Leased Commercial Access; Modernization of Media Regulation Initiative, 28761-28769 [2019-13134]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 84, Number 119 (Thursday, June 20, 2019)]
[Rules and Regulations]
[Pages 28761-28769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13134]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket Nos. 07-42 and 17-105; FCC 19-52]


Leased Commercial Access; Modernization of Media Regulation 
Initiative

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission updates its leased access 
rules as part of its Modernization of Media Regulation Initiative. 
First, the Commission vacates its 2008 Leased Access Order, which never 
went into effect due to a stay by the U.S. Court of Appeals for the 
Sixth Circuit and the Office of Management and Budget issuance of a 
notice of disapproval of the associated information collection 
requirements. Second, the Commission adopts certain updates and 
improvements to its existing leased access rules.

DATES: Effective July 22, 2019, except for Sec. Sec.  76.970(h) and 
76.975(e), which are delayed. The Commission will publish a document in 
the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Diana Sokolow, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 19-52, adopted on June 6, 2019 and released on June 7, 
2019. The full text is available for public inspection and copying 
during regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. This document will also be available via ECFS at 
https://fjallfoss.fcc.gov/ecfs/. Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 
Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to [email protected] or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis

    1. In the Report and Order, we update our leased access rules as 
part of the

[[Page 28762]]

Commission's Modernization of Media Regulation Initiative. The leased 
access rules, which implement the statutory leased access requirements, 
direct cable operators to set aside channel capacity for commercial use 
by unaffiliated video programmers.\1\ In 2018, the Commission adopted a 
Further Notice of Proposed Rulemaking (FNPRM) addressing leased access 
proposals filed in response to the Media Modernization Public Notice. 
With this proceeding, we continue our efforts to modernize media 
regulations and remove unnecessary requirements that can impede 
competition and innovation in the media marketplace.
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    \1\ The leased access rules are in subpart N of part 76, which 
was listed in the Media Modernization Public Notice as one of the 
principal rule parts that pertains to media entities and that is the 
subject of the media modernization review.
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    2. The video marketplace has changed significantly since the 
Commission initially adopted its leased access rules. Specifically, 
today a wide variety of media platforms are available to programmers, 
including in particular online platforms that creators can use to 
distribute their content for free. This change has reduced the 
importance of leased access and, thus, the justification for burdensome 
leased access requirements.
    3. Below, first we adopt the FNPRM's tentative conclusion that we 
should vacate the Commission's 2008 Leased Access Order.\2\ That order 
never went into effect due to a stay by the U.S. Court of Appeals for 
the Sixth Circuit (Sixth Circuit) and the Office of Management and 
Budget (OMB) issuance of a notice of disapproval of the associated 
information collection requirements. Second, we adopt certain updates 
and improvements to our existing leased access rules.
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    \2\ Federal Communications Commission, Leased Commercial Access, 
73 FR 10675 (final rule), 10732 (proposed rule) (Feb. 28, 2008).
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    4. Vacating the 2008 Leased Access Order. We adopt the FNPRM's 
tentative conclusion that we should vacate the 2008 Leased Access 
Order, including the Further Notice of Proposed Rulemaking issued in 
conjunction with that order. We conclude that this approach, which 
cable operators support, is consistent with our public interest 
objectives and is the most practical and legally tenable option 
available to us. Specifically, vacating the prior order will clarify 
the status of our leased access regime, further the Commission's media 
modernization efforts, and obviate the need to address the significant 
legal concerns raised in the related Sixth Circuit proceeding and OMB 
Notice.\3\
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    \3\ Because we vacate the 2008 Leased Access Order, we also 
dismiss as moot the related NCTA FCC Stay Request, which asked the 
Commission to stay the 2008 Leased Access Order, and the TVC Recon 
Petition, which sought reconsideration of the 2008 Leased Access 
Order.
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    5. By vacating the 2008 Leased Access Order, we are resolving the 
longstanding challenges to the order that have been pending for more 
than a decade due to the stay of this order.\4\ Vacating the 2008 
Leased Access Order will not have any impact on any party's compliance 
with or expectations concerning the leased access requirements, because 
the rule changes contained in that order never went into effect.\5\ 
Accordingly, as a result of our decision today, except for the rule 
changes set forth below, parties simply will remain subject to the same 
leased access rules they were operating under prior to 2008.
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    \4\ Vacating the 2008 Leased Access Order eliminates the need to 
move forward with the judicial proceedings currently pending in the 
Sixth Circuit. The Sixth Circuit Stay Order, which has been in 
effect for over a decade, recognized ``that NCTA has raised some 
substantial appellate issues'' pertaining to the rules adopted in 
the 2008 Leased Access Order. Similarly, vacating the 2008 Leased 
Access Order eliminates the need to overcome OMB's denial of the 
information collection requirements associated with major portions 
of the 2008 Leased Access Order. OMB detailed the ways in which 
certain requirements adopted in the 2008 Leased Access Order were 
inconsistent with the PRA, including the Commission's failure to 
demonstrate the need for the more burdensome requirements adopted, 
its failure to demonstrate that it had taken reasonable steps to 
minimize the burdens, and its failure to provide reasonable 
protection for proprietary and confidential information.
    \5\ We need not make any modifications to our rules to reflect 
our vacating of the 2008 Leased Access Order because the leased 
access rules that are currently in effect, and that currently appear 
in the Code of Federal Regulations, are those that were in existence 
prior to the 2008 Leased Access Order.
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    6. Vacating the 2008 Leased Access Order is consistent with the 
Commission's media modernization efforts, pursuant to which we seek to 
remove rules that are outdated or no longer justified by market 
realities. As commenters point out, implementing the 2008 Leased Access 
Order would have made leased access significantly more burdensome for 
cable operators, which would be contrary to the highly competitive 
marketplace in existence today. For example, NCTA explains that 
implementing the 2008 order ``would have changed the formula for 
establishing the maximum permissible rate for leased access in a manner 
that would have resulted in rates approaching zero.'' We agree with 
commenters that in today's marketplace the appropriate course is to 
ease, rather than increase, regulatory burdens associated with leased 
access and that the Commission should not have leased access 
regulations where the maximum allowable rates approach zero. Indeed, as 
discussed below, today we find that certain rule changes are needed to 
provide cable operators with relief from their existing leased access 
burdens because the burdens are no longer justified in today's 
marketplace, given the increased distribution alternatives for leased 
access programmers. While we recognize that some leased access 
programmers have expressed a preference for leased access via cable as 
compared to alternatives such as online programming distribution, we 
are persuaded that these alternatives have developed into a viable 
substitute for leased access today. In addition, we note that easing 
the regulatory burdens associated with leased access will effectuate 
the statutory requirement to implement rules ``in a manner consistent 
with the growth and development of cable systems.''
    7. We disagree with commenters claiming that the Commission should 
``adopt the parts [of the 2008 Leased Access Order] that are not 
subject to OMB or Sixth Circuit . . . scrutiny and either staff review 
or issue a FNPRM to address the issues of concern to the OMB and the 
Appeals Court.'' \6\ The FNPRM sought comment on whether there is ``any 
policy justification for retaining any particular rules adopted'' in 
the 2008 Leased Access Order. Commenters advocating the retention of 
all portions of the 2008 Leased Access Order ``that are not subject to 
OMB or Sixth Circuit . . . scrutiny'' do not explain with sufficient 
specificity which rules from the 2008 Leased Access Order should go 
into effect and why they are justified today. We believe that vacating 
the entire order and proceeding anew is preferable to commenters' 
suggested piecemeal approach.
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    \6\ We also reject LAPA's request that the Commission adopt 
customer service standards akin to those in the 2008 Leased Access 
Order, finding instead that the contact information requirement we 
adopt below is sufficient at this time and appropriately balances 
the burdens on cable operators with the needs of leased access 
programmers.
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    8. Modifying the Leased Access Rules. We next adopt certain updates 
and improvements to our existing leased access rules. It is our goal to 
modernize our leased access regulations given the significant changes 
in the video marketplace, including specifically the availability of 
online media platforms. We stated in the FNPRM that this proceeding 
would ``advance our efforts to modernize our media regulations and 
remove unnecessary requirements that can impede competition and 
innovation

[[Page 28763]]

in the media marketplace.'' We find that the benefits of updating our 
leased access rules to reflect the current video marketplace outweigh 
the anticipated costs.
    9. Part-Time Leased Access. We eliminate the requirement that cable 
operators make leased access available on a part-time basis. Instead, 
our leased access rules will apply only to leased access programmers 
that purchase channel capacity on a full-time basis \7\ for at least a 
one-year contract term. The Commission's rules currently direct 
``[c]able operators that have not satisfied their statutory leased 
access requirements [to] accommodate part-time leased access 
requests,'' but there is no statutory requirement for part-time leased 
access. And, contrary to SBN's suggestion ``that part-time access is 
the `genuine outlet' Congress sought to promote with the leased access 
statute,'' the legislative history does not mention part-time leased 
access. Further, we are persuaded by comments that because part-time 
leased access is regulatory, and not statutory, we should seek to avoid 
unnecessary burdens in light of possible First Amendment concerns.\8\ 
In response to the FNPRM's request for further comment on this 
topic,\9\ cable operators support elimination of the part-time leased 
access requirement.
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    \7\ Leasing of a channel on a full-time basis will require that 
the channel is under the exclusive use of the programmer for the 
term of the contract.
    \8\ SBN argues that there is no speech-related distinction 
between part-time access and full-time access, and thus the First 
Amendment concerns cannot be used to ban the former but not the 
latter. As an initial matter, as described above, our elimination of 
part-time leased access is sufficiently supported by policy 
justifications that are independent of our First Amendment concerns. 
In addition, we proceed here incrementally by eliminating the part-
time leased access rules that impose speech burdens that are not 
required by statute. In the related Second FNPRM, we seek further 
comment on whether the statutory leased access requirements continue 
to withstand First Amendment scrutiny.
    \9\ SBN is incorrect when it claims that the FNPRM did not 
provide sufficient notice of the elimination of part-time leased 
access. First, the FNPRM specifically sought comment on new rules 
governing part-time leased access. In response, commenters urged the 
Commission to adopt new rules that would no longer require cable 
operators to make leased access available on a part-time basis. We 
adopt such rules today, but permit existing part-time commercial 
leased access agreements to remain in place under their current 
terms. Cable operators have the discretion to negotiate future part-
time agreements as a private contractual matter. Second, our new 
rules regarding part-time leased access are a logical outgrowth of 
the Commission's request for comment on ``whether our rules 
implicate First Amendment interests.'' Finally, any argument 
regarding lack of notice is refuted by the fact that leased access 
programmers themselves opposed the elimination of part-time leased 
access in their initial comments.
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    10. We find that eliminating part-time leased access is consistent 
with marketplace changes. Since the Commission adopted the rule 
governing part-time leased access in 1993, the available platforms to 
distribute programming have multiplied, including in particular 
internet options. At the same time, the part-time leased access 
requirement has continued to apply to cable operators, and the record 
indicates that those operators do not usually generate enough revenue 
from part-time leased access programming to cover the administrative 
costs of providing such programming.\10\ Even in the 1997 Leased Access 
Order, the Commission ``recognize[d] that part-time leasing is not 
expressly required by the statute, that it may impose additional 
administrative and other costs on cable operators, and that it may pose 
the risk of capacity being under-used.'' Unlike in 1997, when the 
Commission affirmed its rule requiring cable operators to lease time in 
30-minute increments, however, our decision today reflects the fact 
that the internet has developed into a flourishing means of 
distribution for short-form programming. SBN claims that the focus of 
leased access should be providing diverse information sources to cable 
subscribers. Eliminating part-time leased access, however, will not 
prevent leased access programmers from reaching all households with 
internet access, including the households of cable subscribers. We find 
that the costs of mandating part-time leased access to provide 
programming to the small portion of the population without internet 
access but with cable television outweighs the benefits. While we 
recognize the interest of leased access programmers in maintaining 
part-time leased access,\11\ we are persuaded that the costs to cable 
providers associated with accommodating part-time leased access 
outweigh any countervailing benefits, especially given the plethora of 
alternative distribution options for such programming and the 
applicable First Amendment concerns.\12\ To the extent that any cable 
operator wishes to carry programming on a part-time basis, it may 
negotiate such carriage as a private contractual matter, outside the 
scope of the leased access statute.
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    \10\ These administrative costs include such matters as 
negotiating contracts and sending invoices, which cost the same for 
part-time leased access as for full-time leased access. SBN asserts 
that rather than eliminating part-time leased access, we should 
``revise the pricing rules in accordance with Section 612(c)(1) to 
cover the[] costs'' that part-time leased access imposes on cable 
operators. We disagree that this is the appropriate course. We find 
that in light of the other platforms now available to distribute 
part-time programming, there is no longer a sufficient policy 
justification for part-time leased access. We also are mindful that 
simply adjusting the price that cable operators may charge for part-
time leased access would not address the First Amendment concerns 
that it presents.
    \11\ SBN states that the ``Report and Order does not address the 
effect of the abandonment of the part-time leasing regime on part-
time programmers, most of whom (like SBN) are small businesses.'' In 
the Final Regulatory Flexibility Analysis, we analyze the potential 
impact of the rule changes adopted herein on small entities. We 
recognize that the changes in the Report and Order that ease burdens 
on cable operators, such as the elimination of part-time leased 
access, may also impact leased access programmers, including small 
programmers. This outcome, however, is justified by marketplace 
changes, including in particular the availability of online 
platforms for these small programmers to distribute their content. 
SBN also claims that we have not examined the effect of the 
elimination of part-time leased access on barriers to market entry 
and the promotion of a diversity of media voices, which SBN contends 
is required by section 257 of the Act. In fact, we find, based on 
evidence in the record, that any entry barriers that existed for 
part-time programmers have been largely overtaken by the plethora of 
alternative distribution options for such programmers. Furthermore, 
in light of these alternative distribution options, elimination of 
part-time leased access should have at most a minimal adverse effect 
on the promotion of a diversity of media voices, and that effect is 
outweighed by the costs to cable operators of part-time leased 
access.
    \12\ Cable commenters provide that if we decline to eliminate 
part-time leased access entirely, we could adopt an alternative 
approach pursuant to which we could require a cable system to carry 
a leased access programmer only if the programmer provides a set 
minimum amount of leased access programming. Based on the record 
before us, we conclude that eliminating part-time leased access 
entirely is a preferable approach, given the alternative means of 
distribution available to programmers today and the costs that part-
time leased access imposes on cable operators.
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    11. Because leased access will only occur on a full-time basis 
going forward, we delete section 76.970(h) of our rules, which 
currently addresses the maximum commercial leased access rate for part-
time channel placement. Current Sec.  76.970(i) and (j) will be 
redesignated as Sec.  76.970(h) and (i). We also delete the reference 
to part-time leased access rates in current section 76.970(i)(1)(ii) 
(redesignated section 76.970(h)(1)(ii)), and we delete section 
76.971(a)(4), which sets forth the current requirements for 
accommodating part-time leased access.\13\
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    \13\ Section 76.970(i)(1)(i) of our rules requires a cable 
operator's response to a leased access request to include ``[h]ow 
much of the operator's leased access set-aside capacity is 
available.'' ACA proposed that cable operators should be required to 
inform a potential leased access programmer only whether the 
specific time slot it requests is available, ``rather than 
indicating the total amount of available leased access set-aside 
capacity.'' Because we eliminate the part-time leased access 
requirement, ACA's time slot proposal is no longer relevant. We 
clarify that going forward, we will permit cable operators to comply 
with section 76.970(i)(1)(i) by confirming whether there is a 
channel available for the prospective leased access programmer.
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    12. Bona Fide Requests. We adopt the proposal set out in the FNPRM 
to ease burdens on cable operators by revising

[[Page 28764]]

section 76.970(i) of our rules to provide that all cable operators, and 
not just those that qualify as ``small systems'' \14\ under that rule, 
are required to respond to a request for leased access information only 
if the request is bona fide. Larger cable systems currently must 
respond to all written leased access requests, which can be 
inefficient, difficult, and costly. We also make one change to our 
existing definition of a ``bona fide request'' for information, which 
currently is defined as a request from a potential leased access 
programmer that includes: ``(i) The desired length of a contract term; 
(ii) The time slot desired; (iii) The anticipated commencement date for 
carriage; and (iv) The nature of the programming.'' Specifically, we 
delete the second criteria (the time slot desired), because as 
explained above we eliminate part-time leased access and time slot thus 
will be irrelevant for programming that occupies a channel on a full-
time basis. As proposed in the FNPRM, the criteria for a bona fide 
request must be met before a cable system will be required to provide 
the information specified in section 76.970(i)(1).
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    \14\ The leased access rules define a small system as either (i) 
a system that qualifies as small under section 76.901(c) of the 
Commission's rules and is owned by a small cable company as defined 
in section 76.901(e); or (ii) a system that has been granted special 
relief.
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    13. Adoption of this bona fide request provision will expand relief 
afforded small systems to all cable operators.\15\ Section 76.970(i)(1) 
currently directs cable operators to provide prospective leased access 
programmers with the following information: ``(i) How much of the 
operator's leased access set-aside capacity is available; (ii) A 
complete schedule of the operator's full-time and part-time leased 
access rates; (iii) Rates associated with technical and studio costs; 
and (iv) If specifically requested, a sample leased access contract.'' 
Even with the other modifications to section 76.970(i) that we adopt 
below, we are persuaded that, absent this change to our rules, some 
operators of systems that do not qualify as ``small'' would continue to 
spend a significant amount of time responding to non-bona fide leased 
access inquiries.
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    \15\ Current rules require operators of small cable systems to 
provide the information only in response to a bona fide request from 
a prospective leased access programmer, whereas other cable system 
operators must provide the information in response to any request 
for leased access information.
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    14. We recognize that this is a change from the Commission's 
previous decision to limit the flexibility to respond only to bona fide 
requests to small cable operators. However, based on the record 
evidence that both small and large cable operators face significant 
burdens in responding to leased access requests, we find that there is 
no longer a reason to limit this flexibility to small cable operators. 
We further conclude that it does not serve the public interest to 
require cable operators to continue responding to requests that are not 
considered bona fide under our rules. We see no evidence that cable 
operators will use the bona fide request requirement to discourage 
leasing access, whereas there is clear evidence that cable operators 
currently are required to undertake the expense of responding to all 
requests for leased access information even though most such requests 
do not result in a leased access programming contract.\16\ We recognize 
that some commenters claim that it is difficult for potential leased 
access programmers to provide the information required for a bona fide 
leased access request. We find, however, that providing this very basic 
information is necessary to demonstrate that a leased access programmer 
is serious about its inquiry. We believe it is reasonable to expect 
basic information such as the desired contract term, anticipated start 
date, and nature of programing to be developed prior to submitting a 
leased access request. To the extent that the responsive information 
from the cable operator presents a concern for the programmer, for 
example regarding the rate schedule, nothing in this change would 
prevent the programmer from further modifying its request and 
continuing to negotiate with the cable operator on the terms of an 
agreement.
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    \16\ We thus are not persuaded by one commenter's assertion that 
there is no evidence that cable companies are overwhelmed by the 
volume of requests by leased access programmers.
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    15. Contrary to the suggestion of NCTA, we will not permit cable 
operators to seek further information from potential leased access 
programmers before responding to a leased access request, such as: (1) 
How the potential leased access programmer would deliver its 
programming to the cable system; and (2) an affidavit identifying all 
of the programmer's owners and declaring that all are in compliance 
with applicable trade sanctions. We must balance between the competing 
interests of potential leased access programmers who should be able to 
obtain basic information that will enable them to determine whether 
they wish to proceed with a leased access programming contract, and 
cable operators who should not be required to incur costs in providing 
information to a programmer that is not seriously committed to securing 
a leased access contract. We find that the approach we adopt herein 
strikes an appropriate balance, but we will continue monitoring the 
marketplace to determine whether any further modifications are needed 
in the future.\17\
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    \17\ In addition, we note that section 76.970(i)(2) currently 
references ``paragraph (h)(1) of this section,'' which does not 
exist. Instead the rule should have cited current paragraph (i)(1), 
but given that herein we redesignate paragraph (i) as paragraph (h), 
no corrective action is needed.
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    16. Timeframe for Responding to Requests. To ease burdens on cable 
operators, we extend the timeframe within which they must provide 
prospective leased access programmers with the information specified in 
section 76.970(i)(1) of our rules, from 15 calendar days to 30 calendar 
days for cable operators generally, and from 30 calendar days to 45 
calendar days for operators of systems subject to small system relief. 
These timeframes apply only to bona fide requests for information 
pursuant to section 76.970(i), and not to simple requests for contact 
information.
    17. The record demonstrates that cable operators, especially those 
with multiple systems, would benefit from having additional time to 
gather the information specified in section 76.970(i)(1), as is 
required in response to a request for leased access information. First, 
section 76.970(i)(1)(i) currently requires the provision of ``[h]ow 
much of the operator's leased access set-aside capacity is available.'' 
Although as explained above we clarify that cable operators may comply 
with that requirement by confirming whether there is sufficient 
capacity for the prospective leased access programmer, operators still 
will need to analyze current system capacity to make that 
determination, given that as ACA states capacity is constantly changing 
``as cable operators add and drop channels, and repurpose system 
bandwidth from video to broadband services.''
    18. Second, section 76.970(i)(1)(ii) requires the provision of 
``[a] complete schedule of the operator's full-time and part-time 
leased access rates.'' ACA explains that, because the rate formula 
utilizes data points that are constantly changing, a cable operator 
must complete this calculation anew in response to every leased access 
request for information. ACA further claims the cost of determining the 
rates can be one thousand dollars or more per request. Third, section 
76.970(i)(1)(iii) requires the provision of ``[r]ates associated with 
technical and studio costs.'' ACA

[[Page 28765]]

explains that cable operators may not have standardized technical and 
studio costs, because these costs must be calculated based on the 
specific types of services the programmer seeks. Finally, section 
76.970(i)(1)(iv) requires, if specifically requested, the provision of 
``a sample leased access contract.'' While some cable operators may 
have a contract readily available, the record indicates that others may 
only have an out-of-date contract in their files. For all of these 
reasons, we find that the current deadlines for providing the 
information required in response to leased access requests for 
information are insufficient.\18\ Our new requirement that all cable 
operators need only provide the listed information in response to a 
bona fide request does not alter this analysis, because it may not make 
it any easier to provide the required information; rather, it could 
lead to less frequent provision of the information since cable 
operators will not need to provide it if a request is not bona 
fide.\19\ We see no indication in the record that increasing the 
timeframe within which cable operators must provide the required 
information will prejudice programmers seeking to lease access. Rather, 
programmers seeking to lease access can simply take the longer 
timeframe into account in deciding when to submit a bona fide request.
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    \18\ Some commenters claim that the current deadlines are 
sufficient, and that cable operators should have the required 
information readily available. We are not persuaded by these 
comments; instead we recognize the specific difficulties flagged by 
cable operators including, in particular, ACA.
    \19\ Given that many of the difficulties discussed in this 
paragraph apply to operators of single cable systems as well as to 
operators of multiple cable systems, we will not distinguish between 
those categories of operators.
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    19. We extend each deadline by 15 calendar days, such that the 
general deadline will be 30 days, and the small system deadline will be 
45 days. Although NCTA seeks a 45-day response period for all cable 
operators, we think that tripling the current deadline is excessive. 
Rather, we find it appropriate to extend each deadline by 15 calendar 
days, thus maintaining the longer deadline for small cable systems that 
may lack the resources to gather information as quickly as larger 
systems. Although one commenter posits that lengthening the deadline 
could deter potential leased access programmers from seeking access, 
particularly if their programming is time-sensitive, we see no evidence 
supporting this concern.
    20. Application Fees and Deposits. As proposed by NCTA and 
supported by others, we permit cable operators to impose a maximum 
leased access application fee of $100 per system-specific bona fide 
request,\20\ and we deem as reasonable under the Commission's rules a 
security deposit or prepayment requirement equivalent to up to 60 days 
of the applicable lease fee.\21\ We agree with commenters that 
application fees and deposits are justified to help reimburse cable 
operators for their leased access costs,\22\ to discourage frivolous 
leased access requests, and to reimburse cable operators for situations 
in which a leased access programmer only leases access for a brief time 
before the arrangement is terminated due to non-payment.\23\ We 
acknowledge leased access programmers' concerns that any application 
fee or deposit could dissuade potential leased access programmers, 
particularly small entities, from seeking to lease access. Accordingly, 
rather than permitting ``nominal'' application fees and deposits as 
proposed in the FNPRM, we establish maximum application fees and 
deposits at levels that we do not expect will be unduly burdensome for 
leased access programmers.\24\ Cable operators may require leased 
access programmers to pay any application fee before the cable operator 
provides the information set forth in section 76.970(i)(1) in response 
to a leased access request,\25\ whereas a deposit may be assessed as 
part of the execution of a leased access agreement.
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    \20\ We will consider one ``system-specific bona fide request'' 
to be a request covering a system that is served by a primary 
headend. If a leased access programmer wishes to provide its leased 
access programming on the cable operator's system that is served by 
a different primary headend, then it would be subject to another 
$100 application fee.
    \21\ A cable operator may assess both an application fee and a 
deposit or prepayment. By ``application fee,'' we mean a processing 
fee that the cable operator collects and retains regardless of 
whether the leased access request ultimately results in carriage. By 
``deposit'' or ``prepayment,'' we mean a fee that the cable operator 
collects as part of the execution of a leased access agreement and 
then applies to offset future payments due under the agreement. The 
FNPRM applied a different definition of ``deposit,'' which would 
have made a deposit part of the leased access request process. We 
have determined that this approach is not logical, given that the 
Commission's rules currently refer to leased access security 
deposits in the context of section 76.971 (addressing leased access 
terms and conditions) rather than section 76.970 (addressing leased 
access requests for information).
    \22\ A cable operator's leased access costs include, as ACA 
states, ``processing the application, negotiating terms, and making 
arrangements for the delivery of programming to the cable headend. 
Negotiating a leased access agreement can be time consuming, and for 
small operators often requires the assistance of outside counsel.''
    \23\ While the FNPRM sought comment on whether the Commission 
should permit only small cable operators to require an application 
fee or deposit, commenters did not address that issue. We conclude 
that the rationale for permitting an application fee or deposit 
discussed herein applies to cable operators of all sizes.
    \24\ Establishing a maximum for application fees and deposits 
also addresses SBN's concerns that an approach of permitting 
``nominal'' fees and deposits would ``engender deal-killing 
controversies over what fees and deposits are `nominal.' ''
    \25\ Leased access programmers assert that they should not be 
treated any differently than potential commercial advertisers, to 
which cable system operators provide information such as rates 
without requiring any payment. We disagree because, as Charter 
states, ``most leased access programmers lack the performance record 
and financial resources of commercial programmers with whom the 
operator would customarily engage.'' Cable operators thus are 
justified in assessing fees before the cable operator undertakes the 
expense of providing the information set forth in section 
76.970(i)(1). In addition, cable operators have a different 
relationship with leased access programmers than with commercial 
programmers insofar as cable operators are required by statute to 
engage with leased access programmers, whereas cable operators make 
a voluntary business decision to engage with commercial programmers.
---------------------------------------------------------------------------

    21. We revise section 76.970(i)(1) of our rules to provide that 
cable operators are required to provide leased access programmers with 
the information set forth in that section only if the programmer has 
remitted any application fee that the cable system operator requires up 
to a maximum of $100 per system-specific bona fide leased access 
request for information. The maximum leased access application fee 
applies to an entire system-specific bona fide request, as defined 
above. If a programmer amends such a request, the cable operator cannot 
use the amendment as an opportunity to assess a second application fee. 
We recognize that permitting a leased access application fee is a 
departure from past Commission practice. That past practice was based 
on an expectation that cable operators would be sufficiently protected 
by the ``bona fide'' request requirement that then applied only to 
small cable operators, but as NCTA states, ``experience has shown that 
even bona fide applicants may opt to walk away without signing [an] 
agreement'' which ``can leave cable operators with unreimbursed costs'' 
\26\ which we do not believe Congress intended cable operators to 
absorb.
---------------------------------------------------------------------------

    \26\ We thus conclude that, even given the adoption of the 
proposal to require all cable operators to respond only to bona fide 
leased access requests, permitting application fees remains 
reasonable and justified.
---------------------------------------------------------------------------

    22. Section 76.971(d) of our rules already permits cable operators 
to ``require reasonable security deposits or other assurances from 
users who are unable to prepay in full for access to leased commercial 
channels.'' We hereby deem as reasonable under the Commission's rules a 
security deposit or prepayment equivalent to up to 60 days of the 
applicable lease fee, and we agree with NCTA that 60 days is a 
reasonable timeframe to enable cable operators to protect themselves 
against lessees that

[[Page 28766]]

fail to pay after launching. This approach will address concerns that 
the current case-by-case determination of what constitutes a 
``reasonable'' deposit leads to marketplace uncertainty. A cable 
operator may choose to assess either a security deposit or prepayment 
that exceeds 60 days of the applicable lease fee, but such an 
assessment would remain subject to the current case-by-case review 
process if the programmer asserts that it is not reasonable. While one 
leased access programmer advocates a maximum deposit equivalent to the 
cost of a single day of airtime, we find that such an amount would be 
insufficient to protect cable operators from a leased access programmer 
that ceases paying for access prior to the completion of its 
agreement's term, which will now be a minimum of one year. Because a 
deposit is assessed as part of the execution of a leased access 
agreement, it will either be applied to payments due under the 
agreement, or it will be retained by the cable operator to compensate 
it for the leased access programmer's failure to remit payments 
required by the agreement. We see no reason to modify the existing 
requirement of section 76.971(d) that reasonable security deposits are 
permitted only if the leased access user does not prepay in full 
because if the leased access user prepays in full, the cable operator 
does not need protection against nonpayment.
    23. We reject requests by cable operators to impose additional new 
financial requirements on leased access programmers aside from 
application fees and deposits. Specifically, ACA proposes that the 
Commission permit cable operators to assess a ``closing fee'' upon 
finalization of a leased access agreement. We find that giving cable 
operators this flexibility is not necessary because it is intended to 
address the same cable operator concerns as the application fee and 
security deposit. NCTA proposes that cable operators ``should be 
permitted to require an acknowledgement in the application that certain 
ordinary commercial protections will apply, including that a lessee 
must provide proof of insurance . . . and pass a credit check prior to 
entering into a lease.'' In addition, NCTA requests that the rules 
``provide that if a leased access user has previously been dropped for 
non-payment, an operator can refuse to enter into a leasing agreement 
with that entity or its principals in the future.'' We note that our 
rules already permit cable operators to ``impose reasonable insurance 
requirements on leased access programmers,'' and we decline to adopt 
further protections for cable operators against non-payment by leased 
access programmers given the expected sufficiency of the application 
fees and deposits that we authorize today.
    24. Contact Information. We adopt a requirement that cable 
operators provide potential leased access programmers with contact 
information for the person responsible for leased access matters. 
Multiple commenters support a leased access contact information 
requirement, and none oppose it. We provide flexibility for cable 
operators in complying with this requirement by permitting them to 
disclose on their own websites, or through alternate means if they do 
not have their own websites,\27\ basic contact information including 
the name or title, telephone number, and email address for the person 
responsible for responding to requests for information about leased 
access channels. This information is necessary for potential leased 
access programmers to initiate productive contact with cable systems, 
which is vital to the leased access process, and our approach is 
consistent with the contact information requirements the Commission has 
adopted in other contexts. We provide further flexibility by requiring 
cable operators to provide either a contact person's name or title.\28\ 
This approach eliminates the need to update the website due to 
personnel changes, and it is permissible so long as the provided 
telephone number and email address reach the appropriate person. 
However, a cable operator provides the required contact information, it 
should be reasonably identifiable, though it need not appear on a cable 
operator's main web page.\29\
---------------------------------------------------------------------------

    \27\ For example, a cable operator that does not have its own 
website could post its contact information on a third-party website, 
such as the website of a cable or programmer trade association, and 
it could train employees to provide that website to callers 
inquiring about leased access matters.
    \28\ For example, rather than specifying the contact person's 
name, Cox has opted to provide that communications should be 
directed to the ``Leased Access Coordinator'' and it lists an email 
address for this person.
    \29\ Although the Commission adopted a comparable requirement in 
the 2008 Leased Access Order, that requirement never went into 
effect because OMB disapproved of the information collection 
requirements contained in that order. The reasons for the 
disapproval, however, were not specifically related to the contact 
information requirement, and as explained above we have minimized 
burdens of the new contact information requirement by providing 
cable operators with flexibility in complying.
---------------------------------------------------------------------------

    25. Dispute Procedures. As proposed in the FNPRM, we adopt common-
sense modifications to the procedures for leased access disputes, which 
no commenter opposed. These modifications resolve inconsistencies 
between the leased access dispute resolution rule (section 76.975) and 
the Commission's more general rule governing complaints (section 76.7). 
First, we adopt the proposal to revise the terminology in section 
76.975 by referencing an answer to a petition, rather than a response 
to a petition. Second, we adopt the proposal to modify section 76.975 
by calculating the 30-day timeframe for filing an answer to a leased 
access petition from the date of service of the petition, rather than 
from the date on which the petition was filed. Third, whereas section 
76.975 currently does not include any allowance for replies, we adopt 
the proposal to add a provision stating that replies to answers must be 
filed within 15 days after submission of the answer.\30\ Fourth, we 
adopt the proposal to add to section 76.975 a statement that section 
76.7 applies to petitions for relief filed under section 76.975, unless 
otherwise provided in section 76.975. We expect that these 
modifications will make dispute procedures clearer both for the parties 
to a leased access dispute and for the Commission.\31\
---------------------------------------------------------------------------

    \30\ The FNPRM sought comment on whether 15 days is the 
appropriate timeframe for submitting a reply to an answer to a 
leased access petition. Commenters did not address this issue, with 
the exception of Jones's support of the Commission's 15-day 
proposal. To be consistent with the answer filing deadline, which is 
20 days under the general complaint-filing rule but 30 days under 
the leased access rule, we find that it is appropriate for the reply 
filing deadline to be 10 days under the general complaint-filing 
rule but 15 days under the leased access rule.
    \31\ Although some commenters argue that we should make 
additional changes to make the dispute resolution process faster and 
more efficient, we find insufficient justification for such changes 
at this time. We will revisit these issues in the future if we 
determine that further modifications to the leased access dispute 
resolution procedures are needed.
---------------------------------------------------------------------------

    26. Other Issues. Commenters put forth several additional proposals 
in response to the FNPRM, and we reject the proposals at this time as 
follows.
    27. HD leased access. We will not require cable systems to carry 
leased access programming in high definition (HD).\32\ Rather, HD 
carriage is at the discretion of the cable operator. This approach is 
consistent with the Act, which does not require cable systems to carry 
leased access programming in HD. Carrying leased access programming in 
HD expands the use of spectrum without increasing the volume of leased 
access programming distributed. Further, we note that cable operators 
negotiate to carry even some

[[Page 28767]]

commercial programming in standard definition (SD).
---------------------------------------------------------------------------

    \32\ While some leased access programmers support a requirement 
that cable systems carry leased access programming in HD, cable 
operators object to such a requirement.
---------------------------------------------------------------------------

    28. Insurance requirements. We decline to adopt new limits on the 
insurance requirements that cable operators may impose on leased access 
programmers. We find that this proposal is inconsistent with the Cable 
Services Bureau's prior conclusion that a cable operator has the 
``right to require reasonable liability insurance coverage for leased 
access programming.'' We are not persuaded that this conclusion was in 
error, and leased access programmers have provided no compelling 
evidence that the Commission should adopt limits on the reasonable 
insurance requirements that cable operators may impose on leased access 
programmers, including limits on naming cable affiliates as additional 
insureds.\33\
---------------------------------------------------------------------------

    \33\ Note that last year the Media Bureau dismissed in part and 
otherwise denied a petition alleging that a cable operator failed to 
demonstrate that its insurance requirement was reasonable. The 
Bureau concluded that ``[t]he threshold issue of whether a cable 
operator may require insurance coverage for leased access 
programming is settled,'' and the cable operator ``was reasonable to 
require insurance coverage in this instance.''
---------------------------------------------------------------------------

    29. Limited carriage areas. We will not prohibit cable operators 
from refusing to carry leased access programmers on only a portion of 
the operator's system, even if the programmer is willing to pay the 
reasonable cost of a modulator or other piece of equipment that would 
be needed to limit the carriage area.\34\ Rather, consistent with past 
practice, we will continue evaluating any programmer complaints 
regarding cable operator denials of leased access carriage on a case-
by-case basis. We agree with Charter that the Act ``does not require 
that leased access be accommodated in this piece-meal fashion.'' 
Customers depend on a consistent channel lineup in a given geographic 
area, and cable operators should not be required to reconfigure their 
systems to make leased access programming available only on a portion 
of the system. Indeed, if the Commission permitted every leased access 
programmer to provide a modulator and request a custom service area, 
the ensuing technical and operational burdens on cable operators easily 
could become unmanageable.
---------------------------------------------------------------------------

    \34\ LAPA proposed that we impose such a prohibition.
---------------------------------------------------------------------------

    30. Disclosure requirements. We decline to modify the information 
that cable system operators must provide prospective leased access 
programmers, as set forth in section 76.970(i)(1) of our rules, except 
for the elimination of the reference to part-time rates discussed 
above. ACA proposes that we could ease burdens on cable operators by: 
(1) Permitting them to provide ACA's proposed safe harbor rates, or a 
rate estimate, rather than a complete rate schedule; (2) eliminating 
the requirement that they provide rates associated with technical and 
studio costs; and (3) eliminating the requirement that they provide 
sample contracts, or permitting them to provide term sheets instead of 
sample contracts. We find that a leased access programmer may need to 
review the rate schedule, technical and studio costs, and a sample 
contract before deciding whether to proceed in leasing access under our 
current rules. We therefore decline to adopt ACA's proposals at this 
time.\35\
---------------------------------------------------------------------------

    \35\ Similarly, we find that the costs to cable operators of 
providing potential leased access programmers with extensive 
additional information would outweigh the potential benefits of 
providing that additional information to prospective leased access 
programmers. Accordingly, we decline to adopt such requirements. We 
note, however, that we do adopt leased access contact information 
requirements. In addition, current rules require disclosure of ``[a] 
complete schedule of the operator's full-time and part-time leased 
access rates.''
---------------------------------------------------------------------------

    31. Other proposals. We note that commenters responding to the 
FNPRM raised several additional proposals on a variety of topics, which 
are not fully developed in the record or are outside the scope of this 
proceeding.\36\ We decline to address any of these proposals at this 
time because we find that it is preferable to monitor the impact of the 
rule changes we adopt today before deciding if any of these 
modifications are needed.
---------------------------------------------------------------------------

    \36\ In addition, SBN asks the Commission to ``clarify that 
independent programmers have the same right of access to 
multichannel video systems owned by telephone companies as they have 
to other cable systems.'' To the extent there is any doubt, we 
clarify that a telephone company that is acting as a ``cable 
operator'' is subject to the leased access requirements in the same 
manner as any other cable operator.
---------------------------------------------------------------------------

    32. The First Amendment. The changes in the video marketplace 
described above call into question whether our leased access rules are 
consistent with the First Amendment. Specifically, while the leased 
access rules were originally justified as safeguarding competition and 
diversity in the face of cable operators' monopoly power, the growth in 
available platforms to distribute programming seems to have eroded this 
justification. We sought comment on this issue in the FNPRM. Some 
commenters argue that changes in the marketplace mean that strict 
scrutiny may be the appropriate standard of review for the leased 
access statute today. Some commenters further claim that even under 
intermediate scrutiny, which is the standard the D.C. Circuit applied 
when it upheld the leased access statute in 1996, marketplace changes 
would dictate a finding that the leased access regime is no longer 
consistent with the First Amendment. Because changes in the marketplace 
have dramatically increased diversity and competition in the video 
programming market, these commenters argue, the leased access rules are 
no longer necessary to further the government's interest in promoting 
these goals.
    33. We agree that dramatic changes in technology and the 
marketplace for the distribution of programming cast substantial doubt 
on the constitutional foundation for our leased access rules. We 
recognize that we rejected similar constitutional arguments in the 2008 
Leased Access Order, which we vacate today. Our analysis has changed 
because the facts have changed: as explained above, the growth in 
alternative outlets for programmers--particularly on the internet--has 
exploded in the decade since the adoption of the 2008 Leased Access 
Order. Given this proliferation of new distribution platforms, we now 
find that the First Amendment concerns raised by commenters provide 
additional reason to interpret the statutory obligations of section 612 
in a manner that reduces burdens on the speech of cable operators. We 
do so here by, among other things, eliminating the Commission rule 
requiring that cable operators make leased access available on a part-
time basis. While our rule changes are independently and sufficiently 
supported by the policy justifications above, we note that 
constitutional concerns rely on the same premise: that changes in the 
video marketplace have substantially weakened the justifications for 
leased access.\37\
---------------------------------------------------------------------------

    \37\ In the related Section Further Notice of Proposed 
Rulemaking, we seek further comment on the constitutionality of the 
Commission's overall leased access regime, which the Commission 
adopted pursuant to express Congressional authorization.
---------------------------------------------------------------------------

    34. Procedural Matters. As required by the Regulatory Flexibility 
Act of 1980, as amended (RFA), the Commission has prepared a Final 
Regulatory Flexibility Analysis (FRFA) relating to the Report and 
Order. In summary, the Report and Order updates the Commission's leased 
access rules as part of its Modernization of Media Regulation 
Initiative. First, we adopt the FNPRM's tentative conclusion that we 
should vacate the Commission's 2008 Leased Access Order. Second, we 
adopt certain updates and improvements to our existing leased access 
rules. The

[[Page 28768]]

action is authorized pursuant to sections 4(i), 303, and 612 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, and 532. 
The types of small entities that may be affected by the proposals 
contained in the FNPRM fall within the following categories: Cable 
Television Distribution Services, Cable Companies and Systems (Rate 
Regulation), Cable System Operators (Telecom Act Standard), Cable and 
Other Subscription Programming, Motion Picture and Video Production, 
and Motion Picture and Video Distribution. The projected reporting, 
recordkeeping, and other compliance requirements are: (1) Vacating the 
2008 Leased Access Order, including the Further Notice of Proposed 
Rulemaking issued in conjunction with that order; (2) Eliminating the 
requirement that cable operators make leased access available on a 
part-time basis; (3) Adopting the proposal set out in the FNPRM to ease 
burdens on cable operators by revising Sec.  76.970(i) of our rules to 
provide that all cable operators, and not just those that qualify as 
``small systems'' under that rule, are required to respond to a request 
for leased access information only if the request is bona fide; (4) 
Easing burdens on cable operators by extending the timeframe within 
which they must provide prospective leased access programmers with the 
information specified in Sec.  76.970(i)(1) of our rules, from 15 
calendar days to 30 calendar days for cable operators generally, and 
from 30 calendar days to 45 calendar days for operators of systems 
subject to small system relief; (5) Permitting cable operators to 
impose a maximum leased access application fee of $100 per system-
specific bona fide request, and deeming as reasonable under the 
Commission's rules a security deposit or prepayment requirement 
equivalent to up to 60 days of the applicable lease fee; (6) Adopting a 
requirement that cable operators provide potential leased access 
programmers with contact information for the person responsible for 
leased access matters; and (7) Adopting common-sense modifications to 
the procedures for leased access disputes, which no commenter opposed. 
Finally, commenters put forth several additional proposals in response 
to the FNPRM, and we reject the proposals at this time. The SBA did not 
file comments. Many of the actions taken in the Report and Order will 
ease burdens, including economic burdens, on cable operators of all 
sizes. The changes in the Report and Order that ease burdens on cable 
operators, such as the elimination of part-time leased access, may also 
impact leased access programmers, including small programmers. We find 
that the marketplace changes discussed above, including in particular 
the availability of online platforms for these small programmers to 
distribute their content, justify this approach. The Report and Order 
considered alternatives to take into account the impact on small 
entities as follows: (1) The Report and Order concludes that 
eliminating part-time leased access entirely is a preferable approach 
to the alternative of establishing a set minimum amount of leased 
access programming, given the alternative means of distribution 
available to programmers today and the costs that part-time leased 
access imposes on cable operators. (2) While we consider one 
commenter's alternative proposal of a 45-day response period for all 
cable operators, we conclude that tripling the current deadline is 
excessive.
    35. The Report and Order contains new or revised information 
collection requirements, as reflected in the Final Rules, Sec. Sec.  
76.970(h) and 76.975(e). The Commission, as part of its continuing 
effort to reduce paperwork burdens, will invite 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 (44 U.S.C. 3501-
3520). In addition, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission 
previously sought specific comment on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    36. The Commission will send a copy of the Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
    37. Ordering Clauses. Accordingly, it is ordered that, pursuant to 
the authority found in sections 4(i), 303, and 612 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, and 532, 
this Report and Order is hereby adopted.
    38. It is further ordered that part 76 of the Commission's rules, 
47 CFR part 76, is amended as set forth below, and such rule amendments 
shall be effective thirty (30) days after the date of publication in 
the Federal Register, except for Sec. Sec.  76.970(h) and 76.975(e) 
that contain new or modified information collection requirements, which 
shall become effective after the Commission publishes a notice in the 
Federal Register announcing OMB approval and the relevant effective 
date.
    39. It is further ordered that the Commission's Report and Order 
and Further Notice of Proposed Rulemaking in the Leased Commercial 
Access proceeding, MB Docket No. 07-42, FCC 07-208, is hereby vacated.
    40. It is further ordered that the March 28, 2008 Request of 
National Cable & Telecommunications Association for a Stay, MB Docket 
No. 07-42, is dismissed as moot.
    41. It is further ordered that the March 31, 2008 TVC Broadcasting 
LLC Petition for Reconsideration, MB Docket No. 07-42, is dismissed as 
moot.
    42. It is further ordered that the Commission shall send a copy of 
this Report and Order and Second Further Notice of Proposed Rulemaking 
in a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

List of Subjects in 47 CFR Part 76

    Administrative practice and procedure, Cable television, Reporting 
and recordkeeping requirements.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

0
2. In Sec.  76.970:
0
A. Revise paragraph (a);
0
B. Remove paragraph (h);
0
C. Redesignate paragraphs (i) and (j) as paragraphs (h) and (i);
0
D. Revise newly redesignated paragraph (h).
    The revisions read as follows:


Sec.  76.970  Commercial leased access rates.

    (a) Cable operators shall designate channel capacity for commercial 
use by persons unaffiliated with the operator, and that seek to lease a 
programming channel on a full-time basis, in accordance with the 
requirement of 47

[[Page 28769]]

U.S.C. 532. For purposes of 47 U.S.C. 532(b)(1)(A) and (B), only those 
channels that must be carried pursuant to 47 U.S.C. 534 and 535 qualify 
as channels that are required for use by Federal law or regulation. For 
cable systems with 100 or fewer channels, channels that cannot be used 
due to technical and safety regulations of the Federal Government 
(e.g., aeronautical channels) shall be excluded when calculating the 
set-aside requirement.
* * * * *
    (h)(1) Cable system operators shall provide prospective leased 
access programmers with the following information within 30 calendar 
days of the date on which a bona fide request for leased access 
information is made, provided that the programmer has remitted any 
application fee that the cable system operator requires up to a maximum 
of $100 per system-specific bona fide request:
    (i) How much of the operator's leased access set-aside capacity is 
available;
    (ii) A complete schedule of the operator's full-time leased access 
rates;
    (iii) Rates associated with technical and studio costs; and
    (iv) If specifically requested, a sample leased access contract.
    (2) Operators of systems subject to small system relief shall 
provide the information required in paragraph (h)(1) of this section 
within 45 calendar days of a bona fide request from a prospective 
leased access programmer. For these purposes, systems subject to small 
system relief are systems that either:
    (i) Qualify as small systems under Sec.  76.901(c) and are owned by 
a small cable company as defined under Sec.  76.901(e); or
    (ii) Have been granted special relief.
    (3) Bona fide requests, as used in this section, are defined as 
requests from potential leased access programmers that have provided 
the following information:
    (i) The desired length of a contract term;
    (ii) The anticipated commencement date for carriage; and
    (iii) The nature of the programming,
    (4) All requests for leased access must be made in writing and must 
specify the date on which the request was sent to the operator.
    (5) Operators shall maintain, for Commission inspection, sufficient 
supporting documentation to justify the scheduled rates, including 
supporting contracts, calculations of the implicit fees, and 
justifications for all adjustments.
    (6) Cable system operators shall disclose on their own websites, or 
through alternate means if they do not have their own websites, a 
contact name or title, telephone number, and email address for the 
person responsible for responding to requests for information about 
leased access channels.
    (i) Cable operators are permitted to negotiate rates below the 
maximum rates permitted in paragraphs (c) through (g) of this section.


Sec.  76.971  [Amended]

0
3. Amend Sec.  76.971, by removing paragraph (a)(4).

0
4. Amend Sec.  76.975 by revising paragraph (e) and adding paragraph 
(i) to read as follows:


Sec.  76.975   Commercial leased access dispute resolution.

* * * * *
    (e) The cable operator or other respondent will have 30 days from 
service of the petition to file an answer. If a leased access rate is 
disputed, the answer must show that the rate charged is not higher than 
the maximum permitted rate for such leased access, and must be 
supported by the affidavit of a responsible company official. If, after 
an answer is submitted, the staff finds a prima facie violation of our 
rules, the staff may require a respondent to produce additional 
information, or specify other procedures necessary for resolution of 
the proceeding. Replies to answers must be filed within fifteen (15) 
days after submission of the answer.
* * * * *
    (i) Section 76.7 applies to petitions for relief filed under this 
section, except as otherwise provided in this section.

[FR Doc. 2019-13134 Filed 6-19-19; 8:45 am]
BILLING CODE 6712-01-P