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Pt. 76 47 CFR Ch. I (10–1–20 Edition)

Experimental Broadcast Stations ...... 74.163 76.9 Confidentiality of proprietary informa- LPTV/TV Translators ...... 74.763 tion. ITFS ...... 74.963 76.10 Review. FM Translators/Boosters ...... 74.1263 76.11 Lockbox enforcement. Tolerance, Frequency— Experimental Broadcast Stations ...... 74.161 Remote Pickup ...... 74.464 Subpart B—Registration Statements Aural broadcast auxiliary stations ...... 74.561 TV Auxiliaries ...... 74.661 76.29 Special temporary authority. LPTV/TV Translators ...... 74.761 ITFS ...... 74.961 Subpart C—Cable Franchising FM Translator/Boosters ...... 74.1261 Translator signal boosters, UHF (LPTV/TV 74.733 76.41 Franchise application process. Translators). 76.42 In-kind contributions. Translators, TV, Purpose of (LPTV/TV Trans- 74.731 76.43 Mixed-use rule. lators). Transmission standards (ITFS) ...... 74.938 Transmission system facilities (LPTV/TV Trans- 74.750 Subpart D—Carriage of lators). Broadcast Signals Transmission systems, modification of— LPTV/TV Translator ...... 74.751 76.51 Major television markets. ITFS ...... 74.951 76.53 Reference points. FM Translators/Boosters ...... 74.1251 76.54 Significantly viewed signals; method Transmissions, Permissible (Low Power Auxil- 74.831 to be followed for special showings. iaries). 76.55 Definitions applicable to the must- power (Remote Pickup) ...... 74.461 carry rules. and associated equipment (FM 74.1250 Translators/Boosters). 76.56 Signal carriage obligations. TV boosters, Broadcast rules applicable to 74.780 76.57 Channel positioning. (LPTV/TV Translators/TV Boosters. 76.59 Modification of television markets. TV Broadcast station protection (from LPTV/TV 74.705 76.60 Compensation for carriage. Translators). 76.61 Disputes concerning carriage. TV, Low Power and translators, protection to 74.707 76.62 Manner of carriage. (LPTV/TV Translators). 76.64 Retransmission consent. TV translators, Broadcast rules applicable to 74.780 76.65 Good faith and exclusive retrans- (LPTV/TV Translators). mission consent complaints. U 76.66 Satellite broadcast signal carriage. UHF translator signal boosters (LPTV/TV Trans- 74.733 76.70 Exemption from input selector switch lators). rules. Unattended operation— Aural broadcast auxiliary stations ...... 74.531 Subpart E—Equal Employment Opportunity TV Auxiliaries ...... 74.635 LPTV/TV Translators ...... 74.734 Requirements ITFS ...... 74.934 FM Translators/Boosters ...... 74.1234 76.71 Scope of application. Use of common structure (All services) 74.22 76.73 General EEO policy. V [Reserved] 76.75 Specific EEO program requirements. W 76.77 Reporting requirements and enforce- ment. cable usage of ITFS ...... 74.990 X-Z [Reserved] 76.79 Records available for public inspec- tion. [50 FR 38535, Sept. 23, 1985, as amended at 51 FR 34622, Sept. 30, 1986; 52 FR 37316, Oct. 6, Subpart F—Network Non-duplication Pro- 1987; 52 FR 47569, Dec. 15, 1987; 63 FR 33879, tection, Syndicated Exclusivity and June 22, 1998; 63 FR 65127, Nov. 25, 1998; 64 FR Sports 63744, Nov. 22, 1999] 76.92 Cable network non-duplication; extent of protection. PART 76—MULTICHANNEL VIDEO 76.93 Parties entitled to network non-dupli- AND SERVICE cation protection. 76.94 Notification. Subpart A—General 76.95 Exceptions. 76.101 Cable syndicated program exclu- Sec. sivity: extent of protection. 76.1 Purpose. 76.103 Parties entitled to syndicated exclu- 76.3 Other pertinent rules. sivity. 76.5 Definitions. 76.105 Notification. 76.6 General pleading requirements. 76.106 Exceptions. 76.7 General special relief, waiver, enforce- 76.107 Exclusivity contracts. ment, complaint, show cause, forfeiture, 76.108 Indemnification contracts. and declaratory ruling procedures. 76.109 Requirements for invocation of pro- 76.8 Status conference. tection. 552

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76.110 Substitutions. 76.640 Support for unidirectional digital 76.120 Network non-duplication protection cable products on systems. and syndicated exclusivity rules for sat- ellite carriers: Definitions. Subpart L—Cable Television Access 76.122 Satellite network non-duplication. 76.123 Satellite syndicated program exclu- 76.701 Leased access channels. sivity. 76.702 Public access. 76.124 Requirements for invocation of pro- tection. Subpart M—Cable Inside Wiring 76.125 Indemnification contracts. 76.800 Definitions. 76.130 Substitutions. 76.801 Scope. 76.802 Disposition of cable home wiring. Subpart G—Cablecasting 76.804 Disposition of home run wiring. 76.805 Access to molding. 76.205 Origination cablecasts by legally 76.806 Pre-termination access to cable home qualified candidates for public office; wiring. equal opportunities. 76.206 Candidate rates. Subpart N—Cable Rate Regulation 76.213 Lotteries. 76.225 Commercial limits in children’s pro- 76.901 Definitions. grams. 76.905 Standards for identification of cable 76.227 [Reserved] systems subject to effective competition. 76.906 Presumption of effective competition. Subpart H—General Operating 76.907 Petition for a determination of effec- Requirements tive competition. 76.910 Franchising authority certification. 76.309 Customer service obligations. 76.911 Petition for reconsideration of cer- tification. Subpart I [Reserved] 76.912 Joint certification. 76.913 Assumption of jurisdiction by the Subpart J—Ownership of Cable Systems Commission. 76.914 Revocation of certification. 76.501 Cross-ownership. 76.916 Petition for recertification. 76.502 Time limits applicable to franchise 76.917 Notification of certification with- authority consideration of transfer appli- drawal. cations. 76.920 Composition of the basic tier. 76.503 National subscriber limits. 76.921 Buy-through of other tiers prohib- 76.504 Limits on carriage of vertically inte- ited. grated programming. 76.922 Rates for the basic service tier and 76.505 Prohibition on buy outs. cable programming service tiers. 76.923 Rates for equipment and installation Subpart K—Technical Standards used to receive the basic service tier. 76.924 Allocation to service cost categories. 76.601 Performance tests. 76.925 Costs of franchise requirements. 76.602 Incorporation by reference. 76.930 Initiation of review of basic cable 76.605 Technical standards. service and equipment rates. 76.606 Closed captioning. 76.933 Franchising authority review of basic 76.607 Transmission of commercial adver- cable rates and equipment costs. tisements. 76.934 Small systems and small cable com- 76.609 Measurements. panies. 76.610 Operation in the frequency bands 108– 76.935 Participation of interested parties. 137 MHz and 225–400 MHz—scope of appli- 76.936 Written decision. cation. 76.937 Burden of proof. 76.611 Cable television basic signal leakage 76.938 Proprietary information. performance criteria. 76.939 Truthful written statements and re- 76.612 Cable television frequency separation sponses to requests of franchising au- standards. thority. 76.613 Interference from a multichannel 76.940 Prospective rate reduction. video programming distributor (MVPD). 76.941 Rate prescription. 76.614 Cable regular moni- 76.942 Refunds. toring. 76.943 Fines. 76.616 Operation near certain aeronautical 76.944 Commission review of franchising au- and marine emergency frequencies. thority decisions on rates for the basic 76.617 Responsibility for interference. service tier and associated equipment. 76.618–76.620 [Reserved] 76.945 Procedures for Commission review of 76.630 Compatibility with consumer elec- basic service rates. tronics equipment. 76.946 Advertising of rates.

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76.952 Information to be provided by cable Subpart S—Open Video Systems on monthly subscriber bills. 76.962 Implementation and certification of 76.1500 Definitions. compliance. 76.1501 Qualifications to be an open video 76.963 Forfeiture. system operator. 76.970 Commercial leased access rates. 76.1502 Certification. 76.971 Commercial leased access terms and 76.1503 Carriage of video programming pro- conditions. viders on open video systems. 76.975 Commercial leased access dispute res- 76.1504 Rates, terms and conditions for car- olution. riage on open video systems. 76.977 Minority and educational program- 76.1505 Public, educational and govern- ming used in lieu of designated commer- mental access. cial leased access capacity. 76.1506 Carriage of television broadcast sig- 76.980 Charges for customer changes. nals. 76.981 Negative option billing. 76.1507 Competitive access to satellite cable programming. 76.982 Continuation of rate agreements. 76.1508 Network non-duplication. 76.983 Discrimination. 76.1509 Syndicated program exclusivity. 76.984 Geographically uniform rate struc- 76.1510 Application of certain Title VI pro- ture. visions. 76.985 Subscriber bill itemization. 76.1511 Fees. 76.990 Small cable operators. 76.1512 Programming information. 76.1513 Open video dispute resolution. Subpart O—Competitive Access to Cable 76.1514 Bundling of video and local exchange Programming services.

76.1000 Definitions. Subpart T—Notices 76.1001 Unfair practices generally. 76.1002 Specific unfair practices prohibited. 76.1600 xxx 76.1003 Program access proceedings. 76.1601 Deletion or repositioning of broad- 76.1004 Applicability of program access cast signals. rules to common carriers and affiliates. 76.1602 Customer service—general informa- 76.1005–76.1010 [Reserved] tion. 76.1603 Customer service—rate and service Subpart P—Competitive Availability of changes. Navigation Devices 76.1604 Charges for customer service changes. 76.1200 Definitions. 76.1607 Principal headend. 76.1201 Rights of subscribers to use or at- 76.1608 System technical integration requir- tach navigation devices. ing uniform election of must-carry or re- 76.1202 Availability of navigation devices. transmission consent status. 76.1203 Incidence of harm. 76.1609 Non-duplication and syndicated ex- 76.1204 Availability of equipment per- clusivity. forming conditional access or security 76.1610 Change of operational information. functions. 76.1611 Political cable rates and classes of 76.1205 CableCARD support. time. 76.1206 Equipment sale or lease charge sub- 76.1614 Identification of must-carry signals. sidy prohibition. 76.1615 Sponsorship identification. 76.1207 Waivers. 76.1616 Contracts with local exchange car- 76.1208 Sunset of regulations. riers. 76.1209 Theft of service. 76.1617 Initial must-carry notice. 76.1210 Effect on other rules. 76.1618 Basic tier availability. 76.1619 Information on subscriber bills. Subpart Q—Regulation of Carriage 76.1620 Availability of signals. Agreements 76.1621 [Reserved] 76.1622 [Reserved] 76.1300 Definitions. 76.1301 Prohibited practices. Subpart U—Documents to be Maintained 76.1302 Carriage agreement proceedings. for Inspection 76.1303–76.1305 [Reserved] 76.1700 Records to be maintained by cable Subpart R— Act system operators. Implementation 76.1701 Political file. 76.1702 Equal employment opportunity. 76.1400 Purpose. 76.1703 Commercial matter on children’s 76.1404 Use of cable facilities by local ex- programs. change carriers. 76.1704 Proof of performance test data.

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76.1705 [Reserved] Subpart A—General 76.1706 Signal leakage logs and repair records. § 76.1 Purpose. 76.1707 Leased access. The rules and regulations set forth in 76.1708 [Reserved] this part provide for the certification 76.1709 Availability of signals. of cable television systems and for 76.1710 Operator interests in video program- ming. their operation in conformity with 76.1711 Emergency alert system (EAS) tests standards for carriage of television and activation. broadcast signals, program exclusivity, 76.1712 Open video system (OVS) requests cablecasting, access channels, and re- for carriage. lated matters. The rules and regula- 76.1713 Complaint resolution. tions in this part also describe broad- 76.1714 Familiarity with FCC rules. cast carriage requirements for cable 76.1715 Sponsorship identification. operators and satellite carriers. 76.1716 Subscriber records and public inspec- [37 FR 3278, Feb. 12, 1972, as amended at 70 tion file. FR 21670, Apr. 27, 2005] 76.1717 Compliance with technical stand- ards. § 76.3 Other pertinent rules. Other pertinent provisions of the Subpart V—Reports and Filings Commission’s rules and regulations re- 76.1800 Additional reports and filings. lating to Multichannel Video and the 76.1801 Registration statement. Cable Television Service are included 76.1802 Annual employment report. in the following parts of this chapter: 76.1803 Signal leakage monitoring. Part 1—Practice and Procedure. 76.1804 Aeronautical frequencies: leakage Part 11—Emergency Alert System (EAS). monitoring (CLI). Part 21—Domestic Public Radio Services 76.1805 Alternative rate regulation agree- (Other Than Maritime Mobile). ments. Part 63—Extension of Lines and Discontinu- ance of Service by Carriers. Subpart W—Encoding Rules Part 64—Miscellaneous Rules Relating to Common Carriers. 76.1901 Applicability. Part 78—Cable Television Relay Service. 76.1902 Definitions. Part 79—Closed Captioning of Video Pro- 76.1903 Interfaces. gramming. 76.1904 Encoding rules for defined business Part 91—Industrial Radio Services. models. [65 FR 53614, Sept. 5, 2000] 76.1905 Petitions to modify encoding rules for new services within defined business § 76.5 Definitions. models. (a) Cable system or cable television sys- 76.1906 Encoding rules for undefined busi- tem. A facility consisting of a set of ness models. closed transmission paths and associ- 76.1907 Temporary bona fide trials. ated signal generation, reception, and 76.1908 Certain practices not prohibited. control equipment that is designed to 76.1909 Redistribution control of provide cable service which includes unencrypted digital terrestrial broadcast content. video programming and which is pro- vided to multiple subscribers within a Subpart X—Access to MDUs community, but such term does not in- clude: 76.2000 Exclusive access to multiple dwell- (1) A facility that services only to re- ing units generally. transmit the television signals of one ALPHABETICAL INDEX—PART 76 or more television broadcast stations; (2) A facility that serves subscribers AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, without using any public right-of-way; 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, (3) A facility of a common carrier 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, which is subject, in whole or in part, to 554, 556, 558, 560, 561, 571, 572, 573. the provisions of Title II of the Com- munications Act of 1934, as amended, SOURCE: 37 FR 3278, Feb. 12, 1972, unless except that such facility shall be con- otherwise noted. sidered a cable system to the extent

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such facility is used in the trans- (f) Major television market. The speci- mission of video programming directly fied zone of a commercial television to subscribers, unless the extent of station licensed to a community listed such use is solely to provide inter- in § 76.51, or a combination of such active on-demand services; specified zones where more than one (4) An open video system that com- community is listed. plies with Section 653 of the Commu- (g) Designated community in a major nications Act; or television market. A community listed in (5) Any facilities of any electric util- § 76.51. ity used solely for operating its elec- (h) Smaller television market. The spec- tric utility systems. ified zone of a commercial licensed to a community that NOTE TO PARAGRAPH (a): The provisions of is not listed in § 76.51. subparts D and F of this part shall also apply (i) Significantly viewed. Viewed in to all facilities defined previously as cable over-the-air households as follows: (1) systems on or before April 28, 1985, except For a full or partial network station— those that serve subscribers without using a share of viewing hours of at least 3 any public right-of-way. percent (total week hours), and a net (b) Television station; television broad- weekly circulation of at least 25 per- cast station. Any television broadcast cent; and (2) for an independent sta- station operating on a channel regu- tion—a share of viewing hours of at larly assigned to its community by least 2 percent (total week hours), and § 73.606 or § 73.622 of this chapter, and a net weekly circulation of at least 5 any television broadcast station li- percent. See § 76.54. censed by a foreign government: Pro- NOTE: As used in this paragraph, ‘‘share of vided, however, That a television broad- viewing hours’’ means the total hours that cast station licensed by a foreign gov- over-the-air television households viewed the ernment shall not be entitled to assert subject station during the week, expressed as a claim to carriage, program exclu- a percentage of the total hours these house- sivity, or retransmission consent au- holds viewed all stations during the period, thorization pursuant to subpart D or F and ‘‘net weekly circulation’’ means the of this part, but may otherwise be car- number of over-the-air television households that viewed the station for 5 minutes or ried if consistent with the rules on any more during the entire week, expressed as a service tier. Further provided that a percentage of the total over-the-air tele- television broadcast station operating vision households in the survey area. on channels regularly assigned to its (j) Full network station. A commercial community by both §§ 73.606 and 73.622 television broadcast station that gen- of this chapter may assert a claim for erally carries in weekly carriage pursuant to subpart D of this hours 85 percent of the hours of pro- part only for a channel assigned pursu- graming offered by one of the three ant to § 73.606. 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. after the initial grant of its construc- (m) A network program is any pro- tion permit. gram delivered simultaneously to more

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than one broadcast station regional or bona fide candidate for nomination or national, commercial or noncommer- office. cial. Persons seeking election to the office (n) Prime time. The 5-hour period from of President or Vice President of the 6 to 11 p.m., local time, except that in shall, for the purposes of the the relevant pe- the Communications Act and the rules riod shall be between the hours of 5 and thereunder, be considered legally quali- 10 p.m., and in the mountain time zone fied candidates only in those States or each station shall elect whether the pe- territories (or the District of Colum- riod shall be 6 to 11 p.m. or 5 to 10 p.m. bia) in which they have met the re- quirements set forth in paragraphs (q) NOTE: Unless the Commission is notified to the contrary, a station in the mountain time (1) and (2) of this rule; except that any zone shall be presumed to have elected the 6 such person who has met the require- to 11 p.m. period. ments set forth in paragraphs (q) (1) 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. Pro- any public office except that of Presi- graming (exclusive of broadcast sig- dent or Vice President of the United nals) carried on a cable television sys- States, by means of a convention, cau- tem over one or more channels and cus or similar procedure, shall be con- subject to the exclusive control of the sidered a legally qualified candidate if, cable operator. 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 substantial showing that he or she is a set forth in paragraph (q) (1) and (4) in

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

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portion of a cable television system, face equipment, and may be built into that operates or will operate within a consumer television receivers. separate and distinct community or (ii) A syndicated program is any pro- municipal entity (including unincor- gram sold, licensed, distributed or of- porated communities within unincor- fered to television station licensees in porated areas and including single, dis- more than one market within the crete unincorporated areas). United States other than as network (ee) Subscribers. (1) As used in the con- programming as defined in § 76.5(m). text of cable service, subscriber or cable (jj) Rural area. A community unit subscriber means a member of the gen- with a density of less than 19 house- eral public who receives broadcast pro- holds per route kilometer or thirty gramming distributed by a cable tele- households per route mile of coaxial vision system and does not further dis- and/or fiber optic cable trunk and feed- tribute it. er line. (2) As used in the context of satellite (kk) Technically integrated. Having service, subscriber or satellite subscriber 75% or more of the video channels re- means a person who receives a sec- ceived from a common headend. ondary transmission service from a (ll) Cable home wiring. The internal satellite carrier and pays a fee for the wiring contained within the premises service, directly or indirectly, to the of a subscriber which begins at the de- satellite carrier or to a distributor. marcation point. Cable home wiring in- cludes passive splitters on the sub- (ff) Cable service. The one-way trans- scriber’s side of the demarcation point, mission to subscribers of video pro- but does not include any active ele- gramming, or other programming serv- ments such as amplifiers, converter or ice; and, subscriber interaction, if any, decoder boxes, or remote control units. which is required for the selection or (mm) Demarcation point. (1) For new use of such video programming or and existing single unit installations, other programming service. For the the demarcation point shall be a point purposes of this definition, ‘‘video pro- at (or about) twelve inches outside of gramming’’ is programming provided where the cable wire enters the sub- by, or generally considered comparable scriber’s premises. to programming provided by, a tele- (2) For new and existing multiple vision broadcast station; and, ‘‘other dwelling unit installations with non- programming service’’ is information loop-through wiring configurations, that a cable operator makes available the demarcation point shall be a point to all subscribers generally. at (or about) twelve inches outside of (gg) Satellite community. (1) For pur- where the cable wire enters the sub- poses of the significantly viewed rules scriber’s dwelling unit, or, where the (see § 76.54), a separate and distinct wire is physically inaccessible at such community or municipal entity (in- point, the closest practicable point cluding unincorporated communities thereto that does not require access to within unincorporated areas and in- the individual subscriber’s dwelling cluding single, discrete unincorporated unit. areas). The boundaries of any such un- (3) For new and existing multiple incorporated community may be de- dwelling unit installations with loop- fined by one or more adjacent five-digit through wiring configurations, the de- zip code areas. Satellite communities marcation points shall be at (or about) apply only in areas in which there is no twelve inches outside of where the pre-existing cable community, as de- cable wire enters or exits the first and fined in paragraph (dd) of this section. last individual dwelling units on the (2) For purposes of the market modi- loop, or, where the wire is physically fication rules (see § 76.59), a county. 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:

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(i) Would require significant modi- tified mail within 15 calendar days. fication of, or significant damage to, Cable systems may in addition elect to preexisting structural elements, and respond to requests from these entities (ii) Would add significantly to the submitted by telephone or email, but physical difficulty and/or cost of ac- must respond in writing by certified cessing the subscriber’s home wiring. mail if requested to do so by the sta- tion or franchisor. NOTE TO § 76.5 PARAGRAPH (mm)(4): For ex- ample, wiring embedded in brick, metal con- (qq) Emergency Alert System (EAS). duit, cinder blocks, or sheet rock with lim- The EAS is composed of broadcast net- ited or without access openings would likely works; cable networks and program be physically inaccessible; wiring enclosed suppliers; AM, FM and TV broadcast within hallway molding would not. stations; Low Power TV (LPTV) sta- (nn) Activated channels. Those chan- tions; cable systems and wireless cable nels engineered at the headend of a systems; and other entities and indus- cable system for the provision of serv- tries operating on an organized basis ices generally available to residential during emergencies at the National, subscribers of the cable system, regard- State, or local levels. less of whether such services actually [37 FR 3278, Feb. 12, 1972] are provided, including any channel EDITORIAL NOTE: For FEDERAL REGISTER ci- designated for public, educational or tations affecting § 76.5, see the List of CFR governmental use. Sections Affected, which appears in the (oo) Usable activated channels. Those Finding Aids section of the printed volume activated channels of a cable system, and at www.govinfo.gov. except those channels whose use for the distribution of broadcast signals § 76.6 General pleading requirements. would conflict with technical and safe- (a) General pleading requirements. All ty regulations. See part 76, subpart K. written submissions, both substantive (pp) Principal headend. (1) The and procedural, must conform to the headend, in the case of a cable system following standards: with a single headend or, (1) A pleading must be clear, concise, (2) In the case of a cable system with and explicit. All matters concerning a more than one headend, the principal claim, defense or requested remedy, headend designated by the cable oper- should be pleaded fully and with speci- ator, except that such designation ficity. shall not undermine or evade the re- (2) Pleadings must contain facts quirements of subpart D of this part. which, if true, are sufficient to warrant Each cable system must provide infor- a grant of the relief requested. mation regarding the designation and (3) Facts must be supported by rel- location of the principal headend to the evant documentation or affidavit. Commission promptly upon request. (4) The original of all pleadings and Except for good cause, an operator may submissions by any party shall be not change its choice of principal signed by that party, or by the party’s headend. Cable systems may elect vol- attorney. Complaints must be signed untarily to provide the location of the by the complainant. The signing party principal headend in the Commission’s shall state his or her address and tele- online public inspection file database phone number and the date on which and may choose whether to make this the document was signed. Copies information accessible only by the should be conformed to the original. Commission or to also make it publicly Each submission must contain a writ- available. Systems that elect not to ten verification that the signatory has provide this information in the online read the submission and to the best of file, or to protect this information in his or her knowledge, information and the online file from public view, must belief formed after reasonable inquiry, make it available to broadcast tele- it is well grounded in fact and is war- vision stations and local franchisors ranted by existing law or a good faith upon request. If a request is submitted argument for the extension, modifica- by a television station or franchisor in tion or reversal of existing law; and writing by certified mail, cable sys- that it is not interposed for any im- tems must respond in writing by cer- proper purpose. If any pleading or

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other submission is signed in violation plaint or disputed question, issue a of this provision, the Commission shall show cause order, revoke the certifi- upon motion or upon its own initiative cation of the local franchising author- impose appropriate sanctions. ity, or initiate a forfeiture proceeding. (5) Legal arguments must be sup- Petitions may be submitted informally ported by appropriate judicial, Com- by letter. mission, or statutory authority. Oppos- (2) Complaints. Complaints shall con- ing authorities must be distinguished. form to the relevant rule section under Copies must be provided of all non- which the complaint is being filed. Commission authorities relied upon (3) Petitions and which are not routinely available in Certificate of service. national reporting systems, such as un- Complaints shall be accompanied by a published decisions or slip opinions of certificate of service on any cable tele- courts or administrative agencies. vision system operator, multichannel (6) Parties are responsible for the video programming distributor, fran- continuing accuracy and completeness chising authority, station licensee, per- of all information and supporting au- mittee, or applicant, or other inter- thority furnished in a pending com- ested person who is likely to be di- plaint proceeding. Information sub- rectly affected if the relief requested is mitted, as well as relevant legal au- granted. thorities, must be current and updated (4) Statement of relief requested. (i) The as necessary and in a timely manner at petition or complaint shall state the any time before a decision is rendered relief requested. It shall state fully and on the merits of the complaint. precisely all pertinent facts and con- (b) Copies to be Filed. Unless other- siderations relied on to demonstrate wise directed by specific regulation or the need for the relief requested and to the Commission, an original and two support a determination that a grant (2) copies of all pleadings shall be filed of such relief would serve the public in- in accordance with § 0.401(a) of this terest. chapter, except that petitions requir- (ii) The petition or complaint shall ing fees as set forth at part 1, subpart G of this chapter must be filed in ac- set forth all steps taken by the parties cordance with § 0.401(b) of this chapter. to resolve the problem, except where (c) Frivolous pleadings. It shall be un- the only relief sought is a clarification lawful for any party to file a frivolous or interpretation of the rules. pleading with the Commission. Any (iii) A petition or complaint may, on violation of this paragraph shall con- request of the filing party, be dismissed stitute an abuse of process subject to without prejudice as a matter of right appropriate sanctions. prior to the adoption date of any final action taken by the Commission with [64 FR 6569, Feb. 10, 1999] respect to the petition or complaint. A § 76.7 General special relief, waiver, request for the return of an initiating enforcement, complaint, show document will be regarded as a request cause, forfeiture, and declaratory for dismissal. ruling procedures. (5) Failure to prosecute. Failure to (a) Initiating pleadings. In addition to prosecute petition or complaint, or the general pleading requirements, ini- failure to respond to official cor- tiating pleadings must adhere to the respondence or request for additional following requirements: information, will be cause for dis- (1) Petitions. On petition by any inter- missal. Such dismissal will be without ested party, cable television system op- prejudice if it occurs prior to the adop- erator, a multichannel video program- tion date of any final action taken by ming distributor, local franchising au- the Commission with respect to the thority, or an applicant, permittee, or initiating pleading. licensee of a television broadcast or translator station, the Commission (b) Responsive pleadings. In addition may waive any provision of this part to the general pleading requirements, 76, impose additional or different re- responsive pleadings must adhere to quirements, issue a ruling on a com- the following requirements:

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(1) Comments/oppositions to petitions. (v) Averments in a complaint are Unless otherwise directed by the Com- deemed to be admitted when not denied mission, interested persons may sub- in the answer. mit comments or oppositions within (c) Reply. In addition to the general twenty (20) days after the date of pub- pleading requirements, reply com- lic notice of the filing of such petition. ments and replies must adhere to the Comments or oppositions shall be following requirements: served on the petitioner and on all per- (1) The petitioner or complainant sons listed in petitioner’s certificate of may file a reply to a responsive plead- service, and shall contain a detailed ing which shall be served on all persons full showing, supported by affidavit, of who have filed pleadings and shall also any facts or considerations relied on. contain a detailed full showing, sup- (2) Answers to complaints. (i) Unless ported by affidavit, of any additional otherwise directed by the Commission, facts or considerations relied on. Un- any party who is served with a com- less expressly permitted by the Com- plaint shall file an answer in accord- mission, reply comments and replies to ance with the following, and the rel- an answer shall not contain new mat- evant rule section under which the ters. complaint is being filed. (2) Failure to reply will not be (ii) The answer shall be filed within deemed an admission of any allega- 20 days of service of the complaint, un- tions contained in the responsive less another period is set forth in the pleading, except with respect to any af- relevant rule section. firmative defense set forth therein. (iii) The answer shall advise the par- (3) Unless otherwise directed by the ties and the Commission fully and com- Commission or the relevant rule sec- pletely of the nature of any and all de- tion, comments and replies to answers fenses, and shall respond specifically to must be filed within ten (10) days after all material allegations of the com- submission of the responsive pleading. plaint. Collateral or immaterial issues (d) Motions. Except as provided in shall be avoided in answers and every this section, or upon a showing of ex- effort should be made to narrow the traordinary circumstances, additional issues. Any party against whom a com- motions or pleadings by any party will plaint is filed failing to file and serve not be accepted. an answer within the time and in the (e) Additional procedures and written manner prescribed by these rules may submissions. (1) The Commission may be deemed in default and an order may specify other procedures, such as oral be entered against defendant in accord- argument or evidentiary hearing di- ance with the allegations contained in rected to particular aspects, as it the complaint. deems appropriate. In the event that (iv) The answer shall admit or deny an evidentiary hearing is required, the the averments on which the adverse Commission will determine, on the party relies. If the defendant is without basis of the pleadings and such other knowledge or information sufficient to procedures as it may specify, whether form a belief as to the truth of an aver- temporary relief should be afforded any ment, the defendant shall so state and party pending the hearing and the na- this has the effect of a denial. When a ture of any such temporary relief. defendant intends in good faith to deny (2) The Commission may require the only part of an averment, the answer parties to submit any additional infor- shall specify so much of it as is true mation it deems appropriate for a full, and shall deny only the remainder. The fair, and expeditious resolution of the defendant may make its denials as spe- proceeding, including copies of all con- cific denials of designated averments tracts and documents reflecting ar- or paragraphs, or may generally deny rangements and understandings alleged all the averments except such des- to violate the requirements set forth in ignated averments or paragraphs as the the Communications Act and in this defendant expressly admits. When the part, as well as affidavits and exhibits. defendant intends to controvert all (3) The Commission may, in its dis- averments, the defendant may do so by cretion, require the parties to file general denial. briefs summarizing the facts and issues

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presented in the pleadings and other resolution procedures, or to proceed record evidence. with an adjudicatory hearing. Such (i) These briefs shall contain the election shall be submitted in writing findings of fact and conclusions of law to the Commission and the Chief Ad- which that party is urging the Com- ministrative Law Judge. mission to adopt, with specific cita- (3) Unless otherwise directed by the tions to the record, and supported by Commission, or upon motion by the relevant authority and analysis. Media Bureau Chief, the Media Bureau (ii) Any briefs submitted shall be Chief shall not be deemed to be a party filed concurrently by both the com- to a proceeding designated for a hear- plainant and defendant at such time as ing before an administrative law judge is designated by the staff. Such briefs pursuant to this paragraph (g). shall not exceed fifty (50) pages. (iii) Reply briefs may be submitted (h) System community units outside the by either party within twenty (20) days Contiguous States. On a finding that the from the date initial briefs are due. public interest so requires, the Com- Reply briefs shall not exceed thirty (30) mission may determine that a system pages. community unit operating or proposing (f) Discovery. (1) The Commission to operate in a community located out- staff may in its discretion order dis- side of the 48 contiguous states shall covery limited to the issues specified comply with provisions of subparts D, by the Commission. Such discovery F, and G of this part in addition to the may include answers to written inter- provisions thereof otherwise applica- rogatories, depositions or document ble. production. (i) Commission ruling. The Commis- (2) The Commission staff may in its sion, after consideration of the plead- discretion direct the parties to submit ings, may determine whether the pub- discovery proposals, together with a lic interest would be served by the memorandum in support of the dis- grant, in whole or in part, or denial of covery requested. Such discovery re- the request, or may issue a ruling on quests may include answers to written the complaint or dispute, issue an interrogatories, document production order to show cause, or initiate a for- or depositions. The Commission staff feiture proceeding. may hold a status conference with the parties, pursuant to § 76.8 of this part, NOTE 1 TO § 76.7: After issuance of an order to determine the scope of discovery, or to show cause pursuant to this section, the direct the parties regarding the scope rules of procedure in Title 47, part 1, subpart of discovery. If the Commission staff A, §§ 1.91–1.95 of this chapter shall apply. determines that extensive discovery is NOTE 2 TO § 76.7: Nothing in this section is required or that depositions are war- intended to prevent the Commission from initiating show cause or forfeiture pro- ranted, the staff may advise the parties ceedings on its own motion; Provided, how- that the proceeding will be referred to ever, that show cause proceedings and for- an administrative law judge in accord- feiture proceedings pursuant to § 1.80(g) of ance with paragraph (g) of this section. this chapter will not be initiated by such (g) Referral to administrative law judge. motion until the affected parties are given (1) After reviewing the pleadings, and an opportunity to respond to the Commis- at any stage of the proceeding there- sion’s charges. after, the Commission staff may, in its NOTE 3 TO § 76.7: Forfeiture proceedings are discretion, designate any proceeding or generally nonhearing matters conducted pur- discrete issues arising out of any pro- suant to the provisions of § 1.80(f) of this ceeding for an adjudicatory hearing be- chapter (Notice of Apparent Liability). Peti- fore an administrative law judge. tioners who contend that the alternative hearing procedures of § 1.80(g) of this chapter (2) Before designation for hearing, should be followed in a particular case must the staff shall notify, either orally or support this contention with a specific show- in writing, the parties to the pro- ing of the facts and considerations relied on. ceeding of its intent to so designate, NOTE 4 TO § 76.7: To the extent a conflict is and the parties shall be given a period perceived between the general pleading re- of ten (10) days to elect to resolve the quirements of this section, and the proce- dispute through alternative dispute dural requirements of a specific section, the

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procedural requirements of the specific sec- other provision of this subpart, such tion should be followed. action will be required within ten (10) [64 FR 6569, Feb. 10, 1999, as amended at 67 days from the date of the written me- FR 13234, Mar. 21, 2002; 76 FR 60673, Sept. 29, morialization unless otherwise directed 2011; 80 FR 59663, Oct. 2, 2015] by the staff. § 76.8 Status conference. [64 FR 6571, Feb. 10, 1999] (a) In any proceeding subject to the § 76.9 Confidentiality of proprietary part 76 rules, the Commission staff information. may in its discretion direct the attor- (a) Any materials filed in the course neys and/or the parties to appear for a of a proceeding under this provision conference to consider: may be designated as proprietary by (1) Simplification or narrowing of the that party if the party believes in good issues; faith that the materials fall within an (2) The necessity for or desirability of exemption to disclosure contained in amendments to the pleadings, addi- the Freedom of Information Act tional pleadings, or other evidentiary (FOIA), 5 U.S.C. 552(b). Any party as- submissions; serting confidentiality for such mate- (3) Obtaining admissions of fact or rials shall so indicate by clearly mark- stipulations between the parties as to ing each page, or portion thereof, for any or all of the matters in con- which a proprietary designation is troversy; claimed. If a proprietary designation is (4) Settlement of the matters in con- challenged, the party claiming con- troversy by agreement of the parties; fidentiality will have the burden of (5) The necessity for and extent of demonstrating, by a preponderance of discovery, including objections to in- the evidence, that the material des- terrogatories or requests for written ignated as proprietary falls under the documents; standards for nondisclosure enunciated (6) The need and schedule for filing in FOIA. briefs, and the date for any further (b) Submissions containing informa- conferences; and tion claimed to be proprietary under (7) Such other matters that may aid this section shall be submitted to the in the disposition of the proceeding. Commission in confidence pursuant to (b) Any party may request that a the requirements of § 0.459 of this chap- conference be held at any time after an ter and clearly marked ‘‘Not for Public initiating document has been filed. Inspection.’’ An edited version remov- (c) Conferences will be scheduled by ing all proprietary data shall be filed the Commission at such time and place with the Commission for inclusion in as it may designate, to be conducted in the public file within five (5) days from person or by telephone conference call. the date the unedited reply is sub- (d) The failure of any attorney or mitted, and shall be served on the op- party, following advance notice with posing parties. an opportunity to be present, to appear (c) Except as provided in paragraph at a scheduled conference will be (d) of this section, materials marked as deemed a waiver and will not preclude proprietary may be disclosed solely to the Commission from conferring with the following persons, only for use in those parties or counsel present. the proceeding, and only to the extent (e) During a status conference, the necessary to assist in the prosecution Commission staff may issue oral rul- or defense of the case: ings pertaining to a variety of matters (i) Counsel of record representing the relevant to the conduct of the pro- parties in the proceeding and any sup- ceeding including, inter alia, procedural port personnel employed by such attor- matters, discovery, and the submission neys; of briefs or other evidentiary mate- (ii) Officers or employees of the par- rials. These rulings will be promptly ties in the proceeding who are named memorialized in writing and served on by another party as being directly in- the parties. When such rulings require volved in the proceeding; a party to take affirmative action not (iii) Consultants or expert witnesses subject to deadlines established by an- retained by the parties;

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(iv) The Commission and its staff; by the staff or administrative law and judge. (v) Court reporters and stenographers (2) Rulings listed in this paragraph in accordance with the terms and con- are reviewable as a matter of right. An ditions of this section. application for review of such ruling (d) The Commission will entertain, may not be deferred and raised as an subject to a proper showing, a party’s exception to a decision on the merits. request to further restrict access to (i) If the staff’s ruling denies or ter- proprietary information as specified by minates the right of any person to par- the party. The other parties will have ticipate as a party to the proceeding, an opportunity to respond to such re- such person, as a matter of right, may quests. file an application for review of that (e) The persons designated in para- ruling. graphs (c) and (d) of this section shall (ii) If the staff’s ruling requires pro- not disclose information designated as duction of documents or other written proprietary to any person who is not evidence, over objection based on a authorized under this section to re- claim of privilege, the ruling on the ceive such information, and shall not claim of privilege is reviewable as a use the information in any activity or matter of right. function other than the prosecution or (iii) If the staff’s ruling denies a mo- defense of the case before the Commis- tion to disqualify a staff person from participating in the proceeding, the sion. Each individual who is provided ruling is reviewable as a matter of access to the information by the oppos- right. ing party shall sign a notarized state- (b) Petitions for reconsideration. Peti- ment affirmatively stating, or shall tions for reconsideration of interlocu- certify under penalty of perjury, that tory actions by the Commission’s staff the individual has personally reviewed or by an administrative law judge will the Commission’s rules and under- not be entertained. Petitions for recon- stands the limitations they impose on sideration of a decision on the merits the signing party. made by the Commission’s staff should (f) No copies of materials marked be filed in accordance with §§ 1.104 proprietary may be made except copies through 1.106 of this chapter. to be used by persons designated in (c) Application for review. (1) Any paragraphs (c) and (d) of this section. party to a part 76 proceeding aggrieved Each party shall maintain a log record- by any decision on the merits issued by ing the number of copies made of all the staff pursuant to delegated author- proprietary material and the persons ity may file an application for review to whom the copies have been provided. by the Commission in accordance with (g) Upon termination of the com- § 1.115 of this chapter. plaint proceeding, including all appeals (2) Any party to a part 76 proceeding and petitions, all originals and repro- aggrieved by any decision on the mer- ductions of any proprietary materials, its by an administrative law judge may along with the log recording persons file an appeal of the decision directly who received copies of such materials, with the Commission, in accordance shall be provided to the producing with §§ 1.276(a) and 1.277(a) through (c) party. In addition, upon final termi- of this chapter, except that in pro- nation of the proceeding, any notes or ceedings brought pursuant to §§ 76.1003, other work product derived in whole or 76.1302, and 76.1513 of this part, unless a in part from the proprietary materials stay is granted by the Commission, the of an opposing or third party shall be decision by the administrative law destroyed. judge will become effective upon re- [64 FR 6571, Feb. 10, 1999] lease and will remain in effect pending appeal. § 76.10 Review. [64 FR 6571, Feb. 10, 1999] (a) Interlocutory review. (1) Except as provided below, no party may seek re- § 76.11 Lockbox enforcement. view of interlocutory rulings until a Any party aggrieved by the failure or decision on the merits has been issued refusal of a cable operator to provided

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a lockbox as provided for in Title VI of mission at any time upon a finding of the Communications Act may petition facts which warrant such action. the Commission for relief in accord- [39 FR 35166, Sept. 30, 1974; 42 FR 19346, Apr. ance with the provisions and proce- 13, 1977, as amended at 43 FR 49008, Oct. 20, dures set forth in § 76.7 for petitions for 1978] special relief. [50 FR 18661, May 2, 1985] Subpart C—Cable Franchising § 76.41 Franchise application process. Subpart B—Registration (a) Definition. Competitive franchise Statements applicant. For the purpose of this sec- tion, an applicant for a cable franchise § 76.29 Special temporary authority. in an area currently served by another (a) In circumstances requiring the cable operator or cable operators in ac- temporary use of community units for cordance with 47 U.S.C. 541(a)(1). operations not authorized by the Com- (b) A competitive franchise applicant mission’s rules, a cable television sys- must include the following information tem may request special temporary au- in writing in its franchise application, thority to operate. The Commission in addition to any information required by applicable State and local laws: may grant special temporary author- (1) The applicant’s name; ity, upon a finding that the public in- (2) The names of the applicant’s offi- terest would be served thereby, for a cers and directors; period not to exceed ninety (90) days, (3) The business address of the appli- and may extend such authority, upon a cant; like finding, for one additional period, (4) The name and contact informa- not to exceed ninety (90) days. tion of a designated contact for the ap- (b) Requests for special temporary plicant; authority may be submitted infor- (5) A description of the geographic mally, by letter, and shall contain the area that the applicant proposes to following: serve; (1) Name and address of the applicant (6) The PEG channel capacity and cable system. capital support proposed by the appli- (2) Community in which the commu- cant; nity unit is located. (7) The term of the agreement pro- posed by the applicant; (3) Type of operation to be conducted. (8) Whether the applicant holds an (4) Date of commencement of pro- existing authorization to access the posed operations. public rights-of-way in the subject (5) Duration of time for which tem- franchise service area as described porary authority is required. under paragraph (b)(5) of this section; (6) All pertinent facts and consider- (9) The amount of the franchise fee ations relied on to demonstrate the the applicant offers to pay; and need for special temporary authority (10) Any additional information re- and to support a determination that a quired by applicable State or local grant of such authority would serve the laws. public interest. (c) A franchising authority may not (7) A certificate of service on all in- require a competitive franchise appli- terested parties. cant to negotiate or engage in any reg- (c) A request for special temporary ulatory or administrative processes authority shall be filed at least ten (10) prior to the filing of the application. (d) When a competitive franchise ap- days prior to the date of commence- plicant files a franchise application ment of the proposed operations, or with a franchising authority and the shall be accompanied by a statement of applicant has existing authority to ac- reasons for the delay in submitting cess public rights-of-way in the geo- such request. graphic area that the applicant pro- (d) A grant of special temporary au- poses to serve, the franchising author- thority may be rescinded by the Com- ity must grant or deny the application

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within 90 days of the date the applica- by a cable operator as a condition or tion is received by the franchising au- requirement of a local franchise, in- thority. If a competitive franchise ap- cluding but not limited to: plicant does not have existing author- (1) Costs attributable to the provi- ity to access public rights-of-way in sion of free or discounted cable service the geographic area that the applicant to public buildings, including buildings proposes to serve, the franchising au- leased by or under control of the fran- thority must grant or deny the applica- chising authority; tion within 180 days of the date the ap- (2) Costs in support of public, edu- plication is received by the franchising cational, or governmental access facili- authority. A franchising authority and ties, with the exception of capital a competitive franchise applicant may costs; and agree in writing to extend the 90-day or (3) Costs attributable to the con- 180-day deadline, whichever is applica- struction of institutional networks. ble. (b) In-kind, cable-related contribu- (e) If a franchising authority does not tions do not include the costs of com- grant or deny an application within the plying with build-out and customer time limit specified in paragraph (d) of service requirements. this section, the competitive franchise applicant will be authorized to offer [84 FR 44750, Aug. 27, 2019] service pursuant to an interim fran- § 76.43 Mixed-use rule. chise in accordance with the terms of the application submitted under para- A franchising authority may not reg- graph (b) of this section. ulate the provision of any services (f) If after expiration of the time other than cable services offered over limit specified in paragraph (d) of this the cable system of a cable operator, section a franchising authority denies with the exception of channel capacity an application, the competitive fran- on institutional networks. chise applicant must discontinue oper- [84 FR 44750, Aug. 27, 2019] ating under the interim franchise spec- ified in paragraph (e) of this section Subpart D—Carriage of Television unless the franchising authority pro- vides consent for the interim franchise Broadcast Signals to continue for a limited period of § 76.51 Major television markets. time, such as during the period when judicial review of the franchising For purposes of the cable television authority’s decision is pending. The rules, the following is a list of the competitive franchise applicant may major television markets and their seek judicial review of the denial under designated communities: 47 U.S.C. 555. (a) First 50 major television markets: (g) If after expiration of the time (1) New York, New York-Linden- limit specified in paragraph (d) of this Paterson-Newark, New Jersey. section a franchising authority and a (2) -San Bernardino-Co- competitive franchise applicant agree rona-Riverside-Anaheim, Calif. on the terms of a franchise, upon the (3) , Ill. effective date of that franchise, that (4) Philadelphia, Pa.-Burlington, N.J. franchise will govern and the interim (5) , Mich. franchise will expire. (6) -Cambridge-Worcester- Lawrence, Mass. [72 FR 13215, Mar. 21, 2007] (7) -Oakland-San Jose, Calif. § 76.42 In-kind contributions. (8) -Lorain-Akron, . (a) In-kind, cable-related contribu- (9) , DC. tions are ‘‘franchise fees’’ subject to (10) , Pa. the five percent cap set forth in 47 (11) St. Louis, Mo. U.S.C. 542(b). Such contributions, (12) -Fort Worth, Tex. which count toward the five percent (13) -St. Paul, Minn. cap at their fair market value, include (14) Baltimore, Md. any non-monetary contributions re- (15) , Tex. lated to the provision of cable service (16) -Bloomington, Ind.

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(17) , Ohio-Newport, Ky. (63) Richmond-Petersburg, Va. (18) -Rome, Ga. (64) Springfield-Decatur-Champaign, (19) Hartford-New Haven-New Brit- . ain-Waterbury-New London, Ct. (65) Cedar Rapids-Waterloo, . (20) -Tacoma, Wash. (66) Des Moines-Ames, Iowa. (21) , Fla. (67) Wichita-Hutchinson, Kans. (22) City, Mo. (68) Jacksonville, Fla. (23) , Wis. (69) Cape Girardeau, Mo.-Paducah, (24) Buffalo, N.Y. Ky.-Harrisburg, Ill. (25) Sacramento-Stockton-Modesto, (70) Roanoke-Lynchburg, Va. Calif. (26) Memphis, Tenn. (71) Knoxville, Tenn. (27) Columbus-Chillicothe, Ohio. (72) Fresno-Visalia-Hanford-Clovis- (28) Tampa-St. Petersburg-Clear- Merced-Porterville, . water, . (73) Raleigh-Durham-Goldsboro-Fay- (29) Portland, Oreg. etteville, . (30) Nashville, Tenn. (74) Johnstown-Altoona, Pa. (31) New Orleans, La. (75) Portland-Poland Spring, Maine. (32) -Castle Rock, . (76) Spokane, Wash. (33) Providence, R.I.-New Bedford, (77) Jackson, Miss. Mass. (78) Chattanooga, Tenn. (34) Albany-Schenectady-Troy, N.Y. (79) Youngstown, Ohio. (35) Syracuse, N.Y. (80) South Bend-Elkhart, Ind. (36) Charleston-Huntington, W. Va. (81) Albuquerque, N. Mex. (37) Kalamazoo-Grand Rapids-Battle (82) Fort Wayne-Roanoke, Ind. Creek, Mich. (83) Peoria, Ill. (38) Louisville, Ky. (39) City, Okla. (84) Greenville-Washington-New (40) Birmingham, Ala. Bern, N.C. (41) Dayton-Kettering, Ohio. (85) Sioux Falls-Mitchell, S. Dak. (42) Charlotte, N.C. (86) Evansville, Ind. (43) Phoenix-Mesa, Ariz. (87) Baton Rouge, La. (44) Norfolk-Newport News-Ports- (88) Beaumont-Port , Tex. mouth-Hampton, Va. (89) Duluth, Minn.-Superior, Minn. (45) San Antonio, Tex. (90) Wheeling, W. Va.-Steubenville, (46) Greenville-Spartanburg-Ander- Ohio. son, S.C.-Asheville, N.C. (91) Lincoln-Hastings-Kearney, Nebr. (47) Greensboro-High Point-Winston (92) Lansing-Onondaga, Mich. Salem, N.C. (93) Madison, Wis. (48) , . (94) Columbus, Ga. (49) Wilkes Barre-Scranton, Pa. (95) Amarillo, Tex. (50) Little Rock-Pine Bluff, Arkan- (96) Huntsville-Decatur, Ala. sas. (97) Rockford-Freeport, Ill. (b) Second 50 major television mar- kets: (98) Fargo-Valley City, N.D. (51) , Calif. (99) Monroe, La.-El Dorado, Ark. (52) Toledo, Ohio. (100) Columbia, S.C. (53) Omaha, Nebr. NOTE: Requests for changes to this list (54) Tulsa, Okla. shall be made in the form of a petition for (55) Orlando-Daytona Beach-Mel- rulemaking pursuant to § 1.401 of this chap- bourne-Cocoa-Clermont, Florida. ter, except that such petitions shall not be (56) Rochester, N.Y. subject to the public notice provisions of (57) Harrisburg-Lancaster-York, Pa. § 1.403 of this chapter. (58) Texarkana, Tex.-Shreveport, La. [37 FR 3278, Feb. 12, 1972] (59) Mobile, Ala.-Pensacola, Fla. EDITORIAL NOTE: For FEDERAL REGISTER ci- (60) Davenport, Iowa-Rock Island-Mo- tations affecting § 76.51, see the List of CFR line, Ill. Sections Affected, which appears in the (61) Flint-Bay City-Saginaw, Mich. Finding Aids section of the printed volume (62) Green Bay, Wis. and at www.govinfo.gov.

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§ 76.53 Reference points. State and community Latitude Longitude

The following list of reference points Stockton ...... 37°57′30″ 121°17′16″ shall be used to identify the boundaries Tulare ...... 36°12′31″ 119°20′35″ of the major and smaller television Ventura ...... 34°16′47″ 119°17′22″ Visalia ...... 36°19′46″ 119°17′30″ markets (defined in § 76.5). Where a Colorado: community’s reference point is not Colorado Springs ...... 38°50′07″ 104°49′16″ given, the geographic coordinates of Denver ...... 39°44′58″ 104°59′22″ Durango ...... 37°16′29″ 107°52′25″ the main post office in the community Grand Junction ...... 39°04′06″ 108°33′54″ shall be used. Montrose ...... 38°28′44″ 107°52′31″ Pueblo ...... 38°16′17″ 104°36′33″ State and community Latitude Longitude Sterling ...... 40°37′29″ 103°12′25″ Connecticut: : 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″ : 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″ : 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″ Tucson ...... 32°13′15″ 110°58′08″ St. Petersburg ...... 27°46′18″ 82°38′16″ Yuma ...... 32°43′16″ 114°37′01″ Sarasota ...... 27°20′05″ 82°32′29″ : Tallahassee ...... 30°26′30″ 84°16′50″ El Dorado ...... 33°12′39″ 92°39′40″ Tampa ...... 27°56′58″ 82°27′26″ Fayetteville ...... 36°03′41″ 94°09′38″ West Palm Beach ...... 26°42′36″ 80°03′05″ Fort Smith ...... 35°23′10″ 94°25′36″ Georgia: Jonesboro ...... 35°50′14″ 90°42′11″ Albany ...... 31°34′36″ 84°09′22″ Little Rock ...... 34°44′42″ 92°16′37″ Athens ...... 33°57′34″ 83°22′39″ California: Atlanta ...... 33°45′10″ 84°23′37″ Bakersfield ...... 35°22′31″ 119°01′16″ Augusta ...... 33°28′20″ 81°58′00″ Chico ...... 39°44′07″ 121°49′57″ Chatsworth ...... 34°46′08″ 84°46′10″ Concord ...... 37°58′46″ 122°01′51″ Cochran ...... 32°23′18″ 83°21′18″ Corona ...... 33°52′35″ 117°33′56″ Columbus ...... 32°28′07″ 84°59′24″ El Centro ...... 32°47′25″ 115°32′45″ Dawson ...... 31°46′33″ 84°26′20″ Eureka ...... 40°48′08″ 124°09′46″ Macon ...... 32°50′12″ 83°37′36″ Fontana ...... 34°05′45″ 117°26′29″ Pelham ...... 31°07′42″ 84°09′02″ Fresno ...... 36°44′12″ 119°47′11″ Savannah ...... 32°04′42″ 81°05′37″ Guasti ...... 34°03′48″ 117°35′10″ Thomasville ...... 30°50′25″ 83°58′59″ Hanford ...... 36°19′51″ 119°38′48″ Waycross ...... 31°12′19″ 82°21′47″ Los Angeles ...... 34°03′15″ 118°14′28″ Wrens ...... 33°12′21″ 82°23′23″ Modesto ...... 37°38′26″ 120°59′44″ Guam: Monterey ...... 36°35′44″ 121°53′39″ Agana ...... 13°28′23″ 144°45′00″ Oakland ...... 37°48′03″ 122°15′54″ Hawaii: Palm Springs ...... 33°49′22″ 116°32′46″ Hilo ...... 19°43′42″ 155°05′30″ Redding ...... 40°34′57″ 122°23′34″ Honolulu ...... 21°18′36″ 157°51′48″ Sacramento ...... 38°34′57″ 121°29′41″ Wailuku ...... 20°53′21″ 156°30′27″ Salinas ...... 36°40′24″ 121°39′25″ : San Bernardino ...... 34°06′30″ 117°17′28″ Boise ...... 43°37′07″ 116°11′58″ San Diego ...... 32°42′53″ 117°09′21″ Idaho Falls ...... 43°29′39″ 112°02′28″ San Francisco ...... 37°46′39″ 122°24′40″ Lewiston ...... 46°25′05″ 117°01′10″ San Jose ...... 37°20′16″ 121°53′24″ Moscow ...... 46°43′58″ 116°59′54″ San Luis Obispo ...... 35°16′49″ 120°39′34″ Pocatello ...... 42°51′38″ 112°27′01″ San Mateo ...... 37°34′08″ 122°19′16″ Twin Falls ...... 42°33′25″ 114°28′21″ Santa Barbara ...... 34°25′18″ 119°41′55″ Illinois: Santa Maria ...... 34°57′02″ 120°26′10″ Aurora ...... 41°45′22″ 88°18′56″

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State and community Latitude Longitude State and community Latitude Longitude

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″ : 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″ : 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″ : 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″ Cedar Rapids ...... 41°58′48″ 91°39′48″ Detroit ...... 42°19′48″ 83°02′57″ Davenport ...... 41°31′24″ 90°34′21″ Escanaba ...... 45°44′45″ 87°03′18″ Des Moines ...... 41°35′14″ 93°37′00″ Flint ...... 43°00′50″ 83°41′33″ Dubuque ...... 42°29′55″ 90°40′08″ Grand Rapids ...... 42°58′03″ 85°40′13″ Fort Dodge ...... 42°30′12″ 94°11′05″ Jackson ...... 42°14′43″ 84°24′22″ Iowa City ...... 41°39′37″ 91°31′52″ Kalamazoo ...... 42°17′29″ 85°35′14″ Mason City ...... 43°09′15″ 93°12′00″ Lansing ...... 42°44′01″ 84°33′15″ Sioux City ...... 42°29′46″ 96°24′30″ Marquette ...... 46°32′37″ 87°23′43″ Waterloo ...... 42°29′40″ 92°20′20″ Mount Pleasant ...... 43°16′12″ 84°46′31″ Kansas: Muskegon ...... 43°14′17″ 86°15′02″ Ensign ...... 37°38′48″ 100°14′00″ Onondaga ...... 42°26′41″ 84°33′43″ Garden City ...... 37°57′54″ 100°52′20″ Saginaw ...... 43°25′52″ 83°56′05″ Goodland ...... 39°20′53″ 101°42′35″ Sault Ste. Marie ...... 46°29′58″ 84°20′37″ Great Bend ...... 38°22′04″ 98°45′58″ Traverse City ...... 44°45′47″ 85°37′25″ Hays ...... 38°52′16″ 99°19′57″ University Center ...... 43°33′31″ 83°59′09″ Hutchinson ...... 38°03′11″ 97°55′20″ : Pittsburg ...... 37°24′50″ 94°42′11″ Alexandria ...... 45°53′06″ 95°22′39″ Salina ...... 38°50′36″ 97°36′46″ Appleton ...... 45°12′00″ 96°01′02″ Topeka ...... 39°03′16″ 95°40′23″ Austin ...... 43°39′57″ 92°58′20″ Wichita ...... 37°41′30″ 97°20′16″ Duluth ...... 46°46′56″ 92°06′24″ : Hibbing ...... 47°25′43″ 92°56′21″ Ashland ...... 38°28′36″ 82°38′23″ Mankato ...... 44°09′49″ 94°00′09″ Bowling Green ...... 36°59′41″ 86°26′33″ Minneapolis ...... 44°58′57″ 93°15′43″ Covington ...... 39°05′00″ 84°30′29″ Rochester ...... 44°01′21″ 92°28′03″ Elizabethtown ...... 37°41′38″ 85°51′35″ St. Cloud ...... 45°33′35″ 94°09′38″ Hazard ...... 37°14′54″ 83°11′31″ St. Paul ...... 44°56′50″ 93°05′11″ Lexington ...... 38°02′50″ 84°29′46″ Walker ...... 47°05′57″ 94°35′12″ Louisville ...... 38°14′47″ 85°45′49″ Mississippi: Madisonville ...... 37°19′45″ 87°29′54″ Biloxi ...... 30°23′43″ 88°53′08″ Morehead ...... 38°10′53″ 83°26′08″ Bude ...... 31°27′46″ 90°50′34″ Murray ...... 36°36′35″ 88°18′39″ Columbus ...... 33°29′40″ 88°25′33″ Newport ...... 39°05′28″ 84°29′20″ Greenwood ...... 33°31′05″ 90°10′55″ Owensboro ...... 37°46′27″ 87°06′46″ Gulfport ...... 30°22′04″ 89°05′36″ Owenton ...... 38°32′11″ 84°50′16″ Jackson ...... 32°17′56″ 90°11′06″ Paducah ...... 37°05′13″ 88°35′56″ Laurel ...... 31°41′40″ 89°07′48″

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State and community Latitude Longitude State and community Latitude Longitude

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″ : 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″ : 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″ : 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″ Merriman ...... 42°55′07″ 101°42′02″ Washington ...... 35°32′35″ 77°03′16″ Norfolk ...... 42°01′56″ 97°24′42″ Wilmington ...... 34°14′14″ 77°56′58″ North Platte ...... 41°08′14″ 100°45′43″ Winston-Salem ...... 36°05′52″ 80°14′42″ Omaha ...... 41°15′42″ 95°56′14″ : Scottsbluff ...... 41°51′40″ 103°39′00″ Bismark ...... 46°48′23″ 100°47′17″ Superior ...... 40°01′12″ 98°04′00″ Devils Lake ...... 48°06′42″ 98°51′29″ : Dickinson ...... 46°52′55″ 102°47′06″ Elko ...... 40°50′00″ 115°45′41″ Fargo ...... 46°52′30″ 96°47′18″ Henderson ...... 36°02′00″ 114°58′57″ Minot ...... 48°14′09″ 101°17′38″ Las Vegas ...... 36°10′20″ 115°08′37″ Pembina ...... 48°58′00″ 97°14′37″ Reno ...... 39°31′27″ 119°48′40″ Valley City ...... 46°55′31″ 98°00′04″ New Hampshire: Williston ...... 48°08′47″ 103°36′59″ Berlin ...... 44°28′20″ 71°10′43″ Ohio: Durham ...... 43°08′02″ 70°55′35″ Akron ...... 41°05′00″ 81°30′44″ Hanover ...... 43°42′03″ 72°17′24″ Athens ...... 39°19′38″ 82°06′09″ Keene ...... 42°56′02″ 72°16′44″ Bowling Green ...... 41°22′37″ 83°39′03″ Lebanon ...... 43°38′34″ 72°15′12″ Canton ...... 40°47′50″ 81°22′37″ Littleton ...... 44°18′22″ 71°46′13″ Cincinnati ...... 39°06′07″ 84°30′35″ Manchester ...... 42°59′28″ 71°27′41″ Cleveland ...... 41°29′51″ 81°41′50″ New Jersey: Columbus ...... 39°57′47″ 83°00′17″ Atlantic City ...... 39°21′32″ 74°25′53″ Dayton ...... 39°45′32″ 84°11′43″ Burlington ...... 40°04′21″ 74°51′47″ Kettering ...... 39°41′22″ 84°10′07″ Camden ...... 39°56′45″ 75°07′20″ Lima ...... 40°44′29″ 84°06′34″ Glen Ridge ...... 40°48′16″ 74°12′14″ Lorain ...... 41°27′48″ 82°10′23″ Linden ...... 40°37′57″ 74°15′22″ Marion ...... 40°35′14″ 83°07′36″ Newark ...... 40°44′14″ 74°10′19″ Newark ...... 40°03′35″ 82°24′15″ New Brunswick ...... 40°29′38″ 74°26′49″ Oxford ...... 39°30′28″ 84°44′26″ Paterson ...... 40°54′51″ 74°09′51″ Portsmouth ...... 38°44′06″ 82°59′39″ Trenton ...... 40°13′16″ 74°45′28″ Springfield ...... 39°55′38″ 83°48′29″ Vineland ...... 39°29′13″ 75°01′17″ Steubenville ...... 40°21′42″ 80°36′53″ Wildwood ...... 38°59′18″ 74°48′43″ Toledo ...... 41°39′14″ 83°32′39″ New : Youngstown ...... 41°05′57″ 80°39′02″ Albuquerque ...... 35°05′01″ 106°39′05″ Zanesville ...... 39°56′59″ 82°00′56″ Carlsbad ...... 32°25′09″ 104°13′47″ Oklahoma: Clovis ...... 34°24′11″ 103°12′08″ Ada ...... 34°46′24″ 96°40′36″

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State and community Latitude Longitude State and community Latitude Longitude

Ardmore ...... 34°10′18″ 97°07′50″ Beaumont ...... 30°05′20″ 94°06′09″ Lawton ...... 34°36′27″ 98°23′41″ Belton ...... 31°03′31″ 97°27′39″ Oklahoma City ...... 35°28′26″ 97°31′04″ Big Spring ...... 32°15′03″ 101°28′38″ Sayre ...... 35°17′34″ 99°38′23″ Bryan ...... 30°38′48″ 96°21′31″ Tulsa ...... 36°09′12″ 95°59′34″ College Station ...... 30°37′05″ 96°20′41″ : Corpus Christi ...... 27°47′51″ 97°23′45″ Coos Bay ...... 43°22′02″ 124°13′09″ Dallas ...... 32°47′09″ 96°47′37″ Corvallis ...... 44°34′10″ 123°16′12″ El Paso ...... 31°45′36″ 106°29′11″ Eugene ...... 44°03′16″ 123°05′30″ Fort Worth ...... 32°44′55″ 97°19′44″ Klamath Falls ...... 42°13′32″ 121°46′32″ Galveston ...... 29°18′10″ 94°47′43″ La Grande ...... 45°19′47″ 118°05′45″ Harlingen ...... 26°11′29″ 97°41′35″ Medford ...... 42°19′33″ 122°52′31″ Houston ...... 29°45′26″ 95°21′37″ Portland ...... 45°31′06″ 122°40′35″ Laredo ...... 27°30′22″ 99°30′30″ Roseburg ...... 43°12′34″ 123°20′26″ Longview ...... 32°28′24″ 94°43′45″ Salem ...... 44°56′21″ 123°01′59″ Lubbock ...... 33°35′05″ 101°50′33″ : Lufkin ...... 31°20′14″ 94°43′21″ Allentown ...... 40°36′11″ 75°28′06″ Midland ...... 31°59′54″ 102°04′31″ Altoona ...... 40°30′55″ 78°24′03″ Monahans ...... 31°35′16″ 102°53′26″ Bethlehem ...... 40°37′57″ 75°21′36″ Nacogdoches ...... 31°36′13″ 94°39′20″ Clearfield ...... 41°01′20″ 78°26′10″ Odessa ...... 31°50′49″ 102°22′01″ Erie ...... 42°07′15″ 80°04′57″ Port Arthur ...... 29°52′09″ 93°56′01″ Harrisburg ...... 40°15′43″ 76°52′59″ Richardson ...... 32°57′06″ 96°44′05″ Hershey ...... 40°17′04″ 76°39′01″ Rosenberg ...... 29°33′30″ 95°48′15″ Johnstown ...... 40°19′35″ 78°55′03″ San Angelo ...... 31°27′39″ 100°26′03″ Lancaster ...... 40°02′25″ 76°18′29″ San Antonio ...... 29°25′37″ 98°29′06″ Philadelphia ...... 39°56′58″ 75°09′21″ Sweetwater ...... 32°28′24″ 100°24′18″ Pittsburgh ...... 40°26′19″ 80°00′00″ Temple ...... 31°06′02″ 97°20′22″ Reading ...... 40°20′09″ 75°55′40″ Texarkana ...... 33°25′29″ 94°02′34″ Scranton ...... 41°24′32″ 75°39′46″ Tyler ...... 32°21′21″ 95°17′52″ Wilkes-Barre ...... 41°14′32″ 75°53′17″ Victoria ...... 28°48′01″ 97°00′06″ York ...... 39°57′35″ 76°43′36″ Waco ...... 31°33′12″ 97°08′00″ : Weslaco ...... 26°09′24″ 97°59′33″ Aguadilla ...... 18°25′53″ 67°09′18″ Wichita Falls ...... 33°54′34″ 98°29′28″ Arecibo ...... 18°28′26″ 66°43′39″ Utah: Caguas ...... 18°13′59″ 66°02′06″ Logan ...... 41°44′03″ 111°50′11″ Fajardo ...... 18°19′35″ 65°39′21″ Ogden ...... 41°13′31″ 111°58′21″ Mayaguez ...... 18°12′16″ 67°08′36″ Provo ...... 40°14′07″ 111°39′34″ Ponce ...... 18°00′51″ 66°36′58″ Salt Lake City ...... 40°45′23″ 111°53′26″ San Juan ...... 18°26′55″ 66°03′55″ Vermont: Rhode Island: Burlington ...... 44°28′34″ 73°12′46″ Providence ...... 41°49′32″ 71°24′41″ Rutland ...... 43°36′29″ 72°58′56″ : St. Johnsbury ...... 44°25′16″ 72°01′13″ Allendale ...... 33°00′30″ 81°18′26″ Windsor ...... 43°28′38″ 72°23′32″ Anderson ...... 34°30′06″ 82°38′54″ : Charleston ...... 32°46′35″ 79°55′53″ Bristol ...... 36°35′48″ 82°11′04″ Columbia ...... 34°00′02″ 81°02′00″ Charlottesville ...... 38°01′52″ 78°28′50″ Florence ...... 34°11′49″ 79°46′06″ Goldvein ...... 38°26′54″ 77°39′19″ Greenville ...... 34°50′50″ 82°24′01″ Hampton ...... 37°01′32″ 76°20′32″ Spartanburg ...... 34°57′03″ 81°56′06″ Harrisonburg ...... 38°27′01″ 78°52′07″ : Lynchburg ...... 37°24′51″ 79°08′37″ Aberdeen ...... 45°27′31″ 98°29′03″ Norfolk ...... 36°51′10″ 76°17′21″ Brookings ...... 44°18′38″ 96°47′53″ Norton ...... 36°56′05″ 82°37′31″ Florence ...... 45°03′14″ 97°19′35″ Petersburg ...... 37°13′40″ 77°24′15″ Lead ...... 44°21′07″ 103°46′03″ Portsmouth ...... 36°50′12″ 76°17′54″ Mitchell ...... 43°42′48″ 98°01′36″ Richmond ...... 37°32′15″ 77°26′09″ Pierre ...... 44°22′06″ 100°20′57″ Roanoke ...... 37°16′13″ 79°56′44″ Rapid City ...... 44°04′52″ 103°13′11″ Staunton ...... 38°09′02″ 79°04′34″ Reliance ...... 43°52′45″ 99°36′18″ Virgin Islands: Sioux Falls ...... 43°32′35″ 96°43′35″ Charlotte Amalie ...... 18°20′36″ 64°55′53″ Vermillion ...... 42°46′52″ 96°55′35″ Christiansted ...... 17°44′44″ 64°42′21″ : Washington: Chattanooga ...... 35°02′41″ 85°18′32″ Bellingham ...... 48°45′02″ 122°28′36″ Jackson ...... 35°36′48″ 88°49′15″ Kennewick ...... 46°12′28″ 119°08′32″ Johnson City ...... 36°19′04″ 82°20′56″ Lakewood Center ...... 47°07′37″ 122°31′15″ Kingsport ...... 36°32′57″ 82°33′44″ Pasco ...... 46°13′50″ 119°05′27″ Knoxville ...... 35°57′39″ 83°55′07″ Pullman ...... 46°43′42″ 117°10′46″ Lexington ...... 35°38′58″ 88°23′31″ Richland ...... 46°16′36″ 119°16′21″ Memphis ...... 35°08′46″ 90°03′13″ Seattle ...... 47°36′32″ 122°20′12″ Nashville ...... 36°09′33″ 86°46′55″ Spokane ...... 47°39′32″ 117°25′33″ Sneedville ...... 36°31′46″ 83°13′04″ Tacoma ...... 47°14′59″ 122°26′15″ Texas: Yakima ...... 46°36′09″ 120°30′39″ Abilene ...... 32°27′05″ 99°43′51″ : Amarillo ...... 35°12′27″ 101°50′04″ Bluefield ...... 37°15′29″ 81°13′20″ Austin ...... 30°16′09″ 97°44′37″ Charleston ...... 38°21′01″ 81°37′52″

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State and community Latitude Longitude ing level. If surveys are taken for more than 2-weekly periods in any 12 Clarksburg ...... 39°16′50″ 80°20′38″ Grandview ...... 37°49′28″ 81°04′20″ months, all such surveys must result in Huntington ...... 38°25′12″ 82°26′33″ an average figure at least one standard Morgantown ...... 39°37′41″ 79°57′28″ error above the required viewing level. Oak Hill ...... 37°58′31″ 81°08′45″ If a cable television system serves Parkersburg ...... 39°15′57″ 81°33′46″ Weston ...... 39°02′19″ 80°28′05″ more than one community, a single Wheeling ...... 40°04′03″ 80°43′20″ survey may be taken, provided that the : sample includes over-the-air television Eau Claire ...... 44°48′31″ 91°29′49″ Fond Du Lac ...... 43°46′35″ 88°26′52″ homes from each community that are Green Bay ...... 44°30′48″ 88°00′50″ proportional to the population. A sat- Janesville ...... 42°40′52″ 89°01′39″ ellite carrier may demonstrate signifi- Kenosha ...... 42°35′04″ 87°49′14″ cant viewing in more than one commu- La Crosse ...... 43°48′48″ 91°15′02″ Madison ...... 43°04′23″ 89°22′55″ nity or satellite community through a Milwaukee ...... 43°02′19″ 87°54′15″ single survey, provided that the sample Rhinelander ...... 45°38′09″ 89°24′50″ includes over-the-air television homes Superior ...... 46°43′14″ 92°06′07″ Wausau ...... 44°57′30″ 89°37′40″ from each community that are propor- : tional to the population. Casper ...... 42°51′00″ 106°19′22″ (c) Notice of a survey to be made pur- Cheyenne ...... 41°08′09″ 104°49′07″ suant to paragraph (b) of this section Rawlins ...... 41°47′23″ 107°14′37″ Riverton ...... 43°01′29″ 108°23′03″ shall be served on all licensees or per- mittees of television broadcast stations within whose predicted noise limited [37 FR 3278, Feb. 12, 1972, as amended at 37 FR 13866, July 14, 1972; 51 FR 18451, May 20, service contour, as defined in § 73.622(e) 1986; 51 FR 44608, Dec. 11, 1986; 54 FR 25716, of this chapter, the cable or satellite June 19, 1989; 56 FR 49707, Oct. 1, 1991] community or communities are lo- cated, in whole or in part, and on all § 76.54 Significantly viewed signals; other system community units, method to be followed for special franchisees, and franchise applicants in showings. the cable community or communities (a) Signals that are significantly at least (30) days prior to the initial viewed in a county (and thus are survey period. Such notice shall in- deemed to be significantly viewed clude the name of the survey organiza- within all communities within the tion and a description of the proce- county) are those that are listed in Ap- dures to be used. Objections to survey pendix B of the memorandum opinion organizations or procedures shall be and order on reconsideration of the served on the party sponsoring the sur- Cable Television Report and Order vey within twenty (20) days after re- (Docket 18397 et al.), FCC 72–530, and ceipt of such notice. those communities listed in the Sig- (d) Signals of television broadcast nificantly Viewed List as it appears on stations not encompassed by the sur- the official website of the Federal Com- veys (for the periods May 1970, Novem- munications Commission. ber 1970 and February/March 1971) used (b) Significant viewing in a cable tel- in establishing appendix B of the Memo- evision or satellite community for sig- randum Opinion and Order on Reconsid- nals not shown as significantly viewed eration of Cable Television Report and under paragraphs (a) or (d) of this sec- Order, FCC 72–530, 36 FCC 2d 326 (1972), tion may be demonstrated by an inde- may be demonstrated as significantly pendent professional audience survey viewed on a county-wide basis by inde- of over-the-air television homes that pendent professional audience surveys covers at least two weekly periods sep- which cover three separate, consecu- arated by at least thirty (30) days but tive four-week periods and are other- no more than one of which shall be a wise comparable to the surveys used in week between the months of April and compiling the above-referenced appen- September. If two surveys are taken, dix B: Provided, however, That such they shall include samples sufficient to demonstration shall be based upon au- assure that the combined surveys re- dience survey data for the first three sult in an average figure at least one years of the subject station’s broadcast standard error above the required view- operations.

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(e) Satellite carriers that intend to only if such carrier also retransmits in retransmit the signal of a significantly HD format the signal of a station lo- viewed television broadcast station to cated in the local market of such sub- a subscriber located outside such sta- scriber and affiliated with the same tion’s local market, as defined by network whenever such format is avail- § 76.55(e), must provide written notice able from such station, including when to all television broadcast stations the HD signal is broadcast on a that are assigned to the same local multicast stream. market as the intended subscriber at (i) The requirement in paragraph least 60 days before commencing re- (g)(2) of this section applies only where transmission of the significantly a satellite carrier retransmits to a sub- viewed station. Such satellite carriers scriber the significantly viewed station must also provide the notifications de- in HD format, and does not restrict a scribed in § 76.66(d)(5)(i). Except as pro- satellite carrier from retransmitting to vided in this paragraph (e), such writ- a subscriber a significantly viewed sta- ten notice must be sent via certified tion in standard definition (SD) for- mail, return receipt requested, to the mat. address for such station(s) as listed in (ii) For purposes of paragraph (g)(2) the consolidated database maintained of this section, the term ‘‘HD format’’ by the Federal Communications Com- refers to a picture quality resolution of mission. After July 31, 2020, such writ- 720p, 1080i, or higher. ten notice must be delivered to sta- (iii) For purposes of paragraph (g)(2) tions electronically in accordance with of this section, the local station’s HD § 76.66(d)(2)(ii). signal will be considered ‘‘available’’ to (f) Satellite carriers that retransmit the satellite carrier when the station: the signal of a significantly viewed tel- evision broadcast station to a sub- (A) Elects mandatory carriage or scriber located outside such station’s grants retransmission consent; local market must list all such sta- (B) Provides a good quality HD signal tions and the communities to which to the satellite carrier’s local receive they are retransmitted on their facility (LRF); and website. (C) Complies with the requirements (g) Limitations on satellite subscriber of §§ 76.65 and 76.66. eligibility. A satellite carrier may re- (iv) Notwithstanding the provisions transmit a significantly viewed net- of paragraph (g)(2)(iii) of this section, work station to a subscriber, provided if the local station is willing to grant the conditions in paragraphs (g)(1) and retransmission consent and make its (g)(2) of this section are satisfied or one HD signal available to the satellite of the two exceptions to these condi- carrier, but the satellite carrier does tions provided in paragraphs (g)(3) and not negotiate with the local station in (g)(4) of this section apply. good faith, as required by § 76.65, then (1) Local service requirement. A sat- the local station’s HD signal will be ellite carrier may retransmit to a sub- deemed ‘‘available’’ for purposes of scriber the signal of a significantly paragraph (g)(2) of this section. viewed station if: (3) Exception if no in (i) Such subscriber receives local- local market. The limitations in para- into-local service pursuant to § 76.66; graphs (g)(1) and (g)(2) of this section and will not prohibit a satellite carrier (ii) Such satellite carrier is in com- from retransmitting a significantly pliance with § 76.65 with respect to the viewed network station to a subscriber stations located in the local market located in a local market in which into which the significantly viewed there are no network stations affiliated station will be retransmitted. with the same television network as (2) HD format requirement. Subject to the significantly viewed station. the conditions in paragraphs (g)(2)(i) (4) Exception if waiver granted by local through (iv) of this section, a satellite station. The limitations in paragraphs carrier may retransmit to a subscriber (g)(1) and (g)(2) of this section will not in high definition (HD) format the sig- apply if, and to the extent that, the nal of a significantly viewed station local network station affiliated with

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the same television network as the sig- § 73.621 of this chapter, for at least 50 nificantly viewed station has granted a percent of its broadcast week. waiver in accordance with 47 U.S.C. (3) This definition includes: 340(b)(4). (i) The translator of any NCE tele- (h) [Reserved] vision station with five watts or higher (i) For purposes of paragraph (g) of power serving the franchise area, this section, television network and (ii) A full-service station or trans- network station are as defined in 47 lator if such station or translator is li- U.S.C. 339(d). censed to a channel reserved for NCE (j) Notwithstanding the requirements use pursuant to § 73.606 of this chapter, of this section, the signal of a tele- or any successor regulations thereto, vision broadcast station will be deemed and to be significantly viewed if such sta- (iii) Such stations and translators op- tion is shown to qualify for such status erating on channels not so reserved but pursuant to 47 U.S.C. 341(a). otherwise qualified as NCE stations. (k) Notwithstanding the other provi- NOTE TO PARAGRAPH (a): For the purposes sions of this section, a satellite carrier of § 76.55(a), ‘‘serving the franchise area’’ will may not retransmit as significantly be based on the predicted protected contour viewed the signal of a television broad- of the NCE translator. cast station into the Designated Mar- (b) Qualified local noncommercial edu- ket Areas identified in 47 U.S.C. 341(b). cational (NCE) television station. A quali- [37 FR 3278, Feb. 12, 1972, as amended at 37 fied local NCE television station is a FR 13866, July 14, 1972; 40 FR 48930, Oct. 20, qualified NCE television station: 1975; 41 FR 32429, Aug. 3, 1976; 42 FR 19346, (1) That is licensed to a community Apr. 13, 1977; 53 FR 17051, May 13, 1988; 56 FR whose reference point, as defined in 33392, July 22, 1991; 70 FR 76529, Dec. 27, 2005; § 76.53 is within 80.45 km (50 miles) of 75 FR 72986, Nov. 29, 2010; 85 FR 16004, Mar. the principal headend, as defined in 20, 2020] § 76.5(pp), of the cable system; or (2) Whose Grade B service contour en- § 76.55 Definitions applicable to the must-carry rules. compasses the principal headend, as de- 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- (a) Qualified noncommercial edu- fied local noncommercial educational cational (NCE) television station. A quali- television station not already carried fied NCE television station is any tele- under the provision of § 76.56(a)(5), vision broadcast station which where such signal would be considered (1)(i) Under the rules and regulations a distant signal for copyright purposes of the Commission in effect on March unless such station agrees to indemnify 29, 1990, is licensed by the Commission the cable operator for any increased as an NCE television broadcast station copyright liability resulting from car- and which is owned and operated by a riage of such signal on the cable sys- public agency, nonprofit foundation, tem. corporation, or association; and (c) Local commercial television station. (ii) Has as its licensee an entity A local commercial television station which is eligible to receive a commu- is any full power television broadcast nity service grant, or any successor station, other than a qualified NCE tel- grant thereto, from the Corporation for evision station as defined in paragraph Public , or any successor (a) of this section, licensed and oper- organization thereto, on the basis of ating on a channel regularly assigned the formula set forth in section to its community by the Commission 396(k)(6)(B) of the Communications Act that, with respect to a particular cable of 1934, as amended; or system, is within the same television (2) Is owned and operated by a mu- market, as defined below in paragraph nicipality and transmits noncommer- (e) of this section, as the cable system, cial programs for educational programs except that the term local commercial for educational purposes, as defined in television station does not include:

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(1) Low power television stations, tel- (3) Such station complies with inter- evision translator stations, and passive ference regulations consistent with its with operate pursuant to secondary status pursuant to part 74 of part 74 of this chapter. this chapter; (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 a signal level of 45dBm determined by the Office of Manage- ¥ for analog UHF signals, 49dBm for ment and Budget on June 30, 1990, and ¥ analog VHF signals, or 61dBm for the population of such community of digital signals at the input terminals license on such date did not exceed of the signal processing equipment, i.e., 35,000; and the input to the first active component (6) There is no full power television of the signal processing equipment rel- broadcast station licensed to any com- evant to the signal at issue, if such sta- munity within the county or other tion does not agree to be responsible equivalent political subdivision (of a for the costs of delivering to the cable State) served by the cable system. system a signal of good quality or a baseband video signal. NOTE TO PARAGRAPH (d): For the purposes (d) Qualified low power station. A of this section, for over-the-air broadcast, a qualified low power station is any tele- good quality signal shall mean a signal level vision broadcast station conforming to of either ¥45 dBm for analog VHF signals, ¥ ¥ the low power television rules con- 49 dBm for analog UHF signals, or 61 tained in part 74 of this chapter, only dBm for digital signals (at all channels) at the input terminals of the signal processing if: equipment. (1) Such station broadcasts for at least the minimum number of hours of (e) Television market. (1) Until Janu- operation required by the Commission ary 1, 2000, a commercial broadcast tel- for full power television broadcast sta- evision station’s market, unless tions under part 73 of this chapter; amended pursuant to § 76.59, shall be (2) Such station meets all obligations defined as its Area of Dominant Influ- and requirements applicable to full ence (ADI) as determined by Arbitron power television broadcast stations and published in the Arbitron 1991–1992 under part 73 of this chapter, with re- Television ADI Market Guide, as noted spect to the broadcast of nonentertain- below, except that for areas outside the ment programming; programming and contiguous 48 states, the market of a rates involving political candidates, station shall be defined using Nielsen’s election issues, controversial issues of Designated Market Area (DMA), where public importance, editorials, and per- applicable, as published in the Nielsen sonal attacks; programming for chil- 1991–92 DMA Market and Demographic dren; and equal employment oppor- Rank Report, and that Puerto Rico, tunity; and the Commission determines the U.S. Virgin Islands, and Guam will that the provision of such program- each be considered a single market. ming by such station would address (2) Effective January 1, 2000, a com- local news and informational needs mercial broadcast television station’s which are not being adequately served market, unless amended pursuant to by full power television broadcast sta- § 76.59, shall be defined as its Des- tions because of the geographic dis- ignated Market Area (DMA) as deter- tance of such full power stations from mined by Nielsen Media Research and the low power station’s community of published in its Nielsen Station Index license; Directory and Nielsen Station Index

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US Television Household Estimates or the 2002 election will be the 2000–2001 list, any successor publications. etc. (i) For the 1999 election pursuant to (f) Network. For purposes of the must- § 76.64(f), which becomes effective on carry rules, a commercial television January 1, 2000, DMA assignments network is an entity that offers pro- specified in the 1997–98 Nielsen Station gramming on a regular basis for 15 or Index Directory and September 1997 more hours per week to at least 25 af- Nielsen Station Index US Television filiates in 10 or more states. Household Estimates, available from Nielsen Media Research, 770 Broadway, [58 FR 17359, Apr. 2, 1993, as amended at 58 New York, NY, shall be used. FR 44951, Aug. 25, 1993; 59 FR 62344, Dec. 5, (ii) The applicable DMA list for the 1994; 61 FR 29313, June 10, 1996; 64 FR 42617, 2002 election pursuant to § 76.64(f) will Aug. 5, 1999; 68 FR 17312, Apr. 9, 2003; 73 FR 5685, Jan. 30, 2008; 83 FR 7626, Feb. 22, 2018] be the DMA assignments specified in the 2000–2001 list, and so forth for each § 76.56 Signal carriage obligations. triennial election pursuant to § 76.64(f). (3) In addition, the county in which a (a) Carriage of qualified noncommercial station’s community of license is lo- educational stations. A cable television cated will be considered within its system shall carry qualified NCE tele- market. vision stations in accordance with the (4) A cable system’s television mar- following provisions: ket(s) shall be the one or more ADI (1) Each cable operator shall carry on markets in which the communities it its cable television system any quali- serves are located until January 1, 2000, fied local NCE television station re- and the one or more DMA markets in questing carriage, except that which the communities it serves are lo- (i) Systems with 12 or fewer usable cated thereafter. activated channels, as defined in (5) In the absence of any mandatory § 76.5(oo), shall be required to carry the carriage complaint or market modi- signal of one such station; fication petition, cable operators in (ii) Systems with 13 to 36 usable acti- communities that shift from one mar- vated channels, as defined in § 76.5(oo), ket to another, due to the change in shall be required to carry at least one 1999–2000 from ADI to DMA, will be per- qualified local NCE station, but not mitted to treat their systems as either more than three such stations; and in the new DMA market, or with re- (iii) Systems with more than 36 usa- spect to the specific stations carried ble activated channels shall be re- prior to the market change from ADI quired to carry the signals of all quali- to DMA, as in both the old ADI market fied local NCE television stations re- and the new DMA market. questing carriage, but in any event at (6) If the change from the ADI mar- least three such signals; however a ket definition to the DMA market defi- cable system with more than 36 chan- nition in 1999–2000 results in the filing nels shall not be required to carry an of a mandatory carriage complaint, additional qualified local NCE station any affected party may respond to that whose programming substantially du- complaint by filing a market modifica- plicates the programming of another tion request pursuant to § 76.59, and qualified local NCE station being car- these two actions may be jointly de- ried on the system. cided by the Commission. NOTE: For purposes of this paragraph, a NOTE TO PARAGRAPH (e): For the 1996 must- station will be deemed to ‘‘substantially du- carry/retransimission consent election, the plicate’’ the programming of another station ADI assignments specified in the 1991–1992 if it broadcasts the same programming, si- Television ADI Market Guide, available from multaneous or non-simultaneous, for more the Arbitron Ratings Co., 9705 Patuxent than 50 percent of prime time, as defined in Woods Drive, Columbia, MD, will apply. For § 76.5(n), and more than 50 percent outside of the 1999 election, which becomes effective on prime time over a three-month period. January 1, 2000, DMA assignments specified in the 1997–98 DMA Market and Demographic (2)(i) In the case of a cable system Rank Report, available from Nielsen Media with 12 or fewer channels that operates Research, 299 Park Avenue, New York, NY, beyond the presence of any qualified shall be used. The applicable DMA list for local NCE stations, the cable operator

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shall import one qualified NCE tele- it shall not be subject to these require- vision station. ments as long as it does not delete (ii) A cable system with between 13 from carriage the signal of a broadcast and 36 channels that operates beyond television station which was carried on the presence of any qualified local NCE that system on October 5, 1992. stations, the cable operator shall im- (2) A cable system with more than 12 port at least one qualified NCE tele- usable activated channels, as defined in vision station. § 76.5(oo), shall carry local commercial (3) A cable system with 12 or fewer television stations up to one-third of usable activated channels shall not be the aggregate number of usable acti- required to remove any programming vated channels of such system. service provided to subscribers as of (3) If there are not enough local com- March 29, 1990, to satisfy these require- mercial television stations to fill the ments, except that the first available channels set aside under paragraphs channel must be used to satisfy these (b)(1) and (b)(2) of this section, a cable requirements. operator of a system with 35 or fewer (4) A cable system with 13 to 36 usa- usable activated channels, as defined in ble activated channels which carries § 76.5(oo), shall, if such stations exist, the signal of a qualified local NCE sta- carry one qualified low power tele- tion affiliated with a State public tele- vision station and a cable system with vision network shall not be required to more than 35 usable activated channels carry more than one qualified local shall carry two qualified low power sta- NCE station affiliated with such net- tions. work, if the programming of such addi- (4) Whenever the number of local tional stations substantially dupli- commercial television stations exceeds cates, as defined in the note in para- the maximum number of signals a graph (a)(1) of this section, the pro- cable system is required to carry under gramming of a qualified local NCE tel- paragraph (b)(1) or (b)(2) of this sec- evision station receiving carriage. tion, the cable operator shall have dis- (5) Notwithstanding the requirements cretion in selecting which such sta- of paragraph (a)(1) of this section, all tions shall be carried on its cable sys- cable operators shall continue to pro- tem, except that vide carriage to all qualified local NCE (i) Under no circumstances shall a television stations whose signals were cable operator carry a qualified low carried on their systems as of March power station in lieu of a local com- 29, 1990. In the case of a cable system mercial television station; and that is required to import a distance (ii) If the cable operator elects to qualified NCE signal, and such system carry an affiliate of a broadcast net- imported the signal of a qualified NCE work, as defined in § 76.55(f), such cable station as of March 29, 1990, such cable operator shall carry the affiliate of system shall continue to import such such whose commu- signal until such time as a qualified nity of license reference point, as de- local NCE signal is available to the fined in § 76.53, is closest to the prin- cable system. This requirements may cipal headend, as defined in § 76.5(pp), be waived with respect to a particular of the cable system. cable operator and a particular NCE (5) A cable operator is not required to station, upon the written consent of carry the signal of any local commer- the cable operator and the station. cial television station that substan- (b) Carriage of local commercial tele- tially duplicates the signal of another vision stations. A cable television sys- local commercial television station tem shall carry local commercial that is carried on its cable system, or broadcast television stations in accord- to carry the signals of more than one ance with the following 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,

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as defined in § 76.53, is closest to the (e) Carriage of additional broadcast principal headend of the cable system. television signals on such system shall For purposes of this paragraph, sub- be at the discretion of the cable oper- stantially duplicates means that a sta- ator, subject to the retransmission tion regularly simultaneously broad- consent rules, § 76.64. A cable system casts the identical programming as an- may also carry any ancillary or other other station for more than 50 percent transmission contained in the broad- of the broadcast week. For purposes of cast television signal. this definition, only identical episodes (f) Calculation of broadcast signals car- of a television series are considered du- ried. When calculating the portion of a plicative and commercial inserts are cable system devoted to carriage of excluded from the comparison. When local commercial television stations the stations being compared are li- under paragraph (b) of this section, a censed to communities in different cable operator may count the primary time zones, programming aired by a video and program-related signals of station within one hour of the identical all such stations, and any alternative- program being broadcast by another format versions of those signals, that station will be considered duplicative. they carry. (6) [Reserved] (g) Channel sharing carriage rights. A (7) A local commercial television sta- broadcast television station that vol- tion carried to fulfill the requirements untarily relinquishes spectrum usage of this paragraph, which subsequently rights under 73.3700 of this chapter in elects retransmission consent pursuant order to share a television channel and to § 76.64, shall continue to be carried that possessed carriage rights under by the cable system until the effective section 338, 614, or 615 of the Commu- date of such retransmission consent nications Act of 1934 (47 U.S.C. 338; 534; election. 535) on November 30, 2010, shall have, at (c) Use of public, educational, or gov- its shared location, the carriage rights ernmental (PEG) channels. A cable oper- under such section that would apply to ator required to carry more than one such station at such location if it were signal of a qualified low power station not sharing a channel. or to add qualified local NCE stations (h) Next Gen TV carriage rights. (1) A in fulfillment of these must-carry obli- broadcast television station that gations may do so, subject to approval chooses to deploy Next Gen TV service, by the franchising authority pursuant see § 73.682(f) of this chapter, may as- to Section 611 of the Communications sert mandatory carriage rights under Act of 1934, as amended, by placing this section only with respect to its such additional station on public, edu- ATSC 1.0 signal and may not assert cational, or governmental channels not mandatory carriage rights with respect in use for their designated purposes. to its ATSC 3.0 signal. (d) Availability of signals. (1) Local (2) With respect to a Next Gen TV commercial television stations carried station that moves its 1.0 in fulfillment of the requirements of signal to a host station’s (i.e., a station this section shall be provided to every whose facilities are being used to subscriber of a cable system. Such sig- transmit programming originated by nals shall be viewable via cable on all another station) facilities, the station television receivers of a subscriber may assert mandatory carriage rights which are connected to a cable system under this section only if it: by a cable operator or for which a cable (i) Qualified for, and has been exer- operator provides a connection. cising, mandatory carriage rights at its (2) Qualified local NCE television sta- original location; and tions carried in fulfillment of the car- (ii) Continues to qualify for manda- riage obligations of a cable operator tory carriage at the host station’s fa- under this section shall be available to cilities, including (but not limited to) every subscriber as part of the cable delivering a good quality 1.0 signal to system’s lowest priced service tier that the cable system principal headend, or includes the retransmission of local agreeing to be responsible for the costs commercial television broadcast sig- of delivering such 1.0 signal to the nals. cable system.

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NOTE 1 TO § 76.56: Section 76.1620 provides nel position as specified in paragraphs notification requirements for a cable oper- (a), (b), and (d) of this section. A quali- ator who authorizes subscribers to install ad- fied NCE station shall notify the cable ditional receiver connections, but does not system of its choice of channel position provide the subscriber with such connec- tions, or with the equipment and materials when it requests carriage. for such connections. (f) Pursuant to § 76.64(f)(3), a local NOTE 2 TO § 76.56: Section 76.1614 provides commercial broadcast television sta- response requirements for a cable operator tion that fails to make an election is who receives a written request to identify its deemed a must-carry station. A cable must-carry signals. operator shall carry such a television NOTE 3 TO § 76.56: Section 76.1709 provides station on the cable system channel recordkeeping requirements with regard to a cable operator’s list of must-carry signals. number on which the local commercial television station is broadcast over the [58 FR 17360, Apr. 2, 1993, as amended at 58 air, or on the channel on which it was FR 39161, July 22, 1993; 58 FR 40368, July 28, carried on July 19, 1985, or on the chan- 1993; 59 FR 62344, Dec. 5, 1994; 65 FR 53614, Sept. 5, 2000; 66 FR 16553, Mar. 26, 2001; 73 FR nel on which it was carried on January 6054, Feb. 1, 2008; 77 FR 30426, May 23, 2012; 77 1, 1992. In the event that none of these FR 36192, June 18, 2012; 83 FR 5028, Feb. 2, specified channel positions is available 2018; 83 FR 7626, Feb. 22, 2018] due to a channel positioning request from a commercial television station § 76.57 Channel positioning. affirmatively asserting its must-carry (a) At the election of the licensee of rights or such a request from a quali- a local commercial broadcast tele- fied local noncommercial educational vision station, and for the purpose of station, the cable operator shall place this section, a qualified low power tele- the signal of such a television station vision station, carried in fulfillment of on a channel of the cable system’s the must-carry obligations, a cable op- choice, so long as that channel is in- erator shall carry such signal on the cluded on the basic service tier. cable system channel number on which NOTE TO § 76.57: Any existing agreement for the local commercial television station channel position between a local commercial is broadcast over the air, or on the station entitled to must-carry status and a channel on which it was carried on cable operator entered into prior to June 26, July 19, 1985, or on the channel on 1990, may continue through the expiration of which it was carried on January 1, 1992. such agreement. (b) At the election of the licensee of [58 FR 17361, Apr. 2, 1993, as amended at 58 a qualified local NCE broadcast tele- FR 40368, July 28, 1993; 59 FR 62345, Dec. 5, vision station carried in fulfillment of 1994; 66 FR 16553, Mar. 26, 2001; 83 FR 7626, the must-carry obligations, a cable op- Feb. 22, 2018] erator shall carry such signal on the cable system channel number on which § 76.59 Modification of television mar- the qualified NCE television station is kets. broadcast over the air, or on the chan- (a) The Commission, following a writ- nel on which it was carried on July 19, ten request from a broadcast station, 1985. cable system, satellite carrier or coun- (c) With respect to digital signals of ty government (only with respect to a television station carried in fulfill- satellite modifications), may deem ment of the must-carry obligations, a that the television market, as defined cable operator shall carry the informa- either by § 76.55(e) or § 76.66(e), of a par- tion necessary to identify and tune to ticular commercial television broad- the broadcast television signal. cast station should include additional (d) Any signal carried in fulfillment communities within its television mar- of the must-carry obligations may be ket or exclude communities from such carried on such other channel number station’s television market. In this re- as is mutually agreed upon by the sta- spect, communities may be considered tion and the cable operator. part of more than one television mar- (e) At the time a local commercial ket. station elects must-carry status pursu- (b) Such requests for modification of ant to § 76.64, such station shall notify a television market shall be submitted the cable system of its choice of chan- in accordance with § 76.7, petitions for

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special relief, and shall include the fol- (d) A cable operator or satellite car- lowing evidence: rier shall not delete from carriage the (1) A map or maps illustrating the signal of a commercial television sta- relevant community locations and geo- tion during the pendency of any pro- graphic features, station transmitter ceeding pursuant to this section. sites, cable system headend or satellite (e) A market determination under carrier local receive facility locations, this section shall not additional terrain features that would affect sta- carriage obligations for a satellite car- tion reception, mileage between the rier if it is not technically and eco- community and the television station nomically feasible for such carrier to transmitter site, transportation routes accomplish such carriage by means of and any other evidence contributing to its satellites in operation at the time the scope of the market. of the determination. (2) Noise-limited service contour (f) No modification of a commercial maps (for full-power digital stations) television broadcast station’s local or protected contour maps (for Class A market pursuant to this section shall and low power television stations) de- have any effect on the eligibility of lineating the station’s technical serv- households in the community affected ice area and showing the location of by such modification to receive distant the cable system headends or satellite signals from a satellite carrier pursu- carrier local receive facilities and com- ant to 47 U.S.C. 339. munities in relation to the service [58 FR 17361, Apr. 2, 1993, as amended at 64 areas. FR 33796, June 24, 1999; 67 FR 53892, Aug. 22, 2002; 80 FR 59663, Oct. 2, 2015] NOTE TO PARAGRAPH (b)(2): Service area maps using Longley-Rice (version 1.2.2) prop- § 76.60 Compensation for carriage. agation curves may also be included to sup- port a technical service exhibit. A cable operator is prohibited from accepting or requesting monetary pay- (3) Available data on shopping and ment or other valuable consideration labor patterns in the local market. in exchange either for carriage or chan- (4) Television station programming nel positioning of any broadcast tele- information derived from station logs vision station carried in fulfillment of or the local edition of the television the must-carry requirements, except guide. that (5) Cable system or satellite carrier (a) Any such station may be required channel line-up cards or other exhibits to bear the costs associated with deliv- establishing historic carriage, such as ering a good quality signal or a television guide listings. baseband video signal to the principal (6) Published audience data for the headend of the cable system; or relevant station showing its average (b) A cable operator may accept pay- all day audience (i.e., the reported au- ments from stations which would be dience averaged over Sunday–Satur- considered distant signals under the day, 7 a.m.–1 a.m., or an equivalent cable compulsory copyright license, 17 time period) for both multichannel U.S.C. 111, as indemnification for any video programming distributor (MVPD) increased copyright liability resulting and non-MVPD households or other from carriage of such signal. specific audience indicia, such as sta- tion advertising and sales data or view- NOTE: A cable operator may continue to er contribution records. accept monetary payment or other valuable consideration in exchange for carriage or (7) If applicable, a statement that the channel positioning of the signal of any local station is licensed to a community commercial television station carried in ful- within the same state as the relevant fillment of the must-carry requirements, community. through, but not beyond, the date of expira- (c) Petitions for Special Relief to tion of an agreement between a cable oper- modify television markets that do not ator and a local commercial television sta- include such evidence shall be dis- tion entered into prior to June 26, 1990. missed without prejudice and may be (c) A cable operator may accept pay- refiled at a later date with the appro- ments from stations pursuant to a re- priate filing fee. transmission consent agreement, even

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if such station will be counted towards this part. In addition to the require- the must-carry complement, as long as ments of § 76.7 of this part, such com- all other applicable rules are adhered plaint shall specifically: to. (i) Allege the manner in which such [58 FR 17362, Apr. 2, 1993, as amended at 59 cable operator has failed to meet its FR 62345, Dec. 5, 1994] obligations and the basis for such alle- gations. § 76.61 Disputes concerning carriage. (ii) Be accompanied by the notice (a) Complaints regarding carriage of from the complainant to the cable tele- local commercial television stations. (1) vision system operator, and the cable Whenever a local commercial tele- television system operator’s response, vision station or a qualified low power if any. If no timely response was re- television station believes that a cable ceived, the complaint shall so state. operator has failed to meet its carriage (iii) Establish the complaint is being or channel positioning obligations, pur- filed within the sixty-day deadline suant to §§ 76.56 and 76.57, such station stated in paragraph (a)(5) of this sec- shall notify the operator, in writing, of tion. the alleged failure and identify its rea- (4) If the Commission determines sons for believing that the cable oper- that a cable operator has failed to meet ator is obligated to carry the signal of its must-carry obligations, the Com- such station or position such signal on mission shall order that, within 45 days a particular channel. of such order or such other time period (2) The cable operator shall, within 30 as the Commission may specify, the days of receipt of such written notifica- cable operator reposition the com- tion, respond in writing to such notifi- plaining station or, in the case of an cation and either commence to carry obligation to carry a station, com- the signal of such station in accord- mence or resume carriage of the sta- ance with the terms requested or state tion and continue such carriage for at its reasons for believing that it is not least 12 months. If the Commission de- obligated to carry such signal or is in compliance with the channel posi- termines that the cable operator has tioning and repositioning and other re- fully met the must-carry requirements, quirements of the must-carry rules. If it shall dismiss the complaint. a refusal for carriage is based on the (5) No must-carry complaint filed station’s distance from the cable sys- pursuant to paragraph (a) of this sec- tem’s principal headend, the operator’s tion will be accepted by the Commis- response shall include the location of sion if filed more than sixty (60) days such headend. If a cable operator de- after— nies carriage on the basis of the failure (i) The denial by a cable television of the station to deliver a good quality system operator of request for carriage signal at the cable system’s principal or channel position contained in the headend, the cable operator must pro- notice required by paragraph (a)(1) of vide a list of equipment used to make this section, or the measurements, the point of meas- (ii) The failure to respond to such no- urement and a list and detailed de- tice within the time period allowed by scription of the reception and over-the- paragraph (a)(2) of this section. air signal processing equipment used, (b) Complaints regarding carriage of including sketches such as block dia- qualified local NCE television stations. (1) grams and a description of the method- Whenever a qualified local NCE tele- ology used for processing the signal at vision station believes that a cable op- issue, in its response. erator has failed to comply with the (3) A local commercial television sta- signal carriage or channel positioning tion or qualified low power television requirements, pursuant to §§ 76.56 station that is denied carriage or chan- through 76.57 of this part, the station nel positioning or repositioning in ac- may file a complaint with the Commis- cordance with the must-carry rules by sion in accordance with the procedures a cable operator may file a complaint set forth in § 76.7 of this part. In addi- with the Commission in accordance tion to the requirements of § 76.7 of this with the procedures set forth in § 76.7 of part, such complaint shall specifically:

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(i) Allege the manner in which such the extent technically feasible and con- cable operator has failed to comply sistent with good engineering practice, with such requirements and state the be provided no less than the same qual- basis for such allegations. ity of signal processing and carriage (ii) Be accompanied by any relevant provided for carriage of any other type correspondence between the complain- of standard television signal. ant and the cable television system op- (d) Each qualified local noncommer- erator. cial educational television station (2) If the Commission determines whose signal is carried shall be pro- that a cable operator has failed to meet vided with bandwidth and technical ca- its must-carry obligations, the Com- pacity equivalent to that provided to mission shall order that, within 45 days commercial television broadcast sta- of such order or such other period as tions carried. the Commission may specify, the cable (e) Each commercial broadcast tele- operator reposition the complaining vision station carried pursuant to station or, in the case of an obligation § 76.56 shall include in its entirety the to carry a station, commence or re- primary video, accompanying audio, sume carriage of the station and con- and closed captioning data contained tinue such carriage for a period of time in line 21 of the vertical blanking inter- the Commission deems appropriate for val and, to the extent technically fea- the specific case under consideration. sible, program-related material carried If the Commission determines that the in the vertical blanking interval or on cable operator has fully met the must- . Where appropriate and fea- carry requirements, it shall dismiss the sible, operators may delete signal en- complaint. hancements, such as ghost-canceling, (3) With respect to must-carry com- from the broadcast signal and employ plaints filed pursuant to paragraph (b) such enhancements at the system of this section, such complaints may be headend or headends. filed at any time the complainant be- (f) Each qualified local NCE tele- lieves that the cable television system vision station carried pursuant to operator has failed to comply with the § 76.56 shall include in its entirety the applicable provisions of subpart D of primary video, accompanying audio, this part. and closed captioning data contained [58 FR 17362, Apr. 2, 1993, as amended at 64 in line 21 of the vertical blanking inter- FR 6572, Feb. 10, 1999] val and, to the extent technically fea- sible, program-related material carried § 76.62 Manner of carriage. in the vertical blanking interval or on (a) Cable operators shall carry the subcarriers, that may be necessary for entirety of the program schedule of receipt of programming by handi- any television station (including low capped persons or for educational or power television stations) carried by language purposes. the system unless carriage of specific (g) With respect to carriage of digital programming is prohibited, and other signals, operators are not required to programming authorized to be sub- carry ancillary or supplementary stituted, under § 76.67 or subpart F of transmissions or non-program related part 76, or unless carriage is pursuant video material. to a valid retransmission consent (h) If a broadcast agreement for the entire signal or any signal is carried in accordance with portion thereof as provided in § 76.64. § 76.62(b) and either (c) or (d), the car- (b) Each digital television broadcast riage of that signal in additional for- signal carried shall be carried without mats does not constitute material deg- material degradation. Each analog tel- radation. evision broadcast signal carried shall [58 FR 17362, Apr. 2, 1993, as amended at 59 be carried without material degrada- FR 62345, Dec. 5, 1994; 66 FR 16553, Mar. 26, tion and in compliance with technical 2001; 73 FR 6054, Feb. 1, 2008] standards set forth in subpart K of this part. § 76.64 Retransmission consent. (c) Each local commercial television (a) No multichannel video program- station whose signal is carried shall, to ming distributor shall retransmit the

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signal of any (2) A is a television station without the express authority broadcast station other than a network of the originating station, except as station, licensed by the Federal Com- provided in paragraph (b) of this sec- munications Commission that is sec- tion. ondarily transmitted by a satellite car- (b) A commercial broadcast signal rier; may be retransmitted without express (3) An unserved household with re- authority of the originating station spect to a television network is a if— household that (1) The distributor is a cable system (i) Cannot receive, through the use of and the signal is that of a commercial a conventional outdoor rooftop receiv- television station (including a low- ing antenna, an over-the-air signal of power television station) that is being grade B intensity of a primary network carried pursuant to the Commission’s station affiliated with that network, must-carry rules set forth in § 76.56; and (2) The multichannel video program- (ii) Has not, within 90 days before the ming distributor obtains the signal of a date on which that household sub- superstation that is distributed by a scribes, either initially or on renewal, satellite carrier and the originating received secondary transmissions by a station was a superstation on May 1, satellite carrier of a network station 1991, and the distribution is made only affiliated with that network, sub- to areas outside the local market of scribed to a cable system that provides the originating station; or the signal of a primary network sta- (3) The distributor is a satellite car- tion affiliated with the network. rier and the signal is transmitted di- rectly to a home satellite antenna, pro- (4) A primary network station is a vided that: network station that broadcasts or re- (i) The broadcast station is not broadcasts the basic programming owned or operated by, or affiliated service of a particular national net- with, a broadcasting network and its work; signal was retransmitted by a satellite (5) The terms ‘‘network station,’’ and carrier on May 1, 1991, or ‘‘secondary transmission’’ have the (ii) The broadcast station is owned or meanings given them in 17 U.S.C. 111(f). operated by, or affiliated with a broad- (d) A multichannel video program casting network, and the household re- distributor is an entity such as, but not ceiving the signal is an unserved house- limited to, a cable operator, a BRS/ hold. This paragraph shall terminate at EBS provider, a direct broadcast sat- midnight on December 31, 2019, pro- ellite service, a television receive-only vided that if Congress further extends satellite program distributor, or a sat- this date, the rules remain in effect ellite master antenna television sys- until the statutory authorization ex- tem operator, that makes available for pires. purchase, by subscribers or customers, (c) For purposes of this section, the multiple channels of video program- following definitions apply: ming. (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

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owner; or under the control and avail- (2) Each cable operator shall, no later able for purchase by the subscriber or than July 31, 2020, provide an up-to- the building owner upon termination of date email address for carriage election service. notice submissions with respect to its (f) Commercial television stations systems and an up-to-date phone num- are required to make elections between ber for carriage-related questions. Each retransmission consent and must-carry cable operator is responsible for the status according to the following continuing accuracy and completeness schedule: of the information furnished. It must (1) The initial election must be made respond to questions from broadcasters by June 17, 1993. as soon as is reasonably possible. (2) Subsequent elections must be (3) A station shall send a notice of its made at three year intervals; the sec- election to a cable operator only if ond election must be made by October changing its election with respect to 1, 1996 and will take effect on January one or more of that operator’s systems. 1, 1997; the third election must be made Such notice shall be sent to the email by October 1, 1999 and will take effect address provided by the cable system on January 1, 2000, etc. and carbon copied to [email protected]. A notice must (3) Television stations that fail to include, with respect to each station make an election by the specified dead- referenced in the notice, the: line will be deemed to have elected (i) Call sign; must carry status for the relevant (ii) Community of license; three-year period. (iii) DMA where the station is lo- (4) New television stations and sta- cated; tions that return their analog spec- (iv) Specific change being made in trum allocation and broadcast in dig- election status; ital only shall make their initial elec- (v) Email address for carriage-related tion any time between 60 days prior to questions; commencing broadcast and 30 days (vi) Phone number for carriage-re- after commencing broadcast or com- lated questions; mencing broadcasting in digital only; (vii) Name of the appropriate station such initial election shall take effect 90 contact person; and, days after it is made. (viii) If the station changes its elec- (5) Television broadcast stations that tion for some systems of the cable op- become eligible for must carry status erator but not all, the specific cable with respect to a cable system or sys- systems for which a carriage election tems due to a change in the market applies. definition may, within 30 days of the (4) Cable operators must respond via effective date of the new definition, email as soon as is reasonably possible, elect must-carry status with respect to acknowledging receipt of a television such system or systems. Such elections station’s election notice. shall take effect 90 days after they are (5) Low power television stations and made. non-commercial educational translator (g) If one or more franchise areas stations that are qualified under § 76.55 served by a cable system overlaps with and retransmitted by a multichannel one or more franchise areas served by video programming distributor shall, another cable system, television broad- beginning no later than July 31, 2020, cast stations are required to make the respond as soon as is reasonably pos- same election for both cable systems. sible to messages or calls from multi- (h)(1) On or before each must carry/ channel video programming distribu- retransmission consent election dead- tors that are received via the email ad- line, each television broadcast station dress or phone number the station pro- shall place a copy of its election state- vides in the Commission’s Licensing ment, and copies of any election and Management System. change notices applying to the upcom- (i) Notwithstanding a television sta- ing carriage cycle, in the station’s pub- tion’s election of must-carry status, if lic file if the station is required to a cable operator proposes to retransmit maintain a public file. that station’s signal without according

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the station must-carry rights (i.e., pur- distributors. This paragraph shall ter- suant to § 76.56(e)), the operator must minate at midnight on January 1, 2020, obtain the station’s express authority provided that if Congress further ex- prior to retransmitting its signal. tends this date, the rules remain in ef- (j) Retransmission consent agree- fect until the statutory authorization ments between a broadcast station and expires. a multichannel video programming dis- (m) A multichannel video program- tributor shall be in writing and shall ming distributor providing an all-band specify the extent of the consent being FM radio broadcast service (a service granted, whether for the entire signal that does not involve the individual or any portion of the signal. This rule processing of specific broadcast sig- applies for either the analog or the dig- nals) shall obtain retransmission con- ital signal of a television station. sents from all FM radio broadcast sta- (k) A cable system commencing new tions that are included on the service operation is required to notify all local that have transmitters located within commercial and noncommercial broad- 92 kilometers (57 miles) of the receiv- cast stations of its intent to commence ing antenna for such service. Stations service. The cable operator must send outside of this 92 kilometer (57 miles) such notification, by certified mail ex- radius shall be presumed not to be car- cept as provided in this paragraph (k), ried in an all-band reception mode but at least 60 days prior to commencing may affirmatively assert retrans- cable service. After July 31, 2020, the mission consent rights by providing 30 cable operator must send such notifica- days advance notice to the distributor. tion by electronic delivery in accord- ance with § 76.1600. Commercial broad- NOTE 1 TO § 76.64: Section 76.1608 provides cast stations must notify the cable sys- notification requirements for a cable system that changes its technical configuration in tem within 30 days of the receipt of such a way as to integrate two formerly sep- such notice of their election for either arate cable systems. must-carry or retransmission consent with respect to such new cable system. [58 FR 17363, Apr. 2, 1993, as amended at 59 FR 62345, Dec. 5, 1994; 65 FR 15575, Mar. 23, If the commercial broadcast station 2000; 65 FR 53615, Sept. 5, 2000; 66 FR 16553, elects must-carry, it must also indicate Mar. 26, 2001; 67 FR 17015, Apr. 9, 2002; 69 FR its channel position in its election 72045, Dec. 10, 2004; 70 FR 40224, July 13, 2005; statement to the cable system. Such 74 FR 69286, Dec. 31, 2009; 80 FR 11330, Mar. 3, election shall remain valid for the re- 2015; 83 FR 7626, Feb. 22, 2018; 84 FR 45669, mainder of any three-year election in- Aug. 30, 2019; 85 FR 16005, Mar. 19, 2020; 85 FR terval, as established in paragraph 22651, Apr. 23, 2020; 85 FR 44217, July 22, 2020] (f)(2) of this section. Noncommercial educational broadcast stations should § 76.65 Good faith and exclusive re- transmission consent complaints. notify the cable operator of their re- quest for carriage and their channel po- (a) Duty to negotiate in good faith. Tel- sition. The new cable system must no- evision broadcast stations and multi- tify each station if its signal quality channel video programming distribu- does not meet the standards for car- tors shall negotiate in good faith the riage and if any copyright liability terms and conditions of retransmission would be incurred for the carriage of consent agreements to fulfill the duties such signal. Pursuant to § 76.57(e), a established by section 325(b)(3)(C) of commercial broadcast station which the Act; provided, however, that it fails to respond to such a notice shall shall not be a failure to negotiate in be deemed to be a must-carry station good faith if: for the remainder of the current three- (1) The television broadcast station year election period. proposes or enters into retransmission (l) Exclusive retransmission consent consent agreements containing dif- agreements are prohibited. No tele- ferent terms and conditions, including vision broadcast station shall make or price terms, with different multi- negotiate any agreement with one mul- channel video programming distribu- tichannel video programming dis- tors if such different terms and condi- tributor for carriage to the exclusion of tions are based on competitive market- other multichannel video programming place considerations; or

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(2) The multichannel video program- the same local market to grant re- ming distributor enters into retrans- transmission consent to a multi- mission consent agreements containing channel video programming dis- different terms and conditions, includ- tributor, unless such stations are di- ing price terms, with different broad- rectly or indirectly under common de cast stations if such different terms jure control permitted under the regu- and conditions are based on competi- lations of the Commission. tive marketplace considerations. If a (ix) The imposition by a television television broadcast station or multi- broadcast station of limitations on the channel video programming distributor ability of a multichannel video pro- negotiates in accordance with the rules gramming distributor to carry into the and procedures set forth in this sec- local market of such station a tele- tion, failure to reach an agreement is vision signal that has been deemed sig- not an indication of a failure to nego- nificantly viewed, within the meaning tiate in good faith. of § 76.54 of this part, or any successor (b) Good faith negotiation—(1) Stand- regulation, or any other television ards. The following actions or practices broadcast signal such distributor is au- violate a broadcast television station’s thorized to carry under 47 U.S.C. 338, or multichannel video programming 339, 340 or 534, unless such stations are distributor’s (the ‘‘Negotiating Enti- directly or indirectly under common de ty’’) duty to negotiate retransmission jure control permitted by the Commis- consent agreements in good faith: sion. (i) Refusal by a Negotiating Entity to (2) Negotiation of retransmission con- negotiate retransmission consent; sent between qualified multichannel video (ii) Refusal by a Negotiating Entity programming distributor buying groups to designate a representative with au- and large station groups. (i) A multi- thority to make binding representa- channel video programming distributor tions on retransmission consent; may satisfy its obligation to negotiate (iii) Refusal by a Negotiating Entity in good faith for retransmission con- to meet and negotiate retransmission sent with a large station group by des- consent at reasonable times and loca- ignating a qualified MVPD buying tions, or acting in a manner that un- group to negotiate on its behalf, so reasonably delays retransmission con- long as the qualified MVPD buying sent negotiations; group itself negotiates in good faith in (iv) Refusal by a Negotiating Entity accordance with this section. to put forth more than a single, unilat- eral proposal; (ii) It is a violation of the obligation (v) Failure of a Negotiating Entity to to negotiate in good faith for a quali- respond to a retransmission consent fied MVPD buying group to disclose proposal of the other party, including the prices, terms, or conditions of an the reasons for the rejection of any ongoing negotiation or the final terms such proposal; of a negotiation to a member of the (vi) Execution by a Negotiating Enti- qualified MVPD buying group that is ty of an agreement with any party, a not intending, or is unlikely, to enter term or condition of which, requires into the final terms negotiated by the that such Negotiating Entity not enter qualified MVPD buying group. into a retransmission consent agree- (iii) A large station group has an ob- ment with any other television broad- ligation to negotiate in good faith for cast station or multichannel video pro- retransmission consent with a qualified gramming distributor; MVPD buying group. (vii) Refusal by a Negotiating Entity (A) ‘‘Qualified MVPD buying group’’ to execute a written retransmission means an entity that, with respect to a consent agreement that sets forth the negotiation with a large station group full understanding of the television for retransmission consent— broadcast station and the multichannel (1) Negotiates on behalf of two or video programming distributor; and more multichannel video programming (viii) Coordination of negotiations or distributors— negotiation on a joint basis by two or (i) None of which is a multichannel more television broadcast stations in video programming distributor that

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serves more than 500,000 subscribers na- conduct that it believes constitutes a tionally; and violation of the regulations set forth in (ii) That do not collectively serve this section or § 76.64(l) may commence more than 25 percent of all households an adjudicatory proceeding at the Com- served by multichannel video program- mission to obtain enforcement of the ming distributors in any single local rules through the filing of a complaint. market in which the applicable large The complaint shall be filed and re- station group operates; and sponded to in accordance with the pro- (2) Negotiates agreements for such cedures specified in § 76.7. retransmission consent— (d) Burden of proof. In any complaint (i) That contain standardized con- proceeding brought under this section, tract provisions, including billing the burden of proof as to the existence structures and technical quality stand- of a violation shall be on the complain- ards, for each multichannel video pro- ant. gramming distributor on behalf of (e) Time limit on filing of complaints. which the entity negotiates; and Any complaint filed pursuant to this (ii) Under which the entity assumes subsection must be filed within one liability to remit to the applicable year of the date on which one of the large station group all fees received following events occurs: from the multichannel video program- (1) A complainant enters into a re- ming distributors on behalf of which transmission consent agreement with a the entity negotiates. television broadcast station or multi- (B) ‘‘Large station group’’ means a channel video programming distributor group of television broadcast stations that the complainant alleges to violate that— one or more of the rules contained in (1) Are directly or indirectly under this subpart; or common de jure control permitted by the regulations of the Commission; (2) A television broadcast station or (2) Generally negotiate agreements multichannel video programming dis- for retransmission consent under this tributor engages in retransmission con- section as a single entity; and sent negotiations with a complainant (3) Include only television broadcast that the complainant alleges to violate stations that collectively have a na- one or more of the rules contained in tional audience reach of more than 20 this subpart, and such negotiation is percent; unrelated to any existing contract be- (3) Definitions. For purposes of this tween the complainant and the tele- section and section 76.64 of this sub- vision broadcast station or multi- part, the following definitions apply: channel video programming dis- (i) ‘‘Local market’’ has the meaning tributor; or given such term in 17 U.S.C. 122(j); and (3) The complainant has notified the (ii) ‘‘Multichannel video program- television broadcast station or multi- ming distributor’’ has the meaning channel video programming distributor given such term in 47 U.S.C. 522. that it intends to file a complaint with (4) Totality of the circumstances. In ad- the Commission based on a request to dition to the standards set forth in negotiate retransmission consent that paragraphs (b)(1) and (2) of this section, has been denied, unreasonably delayed, a Negotiating Entity may dem- or unacknowledged in violation of one onstrate, based on the totality of the or more of the rules contained in this circumstances of a particular retrans- subpart. mission consent negotiation, that a (f) Termination of rules. This section television broadcast station or multi- shall terminate at midnight on Janu- channel video programming distributor ary 1, 2020, provided that if Congress breached its duty to negotiate in good further extends this date, the rules re- faith as set forth in paragraph (a) of main in effect until the statutory au- this section. thorization expires. (c) Good faith negotiation and exclu- [70 FR 40224, July 13, 2005, as amended at 74 sivity complaints. Any television broad- FR 69286, Dec. 31, 2009; 79 FR 28630, May 19, cast station or multichannel video pro- 2014; 80 FR 11330, Mar. 3, 2015; 85 FR 36801, gramming distributor aggrieved by June 18, 2020]

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§ 76.66 Satellite broadcast signal car- secondary transmissions to subscribers riage. located within the local market of a (a) Definitions—(1) Satellite carrier. A television broadcast station of a pri- satellite carrier is an entity that uses mary transmission made by that sta- the facilities of a satellite or satellite tion, shall carry upon request the sig- service licensed by the Federal Com- nals of all television broadcast stations munications Commission, and operates located within that local market, sub- in the Fixed-Satellite Service under ject to section 325(b) of title 47, United part 25 of title 47 of the Code of Federal States Code, and other paragraphs in Regulations or the Direct Broadcast this section. Satellite carriers are re- Satellite Service under part 100 of title quired to carry digital-only stations 47 of the Code of Federal Regulations, upon request in markets in which the to establish and operate a channel of satellite carrier is providing any local- communications for point-to- into-local service pursuant to the stat- multipoint distribution of television utory copyright license. station signals, and that owns or leases (2) A satellite carrier that offers mul- a capacity or a service on a satellite in tichannel video programming distribu- order to provide such point-to- tion service in the United States to multipoint distribution, except to the more than 5,000,000 subscribers shall, extent that such entity provides such no later than December 8, 2005, carry distribution pursuant to tariff under upon request the signal originating as the Communications Act of 1934, other an analog signal of each television than for private home viewing. broadcast station that is located in a (2) Secondary transmission. A sec- local market in Alaska or Hawaii; and ondary transmission is the further shall, no later than June 8, 2007, carry transmitting of a primary transmission upon request the signals originating as simultaneously with the primary digital signals of each television broad- transmission. cast station that is located in a local (3) Subscriber. A subscriber is a person market in Alaska or Hawaii. Such sat- who receives a secondary transmission ellite carrier is not required to carry service from a satellite carrier and the signal originating as analog after pays a fee for the service, directly or commencing carriage of digital signals indirectly, to the satellite carrier or to on June 8, 2007. Carriage of signals a distributor. originating as digital signals of each (4) A tele- Television broadcast station. television broadcast station that is lo- vision broadcast station is an over-the- cated in a local market in Alaska or air commercial or noncommercial tele- Hawaii shall include the entire free vision broadcast station licensed by over-the-air signal, including multicast the Commission under subpart E of and high definition digital signals. part 73 of title 47, Code of Federal Reg- ulations, except that such term does (c) Election cycle. In television mar- not include a low-power or translator kets where a satellite carrier is pro- television station. viding local-into-local service, a com- (5) Television network. For purposes of mercial television broadcast station this section, a television network is an may elect either retransmission con- entity which offers an interconnected sent, pursuant to section 325 of title 47 program service on a regular basis for United States Code, or mandatory car- 15 or more hours per week to at least 25 riage, pursuant to section 338, title 47 affiliated broadcast stations in 10 or United States Code. more States. (1) The first retransmission consent- (6) Local-into-local television service. A mandatory carriage election cycle satellite carrier is providing local-into- shall be for a four-year period com- local service when it retransmits a mencing on January 1, 2002 and ending local television station signal back December 31, 2005. into the local market of that television (2) The second retransmission con- station for reception by subscribers. sent-mandatory carriage election (b) Signal carriage obligations. (1) Each cycle, and all cycles thereafter, shall satellite carrier providing, under sec- be for a period of three years (e.g. the tion 122 of title 17, United States Code, second election cycle commences on

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January 1, 2006 and ends at midnight and completeness of the information on December 31, 2008). furnished. It must respond to questions (3) A commercial television station from broadcasters as soon as is reason- must notify a satellite carrier, by July ably possible. 1, 2001, of its retransmission consent- (iii) A station shall send a notice of mandatory carriage election for the its election to a satellite carrier only if first election cycle commencing Janu- changing its election with respect to ary 1, 2002. one or more of the markets served by (4) Except as provided in paragraphs that carrier. Such notice shall be sent (c)(6), (d)(2) and (d)(3) of this section, to the email address provided by the local commercial television broadcast satellite carrier and carbon copied to stations shall make their retrans- [email protected]. mission consent-mandatory carriage (iv) A television station’s written no- election by October 1st of the year pre- tification shall include with respect to ceding the new cycle for all election each station referenced in the notice, cycles after the first election cycle. the: (5) [Reserved] (A) Call sign; (6) A commercial television broad- (B) Community of license; cast station located in a local market (C) DMA where the station is located; in Alaska or Hawaii shall make its re- (D) Specific change being made in transmission consent-mandatory car- election status; riage election by October 1, 2005, for (E) Email address for carriage-re- carriage of its signal that originates as lated questions; an analog signal for carriage com- (F) Phone number for carriage-re- mencing on December 8, 2005, and by lated questions; and April 1, 2007, for its signal that origi- nates as a digital signal for carriage (G) Name of the appropriate station commencing on June 8, 2007 and ending contact person. on December 31, 2008. For analog and (v) A satellite carrier must respond digital signal carriage cycles com- via email as soon as is reasonably pos- mencing after December 31, 2008, such sible, acknowledging receipt of a tele- stations shall follow the election cycle vision station’s election notice. in paragraphs (c)(2) and (4). A non- (vi) Within 30 days of receiving a tel- commercial television broadcast sta- evision station’s carriage request, and tion located in a local market in Alas- subject to paragraph (d)(2)(ii) of this ka or Hawaii must request carriage by section, a satellite carrier shall notify October 1, 2005, for carriage of its sig- in writing: nal that originates as an analog signal (A) Those local television stations it for carriage commencing on December will not carry, along with the reasons 8, 2005, and by April 1, 2007, for its sig- for such a decision; and nal that originates as a digital signal (B) Those local television stations it for carriage commencing on June 8, intends to carry. 2007 and ending on December 31, 2008. (vii) A satellite carrier is not re- (d) Carriage procedures—(1) Carriage quired to carry a television station, for requests. (i) An election for mandatory the duration of the election cycle, if carriage made by a television broad- the station fails to assert its carriage cast station shall be treated as a re- rights by the deadlines established in quest for carriage. For purposes of this this section. paragraph (d), the term election re- (2) New local-into-local service. (i) A quest includes an election of retrans- new satellite carrier or a satellite car- mission consent or mandatory car- rier providing local service in a market riage. for the first time after July 1, 2001, (ii) Each satellite carrier shall, no shall inform each television broadcast later than July 31, 2020, provide an up- station licensee within any local mar- to-date email address for carriage elec- ket in which a satellite carrier pro- tion notice submissions and an up-to- poses to commence carriage of signals date phone number for carriage-related of stations from that market, not later questions. Each satellite carrier is re- than 60 days prior to the commence- sponsible for the continuing accuracy ment of such carriage

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(A) Of the carrier’s intention to sons for such decision, and those local launch local-into-local service under television stations it intends to carry. this section in a local market, the After July 31, 2020, the written notices identity of that local market, and the required by this paragraph (d)(2)(v) location of the carrier’s proposed local shall be delivered to stations electroni- receive facility for that local market; cally in accordance with paragraph (B) Of the right of such licensee to (d)(2)(ii) of this section. elect carriage under this section or (vi) Satellite carriers shall notify all grant retransmission consent under local stations in a market of their in- section 325(b); tent to launch HD carry-one, carry-all (C) That such licensee has 30 days in that market at least 60 days before from the date of the receipt of such no- commencing such carriage. After July tice to make such election; and 31, 2020, the written notices required by (D) That failure to make such elec- this paragraph (d)(2)(vi) shall be deliv- tion will result in the loss of the right ered to stations electronically in ac- to demand carriage under this section cordance with paragraph (d)(2)(ii) of for the remainder of the 3-year cycle of this section. carriage under section 325. (3) New television stations. (i) A tele- (ii) Except as provided in this para- vision station providing over-the-air graph (d)(2)(ii), satellite carriers shall service in a market for the first time transmit the notices required by para- on or after July 1, 2001, shall be consid- graph (d)(2)(i) of this section via cer- ered a new television station for sat- tified mail to the address for such tele- ellite carriage purposes. vision station licensee listed in the (ii) A new television station shall consolidated database system main- make its election request, in writing, tained by the Commission. After July sent to the satellite carrier’s email ad- 31, 2020, the written notices required by dress provided by the satellite carrier paragraphs (d)(1)(vi), (d)(2)(i), (v), and and carbon copied to (vi), (d)(3)(iv), (d)(5)(i), (f)(3) and (4), [email protected], between 60 and (h)(5) of this section shall be deliv- days prior to commencing broadcasting ered electronically via email to the and 30 days after commencing broad- email address for carriage-related ques- casting. This written notification shall tions that the station lists in its public include the information required by file in accordance with §§ 73.3526 and paragraph (d)(1)(iv) of this section. 73.3527 of this title. (iii) A satellite carrier shall com- (iii) A satellite carrier with more mence carriage within 90 days of re- than five million subscribers shall pro- ceiving the request for carriage from vide the notice as required by para- the television broadcast station or graphs (d)(2)(i) and (ii) of this section whenever the new television station to each television broadcast station lo- provides over-the-air service. cated in a local market in Alaska or (iv) Within 30 days of receiving a new Hawaii, not later than March 1, 2007 television station’s election of manda- with respect to carriage of digital sig- tory carriage, a satellite carrier shall nals; provided, further, that the notice notify the station in writing that it shall also describe the carriage require- will not carry the station, along with ments pursuant to 47 U.S.C. 338(a)(4), the reasons for such decision, or that it and paragraph (b)(2) of this section. intends to carry the station. After July (iv) A satellite carrier shall com- 31, 2020, the written notices required by mence carriage of a local station by this paragraph (d)(3)(iv) shall be deliv- the later of 90 days from receipt of an ered to stations electronically in ac- election of mandatory carriage or upon cordance with paragraph (d)(2)(ii) of commencing local-into-local service in this section. the new television market. (4) Television broadcast stations (v) Within 30 days of receiving a local must send election requests as provided television station’s election of manda- in paragraphs (d)(1), (2), and (3) of this tory carriage in a new television mar- section on or before the relevant dead- ket, a satellite carrier shall notify in line. writing those local television stations (5) Elections in markets in which sig- it will not carry, along with the rea- nificantly viewed signals are carried. (i)

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Beginning with the election cycle de- (iii) A television broadcast station scribed in paragraph (c)(2) of this sec- that elects mandatory carriage for one tion, the retransmission of signifi- or more counties in its market and cantly viewed signals pursuant to elects retransmission consent for one § 76.54 by a satellite carrier that pro- or more other counties in its market vides local-into-local service is subject pursuant to paragraph (d)(5)(ii) of this to providing the notifications to sta- section shall conduct a unified negotia- tions in the market pursuant to para- tion for the entire portion of its local graphs (d)(5)(i)(A) and (B) of this sec- market for which retransmission con- tion, unless the satellite carrier was re- sent is elected. transmitting such signals as of the (iv) A television broadcast station date these notifications were due. After that receives a notification from a sat- July 31, 2020, the written notices re- ellite carrier pursuant to paragraph quired by this paragraph (d)(5)(i) shall (d)(5)(i) of this section with respect to be delivered to stations electronically an upcoming election cycle may choose in accordance with paragraph (d)(2)(ii) either retransmission consent or man- of this section. datory carriage for any portion of the (A) In any local market in which a 3-year election cycle that is not cov- satellite carrier provided local-into- ered by an existing retransmission con- local service on December 8, 2004, at sent agreement. least 60 days prior to any date on which (6) Carriage after a market modifica- a station must make an election under tion. Television broadcast stations that paragraph (c) of this section, identify become eligible for mandatory carriage each affiliate of the same television with respect to a satellite carrier (pur- network that the carrier reserves the suant to § 76.66) due to a change in the right to retransmit into that station’s market definition (by operation of a local market during the next election market modification pursuant to cycle and the communities into which § 76.59) may, within 30 days of the effec- the satellite carrier reserves the right tive date of the new definition, elect to make such retransmissions; retransmission consent or mandatory (B) In any local market in which a carriage with respect to such carrier. A satellite carrier commences local-into- satellite carrier shall commence car- local service after December 8, 2004, at riage within 90 days of receiving the least 60 days prior to the commence- carriage election from the television ment of service in that market, and broadcast station. The election must thereafter at least 60 days prior to any be made in accordance with the re- date on which the station must there- after make an election under § 76.66(c) quirements in paragraph (d)(1) of this or (d)(2), identify each affiliate of the section. same television network that the car- (e) Market definitions. (1) A local mar- rier reserves the right to retransmit ket, in the case of both commercial and into that station’s local market during noncommercial television broadcast the next election cycle. stations, is the designated market area (ii) A television broadcast station lo- in which a station is located, unless cated in a market in which a satellite such market is amended pursuant to carrier provides local-into-local tele- § 76.59, and vision service may elect either retrans- (i) In the case of a commercial tele- mission consent or mandatory carriage vision broadcast station, all commer- for each county within the station’s cial television broadcast stations li- local market if the satellite carrier censed to a community within the provided notice to the station, pursu- same designated market area within ant to paragraph (d)(5)(i) of this sec- the same local market; and tion, that it intends to carry during (ii) In the case of a noncommercial the next election cycle, or has been educational television broadcast sta- carrying on the date notification was tion, the market includes any station due, in the station’s local market an- that is licensed to a community within other affiliate of the same network as the same designated market area as a significantly viewed signal pursuant the noncommercial educational tele- to § 76.54. vision broadcast station.

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(2) A designated market area is the ket if the location of such a facility is market area, as determined by Nielsen acceptable to at least one-half the sta- Media Research and published in the tions with carriage rights in that mar- 1999–2000 Nielsen Station Index Direc- ket. tory and Nielsen Station Index United (3) Except as provided in paragraph States Television Household Estimates (d)(2) of this section, a satellite carrier or any successor publication. In the providing local-into-local service must case of areas outside of any designated notify local television stations of the market area, any census area, borough, location of the receive facility by June or other area in the State of Alaska 1, 2001 for the first election cycle and that is outside of a designated market at least 120 days prior to the com- area, as determined by Nielsen Media mencement of all election cycles there- Research, shall be deemed to be part of after. After July 31, 2020, the written one of the local markets in the State of notices required by this paragraph Alaska. (f)(3) shall be delivered to stations elec- (3) A satellite carrier shall use the tronically in accordance with para- 1999–2000 Nielsen Station Index Direc- graph (d)(2)(ii) of this section. tory and Nielsen Station Index United (4) A satellite carrier may relocate States Television Household Estimates its local receive facility at the com- to define television markets for the mencement of each election cycle. A first retransmission consent-manda- satellite carrier is also permitted to re- tory carriage election cycle com- locate its local receive facility during mencing on January 1, 2002 and ending the course of an election cycle, if it on December 31, 2005. The 2003–2004 bears the signal delivery costs of the Nielsen Station Index Directory and television stations affected by such a Nielsen Station Index United States move. A satellite carrier relocating its Television Household Estimates shall local receive facility must provide 60 be used for the second retransmission days notice to all local television sta- consent-mandatory carriage election tions carried in the affected television cycle commencing January 1, 2006 and market. After July 31, 2020, the written ending December 31, 2008, and so forth notices required by this paragraph for each triennial election pursuant to (f)(4) shall be delivered to stations elec- this section. Provided, however, that a tronically in accordance with para- county deleted from a market by graph (d)(2)(ii) of this section. Nielsen need not be subtracted from a (g) Good quality signal. (1) A tele- market in which a satellite carrier pro- vision station asserting its right to vides local-into-local service, if that carriage shall be required to bear the county is assigned to that market in costs associated with delivering a good the 1999–2000 Nielsen Station Index Di- quality signal to the designated local rectory or any subsequent issue of that receive facility of the satellite carrier publication. A satellite carrier may de- or to another facility that is accept- termine which local market in the able to at least one-half the stations State of Alaska will be deemed to be asserting the right to carriage in the the relevant local market in connec- local market. tion with each subscriber in an area in (2) To be considered a good quality the State of Alaska that is outside of a signal for satellite carriage purposes, a designated market, as described in television station shall deliver to the paragraph (e)(2) of this section. local receive facility of a satellite car- (4) A local market includes all coun- rier either a signal level of ¥45dBm for ties to which stations assigned to that UHF signals or ¥49dBm for VHF sig- market are licensed. nals at the input terminals of the sig- (f) Receive facilities. (1) A local receive nal processing equipment. facility is the reception point in each (3) A satellite carrier is not required local market which a satellite carrier to carry a television station that does designates for delivery of the signal of not agree to be responsible for the the station for purposes of retrans- costs of delivering a good quality sig- mission. nal to the receive facility. (2) A satellite carrier may establish (h) Duplicating signals. (1) A satellite another receive facility to serve a mar- carrier shall not be required to carry

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upon request the signal of any local cent of prime time programming and television broadcast station that sub- more than 50 percent outside of prime stantially duplicates the signal of an- time programming is duplicative on a other local television broadcast station non-simultaneous basis. which is secondarily transmitted by (i) Channel positioning. (1) No satellite the satellite carrier within the same carrier shall be required to provide the local market, or the signals of more signal of a local television broadcast than one local commercial television station to subscribers in that station’s broadcast station in a single local mar- local market on any particular channel ket that is affiliated with a particular number or to provide the signals in any television network unless such stations particular order, except that the sat- are licensed to communities in dif- ellite carrier shall retransmit the sig- ferent States. nal of the local television broadcast (2) A satellite carrier may select stations to subscribers in the stations’ which duplicating signal in a market it local market on contiguous channels. shall carry. (2) The television stations subject to (3) A satellite carrier may select this paragraph include those carried which network affiliate in a market it under retransmission consent. shall carry. (3) All local television stations car- (4) A satellite carrier is permitted to ried under mandatory carriage in a drop a local television station when- particular television market must be ever that station meets the substantial offered to subscribers at rates com- duplication criteria set forth in this parable to local television stations car- paragraph. A satellite carrier must add ried under retransmission consent in a television station to its channel line- that same market. up if such station no longer duplicates (4) Within a market, no satellite car- the programming of another local tele- rier shall provide local-into-local serv- vision station. ice in a manner that requires sub- (5) A satellite carrier shall provide scribers to obtain additional equip- notice to its subscribers, and to the af- ment at their own expense or for an ad- fected television station, whenever it ditional carrier charge in order to ob- adds or deletes a station’s signal in a tain one or more local television broad- particular local market pursuant to cast signals if such equipment is not this paragraph (h)(5). After July 31, required for the receipt of other local 2020, the required notice to the affected television broadcast signals. television station shall be delivered to (5) All television stations carried the station electronically in accord- under mandatory carriage, in a par- ance with paragraph (d)(2)(ii) of this ticular market, shall be presented to section. subscribers in the same manner as tele- (6) A commercial television station vision stations that elected retrans- substantially duplicates the program- mission consent, in that same market, ming of another commercial television on any navigational device, on-screen station if it simultaneously broadcasts program guide, or menu provided by the identical programming of another the satellite carrier. station for more than 50 percent of the (j) Manner of carriage. (1) Each tele- broadcast week. vision station carried by a satellite (7) A noncommercial television sta- carrier, pursuant to this section, shall tion substantially duplicates the pro- include in its entirety the primary gramming of another noncommercial video, accompanying audio, and closed station if it simultaneously broadcasts captioning data contained in line 21 of the same programming as another non- the vertical blanking interval and, to commercial station for more than 50 the extent technically feasible, pro- percent of prime time, as defined by gram-related material carried in the § 76.5(n), and more than 50 percent out- vertical blanking interval or on subcar- side of prime time over a three month riers. For noncommercial educational period, Provided, however, that after television stations, a satellite carrier three noncommercial television sta- must also carry any program-related tions are carried, the test of duplica- material that may be necessary for re- tion shall be whether more than 50 per- ceipt of programming by persons with

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disabilities or for educational or lan- section or for channel positioning guage purposes. Secondary audio pro- rights provided to such stations under gramming must also be carried. Where this section, except that any such sta- appropriate and feasible, satellite car- tion may be required to bear the costs riers may delete signal enhancements, associated with delivering a good qual- such as ghost-canceling, from the ity signal to the receive facility of the broadcast signal and employ such en- satellite carrier. hancements at the local receive facil- (2) A satellite carrier may accept ity. payments from a station pursuant to a (2) A satellite carrier, at its discre- retransmission consent agreement. tion, may carry any ancillary service (m) Remedies. (1) Whenever a local transmission on the vertical blanking television broadcast station believes interval or the aural baseband of any that a satellite carrier has failed to television broadcast signal, including, meet its obligations under this section, but not limited to, multichannel tele- vision sound and teletext. such station shall notify the carrier, in (k) Material degradation. (1) Each writing, of the alleged failure and iden- local television station whose signal is tify its reasons for believing that the carried under mandatory carriage satellite carrier failed to comply with shall, to the extent technically feasible such obligations. and consistent with good engineering (2) The satellite carrier shall, within practice, be provided with the same 30 days after such written notification, quality of signal processing provided to respond in writing to such notification television stations electing retrans- and comply with such obligations or mission consent, including carriage of state its reasons for believing that it is HD signals in HD if any local station in in compliance with such obligations. the same market is carried in HD. A (3) A local television broadcast sta- satellite carrier is permitted to use tion that disputes a response by a sat- reasonable digital compression tech- ellite carrier that it is in compliance niques in the carriage of local tele- with such obligations may obtain re- vision stations. view of such denial or response by fil- (2) Satellite carriers must provide ing a complaint with the Commission, carriage of local stations’ HD signals if in accordance with § 76.7 of title 47, any local station in the same market is Code of Federal Regulations. Such carried in HD, pursuant to the fol- complaint shall allege the manner in lowing schedule: which such satellite carrier has failed (i) In at least 15% of the markets in to meet its obligations and the basis which they carry any station pursuant for such allegations. to the statutory copyright license in (4) The satellite carrier against HD by February 17, 2010; which a complaint is filed is permitted (ii) In at least 30% of the markets in to present data and arguments to es- which they carry any station pursuant tablish that there has been no failure to the statutory copyright license in to meet its obligations under this sec- HD no later than February 17, 2011; (iii) In at least 60% of the markets in tion. which they carry any station pursuant (5) The Commission shall determine to the statutory copyright license in whether the satellite carrier has met HD no later than February 17, 2012; and its obligations under this section. If (iv) In 100% of the markets in which the Commission determines that the they carry any station pursuant to the satellite carrier has failed to meet such statutory copyright license in HD by obligations, the Commission shall February 17, 2013. order the satellite carrier to take ap- (l) Compensation for carriage. (1) A sat- propriate remedial action. If the Com- ellite carrier shall not accept or re- mission determines that the satellite quest monetary payment or other valu- carrier has fully met the requirements able consideration in exchange either of this section, it shall dismiss the for carriage of local television broad- complaint. cast stations in fulfillment of the man- (6) The Commission will not accept datory carriage requirements of this any complaint filed later than 60 days

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after a satellite carrier, either implic- tion, or non-commercial educational itly or explicitly, denies a television television translator station operating station’s carriage request. with 5 or more watts output power and (n) Channel sharing carriage rights. A where the signals of no such broadcast broadcast television station that vol- stations are ‘‘significantly viewed’’ in untarily relinquishes spectrum usage the county where such a cable system rights under § 73.3700 of this chapter in is located, the cable system shall be ex- order to share a television channel and empt from the provisions of § 76.66. that possessed carriage rights under Cable systems may be eligible for this section 338, 614, or 615 of the Commu- exemption where they demonstrate nications Act of 1934 (47 U.S.C. 338; 534; with engineering studies prepared in 535) on November 30, 2010, shall have, at accordance with § 73.686 of this chapter its shared location, the carriage rights or other showings that broadcast sig- under such section that would apply to nals meeting the above criteria are not such station at such location if it were actually viewable within the commu- not sharing a channel. nity. (o) Next Gen TV carriage rights. (1) A (b) Where a new full service broad- broadcast television station that cast television station, or new non- chooses to deploy Next Gen TV service, commercial educational television see § 73.682(f) of this chapter, may as- translator station with 5 or more sert mandatory carriage rights under watts, or an existing such station of ei- this section only with respect to its ther type with newly upgraded facili- ATSC 1.0 signal and may not assert ties provides predicted Grade B service mandatory carriage rights with respect to a community served by a cable sys- to its ATSC 3.0 signal. tem previously exempt under para- (2) With respect to a Next Gen TV graph (a) of this section, or the signal station that moves its 1.0 simulcast of any such broadcast station is newly signal to a host station’s (i.e., a station determined to be ‘‘significantly whose facilities are being used to viewed’’ in the county where such a transmit programming originated by cable system is located, the cable sys- another station) facilities, the station tem at that time is required to comply may assert mandatory carriage rights fully with the provisions of § 76.66. under this section only if it: Cable systems may retain their exemp- (i) Qualified for, and has been exer- tion under paragraph (a) of this section cising, mandatory carriage rights at its where they demonstrate with engineer- original location; and ing studies prepared in accordance with (ii) Continues to qualify for manda- § 73.686 of this chapter or other tory carriage at the host station’s fa- showings that broadcast signals meet- cilities, including (but not limited to) ing the above criteria are not actually delivering a good quality 1.0 signal to viewable within the community. the satellite carrier local receive facil- [54 FR 25716, June 19, 1989] ity, or agreeing to be responsible for the costs of delivering such 1.0 signal to the satellite carrier. Subpart E—Equal Employment Opportunity Requirements [66 FR 7430, Jan. 23, 2001, as amended at 66 FR 49135, Sept. 26, 2001; 70 FR 21670, Apr. 27, SOURCE: 50 FR 40855, Oct. 7, 1985, unless 2005; 70 FR 51668, Aug. 31, 2005; 70 FR 53079, otherwise noted. Sept. 7, 2005; 73 FR 24508, May 5, 2008; 77 FR 30426, May 23, 2012; 80 FR 59664, Oct. 2, 2015; 83 FR 5028, Feb. 2, 2018; 84 FR 45669, Aug. 30, § 76.71 Scope of application. 2019; 85 FR 16005, Mar. 20, 2020] (a) The provisions of this subpart shall apply to any corporation, part- § 76.70 Exemption from input selector nership, association, joint-stock com- switch rules. pany, or trust engaged primarily in the (a) In any case of cable systems serv- management or operation of any cable ing communities where no portion of system. Cable entities subject to these the community is covered by the pre- provisions include those systems de- dicted Grade B contour of at least one fined in § 76.5(a), all satellite master full service broadcast television sta- antenna television systems serving 50

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or more subscribers, and any multi- § 76.73 General EEO policy. channel video programming dis- (a) Equal opportunity in employment tributor. For purposes of the provisions shall be afforded by each cable entity of this subpart, a multichannel video to all qualified persons, and no person programming distributor is an entity shall be discriminated against in em- such as, but not limited to, a cable op- ployment by such entity because of erator, a BRS/EBS provider, a direct race, color, religion, national origin, broadcast satellite service, a television age or sex. receive-only satellite program dis- (b) Each employment unit shall es- tributor, or a video dialtone program tablish, maintain, and carry out a posi- service provider, who makes available tive continuing program of specific for purchase, by subscribers or cus- practices designed to assure equal op- tomers, multiple channels of video pro- portunity to every aspect of cable sys- gramming, whether or not a licensee. tem employment policy and practice. Multichannel video programming dis- Under the terms of its program, an em- tributors do not include any entity ployment unit shall: (1) Define the responsibility of each which lacks control over the video pro- level of management to ensure a posi- gramming distributed. For purposes of tive application and vigorous enforce- this subpart, an entity has control over ment of its policy of equal opportunity, the video programming it distributes, and establish a procedure to review and if it selects video programming chan- control managerial and supervisory nels or programs and determines how performance; they are presented for sale to con- (2) Inform its employees and recog- sumers. Nothwithstanding the fore- nized employee organizations of the going, the regulations in this subpart positive equal employment oppor- are not applicable to the owners or tunity policy and program and enlist originators (of programs or channels of their cooperation; programming) that distribute six or (3) Communicate its equal employ- fewer channels of commonly-owned ment opportunity policy and progam video programming over a leased trans- and its employment needs to sources of port facility. For purposes of this sub- qualified applicants without regard to part, programming services are ‘‘com- race, color, religion, national origin, monly-owned’’ if the same entity holds age or sex, and solicit their recruit- a majority of the stock (or is a general ment assistance on a continuing basis; partner) of each program service. (4) Conduct a continuing program to exclude every form of prejudice or dis- (b) Employment units. The provisions crimination based upon race, color, re- of this subpart shall apply to cable en- ligion, national origin, age or sex from tities as employment units. Each cable its personnel policies and practices and entity may be considered a separate working conditions; and employment unit; however, where two (5) Conduct a continuing review of or more cable entities are under com- job structure and employment prac- mon ownership or control and are tices and adopt positive recruitment, interrelated in their local manage- training, job design, and other meas- ment, operation, and utilization of em- ures needed to ensure genuine equality ployees, they shall constitute a single of opportunity to participate fully in employment unit. all organizational units, occupations, (c) Headquarters office. A multiple and levels of responsibility. cable operator shall treat as a separate employment unit each headquarters of- § 76.75 Specific EEO program require- ments. fice to the extent the work of that of- fice is primarily related to the oper- Under the terms of its program, an ation of more than one employment employment unit must: unit as described in paragraph (b) of (a) Disseminate its equal employ- this section. ment opportunity program to job appli- cants, employees, and those with whom [50 FR 40855, Oct. 7, 1985, as amended at 58 FR it regularly does business. For exam- 42250, Aug. 9, 1993; 69 FR 72045, Dec. 10, 2004] ple, this requirement may be met by:

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(1) Posting notices in the employ- that distributes information about em- ment unit’s office and places of em- ployment opportunities to job seekers ployment informing employees, and ap- or refers job seekers to employers, plicants for employment, of their equal upon request by such organization. To employment opportunity rights, and be entitled to notice of vacancies, the their right to notify the Equal Employ- requesting organization must provide ment Opportunity Commission, the the multichannel video programming Federal Communications Commission, distributor employment unit with its or other appropriate agency, if they be- name, mailing address, e-mail address lieve they have been discriminated (if applicable), telephone number, and against. Where a significant percentage contact person, and identify the cat- of employees, employment applicants, egory or categories of vacancies of or residents of the community of a which it requests notice. (An organiza- cable television system of the relevant tion may request notice of all vacan- labor area are Hispanic, such notices cies). should be posted in Spanish and (2) Engage in at least two (if the unit English. Similar use should be made of has more than ten full-time employees other languages in such posted equal and is not located in a smaller market) employment opportunity notices, or one (if the unit has six to ten full- where appropriate; time employees and/or is located, in (2) Placing a notice in bold type on whole or in part, in a smaller market) the employment application informing of the following initiatives during each prospective employees that discrimina- twelve-month period preceding the fil- tion because of race, color, religion, ing of an EEO program annual report: national origin, age or sex is prohibited (i) Participation in at least two job and that they may notify the Equal fairs by unit personnel who have sub- Employment Opportunity Commission, stantial responsibility in the making of the Federal Communications Commis- hiring decisions; sion, or other appropriate agency if (ii) Hosting of at least one job fair; they believe they have been discrimi- nated against. (iii) Co-sponsoring at least one job (b) Establish, maintain and carry out fair with organizations in the business a positive continuing program of out- and professional community whose reach activities designed to ensure membership includes substantial par- equal opportunity and nondiscrimina- ticipation of women and minorities; tion in employment. The following ac- (iv) Participation in at least two tivities shall be undertaken by each events sponsored by organizations rep- employment unit: resenting groups present in the com- (1) Recruit for every full-time job va- munity interested in multichannel cancy in its operation. A job filled by video programming distributor em- an internal promotion is not consid- ployment issues, including conven- ered a vacancy for which recruitment tions, career days, workshops, and is necessary. Nothing in this section similar activities; shall be interpreted to require a multi- (v) Establishment of an internship channel video programming distributor program designed to assist members of to grant preferential treatment to any the community in acquiring skills individual or group based on race, na- needed for multichannel video pro- tional origin, color, religion, age, or gramming distributor employment; gender. (vi) Participation in job banks, Inter- (i) An employment unit shall use re- net programs, and other programs de- cruitment sources for each vacancy signed to promote outreach generally sufficient in its reasonable, good faith (i.e., that are not primarily directed to judgment to widely disseminate infor- providing notification of specific job mation concerning the vacancy. vacancies); (ii) In addition to using such recruit- (vii) Participation in a scholarship ment sources, a multichannel video program designed to assist students in- programming distributor employment terested in pursuing a career in multi- unit shall provide notification of each channel video programming commu- full-time vacancy to any organization nications;

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(viii) Establishment of training pro- cifically requested. The following grams designed to enable unit per- records shall be maintained: sonnel to acquire skills that could (1) Listings of all full-time job vacan- qualify them for higher level positions; cies filled by the cable employment (ix) Establishment of a mentoring unit, identified by job title; program for unit personnel; (2) For each such vacancy, the re- (x) Participation in at least two cruitment sources utilized to fill the events or programs sponsored by edu- vacancy (including, if applicable, orga- cational institutions relating to career nizations entitled to notification pur- opportunities in multichannel video suant to paragraph (b)(1)(ii) of this sec- programming communications; tion, which should be separately identi- (xi) Sponsorship of at least one event fied), identified by name, address, con- in the community designed to inform tact person, and telephone number; and educate members of the public as (3) Dated copies of all advertise- to employment opportunities in multi- ments, bulletins, letters, , e- channel video programming commu- mails, or other communications an- nications; nouncing job vacancies; (xii) Listing of each upper-level cat- (4) Documentation necessary to dem- egory opening in a job bank or news- onstrate performance of the initiatives letter of media trade groups whose required by paragraph (b)(2) of this sec- membership includes substantial par- tion, if applicable, including informa- ticipation of women and minorities; tion sufficient to fully disclose the na- (xiii) Provision of assistance to unaf- ture of the initiative and the scope of filiated non-profit entities in the main- the unit’s participation, including the tenance of web sites that provide coun- unit personnel involved; seling on the process of searching for (5) The total number of interviewees multichannel video programming em- for each vacancy and the referral ployment and/or other career develop- sources for each interviewee; and ment assistance pertinent to multi- (6) The date each vacancy was filled channel video programming commu- and the recruitment source that re- nications; ferred the hiree. (xiv) Provision of training to man- (d) Undertake to offer promotions of agement level personnel as to methods minorities and women in a non-dis- of ensuring equal employment oppor- criminatory fashion to positions of tunity and preventing discrimination; greater responsibility. For example, (xv) Provision of training to per- this requirement may be met by: sonnel of unaffiliated non-profit orga- (1) Instructing those who make deci- nizations interested in multichannel sions on placement and promotion that video programming employment oppor- minority employees and females are to tunities that would enable them to bet- be considered without discrimination, ter refer job candidates for multi- and that job areas in which there is lit- channel video programming positions; tle or no minority or female represen- (xvi) Participation in other activities tation should be reviewed to determine reasonably calculated by the unit to whether this results from discrimina- further the goal of disseminating infor- tion; mation as to employment opportuni- (2) Giving minority groups and fe- ties in multichannel video program- male employees equal opportunity for ming to job candidates who might oth- positions which lead to higher posi- erwise be unaware of such opportuni- tions. Inquiring as to the interest and ties. skills of all lower paid employees with (c) Retain records sufficient to docu- respect to any of the higher paid posi- ment that it has satisfied the require- tions, followed by assistance, counsel- ments of paragraphs (b)(1) and (b)(2) of ling, and effective measures to enable this section. Such records, which may employees with interest and potential be maintained in an electronic format, to qualify themselves for such posi- shall be retained for a period of seven tions; years. Such records need not be sub- (3) Providing opportunity to perform mitted to the Commission unless spe- overtime work on a basis that does not

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discriminate against qualified minor- (h) A full-time employee is a perma- ity group or female employees. nent employee whose regular work (e) Encourage minority and female schedule is 30 hours per week or more. entrepreneurs to conduct business with (i) The provisions of paragraphs all parts of its operation. For example, (b)(1)(ii), (b)(2), (c), and (f) of this sec- this requirement may be met by: tion shall not apply to multichannel (1) Recruiting as wide as possible a video programming distributor em- pool of qualified entrepreneurs from ployment units that have fewer than sources such as employee referrals, six full-time employees. community groups, contractors, asso- (j) For the purposes of this rule, a ciations, and other sources likely to be smaller market includes metropolitan representative of minority and female areas as defined by the Office of Man- agement and Budget with a population interests. of fewer than 250,000 persons and areas (f) A multichannel video program- outside of all metropolitan areas as de- ming distributor shall analyze its re- fined by the Office of Management and cruitment program on an ongoing basis Budget. to ensure that it is effective in achiev- ing broad outreach, and address any [50 FR 40855, Oct. 7, 1985, as amended at 65 FR problems found as a result of its anal- 7457, Feb. 15, 2000; 68 FR 691, Jan. 7, 2003] ysis. § 76.77 Reporting requirements and (g) Analyze on an ongoing basis its enforcement. efforts to recruit, hire, promote and use services without discrimination on (a) EEO program annual reports. Infor- the basis of race, national origin, color, mation concerning a unit’s compliance religion, age, or sex and explain any with the EEO recruitment require- difficulties encountered in imple- ments shall be filed by each employ- menting its equal employment oppor- ment unit with six or more full-time tunity program. For example, this re- employees on FCC Form 396–C on or be- quirement may be met by: fore September 30 of each year. If a multichannel video programming dis- (1) Where union agreements exist, co- tributor acquires a unit during the operating with the union or unions in twelve months covered by the EEO pro- the development of programs to ensure gram annual report, the recruitment all persons equal opportunity for em- activity in the report shall cover the ployment, and including an effective period starting with the date the enti- nondiscrimination clause in new or re- ty acquired the unit. negotiated union agreements; (b) Certification of Compliance. The (2) Reviewing seniority practices to Commission will use the recruitment ensure that such practices are non- information submitted on a unit’s EEO discriminatory; program annual report to determine (3) Examining rates of pay and fringe whether the unit is in compliance with benefits for employees having the same the provisions of this subpart. Units duties, and eliminating any inequities found to be in compliance with these based upon race, national origin, color, rules will receive a Certificate of Com- religion, age, or sex discrimination; pliance. Units found not to be in com- (4) Evaluating the recruitment pro- pliance will receive notice that they gram to ensure that it is effective in are not certified for a given year. achieving a broad outreach to potential (c) Investigations. The Commission applicants. will investigate each unit at least once (5) Utilizing media for recruitment every five years. Employment units are purposes in a manner that will contain required to submit supplemental inves- no indication, either explicit or im- tigation information with their regular plicit, of a preference for one race, na- EEO program annual reports in the tional origin, color, religion, age, or years they are investigated. If an enti- sex over another; and ty acquires a unit during the period (6) Avoiding the use of selection tech- covered by the supplemental investiga- niques or tests that have the effect of tion, the information submitted by the discriminating against qualified minor- unit as part of the investigation shall ity groups or women. cover the period starting with the date

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the operator acquired the unit. The Subpart F—Network Non-duplica- supplemental investigation informa- tion Protection, Syndicated tion shall include a copy of the unit’s EEO public file report for the preceding Exclusivity and Sports Black- year. out (d) Records and inquiries. Employment units subject to this subpart shall SOURCE: 65 FR 68101, Nov. 14, 2000, unless maintain records of their recruitment otherwise noted. activity in accordance with § 76.75 to demonstrate whether they are in com- § 76.92 Cable network non-duplication; pliance with the EEO rules. Units shall extent of protection. ensure that they maintain records suf- (a) Upon receiving notification pur- ficient to verify the accuracy of infor- suant to § 76.94, a cable community mation provided in their EEO program unit located in whole or in part within annual reports and the supplemental the geographic zone for a network pro- investigation responses required by gram, the network non-duplication § 76.1702 to be kept in a unit’s public rights to which are held by a commer- file. To determine compliance with the cial television station licensed by the EEO rules, the Commission may con- Commission, shall not carry that pro- duct inquiries of employment units at gram as broadcast by any other tele- random or if the Commission has evi- vision signal, except as otherwise pro- dence of a possible violation of the vided below. EEO rules. Upon request, employment (b) For purposes of this section, the units shall make records available to order of nonduplication priority of tel- the Commission for its review. evision signals carried by a community (e) Public complaints. The public may unit is as follows: file complaints based on EEO program (1) First, all television broadcast sta- annual reports, supplemental inves- tions within whose specified zone the tigation information, or the contents community of the community unit is of a unit’s public file. located, in whole or in part; (f) Sanctions and remedies. The Com- (2) Second, all smaller market tele- mission may issue appropriate sanc- tions and remedies for any violation of vision broadcast stations within whose the EEO rules. secondary zone the community of the community unit is located, in whole or [68 FR 692, Jan. 7, 2003] in part. (c) For purposes of this section, all § 76.79 Records available for public in- noncommercial educational television spection. broadcast stations licensed to a com- A copy of every annual employment munity located in whole or in part report, and any other employment re- within a major television market as port filed with the Commission, and specified in § 76.51 shall be treated in complaint report that has been filed the same manner as a major market with the Commission, and copies of all commercial television broadcast sta- exhibits, letters, and other documents tion, and all noncommercial edu- filed as part thereof, all amendments cational television broadcast stations thereto, all correspondence between not licensed to a community located in the cable entity and the Commission whole or in part within a major tele- pertaining to the reports after they vision market shall be treated in the have been filed in all documents incor- same manner as a smaller market tele- porated therein by reference, unless vision broadcast station. specifically exempted from the require- (d) Any community unit operating in ment, are open for public inspection at a community to which a 100-watt or the offices of the Commission in Wash- higher power translator is located ington, DC. within the predicted Grade B signal NOTE TO § 76.59: Cable operators must also contour of the television broadcast sta- comply with the public file requirements tion that the translator station re- § 76.1702. transmits, and which translator is car- [65 FR 7459, Feb. 15, 2000] ried by the community unit shall, upon

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request of such translator station li- vision stations shall notify each cable censee or permittee, delete the dupli- television system operator of the non- cating network programming of any duplication sought in accordance with television broadcast station whose ref- the requirements of this section. Ex- erence point (See § 76.53) is more than cept as otherwise provided in para- 88.5 km (55 miles) from the community graph (b) of this section, non-duplica- of the community unit. tion protection notices shall include (e) Any community unit which oper- the following information: ates in a community located in whole (1) The name and address of the party or in part within the secondary zone of requesting non-duplication protection a smaller market television broadcast and the television broadcast station station is not required to delete the du- holding the non-duplication right; plicating network programming of any (2) The name of the program or series major market television broadcast sta- (including specific episodes where nec- tion whose reference point (See § 76.53) essary) for which protection is sought; is also within 88.5 km (55 miles) of the and community of the community unit. (f) A community unit is not required (3) The dates on which protection is to delete the duplicating network pro- to begin and end. gramming of any television broadcast (b) Broadcasters entering into con- station which is significantly viewed in tracts providing for network non-dupli- the cable television community pursu- cation protection shall notify affected ant to § 76.54. cable systems within 60 calendar days (g) A community unit is not required of the signing of such a contract. In the to delete the duplicating network pro- event the broadcaster is unable based gramming of any qualified NCE tele- on the information contained in the vision broadcast station that is carried contract, to furnish all the information in fulfillment of the cable television required by paragraph (a) of this sec- system’s mandatory signal carriage ob- tion at that time, the broadcaster must ligations, pursuant to § 76.56. provide modified notices that contain the following information: NOTE: With respect to network program- ming, the geographic zone within which the (1) The name of the network (or net- television station is entitled to enforce net- works) which has (or have) extended work non-duplication protection and priority non-duplication protection to the of shall be that geographic area agreed upon broadcaster; between the network and the television sta- (2) The time periods by time of day tion. In no event shall such rights exceed the (local time) and by network (if more area within which the television station may than one) for each day of the week that acquire broadcast territorial exclusivity rights as defined in § 73.658(m) of this Chap- the broadcaster will be broadcasting ter, except that small market television sta- programs from that network (or net- tions shall be entitled to a secondary protec- works) and for which non-duplication tion zone of 32.2 additional kilometers (20 ad- protection is requested; and ditional miles). To the extent rights are ob- (3) The duration and extent (e.g., si- tained for any hyphenated market named in multaneous, same-day, seven-day, etc.) § 76.51, such rights shall not exceed those per- mitted under § 73.658(m) of this Chapter for of the non-duplication protection each named community in that market. which has been agreed upon by the net- work (or networks) and the broad- § 76.93 Parties entitled to network caster. non-duplication protection. (c) Except as otherwise provided in Television broadcast station licens- paragraph (d) of this section, a broad- ees shall be entitled to exercise non-du- caster shall be entitled to non-duplica- plication rights pursuant to § 76.92 in tion protection beginning on the later accordance with the contractual provi- of: sions of the network-affiliate agree- (1) The date specified in its notice (as ment. described in paragraphs (a) or (b) of this section, whichever is applicable) § 76.94 Notification. to the cable television system; or (a) In order to exercise non-duplica- (2) The first day of the calendar week tion rights pursuant to § 76.92, tele- (Sunday through Saturday) that begins

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60 days after the cable television sys- (3) The broadcaster requesting exclu- tem receives notice from the broad- sivity. caster. (f) A broadcaster exercising exclu- (d) A broadcaster shall provide the sivity pursuant to § 76.92 shall provide following information to the cable tele- to the cable system, upon request, an vision system under the following cir- exact copy of those portions of the con- cumstances: tracts, such portions to be signed by (1) In the event the protection speci- both the network and the broadcaster, fied in the notices described in para- setting forth in full the provisions per- graphs (a) or (b) of this section has tinent to the duration, nature, and ex- been limited or ended prior to the time tent of the non-duplication terms con- specified in the notice, or in the event cerning broadcast signal exhibition to a time period, as identified to the cable which the parties have agreed. system in a notice pursuant to para- § 76.95 Exceptions. graph (b) of this section, for which a broadcaster has obtained protection is (a) The provisions of §§ 76.92 through shifted to another time of day or an- 76.94 shall not apply to a cable system other day (but not expanded), the serving fewer than 1,000 subscribers. Within 60 days following the provision broadcaster shall, as soon as possible, of service to 1,000 subscribers, the oper- inform each cable television system op- ator of each such system shall file a erator that has previously received the notice to that effect with the Commis- notice of all changes from the original sion, and serve a copy of that notice on notice. Notice to be furnished ‘‘as soon every television station that would be as possible’’ under this paragraph shall entitled to exercise network non-dupli- be furnished by telephone, telegraph, cation protection against it. facsimile, overnight mail or other (b) Network non-duplication protec- similar expedient means. tion need not be extended to a higher (2) In the event the protection speci- priority station for one hour following fied in the modified notices described the scheduled time of completion of in paragraph (b) of this section has the broadcast of a live sports event by been expanded, the broadcaster shall, that station or by a lower priority sta- at least 60 calendar days prior to tion against which a cable community broadcast of a protected program enti- unit would otherwise be required to tled to such expanded protection, no- provide non-duplication protection fol- tify each cable system operator that lowing the scheduled time of comple- has previously received notice of all tion. changes from the original notice. (e) In determining which programs § 76.101 Cable syndicated program ex- must be deleted from a television sig- clusivity: extent of protection. nal, a cable television system operator Upon receiving notification pursuant may rely on information from any of to § 76.105, a cable community unit lo- the following sources published or oth- cated in whole or in part within the ge- erwise made available: ographic zone for a syndicated pro- (1) Newspapers or magazines of gen- gram, the syndicated exclusivity rights eral circulation. to which are held by a commercial tel- (2) A television station whose pro- evision station licensed by the Com- grams may be subject to deletion. If a mission, shall not carry that program cable television system asks a tele- as broadcast by any other television vision station for information about its signal, except as otherwise provided program schedule, the television sta- below. tion shall answer the request: NOTE: With respect to each syndicated pro- (i) Within ten business days following gram, the geographic zone within which the the television station’s receipt of the television station is entitled to enforce syn- request; or dicated exclusivity rights shall be that geo- graphic area agreed upon between the non- (ii) Sixty days before the program or network program supplier, producer or dis- programs mentioned in the request for tributor and the television station. In no information will be broadcast; which- event shall such zone exceed the area within ever comes later. which the television station has acquired

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broadcast territorial exclusivity rights as 60 days after the cable television sys- defined in § 73.658(m) of this Chapter. To the tem receives notice from the broad- extent rights are obtained for any hyphen- caster; ated market named in § 76.51, such rights shall not exceed those permitted under (c) In determining which programs § 73.658(m) of this Chapter for each named must be deleted from a television community in that market. broadcast signal, a cable television sys- tem operator may rely on information § 76.103 Parties entitled to syndicated from any of the following sources pub- exclusivity. lished or otherwise made available. (a) Television broadcast station li- (1) Newspapers or magazines of gen- censees shall be entitled to exercise ex- eral circulation; clusivity rights pursuant to § 76.101 in (2) A television station whose pro- accordance with the contractual provi- grams may be subject to deletion. If a sions of their syndicated program li- cable television system asks a tele- cense agreements, consistent with vision station for information about its § 76.109. program schedule, the television sta- (b) Distributors of syndicated pro- tion shall answer the request: gramming shall be entitled to exercise (i) Within ten business days following exclusive rights pursuant to § 76.101 for the television station’s receipt of the a period of one year from the initial request; or licensing of such (ii) Sixty days before the program or programming anywhere in the United programs mentioned in the request for States; provided, however, that dis- information will be broadcast; which- tributors shall not be entitled to exer- ever comes later. cise such rights in areas in which the (3) The distributor or television sta- programming has already been li- tion requesting exclusivity. censed. (d) In the event the exclusivity speci- fied in paragraph (a) of this section has § 76.105 Notification. been limited or has ended prior to the (a) In order to exercise exclusivity time specified in the notice, the dis- rights pursuant to § 76.101, distributors tributor or broadcaster who has sup- or television stations shall notify each plied the original notice shall, as soon cable television system operator of the as possible, inform each cable tele- exclusivity sought in accordance with vision system operator that has pre- the requirements of this section. Syn- viously received the notice of all dicated program exclusivity notices changes from the original notice. In shall include the following informa- the event the original notice specified tion: contingent dates on which exclusivity (1) The name and address of the party is to begin and/or end, the distributor requesting exclusivity and the tele- or broadcaster shall, as soon as pos- vision broadcast station or other party sible, notify the cable television sys- holding the exclusive right; tem operator of the occurrence of the (2) The name of the program or series relevant contingency. Notice to be fur- (including specific episodes where nec- nished ‘‘as soon as possible’’ under this essary) for which exclusivity is sought; paragraph shall be furnished by tele- (3) The dates on which exclusivity is phone, telegraph, facsimile, overnight to begin and end. mail or other similar expedient means. (b): Broadcasters entering into con- tracts which contain syndicated exclu- [65 FR 68101, Nov. 14, 2000, as amended at 83 sivity protection shall notify affected FR 7627, Feb. 22, 2018] cable systems within sixty calendar days of the signing of such a contract. § 76.106 Exceptions. A broadcaster shall be entitled to ex- (a) Notwithstanding the require- clusivity protection beginning on the ments of §§ 76.101 through 76.105, a later of: broadcast signal is not required to be (1) The date specified in its notice to deleted from a cable community unit the cable television system; or when that cable community unit falls, (2) The first day of the calendar week in whole or in part, within that signal’s (Sunday through Saturday) that begins grade B contour, or when the signal is

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significantly viewed pursuant to § 76.54 censee’s authority to exercise exclu- in the cable community. sivity rights as to the specific pro- (b) The provisions of §§ 76.101 through gramming against cable television 76.105 shall not apply to a cable system broadcast signal carriage by the cable serving fewer than 1,000 subscribers. system in question upon the contin- Within 60 days following the provision gency that the government reimposed of service to 1,000 subscribers, the oper- syndicated exclusivity protection. In ator of each such system shall file a the absence of such a specific reference notice to that effect with the Commis- in contracts entered into prior to Au- sion, and serve a copy of that notice on gust 18, 1988, the provisions of these every television station that would be rules may be invoked only if the con- entitled to exercise syndicated exclu- tract is amended to include the specific sivity protection against it. language referenced in this section or a specific written acknowledgment is ob- § 76.107 Exclusivity contracts. tained from the party from whom the A distributor or television station ex- broadcast exhibition rights were ob- ercising exclusivity pursuant to § 76.101 tained that the existing contract was shall provide to the cable system, upon intended, or should now be construed request, an exact copy of those por- by agreement of the parties, to include tions of the exclusivity contracts, such such rights. A general acknowledgment portions to be signed by both the dis- by a supplier of exhibition rights that tributor and the television station, set- specific contract language was in- ting forth in full the provisions perti- tended to convey rights under these nent to the duration, nature, and ex- rules will be accepted with respect to tent of the exclusivity terms con- all contracts containing that specific cerning broadcast signal exhibition to language. Nothing in this section shall which the parties have agreed. be construed as a grant of exclusive rights to a broadcaster where such § 76.108 Indemnification contracts. rights are not agreed to by the parties. No licensee shall enter into any con- tract to indemnify a cable system for § 76.110 Substitutions. liability resulting from failure to de- Whenever, pursuant to the require- lete programming in accordance with ments of the syndicated exclusivity the provisions of this subpart unless rules, a community unit is required to the licensee has a reasonable basis for delete a television program on a broad- concluding that such program deletion cast signal that is permitted to be car- is not required by this subpart. ried under the Commission’s rules, such community unit may, consistent § 76.109 Requirements for invocation with these rules, substitute a program of protection. from any other television broadcast For a station licensee to be eligible station. Programs substituted pursu- to invoke the provisions of § 76.101, it ant to this section may be carried to must have a contract or other written their completion. indicia that it holds syndicated exclu- [65 FR 68101, Nov. 14, 2000, as amended at 79 sivity rights for the exhibition of the FR 63562, Oct. 24, 2014] program in question. Contracts entered on or after August 18, 1988, must con- § 76.120 Network non-duplication pro- tain the following words: ‘‘the licensee tection and syndicated exclusivity [or substitute name] shall, by the rules for satellite carriers: Defini- terms of this contract, be entitled to tions. invoke the protection against duplica- For purposes of §§ 76.122–76.130, the tion of programming imported under following definitions apply: the Compulsory Copyright License, as (a) Satellite carrier. The term ‘‘sat- provided in § 76.101 of the FCC rules [or ellite carrier’’ means an entity that ‘as provided in the FCC’s syndicated uses the facilities of a satellite or sat- exclusivity rules’].’’ Contracts entered ellite service licensed by the Federal into prior to August 18, 1988, must con- Communications Commission and oper- tain either the foregoing language or a ates in the Fixed-Satellite Service clear and specific reference to the li- under part 25 of title 47 of the Code of

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Federal Regulations or the Direct the signal of the Alaska Rural Commu- Broadcast Satellite Service under part nications Service, or any successor en- 100 of title 47 of the Code of Federal tity to that service. Regulations, to establish and operate a (e) Zone of protection. The term ‘‘zone channel of communications for point- of protection’’ means— to-multipoint distribution of television (1) With respect to network non-du- station signals, and that owns or leases plication, the zone of protection within a capacity or service on a satellite in which the television station is entitled order to provide such point-to- to enforce network non-duplication multipoint distribution, except to the protection shall be that geographic extent that such entity provides such area agreed upon between the network distribution pursuant to tariff under and the television station. In no event the Communications Act of 1934, other shall such rights exceed the area with- than for private home viewing. in which the television station may ac- (b) Nationally distributed superstation. quire broadcast territorial exclusivity The term ‘‘nationally distributed rights as defined in § 73.658(m) of this superstation’’ means a television Chapter, except that small market tel- broadcast station, licensed by the Com- evision stations shall be entitled to a mission, that— secondary protection zone of 32.2 addi- (1) Is not owned or operated by or af- tional kilometers (20 additional miles). filiated with a television network that, To the extent rights are obtained for as of January 1, 1995, offered inter- any hyphenated market named in connected program service on a regular § 76.51, such rights shall not exceed basis for 15 or more hours per week to those permitted under § 73.658(m) of at least 25 affiliated television licens- this Chapter for each named commu- ees in 10 or more States; nity in that market. (2) On May 1, 1991, was retransmitted (2) With respect to each syndicated by a satellite carrier and was not a net- program, the zone of protection within work station at that time; and which the television station is entitled (3) Was, as of July 1, 1998, retrans- to enforce syndicated exclusivity mitted by a satellite carrier under the rights shall be that geographic area statutory license of Section 119 of title agreed upon between the non-network 17, United States Code. program supplier, producer or dis- (c) Television network. The term ‘‘tel- tributor and the television station. In evision network’’ means a television no event shall such zone exceed the network in the United States which of- area within which the television sta- fers an interconnected program service tion has acquired broadcast territorial on a regular basis for 15 or more hours exclusivity rights as defined in per week to at least 25 affiliated broad- § 73.658(m) of this Chapter. To the ex- cast stations in 10 or more States. tent rights are obtained for any hy- (d) Network station. The term ‘‘net- phenated market named in § 76.51, such work station’’ means— rights shall not exceed those permitted (1) A television broadcast station, in- under § 73.658(m) of this chapter for cluding any translator station or ter- each named community in that mar- restrial satellite station that rebroad- ket. casts all or substantially all of the pro- [65 FR 68101, Nov. 14, 2000, as amended at 79 gramming broadcast by a network sta- FR 63562, Oct. 24, 2014] tion, that is owned or operated by, or affiliated with, one or more of the tele- § 76.122 Satellite network non-duplica- vision networks in the United States tion. which offer an interconnected program (a) Upon receiving notification pur- service on a regular basis for 15 or suant to paragraph (c) of this section, a more hours per week to at least 25 of satellite carrier shall not deliver, to its affiliated television licensees in 10 subscribers within zip code areas lo- or more States; or cated in whole or in part within the (2) A noncommercial educational zone of protection of a commercial tel- broadcast station (as defined in Section evision station licensed by the Com- 397 of the Communications Act of 1934); mission, a program carried on a nation- except that the term does not include ally distributed superstation or on a

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station carried pursuant to § 76.54 of the broadcaster may provide notice on this chapter when the network non-du- or before January 31, 2001, or with re- plication rights to such program are spect to pre-November 29, 2000 con- held by the commercial television sta- tracts that require amendment in order tion providing notice, except as pro- to invoke the provisions of these rules, vided in paragraphs (j), (k) or (l) of this notification may be given within sixty section. calendar days of the signing of such (b) Television broadcast station li- amendment. censees shall be entitled to exercise (e) Except as otherwise provided in non-duplication rights pursuant to this section, a broadcaster shall be en- § 76.122 in accordance with the contrac- titled to non-duplication protection be- tual provisions of the network-affiliate ginning on the later of: agreement, and as provided in § 76.124. (1) The date specified in its notice to (c) In order to exercise non-duplica- the satellite carrier; or tion rights pursuant to § 76.122, tele- (2) The first day of the calendar week vision stations shall notify each sat- (Sunday through Saturday) that begins ellite carrier of the non-duplication 60 days after the satellite carrier re- sought in accordance with the require- ceives notice from the broadcaster; ments of this section. Non-duplication Provided, however, that with respect to protection notices shall include the fol- notifications given pursuant to this lowing information: section prior to June 1, 2001, a satellite (1) The name and address of the party carrier is not required to provide non- requesting non-duplication protection duplication protection until 120 days and the television broadcast station after the satellite carrier receives such holding the non-duplication right; notification. (2) Where the agreement between net- (f) A broadcaster shall provide the work and affiliate so identifies, the following information to the satellite name of the program or series (includ- carrier under the following cir- ing specific episodes where necessary) cumstances: for which protection is sought; (1) In the event the protection speci- (3) The dates on which protection is fied in the notices described in para- to begin and end; graph (c) of this section has been lim- (4) The name of the network (or net- ited or ended prior to the time speci- works) which has (or have) extended fied in the notice, or in the event a non-duplication protection to the time period, as identified to the sat- broadcaster; ellite carrier in a notice pursuant to (5) The time periods by time of day paragraph (c) of this section, for which (local time) and by network (if more a broadcaster has obtained protection than one) for each day of the week that is shifted to another time of day or an- the broadcaster will be broadcasting other day (but not expanded), the programs from that network (or net- broadcaster shall, as soon as possible, works) and for which non-duplication inform each satellite carrier that has protection is requested; previously received the notice of all (6) The duration and extent (e.g., si- changes from the original notice. No- multaneous, same-day, seven-day, etc.) tice to be furnished ‘‘as soon as pos- of the non-duplication protection sible’’ under this paragraph shall be which has been agreed upon by the net- furnished by telephone, telegraph, fac- work (or networks) and the broad- simile, e-mail, overnight mail or other caster; and similar expedient means. (7) A list of the U.S. postal zip code(s) (2) In the event the protection speci- that encompass the zone of protection fied in the notices described in para- under these rules. graph (c) of this section has been ex- (d) Broadcasters entering into con- panded, the broadcaster shall, at least tracts providing for network non-dupli- 60 calendar days prior to broadcast of a cation protection shall notify affected protected program entitled to such ex- satellite carriers within 60 calendar panded protection, notify each satellite days of the signing of such a contract; carrier that has previously received no- provided, however, that for such con- tice of all changes from the original tracts signed before November 29, 2000, notice.

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(g) In determining which programs by the broadcaster pursuant to para- must be deleted from a television sig- graph (c) of this section. nal, a satellite carrier may rely on in- (l) A satellite carrier is not required formation from newspapers or maga- to delete programming if it has fewer zines of general circulation, the broad- than 1,000 subscribers within the rel- caster requesting exclusivity protec- evant protected zone who subscribe to tion, or the nationally distributed the nationally distributed superstation superstation. carrying the programming for which (h) If a satellite carrier asks a na- deletion is requested pursuant to para- tionally distributed superstation for graph (c) of this section. information about its program sched- [65 FR 68101, Nov. 14, 2000, as amended at 67 ule, the nationally distributed super- FR 68951, Nov. 14, 2002; 70 FR 76530, Dec. 27, station shall answer the request: 2005] (i) Within ten business days following its receipt of the request; or § 76.123 Satellite syndicated program (ii) Sixty days before the program or exclusivity. programs mentioned in the request for (a) Upon receiving notification pur- information will be broadcast, which- suant to paragraph (d) of this section, ever comes later. a satellite carrier shall not deliver, to (i) A broadcaster exercising exclu- subscribers located within zip code sivity pursuant to this section shall areas in whole or in part within the provide to the satellite carrier, upon zone of protection of a commercial tel- request, an exact copy of those por- evision station licensed by the Com- tions of the contracts, such portions to mission, a program carried on a nation- be signed by both the network and the ally distributed superstation or on a broadcaster, setting forth in full the station carried pursuant to § 76.54 of provisions pertinent to the duration, this chapter when the syndicated pro- nature, and extent of the non-duplica- gram exclusivity rights to such pro- tion terms concerning broadcast signal gram are held by the commercial tele- exhibition to which the parties have vision station providing notice, except agreed. as provided in paragraphs (k), (l) and (j) A satellite carrier is not required (m) of this section. to delete the duplicating programming (b) Television broadcast station li- of any nationally distributed supersta- censees shall be entitled to exercise ex- tion that is carried by the satellite car- clusivity rights pursuant to this Sec- rier as a local station pursuant to tion in accordance with the contrac- § 76.66 of this chapter or as a signifi- tual provisions of their syndicated pro- cantly viewed station pursuant to gram license agreements, consistent § 76.54 of this chapter with § 76.124. (1) Within the station’s local market; (c) Distributors of syndicated pro- (2) If the station is ‘‘significantly gramming shall be entitled to exercise viewed,’’ pursuant to § 76.54 of this exclusive rights pursuant to this Sec- chapter, in zip code areas included tion for a period of one year from the within the zone of protection unless a initial broadcast syndication licensing waiver of the significantly viewed ex- of such programming anywhere in the ception is granted pursuant to § 76.7 of United States; provided, however, that this chapter; or distributors shall not be entitled to ex- (3) If the zone of protection falls, in ercise such rights in areas in which the whole or in part, within that signal’s programming has already been li- grade B contour or noise limited serv- censed. ice contour. (d) In order to exercise exclusivity (k) A satellite carrier is not required rights pursuant to this Section, dis- to delete the duplicating programming tributors of syndicated programming of any nationally distributed supersta- or television broadcast stations shall tion from an individual subscriber who notify each satellite carrier of the ex- is located outside the zone of protec- clusivity sought in accordance with the tion, notwithstanding that the sub- requirements of this paragraph. Syn- scriber lives within a zip code provided dicated program exclusivity notices

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shall include the following informa- section prior to June 1, 2001, a satellite tion: carrier is not required to provide syn- (1) The name and address of the party dicated exclusivity protection until 120 requesting exclusivity and the tele- days after the satellite carrier receives vision broadcast station or other party such notification. holding the exclusive right; (h) In determining which programs (2) The name of the program or series must be deleted from a television (including specific episodes where nec- broadcast signal, a satellite carrier essary) for which exclusivity is sought; may rely on information from the dis- (3) The dates on which exclusivity is tributor or television broadcast station to begin and end; and requesting exclusivity; newspapers or (4) A list of the U.S. postal zip code(s) magazines of general circulation; or that encompass the zone of protection the nationally distributed superstation under these rules. whose programs may be subject to de- (e) A distributor or television station letion. exercising exclusivity pursuant to this (i) If a satellite carrier asks a nation- Section shall provide to the satellite ally distributed superstation for infor- carrier, upon request, an exact copy of mation about its program schedule, the those portions of the exclusivity con- nationally distributed superstation tracts, such portions to be signed by shall answer the request: both the distributor and the television (1) Within ten business days fol- station, setting forth in full the provi- lowing the its receipt of the request; or sions pertinent to the duration, nature, (2) Sixty days before the program or and extent of the exclusivity terms programs mentioned in the request for concerning broadcast signal exhibition information will be broadcast; which- to which the parties have agreed. ever comes later. (f) Television broadcast stations or (j) In the event the exclusivity speci- distributors entering into contracts on fied in paragraph (a) of this section has or after November 29, 2000, which con- been limited or has ended prior to the tain syndicated exclusivity protection time specified in the notice, the dis- with respect to satellite retransmission tributor or broadcaster who has sup- of programming, shall notify affected plied the original notice shall, as soon satellite carriers within sixty calendar as possible, inform each satellite car- days of the signing of such a contract. rier that has previously received the Television broadcast stations or dis- notice of all changes from the original tributors who have entered into con- notice. In the event the original notice tracts prior to November 29, 2000, and specified contingent dates on which ex- who comply with the requirements clusivity is to begin and/or end, the dis- specified in § 76.124 shall notify affected tributor or broadcaster shall, as soon satellite carriers on or before January as possible, notify the satellite carrier 31, 2001; provided, however, that with of the occurrence of the relevant con- respect to pre-November 29, 2000 con- tingency. Notice to be furnished ‘‘as tracts that require amendment in order soon as possible’’ under this Subsection to invoke the provisions of these rules, shall be furnished by telephone, tele- notification may be given within sixty graph, facsimile, e-mail, overnight calendar days of the signing of such mail or other similar expedient means. amendment. (k) A satellite carrier is not required (g) Except as otherwise provided in to delete the programming of any na- this section, a television broadcast sta- tionally distributed superstation that tion shall be entitled to exclusivity is carried by the satellite carrier as a protection beginning on the later of: local station pursuant to § 76.66 of this (1) The date specified in its notice to chapter or as a significantly viewed the satellite carrier; or station pursuant to § 76.54 of this chap- (2) The first day of the calendar week ter: (Sunday through Saturday) that begins (1) Within the station’s local market; 60 days after the satellite carrier re- (2) If the station is ‘‘significantly ceives notice from the broadcaster. viewed,’’ pursuant to § 76.54 of this Provided, however, that with respect chapter, in zip code areas included to notifications given pursuant to this within the zone of protection unless a

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waiver of the significantly viewed ex- specific reference in contracts entered ception is granted pursuant to § 76.7 of into prior to November 29, 2000, the this chapter; or provisions of these rules may be in- (3) If the zone of protection falls, in voked only if the contract is amended whole or in part, within that signal’s to include the specific language ref- grade B contour or noise limited serv- erenced in this section or a specific ice contour. written acknowledgment is obtained (l) A satellite carrier is not required from the party from whom the broad- to delete the duplicating programming cast exhibition rights were obtained of any nationally distributed supersta- that the existing contract was in- tion from an individual subscriber who is located outside the zone of protec- tended, or should now be construed by tion, notwithstanding that the sub- agreement of the parties, to include scriber lives within a zip code provided such rights. A general acknowledgment by the broadcaster pursuant to para- by a supplier of exhibition rights that graph (d) of this section. specific contract language was in- (m) A satellite carrier is not required tended to convey rights under these to delete programming if it has fewer rules will be accepted with respect to than 1,000 subscribers within the rel- all contracts containing that specific evant protected zone who subscribe to language. Nothing in this section shall the nationally distributed superstation be construed as a grant of exclusive carrying the programming for which rights to a broadcaster where such deletion is requested pursuant to para- rights are not agreed to by the parties. graph (d) of this section. [65 FR 68101, Nov. 14, 2000, as amended at 70 § 76.125 Indemnification contracts. FR 76530, Dec. 27, 2005] No television broadcast station li- censee shall enter into any contract to § 76.124 Requirements for invocation of protection. indemnify a satellite carrier for liabil- ity resulting from failure to delete pro- For a television broadcast station li- gramming in accordance with the pro- censee or distributor of syndicated pro- visions of this subpart unless the li- gramming to be eligible to invoke the censee has a reasonable basis for con- provisions of § 76.122 or § 76.123 of this cluding that such program deletion is subpart, it must have a contract or other written indicia that it holds net- not required by this Subpart. work program non-duplication or syn- § 76.130 Substitutions. dicated exclusivity rights for the exhi- bition of the program in question. Con- Whenever, pursuant to the require- tracts entered on or after November 29, ments of the network program non-du- 2000, must contain the following words: plication or syndicated program exclu- ‘‘the licensee [or substitute name] sivity rules, a satellite carrier is re- shall, by the terms of this contract, be quired to delete a television program entitled to invoke the protection from retransmission to satellite sub- against duplication of programming scribers within a zip code area, such imported under the Statutory Copy- satellite carrier may, consistent with right License, as provided in § 76.122 or this subpart, substitute a program § 76.123 of the FCC rules [or ’as provided from any other television broadcast in the FCC’s satellite network non-du- station for which the satellite carrier plication or syndicated exclusivity has obtained the necessary legal rights rules’].’’ Contracts entered into prior and permissions, including but not lim- to November 29, 2000, must contain the ited to copyright and retransmission foregoing language plus a clear and consent. Programs substituted pursu- specific reference to the licensee’s au- ant to this section may be carried to thority to exercise exclusivity rights as to the specific programming against their completion. signal carriage by the satellite carrier [65 FR 68101, Nov. 14, 2000, as amended at 79 in question, or by satellite carriage in FR 63562, Oct. 24, 2014] general in a protected, geographic or specified zone. In the absence of such a

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Subpart G—Cablecasting for public office, no system shall make any discrimination between candidates § 76.205 Origination cablecasts by le- in practices, regulations, facilities, or gally qualified candidates for public services for or in connection with the office; equal opportunities. service rendered pursuant to this part, (a) General requirements. No cable tel- or make or give any preference to any evision system is required to permit candidate for public office or subject the use of its facilities by any legally any such candidate to any prejudice or qualified candidate for public office, disadvantage; nor shall any system but if any system shall permit any make any contract or other agreement such candidate to use its facilities, it which shall have the effect of permit- shall afford equal opportunities to all ting any legally qualified candidate for other candidates for that office to use any public office to cablecast to the ex- such facilities. Such system shall have clusion of other legally qualified can- no power of censorship over the mate- didates for the same public office. rial broadcast by any such candidate. [57 FR 210, Jan. 3, 1992, as amended at 59 FR Appearance by a legally qualified can- 14568, Mar. 29, 1994] didate on any: (1) Bona fide newscast; § 76.206 Candidate rates. (2) Bona fide news interview; (a) Charges for use of cable television (3) Bona fide news documentary (if systems. The charges, if any, made for the appearance of the candidate is inci- the use of any system by any person dental to the presentation of the sub- who is a legally qualified candidate for ject or subjects covered by the news any public office in connection with his documentary); or or her campaign for nomination for (4) On-the-spot coverage of bona fide election, or election, to such office news events (including, but not limited shall not exceed: to political conventions and activities (1) During the 45 days preceding the incidental thereto) shall not be deemed date of a primary or primary runoff to be use of a system. (section 315(a) of election and during the 60 days pre- the Communications Act.) ceding the date of a general or special (b) Uses. As used in this section and election in which such person is a can- § 76.206, the term ‘‘use’’ means a can- didate, the lowest unit charge of the didate appearance (including by voice system for the same class and amount or picture) that is not exempt under of time for the same period. paragraphs 76.205 (a)(1) through (a)(4) of (i) A candidate shall be charged no this section. more per unit than the system charges (c) Timing of request. A request for its most favored commercial adver- equal opportunities must be submitted tisers for the same classes and amounts to the system within 1 week of the day of time for the same periods. Any sys- on which the first prior use giving rise tem practices offered to commercial to the right of equal opportunities oc- advertisers that enhance the value of curred: Provided, however, That where advertising 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 adver- he or she has become a legally quali- tising, such as bonus spots, time-sen- fied candidate for the office in ques- sitive make goods, preemption prior- tion. ities, or any other factors that enhance (d) Burden of proof. A candidate re- the 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

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are based on one or more demonstrable requires that candidates receive re- benefits associated with each class and bates or credits. Where necessary, sys- are not based solely upon price or iden- tems shall issue such rebates or credits tity of the advertiser. Such demon- promptly. strable benefits include, but are not (x) Unit rates charged as part of any limited to, varying levels of preemp- package, whether individually nego- tion protection, scheduling flexibility, tiated or generally available to all ad- or associated privileges, such as guar- vertisers, must be included in the low- anteed time-sensitive make goods. Sys- est unit charge calculation for the tems may not use class distinctions to same class and length of time in the defeat the purpose of the lowest unit same time period. A candidate cannot charge requirement. All classes must be required to purchase advertising in be fully disclosed and made available to candidates. every program or daypart in a package (iv) Systems may establish reason- as a condition for obtaining package able classes of preemptible with notice unit rates. time so long as they clearly define all (xi) Systems are not required to in- such classes, fully disclose them and clude non-cash promotional merchan- make them available to candidates. dising incentives in lowest unit charge (v) Systems may treat non- calculations; provided, however, that preemptible and fixed position as dis- all such incentives must be offered to tinct classes of time provided that sys- candidates as part of any purchases tems articulate clearly the differences permitted by the system. Bonus spots, between such classes, fully disclose however, must be included in the cal- them, and make them available to can- culation of the lowest unit charge cal- didates. culation. (vi) Systems shall not establish a (xii) Make goods, defined as the re- separate, premium-priced class of time scheduling of preempted advertising, sold only to candidates. Systems may shall be provided to candidates prior to sell higher-priced non-preemptible or election day if a system has provided a fixed time to candidates if such a class time-sensitive make good during the of time is made available on a bona fide year preceding the pre-election periods, basis to both candidates and commer- respectively set forth in paragraph cial advertisers, and provided such (a)(1) of this section, to any commer- class is not functionally equivalent to any lower-priced class of time sold to cial advertiser who purchased time in commercial advertisers. the same class. (vii) [Reserved] (xiii) Systems must disclose and (viii) Lowest unit charge may be cal- make available to candidates any culated on a weekly basis with respect make good policies provided to com- to time that is sold on a weekly basis, mercial advertisers. If a system places such as rotations through particular a make good for any commercial adver- programs or dayparts. Systems elect- tiser or other candidate in a more valu- ing to calculate the lowest unit charge able program or daypart, the value of by such a method must include in that such make good must be included in calculation all rates for all announce- the calculation of the lowest unit ments scheduled in the rotation, in- charge for that program or daypart. cluding announcements aired under (2) At any time other than the re- long-term advertising contracts. Sys- spective periods set forth in paragraph tems may implement rate increases (a)(1) of this section, systems may during election periods only to the ex- charge legally qualified candidates for tent that such increases constitute public office no more than the charges ‘‘ordinary business practices,’’ such as made for comparable use of the system seasonal program changes or changes by commercial advertisers. The rates, in audience ratings. if any, charged all such candidates for (ix) Systems shall review their adver- tising records periodically throughout the same office shall be uniform and the election period to determine shall not be rebated by any means, di- whether compliance with this section rect or indirect. A candidate shall be

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charged no more than the rate the sys- ally sell time to candidates in accord- tem would charge for comparable com- ance with the disclosure. mercial advertising. All discount privi- [57 FR 210, Jan. 3, 1992, as amended at 57 FR leges otherwise offered by a system to 27709, June 22, 1992; 65 FR 53615, Sept. 5, 2000] commercial advertisers must be dis- closed and made available upon equal § 76.213 Lotteries. terms to all candidates for public of- fice. (a) No cable television system oper- (b) If a system permits a candidate to ator, except as in paragraph (c), when use its cablecast facilities, the system engaged in origination cablecasting shall make all discount privileges of- shall transmit or permit to be trans- fered to commercial advertisers, in- mitted on the origination cablecasting cluding the lowest unit charges for channel or channels any advertisement each class and length of time in the of or information concerning any lot- same time period and all corresponding tery, gift, enterprise, or similar discount privileges, available on equal scheme, offering prizes dependent in terms to all candidates. This duty in- whole or in part upon lot or chance, or cludes an affirmative duty to disclose any list of prizes drawn or awarded by to candidates information about rates, means of any such lottery, gift enter- terms, conditions and all value-enhanc- prise, or scheme, whether said list con- ing discount privileges offered to com- tains any part or all of such prizes. mercial advertisers, as provided in (b) The determination whether a par- § 76.1611. Systems may use reasonable ticular program comes within the pro- discretion in making the disclosure; visions of paragraph (a) of this section provided, however, that the disclosure depends on the facts of each case. How- includes, at a minimum, the following ever, the Commission will in any event information: consider that a program comes within (1) A description and definition of the provisions of paragraph (a) of this each class of time available to com- section if in connection with such pro- mercial advertisers sufficiently com- gram a prize consisting of money or plete enough to allow candidates to thing of value is awarded to any person identify and understand what specific whose selection is dependent in whole attributes differentiate each class; or in part upon lot or chance, if as a (2) A description of the lowest unit condition of winning or competing for charge and related privileges (such as such prize, such winner or winners are priorities against preemption and required to furnish any money or thing make goods prior to specific deadlines) of value or are required to have in their for each class of time offered to com- possession any product sold, manufac- mercial advertisers; tured, furnished, or distributed by a (3) A description of the system’s sponsor of a program cablecast on the method of selling preemptible time system in question. based upon advertiser demand, com- (c) The provisions of paragraphs (a) monly known as the ‘‘current selling and (b) of this section shall not apply level,’’ with the stipulation that can- to advertisements or lists of prizes or didates will be able to purchase at information concerning: these demand-generated rates in the (1) A lottery conducted by a State same manner as commercial adver- acting under authority of State law tisers; which is transmitted: (4) An approximation of the likeli- (i) By a cable system located in that hood of preemption for each kind of State; preemptible time; and (ii) By a cable system located in an- (5) An explanation of the system’s other State which conducts such a lot- sales practices, if any, that are based tery; or on audience delivery, with the stipula- (iii) By a cable system located in an- tion that candidates will be able to other State which is integrated with a purchase this kind of time, if available cable system described in paragraphs to commercial advertisers. (c)(1)(i) or (c)(1)(ii) of this section, if (c) Once disclosure is made, systems termination of the receipt of such shall negotiate in good faith to actu- transmission by the cable systems in

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such other State would be technically (3) The Web site’s home page and infeasible. other menu pages are clearly labeled to (2) Any gaming conducted by an In- distinguish the noncommercial from dian Tribe pursuant to the Indian Gam- the commercial sections; and ing Regulatory Act. (25 U.S.C. 2701 et (4) The page of the Web site to which seq.). viewers are directed by the Web site (3) A lottery, gift enterprise or simi- address is not used for e-commerce, ad- lar scheme, other than one described in vertising, or other commercial pur- paragraph (c)(1) of this section, that is poses (e.g., contains no links labeled authorized or not otherwise prohibited ‘‘store’’ and no links to another page by the State in which it is conducted with commercial material). and which is: (c) If an address for a Web (i) Conducted by a not-for-profit or- site that does not meet the test in ganization or a governmental organiza- paragraph (b) of this section is dis- tion; or played during a promotion in a chil- (ii) Conducted as a promotional ac- dren’s program, in addition to counting tivity by a commercial organization against the commercial time limits in and is clearly occasional and ancillary paragraph (a) of this section the pro- to the primary business of that organi- motion must be clearly separated from zation. program material. (d) For the purposes of paragraph (c) (d)(1) Entities subject to commercial lottery means the pooling of proceeds time limits under the Children’s Tele- derived from the sale of tickets or vision Act shall not display a Web site chances and allotting those proceeds or address during or adjacent to a pro- parts thereof by chance to one or more gram if, at that time, on pages that are chance takers or ticket purchasers. It primarily devoted to free noncommer- does not include the placing or accept- cial content regarding that specific ing of bets or wagers on sporting program or a character appearing in events or contests. that program: (e) For purposes of paragraph (c)(3)(i) (i) Products are sold that feature a of this section, the term ‘‘not-for-profit character appearing in that program; organization’’ means any organization or that would qualify as tax exempt under (ii) A character appearing in that section 501 of the Internal Revenue program is used to actively sell prod- Code of 1986. ucts. [37 FR 3278, Feb. 12, 1972, as amended at 40 (2) The requirements of this para- FR 6210, Feb. 10, 1975; 42 FR 13947, Apr. 13, graph do not apply to: 1977; 54 FR 20856, May 15, 1989; 55 FR 18888, (i) Third-party sites linked from the May 7, 1990] companies’ Web pages; (ii) On-air third-party advertisements § 76.225 Commercial limits in chil- with Web site references to third-party dren’s programs. Web sites; or (a) No cable operator shall air more (iii) Pages that are primarily devoted than 10.5 minutes of commercial mat- to multiple characters from multiple ter per hour during children’s program- programs. ming on weekends, or more than 12 (e) The requirements of this section minutes of commercial matter per shall not apply to programs aired on a hour on weekdays. broadcast television channel which the (b) The display of Internet Web site cable operator passively carries, or to addresses during program material or access channels over which the cable promotional material not counted as operator may not exercise editorial commercial time is permitted only if control, pursuant to 47 U.S.C. 531(e) the Web site: and 532(c)(2). (1) Offers a substantial amount of bona fide program-related or other NOTE 1 TO § 76.225: Commercial matter means air time sold for purposes of selling a prod- noncommercial content; uct or service and promotions of television (2) Is not primarily intended for com- programs or video programming services mercial purposes, including either e- other than children’s or other age-appro- commerce or advertising; priate programming appearing on the same

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channel or promotions for children’s edu- access line which will be available to cational and informational programming on its subscribers 24 hours a day, seven any channel. days a week. NOTE 2 TO § 76.225: For purposes of this sec- (A) Trained company representatives tion, children’s programming refers to pro- grams originally produced and broadcast pri- will be available to respond to cus- marily for an audience of children 12 years tomer telephone inquiries during nor- old and younger. mal business hours. NOTE 3 TO § 76.225: Section 76.1703 contains (B) After normal business hours, the recordkeeping requirements for cable opera- access line may be answered by a serv- tors with regard to children’s programming. ice or an automated response system, [56 FR 19616, Apr. 29, 1991, as amended at 65 including an answering machine. In- FR 53615, Sept. 5, 2000; 70 FR 38, Jan. 3, 2005; quiries received after normal business 71 FR 64165, Nov. 1, 2006] hours must be responded to by a trained company representative on the § 76.227 [Reserved] next business day. (ii) Under normal operating condi- Subpart H—General Operating tions, telephone answer time by a cus- Requirements tomer representative, including wait time, shall not exceed thirty (30) sec- § 76.309 Customer service obligations. onds when the connection is made. If (a) A cable franchise authority may the call needs to be transferred, trans- enforce the customer service standards fer time shall not exceed thirty (30) set forth in paragraph (c) of this sec- seconds. These standards shall be met tion against cable operators. The fran- no less than ninety (90) percent of the chise authority must provide affected time under normal operating condi- cable operators ninety (90) days writ- tions, measured on a quarterly basis. ten notice of its intent to enforce the (iii) The operator will not be required standards. to acquire equipment or perform sur- (b) Nothing in this rule should be veys to measure compliance with the construed to prevent or prohibit: telephone answering standards above (1) A franchising authority and a unless an historical record of com- cable operator from agreeing to cus- plaints indicates a clear failure to com- tomer service requirements that ex- ply. ceed the standards set forth in para- (iv) Under normal operating condi- graph (c) of this section; tions, the customer will receive a busy (2) A franchising authority from en- signal less than three (3) percent of the forcing, through the end of the fran- time. chise term, pre-existing customer serv- (v) Customer service center and bill ice requirements that exceed the stand- payment locations will be open at least ards set forth in paragraph (c) of this during normal business hours and will section and are contained in current be conveniently located. franchise agreements; (2) Installations, outages and service (3) Any State or any franchising au- calls. Under normal operating condi- thority from enacting or enforcing any tions, each of the following four stand- consumer protection law, to the extent ards will be met no less than ninety not specifically preempted herein; or five (95) percent of the time measured (4) The establishment or enforcement on a quarterly basis: of any State or municipal law or regu- (i) Standard installations will be per- lation concerning customer service formed within seven (7) business days that imposes customer service require- after an order has been placed. ments that exceed, or address matters ‘‘Standard’’ installations are those not addressed by the standards set that are located up to 125 feet from the forth in paragraph (c) of this section. existing distribution system. (c) Cable operators are subject to the (ii) Excluding conditions beyond the following customer service standards: control of the operator, the cable oper- (1) Cable system office hours and ator will begin working on ‘‘service telephone availability— interruptions’’ promptly and in no (i) The cable operator will maintain a event later than 24 hours after the local, toll-free or collect call telephone interruption becomes known. The cable

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operator must begin actions to correct ages, and severe or unusual weather other service problems the next busi- conditions. Those conditions which are ness day after notification of the serv- ordinarily within the control of the ice problem. cable operator include, but are not lim- (iii) The ‘‘appointment window’’ al- ited to, special promotions, pay-per- ternatives for installations, service view events, rate increases, regular calls, and other installation activities peak or seasonal demand periods, and will be either a specific time or, at maintenance or upgrade of the cable maximum, a four-hour time block dur- system. ing normal business hours. (The oper- (iii) Service interruption—The term ator may schedule service calls and ‘‘service interruption’’ means the loss other installation activities outside of of picture or sound on one or more normal business hours for the express cable channels. convenience of the customer.) (iv) An operator may not cancel an NOTE TO § 76.309: Section 76.1602 contains appointment with a customer after the notification requirements for cable operators close of business on the business day with regard to operator obligations to sub- scribers and general information to be pro- prior to the scheduled appointment. vided to customers regarding service. Sec- (v) If a cable operator representative tion 76.1603 contains subscriber notification is running late for an appointment requirements governing rate and service with a customer and will not be able to changes. Section 76.1619 contains notifica- keep the appointment as scheduled, the tion requirements for cable operators with customer will be contacted. The ap- regard to subscriber bill information and op- pointment will be rescheduled, as nec- erator response procedures pertaining to bill essary, at a time which is convenient disputes. for the customer. [58 FR 21109, Apr. 19, 1993, as amended at 61 (3) Communications between cable FR 18977, Apr. 30, 1996; 65 FR 53615, Sept. 5, operators and cable subscribers— 2000; 67 FR 1650, Jan. 14, 2002; 83 FR 7627, Feb. (i) Refunds—Refund checks will be 22, 2018] issued promptly, but no later than ei- ther— Subpart I [Reserved] (A) The customer’s next billing cycle following resolution of the request or Subpart J—Ownership of Cable thirty (30) days, whichever is earlier, or (B) The return of the equipment sup- Systems plied by the cable operator if service is § 76.501 Cross-ownership. terminated. (ii) Credits—Credits for service will (a)–(c) [Reserved] be issued no later than the customer’s (d) No cable operator shall offer sat- next billing cycle following the deter- ellite master antenna television serv- mination that a credit is warranted. ice (‘‘SMATV’’), as that service is de- (4) Definitions— fined in § 76.5(a)(2), separate and apart (i) Normal business hours—The term from any franchised cable service in ‘‘normal business hours’’ means those any portion of the franchise area hours during which most similar busi- served by that cable operator’s cable nesses in the community are open to system, either directly or indirectly serve customers. In all cases, ‘‘normal through an affiliate owned, operated, business hours’’ must include some controlled, or under common control evening hours at least one night per with the cable operator. week and/or some weekend hours. (e)(1) A cable operator may directly (ii) Normal operating conditions—The or indirectly, through an affiliate term ‘‘normal operating conditions’’ owned, operated, controlled by, or means those service conditions which under common control with the cable are within the control of the cable op- operator, offer SMATV service within erator. Those conditions which are not its franchise area if the cable opera- within the control of the cable oper- tor’s SMATV system was owned, oper- ator include, but are not limited to, ated, controlled by or under common natural disasters, civil disturbances, control with the cable operator as of power outages, telephone network out- October 5, 1992.

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(2) A cable operator may directly or Under the 5% attribution benchmark, X’s in- indirectly, through an affiliate owned, terest in ‘‘Licensee’’ would be cognizable, operated, controlled by, or under com- while A’s interest would not be cognizable.] mon control with the cable operator, (d) Voting stock interests held in trust offer service within its franchise area shall be attributed to any person who holds or shares the power to vote such stock, to through SMATV facilities, provided any person who has the sole power to sell such service is offered in accordance such stock, and to any person who has the with the terms and conditions of a right to revoke the trust at will or to replace cable franchise agreement. the trustee at will. If the trustee has a famil- (f) The restrictions in paragraphs (d) ial, personal or extra-trust business relation- and (e) of this section shall not apply ship to the grantor or the beneficiary, the to any cable operator in any franchise grantor or beneficiary, as appropriate, will area in which a cable operator is sub- be attributed with the stock interests held in ject to effective competition as deter- trust. An otherwise qualified trust will be in- effective to insulate the grantor or bene- mined under section 623(l) of the Com- ficiary from attribution with the trust’s as- munications Act. sets unless all voting stock interests held by the grantor or beneficiary in the relevant en- NOTE 1 TO § 76.501: Actual working control, in whatever manner exercised, shall be tity covered by this rule are subject to said deemed a cognizable interest. trust. NOTE 2 TO § 76.501: In applying the provi- (e) Subject to paragraph (i) of this Note, sions of this section, ownership and other in- holders of non-voting stock shall not be at- terests in an entity or entities covered by tributed an interest in the issuing entity. this rule will be attributed to their holders Subject to paragraph (i) of this Note, holders and deemed cognizable pursuant to the fol- of debt and instruments such as warrants, lowing criteria: convertible debentures, options or other non- (a) Except as otherwise provided herein, voting interests with rights of conversion to partnership and direct ownership interests voting interests shall not be attributed un- and any voting stock interest amounting to less and until conversion is effected. 5% or more of the outstanding voting stock (f)(1) Subject to paragraph (i) of this Note, of a corporation will be cognizable; a limited partnership interest shall be at- (b) Investment companies, as defined in 15 tributed to a limited partner unless that U.S.C. 80a–3, insurance companies and banks partner is not materially involved, directly holding stock through their trust depart- or indirectly, in the management or oper- ments in trust accounts will be considered to ation of the media-related activities of the have a cognizable interest only if they hold partnership and the relevant entity so cer- 20% or more of the outstanding voting stock tifies. An interest in a Limited Liability of a corporation, or if any of the officers or Company (‘‘LLC’’) or Registered Limited Li- directors of the corporation are representa- ability Partnership (‘‘RLLP’’) shall be at- tives of the investment company, insurance tributed to the interest holder unless that company or bank concerned. Holdings by a interest holder is not materially involved, bank or insurance company will be aggre- directly or indirectly, in the management or gated if the bank or insurance company has operation of the media-related activities of any right to determine how the stock will be the partnership and the relevant entity so voted. Holdings by investment companies certifies. will be aggregated if under common manage- (2) In the case of a limited partnership, in ment. order for an entity to make the certification (c) Attribution of ownership interests in an set forth in paragraph (g)(1) of this section, entity covered by this rule that are held in- it must verify that the partnership agree- directly by any party through one or more ment or certificate of limited partnership, intervening corporations will be determined with respect to the particular limited part- by successive multiplication of the owner- ner exempt from attribution, establishes ship percentages for each link in the vertical that the exempt limited partner has no ma- ownership chain and application of the rel- terial involvement, directly or indirectly, in evant attribution benchmark to the result- the management or operation of the media ing product, except that wherever the owner- activities of the partnership. In the case of ship percentage for any link in the chain ex- an LLC or RLLP, in order for an entity to ceeds 50%, it shall not be included for pur- make the certification set forth in paragraph poses of this multiplication. [For example, if (g)(1) of this section, it must verify that the A owns 10% of company X, which owns 60% organizational document, with respect to the of company Y, which owns 25% of ‘‘Li- particular interest holder exempt from attri- censee,’’ then X’s interest in ‘‘Licensee’’ bution, establishes that the exempt interest would be 25% (the same as Y’s interest since holder has no material involvement, directly X’s interest in Y exceeds 50%), and A’s inter- or indirectly, in the management or oper- est in ‘‘Licensee’’ would be 2.5% (0.1 × 0.25). ation of the media activities of the LLC or

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RLLP. The criteria which would assume ade- this rule shall have that interest attributed quate insulation for purposes of these certifi- if the equity (including all stockholdings, cations are described in the Memorandum whether voting or nonvoting, common or Opinion and Order in MM Docket No. 83–46, preferred, and partnership interests) and FCC 85–252 (released June 24, 1985), as modi- debt interest or interests, in the aggregate, fied on reconsideration in the Memorandum exceed 33 percent of the total asset value (all Opinion and Order in MM Docket No. 83–46, equity plus all debt) of that entity, provided FCC 86–410 (released November 28, 1986). Irre- however that: spective of the terms of the certificate of (1) in applying the provisions of paragraph limited partnership or partnership agree- (i) of this note to §§ 76.501, 76.505 and ment, or other organizational document in 76.905(b)(2), the holder of an equity or debt the case of an LLC or RLLP, however, no interest or interests in a broadcast station, such certification shall be made if the indi- cable system, SMATV or multiple video dis- vidual or entity making the certification has tribution provider subject to § 76.501, § 76.505, actual knowledge of any material involve- or § 76.905(b)(2) (‘‘interest holder’’) shall have ment of the limited partners, or other inter- that interest attributed if the equity (includ- est holders in the case of an LLC or RLLP, ing all stockholdings, whether voting or non- in the management or operation of the voting, common or preferred, and partner- media businesses of the partnership or LLC ship interests) and debt interest or interests, or RLLP. in the aggregate, exceed 33 percent of the (3) In the case of an LLC or RLLP, the en- total asset value (defined as the aggregate of tity seeking insulation shall certify, in addi- all equity plus all debt) of that entity; and tion, that the relevant state statute author- (i) the interest holder also holds an inter- izing LLCs permits an LLC member to insu- est in a broadcast station, cable system, late itself as required by our criteria. SMATV, or multiple video distribution pro- (g) Officers and directors of an entity cov- vider that operates in the same market, is ered by this rule are considered to have a subject to § 76.501, § 76.505, or § 76.905(b)(2) and cognizable interest in the entity with which is attributable without reference to this they are so associated. If any such entity en- paragraph (i); or gages in businesses in addition to its pri- (ii) the interest holder supplies over fifteen mary media business, it may request the percent of the total weekly broadcast pro- Commission to waive attribution for any of- gramming hours of the station in which the ficer or director whose duties and respon- interest is held. sibilities are wholly unrelated to its primary (2) For purposes of applying subparagraph business. The officers and directors of a par- (i)(1), the term ‘‘market’’ will be defined as ent company of a media entity, with an at- it is defined under the rule that is being ap- tributable interest in any such subsidiary plied. entity, shall be deemed to have a cognizable NOTE 3 TO § 76.501: In cases where record interest in the subsidiary unless the duties and beneficial ownership of voting stock is and responsibilities of the officer or director not identical (e.g., bank nominees holding involved are wholly unrelated to the media stock as record owners for the benefit of mu- subsidiary, and a certification properly docu- tual funds, brokerage houses holding stock menting this fact is submitted to the Com- in street names for benefit of customers, in- mission. The officers and directors of a sister vestment advisors holding stock in their own corporation of a media entity shall not be at- names for the benefit of clients, and insur- tributed with ownership of that entity by ance companies holding stock), the party virtue of such status. having the right to determine how the stock (h) Discrete ownership interests held by will be voted will be considered to own it for the same individual or entity will be aggre- purposes of this subpart. gated in determining whether or not an in- NOTE 4 TO § 76.501: Paragraph (a) of this sec- terest is cognizable under this section. An tion will not be applied so as to require the individual or entity will be deemed to have a divestiture of ownership interests proscribed cognizable investment if: herein solely because of the transfer of such (1) The sum of the interests held by or interests to heirs or legatees by will or intes- through ‘‘passive investors’’ is equal to or tacy, provided that the degree or extent of exceeds 20 percent; or the proscribed cross-ownership is not in- (2) The sum of the interests other than creased by such transfer. those held by or through ‘‘passive investors’’ NOTE 5 TO § 76.501: Certifications pursuant is equal to or exceeds 5 percent; or to this section and these notes shall be sent (3) The sum of the interests computed to the attention of the Media Bureau, Fed- under paragraph (i)(1) of this section plus the eral Communications Commission, 445 12th sum of the interests computed under para- Street, SW., Washington, DC 20554. graph (i)(2) of this section is equal to or ex- NOTE 6 TO § 76.501: In applying paragraph (a) ceeds 20 percent. of § 76.501, for purposes of paragraph note 2(i) (i) Notwithstanding paragraphs (e) and (f) of this section, attribution of ownership in- of this Note, the holder of an equity or debt terests in an entity covered by this rule that interest or interests in an entity covered by are held indirectly by any party through one

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or more intervening organizations will be de- (b)–(d) [Reserved] termined by successive multiplication of the (e) ‘‘Multichannel video-program- ownership percentages for each link in the ming subscribers’’ means subscribers vertical ownership chain and application of who receive multichannel video-pro- the relevant attribution benchmark to the resulting product. The ownership percentage gramming from cable systems, direct for any link in the chain that exceeds 50% broadcast satellite services, direct-to- shall be included. [For example, if A owns home satellite services, BRS/EBS, local 10% of company X, which owns 60% of com- multipoint distribution services, sat- pany Y, which owns 25% of ‘‘Licensee,’’ then ellite master antenna television serv- X’s interest in ‘‘Licensee’’ would 15% (0.6 × ices (as defined in § 76.5(a)(2)), and open 0.25), and A’s interest in ‘‘Licensee’’ would be video systems. 1.5% (0.1 × 0.6 × 0.25).] (f) ‘‘Cable operator’’ means any per- [58 FR 27677, May 11, 1993, as amended at 60 son or entity that owns or has an at- FR 37834, July 24, 1995; 61 FR 15388, Apr. 8, tributable interest in an incumbent 1996; 64 FR 50646, Sept. 17, 1999; 64 FR 67194, cable franchise. Dec. 1, 1999; 66 FR 9973, Feb. 13, 2001; 67 FR (g) Prior to acquiring additional mul- 13234, Mar. 21, 2002; 68 FR 13237, Mar. 19, 2003] tichannel video-programming pro- viders, any cable operator that serves § 76.502 Time limits applicable to fran- chise authority consideration of 20% or more of multichannel video-pro- transfer applications. gramming subscribers nationwide shall certify to the Commission, concurrent (a) A franchise authority shall have with its applications to the Commis- 120 days from the date of submission of sion for transfer of licenses at issue in a completed FCC Form 394, together the acquisition, that no violation of with all exhibits, and any additional the national subscriber limits pre- information required by the terms of scribed in this section will occur as a the franchise agreement or applicable result of such acquisition. state or local law to act upon an appli- cation to sell, assign, or otherwise NOTE 1 TO § 76.503: Certifications made transfer controlling ownership of a under this section shall be sent to the atten- tion of the Media Bureau, Federal Commu- cable system. nications Commission, 445 12th Street, SW., (b) A franchise authority that ques- Washington, DC 20554. tions the accuracy of the information NOTE 2 TO § 76.503: Attributable Interest shall provided under paragraph (a) must no- be defined by reference to the criteria set tify the cable operator within 30 days forth in Notes 1 through 5 to § 76.501 provided of the filing of such information, or however, that: such information shall be deemed ac- (a) Notes 2(f) and 2(g) to § 76.501 to shall not apply; cepted, unless the cable operator has (b)(1) Subject to Note 2(i) to § 76.501, a lim- failed to provide any additional infor- ited partnership interest shall be attributed mation reasonably requested by the to a limited partner unless that partner is franchise authority within 10 days of not materially involved, directly or indi- such request. rectly, in the management or operation of (c) If the franchise authority fails to the video programming-related activities of act upon such transfer request within the partnership and the relevant entity so certifies. An interest in a Limited Liability 120 days, such request shall be deemed Company (‘‘LLC’’) or Registered Limited Li- granted unless the franchise authority ability Partnership (‘‘RLLP’’) shall be at- and the requesting party otherwise tributed to the interest holder unless that agree to an extension of time. interest holder is not materially involved, directly or indirectly, in the management or [61 FR 15388, Apr. 8, 1996] operation of the video programming-related activities of the partnership and the relevant § 76.503 National subscriber limits. entity so certifies. (a) No cable operator shall serve (2) In the case of a limited partnership, in more than 30 percent of all multi- order for an entity to make the certification channel-video programming sub- set forth in paragraph (b)(1) of this section, scribers nationwide through multi- it must verify that the partnership agree- ment or certificate of limited partnership, channel video programming distribu- with respect to the particular limited part- tors owned by such operator or in ner exempt from attribution, establishes which such cable operator holds an at- that the exempt limited partner has no ma- tributable interest. terial involvement, directly or indirectly, in

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the management or operation of the video be attributed with ownership of that entity programming activities of the partnership. by virtue of such status. In the case of an LLC or RLLP, in order for [64 FR 67195, 67199, Dec. 1, 1999, as amended at an entity to make the certification set forth 67 FR 13234, Mar. 21, 2002; 69 FR 72046, Dec. 10, in paragraph (g)(1) of this section, it must 2004; 73 FR 11050, Feb. 29, 2008] verify that the organizational document, with respect to the particular interest holder § 76.504 Limits on carriage of exempt from attribution, establishes that vertically integrated programming. the exempt interest holder has no material involvement, directly or indirectly, in the (a) Except as otherwise provided in management or operation of the video pro- this section no cable operator shall de- gramming activities of the LLC or RLLP. vote more than 40 percent of its acti- The criteria which would assume adequate vated channels to the carriage of na- insulation for purposes of these certifi- tional video programming services cations are described in the Report and owned by the cable operator or in Order, FCC No. 99–288, CS Docket No. 98–82 which the cable operator has an attrib- (released October 20, 1999). In order for the utable interest. Commission to accept the certification, the certification must be accompanied by facts, (b) The channel occupancy limits set e.g. in the form of documents, affidavits or forth in paragraph (a) of this section declarations, that demonstrate that these in- shall apply only to channel capacity up sulation criteria are met. Irrespective of the to 75 channels. terms of the certificate of limited partner- (c) A cable operator may devote two ship or partnership agreement, or other or- additional channels or up to 45 percent ganizational document in the case of an LLC of its channel capacity, whichever is or RLLP, however, no such certification greater, to the carriage of video pro- shall be made if the individual or entity gramming services owned by the cable making the certification has actual knowl- edge of any material involvement of the lim- operator or in which the cable operator ited partners, or other interest holders in the has an attributable interest provided case of an LLC or RLLP, in the management such video programming services are or operation of the video-programming ac- minority-controlled. tivities of the partnership or LLC or RLLP. (d) Cable operators carrying video (3) In the case of an LLC or RLLP, the en- programming services owned by the tity seeking insulation shall certify, in addi- cable operator or in which the cable op- tion, that the relevant state statute author- erator holds an attributable interest in izing LLCs permits an LLC member to insu- excess of limits set forth in paragraph late itself as required by our criteria. (a) of this section as of December 4, (c) Officers and directors of an entity cov- ered by this rule are considered to have a 1992, shall not be precluded by the re- cognizable interest in the entity with which strictions in this section. they are so associated. If any such entity en- (e) Minority-controlled means more gages in activities other than video-pro- than 50 percent owned by one or more gramming activities, it may request the members of a minority group. Commission to waive attribution for any of- (f) Minority means Black, Hispanic, ficer or director whose duties and respon- American Indian, Alaska Native, Asian sibilities are wholly unrelated to the entity’s and Pacific Islander. video-programming activities. In the case of common or appointed directors and officers, NOTE 1: Attributable interest shall be de- if common or appointed directors or officers fined by reference to the criteria set forth in have duties and responsibilities that are Notes 1 through 5 to § 76.501 provided how- wholly unrelated to video-programming ac- ever, that: tivities for both entities, the relevant entity (a) Notes 2(f) and 2(g) to § 76.501 to shall not may request the Commission to waive attri- apply; bution of the director or officer. The officers (b)(1) Subject to Note 2(i) to § 76.501, a lim- and directors of a parent company of a video- ited partnership interest shall be attributed programming business, with an attributable to a limited partner unless that partner is interest in any such subsidiary entity, shall not materially involved, directly or indi- be deemed to have a cognizable interest in rectly, in the management or operation of the subsidiary unless the duties and respon- the video programming-related activities of sibilities of the officer or director involved the partnership and the relevant entity so are wholly unrelated to the video-program- certifies. An interest in a Limited Liability ming subsidiary, and a certification properly Company (‘‘LLC’’) or Registered Limited Li- documenting this fact is submitted to the ability Partnership (‘‘RLLP’’) shall be at- Commission. The officers and directors of a tributed to the interest holder unless that sister corporation of a cable system shall not interest holder is not materially involved,

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directly or indirectly, in the management or bution of the director or officer. The officers operation of the video programming-related and directors of a parent company of a video- activities of the partnership and the relevant programming business, with an attributable entity so certifies. interest in any such subsidiary entity, shall (2) In the case of a limited partnership, in be deemed to have a cognizable interest in order for an entity to make the certification the subsidiary unless the duties and respon- set forth in paragraph (b)(1) of this section, sibilities of the officer or director involved it must verify that the partnership agree- are wholly unrelated to the video-program- ment or certificate of limited partnership, ming subsidiary, and a certification properly with respect to the particular limited part- documenting this fact is submitted to the ner exempt from attribution, establishes Commission. The officers and directors of a that the exempt limited partner has no ma- terial involvement, directly or indirectly, in sister corporation of a cable system shall not the management or operation of the video be attributed with ownership of that entity programming activities of the partnership. by virtue of such status. In the case of an LLC or RLLP, in order for NOTE 2 TO § 76.504: Section 76.1710 contains an entity to make the certification set forth recordkeeping requirements for cable opera- in paragraph (g)(1) of this section, it must tors with regard to attributable interests. verify that the organizational document, with respect to the particular interest holder [58 FR 60141, Nov. 15, 1993, as amended at 64 exempt from attribution, establishes that FR 67196, Dec. 1, 1999; 65 FR 53615, Sept. 5, the exempt interest holder has no material 2000] involvement, directly or indirectly, in the management or operation of the video pro- § 76.505 Prohibition on buy outs. gramming activities of the LLC or RLLP. The criteria which would assume adequate (a) No local exchange carrier or any insulation for purposes of these certifi- affiliate of such carrier owned by, oper- cations are described in the Report and ated by, controlled by, or under com- Order, FCC No. 99–288, CS Docket No. 98–82 mon control with such carrier may (released October 20, 1999). In order for the Commission to accept the certification, the purchase or otherwise acquire directly certification must be accompanied by facts, or indirectly more than a 10 percent fi- e.g. in the form of documents, affidavits or nancial interest, or any management declarations, that demonstrate that these in- interest, in any cable operator pro- sulation criteria are met. Irrespective of the viding cable service within the local terms of the certificate of limited partner- exchange carrier’s telephone service ship or partnership agreement, or other or- ganizational document in the case of an LLC area. or RLLP, however, no such certification (b) No cable operator or affiliate of a shall be made if the individual or entity cable operator that is owned by, oper- making the certification has actual knowl- ated by, controlled by, or under com- edge of any material involvement of the lim- mon ownership with such cable oper- ited partners, or other interest holders in the case of an LLC or RLLP, in the management ator may purchase or otherwise ac- or operation of the video-programming ac- quire, directly or indirectly, more than tivities of the partnership or LLC or RLLP. a 10 percent financial interest, or any (3) In the case of an LLC or RLLP, the en- management interest, in any local ex- tity seeking insulation shall certify, in addi- change carrier providing telephone ex- tion, that the relevant state statute author- change service within such cable opera- izing LLCs permits an LLC member to insu- late itself as required by our criteria. tor’s franchise area. (c) Officers and directors of an entity cov- (c) A local exchange carrier and a ered by this rule are considered to have a cable operator whose telephone service cognizable interest in the entity with which area and cable franchise area, respec- they are so associated. If any such entity en- tively, are in the same market may not gages in activities other than video-pro- enter into any joint venture or part- gramming activities, it may request the Commission to waive attribution for any of- nership to provide video programming ficer or director whose duties and respon- directly to subscribers or to provide sibilities are wholly unrelated to the entity’s telecommunications services within video-programming activities. In the case of such market. common or appointed directors and officers, (d) Exceptions: if common or appointed directors or officers have duties and responsibilities that are (1) Notwithstanding paragraphs (a), wholly unrelated to video-programming ac- (b), and (c) of this section, a local ex- tivities for both entities, the relevant entity change carrier (with respect to a cable may request the Commission to waive attri- system located in its telephone service

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area) and a cable operator (with re- or control of any one of the 50 cable spect to the facilities of a local ex- system operators with the most sub- change carrier used to provide tele- scribers as such operators existed on phone exchange service in its cable May 1, 1995; and franchise area) may obtain a control- (iv) The system with the most sub- ling interest in, management interest scribers in the television market is in, or enter into a joint venture or owned by or under common ownership partnership with the operator of such or control of any one of the 10 largest system or facilities for the use of such cable system operators as such opera- system or facilities to the extent that: tors existed on May 1, 1995. (i) Such system or facilities only (4) Paragraph (a) of this section does serve incorporated or unincorporated : not apply to any cable system if: (A) Places or territories that have (i) The cable system serves no more fewer than 35,000 inhabitants; and than 17,000 cable subscribers, of which (B) Are outside an urbanized area, as no less than 8,000 live within an urban defined by the Bureau of the Census; area, and no less than 6,000 live within and a nonurbanized area as of June 1, 1995; (ii) In the case of a local exchange (ii) The cable system is not owned by, carrier, such system, in the aggregate or under common ownership or control with any other system in which such with, any of the 50 largest cable system carrier has an interest, serves less than operators in existence on June 1, 1995; 10 percent of the households in the and telephone service area of such carrier. (iii) The cable system operates in a (2) Notwithstanding paragraph (c) of television market that was not in the this section, a local exchange carrier top 100 television markets as of June 1, may obtain, with the concurrence of 1995. the cable operator on the rates, terms, (5) Notwithstanding paragraphs (a) and conditions, the use of that part of and (c) of this section, a local exchange the transmission facilities of a cable carrier with less than $100,000,000 in an- system extending from the last multi- nual operating revenues (or any affil- user terminal to the premises of the iate of such carrier owned by, operated end user, if such use is reasonably lim- by, controlled by, or under common ited in scope and duration, as deter- control with such carrier) may pur- mined by the Commission. chase or otherwise acquire more than a (3) Notwithstanding paragraphs (a) 10 percent financial interest in, or any and (c) of this section, a local exchange management interest in, or enter into carrier may obtain a controlling inter- a joint venture or partnership with, est in, or form a joint venture or other any cable system within the local ex- partnership with, or provide financing change carrier’s telephone service area to, a cable system (hereinafter in this that serves no more than 20,000 cable paragraph referred to as ‘‘the subject subscribers, if no more than 12,000 of cable system’’) if: those subscribers live within an urban- (i) The subject cable system operates ized area, as defined by the Bureau of in a television market that is not in the Census. the top 25 markets, and such market (6) The Commission may waive the has more than 1 cable system operator, restrictions of paragraphs (a), (b), or (c) and the subject cable system is not the of this section only if: cable system with the most subscribers (i) The Commission determines that, in such television market; because of the nature of the market (ii) The subject cable system and the served by the affected cable system or cable system with the most subscribers facilities used to provide telephone ex- in such television market held on May change service: 1, 1995, cable television franchises from (A) The affected cable operator or the largest municipality in the tele- local exchange carrier would be sub- vision market and the boundaries of jected to undue economic distress by such franchises were identical on such the enforcement of such provisions; date; (B) The system or facilities would (iii) The subject cable system is not not be economically viable if such pro- owned by or under common ownership visions were enforced; or

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(C) The anticompetitive effects of the formance tests conducted pursuant to proposed transaction are clearly out- this section shall include measure- weighed in the public interest by the ments taken at six (6) widely separated probable effect of the transaction in points. However, within each cable sys- meeting the convenience and needs of tem, one additional test point shall be the community to be served; and added for every additional 12,500 sub- (ii) The local franchising authority scribers or fraction thereof (e.g., 7 test approves of such waiver. points if 12,501 to 25,000 subscribers; 8 (e) For purposes of this section, the test points if 25,001 to 37,500 sub- term ‘‘telephone service area’’ when scribers, etc.). In addition, for tech- used in connection with a common car- nically integrated portions of cable rier subject in whole or in part to title systems that are not mechanically con- II of the Communications Act means tinuous (e.g., employing microwave the area within which such carrier pro- connections), at least one test point vided service as of will be required for each portion of the January 1, 1993, but if any common car- cable system served by a technically rier after such date transfers its tele- integrated hub. The proof-of-perform- phone exchange service facilities to an- ance test points chosen shall be bal- other common carrier, the area to anced to represent all geographic areas which such facilities provide telephone served by the cable system. At least exchange service shall be treated as one-third of the test points shall be part of the telephone service area of representative of subscriber terminals the acquiring common carrier and not most distant from the system input of the selling common carrier. and from each microwave receiver (if (f) For purposes of this section, enti- microwave transmissions are em- ties are affiliated if either entity has ployed), in terms of cable length. The an attributable interest in the other or measurements may be taken at con- if a third party has an attributable in- venient monitoring points in the cable terest in both entities. network provided that data shall be in- (g) Attributable interest shall be de- cluded to relate the measured perform- fined by reference to the criteria set ance of the system as would be viewed forth in Notes 1 through 5 to § 76.501. from a nearby subscriber terminal. An [61 FR 18977, Apr. 30, 1996, as amended at 64 identification of the instruments, in- FR 67196, Dec. 1, 1999] cluding the makes, model numbers, and the most recent date of calibration, a Subpart K—Technical Standards description of the procedures utilized, and a statement of the qualifications of § 76.601 Performance tests. the person performing the tests shall (a) The operator of each cable tele- also be included. vision system shall be responsible for (2) Proof-of-performance tests to de- insuring that each such system is de- termine the extent to which a cable signed, installed, and operated in a television system complies with the manner that fully complies with the standards set forth in § 76.605(b)(3), (4), provisions of this subpart. and (5) shall be made on each of the (b) The operator of each cable tele- NTSC or similar video channels of that vision system that operates NTSC or system. Unless otherwise noted, proof- similar channels shall conduct per- of-performance tests for all other formance tests of the analog channels standards in § 76.605(b) shall be made on on that system at least twice each cal- a minimum of five (5) channels for sys- endar year (at intervals not to exceed tems operating a total activated chan- seven months), unless otherwise noted nel capacity of less than 550 MHz, and below. The performance tests shall be ten (10) channels for systems operating directed at determining the extent to a total activated channel capacity of which the system complies with all the 550 MHz or greater. The channels se- technical standards set forth in § 76.605 lected for testing must be representa- and shall be as follows: tive of all the channels within the (1) For cable television systems with cable television system. 1,000 or more subscribers but with (i) The operator of each cable tele- 12,500 or fewer subscribers, proof-of-per- vision system that operates NTSC or

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similar channels shall conduct semi- cable operator who will be allowed thirty annual proof-of-performance tests of days to come into compliance with any per- that system, to determine the extent ceived signal quality problems which need to to which the system complies with the be corrected. The Commission may request cable operators to test their systems at any technical standards set forth in time. § 76.605(b)(4) as follows. The visual sig- NOTE 2 TO § 76.601: Section 76.1717 contains nal level on each channel shall be recordkeeping requirements for each system measured and recorded, along with the operator in order to show compliance with date and time of the measurement, the technical rules of this subpart. once every six hours (at intervals of NOTE 3 TO § 76.601: Section 76.1704 contains not less than five hours or no more recordkeeping requirements for proof of per- than seven hours after the previous formance tests. measurement), to include the warmest [65 FR 53615, Sept. 5, 2000, as amended at 83 and the coldest times, during a 24-hour FR 7627, Feb. 22, 2018] period in January or February and in July or August. § 76.602 Incorporation by reference. (ii) The operator of each cable tele- (a) The materials listed in this sec- vision system that operates NTSC or tion are incorporated by reference in similar channels shall conduct tri- this part. These incorporations by ref- ennial proof-of-performance tests of its erence were approved by the Director system to determine the extent to of the Federal Register in accordance which the system complies with the with 5 U.S.C. 552(a) and 1 CFR part 51. technical standards set forth in These materials are incorporated as § 76.605(b)(11). they exist on the date of the approval, (c) Successful completion of the per- and notice of any change in these ma- formance tests required by paragraph terials will be published in the FED- (b) of this section does not relieve the ERAL REGISTER. The materials are system of the obligation to comply available for inspection at the Federal with all pertinent technical standards Communications Commission, 445 12th. at all subscriber terminals. Additional St. SW., Reference Information Center, tests, repeat tests, or tests involving Room CY–A257, Washington, DC 20554 specified subscriber terminals may be and at the National Archives and required by the Commission or the Records Administration (NARA). For local franchiser to secure compliance information on the availability of this with the technical standards. material at NARA, call 202–741–6030, or (d) The provisions of paragraphs (b) go to: http://www.archives.gov/fed- and (c) of this section shall not apply erallregister/ to any cable television system having codeloflfederallregulations/ fewer than 1,000 subscribers: Provided, ibrllocations.html. however, that any cable television sys- (b) The following materials are avail- tem using any frequency spectrum able from Advanced Television Sys- other than that allocated to over-the- tems Committee (ATSC), 1776 K Street air television and FM broadcasting (as NW., 8th Floor, Washington, DC 20006; described in §§ 73.603 and 73.210 of this phone: 202–872–9160; or online at http:// chapter) is required to conduct all www.atsc.org/standards.html. tests, measurements and monitoring of (1) ATSC A/65B: ‘‘ATSC Standard: signal leakage that are required by this Program and System Information Pro- subpart. A cable television system op- tocol for Terrestrial Broadcast and erator complying with the monitoring, Cable (Revision B),’’ March 18, 2003, logging and the leakage repair require- IBR approved for § 76.640. ments of § 76.614, shall be considered to (2) ATSC A/85:2013 ‘‘ATSC Rec- have met the requirements of this ommended Practice: Techniques for Es- paragraph. However, the leakage log tablishing and Maintaining Audio shall be retained for five years rather Loudness for Digital Television,’’ than the two years prescribed in (March 12, 2013) (‘‘ATSC A/85 RP’’), IBR § 76.1706. approved for § 76.607. NOTE 1 TO § 76.601: Prior to requiring any (c) The following materials are avail- additional testing pursuant to § 76.601(c), the able from the Consumer Technology local franchising authority shall notify the Association (formerly the Consumer

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Electronics Association), 1919 S Eads 854–7179; or online at http://glob- St., Arlington, VA 22202; phone: 703– al.ihs.com. 907–7600; web: standards.cta.tech/kwspub/ [77 FR 40300, July 9, 2012, as amended at 79 publishedldocs/. FR 51113, Aug. 27, 2014; 83 FR 7627, Feb. 22, (1) CTA–542–D, ‘‘Cable Television 2018] Channel Identification Plan,’’ June 2013, IBR approved for § 76.605. § 76.605 Technical standards. (2) CEA–931–A, ‘‘Remote Control (a) The following requirements apply Command Pass-through Standard for to the performance of a cable tele- Home Networking,’’ 2003, IBR approved vision system as measured at the input for § 76.640. (CEA–931–A is available to any terminal device with a matched through the document history of impedance at the termination point or ‘‘CTA–931’’ from the reseller in para- at the output of the modulating or graph (e)(2) of this section.) processing equipment (generally the (d) The following materials are avail- headend) of the cable television system able from Society of Cable Tele- or otherwise noted here or in ANSI/ communications Engineers (SCTE), 140 SCTE 40 2016. The requirements of Philips Road Exton, PA 19341–1318; paragraph (b) of this section are appli- phone: 800–542–5040; or online at http:// cable to each NTSC or similar video www.scte.org/standards/Stand- downstream cable television channel in ardslAvailable.aspx. the system. Each cable system that (1) ANSI/SCTE 26 2001 (formerly DVS uses QAM modulation to transport 194): ‘‘Home Digital Network Interface video programming shall adhere to Specification with Copy Protection,’’ ANSI/SCTE 40 2016 (incorporated by 2001, IBR approved for § 76.640. reference, see § 76.602). Cable television (2) SCTE 28 2003 (formerly DVS 295): systems utilizing other technologies to ‘‘Host-POD Interface Standard,’’ 2003, distribute programming must respond IBR approved for § 76.640. to consumer complaints under para- (3) ANSI/SCTE 40 2016, ‘‘Digital Cable graph (d) of this section. Network Interface Standard,’’ copy- (b) For each NTSC or similar video right 2016, IBR approved for §§ 76.605, downstream cable television channel in 76.640. the system: (4) SCTE 41 2003 (formerly DVS 301): (1) The cable television channels de- ‘‘POD Copy Protection System,’’ 2003, livered to the subscriber’s terminal IBR approved for § 76.640. shall be capable of being received and displayed by TV broadcast receivers (5) ANSI/SCTE 54 2003 (formerly DVS used for off-the-air reception of TV 241), ‘‘Digital Video Service Multiplex broadcast signals, as authorized under and Transport System Standard for part 73 of this chapter; and cable tele- Cable Television,’’ 2003, IBR approved vision systems shall transmit signals for § 76.640. to subscriber premises equipment on (6) ANSI/SCTE 65 2002 (formerly DVS frequencies in accordance with the 234), ‘‘Service Information Delivered channel allocation plan set forth in Out-of-Band for Digital Cable Tele- CTA–542–D (incorporated by reference, vision,’’ 2002, IBR approved for § 76.640. see § 76.602). (e) Some standards listed above are (2) The aural center frequency of the also available for purchase from the aural carrier must be 4.5 MHz ±5 kHz following sources: above the frequency of the visual car- (1) American National Standards In- rier at the output of the modulating or stitute (ANSI), 25 West 43rd Street, 4th processing equipment of a cable tele- Floor, New York, NY 10036; phone: 212– vision system, and at the subscriber 642–4980; or online at http:// terminal. webstore.ansi.org/. (3) The visual signal level, across a (2) Global Engineering Documents terminating impedance which cor- (standards reseller), 15 Inverness Way rectly matches the internal impedance East, Englewood, CO 80112; phone: 800– of the cable system as viewed from the subscriber terminal, shall not be less

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than 1 millivolt across an internal im- (6) The amplitude characteristic pedance of 75 ohms (0 dBmV). Addition- shall be within a range of ±2 ally, as measured at the end of a 30 from 0.75 MHz to 5.0 MHz above the meter (100 foot) cable drop that is con- lower boundary frequency of the cable nected to the subscriber tap, it shall television channel, referenced to the not be less than 1.41 millivolts across average of the highest and lowest am- an internal impedance of 75 ohms (+3 plitudes within these frequency bound- dBmV). (At other impedance values, aries. The amplitude characteristic the minimum visual signal level, as shall be measured at the subscriber ter- viewed from the subscriber terminal, minal. shall be the square root of 0.0133 (Z) (7) The ratio of RF visual signal level millivolts and, as measured at the end to system noise shall not be less than of a 30 meter (100 foot) cable drop that 43 decibels. For class I cable television is connected to the subscriber tap, channels, the requirements of this sec- shall be 2 times the square root of tion are applicable only to: 0.00662(Z) millivolts, where Z is the ap- (i) Each signal which is delivered by propriate impedance value.) a cable television system to subscribers (4) The visual signal level on each within the predicted Grade B or noise- channel, as measured at the end of a 30 limited service contour, as appropriate, meter cable drop that is connected to for that signal; the subscriber tap, shall not vary more (ii) Each signal which is first picked than 8 decibels within any six-month up within its predicted Grade B or interval, which must include four tests noise-limited service contour, as appro- performed in six-hour increments dur- priate; ing a 24-hour period in July or August (iii) Each signal that is first received and during a 24-hour period in January by the cable television system by di- or February, and shall be maintained rect video feed from a TV broadcast within: station, a low power TV station, or a (i) 3 decibels (dB) of the visual signal TV translator station. level of any visual carrier within a 6 (8) The ratio of visual signal level to MHz nominal frequency separation; the rms amplitude of any coherent dis- (ii) 10 dB of the visual signal level on turbances such as intermodulation any other channel on a cable television products, second and third order distor- system of up to 300 MHz of cable dis- tions or discrete-frequency interfering tribution system upper frequency signals not operating on proper offset limit, with a 1 dB increase for each ad- assignments shall be as follows: ditional 100 MHz of cable distribution (i) The ratio of visual signal level to system upper frequency limit (e.g., 11 coherent disturbances shall not be less dB for a system at 301–400 MHz; 12 dB than 51 decibels for noncoherent chan- for a system at 401–500 MHz, etc.); and nel cable television systems, when (iii) A maximum level such that sig- measured with modulated carriers and nal degradation due to overload in the time averaged; and subscriber’s receiver or terminal does (ii) The ratio of visual signal level to not occur. coherent disturbances which are fre- (5) The rms voltage of the aural sig- quency-coincident with the visual car- nal shall be maintained between 10 and rier shall not be less than 47 decibels 17 decibels below the associated visual for coherent channel cable systems, signal level. This requirement must be when measured with modulated car- met both at the subscriber terminal riers and time averaged. and at the output of the modulating (9) The terminal isolation provided to and processing equipment (generally each subscriber terminal: the headend). For subscriber terminals (i) Shall not be less than 18 decibels. that use equipment which modulate In lieu of periodic testing, the cable op- and remodulate the signal (e.g., erator may use specifications provided baseband converters), the rms voltage by the manufacturer for the terminal of the aural signal shall be maintained isolation equipment to meet this between 6.5 and 17 decibels below the standard; and associated visual signal level at the (ii) Shall be sufficient to prevent re- subscriber terminal. flections caused by open-circuited or

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short-circuited subscriber terminals (ii) The differential gain for the color from producing visible picture impair- of the television signal, ments at any other subscriber ter- which is measured as the difference in minal. amplitude between the largest and (10) The peak-to-peak variation in smallest segments of the chrominance visual signal level caused by undesired signal (divided by the largest and ex- low frequency disturbances (hum or re- pressed in percent), shall not exceed petitive transients) generated within ±20%. the system, or by inadequate low fre- (iii) The differential phase for the quency response, shall not exceed 3 per- cent of the visual signal level. Meas- color subcarrier of the television signal urements made on a single channel which is measured as the largest phase using a single unmodulated carrier difference in degrees between each seg- may be used to demonstrate compli- ment of the chrominance signal and ance with this parameter at each test reference segment (the segment at the location. blanking level of 0 IRE), shall not ex- (11) The following requirements apply ceed ±10 degrees. to the performance of the cable tele- (c) As an exception to the general vision system as measured at the out- provision requiring measurements to put of the modulating or processing be made at subscriber terminals, and equipment (generally the headend) of without regard to the type of signals the system: carried by the cable television system, (i) The chrominance-luminance delay signal leakage from a cable television inequality (or chroma delay), which is system shall be measured in accord- the change in delay time of the chro- ance with the procedures outlined in minance component of the signal rel- § 76.609(h) and shall be limited as shown ative to the luminance component, in table 1 to paragraph (c): shall be within 170 nanoseconds.

TABLE 1 TO PARAGRAPH (c)

Signal Distance Frequencies leakage in meters limit (m)

Analog signals less than and including 54 MHz, and over 216 MHz ...... 15 μV/m ...... 30 Digital signals less than and including 54 MHz, and over 216 MHz ...... 13.1 μV/m ...... 30 Analog signals over 54 MHz up to and including 216 MHz ...... 20 μV/m ...... 3 Digital signals over 54 MHz up to and including 216 MHz ...... 17.4 μV/m ...... 3

(d) Cable television systems distrib- NOTE 1: Local franchising authorities of uting signals by methods other than 6 systems serving fewer than 1,000 subscribers MHz NTSC or similar analog channels may adopt standards less stringent than or 6 MHz QAM or similar channels on those in § 76.605(a) and (b). Any such agree- ment shall be reduced to writing and be asso- conventional coaxial or hybrid fiber- ciated with the system’s proof-of-perform- systems and which, be- ance records. cause of their basic design, cannot NOTE 2: For systems serving rural areas as comply with one or more of the tech- defined in § 76.5, the system may negotiate nical standards set forth in paragraphs with its local franchising authority for (a) and (b) of this section, are per- standards less stringent than those in mitted to operate without Commission § 76.605(b)(3), (7), (8), (10) and (11). Any such approval, provided that the operators agreement shall be reduced to writing and be of those systems adhere to all other ap- associated with the system’s proof-of-per- formance records. plicable Commission rules and respond NOTE 3: The requirements of this section to consumer and local franchising au- shall not apply to devices subject to the TV thorities regarding industry-standard interface device rules under part 15 of this technical operation as set forth in chapter. their local franchise agreements and NOTE 4: Should subscriber complaints arise consistent with § 76.1713. from a system failing to meet § 76.605(b)(10), the cable operator will be required to remedy

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the complaint and perform test measure- ments added to a programming stream ments on § 76.605(b)(10) containing the full by a cable operator or other MVPD number of channels as indicated in prior to or at the time of transmission § 76.601(b)(2) at the complaining subscriber’s terminal. Further, should the problem be to viewers. In order to be considered to found to be system-wide, the Commission have installed, utilized and maintained may order that the full number of channels the equipment and associated software as indicated in § 76.601(b)(2) be tested at all in a commercially reasonable manner, required locations for future proof-of-per- a cable operator or other MVPD must: formance tests. (i) Install, maintain and utilize NOTE 5: No State or franchising authority equipment to properly measure the may prohibit, condition, or restrict a cable loudness of the content and to ensure system’s use of any type of subscriber equip- ment or any transmission technology. that the dialnorm metadata value cor- rectly matches the loudness of the con- [83 FR 7627, Feb. 22, 2018] tent when encoding the audio into AC– § 76.606 Closed captioning. 3 for transmitting the content to the consumer; (a) The operator of each cable tele- (ii) Provide records showing the con- vision system shall not take any action sistent and ongoing use of this equip- to remove or alter closed captioning ment in the regular course of business data contained on line 21 of the and demonstrating that the equipment vertical blanking interval. has undergone commercially reason- (b) The operator of each cable tele- able periodic maintenance and testing vision system shall deliver intact to ensure its continued proper oper- closed captioning data contained on ation; line 21 of the vertical blanking inter- (iii) Certify that it either has no ac- val, as it arrives at the headend or tual knowledge of a violation of the from another origination source, to ATSC A/85 RP, or that any violation of subscriber terminals and (when so de- which it has become aware has been livered to the cable system) in a format corrected promptly upon becoming that can be recovered and displayed by aware of such a violation; and decoders meeting § 79.101 of this chap- (iv) Certify that its own transmission ter. equipment is not at fault for any pat- [83 FR 7629, Feb. 22, 2018] tern or trend of complaints. (3) Embedded commercials—safe harbor. § 76.607 Transmission of commercial With respect to embedded commer- advertisements. cials, which, for the purposes of this (a) Transmission of commercial adver- provision, are those commercial adver- tisements by cable operator or other multi- tisements placed into the programming channel video programming distributor. stream by a third party (i.e., pro- (1) Mandatory compliance with ATSC A/ grammer) and passed through by the 85 RP. Effective December 13, 2012, cable operator or other MVPD to view- cable operators and other multichannel ers, a cable operator or other MVPD video programming distributors must certify that its own transmission (MVPDs), as defined in 47 U.S.C. 522, equipment is not at fault for any pat- must comply with ATSC A/85 RP (in- tern or trend of complaints, and may corporated by reference, see § 76.602), demonstrate compliance with the insofar as it concerns the transmission ATSC A/85 RP through one of the fol- of commercial advertisements. lowing methods: (2) Commercials inserted by cable oper- (i) Relying on a network’s or other ator or other MVPD. A cable operator or programmer’s certification of compli- other multichannel video programming ance with the ATSC A/85 RP with re- distributor that installs, utilizes, and spect to commercial programming, maintains in a commercially reason- provided that: able manner the equipment and associ- (A) The certification is widely avail- ated software to comply with ATSC A/ able by Web site or other means to any 85 RP shall be deemed in compliance television broadcast station, cable op- with respect to locally inserted com- erator, or multichannel video program- mercials, which for the purposes of this ming distributor that transmits that provision are commercial advertise- programming; and

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(B) The cable operator or other mercials contained in that program- MVPD has no reason to believe that ming. the certification is false; and (iv) For the purposes of this section, (C) The cable operator or other a ‘‘spot check’’ of embedded commer- MVPD performs a spot check, as de- cials requires monitoring 24 uninter- fined in § 76.607(a)(3)(iv)(A), (B), (D), rupted hours of programming with an and (E), on the programming in re- audio loudness meter compliant with sponse to an enforcement inquiry con- the ATSC A/85 RP’s measurement tech- cerning a pattern or trend of com- nique, and reviewing the records from plaints regarding commercials con- that monitoring to detect any commer- tained in that programming; cials transmitted in violation of the (ii) If transmitting any programming ATSC A/85 RP. The cable operator or that is not certified as described in other MVPD must not inform the net- § 76.607(a)(3)(i): work or programmer of the spot check (A) A cable operator or other MVPD prior to performing it. that had 10,000,000 subscribers or more (A) Spot-checking must be conducted as of December 31, 2011 must perform after the signal has passed through the annual spot checks, as defined in cable operator or other MVPD’s proc- § 76.607(a)(3)(iv)(A), (B), (C), and (E), of essing equipment (e.g., at the output of all the non-certified commercial pro- a set-top box). If a problem is found, gramming it receives from a network the cable operator or other MVPD or other programmer that is carried by must determine the source of the non- any system operated by the cable oper- compliance. ator or other MVPD, and perform a (B) To be considered valid, the cable spot check, as defined in operator or other MVPD must dem- § 76.607(a)(3)(iv)(A), (B), (D), and (E), on onstrate appropriate maintenance programming in response to an en- records for the audio loudness meter. forcement inquiry concerning a pattern (C) With reference to the annual or trend of complaints regarding com- ‘‘safe harbor’’ spot check in mercials contained in that program- § 76.607(a)(3)(ii): ming; and (1) To be considered valid, the cable (B) A cable operator or other MVPD operator or other—MVPD must dem- that had fewer than 10,000,000 but more onstrate, at the time of any enforce- than 400,000 subscribers as of December ment inquiry, that appropriate spot 31, 2011, must perform annual spot checks had been ongoing. checks, as defined in (2) If there is no single 24 hour period § 76.607(a)(3)(iv)(A), (B), (C), and (E), of in which all programmers of a given a randomly chosen 50 percent of the channel are represented, an annual non-certified commercial programming spot check could consist of a series of it receives from a network or other loudness measurements over the course programmer that is carried by any sys- of a 7 day period, totaling no fewer tem operated by the cable operator or than 24 hours, that measure at least other MVPD, and perform a spot check, one program, in its entirety, provided as defined in § 76.607(a)(3)(iv)(A), (B), by each non-certified programmer that (D), and (E), on programming in re- supplies programming for that channel. sponse to an enforcement inquiry con- (3) If annual spot checks are per- cerning a pattern or trend of com- formed for two consecutive years with- plaints regarding commercials con- out finding evidence of noncompliance tained in that programming; or with the ATSC A/85 RP, no further an- (iii) A cable operator or other MVPD nual spot checks are required to re- that had fewer than 400,000 subscribers main in the safe harbor for existing as of December 31, 2011, need not per- programming. form annual spot checks but must per- (4) Newly-added (or newly de-cer- form a spot check, as defined in tified) non-certified channels must be § 76.607(a)(3)(iv)(A), (B), (D), and (E), on spot-checked annually using the ap- programming in response to an en- proach described in this section. If an- forcement inquiry concerning a pattern nual spot checks of the channel are or trend of complaints regarding com- performed for two consecutive years

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without finding evidence of noncompli- (2) If the follow-up spot check shows ance with the ATSC A/85 RP, no fur- noncompliance with the ATSC A/85 RP, ther annual spot checks are required to the cable operator or other MVPD will remain in the safe harbor for that not be in the safe harbor with respect channel. to commercials contained in program- (5) Even after the two year period, if ming for which the spot check showed a spot check shows noncompliance on a noncompliance until a subsequent spot non-certified channel, the cable oper- check shows that the programming is ator or other MVPD must once again in compliance. perform annual spot checks of that (4) Use of a real-time processor. A cable channel to be in the safe harbor for operator or other MVPD that installs, that programming. If these renewed maintains and utilizes a real-time annual spot checks are performed for processor in a commercially reasonable two consecutive years without finding manner will be deemed in compliance additional evidence of noncompliance with the ATSC A/85 RP with regard to with the ATSC A/85 RP, no further an- any commercial advertisements on nual spot checks are required to re- which it uses such a processor, so long main in the safe harbor for that chan- as it also: nel. (i) Provides records showing the con- (D) With reference to the spot checks sistent and ongoing use of this equip- in response to an enforcement inquiry ment in the regular course of business pursuant to § 76.607(a)(3)(i)(C), (ii), or and demonstrating that the equipment (iii): has undergone commercially reason- (1) If notified of a pattern or trend of able periodic maintenance and testing complaints, the cable operator or other to ensure its continued proper oper- MVPD must perform the 24-hour spot ation; check of the channel or programming (ii) Certifies that it either has no ac- at issue within 30 days or as otherwise tual knowledge of a violation of the specified by the Enforcement Bureau; ATSC A/85 RP, or that any violation of and which it has become aware has been (2) If the spot check reveals actual compliance, the cable operator or other corrected promptly upon becoming MVPD must notify the Commission in aware of such a violation; and its response to the enforcement in- (iii) Certifies that its own trans- quiry. mission equipment is not at fault for (E) If any spot check shows non- any pattern or trend of complaints. compliance with the ATSC A/85 RP, the (5) Commercials locally inserted by a cable operator or other MVPD must cable operator or other MVPD’s agent— notify the Commission and the net- safe harbor. With respect to commer- work or programmer within 7 days, di- cials locally inserted, which for the rect the programmer’s attention to any purposes of this provision are commer- relevant complaints, and must perform cial advertisements added to a pro- a follow-up spot check within 30 days gramming stream for the cable oper- of providing such notice. The cable op- ator or other MVPD by a third party erator or other MVPD must notify the after it has been received from the pro- Commission and the network or pro- grammer but prior to or at the time of grammer of the results of the follow-up transmission to viewers, a cable oper- spot check. Notice to the Federal Com- ator or other MVPD may demonstrate munications Commission must be pro- compliance with the ATSC A/85 RP by vided to the Chief, Investigations and relying on the third party local Hearings Division, Enforcement Bu- inserter’s certification of compliance reau, or as otherwise directed in a Let- with the ATSC A/85 RP, provided that: ter of Inquiry to which the cable oper- (i) The cable operator or other MVPD ator or other MVPD is responding. has no reason to believe that the cer- (1) If the follow-up spot check shows tification is false; compliance with the ATSC A/85 RP, the (ii) The cable operator or other cable operator or other MVPD remains MVPD certifies that its own trans- in the safe harbor for that channel or mission equipment is not at fault for programming. any pattern or trend of complaints; and

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(iii) The cable operator or other (b) When it may be necessary to re- MVPD performs a spot check, as de- move the television signal normally fined in § 76.607(a)(3)(iv)(A), (B), (D), carried on a cable television channel in and (E), on the programming at issue order to facilitate a performance meas- in response to an enforcement inquiry urement, it will be permissible to dis- concerning a pattern or trend of com- connect the antenna which serves the plaints regarding commercials inserted channel under measurement and to by that third party. substitute therefor a matching resist- (6) Instead of demonstrating compli- ance termination. Other antennas and ance pursuant to paragraphs (a)(2) inputs should remain connected and through (5) of this section, a cable op- normal signal levels should be main- erator or other MVPD may dem- tained on other channels. onstrate compliance with paragraph (c) As may be necessary to ensure (a)(1) of this section in response to an satisfactory service to a subscriber, the enforcement inquiry prompted by a Commission may require additional pattern or trend of complaints by dem- tests to demonstrate system perform- onstrating actual compliance with ance or may specify the use of different ATSC A/85 RP with regard to the com- test procedures. mercial advertisements that are the (d) The frequency response of a cable subject of the inquiry, and certifying television channel may be determined that its own transmission equipment is by one of the following methods, as ap- not at fault for any such pattern or propriate: trend of complaints. (1) By using a swept frequency or a NOTE TO § 76.607(a): For additional informa- manually variable signal generator at tion regarding this requirement, see Imple- the sending end and a calibrated atten- mentation of the Commercial Advertisement uator and frequency-selective Loudness Mitigation (CALM) Act, FCC 11– voltmeter at the subscriber terminal; 182. or (b) [Reserved] (2) By using either a multiburst gen- [77 FR 40300, July 9, 2012] erator or vertical interval test signals and either a modulator or processor at § 76.609 Measurements. the sending end, and by using either a demodulator and either an oscilloscope (a) Measurements made to dem- display or a waveform monitor display onstrate conformity with the perform- at the subscriber terminal. ance requirements set forth in §§ 76.601 and 76.605 shall be made under condi- (e) System noise may be measured tions which reflect system performance using a frequency-selective voltmeter during normal operations, including (field strength meter) which has been the effect of any microwave relay oper- suitably calibrated to indicate rms ated in the Cable Television Relay noise or average power level and which (CARS) Service intervening between has a known bandwidth. With the sys- pickup antenna and the cable distribu- tem operating at normal level and with tion network. Amplifiers shall be oper- a properly matched resistive termi- ated at normal gains, either by the in- nation substituted for the antenna, sertion of appropriate signals or by noise power indications at the sub- manual adjustment. Special signals in- scriber terminal are taken in succes- serted in a cable television channel for sive increments of frequency equal to measurement purposes should be oper- the bandwidth of the frequency-selec- ated at levels approximating those tive voltmeter, summing the power in- used for normal operation. Pilot tones, dications to obtain the total noise auxiliary or substitute signals, and power present over a 4 MHz band cen- nontelevision signals normally carried tered within the cable television chan- on the cable television system should nel. If it is established that the noise be operated at normal levels to the ex- level is constant within this band- tent possible. Some exemplary, but not width, a single measurement may be mandatory, measurement procedures taken which is corrected by an appro- are set forth in this section. priate factor representing the ratio of 4

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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- ommended Practices for Measurements (2) Field strength shall be expressed on Cable Television Systems, 2nd edi- in terms of the rms value of synchro- tion, November 1989, on noise measure- nizing peak for each cable television ment may be employed. channel for which signal leakage can (f) The amplitude of discrete fre- be measured. quency interfering signals within a (3) The resonant half wave dipole an- cable television channel may be deter- tenna shall be placed 3 meters from and mined with either a spectrum analyzer positioned directly below the system or with a frequency-selective voltmeter components and at 3 meters above (field strength meter), which instru- ground. Where such placement results ments have been calibrated for ade- in a separation of less than 3 meters quate accuracy. If calibration accuracy between the center of the dipole an- is in doubt, measurements may be ref- tenna and the system components, or erenced to a calibrated signal gener- less than 3 meters between the dipole ator, or a calibrated variable attenu- and ground level, the dipole shall be ator, substituted at the point of meas- repositioned to provide a separation of urement. If an amplifier is used be- 3 meters from the system components tween the subscriber terminal and the at a height of 3 meters or more above measuring instrument, appropriate ground. corrections must be made to account for its gain. (4) The horizontal dipole antenna (g) The terminal isolation between shall be rotated about a vertical axis any two terminals in the cable tele- and the maximum meter reading shall vision system may be measured by ap- be used. plying a signal of known amplitude to (5) Measurements shall be made one terminal and measuring the ampli- where other conductors are 3 or more tude of that signal at the other ter- meters (10 or more feet) away from the minal. The frequency of the signal measuring antenna. should be close to the midfrequency of (i) For systems using cable traps and the channel being tested. Measure- filters to control the delivery of spe- ments of terminal isolation are not re- cific channels to the subscriber ter- quired when either: minal, measurements made to deter- (1) The manufacturer’s specifications mine compliance with § 76.605(a) (5) and for subscriber tap isolation based on a (6) may be performed at the location representative sample of no less than immediately prior to the trap or filter 500 subscribers taps or for the specific channel. The effects of (2) Laboratory tests performed by or these traps or filters, as certified by for the operator of a cable television the system engineer or the equipment system on a representative sample of manufacturer, must be attached to no less than 50 subscriber taps, indi- cates that the terminal isolation each proof-of-performance record. standard of § 76.605(a)(9) is met. (j) Measurements made to determine the differential gain, differential phase To demonstrate compliance with § 76.605(a)(9), the operator of a cable tel- and the chrominance-luminance delay evision system shall attach either such inequality (chroma delay) shall be manufacturer’s specifications or lab- made in accordance with the NCTA oratory measurements as an exhibit to Recommended Practices for Measure- each proof-of-performance record. ments on Cable Television Systems,

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2nd edition, November 1989, on these units do not have to comply with parameters. § 76.1803. [37 FR 3278, Feb. 12, 1972, as amended at 37 [83 FR 7629, Feb. 22, 2018] FR 13867, July 14, 1972; 41 FR 10067, Mar. 9, 1976; 42 FR 21782, Apr. 29, 1977; 49 FR 45441, § 76.611 Cable television basic signal Nov. 16, 1984; 57 FR 11004, Apr. 1, 1992; 57 FR leakage performance criteria. 61011, Dec. 23, 1992; 58 FR 44952, Aug. 25, 1993] (a) No cable television system shall § 76.610 Operation in the frequency commence or provide service in the fre- bands 108–137 MHz and 225–400 quency bands 108–137 and 225–400 MHz MHz—scope of application. unless such systems is in compliance The provisions of §§ 76.605(d), 76.611, with one of the following cable tele- 76.612, 76.613, 76.614, 76.616, 76.617, 76.1803 vision basic signal leakage perform- and 76.1804 are applicable to all MVPDs ance criteria: (cable and non-cable) transmitting (1) Prior to carriage of signals in the analog carriers or other signal compo- aeronautical radio bands and at least nents carried at an average power level once each calendar year, with no more equal to or greater than 100 microwatts than 12 months between successive across a 25 kHz bandwidth in any 160 tests thereafter, based on a sampling of microsecond period or transmitting at least 75% of the cable strand, and in- digital carriers or other signal compo- cluding any portion of the cable system nents at an average power level of 75.85 which are known to have or can rea- microwatts across a 25 kHz bandwidth sonably be expected to have less leak- in any 160 microsecond period at any age integrity than the average of the point in the cable distribution system system, the cable operator dem- in the frequency bands 108–137 and 225– onstrates compliance with a cumu- 400 MHz for any purpose. Exception: lative signal leakage index by showing Non-cable MVPDs serving less than that 10 log I∞ is equal to or less than 64 1000 subscribers and less than 1,000 using the following formula:

q is the fraction of the system cable strength generated by the cable system length actually examined for leakage exceed 10 microvolts per meter (μV/m) sources and is equal to the strand kilo- RMS at an altitude of 450 meters above meters (strand miles) of plant tested the average terrain of the cable sys- divided by the total strand kilometers tem. The measurement system (includ- (strand miles) in the plant; ing the receiving antenna) shall be Ei is the electric field strength in calibrated against a known field of 10 microvolts per meter (μV/m) measured μV/m RMS produced by a well charac- 3 meters from the leak i; and terized antenna consisting of orthog- n is the number of leaks found of onal resonant dipoles, both parallel to field strength equal to or greater than and one quarter wavelength above the 50 μV/m measured pursuant to ground plane of a diameter of two me- § 76.609(h). ters or more at ground level. The The sum is carried over all leaks i de- dipoles shall have centers collocated tected in the cable examined; or and be excited 90 degrees apart. The (2) Prior to carriage of signals in the half-power bandwidth of the detector aeronautical radio bands and at least shall be 25 kHz. If an aeronautical re- once each calendar year, with no more ceiver is used for this purpose it shall than 12 months between successive meet the standards of the Radio Tech- tests thereafter, the cable operator nical Commission for Aeronautics demonstrates by measurement in the (RCTA) for aeronautical communica- airspace that at no point does the field tions receivers. The aircraft antenna

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shall be horizontally polarized. Cali- plant, the operator shall show compli- bration shall be made in the commu- ance with either: nity unit or, if more than one, in any of (1) The basic signal leakage criteria the community units of the physical in accordance with paragraphs (a)(1) or system within a reasonable time period (2) of this section for the entire plant to performing the measurements. If in operation or data is recorded digitally the 90th per- (2) a showing shall be made indi- centile level of points recorded over cating that no individual leak in the the cable system shall not exceed 10 new section of the plant exceeds 20 μV/ μV/m RMS as indicated above; if analog m at 3 meters in accordance with recordings is used the peak values of § 76.609 for analog signals or 17.4 μV/m the curves, when smoothed according at 3 meters for digital signals. to good engineering practices, shall not (f) Notwithstanding paragraph (a) of exceed 10 μV/m RMS. this section, a cable operator shall be (b) In paragraphs (a)(1) and (2) of this permitted to operate on any frequency section the unmodulated test signal which is offset pursuant to § 76.612 in the frequency band 108–137 MHz for the used for analog leakage measurements purpose of demonstrating compliance on the cable plant shall— with the cable television basic signal (1) Be within the VHF aeronautical leakage performance criteria. band 108–137 MHz or any other fre- quency for which the results can be [83 FR 7629, Feb. 22, 2018] correlated to the VHF aeronautical band; and § 76.612 Cable television frequency separation standards. (2) Have an average power level equal to the greater of: All cable television systems which operate analog NTSC or similar chan- (i) The peak envelope power level of nels in the frequency bands 108–137 the strongest NTSC or similar analog MHZ and 225–400 MHz shall comply cable television signal on the system, with the following frequency separa- or tion standards for each NTSC or simi- (ii) 1.2 dB greater than the average lar channel: power level of the strongest QAM or (a) In the aeronautical similar digital cable television signal radiocommunication bands 118–137, 225– on the system. 328.6 and 335.4–400 MHz, the frequency (c) In paragraphs (a)(1) and (2) of this of all carrier signals or signal compo- section, if a modulated test signal is nents carried at an average power level used for analog leakage measurements, equal to or greater than 10¥4 watts in the test signal and detector technique a 25 kHz bandwidth in any 160 micro- must, when considered together, yield second period must operate at fre- the same result as though an quencies offset from certain fre- unmodulated test signal were used in quencies which may be used by aero- conjunction with a detection technique nautical radio services operated by which would yield the RMS value of Commission licensees or by the United said unmodulated carrier. States Government or its Agencies. (d) If a sampling of at least 75% of The aeronautical frequencies from the cable strand (and including any which offsets must be maintained are portions of the cable system which are those frequencies which are within one known to have or can reasonably be ex- of the aeronautical bands defined in pected to have less leakage integrity this subparagraph, and when expressed than the average of the system) as de- in MHz and divided by 0.025 yield an in- scribed in paragraph (a)(1) of this sec- teger. The offset must meet one of the tion cannot be obtained by the cable following two criteria: operator or is otherwise not reasonably (1) All such cable carriers or signal feasible, the cable operator shall per- components shall be offset by 12.5 kHz form the airspace measurements de- with a frequency tolerance of ±5 kHz; scribed in paragraph (a)(2) of this sec- or tion. (2) The fundamental frequency from (e) Prior to providing service to any which the visual carrier frequencies are subscriber on a new section of cable derived by multiplication by an integer

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number which shall be 6.0003 MHz with mission’s local field office, and shall a tolerance of ±1 Hz (Harmonically Re- not be resumed until the interference lated Carrier (HRC) comb generators has been eliminated to the satisfaction only). of the Regional Director. When author- (b) In the aeronautical radio- ized by the Regional Director, short navigation bands 108–118 and 328.6–335.4 test operations may be made during MHz, the frequency of all carrier sig- the period of suspended operation to nals or signal components carrier at an check the efficacy of remedial meas- average power level equal to or greater ures. than 10¥4 watts in a 25 kHz bandwidth (d) The MVPD may be required by in any 160 microsecond period shall be the Regional Director to prepare and offset by 25 kHz with a tolerance of ±5 submit a report regarding the cause(s) kHz. The aeronautical radionavigation of the interference, corrective meas- frequencies from which offsets must be ures planned or taken, and the efficacy maintained are defined as follows: of the remedial measures. (1) Within the aeronautical band 108– [42 FR 41296, Aug. 16, 1977, as amended at 62 118 MHz when expressed in MHz and di- FR 61031, Nov. 14, 1997; 80 FR 53751, Sept. 8, vided by 0.025 yield an even integer. 2015] (2) Within the band 328.6–335.4 MHz, the radionavigation glide path chan- § 76.614 Cable television system reg- nels are listed in Section 87.501 of the ular monitoring. Rules. Cable television operators transmit- NOTE: The HRC system, as described above, ting carriers in the frequency bands will meet this requirement in the 328.6–335.4 108–137 and 225–400 MHz shall provide MHz navigation glide path band. Those In- for a program of regular monitoring for crementally Related Carriers (IRC) systems, signal leakage by substantially cov- with comb generator reference frequencies ering the plant every three months. set at certain odd multiples equal to or The incorporation of this monitoring greater than 3 times the 0.0125 MHz aero- program into the daily activities of ex- nautical communications band offset, e.g. (6n + 1.250 ±0.0375) MHz, may also meet the 25 isting service personnel in the dis- kHz offset requirement in the navigation charge of their normal duties will gen- glide path band. erally cover all portions of the system and will therefore meet this require- [50 FR 29400, July 19, 1985, as amended at 83 FR 7630, Feb. 22, 2018] ment. Monitoring equipment and pro- cedures utilized by a cable operator § 76.613 Interference from a multi- shall be adequate to detect a leakage channel video programming dis- source which produces a field strength tributor (MVPD). in these bands of 20 uV/m or greater at (a) Harmful interference is any emis- a distance of 3 meters. During regular sion, radiation or induction which en- monitoring, any leakage source which dangers the functioning of a radio- produces a field strength of 20 uV/m or navigation service or of other safety greater at a distance of 3 meters in the services or seriously degrades, ob- aeronautical radio frequency bands structs or repeatedly interrupts a shall be noted and such leakage sources radiocommunication service operating shall be repaired within a reasonable in accordance with this chapter. period of time. (b) An MVPD that causes harmful in- NOTE 1 TO § 76.614: Section 76.1706 contains terference shall promptly take appro- signal leakage recordkeeping requirements priate measures to eliminate the harm- applicable to cable operators. ful interference. [65 FR 53616, Sept. 5, 2000] (c) If harmful interference to radio communications involving the safety § 76.616 Operation near certain aero- of life and protection of property can- nautical and marine emergency not be promptly eliminated by the ap- radio frequencies. plication of suitable techniques, oper- (a) The transmission of carriers or ation of the offending MVPD or appro- other signal components capable of de- priate elements thereof shall imme- livering peak power levels equal to or diately be suspended upon notification greater than 10¥5 watts at any point in by the Regional Director for the Com- a cable television system is prohibited

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within 100 kHz of the frequency 121.5 CableCARD at the time of encryption MHz, and is prohibited within 50 kHz of the equipment necessary to descramble the two frequencies 156.8 MHz and 243.0 or decrypt the basic service tier signals MHz. (the subscriber’s choice of a set-top box (b) At any point on a cable system or CableCARD) on up to two television from 405.925 MHz to 406.176 MHz analog sets without charge or service fee for transmissions are prohibited from de- two years from the date encryption of livering peak power levels equal to or the basic service tier commences; and greater than 10¥5 watts. The trans- (iii) The cable system operator offers mission of digital signals in this range to its existing subscribers who sub- is limited to power levels measured scribe to a level of service above ‘‘basic using a root-mean-square detector of only’’ but use a digital television or less than 10¥5 watts in any 30 kHz other device with a clear-QAM tuner to bandwidth over any 2.5 millisecond in- receive only the basic service tier with- terval. out use of a set-top box or CableCARD [69 FR 57862, Sept. 28, 2004] at the time of encryption, the equip- ment necessary to descramble or § 76.617 Responsibility for inter- decrypt the basic service tier signals ference. (the subscriber’s choice of a set-top box Interference resulting from the use of or CableCARD) on one cable system terminal equipment (in- without charge or service fee for one cluding subscriber terminal, input se- year from the date encryption of the lector switch and any other acces- basic service tier commences; and sories) shall be the responsibility of the (iv) The cable system operator offers cable system terminal equipment oper- to its existing subscribers who receive ator in accordance with the provisions Medicaid and also subscribe only to the of part 15 of this chapter: provided, basic service tier without use of a set- however, that the operator of a cable top box or CableCARD at the time of system to which the cable system ter- encryption the equipment necessary to minal equipment is connected shall be descramble or decrypt the basic service responsible for detecting and elimi- tier signals (the subscriber’s choice of a nating any signal leakage where that set-top box or CableCARD) on up to leakage would cause interference out- two television sets without charge or side the subscriber’s premises and/or service fee for five years from the date would cause the cable system to exceed encryption of the basic service tier the Part 76 signal leakage require- commences; ments. In cases where excessive signal (v) The cable system operator noti- leakage occurs, the cable operator fies its existing subscribers of the shall be required only to discontinue availability of the offers described in service to the subscriber until the paragraphs (ii) through (iv) of this sec- problem is corrected. tion at least 30 days prior to the date encryption of the basic service tier [53 FR 46619, Nov. 18, 1989] commences and makes the offers avail- §§ 76.618–76.620 [Reserved] able for at least 30 days prior to and 120 days after the date encryption of the § 76.630 Compatibility with consumer basic service tier commences. The noti- electronics equipment. fication to subscribers must state: (a) Cable system operators shall not On (DATE), (NAME OF CABLE OPER- scramble or otherwise encrypt signals ATOR) will start encrypting (INSERT NAME delivered to a subscriber on the basic OF CABLE BASIC SERVICE TIER OFFER- service tier. ING) on your cable system. If you have a set- (1) This prohibition shall not apply in top box, digital transport adapter (DTA), or systems in which: a retail CableCARD device connected to each (i) No encrypted signals are carried of your TVs, you will be unaffected by this using the NTSC system; and change. However, if you are currently receiv- ing (INSERT NAME OF CABLE BASIC (ii) The cable system operator offers SERVICE TIER OFFERING) on any TV to its existing subscribers who sub- without equipment supplied by (NAME OF scribe only to the basic service tier CABLE OPERATOR), you will lose the abil- without use of a set-top box or ity to view any channels on that TV.

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If you are affected, you should contact request for waiver was filed with the (NAME OF CABLE OPERATOR) to arrange Commission, and cable operators must for the equipment you need to continue re- inform the Commission in writing, as ceiving your services. In such case, you are entitled to receive equipment at no addi- soon as possible, of that notification tional charge or service fee for a limited pe- date. The notification to subscribers riod of time. The number and type of devices must state: you are entitled to receive and for how long will vary depending on your situation. If you On (date of waiver request was filed with are a (INSERT NAME OF CABLE BASIC the Commission), (cable operator’s name) SERVICE TIER OFFERING) customer and filed with the Federal Communications Com- receive the service on your TV without mission a request for waiver of the rule pro- (NAME OF CABLE OPERATOR)-supplied hibiting scrambling of channels on the basic equipment, you are entitled to up to two de- tier of service. 47 CFR 76.630(a). The request vices for two years (five years if you also re- for waiver states (a brief summary of the ceive Medicaid). If you subscribe to a higher waiver request). A copy of the request for level of service and receive (INSERT NAME waiver shall be available for public inspec- OF CABLE BASIC SERVICE TIER OFFER- tion at www.fcc.gov. ING) on a secondary TV without (NAME OF Individuals who wish to comment on this CABLE OPERATOR)-supplied equipment, request for waiver should mail comments to you are entitled to one device for one year. the Federal Communications Commission by You can learn more about this equipment no later than 30 days from (the date the noti- offer and eligibility at (WEBPAGE AD- fication was mailed to subscribers). Those DRESS) or by calling (PHONE NUMBER). To qualify for any equipment at no additional comments should be addressed to the: Fed- charge or service fee, you must request the eral Communications Commission, Media equipment between (DATE THAT IS 30 Bureau, Washington, DC 20554, and should in- DAYS BEFORE ENCRYPTION) and (DATE clude the name of the cable operator to THAT IS 120 DAYS AFTER ENCRYPTION) whom the comments are applicable. Individ- and satisfy all other eligibility require- uals should also send a copy of their com- ments. ments to (the cable operator at its local place of business). (vi) The cable system operator noti- Cable operators may file comments in fies its subscribers who have received reply no later than 7 days from the date sub- equipment described in paragraphs scriber comments must be filed. (a)(1)(ii) through (iv) of this section at least 30 days, but no more than 60 days, (b) Cable system operators that pro- before the end of the free device transi- vide their subscribers with cable sys- tional period that the transitional pe- tem terminal devices and other cus- riod will end. This notification must tomer premises equipment that incor- state: porates remote control capability shall permit the remote operation of such You currently receive equipment necessary to descramble or decrypt the basic service devices with commercially available tier signals (either a set-top box or remote control units or otherwise take CableCARD) free of charge. Effective with no action that would prevent the de- the (MONTH/YEAR) billing cycle, (NAME OF vices from being operated by a com- CABLE OPERATOR) will begin charging you mercially available remote control for the equipment you received to access (IN- unit. Cable system operators are ad- SERT NAME OF CABLE BASIC SERVICE TIER OFFERING) when (NAME OF CABLE vised that this requirement obliges OPERATOR) started encrypting those chan- them to actively enable the remote nels on your cable system. The monthly control functions of customer premises charge for the (TYPE OF DEVICE) will be equipment where those functions do (AMOUNT OF CHARGE). not operate without a special activa- (2) Requests for waivers of this prohi- tion procedure. Cable system operators bition must demonstrate either a sub- may, however, disable the remote con- stantial problem with theft of basic trol functions of a subscriber’s cus- tier service or a strong need to scram- tomer premises equipment where re- ble basic signals for other reasons. As quested by the subscriber. part of this showing, cable operators [59 FR 25342, May 16, 1994, as amended at 61 are required to notify subscribers by FR 18510, Apr. 26, 1996; 65 FR 53616, Sept. 5, mail of waiver requests. The notice to 2000; 67 FR 1650, Jan. 14, 2002; 67 FR 13235, subscribers must be mailed no later Mar. 21, 2002; 77 FR 67301, Dec. 10, 2012; 81 FR than 30 calendar days from the date the 10125, Feb. 29, 2016; 83 FR 66157, Dec. 26, 2018]

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§ 76.640 Support for unidirectional each service in the transport stream. digital cable products on digital This twelve-hour period corresponds to cable systems. delivery of the following event infor- (a) The requirements of this section mation tables: EIT–0, –1, –2 and –3; shall apply to digital cable systems. (C) The format of event information For purposes of this section, digital data format shall conform to ATSC A/ cable systems shall be defined as a 65B: ‘‘ATSC Standard: Program and cable system with one or more chan- System Information Protocol for Ter- nels utilizing QAM modulation for restrial Broadcast and Cable (Revision transporting programs and services B)’’ (incorporated by reference, see from its headend to receiving devices. § 76.602); Cable systems that only pass through 8 (D) Each channel shall be identified VSB broadcast signals shall not be con- by a one- or two-part channel number sidered digital cable systems. and a textual channel name; and (b) No later than July 1, 2004, cable (E) The total bandwidth for PSIP operators shall support unidirectional data may be limited by the cable sys- digital cable products, as defined in tem to 80 kbps for a 27 Mbits multiplex § 15.123 of this chapter, through the pro- and 115 kbps for a 38.8 Mbits multiplex. visioning of Point of Deployment mod- (v) When service information tables ules (PODs) and services, as follows: are transmitted out-of-band for scram- (1) Digital cable systems with an ac- bled services: tivated channel capacity of 750 MHz or (A) The data shall, at minimum, de- greater shall comply with the following scribe services carried within the technical standards and requirements: transport stream carrying the PSIP (i) ANSI/SCTE 40 2016 (incorporated data itself; by reference, see § 76.602), provided how- (B) A table shall be ever that the ‘‘transit delay for most provided via the extended channel distant customer’’ requirement in interface from the POD module. Tables Table 4.3 is not mandatory. to be included shall conform to ANSI/ (ii) ANSI/SCTE 65 2002 (formerly DVS SCTE 65 2002 (formerly DVS 234): 234): ‘‘Service Information Delivered ‘‘Service Information Delivered Out-of- Out-of-Band for Digital Cable Tele- Band for Digital Cable Television’’ (in- vision’’ (incorporated by reference, see corporated by reference, see § 76.602). § 76.602), provided however that the ref- (C) Event information data when erenced Source Name Subtable shall be present shall conform to ANSI/SCTE 65 provided for Profiles 1, 2, and 3. 2002 (formerly DVS 234): ‘‘Service Infor- (iii) ANSI/SCTE 54 2003 (formerly mation Delivered Out-of-Band for Dig- DVS 241): ‘‘Digital Video Service Multi- ital Cable Television’’ (incorporated by plex and Transport System Standard reference, see § 76.602) (profiles 4 or for Cable Television’’ (incorporated by higher). reference, see § 76.602). (D) Each channel shall be identified (iv) For each digital transport stream by a one-or two-part channel number that includes one or more services car- and a textual channel name; and ried in-the-clear, such transport (E) The channel number identified stream shall include virtual channel with out-of-band signaling information data in-band in the form of ATSC A/ data should match the channel identi- 65B: ‘‘ATSC Standard: Program and fied with in-band PSIP data for all un- System Information Protocol for Ter- scrambled in-the-clear services. restrial Broadcast and Cable (Revision (2) All digital cable systems shall B)’’ (incorporated by reference, see comply with: § 76.602), when available from the con- (i) SCTE 28 2003 (formerly DVS 295): tent provider. With respect to in-band ‘‘Host-POD Interface Standard’’ (incor- transport: porated by reference, see § 76.602). (A) The data shall, at minimum, de- (ii) SCTE 41 2003 (formerly DVS 301): scribe services carried within the ‘‘POD Copy Protection System’’ (incor- transport stream carrying the PSIP porated by reference, see § 76.602). data itself; (3) Cable operators shall ensure, as to (B) PSIP data describing a twelve- all digital cable systems, an adequate hour time period shall be carried for supply of PODs that comply with the

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standards specified in paragraph (b)(2) may adopt and enforce prospectively a of this section to ensure convenient ac- written and published policy of prohib- cess to such PODS by customers. With- iting programming which, it reason- out limiting the foregoing, cable opera- ably believes, describes or depicts sex- tors may provide more advanced PODs ual or excretory activities or organs in (i.e., PODs that are based on successor a patently offensive manner as meas- standards to those specified in para- ured by contemporary community graph (b)(2) of this section) to cus- standards. tomers whose unidirectional digital (b) A cable operator may refuse to cable products are compatible with the transmit any leased access program or more advanced PODs. portion of a leased access program that (4) Cable operators shall: the operator reasonably believes con- (i) Effective April 1, 2004, upon re- tains obscenity, indecency or nudity. quest of a customer, replace any leased high definition set-top box, which does NOTE TO PARAGRAPH (b): ‘‘Nudity’’ in para- not include a functional IEEE 1394 graph (b) is interpreted to mean nudity that is obscene or indecent. interface, with one that includes a functional IEEE 1394 interface or up- [62 FR 28373, May 23, 1997, as amended at 64 grade the customer’s set-top box by FR 35950, July 2, 1999] download or other means to ensure that the IEEE 1394 interface is func- § 76.702 Public access. tional. A cable operator may refuse to trans- (ii) Effective July 1, 2011, include mit any public access program or por- both: tion of a public access program that (A) A DVI or HDMI interface and the operator reasonably believes con- (B) A connection capable of deliv- tains obscenity. ering recordable high definition video [62 FR 28373, May 23, 1997] and closed captioning data in an indus- try standard format on all high defini- tion set-top boxes, except Subpart M—Cable Inside Wiring unidirectional set-top boxes without § 76.800 Definitions. recording functionality, acquired by a cable operator for distribution to cus- (a) MDU. A multiple dwelling unit tomers. building (e.g., an apartment building, (iii) Effective December 1, 2012, en- condominium building or cooperative). sure that the cable-operator-provided (b) MDU owner. The entity that owns high definition set-top boxes, except or controls the common areas of a mul- unidirectional set-top boxes without tiple dwelling unit building. recording functionality, shall comply (c) MVPD. A multichannel video pro- with an open industry standard that gramming distributor, as that term is provides for audiovisual communica- defined in Section 602(13) of the Com- tions including service discovery, video munications Act, 47 U.S.C. 522(13). transport, and remote control com- (d) Home run wiring. The wiring from mand pass-through standards for home the demarcation point to the point at networking. which the MVPD’s wiring becomes de- voted to an individual subscriber or in- [68 FR 66734, Nov. 28, 2003, as amended at 76 FR 40279, July 8, 2011; 83 FR 7630, Feb. 22, dividual loop. 2018] [62 FR 61031, Nov. 14, 1997] Subpart L—Cable Television § 76.801 Scope. Access The provisions of this subpart set forth rules and regulations for the dis- § 76.701 Leased access channels. position, after a subscriber voluntarily (a) Notwithstanding 47 U.S.C. terminates cable service, of that cable 532(b)(2) (Communications Act of 1934, home wiring installed by the cable sys- as amended, section 612), a cable oper- tem operator or its contractor within ator, in accordance with 47 U.S.C. the premises of the subscriber. The pro- 532(h) (Cable Consumer Protection and visions do not apply where the cable Competition Act of 1992, section 10(a)), home wiring belongs to the subscriber,

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such as where the operator has trans- scriber’s side of the demarcation point ferred ownership to the subscriber, the multiplied by the length in feet of such operator has been treating the wiring wiring, and the replacement cost of as belonging to the subscriber for tax any passive splitters located on the purposes, or the wiring is considered to subscriber’s side of the demarcation be a fixture by state or local law in the point. subscriber’s jurisdiction. Nothing in (b) During the initial telephone call this subpart shall affect the cable sys- in which a subscriber contacts a cable tem operator’s rights and responsibil- operator to voluntarily terminate ities under § 76.617 to prevent excessive cable service, the cable operator—if it signal leakage while providing cable owns and intends to remove the home service, or the cable operator’s right to wiring—must inform the subscriber: 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 operating conditions, or make no sub- phone call). sequent attempt to remove it or to re- (c) If the subscriber voluntarily ter- strict its use. minates cable service in person, the (2) Upon voluntary termination of procedures set forth in paragraph (b) of cable service by an individual sub- this section apply. scriber in a multiple-unit installation, (d) If the subscriber requests termi- a cable operator shall not be entitled nation of cable service in writing, it is to remove the cable home wiring un- the operator’s responsibility—if it less: it gives the subscriber the oppor- wishes to remove the wiring—to make 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 sub- the home wiring will transfer to the

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subscriber immediately, and the sub- tors and alternative multichannel scriber will be permitted to authorize a video programming delivery service competing service provider to connect providers are required to minimize the with and use the home wiring. potential for signal leakage in accord- (g) If the cable operator adheres to ance with the guidelines set forth in 47 the procedures described in paragraph CFR 76.605(a)(13) and 76.610 through (b) of this section, and the subscriber 76.617, theft of service and unnecessary asks for more time to make a decision disruption of the consumer’s premises. regarding whether to purchase the (k) Definitions—Normal operating home wiring, the seven (7) day period conditions—The term ‘‘normal oper- described in paragraph (b) of this sec- ating conditions’’ shall have the same tion will not begin running until the meaning as at 47 CFR 76.309(c)(4)(ii). subscriber declines to purchase the wir- (l) The provisions of § 76.802 shall ing; in addition, the subscriber may apply to all MVPDs in the same man- not use the wiring to connect to an al- ner that they apply to cable operators. ternative service provider until the [61 FR 6137, Feb. 16, 1996, as amended at 62 subscriber notifies the operator wheth- FR 61031, Nov. 14, 1997; 68 FR 13855, Mar. 21, er or not the subscriber wishes to pur- 2003] chase the wiring. (h) If an alternative video program- § 76.804 Disposition of home run wir- ming service provider connects its wir- ing. ing to the home wiring before the in- (a) Building-by-building disposition of cumbent cable operator has terminated home run wiring. (1) Where an MVPD service and has capped off its line to owns the home run wiring in an MDU prevent signal leakage, the alternative and does not (or will not at the conclu- video programming service provider sion of the notice period) have a legally shall be responsible for ensuring that enforceable right to remain on the the incumbent’s wiring is properly premises against the wishes of the capped off in accordance with the Com- MDU owner, the MDU owner may give mission’s signal leakage requirements. the MVPD a minimum of 90 days’ writ- See Subpart K (technical standards) of ten notice that its access to the entire the Commission’s Cable Television building will be terminated to invoke Service rules (47 CFR 76.605(a)(13) and the procedures in this section. The 76.610 through 76.617). MVPD will then have 30 days to notify (i) Where the subscriber terminates the MDU owner in writing of its elec- cable service but will not be using the tion for all the home run wiring inside home wiring to receive another alter- the MDU building: to remove the wir- native video programming service, the ing and restore the MDU building con- cable operator shall properly cap off its sistent with state law within 30 days of own line in accordance with the Com- the end of the 90-day notice period or mission’s signal leakage requirements. within 30 days of actual service termi- See subpart K (technical standards) of nation, whichever occurs first; to aban- the Commission’s Cable Television don and not disable the wiring at the Service rules (47 CFR 76.605(a)(13) and end of the 90-day notice period; or to 76.610 through 76.617). sell the wiring to the MDU building (j) Cable operators are prohibited owner. If the incumbent provider elects from using any ownership interests to remove or abandon the wiring, and they may have in property located on it intends to terminate service before the subscriber’s side of the demarca- the end of the 90-day notice period, the tion point, such as molding or conduit, incumbent provider shall notify the to prevent, impede, or in any way MDU owner at the time of this election interfere with, a subscriber’s right to of the date on which it intends to ter- use his or her home wiring to receive minate service. If the incumbent pro- an alternative service. In addition, in- vider elects to remove its wiring and cumbent cable operators must take restore the building consistent with reasonable steps within their control state law, it must do so within 30 days to ensure that an alternative service of the end of the 90-day notice period or provider has access to the home wiring within 30 days of actual service termi- at the demarcation point. Cable opera- nation, which ever occurs first. For

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purposes of abandonment, passive de- the home run wiring by the end of the vices, including splitters, shall be con- 90-day notice period. If the incumbent sidered part of the home run wiring. elects to submit the matter to binding The incumbent provider that has elect- arbitration and the MDU owner (or the ed to abandon its home run wiring may alternative provider) refuses to partici- remove its amplifiers or other active pate, the incumbent shall have no fur- 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 indi- been authorized to provide service to vidual subscribers under this sub- the MDU to negotiate to purchase the section for purposes of the disposition wiring. of the cable home wiring under § 76.802. (2) If the incumbent provider elects When an MDU owner notifies an in- to sell the home run wiring under para- cumbent provider under this section graph (a)(1) of this section, the incum- that the incumbent provider’s access to bent and the MDU owner or alternative the entire building will be terminated provider shall have 30 days from the and that the MDU owner seeks to use date of election to negotiate a price. If the home run wiring for another serv- the parties are unable to agree on a ice, the incumbent provider shall, in price within that 30-day time period, accordance with our current home wir- the incumbent must elect: to abandon ing rules: offer to sell to the MDU without disabling the wiring; to re- owner any home wiring within the in- move the wiring and restore the MDU dividual dwelling units that the incum- consistent with state law; or to submit bent provider owns and intends to re- the price determination to binding ar- move; and provide the MDU owner with bitration by an independent expert. If the total per-foot replacement cost of the incumbent provider chooses to such home wiring. This information abandon or remove its wiring, it must must be provided to the MDU owner notify the MDU owner at the time of within 30 days of the initial notice that this election if and when it intends to the incumbent’s access to the building terminate service before the end of the will be terminated. If the MDU owner 90-day notice period. If the incumbent declines to purchase the cable home service provider elects to abandon its wiring, the MDU owner may allow the wiring at this point, the abandonment alternative provider to purchase the shall become effective at the end of the home wiring upon service termination 90-day notice period or upon service under the terms and conditions of termination, whichever occurs first. If § 76.802. If the MDU owner or the alter- the incumbent elects at this point to native provider elects to purchase the remove its wiring and restore the home wiring under these rules, it must building consistent with state law, it so notify the incumbent MVPD pro- must do so within 30 days of the end of vider not later than 30 days before the the 90-day notice period or within 30 incumbent’s termination of access to days of actual service termination, the building will become effective. If which ever occurs first. the MDU owner and the alternative (3) If the incumbent elects to submit provider fail to elect to purchase the to binding arbitration, the parties shall home wiring, the incumbent provider have seven days to agree on an inde- must then remove the cable home wir- pendent expert or to each designate an ing, under normal operating condi- expert who will pick a third expert tions, within 30 days of actual service within an additional seven days. The termination, or make no subsequent independent expert chosen will be re- attempt to remove it or to restrict its quired to assess a reasonable price for use.

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(5) The parties shall cooperate to mit to binding arbitration, the parties avoid disruption in service to sub- shall have seven days to agree on an scribers to the extent possible. independent expert or to each des- (b) Unit-by-unit disposition of home run ignate an expert who will pick a third wiring: (1) Where an MVPD owns the expert within an additional seven days. home run wiring in an MDU and does The independent expert chosen will be not (or will not at the conclusion of the required to assess a reasonable price 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 par- providers after the expiration of the 60- ticular unit on the premises against day notice period but before the expert the MDU owner’s wishes, the MDU issues its price determination, the pro- owner may permit multiple MVPDs to cedures set forth in paragraph (b)(3) of compete for the right to use the indi- this section shall be followed, subject vidual home run wires dedicated to to the price established by the arbi- each unit in the MDU. The MDU owner trator. If the incumbent elects to sub- must provide at least 60 days’ written mit the matter to binding arbitration notice to the incumbent MVPD of the and the MDU owner (or the alternative MDU owner’s intention to invoke this provider) refuses to participate, the in- procedure. The incumbent MVPD will cumbent shall have no further obliga- then have 30 days to provide a single tions under the Commission’s home written election to the MDU owner as run wiring disposition procedures. to whether, for each and every one of (3) When an MVPD that is currently its home run wires dedicated to a sub- providing service to a subscriber is no- scriber who chooses an alternative pro- tified either orally or in writing that vider’s service, the incumbent MVPD that subscriber wishes to terminate will: remove the wiring and restore the service and that another service pro- MDU building consistent with state vider intends to use the existing home law; abandon the wiring without dis- run wire to provide service to that par- abling it; or sell the wiring to the MDU ticular subscriber, a provider that has owner. If the MDU owner refuses to elected to remove its home run wiring purchase the home run wiring, the pursuant to paragraph (b)(1) or (b)(2) of MDU owner may permit the alter- this section will have seven days to re- native provider to purchase it. If the move its home run wiring and restore alternative provider is permitted to the building consistent with state law. purchase the wiring, it will be required If the subscriber has requested service to make a similar election within this termination more than seven days in 30-day period for each home run wire the future, the seven-day removal pe- solely dedicated to a subscriber who riod shall begin on the date of actual switches back from the alternative pro- service termination (and, in any event, vider to the incumbent 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

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rules regarding the removal of home following the initial notice enjoining run wiring. If the incumbent provider its displacement. intends to terminate service prior to (d) After the effective date of this the end of the seven-day period, the in- rule, MVPDs shall include a provision cumbent shall inform the party re- in all service contracts entered into questing service termination, at the with MDU owners setting forth the dis- time of such request, of the date on position of any home run wiring in the 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 the 24-hour using any ownership interest they may period prior to 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 way interfere with, the ability of an al- comply with any of the deadlines es- ternative MVPD to use the home run tablished herein, the home run wiring wiring pursuant to this section. shall be considered abandoned, and the (f) Section 76.804 shall apply to all incumbent may not prevent the alter- MVPDs. native provider from using the home run wiring immediately to provide [62 FR 61032, Nov. 14, 1997, as amended at 68 service. The alternative provider or the FR 13855, Mar. 21, 2003] MDU owner may act as the subscriber’s § 76.805 Access to molding. agent in providing notice of a sub- scriber’s desire to change services, con- (a) An MVPD shall be permitted to sistent 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 par- lation of the additional wiring without ticular subscriber, the incumbent pro- interfering with the ability of an exist- vider will not be required to carry out ing MVPD to provide service, and gives its election to sell, remove or abandon its affirmative consent to such instal- lation. This paragraph shall not apply the home run wiring; the incumbent where the incumbent provider has an provider will be required to carry out exclusive contractual right to occupy its election, however, if and when it re- the molding. ceives notice that a subscriber wishes (b) If an MDU owner finds that there to use the home run wiring to receive is insufficient space in existing mold- an alternative service. Section 76.802 of ing to permit the installation of the the Commission’s rules regarding the new wiring without interfering with disposition of cable home wiring will the ability of an existing MVPD to pro- apply where a subscriber’s service is vide service, but gives its affirmative terminated without notifying the in- consent to the installation of larger cumbent provider that the subscriber molding and additional wiring, the wishes to use the home run wiring to MDU owner (with or without the as- receive an alternative service. sistance of the incumbent and/or the (5) The parties shall cooperate to alternative provider) shall be per- avoid disruption in service to sub- mitted to remove the existing molding, scribers to the extent possible. return such molding to the incumbent, (6) Section 76.802 of the Commission’s if appropriate, and install additional rules regarding the disposition of cable wiring and larger molding in order to home wiring will continue to apply to contain the additional wiring. This the wiring on the subscriber’s side of paragraph shall not apply where the in- the cable demarcation point. cumbent provider possesses a contrac- (c) The procedures set forth in para- tual right to maintain its molding on graphs (a) and (b) of this section shall the premises without alteration by the apply unless and until the incumbent MDU owner. provider obtains a court ruling or an (c) The alternative provider shall be injunction within forty-five (45) days required to pay any and all installation

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costs associated with the implementa- FR 29737 (May 21, 1993), extended to October tion of paragraphs (a) or (b) of this sec- 1, 1993, by an order published at 58 FR 33560 tion, including the costs of restoring (June 18, 1993), and moved to September 1, the MDU owner’s property to its origi- 1993, by an order published at 58 FR 41042 (August 2, 1993), is temporarily stayed for nal condition, and the costs of repair- those cable systems that have 1,000 or fewer ing any damage to the incumbent pro- subscribers. This limited, temporary stay is vider’s wiring or other property. effective September 1, 1993, and will remain [62 FR 61033, Nov. 14, 1997] in effect until the Commission terminates the stay and establishes a new effective date § 76.806 Pre-termination access to in an order on reconsideration addressing the cable home wiring. administrative burdens and costs of compli- ance for small cable systems. The Commis- (a) Prior to termination of service, a sion will publish in the FEDERAL REGISTER customer may: install or provide for the new effective date of the rules with re- the installation of their own cable spect to small cable systems at that time. home wiring; or connect additional home wiring, splitters or other equip- § 76.901 Definitions. ment within their premises to the wir- (a) Basic service. The basic service ing owned by the cable operator, so tier shall, at a minimum, include all long as no electronic or physical harm signals of domestic television broad- is caused to the cable system and the cast stations provided to any sub- physical integrity of the cable opera- scriber (except a signal secondarily tor’s wiring remains intact. transmitted by satellite carrier beyond (b) Cable operators may require that the local service area of such station, home wiring (including passive split- regardless of how such signal is ulti- ters, connectors and other equipment mately received by the cable system) used in the installation of home wir- any public, educational, and govern- ing) meets reasonable technical speci- mental programming required by the fications, not to exceed the technical franchise to be carried on the basic specifications of such equipment in- tier, and any additional video program- stalled by the cable operator; provided ming signals a service added to the however, that if electronic or physical basic tier by the cable operator. harm is caused to the cable system, the (b) Cable programming service. Cable cable operator may impose additional programming service includes any technical specifications to eliminate video programming provided over a such harm. To the extent a customer’s cable system, regardless of service tier, installations or rearrangements of wir- including installation or rental of ing degrade the signal quality of or equipment used for the receipt of such interfere with other customers’ signals, video programming, other than: or cause electronic or physical harm to (1) Video programming carried on the the cable system, the cable operator basic service tier as defined in this sec- may discontinue service to that sub- tion; scriber until the degradation or inter- (2) Video programming offered on a ference is resolved. pay-per-channel or pay-per-program (c) Customers shall not physically basis; or cut, substantially alter, improperly terminate or otherwise destroy cable (3) A combination of multiple chan- operator-owned home wiring. nels of pay-per-channel or pay-per-pro- (d) Section 76.806 shall apply to all gram video programming offered on a MVPDs. multiplexed or time-shifted basis so long as the combined service: [62 FR 61034, Nov. 14, 1997, as amended at 68 (i) Consists of commonly-identified FR 13855, Mar. 21, 2003] video programming; and (ii) Is not bundled with any regulated Subpart N—Cable Rate Regulation tier of service. (c) Small system. A small system is a SOURCE: 58 FR 29753, May 21, 1993, unless cable television system that serves otherwise noted. 15,000 or fewer subscribers. The service EFFECTIVE DATE NOTE: The effective date area of a small system shall be deter- of the amendments to part 76, published at 58 mined by the number of subscribers

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that are served by the system’s prin- (b) A cable system is subject to effec- cipal headend, including any other tive competition when any one of the headends or microwave receive sites following conditions is met: that are technically integrated to the (1) Fewer than 30 percent of the principal headend. households in its franchise area sub- (d) Small cable company. A small cable scribe to the cable service of a cable company is a cable television operator system. that serves a total of 400,000 or fewer (2) The franchise area is: subscribers over one or more cable sys- (i) Served by at least two unaffiliated tems. multichannel video programming dis- (e) Small cable operator. A small cable tributors each of which offers com- operator is an operator that, directly parable programming to at least 50 per- or through an affiliate, serves in the cent of the households in the franchise aggregate fewer than 1 percent of all area; and subscribers in the United States and is (ii) the number of households sub- not affiliated with any entity or enti- scribing to multichannel video pro- ties whose gross annual revenues in the gramming other than the largest mul- aggregate exceed $250,000,000. For pur- tichannel video programming dis- poses of this definition, an operator tributor exceeds 15 percent of the shall be deemed affiliated with another households in the franchise area. entity if that entity holds a 20 percent (3) A multichannel video program- or greater equity interest (not includ- ming distributor, operated by the fran- ing truly passive investment) in the op- chising authority for that franchise erator or exercises de jure or de facto area, offers video programming to at control over the operator. least 50 percent of the households in the franchise area. (1) Using the most reliable sources (4) A local exchange carrier or its af- publicly available, the Commission pe- filiate (or any multichannel video pro- riodically will determine and give pub- gramming distributor using the facili- lic notice of the subscriber count that ties of such carrier or its affiliate) of- will serve as the 1 percent threshold fers video programming services di- until a new number is calculated. rectly to subscribers by any means (2) For a discussion of passive inter- (other than direct-to-home satellite ests with respect to small cable opera- services) in the franchise area of an un- tors, see Implementation of Cable Act affiliated cable operator which is pro- Reform Provisions of the Tele- viding cable service in that franchise communications Act of 1996, Report area, but only if the video program- and Order in CS Docket No. 96–85, FCC ming services so offered in that area 99–57 (released March 29, 1999). are comparable to the video program- (3) If two or more entities unaffili- ming services provided by the unaffili- ated with each other each hold an eq- ated cable operator in that area. uity interest in the small cable oper- (c) For purposes of paragraphs (b)(1) ator, the equity interests of the unaf- through (b)(3) of this section, each sep- filiated entities will not be aggregated arately billed or billable customer will with each other for the purpose of de- count as a household subscribing to or termining whether an entity meets or being offered video programming serv- passes the 20 percent affiliation thresh- ices, with the exception of multiple old. 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; 64 FR 35950, July 2, 1999; 83 FR 60775, rate households. The term ‘‘house- Nov. 27, 2018] holds’’ shall not include those dwell- ings that are used solely for seasonal, § 76.905 Standards for identification of occasional, or recreational use. cable systems subject to effective (d) A multichannel video program competition. distributor, for purposes of this sec- (a) Only the rates of cable systems tion, is an entity such as, but not lim- that are not subject to effective com- ited to, a cable operator, a BRS/EBS petition may be regulated. provider, a direct broadcast satellite

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service, a television receive-only sat- Attributable interest shall be defined ellite program distributor, a video as follows: dialtone service provider, or a satellite (1) A 10% partnership or voting eq- master antenna television service pro- uity interest in a corporation will be vider that makes available for pur- cognizable. chase, by subscribers or customers, (2) Subject to paragraph (i)(3), a lim- multiple channels of video program- ited partnership interest of 10% or ming. more shall be attributed to a limited (e) Service of a multichannel video partner unless that partner is not ma- programming distributor will be terially involved, directly or indi- deemed offered: rectly, in the management or operation (1) When the multichannel video pro- of the media-related activities of the gramming distributor is physically partnership and the relevant entity so able to deliver service to potential sub- certifies. An interest in a Limited Li- scribers, with the addition of no or ability Company (‘‘LLC’’) or Registered only minimal additional investment by Limited Liability Partnership the distributor, in order for an indi- (‘‘RLLP’’) shall be attributed to the in- vidual subscriber to receive service; terest holder unless that interest hold- and er is not materially involved, directly (2) When no regulatory, technical or or indirectly, in the management or other impediments to households tak- operation of the media-related activi- ing service exist, and potential sub- ties of the partnership and the relevant scribers in the franchise area are rea- entity so certifies. Certifications must sonably aware that they may purchase be made pursuant to the guidelines set the services of the multichannel video forth in Note 2(f) to § 76.501. programming distributor. (3) Notwithstanding paragraph (i)(2), (f) For purposes of determining the the holder of an equity or debt interest number of households subscribing to or interests in an entity covered by the services of a multichannel video this rule shall have that interest at- programming distributor other than tributed if the equity (including all the largest multichannel video pro- stockholdings, whether voting or non- gramming distributor, under paragraph voting, common or preferred, and part- (b)(2)(ii) of this section, the number of nership interests) and debt interest or subscribers of all multichannel video interests, in the aggregate, exceed 33 programming distributors that offer percent of the total asset value (all eq- service in the franchise area will be ag- uity plus all debt) of that entity. gregated. (4) Discrete ownership interests held (g) In order to offer comparable pro- by the same individual or entity will be gramming as that term is used in this aggregated in determining whether or section, a competing multichannel not an interest is cognizable under this video programming distributor must section. An individual or entity will be offer at least 12 channels of video pro- deemed to have a cognizable invest- gramming, including at least one chan- ment if the sum of the interests other nel of nonbroadcast service program- than those held by or through ‘‘passive ming. investors’’ is equal to or exceeds 10%. (h) For purposes of paragraph (b)(2) of [58 FR 29753, May 21, 1993, as amended at 59 this section, entities are affiliated if ei- FR 17972, Apr. 15, 1994; 61 FR 18978, Apr. 30, ther entity has an attributable interest 1996; 62 FR 6495, Feb. 12, 1997; 64 FR 35950, in the other or if a third party has an July 2, 1999; 64 FR 67196, Dec. 1, 1999; 69 FR attributable interest in both entities. 72046, Dec. 10, 2004] Attributable interest shall be defined by reference to the criteria set forth in § 76.906 Presumption of effective com- Notes 1 through 5 to § 76.501. petition. (i) For purposes of paragraph (b)(4) of In the absence of a demonstration to this section, entities are affiliated if ei- the contrary cable systems are pre- ther entity has an attributable interest sumed: (a) To be subject to effective in the other or if a third party has an competition pursuant to section attributable interest in both entities. 76.905(b)(2); and (b) Not to be subject to

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effective competition pursuant to sec- ciated equipment of a cable system tion 76.905(b)(1), (3) or (4). within its jurisdiction. (b) To be certified, the franchising [80 FR 38012, July 2, 2015] authority must file with the Commis- § 76.907 Petition for a determination of sion a written certification that: effective competition. (1) The franchising authority will (a) A cable operator (or other inter- adopt and administer regulations with ested party) may file a petition for a respect to the rates for the basic serv- determination of effective competition ice tier that are consistent with the with the Commission pursuant to the regulations prescribed by the Commis- Commission’s procedural rules in § 76.7. sion for regulation of the basic service (b) If the cable operator seeks to tier; demonstrate that effective competition (2) The franchising authority has the as defined in § 76.905(b)(1), (3), or (4) ex- legal authority to adopt, and the per- ists in the franchise area, it bears the sonnel to administer, such regulations; burden of demonstrating the presence (3) Procedural laws and regulations of such effective competition. Effective applicable to rate regulation pro- competition as defined in § 76.905(b)(2) ceedings by such authority provide a is governed by the presumption in reasonable opportunity for consider- § 76.906, except that where a franchising ation of the views of interested parties; authority has rebutted the presump- and tion of competing provider effective (4) The cable system in question is competition as defined in § 76.905(b)(2) not subject to effective competition. and is certified, the cable operator The franchising authority must submit must demonstrate that circumstances specific evidence demonstrating its re- have changed and effective competition buttal of the presumption in § 76.906 is present in the franchise area. that the cable operator is subject to ef- fective competition pursuant to sec- NOTE TO PARAGRAPH (b): The criteria for tion 76.905(b)(2). Unless a franchising determining effective competition pursuant authority has actual knowledge to the to § 76.905(b)(4) are described in Implementa- contrary, the franchising authority tion of Cable Act Reform Provisions of the may rely on the presumption in § 76.906 Telecommunications Act of 1996, Report and Order in CS Docket No. 96–85, FCC 99–57 (re- that the cable operator is not subject leased March 29, 1999). to effective competition pursuant to section 76.905(b)(1), (3), or (4). The fran- (c) If the evidence establishing effec- chising authority bears the burden of tive competition is not otherwise submitting evidence rebutting the pre- available, cable operators may request sumption that competing provider ef- from a competitor information regard- fective competition, as defined in ing the competitor’s reach and number § 76.905(b)(2), exists in the franchise of subscribers. A competitor must re- area. If the evidence establishing the spond to such request within 15 days. lack of effective competition is not Such responses may be limited to nu- otherwise available, franchising au- merical totals. In addition, with re- thorities may request from a multi- spect to petitions filed seeking to dem- channel video programming distributor onstrate the presence of effective com- information regarding the multi- petition pursuant to § 76.905(b)(4), the channel video programming distribu- Commission may issue an order direct- tor’s reach and number of subscribers. ing one or more persons to produce in- A multichannel video programming formation relevant to the petition’s distributor must respond to such re- disposition. quest within 15 days. Such responses [64 FR 35950, July 2, 1999, as amended at 80 may be limited to numerical totals. FR 38013, July 2, 2015] (c) The written certification de- scribed in paragraph (b) of this section § 76.910 Franchising authority certifi- shall be made by completing and filing cation. FCC Form 328. FCC Form 328 can be ob- (a) A franchising authority must be tained from the internet at http:// certified by the Commission in order to www.fcc.gov/Forms/Form328/328.pdf or by regulate the basic service tier and asso- calling the FCC Forms Distribution

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Center at 1–800–418–3676. The form must pursuant to paragraph (a)(1) of this sec- be filed by tion will automatically stay the impo- (1) Registered mail, return receipt re- sition of rate regulation pending the quested, or outcome of the reconsideration pro- (2) Hand-delivery to the Commission ceeding. and a date-stamped copy obtained. The (2) A petitioner filing pursuant to date on the return receipt or on the paragraph (a)(2) of this section may re- date-stamped copy is the date filed. quest a stay of rate regulation. (d) A copy of the certification form (3) In any case in which a stay of rate described in paragraph (c) of this sec- regulation has been granted, if the pe- tion must be served on the cable oper- tition for reconsideration is denied, the ator before or on the same day it is cable operator may be required to re- filed with the Commission. fund any rates or portion of rates (e) Unless the Commission notifies above the permitted tier charge or per- the franchising authority otherwise, mitted equipment charge which were the certification will become effective collected from the date the operator 30 days after the date filed, provided, however, That the franchising author- implements a prospective rate reduc- ity may not regulate the rates of a tion back in time to September 1, 1993, cable system unless it: or one year, whichever is shorter. (1) Adopts regulations: (c) The filing of a petition for recon- (i) Consistent with the Commission’s sideration alleging the presence of ef- regulations governing the basic tier; fective competition based on frivolous and grounds is prohibited, and may be sub- (ii) Providing a reasonable oppor- ject to forfeitures. tunity for consideration of the views of (d) If the Commission upholds a chal- interested parties, within 120 days of lenge to a certification filed pursuant the effective date of certification; and to paragraph (a)(2) of this section, the (2) Notifies the cable operator that Commission will notify the franchising the authority has been certified and authority of the revisions necessary to has adopted the regulations required secure approval and provide the au- by paragraph (e)(1) of this section. thority an opportunity to amend its (f) If the Commission denies a fran- certification however necessary to se- chising authority’s certification, the cure approval. Provided, however, That Commission will notify the franchising pending approval of certification, the authority of any revisions or modifica- Commission will assume jurisdiction tions necessary to obtain approval. over basic cable service rates in that [58 FR 29753, May 21, 1993, as amended at 80 franchise area. FR 38013, July 2, 2015; 83 FR 60776, Nov. 27, [58 FR 29753, May 21, 1993, as amended at 58 2018] FR 46735, Sept. 2, 1993; 64 FR 35950, July 2, § 76.911 Petition for reconsideration of 1999] certification. § 76.912 Joint certification. (a) A cable operator (or other inter- ested party) may challenge a fran- (a) Franchising authorities may chising authority’s certification by fil- apply for joint certification and may ing a petition for reconsideration pur- engage in joint regulation, including, suant to § 1.106. The petition may al- but not limited to, joint hearings, data lege either of the following: collection, and ratemaking. Fran- (1) The cable operator is not subject chising authorities jointly certified to to rate regulation because effective regulate their cable system(s) may competition exists as defined in § 76.905. make independent rate decisions. Sections 76.907(b) and (c) apply to peti- (b) Franchising authorities may tions filed under this section. apply for joint certification regardless (2) The franchising authority does of whether the authorities are served not meet the certification standards by the same cable system or by dif- set forth in 47 U.S.C. 543(a)(3). ferent cable systems and regardless of (b) Stay of rate regulation. (1) The whether the rates in each franchising filing of a petition for reconsideration area are uniform.

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§ 76.913 Assumption of jurisdiction by (c) A cable operator may file a peti- the Commission. tion for special relief pursuant to § 76.7 (a) Upon denial or revocation of the of this part seeking revocation of a franchising authority’s certification, franchising authority’s certification. the Commission will regulate rates for (d) While a petition for revocation is cable services and associated equip- pending, and absent grant of a stay, the ment of a cable system not subject to franchising authority may continue to effective competition, as defined in regulate the basic service rates of its § 76.905, in a franchise area. Such regu- franchisees. lation by the Commission will continue [58 FR 29753, May 21, 1993, as amended at 59 until the franchising authority has ob- FR 17972, Apr. 15, 1994; 64 FR 6572, Feb. 10, tained certification or recertification. 1999] (b) A franchising authority unable to meet certification standards may peti- § 76.916 Petition for recertification. tion the Commission to regulate the (a) After its request for certification rates for basic cable service and associ- has been denied or its existing certifi- ated equipment of its franchisee when: cation has been revoked, a franchising (1) The franchising authority lacks authority wishing to assume jurisdic- the resources to administer rate regu- tion to regulate basic service and asso- lation. ciated equipment rates must file a (2) The franchising authority lacks ‘‘Petition for Recertification’’ accom- the legal authority to regulate basic panied by a copy of the earlier decision service rates; Provided, however, That denying or revoking certification. the authority must submit with its re- (b) The petition must: quest a statement detailing the nature (1) Meet the requirements set forth in of the legal infirmity. 47 U.S.C. 543(a)(3); (c) The Commission will regulate (2) State that the cable system is not basic service rates pursuant to this subject to effective competition; and Section until the franchising authority (3) Contain a clear showing, sup- qualifies to exercise jurisdiction pursu- ported by either objectively verifiable ant to § 76.916. data such as a state statute, or by affi- [58 FR 29753, May 21, 1993, as amended at 62 davit, that the reasons for the earlier FR 6495, Feb. 12, 1997] denial or revocation no longer pertain. (c) The petition must be served on § 76.914 Revocation of certification. the cable operator and on any inter- (a) A franchising authority’s certifi- ested party that participated in the cation shall be revoked if: proceeding denying or revoking the (1) After the franchising authority original certification. has been given a reasonable oppor- (d) Oppositions may be filed within 15 tunity to comment and cure any minor days after the petition is filed, and nonconformance, it is determined that must be served on the petitioner. Re- state and local laws and regulations plies may be filed within seven days of are in substantial and material conflict filing of oppositions, and must be with the Commission’s regulations gov- served on the opposing party(ies). erning cable rates. (2) After being given an opportunity § 76.917 Notification of certification to cure the defect, a franchising au- withdrawal. thority fails to fulfill one of the three A franchising authority that has conditions for certification, set forth in been certified to regulate rates may, at 47 U.S.C. 543(a)(3), or any of the provi- any time, notify the Commission that sions of § 76.910(b). it no longer intends to regulate basic (b) In all cases of revocation, the cable rates. Such notification shall in- Commission will assume jurisdiction clude the franchising authority’s deter- over basic service rates until an au- mination that rate regulation no thority becomes recertified. The Com- longer serves the interests of cable sub- mission will also notify the franchising scribers served by the cable system authority regarding the corrective ac- within the franchising authority’s ju- tion that may be taken. risdiction, and that it has received no

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consideration for its withdrawal of cer- scribers without other alteration in tification. Such notification shall be system configuration or design and served on the cable operator. The Com- without causing degradation in the mission retains the right to review technical quality of service provided. such determinations and to request the (d) With respect to cable systems not factual finding of the franchising au- subject to effective competition, any thority underlying its decision to with- retiering of channels or services that is draw certification. The franchising not undertaken in order to accomplish authority’s withdrawal becomes effec- legitimate regulatory, technical, or tive upon notification to the Commis- customer service objectives and that is sion. intended to frustrate or has the effect of frustrating compliance with para- [59 FR 17972, Apr. 15, 1994] graphs (a) through (c) of this section is § 76.920 Composition of the basic tier. prohibited. Every subscriber of a cable system [62 FR 6495, Feb. 12, 1997] must subscribe to the basic tier in order to subscribe to any other tier of § 76.922 Rates for the basic service tier video programming or to purchase any and cable programming services tiers. other video programming. (a) Basic and cable programming service § 76.921 Buy-through of other tiers tier rates. Basic service tier and cable prohibited. programming service rates shall be (a) No cable system operator, other subject to regulation by the Commis- than an operator subject to effective sion and by state and local authorities, competition, may require the subscrip- as is appropriate, in order to assure tion to any tier other than the basic that they are in compliance with the service tier as a condition of subscrip- requirements of 47 U.S.C. 543. Rates tion to video programming offered on a that are demonstrated, in accordance per channel or per program charge with this part, not to exceed the ‘‘Ini- basis. A cable operator may, however, tial Permitted Per Channel Charge’’ or require the subscription to one or more the ‘‘Subsequent Permitted Per Chan- tiers of cable programming services as nel Charge’’ as described in this sec- a condition of access to one or more tion, or the equipment charges as spec- tiers of cable programming services. ified in § 76.923, will be accepted as in (b) A cable operator not subject to ef- compliance. The maximum monthly fective competition may not discrimi- charge per subscriber for a tier of regu- nate between subscribers to the basic lated programming services offered by service tier and other subscribers with a cable system shall consist of a per- regard to the rates charged for video mitted per channel charge multiplied programming offered on a per-channel by the number of channels on the tier, or per-program charge basis. plus a charge for franchise fees. The (c) With respect to cable systems not maximum monthly charges for regu- subject to effective competition, prior lated programming services shall not to October 5, 2002, the provisions of include any charges for equipment or paragraph (a) of this section shall not installations. Charges for equipment apply to any cable system that lacks and installations are to be calculated the capacity to offer basic service and separately pursuant to § 76.923. The all programming distributed on a per same rate-making methodology (either channel or per program basis without the benchmark methodology found in also providing other intermediate tiers paragraph (b) of this section, or a cost- of service: of-service showing) shall be used to set (1) By controlling subscriber access initial rates on all rate regulated tiers, to nonbasic channels of service through and shall continue to provide the basis addressable equipment electronically for subsequent permitted charges. controlled from a central control point; (b) Permitted charge on May 15, 1994. or (1) The permitted charge for a tier of (2) Through the installation, non- regulated program service shall be, at installation, or removal of frequency the election of the cable system, ei- filters (traps) at the premises of sub- ther:

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(i) A rate determined pursuant to a (1) Whose March 31, 1994 rate is below cost-of-service showing; its March 31, 1994 benchmark rate, or (ii) The full reduction rate; (2) Whose March 31, 1994 rate is above (iii) The transition rate, if the sys- its March 31, 1994 benchmark rate, but tem is eligible for transition relief; or whose March 31, 1994 full reduction rate (iv) A rate based on a streamlined is below its March 31, 1994 benchmark rate reduction, if the system is eligible rate, as defined in § 76.922(b)(2), above. to implement such a rate reduction. (B) The transition rate on May 15, Except where noted, the term ‘‘rate’’ in 1994 for a system whose March 31, 1994 this subsection means a rate measured rate is below its March 31, 1994 bench- on an average regulated revenue per mark rate is the system’s March 31, subscriber basis. 1994 rate. The March 31, 1994 rate is in (2) Full reduction rate. The ‘‘full re- both cases adjusted: duction rate’’ on May 15, 1994 is the (1) To establish permitted rates for system’s September 30, 1992 rate, meas- equipment as required by § 76.923 if ured on an average regulated revenue such rates have not already been estab- per subscriber basis, reduced by 17 per- lished; and cent, and then adjusted for the fol- (2) For changes in external costs in- lowing: curred between the earlier of initial date of regulation of any tier or Feb- (i) The establishment of permitted ruary 28, 1994, and March 31, 1994, to equipment rates as required by § 76.923; the extent changes in such costs are (ii) Inflation measured by the GNP- not already reflected in the system’s PI between October 1, 1992 and Sep- March 31, 1994 rate. The transition rate tember 30, 1993; on May 15, 1994 for a system whose (iii) Changes in the number of pro- March 31, 1994 adjusted rate is above its gram channels subject to regulation March 31, 1994 benchmark rate, but that are offered on the system’s pro- whose March 31, 1994 full reduction rate gram tiers between September 30, 1992 is below its March 31, 1994 benchmark and the earlier of the initial date of rate, is the March 31, 1994 benchmark regulation for any tier or February 28, rate, adjusted to establish permitted 1994; and rates for equipment as required by (iv) Changes in external costs that § 76.923 if such rates have not already have occurred between the earlier of been established. the initial date of regulation for any (iii) Notwithstanding the foregoing, tier or February 28, 1994, and March 31, the transition rate for a tier shall be 1994. adjusted to reflect any determination (3) March 31, 1994 benchmark rate. The by a local franchising authority and/or ‘‘March 31, 1994 benchmark rate’’ is the the Commission that the rate in effect rate so designated using the calcula- on March 31, 1994 was higher (or lower) tions in Form 1200. than that permitted under applicable (4) Transition rates—(i) Termination of Commission regulations. A filing re- transition relief for systems other than flecting the adjusted rate shall be sub- low price systems. Systems other than mitted to all relevant authorities with- low-price systems that already have es- in 30 days after issuance of the local tablished a transition rate as of the ef- franchising authority and/or Commis- fective date of this rule may maintain sion determination. A system whose their current rates, as adjusted under March 31, 1994 rate is determined by a the price cap requirements of local franchising authority or the Com- § 76.922(d), until two years from the ef- mission to be too high under the Com- fective date of this rule. These systems mission’s rate regulations in effect be- must begin charging reasonable rates fore May 15, 1994 will be subject to any in accordance with applicable rules, refund liability that may accrue under other than transition relief, no later those rules. In addition, the system than that date. will be liable for refund liability under (ii) Low-price systems. Low price sys- the rules in effect on and after May 15, tems shall be eligible to establish a 1994. Such refund liability will be meas- transition rate for a tier. ured by the difference in the system’s (A) A low-price system is a system: March 31, 1994 rate and its permitted

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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 estab- the Commission if the Commission is lishing initial rates pursuant to the regulating the basic tier, that it is other methods of rate regulation set electing to set its regulated rates by forth in 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 not already restructured their rates to days after the written notification has comply with the Commission’s rules been provided to subscribers and the may establish rates for regulated pro- local franchise authority or Commis- gram services and equipment by mak- sion. ing a streamlined rate reduction. (2) If a cable programming services Small systems owned by small cable complaint is filed against the system, companies shall not be eligible for the system must provide the required streamlined rate reductions if they are written notice, described in paragraph owned or controlled by, or are under (b)(5)(iii)(C)(1) of this section, to sub- common control or affiliated with, a scribers, the local franchising author- cable operator that exceeds these sub- ity or the Commission within 60 days scriber limits. For purposes of this after the complaint is filed. The system rule, a small system will be considered must then implement the streamlined ‘‘affiliated with’’ such an operator if rate reductions within 30 days after the the operator has a 20 percent or greater written notification has been provided. equity interest in the small system. (3) A small system is required to give (B) The streamlined rate for a tier on written notice of, and to implement, May 15, 1994 shall be the system’s the rates that are produced by the March 31, 1994 rate for the tier, reduced streamlined rate reduction process by 14 percent. A small system that only once. If a system has already pro- elects to establish its rate for a tier by vided notice of, and implemented, the implementing this streamlined rate re- streamlined rate reductions when a duction must also reduce, at the same given tier becomes subject to regula- time, each billed item of regulated tion, it must report to the relevant cable service, including equipment, by regulator (either the franchising au- 14 percent. Regulated rates established thority or the Commission) in writing using the streamlined rate reduction within 30 days of becoming subject to process shall remain in effect until: regulation that it has already provided (1) Adoption of a further order by the the required notice and implemented Commission establishing a schedule of the required rate reductions. average equipment costs; (ii) The stremlined rate for a tier on (2) The system increases its rates May 15, 1994 shall be the system’s using the calculations and time periods March 31, 1994 rate for the tier, reduced set forth in FCC Form 1211; or by 14 percent. A small system that (3) The system elects to establish elects to establish its rate for a tier by permitted rates under another avail- implementing this streamlined rate re- able option set forth in paragraph (b)(1) duction must also reduce, at the same of this section. time, each billed item of regulated (C) Implementation and notification. cable service, including equipment, by An eligible small system that elects to 14 percent. Regulated rates established use the streamlined rate reduction using the streamlined rate reduction process must implement the required process shall remain in effect until:

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(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 sub- (iii) Implementation and notification. scribers and the Commission, described An eligible small system that elects to in paragraph (b)(5)(iii)(C) of this sec- use the streamlined rate reduction tion, within 30 days from the date it re- process must implement the required ceives an initial notice of regulation. rate reductions and provide written no- The system must then implement the tice of such reductions to subscribers, streamlined rate reductions within 30 the local franchising authority and the days after the written notification has Commission according to the following been provided to subscribers and the schedule: Commission. (A) Where the franchising authority (E) If a complaint about its cable pro- has been certified by the Commission gramming service rates has been filed to regulate the small system’s basic with the Commission on or before May service tier rates as of May 15, 1994, the 15, 1994, the small system must provide system must notify the franchising au- the written notice described in para- thority and its subscribers in writing graph (b)(5)(iii)(A) of this section, to that it is electing to set its regulated subscribers, the local franchising au- rates by the streamline rate reduction thority and the Commission by June process. Such notice must be given by 15, 1994. If a cable programming serv- June 15, 1994, and must also describe ices complaint is filed against the sys- the new rates that will result from the tem after May 15, 1994, the system streamlined rate reduction process. must provide the required written no- Those rates must then be implemented tice to subscribers, the local fran- within 30 days after the written notifi- chising authority or the Commission cation has been provided to subscribers within 30 days after the complaint is and the local franchising authority. filed. The system must then implement (B) Where the franchising authority the streamlined rate reductions within has not been certified to regulate basic 30 days after the written notification service tier rates by May 15, 1994, the has been provided. small system must provide the written (F) A small system is required to give notice to subscribers and the fran- written notice of, and to implement, chising authority, described in para- the rates that are produced by the graph (b)(5)(iii)(A) of this section, with- streamlined rate reduction process in 30 days from the date it receives the only once. If a system has already pro- initial notice of regulation from the vided notice of, and implemented, the franchising authority. The system streamlined rate reductions when a must then implement the streamlined given tier becomes subject to regula- rate reductions within 30 days after the tion, it must report to the relevant written notification has been provided regulator (either the franchising au- to subscribers and the local franchise thority or the Commission) in writing authority. within 30 days of becoming subject to (C) Where the Commission is regu- regulation that it has already provided lating the small system’s basic service the required notice and implemented tier rates as of May 15, 1994, the system the required rate reductions. must notify the Commission and its (6) Establishment of initial regulated subscribers in writing that it is elect- rates. (i) Cable systems, other than ing to set its regulated rates by the those eligible for streamlined rate re- streamlined rate reduction process. ductions, shall file FCC Forms 1200, Such notice must be given by June 15, 1205, and 1215 for a tier that is regu- 1994, and must also describe the new lated on May 15, 1994 by June 15, 1994,

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or thirty days after the initial date of the time of revision, and the rate is ac- regulation for the tier. A system that curate and justified by the prior data; becomes subject to regulation for the and first time on or after July 1, 1994 shall (C) Through no fault of the cable op- also file FCC Form 1210 at the time it erator, the rates that resulted from files FCC Forms 1200, 1205 and 1215. using such data differ from the rates (ii) A cable system will not incur re- that would result from using data cur- fund liability under the Commission’s rent and accurate at the time the cable rules governing regulated cable rates operator’s system becomes subject to on and after May 15, 1994 if: regulation; then the cable operator is (A) Between March 31, 1994 and July not required to change its rates to re- 14, 1994, the system does not change the flect the data current at the time it be- rate for, or restructure in any fashion, comes subject to regulation. any program service or equipment of- (ii) Notwithstanding the above, any fering that is subject to regulation subsequent changes in a cable opera- under the 1992 Cable Act; and tor’s rates must be made from rate lev- (B) The system establishes a per- els derived from data [that was current mitted rate defined in paragraph (b) of as of the date of the rate change]. this section by July 14, 1994. The defer- (iii) For purposes of this subsection, ral of refund liability permitted by this if the rates charged by a cable operator subsection will terminate if, after are not justified by an analysis based March 31, 1994, the system changes any on the data available at the time it ini- rate for, or restructures, any program tially adjusted its rates, the cable oper- service or equipment offering subject ator must adjust its rates in accord- to regulation, and in all events will ex- ance with the most accurate data pire on July 14, 1994. Moreover, the de- available at the time of the analysis. ferral of refund liability permitted by (c) Subsequent permitted charge. (1) this paragraph does not apply to refund The permitted charge for a tier after liability that occurs because the sys- May 15, 1994 shall be, at the election of tem’s March 31, 1994 rates for program the cable system, either: services and equipment subject to regu- (i) A rate determined pursuant to a lation are higher than the levels per- cost-of-service showing, mitted under the Commission’s rules in (ii) A rate determined by application effect before May 15, 1994. of the Commission’s price cap require- (7) For purposes of this section, the ments set forth in paragraph (d) of this initial date of regulation for the basic section to a permitted rate determined service tier shall be the date on which in accordance with paragraph (b) of notice is given pursuant to § 76.910, that this section, or the provision of the basic service tier is (iii) A rate determined by application subject to regulation. For a cable pro- of the Commission’s price cap require- gramming services tier, the initial date ments set forth in paragraph (e) of this of regulation shall be the first date on section to a permitted rate determined which a complaint on the appropriate in accordance with paragraph (b) of form is filed with the Commission con- this section. cerning rates charged for the cable pro- (2) The Commission’s price cap re- gramming services tier. quirements allow a system to adjust its (8) For purposes of this section, rates permitted charges for inflation, in effect on the initial date of regula- changes in the number of regulated tion or on September 30, 1992 shall be channels on tiers, or changes in exter- the rates charged to subscribers for nal costs. After May 15, 1994, adjust- service received on that date. ments for changes in external costs (9) Updating data calculations. (i) For shall be calculated by subtracting ex- purposes of this section, if: ternal costs from the system’s per- (A) A cable operator, prior to becom- mitted charge and making changes to ing subject to regulation, revised its that ‘‘external cost component’’ as nec- rates to comply with the Commission’s essary. The remaining charge, referred rules; and to as the ‘‘residual component,’’ will be (B) The data on which the cable oper- adjusted annually for inflation. Cable ator relied was current and accurate at systems may adjust their rates by

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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 (i) Whenever an operator switches rate pursuant to paragraph (b)(4) of from the current quarterly system to this section may not begin adjusting the annual system, the operator may rates on account of inflation before not file a Form 1240 earlier than 90 April 1, 1995. Between April 1, 1995 and days after the operator proposed its August 31, 1995 cable systems that es- last rate adjustment on a Form 1210; tablished a transition rate may adjust and their rates to reflect the net of a 5.21% (ii) When an operator changes from inflation adjustment minus any infla- the annual system to the quarterly tion adjustments they have already re- system, the operator may not return to ceived. Low price systems that had a quarterly adjustment using a Form their March 31, 1994 rates above the 1210 until a full quarter after it has benchmark, but their full reduction filed a true up of its annual rate on a rate below the benchmark will be per- Form 1240 for the preceding filing pe- mitted to adjust their rates to reflect riod. (4) An operator that does not set its the full 5.21% inflation factor unless rates pursuant to a cost-of-service fil- the rate reduction was less than the in- ing must use the quarterly rate adjust- flation adjustment received on an FCC ment methodology pursuant to para- Form 393 for rates established prior to graph (d) of this section or annual rate May 15, 1994. If the rate reduction es- adjustment methodology pursuant to tablished by a low price system that paragraph (e) of this section for both reduced its rate to the benchmark was its basic service tier and its cable pro- less than the inflation adjustment re- gramming services tier(s). ceived on an FCC Form 393, the system (d) Quarterly rate adjustment method— will be permitted to receive the 5.21% (1) Calendar year quarters. All systems inflation adjustment minus the dif- using the quarterly rate adjustment ference between the rate reduction and methodology must use the following the inflation adjustment the system calendar year quarters when adjusting made on its FCC Form 393. Cable sys- rates under the price cap requirements. tems that established a transition rate The first quarter shall run from Janu- may make future inflation adjustments ary 1 through March 31 of the relevant on an annual basis with all other cable year; the second quarter shall run from operators, no earlier than October 1 of April 1 through June 30; the third quar- each year and no later than August 31 ter shall run from July 1 through Sep- of the following year to reflect the tember 30; and the fourth quarter shall final GNP-PI through June 30 of the run from October 1 through December applicable year. 31. (3) External costs. (i) Permitted (2) Inflation adjustments. The residual charges for a tier may be adjusted up component of a system’s permitted to quarterly to reflect changes in ex- charge may be adjusted annually for ternal costs experienced by the cable inflation. The annual inflation adjust- system as defined by paragraph (f) of ment shall be used on inflation occur- this section. In all events, a system ring from June 30 of the previous year must adjust its rates annually to re- to June 30 of the year in which the in- flect any decreases in external costs flation adjustment is made, except that that have not previously been ac- the first annual inflation adjustment counted for in the system’s rates. A

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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 (ii) A system must adjust its rates in date up to 60 days later than the date the next calendar year quarter for any chosen by the operator. An operator decrease in programming costs that re- may change its filing date from year- sults from the deletion of a channel or to-year, but except as described in channels from a regulated tier. paragraphs (e)(2)(iii)(B) and (iii) Any rate increase made to re- (e)(2)(iii)(C) of this section, at least flect an increase in external costs must twelve months must pass before the op- also fully account for all other changes erator can implement its next annual in external costs, inflation and the adjustment. number of channels on regulated tiers (2) Projecting inflation, changes in ex- that occurred during the same period. ternal costs, and changes in number of Rate adjustments made to reflect regulated channels. An operator that changes in external costs shall be based elects the annual rate adjustment on any changes in those external costs method may adjust its rates to reflect that occurred from the end of the last inflation, changes in external costs and quarter for which an adjustment was changes in the number of regulated previously made through the end of the channels that are projected for the 12 quarter that has most recently closed months following the date the operator preceding the filing of the FCC Form is scheduled to make its rate adjust- 1210 (or FCC Form 1211, where applica- ment pursuant to Section 76.933(g). ble). A system may adjust its rates (i) Inflation Adjustments. The residual after the close of a quarter to reflect component of a system’s permitted changes in external costs that occurred charge may be adjusted annually to during that quarter as soon as it has project for the 12 months following the sufficient information to calculate the date the operator is scheduled to make rate change. a rate adjustment. The annual infla- (e) Annual rate adjustment method—(1) tion adjustment shall be based on infla- Generally. Except as provided for in tion that occurred in the most recently paragraphs (e)(2)(iii)(B) and completed July 1 to June 30 period. Ad- (e)(2)(iii)(C) of this section and Section justments shall be based on changes in 76.923(o), operators that elect the an- the Gross National Product Price Index nual rate adjustment method may not as published by the Bureau of Eco- adjust their rates more than annually nomic Analysis of the United States to reflect inflation, changes in external Department of Commerce. costs, changes in the number of regu- (ii) External costs. (A) Permitted lated channels, and changes in equip- charges for a tier may be adjusted an- ment costs. Operators that make rate nually to reflect changes in external adjustments using this method must costs experienced but not yet ac- file on the same date a Form 1240 for counted for by the cable system, as the purpose of making rate adjust- well as for projections in these external ments to reflect inflation, changes in costs for the 12-month period on which external costs and changes in the num- the filing is based. In order that rates ber of regulated channels and a Form be adjusted for projections in external 1205 for the purpose of adjusting rates costs, the operator must demonstrate for regulated equipment and installa- that such projections are reasonably tion. Operators may choose the annual certain and reasonably quantifiable. filing date, but they must notify the Projections involving copyright fees,

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retransmission consent fees, other pro- nels. Should the operator elect not to gramming costs, Commission regu- pass through the costs immediately, it latory fees, and cable specific taxes are may accrue the costs of the additional presumed to be reasonably certain and channels plus interest, as described in reasonably quantifiable. Operators may paragraph (e)(3) of this section. project for increases in franchise re- (C) An operator may make one addi- lated costs to the extent that they are tional rate adjustment during the year reasonably certain and reasonably to reflect channel additions to the quantifiable, but such changes are not cable programming services tiers or, presumed reasonably certain and rea- where the operator offers only one reg- sonably quantifiable. Operators may ulated tier, the basic service tier. Oper- pass through increases in franchise fees ators may make this additional rate pursuant to Section 76.933(g). adjustment at any time during the (B) In all events, a system must ad- year, subject to the filing requirements just its rates every twelve months to of Section 76.933(g)(2), regardless of reflect any net decreases in external whether the channel addition occurs costs that have not previously been ac- outside of the annual filing cycle. counted for in the system’s rates. Should the operator elect not to pass (C) Any rate increase made to reflect through the costs immediately, it may increases or projected increases in ex- accrue the costs of the additional chan- ternal costs must also fully account for nels plus interest, as described in para- all other changes and projected graph (e)(3) of this section. changes in external costs, inflation and (3) True-up and accrual of charges not the number of channels on regulated projected. As part of the annual rate ad- tiers that occurred or will occur during justment, an operator must ‘‘true up’’ the same period. Rate adjustments its previously projected inflation, made to reflect changes in external changes in external costs and changes costs shall be based on any changes, in the number of regulated channels plus projections, in those external and adjust its rates for these actual costs that occurred or will occur in the cost changes. The operator must de- relevant time periods since the periods crease its rates for overestimation of used in the operator’s most recent pre- vious FCC Form 1240. its projected cost changes, and may in- (iii) Channel adjustments. (A) Per- crease its rates to adjust for underesti- mitted charges for a tier may be ad- mation of its projected cost changes. justed annually to reflect changes not (i) Where an operator has underesti- yet accounted for in the number of reg- mated costs, future rates may be in- ulated channels provided by the cable creased to permit recovery of the ac- system, as well as for projected crued costs plus 11.25% interest be- changes in the number of regulated tween the date the costs are incurred channels for the 12-month period on and the date the operator is entitled to which the filing is based. In order that make its rate adjustment. rates be adjusted for projected changes (ii) Per channel adjustment. Operators to the number of regulated channels, may increase rates by a per channel ad- the operator must demonstrate that justment of up to 20 cents per sub- such projections are reasonably certain scriber per month, exclusive of pro- and reasonably quantifiable. gramming costs, for each channel (B) An operator may make rate ad- added to a CPST between May 15, 1994, justments for the addition of required and December 31, 1997, except that an channels to the basic service tier that operator may take the per channel ad- are required under federal or local law justment only for channel additions at any time such additions occur, sub- that result in an increase in the high- ject to the filing requirements of Sec- est number of channels offered on all tion 76.933(g)(2), regardless of whether CPSTs as compared to May 14, 1994, such additions occur outside of the an- and each date thereafter. Any revenues nual filing cycle. Required channels received from a programmer, or shared may include must-carry, local origina- by a programmer and an operator in tion, public, educational and govern- connection with the addition of a chan- mental access and leased access chan- nel to a CPST shall first be deducted

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from programming costs for that chan- ernmental access channels as required nel pursuant to paragraph (d)(3)(x) of by the franchising authority; this section and then, to the extent (iv) Retransmission consent fees and revenues received from the pro- copyright fees incurred for the carriage grammer are greater than the pro- of broadcast signals; gramming costs, shall be deducted (v) Other programming costs; and from the per channel adjustment. This (vi) Commission cable television sys- deduction will apply on a channel by tem regulatory fees imposed pursuant channel basis. With respect to the per to 47 U.S.C. § 159. channel adjustment only, this deduc- (vii) Headend equipment costs nec- tion shall not apply to revenues re- essary for the carriage of digital broad- ceived by an operator from a pro- cast signals. grammer as commissions on sales of (2) The permitted charge for a regu- products or services offered through lated tier shall be adjusted on account home shopping services. of programming costs, copyright fees (iii) If an operator has underesti- and retransmission consent fees only mated its cost changes and elects not for the program channels or broadcast to recover these accrued costs with in- signals offered on that tier. terest on the date the operator is enti- (3) The permitted charge shall not be tled to make its annual rate adjust- adjusted for costs of retransmission ment, the interest will cease to accrue consent fees or changes in those fees as of the date the operator is entitled incurred prior to October 6, 1994. to make the annual rate adjustment, (4) The starting date for adjustments but the operator will not lose its abil- on account of external costs for a tier ity to recover such costs and interest. of regulated programming service shall An operator may recover accrued costs be the earlier of the initial date of reg- between the date such costs are in- ulation for any basic or cable service curred and the date the operator actu- tier or February 28, 1994. Except, for ally implements its rate adjustment. regulated FCC Form 1200 rates set on (iv) Operators that use the annual the basis of rates at September 30, 1992 methodology in their next filing after (using either March 31, 1994 rates ini- the release date of this Order may ac- tially determined from FCC Form 393 crue costs and interest incurred since Worksheet 2 or using Form 1200 Full July 1, 1995 in that filing. Operators Reduction Rates from Line J6), the that file a Form 1210 in their next fil- starting date shall be September 30, ing after the release date of this Order, 1992. Operators in this latter group may and elect to use Form 1240 in a subse- make adjustment for changes in exter- quent filing, may accrue costs incurred nal costs for the period between Sep- since the end of the last quarter to tember 30, 1992, and the initial date of which a Form 1210 applies. regulation or February 28, 1994, which- (4) Sunset provision. The Commission ever is applicable, based either on will review paragraph (e) of this sec- changes in the GNP-PI over that period tion prior to December 31, 1998 to de- or on the actual change in the external termine whether the annual rate ad- costs over that period. Thereafter, ad- justment methodology should be kept, justment for external costs may be and whether the quarterly system made on the basis of actual changes in should be eliminated and replaced with external costs only. the annual rate adjustment method. (5) Changes in franchise fees shall not (f) External costs. (1) External costs result in an adjustment to permitted shall consist of costs in the following charges, but rather shall be calculated categories: separately as part of the maximum (i) State and local taxes applicable to monthly charge per subscriber for a the provision of cable television serv- tier of regulated programming service. ice; (6) Adjustments to permitted charges (ii) Franchise fees; to reflect changes in the costs of pro- (iii) Costs of complying with fran- gramming purchased from affiliated chise requirements, including costs of programmers, as defined in § 76.901, providing public, educational, and gov- shall be permitted as long as the price

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charged to the affiliated system re- Form 1210 (or FCC Form 1211, where ap- flects either prevailing company prices plicable) or FCC Form 1240 to justify offered in the marketplace to third rate changes made on account of parties (where the affiliated program changes in the number of channels on a supplier has established such prices) or basic service tier (‘‘BST’’) or a cable the fair market value of the program- programming service tier (‘‘CPST’’). ming. Such rate adjustments shall be based (i) For purposes of this section, enti- on any changes in the number of regu- ties are affiliated if either entity has lated channels that occurred from the an attributable interest in the other or end of the last quarter for which an ad- if a third party has an attributable in- justment was previously made through terest in both entities. the end of the quarter that has most (ii) Attributable interest shall be de- recently closed preceding the filing of fined by reference to the criteria set the FCC Form 1210 (or FCC Form 1211, forth in Notes 1 through 5 to § 76.501 where applicable) or FCC Form 1240. provided, however, that: However, when a system deletes chan- (A) The limited partner and LLC/ nels in a calendar quarter, the system LLP/RLLP insulation provisions of must adjust the residual component of Note 2(f) shall not apply; and the tier charge in the next calendar (B) The provisions of Note 2(a) re- quarter to reflect that deletion. Opera- garding five (5) percent interests shall tors must elect between the channel include all voting or nonvoting stock addition rules in paragraphs (g)(2) and or limited partnership equity interests (g)(3) of this section the first time they of five (5) percent or more. 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 (8) In calculating programming ex- the number of channels on a CPST that pense, operators may add a mark-up of occurred after May 15, 1994, may elect 7.5% for increases in programming to revise its rates to charge the rates costs occurring after March 31, 1994, ex- permitted by paragraph (g)(3) of this cept that operators may not file for or section on or after January 1, 1995, but take the 7.5% mark-up on program- is not required to do so as a condition ming costs for new channels added on for using the methodology in para- or after May 15, 1994 for which the op- graph (g)(3) of this section for rate ad- erator has used the methodology set justments after January 1, 1995. Rates forth in paragraph (g)(3) of this section for the BST will be governed exclu- for adjusting rates for channels added sively by paragraph (g)(2) of this sec- to cable programming service tiers. Op- tion, except that where a system of- erators shall reduce rates by decreases fered only one tier on May 14, 1994, the in programming expense plus an addi- cable operator will be allowed to elect tional 7.5% for decreases occurring between paragraphs (g)(2) and (g)(3) of after May 15, 1994 except with respect this section as if the tier was a CPST. to programming cost decreases on (2) Adjusting rates for increases in the channels added after May 15, 1994 for number of channels offered between May which the rate adjustment method- 15, 1994, and December 31, 1997, on a basic ology in paragraph (g)(3) of this section service tier and at the election of the oper- was used. ator on a cable programming service tier. (g) Changes in the number of channels The following table shall be used to ad- on regulated tiers—(1) Generally. A sys- just permitted rates for increases in tem may adjust the residual compo- the number of channels offered between nent of its permitted rate for a tier to May 15, 1994, and December 31, 1997, on reflect changes in the number of chan- a basic service tier and subject to the nels offered on the tier on a quarterly conditions in paragraph (g)(1) of this basis. Cable systems shall use FCC section at the election of the operator

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on a CPST. The entries in the table May 15, 1994, and December 31, 1997. This provide the cents per channel per sub- paragraph at the Operator’s discretion scriber per month by which cable oper- as set forth in paragraph (g)(1) of this ators will adjust the residual compo- section shall be used to adjust per- nent using FCC Form 1210 (or FCC mitted rates for a CPST after Decem- Form 1211, where applicable) or FCC ber 31, 1994, for changes in the number Form 1240. of channels offered on a CPST between May 15, 1994, and December 31, 1997. For Per-channel Average No. of regulated channels adjustment purposes of paragraph (g)(3) of this sec- factor tion, a single tier system may be treat- ed as if it were a CPST. 7 ...... $0.52 7.5 ...... 0.45 (i) Operators cap attributable to new 8 ...... 0.40 channels on all CPSTs through December 8.5 ...... 0.36 31, 1997. Operators electing to use the 9 ...... 0.33 9.5 ...... 0.29 methodology set forth in this para- 10 ...... 0.27 graph may increase their rates between 10.5 ...... 0.24 January 1, 1995, and December 31, 1997, 11 ...... 0.22 11.5 ...... 0.20 by up to 20 cents per channel, exclusive 12 ...... 0.19 of programming costs, for new chan- 12.5 ...... 0.17 nels added to CPSTs on or after May 13 ...... 0.16 13.5 ...... 0.15 15, 1994, except that they may not 14 ...... 0.14 make rate adjustments totalling more 14.5 ...... 0.13 than $1.20 per month, per subscriber 15–15.5 ...... 0.12 through December 31, 1996, and by more 16 ...... 0.11 16.5–17 ...... 0.10 than $1.40 per month, per subscriber 17.5–18 ...... 0.09 through December 31, 1997 (the ‘‘Oper- 18.5–19 ...... 0.08 ator’s Cap’’). Except to the extent that 19.5–21.5 ...... 0.07 22–23.5 ...... 0.06 the programming costs of such chan- 24–26 ...... 0.05 nels are covered by the License Fee Re- 26.5–29.5 ...... 0.04 serve provided for in paragraph 30–35.5 ...... 0.03 36–46 ...... 0.02 (g)(3)(iii) of this section, programming 46.5–99.5 ...... 0.01 costs associated with channels for which a rate adjustment is made pursu- In order to adjust the residual com- ant to this paragraph (g)(3) of this sec- ponent of the tier charge when there is tion must fall within the Operators’ an increase in the number of channels Cap if the programming costs (includ- on a tier, the operator shall perform ing any increases therein) are reflected the following calculations: in rates before January 1, 1997. Infla- (i) Take the sum of the old total tion adjustments pursuant to para- number of channels on tiers subject to graph (d)(2) or (e)(2) of this section are regulation (i.e., tiers that are, or could not counted against the Operator’s be, regulated but excluding New Prod- Cap. uct Tiers) and the new total number of (ii) Per channel adjustment. Operators channels and divide the resulting num- may increase rates by a per channel ad- ber by two; justment of up to 20 cents per sub- (ii) Consult the above table to find scriber per month, exclusive of pro- the applicable per channel adjustment gramming costs, for each channel factor for the number of channels pro- added to a CPST between May 15, 1994, duced by the calculations in step (1). and December 31, 1997, except that an For each tier for which there has been operator may take the per channel ad- an increase in the number of channels, justment only for channel additions multiply the per-channel adjustment that result in an increase in the high- factor times the change in the number est number of channels offered on all of channels on that tier. The result is CPSTs as compared to May 14, 1994, the total adjustment for that tier. and each date thereafter. Any revenues (3) Alternative methodology for adjust- received from a programmer, or shared ing rates for changes in the number of by a programmer and an operator in channels offered on a cable programming connection with the addition of a chan- service tier or a single tier system between nel to a CPST shall first be deducted

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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 When a channel is moved from a 31, 1996, for license fees associated with Tiers. channels added after May 15, 1994, pro- CPST or a BST to another CPST or vided that the total amount recovered BST, the price of the tier from which from subscribers for such channels, in- the channel is dropped shall be reduced cluding the License Fee Reserve, does to reflect the decrease in programming not exceed $1.50 per subscriber, per costs and residual as described in para- month. After December 31, 1996, license graph (g)(4) of this section. The resid- fees may be passed through to sub- ual associated with the shifted channel scribers pursuant to paragraph (f) of shall then be converted from per sub- this section, except that license fees scriber to aggregate numbers to ensure associated with channels added pursu- aggregate revenues from the channel ant to this paragraph (3) will not be eli- remain the same when the channel is gible for the 7.5% mark-up on increases moved. The aggregate residual associ- in programming costs. ated with the shifted channel may be (iv) Timing. For purposes of deter- shifted to the tier to which the channel mining whether a rate increase counts is being moved. The residual shall then against the maximum rate increases be converted to per subscriber figures specified in paragraphs (g)(3)(i) through on the new tier, plus any subsequent (g)(3)(ii) of this section, the relevant inflation adjustment. The price of the date shall be when rates are increased tier to which the channel is shifted as a result of channel additions, not may then be increased to reflect this when the addition occurs. amount. The price of that tier may (4) Deletion of channels. When drop- also be increased to reflect any in- ping a channel from a BST or CPST, crease in programming cost. An oper- operators shall reflect the net reduc- ator may not shift a channel for which tion in external costs in their rates it received a per channel adjustment pursuant to paragraphs (d)(3)(i) and pursuant to paragraph (g)(3) of this sec- (d)(3)(ii) of this section, or paragraphs tion from a CPST to a BST. (e)(2)(ii)(A) and (e)(2)(ii)(B) of this sec- (6) Substitution of channels on a BST or tion. With respect to channels to which CPST. If an operator substitutes a new the 7.5% mark-up on programming channel for an existing channel on a costs applied pursuant to paragraph CPST or a BST, no per channel adjust- (f)(8) of this section, the operator shall ment may be made. Operators sub- treat the mark-up as part of its pro- stituting channels on a CPST or a BST

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shall be required to reflect any reduc- the basic service charge that is after tion in programming costs in their the initial date of regulation is the rates and may reflect any increase in cable operator’s fiscal year preceding programming costs pursuant to para- the mailing or other delivery of writ- graphs (d)(3)(i) and (d)(3)(ii), or para- ten notice pursuant to Section 76.932. A graphs (e)(2)(ii)(A) and (e)(2)(ii)(B) of test year for a change in a cable pro- this section. If the programming cost gramming service charge after the ini- for the new channel is greater than the tial date of regulation is the cable op- programming cost for the replaced erator’s fiscal year preceding the filing channel, and the operator chooses to of a complaint regarding the increase. pass that increase through to sub- (3) The annual revenue requirement scribers, the excess shall count against for a tier is the sum of the return com- the License Fee Reserve or the Oper- ponent and the expense component for ator Cap when the increased cost is that tier. passed through to subscribers. Where (4) The return component for a tier is an operator substitutes a new channel the average allowable test year for a channel on which a 7.5% mark-up ratebase allocable to the tier adjusted on programming costs was taken pur- for known and measurable changes oc- suant to paragraph (f)(8) of this sec- curring between the end of the test tion, the operator may retain the 7.5% year and the effective date of the rate mark-up on the license fee of the multiplied by the rate of return speci- dropped channel to the extent that it is fied by the Commission or franchising no greater than 7.5% of programming authority. cost of the new service. (5) The expense component for a tier (7) [Reserved] is the sum of allowable test year ex- (8) Sunset provision. Paragraph (g) of penses allocable to the tier adjusted for this section shall cease to be effective known and measurable changes occur- on January 1, 1998 unless renewed by ring between the end of the test year the Commission. and the effective date of the rate. (h) Permitted charges for a tier shall be determined in accordance with (6) The ratebase may include the fol- forms and associated instructions es- lowing: tablished by the Commission. (i) Prudent investment by a cable op- (i) Cost of service charge. (1) For pur- erator in tangible plant that is used poses of this section, a monthly cost- and useful in the provision of regulated of-service charge for a basic service cable services less accumulated depre- tier or a cable programming service ciation. Tangible plant in service shall tier is an amount equal to the annual be valued at the actual money cost (or revenue requirement for that tier di- the money value of any consideration vided by a number that is equal to 12 other than money) at the time it was times the average number of sub- first used to provide cable service, ex- scribers to that tier during the test cept that in the case of systems pur- year, except that a monthly charge for chased before May 15, 1994 shall be pre- a system or tier in service less than sumed to equal 66% of the total pur- one year shall be equal to the projected chase price allocable to assets (includ- annual revenue requirement for the ing tangible and intangible assets) used first 12 months of operation or service to provide regulated services. The 66% divided by a number that is equal to 12 allowance shall not be used to justify times the projected average number of any rate increase taken after the effec- subscribers during the first 12 months tive date of this rule. The actual of operation or service. The calculation money cost of plant may include an al- of the average number of subscribers lowance for funds used during con- shall include all subscribers, regardless struction at the prime rate or the oper- of whether they receive service at full ator’s actual cost of funds during con- rates or at discounts. struction. Cost overruns are presumed (2) A test year for an initial regu- to be imprudent investment in the ab- lated charge is the cable operator’s fis- sence of a showing that the overrun oc- cal year preceding the initial date of curred through no fault of the oper- regulation. A test year for a change in ator.

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(ii) An allowance for start-up losses be placed in service within twelve including depreciation, amortization months of the end of the test year. and interest expenses related to assets (7) Deferred income taxes accrued that are included in the ratebase. Cap- after the date upon which the operator italized start-up losses, may include became subject to regulation shall be cumulative net losses, plus any unre- deducted from items included in the covered interest expenses connected to ratebase. funding the regulated ratebase, amor- (8) Allowable expenses may include tized over the unexpired life of the the following: franchise, commencing with the end of (i) All regular expenses normally in- the loss accumulation phase. However, curred by a cable operator in the provi- losses attributable to accelerated de- sion of regulated cable service, but not preciation methodologies are not per- including any lobbying expense, chari- mitted. table contributions, penalties and fines (iii) An allowance for start-up losses, paid on account of violations of stat- if any, that is equal to the lesser of the utes or rules, or membership fees in so- first two years of operating costs or ac- cial, service, recreational or athletic cumulated losses incurred until the clubs or organizations. system reached the end of its pre- (ii) Reasonable depreciation expense maturity stage as defined in Financial attributable to tangible assets allow- Accounting Standards Board Standard able in the ratebase. 51 (‘‘FASB 51’’) less straight-line amor- (iii) Reasonable amortization expense tization over a reasonable period not for prematurely abandoned tangible as- exceeding 15 years that commences at sets formerly includable in the the end of the prematurity phase of op- ratebase that are amortized over the eration. remainder of the original expected life (iv) Intangible assets less amortiza- of the asset. tion that reflect the original costs pru- dently incurred by a cable operator in (iv) Reasonable amortization expense organizing and incorporating a com- for start-up losses and capitalized in- pany that provides regulated cable tangible assets that are includable in services, obtaining a government fran- ratebase. chise to provide regulated cable serv- (v) Taxes other than income taxes at- ices, or obtaining patents that are used tributable to the provision of regulated and useful in the provision of cable cable services. services. (vi) An income tax allowance. (v) The cost of customer lists if such (j) Network upgrade rate increase. (1) costs were capitalized during the pre- Cable operators that undertake signifi- maturity phase of operations less am- cant network upgrades requiring added ortization. capital investment may justify an in- (vi) An amount for working capital crease in rates for regulated services to the extent that an allowance or dis- by demonstrating that the capital in- allowance for funds needed to sustain vestment will benefit subscribers, in- the ongoing operations of the regulated cluding providing television broadcast cable service is demonstrated. programming in a digital format. (vii) Other intangible assets to the (2) A rate increase on account of up- extent the cable operator demonstrates grades shall not be assessed on cus- that the asset reflects costs incurred in tomers until the upgrade is complete an activity or transaction that pro- and providing benefits to customers of duced concrete benefits or savings for regulated services. subscribers to regulated cable services (3) Cable operators seeking an up- that would not have been realized oth- grade rate increase have the burden of erwise and the cable operator dem- demonstrating the amount of the net onstrates that a return on such an increase in costs, taking into account asset does not exceed the value of such current depreciation expense, likely a subscriber benefit. changes in maintenance and other (viii) The portion of the capacity of costs, changes in regulated revenues plant not currently in service that will and expected economies of scale.

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(4) Cable operators seeking a rate in- EDITORIAL NOTE: For FEDERAL REGISTER ci- crease for network upgrades shall allo- tations affecting § 76.922, see the List of CFR cate net cost increases in conformance Sections Affected, which appears in the Finding Aids section of the printed volume with the cost allocation rules as set and at www.govinfo.gov. forth in § 76.924. (5) Cable operators that undertake § 76.923 Rates for equipment and in- significant upgrades shall be permitted stallation used to receive the basic to increase rates by adding the bench- service tier. mark/price cap rate to the rate incre- (a) Scope. (1) The equipment regu- ment necessary to recover the net in- lated under this section consists of all crease in cost attributable to the up- equipment in a subscriber’s home, pro- grade. vided and maintained by the operator, (k) Hardship rate relief. A cable oper- that is used to receive the basic service ator may adjust charges by an amount tier, regardless of whether such equip- specified by the Commission for the ment is additionally used to receive cable programming service tier or the other tiers of regulated programming franchising authority for the basic service and/or unregulated service. service tier if it is determined that: Such equipment shall include, but is (1) Total revenues from cable oper- not limited to: ations, measured at the highest level of (i) Converter boxes; the cable operator’s cable service orga- (ii) Remote control units; and nization, will not be sufficient to en- (iii) Inside wiring. able the operator to attract capital or (2) Subscriber charges for such equip- maintain credit necessary to enable ment shall not exceed charges based on the operator to continue to provide actual costs in accordance with the re- cable service; quirements set forth in this section. (2) The cable operator has prudent Subscriber charges for such equip- and efficient management; and ment shall not exceed charges based on (3) Adjusted charges on account of actual costs in accordance with the re- hardship will not result in total quirements set forth below. charges for regulated cable services (b) Unbundling. A cable operator shall that are excessive in comparison to establish rates for remote control charges of similarly situated systems. units, converter boxes, other customer (l) Cost of service showing. A cable op- equipment, installation, and additional erator that elects to establish a charge, connections separate from rates for or to justify an existing or changed basic tier service. In addition, the rates charge for regulated cable service, for such equipment and installations based on a cost-of-service showing shall be unbundled one from the other. must submit data to the Commission (c) Equipment basket. A cable operator or the franchising authority in accord- shall establish an Equipment Basket, ance with forms established by the which shall include all costs associated Commission. The cable operator must with providing customer equipment also submit any additional information and installation under this section. requested by franchising authorities or Equipment Basket costs shall be lim- the Commission to resolve questions in ited to the direct and indirect material cost-of-service proceedings. and labor costs of providing, leasing, installing, repairing, and servicing cus- (m) Subsequent cost of service charges. tomer equipment, as determined in ac- No cable operator may use a cost-of- cordance with the cost accounting and service showing to justify an increase cost allocation requirements of § 76.924, in any charge established on a cost-of- except that operators do not have to service basis for a period of 2 years aggregate costs in a manner consistent after that rate takes effect, except that with the accounting practices of the the Commission or the franchising au- operator on April 3, 1993. The Equip- thority may waive this prohibition ment Basket shall not include general upon a showing of unusual cir- administrative overhead including cumstances that would create undue marketing expenses. The Equipment hardship for a cable operator. Basket shall include a reasonable prof- [58 FR 29753, May 21, 1993] it.

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(1) Customer equipment. Costs of cus- ganizational level at which an operator tomer equipment included in the aggregates its costs. Equipment Basket may be aggregated, (d) Hourly service charge. A cable op- on a franchise, system, regional, or erator shall establish charges for company level, into broad categories. equipment and installation using the Except to the extent indicated in para- Hourly Service Charge (HSC) method- graph (c)(2) of this section, such cat- ology. The HSC shall equal the opera- egorization may be made, provided tor’s annual Equipment Basket costs, that each category includes only equip- excluding the purchase cost of cus- ment of the same type, regardless of tomer equipment, divided by the total the levels of functionality of the equip- person hours involved in installing, re- ment within each such broad category. pairing, and servicing customer equip- When submitting its equipment costs ment during the same period. The HSC 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- EB- CE ployed and a justification that its aver- HSC = aging methodology produces reason- H able equipment rates. Equipment rates Where, EB = annual Equipment Basket Cost; should be set at the same organiza- CE = annual purchase cost of all cus- tional level at which an operator ag- tomer equipment; and H = person hours gregates its costs. involved in installing and repairing (2) Basic service tier only equipment. equipment per year. The purchase cost of customer equipment shall include the Costs of customer equipment used by cable operator’s invoice price plus all basic-only subscribers may not be ag- other costs incurred with respect to the gregated with the costs of equipment equipment until the time it is provided used by non-basic-only subscribers. to the customer. Costs of customer equipment used by (e) Installation charges. Installation basic-only subscribers may, however, charges shall be either: be aggregated, consistent with an oper- (1) The HSC multiplied by the actual ator’s aggregation under paragraph time spent on each individual installa- (c)(1) of this section, on a franchise, tion; or system, regional, or company level. (2) The HSC multiplied by the aver- The prohibition against aggregation age time spent on a specific type of in- applies to subscribers, not to a par- stallation. ticular type of equipment. Alter- (f) Remote charges. Monthly charges natively, operators may base its basic- for rental of a remote control unit only subscriber cost aggregation on the shall consist of the average annual unit assumption that all basic-only sub- purchase cost of remotes leased, in- scribers use equipment that is the low- cluding acquisition price and inci- est level and least expensive model of dental costs such as sales tax, financ- equipment offered by the operator, ing and storage up to the time it is pro- even if some basic-only subscribers ac- vided to the customer, added to the tually have higher level, more expen- product of the HSC times the average sive equipment. number of hours annually repairing or (3) Installation costs. Installation servicing a remote, divided by 12 to de- costs, consistent with an operator’s ag- termine the monthly lease rate for a gregation under paragraph (c)(1) of this remote according to the following for- section, may be aggregated, on a fran- mula: chise, system, regional, or company level. When submitting its installation UCE + (HSC × HR) costs based on average charges, the Monthly Charge = cable operator must provide a general 12 description of the averaging method- Where, HR = average hours repair per year; ology employed and a justification that and UCE = average annual unit cost of its averaging methodology produces remote. reasonable equipment rates. Installa- (g) Other equipment charges. The tion rates should be set at the same or- monthly charge for rental of converter

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boxes and other customer equipment (k) Franchise fees. Equipment charges shall be calculated in the same manner may include a properly allocated por- as for remote control units. Separate tion of franchise fees. charges may be established for each (l) Company-wide averaging of equip- category of other customer equipment. ment costs. For the purpose of devel- (h) Additional connection charges. The oping unbundled equipment charges as costs of installation and monthly use required by paragraph (b) of this sec- of additional connections shall be re- tion, a cable operator may average the covered as charges associated with the equipment costs of its small systems at installation and equipment cost cat- any level, or several levels, within its egories, and at rate levels determined operations. This company-wide aver- by the actual cost methodology pre- aging applies only to an operator’s sented in the foregoing paragraphs (e), small systems as defined in § 76.901(c); (f), and (g) of this section. An operator is permitted only for equipment may recover additional programming charges, not installation charges; and costs and the costs of signal boosters may be established only for similar on the customers premises, if any, as- types of equipment. When submitting sociated with the additional connec- its equipment costs based on average tion as a separate monthly unbundled charges to the local franchising au- charge for additional connections. thority or the Commission, an operator (i) Charges for equipment sold. A cable that elects company-wide averaging of operator may sell customer premises equipment costs must provide a gen- equipment to a subscriber. The equip- eral description of the averaging meth- ment price shall recover the operator’s odology employed and a justification cost of the equipment, including costs that its averaging methodology pro- associated with storing and preparing duces reasonable equipment rates. The the equipment for sale up to the time local authority or the Commission may it is sold to the customer, plus a rea- require the operator to set equipment sonable profit. An operator may sell rates based on the operator’s level of service contracts for the maintenance averaging in effect on April 3, 1993, as and repair of equipment sold to sub- required by § 76.924(d). scribers. The charge for a service con- (m) Cable operators shall set charges tract shall be the HSC times the esti- for equipment and installations to re- mated average number of hours for cover Equipment Basket costs. Such maintenance and repair over the life of charges shall be set, consistent with the equipment. the level at which Equipment Basket (j) Promotions. A cable operator may costs are aggregated as provided in offer equipment or installation at § 76.923(c). Cable operators shall main- charges below those determined under tain adequate documentation to dem- paragraphs (e) through (g) of this sec- onstrate that charges for the sale and tion, as long as those offerings are rea- lease of equipment and for installa- sonable in scope in relation to the op- tions have been developed in accord- erator’s overall offerings in the Equip- ance with the rules set forth in this ment Basket and not unreasonably dis- section. criminatory. Operators may not re- (n) Timing of filings. An operator shall cover the cost of a promotional offer- file FCC Form 1205 in order to establish ing by increasing charges for other its maximum permitted rates at the Equipment Basket elements, or by in- following times: creasing programming service rates (1) When the operator sets its initial above the maximum monthly charge rates under either the benchmark sys- per subscriber prescribed by these tem or through a cost-of-service show- rules. As part of a general cost-of-serv- ing; ice showing, an operator may include (2) Within 60 days of the end of its fis- the cost of promotions in its general cal year, for an operator that adjusts system overhead costs. Equipment its rates under the system described in sales by an operator will be unregu- Section 76.922(d) that allows it to file lated where the operator offers sub- up to quarterly; scribers the same equipment under reg- (3) On the same date it files its FCC ulated leased rates. Form 1240, for an operator that adjusts

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its rates under the annual rate adjust- changes in external costs shall main- ment system described in Section tain their accounts: 76.922(e). If an operator elects not to (1) in accordance with generally ac- file an FCC Form 1240 for a particular cepted accounting principles; and year, the operator must file a Form (2) in a manner that will enable iden- 1205 on the anniversary date of its last tification of appropriate investments, Form 1205 filing; and revenues, and expenses. (4) When seeking to adjust its rates (c) Accounts level. Except to the ex- to reflect the offering of new types of tent indicated below, cable operators customer equipment other than in con- electing cost of service regulation or junction with an annual filing of Form seeking adjustments due to changes in 1205, 60 days before it seeks to adjust external costs shall identify invest- its rates to reflect the offering of new ments, expenses and revenues at the types of customer equipment. franchise, system, regional, and/or (o) Introduction of new equipment. In company level(s) in a manner con- setting the permitted charge for a new sistent with the accounting practices type of equipment at a time other than of the operator on April 3, 1993. How- at its annual filing, an operator shall ever, in all events, cable operators only complete Schedule C and the rel- shall identify at the franchise level evant step of the Worksheet for Calcu- their costs of franchise requirements, lating Permitted Equipment and In- franchise fees, local taxes and local stallation Charges of a Form 1205. The programming. operator shall rely on entries from its (d) Summary accounts. (1) Cable opera- most recently filed FCC Form 1205 for tors filing for cost-of-service regula- information not specifically related to tion, other than small systems owned the new equipment, including but not by small cable companies, shall report all investments, expenses, and revenue limited to the Hourly Service Charge. and income adjustments accounted for In calculating the annual maintenance at the franchise, system, regional and/ and service hours for the new equip- or company level(s) to the summary ment, the operator should base its accounts listed below. entry on the average annual expected time required to maintain the unit, i.e., RATEBASE expected service hours required over Net Working Capital the life of the equipment unit being in- Headend troduced divided by the equipment Trunk and Distribution Facilities unit’s expected life. Drops Customer Premises Equipment [58 FR 29753, May 21, 1993, as amended at 59 Construction/Maintenance Facilities and FR 17960, 17973, Apr. 15, 1994; 60 FR 52118, Oct. Equipment 5, 1995; 61 FR 32709, June 25, 1996; 83 FR 60776, Programming Production Facilities and Nov. 27, 2018] Equipment Business Offices Facilities and Equipment § 76.924 Allocation to service cost cat- Other Tangible Assets egories. Accumulated Depreciation (a) Applicability. The requirements of Plant Under Construction this section are applicable to cable op- Organization and Franchise Costs 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 respect to a cable programming serv- Accumulated Amortization ices tier, for which a complaint has Deferred Taxes been filed with the Commission. The OPERATING EXPENSES requirements of this section are appli- cable for purposes of rate adjustments Cable Plant Employee Payroll on account of external costs and for Cable Plant Power Expense cost-of-service showings. Pole Rental, Duct, Other Rental for Cable Plant (b) Accounting requirements. Cable op- Cable Plant Depreciation Expense erators electing cost-of-service regula- Cable Plant Expenses—Other tion or seeking rate adjustments due to Plant Support Employee Payroll Expense

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

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paragraphs (e)(1)(i) and (ii) of this sec- egories and the equipment basket tion. based on direct analysis of the origin of (2) Cable operators seeking an adjust- the costs. ment due to changes in external costs (ii) Where allocation based on direct identified in FCC Form 1210 shall allo- analysis is not possible, common costs cate such costs among the equipment for which no allocator has been speci- basket, as specified in § 76.923, and the fied by the Commission shall, if pos- following service cost categories: sible, be allocated among the service (i) The basic service category as de- costs categories and the equipment fined by paragraph (e)(1)(i) of this sec- basket based on indirect, cost-causa- tion; tive linkage to other costs directly as- (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- (2) Cable operators shall repeat the tem regulatory fees imposed pursuant procedure specified in paragraph (g)(1) to 47 U.S.C. 159 shall be directly as- of this section at every organizational signed to the basic service tier. level at which recoverable costs have (6) All other costs that are incurred been identified until such costs have exclusively to support the equipment been allocated to the franchise level. basket or a specific service cost cat- (h) Part-time channels. In situations egory shall be directly assigned to that where a single channel is divided on a service cost category or the equipment part-time basis and is used to deliver basket where possible. service associated with different tiers (7) Costs that are not directly as- or with pay per channel or pay per view signed shall be allocated to the service service, a reasonable and documented cost categories in accordance with the allocation of that channel between following allocation procedures: services shall be required along with (i) Wherever possible, common costs the associated revenues and costs. for which no allocator has been speci- (i) Transactions and affiliates. Adjust- fied by the Commission are to be allo- ments on account of external costs and cated among the service cost cat- rates set on a cost-of-service basis shall

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exclude any amounts not calculated in (6) For purposes of this section, enti- accordance with the following: ties are affiliated if either entity has (1) Charges for assets purchased by or an attributable interest in the other or transferred to the regulated activity of if a third party has an attributable in- a cable operator from affiliates shall terest in both entities. equal the invoice price if that price is (7) Attributable interest shall be de- determined by a prevailing company fined by reference to the criteria set price. The invoice price is the pre- forth in Notes 1 through 5 to § 76.501 vailing company price if the affiliate provided, however, that: has sold a substantial number of like (i) The limited partner and LLC/LLP/ assets to nonaffiliates. If a prevailing RLLP insulation provisions of Note 2(f) company price for the assets received shall not apply; and by the regulated activity is not avail- (ii) The provisions of Note 2(a) re- able, the changes for such assets shall garding five (5) percent interests shall be the lower of their cost to the origi- include all voting or nonvoting stock nating activity of the affiliated group or limited partnership equity interests less all applicable valuation reserves, of five (5) percent or more. or their fair market value. (j) Unrelated expenses and revenues. (2) The proceeds from assets sold or Cable operators shall exclude from cost transferred from the regulated activity categories used to develop rates for the of the cable operator to affiliates shall provision of regulated cable service, equal the prevailing company price if equipment, and leased commercial ac- the cable operator has sold a substan- cess, any direct or indirect expenses tial number of like assets to nonaffili- and revenues not related to the provi- ates. If a prevailing company price is sion of such services. Common costs of not available, the proceeds from such providing regulated cable service, sales shall be determined at the higher equipment, and leased commercial ac- of cost less all applicable valuation re- cess and unrelated activities shall be serves, or estimated fair market value allocated between them in accordance of the asset. with paragraph (f) of this section. (3) Charges for services provided to [58 FR 29753, May 21, 1993, as amended at 59 the regulated activity of a cable oper- FR 17990, Apr. 15, 1994; 59 FR 53115, Oct. 21, ator by an affiliate shall equal the in- 1994; 60 FR 35865, July 12, 1995; 61 FR 9367, voice price if that price is determined Mar. 8, 1996; 64 FR 67197, Dec. 1, 1999] by a prevailing company price. The in- voice price is the prevailing company § 76.925 Costs of franchise require- price if the affiliate has sold like serv- ments. ices to a substantial number of non- (a) Franchise requirement costs may affiliates. If a prevailing company price include cost increases required by the for the services received by the regu- franchising authority in the following lated activity is not available, the categories: charges of such services shall be at (1) Costs of providing PEG access cost. channels; (4) The proceeds from services sold or (2) Costs of PEG access programming; transferred from the regulated activity (3) Costs of technical and customer of the cable operator to affiliates shall service standards to the extent that equal the prevailing company price if they exceed federal standards; the cable operator has sold like serv- (4) Costs of institutional networks ices to a substantial number of non- and the provision of video services, affiliates. If a prevailing company price voice transmissions and data trans- is not available, the proceeds from such missions to or from governmental in- sales shall be determined at cost. stitutions and educational institutions, (5) For purposes of § 76.924(i)(1) including private schools, to the extent through 76.924(i)(4), costs shall be de- such services are required by the fran- termined in accordance with the stand- chise agreement; and ards and procedures specified in § 76.922 (5) When the operator is not already and paragraphs (b) and (d) of this sec- in the process of upgrading the system, tion. costs of removing cable from utility

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poles and placing the same cable un- the basic service tier and associated derground. equipment costs, or a proposed increase (b) The costs of satisfying franchise in these rates (including increases in requirements to support public, edu- the baseline channel change that re- cational, and governmental channels sults from reductions in the number of shall consist of the sum of: channels in a tier) under the quarterly (1) All per channel costs for the num- rate adjustment system pursuant to ber of channels used to meet franchise Section 76.922(d), the existing rates will requirements for public, educational, remain in effect or the proposed rates and governmental channels; will become effective after 30 days from (2) Any direct costs of meeting such the date of submission; Provided, how- franchise requirements; and ever, that the franchising authority (3) A reasonable allocation of general may toll this 30-day deadline for an ad- and administrative overhead. ditional time by issuing a brief written (c) The costs of satisfying any re- order as described in paragraph (b) quirements under the franchise other within 30 days of the rate submission than PEG access costs shall consist of explaining that it needs additional the direct and indirect costs including time to review the rates. a reasonable allocation of general and (b) If the franchising authority is un- administrative overhead. able to determine, based upon the ma- [58 FR 29753, May 21, 1993, as amended at 60 terial submitted by the cable operator, FR 52119, Oct. 5, 1995] that the existing, or proposed rates under the quarterly adjustment system § 76.930 Initiation of review of basic pursuant to Section 76.922(d), are with- cable service and equipment rates. in the Commission’s permitted basic A cable operator shall file its sched- service tier charge or actual cost of ule of rates for the basic service tier equipment as defined in §§ 76.922 and and associated equipment with a fran- 76.923, or if a cable operator has sub- chising authority within 30 days of re- mitted a cost-of-service showing pursu- ceiving written notification from the ant §§ 76.937(c) and 76.924, seeking to franchising authority that the fran- justify a rate above the Commission’s chising authority has been certified by basic service tier charge as defined in the Commission to regulate rates for §§ 76.922 and 76.923, the franchising au- the basic service tier. Basic service and thority may toll the 30-day deadline in equipment rate schedule filings for ex- paragraph (a) of this section to request isting rates or proposed rate increases and/or consider additional information (including increases in the baseline or to consider the comments from in- channel change that results from re- terested parties as follows: ductions in the number of channels in (1) For an additional 90 days in cases a tier) must use the appropriate offi- not involving cost-of-service showings; cial FCC form, a copy thereof, or a or copy generated by FCC software. Fail- (2) For an additional 150 days in cases ure to file on the official FCC form, a involving cost-of-service showings. copy thereof, or a copy generated by (c) If a franchising authority has FCC software, may result in the impo- availed itself of the additional 90 or 150 sition of sanctions specified in days permitted in paragraph (b) of this § 76.937(d). A cable operator shall in- section, and has taken no action within clude rate cards and channel line-ups these additional time periods, then the with its filing and include an expla- proposed rates will go into effect at the nation of any discrepancy in the fig- end of the 90 or 150 day periods, or ex- ures provided in these documents and isting rates will remain in effect at its rate filing. such times, subject to refunds if the [59 FR 17973, Apr. 15, 1994] franchising authority subsequently issues a written decision disapproving § 76.933 Franchising authority review any portion of such rates: Provided, of basic cable rates and equipment however, That in order to order refunds, costs. a franchising authority must have (a) After a cable operator has sub- issued a brief written order to the cable mitted for review its existing rates for operator by the end of the 90 or 150-day

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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 allo- amounts were paid. cable 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 oper- that once collections of such payments ator or franchising authority may seek begin there shall be no month remain- reconsideration of the ruling pursuant ing in the year in which the operator is to § 1.106(a)(1) of this chapter or review not entitled to such an additional pay- by the Commission pursuant to ment. Operators may not assess inter- § 1.115(a) of this chapter. est. Operators may provide notice of (e) Notwithstanding paragraphs (a) the entire fiscal year’s regulatory fee through (d) of this section, when the pass-through in a single notice. franchising authority is regulating (g) A cable operator that submits for basic service tier rates, a cable oper- review a proposed change in its exist- ator that sets its rates pursuant to the ing rates for the basic service tier and quarterly rate adjustment system pur- associated equipment costs using the suant to § 76.922(d) may increase its annual filing system pursuant to Sec- rates for basic service to reflect the tion 76.922(e) shall do so no later than imposition of, or increase in, franchise 90 days from the effective date of the fees or Commission cable television proposed rates. The franchising author- system regulatory fees imposed pursu- ity will have 90 days from the date of ant to 47 U.S.C. 159. For the purposes of the filing to review it. However, if the paragraphs (a) through (c) of this sec- franchising authority or its designee tion, the increased rate attributable to concludes that the operator has sub- Commission regulatory fees or fran- mitted a facially incomplete filing, the chise fees shall be treated as an ‘‘exist- franchising authority’s deadline for

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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 rates with the franchising authority, this information, provided that, in the operator may give customers no- order to toll these effective dates, the tice of the proposed rate changes. Such franchising authority or its designee notice should state that the proposed must notify the operator of the incom- rate change is subject to approval by plete filing within 45 days of the date the franchising authority. If the oper- the filing is made. ator is only permitted a smaller in- (1) If there is a material change in an crease than was provided for in the no- operator’s circumstances during the 90- tice, the operator must provide an ex- day review period and the change af- planation to subscribers on the bill in fects the operator’s rate change filing, which the rate adjustment is imple- the operator may file an amendment to 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 rate reduction and refund if the fran- take effect at the end of this 60-day pe- chising authority subsequently issues a riod unless the franchising authority written decision disapproving any por- rejects the proposed rate as unreason- tion of such rates, provided, however, able. In order to order refunds and pro- that in order to order a prospective spective rate reductions, the fran- rate reduction and refund, if an oper- chising authority shall be subject to ator inquires as to whether the fran- the requirements described in para- chising authority intends to issue a rate order after the initial review pe- graph (g)(1) of this section. riod, the franchising authority or its (5) Notwithstanding paragraphs (a) designee must notify the operator of through (f) of this section, when the its intent in this regard within 15 days franchising authority is regulating of the operator’s inquiry. If a proposed basic service tier rates, a cable oper- rate goes into effect before the fran- ator may increase its rates for basic chising authority issues its rate order, service to reflect the imposition of, or the franchising authority will have 12 increase in, franchise fees. The in- months from the date the operator creased rate attributable to Commis- filed for the rate adjustment to issue sion regulatory fees or franchise fees its rate order. In the event that the shall be subject to subsequent review franchising authority does not act and refund if the franchising authority within this 12-month period, it may not determines that the increase in basic

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tier rates exceeds the increase in regu- ure the size of both the system and the latory fees or in franchise fees allo- company as of the same date. A small cable to the basic tier. This determina- system shall be considered affiliated tion shall be appealable to the Com- with a cable company if the company mission pursuant to § 76.944. When the holds a 20 percent or greater equity in- Commission is regulating basic service terest in the system or exercises de tier rates pursuant to § 76.945 or cable jure control over the system. programming service rates pursuant to (b) A franchising authority that has § 76.960, an increase in those rates re- been certified, pursuant to § 76.910, to sulting from franchise fees or Commis- regulate rates for basic service and as- sion regulatory fees shall be reviewed sociated equipment may permit a by the Commission pursuant to the small system as defined in § 76.901 to mechanisms set forth in § 76.945. certify that the small system’s rates (h) If an operator files an FCC Form for basic service and associated equip- 1205 for the purpose of setting the rate ment comply with § 76.922, the Commis- for a new type of equipment under Sec- sion’s substantive rate regulations. tion 76.923(o), the franchising authority (c) Initial regulation of small sys- has 60 days to review the requested tems: rate. The proposed rate shall take ef- (1) If certified by the Commission, a fect at the end of this 60-day period un- local franchising authority may pro- less the franchising authority rejects vide an initial notice of regulation to a the proposed rate as unreasonable. small system, as defined by § 76.901(c), (1) If the operator’s most recent rate on May 15, 1994. Any initial notice of filing was based on the system that en- regulation issued by a certified local ables them to file up to once per quar- franchising authority prior to May 15, ter found at Section 76.922(d), the fran- 1994 shall be considered as having been chising authority must issue an ac- issued on May 15, 1994. counting order before the end of the 60- (2) The Commission will accept com- day period in order to order refunds plaints concerning the rates for cable and prospective rate reductions. programming service tiers provided by (2) If the operator’s most recent rate small systems on or after May 15, 1994. filing was based on the annual rate sys- Any complaints filed with the Commis- tem at Section 76.922(e), in order to sion about the rates for a cable pro- order refunds and prospective rate re- gramming service tier provided by a ductions, the franchising authority small system prior to May 15, 1994 shall shall be subject to the requirements de- be considered as having been filed on scribed in paragraph (g)(1) of this sec- May 15, 1994. tion. (3) A small system that receives an [58 FR 29753, May 21, 1993, as amended at 59 initial notice of regulation from its FR 17973, Apr. 15, 1994; 59 FR 53115, Oct. 21, local franchising authority, or a com- 1994; 60 FR 52119, Oct. 5, 1995; 61 FR 18978, plaint filed with the Commission for its Apr. 30, 1996] cable programming service tier, must respond within the time periods pre- § 76.934 Small systems and small cable scribed in §§ 76.930 and 76.956. companies. (d) Statutory period for filing initial (a) For purposes of rules governing complaint: A complaint concerning a the reasonableness of rates charged by rate for cable programming service or small systems, the size of a system or associated equipment provided by a company shall be determined by ref- small system that was in effect on May erence to its size as of the date the sys- 15, 1994 must be filed within 180 days tem files with its franchising authority from May 15, 1994. or the Commission the documentation (e) Petitions for extension of time: necessary to qualify for the relief Small systems may obtain an exten- sought or, at the option of the com- sion of time to establish compliance pany, by reference to system or com- with rate regulations provided they pany size as of the effective date of this can demonstrate that timely compli- paragraph. Where relief is dependent ance would result in severe economic upon the size of both the system and hardship. Requests for extension of the company, the operator must meas- time should be addressed to the local

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franchising authority concerning basic including the relationship of such rates service and equipment rates and to the to changes in general consumer prices; Commission concerning rates for a (iv) The rates, as a whole, for all the cable programming service tier and as- cable programming, cable equipment, sociated equipment. The filing of a re- and cable services provided by the sys- quest for an extension of time to com- tem, other than programming provided ply with the rate regulations will not on a per channel or per program basis; toll the effective date of rate regula- (v) Capital and operating costs of the tion for small systems or alter refund cable system, including the quality and liability for rates that exceed per- costs of the customer service provided mitted levels after May 15, 1994. by the cable system; and (f) Small Systems Owned by Small Cable (vi) The revenues received by a cable Companies. Small systems owned by operator from advertising from pro- small cable companies shall have 90 gramming that is carried as part of the days from their initial date of regula- service for which a rate is being estab- lished, and changes in such revenues, tion on a tier to bring their rates for or from other considerations obtained that tier into compliance with the re- in connection with the cable program- quirements of Sections 76.922 and ming services concerned. The rate 76.923. Such systems shall have sixty agreed to in such an alternative rate days from the initial date of regulation regulation agreement shall be deemed to file FCC Forms 1200, 1205, 1210, 1211, to be a reasonable rate. 1215, 1220, 1225, 1230, and 1240 and any (3) Certified local franchising au- similar forms as appropriate. Rates es- thorities shall provide a reasonable op- tablished during the 90-day period shall portunity for consideration of the not be subject to prior approval by views of interested parties prior to fi- franchising authorities or the Commis- nally entering into an alternative rate sion, but shall be subject to refund pur- regulation agreement. suant to sections 76.942 and 76.961. (4) A basic service rate decision by a (g) Alternative rate regulation agree- certified local franchising authority ments: made pursuant to an alternative rate (1) Local franchising authorities, cer- regulation agreement may be appealed tified pursuant to § 76.910, and small by an interested party to the Commis- systems owned by small cable compa- sion pursuant to § 76.944 as if the deci- nies may enter into alternative rate sion were made according to §§ 76.922 regulation agreements affecting the and 76.923. basic service tier and the cable pro- gramming service tier. NOTE TO PARAGRAPH (g) OF § 76.934: Small systems owned by small cable companies (i) Small systems must file with the must comply with the alternative rate agree- Commission a copy of the operative al- ment filing requirements of § 76.1805. ternative rate regulation agreement (h) Small system cost-of-service within 30 days after its effective date. showings: (ii) [Reserved] (1) At any time, a small system (2) Alternative rate regulation agree- owned by a small cable company may ments affecting the cable programming establish new rates, or justify existing service tier shall take into account, rates, for regulated program services in among other factors, the following: accordance with the small cable com- (i) The rates for similarly situated pany cost-of-service methodology de- cable systems offering comparable scribed below. cable programming services, taking (2) The maximum annual per sub- into account similarities in facilities, scriber rate permitted initially by the regulatory and governmental costs, the small cable company cost-of-service number of subscribers, and other rel- methodology shall be calculated by evant factors; adding (ii) The rates for cable systems, if (i) The system’s annual operating ex- any, that are subject to effective com- penses to petition; (ii) The product of its net rate base (iii) The history of the rates for cable and its rate of return, and then divid- programming services of the system, ing that sum by (iii) the product of

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(A) The total number of channels car- reliable data maintained by the sys- ried on the system’s basic and cable tem. programming service tiers and (v) The number of channels reported (B) The number of subscribers. The by the system shall be the number of annual rate so calculated must then be channels it has on its basic and cable divided by 12 to arrive at a monthly programming service tiers on the day rate. it files Form 1230. (3) The system shall calculate its (vi) In establishing its operating ex- maximum permitted rate as described penses, net rate base, and reasonable in paragraph (b) of this section by com- rate of return, a system may rely on pleting Form 1230. The system shall previously existing information such as file Form 1230 as follows: tax forms or company financial state- (i) Where the franchising authority ments, rather than create or recreate has been certified by the Commission financial calculations. To the extent to regulate the system’s basic service existing information is incomplete or tier rates, the system shall file Form otherwise insufficient to make exact 1230 with the franchising authority. calculations, the system may establish (ii) Where the Commission is regu- its operating expenses, net rate base, lating the system’s basic service tier and reasonable rate of return on the rates, the system shall file Form 1230 basis of reasonable, good faith esti- with the Commission. mates. (iii) Where a complaint about the (5) After the system files Form 1230, system’s cable programming service review by the franchising authority, or rates is filed with the Commission, the the Commission when appropriate, system shall file Form 1230 with the shall be governed by § 76.933, subject to Commission. the following conditions. (4) In completing Form 1230: (i) The annual operating expenses re- (i) If the maximum rate established ported by the system shall equal the on Form 1230 does not exceed $1.24 per system’s operating expenses allocable channel, the rate shall be rebuttably to its basic and cable programming presumed reasonable. To disallow such service tiers for the most recent 12 a rate, the franchising authority shall month period for which the system has bear the burden of showing that the op- the relevant data readily available, ad- erator did not reasonably interpret and justed for known and measurable allocate its cost and expense data in changes occurring between the end of deriving its annual operating expenses, the 12 month period and the effective its net rate base, and a reasonable rate date of the rate. Expenses shall include of return. If the maximum rate estab- all regular expenses normally incurred lished on Form 1230 exceeds $1.24 per by a cable operator in the provision of channel, the franchising authority regulated cable service, but shall not shall bear such burden only if the rate include any lobbying expense, chari- that the cable operator actually seeks table contributions, penalties and fines to charge does not exceed $1.24 per paid one account of statutes or rules, channel. or membership fees in social service, (ii) In the course of reviewing Form recreational or athletic clubs or asso- 1230, a franchising authority shall be ciations. permitted to obtain from the cable op- (ii) The net rate base of a system is erator the information necessary for the value of all of the system’s assets, judging the validity of methods used less depreciation. for calculating its operating costs, rate (iii) The rate of return claimed by base, and rate of return. If the max- the system shall reflect the operator’s imum rate established in Form 1230 actual cost of debt, its cost of equity, does not exceed $1.24 per channel, any or an assumed cost of equity, and its request for information by the fran- capital structure, or an assumed cap- chising authority shall be limited to ital structure. existing relevant documents or other (iv) The number of subscribers re- data compilations and should not re- ported by the system shall be cal- quire the operator to create docu- culated according to the most recent ments, although the operator should

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replicate responsive documents that sion on a previous interlocutory appeal are missing or destroyed. by the operator. (iii) A system may file with the (6) Complaints concerning the rates Media Bureau an interlocutory appeal charged for a cable programming serv- from any decision by the franchising ices tier by a system that has elected authority requesting information from the small cable company cost-of-serv- the system or tolling the effective date ice methodology may be filed pursuant of a system’s proposed rates. The ap- to § 76.957. Upon receipt of a complaint, peal may be made by an informal letter the Commission shall review the sys- to the Chief of the Media Bureau, tem’s rates in accordance with the served on the franchising authority. standards set forth above with respect The franchising authority must re- to basic tier rates. spond within seven days of its receipt (7) Unless otherwise ordered by the of the appeal and shall serve the oper- franchising authority or the Commis- ator with its response. The operator sion, the system may establish its per shall have four days from its receipt of channel rate at any level that does not the response in which to file a reply, if exceed the maximum rate permitted by desired. If the maximum rate estab- Form 1230, provided that the system lished on Form 1230 does not exceed has given the required written notice $1.24 per channel, the burden shall be to subscribers. If the system estab- on the franchising authority to show lishes its per channel rate at a level the reasonableness of its order. If the that is less than the maximum amount maximum rate established on Form permitted by the form, it may increase 1230 exceeds $1.24 per channel, the bur- rates at any time thereafter to the den shall be on the operator to show maximum amount upon providing the the unreasonableness of the order. required written notice to subscribers. (iv) In reviewing Form 1230 and (8) After determining the maximum issuing a decision, the franchising au- rate permitted by Form 1230, the sys- thority shall determine the reasonable- tem may adjust that rate in accord- ness of the maximum rate permitted by ance with this paragraph. Electing to the form, not simply the rate which adjust rates pursuant to one of the op- the operator intends to establish. tions set forth below shall not prohibit (v) A final decision of the franchising the system from electing a different authority with respect to the requested option when adjusting rates thereafter. rate shall be subject to appeal pursuant The system may adjust its maximum to § 76.944. The filing of an appeal shall permitted rate without adjusting the stay the effectiveness of the final deci- actual rate it charges subscribers. sion pending the disposition of the ap- (i) The system may adjust its max- peal by the Commission. An operator imum permitted rate in accordance may bifurcate its appeal of a final rate with the price cap requirements set decision by initially limiting the scope forth in § 76.922(d). of the appeal to the reasonableness of (ii) The system may adjust its max- any request for information made by imum permitted rate in accordance the franchising authority. The oper- with the requirements set forth in ator may defer addressing the sub- § 76.922(e) for changes in the number of stantive rate-setting decision of the channels on regulated tiers. For any franchising authority until after the system that files Form 1230, no rate ad- 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 max- single appeal. When filing an appeal imum 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 max- may raise as an issue the scope of the imum permitted rate by complying request for information only if that re- with any of the options set forth in quest was not approved by the Commis- § 76.922(b)(1) for which it qualifies or

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under an alternative rate agreement as § 76.935 Participation of interested provided in paragraph (g) of this sec- parties. tion. In order to regulate basic tier rates (9) In any rate proceeding before a or associated equipment costs, a fran- franchising authority in which a final chising authority must have proce- decision had not been issued as of June dural laws or regulations applicable to 5, 1995, a small system owned by a rate regulation proceedings that pro- small cable company may elect the vide a reasonable opportunity for con- form of rate regulation set forth in this sideration of the views of interested section to justify the rates that are the parties. Such rules must take into ac- subject of the proceeding, if the system count the 30, 120, or 180-day time peri- and affiliated company were a small ods that franchising authorities have system and small company respec- to review rates under § 76.933. tively as of the June 5, 1995 and as of the period during which the disputed § 76.936 Written decision. rates were in effect. However, the va- (a) A franchising authority must lidity of a final rate decision made by issue a written decision in a rate- a franchising authority before June 5, making proceeding whenever it dis- 1995 is not affected. approves an initial rate for the basic (10) In any proceeding before the service tier or associated equipment in Commission involving a cable program- whole or in part, disapproves a request ming services tier complaint in which for a rate increase in whole or in part, a final decision had not been issued as or approves a request for an increase in of June 5, 1995, a small system owned whole or in part over the objections of by a small cable company may elect interested parties. A franchising au- the form of rate regulation set forth in thority is not required to issue a writ- this section to justify rates charged ten decision that approves an unop- prior to the adoption of this rule and to posed existing or proposed rate for the establish new rates. For purposes of basic service tier or associated equip- this paragraph, a decision shall not be ment. deemed final until the operator has ex- (b) Public notice must be given of hausted or is time-barred from pur- any written decision required in para- suing any avenue of appeal, review, or graph (a) of this section, including re- reconsideration. leasing the text of any written decision (11) A system that is eligible to es- to the public. tablish its rates in accordance with the small system cost-of-service approach § 76.937 Burden of proof. shall remain eligible for so long as the (a) A cable operator has the burden of system serves no more than 15,000 sub- proving that its existing or proposed scribers. When a system that has estab- rates for basic service and associated lished rates in accordance with the equipment comply with 47 U.S.C. 543, small system cost-of-service approach and §§ 76.922 and 76.923. exceeds 15,000 subscribers, the system (b) For an existing or a proposed rate may maintain its then existing rates. for basic tier service or associated After exceeding the 15,000 subscriber equipment that is within the permitted limit, any further rate adjustments tier charge and actual cost of equip- shall not reflect increases in external ment as set forth in §§ 76.922 and 76.923, costs, inflation or channel additions the cable operator must submit the ap- until the system has re-established ini- propriate FCC form. tial permitted rates in accordance with (c) For an existing or a proposed rate some other method of rate regulation for basic tier service that exceeds the prescribed in this subpart. permitted tier charge as set forth in NOTE: For rules governing small cable op- §§ 76.922 and 76.923, the cable operator erators, see § 76.990 of this subpart. must submit a cost-of-service showing [60 FR 35865, July 12, 1995, as amended at 60 to justify the proposed rate. FR 52120, Oct. 5, 1995; 62 FR 53576, Oct. 15, (d) A franchising authority or the 1997; 64 FR 35950, July 2, 1999; 65 FR 53617, Commission may find a cable operator Sept. 5, 2000; 67 FR 13235, Mar. 21, 2002] that does not attempt to demonstrate

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the reasonableness of its rates in de- ders, and decisions. Any information fault and, using the best information submitted to a franchising authority or available, enter an order finding the the Commission in making a rate de- cable operator’s rates unreasonable and termination pursuant to an FCC Form mandating appropriate relief, as speci- 393 (and/or FCC Forms 1200/1205) filing fied in §§ 76.940, 76.941, and 76.942. or a cost-of-service showing is subject (e) A franchising authority or the to the provisions of § 1.17 of this chap- Commission may order a cable oper- ter. ator that has filed a facially incom- [68 FR 15098, Mar. 28, 2003] plete form to file supplemental infor- mation, and the franchising § 76.940 Prospective rate reduction. authority’s deadline to rule on the rea- sonableness of the proposed rates will A franchising authority may order a be tolled pending the receipt of such cable operator to implement a reduc- information. A franchising authority tion in basic service tier or associated may set reasonable deadlines for the equipment rates where necessary to filing of such information, and may bring rates into compliance with the find the cable operator in default and standards set forth in §§ 76.922 and mandate appropriate relief, pursuant 76.923 to paragraph (d) of this section, for the § 76.941 Rate prescription. cable operator’s failure to comply with the deadline or otherwise provide com- A franchising authority may pre- plete information in good faith. scribe a reasonable rate for the basic service tier or associated equipment [58 FR 29753, May 21, 1993, as amended at 59 after it determines that a proposed FR 17973, Apr. 15, 1994] rate is unreasonable.

§ 76.938 Proprietary information. § 76.942 Refunds. A franchising authority may require (a) A franchising authority (or the the production of proprietary informa- Commission, pursuant to § 76.945) may tion to make a rate determination in order a cable operator to refund to sub- those cases where cable operators have scribers that portion of previously paid submitted initial rates, or have pro- rates determined to be in excess of the posed rate increases, pursuant to an permitted tier charge or above the ac- FCC Form 393 (and/or FCC Forms 1200/ tual cost of equipment, unless the oper- 1205) filing or a cost-of-service showing. ator has submitted a cost-of-service The franchising authority shall state a showing which justifies the rate justification for each item of informa- charged as reasonable. An operator’s li- tion requested and, where related to an ability for refunds shall be based on the FCC Form 393 (and/or FCC Forms 1200/ difference between the old bundled 1205) filing, indicate the question or rates and the sum of the new section of the form to which the re- unbundled program service charge(s) quest specifically relates. Upon request and the new unbundled equipment to the franchising authority, the par- charge(s). Where an operator was ties to a rate proceeding shall have ac- charging separately for program serv- cess to such information, subject to the ices and equipment but the rates were franchising authority’s procedures gov- not in compliance with the Commis- erning non-disclosure by the parties. sion’s rules, the operator’s refund li- Public access to such proprietary infor- ability shall be based on the difference mation shall be governed by applicable between the sum of the old charges and state or local law. the sum of the new, unbundled program [59 FR 17973, Apr. 15, 1994] service and equipment charges. Before ordering a cable operator to refund pre- § 76.939 Truthful written statements viously paid rates to subscribers, a and responses to requests of fran- franchising authority (or the Commis- chising authority. sion) must give the operator notice and Cable operators shall comply with opportunity to comment. franchising authorities’ and the Com- (b) An operator’s liability for refunds mission’s requests for information, or- in limited to a one-year period, except

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that an operator that fails to comply chising authority must promptly re- with a valid rate order issued by a fran- turn the franchise fee overcharge ei- chising authority or the Commission ther in an immediate lump sum pay- shall be liable for refunds commencing ment, or the cable operator may deduct from the effective date of such order it from the cable system’s future fran- until such time as it complies with chise fee payments. The franchising au- such order. thority has the discretion to determine (c) The refund period shall run as fol- a reasonable repayment period, but in- lows: terest shall accrue on any outstanding (1) From the date the operator imple- portion of the franchise fee starting on ments a prospective rate reduction the date the operator has completed back in time to September 1, 1993, or implementation of the refund order. In one year, whichever is shorter. determining the amount of the refund, (2) From the date a franchising au- the franchise fee overcharge should be thority issues an accounting order pur- offset against franchise fees the oper- suant to § 76.933(c), to the date a pro- ator holds on behalf of the franchising spective rate reduction is issued, then authority for lump sum payment. The back in time from the date of the ac- interest rate on any refund owed to the counting order to the effective date of operator presumptively shall be 11.25%. the rules; however, the total refund pe- [58 FR 29753, May 21, 1993, as amended at 58 riod shall not exceed one year from the FR 46736, Sept. 2, 1993; 59 FR 17974, Apr. 15, date of the accounting order. 1994; 60 FR 52120, Oct. 5, 1995] (3) Refund liability shall be cal- culated on the reasonableness of the § 76.943 Fines. rates as determined by the rules in ef- (a) A franchising authority may im- fect during the period under review by pose fines or monetary forfeitures on a the franchising authority or the Com- cable operator that does not comply mission. with a rate decision or refund order di- (d) The cable operator, in its discre- rected specifically at the cable oper- tion, may implement a refund in the ator, provided the franchising author- following manner: ity has such power under state or local (1) By returning overcharges to those laws. subscribers who actually paid the over- (b) If a cable operator willfully fails charges, either through direct payment to comply with the terms of any fran- or as a specifically identified credit to chising authority’s order, decision, or those subscribers’ bills; or request for information, as required by (2) By means of a prospective per- § 76.939, the Commission may, in addi- centage reduction in the rates for the tion to other remedies, impose a for- basic service tier or associated equip- feiture pursuant to section 503(b) of the ment to cover the cumulative over- Communications Act of 1934, as amend- charge. This shall be reflected as a spe- ed, 47 U.S.C. 503(b). cifically identified, one-time credit on (c) A cable operator shall not be sub- prospective bills to the class of sub- ject to forfeiture because its rate for scribers that currently subscribe to the basic service or equipment is deter- cable system. mined to be unreasonable. (e) Refunds shall include interest [58 FR 29753, May 21, 1993, as amended at 59 computed at applicable rates published FR 17974, Apr. 15, 1994] by the Internal Revenue Service for tax refunds and additional tax payments. § 76.944 Commission review of fran- (f) Once an operator has implemented chising authority decisions on rates a rate refund to subscribers in accord- for the basic service tier and associ- ance with a refund order by the fran- ated equipment. chising authority (or the Commission, (a) The Commission shall be the sole pursuant to paragraph (a) of this sec- forum for appeals of decisions by fran- tion), the franchising authority must chising authorities on rates for the return to the cable operator an amount basic service tier or associated equip- equal to that portion of the franchise ment involving whether or not a fran- fee that was paid on the total amount chising authority has acted consist- of the refund to subscribers. The fran- ently with the Cable Act or §§ 76.922 and

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76.923. Appeals of ratemaking decisions Cable operators seeking to justify the by franchising authorities that do not reasonableness of existing or proposed depend upon determining whether a rates above the permitted tier rate franchising authority has acted con- must submit a cost-of-service showing sistently with the Cable Act or §§ 76.922 sufficient to support a finding that the and 76.923, may be heard in state or rates are reasonable. local courts. (c) Filings proposing annual adjust- (b) Any participant at the fran- ments or rates within the rates regula- chising authority level in a ratemaking tion standards in §§ 76.922 and 76.923, proceeding may file an appeal of the must be made 30 days prior to the pro- franchising authority’s decision with posed effective date and can become ef- the Commission within 30 days of re- fective on the proposed effective date lease of the text of the franchising unless the Commission issues an order authority’s decision as computed under deferring the effective date or denying § 1.4(b) of this chapter. Appeals shall be the rate proposal. Petitions opposing served on the franchising authority or such filings must be filed within 15 other authority that issued the rate de- days of public notice of the filing by cision. Where the state is the appro- the cable operator and be accompanied priate decisionmaking authority, the by a certificate that service was made state shall forward a copy of the appeal on the cable operator and the local to the appropriate local official(s). Op- franchising authority. The cable oper- positions may be filed within 15 days ator may file an opposition within five after the appeals is filed, and must be days of filing of the petition, certifying served on the party(ies) appealing the to service on both the petitioner and rate decision. Replies may be filed 7 the local franchising authority. days after the last day for oppositions (d) Filings proposing a rate not with- and shall be served on the parties to in the rate regulation standards of the proceeding. §§ 76.922 and 76.923, must be made 90 (c) An operator that uses the annual days before the requested effective rate adjustment method under Section date. Petitions opposing such filings 76.922(e) may include in its next true up must be filed within 30 days of public under Section 76.922(e)(3) any amounts notice of the filing, and be accom- to which the operator would have been panied by a certificate that service was entitled but for a franchising authority made on the cable operator and the decision that is not upheld on appeal. local franchising authority. The cable [58 FR 29753, May 21, 1993, as amended at 59 operator may file an opposition within FR 17974, Apr. 15, 1994; 60 FR 52121, Oct. 5, 10 days of the filing of the petition, and 1995] certifying that service was made on the petitioner and the local franchising au- § 76.945 Procedures for Commission thority. review of basic service rates. (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

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the range of possible additions, depend- sion may, in addition to other rem- ing on the particular location of the edies, impose a forfeiture pursuant to subscriber. Section 503(b) of the Communications [59 FR 17974, Apr. 15, 1994] Act of 1934, as amended, 47 U.S.C. 503(b). § 76.952 Information to be provided by (b) A cable operator shall not be sub- cable operator on monthly sub- ject to forfeiture because its rate for scriber bills. cable programming service or equip- All cable operators must provide the ment is determined to be unreasonable. following information to subscribers on monthly bills: § 76.970 Commercial leased access rates. (a) The name, mailing address and phone number of the franchising au- (a) Cable operators shall designate thority, unless the franchising author- channel capacity for commercial use ity in writing requests the cable oper- by persons unaffiliated with the oper- ator to omit such information. ator, and that seek to lease a program- (b) The FCC community unit identi- ming channel on a full-time basis, in fier for the cable system. accordance with the requirement of 47 U.S.C. 532. For purposes of 47 U.S.C. [58 FR 29753, May 21, 1993, as amended at 59 FR 17960, Apr. 15, 1994; 64 FR 35950, July 2, 532(b)(1)(A) and (B), only those chan- 1999] nels that must be carried pursuant to 47 U.S.C. 534 and 535 qualify as channels § 76.962 Implementation and certifi- that are required for use by Federal cation of compliance. law or regulation. For cable systems (a) Implementation. A cable operator with 100 or fewer channels, channels must implement remedial require- that cannot be used due to technical ments, including prospective rate re- and safety regulations of the Federal ductions and refunds, within 60 days Government (e.g., aeronautical chan- from the date the Commission releases nels) shall be excluded when calcu- an order mandating a remedy. lating the set-aside requirement. (b) Certification of compliance. A cable (b) In determining whether an entity operator must certify to the Commis- is an ‘‘affiliate’’ for purposes of com- sion its compliance with any Commis- mercial leased access, entities are af- sion order mandating remedial require- filiated if either entity has an attrib- ments. Such certification shall: utable interest in the other or if a (1) Be filed with the Commission third party has an attributable interest within 90 days from the date the Com- in both entities. mission releases an order mandating a (c) Attributable interest shall be de- remedy; fined by reference to the criteria set (2) Reference the applicable Commis- forth in Notes 1–5 to § 76.501 provided, sion order; however, that: (3) State that the cable operator has (1) The limited partner and LLC/LLP/ complied fully with all provisions of RLLP insulation provisions of Note 2(f) the Commission’s order; shall not apply; and; (4) Include a description of the pre- (2) The provisions of Note 2(a) regard- cise measures the cable operator has ing five (5) percent interests shall in- taken to implement the remedies or- clude all voting or nonvoting stock or dered by the Commission; and limited partnership equity interests of (5) Be signed by an authorized rep- five (5) percent or more. resentative of the cable operator. (d) The maximum commercial leased access rate that a cable operator may § 76.963 Forfeiture. charge for full-time channel placement (a) If any cable operator willfully on any tier is the average implicit fee fails to comply with the terms of any for full-time channel placement on Commission order, including an order that tier. mandating remedial requirements after (e) The average implicit fee identified a finding of unreasonable cable pro- in paragraph (d) of this section shall be gramming service or equipment rates, calculated by first calculating the or any Commission rule, the Commis- total amount the operator receives in

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subscriber revenue per month for the used in determining the highest im- programming on the tier on which the plicit fee shall reflect the prevailing channel will be placed, and then sub- company prices offered in the market- tracting the total amount it pays in place to third parties. If a prevailing programming costs per month for that company price does not exist, the li- tier (the ‘‘total implicit fee calcula- cense fee for that programming shall tion’’). Next, the total implicit fee is be priced at the programmer’s cost or divided by the number of channels on the fair market value, whichever is that tier (the ‘‘average implicit fee cal- lower. The highest implicit fee shall be culation’’). The result, the average im- based on contracts in effect in the pre- plicit fee, is the maximum rate per vious calendar year. The implicit fee month that the operator may charge for a contracted service may not in- the leased access programmer for a clude fees, stated or implied, for serv- full-time channel on that tier. The li- ices other than the provision of chan- cense fees for affiliated channels used nel capacity (e.g., billing and collec- in determining the average implicit fee tion, marketing, or studio services). shall reflect the prevailing company Any subscriber revenue received by a prices offered in the marketplace to cable operator for an a la carte leased third parties. If a prevailing company access service shall be passed through price does not exist, the license fee for to the leased access programmer. that programming shall be priced at (h)(1) Cable system operators shall the programmer’s cost or the fair mar- provide prospective leased access pro- ket value, whichever is lower. The av- grammers with the following informa- erage implicit fee shall be calculated tion within 30 calendar days of the date annually based on contracts in effect in on which a bona fide request for leased the previous calendar year. The im- access information is made, provided plicit fee for a contracted service may that the programmer has remitted any not include fees, stated or implied, for application fee that the cable system services other than the provision of operator requires up to a maximum of channel capacity (e.g., billing and col- $100 per system-specific bona fide re- lection, marketing, or studio services). quest: (f) The maximum commercial leased (i) How much of the operator’s leased access rate that a cable operator may access set-aside capacity is available; charge for full-time channel placement (ii) A complete schedule of the opera- as an a la carte service is the highest tor’s full-time leased access rates; implicit fee on an aggregate basis for full-time channel placement as an a la (iii) Rates associated with technical carte service. and studio costs; and (g) The highest implicit fee on an ag- (iv) If specifically requested, a sam- gregate basis for full-time channel ple leased access contract. placement as an a la carte service shall (2) Operators of systems subject to be calculated by first determining the small system relief shall provide the total amount received by the operator information required in paragraph in subscriber revenue per month for (h)(1) of this section within 45 calendar each non-leased access a la carte chan- days of a bona fide request from a pro- nel on its system (including affiliated a spective leased access programmer. For la carte channels) and deducting the these purposes, systems subject to total amount paid by the operator in small system relief are systems that ei- programming costs (including license ther: and copyright fees) per month for pro- (i) Qualify as small systems under gramming on such individual channels. § 76.901(c) and are owned by a small This calculation will result in implicit cable company as defined under fees determined on an aggregate basis, § 76.901(e); or and the highest of these implicit fees (ii) Have been granted special relief. shall be the maximum rate per month (3) Bona fide requests, as used in this that the operator may charge the section, are defined as requests from leased access programmer for place- potential leased access programmers ment as a full-time a la carte channel. that have provided the following infor- The license fees for affiliated channels mation:

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(i) The desired length of a contract access capacity to satisfy current term; leased access demand, cable operators (ii) The anticipated commencement shall be permitted to select from date for carriage; and among leased access programmers (iii) The nature of the programming, using objective, content-neutral cri- (4) All requests for leased access teria. must be made in writing and must (b) Cable operators may not apply specify the date on which the request programming production standards to was sent to the operator. leased access that are any higher than (5) Operators shall maintain, for those applied to public, educational Commission inspection, sufficient sup- and governmental access channels. porting documentation to justify the (c) Cable operators are required to scheduled rates, including supporting provide unaffiliated leased access users contracts, calculations of the implicit the minimal level of technical support fees, and justifications for all adjust- necessary for users to present their ments. material on the air, and may not un- (6) Cable system operators shall dis- reasonably refuse to cooperate with a close on their own websites, or through leased access user in order to prevent alternate means if they do not have that user from obtaining channel ca- their own websites, a contact name or pacity. Leased access users must reim- title, telephone number, and email ad- burse operators for the reasonable cost dress for the person responsible for re- of any technical support actually pro- sponding to requests for information vided by the operator that is beyond about leased access channels. that provided for non-leased access pro- (i) Cable operators are permitted to grammers on the system. A cable oper- negotiate rates below the maximum ator may charge leased access pro- rates permitted in paragraphs (c) grammers for the use of technical through (g) of this section. equipment that is provided at no [78 FR 20256, Apr. 4, 2013, as amended at 84 charge for public, educational and gov- FR 28768, June 20, 2019; 85 FR 51367, Aug. 20, ernmental access programming, pro- 2020] vided that the operator’s franchise agreement requires it to provide the § 76.971 Commercial leased access equipment and does not preclude such terms and conditions. use, and the equipment is not being (a)(1) Cable operators shall place used for any other non-leased access leased access programmers that re- programming. Cable operators that are quest access to a tier actually used by required to purchase technical equip- most subscribers on any tier that has a ment in order to accommodate a leased subscriber penetration of more than 50 access programmer shall have the op- percent, unless there are technical or tion of either requiring the leased ac- other compelling reasons for denying cess programmer to pay the full pur- access to such tiers. chase price of the equipment, or pur- (2) Cable operators shall be permitted chasing the equipment and leasing it to to make reasonable selections when the leased access programmer at a rea- placing leased access channels at spe- sonable rate. Leased access program- cific channel locations. The Commis- mers that are required to pay the full sion will evaluate disputes involving purchase price of additional equipment channel placement on a case-by-case shall have all rights of ownership asso- basis and will consider any evidence ciated with the equipment under appli- that an operator has acted unreason- cable state and local law. ably in this regard. (d) Cable operators may require rea- (3) On systems with available leased sonable security deposits or other as- access capacity sufficient to satisfy surances from users who are unable to current leased access demand, cable op- prepay in full for access to leased com- erators shall be required to accommo- mercial channels. Cable operators may date as expeditiously as possible all impose reasonable insurance require- leased access requests for programming ments on leased access programmers. that is not obscene or indecent. On sys- Cable operators shall bear the burden tems with insufficient available leased of proof in establishing reasonableness.

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(e) Cable operators may not set terms system is located to compel that such and conditions for commercial leased capacity be made available. access use based on content, except: (b)(1) Any person aggrieved by the (1) To the limited extent necessary to failure or refusal of a cable operator to establish a reasonable price for the make commercial channel capacity commercial use of designated channel available or to charge rates for such capacity by an unaffiliated person; or capacity in accordance with the provi- (2) To comply with 47 U.S.C. 532 (h), sions of Title VI of the Communica- (j) and § 76.701. tions Act, or our implementing regula- (f)(1) A cable operator shall provide tions, §§ 76.970 and 76.971, may file a pe- billing and collection services for com- tition for relief with the Commission. mercial leased access cable program- Persons alleging that a cable opera- mers, unless the operator demonstrates tor’s leased access rate is unreasonable the existence of third party billing and must receive a determination of the collection services which in terms of cable operator’s maximum permitted cost and accessibility, offer leased ac- rate from an independent accountant cess programmers an alternative sub- prior to filing a petition for relief with stantially equivalent to that offered to the Commission. comparable non-leased access program- (2) Parties to a dispute over leased mers. access rates shall have five business (2) If an operator can make the show- days to agree on a mutually acceptable ing required in paragraph (f)(1) of this accountant from the date on which the section, it must, to the extent tech- programmer provides the cable oper- nically feasible make available data ator with a written request for a re- necessary to enable a third party to view of its leased access rates. Parties bill and collect for the leased access that fail to agree on a mutually accept- user. (g) Cable operators shall not unrea- able accountant within five business sonably limit the length of leased ac- days of the programmer’s request for a cess contracts. The termination provi- review shall each be required to select sions of leased access contracts shall be an independent accountant on the commercially reasonable and may not sixth business day. The two account- allow operators to terminate leased ac- ants selected shall have five business cess contracts without a reasonable days to select a third independent ac- basis. countant to perform the review. Opera- (h) Cable operators may not prohibit tors of systems subject to small system the resale of leased access capacity to relief shall have 14 business days to se- persons unaffiliated with the operator, lect an independent accountant when but may provide in their leased access an agreement cannot be reached. For contracts that any sublessees will be these purposes, systems subject to subject to the non-price terms and con- small system relief are systems that ei- ditions that apply to the initial lessee, ther: and that, if the capacity is resold, the (i) Qualify as small systems under rate for the capacity shall be the max- § 76.901(c) and are owned by a small imum permissible rate. cable company as defined under § 76.901(e); or [58 FR 29753, May 21, 1993, as amended at 61 FR 16401, Apr. 15, 1996; 62 FR 11381, Mar. 12, (ii) Have been granted special relief. 1997; 84 FR 28769, June 20, 2019] (3) The final accountant’s report must be completed within 60 days of § 76.975 Commercial leased access dis- the date on which the final accountant pute resolution. is selected to perform the review. The (a) Any person aggrieved by the fail- final accountant’s report must, at a ure or refusal of a cable operator to minimum, state the maximum per- make commercial channel capacity mitted rate, and explain how it was de- available in accordance with the provi- termined without revealing proprietary sions of Title VI of the Communica- information. The report must be tions Act may bring an action in the signed, dated and certified by the ac- district court of the United States for countant. The report shall be filed in the Judicial district in which the cable the cable system’s local public file.

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(4) If the accountant’s report indi- responsible company official. If, after cates that the cable operator’s leased an answer is submitted, the staff finds access rate exceeds the maximum per- a prima facie violation of our rules, the mitted rate by more than a de minimis staff may require a respondent to amount, the cable operator shall be re- produce additional information, or quired to pay the full cost of the re- specify other procedures necessary for view. If the final accountant’s report resolution of the proceeding. Replies to does not indicate that the cable opera- answers must be filed within fifteen tor’s leased access rate exceeds the (15) days after submission of the an- maximum permitted rate by more than swer. a de minimis amount, each party shall (f) The Commission, after consider- be required to split the cost of the final ation of the pleadings, may grant the accountant’s review, and to pay its relief requested, in whole or in part, in- own expenses incurred in making the cluding, but not limited to ordering re- review. funds, injunctive measures, or forfeit- (5) Parties may use alternative dis- ures pursuant 47 U.S.C. 503, denying the pute resolution (ADR) processes to set- petition, or issuing a ruling on the pe- tle disputes that are not resolved by tition or dispute. the final accountant’s report. (g) To be afforded relief, the peti- (c) A petition must contain a concise tioner must show by clear and con- statement of the facts constituting a vincing evidence that the cable oper- violation of the statute or the Commis- ator has violated the Commission’s sion’s rules, the specific statute(s) or leased access provisions in 47 U.S.C. 532 rule(s) violated, and certify that the or §§ 76.970 and 76.971, or otherwise petition was served on the cable oper- acted unreasonably or in bad faith in ator. Where a petition is based on alle- failing or refusing to make capacity gations that a cable operator’s leased available or to charge lawful rates for access rates are unreasonable, the peti- such capacity to an unaffiliated leased tioner must attach a copy of the final access programmer. accountant’s report. In proceedings be- (h) During the pendency of a dispute, fore the Commission, there will be a re- a party seeking to lease channel capac- buttable presumption that the final ac- ity for commercial purposes, shall countant’s report is correct. comply with the rates, terms and con- (d) Where a petition is not based on ditions prescribed by the cable oper- allegations that a cable operator’s ator, subject to refund or other appro- leased access rates are unreasonable, priate remedy. the petition must be filed within 60 days of the alleged violation. Where a (i) Section 76.7 applies to petitions petition is based on allegations that for relief filed under this section, ex- the cable operator’s leased access rates cept as otherwise provided in this sec- are unreasonable, the petition must be tion. filed within 60 days of the final ac- [78 FR 20257, Apr. 4, 2013, as amended at 84 countant’s report, or within 60 days of FR 28769, June 20, 2019] the termination of ADR proceedings. Aggrieved parties must certify that § 76.977 Minority and educational pro- their petition was filed within 60 days gramming used in lieu of des- of the termination of ADR proceedings ignated commercial leased access in order to file a petition later than 60 capacity. days after completion of the final ac- (a) A cable operator required by this countant’s report. Cable operators may section to designate channel capacity rebut such certifications. for commercial use pursuant to 47 (e) The cable operator or other re- U.S.C. 532, may use any such channel spondent will have 30 days from service capacity for the provision of program- of the petition to file an answer. If a ming from a qualified minority pro- leased access rate is disputed, the an- gramming source or from any qualified swer must show that the rate charged educational programming sources, is not higher than the maximum per- whether or not such source is affiliated mitted rate for such leased access, and with cable operator. The channel ca- must be supported by the affidavit of a pacity used to provide programming

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from a qualified minority program- (b) The charge for customer changes ming source or from any qualified edu- in service tiers effected solely by coded cational programming source pursuant entry on a computer terminal or by to this section may not exceed 33 per- other similarly simple methods shall cent of the channel capacity designated be a nominal amount, not exceeding pursuant to 47 U.S.C. 532 and must be actual costs, as defined in paragraph located on a tier with more than 50 per- (c) of this section. cent subscriber penetration. (c) The charge for customers changes (b) For purposes of this section, a in service tiers or equipment that in- qualified minority programming source volve more than coded entry on a com- is a programming source that devotes puter or other similarly simple method substantially all of its programming to shall be based on actual cost. The ac- coverage of minority viewpoints, or to tual cost charge shall be either the programming directed at members of HSC, as defined in Section 76.923 of the minority groups, and which is over 50 rules, multiplied by the number of per- percent minority-owned. sons hours needed to implement the (c) For purposes of this section, a change, or the HSC multiplied by the qualified educational programming average number of persons hours in- source is a programming source that volved in implementing customer devotes substantially all of its pro- changes. gramming to educational or instruc- (d) A cable operator may establish a tional programming that promotes higher charge for changes effected sole- public understanding of mathematics, ly by coded entry on a computer ter- minal or by other similarly simple the sciences, the humanities, or the methods, subject to approval by the arts and has a documented annual ex- franchising authority, for a subscriber penditure on programming exceeding changing service tiers more than two $15 million. The annual expenditure on times in a twelve month period, except programming means all annual costs for such changes ordered in response to incurred by the programming source to a change in price or channel line-up. produce or acquire programs which are (e) Downgrade charges that are the scheduled to be televised, and specifi- same as, or lower than, upgrade cally excludes marketing, promotion, charges are evidence of the reasonable- satellite transmission and operational ness of such downgrade charges. costs, and general administrative (f) For 30 days after notice of costs. retiering or rate increases, a customer (d) For purposes of paragraphs (b) may obtain changes in service tiers at and (c) of this section, substantially all no additional charge. means that 90% or more of the pro- gramming offered must be devoted to NOTE 1 TO § 76.980: Cable operators must minority or educational purposes, as also notify subscribers of potential charges defined in paragraphs (b) and (c) of this for customer service changes, as provided in § 76.1604. section, respectively. (e) For purposes of paragraph (b) of [58 FR 29753, May 21, 1993, as amended at 65 this section, ‘‘minority’’ is defined as FR 53617, Sept. 5, 2000] in 47 U.S.C. 309(i)(3)(c)(ii) to include § 76.981 Negative option billing. Blacks, Hispanics, American Indians, Alaska Natives, Asians and Pacific Is- (a) A cable operator shall not charge landers. a subscriber for any service or equip- ment that the subscriber has not af- [58 FR 29753, May 21, 1993, as amended at 62 firmatively requested by name. A sub- FR 11382, Mar. 12, 1997] scriber’s failure to refuse a cable opera- tor’s proposal to provide such service § 76.980 Charges for customer changes. or equipment is not an affirmative re- (a) This section shall govern charges quest for service or equipment. A sub- for any changes in service tiers or scriber’s affirmative request for service equipment provided to the subscriber or equipment may be made orally or in that are initiated at the request of a writing. subscriber after initial service installa- (b) The requirements of paragraph (a) tion. of this section shall not preclude the

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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 changes do not constitute a funda- § 76.984 Geographically uniform rate mental change in the nature of an ex- structure. isting service or tier of service and are otherwise consistent with applicable (a) The rates charged by cable opera- regulations. tors for basic service, cable program- (c) State and local governments may ming service, and associated equip- not enforce state and local consumer ment and installation shall be provided protection laws that conflict with or pursuant to a rate structure that is undermine paragraph (a) or (b) of this uniform throughout each franchise section or any other sections of this area in which cable service is provided. Subpart that were established pursuant (b) This section does not prohibit the to Section 3 of the 1992 Cable Act, 47 establishment by cable operators of U.S.C. 543. reasonable categories of service and customers with separate rates and [59 FR 62625, Dec. 6, 1994] terms and conditions of service, within § 76.982 Continuation of rate agree- a franchise area. ments. (c) This section does not apply to: During the term of an agreement exe- (1) A cable operator with respect to cuted before July 1, 1990, by a fran- the provision of cable service over its chising authority and a cable operator cable system in any geographic area in providing for the regulation of basic which the video programming services cable service rates, where there was offered by the operator in that area are not effective competition under Com- subject to effective competition, or mission rules in effect on that date, the (2) Any video programming offered on franchising authority may regulate a per channel or per program basis. basic cable rates without following sec- (3) Bulk discounts to multiple dwell- tion 623 of the 1992 Cable Act or §§ 76.910 ing units shall not be subject to this through 76.942. A franchising authority section, except that a cable operator of regulating basic cable rates pursuant a cable system that is not subject to ef- to such a rate agreement is not re- fective competition may not charge quired to file for certification during predatory prices to a multiple dwelling the remaining term of the agreement unit. Upon a prima facie showing by a but shall notify the Commission of its complainant that there are reasonable intent to continue regulating basic grounds to believe that the discounted cable rates. price is predatory, the cable system § 76.983 Discrimination. shall have the burden of showing that its discounted price is not predatory. (a) No Federal agency, state, or local franchising authority may prohibit a NOTE 1 TO PARAGRAPH (c)(3): Discovery pro- cable operator from offering reasonable cedures for predatory pricing complaints. discounts to senior citizens or to eco- Requests for discovery will be addressed pur- nomically disadvantaged groups. suant to the procedures specified in § 76.7(f). (1) Such discounts must be offered NOTE 2 TO PARAGRAPH (c)(3): Confidential equally to all subscribers in the fran- information. Parties submitting material be- chise area who qualify as members of lieved to be exempt from disclosure pursuant to the Freedom of Information Act (FOIA), 5 these categories, or any reasonable U.S.C. 552(b), and the Commission’s rules, subcategory thereof.

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§ 0.457 of this chapter, should follow the pro- the total subscriber base of itself and cedures in § 0.459 of this chapter and § 76.9. each affiliate, and the aggregate gross [59 FR 17975, Apr. 15, 1994, as amended at 61 revenues of its cable and non-cable af- FR 18979, Apr. 30, 1996; 64 FR 35951, July 2, filiates. Within 90 days of receiving the 1999] original certification, the local fran- chising authority shall determine § 76.985 Subscriber bill itemization. whether the operator qualifies for de- (a) Cable operators may identify as a regulation and shall notify the oper- separate line item of each regular sub- ator in writing of its decision, although scriber bill the following: this 90-day period shall be tolled for so (1) The amount of the total bill as- long as it takes the operator to respond sessed as a franchise fee and the iden- to a proper request for information by tity of the franchising authority to the local franchising authority. An op- which the fee is paid. erator may appeal to the Commission a (2) The amount of the total bill as- local franchise authority’s information sessed to satisfy any requirements im- request if the operator seeks to chal- posed on the cable operator by the lenge the information request as un- franchise agreement to support public, duly or unreasonably burdensome. If educational, or governmental channels the local franchising authority finds or the use of such channels. that the operator does not qualify for (3) The amount of any other fee, tax, deregulation, its notice shall state the assessment, or charge of any kind im- grounds for that decision. The operator posed by any governmental authority may appeal the local franchising on the transaction between the oper- authority’s decision to the Commission ator and the subscriber. In order for a within 30 days. governmental fee or assessment to be (2) Once the operator has certified its separately identified under this sec- eligibility for deregulation on the basic tion, it must be directly imposed by a service tier, the local franchising au- governmental body on a transaction thority shall not prohibit the operator between a subscriber and an operator. from taking a rate increase and shall (b) The charge identified on the sub- not order the operator to make any re- scriber bill as the total charge for cable funds unless and until the local fran- service should include all fees and chising authority has rejected the cer- costs itemized pursuant to this section. tification in a final order that is no (c) Local franchising authorities may longer subject to appeal or that the adopt regulations consistent with this Commission has affirmed. The operator section. shall be liable for refunds for revenues [58 FR 29753, May 21, 1993, as amended at 76 gained (beyond revenues that could be FR 55818, Sept. 9, 2011; 83 FR 60776, Nov. 27, gained under regulation) as a result of 2018] any rate increase taken during the pe- riod in which it claimed to be deregu- § 76.990 Small cable operators. lated, plus interest, in the event the (a) Effective February 8, 1996, a small operator is later found not to be de- cable operator is exempt from rate reg- regulated. The one-year limitation on ulation on its cable programming serv- refund liability will not be applicable ices tier, or on its basic service tier if during that period to ensure that the that tier was the only service tier sub- filing of an invalid small operator cer- ject to rate regulation as of December tification does not reduce any refund 31, 1994, in any franchise area in which liability that the operator would other- that operator services 50,000 or fewer wise incur. subscribers. (3) Within 30 days of being served (b) Procedures. (1) A small cable oper- with a local franchising authority’s no- ator, may certify in writing to its fran- tice that the local franchising author- chise authority at any time that it ity intends to file a cable programming meets all criteria necessary to qualify services tier rate complaint, an oper- as a small operator. Upon request of ator may certify to the local fran- the local franchising authority, the op- chising authority that it meets the cri- erator shall identify in writing all of teria for qualification as a small cable its affiliates that provide cable service, operator. This certification shall be

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filed in accordance with the cable pro- (c) Buying groups. The term ‘‘buying gramming services rate complaint pro- group’’ or ‘‘agent,’’ for purposes of the cedure set forth in § 76.1402. Absent a definition of a multichannel video pro- cable programming services rate com- gramming distributor set forth in para- plaint, the operator may request a dec- graph (e) of this section, means an en- laration of CPST rate deregulation tity representing the interests of more from the Commission pursuant to § 76.7. than one entity distributing multi- (c) Transition from small cable operator channel video programming that: status. If a small cable operator subse- (1) Agrees to be financially liable for quently becomes ineligible for small any fees due pursuant to a satellite operator status, the operator will be- cable programming, satellite broadcast come subject to regulation but may programming, or terrestrial cable pro- maintain the rates it charged prior to gramming contract which it signs as a losing small cable operator status if contracting party as a representative such rates (with an allowance for of its members or whose members, as minor variations) were in effect for the contracting parties, agree to joint and three months preceding the loss of several liability; and small cable operator status. Subse- (2) Agrees to uniform billing and quent rate increases following the loss standardized contract provisions for in- of small cable operator status will be dividual members; and subject to generally applicable regula- (3) Agrees either collectively or indi- tions governing rate increases. vidually on reasonable technical qual- ity standards for the individual mem- NOTE TO § 76.990: For rules governing small bers of the group. cable systems and small cable companies, (d) Competing distributors. The term see § 76.934. ‘‘competing,’’ as used with respect to [64 FR 35951, July 2, 1999] competing multichannel video pro- gramming distributors, means distribu- Subpart O—Competitive Access tors whose actual or proposed service to Cable Programming areas overlap. (e) Multichannel video programming § 76.1000 Definitions. distributor. The term ‘‘multichannel As used in this subpart: video programming distributor’’ means (a) Area served by cable system. The an entity engaged in the business of term ‘‘area served’’ by a cable system making available for purchase, by sub- means an area actually passed by a scribers or customers, multiple chan- cable system and which can be con- nels of video programming. Such enti- nected for a standard connection fee. ties include, but are not limited to, a (b) Cognizable interests. In applying cable operator, a BRS/EBS provider, a the provisions of this subpart, owner- direct broadcast satellite service, a tel- ship and other interests in cable opera- evision receive-only satellite program tors, satellite cable programming ven- distributor, and a satellite master an- dors, satellite tenna television system operator, as vendors, or terrestrial cable program- well as buying groups or agents of all ming vendors will be attributed to such entities. their holders and may subject the in- NOTE TO PARAGRAPH (e): A video program- terest holders to the rules of this sub- ming provider that provides more than one part. Cognizable and attributable inter- channel of video programming on an open ests shall be defined by reference to the video system is a multichannel video pro- criteria set forth in Notes 1 through 5 gramming distributor for purposes of this to § 76.501 provided, however, that: subpart O and Section 76.1507. (1) The limited partner and LLC/LLP/ (f) Satellite broadcast programming. RLLP insulation provisions of Note 2(f) The term ‘‘satellite broadcast program- shall not apply; and ming’’ means broadcast video program- (2) The provisions of Note 2(a) regard- ming when such programming is re- ing five (5) percent interests shall in- transmitted by satellite and the entity clude all voting or nonvoting stock or retransmitting such programming is limited partnership equity interests of not the broadcaster or an entity per- five (5) percent or more. forming such retransmission on behalf

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of and with the specific consent of the the same distribution technology as broadcaster. the ‘‘competing’’ distributor with (g) Satellite broadcast programming whom the complainant seeks to com- vendor. The term ‘‘satellite broadcast pare itself. programming vendor’’ means a fixed (k) Subdistribution agreement. The service satellite carrier that provides term ‘‘subdistribution agreement’’ service pursuant to section 119 of title means an arrangement by which a 17, United States Code, with respect to local cable operator is given the right satellite broadcast programming. by a satellite cable programming ven- (h) Satellite cable programming. The dor or satellite broadcast programming term ‘‘satellite cable programming’’ vendor to distribute the vendor’s pro- means video programming which is gramming to competing multichannel transmitted via satellite and which is video programming distributors. primarily intended for direct receipt by (l) Terrestrial cable programming. The cable operators for their retrans- term ‘‘terrestrial cable programming’’ mission to cable subscribers, except means video programming which is that such term does not include sat- transmitted terrestrially or by any ellite broadcast programming. means other than satellite and which is NOTE TO PARAGRAPH (h): Satellite program- primarily intended for direct receipt by ming which is primarily intended for the di- cable operators for their retrans- rect receipt by open video system operators mission to cable subscribers, except for their retransmission to open video sys- tem subscribers shall be included within the that such term does not include sat- definition of satellite cable programming. ellite broadcast programming or sat- ellite cable programming. (i) Satellite cable programming vendor. (m) Terrestrial cable programming ven- The term ‘‘satellite cable programming dor. The term ‘‘terrestrial cable pro- vendor’’ means a person engaged in the gramming vendor’’ means a person en- production, creation, or wholesale dis- gaged in the production, creation, or tribution for sale of satellite cable pro- wholesale distribution for sale of ter- gramming, but does not include a sat- restrial cable programming, but does ellite broadcast programming vendor. not include a satellite broadcast pro- (j) Similarly situated. The term ‘‘simi- gramming vendor or a satellite cable larly situated’’ means, for the purposes programming vendor. of evaluating alternative programming contracts offered by a defendant pro- [58 FR 27670, May 11, 1993, as amended at 61 gramming vendor or by a terrestrial FR 28708, June 5, 1996; 64 FR 67197, Dec. 1, cable programming vendor alleged to 1999; 69 FR 72046, Dec. 10, 2004; 75 FR 9723, have engaged in conduct described in Mar. 3, 2010] § 76.1001(b)(1)(ii), that an alternative § 76.1001 Unfair practices generally. multichannel video programming dis- tributor has been identified by the de- (a) Unfair practices generally. No cable fendant as being more properly com- operator, satellite cable programming pared to the complainant in order to vendor in which a cable operator has determine whether a violation of an attributable interest, or satellite § 76.1001(a) or § 76.1002(b) has occurred. broadcast programming vendor shall The analysis of whether an alternative engage in unfair methods of competi- multichannel video programming dis- tion or unfair or deceptive acts or prac- tributor is properly comparable to the tices, the purpose or effect of which is complainant includes consideration of, to hinder significantly or prevent any but is not limited to, such factors as multichannel video programming dis- whether the alternative multichannel tributor from providing satellite cable video programming distributor oper- programming or satellite broadcast ates within a geographic region proxi- programming to subscribers or con- mate to the complainant, has roughly sumers. the same number of subscribers as the (b) Unfair practices involving terrestrial complainant, and purchases a similar cable programming and terrestrial cable service as the complainant. Such alter- programming vendors. (1) The phrase native multichannel video program- ‘‘unfair methods of competition or un- ming distributor, however, must use fair or deceptive acts or practices’’ as

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used in paragraph (a) of this section in- tion may commence an adjudicatory cludes, but is not limited to, the fol- proceeding at the Commission to ob- lowing: tain enforcement of the rules through (i) Any effort or action by a cable op- the filing of a complaint. The com- erator that has an attributable interest plaint shall be filed and responded to in in a terrestrial cable programming accordance with the procedures speci- vendor to unduly or improperly influ- fied in § 76.7, as modified by § 76.1003, ence the decision of such vendor to sell, with the following additions or or unduly or improperly influence such changes: vendor’s prices, terms, and conditions (i) The defendant shall answer the for the sale of, terrestrial cable pro- complaint within forty-five (45) days of gramming to any unaffiliated multi- service of the complaint, unless other- channel video programming dis- wise directed by the Commission. tributor. (ii) The complainant shall have the (ii) Discrimination in the prices, burden of proof that the defendant’s al- terms, or conditions of sale or delivery leged conduct described in paragraph of terrestrial cable programming (b)(1) of this section has the purpose or among or between competing cable sys- effect of hindering significantly or pre- tems, competing cable operators, or venting the complainant from pro- any competing multichannel video pro- viding satellite cable programming or gramming distributors, or their agents satellite broadcast programming to or buying groups, by a terrestrial cable subscribers or consumers. An answer to programming vendor that is wholly such a complaint shall set forth the de- owned by, controlled by, or under com- fendant’s reasons to support a finding mon control with a cable operator or that the complainant has not carried cable operators, satellite cable pro- this burden. gramming vendor or vendors in which a (iii) A complainant alleging that a cable operator has an attributable in- terrestrial cable programming vendor terest, or satellite broadcast program- has engaged in conduct described in ming vendor or vendors; except that paragraph (b)(1)(ii) of this section shall the phrase does not include the prac- have the burden of proof that the ter- tices set forth in § 76.1002(b)(1) through restrial cable programming vendor is (3). The cable operator or cable opera- wholly owned by, controlled by, or tors, satellite cable programming ven- under common control with a cable op- dor or vendors in which a cable oper- erator or cable operators, satellite ator has an attributable interest, or cable programming vendor or vendors satellite broadcast programming ven- in which a cable operator has an attrib- dor or vendors that wholly own or con- utable interest, or satellite broadcast trol, or are under common control programming vendor or vendors. An with, such terrestrial cable program- answer to such a complaint shall set ming vendor shall be deemed respon- forth the defendant’s reasons to sup- sible for such discrimination and any port a finding that the complainant complaint based on such discrimina- has not carried this burden. tion shall be filed against such cable operator, satellite cable programming [75 FR 9723, Mar. 3, 2010] vendor, or satellite broadcast program- ming vendor. § 76.1002 Specific unfair practices pro- (iii) Exclusive contracts, or any prac- hibited. tice, activity, or arrangement tanta- (a) Undue or improper influence. No mount to an exclusive contract, for cable operator that has an attributable terrestrial cable programming between interest in a satellite cable program- a cable operator and a terrestrial cable ming vendor or in a satellite broadcast programming vendor in which a cable programming vendor shall unduly or operator has an attributable interest. improperly influence the decision of (2) Any multichannel video program- such vendor to sell, or unduly or im- ming distributor aggrieved by conduct properly influence such vendor’s prices, described in paragraph (b)(1) of this terms and conditions for the sale of, section that it believes constitutes a satellite cable programming or sat- violation of paragraph (a) of this sec- ellite broadcast programming to any

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unaffiliated multichannel video pro- delivery, or transmission of satellite gramming distributor. cable programming, satellite broadcast (b) Discrimination in prices, terms or programming, or terrestrial cable pro- conditions. No satellite cable program- gramming; ming vendor in which a cable operator has an attributable interest, or sat- NOTE: Vendors may base price differen- tials, in whole or in part, on differences in ellite broadcast programming vendor, the cost of delivering a programming service shall discriminate in the prices, terms, to particular distributors, such as differences and conditions of sale or delivery of in costs, or additional costs, incurred for ad- satellite cable programming or sat- vertising expenses, copyright fees, customer ellite broadcast programming among service, and signal security. Vendors may or between competing cable systems, base price differentials on cost differences competing cable operators, or any com- that occur within a given technology as well peting multichannel video program- as between technologies. A price differential ming distributors. Nothing in this sub- for a program service may not be based on a distributor’s retail costs in delivering serv- section, however, shall preclude: ice to subscribers unless the program vendor (1) The imposition of reasonable re- can demonstrate that subscribers do not or quirements for creditworthiness, offer- will not benefit from the distributor’s cost ing of service, and financial stability savings that result from a lower program- and standards regarding character and ming price. technical quality; (3) The establishment of different NOTE 1: Vendors are permitted to create a prices, terms, and conditions which distinct class or classes of service in pricing take into account economies of scale, based on credit considerations or financial cost savings, or other direct and legiti- stability, although any such distinctions mate economic benefits reasonably at- must be applied for reasons for other than a multichannel video programming distribu- tributable to the number of subscribers tor’s technology. Vendors are not permitted served by the distributor; or to manifest factors such as creditworthiness NOTE: Vendors may use volume-related jus- or financial stability in price differentials if tifications to establish price differentials to such factors are already taken into account the extent that such justifications are made through different terms or conditions such available to similarly situated distributors as special credit requirements or payment on a technology-neutral basis. When relying guarantees. upon standardized volume-related factors NOTE 2: Vendors may establish price dif- that are made available to all multichannel ferentials based on factors related to offering video programming distributors using all of service, or difference related to the actual technologies, the vendor may be required to service exchanged between the vendor and the distributor, as manifested in standardly demonstrate that such volume discounts are applied contract terms based on a distribu- reasonably related to direct and legitimate tor’s particular characteristics or willing- economic benefits reasonably attributable to ness to provide secondary services that are the number of subscribers served by the dis- reflected as a discount or surcharge in the tributor if questions arise about the applica- programming service’s price. Such factors tion of that discount. In such demonstra- include, but are not limited to, penetration tions, vendors will not be required to provide of programming to subscribers or to par- a strict cost justification for the structure of ticular systems; retail price of programming such standard volume-related factors, but to the consumer for pay services; amount may also identify non-cost economic benefits and type of promotional or advertising serv- related to increased viewership. ices by a distributor; a distributor’s purchase (4) Entering into exclusive contracts of programming in a package or a la carte; channel position; importance of location for in areas that are permitted under para- non-volume reasons; prepayment discounts; graphs (c)(2) and (c)(4) of this section. contract duration; date of purchase, espe- (c) Exclusive contracts and practices— cially purchase of service at launch; meeting (1) Unserved areas. No cable operator competition at the distributor level; and shall engage in any practice or activity other legitimate factors as standardly ap- or enter into any understanding or ar- plied in a technology neutral fashion. rangement, including exclusive con- (2) The establishment of different tracts, with a satellite cable program- prices, terms, and conditions to take ming vendor or satellite broadcast pro- into account actual and reasonable dif- gramming vendor for satellite cable ferences in the cost of creation, sale, programming or satellite broadcast

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programming that prevents a multi- satellite cable programming vendor or channel video programming distributor satellite broadcast programming ven- from obtaining such programming from dor. any satellite cable programming ven- (4) Public interest determination. In de- dor in which a cable operator has an termining whether an exclusive con- attributable interest, or any satellite tract is in the public interest for pur- broadcast programming vendor in poses of paragraph (c)(5) of this section, which a cable operator has an attrib- the Commission will consider each of utable interest for distribution to per- the following factors with respect to sons in areas not served by a cable op- the effect of such contract on the dis- erator as of October 5, 1992. tribution of video programming in (2) [Reserved] areas that are served by a cable oper- (3) Specific arrangements: Subdistribu- ator: tion agreements—(i) Unserved areas. No (i) The effect of such exclusive con- cable operator shall enter into any sub- tract on the development of competi- distribution agreement or arrangement tion in local and national multichannel for satellite cable programming or sat- video programming distribution mar- ellite broadcast programming with a kets; satellite cable programming vendor in (ii) The effect of such exclusive con- which a cable operator has an attrib- tract on competition from multi- utable interest or a satellite broadcast channel video programming distribu- programming vendor in which a cable tion technologies other than cable; operator has an attributable interest (iii) The effect of such exclusive con- for distribution to persons in areas not tract on the attraction of capital in- served by a cable operator as of Octo- vestment in the production and dis- ber 5, 1992 unless such agreement or ar- tribution of new satellite cable pro- rangement complies with the limita- gramming; tions set forth in paragraph (c)(3)(ii) of (iv) The effect of such exclusive con- this section. tract on diversity of programming in (ii) Limitations on subdistribution the multichannel video programming agreements in unserved areas. No cable distribution market; and operator engaged in subdistribution of (v) The duration of the exclusive con- satellite cable programming or sat- tract. ellite broadcast programming may re- (5) Commission approval required. Any quire a competing multichannel video cable operator, satellite cable program- programming distributor to ming vendor in which a cable operator (A) Purchase additional or unrelated has an attributable interest, or sat- programming as a condition of such ellite broadcast programming vendor subdistribution; or in which a cable operator has an attrib- (B) Provide access to private prop- utable interest must submit a ‘‘Peti- erty in exchange for access to program- tion for Exclusivity’’ to the Commis- ming. In addition, a subdistributor sion and receive approval from the may not charge a competing multi- Commission to preclude the filing of channel video programming distributor complaints alleging that an exclusive more for said programming than the contract with respect to areas served satellite cable programming vendor or by a cable operator violates section satellite broadcast programming ven- 628(c)(2)(B) of the Communications Act dor itself would be permitted to charge. of 1934, as amended, and paragraph (b) Any cable operator acting as a subdis- of this section. tributor of satellite cable programming (i) The petition for exclusivity shall or satellite broadcast programming contain those portions of the contract must respond to a request for access to relevant to exclusivity, including: such programming by a competing (A) A description of the programming multichannel video programming dis- service; tributor within fifteen (15) days of the (B) The extent and duration of exclu- request. If the request is denied, the sivity proposed; and competing multichannel video pro- (C) Any other terms or provisions di- gramming distributor must be per- rectly related to exclusivity or to any mitted to negotiate directly with the of the criteria set forth in paragraph

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(c)(4) of this section. The petition for (2) Limitation on renewals. A contract exclusivity shall also include a state- that was entered into on or before June ment setting forth the petitioner’s rea- 1, 1990, but that was renewed or ex- sons to support a finding that the con- tended after October 5, 1992, shall not tract is in the public interest, address- be exempt under paragraph (e)(1) of ing each of the five factors set forth in this section. paragraph (c)(4) of this section. (f) Application to existing contracts. All (ii) Any competing multichannel contracts, except those specified in video programming distributor affected paragraph (e) of this section, related to by the proposed exclusivity may file an the provision of satellite cable pro- opposition to the petition for exclu- gramming or satellite broadcast pro- sivity within thirty (30) days of the gramming to any multichannel video date on which the petition is placed on programming distributor must be public notice, setting forth its reasons brought into compliance with the re- to support a finding that the contract quirements specified in this subpart no is not in the public interest under the later than November 15, 1993. criteria set forth in paragraph (c)(4) of [58 FR 27671, May 11, 1993, as amended at 59 this section. Any such formal opposi- FR 66259, Dec. 23, 1994; 67 FR 42951, July 30, tion must be served on petitioner on 2002; 72 FR 56661, Oct. 4, 2007; 75 FR 9724, Mar. the same day on which it is filed with 3, 2010; 77 FR 66048, Oct. 31, 2012] the Commission. § 76.1003 Program access proceedings. (iii) The petitioner may file a re- sponse within ten (10) days of receipt of (a) Complaints. Any multichannel any formal opposition. The Commis- video programming distributor ag- sion will then approve or deny the peti- grieved by conduct that it believes con- tion for exclusivity. stitute a violation of the regulations set forth in this subpart may com- (d) Limitations—(1) Geographic limita- mence an adjudicatory proceeding at tions. Nothing in this section shall re- the Commission to obtain enforcement quire any person who is engaged in the of the rules through the filing of a national or regional distribution of complaint. The complaint shall be filed video programming to make such pro- and responded to in accordance with gramming available in any geographic the procedures specified in § 76.7 of this area beyond which such programming part with the following additions or has been authorized or licensed for dis- changes: tribution. (b) Prefiling notice required. Any ag- (2) Applicability to satellite retrans- grieved multichannel video program- missions. Nothing in this section shall ming distributor intending to file a apply: complaint under this section must first (i) To the signal of any broadcast af- notify the potential defendant cable filiate of a national television network operator, and/or the potential defend- or other television signal that is re- ant satellite cable programming ven- transmitted by satellite but that is not dor or satellite broadcast programming satellite broadcast programming; or vendor, that it intends to file a com- (ii) To any internal satellite commu- plaint with the Commission based on nication of any broadcast network or actions alleged to violate one or more cable network that is not satellite of the provisions contained in § 76.1001 broadcast programming. or § 76.1002 of this part. The notice must (e) Exemptions for prior contracts—(1) be sufficiently detailed so that its re- In general. Nothing in this section shall cipient(s) can determine the specific affect any contract that grants exclu- nature of the potential complaint. The sive distribution rights to any person potential complainant must allow a with respect to satellite cable pro- minimum of ten (10) days for the poten- gramming and that was entered into or tial defendant(s) to respond before fil- before June 1, 1990, except that the pro- ing a complaint with the Commission. visions of paragraph (c)(1) of this sec- (c) Contents of complaint. In addition tion shall apply for distribution to per- to the requirements of § 76.7 of this sons in areas not served by a cable op- part, a program access complaint shall erator. contain:

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(1) The type of multichannel video programming and has been refused or programming distributor that de- unanswered; scribes complainant, the address and (7) In complaints alleging a violation telephone number of the complainant, of § 76.1001 of this part, evidence dem- whether the defendant is a cable oper- onstrating that the behavior com- ator, satellite broadcast programming plained of has harmed complainant. vendor or satellite cable programming (8) The complaint must be accom- vendor (describing each defendant), and panied by appropriate evidence dem- the address and telephone number of onstrating that the required notifica- each defendant; tion pursuant to paragraph (a) of this (2) Evidence that supports complain- section has been made. ant’s belief that the defendant, where (d) Damages requests. (1) In a case necessary, meets the attribution stand- where recovery of damages is sought, ards for application of the program ac- the complaint shall contain a clear and cess requirements; unequivocal request for damages and (3) Evidence that the complainant appropriate allegations in support of competes with the defendant cable op- such claim in accordance with the re- erator, or with a multichannel video quirements of paragraph (d)(3) of this programming distributor that is a cus- section. tomer of the defendant satellite cable (2) Damages will not be awarded upon programming or satellite broadcast a complaint unless specifically re- programming vendor or a terrestrial quested. Damages may be awarded if cable programming vendor alleged to the complaint complies fully with the have engaged in conduct described in requirement of paragraph (d)(3) of this § 76.1001(b)(1); section where the defendant knew, or (4) In complaints alleging discrimina- should have known that it was engag- tion, documentary evidence such as a ing in conduct violative of section 628. rate card or a programming contract (3) In all cases in which recovery of that demonstrates a differential in damages is sought, the complainant price, terms or conditions between shall include within, or as an attach- complainant and a competing multi- ment to, the complaint, either: channel video programming distributor (i) A computation of each and every or, if no programming contract or rate category of damages for which recov- card is submitted with the complaint, ery is sought, along with an identifica- an affidavit signed by an officer of tion of all relevant documents and ma- complainant alleging that a differen- terials or such other evidence to be tial in price, terms or conditions exits, used by the complainant to determine a description of the nature and extent the amount of such damages; or (if known or reasonably estimated by (ii) An explanation of: the complainant) of the differential, (A) The information not in the pos- together with a statement that defend- session of the complaining party that ant refused to provide any further spe- is necessary to develop a detailed com- cific comparative information; putation of damages; (5) If a programming contract or a (B) The reason such information is rate card is submitted with the com- unavailable to the complaining party; plaint in support of the alleged viola- (C) The factual basis the complainant tion, specific references to the relevant has for believing that such evidence of provisions therein; damages exists; and (6) In complaints alleging exclusivity (D) A detailed outline of the method- violations: ology that would be used to create a (i) The identity of both the pro- computation of damages when such grammer and cable operator who are evidence is available. parties to the alleged prohibited agree- (e) Answer. (1) Except as otherwise ment, provided or directed by the Commis- (ii) Evidence that complainant can or sion, any cable operator, satellite cable does serve the area specified in the programming vendor or satellite broad- complaint, and cast programming vendor upon which a (iii) Evidence that the complainant program access complaint is served has requested to purchase the relevant under this section shall answer within

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twenty (20) days of service of the com- set forth the reasons supporting this plaint, provided that the answer shall conclusion, and the defendant may sub- be filed within forty-five (45) days of mit an alternative contract for com- service of the complaint if the com- parison with a similarly situated mul- plaint alleges a violation of section tichannel video programming dis- 628(b) of the Communications Act of tributor that uses the same distribu- 1934, as amended, or § 76.1001(a). To the tion technology as the competitor se- extent that a cable operator, satellite lected for comparison by the complain- cable programming vendor or satellite ant. The answer shall state the defend- broadcast programming vendor ex- ant’s reasons for any differential be- pressly references and relies upon a tween the prices, terms and conditions document or documents in asserting a between the complainant and such defense or responding to a material al- similarly situated distributor, and legation, such document or documents shall specify the particular justifica- shall be included as part of the answer. tions in § 76.1002(b) of this part relied (2) An answer to an exclusivity com- upon in support of the differential. The plaint shall provide the defendant’s defendant shall also provide with its reasons for refusing to sell the subject answer written documentary evidence programming to the complainant. In to support its justification of the mag- addition, the defendant may submit its nitude of any price differential between programming contracts covering the the complainant and such similarly sit- area specified in the complaint with its uated distributor that is not de minimis. answer to refute allegations concerning (4) An answer to a complaint alleging the existence of an impermissible ex- an unreasonable refusal to sell pro- clusive contract. If there are no con- gramming shall state the defendant’s tracts governing the specified area, the reasons for refusing to sell to the com- defendant shall so certify in its answer. plainant, or for refusing to sell to the Any contracts submitted pursuant to complainant on the same terms and this provision may be protected as pro- conditions as complainant’s compet- prietary pursuant to § 76.9 of this part. itor, and shall specify why the defend- (3) An answer to a discrimination ant’s actions are not discriminatory. complaint shall state the reasons for (f) Reply. Within fifteen (15) days any differential in prices, terms or con- after service of an answer, unless oth- ditions between the complainant and erwise directed by the Commission, the its competitor, and shall specify the complainant may file and serve a reply particular justification set forth in which shall be responsive to matters § 76.1002(b) of this part relied upon in contained in the answer and shall not support of the differential. contain new matters. (i) When responding to allegations (g) Time limit on filing of complaints. concerning price discrimination, ex- Any complaint filed pursuant to this cept in cases in which the alleged price subsection must be filed within one differential is de minimis (less than or year of the date on which one of the equal to five cents per subscriber or following events occurs: five percent, whichever is greater), the (1) The satellite cable programming defendant shall provide documentary vendor, satellite broadcast program- evidence to support any argument that ming vendor, or terrestrial cable pro- the magnitude of the differential is not gramming vendor enters into a con- discriminatory. tract with the complainant that the (ii) In cases involving a price dif- complainant alleges to violate one or ferential of less than or equal to five more of the rules contained in this sub- cents per subscriber or five percent, part; or whichever is greater, the answer shall (2) The satellite cable programming identify the differential as de minimis vendor, satellite broadcast program- and state that the defendant is there- ming vendor, or terrestrial cable pro- fore not required to justify the mag- gramming vendor offers to sell pro- nitude of the differential. gramming to the complainant pursuant (iii) If the defendant believes that the to terms that the complainant alleges complainant and its competitor are not to violate one or more of the rules con- sufficiently similar, the answer shall tained in this subpart, and such offer

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to sell programming is unrelated to (iii) Damages adjudication. (A) The any existing contract between the com- Commission may, in its discretion, end plainant and the satellite cable pro- adjudication of damages with a written gramming vendor, satellite broadcast order determining the sufficiency of programming vendor, or terrestrial the damages computation submitted in cable programming vendor; or accordance with paragraph (d)(3)(i) of (3) The complainant has notified a this section or the damages computa- cable operator, or a satellite cable pro- tion methodology submitted in accord- gramming vendor or a satellite broad- ance with paragraph (d)(3)(ii)(D) of this cast programming vendor that it in- section, modifying such computation tends to file a complaint with the Com- or methodology, or requiring the com- mission based on a request to purchase plainant to resubmit such computation or negotiate to purchase satellite cable or methodology. programming, satellite broadcast pro- (1) Where the Commission issues a gramming, or terrestrial cable pro- written order approving or modifying a gramming, or has made a request to damages computation submitted in ac- amend an existing contract pertaining cordance with paragraph (d)(3)(i) of to such programming pursuant to this section, the defendant shall rec- § 76.1002(f) of this part that has been de- ompense the complainant as directed nied or unacknowledged, allegedly in therein. violation of one or more of the rules (2) Where the Commission issues a contained in this subpart. written order approving or modifying a (h) Remedies for violations—(1) Rem- damages computation methodology edies authorized. Upon completion of submitted in accordance with para- such adjudicatory proceeding, the graph (d)(3)(ii)(D) of this section, the Commission shall order appropriate parties shall negotiate in good faith to remedies, including, if necessary, the reach an agreement on the exact imposition of damages, and/or the es- amount of damages pursuant to the tablishment of prices, terms, and con- Commission-mandated methodology. ditions for the sale of programming to (B) Within thirty days of the the aggrieved multichannel video pro- issuance of a paragraph (d)(3)(ii)(D) of gramming distributor. Such order shall this section damages methodology set forth a timetable for compliance, order, the parties shall submit jointly and shall become effective upon re- to the Commission either: lease. (1) A statement detailing the parties’ (2) Additional sanctions. The remedies agreement as to the amount of dam- provided in paragraph (h)(1) of this sec- ages; tion are in addition to and not in lieu (2) A statement that the parties are of the sanctions available under title V continuing to negotiate in good faith or any other provision of the Commu- and a request that the parties be given nications Act. an extension of time to continue nego- (3) Imposition of damages. (i) Bifurca- tiations; or tion. In all cases in which damages are (3) A statement detailing the bases requested, the Commission may bifur- for the continuing dispute and the rea- cate the program access violation de- sons why no agreement can be reached. termination from any damage adju- (C)(1) In cases in which the parties dication. cannot resolve the amount of damages (ii) Burden of proof. The burden of within a reasonable time period, the proof regarding damages rests with the Commission retains the right to deter- complainant, who must demonstrate mine the actual amount of damages on with specificity the damages arising its own, or through the procedures de- from the program access violation. Re- scribed in paragraph (h)(3)(iii)(C)(2) of quests for damages that grossly over- this section. state the amount of damages may re- (2) Issues concerning the amount of sult in a Commission determination damages may be designated by the that the complainant failed to satisfy Chief, Media Bureau for hearing before, its burden of proof to demonstrate with or, if the parties agree, submitted for specificity the damages arising from mediation to, a Commission Adminis- the program access violation. trative Law Judge.

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(D) Interest on the amount of dam- between the party executing the pro- ages awarded will accrue from either tective order declaration and the party the date indicated in the Commission’s submitting the protected material. The written order issued pursuant to para- Commission has full authority to fash- graph (h)(3)(iii)(A)(1) of this section or ion appropriate sanctions for violations the date agreed upon by the parties as of its protective orders, including but a result of their negotiations pursuant not limited to suspension or disbar- to paragraph (h)(3)(iii)(A)(2) of this sec- ment of attorneys from practice before tion. Interest shall be computed at ap- the Commission, forfeitures, cease and plicable rates published by the Internal desist orders, and denial of further ac- Revenue Service for tax refunds. cess to confidential information in (i) Alternative dispute resolution. With- Commission proceedings. in 20 days of the close of the pleading cycle, the parties to the program ac- (l) Petitions for temporary standstill. (1) cess dispute may voluntarily engage in A program access complainant seeking alternative dispute resolution, includ- renewal of an existing programming ing commercial arbitration. The Com- contract may file a petition along with mission will suspend action on the its complaint requesting a temporary complaint if both parties agree to use standstill of the price, terms, and other alternative dispute resolution. conditions of the existing programming (j) Discovery. In addition to the gen- contract pending resolution of the eral pleading and discovery rules con- complaint. In addition to the require- tained in § 76.7, parties to a program ac- ments of § 76.7, the complainant shall cess complaint may serve requests for have the burden of proof to dem- discovery directly on opposing parties, onstrate the following in its petition: and file a copy of the request with the (i) The complainant is likely to pre- Commission. The respondent shall have vail on the merits of its complaint; the opportunity to object to any re- (ii) The complainant will suffer irrep- quest for documents that are not in its arable harm absent a stay; control or relevant to the dispute or (iii) Grant of a stay will not substan- protected from disclosure by the attor- tially harm other interested parties; ney-client privilege, the work-product and doctrine, or other recognized protec- tions from disclosure. Such request (iv) The public interest favors grant shall be heard, and determination of a stay. made, by the Commission. Until the (2) The defendant cable operator, sat- objection is ruled upon, the obligation ellite cable programming vendor or to produce the disputed material is sus- satellite broadcast programming ven- pended. Any party who fails to timely dor upon which a petition for tem- provide discovery requested by the op- porary standstill is served shall answer posing party to which it has not raised within ten (10) days of service of the an objection as described above, or who petition, unless otherwise directed by fails to respond to a Commission order the Commission. for discovery material, may be deemed (3) If the Commission grants the tem- in default and an order may be entered porary standstill, the Commission’s de- in accordance with the allegations con- cision acting on the complaint will pro- tained in the complaint, or the com- vide for remedies that make the terms plaint may be dismissed with preju- of the new agreement between the par- dice. ties retroactive to the expiration date (k) Protective orders. In addition to of the previous programming contract. the procedures contained in § 76.9 of (m) Deadline for Media Bureau action this part related to the protection of on complaints alleging a denial of pro- confidential material, the Commission may issue orders to protect the con- gramming. For complaints alleging a fidentiality of proprietary information denial of programming, the Chief, required to be produced for resolution Media Bureau shall release a decision of program access complaints. A pro- resolving the complaint within six (6) tective order constitutes both an order of the Commission and an agreement

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months from the date the complaint is §§ 76.1005–76.1010 [Reserved] filed. [64 FR 6572, Feb. 10, 1999, as amended at 67 Subpart P—Competitive FR 13235, Mar. 21, 2002; 72 FR 56661, Oct. 4, Availability of Navigation Devices 2007; 75 FR 9724, Mar. 3, 2010; 77 FR 66048, Oct. 31, 2012] SOURCE: 63 FR 38094, July 15, 1998, unless § 76.1004 Applicability of program ac- otherwise noted. cess rules to common carriers and affiliates. § 76.1200 Definitions. (a) Any provision that applies to a As used in this subpart: cable operator under §§ 76.1000 through (a) Multichannel video programming 76.1003 shall also apply to a common system. A distribution system that carrier or its affiliate that provides makes available for purchase, by cus- video programming by any means di- tomers or subscribers, multiple chan- rectly to subscribers. Any such provi- 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 operator has an attributable interest § 76.1500(a). Such systems include, but shall apply to any satellite cable pro- are not limited to, cable television sys- gramming vendor in which such com- tems, BRS/EBS systems, direct broad- mon carrier has an attributable inter- cast satellite systems, other systems est. For the purposes of this section, for providing direct-to-home multi- two or fewer common officers or direc- channel video programming via sat- tors shall not by itself establish an at- ellite, and satellite master antenna tributable interest by a common car- systems. rier in a satellite cable programming (b) Multichannel video programming vendor (or its parent company) or a distributor. A person such as, but not terrestrial cable programming vendor limited to, a cable operator, a BRS/ (or its parent company). EBS provider, a direct broadcast sat- (b) Sections 76.1002(c)(1) through (3) ellite service, or a television receive- shall be applied to a common carrier or only satellite program distributor, who its affiliate that provides video pro- owns or operates a multichannel video gramming by any means directly to programming system. subscribers as follows: No common car- (c) Navigation devices. Devices such as rier or its affiliate that provides video converter boxes, interactive commu- programming directly to subscribers nications equipment, and other equip- shall engage in any practice or activity or enter into any understanding or ar- ment used by consumers to access mul- rangement, including exclusive con- tichannel video programming and tracts, with a satellite cable program- other services offered over multi- ming vendor or satellite broadcast pro- channel video programming systems. gramming vendor for satellite cable (d) Affiliate. A person or entity that programming or satellite broadcast (directly or indirectly) owns or con- programming that prevents a multi- trols, is owned or controlled by, or is channel video programming distributor under common ownership or control from obtaining such programming from with, another person, as defined in the any satellite cable programming ven- notes accompanying § 76.501. dor in which a common carrier or its (e) Conditional access. The mecha- affiliate has an attributable interest, nisms that provide for selective access or any satellite broadcasting vendor in and denial of specific services and which a common carrier or its affiliate make use of signal security that can has an attributable interest for dis- prevent a signal from being received tribution to persons in areas not served except by authorized users. by a cable operator as of October 5, 1992. [63 FR 38094, July 15, 1998, as amended at 69 FR 72046, Dec. 10, 2004] [61 FR 18980, Apr. 30, 1996, as amended at 61 FR 28708, June 5, 1996; 75 FR 9724, Mar. 3, 2010; 77 FR 66048, Oct. 31, 2012]

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§ 76.1201 Rights of subscribers to use equipment that incorporates only the or attach navigation devices. conditional access functions of such de- No multichannel video programming vices. distributor shall prevent the connec- (2) The foregoing requirement shall tion or use of navigation devices to or not apply to a multichannel video pro- with its multichannel video program- gramming distributor that supports ming system, except in those cir- the active use by subscribers of Naviga- cumstances where electronic or phys- tion Devices that: ical harm would be caused by the at- (i) Operate throughout the conti- tachment or operation of such devices nental United States, and or such devices may be used to assist (ii) Are available from retail outlets or are intended or designed to assist in and other vendors throughout the the unauthorized receipt of service. United States that are not affiliated with the owner or operator of the mul- § 76.1202 Availability of navigation de- tichannel video programming system. vices. (b) Conditional access function equip- No multichannel video programming ment made available pursuant to para- distributor shall by contract, agree- graph (a)(1) of this section shall be de- ment, patent right, intellectual prop- signed to connect to and function with erty right or otherwise prevent naviga- other Navigation Devices available tion devices that do not perform condi- through the use of a commonly used tional access or security functions interface or an interface that conforms from being made available to sub- to appropriate technical standards pro- scribers from retailers, manufacturers, mulgated by a national standards orga- or other vendors that are unaffiliated nization. with such owner or operator, subject to (c) No multichannel video program- § 76.1209. ming distributor shall by contract, § 76.1203 Incidence of harm. agreement, patent, intellectual prop- erty right or otherwise preclude the ad- A multichannel video programming dition of features or functions to the distributor may restrict the attach- equipment made available pursuant to ment or use of navigation devices with this section that are not designed, in- its system in those circumstances tended or function to defeat the condi- where electronic or physical harm tional access controls of such devices would be caused by the attachment or or to provide unauthorized access to operation of such devices or such de- service. vices that assist or are intended or de- (d) Notwithstanding the foregoing, signed to assist in the unauthorized re- Navigation Devices need not be made ceipt of service. Such restrictions may available pursuant to this section be accomplished by publishing and pro- where: viding to subscribers standards and de- (1) It is not reasonably feasible to scriptions of devices that may not be prevent such devices from being used used with or attached to its system. for the unauthorized reception of serv- Such standards shall foreclose the at- ice; or tachment or use only of such devices as raise reasonable and legitimate con- (2) It is not reasonably feasible to cerns of electronic or physical harm or separate conditional access from other theft of service. In any situation where functions without jeopardizing secu- theft of service or harm occurs or is rity. likely to occur, service may be discon- (e) Paragraphs (a)(1), (b), and (c) of tinued. this section shall not apply to the pro- vision of any Navigation Device that: § 76.1204 Availability of equipment (1) Employs conditional access mech- performing conditional access or anisms only to access analog video pro- security functions. gramming; (a)(1) A multichannel video program- (2) Is capable only of providing access ming distributor that utilizes Naviga- to analog video programming offered tion Devices to perform conditional ac- over a multichannel video program- cess functions shall make available ming distribution system; and

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(3) Does not provide access to any working condition and compatible with digital transmission of multichannel the customer’s device; video programming or any other dig- (4) Effective August 1, 2011, provide, ital service through any receiving, de- through the use of a commonly used coding, conditional access, or other interface and published specifications function, including any conversion of for communication, CableCARD-reli- digital programming or service to an ant, firmware-upgradable navigation analog format. devices the ability to tune simulta- [81 FR 13997, Mar. 16, 2016] neously as many switched-digital chan- nels as the greatest number of streams § 76.1205 CableCARD support. supported by any set-top box provided by the cable operator, or four simulta- (a) Technical information concerning neous channels, whichever is greater; interface parameters that are needed to permit navigation devices to operate (5) Separately disclose to consumers with multichannel video programming in a conspicuous manner with written systems shall be provided by the sys- information provided to customers in tem operator upon request in a timely accordance with § 76.1602, with written manner. or oral information at consumer re- (b) A multichannel video program- quest, and on Web sites or billing in- ming provider that is subject to the re- serts; quirements of § 76.1204(a)(1) must: (i) Any assessed fees for the rental of (1) Provide the means to allow sub- single and additional CableCARDs and scribers to self-install the CableCARD the rental of operator-supplied naviga- in a CableCARD-reliant device pur- tion devices; and, chased at retail and inform a sub- (ii) If such provider includes equip- scriber of this option when the sub- ment in the price of a bundled offer of scriber requests a CableCARD. This re- one or more services, the fees reason- quirement shall be effective August 1, ably allocable to: 2011, if the MVPD allows its subscribers (A) The rental of single and addi- to self-install any cable modems or op- tional CableCARDs; and erator-leased set-top boxes and Novem- (B) The rental of operator-supplied ber 1, 2011 if the MVPD does not allow navigation devices. its subscribers to self-install any cable (1) CableCARD rental fees shall be modems or operator-leased set-top priced uniformly throughout a cable boxes; system by such provider without re- (i) This requirement shall not apply gard to the intended use in operator- to cases in which neither the manufac- supplied or consumer-owned equip- turer nor the vendor of the ment. No service fee shall be imposed CableCARD-reliant device furnishes to on a subscriber for support of a sub- purchasers appropriate instructions for scriber-provided device that is not as- self-installation of a CableCARD, and a sessed on subscriber use of an operator- manned toll-free telephone number to provided device. answer consumer questions regarding (2) For any bundled offer combining CableCARD installation but only for so service and an operator-supplied navi- long as such instructions are not fur- gation device into a single fee, includ- nished and the call center is not of- ing any bundled offer providing a dis- fered; count for the purchase of multiple (ii) [Reserved] services, such provider shall make such (2) Effective August 1, 2011, provide offer available without discrimination multi-stream CableCARDs to sub- to any customer that owns a naviga- scribers, unless the subscriber requests tion device, and, to the extent the cus- a single-stream CableCARD; tomer uses such navigation device in (3) With respect to professional in- lieu of the operator-supplied equipment stallations, ensure that the technician included in that bundled offer, shall arrives with no fewer than the number further offer such customer a discount of CableCARDS requested by the cus- from such offer equal to an amount not tomer and ensure that all CableCARDs less than the monthly rental fee rea- delivered to customers are in good sonably allocable to the lease of the

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operator-supplied navigation device in- § 76.1208 Sunset of regulations. cluded with that offer. For purposes of The regulations adopted under this this section, in determining what is subpart shall cease to apply when the ‘‘reasonably allocable,’’ the Commis- Commission determines that (1) the sion will consider in its evaluation market for multichannel video dis- whether the allocation is consistent tributors is fully competitive; (2) the with one or more of the following fac- market for converter boxes, and inter- tors: active communications equipment, (i) An allocation determination ap- used in conjunction with that service is proved by a local, state, or Federal fully competitive; and (3) elimination government entity; of the regulations would promote com- (ii) The monthly lease fee as stated petition and the public interest. Any on the cable system rate card for the interested party may petition the Com- navigation device when offered by the mission for such a determination. cable operator separately from a bun- dled offer; and § 76.1209 Theft of service. (iii) The actual cost of the navigation Nothing in this subpart shall be con- device amortized over a period of no strued to authorize or justify any use, more than 60 months. manufacture, or importation of equip- (c) A cable operator shall not provide ment that would violate 47 U.S.C. 553 misleading information regarding the or any other provision of law intended ability of navigation devices to access to preclude the unauthorized reception switched digital channels. of multichannel video programming service. [76 FR 40279, July 8, 2011]

§ 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. state the charges to consumers for such services and equipment. Subpart Q—Regulation of Carriage Agreements § 76.1207 Waivers.

The Commission may waive a regula- SOURCE: 58 FR 60395, Nov. 16, 1993, unless tion adopted under this subpart for a otherwise noted. limited time, upon an appropriate showing by a provider of multichannel § 76.1300 Definitions. video programming and other services As used in this subpart: offered over multichannel video pro- (a) Affiliated. For purposes of this gramming systems, or an equipment subpart, entities are affiliated if either provider that such a waiver is nec- entity has an attributable interest in essary to assist the development or in- the other or if a third party has an at- troduction of a new or improved multi- tributable interest in both entities. channel video programming or other (b) Attributable interest. The term service offered over multichannel video ‘‘attributable interest’’ shall be defined programming systems, technology, or by reference to the criteria set forth in products. Such waiver requests should Notes 1 through 5 to § 76.501 provided, be made pursuant to § 76.7. Such a however, that: waiver shall be effective for all service (1) The limited partner and LLC/LLP/ providers and products in the category RLLP insulation provisions of Note 2(f) in which the waiver is granted. shall not apply; and

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(2) The provisions of Note 2(a) regard- or more of such operator’s/provider’s ing five (5) percent interests shall in- systems. clude all voting or nonvoting stock or (b) Exclusive rights. No cable operator limited partnership equity interests of or other multichannel video program- five (5) percent or more. ming distributor shall coerce any video (c) Buying groups. The term ‘‘buying programming vendor to provide, or re- group’’ or ‘‘agent,’’ for purposes of the taliate against such a vendor for fail- definition of a multichannel video pro- ing to provide, exclusive rights against gramming distributor set forth in para- any other multichannel video program- graph (e) of this section, means an en- ming distributor as a condition for car- tity representing the interests of more riage on a system. than one entity distributing multi- (c) Discrimination. No multichannel channel video programming that: video programming distributor shall (1) Agrees to be financially liable for engage in conduct the effect of which is any fees due pursuant to a satellite to unreasonably restrain the ability of cable programming, or satellite broad- an unaffiliated video programming cast programming, contract which it vendor to compete fairly by discrimi- signs as a contracting party as a rep- nating in video programming distribu- resentative of its members or whose tion on the basis of affiliation or non- members, as contracting parties, agree affiliation of vendors in the selection, to joint and several liability; and terms, or conditions for carriage of (2) Agrees to uniform billing and video programming provided by such standardized contract provisions for in- vendors. dividual members; and (3) Agrees either collectively or indi- § 76.1302 Carriage agreement pro- vidually on reasonable technical qual- ceedings. ity standards for the individual mem- (a) Complaints. Any video program- bers of the group. ming vendor or multichannel video (d) Multichannel video programming programming distributor aggrieved by distributor. The term ‘‘multichannel conduct that it believes constitute a video programming distributor’’ means violation of the regulations set forth in an entity engaged in the business of this subpart may commence an adju- making available for purchase, by sub- dicatory proceeding at the Commission scribers or customers, multiple chan- to obtain enforcement of the rules nels of video programming. Such enti- through the filing of a complaint. The ties include, but are not limited to, a complaint shall be filed and responded cable operator, a BRS/EBS provider, a to in accordance with the procedures direct broadcast satellite service, a tel- specified in § 76.7 of this part with the evision receive-only satellite program following additions or changes: distributor, and a satellite master an- (b) Prefiling notice required. Any ag- tenna television system operator, as grieved video programming vendor or well as buying groups or agents of all multichannel video programming dis- such entities. tributor intending to file a complaint (e) Video programming vendor. The under this section must first notify the term ‘‘video programming vendor’’ potential defendant multichannel video means a person engaged in the produc- programming distributor that it in- tion, creation, or wholesale distribu- tends to file a complaint with the Com- tion of video programming for sale. mission based on actions alleged to [58 FR 60395, Nov. 16, 1993, as amended at 64 violate one or more of the provisions FR 67197, Dec. 1, 1999; 69 FR 72046, Dec. 10, contained in § 76.1301 of this part. The 2004] notice must be sufficiently detailed so that its recipient(s) can determine the § 76.1301 Prohibited practices. specific nature of the potential com- (a) Financial interest. No cable oper- plaint. The potential complainant ator or other multichannel video pro- must allow a minimum of ten (10) days gramming distributor shall require a for the potential defendant(s) to re- financial interest in any program serv- spond before filing a complaint with ice as a condition for carriage on one the Commission.

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(c) Contents of complaint. In addition vendor to provide, or retaliated against to the requirements of § 76.7, a carriage such a vendor for failing to provide, ex- agreement complaint shall contain: clusive rights against any other multi- (1) Whether the complainant is a channel video programming distributor multichannel video programming dis- as a condition for carriage on a system. tributor or video programming vendor, (iii) Discrimination. In a complaint al- and, in the case of a multichannel leging a violation of § 76.1301(c): video programming distributor, iden- (A) Evidence that the conduct alleged tify the type of multichannel video has the effect of unreasonably restrain- programming distributor, the address ing the ability of an unaffiliated video and telephone number of the complain- programming vendor to compete fairly; ant, what type of multichannel video and programming distributor the defendant is, and the address and telephone num- (B) (1) Documentary evidence or tes- ber of each defendant; timonial evidence (supported by an af- (2) Evidence that supports complain- fidavit from a representative of the ant’s belief that the defendant, where complainant) that supports the claim necessary, meets the attribution stand- that the defendant discriminated in ards for application of the carriage video programming distribution on the agreement regulations; basis of affiliation or non-affiliation of (3) The complaint must be accom- vendors in the selection, terms, or con- panied by appropriate evidence dem- ditions for carriage of video program- onstrating that the required notifica- ming provided by such vendors; or tion pursuant to paragraph (b) of this (2) (i) Evidence that the complainant section has been made. provides video programming that is (d) Prima facie case. In order to estab- similarly situated to video program- lish a prima facie case of a violation of ming provided by a video programming § 76.1301, the complaint must contain vendor affiliated (as defined in evidence of the following: § 76.1300(a)) with the defendant multi- (1) The complainant is a video pro- channel video programming dis- gramming vendor as defined in section tributor, based on a combination of 616(b) of the Communications Act of factors, such as genre, ratings, license 1934, as amended, and § 76.1300(e) or a fee, target audience, target advertisers, multichannel video programming dis- target programming, and other factors; tributor as defined in section 602(13) of and the Communications Act of 1934, as (ii) Evidence that the defendant mul- amended, and § 76.1300(d); tichannel video programming dis- (2) The defendant is a multichannel tributor has treated the video program- video programming distributor as de- ming provided by the complainant dif- fined in section 602(13) of the Commu- ferently than the similarly situated, nications Act of 1934, as amended, and affiliated video programming described § 76.1300(d); and in paragraph (d)(3)(iii)(B)(2)(i) of this (3)(i) Financial interest. In a com- section with respect to the selection, plaint alleging a violation of § 76.1301(a), documentary evidence or terms, or conditions for carriage. testimonial evidence (supported by an (e) Answer. (1) Any multichannel affidavit from a representative of the video programming distributor upon complainant) that supports the claim which a carriage agreement complaint that the defendant required a financial is served under this section shall an- interest in any program service as a swer within sixty (60) days of service of condition for carriage on one or more the complaint, unless otherwise di- of such defendant’s systems. rected by the Commission. (ii) Exclusive rights. In a complaint al- (2) The answer shall address the relief leging a violation of § 76.1301(b), docu- requested in the complaint, including mentary evidence or testimonial evi- legal and documentary support, for dence (supported by an affidavit from a such response, and may include an al- representative of the complainant) ternative relief proposal without any that supports the claim that the de- prejudice to any denials or defenses fendant coerced a video programming raised.

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(f) Reply. Within twenty (20) days rules contained in this section, and after service of an answer, unless oth- such offer to carry programming is un- erwise directed by the Commission, the related to any existing contract be- complainant may file and serve a reply tween the complainant and the multi- which shall be responsive to matters channel video programming dis- contained in the answer and shall not tributor; or contain new matters. (3) A party has notified a multi- (g) Prima facie determination. (1) With- channel video programming distributor in sixty (60) calendar days after the that it intends to file a complaint with complainant’s reply to the defendant’s the Commission based on violations of answer is filed (or the date on which one or more of the rules contained in the reply would be due if none is filed), this section. the Chief, Media Bureau shall release a (i) Deadline for decision on the merits. decision determining whether the com- (1)(i) For program carriage complaints plainant has established a prima facie that the Chief, Media Bureau decides case of a violation of § 76.1301. on the merits based on the complaint, (2) The Chief, Media Bureau may toll answer, and reply without discovery, the sixty (60)-calendar-day deadline the Chief, Media Bureau shall release a under the following circumstances: decision on the merits within sixty (60) (i) If the complainant and defendant calendar days after the Chief, Media jointly request that the Chief, Media Bureau’s prima facie determination. Bureau toll these deadlines in order to (ii) For program carriage complaints pursue settlement discussions or alter- that the Chief, Media Bureau decides native dispute resolution or for any on the merits after discovery, the other reason that the complainant and Chief, Media Bureau shall release a de- defendant mutually agree justifies toll- cision on the merits within 150 cal- ing; or endar days after the Chief, Media Bu- (ii) If complying with the deadline reau’s prima facie determination. would violate the due process rights of (iii) The Chief, Media Bureau may a party or would be inconsistent with toll these deadlines under the following fundamental fairness. circumstances: (3) A finding that the complainant (A) If the complainant and defendant has established a prima facie case of a jointly request that the Chief, Media violation of § 76.1301 means that the Bureau toll these deadlines in order to complainant has provided sufficient pursue settlement discussions or alter- evidence in its complaint to allow the native dispute resolution or for any case to proceed to a ruling on the mer- other reason that the complainant and its. defendant mutually agree justifies toll- (4) If the Chief, Media Bureau finds ing; or that the complainant has not estab- (B) If complying with the deadline lished a prima facie case of a violation would violate the due process rights of of § 76.1301, the Chief, Media Bureau a party or would be inconsistent with will dismiss the complaint. fundamental fairness. (h) Time limit on filing of complaints. (2) For program carriage complaints Any complaint filed pursuant to this that the Chief, Media Bureau refers to subsection must be filed within one an administrative law judge for an ini- year of the date on which one of the tial decision, the deadlines set forth in following events occurs: § 0.341(f) of this chapter apply. (1) The multichannel video program- (j) Remedies for violations—(1) Rem- ming distributor enters into a contract edies authorized. Upon completion of with a video programming distributor such adjudicatory proceeding, the that a party alleges to violate one or Commission shall order appropriate more of the rules contained in this sec- remedies, including, if necessary, man- tion; or datory carriage of a video program- (2) The multichannel video program- ming vendor’s programming on defend- ming distributor offers to carry the ant’s video distribution system, or the video programming vendor’s program- establishment of prices, terms, and ming pursuant to terms that a party conditions for the carriage of a video alleges to violate one or more of the programming vendor’s programming.

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Such order shall set forth a timetable (iii) Grant of a stay will not substan- for compliance, and shall become effec- tially harm other interested parties; tive upon release, unless any order of and mandatory carriage would require the (iv) The public interest favors grant defendant multichannel video program- of a stay. ming distributor to delete existing pro- (2) The defendant multichannel video gramming from its system to accom- programming distributor upon which a modate carriage of a video program- petition for temporary standstill is ming vendor’s programming. In such served shall answer within ten (10) days instances, if the defendant seeks review of service of the petition, unless other- of the staff, or administrative law wise directed by the Commission. judge decision, the order for carriage of (3) If the Commission grants the tem- a video programming vendor’s pro- porary standstill, the adjudicator de- gramming will not become effective ciding the case on the merits (i.e., ei- unless and until the decision of the ther the Chief, Media Bureau or an ad- staff or administrative law judge is ministrative law judge) will provide for upheld by the Commission. If the Com- remedies that are applied as of the ex- piration date of the previous program- mission upholds the remedy ordered by ming contract. the staff or administrative law judge in its entirety, the defendant will be re- [64 FR 6574, Feb. 10, 1999, as amended at 76 quired to carry the video programming FR 60673, Sept. 29, 2011] vendor’s programming for an addi- tional period equal to the time elapsed §§ 76.1303–76.1305 [Reserved] between the staff or administrative law judge decision and the Commission’s Subpart R—Telecommunications ruling, on the terms and conditions ap- Act Implementation proved by the Commission. (2) Additional sanctions. The remedies SOURCE: 61 FR 18980, Apr. 30, 1996, unless provided in paragraph (j)(1) of this sec- otherwise noted. tion are in addition to and not in lieu § 76.1400 Purpose. of the sanctions available under title V or any other provision of the Commu- The rules and regulations set forth in nications Act. this subpart provide procedures for ad- (k) Petitions for temporary standstill. ministering certain aspects of cable (1) A program carriage complainant regulation. These rules and regulations seeking renewal of an existing pro- provide guidance for operators, sub- gramming contract may file a petition scribers and franchise authorities with along with its complaint requesting a respect to matters that are subject to immediate implementation under gov- temporary standstill of the price, erning statutes but require specific terms, and other conditions of the ex- regulatory procedures or definitions. isting programming contract pending resolution of the complaint. To allow § 76.1404 Use of cable facilities by local for sufficient time to consider the peti- exchange carriers. tion for temporary standstill prior to (a) For purposes of § 76.505(d)(2), the the expiration of the existing program- Commission will determine whether ming contract, the petition for tem- use of a cable operator’s facilities by a porary standstill and complaint shall local exchange carrier is reasonably be filed no later than thirty (30) days limited in scope and duration accord- prior to the expiration of the existing ing to the procedures in paragraph (b) programming contract. In addition to of this section. the requirements of § 76.7, the com- (b) Based on the record created by plainant shall have the burden of proof § 76.1617 of the rules, the Commission to demonstrate the following in its pe- shall determine whether the local ex- tition: change carrier’s use of that part of the (i) The complainant is likely to pre- transmission facilities of a cable sys- vail on the merits of its complaint; tem extending from the last multi-use (ii) The complainant will suffer irrep- terminal to the premises of the end arable harm absent a stay; user is reasonably limited in scope and

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duration. In making this determina- (h) Attributable Interest. The term tion, the Commission will evaluate ‘‘attributable interest’’ shall be defined whether the proposed joint use of cable by reference to the criteria set forth in facilities promotes competition in both Notes 1 through 5 to § 76.501 provided, services and facilities, and encourages however, that: long-term investment in telecommuni- (1) The limited partner and LLC/LLP/ cations infrastructure. RLLP insulation provisions of Note 2(f) [65 FR 53617, Sept. 5, 2000] shall not apply; and (2) The provisions of Note 2(a) regard- Subpart S—Open Video Systems ing five (5) percent interests shall in- clude all voting or nonvoting stock or limited partnership equity interests of SOURCE: 61 FR 28708, June 5, 1996, unless five (5) percent or more. otherwise noted. (i) Other terms. Unless otherwise ex- § 76.1500 Definitions. pressly stated, words not defined in this part shall be given their meaning (a) Open video system. A facility con- as used in Title 47 of the United States sisting of a set of transmission paths Code, as amended, and, if not defined and associated signal generation, re- therein, their meaning as used in Part ception, and control equipment that is 47 of the Code of Federal Regulations. designed to provide cable service which includes video programming and which [61 FR 28708, June 5, 1996, as amended at 61 is provided to multiple subscribers FR 43175, Aug. 21, 1996; 64 FR 67197, Dec. 1, within a community, provided that the 1999] Commission has certified that such system complies with this part. § 76.1501 Qualifications to be an open (b) Open video system operator video system operator. (operator). Any person or group of per- Any person may obtain a certifi- sons who provides cable service over an cation to operate an open video system open video system and directly or pursuant to Section 653(a)(1) of the through one or more affiliates owns a Communications Act, 47 U.S.C. significant interest in such open video 573(a)(1), except that an operator of a system, or otherwise controls or is re- cable system may not obtain such cer- sponsible for the management and op- tification within its cable service area eration of such an open video system. unless it is subject to ‘‘effective com- (c) Video programming provider. Any petition’’ as defined in Section 623(l)(1) person or group of persons who has the of the Communications Act, 47 U.S.C. right under the copyright laws to se- 543(l)(1). The effective competition re- lect and contract for carriage of spe- quirement of the preceding sentence cific video programming on an open does not apply to a local exchange car- video system. rier that is also a cable operator that (d) Activated channels. This term shall seeks open video system certification have the same meaning as provided in within its cable service area. A cable the cable television rules, 47 CFR 76.5(nn). operator that is not subject to effective competition within its cable service (e) Shared channel. Any channel that carries video programming that is se- area may file a petition with the Com- lected by more than one video pro- mission, seeking a finding that par- gramming provider and offered to sub- ticular circumstances exist that make scribers. it consistent with the public interest, (f) Cable service. This term shall have convenience, and necessity to allow the the same meaning as provided in the operator to convert its cable system to cable television rules, 47 CFR 76.5(ff). an open video system. Nothing herein (g) Affiliated. For purposes of this shall be construed to affect the terms subpart, entities are affiliated if either of any franchising agreement or other entity has an attributable interest in contractual agreement. the other or if a third party has an at- [65 FR 376, Jan. 5, 2000] tributable interest in both entities.

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§ 76.1502 Certification. The subject line shall read ‘‘Open Video (a) An operator of an open video sys- System Certification Application.’’ tem must certify to the Commission Open video system certification appli- that it will comply with the Commis- cations will not be considered properly sion’s regulations in 47 CFR 76.1503, filed unless filed as described in this 76.1504, 76.1506(m), 76.1508, 76.1509, and paragraph (d). 76.1513. The Commission must approve (2) On or before the date an FCC such certification prior to the com- Form 1275 is filed with the Commis- mencement of service at such a point sion, the applicant must serve a copy in time that would allow the applicant of its filing on all local communities sufficient time to comply with the identified pursuant to paragraph (c)(6) Commission’s notification require- of this section and must include a ments. statement informing the local commu- (b) Certifications must be verified by nities of the Commission’s require- an officer or director of the applicant, ments in paragraph (e) of this section stating that, to the best of his or her for filing oppositions and comments. information and belief, the representa- Service by mail is complete upon mail- tions made therein are accurate. ing, but if mailed, the served docu- (c) Certifications must be filed on ments must be postmarked at least 3 FCC Form 1275 and must include: days prior to the filing of the FCC (1) The applicant’s name, address and Form 1275 with the Commission. telephone number; (e)(1) Comments or oppositions to a (2) A statement of ownership, includ- certification must be filed within five ing all affiliated entities; calendar days of the Commission’s re- (3) If the applicant is a cable operator ceipt of the certification and must be applying for certification in its cable served on the party that filed the cer- franchise area, a statement that the tification. If, after making the nec- applicant is qualified to operate an essary calculations, the due date for open video system under Section filing comments falls on a holiday, 76.1501. comments shall be filed on the next (4) A statement that the applicant business day before noon, unless the agrees to comply and to remain in nearest business day precedes the fifth compliance with each of the Commis- calendar day following a filing, in sion’s regulations in §§ 76.1503, 76.1504, which case the comments will be due 76.1506(m), 76.1508, 76.1509, and 76.1513; on the preceding business day. For ex- (5) If the applicant is required under ample, if the fifth day falls on a Satur- 47 CFR 64.903(a) of this chapter to file day, then the filing would be due on a cost allocation manual, a statement that preceding Friday. However, if the that the applicant will file changes to fifth day falls on Sunday, then the fil- its manual at least 60 days before the commencement of service; ing will be due on the next day, Mon- (6) A list of the names of the antici- day, before noon (or Tuesday, before pated local communities to be served noon if the Monday is a holiday). upon completion of the system; (2) Parties wishing to respond to a (7) The anticipated amount and type FCC Form 1275 filing must submit com- (i.e., analog or digital) of capacity (for ments or oppositions via electronic switched digital systems, the antici- mail (email) at the following address: pated number of available channel [email protected]. The subject line shall input ports); and read ‘‘Open Video System Certification (8) A statement that the applicant Application Comments.’’ Comments will comply with the Commission’s no- and oppositions will not be considered tice and enrollment requirements for properly filed unless filed as described unaffiliated video programming pro- in this paragraph (e). viders. (f) If the Commission does not dis- (d)(1) All open video system certifi- approve the certification application cation applications, including FCC within ten days after receipt of an ap- Form 1275 and all attachments, must plicant’s request, the certification ap- be filed via electronic mail (email) at plication will be deemed approved. If the following address: [email protected]. disapproved, the applicant may file a

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revised certification or refile its origi- (i) A heading clearly indicating that nal submission with a statement ad- the document is a Notice of Intent to dressing the issues in dispute in ac- establish an open video system; cordance with the procedures described (ii) The name, address and telephone in paragraph (d) of this section. Such number of the open video system oper- refilings must be served on any object- ator; ing party or parties and on all local (iii) A description of the system’s communities in which the applicant in- projected service area; tends to operate pursuant to instruc- (iv) A description of the system’s pro- tions in paragraph (d)(2) of this section. jected channel capacity, in terms of The Commission will consider any re- analog, digital and other type(s) of ca- vised or refiled FCC Form 1275 to be a pacity upon activation of the system; new proceeding and any party who filed (v) A description of the steps a poten- comments regarding the original FCC tial video programming provider must Form 1275 will have to refile their follow to seek carriage on the open original comments if they think such video system, including the name, ad- comments should be considered in the dress and telephone number of a person subsequent proceeding. to contact for further information; (vi) The starting and ending dates of [61 FR 28708, June 5, 1996, as amended at 61 the initial enrollment period for video FR 43175, Aug. 21, 1996; 62 FR 26238, May 13, programming providers; 1997; 63 FR 31934, June 11, 1998; 65 FR 377, (vii) The process for allocating the Jan. 5, 2000; 67 FR 13235, Mar. 21, 2002; 83 FR system’s channel capacity, in the event 61136, Nov. 28, 2018] that demand for carriage on the system § 76.1503 Carriage of video program- exceeds the system’s capacity; and ming providers on open video sys- (viii) A certification that the oper- tems. ator has complied with all relevant no- tification requirements under the Com- (a) Non-discrimination principle. Ex- mission’s open video system regula- cept as otherwise permitted in applica- tions concerning must-carry and re- ble law or in this part, an operator of transmission consent (§ 76.1506), includ- an open video system shall not dis- ing a list of all local commercial and criminate among video programming non-commercial television stations providers with regard to carriage on its served, and a certificate of service open video system, and its rates, terms showing that the Notice of Intent has and conditions for such carriage shall been served on all local cable fran- be just and reasonable and not unjustly chising authorities entitled to estab- or unreasonably discriminatory. lish requirements concerning the des- (b) Demand for carriage. An operator ignation of channels for public, edu- of an open video system shall solicit cational and governmental use. and determine the level of demand for (2) Information. An open video system carriage on the system among poten- operator shall provide the following in- tial video programming providers in a formation to a video programming pro- non-discriminatory manner. vider within five business days of re- (1) Notification. An open video system ceiving a written request from the pro- operator shall file a ‘‘Notice of Intent’’ vider, unless otherwise included in the to establish an open video system, Notice of Intent: which the Commission will release in a (i) The projected activation date of Public Notice. The Notice of Intent the open video system. If a system is to must be filed via electronic mail be activated in stages, the operator (email) at the following address: should describe the respective stages [email protected]. The subject line shall and the projected dates on which each read ‘‘Open Video System Notice of In- stage will be activated; tent.’’ An Open Video system notice of (ii) A preliminary carriage rate esti- intent will not be considered properly mate; filed unless filed as described in this (iii) The information a video pro- paragraph (b). This Notice of Intent gramming provider will be required to shall include the following informa- provide to qualify as a video program- tion: ming provider, e.g., creditworthiness;

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(iv) Technical information that is (iii) Channels that an open video sys- reasonably necessary for potential tem operator carries pursuant to the video programming providers to assess Commission’s regulations concerning whether to seek capacity on the open retransmission consent shall be in- video system, including what type of cluded in ‘‘activated channel capacity’’ customer premises equipment sub- for purposes of calculating the one- scribers will need to receive service; third of such capacity on which the (v) Any transmission or reception open video system operator and its af- equipment needed by a video program- filiates are allowed to select the video ming provider to interface successfully programming for carriage. Such chan- with the open video system; and nels shall be included in the one-third (vi) The equipment available to fa- of capacity on which the open video cilitate the carriage of unaffiliated system operator is permitted to select video programming and the electronic programming, where demand for car- form(s) that will be accepted for proc- riage exceeds system capacity, to the essing and subsequent transmission extent that the channels are carried as through the system. part of the programming service of the (3) Qualifications of video programming operator or its affiliate, subject to providers. An open video system oper- paragraph (c)(1)(iv); and ator may impose reasonable, non-dis- (iv) Any channel on which shared 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 riage exceeds system capacity, to the for carriage on more than one-third of extent the open video system operator the activated channel capacity on such or its affiliate is one of the video pro- system. gramming providers sharing such chan- (1) Measuring capacity. For purposes nel. of this section: (i) If an open video system carries NOTE TO PARAGRAPH (c)(1)(iv): For example, if the open video system operator and two both analog and digital signals, an unaffiliated video programming providers open video system operator shall meas- each carry a programming service that is ure analog and digital activated chan- placed on a shared channel, the shared chan- nel capacity independently; nel shall count as 0.33 channels against the (ii) Channels that an open video sys- one-third amount of capacity allocable to tem is required to carry pursuant to the open video system operator, where de- the Commission’s regulations con- mand for carriage exceeds system capacity. cerning public, educational and govern- (2) Allocating capacity. An operator of mental channels and must-carry chan- an open video system shall allocate ac- nels shall be included in ‘‘activated tivated channel capacity through a channel capacity’’ for purposes of cal- fair, open and non-discriminatory proc- culating the one-third of such capacity ess; the process must be insulated from on which the open video system oper- any bias of the open video system oper- ator and its affiliates are allowed to se- ator and verifiable. lect the video programming for car- (i) If an open video system carries riage. Such channels shall not be in- both analog and digital signals, an cluded in the one-third of capacity on open video system operator shall treat which the open video system operator analog and digital capacity separately is permitted to select programming in allocating system capacity. where demand for carriage exceeds sys- (ii) Subsequent changes in capacity or tem capacity; demand. An open video system operator

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must allocate open capacity, if any, at NOTE 3 TO PARAGRAPH (c)(2)(iii): Ready and least once every three years, beginning immediate access in this context means that three years from the date of service the channel sharing is ‘‘transparent’’ to sub- commencement. Open capacity shall be scribers. allocated in accordance with this sec- (iv) Open video system operator discre- tion. Open capacity shall include all tion. Notwithstanding the foregoing, an capacity that becomes available during operator of an open video system may: the course of the three-year period, as (A) Require video programming pro- well as capacity in excess of one-third viders to request and obtain system ca- of the system’s activated channel ca- pacity in increments of no less than pacity on which the operator of the open video system or its affiliate se- one full-time channel; however, an op- lects programming. erator of an open video system may not require video programming providers NOTE 1 TO PARAGRAPH (c)(2)(ii): An open to obtain capacity in increments of video system operator will not be required to more than one full-time channel; comply with the regulations contained in this section if there is no open capacity to be (B) Limit video programming pro- allocated at the end of the three year period. viders from selecting the programming NOTE 2 TO PARAGRAPH (c)(2)(ii): An open on more capacity than the amount of video system operator shall be required to capacity on which the system operator accommodate changes in obligations con- and its affiliates are selecting the pro- cerning public, educational or governmental channels or must-carry channels in accord- gramming for carriage; and ance with Sections 611, 614 and 615 of the (v) Notwithstanding the general pro- Communications Act and the regulations hibition on an open video system oper- contained in this part. ator’s discrimination among video pro- NOTE 3 TO PARAGRAPH (c)(2)(ii): An open gramming providers contained in para- video system operator shall be required to comply with the recordkeeping requirements graph (a) of this section, a competing, of § 76.1712. in-region cable operator or its affil- iate(s) that offer 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 open ice that is offered by more than one video system, except where a showing video programming provider (including the operator’s video programming affil- is made that facilities-based competi- iate), provided that subscribers have tion will not be significantly impeded. ready and immediate access to any (3) Nothing in this paragraph shall be such programming service. Nothing in construed to limit the number of chan- this section shall be construed to im- nels that the open video system oper- pair the rights of programming serv- ator and its affiliates, or another video ices. programming provider, may offer to provide directly to subscribers. Co- NOTE 1 TO PARAGRAPH (c)(2)(iii): An open packaging is permissible among video video system operator may implement chan- nel sharing only after it becomes apparent programming providers, but may not that one or more video programming serv- be a condition of carriage. Video pro- ices will be offered by multiple video pro- gramming providers may freely elect gramming providers. An open video system whether to enter into co-packaging ar- operator may not select, in advance of any rangements. duplication among video programming pro- viders, which programming services shall be NOTE TO PARAGRAPH (c)(3): Any video pro- placed on shared channels. gramming provider on an open video system NOTE 2 TO PARAGRAPH (c)(2)(iii): Each video may co-package video programming that is programming provider offering a program- selected by itself, an affiliated video pro- ming service that is carried on a shared gramming provider and/or unaffiliated video channel must have the contractual permis- programming providers on the system. sion of the video programming service to offer the service to subscribers. The place- [61 FR 28708, June 5, 1996, as amended at 61 ment of a programming service on a shared FR 43176, Aug. 21, 1996; 62 FR 26239, May 13, channel, however, is not subject to the ap- 1997; 65 FR 377, Jan. 5, 2000; 65 FR 53617, Sept. proval of the video programming service or 5, 2000; 67 FR 13235, Mar. 21, 2002; 83 FR 61136, vendor. Nov. 28, 2018]

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

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(1) All amounts paid to studios, syn- cial contributions towards public, edu- dicators, networks or others, including but cational and governmental access serv- not limited to payments for programming ices, facilities and equipment that are and all related rights; actually used for public, educational (2) Packaging, including marketing and other fees; and governmental access services, fa- (3) Talent fees; and cilities and equipment. For in-kind (4) A reasonable overhead allowance for af- contributions (e.g., cameras, produc- filiated video service support. tion studios), the open video system operator may satisfy its statutory obli- (2) An open video system operator gation by negotiating mutually agree- can demonstrate that its carriage serv- able terms with the local cable oper- ice rates are just and reasonable ator, so that public, educational and through other market based ap- governmental access services to the proaches. community is improved or increased. If [61 FR 28708, June 5, 1996, as amended at 61 such terms cannot be agreed upon, the FR 43176, Aug. 21, 1996] 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 oper- may negotiate with the local cable ator 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 obligations with respect to public, edu- systems involved. If the cable and open cational and governmental access video system operator cannot agree on channel capacity, services, facilities how to accomplish the connection, the and equipment within the local fran- local franchising authority may decide. chising authority’s jurisdiction: The local franchising authority may (1) The open video system operator require that the connection occur on must satisfy the same public, edu- government property or on public cational and governmental access obli- rights of way. gations as the local cable operator by (4) The costs of connection to the providing the same amount of channel cable operator’s public, educational capacity for public, educational and and governmental access channel feed governmental access and by matching shall be borne by the open video sys- the local cable operator’s annual finan- tem operator. Such costs shall be

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counted towards the open video system erator will not be required to displace operator’s matching financial con- other programmers using its open tributions set forth in paragraph (d)(4) video system to accommodate public, of this section. educational and governmental access (5) The local franchising authority channels. The open video system oper- may not impose public, educational ator shall comply with such public, and governmental access obligations educational and governmental access on the open video system operator that obligations whenever additional capac- would exceed those imposed on the ity is or becomes available, whether it local cable operator. is due to increased channel capacity or (6) Where there is no existing local decreased demand for channel capac- cable operator, the open video system ity. operator must make a reasonable (8) The open video system operator amount of channel capacity available and/or the local franchising authority for public, educational and govern- may file a complaint with the Commis- mental use, as well as provide reason- 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 and governmental access and that which contains nudity, obscene mate- serves a franchise area with a similar rial, indecent material as defined in population size. § 76.701(g), or material soliciting or pro- NOTE TO PARAGRAPH (d)(6): This paragraph moting unlawful conduct. For purposes shall apply, for example, if a cable operator of this section, ‘‘material soliciting or converts its cable system to an open video promoting unlawful conduct’’ shall system under § 76.1501. mean material that is otherwise pro- (7) The open video system operator scribed by law. An open video system must adjust its system(s) to comply operator may require any access user, with new public, educational and gov- or access manager or administrator ernmental access obligations imposed agreeing to assume the responsibility by a cable franchise renewal; provided, of certifying, to certify that its pro- however, that an open video system op- gramming does not contain any of the

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materials described above and that rea- television system’’ shall apply to an sonable efforts will be used to ensure open video system. that live programming does not con- (d) Definitions applicable to the must- tain such material. carry rules. Section 76.55 shall apply to all open video systems in accordance [61 FR 28708, June 5, 1996, as amended at 61 with the provisions contained in this FR 43176, Aug. 21, 1996] section. Any provision of § 76.55 that re- § 76.1506 Carriage of television broad- fers to a ‘‘cable system’’ shall apply to cast signals. an open video system. Any provision of § 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- fers to a ‘‘cable operator’’ shall apply holds viewed all stations during the period, 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 programming distributors that viewed the system operator shall make available station for 5 minutes or more during the en- to every subscriber of the open video tire week, expressed as a percentage of the system all qualified local commercial total households that do not receive tele- television stations and all qualified vision signals from multichannel video pro- non-commercial educational television gramming distributors in the survey area. stations carried in fulfillment of its (c) Significantly viewed signals; method carriage obligations under this section. to be followed for special showings. Any (f) Channel positioning. Open video provision of § 76.54 that refers to a system operators shall comply with the ‘‘cable television community’’ or provisions of § 76.57 to the closest ex- ‘‘cable community or communities’’ tent possible. Any provision of § 76.57 shall apply to an open video system that refers to a ‘‘cable operator’’ shall community or communities. Any pro- apply to an open video system oper- vision of § 76.54 that refers to ‘‘non- ator. Any provision of § 76.57 that refers cable television homes’’ shall apply to to a ‘‘cable system’’ shall apply to an households that do not receive tele- open video system, except the ref- vision signals from multichannel video erences to ‘‘cable system’’ in § 76.57(d) programming distributors. Any provi- which shall apply to an open video sys- sion of § 76.54 that refers to a ‘‘cable tem operator.

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(g) Notification. Any provision of (3) Television broadcast stations are §§ 76.1601, 76.1607, 76.1617, or 76.1708(a) required to make the same election for (second sentence) that refers to a open video systems and cable systems ‘‘cable operator,’’ ‘‘cable system,’’ or serving the same geographic area, un- ‘‘principal headend’’ shall apply, re- less the overlapping open video system spectively, to an open video system op- is unable to deliver appropriate signals erator, to an open video system, or to in conformance with the broadcast sta- the equivalent of the principal headend tion’s elections for all cable systems for an open video system. serving the same geographic area. (h) Modification of television markets. (4) An open video system com- Any provision of § 76.59 that refers to a mencing 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 oper- fore the date on which it files with the ator. 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) Exemption from input selector operator’’ shall apply to an open video switch rules. Any provision of § 76.70 system operator. Any provision of that refers to a ‘‘cable system’’ or § 76.60 that refers to a ‘‘cable system’’ ‘‘cable systems’’ shall apply to an open shall apply to an open video system. video system or open video systems. Any provision of § 76.60 that refers to a (n) Special relief and must-carry com- ‘‘principal headend’’ shall apply to the plaint procedures. The procedures set equivalent of the principal headend for forth in § 76.7 shall apply to special re- an open video system. lief and must-carry complaints relat- (j) Disputes concerning carriage. Any ing to open video systems, and not the provision of § 76.61 that refers to a procedures set forth in § 76.1514 (Dis- ‘‘cable operator’’ shall apply to an open pute resolution). Any provision of § 76.7 video system operator. Any provision that refers to a ‘‘cable television sys- of § 76.61 that refers to a ‘‘cable sys- tem operator’’ or ‘‘cable operator’’ tem’’ shall apply to an open video sys- shall apply to an open video system op- tem. Any provision of § 76.61 that refers erator. Any provision of § 76.7 that re- to a ‘‘principal headend’’ shall apply to fers to a ‘‘cable television system’’ the equivalent of the principal headend shall apply to an open video system. for an open video system. Any provision of § 76.7 that refers to a (k) Manner of carriage. Any provision ‘‘system community unit’’ shall apply of § 76.62 that refers to a ‘‘cable oper- to an open video system or that por- ator’’ shall apply to an open video sys- tion of an open video system that oper- tem operator. ates or will operate within a separate (l) Retransmission consent. Section and distinct community or municipal 76.64 shall apply to open video systems entity (including unincorporated com- in accordance with the provisions con- munities within unincorporated areas tained in this paragraph. and including single, discrete unincor- (1) Any provision of § 76.64 that refers porated areas). to a ‘‘cable system’’ shall apply to an [61 FR 28708, June 5, 1996, as amended at 61 open video system. Any provision of FR 43177, Aug. 21, 1996; 79 FR 63562, Oct. 24, § 76.64 that refers to a ‘‘cable operator’’ 2014; 80 FR 5050, Jan. 30, 2015] shall apply to an open video system op- erator. § 76.1507 Competitive access to sat- (2) Must-carry/retransmission con- ellite cable programming. sent election notifications shall be sent (a) Any provision that applies to a to the open video system operator. An cable operator under §§ 76.1000 through open video system operator shall make 76.1003 shall also apply to an operator all must-carry/retransmission consent of an open video system and its affil- election notifications received avail- iate which provides video programming able to the appropriate programming on its open video system, except as providers on its system. limited by paragraph (a) (1)–(3) of this

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section. Any such provision that ap- of October 5, 1992 unless such agree- plies to a satellite cable programming ment or arrangement complies with vendor in which a cable operator has the limitations set forth in an attributable interest shall also § 76.1002(c)(3)(ii). apply to any satellite cable program- (b) No open video system program- ming vendor in which an open video ming provider in which a cable oper- system operator has an attributable in- ator has an attributable interest shall terest, except as limited by paragraph engage in any practice or activity or (a) (1)–(3) of this section. enter into any understanding or ar- (1) Section 76.1002(c)(1) shall only re- rangement, including exclusive con- strict the conduct of an open video sys- tracts, with a satellite cable program- tem operator, its affiliate that provides ming vendor or satellite broadcast pro- video programming on its open video gramming vendor for satellite cable system and a satellite cable program- programming or satellite broadcast ming vendor in which an open video programming that prevents a multi- system operator has an attributable in- channel video programming distributor terest, as follows: No open video sys- from obtaining such programming from tem operator or its affiliate that pro- any satellite cable programming ven- vides video programming on its open dor in which a cable operator has an video system shall engage in any prac- attributable interest, or any satellite tice or activity or enter into any un- broadcasting vendor in which a cable derstanding or arrangement, including operator has an attributable interest exclusive contracts, with a satellite for distribution to person in areas not cable programming vendor or satellite served by a cable operator as of Octo- broadcast programming vendor for sat- ber 5, 1992. ellite cable programming or satellite [61 FR 28708, June 5, 1996, as amended at 77 broadcast programming that prevents FR 66048, Oct. 31, 2012] a multichannel video programming dis- tributor from obtaining such program- § 76.1508 Network non-duplication. ming from any satellite cable program- (a) Sections 76.92 through 76.95 shall ming vendor in which an open video apply to open video systems in accord- system operator has an attributable in- ance with the provisions contained in terest, or any satellite broadcasting this section. vendor in which an open video system (b) Any provision of § 76.92 that refers operator has an attributable interest to a ‘‘cable community unit’’ or ‘‘com- for distribution to person in areas not munity unit’’ shall apply to an open served by a cable operator as of Octo- video system or that portion of an open ber 5, 1992. video system that operates or will op- (2) [Reserved] erate within a separate and distinct (3) Section 76.1002(c)(3)(i) and (ii) community or municipal entity (in- shall only restrict the conduct of an cluding unincorporated communities open video system operator, its affil- within unincorporated areas and in- iate that provides video programming cluding single, discrete unincorporated on its open video system and a satellite areas). Any provision of § 76.92 that re- cable programming vendor in which an fers to a ‘‘cable television community’’ open video system operator has an at- shall apply to an open video system tributable interest, as follows: No open community. Any provision of § 76.92 video system operator shall enter into that refers to a ‘‘cable television sys- any subdistribution agreement or ar- tem’s mandatory signal carriage obli- rangement for satellite cable program- gations’’ shall apply to an open video ming or satellite broadcast program- system’s mandatory signal carriage ob- ming with a satellite cable program- ligations. ming vendor in which an open video (c) Any provision of § 76.94 that refers system operator has an attributable in- to a ‘‘cable system operator’’ or ‘‘cable terest or a satellite broadcast program- television system operator’’ shall apply ming vendor in which an open video to an open video system operator. Any system operator has an attributable in- provision of § 76.94 that refers to a terest for distribution to persons in ‘‘cable system’’ or ‘‘cable television areas not served by a cable operator as system’’ shall apply to an open video

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system except § 76.94 (e) and (f) which gram supplier if the operator provided shall apply to an open video system op- proper notices to the program supplier erator. Open video system operators and subsequently took prompt steps to shall make all notifications and infor- stop the distribution of the infringing mation regarding the exercise of net- program once it was notified of a viola- work non-duplication rights imme- tion. diately available to all appropriate (d) Any provision of § 76.106 that re- video programming provider on the fers to a ‘‘cable community’’ shall system. An open video system operator apply to an open video system commu- shall not be subject to sanctions for nity. Any provision of § 76.106 that re- any violation of these rules by an unaf- filiated program supplier if the oper- fers to a ‘‘cable community unit’’ or ator provided proper notices to the pro- ‘‘community unit’’ shall apply to an gram supplier and subsequently took open video system or that portion of an prompt steps to stop the distribution of open video system that operates or will the infringing program once it was no- operate within a separate and distinct tified of a violation. community or municipal entity (in- (d) Any provision of § 76.95 that refers cluding unincorporated communities to a ‘‘cable system’’ or a ‘‘cable com- within unincorporated areas and in- munity unit’’ shall apply to an open cluding single, discrete unincorporated video system or that portion of an open areas). Any provision of §§ 76.106 video system that operates or will op- through 76.108 that refers to a ‘‘cable erate within a separate and distinct system’’ shall apply to an open video community or municipal entity (in- system. cluding unincorporated communities (e) Any provision of § 76.109 that re- within unincorporated areas and in- fers to ‘‘cable television’’ or a ‘‘cable cluding single, discrete unincorporated system’’ shall apply to an open video areas). system. [61 FR 28708, June 5, 1996, as amended at 83 (f) Any provision of § 76.110 that re- FR 7630, Feb. 22, 2018] fers to a ‘‘community unit’’ shall apply to an open video system or that por- § 76.1509 Syndicated program exclu- sivity. tion of an open video system that is af- fected by this rule. (a) Sections 76.101 through 76.110 shall apply to open video systems in [83 FR 7630, Feb. 22, 2018] accordance with the provisions con- tained in this section. § 76.1510 Application of certain Title (b) Any provision of § 76.101 that re- VI provisions. fers to a ‘‘cable community unit’’ shall The following sections within part 76 apply to an open video system. shall also apply to open video systems: (c) Any provision of § 76.105 that re- §§ 76.71, 76.73, 76.75, 76.77, 76.79, 76.1702, fers to a ‘‘cable system operator’’ or and 76.1802 (Equal Employment Oppor- ‘‘cable television system operator’’ tunity Requirements); §§ 76.503 and shall apply to an open video system op- 76.504 (ownership restrictions); § 76.981 erator. Any provision of § 76.105 that re- (negative option billing); and §§ 76.1300, fers to a ‘‘cable system’’ or ‘‘cable tele- vision system’’ shall apply to an open 76.1301 and 76.1302 (regulation of car- video system except § 76.105(c) which riage agreements); § 76.610 (operation in shall apply to an open video system op- the frequency bands 108–137 and 225–400 erator. Open video system operators MHz—scope of application provided, shall make all notifications and infor- however, that these sections shall mation regarding exercise of syn- apply to open video systems only to dicated program exclusivity rights im- the extent that they do not conflict mediately available to all appropriate with this subpart S. Section 631 of the video programming provider on the Communications Act (subscriber pri- system. An open video system operator vacy) shall also apply to open video shall not be subject to sanctions for systems. any violation of the rules in §§ 76.101 through 76.110 by an unaffiliated pro- [83 FR 7630, Feb. 22, 2018]

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§ 76.1511 Fees. NOTE TO PARAGRAPH (a): ‘‘Material or infor- mation’’ as used in paragraph (a) of this sec- An open video system operator may tion means material or information that a be subject to the payment of fees on subscriber uses to actively select program- the gross revenues of the operator for ming at the point of program selection. the provision of cable service imposed (b) In accordance with paragraph (a) by a local franchising authority or of this section: other governmental entity, in lieu of (1) An open video system operator the franchise fees permitted under Sec- shall not discriminate in favor of itself tion 622 of the Communications Act. or its affiliate on any navigational de- Local governments shall have the au- vice, guide or menu; thority to assess and receive the gross (2) An open video system operator revenue fee. Gross revenues under this shall not omit television broadcast sta- paragraph means all gross revenues re- tions or other unaffiliated video pro- ceived by an open video system oper- gramming services carried on the open ator or its affiliates, including all reve- video system from any navigational de- nues received from subscribers and all vice, guide (electronic or paper) or carriage revenues received from unaf- menu; filiated video programming providers. (3) An open video system operator In addition gross revenues under this shall not restrict a video programming paragraph includes any advertising provider’s ability to use part of the revenues received by an open video sys- provider’s channel capacity to provide tem operator or its affiliates in connec- an individualized guide or menu to the tion with the provision of video pro- provider’s subscribers; gramming, where such revenues are in- (4) Where an open video system oper- cluded in the calculation of the incum- ator provides no navigational device, bent cable operator’s cable franchise guide or menu, its affiliate’s naviga- fee. Gross revenues does not include tional device, guide or menu shall be revenues collected by unaffiliated subject to the requirements of Section video programming providers, such as 653(b)(1)(E) of the Communications subscriber or advertising revenues. Any Act; gross revenues fee that the open video (5) An open video system operator system operator or its affiliate collects may permit video programming pro- from subscribers or video programming viders, including its affiliate, to de- providers shall be excluded from gross velop and use their own navigational revenues. An operator of an open video devices. If an open video system oper- system or any programming provider ator permits video programming pro- may designate that portion of a sub- viders, including its affiliate, to de- scriber’s bill attributable to the fee as velop and use their own navigational a separate item on the bill. An oper- devices, the operator must create an ator of an open video system may re- electronic menu or guide that all video cover the gross revenue fee from pro- programming providers must carry gramming providers on a proportional containing a non-discriminatory list- basis as an element of the carriage ing of programming providers or pro- rate. gramming services available on the system and informing the viewer how [61 FR 43177, Aug. 21, 1996] to obtain additional information on each of the services listed; § 76.1512 Programming information. (6) An open video system operator (a) An open video system operator must grant access, for programming shall not unreasonably discriminate in providers that do not wish to use their favor of itself or its affiliates with re- own navigational device, to the naviga- gard to material or information (in- tional device used by the open video cluding advertising) provided by the system operator or its affiliate; and operator to subscribers for the purpose (7) If an operator provides an elec- of selecting programming on the open tronic guide or menu that complies video system, or in the way such mate- with paragraph (b)(5) of this section, rial or information is provided to sub- its programming affiliate may create scribers. its own menu or guide without being

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subject to the requirements of Section tial defendant(s) to respond before fil- 653(b)(1)(E) of the Communications ing a complaint with the Commission. Act. (d) Contents of complaint. In addition (c) An open video system operator to the requirements of § 76.7 of this shall ensure that video programming part, an open video system complaint providers or copyright holders (or both) shall contain: are able to suitably and uniquely iden- (1) The type of entity that describes tify their programming services to sub- complainant (e.g., individual, private scribers. association, partnership, or corpora- (d) An open video system operator tion), the address and telephone num- shall transmit programming identifica- ber of the complainant, and the address tion without change or alteration if and telephone number of each defend- such identification is transmitted as ant; part of the programming signal. (2) If discrimination in rates, terms, [61 FR 28708, June 5, 1996, as amended at 61 and conditions of carriage is alleged, FR 43177, Aug. 21, 1996] documentary evidence shall be sub- mitted such as a preliminary carriage § 76.1513 Open video dispute resolu- rate estimate or a programming con- tion. tract that demonstrates a differential (a) Complaints. Any party aggrieved in price, terms or conditions between by conduct that it believes constitute a complainant and a competing video violation of the regulations set forth in programming provider or, if no pro- this part or in section 653 of the Com- gramming contract or preliminary car- munications Act (47 U.S.C. 573) may riage rate estimate is submitted with commence an adjudicatory proceeding the complaint, an affidavit signed by at the Commission to obtain enforce- an officer of complainant alleging that ment of the rules through the filing of a differential in price, terms or condi- a complaint. The Commission shall re- tions exists, a description of the nature solve any such dispute within 180 days and extent (if known or reasonably es- after the filing of a complaint. The timated by the complainant) of the dif- complaint shall be filed and responded ferential, together with a statement to in accordance with the procedures that defendant refused to provide any specified in § 76.7 of this part with the further specific comparative informa- following additions or changes. tion; (b) Alternate dispute resolution. An NOTE TO PARAGRAPH (d)(2): Upon request by open video system operator may not a complainant, the preliminary carriage rate provide in its carriage contracts with estimate shall include a calculation of the programming providers that any dis- average of the carriage rates paid by the un- pute must be submitted to arbitration, affiliated video programming providers re- mediation, or any other alternative ceiving carriage from the open video system method for dispute resolution prior to operator, including the information needed submission of a complaint to the Com- for any weighting of the individual carriage mission. rates that the operator has included in the (c) Notice required prior to filing of average rate. complaint. Any aggrieved party intend- (3) If a programming contract or a ing to file a complaint under this sec- preliminary carriage rate estimate is tion must first notify the potential de- submitted with the complaint in sup- fendant open video system operator port of the alleged violation, specific that it intends to file a complaint with references to the relevant provisions the Commission based on actions al- therein. leged to violate one or more of the pro- (4) The complaint must be accom- visions contained in this part or in Sec- panied by appropriate evidence dem- tion 653 of the Communications Act. onstrating that the required notifica- The notice must be in writing and tion pursuant to paragraph (c) of this must be sufficiently detailed so that its section has been made. recipient(s) can determine the specific (e) Answer. (1) Any open video system nature of the potential complaint. The operator upon which a complaint is potential complainant must allow a served under this section shall answer minimum of ten (10) days for the poten- within thirty (30) days of service of the

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complaint, unless otherwise directed (2) Additional sanctions. The remedies by the Commission. provided in paragraph (h)(1) of this sec- (2) An answer to a discrimination tion are in addition to and not in lieu complaint shall state the reasons for of the sanctions available under title V any differential in prices, terms or con- or any other provision of the Commu- ditions between the complainant and nications Act. its competitor, and shall specify the particular justification relied upon in [61 FR 28708, June 5, 1996, as amended at 61 FR 43178, Aug. 21, 1996; 62 FR 26239, May 13, support of the differential. Any docu- 1997; 64 FR 6575, Feb. 10, 1999] ments or contracts submitted pursuant to this paragraph may be protected as § 76.1514 Bundling of video and local proprietary pursuant to § 76.9 of this exchange services. part. An open video system operator may (f) Reply. Within twenty (20) days offer video and local exchange services after service of an answer, the com- for sale in a single package at a single plainant may file and serve a reply price, provided that: which shall be responsive to matters contained in the answer and shall not (a) The open video system operator, contain new matters. where it is the incumbent local ex- (g) Time limit on filing of complaints. change carrier, may not require that a Any complaint filed pursuant to this subscriber purchase its video service in subsection must be filed within one order to receive local exchange service; year of the date on which one of the and following events occurs (b) Any local exchange carrier offer- (1) The open video system operator ing such a package must impute the enters into a contract with the com- unbundled tariff rate for the regulated plainant that the complainant alleges service. to violate one or more of the rules con- [61 FR 28708, June 5, 1996, as amended at 61 tained in this part; or FR 43178, Aug. 21, 1996] (2) The open video system operator offers to carry programming for the Subpart T—Notices complainant pursuant to terms that the complainant alleges to violate one or more of the rules contained in this SOURCE: 65 FR 53617, Sept. 5, 2000, unless part, and such offer to carry program- otherwise noted. ming is unrelated to any existing con- tract between the complainant and the § 76.1600 Electronic delivery of no- tices. open video system operator; or (3) The complainant has notified an (a) Written information provided by open video system operator that it in- cable operators to subscribers or cus- tends to file a complaint with the Com- tomers pursuant to §§ 76.1601, 76.1602, mission based on a request for such op- 76.1603, 76.1604, 76.1618, and 76.1620 of erator to carry the complainant’s pro- this Subpart T, as well as subscriber gramming on its open video system privacy notifications required by cable that has been denied or operators, satellite providers, and open unacknowledged, allegedly in violation video systems pursuant to sections 631, of one or more of the rules contained in 338(i), and 653 of the Communications this part. Act, may be delivered electronically by (h) Remedies for violations—(1) Rem- email to any subscriber who has not edies authorized. Upon completion of opted out of electronic delivery under such adjudicatory proceeding, the paragraph (a)(3) of this section if the Commission shall order appropriate entity: remedies, including, if necessary, the (1) Sends the notice to the sub- requiring carriage, awarding damages scriber’s or customer’s verified email to any person denied carriage, or any address; combination of such sanctions. Such (2) Provides either the entirety of the order shall set forth a timetable for written information or a weblink to compliance, and shall become effective the written information in the notice; upon release. and

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(3) Includes, in the body of the no- email address for carriage-related ques- tice, a telephone number that is clearly tions that the station lists in its public and prominently presented to sub- file in accordance with §§ 73.3526 and scribers so that it is readily identifi- 73.3527 of this title, or in the case of able as an opt-out mechanism that will low power television stations and non- allow subscribers to continue to re- commercial educational translator sta- ceive paper copies of the written mate- tions that are entitled to such notices, rial. to the licensee’s email address (not a (b) For purposes of this section, a contact representative’s email address, verified email address is defined as: if different from the licensee’s email (1) An email address that the sub- address) as displayed publicly in the scriber has provided to the cable oper- Licensing and Management System ator (and not vice versa) for purposes (LMS) or the primary station’s car- of receiving communication; riage-related email address if the non- (2) An email address that the sub- commercial educational translator sta- scriber regularly uses to communicate tion does not have its own email ad- with the cable operator; or dress listed in LMS. (3) An email address that has been [83 FR 66157, Dec. 26, 2019, as amended at 85 confirmed by the subscriber as an ap- FR 16005, Mar. 20, 2020] propriate vehicle for the delivery of no- tices. § 76.1601 Deletion or repositioning of (c) Cable operators that provide writ- broadcast signals. ten Subpart T notices via paper copy A cable operator shall provide writ- may provide certain portions of the ten notice to any broadcast television § 76.1602 annual notices electronically, station at least 30 days prior to either to any subscriber who has not opted deleting from carriage or repositioning out of electronic delivery under para- that station. Such notification shall graphs (a)(3) or (c)(3) of this section, by also be provided to subscribers of the prominently displaying the following cable system. on the front or first page of the printed annual notice: [83 FR 7630, Feb. 22, 2018] (1) A weblink in a form that is short, simple, and easy to remember, leading § 76.1602 Customer service—general to written information required to be information. provided pursuant to § 76.1602(b)(2), (7), (a) A cable franchise authority may and (8); enforce the customer service standards (2) A weblink in a form that is short, set forth in paragraph (b) of this sec- simple, and easy to remember, leading tion against cable operators. The fran- to written information required to be chise authority must provide affected provided pursuant to § 76.1602(b)(5); and cable operators 90 days written notice (3) A telephone number that is read- of its intent to enforce standards. ily identifiable as an opt-out mecha- (b) The cable operator shall provide nism that will allow subscribers to con- written information on each of the fol- tinue to receive paper copies of the en- lowing areas at the time of installation tire annual notice. of service, at least annually to all sub- (d) If the conditions for electronic de- scribers, and at any time upon request: livery in paragraphs (a) and (b) of this (1) Products and services offered; section are not met, or if a subscriber (2) Prices and options for program- opts out of electronic delivery, the ming services and conditions of sub- written material must be delivered by scription to programming and other paper copy to the subscriber’s physical services; address. (3) Installation and service mainte- (e) After July 31, 2020, written infor- nance policies; mation provided by cable operators to (4) Instructions on how to use the broadcast stations pursuant to cable service; §§ 76.64(k), 76.1601, 76.1607, 76.1608, (5) Channel positions of programming 76.1609, and 76.1617 must be delivered carried on the system; and electronically to full-power and Class (6) Billing and complaint procedures, A television stations via email to the including the address and telephone

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number of the local franchise inflation, change in external costs or authority’s cable office. the addition/deletion of channels). (7) Effective May 1, 2011, any assessed When the change involves the addition fees for rental of navigation devices or deletion of channels, each channel and single and additional CableCARDs; added or deleted must be separately and, identified. For purposes of the carriage (8) Effective May 1, 2011, if such pro- of digital broadcast signals, the oper- vider includes equipment in the price ator need only identify for subscribers, of a bundled offer of one or more serv- the television signal added and not ices, the fees reasonably allocable to: whether that signal may be multi- (i) The rental of single and additional plexed during certain dayparts. CableCARDs; and (ii) The rental of operator-supplied (d) A cable operator shall provide navigation devices. written notice to a subscriber of any (c) Subscribers shall be advised of the increase in the price to be charged for procedures for resolution of complaints the basic service tier or associated about the quality of the television sig- equipment at least 30 days before any nal delivered by the cable system oper- proposed increase is effective. If the ator, including the address of the re- equipment is provided to the consumer sponsible officer of the local fran- without charge pursuant to § 76.630, the chising authority. cable operator shall provide written [65 FR 53617, Sept. 5, 2000, as amended at 76 notice to the subscriber no more than FR 40279, July 8, 2011; 83 FR 7631, Feb. 22, 60 days before the increase is effective. 2018] The notice should include the price to be charged, and the date that the new § 76.1603 Customer service—rate and charge will be effective, and the name service changes. and address of the local franchising au- (a) A cable franchise authority may thority. enforce the customer service standards (e) To the extent the operator is re- set forth in paragraph (b) of this sec- quired to provide notice of service and tion against cable operators. The fran- rate changes to subscribers, the oper- chise authority must provide affected ator may provide such notice using any cable operators 90 days written notice reasonable written means at its sole of its intent to enforce standards. discretion. (b) Customers will be notified of any changes in rates, programming services (f) Notwithstanding any other provi- or channel positions as soon as possible sion of part 76 of this chapter, a cable in writing. Notice must be given to operator shall not be required to pro- subscribers a minimum of thirty (30) vide prior notice of any rate change days in advance of such changes if the that is the result of a regulatory fee, change is within the control of the franchise fee, or any other fee, tax, as- cable operator. In addition, the cable sessment, or charge of any kind im- operator shall notify subscribers 30 posed by any Federal agency, State, or days in advance of any significant franchising authority on the trans- changes in the other information re- action between the operator and the quired by § 76.1602. subscriber. (c) In addition to the requirement of paragraph (b) of this section regarding NOTE 1 TO § 76.1603: Section 624(h) of the Communications Act, 47 U.S.C. 544(h), con- advance notification to customers of tains additional notification requirements any changes in rates, programming which a franchising authority may enforce. services or channel positions, cable NOTE 2 TO § 76.1603: Section 624(d)(3) of the systems shall give 30 days written no- Communications Act, 47 U.S.C. 544(d)(3), con- tice to both subscribers and local fran- tains additional notification provisions per- chising authorities before imple- taining to cable operators who offer a pre- menting any rate or service change. mium channel without charge to cable sub- Such notice shall state the precise scribers who do not subscribe to such pre- amount of any rate change and briefly mium channel. explain in readily understandable fash- ion the cause of the rate change (e.g.,

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NOTE 3 TO § 76.1603: Section 631 of the Com- § 76.1609 Non-duplication and syn- munications Act, 47 U.S.C. 551, contains ad- dicated exclusivity. ditional notification requirements per- taining to the protection of subscriber pri- Within 60 days following the provi- vacy. sion of service to 1,000 subscribers, the operator of each such system shall file [65 FR 53617, Sept. 5, 2000, as amended at 66 a notice to that effect with the Com- FR 16554, Mar. 26, 2001; 77 FR 67302, Dec. 10, 2012] mission, and serve a copy of that no- tice on every television station that § 76.1604 Charges for customer service would be entitled to exercise network changes. non-duplication protection or syn- dicated exclusivity protection against If a cable operator establishes a high- it. After July 31, 2020, in lieu of serving er charge for changes effected solely by paper copies on stations, the operator coded entry on a computer terminal or shall provide the required copies to sta- by other similarly simple methods, as tions by electronic delivery in accord- provided in § 76.980(d), the cable system ance with § 76.1600. must notify all subscribers in writing that they may be subject to such a [85 FR 16006, Mar. 20, 2020] charge for changing service tiers more than the specified number of times in § 76.1610 Change of operational infor- mation. any 12 month period. The Operator shall inform the Com- § 76.1607 Principal headend. mission on FCC Form 324 whenever there is a change of cable television A cable operator shall provide writ- system operator; change of legal name, ten notice to all stations carried on its change of the operator’s mailing ad- system pursuant to the must-carry dress or FCC Registration Number rules in this subpart at least 60 days (FRN); or change in the operational prior to any change in the designation status of a cable television system. No- of its principal headend. Such written tification must be done within 30 days notice shall be provided by certified from the date the change occurs and mail, except that after July 31, 2020, must include the following informa- notice shall be provided to stations by tion, as appropriate: electronic delivery in accordance with (a) The legal name of the operator § 76.1600. and whether the operator is an indi- [85 FR 16006, Mar. 20, 2020] vidual, private association, partner- ship, corporation, or government enti- § 76.1608 System technical integration ty. See § 76.5(cc). If the operator is a requiring uniform election of must- partnership, the legal name of the part- carry or retransmission consent ner responsible for communications status. with the Commission shall be supplied; A cable system that changes its tech- (b) The assumed name (if any) used nical configuration in such a way as to for doing business in each community; integrate two formerly separate cable (c) The physical address, including systems must give 90 days notice of its zip code, and e-mail address, if applica- intention to do so to any television ble, to which all communications are broadcast stations that have elected to be directed; must-carry status with respect to one (d) The nature of the operational sta- system and retransmission consent sta- tus change (e.g., operation terminated, tus with respect to the other. After merged with another system, inactive, July 31, 2020, such notice shall be deliv- deleted, etc.); ered to stations electronically in ac- (e) The names and FCC identifiers cordance with § 76.1600. If the system (e.g., CA 0001) of the system commu- and the station do not agree on a uni- nities affected. form election 45 days prior to integra- NOTE 1 TO § 76.1610: FCC system community tion, the cable system may require the identifiers are routinely assigned upon reg- station to make such a uniform elec- istration. They have been assigned to all re- tion 30 days prior to integration. ported system communities based on pre- vious Form 325 data. If a system community [85 FR 16006, Mar. 20, 2020] in operation prior to March 31, 1972, has not

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previously been assigned a system commu- § 76.1614 Identification of must-carry nity identifier, the operator shall provide the signals. following information in lieu of the identi- fier: Community Name, Community Type A cable operator shall respond in (i.e., incorporated town, unincorporated set- writing within 30 days to any written tlement, etc.), County Name, State, Operator request by any person for the identi- Legal Name, Operator Assumed Name for fication of the signals carried on its Doing Business in the Community, Operator system in fulfillment of the must-carry Mail Address, and Year and Month service requirements of § 76.56. The required was first provided by the physical system. written response may be delivered by [65 FR 53617, Sept. 5, 2000, as amended at 66 email, if the consumer used email to FR 47897, Sept. 14, 2001; 68 FR 27003, May 19, make the request or complaint directly 2003; 83 FR 7631, Feb. 22, 2018] to the cable operator, or if the con- sumer specifies email as the preferred § 76.1611 Political cable rates and delivery method in the request or com- classes of time. plaint. If a system permits a candidate to [83 FR 66158, Dec. 26, 2018] use its cablecast facilities, the system shall disclose to all candidates infor- § 76.1615 Sponsorship identification. mation about rates, terms, conditions (a) When a cable television system and all value-enhancing discount privi- operator engaged in origination leges offered to commercial adver- cablecasting presents any matter for tisers. Systems may use reasonable dis- which money, service, or other valu- cretion in making the disclosure; pro- able consideration is either directly or vided, however, that the disclosure in- indirectly paid or promised to, or cludes, at a minimum, the following in- charged or accepted by such cable tele- formation: vision system operator, the cable tele- (a) A description and definition of vision system operator, at the time of each class of time available to com- the cablecast, shall announce that such mercial advertisers sufficiently com- matter is sponsored, paid for, or fur- nished, either in whole or in part, and plete enough to allow candidates to by whom or on whose behalf such con- identify and understand what specific sideration was supplied: Provided, how- attributes differentiate each class; ever, that ‘‘service or other valuable (b) A description of the lowest unit consideration’’ shall not include any charge and related privileges (such as service or property furnished either priorities against preemption and without or at a nominal charge for use make goods prior to specific deadlines) on, or in connection with, a cablecast for each class of time offered to com- unless it is so furnished in consider- mercial advertisers; ation for an identification of any per- (c) A description of the system’s son, product, service, trademark, or method of selling preemptible time brand name beyond an identification based upon advertiser demand, com- reasonably related to the use of such monly known as the ‘‘current selling service or property on the cablecast. level,’’ with the stipulation that can- For the purposes of this section, the didates will be able to purchase at term ‘‘sponsored’’ shall be deemed to these demand-generated rates in the have the same meaning as ‘‘paid for.’’ same manner as commercial adver- In the case of any political advertise- tisers; ment cablecast under this paragraph (d) An approximation of the likeli- that concerns candidates for public of- fice, the sponsor shall be identified hood of preemption for each kind of with letters equal to or greater than preemptible time; and four (4) percent of the vertical picture (e) An explanation of the system’s height that air for not less than four (4) sales practices, if any, that are based seconds. on audience delivery, with the stipula- (b) Each cable television system op- tion that candidates will be able to erator engaged in origination purchase this kind of time, if available cablecasting shall exercise reasonable to commercial advertisers. diligence to obtain from employees,

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and from other persons with whom the ucts or services, an announcement system operator deals directly in con- stating the sponsor’s corporate or nection with any matter for trade name, or the name of the spon- cablecasting, information to enable sor’s product, when it is clear that the such system operator to make the an- mention of the name of the product nouncement required by this section. constitutes a sponsorship identifica- (c) In the case of any political origi- tion, shall be deemed sufficient for the nation cablecast matter or any origina- purposes of this section and only one tion cablecast matter involving the such announcement need be made at discussion of public controversial any time during the course of the ca- issues for which any film, record, tran- blecast. scription, talent, script, or other mate- (f) The announcement otherwise re- rial or service of any kind is furnished, quired by this section is waived with either directly or indirectly, to a cable respect to the origination cablecast of television system operator as an in- ‘‘want ad’’ or classified advertisements ducement for cablecasting such matter, sponsored by an individual. The waiver an announcement shall be made both granted in this paragraph shall not ex- at the beginning and conclusion of such tend to a classified advertisement or cablecast on which such material or want ad sponsorship by any form of service is used that such film, record, business enterprise, corporate or other- transcription, talent, script, or other wise. material or service has been furnished (g) The announcements required by to such cable television system oper- this section are waived with respect to ator in connection with the trans- feature motion picture film produced mission of such cablecast matter: Pro- initially and primarily for theatre ex- vided, however, that in the case of any hibition. cablecast of 5 minutes’ duration or NOTE TO § 76.1615(g): The waiver heretofore less, only one such announcement need granted by the Commission in its Report and be made either at the beginning or con- Order, adopted November 16, 1960 (FCC 60– clusion of the cablecast. 1369; 40 FCC 95), continues to apply to pro- (d) The announcement required by grams filmed or recorded on or before June this section shall, in addition to stat- 20, 1963, when § 73.654(e) of this chapter, the ing the fact that the origination predecessor television rule, went into effect. cablecasting matter was sponsored, (h) Commission interpretations in paid for or furnished, fully and fairly connection with the provisions of the disclose the true identity of the person sponsorship identification rules for the or persons, or corporation, committee, broadcasting services are contained in association or other unincorporated the Commission’s Public Notice, enti- group, or other entity by whom or on tled ‘‘Applicability of Sponsorship whose behalf such payment is made or Identification Rules,’’ dated May 6, 1963 promised, or from whom or on whose (40 FCC 141), as modified by Public No- behalf such services or other valuable tice, dated April 21, 1975 (FCC 75–418). consideration is received, or by whom Further interpretations are printed in the material or services referred to in full in various volumes of the Federal paragraph (c) of this section are fur- Communications Commission Reports. nished. Where an agent or other person The interpretations made for the or entity contracts or otherwise makes broadcasting services are equally appli- arrangements with a cable television cable to origination cablecasting. system operator on behalf of another, and such fact is known or by the exer- § 76.1616 Contracts with local ex- cise of reasonable diligence, as speci- change carriers. fied in paragraph (b) of this section, Within 10 days of final execution of a could be known to the system operator, contract permitting a local exchange the announcement shall disclose the carrier to use that part of the trans- identity of the person or persons or en- mission facilities of a cable system ex- tity on whose behalf such agent is act- tending from the last multi-user ter- ing instead of the name of such agent. minal to the premises of the end use, (e) In the case of an origination ca- the parties shall submit a copy of such blecast advertising commercial prod- contract, along with an explanation of

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how such contract is reasonably lim- § 76.1619 Information on subscriber ited in scope and duration, to the Com- bills. mission for review. The parties shall (a) Effective July 1, 1993, bills must serve a copy of this submission on the be clear, concise and understandable. local franchising authority, along with Bills must be fully itemized, with a notice of the local franchising authority’s right to file comments with itemizations including, but not limited the Commission consistent with § 76.7. to, basic and premium service charges and equipment charges. Bills will also § 76.1617 Initial must-carry notice. clearly delineate all activity during (a) Within 60 days of activation of a the billing period, including optional cable system, a cable operator must charges, rebates and credits. notify all qualified NCE stations of its (b) In case of a billing dispute, the designated principal headend by cer- cable operator must respond to a writ- tified mail, except that after July 31, ten complaint from a subscriber within 2020, notice shall be provided by elec- 30 days. The required response may be tronic delivery in accordance with delivered by email, if the consumer § 76.1600. used email to make the request or com- (b) Within 60 days of activation of a plaint directly to the cable operator, or cable system, a cable operator must if the consumer specifies email as the notify all local commercial and NCE preferred delivery method in the re- stations that may not be entitled to quest or complaint. carriage because they either: (c) A cable franchise authority may (1) Fail to meet the standards for de- enforce the customer service standards livery of a good quality signal to the set forth in this section against cable cable system’s principal headend, or operators. The franchise authority (2) May cause an increased copyright must provide affected cable operators liability to the cable system. 90 days written notice of its intent to (c) Within 60 days of activation of a enforce standards. cable system, a cable operator must send a copy of a list of all broadcast [65 FR 53617, Sept. 5, 2000, as amended at 83 television stations carried by its sys- FR 66158, Dec. 26, 2018] tem and their channel positions to all local commercial and noncommercial § 76.1620 Availability of signals. television stations, including those not If a cable operator authorizes sub- designated as must-carry stations and scribers to install additional receiver those not carried on the system. Such connections, but does not provide the written information shall be provided subscriber with such connections, or by certified mail, except that after with the equipment and materials for July 31, 2020, such information shall be such connections, the operator shall provided by electronic delivery in ac- notify such subscribers of all broadcast cordance with § 76.1600. stations carried on the cable system [65 FR 53617, Sept. 5, 2000, as amended at 85 which cannot be viewed via cable with- FR 16006, Mar. 20, 2020] out a converter box and shall offer to sell or lease such a converter box to § 76.1618 Basic tier availability. such subscribers. Such notification A cable operator shall provide writ- must be provided by June 2, 1993, and ten notification to subscribers of the annually thereafter and to each new availability of basic tier service to new subscriber upon initial installation. subscribers at the time of installation. The notice, which may be included in This notification shall include the fol- routine billing statements, shall iden- lowing information: tify the signals that are unavailable (a) That basic tier service is avail- without an additional connection, the able; manner for obtaining such additional (b) The cost per month for basic tier connection and instructions for instal- service; lation. (c) A list of all services included in the basic service tier.

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§§ 76.1621–76.1622 [Reserved] (9) Compatibility with consumer elec- tronics equipment. Cable system opera- Subpart U—Documents to be tors generally may not scramble or otherwise encrypt signals carried on Maintained for Inspection the basic service tier. Copies of re- quests for waivers of this prohibition SOURCE: 65 FR 53621, Sept. 5, 2000, unless must be available in the public inspec- otherwise noted. tion file in accordance with § 76.630. (b) Information available to the § 76.1700 Records to be maintained by cable system operators. franchisor. These records must be made available by cable system operators to (a) Public inspection file. The fol- local franchising authorities on reason- lowing records must be placed in the able notice and during regular business online public file hosted by the Com- hours, except as indicated in paragraph mission, except as indicated in para- (d) of this section. graph (d) of this section. (1) Proof-of-performance test data. The (1) Political file. All requests for cable- proof of performance tests shall be cast time made by or on behalf of a made available upon request in accord- candidate for public office and all other ance with § 76.1704; information required to be maintained (2) Complaint resolution. Cable system pursuant to § 76.1701; operators shall establish a process for (2) Equal employment opportunity. All resolving complaints from subscribers EEO materials described in § 76.1702 ex- about the quality of the television sig- cept for any EEO program annual re- nal delivered. Aggregate data based ports, which the Commission will link upon these complaints shall be made to the electronic version of all systems’ available for inspection in accordance public inspection files; with § 76.1713. (3) Commercial records on children’s (c) Information available to the Com- programs. Sufficient records to verify mission. These records must be made compliance with § 76.225 in accordance available by cable system operators to with § 76.1703; the Commission on reasonable notice (4) [Reserved] and during regular business hours, ex- (5) Leased access. If a cable operator cept as indicated in paragraph (d) of adopts and enforces written policy re- this section. garding indecent leased access pro- (1) Proof-of-performance test data. The gramming, such a policy shall be pub- proof of performance tests shall be lished in accordance with § 76.1707; made available upon request in accord- (6) Availability of signals. The operator ance with § 76.1704; of every cable television system shall (2) Signal leakage logs and repair maintain a list of all broadcast tele- records. Cable operators shall maintain vision stations carried by its system in a log showing the date and location of fulfillment of the must-carry require- each leakage source in accordance with ments in accordance with § 76.1709; § 76.1706; (7) Operator interests in video program- (3) Emergency alert system and activa- ming. Cable operators shall maintain tions. Every cable system shall keep a records regarding the nature and ex- record of each test and activation of tent of their attributable interests in the Emergency Alert System (EAS). all video programming services as well The test is performed pursuant to the as information regarding their carriage procedures and requirements of part 11 of such vertically integrated video pro- of this chapter and the EAS Operating gramming services on cable systems in Handbook. The records are kept in ac- which they have an attributable inter- cordance with part 11 of this chapter ests in accordance with § 76.1710; and § 76.1711; (8) Sponsorship identification. When- (4) Complaint resolution. Cable system ever sponsorship announcements are operators shall establish a process for omitted pursuant to § 76.1615(f) of Sub- resolving complaints from subscribers part T, the cable television system op- about the quality of the television sig- erator shall maintain a list in accord- nal delivered. Aggregate data based ance with § 76.1715; upon these complaints shall be made

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available for inspection in accordance on the Commission’s website from the with § 76.1713; home page of its own website, if the (5) Subscriber records and public inspec- system has a website, and provide con- tion file. The operator of a cable tele- tact information on its website for a vision system shall make the system, system representative who can assist its public inspection file, and its any person with disabilities with issues records of subscribers available for in- related to the content of the public spection upon request in accordance files. A system also is required to in- with § 76.1716. clude in the online public file the ad- (d) Exceptions to the public inspection dress of the system’s local public file, file requirements. The operator of every if the system is exempt from the online cable television system having fewer public file requirement pursuant to than 1,000 subscribers is exempt from paragraph (d) of this section but opts the online public file and from the pub- to use it in part while retaining certain lic record requirements contained in documents in the local file that are not § 76.1701 (political file); § 76.1702 (EEO available in the Commission’s online records available for public inspection); file, and the name, phone number, and § 76.1703 (commercial records for chil- email address of the system’s des- dren’s programming); § 76.1704 (proof-of- ignated contact for questions about the performance test data); § 76.1706 (signal public file. In addition, a system must leakage logs and repair records); provide on the online public file a list § 76.1714 (Familiarity with FCC rules); of the five digit ZIP codes served by and § 76.1715 (sponsorship identifica- the system. To the extent this section tion). refers to the local public inspection (e) Location of records. For cable tele- file, it refers to the public file of a vision systems exempt from the online physical system, which is either main- public file requirement pursuant to tained at the location described in paragraph (d) of this section, public file paragraph (e) of this section or on the material that continues to be retained Commission’s website, depending upon at the system shall be retained in a where the documents are required to be public inspection file maintained at maintained under the Commission’s the office in the community served by rules. the system that the system operator (g) Reproduction of records. Copies of maintains for the ordinary collection any material in the public inspection of subscriber charges, resolution of file that is not also available in the subscriber complaints, and other busi- Commission’s online file shall be avail- ness and, if the system operator does able for machine reproduction upon re- not maintain such an office in the com- quest made in person, provided the re- munity, at any accessible place in the questing party shall pay the reasonable communities served by the system cost of reproduction. Requests for ma- (such as a public registry for docu- chine copies shall be fulfilled at a loca- ments or an attorney’s office). Public tion specified by the system operator, file locations will be open at least dur- within a reasonable period of time, ing normal business hours and will be which in no event shall be longer than conveniently located. The public in- seven days. The system operator is not spection file shall be available for pub- required to honor requests made by lic inspection at any time during reg- mail but may do so if it chooses. ular business hours for the facility [81 FR 10125, Feb. 29, 2016, as amended at 82 where they are kept. All or part of the FR 11412, Feb. 23, 2017; 83 FR 13683, Mar. 30, public inspection file may be main- 2018; 84 FR 18409, May 1, 2019; 85 FR 21078, tained in a computer database, as long Apr. 16, 2020] as a computer terminal capable of ac- cessing the database is made available, § 76.1701 Political file. at the location of the file, to members (a) Every cable television system of the public who wish to review the shall keep and permit public inspection file. of a complete and orderly record (polit- (f) Links and contact and geographic ical file) of all requests for cablecast information. A system must provide a time made by or on behalf of a can- link to the public inspection file hosted didate for public office, together with

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an appropriate notation showing the port is due to be filed and shall be re- disposition made by the system of such tained for a period of five years. A requests, and the charges made, if any, headquarters employment unit file and if the request is granted. The ‘‘disposi- a file containing a consolidated set of tion’’ includes the schedule of time all documents pertaining to the other purchased, when spots actually aired, employment units of a multichannel the rates charged, and the classes of video programming distributor that op- time purchased. erates multiple units shall be main- (b) When free time is provided for use tained in the online public inspection by or on behalf of candidates, a record file(s), maintained on the Commis- of the free time provided shall be sion’s database, for every cable system placed in the political file. associated with the headquarters em- (c) All records required by this para- ployment unit. graph shall be placed in the political (b) The following equal employment file as soon as possible and shall be re- opportunity program information shall tained for a period of two years. As be included annually in the unit’s pub- soon as possible means immediately lic file, and on the unit’s web site, if it absent unusual circumstances. has one, at the time of the filing of its (d) Where origination cablecasting FCC Form 396–C: material is a political matter or mat- (1) A list of all full-time vacancies ter involving the discussion of a con- filled by the multichannel video pro- troversial issue of public importance gramming distributor employment and a corporation, committee, associa- unit during the preceding year, identi- tion or other unincorporated group, or fied by job title; other entity is paying for or furnishing (2) For each such vacancy, the re- the matter, the system operator shall, cruitment source(s) utilized to fill the in addition to making the announce- vacancy (including, if applicable, orga- ment required by § 76.1615, require that nizations entitled to notification pur- a list of the chief executive officers or suant to § 76.75(b)(1)(ii) of this section, members of the executive committee which should be separately identified), or of the board of directors of the cor- identified by name, address, contact poration, committee, association or person and telephone number; other unincorporated group, or other (3) The recruitment source that re- entity shall be made available for pub- ferred the hiree for each full-time va- lic inspection at the local office of the cancy during the preceding year; system. Such lists shall be kept and (4) Data reflecting the total number made available for two years. of persons interviewed for full-time va- [65 FR 53621, Sept. 5, 2000, as amended at 83 cancies during the preceding year and FR 7631, Feb. 22, 2018] the total number of interviewees re- ferred by each recruitment source uti- § 76.1702 Equal employment oppor- lized in connection with such vacan- tunity. cies; and (a) Every employment unit with six (5) A list and brief description of the or more full-time employees shall initiatives undertaken pursuant to maintain for public inspection a file § 76.75(b)(2) during the preceding year, containing copies of all EEO program if applicable. annual reports filed with the Commis- [68 FR 693, Jan. 7, 2003, as amended at 81 FR sion pursuant to § 76.77 and the equal 10126, Feb. 29, 2016] employment opportunity program in- formation described in paragraph (b) of § 76.1703 Commercial records on chil- this section. These materials shall be dren’s programs. placed in the Commission’s online pub- Cable operators airing children’s pro- lic inspection file(s), maintained on the gramming must maintain records suffi- Commission’s database, for each cable cient to verify compliance with § 76.225 system associated with the employ- and make such records available to the ment unit. These materials shall be public. Such records must be main- placed in the Commission’s online pub- tained for a period sufficient to cover lic inspection file annually by the date the limitations period specified in 47 that the unit’s EEO program annual re- U.S.C. 503(b)(6)(B).

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§ 76.1704 Proof-of-performance test community of license, broadcast chan- data. nel number, cable channel number, and (a) The proof of performance tests re- in the case of a noncommercial edu- quired by § 76.601 shall be maintained cational broadcast station, whether on file at the operator’s local business that station was carried by the cable office for at least five years. The test system on March 29, 1990. data shall be made available for inspec- (b) Such records must be maintained tion by the Commission or the local in accordance with the provisions of franchiser, upon request. § 76.1700. (b) The provisions of paragraph (a) of (c) A cable operator shall respond in writing within 30 days to any written this section shall not apply to any request by any person for the identi- cable television system having fewer fication of the signals carried on its than 1,000 subscribers, subject to the system in fulfillment of the require- requirements of § 76.601(d). ments of § 76.56. NOTE TO § 76.1704: If a signal leakage log is being used to meet proof of performance test [65 FR 53621, Sept. 5, 2000, as amended at 81 recordkeeping requirements in accordance FR 10126, Feb. 29, 2016] with § 76.601, such a log must be retained for the period specified in § 76.601(d). § 76.1710 Operator interests in video programming. § 76.1705 [Reserved] (a) Cable operators are required to maintain records in their public file for § 76.1706 Signal leakage logs and re- a period of three years regarding the pair records. nature and extent of their attributable Cable operators shall maintain a log interests in all video programming showing the date and location of each services as well as information regard- leakage source identified pursuant to ing their carriage of such vertically in- § 76.614, the date on which the leakage tegrated video programming services was repaired, and the probable cause of on cable systems in which they have an the leakage. The log shall be kept on attributable interest. These records file for a period of two years and shall must be made available to local fran- be made available to authorized rep- chise authorities, the Commission, or resentatives of the Commission upon members of the public on reasonable request. notice and during regular business hours. NOTE TO § 76.1705: If a signal leakage log is being used to meet proof of performance test (b) ‘‘Attributable interest’’ shall be recordkeeping requirements in accordance defined by reference to the criteria set with § 76.601, such a log must be retained for forth in the Notes to § 76.501. the period specified in § 76.601(d). § 76.1711 Emergency alert system § 76.1707 Leased access. (EAS) tests and activation. If a cable operator adopts and en- Every cable system of 1,000 or more forces a written policy regarding inde- subscribers shall keep a record of each cent leased access programming pursu- test and activation of the Emergency ant to § 76.701, such a policy will be Alert System (EAS) procedures pursu- considered published pursuant to that ant to the requirement of part 11 of rule by inclusion of the written policy this chapter and the EAS Operating in the operator’s public inspection file. Handbook. These records shall be kept for three years. § 76.1708 [Reserved] § 76.1712 Open video system (OVS) re- § 76.1709 Availability of signals. quests for carriage. (a) The operator of every cable tele- An open video system operator shall vision system shall maintain for public maintain a file of qualified video pro- inspection a file containing a list of all gramming providers who have re- broadcast television stations carried by quested carriage or additional carriage its system in fulfillment of the must- since the previous allocation of capac- carry requirements pursuant to § 76.56. ity. Information regarding how a video Such list shall include the call sign, programming provider should apply for

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carriage must be made available upon Publishing Office, Washington, DC request. 20401, at nominal cost, or accessed on- line at https://www.ecfr.gov or https:// NOTE 1 TO § 76.1712: An open video system operator will not be required to comply with www.gpo.gov/fdsys/browse/ the regulations contained in this section if collectionCfr.action?collectionCode=CFR. there is no open capacity to be allocated at [65 FR 53621, Sept. 5, 2000, as amended at 83 the end of the three year period described in FR 13683, Mar. 30, 2018] § 76.1503(c)(2)(ii).

§ 76.1713 Complaint resolution. § 76.1715 Sponsorship identification. Cable system operators shall estab- Whenever sponsorship announce- lish a process for resolving complaints ments are omitted pursuant to from subscribers about the quality of § 76.1615(f) of subpart T, the cable tele- the television signal delivered. Aggre- vision system operator shall observe gate data based upon these complaints the following conditions: shall be made available for inspection (a) Maintain a list showing the name, by the Commission and franchising au- address, and (where available) the tele- thorities, upon request. These records phone number of each advertiser; shall be maintained for at least a one- (b) Make this list available to mem- year period. bers of the public who have a legiti- mate interest in obtaining the informa- NOTE 1 TO § 76.1713: Prior to being referred to the Commission, complaints from sub- tion contained in the list. scribers about the quality of the television signal delivered must be referred to the local § 76.1716 Subscriber records and pub- franchising authority and the cable system lic inspection file. operator. The operator of a cable television system shall make the system, its pub- § 76.1714 Familiarity with FCC rules. lic inspection file, and its records of (a) The operator of a cable television subscribers available for inspection system is expected to be familiar with upon request by an authorized rep- the rules governing cable television resentative of the Commission at any systems and, if subject to the Emer- reasonable hour. gency Alert System (EAS) rules con- tained in part 11 of this chapter, the § 76.1717 Compliance with technical EAS rules. Copies of the Commission’s standards. rules may be obtained from the Super- Each system operator shall be pre- intendent of Documents, Government pared to show, on request by an author- Publishing Office, Washington, DC ized representative of the Commission 20401, at nominal cost, or accessed on- or the local franchising authority, that line at https://www.ecfr.gov or https:// the system does, in fact, comply with www.gpo.gov/fdsys/browse/ the technical standards rules in part collectionCfr.action?collectionCode=CFR. 76, subpart K. Copies of the EAS Operating Handbook may be accessed online at https:// www.fcc.gov/general/eas-test-reporting- Subpart V—Reports and Filings system. (b) The provisions of paragraph (a) of SOURCE: 65 FR 53623, Sept. 5, 2000, unless this section are not applicable to any otherwise noted. cable television system serving fewer than 1000 subscribers. § 76.1800 Additional reports and fil- (c) Both the licensee of a cable tele- ings. vision relay station (CARS) and the op- In addition to the reports and filings erator or operators responsible for the required by this subpart, cable opera- proper operation of the station are ex- tors must provide all notifications pected to be familiar with the rules which are required by § 1.1155 of this governing cable television relay sta- chapter (annual regulatory user fees). tions. Copies of the Commission’s rules In addition, all cable systems subject may be obtained from the Super- to rate regulation must file FCC rate intendent of Documents, Government forms pursuant to the Commission’s

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rate rules contained in subparts N and ment was not signed by the operator. R of this part. In addition, if any matter is stated on the basis of the attorney’s belief only NOTE 1 TO § 76.1800: Cable operators are re- quired by the Copyright Act to make semi- (rather than the attorney’s knowl- annual filings of Statements of Account with edge), the attorney shall separately set the Licensing Division of the Copyright Of- forth the reasons for believing that fice, Library of Congress, Washington, DC such statements are true. 20557. NOTE 2 TO § 76.1800: The Commission may [68 FR 27003, May 19, 2003] require certain financial information to be submitted pursuant to Section 623(g) of the § 76.1802 Annual employment report. Communications Act, 47 U.S.C. 543(g). Each employment unit with six or more full-time employees shall file an § 76.1801 Registration statement. annual employment report on FCC (a) A system community unit shall Form 395–A with the Commission on or be authorized to commence operation before September 30 of each year. only after filing with the Commission NOTE TO § 76.1802: Data concerning the gen- the following information on FCC der, race and ethnicity of an employment Form 322. unit’s workforce collected in the annual em- (1) The legal name of the operator, ployment report will be used only for pur- entity identification or social security poses of analyzing industry trends and mak- number, and whether the operator is an ing reports to Congress. Such data will not individual, private association, part- be used for the purpose of assessing any as- pect of an individual employment unit’s nership, or corporation. If the operator compliance with our EEO rules for multi- is a partnership, the legal name of the channel video program distributors. partner responsible for communica- tions with the Commission shall be [69 FR 34954, June 23, 2004] supplied; § 76.1803 Signal leakage monitoring. (2) The assumed name (if any) used for doing business in the community; MVPDs subject to § 76.611 must sub- (3) The mailing address, including zip mit the results of ground based meas- code; e-mail address, if applicable; and urements derived in accordance with telephone number to which commu- § 76.611(a)(1) or airspace measurements nications are to be directed; derived in accordance with § 76.611(a)(2), (4) The month and year the system including a description of the method began service to subscribers; by which compliance with basic signal (5) The name of the community or leakage criteria is achieved and the area served and the county in which it method of calibrating the measure- is located; ment equipment. This information (6) The television broadcast signals shall be provided to the Commission to be carried which previously have not each calendar year via FCC Form 320. been certified or registered; and [68 FR 27003, May 19, 2003] (7) The FCC Registration Number (FRN). § 76.1804 Aeronautical frequencies: (b) Registration statements, FCC leakage monitoring (CLI). Form 322, shall be signed by the oper- An MVPD shall notify the Commis- ator; by one of the partners, if the op- sion before transmitting any digital erator is a partnership; by an officer, if signal with average power exceeding the operator is a corporation; by a 10¥5 watts across a 30 kHz bandwidth in member who is an officer, if the oper- a 2.5 millisecond time period, or for ator is an unincorporated association; other signal types, any carrier of other or by any duly authorized employee of signal component with an average the operator. power level across a 25 kHz bandwidth (c) Registration statements, FCC in any 160 microsecond time period Form 322, may be signed by the opera- equal to or greater than 10¥4 watts at tor’s attorney in case of the operator’s any point in the cable distribution sys- physical disability or of his absence tem on any new frequency or fre- from the United States. The attorney quencies in the aeronautical radio fre- shall in that event separately set forth quency bands (108–137 MHz, 225–400 the reasons why the registration state- MHz). The notification shall be made

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on FCC Form 321. Such notification Form 321 was not signed by the oper- shall include: ator. In addition, if any matter is stat- (a) Legal name and local address of ed on the basis of the attorney’s belief the MVPD; only (rather than the attorney’s (b) The names and FCC identifiers knowledge), the attorney shall sepa- (e.g., CA0001) of the system commu- rately set forth the reasons for believ- nities affected, for a cable system, and ing that such statements are true. the name and FCC identifier (e.g., (j) The FCC Registration Number CAB901), for other MVPDs; (FRN). (c) The names and telephone numbers [68 FR 27003, May 19, 2003, as amended at 83 of local system officials who are re- FR 7631, Feb. 22, 2018] sponsible for compliance with §§ 76.610 through 76.616 and § 76.1803; § 76.1805 Alternative rate regulation (d) Carrier frequency, tolerance, and agreements. type of modulation of all carriers in Small systems owned by small cable the aeronautical bands at any location companies must file with the Commis- in the cable distribution system and sion a copy of any operative alter- the maximum of those average powers native rate regulation agreement en- measured over a 2.5 kHz bandwidth as tered into with a local franchising au- described in the introductory para- thority pursuant to § 76.934(g), within 30 graph to this rule section; days after its effective date. (e) The geographical coordinates (in NAD83) of a point near the center of the system, together with the distance Subpart W—Encoding Rules (in kilometers) from the designated point to the most remote point of the SOURCE: 68 FR 66735, Nov. 28, 2003, unless plant, existing or planned, that defines otherwise noted. a circle enclosing the entire plant; (f) Certification that the monitoring § 76.1901 Applicability. procedure used is in compliance with (a) Each multi-channel video pro- § 76.614 or description of the routine gramming distributor shall comply monitoring procedure to be used; and with the requirements of this subpart. (g) For MVPDs subject to § 76.611, the (b) This subpart shall not apply to cumulative signal leakage index de- distribution of any content over the rived under § 76.611(a)(1) or the results Internet, nor to a multichannel video of airspace measurements derived programming distributor’s operations under § 76.611(a)(2), including a descrip- via cable modem or DSL. tion of the method by which compli- (c) With respect to cable system op- ance with the basic signal leakage cri- erators, this subpart shall apply only teria is achieved and the method of to cable services. This subpart shall calibrating the measurement equip- not apply to cable modem services, ment. whether or not provided by a cable sys- (h) Aeronautical Frequency Notifica- tem operator or affiliate. tions, FCC Form 321, shall be person- ally signed either electronically or § 76.1902 Definitions. manually by the operator; by one of (a) Commercial advertising messages the partners, if the operator is a part- shall mean, with respect to any serv- nership; by an officer, if the operator is ice, program, or schedule or group of a corporation; by a member who is an programs, commercial advertising mes- officer, if the operator is an unincor- sages other than: porated association; or by any duly au- (1) Advertising relating to such serv- thorized employee of the operator. ice itself or the programming con- (i) Aeronautical Frequency Notifica- tained therein, tions, FCC Form 321, may be signed by (2) Interstitial programming relating the operator’s attorney in case of the to such service itself or the program- operator’s physical disability or of his ming contained therein, or absence from the United States. The (3) Any advertising which is dis- attorney shall in that event separately played concurrently with the display of set forth the reasons why the FCC any part of such program(s), including

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but not limited to ‘‘bugs,’’ ‘‘frames’’ (i) Defined business model shall mean and ‘‘banners.’’ video-on-demand, pay-per view, pay (b) Commercial audiovisual content television transmission, non-premium shall mean works that consist of a se- subscription television, free condi- ries of related images which are intrin- tional access delivery and unencrypted sically intended to be shown by the use broadcast television. of machines, or devices such as projec- (j) Encode shall mean, in the trans- tors, viewers, or electronic equipment, mission of commercial audiovisual con- together with accompanying sounds, if tent, to pass, attach, embed, or other- any, regardless of the nature of the ma- wise apply to, associate with, or allow terial objects, such as films or tapes, in to persist in or remain associated with which are embodied, trans- such content, data or information mitted by a covered entity and that which when read or responded to in a are: covered device has the effect of pre- (1) Not created by the user of a cov- venting, pausing, or limiting copying, ered product, and or constraining the resolution of a pro- (2) Offered for transmission, either gram when output from the covered de- generally or on demand, to subscribers vice. or purchasers or the public at large or (k) Encoding rules shall mean the re- otherwise for commercial purposes, not quirements or prohibitions describing or limiting encoding of audiovisual uniquely to an individual or a small, content as set forth in this subpart. private group. (l) Free conditional access delivery (c) Commercially adopted access control shall mean a delivery of a service, pro- shall mean any commercially method gram, or schedule or group of programs adopted access control method includ- via a commercially-adopted access con- ing digitally controlled analog scram- trol method, where viewers are not bling systems, whether now or here- charged any fee (other than govern- after in commercial use. ment-mandated fees) for the reception (d) Copy never shall mean, with re- or viewing of the programming con- spect to commercial audiovisual con- tained therein, other than unencrypted tent, the encoding of such content so broadcast television. as to signal that such content may not (m) Non-premium subscription tele- to be copied by a covered product. vision shall mean a service, or schedule (e) Copy one generation shall mean, or group of programs (which may be of- with respect to commercial audiovisual fered for sale together with other serv- content, the encoding of such content ices, or schedule or group of programs), so as to permit a first generation of for which subscribers are charged a copies to be made by a covered product subscription fee for the reception or but not copies of such first generation viewing of the programming contained of copies. therein, other than , sub- (f) Copy no more shall mean, with re- scription-on-demand and unencrypted spect to commercial audiovisual con- broadcast television. By way of exam- tent, the encoding of such content so ple, ‘‘basic cable service’’ and ‘‘ex- as to reflect that such content is a first tended basic cable service’’ (other than generation copy of content encoded as unencrypted broadcast television) are copy one generation and no further ‘‘non-premium subscription tele- copies are permitted. vision.’’ (g) Covered product shall mean a de- (n) Pay-per-view shall mean a delivery vice used by consumers to access com- of a single program or a specified group mercial audiovisual content offered by of programs, as to which each such sin- a covered entity (excluding delivery gle program is generally uninterrupted via cable modem or the Internet); and by commercial advertising messages any device to which commercial audio- and for which recipients are charged a visual content so delivered from such separate fee for each program or speci- covered product may be passed, di- fied group of programs. The term pay- rectly or indirectly. per-view shall also include delivery of a (h) Covered entity shall mean any en- single program for which multiple tity that is subject to this subpart. start times are made available at time

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intervals which are less than the run- (s) Unencrypted broadcast television ning time of such program as a whole. means any service, program, or sched- If a given delivery qualifies both as ule or group of programs, that is a sub- pay-per-view and a pay television stantially simultaneous retransmission transmission, then, for purposes of this of a broadcast transmission (i.e., an subpart, such delivery shall be deemed over-the-air transmission for reception pay-per-view rather than a pay tele- by the general public using radio fre- vision transmission. quencies allocated for that purpose) (o) Pay television transmission shall that is made by a mean a transmission of a service or broadcast station located within the schedule of programs, as to which each country or territory in which the enti- individual program is generally unin- ty retransmitting such broadcast terrupted by commercial advertising transmission also is located, where messages and for which service or such broadcast transmission is not sub- schedule of programs subscribing view- ject to a commercially-adopted access ers are charged a periodic subscription control method (e.g., is broadcast in fee, such as on a monthly basis, for the the clear to members of the public re- reception of such programming deliv- ceiving such broadcasts), regardless of ered by such service whether sepa- whether such entity subjects such re- rately or together with other services transmission to an access control or programming, during the specified viewing period covered by such fee. If a method. given delivery qualifies both as a pay (t) Video-on-demand shall mean a de- television transmission and pay-per- livery of a single program or a speci- view, video-on-demand, or subscrip- fied group of programs for which: tion-on-demand then, for purposes of (1) Each such individual program is this subpart, such delivery shall be generally uninterrupted by commercial deemed pay-per-view, video-on-demand advertising messages; or subscription-on-demand rather than (2) Recipients are charged a separate a pay television transmission. fee for each such single program or (p) Program shall mean any work of specified group of programs; and commercial audiovisual content. (3) A recipient is able, at his or her (q) Subscription-on-demand shall mean discretion, to select the time for com- the delivery of a single program or a mencement of exhibition of such indi- specified group of programs for which: vidual program or specified group of (1) A subscriber is able, at his or her programs. In the event a delivery discretion, to select the time for com- qualifies as both video-on-demand and mencement of exhibition thereof, a pay television transmission, then for (2) Where each such single program is purposes of this subpart, such delivery generally uninterrupted by commercial shall be deemed video-on-demand. advertising messages; and [68 FR 66735, Nov. 28, 2003, as amended at 69 (3) For which program or specified FR 4082, Jan. 28, 2004; 76 FR 40280, July 8, group of programs subscribing viewers 2011] are charged a periodic subscription fee for the reception of programming de- § 76.1903 Interfaces. livered by such service during the spec- ified viewing period covered by the fee. A covered entity shall not attach or In the event a given delivery of a pro- embed data or information with com- gram qualifies both as a pay television mercial audiovisual content, or other- transmission and subscription-on-de- wise apply to, associate with, or allow mand, then for purposes of this sub- such data to persist in or remain asso- part, such delivery shall be deemed ciated with such content, so as to pre- subscription-on-demand rather than a vent its output through any analog or pay television transmission. digital output authorized or permitted (r) Undefined business model shall under license, law or regulation gov- mean a business model that does not erning such covered product. fall within the definition of a defined business model.

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§ 76.1904 Encoding rules for defined proved under the public interest test business models. set forth in paragraph (c)(4) of this sec- (a) Commercial audiovisual content tion unless the new service differs from delivered as unencrypted broadcast tel- existing services provided by any cov- evision shall not be encoded so as to ered entity under the applicable de- prevent or limit copying thereof by fined business model prior to December covered products or, to constrain the 31, 2002. resolution of the image when output (b) Petitions. A petition to encode a from a covered product. new service within a defined business (b) Except for a specific determina- model other than as permitted by the tion made by the Commission pursuant encoding rules set forth in § 76.1904(b)(1) to a petition with respect to a defined and (2) shall describe: business model other than unencrypted (1) The defined business model, the broadcast television, or an undefined new service, and the proposed encoding business model subject to the proce- terms, including the use of copy never dures set forth in § 76.1906: and copy one generation encoding, and (1) Commercial audiovisual content the encoding of content with respect to shall not be encoded so as to prevent or ‘‘pause’’ set forth in § 76.1904(b)(2). limit copying thereof except as follows: (2) Whether the claimed benefit to (i) To prevent or limit copying of consumers of the new service, includ- video-on-demand or pay-per-view ing, but not limited to, the availability transmissions, subject to the require- of content in earlier release windows, ments of paragraph (b)(2) of this sec- more favorable terms, innovation or tion; and original programming, outweighs the (ii) To prevent or limit copying, limitation on the consumers’ control other than first generation of copies, of over the new service; pay television transmissions, non-pre- (3) The ways in which the new service mium subscription television, and free differs from existing services offered by conditional access delivery trans- any covered entity within the applica- missions; and ble defined business model prior to De- (2) With respect to any commercial cember 31, 2002; audiovisual content delivered or trans- (4) All other pertinent facts and con- mitted in form of a video-on-demand or siderations relied on to support a de- pay-per-view transmission, a covered termination that grant of the petition entity shall not encode such content so would serve the public interest. as to prevent a covered product, with- (5) Factual allegations shall be sup- out further authorization, from paus- ported by affidavit or declaration of a ing such content up to 90 minutes from person or persons with actual knowl- initial transmission by the covered en- edge of the facts, and exhibits shall be tity (e.g., frame-by-frame, minute-by- verified by the person who prepares minute, megabyte by megabyte). them. (c) Petition process—(1) Public notice. § 76.1905 Petitions to modify encoding The Commission shall give public no- rules for new services within de- tice of any such petition. fined business models. (2) Comments. Interested persons may (a) The encoding rules for defined submit comments or oppositions to the business models in § 76.1904 reflect the petition within thirty (30) days after conventional methods for packaging the date of public notice of the filing of programs in the MVPD market as of such petition. Comments or opposi- December 31, 2002, and are presumed to tions shall be served on the petitioner be the appropriate rules for defined and on all persons listed in petitioner’s business models. A covered entity may certificate of service, and shall contain petition the Commission for approval a detailed full statement of any facts to allow within a defined business or considerations relied on. Factual al- model, other than unencrypted broad- legations shall be supported by affi- cast television, the encoding of a new davit or declaration of a person or per- service in a manner different from the sons with actual knowledge of the encoding rules set forth in § 76.1904(b)(1) facts, and exhibits shall be verified by and (2). No such petition will be ap- the person who prepares them.

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(3) Replies. The petitioner may file a quired by this section, such party may reply to the comments or oppositions file a complaint pursuant to § 76.7. within ten (10) days after their submis- sion, which shall be served on all per- § 76.1906 Encoding rules for undefined sons who have filed pleadings and shall business models. also contain a detailed full showing, (a) Upon public notice and subject to supported by affidavit or declaration, requirements as set forth herein, a cov- of any additional facts or consider- ered entity may launch a program ations relied on. There shall be no fur- service pursuant to an undefined busi- ther pleadings filed after petitioner’s ness model. Subject to Commission re- reply, unless authorized by the Com- view upon complaint, the covered enti- mission. ty may initially encode programs pur- (4) Commission determination as to en- suant to such undefined business model coding rules for a new service within a de- without regard to limitations set forth fined business model. (i) Proceedings ini- in § 76.1904(b). tiated by petitions pursuant to this (1) Notice. Concurrent with the section shall be permit-but-disclose launch of an undefined business model proceedings, unless otherwise specified by a covered entity, the covered entity by the Commission. The covered entity shall issue a press release to the PR shall have the burden of proof to estab- Newswire so as to provide public notice lish that the proposed change in encod- of the undefined business model, and ing rules for a new service is in the the proposed encoding terms. The no- public interest. In making its deter- tice shall provide a concise summary of mination, the Commission shall take the commercial audiovisual content to into account the following factors: be provided pursuant to the undefined (A) Whether the benefit to consumers business model, and of the terms on of the new service, including but not which such content is to be available limited to earlier release windows, to consumers. Immediately upon re- more favorable terms, innovation or quest from a party entitled to be a original programming, outweighs the complainant, the covered entity shall limitation on the consumers’ control make available information that indi- over the new service; cates the proposed encoding terms, in- (B) Ways in which the new service cluding the use of copy never or copy differs from existing services offered by one generation encoding, and the en- any covered entity within the applica- coding of content with respect to ble defined business model prior to De- ‘‘pause’’ as defined in § 76.1904(b)(2). cember 31, 2002; and (2) Complaint process. Any interested (ii) The Commission may specify party (‘‘complainant’’) may file a com- other procedures, such as oral argu- plaint with the Commission objecting ment, evidentiary hearing, or further to application of encoding as set forth written submissions directed to par- in the notice. ticular aspects, as it deems appro- (i) Pre-complaint resolution. Prior to priate. initiating a complaint with the Com- (iii) A petition may, upon request of mission under this section, the com- the petitioner, be dismissed without plainant shall notify the covered entity prejudice as a matter of right prior to that it may file a complaint under this the adoption date of any final action section. The notice must be suffi- taken by the Commission with respect ciently detailed so that the covered en- to the petition. A petitioner’s request tity can determine the specific nature for the return of a petition will be re- of the potential complaint. The poten- garded as a request for dismissal. tial complainant must allow a min- (d) Complaint regarding a new service imum of thirty (30) days from such no- not subject to petition. In an instance in tice before filing such complaint with which an interested party has a sub- the Commission. During this period the stantial basis to believe and does be- parties shall endeavor in good faith to lieve in good faith that a new service resolve the issue(s) in dispute. If the within a defined business model has parties fail to reach agreement within been launched without a petition as re- this 30 day period, complainant may

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initiate a complaint in accordance filed complaints or comments and shall with the procedures set forth herein. also contain a detailed full showing, (ii) Complaint. Within two years of supported by affidavit or declaration, publication of a notice under paragraph of any additional facts or consider- (a)(1) of this section, a complainant ations relied on. Replies shall be due may file a complaint with the Commis- ten (10) days from the date for filing a sion objecting to application of the en- response. coding terms to the service at issue. (v) Basis for Commission determination Such complaint shall state with par- as to encoding terms for an undefined ticularity the basis for objection to the business model. In a permit-but-disclose encoding terms. proceeding, unless otherwise specified (A) The complaint shall contain the by the Commission, to determine name and address of the complainant and the name and address of the cov- whether encoding terms as noticed ered entity. may be applied to an undefined busi- (B) The complaint shall be accom- ness model, the covered entity shall panied by a certification of service on have the burden of proof to establish the named covered entity. that application of the encoding terms (C) The complaint shall set forth in the undefined business model is in with specificity all information and ar- the public interest. In making any such guments relied upon. Specific factual determination, the Commission shall allegations shall be supported by a dec- take into account the following fac- laration of a person or persons with ac- tors: tual knowledge of the facts, and exhib- (A) Whether the benefit to consumers its shall be verified by the person who of the new service, including but not prepares them. limited to earlier release windows, (D) The complaint shall set forth at- more favorable terms, innovation or tempts made by the complainant to re- original programming, outweighs the solve its complaint pursuant to para- limitation on the consumers’ control graph (a)(2)(i) of this section. over the new service; (iii) Public notice. The Commission (B) Ways in which the new service shall give public notice of the filing of differs from services offered by any the complaint. Once the Commission covered entity prior to December 31, has issued such public notice, any per- 2002; son otherwise entitled to be a com- plainant shall instead have the status (vi) Determination procedures. The of a person submitting comments Commission may specify other proce- under paragraph (a)(2)(iv) of this sec- dures, such as oral argument, evi- tion rather than a complainant. dentiary hearing, or further written (iv) Comments and reply. (A) Any per- submissions directed to particular as- son may submit comments regarding pects, as it deems appropriate. the complaint within thirty (30) days (b) Complaint regarding a service not after the date of public notice by the subject to notice. In an instance in Commission. Comments shall be served which an interested party has a sub- on the complainant and the covered en- stantial basis to believe and believes in tity and on any persons listed in rel- good faith that a service pursuant to evant certificates of service, and shall an undefined business model has been contain a detailed full statement of launched without requisite notice, such any facts or considerations relied on. party may file a complaint pursuant to Specific factual allegations shall be § 76.7. supported by a declaration of a person or persons with actual knowledge of § 76.1907 Temporary bona fide trials. the facts, and exhibits shall be verified by the person who prepares them. The obligations and procedures as to (B) The covered entity may file a re- encoding rules set forth in §§ 76.1904(b) sponse to the complaint and comments and (c) and 76.1905(a) and (b) do not within twenty (20) days after the date apply in the case of a temporary bona that comments are due. Such response fide trial of a service. shall be served on all persons who have

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§ 76.1908 Certain practices not prohib- used to decrypt the distributor’s signal ited. information, and Nothing in this subpart shall be con- (2) Require that such consumer prod- strued as prohibiting a covered entity uct, following such decryption, protect from: the content of such signal as if it were (a) Encoding, storing or managing a covered demodulator product receiv- commercial audiovisual content within ing marked content. its distribution system or within a cov- (c) Unencrypted retransmission. Where ered product under the control of a a multichannel video programming dis- covered entity’s commercially adopted tributor retransmits unencrypted dig- access control method, provided that ital terrestrial broadcast content in the outcome for the consumer from the unencrypted form, such distributor application of the encoding rules set shall, upon demodulation: out in § 76.1904(a) and (b) is unchanged (1) Preserve the broadcast flag, if thereby when such commercial audio- present, in both the EIT and PMT; and visual content is released to consumer (2) Use 8–VSB, 16–VSB, 64–QAM, or control and provided that all other 256–QAM signal modulation for the re- laws, regulations, or licenses applica- transmission. ble to such encoding, storage, or man- (d) Unmarked content. Where a multi- agement shall be unaffected by this channel video programming distributor section, or retransmits unencrypted digital terres- (b) Causing, with respect to a specific trial broadcast content that is not covered product, the output of content marked with the broadcast flag, the from such product in a format as nec- multichannel video programming dis- essary to match the display format of tributor shall not encode such content another device connected to such prod- to restrict its redistribution. uct, including but not limited to pro- [68 FR 67607, Dec. 3, 2003] viding for content conversion between widely-used formats for the transport, processing and display of audiovisual Subpart X—Access to MDUs signals or data, such as between analog and digital formats and between PAL § 76.2000 Exclusive access to multiple dwelling units generally. and NTSC or RGB and Y,Pb,Pr. (a) Prohibition. No cable operator or [68 FR 66735, Nov. 28, 2003, as amended at 76 other provider of MVPD service subject FR 40280, July 8, 2011] to 47 U.S.C. 548 shall enforce or execute § 76.1909 Redistribution control of any provision in a contract that grants unencrypted digital terrestrial to it the exclusive right to provide any broadcast content. video programming service (alone or in combination with other services) to a (a) For the purposes of this section, MDU. All such exclusivity clauses are the terms unencrypted digital terres- null and void. trial broadcast content, EIT, PMT, broadcast flag, covered demodulator (b) Definition. For purposes of this product, and marked content shall rule, MDU shall include a multiple have the same meaning as set forth in dwelling unit building (such as an § 73.9000 of this chapter. apartment building, condominium building or cooperative) and any other (b) Encrypted retransmission. Where a centrally managed residential real es- multichannel video programming dis- tate development (such as a gated com- tributor retransmits unencrypted dig- munity, mobile home park, or garden ital terrestrial broadcast content in apartment); provided however, that encrypted form, such distributor shall, MDU shall not include time share upon demodulation of the 8–VSB, 16– units, academic campuses and dor- VSB, 64–QAM or 256–QAM signal, in- mitories, military bases, hotels, room- spect either the EIT or PMT for the ing houses, prisons, jails, halfway broadcast flag, and if the broadcast houses, hospitals, nursing homes or flag is present: other assisted living facilities. (1) Securely and robustly convey that information to the consumer product [73 FR 1089, Jan. 7, 2008]

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ALPHABETICAL INDEX—PART 76 Non-network program exclusivity ... 76.99 Non-applicability of §§ 76.611 and 76.618 A 76.612. A and B grade contours ...... 76.5 Operation in frequency bands 108– 76.619 Access, Channel enforcement ...... 76.10 136; 225–400 mHz. Address, operator or status change reports 76.400 Aeronautical and marine emergency fre- 76.616 H-I quencies, Operation near. Identification Sponsorship; list retention ...... 76.221 Aeronautical band usage, Notification re- 76.615 Independent station ...... 76.5 quirements. Input selector switches ...... 76.66 Authority, Special temporary ...... 76.29 Input selector switches, consumer education 76.66 Input selector switches, Exemption ...... 76.70 B Inspection, CATV systems, by FCC ...... 76.307 B and A grade contours ...... 76.5 Interference from CATV system ...... 76.613 Boundaries, TV markets ...... 76.53 Interference, Receiver-generated, Responsi- 76.617 Broadcast, Sports ...... 76.67 bility. Broadcast station, TV ...... 76.5 Isolation, Terminal ...... 76.5 C J-L Cable TV channel: Classes I, II, III, IV ...... 76.5 Leakage measurements, Signal ...... 76.601 Cablecasting ...... 76.5 Leakage, Signal, performance criteria ...... 76.611 CATV basic signal leakage performance cri- 76.611 Leakage, Signal, performance criteria, Ex- 76.618 teria. ception. CATV system ...... 76.5 List retention, Sponsorship identification ...... 76.221 CATV system interference ...... 76.613 Lockbox enforcement ...... 76.11 Candidates for public office, Cablecast by ... 76.205 Lotteries ...... 76.213 Carriage disputes ...... 76.58 Carriage, mandatory, Expiration of ...... 76.64 M Carriage, Manner of ...... 76.62 Mandatory carriage of TV stations ...... 76.56 Carriage of other TV signals ...... 76.60 Mandatory carriage of TV stations, Exemp- 76.70 Carriage of TV stations, Mandatory ...... 76.56 tion from. Carriage of TV stations, Mandatory, Exemp- 76.70 Manner of carriage ...... 76.62 tion from. Marine and aeronautical emergency fre- 76.716 Channel access enforcement ...... 76.10 quencies, Operation near. Communities, Designated ...... 76.51 Major TV markets ...... 76.51 Community, Principal contour ...... 76.5 Market size operation provisions— Community unit ...... 76.5 Measurements, Performance ...... 76.609 Consumer education-selector switches ...... 76.66 Measurements, Signal leakage ...... 76.601 Cross-ownership ...... 76.501 Monitoring, CATV system ...... 76.614 Must carry requirements ...... 76.55, 76.59, D 76.61, 76.64 Definitions, Part 76 ...... 76.5 Designated communities ...... 76.51 N Dismissal: Special relief petitions ...... 76.8 Network nonduplication: protection extent .... 76.94 Disputes concerning carriage ...... 76.58 Network nonduplication waivers ...... 76.97 Doctrine, Fairness ...... 76.209 Network program nonduplication: Exceptions 76.95 Network program nonduplication: Notifica- 76.94 E tion. Editorials, Political ...... 76.209 Network programming ...... 76.5 Enforcement, Channel access ...... 76.10 Network programs: nonduplication protection 76.92 Enforcement, Lockbox ...... 76.11 Network station, Full ...... 76.5 Equal employment opportunity— Network station, Partial ...... 76.5 Scope ...... 76.71 Noise, System ...... 76.5 General Policy ...... 76.73 Nonduplication protection, Network pro- 76.92 Program requirements ...... 76.75 grams. Reporting requirements ...... 76.77 Non-network program exclusivity, exceptions 76.99 Public inspection of records ...... 76.79 Notification requirements: aeronautical 76.615 Exceptions, to rules provisions— bands. Network program nonduplication .... 76.95 Notification requirements: network non- 76.94 Signal leakage performance criteria 76.618 duplication. Frequency separation standards .... 76.618 O F Operation in frequency bands 108–136 and 76.610 Fairness doctrine ...... 76.209 225–400 MHz. File, Public inspection ...... 76.305 Operator, address or status change reports 76.400 Forfeitures ...... 76.9 Order, Show cause ...... 76.9 Forms, Report ...... 76.403 Ownership, Cross ...... 76.501 Frequency bands 108–136; 225–400 MHz, 76.610 Operation in. P Frequency separation standards ...... 76.612 Partial network station ...... 76.5 Frequency separation standards, Exception 76.618 Performance measurements ...... 76.609 to. Personal attacks: political cablecasts ...... 76.209 Full network station ...... 76.5 Petitions, Dismissal of ...... 76.8 Petitions for waiver ...... 76.7 G Political editorials ...... 76.209 Grandfathering, exceptions to rules provi- Possession of rules ...... 76.301 sions— Prime time ...... 76.5 743

VerDate Sep<11>2014 11:42 Jul 08, 2021 Jkt 250217 PO 00000 Frm 00753 Fmt 8010 Sfmt 8002 Y:\SGML\250217.XXX 250217 Pt. 78 47 CFR Ch. I (10–1–20 Edition)

Program carriages, STV ...... 76.64 PART 78—CABLE TELEVISION RELAY Programming, Network ...... 76.5 Protection extent: network nonduplication .... 76.94 SERVICE Public inspection file ...... 76.305 Public office, Cablecasts by candidates for .. 76.205 Subpart A—General PURPOSE—Part 76 ...... 76.1 Sec. Q 78.1 Purpose. Qualified TV station, Showing ...... 76.55 78.3 Other pertinent rules. R 78.5 Definitions. Rate regulation standards ...... 76.33 Receiver generated interference ...... 76.617 Subpart B—Applications and Licenses Reference points, Major/smaller markets ..... 76.53 Registration statement: signature ...... 76.14 78.11 Permissible service. Registration statement ...... 76.12 78.13 Eligibility for license. Relief, Special ...... 76.7 78.15 Contents of applications. Report forms ...... 76.403 78.16 Who may sign applications. Reports: Change of operator, address, sta- 76.400 78.17 Amendment of applications. tus. 78.18 Frequency assignments. Responsibility for receiver-generated inter- 76.617 78.19 Interference. ference. 78.20 Acceptance of applications; public no- Rule waiver ...... 76.7 tice. Rules, Possession ...... 76.301 78.21 Dismissal of applications. S 78.22 Objections to applications. Selector switches, Input ...... 76.66 78.23 Equipment tests. Selector switches, input, Exemption ...... 76.70 78.27 License conditions. Show cause order ...... 76.9 78.29 License period. Signal leakage measurements ...... 76.601 78.30 Forfeiture and termination of station Signal leakage performance criteria ...... 76.611 authorizations. Signature: registration statement ...... 76.14 78.31 Temporary extension of license. Significantly viewed signals ...... 76.54 78.33 Special temporary authority. Special relief ...... 76.7 78.35 Assignment or transfer of control. Special relief petitions, Dismissal of ...... 76.8 78.36 Frequency coordination. Special temporary authority ...... 76.29 Specified zone, TV station ...... 76.5 78.40 Transition of the 1990–2025 MHz band Sponsorship identification, List retention ...... 76.221 from the Cable Television Relay Service Sports broadcasts ...... 76.67 to emerging technologies. Standards for rate regulation ...... 76.33 Standards, Technical ...... 76.605 Subpart C—General Operating Station protection: network program non- 76.92 Requirements duplication. Status, operator or address change reports 76.400 78.51 Remote control operation. Subscriber terminal ...... 76.5 78.53 Unattended operation. Subscribers ...... 76.5 78.55 Time of operation. System community unit ...... 76.5 78.57 Station inspection. System inspection (by FCC) ...... 76.307 78.59 Posting of station and operator li- System monitoring ...... 76.614 System noise ...... 76.5 censes. 78.61 Operator requirements. T 78.63 Antenna structure marking and light- Technical standards ...... 76.605 ing. Terminal isolation ...... 76.5 78.65 Additional orders. Terminal, Subscriber ...... 76.5 78.67 Familiarity with FCC rules. Tests, Performance ...... 76.601 78.69 Station records. Translator station, TV ...... 76.5 78.75 Equal employment opportunities. TV markets, Boundaries of ...... 76.53 TV markets, Major ...... 76.51 TV signals, Carriage non-mandatory ...... 76.60 Subpart D—Technical Regulations U-V 78.101 Power limitations. Vertical blanking interval, Services on ...... 76.64 78.103 Emissions and emission limitations. 78.104 Authorized bandwidth and emission W designator. Waiver, Network nonduplication ...... 76.97 78.105 Antenna systems. Waiver, Rules ...... 76.7 78.106 Interference to geostationary-sat- X-Y-Z ellites. Zone, Specified, of TV station ...... 76.5 78.107 Equipment and installation. 78.108 Minimum path lengths for fixed [50 FR 38536, Sept. 23, 1985; 50 FR 39114, Sept. links. 27, 1985, as amended at 51 FR 34622, Sept. 30, 78.109 Major and minor modifications to 1986; 52 FR 37316, Oct. 6, 1987] stations. 744

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