Revision of the Commission's Program Carriage Rules, 60675-60700 [2011-24239]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60675-60700]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24239]



Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / 
Proposed Rules

[[Page 60675]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 11-131; FCC 11-119]


Revision of the Commission's Program Carriage Rules

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In 1993, the Federal Communications Commission (FCC) adopted 
rules pertaining to carriage of video programming vendors by 
multichannel video programming distributors (``MVPDs''), known as the 
``program carriage rules.'' The rules are intended to benefit consumers 
by promoting competition and diversity in the video programming and 
video distribution markets. In this document, the FCC seeks comment on 
proposed revisions to or clarifications of the program carriage rules, 
which are intended to further improve the Commission's procedures and 
to advance the goals of the program carriage statute.

DATES: Submit comments on or before November 28, 2011, and submit reply 
comments on or before December 28, 2011. See SUPPLEMENTARY INFORMATION 
section for additional comment dates.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-131, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: https://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act proposed information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167. For detailed 
instructions for submitting comments and additional information on the 
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact David Konczal, David.Konczal@fcc.gov, of the Media 
Bureau, Policy Division, 202-418-2120. For additional information 
concerning the Paperwork Reduction Act information collection 
requirements contained in this document, send an e-mail to PRA@fcc.gov 
or contact Cathy Williams at 202-418-2918. To view or obtain a copy of 
this information collection request (ICR) submitted to OMB: (1) Go to 
this OMB/GSA Web page: https://www.reginfo.gov/public/do/PRAMain, (2) 
look for the section of the Web page called ``Currently Under Review,'' 
(3) click on the downward-pointing arrow in the ``Select Agency'' box 
below the ``Currently Under Review'' heading, (4) select ``Federal 
Communications Commission'' from the list of agencies presented in the 
``Select Agency'' box, (5) click the ``Submit'' button to the right of 
the ``Select Agency'' box, and (6) when the list of FCC ICRs currently 
under review appears, look for the OMB control number of the ICR as 
show in the SUPPLEMENTARY INFORMATION section below (3060-0649) and 
then click on the ICR Reference Number. A copy of the FCC submission to 
OMB will be displayed.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), MB Docket No. 11-131, FCC No. 11-119, 
adopted on July 29, 2011 and released on August 1, 2011. The full text 
of the NPRM is available for public inspection and copying during 
regular business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also 
may be purchased from the Commission's duplicating contractor at 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; 
the contractor's Web site, https://www.bcpiweb.com; or by calling 800-
378-3160, facsimile 202-488-5563, or e-mail FCC@BCPIWEB.com. Copies of 
the NPRM also may be obtained via the Commission's Electronic Comment 
Filing System (ECFS) by entering the docket number, MB Docket No. 11-
131. Additionally, the complete item is available on the Federal 
Communications Commission's Web site at https://www.fcc.gov.
    This document contains proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Written comments on the 
Paperwork Reduction Act proposed information collection requirements 
must be submitted by the public, Office of Management and Budget (OMB), 
and other interested parties on or before November 28, 2011.
    Comments should address: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; (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; and (e) 
ways to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.
    OMB Control Number: 3060-0888.
    Title: Section 76.7, Petition Procedures; Sec.  76.9, 
Confidentiality of Proprietary Information; Sec.  76.61, Dispute 
Concerning Carriage; Sec.  76.914, Revocation of Certification; Sec.  
76.1001, Unfair Practices; Sec.  76.1003, Program Access Proceedings; 
Sec.  76.1302, Carriage Agreement Proceedings; Sec.  76.1303, 
Discovery; Sec.  76.1513, Open Video Dispute Resolution.
    Form Number: Not applicable.
    Type of Review: Revision of a currently approved collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents and Responses: 648.
    Estimated Time per Response: 5.2 to 78 hours.

[[Page 60676]]

    Frequency of Response: On occasion reporting requirement; third 
party disclosure requirement.
    Obligation to Respond: Required to obtain or retain benefits. The 
statutory authority for this collection of information is contained in 
contained in sections 4(i), 303(r), and 616 of the Communications Act 
of 1934, as amended.
    Total Annual Burden: 26,957 hours.
    Total Annual Cost: $1,749,600.
    Privacy Act Impact Assessment: No impact.
    Nature and Extent of Confidentiality: A party that wishes to have 
confidentiality for proprietary information with respect to a 
submission it is making to the Commission must file a petition pursuant 
to the pleading requirements in Sec.  76.7 and use the method described 
in Sec. Sec.  0.459 and 76.9 to demonstrate that confidentiality is 
warranted.
    Needs and Uses: On August 1, 2011, the Commission adopted a Notice 
of Proposed Rulemaking (``NPRM''), Revision of the Commission's Program 
Carriage Rules, MB Docket No. 11-131, FCC 11-119. The Commission seeks 
comment on revisions to or clarifications of the program carriage 
rules, which are intended to further improve the Commission's 
procedures and to advance the goals of the program carriage statute.
    The NPRM proposes to add or revise the following rules sections: 47 
CFR 76.1302(c)(4), 47 CFR 76.1302(d)(3)(iii), 47 CFR 76.1302(d)(3)(iv), 
47 CFR 76.1302(d)(3)(v), 47 CFR 76.1302(e)(3), 47 CFR 76.1302(h), 47 
CFR 76.1302(j)(1), 47 CFR 76.1302(j)(3), 47 CFR 76.1302(j)(4), 47 CFR 
76.1302(k)(3), and 47 CFR 76.1303.
    If adopted, 47 CFR 76.1302(c)(4) would provide that, in a case 
where recovery of damages is sought, the complaint shall contain a 
clear and unequivocal request for damages and appropriate allegations 
in support of such claim, and lists the information that must be 
included in the complaint when requesting damages.
    47 CFR 76.1302(d)(3)(iii) sets forth the evidence that a program 
carriage complaint filed pursuant to Sec.  76.1302 must contain in 
order to establish a prima facie case of discrimination in violation of 
Sec.  76.1301, and, if the revision in the NPRM is adopted, would also 
apply to new claims alleging that a vertically integrated MVPD has 
discriminated on the basis of a programming vendor's lack of 
affiliation with another MVPD.
    If adopted, 47 CFR 76.1302(d)(3)(iv) would set forth the evidence 
that a program carriage complaint filed pursuant to Sec.  76.1302 must 
contain in order to establish a prima facie case of retaliation in 
violation of Sec.  76.1301.
    If adopted, 47 CFR 76.1302(d)(3)(v) would set forth the evidence 
that a program carriage complaint filed pursuant to Sec.  76.1302 must 
contain in order to establish a prima facie case of bad faith 
negotiations in violation of Sec.  76.1301.
    If adopted, 47 CFR 76.1302(e)(3) would require a multichannel video 
programming distributor that expressly references and relies upon a 
document or documents in asserting a defense to a program carriage 
complaint or in responding to a material allegation in a program 
carriage complaint, to include such document or documents as part of 
the answer.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(h) would 
state that any complaint filed pursuant to this subsection must be 
filed within one year of the date on which the alleged violation of the 
program carriage rules occurred.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(j)(1) would 
state that upon completion of an adjudicatory proceeding, the 
adjudicator deciding the case on the merits (i.e., either the Chief, 
Media Bureau or an administrative law judge) shall order appropriate 
remedies, including, if necessary, mandatory carriage of a video 
programming vendor's programming on defendant's video distribution 
system, or the establishment of prices, terms, and conditions for the 
carriage of a video programming vendor's programming. Such order shall 
set forth a timetable for compliance, and shall become effective upon 
release, unless the adjudicator rules that the defendant has made a 
sufficient evidentiary showing that demonstrates that an order of 
mandatory carriage would require the defendant multichannel video 
programming distributor to delete existing programming from its system 
to accommodate carriage of a video programming vendor's programming. In 
such instances, if the defendant seeks review of the staff, or 
administrative law judge decision, the order for carriage of a video 
programming vendor's programming will not become effective unless and 
until the decision of the staff or administrative law judge is upheld 
by the Commission.
    If adopted, 47 CFR 76.1302(j)(3) would provide that, to assist in 
ordering an appropriate remedy, the adjudicator has the discretion to 
order the complainant and the defendant to each submit a final offer 
for the prices, terms, or conditions in dispute. The adjudicator has 
the discretion to adopt one of the final offers or to fashion its own 
remedy.
    If adopted, 47 CFR 76.1302(j)(4) would provide that the (i) 
adjudicator may require the complainant to resubmit a damages 
computation or damages methodology filed pursuant to Sec.  
76.1302(c)(4); and (ii) where the adjudicator issues a written order 
approving or modifying a damages methodology, the parties shall 
negotiate in good faith to reach an agreement on the exact amount of 
damages pursuant to the adjudicator-mandated methodology and within 
thirty (30) days of the issuance of a damages methodology order, the 
parties shall submit jointly to the adjudicator either: (1) A statement 
detailing the parties' agreement as to the amount of damages; (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 (3) A statement detailing the bases for the 
continuing dispute and the reasons why no agreement can be reached.
    If the revision in the NPRM is adopted, 47 CFR 76.1302(k)(3) would 
provide that, in cases where a standstill petition is granted, the 
adjudicator, in order to facilitate the application of remedies as of 
the expiration date of the previous programming contract, may request 
after deciding the case on the merits that the party seeking to apply 
the remedies as of the expiration date of the previous programming 
contract to submit a proposal for such application of remedies pursuant 
to the procedures for requesting damages set forth in Sec.  
76.1302(c)(4) and Sec.  76.1302(j)(4). An opposition to such a proposal 
shall be filed within ten (10) days after the proposal is filed. A 
reply to an opposition shall be filed within five (5) days after the 
opposition is filed.
    If adopted, 47 CFR 76.1303 would provide for discovery procedures 
in complaint proceedings alleging a violation of Sec.  76.1301 in which 
the Chief, Media Bureau acts as the adjudicator. With respect to 
automatic document production, within ten (10) calendar days after the 
Chief, Media Bureau releases a decision finding that the complainant 
has established a prima facie case of a violation of Sec.  76.1301 and 
stating that the Chief, Media Bureau will issue a ruling on the merits 
of the complaint after discovery, each party must provide certain 
documents listed in the Commission's rules to the opposing party. With 
respect to party-to-party discovery, within twenty (20) calendar days 
after the Chief, Media Bureau releases a decision finding that the 
complainant has established a prima

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facie case of a violation of Sec.  76.1301 and stating that the Chief, 
Media Bureau will issue a ruling on the merits of the complaint after 
discovery, each party to the complaint may serve requests for discovery 
directly on the opposing party, and file a copy of the request with the 
Commission. Within five (5) calendar days after being served with a 
discovery request, the respondent may serve directly on the party 
requesting discovery an objection to any request for discovery that is 
not in the respondent's control or relevant to the dispute, and file a 
copy of the objection with the Commission. Within five (5) calendar 
days after being served with an objection to a discovery request, the 
party requesting discovery may serve a reply to the objection directly 
on the respondent, and file a copy of the reply with the Commission. To 
the extent that a party has objected to a discovery request, the 
parties shall meet and confer to resolve the dispute. Within forty (40) 
calendar days after the Chief, Media Bureau releases a decision finding 
that the complainant has established a prima facie case of a violation 
of Sec.  76.1301 and stating that the Chief, Media Bureau will issue a 
ruling on the merits of the complaint after discovery, the parties 
shall file with the Commission a joint proposal for discovery as well 
as a list of issues pertaining to discovery that have not been 
resolved.
    All other remaining existing information collection requirements 
would stay as they are, and the various burden estimates would be 
revised to reflect the new and revised rules noted above.

Summary of the Notice of Proposed Rulemaking

I. Notice of Proposed Rulemaking

    1. In this NPRM in MB Docket No. 11-131, we seek comment on the 
following additional revisions or clarifications to both our procedural 
and substantive program carriage rules, which are intended to 
facilitate the resolution of program carriage claims.\1\ We also invite 
commenters to suggest any other changes to our program carriage rules 
that would improve our procedures and promote the goals of the program 
carriage statute.
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    \1\ Unless otherwise noted, all references to comments, reply 
comments, or letters in this NPRM refer to submissions filed in 
response to the Program Carriage NPRM in MB Docket No. 07-42. See 
Program Carriage NPRM, MB Docket No. 07-42, 22 FCC Rcd 11222 (2007).
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A. Statute of Limitations

    2. The current program carriage statute of limitations set forth in 
Sec.  76.1302(f) provides that a complaint must be filed ``within one 
year of the date on which one of the following events occurs:
    (1) The multichannel video programming distributor enters into a 
contract with a video programming distributor that a party alleges to 
violate one or more of the rules contained in this section; or
    (2) The multichannel video programming distributor offers to carry 
the video programming vendor's programming pursuant to terms that a 
party alleges to violate one or more of the rules contained in this 
section, and such offer to carry programming is unrelated to any 
existing contract between the complainant and the multichannel video 
programming distributor; or
    (3) A party has notified a multichannel video programming 
distributor that it intends to file a complaint with the Commission 
based on violations of one or more of the rules contained in this 
section.'' \2\
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    \2\ 47 CFR 76.1302(f). This rule will now appear at Sec.  
76.1302(h) once the amendments adopted in the Second Report and 
Order in MB Docket No. 07-42 take effect.
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    Our concern is with Sec.  76.1302(f)(3), which states that a 
complaint is timely if filed within one year of when the complainant 
notified the defendant MVPD of its intention to file a complaint and 
contains no reference to when the alleged violation of the program 
carriage rules occurred.\3\ In other words, the rule could be read to 
provide that, even if the act alleged to have violated the program 
carriage rules occurred many years before the filing of the complaint, 
the complaint is nonetheless timely if filed within one year of when 
the complainant notified the defendant MVPD of its intention to file. 
Moreover, the introductory language to Sec.  76.1302(f) provides that a 
complaint must be filed ``within one year of the date on which one of 
the following events occurs,'' which implies that a complaint filed in 
compliance with Sec.  76.1302(f)(3) is timely even if it would be 
untimely under Sec. Sec.  76.1302(f)(1) or (f)(2). Thus, it appears 
that Sec.  76.1302(f)(3) undermines the fundamental purpose of a 
statute of limitations ``to protect a potential defendant against stale 
and vexatious claims by ending the possibility of litigation after a 
reasonable period of time has elapsed.''
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    \3\ As originally adopted in the 1993 Program Carriage Order, 
the rule that is now Sec.  76.1302(f)(3) formerly read that a 
complaint must be filed within one year of the date when ``the 
complainant has notified a multichannel video programming 
distributor that it intends to file a complaint with the Commission 
based on a request for carriage or to negotiate for carriage of its 
programming on defendant's distribution system that has been denied 
or unacknowledged, allegedly in violation of one or more of the 
rules contained in this subpart.'' See 1993 Program Carriage Order, 
9 FCC Rcd at 2652-53, para. 25 and 2676, Appendix D (47 CFR 
76.1302(r)(3)). In the 1994 Program Carriage Order, the Commission 
eliminated without explanation the language in this rule specifying 
that the complainant's notice of intent would be ``based on a 
request for carriage or to negotiate for carriage of its programming 
on defendant's distribution system that has been denied or 
unacknowledged.'' The Commission replaced the rule with the current 
language, with a minor edit adopted in the 1998 Biennial Regulatory 
Review Order. See 1994 Program Carriage Order, 9 FCC Rcd at 4421, 
Appendix A (47 CFR 76.1302(r)(3)); 1998 Biennial Regulatory Review 
Order, 14 FCC Rcd at 441, Appendix A (changing the word ``subpart'' 
to ``section'').
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    3. In light of these concerns, we propose to revise our program 
carriage statute of limitations to provide that a complaint must be 
filed within one year of the act that allegedly violated the program 
carriage rules. We seek comment on any potential ramifications of this 
revised statute of limitations on programming vendors and MVPDs. We 
recognize that the issue of when the act that allegedly violated the 
rules occurred is fact-specific and in some cases may be subject to 
differing views between the parties. For example, to the extent that 
the claim involves denial of carriage, an issue might arise as to 
whether the denial occurred when the MVPD first rejected a programming 
vendor's request for carriage early in the negotiation process or 
whether the denial occurred later after further carriage discussions. 
We expect that the adjudicator will be able to resolve such issues on a 
case-by-case basis. We believe our proposed rule revision will ensure 
that program carriage complaints are filed on a timely basis and will 
provide certainty to both MVPDs and prospective complainants. We 
propose that this revised statute of limitations will replace Sec.  
76.1302(f) in its entirety, thereby providing for one broad rule 
covering all program carriage claims. Alternatively, we could replace 
only Sec.  76.1302(f)(3) with this revised statute of limitations and 
retain Sec.  76.1302(f)(1) and (f)(2). Because this revised statute of 
limitations would appear to cover the claims referred to in Sec.  
76.1302(f)(1) and (f)(2), however, replacing Sec.  76.1302(f) in its 
entirety appears to be warranted. We ask parties to comment on this 
issue.
    4. To the extent we retain Sec.  76.1302(f)(1), we propose to make 
a minor clarification. As amended in the 1998 Biennial Regulatory 
Review Order, the rule currently provides that a complaint must be 
filed within one year of the date when a ``multichannel video 
programming distributor enters into a contract with a video programming 
distributor'' that a party alleges to

[[Page 60678]]

violate one or more of the program carriage rules. The program carriage 
statute and rules, however, pertain to contracts, and negotiations 
related thereto, between MVPDs and video programming vendors, not 
distributors. Indeed, section 616 of the Act refers to ``video 
programming vendors.'' Consistent with the statute, the previous 
version of this rule adopted in the 1994 Program Carriage Order 
accurately stated that the contract must be entered into with a ``video 
programming vendor,'' not a ``distributor.'' Accordingly, to the extent 
we retain Sec.  76.1302(f)(1), we propose to replace the term ``video 
programming distributor'' with ``video programming vendor.''

B. Discovery

    5. We seek comment on whether to revise our discovery procedures 
for program carriage complaint proceedings in which the Media Bureau 
rules on the merits of the complaint after discovery. As discussed 
above, if the Media Bureau finds that the complainant has established a 
prima facie case but determines that it cannot resolve the complaint 
based on the existing record, the Media Bureau may outline procedures 
for discovery before proceeding to rule on the merits of the complaint 
or it may refer the proceeding or discrete issues raised in the 
proceeding for an adjudicatory hearing before an ALJ. To the extent the 
Media Bureau proceeds to develop discovery procedures, the 1993 Program 
Carriage Order provides that ``[w]herever possible, to avoid discovery 
disputes and arguments pertaining to relevance, the staff will itself 
conduct discovery by issuing appropriate letters of inquiry or 
requiring that specific documents be produced.'' \4\ We seek comment on 
revising the Media Bureau's discovery process for program carriage 
complaints based on the following: (i) Expanded discovery procedures 
(also known as party-to-party discovery) similar to the procedures that 
exist for program access complaints; and (ii) an automatic document 
production process that is narrowly tailored to program carriage 
complaints. This discovery process would be in addition to the Media 
Bureau's ability to order discovery under Sec.  76.7(f). We also seek 
comment on any other approaches to discovery. Our goal is to establish 
a discovery process that ensures the expeditious resolution of 
complaints while also ensuring fairness to all parties.
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    \4\ See 1993 Program Carriage Order, 9 FCC Rcd at 2655-56, para. 
32; see also id. at 2652, para. 23 (providing that discovery will 
``not necessarily be permitted as a matter of right in all cases, 
but only as needed on a case-by-case basis, as determined by the 
staff''); see also 47 CFR 76.7(f).
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1. Expanded Discovery Procedures
    6. We seek comment on whether to adopt expanded discovery 
procedures for program carriage complaint proceedings in which the 
Media Bureau rules on the merits of the complaint after discovery 
similar to the procedures that exist for program access cases. Under 
the current program carriage rules, discovery is Commission-controlled, 
meaning that Media Bureau staff identifies the matters for which 
discovery is needed and then issues letters of inquiry to the parties 
on those matters or requires the parties to produce specific documents 
related to those matters. Under the expanded discovery procedures 
applicable to program access cases, however, discovery is controlled by 
the parties. As an initial matter, the program access rules provide 
that, to the extent the defendant expressly references and relies upon 
a document in asserting a defense or responding to a material 
allegation, the document must be included as part of the answer. In 
addition, parties to a program access complaint may serve requests for 
discovery directly on opposing parties rather than relying on the Media 
Bureau staff to seek discovery through letters of inquiry or document 
requests. The respondent may object to any request for documents that 
are not in its control or relevant to the dispute.\5\ The obligation to 
produce the disputed material is suspended until the Commission rules 
on the objection. Any party who fails to timely provide discovery 
requested by the opposing party to which it has not raised an 
objection, or who fails to respond to a Commission order for discovery 
material, may be deemed in default and an order may be entered in 
accordance with the allegations contained in the complaint, or the 
complaint may be dismissed with prejudice. We seek comment on whether 
these are appropriate discovery procedures for program carriage 
complaints decided on by the Media Bureau after discovery. Is there any 
basis to believe that expanded discovery procedures are appropriate for 
program access cases but not program carriage cases? Will expanded 
discovery procedures hinder the Media Bureau's ability to comply with 
the expedited deadline adopted in the Second Report and Order for the 
resolution of program carriage complaints? \6\ Are the parties to a 
complaint in a better position to determine what information is needed 
to support their cases than Media Bureau staff, thus establishing 
expanded discovery procedures as fairer to all parties than Commission-
controlled discovery? Should we make clear that expanded discovery 
procedures apply to all forms of discovery, including document 
production, interrogatories, and depositions? \7\ We note that, as 
described below, to ensure that confidential information is not 
improperly used for competitive business purposes, we seek comment on 
adopting a more stringent standard protective order and declaration 
than is currently used in program access cases.
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    \5\ See 47 CFR 76.1003(j); 2007 Program Access Order, 22 FCC Rcd 
at 17852, para. 98. We note that a Petition for Reconsideration of 
the 2007 Program Access Order is pending that argues that our rules 
should clarify that a party is able to object based on privilege in 
addition to objecting on the grounds of lack of control or 
relevance. See Fox Entertainment Group, Inc., Petition for 
Reconsideration, MB Docket No. 07-29 (Nov. 5, 2007), at 10.
    \6\ See Second Report and Order in MB Docket No. 07-42, para. 21 
(establishing that, in cases that the Media Bureau decides on the 
merits after discovery, the Media Bureau must issue a decision 
within 150 calendar days after its prima facie determination). We 
note that while the Commission has established aspirational goals 
for the resolution of program access complaints, those deadlines do 
not apply to cases involving complex discovery. See Implementation 
of the Cable Television Consumer Protection and Competition Act of 
1992: Petition for Rulemaking of Ameritech New Media, Inc. Regarding 
Development of Competition and Diversity in Video Programming 
Distribution and Carriage, Report and Order, 13 FCC Rcd 15822, 
15842-43, para. 41 (1998) (``1998 Program Access Order''); see also 
2007 Program Access Order, 22 FCC Rcd at 17857, para. 108 
(reaffirming aspirational goals set forth in the 1998 Program Access 
Order).
    \7\ Compare 1993 Program Carriage Order, 9 FCC Rcd at 2652, 
para. 23 and 2655-56, para. 32 (referring to the Media Bureau's 
ordering of document production and interrogatories) with 47 CFR 
76.7(f)(1) (referring to the Media Bureau's ordering of depositions 
in addition to document production and interrogatories).
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    7. One potential concern with expanded discovery procedures is that 
they will lead to overbroad discovery requests and extended disputes 
pertaining to relevance, which the Commission recognized as a concern 
in the 1993 Program Carriage Order when it allowed for only Commission-
controlled discovery. To ensure an expeditious discovery process, 
should we impose a numerical limit on the number of document requests, 
interrogatories, and depositions a party may request? Should we 
establish specific deadlines for the discovery process in order to 
enable the Media Bureau to meet the 150-calendar-day resolution 
deadline? For example, although not currently specified in our program 
access rules, we seek comment on whether to establish deadlines by when 
parties must submit discovery requests, objections thereto, and replies

[[Page 60679]]

to objections, such as 20, 25, and 30 calendar days respectively after 
the Media Bureau's prima facie determination in which it states that it 
will rule on the merits of the complaint after discovery.\8\ We also 
seek comment on whether to require the parties to meet and confer to 
attempt to mutually resolve their discovery disputes and to submit a 
joint comprehensive discovery proposal to the Media Bureau within 40 
calendar days after the Media Bureau's prima facie determination, with 
any remaining unresolved issues to be ruled on by the Media Bureau. We 
also seek input on whether to establish a firm deadline for when 
discovery must be completed, such as 75 calendar days after the Media 
Bureau's prima facie determination, and for the submission of post-
discovery briefs and reply briefs, such as 20 calendar days and ten 
calendar days, respectively, after the conclusion of discovery.\9\ With 
these deadlines, the Media Bureau would have 45 days to prepare and 
release a decision on the merits.
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    \8\ As discussed above, after finding that the complainant has 
established a prima facie case, the Media Bureau could rule on the 
merits of a complaint based on the pleadings without discovery. See 
Second Report and Order in MB Docket No. 07-42, para. 21. The 
deadlines related to discovery discussed here would be triggered 
only if the Media Bureau's decision finding that the complainant has 
established a prima facie case states that the Media Bureau will 
issue a ruling on the merits of the complaint after discovery.
    \9\ See 47 CFR 76.7(e)(3) (stating that 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).
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2. Automatic Document Production
    8. In addition to expanded discovery procedures, we seek comment on 
an automatic document production process that is narrowly tailored to 
the issues raised in program carriage complaints. Under this approach, 
if the Media Bureau issues a decision finding that a complaint contains 
sufficient evidence to establish a prima facie case and stating that it 
will rule on the merits of the complaint after discovery, both parties 
would have a certain period of time to produce basic threshold 
documents listed in the Commission's rules that are relevant to the 
program carriage claim at issue. The Commission adopted a similar 
approach for comparative broadcast proceedings involving applications 
for new facilities. Under those procedures, after the issuance of an 
HDO, applicants were required to produce documents enumerated in a 
standardized document production order set forth in the Commission's 
rules. The Commission adopted this approach because it would result in 
``substantial time savings.'' \10\ Should we establish a similar 
approach for program carriage cases? We believe that this process could 
work in conjunction with the expanded discovery procedures outlined 
above. For example, within ten calendar days after the Media Bureau 
issues a decision finding that the complaint contains sufficient 
evidence to establish a prima facie case and stating that it will rule 
on the merits of the complaint after discovery, both parties would 
produce the documents in the automatic document production list set 
forth in the Commission's rules for the specific program carriage claim 
at issue.\11\ Is this a sufficient amount of time for production, 
considering that the required documents will be listed in our rules and 
thus parties will have advanced notice as to what documents must be 
produced? Based on the documents produced, the parties would then 
proceed to request additional discovery pursuant to the deadlines set 
forth above (i.e., discovery requests, objections thereto, and 
responses to objections would be due 20, 25 and 30 calendar days 
respectively after the Media Bureau's prima facie determination). To 
the extent that we do not adopt automatic document production, the 
initial ten-day production period would not be required; thus, we also 
seek comment on more expeditious deadlines for submitting discovery 
requests, objections thereto, and responses to objections in the event 
we do not adopt automatic document production.
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    \10\ See 1990 Comparative Hearing Order, 5 FCC Rcd 157, para. 
25; see also id. at para. 27 (``With the early provision of the 
information required in the standardized document production order 
and the uniform integration statement, we would expect that the 
remainder of the discovery process could be expedited.'').
    \11\ As discussed above, after finding that the complainant has 
established a prima facie case, the Media Bureau might rule on the 
merits of a complaint based on the pleadings without discovery. See 
Second Report and Order in MB Docket No. 07-42, para. 21. The 
deadlines related to automatic document production discussed here 
would be triggered only if the Media Bureau's decision finding that 
the complainant has established a prima facie case states that the 
Media Bureau will issue a ruling on the merits of the complaint 
after discovery.
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    9. We seek input on whether automatic document production will 
result in substantial time savings and thereby more expeditious 
resolution of program carriage complaints. We ask commenters to 
consider the following ways in which automatic document production 
might expedite discovery. First, by establishing that certain documents 
are relevant for a program carriage claim, automatic document 
production should reduce delay resulting from debates over relevancy. 
Second, automatic document production should enable the parties to 
identify early in the discovery process any individuals they seek to 
depose. Third, by providing advanced notice of documents that are 
relevant, parties should have sufficient time to gather these documents 
and to produce them promptly. Fourth, automatic document production may 
prevent delays in obtaining any necessary third-party consent. 
Production of certain documents, such as programming contracts, may 
require third-party consent before disclosure, resulting in a delay in 
the production of documents. The automatic document production list 
should help address this concern by providing the parties with advanced 
notice that they may have to produce certain documents in the event of 
a prima facie finding, thus providing parties with time to secure any 
required third-party consents. Are there any other advantages or 
disadvantages with an automatic document production process?
    10. To the extent we adopt an automatic document production 
process, we seek comment on what documents must be produced. The types 
of documents will necessarily vary based on whether the claim is a 
violation of the financial interest, exclusivity, or discrimination 
provision. Below we suggest some documents that might be considered 
sufficiently relevant to include in the automatic document production 
list. We seek comment on whether specific documents should be added or 
removed.
Financial Interest Claim
     All documents relating to carriage or requests for 
carriage of the video programming at issue in the complaint by the 
defendant MVPD;
     All documents relating to the defendant MVPD's interest in 
obtaining or plan to obtain a financial interest in the complainant or 
the video programming at issue in the complaint; and
     All documents relating to the programming vendor's 
consideration of whether to provide the defendant MVPD with a financial 
interest in the complainant or the video programming at issue in the 
complaint.
Exclusivity Claim
     All documents relating to carriage or requests for 
carriage of the video programming at issue in the complaint by the 
defendant MVPD;

[[Page 60680]]

     All documents relating to the defendant MVPD's interest in 
obtaining or plan to obtain exclusive rights to the video programming 
at issue in the complaint; and
     All documents relating to the programming vendor's 
consideration of whether to provide the defendant MVPD with exclusive 
rights to the video programming at issue in the complaint.
Discrimination Claim
     All documents relating to the defendant MVPD's carriage 
decision with respect to the complainant's video programming at issue 
in the complaint, including (i) the defendant MVPD's reasons for not 
carrying the video programming or the defendant MVPD's reasons for 
proposing, rejecting, or accepting specific carriage terms; and (ii) 
the defendant MVPD's evaluation of the video programming;
     All documents comparing, discussing the similarities or 
differences between, or discussing the extent of competition between 
the complainant's video programming at issue in the complaint and the 
allegedly similarly situated, affiliated video programming, including 
in terms of genre, ratings, license fee, target audience, target 
advertisers, and target programming;
     All documents relating to the impact of defendant MVPD's 
carriage decision on the ability of the complainant, the complainant's 
video programming at issue in the complaint, the defendant MVPD, and 
the allegedly similarly situated, affiliated video programming to 
compete, including the impact on (i) subscribership; (ii) license fee 
revenues; (iii) advertising revenues; (iv) acquisition of advertisers; 
and (v) acquisition of programming rights;
     For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, all documents (both internal documents as well as 
documents received from MVPDs, but limited to the ten largest MVPDs in 
terms of subscribers with which the complainant or the affiliated 
programming vendor have engaged in carriage discussions regarding the 
video programming) discussing the reasons for the MVPD's carriage 
decisions with respect to the video programming, including (i) the 
MVPD's reasons for not carrying the video programming or the MVPD's 
reasons for proposing, rejecting, or accepting specific carriage terms; 
and (ii) the MVPD's evaluation of the video programming; and
     For the complainant's video programming at issue in the 
complaint and the allegedly similarly situated, affiliated video 
programming, current affiliation agreements with the ten largest MVPDs 
(including, if not otherwise covered, the defendant MVPD) carrying the 
video programming in terms of subscribers.
    11. Should our rules limit the automatic production of documents to 
those generated or received after a certain date, such as within three 
years prior to the complaint? Should our rules require the parties to 
establish a privilege log describing the documents that have been 
withheld along with support for any claim of privilege? Should we 
specify in our rules that the Media Bureau has the discretion to add or 
remove documents from this automatic production list based on the 
specific facts of a case when issuing its prima facie decision? Rather 
than specifying a list of documents in our rules, should we instead 
require the Media Bureau when issuing a prima facie decision to order 
the production of documents based on the specific facts of the case? 
Will this eliminate the benefits of advanced notice discussed above?
3. Protective Orders
    12. We note that one source of delay in the discovery process is 
the need for the parties to negotiate and obtain approval of a 
protective order before producing confidential information. For program 
access cases, we have established a standard protective order and 
declaration.\12\ While parties to program access cases are free to 
negotiate their own protective order, they may also rely upon this 
standard protective order. We seek comment on whether the program 
access protective order is sufficiently stringent to ensure that 
confidential information is not improperly used for competitive 
business purposes, or whether we should adopt a more stringent standard 
protective order for program carriage cases. To the extent commenters 
have specific concerns with using the program access standard 
protective order and declaration for program carriage cases, we ask 
that they propose specific changes and an explanation of their reason 
for their proposed changes.\13\ If parties to a program carriage 
complaint are unable to mutually agree to their own protective order 
prior to the ten-day automatic production deadline discussed above, 
should the parties be deemed to have agreed to the standard protective 
order, thereby allowing document production to proceed? To the extent 
that the automatic document production list or discovery in general 
requires production of documents, such as programming contracts, that 
require third-party consent before disclosure, does the standard 
protective order address reasonable concerns commonly expressed by 
third parties or should specific provisions be added to address those 
concerns? Are there any other actions we can take to prevent third-
party consent requirements from delaying the completion of discovery?
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    \12\ See 47 CFR 76.1003(k); 2007 Program Access Order, 22 FCC 
Rcd at 17853-55, paras. 100-103 and Appendix E, 17894-99.
    \13\ We note that a Petition for Reconsideration of the 2007 
Program Access Order is pending that argues that the standard 
protective order should include a mechanism whereby a party can 
object to a specific individual seeking access to confidential 
information; should allow only outside counsel to access certain 
information; and should provide the parties with the right to 
prohibit copying of highly sensitive documents. See Fox 
Entertainment Group, Inc., Petition for Reconsideration, MB Docket 
No. 07-29 (Nov. 5, 2007), at 8-10.
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4. Use of Discovery Procedures in Program Carriage Cases Referred to an 
ALJ
    13. We also seek comment on the extent to which any of the 
discovery proposals outlined above should apply to program carriage 
complaints referred to an ALJ. As an initial matter, we note that cases 
referred to an ALJ generally involve a hearing, which raises additional 
complexities not applicable to cases handled by the Media Bureau. 
Moreover, our rules set forth specific discovery procedures applicable 
to adjudicatory proceedings conducted before an ALJ and also provide 
the ALJ with authority to ``[r]egulate the course of the hearing.'' 
Nonetheless, we seek comment as to whether and how the discovery 
deadlines suggested above, the automatic document production lists, or 
the model protective order might be used in conjunction with program 
carriage complaints referred to an ALJ.

C. Damages

    14. We propose to adopt rules allowing for the award of damages for 
violations of the program carriage rules that are identical to those 
adopted for program access cases. Section 616(a)(5) of the Act directs 
the Commission to adopt regulations that ``provide for appropriate 
penalties and remedies for violations of [section 616], including 
carriage.'' Although the program carriage statute does not explicitly 
direct the Commission to allow for the award of damages as a remedy for 
a program carriage violation, the statute does require the Commission 
to adopt ``appropriate * * * remedies.'' \14\ The

[[Page 60681]]

Commission has interpreted this same term as used in the program access 
statute \15\ as broad enough to include a remedy of damages, stating 
that:

    \14\ In the 1993 Program Carriage Order, the Commission stated 
that it would ``determine the appropriate relief for program 
carriage violations on a case-by-case basis'' and that available 
remedies and sanctions ``include forfeitures, mandatory carriage, or 
carriage on terms revised or specified by the Commission,'' but did 
not explicitly include or exclude damages. 1993 Program Carriage 
Order, 9 FCC Rcd at 2653, para. 26.
    \15\ 47 U.S.C. 548(e)(1) (``Upon completion of such adjudicatory 
proceeding, the Commission shall have the power to order appropriate 
remedies, including, if necessary, the power to establish prices, 
terms, and conditions of sale of programming to the aggrieved 
multichannel video programming distributor.'') (emphasis added). 
Although the Commission initially concluded that it did not have 
authority to assess damages in program access cases, it later 
reversed that decision. Compare Implementation of Sections 12 and 19 
of the Cable Television Consumer Protection and Competition Act of 
1992: Development of Competition and Diversity in Video Programming 
Distribution and Carriage, First Report and Order, 8 FCC Rcd 3359, 
3392, para. 81 (1993) (``1993 Program Access Order'') with 
Implementation of Sections 12 and 19 of the Cable Television 
Consumer Protection and Competition Act of 1992: Development of 
Competition and Diversity in Video Programming Distribution and 
Carriage, Memorandum Opinion and Order on Reconsideration of the 
First Report and Order, 10 FCC Rcd 1902, 1910-11, para. 17 (1994) 
(``1994 Program Access Reconsideration Order'').

    Although petitioners are correct that the statute does not 
expressly use the term ``damages,'' it does expressly empower the 
Commission to order ``appropriate remedies.'' Because the statute 
does not limit the Commission's authority to determine what is an 
appropriate remedy, and damages are clearly a form of remedy, the 
plain language of this part of section 628(e) is consistent with a 
finding that the Commission has authority to afford relief in the 
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form of damages.\16\

    \16\ See 1994 Program Access Reconsideration Order, 10 FCC Rcd 
at 1910-11, para. 17; see also 1998 Program Access Order, 13 FCC Rcd 
at 15831-32, paras. 14-15 (reaffirming the Commission's statutory 
authority to award damages in program access cases). Although the 
Commission held that it had authority to award damages in program 
access cases, it initially elected not to exercise that authority, 
finding that other sanctions available to the Commission were 
sufficient to deter entities from violating the program access 
rules. See 1994 Program Access Reconsideration Order, 10 FCC Rcd at 
1911, para. 18. The Commission later adopted rules allowing for the 
award of damages in program access cases, stating that 
``[r]estitution in the form of damages is an appropriate remedy to 
return improper gains.'' 1998 Program Access Order, 13 FCC Rcd at 
15833, para. 17. We note that the Commission has held that section 
325(b)(3)(C) of the Act pertaining to retransmission consent 
negotiations, which does not contain the same ``appropriate 
remedies'' language, does not authorize the award of damages. See 
Implementation of the Satellite Home Viewer Improvement Act of 1999; 
Retransmission Consent Issues: Good Faith Negotiation and 
Exclusivity, First Report and Order, 15 FCC Rcd 5445, 5480, para. 82 
(2000) (``We can divine no intent in section 325(b)(3)(C) to impose 
damages for violations thereof * * *. Commenters' reliance on the 
program access provisions as support for a damages remedy in this 
context is misplaced. The Commission's authority to impose damages 
for program access violations is based upon a statutory grant of 
authority.'').
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We seek comment on whether the Commission has authority to award 
damages in program carriage cases under the same analysis.
    15. We believe that allowing for the award of damages would be 
useful in deterring program carriage violations and promoting 
settlement of any disputes. We seek comment on this view. If we adopt 
rules allowing for the award of damages in program carriage cases, we 
propose to apply the same policies that apply in program access cases. 
In the program access context, the Commission has stated that damages 
would not promote competition or otherwise benefit the video 
marketplace in cases where a defendant relies upon a good faith 
interpretation of an ambiguous aspect of our rules for which there is 
no guidance. Conversely, the Commission has explained that damages are 
appropriate when a defendant knew or should have known that its conduct 
would violate the rules. We request comment on this approach. In 
addition, consistent with our program access rules, we propose to adopt 
rules allowing for the award of compensatory damages in program 
carriage cases. We do not propose to allow for awards of attorney's 
fees. We seek comment on whether the Commission has legal authority to 
make awards of punitive damages. Section 616(a)(5) of the Act directs 
the Commission to adopt regulations that ``provide for appropriate 
penalties.'' Courts have recognized that ``penalties'' may take various 
forms, including punitive damages, fines, and statutory penalties, all 
of which are aimed at deterring wrongful conduct. We note, however, 
that the Commission previously declined to allow for the award of 
punitive damages in program access cases.\17\ We seek comment on 
whether there is any basis for awarding punitive damages in program 
carriage cases but not in program access cases. To what extent would 
the potential award of punitive damages help to deter program carriage 
violations and promote settlement of any disputes?
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    \17\ The Commission based its decision to decline to allow for 
the award of punitive damages in program access cases based on a 
lack of record evidence regarding the need for this type of damages. 
See 1998 Program Access Order, 13 FCC Rcd at 15834, para. 21.
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    16. We note that the Commission has also adopted specific 
procedures for requesting and awarding damages in program access cases. 
We propose to apply these same procedures to the award of damages in 
the program carriage context. While we briefly summarize some of these 
procedures here, we encourage commenters to review these procedures in 
their entirety as set forth in Sec.  76.1003(d) and 76.1003(h)(3) of 
the Commission's rules and the 1998 Program Access Order to determine 
whether they are appropriate for program carriage cases. Under the 
program access rules, a complainant seeking damages must provide in its 
complaint either (i) a detailed computation of damages (the ``damages 
calculation''); or (ii) an explanation of the information that is not 
in its possession and needed to compute damages, why such information 
is unavailable to the complainant, the factual basis the complainant 
has for believing that such evidence of damages exists, and a detailed 
outline of the methodology that would be used to compute damages with 
such evidence (the ``damages computation methodology''). The burden of 
proof regarding damages rests with the complainant. The procedures 
provide for the bifurcation of the program access violation 
determination from the damages determination. In ruling on whether 
there has been a program access violation, the Media Bureau is required 
to indicate in its decision whether damages are appropriate. The 
Commission's aspirational deadline for resolving the program access 
complaint applies solely to the program access violation determination 
and not to the damages determination. The Commission has explained that 
the appropriate date from which damages accrue is the date on which the 
violation first occurred, and that the burden is on the complainant to 
establish this date. Moreover, based on the one-year limitations period 
for bringing program access complaints, the Commission has explained 
that it will not entertain damages claims asserting injury pre-dating 
the complaint by more than one year. In cases in which the complainant 
has submitted a damages calculation and the Media Bureau approves or 
modifies the calculation, the defendant is required to compensate the 
complainant as directed in the Media Bureau's order. In cases in which 
the complainant has submitted a damages computation methodology and the 
Media Bureau approves or modifies the methodology, the parties are 
required to negotiate in good faith to reach an agreement on the exact 
amount of damages pursuant to the methodology. We seek comment on the 
appropriateness of adopting similar rules in the program carriage 
context.
    17. We also propose to adopt similar procedures for requesting the 
application of new prices, terms, and conditions in the event an 
adjudicator

[[Page 60682]]

reaches a decision on the merits of a program carriage complaint after 
the Media Bureau issues a standstill order. In the Second Report and 
Order in MB Docket No. 07-42, we adopted specific procedures for the 
Media Bureau's consideration of requests for a temporary standstill of 
the price, terms, and other conditions of an existing programming 
contract by a program carriage complainant seeking renewal of such a 
contract. If the Media Bureau grants the temporary standstill, the 
rules adopted provide that the adjudicator ruling on the merits of the 
complaint will apply the terms of the new agreement between the 
parties, if any, as of the expiration date of the previous agreement. 
We noted that application of new terms may be difficult in some cases, 
such as if carriage of the video programming has continued 
uninterrupted during resolution of the complaint as a result of the 
Media Bureau's standstill order, but the decision on the merits 
provides that the defendant MVPD may discontinue carriage. While we 
believe the adjudicator can address these issues on a case-by-case 
basis in the absence of a new rule on this point, adoption of specific 
procedures addressing compensation of the parties during the standstill 
period, if any, may facilitate the expeditious resolution of these 
issues. For example, should a defendant MVPD that ultimately prevails 
on the merits nonetheless be required to pay for carriage during the 
standstill period? Should we assume that the previously negotiated 
carriage fees reflected in the parties' expired agreement represent 
reasonable compensation for the carriage of the programming during the 
standstill period? We propose to adopt procedures similar to those set 
forth above for requesting damages. Specifically, in the event the 
Media Bureau has issued a standstill order, the adjudicator after 
reaching a decision on the merits may request the prevailing party to 
submit either (i) a detailed computation of the fees and/or 
compensation it believes it is owed during the standstill period based 
on the new prices, terms, and conditions ordered by the adjudicator 
(the ``true-up calculation''); or (ii) a detailed outline of the 
methodology used to calculate the fees and/or compensation it believes 
it is owed during the standstill period based on the new prices, terms, 
and conditions ordered by the adjudicator (the ``true-up computation 
methodology''). The burden of proof would rest with the party seeking 
compensation during the standstill period based on the new prices, 
terms, and conditions. In cases in which the adjudicator approves or 
modifies a prevailing party's true-up calculation, the opposing party 
would be required to compensate the prevailing party as directed in the 
adjudicator's order. In cases in which the adjudicator approves or 
modifies a true-up computation methodology, the parties would be 
required to negotiate in good faith to reach an agreement on the exact 
amount of compensation pursuant to the methodology. We seek comment on 
this approach.

D. Submission of Final Offers

    18. Among the remedies an adjudicator can order for a program 
carriage violation is the establishment of prices, terms, and 
conditions for the carriage of a complainant's video programming.\18\ 
To the extent that the adjudicator orders this remedy, we propose to 
adopt a rule providing that the adjudicator will have the discretion to 
order each party to submit their ``final offer'' for the rates, terms, 
and conditions for the video programming at issue.\19\ In previous 
merger orders, the Commission has explained that requiring parties to a 
programming dispute to submit their final offer for carriage and 
requiring the adjudicator to select the offer that most closely 
approximates fair market value ``has the attractive `ability to induce 
two sides to reach their own agreement, lest they risk the possibility 
that a relatively extreme offer of the other side may be selected * * 
*.' '' We seek comment on the extent to which providing the adjudicator 
with the discretion to require the parties to submit final offers will 
encourage the parties to resolve their differences through settlement 
and will assist the adjudicator in crafting an appropriate remedy 
should the parties not settle their dispute.\20\ We also seek comment 
on whether submission of final offers will enable the adjudicator to 
reach a more expeditious resolution of the complaint.
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    \18\ See 47 CFR 76.1302(g)(1); 1993 Program Carriage Order, 9 
FCC Rcd at 2653, para. 26 (``Available remedies and sanctions 
include forfeitures, mandatory carriage, or carriage on terms 
revised or specified by the Commission.''). This rule will now 
appear at Sec.  76.1302(j)(1) once the amendments adopted in the 
Second Report and Order in MB Docket No. 07-42 take effect.
    \19\ See Reexamination of Roaming Obligations of Commercial 
Mobile Radio Service Providers and Other Providers of Mobile Data 
Services, Second Report and Order, FCC 11-52, para. 79 (2011) 
(stating that, when considering the commercial reasonableness of the 
terms and conditions of a proffered data roaming arrangement, the 
Commission staff may, in resolving such a claim, require both 
parties to provide to the Commission their best and final offers 
that were presented during the negotiation).
    \20\ See Comcast Reply at 34 n.116 (noting practical concerns 
with a mandatory carriage remedy).
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    19. To the extent the adjudicator requests the submission of final 
offers, we seek comment on whether the adjudicator should be required 
to select one of the parties' final offers as the remedy or whether the 
adjudicator should have the discretion to craft a remedy that combines 
elements of both final offers or contains other terms that the 
adjudicator finds to be appropriate. While requiring the adjudicator to 
select one of the final offers might be more effective in encouraging 
the parties to submit reasonable offers and promoting a settlement, we 
expect that providing the adjudicator with the discretion to craft a 
remedy combining elements of both final offers (e.g., the rate in one 
offer and the contract term in the other offer) or other terms that the 
adjudicator finds to be appropriate will provide greater flexibility, 
possibly resulting in a more appropriate remedy. We seek comment on the 
ramifications of each approach. We also seek comment on when the 
adjudicator should solicit final offers to the extent the adjudicator 
exercises the discretion to do so. As in the case of damages discussed 
above, should the adjudicator bifurcate the program carriage violation 
determination from the remedy phase to facilitate the submission of 
final offers, similar to the way damages are handled in program access 
cases?

E. Mandatory Carriage Remedy

    20. The program carriage rules provide that the remedy ordered by 
the Media Bureau or ALJ is effective upon release of the decision, 
except when the adjudicator orders mandatory carriage that will require 
the defendant MVPD to ``delete existing programming from its system to 
accommodate carriage'' of a programming vendor's video programming.\21\ 
In such a case, if the defendant MVPD seeks Commis