leased access rates. Parties that fail to
   agree on a mutually acceptable accountant within five business days of
   the programmer's request for a review shall each be required to select
   an independent accountant on the sixth business day. The two
   accountants selected shall have five business days to select a third
   independent accountant to perform the review. Operators of systems
   subject to small system relief shall have 14 business days to select an
   independent accountant when an agreement cannot be reached. For these
   purposes, systems subject to small system relief are systems that
   either:

   (i) Qualify as small systems under § 76.901(c) and are owned by a small
   cable company as defined under § 76.901(e); or

   (ii) Have been granted special relief.

   (3) The final accountant's report must be completed within 60 days of
   the date on which the final accountant is selected to perform the
   review. The final accountant's report must, at a minimum, state the
   maximum permitted rate, and explain how it was determined without
   revealing proprietary information. The report must be signed, dated and
   certified by the accountant. The report shall be filed in the cable
   system's local public file.

   (4) If the accountant's report indicates that the cable operator's
   leased access rate exceeds the maximum permitted rate by more than a de
   minimis amount, the cable operator shall be required to pay the full
   cost of the review. If the final accountant's report does not indicate
   that the cable operator's leased access rate exceeds the maximum
   permitted rate by more than a de minimis amount, each party shall be
   required to split the cost of the final accountant's review, and to pay
   its own expenses incurred in making the review.

   (5) Parties may use alternative dispute resolution (ADR) processes to
   settle disputes that are not resolved by the final accountant's report.

   (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. Where a petition is based on
   allegations that a cable operator's leased access rates are
   unreasonable, the petitioner must attach a copy of the final
   accountant's report. In proceedings before the Commission, there will
   be a rebuttable presumption that the final accountant's report is
   correct.

   (d) Where a petition is not based on allegations that a cable
   operator's leased access rates are unreasonable, the petition must be
   filed within 60 days of the alleged violation. Where a petition is
   based on allegations that the cable operator's leased access rates are
   unreasonable, the petition must be filed within 60 days of the final
   accountant's report, or within 60 days of the termination of ADR
   proceedings. Aggrieved parties must certify that their petition was
   filed within 60 days of the termination of ADR proceedings in order to
   file a petition later than 60 days after completion of the final
   accountant's report. Cable operators may rebut such certifications.

   (e) The cable operator or other respondent will have 30 days from the
   filing of the petition to file a 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.

   (f) The Commission, 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.

   (g) 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 and
   76.971, 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.

   (h) 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.

   [ 78 FR 20257 , Apr. 4, 2013]

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