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Further, each submission must contain a written verification that the  xsignatory has read the submission and to the best of his or her knowledge, the submission is well grounded  xlin fact and is warranted by existing law or a good faith argument for the extension, modification or  S - xreversal of existing law. D6( yO-ԍSubmissions filed electronically should follow the verification requirements of 47 C.F.R.  1.52. Prior to this amendment not all submissions pursuant to the Part 76 rules  x]required verification. We believe that the requirement of verification is appropriate to ensure that pleadings submitted pursuant to Part 76 are filed after due consideration and investigation. x  S- ` x8. ` ` In order to establish a standard provision for Part 76 pleadings, we amend Section 76.7  xto provide a uniform filing format, deadlines, and other procedural requirements which most pleadings  xfiled pursuant to Part 76 will follow. Unless a particular rule section contains specialized pleading  S- xrequirements, a party should file a petition that complies with the provisions of Section 76.7.R6( {O-ԍSee Appendix A, 47 C.F.R.  76.7.R To the  xextent a conflict is perceived between the general pleading requirements of Section 76.7 and the  xprocedural requirements of a specific section, the procedural requirements of the specific section should  xzbe followed. Among the filings now filed pursuant to Section 76.7 are petitions seeking special relief, waivers, show cause orders, and forfeiture proceedings.  S- ` 2x9. ` ` To comport with its new generalized nature, those portions of Section 76.7 which pertain  xonly to mustcarry complaints have been moved to Section 76.61 of our rules (Disputes Concerning  xCarriage) thereby incorporating all unique procedural aspects of must carry complaints in that rule.  xSection 76.61 is further amended to merge the specific requirements of mustcarry complaints filed by"(f ,`(`(88"  S- xlocal commercial television stationsV6( {Oh-ԍSee Appendix A, 47 C.F.R.  76.61(a) V and mustcarry complaints filed by local noncommercial educational  S-television stations in one rule.VZ6( {O-ԍSee Appendix A, 47 C.F.R.  76.61(b).V  S- ` ox 10. ` ` We have also consolidated the procedures regarding petitions for effective competition.  x=Although the underlying substantive law is contained in a single section of the Communications Act, the  xCommission's rules, prior to this Order, specified several different procedures for filing a petition with  S- xLthe Commission seeking a determination of effective competition.n6( {O -ԍSee 47 U.S.C.  543(l) (definition of effective competition).n Cable operators could file a petition  S- xfor reconsideration of certification,>~6( yO -ԍ47 C.F.R.  76.911.> a petition for revocation of certification,>6( yO-ԍ47 C.F.R.  76.914.> or, if the petitioner was  x.claiming local exchange carrier ("LEC") effective competition, our interim procedures, adopted following  xenactment of the Telecommunications Act of 1996 (the "1996 Act"), require LEC effective competition  Sp- x[cases to be filed as petitions for special relief under Section 76.7.p6( yO- xԍThe 1996 Act added 47 U.S.C.  623(l)(1)(D), LEC effective competition, as one of the definitions of effective  xcompetition. This statutory provision was one of several that were effective upon enactment of the 1996 Act. The  {O>- xinterim rules are the subject of a Notice of Proposed Rulemaking.  See Implementation of Cable Act Reform  {O- xProvisions of the Telecommunications Act of 1996, CS Docket 9685, Order and Notice of Proposed Rulemaking,  yO-11 FCC Rcd 5937, 5944 (1996). Č Because of the commonality of these  xpetitions, we are amending our rules to achieve a uniform procedure applicable to all petitions seeking a  xzdetermination of effective competition, except petitions for reconsideration of certification which will  xjcontinue to be filed pursuant to the procedural provisions set forth in Section 1.106 of the Commission's  S - xrules.$ R 6( {O- xԍImplementation of Sections of the Cable Television Consumer Protection and Competition Act of 1996, MM  {O- xJDocket 92266, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 5631, 569394 (1993).  xThe procedural requirements for petitions for reconsideration of certification are found in 47 C.F.R.  1.106. This scope of this Order is limited to changes to procedural requirements in Part 76. We are changing the procedures of Section 76.914 (Revocation of Certification) to require that  xpetitions filed as a result of these rules follow the procedures set forth in Section 76.7. The result of these  xchanges is that all effective competition petitions filed pursuant to Section 76.7 will be placed on public  xnotice and have the same 20 day deadline to file comments or oppositions and 10 days to reply currently  x-afforded LEC effective competition petitions. Previously, petitions for revocation of certification provided  x30 days to file comments and oppositions and 15 days to reply based on the date of service on the  S- xfranchising authority.K>6( {O#-ԍSee 47 C.F.R.  76.914(c).K We believe that this change in filing procedures will not unduly burden the parties to these proceedings, and is necessary to achieve the benefit that common procedures provide. x  Sh- ` `x 11. ` ` Several current rules contain redundant provisions related to the referral of proceedings  xfor an adjudicatory hearing before an administrative law judge ("ALJ"). Section 76.7 is hereby revised"@,`(`(88"  xand sets forth rules providing for referrals to ALJs for all Section 76.7 proceedings. The language for this  xsection was taken from the sections containing the procedures for referrals to ALJs in the course of  S- xprogram access, carriage agreement, and open video system complaint procedures.h6( {O-ԍSee 47 C.F.R.  76.1003(m), 76.1302(m), 76.1513(o).h We have made one  xamendment to these provisions stating that the Commission can refer discrete issues arising out of a  S`- xproceeding for an adjudicatory hearing before an ALJ.X`Z6( {OZ-ԍSee Appendix A, 47 C.F.R.  76.7(g)(1).X This amendment clarifies that the Commission  xis not limited to referring only entire proceedings for an adjudicatory hearing before an ALJ. We believe  xLthat consolidating the procedures for referral to ALJs in one rule section serves the streamlining goals by eliminating several redundant provisions.  S- ` x 12.` ` We believe these changes make the filing of pleadings pursuant to Section 76.7 more  xyaccessible to the general public because they are substantially uniform and contain simplified procedures.  SH - xGoing forward, unless the rule in question contains its own specific procedural guidelines,(H 6( yO- xԍFor instance, this exception applies to program access complaints. In a recent Report and Order, we adopted  xwnew procedural rules for program access complaints to ensure the filing deadlines allowed the Commission to comply  xYwith the new time limits by which program access complaints should be resolved. Thus, a program access complaint  {O,- xshould continue to be filed under its own administrative procedures, and not as a petition for special relief. See  yO- x Implementation of the Cable Television Consumer Protection and Competition Act of 1992, CS Docket No. 97248,  {O-Report and Order, FCC No. 98189 (rel. Aug. 10, 1998). ( a party  xseeking special relief, waiver of the Commission's rules, resolution of a complaint, determination of  x<effective competition, or resolution of a disputed question relating to Part 76 should file a petition pursuant to, and follow the procedural rules set forth in, Section 76.7. x  S - ` x 13. ` ` Certain of our current rules contain redundant provisions permitting Commission staff to  SX- xkconvene status conferences.Xh 6( {O`- xԍSee e.g., 47 C.F.R.  76.1003(j) (program access adjudications), 76.1302(j) (program carriage adjudications), 76.1513(l) (open video system carriage adjudications). Section 76.8 has been recast to provide that status conferences may be  xconvened at the discretion of Bureau staff for all Part 76 proceedings. TCI believes that establishing a  xstatus conference mechanism would allow Bureau staff to work with the parties involved to better  xyunderstand the issues raised, obtain admissions of facts in relation to matters that are in controversy, and  S- xconsider alternatives for a speedy resolution.: 6( yO-ԍTCI Comments at 7.: We agree that the use of status conferences, in appropriate  x=circumstances, will clarify issues and expedite resolution of Part 76 proceedings. We hereby amend our  xrules to allow Bureau staff, in its discretion, to direct the attorneys and/or parties to appear for a status"hR ,`(`(88"  S- xconference in any proceeding arising under Part 76.6( yOh- xԍAs we have noted in other contexts, bringing the parties together to discuss matters may lead to amicable  xwsettlement of cases, or at the very least, a narrowing of the issues thereby reducing litigation costs as well as allowing  {O- xthe Commission to focus on more prompt resolution of the case. See Amendment of Rules Governing Procedures  {O- xto Be Followed When Formal Complaints Are Filed Against Common Carriers, CC Docket No. 96238, Notice of  {O- xxProposed RuleMaking, 11 FCC Rcd 20823, 20847 (1996) (statutory framework for complaints against common carriers). The language of Section 76.8 was taken from  S-existing provisions of Part 76 with status conference procedures.h F6( {O-ԍSee 47 C.F.R.  76.1003(j), 76.1302(j), 76.1513(l).h  S- ` x 14. ` ` NATOA opposes a status conference mechanism for local rate appeals. NATOA argues  xthat the Commission has a limited role in local rate disputes and that a status conference mechanism could  S8- xinfringe on the jurisdiction of a local franchising authority ("LFA").9!86( yO -ԍNATOA Reply at 5.9 We disagree with NATOA that a  xzstatus conference would infringe on the jurisdiction of an LFA. While Congress placed jurisdiction to  xregulate the rates for the basic service tier in the hands of LFAs, Congress placed jurisdiction to resolve  S- xappeals of LFA rate orders with the Commission.V"h 6( yO-ԍ47 U.S.C.  543(a)(2)(A) and 543(c)(3).V Inherent in such jurisdiction is the authority to  x>implement procedures, such as the status conference mechanism, to fully and fairly resolve local rate  x>appeals. Accordingly, we fail to see how the discretionary use of status conferences will impinge on  xLFA's jurisdiction to regulate the basic service tier. The use of a status conference is discretionary and  xwould not be used in instances where the Commission believes that to do so would act to the detriment  xof any party. With respect to NATOA's concern that smaller LFAs may not have the resources to appear  xat the Commission for a status conference, we note that Section 76.8 retains the stipulation that status  S -conferences may be conducted by telephone, thereby eliminating unreasonable expense to any party.u# 6( {O@-ԍSee 47 C.F.R.  76.1003(j)(3), Appendix A at 47 C.F.R.  76.8(c).u "" x  SX- ` 4x15. ` ` Like our rules related to status conferences, several current rules contain redundant  xkprovisions related to confidentiality. Section 76.9 is hereby revised and sets forth rules providing for  xconfidential treatment of proprietary information. The language for this section was taken from the  xsections containing the procedures for confidentiality of proprietary information filed in the course of  S- x/program access, carriage agreement, and open video system complaint procedures.$ 6( {O- xԍ See 47 C.F.R.  76.1003(h) (program access adjudications), 76.1302(h) (program carriage adjudications), 76.1513(j) (open video system carriage adjudications). We believe that  xconsolidating the disparate confidentiality provisions in one rule section has the dual benefit of eliminating  x[several redundant provisions while protecting legitimate proprietary information submitted in all Part 76 proceedings. x  S- ` x16. ` ` Section 76.10 is added to clarify and describe the review process available to parties  x{following a Bureau ruling or an ALJ decision in a matter referred by the Bureau. This includes the  xprocedures for interlocutory review, petitions for reconsideration, and applications for review. The  xlanguage for this consolidated section allows us to eliminate redundant sections containing the procedures"x$,`(`(88"  xLfor review of decisions made in the course of program access, carriage agreement, and open video system complaint procedures.  S- ` %x17. ` ` Although not a change to the Part 76 rules, we agree with commenters' suggestions  xmrelating to our public notice format to provide the public with additional information regarding  S8- xLproceedings filed with the Commission.P%86( yO-ԍAmeritech Reply at 4; TCI Comments at 5.P We believe that this change will increase general awareness of,  S- xand participation in, Part 76 cable proceedings.?&X6( yO - xԍTCI suggests that the format for the public notice should be expanded information to include: a) assigned case  xhnumber; b) type of complaint/petition; c) name of the complainant/petitioner; d) name of the defendant/respondent  x e) affected communities in which the defendant/respondent operates; f) any relevant code identifying the system (such  xKas the cable system's CUID number); and g) the date on which oppositions or responses are due. TCI Comments at 5.? The information provided on the public notices is  xgenerated using a database which tracks cable cases. The Commission is currently upgrading to a new  xcomputer system which will have the capacity to store and display more information about each filing.  x The improved public notice format will be implemented once the new case tracking system becomes operational. x  S - ` x18. ` ` We adopt a procedural amendment clarifying essentially similar provisions related to the  xOoneyear limitations period for filing program access, program carriage and open video system  S - x.complaints.}' 6( {Ox-ԍSee Appendix A, 47 C.F.R.  76.1003(f)(2), 76.1302(e)(2), 76.1513(g)(2).} The impetus for this amendment is the Bureau's recent decision dismissing as timebarred  xa program access complaint on the grounds that the defendant's offer to renegotiate dealt with an allegedly  S - xdiscriminatory contract that had been in effect for more than one year.( 6( {O-ԍ See Echostar Communications Corp. v. Fox Liberty Networks, et al., DA 982153 (rel. Oct. 28, 1998). In order to avoid such situations  xin the future, we clarify these provisions to provide that complaints based on allegedly discriminatory  x-offers to the complainant must be unrelated to any existing contract between the complainant and the party  xjmaking such offer. This amendment is intended to clarify that an offer to amend an existing contract that  xMhas been in effect for more than one year does not reopen the existing contract to complaints that the provisions thereof are discriminatory.  Sh- ` x19. ` ` In addition to the specific proposals discussed above, we received various suggestions from  xcommenters that we decline to implement because these suggestions do not further our goal of simplifying  xand streamlining the procedures for Part 76 filings. NCTA suggests that we amend our rules to require  xthat, if a defendant is represented by legal counsel, the complainant should attempt to identify that counsel  S- xand serve a complaint on both the defendant and its counsel.A), 6( yO"-ԍ NCTA Comments at 4.A NCTA has not presented evidence that  xjthere is a problem regarding service which requires amendment of our current rules. We also believe that,  x1in some cases, compliance with NCTA's proposal would lead to delay and expense and could  x]unnecessarily burden small entities. NCTA's expanded service requirement would be particularly  x troublesome where parties must initiate a proceeding within a statutory or regulatory time limit. As"( ),`(`(88"  S- xNATOA notes, LFAs may lack the resources to correctly identify a defendant's counsel.9*6( yOh-ԍNATOA Reply at 8.9 NCTA also  S- xproposes that, in situations where a complaint or petition starts the pleading cycle (i.e., pleading cycle not  xestablished by public notice issued by the Commission), service should be required to be made in an  S- x.expeditious manner followed by regular U.S. mail service.+X6( yO- xԍNCTA believes expedited delivery could be accomplished by hand delivery, overnight delivery, or fax. NCTA Comments at 4. We believe NCTA's proposal would add an  x\unnecessary additional requirement to the Part 76 filing process. We recognize NCTA's concern that  xparties have an adequate opportunity to respond to filings, however, the record in this proceeding does  xnot establish a cognizable problem with the Commission's current service and response procedures  S- xnecessitating the revisions suggested by NCTA.,6( yO: - xԍOur rules also contain procedures by which a party may file a motion for an extension of time of a filing  {O -deadline. See 47 C.F.R.  1.46. We are also cognizant of SCBA's concern regarding  S-the administrative burden such regulation could cause small cable systems.A- 6( yOl-ԍ SCBA Comments at 2.A x  Sr- ` x20. ` ` WCA and NCTA sought changes to the pleading cycle contained in Section 76.7.N.r6( yO-ԍNCTA Comments at 4; WCA Comments at 3.N The  xcurrent pleading cycle allows 20 days for comment following public notice and 10 days to respond. Each  S" - xparty proposes that the Commission lengthen the pleading cycle./" * 6( yO- xwԍWCA suggests a pleading cycle of 30 days for oppositions and 10 days for replies for any special relief petition. WCA Comments at 4. NCTA argues that lengthening the  S - xdeadlines will afford adequate time to prepare a response.0 6( yO- xԍNCTA suggests lengthened deadlines which provide 30 days for oppositions and 20 days to reply unless there is a requirement to expedite the process. NCTA Comments at 3. We decline to amend the current 20 and 10  xday pleading cycle for proceedings commenced under Section 76.7. No evidence was presented by  xcommenters to indicate that the current time periods are not sufficient. This cycle was established by the  xCommission to conform Section 76.7 to the statutory time limits for resolution of mustcarry complaints  SZ- xwithin the context of the special relief procedures.1Z6( {O- xԍSee Implementation of the Cable Television Consumer Protection and Competition Act of 1992, MM Docket  {O-92259, Report and Order, 8 FCC Rcd 2965, 2994 (1993). We note that petitions for special relief seeking a  x>finding of LEC effective competition have also been filed using the 20 10 deadline with satisfactory  xLresults. We believe that the current time frames do not impose an inordinate burden on the parties while  S-allowing for widespread applicability of the revised Section 76.7 pleading requirements.266( yO#- xԍExtending the pleading cycle could impact the Commission's ability to make a determination regarding must {O$-carry complaints within the statutorily required time period. See 47 U.S.C.  534(d)(3). x"2,`(`(88"Ԍ S- ` 3x21. ` ` Commenters suggest that for any pleading placed on public notice, the time for filing a  S- xresponsive pleading should be based on the public notice date, rather than the date of service.N36( yO@-ԍNCTA Comments at 4; TCI Comments at 3.N TCI notes  xthat various types of complaints and petitions are placed on public notice even though the filing deadlines  xkfor some are based on the date of service, rather than the date of public notice. TCI states that this is  xconfusing and could be simplified by amending our rules to provide that the time period for all Part 76  xresponses run from the date of the public notice. We find that due to the differing statutory deadlines for  xmany of the proceedings commenced pursuant to Part 76, TCI's suggestion is not feasible. Some of the  S- xfilings that are put on public notice have time limits by which the Commission must resolve the petition.c4\X6( {O - xԍ See e.g., Implementation of the Cable Television Consumer Protection and Competition Act of 1992, CS Docket  {O - xNo. 97248, Report and Order, FCC No. 98189  35 (rel. Aug. 10, 1998) (establishing time limits for the resolution of program access cases).c  x!We believe that the public interest in maximizing general awareness of the proceedings before the  xCommission is better served by placing these filings on public notice even though their pleading cycle is  xnot based on the issuance of a public notice. When the new computer system for Part 76 filings is  SH - xactivated, public notices will contain additional information regarding each filing.n5H |6( {Od-ԍSee supra  17 discussing improving the public notice format.n We believe that this  xadditional information may alleviate much of the confusion over the filing deadlines of petitions or complaints placed on public notice.  S - ` Px22. ` ` NCTA proposes the adoption of a standardized list that sets forth the filing deadlines for  x1all pleadings filed under Part 76. We do not believe that such a list is necessary in light of the  xyamendments made herein to the Part 76 rules. The changes provide uniform procedures applicable to the  xproceedings consolidated under Section 76.7. Going forward, most filings will be made pursuant to Section 76.7 and will have uniform procedures.  S- ` Px23. ` ` TCI proposes that LFAs be required to provide 10 days notice to cable operators prior to  S- xfiling a certification to regulate rates.:66( yO>-ԍTCI Comments at 6.: TCI's proposal is not necessary. As NATOA notes, a cable  Sh- x[operator can, at any time, communicate with an LFA.97h6( yO-ԍNATOA Reply at 7.9 Moreover, a petition for certification to regulate  x/rates does not become effective until 30 days after filing with the Commission, which gives the cable  S- xoperator a period to negotiate with the LFA prior to grant of certification.K8. 6( {O -ԍSee 47 C.F.R.  76.910(e).K In addition, LFAs may at any  S-time withdraw certification to regulate basic service tier rates.H9 6( {OP#-ԍSee 47 C.F.R.  76.917.H x" R 9,`(`(88$"Ԍ S- ` #x24. ` ` Several commenters propose amendments which require substantive changes to Part 76.":6( {Oh- xԍSee e.g., SCBA's suggestion that small cable operators should be allowed to request a waiver of filing fees in  xthe pleading itself and not be required to submit payment up front would require a change to a different part of the  x-Commission's rules, 47 C.F.R.  1.117, and is outside the parameters of Part 76 inquiry. SCBA Comment at 14.  xSCBA also requests that satellite providers be required to report subscriber data by franchise area in effective  xcompetition cases and that we allow cable operators to treat any correspondence asserting mustcarry as a mustcarry request that triggers response obligations and the complaint deadline. SCBA Comments at 10."  S- xWe reject such suggestions because they are beyond the scope of this proceeding.;B6( {O- xԍIn this proceeding, we sought comment and suggestions on how to streamline the Part 76 procedures. See  yO -Notice, 13 FCC Rcd at 10644. Similarly, suggestions  xthat allow a petition seeking a finding of effective competition to be granted without an affirmative finding  S- xof effective competition by the Commission are contrary to Section 623 of the Communications Act.i<Z6( {O - xJԍ47 U.S.C.  543(a)(2). See BellSouth Comments at 2 (seeking that overlapping wireless cable and cable system  x;overbuilder not be required to file effective competition petition); TCI Comments at 12 (suggesting that unopposed effective competition petitions deemed approved).i  x[Commenters make other suggestions which require a change in procedures to implement, but also require  S8- xsubstantive changes in the rules.=8 6( {O- xԍSee e.g., Ameritech suggestion that the Commission adopt the same changes to the rules for program carriage agreement adjudications as it has with respect to program access adjudications. Ameritech Comments at 2.  We cannot resolve these proposals in the context of this proceeding which has not developed a record to evaluate substantive proposals. x  S-   IV.XxREGULATORY FLEXIBILITY ANALYSIS AND PAPERWORK REDUCTION ACT OF  S-1995 ANALYSIS (#  SH - ` Sx25. ` ` The regulatory flexibility analysis is attached to this order as Appendix B. The  xrequirements adopted in this Report and Order have been analyzed with respect to the Paperwork  xkReduction Act of 1995 (the "1995 Act") and found to impose new or modified information collection  xrequirements on the public. The Commission, as part of its continuing effort to reduce paperwork  x\burdens, invites the general public to take this opportunity to comment on the information collection  xrequirements contained in this Order, as required by the 1995 Act. Public comments are due 60 days from  xdate of publication of this Order in the Federal Register. Comments should address: (a) whether the  xproposed collection of information is necessary for the proper performance of the functions of the  x{Commission, including whether the information shall have practical utility; (b) the accuracy of the  xCommission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information  xcollected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.  Sh- " S@- ` &"x26. ` ` Written comments by the public on the new or modified information collection  S- xrequirements are due 60 days from date of publication of this Order in the Federal Register. Comments  xon the information collections contained herein should be submitted to Judy Boley, Federal  xCommunications Commission, 1C804, 445 12th Street, S.W., Washington, DC 20554, or via the Internet  xto jboley@fcc.gov. For additional information on the information collection requirements, contact Judy Boley at 2024180214 or via the Internet at the above address. "P =,`(`(88"  S- V.xPROCEDURAL PROVISIONS  S- ` x27. ` ` Effective Date. Upon approval by the Office of Management and Budget ("OMB"), the  xrules adopted in this Report and Order shall become effective. The Commission will publish a notice in the Federal Register announcing the effective date.  S- VI.xORDERING CLAUSES x  S- ` Tx28. ` ` IT IS ORDERED that, pursuant to authority found in Section 4(i)(j) of the  S- xCommunications Act of 1934, as amended, 47 U.S.C.  154(i)(j), the Commission's rules ARE HEREBY AMENDED as set forth in Appendix A.  S - ` x29. ` ` IT IS FURTHER ORDERED that the rules as amended in Appendix A shall become  S - xeffective in 140 days, upon approval by the Office of Management and Budget , unless the Commission publishes a notice to the contrary.  S - ` x30. ` ` IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference  xlOperations Division shall send a copy of this Notice of Proposed Rulemaking, including the Final  xRegulatory Flexibility Analysis, to the Chief Counsel for Advocacy of Small Business Administration, in  S-accordance with paragraph 603(a) of the Regulatory Flexibility Act.u>6( {Op-ԍPub. L. No. 96354, 94 Stat.1164, 5 U.S.C.  601 et seq. (1981).u x x` ` hhFEDERAL COMMUNICATIONS COMMISSION x` `  hh x` `  hhMagalie Roman Salas x` `  hhSecretary " Z>,`(`(88"   x    S-, APPENDIX A ĐTP Part 76 of Title 47 of the Code of Federal Regulations is amended as follows: PART 76 MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE  S-x1. ` ` The authority citation for Part 76 continues to read as follows: AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.  S -x2.` ` Section 76.6 is added to read as follows:  S -  76.6 General pleading requirements.   SX- x (a) General pleading requirements. All written submissions, both substantive and procedural, must conform to the following standards:  x (1) A pleading must be clear, concise, and explicit. All matters concerning a claim, defense or requested remedy, should be pleaded fully and with specificity. (2) Pleadings must contain facts which, if true, are sufficient to warrant a grant of the relief requested. (3) Facts must be supported by relevant documentation or affidavit.  x (4) The original of all pleadings and submissions by any party shall be signed by that party, or by the  xparty's attorney. Complaints must be signed by the complainant. The signing party shall state his or her  xladdress and telephone number and the date on which the document was signed. Copies should be  xconformed to the original. Each submission must contain a written verification that the signatory has read  xthe submission and to the best of his or her knowledge, information and belief formed after reasonable  xinquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the  xextension, modification or reversal of existing law; and that it is not interposed for any improper purpose.  xIf any pleading or other submission is signed in violation of this provision, the Commission shall upon motion or upon its own initiative impose appropriate sanctions.  xk (5) Legal arguments must be supported by appropriate judicial, Commission, or statutory authority.  xOpposing authorities must be distinguished. Copies must be provided of all non-Commission authorities  xrelied upon which are not routinely available in national reporting systems, such as unpublished decisions or slip opinions of courts or administrative agencies.  x (6) Parties are responsible for the continuing accuracy and completeness of all information and supporting  xauthority furnished in a pending complaint proceeding. Information submitted, as well as relevant legal  xauthorities, must be current and updated as necessary and in a timely manner at any time before a decision is rendered on the merits of the complaint.  S!- x (b) Copies to be Filed. Unless otherwise directed by specific regulation or the Commission, an original  xyand two (2) copies of all pleadings shall be filed in accordance with  0.401(a) of this chapter, except that  xpetitions requiring fees as set forth at part 1, subpart G of this chapter must be filed in accordance with  0.401(b) of this chapter.  S %- x^(c) Frivolous pleadings. It shall be unlawful for any party to file a frivolous pleading with the  xCommission. Any violation of this paragraph shall constitute an abuse of process subject to appropriate sanctions."& >,`(`(88n("Ԍ S- ` ԙx3. ` ` Section 76.7 is amended by revising paragraphs (a) through (g) and adding paragraphs (h) through (i) as follows:  S- x   76.7 General special relief, waiver, enforcement, complaint, show cause, forfeiture, and  S`-declaratory ruling procedures.  S- xL(a) Initiating Pleadings: In addition to the general pleading requirements, initiating pleadings must adhere to the following requirements:  S- x (1) Petitions. On petition by any interested party, cable television system operator, a multichannel video  xprogramming distributor, local franchising authority, or an applicant, permittee, or licensee of a television  xjbroadcast or translator station, the Commission may waive any provision of Part 76 of the rules, impose  xadditional or different requirements, issue a ruling on a complaint or disputed question, issue a show cause  xNorder, revoke the certification of the local franchising authority, or initiate a forfeiture proceeding. Petitions may be submitted informally by letter.  S - x\ (2) Complaints. Complaints shall conform to the relevant rule section under which the complaint is being filed.  S - x (3) Certificate of Service. Petitions and Complaints shall be accompanied by a certificate of service on  xany cable television system operator, franchising authority, station licensee, permittee, or applicant, or  S0-other interested person who is likely to be directly affected if the relief requested is granted.  S- xz (4) Statement of Relief Requested. (A) The petition or complaint shall state the relief requested. It  x=shall state fully and precisely all pertinent facts and considerations relied on to demonstrate the need for  xthe relief requested and to support a determination that a grant of such relief would serve the public interest.  x (B) The petition or complaint shall set forth all steps taken by the parties to resolve the problem, except where the only relief sought is a clarification or interpretation of the rules.  x (C) A petition or complaint may, on request of the filing party, be dismissed without prejudice as a matter  xof right prior to the adoption date of any final action taken by the Commission with respect to the petition  xor complaint. A request for the return of an initiating document will be regarded as a request for dismissal.  Sx- x (5) Failure to Prosecute. Failure to prosecute petition or complaint, or failure to respond to official  xcorrespondence or request for additional information, will be cause for dismissal. Such dismissal will be  xwithout prejudice if it occurs prior to the adoption date of any final action taken by the Commission with  S-respect to the initiating pleading.  S- x(b) Responsive Pleadings: In addition to the general pleading requirements, responsive pleadings must adhere to the following requirements:  S- xi (1) Comments/Oppositions to Petitions. Unless otherwise directed by the Commission, interested persons  xmay submit comments or oppositions within twenty (20) days after the date of public notice of the filing  x.of such petition. Comments or oppositions shall be served on the petitioner and on all persons listed in  x[petitioner's certificate of service, and shall contain a detailed full showing, supported by affidavit, of any facts or considerations relied on.  S!- x (2) Answers to Complaints. (A) Unless otherwise directed by the Commission, any party who is served  xywith a complaint shall file an answer in accordance with the following, and the relevant rule section under which the complaint is being filed.  x (B) The answer shall be filed within 20 days of service of the complaint, unless another period is set forth in the relevant rule section.  x (C) The answer shall advise the parties and the Commission fully and completely of the nature of any  xand all defenses, and shall respond specifically to all material allegations of the complaint. Collateral or"& >,`(`(88n("  xyimmaterial issues shall be avoided in answers and every effort should be made to narrow the issues. Any  xparty against whom a complaint is filed failing to file and serve an answer within the time and in the  xmanner prescribed by these rules may be deemed in default and an order may be entered against defendant in accordance with the allegations contained in the complaint.  x (D) The answer shall admit or deny the averments on which the adverse party relies. If the defendant  x?is without knowledge or information sufficient to form a belief as to the truth of an averment, the  x/defendant shall so state and this has the effect of a denial. When a defendant intends in good faith to  xdeny only part of an averment, the answer shall specify so much of it as is true and shall deny only the  xremainder. The defendant may make its denials as specific denials of designated averments or paragraphs,  xor may generally deny all the averments except such designated averments or paragraphs as the defendant  xexpressly admits. When the defendant intends to controvert all averments, the defendant may do so by general denial. (E) Averments in a complaint are deemed to be admitted when not denied in the answer.  S - x(c) Reply. In addition to the general pleading requirements, reply comments and replies must adhere to the following requirements:  x= (1) The petitioner or complainant may file a reply to a responsive pleading which shall be served on all  xpersons who have filed pleadings and shall also contain a detailed full showing, supported by affidavit,  xof any additional facts or considerations relied on. Unless expressly permitted by the Commission, reply comments and replies to an answer shall not contain new matters.  x (2) Failure to reply will not be deemed an admission of any allegations contained in the responsive pleading, except with respect to any affirmative defense set forth therein.  xL (3) Unless otherwise directed by the Commission or the relevant rule section, comments and replies to answers must be filed within ten (10) days after submission of the responsive pleading.  Sh- xj(d) Motions. Except as provided in  76.7, or upon a showing of extraordinary circumstances, additional motions or pleadings by any party will not be accepted.  S- x(e) Additional Procedures and Written Submissions. (1) The Commission may specify other procedures,  xsuch as oral argument or evidentiary hearing directed to particular aspects, as it deems appropriate. In  xthe event that an evidentiary hearing is required, the Commission will determine, on the basis of the  x=pleadings and such other procedures as it may specify, whether temporary relief should be afforded any party pending the hearing and the nature of any such temporary relief.  x[ (2) The Commission may require the parties to submit any additional information it deems appropriate  xfor a full, fair, and expeditious resolution of the proceeding, including copies of all contracts and documents reflecting arrangements and understandings alleged to violate the requirements set forth in the Communications Act and in this part, as well as affidavits and exhibits.  x (3) The Commission may, in its discretion, require the parties to file briefs summarizing the facts and issues presented in the pleadings and other record evidence.  x. (A) These briefs shall contain the findings of fact and conclusions of law which that party is urging the  x/Commission to adopt, with specific citations to the record, and supported by relevant authority and analysis.  x (B) Any briefs submitted shall be filed concurrently by both the complainant and defendant at such time as is designated by the staff. Such briefs shall not exceed fifty (50) pages.  x. (C) Reply briefs may be submitted by either party within twenty (20) days from the date initial briefs are due. Reply briefs shall not exceed thirty (30) pages.  SH$-(f) Discovery.  xk (1) The Commission staff may in its discretion order discovery limited to the issues specified by the  xCommission. Such discovery may include answers to written interrogatories, depositions or document production."&>,`(`(88n("Ԍ x (2) The Commission staff may in its discretion direct the parties to submit discovery proposals, together  xwith a memorandum in support of the discovery requested. Such discovery requests may include answers  xto written interrogatories, document production or depositions. The Commission staff may hold a status  xconference with the parties, pursuant to section 76.8, to determine the scope of discovery, or direct the  x=parties regarding the scope of discovery. If the Commission staff determines that extensive discovery is  xrequired or that depositions are warranted, the staff may advise the parties that the proceeding will be referred to an administrative law judge in accordance with paragraph (g) of this section.  S-(g) Referral to administrative law judge.  x (1) After reviewing the pleadings, and at any stage of the proceeding thereafter, the Commission staff  xkmay, in its discretion, designate any proceeding or discrete issues arising out of any proceeding for an adjudicatory hearing before an administrative law judge.  x/ (2) Before designation for hearing, the staff shall notify, either orally or in writing, the parties to the  xproceeding of its intent to so designate, and the parties shall be given a period of ten (10) days to elect  x-to resolve the dispute through alternative dispute resolution procedures, or to proceed with an adjudicatory hearing. Such election shall be submitted in writing to the Commission.  x (3) Unless otherwise directed by the Commission, or upon motion by the Cable Services Bureau Chief,  x{the Cable Services Bureau Chief shall not be deemed to be a party to a proceeding designated for a hearing before an administrative law judge pursuant to this paragraph.  S0- x(h) System Community Units Outside the Contiguous States. On a finding that the public interest so  xrequires, the Commission may determine that a system community unit operating or proposing to operate  x=in a community located outside of the 48 contiguous states shall comply with provisions of subparts D, F, and G of this part in addition to the provisions thereof otherwise applicable.  S- x(i) Commission Ruling. The Commission, after consideration of the pleadings, may determine whether  xthe public interest would be served by the grant, in whole or in part, or denial of the request, or may issue a ruling on the complaint or dispute, issue an order to show cause, or initiate a forfeiture proceeding.  xNote 1: After issuance of an order to show cause, the rules of procedure in Title 47, Part 1, Subpart A,  1.91-1.95 shall apply.  xz Note 2: Nothing in this Section is intended to prevent the Commission from initiating show cause or  xforfeiture proceedings on its own motion; Provided, however, that show cause proceedings and forfeiture  xproceedings pursuant to  1.80(g) of the rules will not be initiated by such motion until the affected parties are given an opportunity to respond to the Commission's charges.  x Note 3: Forfeiture proceedings are generally nonhearing matters conducted pursuant to the provisions  x of  1.80(f) of the rules (Notice of Apparent Liability). Petitioners who contend that the alternative  x/hearing procedures of  1.80(g) of the rules should be followed in a particular case must support this contention with a specific showing of the facts and considerations relied on.  xMNote 4: To the extent a conflict is perceived between the general pleading requirements of  76.7 and  x the procedural requirements of a specific section, the procedural requirements of the specific section should be followed.  SH$- ` x4.` ` Section 76.8 is amended by revising paragraphs (a) and (b) and adding paragraphs (c) through (e) to read as follows: "&>,`(`(88n("Ԍ S-  76.8 Status conference.  x(a) In any proceeding subject to the Part 76 rules, the Commission staff may in its discretion direct the attorneys and/or the parties to appear for a conference to consider: (1) Simplification or narrowing of the issues;  x (2) The necessity for or desirability of amendments to the pleadings, additional pleadings, or other evidentiary submissions;  xz (3) Obtaining admissions of fact or stipulations between the parties as to any or all of the matters in controversy; (4) Settlement of the matters in controversy by agreement of the parties;  x/ (5) The necessity for and extent of discovery, including objections to interrogatories or requests for written documents; (6) The need and schedule for filing briefs, and the date for any further conferences; and (7) Such other matters that may aid in the disposition of the proceeding.  x(b) Any party may request that a conference be held at any time after an initiating document has been filed.  x(c) Conferences will be scheduled by the Commission at such time and place as it may designate, to be conducted in person or by telephone conference call.  x.(d) The failure of any attorney or party, following advance notice with an opportunity to be present, to  xkappear at a scheduled conference will be deemed a waiver and will not preclude the Commission from conferring with those parties or counsel present.  x/(e) During a status conference, the Commission staff may issue oral rulings pertaining to a variety of  S- xjmatters relevant to the conduct of the proceeding including, inter alia, procedural matters, discovery, and  xthe submission of briefs or other evidentiary materials. These rulings will be promptly memorialized in  xwriting and served on the parties. When such rulings require a party to take affirmative action not subject  xyto deadlines established by another provision of this subpart, such action will be required within ten (10) days from the date of the written memorialization unless otherwise directed by the staff.  S- ` x5.` ` Section 76.9 is amended by revising paragraphs (a) and (b) and adding paragraphs (c) through (f) to read as follows:  S*-  76.9 Confidentiality of proprietary information.  x (a) Any materials filed in the course of a proceeding under this provision may be designated as  xproprietary by that party if the party believes in good faith that the materials fall within an exemption to  xdisclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C. 552(b). Any party asserting  xconfidentiality for such materials shall so indicate by clearly marking each page, or portion thereof, for  xLwhich a proprietary designation is claimed. If a proprietary designation is challenged, the party claiming  xconfidentiality will have the burden of demonstrating, by a preponderance of the evidence, that the material designated as proprietary falls under the standards for nondisclosure enunciated in FOIA.  xL (b) Submissions containing information claimed to be proprietary under this section shall be submitted  xto the Commission in confidence pursuant to the requirements of  0.459 of this chapter and clearly  xmarked "Not for Public Inspection." An edited version removing all proprietary data shall be filed with  xthe Commission for inclusion in the public file within five (5) days from the date the unedited reply is submitted, and shall be served on the opposing parties.""%>,`(`(88&"Ԍ x (c) Except as provided in paragraph (d) of this section, materials marked as proprietary may be disclosed  xjsolely to the following persons, only for use in the proceeding, and only to the extent necessary to assist in the prosecution or defense of the case:  xy (i) Counsel of record representing the parties in the proceeding and any support personnel employed by such attorneys;  x  (ii) Officers or employees of the parties in the proceeding who are named by another party as being directly involved in the proceeding; (iii) Consultants or expert witnesses retained by the parties; (iv) The Commission and its staff; and (v) Court reporters and stenographers in accordance with the terms and conditions of this section.  x (d) The Commission will entertain, subject to a proper showing, a party's request to further restrict access  xto proprietary information as specified by the party. The other parties will have an opportunity to respond to such requests.  xl (e) The persons designated in paragraphs (c) and (d) of this section shall not disclose information  xdesignated as proprietary to any person who is not authorized under this section to receive such  xinformation, and shall not use the information in any activity or function other than the prosecution or  xdefense of the case before the Commission. Each individual who is provided access to the information  xby the opposing party shall sign a notarized statement affirmatively stating, or shall certify under penalty  xof perjury, that the individual has personally reviewed the Commission's rules and understands the limitations they impose on the signing party.  xN (f) No copies of materials marked proprietary may be made except copies to be used by persons  xjdesignated in paragraphs (c) and (d) of this section. Each party shall maintain a log recording the number of copies made of all proprietary material and the persons to whom the copies have been provided.  x (g) Upon termination of the complaint proceeding, including all appeals and petitions, all originals and  x.reproductions of any proprietary materials, along with the log recording persons who received copies of  xsuch materials, shall be provided to the producing party. In addition, upon final termination of the  S- x proceeding, any notes or other work product derived in whole or in part from the proprietary materials of an opposing or third party shall be destroyed.  S-  Sx-x6.` ` Section 76.10 added to read as follows:  S(-  76.10 Review.  S-(a) Interlocutory review.  xL (1) Except as provided below, no party may seek review of interlocutory rulings until a decision on the merits has been issued by the staff or administrative law judge.  x> (2) Rulings listed in this paragraph are reviewable as a matter of right. An application for review of such ruling may not be deferred and raised as an exception to a decision on the merits.  x (A) If the staff's ruling denies or terminates the right of any person to participate as a party to the proceeding, such person, as a matter of right, may file an application for review of that ruling.  x (B) If the staff's ruling requires production of documents or other written evidence, over objection based on a claim of privilege, the ruling on the claim of privilege is reviewable as a matter of right.  xj (C) If the staff's ruling denies a motion to disqualify a staff person from participating in the proceeding, the ruling is reviewable as a matter of right.  S %- x@(b) Petitions for reconsideration. Petitions for reconsideration of interlocutory actions by the  xCommission's staff or by an administrative law judge will not be entertained. Petitions for reconsideration"%>,`(`(88'"  xof a decision on the merits made by the Commission's staff should be filed in accordance with  1.104-1.106 of this chapter.  S-(c) Application for review.  x (1) Any party to a Part 76 proceeding aggrieved by any decision on the merits issued by the staff  xpursuant to delegated authority may file an application for review by the Commission in accordance with  1.115 of this chapter.  x= (2) Any party to a Part 76 proceeding aggrieved by any decision on the merits by an administrative law  x[judge may file an appeal of the decision directly with the Commission, in accordance with  1.276(a) and  x 1.277(a)-(c) of this chapter, except that in proceedings brought pursuant to  76.1003, 76.1302, and  x76.1513, unless a stay is granted by the Commission, the decision by the administrative law judge will become effective upon release and will remain in effect pending appeal.  S - ` x7.` ` Section 76.61 is amended by revising paragraphs (a)(3), (a)(4) and (b), and adding (a)(5) as follows:  S -  76.61 Disputes concerning carriage. * * * * *  S- (a) * * *  x= (3) A local commercial television station or qualified low power television station that is denied carriage  xor channel positioning or repositioning in accordance with the must-carry rules by a cable operator may  xfile a complaint with the Commission in accordance with the procedures set forth in  76.7. In addition to the requirements of  76.7, such complaint shall specifically:  x (A) allege the manner in which such cable operator has failed to meet its obligations and the basis for such allegations.  xy (B) be accompanied by the notice from the complainant to the cable television system operator, and the  xcable television system operator's response, if any. If no timely response was received, the complaint shall so state.  x  (C) establish the complaint is being filed within the sixtyday deadline stated in paragraph 5 of this section.  x= (4) If the Commission determines that a cable operator has failed to meet its must-carry obligations, the  xCommission shall order that, within 45 days of such order or such other time period as the Commission  xmay specify, the cable operator reposition the complaining station or, in the case of an obligation to carry  xa station, commence or resume carriage of the station and continue such carriage for at least 12 months.  x.If the Commission determines that the cable operator has fully met the must-carry requirements, it shall dismiss the complaint.  x (5) No must-carry complaint filed pursuant to  76.61(a) will be accepted by the Commission if filed more than sixty (60) days after  x (A) The denial by a cable television system operator of request for carriage or channel position contained in the notice required by  76.61(a)(1), or (B) The failure to respond to such notice within the time period allowed by  76.61(a)(2).  SH$- (b) Complaints regarding carriage of qualified local NCE television stations.  xL (1) Whenever a qualified local NCE television station believes that a cable operator has failed to comply  xywith the signal carriage or channel positioning requirements, pursuant to  76.56-76.57, the station may"%>,`(`(88'"  xfile a complaint with the Commission in accordance with the procedures set forth in  76.7. In addition to the requirements of  76.7, such complaint shall specifically:  x\ (A) allege the manner in which such cable operator has failed to comply with such requirements and state the basis for such allegations.  x (B) be accompanied by any relevant correspondence between the complainant and the cable television system operator.  S- x= (2) If the Commission determines that a cable operator has failed to meet its must-carry obligations, the  xCommission shall order that, within 45 days of such order or such other period as the Commission may  xspecify, the cable operator reposition the complaining station or, in the case of an obligation to carry a  xstation, commence or resume carriage of the station and continue such carriage for a period of time the  x[Commission deems appropriate for the specific case under consideration. If the Commission determines that the cable operator has fully met the must-carry requirements, it shall dismiss the complaint.  xy (3) With respect to must-carry complaints filed pursuant to  76.61(b), such complaints may be filed at  xany time the complainant believes that the cable television system operator has failed to comply with the applicable provisions of subpart D of this part.  S -  S -x8.` ` Section 76.914 is amended by revising paragraph c to read as follows:  S0-  76.914 Revocation of certification. * * * * *  x> (c) A cable operator may file a petition for special relief pursuant to  76.7 seeking revocation of a franchising authority's certification. * * * * *  S- ` _x9.` ` Section 76.1003 is amended by revising paragraphs (a) through (g) and deleting paragraphs (h) through (s) to read as follows:  Sx-  76.1003 Program access proceedings.  S(- xAny multichannel video programming distributor aggrieved by conduct that it believes constitute a  x\violation of the regulations set forth in this subpart may commence an adjudicatory proceeding at the  xCommission to obtain enforcement of the rules through the filing of a complaint. The complaint shall be  xfiled and responded to in accordance with the procedures specified in Section 76.7 of the rules with the following additions or changes:  S8- x=(a) Prefiling notice required. Any aggrieved multichannel video programming distributor intending to file  xa complaint under this section must first notify the potential defendant cable operator, and/or the potential  xdefendant satellite cable programming vendor or satellite broadcast programming vendor, that it intends  xyto file a complaint with the Commission based on actions alleged to violate one or more of the provisions  xcontained in  76.1001 or 76.1002. The notice must be sufficiently detailed so that its recipient(s) can  xdetermine the specific nature of the potential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission.  S %- x(b) Contents of complaint. In addition to the requirements of  76.7, a program access complaint shall contain:"%>,`(`(88'"Ԍ xj (1) The type of multichannel video programming distributor that describes complainant, the address and  xtelephone number of the complainant, whether the defendant is a cable operator, satellite broadcast  xprogramming vendor or satellite cable programming vendor (describing each defendant), and the address and telephone number of each defendant;  x (2) Evidence that supports complainant's belief that the defendant, where necessary, meets the attribution standards for application of the program access requirements;  x (3) Evidence that the complainant competes with the defendant cable operator, or with a multichannel  x[video programming distributor that is a customer of the defendant satellite cable programming or satellite broadcast programming vendor;  xk (4) In complaints alleging discrimination, documentary evidence such as a rate card or a programming  xcontract that demonstrates a differential in price, terms or conditions between complainant and a  x competing multichannel video programming distributor or, if no programming contract or rate card is  xsubmitted with the complaint, an affidavit signed by an officer of complainant alleging that a differential  xin price, terms or conditions exits, a description of the nature and extent (if known or reasonably estimated  xby the complainant) of the differential, together with a statement that defendant refused to provide any further specific comparative information; (5) If a programming contract or a rate card is submitted with the complaint in support of the alleged violation, specific references to the relevant provisions therein; (6) In complaints alleging exclusivity violations:  x (A) The identity of both the programmer and cable operator who are parties to the alleged prohibited agreement, (B) Evidence that complainant can or does serve the area specified in the complaint, and  xM (C) Evidence that the complainant has requested to purchase the relevant programming and has been refused or unanswered;  xL (7) In complaints alleging a violation of  76.1001, evidence demonstrating that the behavior complained of has harmed complainant.  x{ (8) The complaint must be accompanied by appropriate evidence demonstrating that the required notification pursuant to paragraph (a) of this section has been made.  S- x(c) Damages requests. (1) In a case where recovery of damages is sought, the complaint shall contain  xa clear and unequivocal request for damages and appropriate allegations in support of such claim in accordance with the requirements of subpart (3) of this section.   x(2) Damages will not be awarded upon a complaint unless specifically requested. Damages may  x=be awarded if the complaint complies fully with the requirement of subpart (3) of this section where the defendant knew, or should have known that it was engaging in conduct violative of Section 628.   x(3) In all cases in which recovery of damages is sought, the complainant shall include within, or as an attachment to, the complaint, either:   mx(A) A computation of each and every category of damages for which recovery is sought, along  xwith an identification of all relevant documents and materials or such other evidence to be used by the complainant to determine the amount of such damages; or x(B) An explanation of:   0x(i) The information not in the possession of the complaining party that is necessary to develop a detailed computation of damages; x(ii) The reason such information is unavailable to the complaining party; x(iii) The factual basis the complainant has for believing that such evidence of damages exists; and   lx(iv) A detailed outline of the methodology that would be used to create a computation of damages when such evidence is available."%>,`(`(88'"  S-(d) Answer.  x (1) Any cable operator, satellite cable programming vendor or satellite broadcast programming vendor  xupon which a program access complaint is served under this section shall answer within twenty (20) days of service of the complaint, unless otherwise directed by the Commission.  x (2) An answer to an exclusivity complaint shall provide the defendant's reasons for refusing to sell the  S8- xsubject programming to the complainant. In addition, the defendant may submit its programming contracts  x=covering the area specified in the complaint with its answer to refute allegations concerning the existence  xof an impermissible exclusive contract. If there are no contracts governing the specified area, the defendant  xshall so certify in its answer. Any contracts submitted pursuant to this provision may be protected as proprietary pursuant to  76.9.  x (3) An answer to a discrimination complaint shall state the reasons for any differential in prices, terms  xor conditions between the complainant and its competitor, and shall specify the particular justification set forth in  76.1002(b) relied upon in support of the differential.  xj (A) When responding to allegations concerning price discrimination, except in cases in which the alleged  xprice differential is de minimis (less than or equal to five cents per subscriber or five percent, whichever  xis greater), the defendant shall provide documentary evidence to support any argument that the magnitude of the differential is not discriminatory.  xN (B) In cases involving a price differential of less than or equal to five cents per subscriber or five  xpercent, whichever is greater, the answer shall identify the differential as de minimis and state that the defendant is therefore not required to justify the magnitude of the differential.  xk (C) If the defendant believes that the complainant and its competitor are not sufficiently similar, the  xanswer shall set forth the reasons supporting this conclusion, and the defendant may submit an alternative  xcontract for comparison with a similarly situated multichannel video programming distributor that uses  xkthe same distribution technology as the competitor selected for comparison by the complainant. The  xanswer shall state the defendant's reasons for any differential between the prices, terms and conditions  xbetween the complainant and such similarly situated distributor, and shall specify the particular  xLjustifications in  76.1002(b) relied upon in support of the differential. The defendant shall also provide  xwith its answer written documentary evidence to support its justification of the magnitude of any price  Sx-differential between the complainant and such similarly situated distributor that is not de minimis.  x! (4) An answer to a complaint alleging an unreasonable refusal to sell programming shall state the  xdefendant's reasons for refusing to sell to the complainant, or for refusing to sell to the complainant on  xthe same terms and conditions as complainant's competitor, and shall specify why the defendant's actions are not discriminatory.  S- x(e) Reply. Within fifteen (15) days after service of an answer, unless otherwise directed by the  xCommission, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.  S8- x\(f) Time limit on filing of complaints . Any complaint filed pursuant to this subsection must be filed  S -within one year of the date on which one of the following events occurs:  x (1) The satellite cable programming or satellite broadcast programming vendor enters into a contract with  xythe complainant that the complainant alleges to violate one or more of the rules contained in this subpart; or  x (2) The satellite cable programming or satellite broadcast programming vendor offers to sell programming  x to the complainant pursuant to terms that the complainant alleges to violate one or more of the rules  xcontained in this subpart, and such offer to sell programming is unrelated to any existing contract between the complainant and the satellite cable programming or satellite broadcast programming vendor; or"%>,`(`(88'"Ԍ x (3) The complainant has notified a cable operator, or a satellite cable programming vendor or a satellite  xbroadcast programming vendor that it intends to file a complaint with the Commission based on a request  xto purchase or negotiate to purchase satellite cable programming or satellite broadcast programming, or  xhas made a request to amend an existing contract pertaining to such programming pursuant to  76.1002(f)  xthat has been denied or unacknowledged, allegedly in violation of one or more of the rules contained in this subpart.  S- x(g) Remedies for violations (1) Remedies authorized. Upon completion of such adjudicatory  xproceeding, the Commission shall order appropriate remedies, including, if necessary, (i) the imposition  xof damages, and/or (ii) the establishment of prices, terms, and conditions for the sale of programming to  xthe aggrieved multichannel video programming distributor. Such order shall set forth a timetable for compliance, and shall become effective upon release.  SH - ` x(2)` ` Additional sanctions. The remedies provided in paragraph (g)(1) of this section are in  xmaddition to and not in lieu of the sanctions available under title V or any other provision of the Communications Act.  S - ` x(3)` ` Imposition of Damages. (i)  Bifurcation. In all cases in which damages are requested,  xthe Commission may bifurcate the program access violation determination from any damage adjudication.  SZ- ` Px(ii)` ` Burden of Proof. The burden of proof regarding damages rests with the complainant, who  xmust demonstrate with specificity the damages arising from the program access violation. Requests for  xdamages that grossly overstate the amount of damages may result in a Commission determination that the  xcomplainant failed to satisfy its burden of proof to demonstrate with specificity the damages arising from the program access violation.  S- ` x(iii)` ` Damages Adjudication. (A) The Commission may, in its discretion, end adjudication of  xdamages with a written order determining the sufficiency of the damages computation submitted in  xaccordance with subpart (c)(3)(A) or the damages computation methodology submitted in accordance with  xsubpart (c)(3)(B)(iv), modifying such computation or methodology, or requiring the complainant to  S-  resubmit such computation or methodology. @(1)hWhere the Commission issues a written order  x approving or modifying a damages computation submitted in accordance with subpart (c)(3)(A), the defendant shall recompense the complainant as directed therein.  Sz- ` x(2)` ` Where the Commission issues a written order approving or modifying a damages  x[computation methodology submitted in accordance with subpart (c)(3)(B)(iv), the parties shall negotiate  x?in good faith to reach an agreement on the exact amount of damages pursuant to the Commissionmandated methodology.  S- ` x(B)` ` Within thirty days of the issuance of a subpart (c)(3)(B)(iv) damages methodology order, the parties shall submit jointly to the Commission either:  S-x(1)` ` A statement detailing the parties' agreement as to the amount of damages;  Sb- ` Qx(2)` ` A statement that the parties are continuing to negotiate in good faith and a request that the parties be given an extension of time to continue negotiations; or  S - ` x(3)` ` A statement detailing the bases for the continuing dispute and the reasons why no agreement can be reached.  S!- ` qx(C)` ` (1) In cases in which the parties cannot resolve the amount of damages within a  xreasonable time period, the Commission retains the right to determine the actual amount of damages on its own, or through the procedures described in subpart (g)(3)(iii)(C)(2) of this section.  SJ$- ` x(2)` ` Issues concerning the amount of damages may be designated by the Chief, Cable Services  xBureau for hearing before, or, if the parties agree, submitted for mediation to, a Commission Administrative Law Judge."%>,`(`(88'"Ԍ S- ` ox(D)` ` Interest on the amount of damages awarded will accrue from either the date indicated in  xthe Commission's written order issued pursuant to subpart (g)(3)(iii)(A)(1) or the date agreed upon by the  xparties as a result of their negotiations pursuant to subpart (g)(3)(iii)(A)(2). Interest shall be computed at applicable rates published by the Internal Revenue Service for tax refunds.  S8- ` Px10.` ` Section 76.1302 is amended by revising paragraphs (a) through (f) and deleting paragraphs (g) through (s) to read as follows:  S-  76.1302 Carriage agreement proceedings.  Sp- xAny video programming vendor or multichannel video programming distributor aggrieved by conduct that  SH - xit believes constitute a violation of the regulations set forth in this subpart may commence an adjudicatory  xproceeding at the Commission to obtain enforcement of the rules through the filing of a complaint. The  xcomplaint shall be filed and responded to in accordance with the procedures specified in Section 76.7 of the rules with the following additions or changes:  S - x(a) Prefiling notice required. Any aggrieved video programming vendor or multichannel video  xprogramming distributor intending to file a complaint under this section must first notify the potential  x!defendant multichannel video programming distributor that it intends to file a complaint with the  x\Commission based on actions alleged to violate one or more of the provisions contained in  76.1301.  xThe notice must be sufficiently detailed so that its recipient(s) can determine the specific nature of the  xypotential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission.  Sh- x[(b) Contents of complaint. In addition to the requirements of  76.7, a carriage agreement complaint shall contain:  xj (1) The type of multichannel video programming distributor that describes complainant, the address and  S-telephone number of the complainant, and the address and telephone number of each defendant;  x (2) Evidence that supports complainant's belief that the defendant, where necessary, meets the attribution standards for application of the carriage agreement regulations;  x (3) For complaints alleging a violation of  76.1301(c), evidence that supports complainant's claim that  xthe effect of the conduct complained of is to unreasonably restrain the ability of the complainant to compete fairly.  x{ (4) The complaint must be accompanied by appropriate evidence demonstrating that the required notification pursuant to paragraph (a) of this section has been made.  S-(c) Answer.  x/ (1) Any multichannel video programming distributor upon which a carriage agreement complaint is  xserved under this section shall answer within thirty (30) days of service of the complaint, unless otherwise directed by the Commission.  x  (2) The answer shall address the relief requested in the complaint, including legal and documentary  xsupport, for such response, and may include an alternative relief proposal without any prejudice to any denials or defenses raised.  S"- x (d) Reply. Within twenty (20) days after service of an answer, unless otherwise directed by the  xCommission, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.  S %- xk(e) Time limit on filing of complaints . Any complaint filed pursuant to this subsection must be filed  S%-within one year of the date on which one of the following events occurs: "%>,`(`(88'"Ԍ x\ (1) The multichannel video programming distributor enters into a contract with a video programming distributor that a party alleges to violate one or more of the rules contained in this section; or  x  (2) The multichannel video programming distributor offers to carry the video programming vendor's  xprogramming pursuant to terms that a party alleges to violate one or more of the rules contained in this  xsection, and such offer to carry programming is unrelated to any existing contract between the complainant and the multichannel video programming distributor; or  x= (3) A party has notified a multichannel video programming distributor that it intends to file a complaint with the Commission based on violations of one or more of the rules contained in this section.  S- x(f) Remedies for violations (1) Remedies authorized. Upon completion of such adjudicatory  xyproceeding, the Commission shall order appropriate remedies, including, if necessary, mandatory carriage  xof a video programming vendor's programming on defendant's video distribution system, or the  xestablishment of prices, terms, and conditions for the carriage of a video programming vendor's  x programming. Such order shall set forth a timetable for compliance, and shall become effective upon  xrelease, unless any order of mandatory carriage would require the defendant multichannel video  xzprogramming distributor to delete existing programming from its system to accommodate carriage of a  xvideo programming vendor's programming. In such instances, if the defendant seeks review of the staff,  x[or administrative law judge decision, the order for carriage of a video programming vendor's programming  xwill not become effective unless and until the decision of the staff or administrative law judge is upheld  xby the Commission. If the Commission upholds the remedy ordered by the staff or administrative law  xjudge in its entirety, the defendant will be required to carry the video programming vendor's programming  xfor an additional period equal to the time elapsed between the staff or administrative law judge decision and the Commission's ruling, on the terms and conditions approved by the Commission.  S- ` x(2)` ` Additional sanctions. The remedies provided in paragraph (f)(1) of this section are in  xmaddition to and not in lieu of the sanctions available under title V or any other provision of the Communications Act.  S- ` Qx11.` ` Section 76.1513 is amended by revising paragraphs (a) and (d) through (h) and deleting paragraphs (i) through (s) to read as follows:  Sx-  76.1513 Open video dispute resolution.  S(- xL(a) Complaints. Any party aggrieved by conduct that it believes constitute a violation of the regulations  xset forth in this part or in Section 653 of the Communications Act (47 U.S.C. 573) may commence an  xadjudicatory proceeding at the Commission to obtain enforcement of the rules through the filing of a  xcomplaint. The Commission shall resolve any such dispute within 180 days after the filing of a complaint.  xThe complaint shall be filed and responded to in accordance with the procedures specified in Section 76.7 of the rules with the following additions or changes: * * * * *  S!- x(d) Contents of complaint. In addition to the requirements of  76.7, an open video system complaint shall contain:  x (1) The type of entity that describes complainant (e.g., individual, private association, partnership, or  xcorporation), the address and telephone number of the complainant, and the address and telephone number of each defendant;  xk (2) If discrimination in rates, terms, and conditions of carriage is alleged, documentary evidence shall  xbe submitted such as a preliminary carriage rate estimate or a programming contract that demonstrates a"&>,`(`(88n("  xdifferential in price, terms or conditions between complainant and a competing video programming  xprovider or, if no programming contract or preliminary carriage rate estimate is submitted with the  xcomplaint, an affidavit signed by an officer of complainant alleging that a differential in price, terms or  x?conditions exists, a description of the nature and extent (if known or reasonably estimated by the  xcomplainant) of the differential, together with a statement that defendant refused to provide any further specific comparative information;  x Note to paragraph (d)(2): Upon request by a complainant, the preliminary carriage rate estimate shall  xinclude a calculation of the average of the carriage rates paid by the unaffiliated video programming  xproviders receiving carriage from the open video system operator, including the information needed for any weighting of the individual carriage rates that the operator has included in the average rate.  xz (3) If a programming contract or a preliminary carriage rate estimate is submitted with the complaint in support of the alleged violation, specific references to the relevant provisions therein.  x (4) The complaint must be accompanied by appropriate evidence demonstrating that the required notification pursuant to paragraph (c) of this section has been made.  S -(e) Answer.  xL (1) Any open video system operator upon which a complaint is served under this section shall answer within thirty (30) days of service of the complaint, unless otherwise directed by the Commission.  x= (2) An answer to a discrimination complaint shall state the reasons for any differential in prices, terms  xor conditions between the complainant and its competitor, and shall specify the particular justification  xrelied upon in support of the differential. Any documents or contracts submitted pursuant to this paragraph may be protected as proprietary pursuant to  76.9.  S- x(f) Reply. Within twenty (20) days after service of an answer, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.  Sh- xk(g) Time limit on filing of complaints . Any complaint filed pursuant to this subsection must be filed  xwithin one year of the date on which one of the following events occurs x (1) The open video system operator enters into a contract with the complainant that the complainant alleges to violate one or more of the rules contained in this part; or  x (2) The open video system operator offers to carry programming for the complainant pursuant to terms  xthat the complainant alleges to violate one or more of the rules contained in this part, and such offer to  x/carry programming is unrelated to any existing contract between the complainant and the open video system operator; or  x (3) The complainant has notified an open video system operator that it intends to file a complaint with  xthe Commission based on a request for such operator to carry the complainant's programming on its open  xvideo system that has been denied or unacknowledged, allegedly in violation of one or more of the rules contained in this part.  S- x(h) Remedies for violations (1) Remedies authorized. Upon completion of such adjudicatory  xproceeding, the Commission shall order appropriate remedies, including, if necessary, the requiring  xkcarriage, awarding damages to any person denied carriage, or any combination of such sanctions. Such order shall set forth a timetable for compliance, and shall become effective upon release.  S - ` $x(2)` ` Additional sanctions. The remedies provided in paragraph (h)(1) of this section are in  xmaddition to and not in lieu of the sanctions available under title V or any other provision of the Communications Act. "">,`(`(88 $"  S-    1 #&a\  P6G;r&P#Appendix B ĐTP  S-  FINAL REGULATORY FLEXIBILITY ANALYSIS ĐTP  R`- xA.` ` Background   1. 1. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)>  S- ` 3x1. ` ` As required by the Regulatory Flexibility Act (RFA),Z6( {Ox- x#X\  P6G;QwP#эSee 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq,. has been amended by the Contract With America  xwAdvancement Act of 1996, Pub. L. No. 104121, 110 Stat. 847 (1996) ("CWAAA"). Title II of the CWAAA is the  yO -Small Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA").  an Initial Regulatory Flexibility  S- xNAnalysis ("IRFA") was incorporated into the Notice of Proposed Rule Making ("NPRM") in this  S- xproceeding.E6( {OL - x#X\  P6G;QwP#эSee 1998 Biennial Regulatory Review Part 76 Cable Television Service Pleading and Complaint Rules, CS  {O -Docket No. 9854, Notice of Proposed Rulemaking, 13 FCC Rcd 10644 (1998) ("NPRM").E The Commission sought written public comment on the possible impact of the proposed  S- xpolicies and rules on small entities in the NPRM, including comments on the IRFA. This Final Regulatory  St-Flexibility Analysis ("FRFA") in this Report and Order ("Order") conforms to the RFA.ttF6( {OZ-#X\  P6G;QwP#эSee 5 U.S.C. 604. t  S& - xB.` ` Need for Action and Objectives of the Rules  S - ` Qx2. ` ` Section 11 of the 1996 Telecommunications Act requires the Commission to conduct a  x<biennial review of regulations that apply to operations and activities of any provider of telecommunications  S - xlservice and to repeal or modify any regulation it determines to be no longer in the public interest. 6( yO-#X\  P6G;QwP#э47 U.S.C.  161; News Release, Nov. 18, 1997.  xAlthough Section 11 does not specifically refer to cable operators, the Commission has determined that  x]the first biennial review presents an excellent opportunity for a thorough examination of all of the Commission's regulations.  R- xC.` ` Summary of Significant Issues Raised by the Public Comments in Response to the IRFA   So- ` x3. ` ` One comment was filed specifically in response to the IRFA.oh 6( yOw-#X\  P6G;QwP#эSmall Cable Business Association Comments ("SCBA"). SCBA disagrees with the  xyconclusion in the IRFA that the number of small cable businesses affected by the Commission's rules has declined since 1995.  R- `  xD.` ` Description and Estimate of the Number of Small Entities to Which the Rules Will  R-Apply (#`  SW- ` x4.` ` The RFA directs the Commission to provide a description of and, where feasible, an  xestimate of the number of small entities that might be affected by the rules here adopted. The RFA  xdefines the term "small entity" as having the same meaning as the terms "small business," "small" ,`(`(88k"  S- xorganization," and "small governmental jurisdiction."6( yOh-#X\  P6G;QwP#э#X\  P6G;QwP#5 U.S.C.  601(6). In addition, the term "small business" has the same  S- xmeaning as the term "small business concern" under the Small Business Act.X6( yO- xi#X\  P6G;QwP#э5 U.S.C. 601(3) (1980) (incorporating by reference the definition of "small business concern" in 15 U.S.C.  x632). Pursuant to 5 U.S.C. 601(3), the statutory definition of small business applies "unless an agency after  xconsultation with the Office of Advocacy of the Small Business Administration and after an opportunity for public  xhcomment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definitions in the Federal Register." Under the Small Business  xAct, a small business concern is one which: (a) is independently owned and operated; (b) is not dominant  S- xin its field of operation; and (c)satisfies any additional criteria established by the SBA.6( {O0 -#X\  P6G;QwP#эSmall Business Act, 15 U.S.C.  632.Ă The rules we  xadopt in this Report and Order will affect cable systems, multipoint multichannel distribution systems,  xdirect broadcast satellites, home satellite dish manufacturers, open video systems, satellite master antenna  xtelevision, local multipoint distribution systems, program producers and distributors, and television  xstations. Below, we set forth the general SBA and FCC cable small size standards, and then address each  xservice individually to provides a more precise estimate of small entities. We also describe program producers and distributors.  SH - ` ox5. ` ` SBA Definitions for Cable and Other Pay Television Services: The SBA has developed  xa definition of small entities for cable and other pay television services, which includes all such companies  S - xjgenerating $11 million or less in annual receipts.q 6( yO4-#X\  P6G;QwP#э13 C.F.R. 121.201 (SIC 4841).q This definition includes cable system operators, closed  xkcircuit television services, direct broadcast satellite services, multipoint distribution systems, satellite  x[master antenna systems and subscription television services. According to the Census Bureau data from  x1992, there were approximately 1,758 total cable and other pay television services and 1,423 had less than  SZ-$11 million in revenue. Z* 6( yO$- x,#X\  P6G;QwP#эU.S. Department of Commerce, Bureau of the Census, Industry and Enterprise Receipts Size Report, Table 2D, SIC 4841 (Bureau of the Census data under contract to the Office of Advocacy of the SBA).  Q2-x  S - ` Qx6. ` ` Additional Cable System Definitions: In addition, the Commission has developed, with  x=SBA's approval, our own definition of a small cable system operator for the purposes of rate regulation.  x[Under the Commission's rules, a "small cable company" is one serving no more than 400,000 subscribers  S- xnationwide. \ 6( yO - x#X\  P6G;QwP#э47 C.F.R.  76.901(e). The Commission developed this definition based on its determinations that a small cable  {O~!- xJsystem operator is one with annual revenues of $100 million or less. Implementation of Sections of the 1992 Cable  {OH"-Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393 (1995). Based on recent information, we estimate that there were 1439 cable operators that qualified  Sl- xas small cable companies at the end of 1995. l6( {O$-#X\  P6G;QwP#эPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). Since then, some of those companies may have grown to  xserve over 400,000 subscribers, and others may have been involved in transactions that caused them to  xybe combined with other cable operators. Consequently, we estimate that there are fewer than 1439 small  xentity cable system operators that may be affected by the decisions and rules we are adopting. We"8 ,`(`(88C"  x=conclude that only a small percentage of these entities currently provide qualifying "telecommunications  xservices" as required by the Communications Act and, therefore, estimate that the number of such entities are significantly fewer than noted.  S`- ` x7. ` ` The Communications Act also contains a definition of a small cable system operator,  xwhich is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of  xzall subscribers in the United States and is not affiliated with any entity or entities whose gross annual  S- x?revenues in the aggregate exceed $250,000,000."h 6( yOP-#X\  P6G;QwP#э47 U.S.C. 543(m)(2).h The Commission has determined that there are  x61,700,000 cable subscribers in the United States. Therefore, we found that an operator serving fewer  xthan 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with  Sp- xthe total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate.tpX6( yOh -#X\  P6G;QwP#э47 C.F.R.  76.1403(b) (SIC 4833).t Based on  SH - xavailable data, we find that the number of cable operators serving 617,000 subscribers or less totals 1450.H 6( {O-#X\  P6G;QwP#эPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  xAlthough it seems certain that some of these cable system operators are affiliated with entities whose gross  xannual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the  x=number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.  SX- ` 3x8. ` ` Multipoint Multichannel Distribution Systems ("MMDS"): The Commission refined its  xMdefinition of "small entity" for the auction of MMDS as an entity that together with its affiliates has  S - xLaverage gross annual revenues that are not more than $40 million for the preceding three calendar years.k z6( yO$-#X\  P6G;QwP#э47 C.F.R.  21.961(b)(1).k  S-This definition of a small entity in the context of MMDS auctions has been approved by the SBA.& 6( {O- x#X\  P6G;QwP#эSee Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the  x Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j)  {O- x;of the Communications Act Competitive Bidding, MM Docket No. 9431 and PP Docket No. 93253, Report and  {O-Order, 10 FCC Rcd 9589 (1995).  S- ` x9. ` ` The Commission completed its MMDS auction in March 1996 for authorizations in 493  x!basic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders  xindicated that they were minorityowned and four winners indicated that they were womenowned  xbusinesses. MMDS is an especially competitive service, with approximately 1573 previously authorized  xand proposed MMDS facilities. Information available to us indicates that no MMDS facility generates  xrevenue in excess of $11 million annually. We conclude that, for purposes of this FRFA, there are approximately 1634 small MMDS providers as defined by the SBA and the Commission's auction rules.  SR- ` x 10. ` ` Direct Broadcast Satellite ("DBS"): Because DBS provides subscription services, DBS  xfalls within the SBA definition of cable and other pay television services (SIC 4841). As of December  S- x1996, there were eight DBS licensees. In the NPRM we concluded that no DBS operator qualifies as a  S- xsmall entity. Since the publication of the NPRM, more information has become available. In light of the" ,`(`(88L"  x{1997 gross revenue figures for the various DBS operators, we restate our conclusion that no DBS operator qualifies as a small entity.  S- ` Rx 11. ` ` Home Satellite Dish ("HSD"): The market for HSD service is difficult to quantify.  xIndeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than  xy500 channels of programming placed on Cband satellites by programmers for receipt and distribution by  S- xMVPDs, of which 350 channels are scrambled and approximately 150 are unscrambled.@6( {Oz- x,#X\  P6G;QwP#эAnnual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, CS Docket  {OD-No. 97141, Fourth Annual Report ("1997 Report"), 13 FCC Rcd 1034 at  68 (1997).@ HSD owners  xcan watch unscrambled channels without paying a subscription fee. To receive scrambled channels,  xyhowever, an HSD owner must purchase an integrated receiverdecoder from an equipment dealer and pay  xNa subscription fee to an HSD programming packager. Thus, HSD users include: (1) viewers who  xsubscribe to a packaged programming service, which affords them access to most of the same  xprogramming provided to subscribers of other MVPDs; (2) viewers who receive only nonsubscription  S" -programming; and (3) viewers who receive satellite programming services illegally without subscribing.d" $6( {O-#X\  P6G;QwP#эId. at 69.d  S - ` Qx 12. ` ` According to the most recently available information, there are approximately 20 to 25  S - xjprogram packagers nationwide offering packages of scrambled programming to retail consumers.d 6( {O-#X\  P6G;QwP#эId. at 68.d These  S - xprogram packagers provide subscriptions to approximately 2,184,470 subscribers nationwide.d H6( {Oj-#X\  P6G;QwP#эId. at  69.d This is  xan average of about 77,163 subscribers per program packager. This is substantially smaller than the  x400,000 subscribers used in the Commission's definition of a small multiple system operator ("MSO").  S- ` x 13. ` ` Satellite Master Antenna Television ("SMATVs"): Industry sources estimate that  S- xLapproximately 5200 SMATV operators were providing service as of December 1995.E6( {O6- x;#X\  P6G;QwP#эAnnual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, CS Docket  {O-No. 96133, Third Annual Report ("1996 Report"), 12 FCC Rcd 4358 at 81 (1996).E Other estimates  x=indicate that SMATV operators serve approximately 1.162 million residential subscribers as of June 30,  Sl- xi1997.~l6 6( {OB-#X\  P6G;QwP#э1997 Report, 13 FCC Rcd at  84.~ The ten largest SMATV operators together pass 848,450 units.rl 6( {O -#X\  P6G;QwP#эId. at Appendix D, Table D1.r If we assume that these SMATV  xLoperators serve 50% of the units passed, the ten largest SMATV operators serve approximately 40% of  xthe total number of SMATV subscribers. Because these operators are not rate regulated, they are not  xrequired to file financial data with the Commission. Furthermore, we are not aware of any privately  xpublished financial information regarding these operators. Based on the estimated number of operators  x\and the estimated number of units served by the largest ten SMATVs, we conclude that a substantial number of SMATV operators qualify as small entities. "TZ ,`(`(88"Ԍ S- ` x 14. ` ` Local Multipoint Distribution System ("LMDS"): Unlike the above pay television services,  xLMDS technology and spectrum allocation will allow licensees to provide wireless telephony, data, and/or  xvideo services. A LMDS provider is not limited in the number of potential applications that will be  xavailable for this service. Therefore, the definition of a small LMDS entity may be applicable to both  xLcable and other pay television (SIC 4841) and/or radiotelephone communications companies (SIC 4812).  x=The SBA approved definition for cable and other pay services that qualify as a small business is defined  S- x-in paragraphs 56, supra. A small radiotelephone entity is one with 1500 employees or fewer.f6( yOz-#X\  P6G;QwP#э13 C.F.R.  121.201.f However,  S-for the purposes of this Report and Order, we include only an estimate of LMDS video service providers.  S- ` x15. ` ` An auction for licenses to operate LMDS systems was recently completed by the  xCommission. The vast majority of the LMDS license auction winners were small businesses under the  SN - x>SBA's definition of cable and pay television (SIC 4841).N X6( {OF -#X\  P6G;QwP#эSee Appendix B (D), supra, for an estimate of the number of entities under SIC 4841. In the Second R&O,L&N 6( {O- xZ#X\  P6G;QwP#эIn the Matter of Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's Rules to Redesignate the  x;27.529.5 GHz Frequency Band, to Reallocate the 29.530.0 GHz Frequency Band, to Establish Rules and Policies  {Oj- xfor Local Multipoint Distribution Service, CC Docket No. 92297, Second Report and Order, Order on  {O4-Reconsideration, and Fifth Notice of Proposed Rule Making, 62 FR 23148 (1997) ("Second R&O").L we adopted a small  xbusiness definition for entities bidding for LMDS licenses as an entity that, together with affiliates and  xcontrolling principles, has average gross revenues not exceeding $40 million for each of the three preceding years. We have not yet received approval by the SBA for this definition.  S - ` x16. ` ` There is only one company, CellularVision, that is currently providing LMDS video  S`- xservices. In the IRFA, we assumed that CellularVision was a small business under both the SBA  xdefinition and our auction rules. No commenters addressed the tentative conclusions we reached in the  S- xyNPRM. Accordingly, we affirm our tentative conclusion that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA.  S- ` x17. ` ` Open Video System ("OVS"): The Commission has certified 15 OVS operators. Of these  xnine, only two are providing service. On October 17, 1996, Bell Atlantic received approval for its  SN- xcertification to convert its Dover, New Jersey Video Dialtone ("VDT") system to OVS. N6( {O- x#X\  P6G;QwP#эBell AtlanticNew Jersey, Inc. (Certification to Operate an Open Video System), 11 FCC Rcd 13249 (CSB  {O-1996) ("Bell Atlantic OVS Certification").  Bell Atlantic  xsubsequently purchased the division of Futurevision which had been the only operating program package  S- xprovider on the Dover system, and has begun offering programming on this system using these resources.4 6( {O!- xK#X\  P6G;QwP#эBell Atlantic, Bell Atlantic Now Offering Video Services in Dover Township New Jersey (news release), Nov. 1, 1996.  xMetropolitan Fiber Systems was granted certifications on December 9, 1996, for the operation of OVS  S- xysystems in Boston and New York, both of which are being used to provide programming.  6( {O%- x#X\  P6G;QwP#эSee Metropolitan Fiber Systems/New York, Inc. (Certification to Operate an Open Video System), Consolidated Order, 11 FCC Rcd 20896, DA 962075 (CSB Dec. 9, 1996).  Bell Atlantic  xand Metropolitan Fiber Systems have sufficient revenues to assure us that they do not qualify as small",`(`(88"  xbusiness entities. Little financial information is available for the other entities authorized to provide OVS  S- xthat are not yet operational. We believe that one OVS licensee may qualify as a small business concern.  xGiven that other entities have been authorized to provide OVS service but have not yet begun to generate revenues, we conclude that at least some of the OVS operators qualify as small entities.  S8- ` x18. ` ` Program Producers and Distributors:  The Commission has not developed a definition  S- xof small entities applicable to producers or distributors of television programs.6( yOz- x<#X\  P6G;QwP#эThe term "television programs" is used in this context to include all video programming outlets, e.g., cable, DBS. Therefore, we will utilize  S- xLthe SBA classifications of Motion Picture and Video Tape Production (SIC 7812),  6( yO - x,#X\  P6G;QwP#э"Establishments primarily engaged in the production of theatrical and nontheatrical motion pictures and video  xtapes for exhibition or sale, including educational, industrial, and religious films. Included in the industry are  xestablishments engaged in both production and distribution. Producers of live radio and television programs are  xYclassified in Industry 7922." Standard Industrial Classification Manual, SIC 7812, Executive Office of the President, Office of Management and Budget (1987) (OMB SIC Manual).  Motion Picture and  S- xVideo Tape Distribution (SIC 7822),U!X6( yO2- xi#X\  P6G;QwP#э"Establishments primarily engaged in the distribution (rental or sale) of theatrical and nontheatrical motion  xipicture films or in the distribution of video tapes and disks, except to the general public." OMB SIC Manual, SIC 7822.U and Theatrical Producers (Except Motion Pictures) and  S- xMiscellaneous Theatrical Services (SIC 7922).Z"X 6( yO*- x#X\  P6G;QwP#э"Establishments primarily engaged in providing live theatrical presentations, such as road companies and  xLsummer theaters. . . . Also included in this industry are producers of . . . live television programs." OMB SIC Manual, SIC 7922.Z These SBA definitions provide that a small entity in the  xtelevision programming industry is an entity with $21.5 million or less in annual receipts for SIC 7812  SJ - xand 7822, and $5 million or less in annual receipts for SIC 7922.#J 6( yO-#X\  P6G;QwP#э13 C.F.R.  121.201.#x6X@`7 2X@#э The 1992 Bureau of the Census data  xjindicate the following: (1) there were 7265 U.S. firms classified as Motion Picture and Video Production  x[(SIC 7812), and that 6987 of these firms had $16,999 million or less in annual receipts and 7002 of these  S - xfirms had $24,999 million or less in annual receipts;-$ 6( yO- x#X\  P6G;QwP#эU.S. Small Business Administration 1992 Economic Census Industry and Enterprise Report, Table 2D, SIC  x-7812, (Bureau of the Census data adapted by the Office of Advocacy of the U.S. Small Business Administration)  x(SBA 1992 Census Report). The Census data do not include a category for $21.5 million. Therefore, we have  xreported the closest increment below and above the $21.5 million threshold. There is a difference of 15 firms  xxbetween the $16,999 and $24,999 million annual receipt categories. It is possible that these 15 firms could have annual receipts of $21.5 million or less and, therefore, would be classified as small businesses.- (2) there were 1139 U.S. firms classified as Motion  xkPicture and Tape Distribution (SIC 7822), and that 1007 of these firms had $16,999 million or less in  S - xannual receipts and 1013 of these firms had $24,999 million or less in annual receipts;7%  6( yO:$- x,#X\  P6G;QwP#эSBA 1992 Census Report, SIC 7812. The Census data does not include a category for $21.5 million; therefore,  xwe have reported the closest increment below and above the $21.5 million benchmark. There is a difference of 6  xfirms between the $16,999 and $24,999 million annual receipt categories. It is possible that these 6 firms could have annual receipts of $21.5 million or less and, therefore, would be classified as small businesses.7 and (3) there were" %,`(`(88j"  x5671 U.S. firms classified as Theatrical Producers and Services (SIC 7922), and that 5627 of these firms  S-had less than $5 million in annual receipts.p&6( yO@-#X\  P6G;QwP#эSBA 1992 Census Report, SIC 7922.p  S- ` x19.` ` Each of these SIC categories is very broad and includes firms that may be engaged in  xvarious industries including television. Specific figures are not available as to how many of these firms  xLexclusively produce and/or distribute programming for television or how many are independently owned  x=and operated. Consequently, we conclude that there are approximately 6987 small entities that produce  xand distribute taped television programs, 1013 small entities primarily engaged in the distribution of taped  xtelevision programs, and 5627 small producers of live television programs that may be affected by the  S-rules adopted in this Report and Order. x  SJ - ` nx20. ` ` Television Stations: The rules will apply to television broadcasting licensees, and potential  xlicensees of television service. The Small Business Administration defines a television broadcasting station  S - x that has no more than $10.5 million in annual receipts as a small business.' X6( yO-#X\  P6G;QwP#э13 C.F.R.  121.201, Standard Industrial Code (SIC) 4833 (1996). Television broadcasting  xLstations consist of establishments primarily engaged in broadcasting visual programs by television to the  S - xNpublic, except cable and other pay television services.p( 6( yO4- xZ#X\  P6G;QwP#эEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS OF  yO-TRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92S1, Appendix A9 (1995).p Included in this industry are commercial,  S - xjreligious, educational, and other television stations.)z @6( {Od- xY#X\  P6G;QwP#эId. See Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual (1987), at 283, which describes "Television Broadcasting Stations (SIC Code 4833) as:  XxEstablishments primarily engaged in broadcasting visual programs by television to the public,  mexcept cable and other pay television services. Included in this industry are commercial, religious,  meducational and other television stations. Also included here are establishments primarily engaged in television broadcasting and which produce taped television program materials.  Also included are establishments primarily engaged  S\- x-in television broadcasting and which produce taped television program materials.v*\ 6( yO~- xZ#X\  P6G;QwP#эEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS OF  yOF-TRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92S1, Appendix A9 (1995).v Separate establishments  xprimarily engaged in producing taped television program materials are classified under another SIC  S - xnumber.+ 6( {O - xJ#X\  P6G;QwP#эId. SIC 7812 (Motion Picture and Video Tape Production); SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services (producers of live radio and television programs).  There were 1,509 television stations operating in the nation in 1992.y, 46( yO"-#X\  P6G;QwP#эFCC News Release No. 31327, Jan. 13, 1993.y That number has  xremained fairly constant as indicated by the approximately 1,579 operating full power television  S- xbroadcasting stations in the nation as of May 31, 1998.-6( {O &-#X\  P6G;QwP#эSee Broadcast Station Totals As Of May 31, 1998, FCC News Release, June 19, 1998. In addition, as of October 31, 1997, there were" V-,`(`(88"  S- x1,880 LPTV stations that may also be affected by our rules..6( yOh-#X\  P6G;QwP#эGiven the nature of LPTV stations, we will presume that all LPTVs qualify as small entities. For 1992 /X6( {O- x#X\  P6G;QwP#эCensus for Communications' establishments are performed every five years ending with a "2" or "7". See Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce.  the number of television stations  S-that produced less than $10.0 million in revenue was 1,155 establishments.0X6( yO*- x#X\  P6G;QwP#эThe amount of $10 million was used to estimate the number of small business establishments because the  xrelevant Census categories stopped at $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, the number is as accurate as it is possible to calculate with the available information.  S- ` Dx21. ` ` Thus, the rules will affect many of the approximately 1,579 television stations;  S`- x[approximately 1,200 of those stations are considered small businesses."1`6( yO - x#X\  P6G;QwP#эWe use the 77 percent figure of TV stations operating at less than $10 million for 1992 and apply it to the 1998 total of 1579 TV stations to arrive at 1,200 stations categorized as small businesses." These estimates may overstate  xjthe number of small entities since the revenue figures on which they are based do not include or aggregate revenues from nontelevision affiliated companies.  S- ` x22. ` ` In addition to owners of operating television stations, any entity who seeks or desires to  xobtain a television broadcast license may be affected by the rules contained in this item. The number of entities that may seek to obtain a television broadcast license is unknown.  R -x E.` ` Description of Reporting, Recordkeeping and Other Compliance Requirements (#`  S - ` 2x23. ` ` This analysis examines the costs and administrative burdens associated with our rules and  x=requirements. The rules we adopt do not add additional compliance requirements, except in that a party  xinvolved in a nonrulemaking Part 76 proceeding may be required to participate in a status conference.  xThe Commission believes, however, that this requirement would not necessitate significant additional costs  xjor skills beyond those already utilized in the ordinary course of business. The Commission believes that  xthis requirement will be beneficial to participants. The status conference is a useful mechanism for  xachieving a swift conclusion to disputes. The rules provide that such conferences may be conducted over the telephone, thereby eliminating the need for parties to incur travel expenses to attend the conference.  Rh- `   xF.` ` Steps Taken to Minimize Significant Economic Impact On Small Entities and  R@-Significant Alternatives Considered (#`  S- ` 2x24. ` ` We believe that our rules, implemented to streamline the pleading requirements associated  xkwith Part 76 filings, make the amended Part 76 easier to use than the current rules. Several rules have  xbeen shortened or eliminated in order to make the Part 76 rules more concise. Additionally, where possible, the procedural requirements for Part 76 filings have been standardized "P!* 1,`(`(88"  R- xG.` ` Report to Congress  x  S- ` x25. ` ` The Commission will send a copy of the Report and Order, including this FRFA, in a  xreport to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  Sb- x801(a)(1)(A). The Report and Order and this FRFA (or summaries thereof) will also be published in  S<- xzthe Federal Register, see 5 U.S.C. 604(b), and will be sent to the Chief Counsel for Advocacy of the Small Business Administration.