Cable Service Change Notifications; Modernization of Media Regulation Initiative; Retransmission Consent, 656-663 [2019-28430]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 4 (Tuesday, January 7, 2020)]
[Proposed Rules]
[Pages 656-663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28430]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket Nos. 19-347, 17-105, 10-71; FCC 19-132; FRS 16379]


Cable Service Change Notifications; Modernization of Media 
Regulation Initiative; Retransmission Consent

AGENCY: Federal Communications Commission

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission seeks comment on whether to 
update our rules concerning notice that cable operators must provide to 
subscribers and local franchise authorities (LFAs) regarding service or 
rate changes in order to reduce potential consumer confusion. 
Specifically, we

[[Page 657]]

seek comment whether to amend the rules to make clear that cable 
operators must provide subscriber notice ``as soon as possible'' when 
service changes occur due to retransmission consent or program carriage 
negotiations that fail within the last 30 days of a contract. We also 
seek comment on whether to require notice to LFAs only if required by 
the LFA pursuant to its statutory authority and whether to adopt 
several technical edits to the rules to make them more readable and 
remove duplicative requirements.

DATES: Comments due on or before February 6, 2020; reply comments due 
on or before February 21, 2020.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), MB Docket Nos. 19-347, 17-105, 10-71; 
FCC 19-132, adopted and released on December 12, 2019. The full text of 
this document is available for public inspection and copying during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 
20554. The full text of this document will also be available via ECFS 
(https://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word, and/or Adobe Acrobat.) The complete text 
may be purchased from the Commission's copy contractor, 445 12th Street 
SW, Room CY-B402, Washington, DC 20554. To request these documents in 
accessible formats (computer diskettes, large print, audio recording, 
and Braille), send an email to [email protected] or call the Commission's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

Synopsis

    In today's video marketplace, retransmission consent and program 
carriage negotiations are often concluded within days--if not hours--of 
the expiration of existing agreements. And in those cases, it is 
frequently unclear, 30 days prior to a contract's expiration, whether a 
new agreement will be reached, there will be a short-term extension, or 
programming will be dropped. This uncertainty raises difficult 
questions regarding what notice cable operators should be required to 
provide to subscribers and when they should be required to provide it. 
On the one hand, subscribers must receive meaningful information 
regarding their programming options so they can make informed decisions 
about their service. On the other hand, inaccurate or premature notices 
about theoretical programming disruptions that never come to pass can 
cause consumer confusion and lead subscribers to change providers 
unnecessarily.
    This Notice of Proposed Rulemaking (NPRM) seeks comment on whether 
to update our rules concerning notices that cable operators must 
provide to subscribers and local franchise authorities (LFAs) regarding 
service or rate changes. Specifically, in order to eliminate the 
potential for consumer confusion, we seek comment on whether to amend 
Sec. Sec.  76.1601 and 76.1603 of our rules to make clear that cable 
operators must provide subscriber notice ``as soon as possible'' when 
service changes occur due to retransmission consent or program carriage 
negotiations that fail within the last 30 days of a contract. We also 
seek comment on whether to amend Sec.  76.1603 to require notice to 
LFAs (for any service change) only if required by the LFA and whether 
to adopt other minor streamlining changes to the rule discussed below. 
In reviewing these rules, we seek to make consumer notices more 
meaningful and accurate, reduce consumer confusion, and ensure that 
subscribers receive the information they need to make informed choices 
about their service options. With this proceeding, we continue our 
efforts to modernize our regulations to better reflect today's media 
marketplace.
    Background. Several provisions of the Communications Act of 1934, 
as amended (the Act) address the notices that cable operators must 
provide to their subscribers and local franchise authorities regarding 
service or rate changes. Section 632 directs the Commission to adopt 
``standards by which cable operators may fulfill their customer service 
requirements,'' that govern, among other things, ``communications 
between the cable operator and the subscriber'' and specifies that a 
cable operator may ``provide notice of service and rate changes to 
subscribers using any reasonable written means at its sole 
discretion.'' In addition, section 623(b) of the Act, which directs the 
Commission to adopt regulations governing the rates for the basic 
service tier for cable systems not subject to effective competition, 
specifies that the standards must ``require a cable operator to provide 
30 days' advance notice to a franchising authority of any increase 
proposed in the price to be charged for the basic service tier.'' 
Further, section 624(h) grants LFAs the authority to require a cable 
operator to ``[p]rovide 30 days' advance notice of any change in 
channel assignment or in the video programming service provided.''
    The Commission adopted regulations implementing these notice and 
customer service requirements through several decisions issued in 1993. 
In 1999, the Commission revised and streamlined the cable television 
notice requirements contained throughout Part 76 of the Commission's 
rules and consolidated them into a newly created Subpart T. As part of 
that reorganization, the Commission moved to Sec.  76.1601 a 
requirement that cable operators provide written notice to any 
broadcast television station and all of the system's subscribers at 
least 30 days prior to either deleting from carriage or repositioning 
that station. In addition, the Commission consolidated three other 
notice requirements into Sec.  76.1603. Currently, Sec.  76.1603 
requires cable operators to: (1) Notify customers ``of any changes in 
rates, programming services, or channel positions as soon as possible 
in writing,'' and ``a minimum of thirty (30) days in advance of such 
changes if the change is within the control of the cable operator;'' 
(2) ``notify subscribers 30 days in advance of any significant changes 
in the other information required by Sec.  76.1602''; (3) ``give 30 
days written notice to both subscribers and local franchising 
authorities before implementing any rate or service change,'' stating 
the precise amount of any rate change and a brief explanation in 
readily understandable fashion of the cause of the rate change; and (4) 
``provide written notice to a subscriber of any increase in the price 
to be charged for the basic service tier or associated equipment at 
least 30 days before any proposed increase is effective'' and no more 
than 60 days if the equipment is provided to the consumer without 
charge under Sec.  76.630 because the operator encrypts the basic 
service tier. Notably, these rules only apply to cable operators and 
not to other MVPDs.
    In 2011, the Commission sought comment on whether to revise Sec.  
76.1601 ``to require that notice of potential deletion of a 
broadcaster's signal be given to consumers once a retransmission 
consent agreement is within 30 days of expiration, unless a renewal or 
extension has been executed, and regardless of whether the station's 
signal is ultimately deleted.'' The Commission noted that while 
adequate advance notice of retransmission consent disputes can allow 
consumers

[[Page 658]]

to prepare for service disruptions, ``such notice can be unnecessarily 
costly and disruptive when it creates a false alarm, i.e., concern 
about disruption that does not come to pass, and induces subscribers to 
switch MVPD providers in anticipation [thereof].'' The Commission also 
sought comment on whether to expand the Sec.  76.1601 consumer notice 
requirements in various ways, including whether they should apply to 
all MVPDs. Notably, the Retransmission Consent NPRM focused only on 
notice related to changes that resulted from broadcast retransmission 
consent negotiations and only on revisions to Sec.  76.1601.
    More recently, in response to a service notice change complaint 
that the Media Bureau ultimately dismissed at the complainant's 
request, Charter filed a letter urging us not to adopt an 
interpretation of Sec.  76.1603 that would require that cable operators 
``provide a 30-day advance notice to subscribers any time negotiations 
over the carriage of a channel enter the final month of an agreement 
solely because the channel might be dropped.'' Such an interpretation, 
they maintain, would ``harm[ ] consumers and disserve[ ] the public 
interest in ensuring fair bargaining.'' Charter explains that 
``[n]egotiations between cable operators and programmers or 
broadcasters usually come down to the final 30 days of an agreement--
indeed, often down to the final day or hours.'' And Charter notes that 
``[t]he vast majority of those negotiations--as many as 99 percent--end 
successfully, but a few do not.'' Moreover, Charter contends any failed 
negotiations are not strictly within the cable operator's control. 
Accordingly, ``Charter proposes that the Commission clarify that the 
30-day advance notice requirement does not apply when a cable operator 
and a programmer or a broadcaster remain in carriage negotiations, even 
during the final 30 days of an agreement. If those negotiations fail 
and the channel goes dark as a result, the cable operator would be 
required to provide notice to subscribers `as soon as possible.' ''
    Earlier this year, the Commission, in response to parties' feedback 
to the Media Modernization Public Notice, amended our rules to clarify 
the mechanism by which cable operators must notify subscribers and LFAs 
about service and rate changes. Specifically, the Commission modified 
our rules to allow certain notices required under Subpart T of the 
Commission's rules, including the notices required to be delivered to 
subscribers under Sec. Sec.  76.1601 and 76.1603, to be delivered 
electronically via a verified email address, so long as an opt out 
mechanism for the subscriber to receive paper notices instead is 
provided. This flexibility applies to ``general notices,'' that provide 
``a comprehensive catalog of information'' as opposed to the notices 
that convey ``targeted and immediate information about a single event'' 
at issue in this NPRM. We seek to build on these reforms to ensure that 
our rules about the timing of service and rate change notices best 
reflect marketplace realities and minimize customer confusion
    Discussion. We seek comment on three specific issues related to the 
notice obligations in Sec. Sec.  76.1601 and 76.1603: (1) Whether to 
make clear in Sec.  76.1603(b) that cable operators have no obligation 
to provide notice to subscribers 30 days in advance of channel lineup 
changes when the change is due to retransmission consent or program 
carriage negotiations that fail during the last 30 days of a contract 
but, in that situation, they must provide notice ``as soon as 
possible''; (2) whether to modify Sec.  76.1603(c) to require service 
and rate change notices to LFAs only if required by an LFA; and (3) 
whether to adopt several technical edits to Sec. Sec.  76.1601 and 
76.1603 to make the rules more readable and remove duplicative 
requirements. Finally, we seek comment on whether there are any other 
changes to these rules or other notice rules that we should consider.
    Service Change Notice Due to Failed Carriage Negotiations. First, 
we seek comment on whether to amend Sec.  76.1603(b) to make clear that 
there is no obligation on a cable operator to provide notice to 
subscribers of changes 30 days in advance when retransmission consent 
or program carriage negotiations between a cable operator and a 
broadcaster or programmer fail during the last 30 days of a contract. 
Rather, in that situation, they must provide notice ``as soon as 
possible'' when service changes occur. As noted above, section 632(b) 
of the Act directs the Commission to adopt ``standards by which cable 
operators may fulfill their customer service requirements,'' and 
section 632(c) affords cable operators the flexibility to ``provide 
notice of service and rate changes to subscribers using any reasonable 
written means at its sole discretion.'' These statutory provisions do 
not explicitly state that all notices must be provided in advance. In 
fact, section 632(c) refers only to ``notice,'' whereas various other 
provisions of the Act specifically require ``advance notice.'' We 
recognize, however, that the legislative history of the 
Telecommunications Act of 1996 indicates that Congress wanted ``to 
ensure that consumers have sufficient warning about rate and service 
changes so they can choose to disconnect their service prior to the 
implementation of the change.'' Although cable operators must currently 
provide notice of all channel lineup changes to subscribers, we 
recognize that providing 30-day advance notice in the context of 
carriage negotiations poses unique challenges to providers and risks 
creating consumer confusion, particularly given that consumers usually 
do not experience service disruption as a result of retransmission 
consent or program carriage negotiation disputes.
    Charter asserts that providing 30-days' advance notice of a 
potential channel deletion is often impractical because 
``[n]egotiations between cable operators and programmers or 
broadcasters usually come down to the final 30 days of an agreement--
indeed, often down to the final day or hours.'' It maintains that 
requiring a cable operator to notify its subscribers and LFAs 30 days 
in advance ``any time negotiations over the carriage of a channel enter 
the final month of an agreement solely because the channel might be 
dropped harms consumers and disserves the public interest in ensuring 
fair bargaining.'' Charter proposes that if ``negotiations fail and the 
channel goes dark as a result,'' a cable operator should be required to 
provide notice ``as soon as possible.''
    We seek comment on Charter's proposal and other ways we can make 
consumer notice more effective in the context of failed carriage 
negotiations. Specifically, if a channel is deleted because of a 
failure of negotiations in the last 30 days of a contract, should we 
require cable operators to provide notice of the deletion ``as soon as 
possible'' after the failure occurs, as Charter proposes? If so, how 
should we define ``as soon as possible,'' and would this provide 
subscribers sufficient notice? How would we determine when negotiations 
have failed so as to trigger the requirement? Is there an alternative 
event that could be used to trigger the notice requirement short of a 
blackout? The Commission has previously said that retransmission 
consent negotiations are under the ``control of both parties to the 
negotiations, and thus, failure to reach retransmission consent 
agreement would not be an excuse for failing to provide notice.'' While 
the Commission correctly acknowledged that there are two parties in 
``control'' of the retransmission consent negotiations, we question, 
based on the experience the Commission has gained observing various 
retransmission consent disputes over the past eight years, whether

[[Page 659]]

failure to reach agreement is essentially ``within the control'' of the 
cable operator such that the operator has an advance notice obligation. 
Accordingly, we seek comment on whether the better interpretation is 
that a single party to a negotiation cannot control the ultimate 
outcome of the negotiation and therefore cannot be required to give 
advance notice of a potential loss of a channel. If so, should we 
provide clarity to interested parties by codifying in our rules that 
failed retransmission consent or program carriage negotiations are not 
within the control of the cable operator for purposes of the advanced 
notice requirement of Sec.  76.1603?
    We seek comment on the impact to subscribers to the extent that we 
make clear that cable operators must provide channel deletions notices 
to subscribers ``as soon as possible'' in the case of retransmission 
consent and program carriage negotiations that fail during the last 30 
days of a contract. We seek comment on whether requiring notice ``as 
soon as possible'' in these circumstances, rather than 30 days in 
advance, would be beneficial to subscribers because the notice they 
would receive would be clearer and more meaningful. As Charter points 
out, premature notices ``could create significant subscriber confusion, 
leading subscribers to unnecessarily change their cable provider, which 
could be costly for consumers.'' Assuming negotiations usually come 
down to the final 30 days, as Charter maintains, does requiring 30-
days' notice anytime an agreement could not be reached create 
unnecessary subscriber confusion? Does the practice of agreeing to 
short-term extensions of carriage agreements while negotiations are 
ongoing add to this confusion? Or, is there a benefit to consumers in 
receiving 30-day advance notices even if such notices turn out not to 
be accurate that outweighs any harms? If the rules are revised to allow 
notice to be given to consumers only after a negotiation has failed and 
a channel has been deleted, could this practice cause other unintended 
harms for consumers? Should cable operators be required to provide 
notice at a time other than 30 days before loss of service in the 
context of a retransmission consent negotiation, such as a week or 48 
hours before expiration of a contract? Do the available online video 
programming alternatives to traditional MVPD services eliminate the 
need for subscribers to have advance notice of any potential blackouts, 
as Charter suggests? Given that subscribers may have access to blacked 
out programming via online sources, does that reduce or eliminate the 
need to switch providers in order to continue receiving the blacked out 
content? Are there other factors that impact a consumer's ability to 
change providers in the event of a loss of programming? Is there a way 
to ensure that subscribers have sufficient warning that they may no 
longer have access to programming without unnecessarily alerting them 
every time carriage negotiations could result in an impasse? Are there 
ways for the Commission to track the use and effectiveness of these 
notices? Should cable operators be required to include these notices in 
their online public files?
    How do cable operators comply with our notice rules today when 
faced with the prospect of failed retransmission consent and program 
carriage negotiations? Specifically, to what extent do cable operators 
currently provide notice 30 days in advance when negotiations may fail, 
and what mechanism do they use to provide notice in situations where it 
is unclear whether the channel in question will remain available? How 
often do those notices alert subscribers that they may lose a channel 
when the subscriber's service ultimately does not change because the 
cable operator and programmer negotiate a carriage agreement during the 
last 30 days of the expiring carriage agreement? How common is it for 
there to be multiple extensions of existing retransmission consent 
agreements, and do cable operators provide subscriber notice of each 
extension? Are there ways that cable operators currently keep 
subscribers informed of ongoing negotiations with content providers or 
expiring contracts that could be used here? What type of notice, if 
any, do other non-cable MVPDs, that are not regulated under Sec.  
76.1603, provide to their subscribers in such instances?
    As stated above, the statute allows cable operators to provide 
notice to subscribers using ``any reasonable written means.'' We seek 
comment on the ``written means'' by which the cable operator should 
give notice were we to adopt an approach requiring notice as soon as 
possible following failed negotiations. Are there any ``reasonable 
written means'' in the context of carriage negotiation failures that 
would not be reasonable in situations outside of the retransmission 
consent or program carriage context? For example, NCTA states that 
cable operators may use ``channel slates''--notices that would replace 
the video feed in the event of a blackout--in order to quickly notify 
subscribers of a service change in the event of a negotiation failure. 
We seek comment on whether this mechanism would constitute a 
``reasonable written means'' for alerting subscribers of failed 
negotiations because it is the most targeted means to alert all 
affected subscribers as soon as possible. We also seek comment on 
whether newspaper notice is a reasonable written means in this context 
given the distinct possibility that the notice would not reach all, or 
many of, the affected subscribers in a timely manner. That is, even 
assuming that the affected cable subscriber actually subscribed to a 
newspaper, it is not clear whether that particular newspaper would 
contain the requisite notice or that the subscriber would read it in 
time to make an informed decision about potential service changes.
    Notice to LFAs for Service and Rate Changes. Second, we seek 
comment on whether to modify Sec.  76.1603(c) to require that notice of 
rate or service changes be provided by cable operators to LFAs only if 
required by an LFA. We also seek comment on whether to amend Sec.  
76.1603(c) to direct cable operators to provide notice to LFAs 30 days 
in advance unless the change results from circumstances outside of the 
cable operator's control (including failed retransmission consent or 
program carriage negotiations during the last 30 days of a contract), 
in which case notice shall be provided as soon as possible. This would 
change Sec.  76.1603(c)'s current requirement that cable operators 
provide written notice to LFAs of any change in rates or services 30 
days in advance regardless of the circumstance. To what extent do LFAs 
rely on the current notice rules or the information about rate or other 
service changes provided to them pursuant to these rules? How can LFAs 
use this information given that almost no LFAs can regulate basic tier 
rates? We acknowledge the Commission has said that the purpose of Sec.  
76.1603(c) is ``to protect subscribers,'' and that ``[p]roviding 
advance notice to LFAs furthers this objective by enabling LFAs to 
respond to any questions or complaints from subscribers in an informed 
manner.'' We seek comment on whether our contemplated modifications are 
consistent with this precedent as we contemplate that LFAs may still 
obtain service and rate change information to the extent they determine 
that they need and will require the information to protect subscribers. 
In light of the ability of LFAs to require rate and service change 
information from cable operators, we also seek comment on whether the 
notice requirements in Sec.  76.1603(c) still remain

[[Page 660]]

necessary to enable LFAs to protect subscribers and, if so, why? Do 
LFAs receive similar information from non-cable MVPDs? Parties should 
discuss the costs and benefits of modifying this requirement.
    We seek comment on whether the Commission has authority to revise 
its rule mandating 30-days advance notice to LFAs of any basic tier 
rate increase to instead require such notice only if required by an 
LFA. Section 623(b)(2) of the Act requires the Commission to 
``prescribe, and periodically thereafter revise, regulations to carry 
out its obligations'' under section 623(b)(1) to ensure that the rates 
for the basic service tier are reasonable. And section 623(b)(6), in 
turn, provides that such regulations ``shall require a cable operator 
to provide 30 days' advance notice to a franchising authority of any 
increase proposed in the price to be charged for the basic service 
tier.'' But Congress directed the Commission to ``prescribe, and 
periodically thereafter revise'' its regulations adopted pursuant to 
section 623(b). We seek comment on whether the Commission has authority 
to revise this rule as described given these statutory provisions.
    We note that multiple provisions of the Communications Act give 
LFAs the authority to require this type of notice independent of the 
Commission's rules. Any individual LFA that wishes to be notified of 
rate or service changes may require such notices through the cable 
franchising process or pursuant to their authority under section 632(a) 
of the Act to ``establish and enforce . . . customer service 
requirements of the cable operator.'' Further, section 624(h) of the 
Act explicitly states that an LFA may require a cable operator to 
``provide 30 days' advance written notice of any change in channel 
assignment or in the video programming service provided over any such 
channel.'' Given these statutory provisions, should we eliminate Sec.  
76.1603(c) altogether and allow LFAs to require this information under 
their own authority? Would LFAs be unreasonably burdened by having to 
require explicitly that cable operators under their jurisdiction 
provide this information? Is such a notice requirement already 
typically included in local franchise agreements or State or local 
franchise requirements?
    Readability and Redundancy. Third, we seek comment on four 
technical changes to Sec. Sec.  76.1601 and 76.1603 that would clean up 
these rules. As noted above, Subpart T was the product of an effort to 
streamline the Commission's cable rules that consolidated multiple 
disparate notice provisions into one new subpart. As a result, 
Sec. Sec.  76.1601 and 76.1603 contain several redundancies that we 
propose to eliminate. First, we propose to delete the requirement in 
the second sentence of Sec.  76.1601 that cable operators provide 
notice of the deletion or repositioning of a broadcast channel ``to 
subscribers of the cable system,'' a change that would not only delete 
a redundant provision but also consolidate all subscriber notice 
requirements regarding the deletion or repositioning of channels into 
Sec.  76.1603(b).
    Second, we propose to revise Sec. Sec.  76.1603(b) and 76.1603(c) 
to clarify the notice obligations owed to subscribers and LFAs 
respectively. Currently, paragraph (b) applies only to subscribers, 
while paragraph (c) applies to both subscribers and LFAs. Both sections 
require cable operators to give notice of any changes in rates, 
programming services, or channel positions. In order to eliminate the 
redundancies in the notice requirements applicable to subscribers in 
paragraphs (b) and (c), we propose to revise Sec.  76.1603(b) to 
explain what notice must be given to subscribers and Sec.  76.1603(c) 
to explain what notice must be given to LFAs.
    Third, we note that Sec.  76.1603(d)'s requirement that cable 
operators notify subscribers about changes in rates for equipment that 
is provided without charge under Sec.  76.630 was adopted pursuant to 
section 624A of the Act. We seek comment on whether to delete this 
requirement from Sec.  76.1603, because it is duplicative of language 
in Sec.  76.630(a)(1)(vi).
    Fourth, we seek comment on whether to delete Sec.  76.1603(e) of 
our rules as redundant of the statutory requirement in section 632(c). 
That is, the language contained in Sec.  76.1603(e), ``any reasonable 
written means at its sole discretion'' mirrors the statutory 
requirement. Moreover, currently both Sec.  76.1603(b) and (c) require 
written notifications of service and rate changes to subscribers. Thus, 
it is not clear what the requirement in Sec.  76.1603(e) adds. We seek 
comment on the extent to which we need to elaborate in Sec.  76.1603(b) 
or elsewhere what constitutes ``reasonable written means'' under the 
Act.
    Other Proposals. Finally, we seek comment on whether the Commission 
should consider other modifications to Sec. Sec.  76.1601 or 76.1603 
unrelated to failed carriage negotiations. Frontier asserts that the 
Commission should ``shorten the 30-day timeframe to 5 or 15 days to 
better enable regulated providers [to] respond to competition.'' Should 
the Commission consider shortening notice timeframes and, if so, to 
which notices covered by Sec. Sec.  76.1601 and 76.1603 should these 
timeframes apply? What is the appropriate timeframe that should be 
adopted for each rule under consideration? If the Commission were to 
shorten these notice periods, would subscribers still have adequate 
time to change service providers or make other changes in response to 
such notices?
    Other stakeholders have suggested that the Sec. Sec.  76.1601 or 
76.1603 notice requirements include much information that does not 
actually assist subscribers in making decisions about their cable 
service. Does the volume of information required by these notice rules 
and the frequency with which notices must be given inundate subscribers 
with information that does not assist them in making decisions about 
their cable service? Would subscribers benefit more from more targeted 
notices? What information do subscribers actually require to make 
informed decisions about whether to continue or discontinue their cable 
service?
    For example, should we eliminate the requirement in Sec.  
76.1603(b) that cable operators notify subscribers 30 days in advance 
of any significant changes in the information reported in annual 
notices required by Sec.  76.1602, as NCTA and Frontier request? NCTA 
contends that this notice requirement ``imposes unnecessary burdens on 
operators to provide change notices,'' and that ``much of this 
information is of little value to customers and readily available on 
company websites.'' Would consumers be able to obtain such information 
elsewhere if this requirement were eliminated? Should we consider a 
more targeted rule that requires 30-day notice of only certain 
specified changes, such as changes in channel position, rather than 
notice of significant changes to any of the information delineated in 
Sec.  76.1602?
    We also seek comment on whether we should amend the notice 
requirements with respect to multiplexed broadcast signals. 
Specifically, we question the continued relevance of the language in 
Sec.  76.1603(c) that states: ``[f]or the purposes of the carriage of 
digital broadcast signals, the operator need only identify for 
subscribers, the television signal added and not whether that signal 
may be multiplexed during certain dayparts.'' The Commission originally 
adopted this rule eight years prior to the full-power digital 
transition. Now that it has been more than 10 years since the digital 
transition, is this rule still relevant? This language, based on the 
Commission's predictive judgment regarding a nascent service, appears 
to exempt multicast programming streams that air only during certain 
dayparts

[[Page 661]]

from the subscriber notification requirements (to the extent such 
streams are carried by a cable operator). We seek comment on that 
interpretation and whether such a rule is necessary or appropriate 
today. Do cable operators even carry such streams (i.e., those that 
only air during certain dayparts) in their channel lineups? We seek 
comment on these issues.
    Initial Regulatory Flexibility Act Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) relating 
to this NPRM. The IRFA is set forth below.
    Paperwork Reduction Act. This NPRM may result in new or revised 
information collection requirements subject to the Paperwork Reduction 
Act of 1995, Public Law 104-13 (44 U.S.C. 3501 through 3520). If the 
Commission adopts any new or revised information collection 
requirement, the Commission will publish a notice in the Federal 
Register inviting the public to comment on the requirement, 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 seeks specific comment on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    Ex Parte Rules--Permit-But-Disclose. This proceeding shall be 
treated as a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Ex parte presentations are permissible if 
disclosed in accordance with Commission rules, except during the 
Sunshine Agenda period when presentations, ex parte or otherwise, are 
generally prohibited. Persons making ex parte presentations must file a 
copy of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. Memoranda must contain a 
summary of the substance of the ex parte presentation and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
If the presentation consisted in whole or in part of the presentation 
of data or arguments already reflected in the presenter's written 
comments, memoranda or other filings in the proceeding, the presenter 
may provide citations to such data or arguments in his or her prior 
comments, memoranda, or other filings (specifying the relevant page 
and/or paragraph numbers where such data or arguments can be found) in 
lieu of summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with Sec.  1.1206(b) 
of the rules. In proceedings governed by Sec.  1.49(f) of the rules or 
for which the Commission has made available a method of electronic 
filing, written ex parte presentations and memoranda summarizing oral 
ex parte presentations, and all attachments thereto, must be filed 
through the electronic comment filing system available for that 
proceeding, and must be filed in their native format (e.g., .doc, .xml, 
.ppt, searchable .pdf). Participants in this proceeding should 
familiarize themselves with the Commission's ex parte rules.
    Filing Requirements--Comments and Replies. Pursuant to Sec. Sec.  
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, 
interested parties may file comments and reply comments on or before 
the dates indicated on the first page of this document. Comments may be 
filed using the Commission's Electronic Comment Filing System (ECFS). 
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 
24121 (1998).
    Electronic Filers: Comments may be filed electronically using the 
internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/.
    Paper Filers: Parties who choose to file by paper must file an 
original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission. 
All hand-delivered or messenger-delivered paper filings for the 
Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street SW, TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building. Commercial overnight mail (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service 
first-class, Express, and Priority mail must be addressed to 445 12th 
Street SW, Washington, DC 20554.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).
    Availability of Documents. Comments and reply comments will be 
publicly available online via ECFS. These documents will also be 
available for public inspection during regular business hours in the 
FCC Reference Information Center, which is located in Room CY-A257 at 
FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The 
Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m.
    Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared this present Initial Regulatory Flexibility Analysis 
(IRFA) concerning the possible significant economic impact on small 
entities by the policies and rules proposed in the NPRM. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
provided on the first page of the NPRM. The Commission will send a copy 
of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA). In addition, the NPRM and IRFA 
(or summaries thereof) will be published in the Federal Register.
    Need for, and Objectives of, the Proposed Rules. In today's video 
marketplace, retransmission consent and program carriage negotiations 
are often concluded within days--if not hours--of the expiration of 
existing agreements. And in those cases, it is frequently unclear, 30 
days prior to a contract's expiration, whether a new agreement will be 
reached, there will be a short-term extension, or programming will be 
dropped. This uncertainty raises difficult questions regarding what 
notice cable operators should be required to

[[Page 662]]

provide to subscribers and when they should be required to provide it. 
On the one hand, subscribers must receive meaningful information 
regarding their programming options so they can make informed decisions 
about their service. On the other hand, inaccurate or premature notices 
about theoretical programming disruptions that never come to pass can 
cause consumer confusion and lead subscribers to change providers 
unnecessarily.
    This NPRM seeks comment on whether to update our rules concerning 
notices that cable operators must provide to subscribers and local 
franchise authorities (LFAs) regarding service or rate changes. 
Specifically, in order to eliminate the potential for consumer 
confusion, we seek comment on whether to amend Sec. Sec.  76.1601 and 
76.1603 of our rules to make clear that cable operators must provide 
subscriber notice ``as soon as possible'' when service changes occur 
due to retransmission consent or program carriage negotiations that 
fail within the last 30 days of a contract. We also seek comment on 
whether to amend Sec.  76.1603 to require notice to LFAs (for any 
service change) only if required by the LFA and whether to adopt other 
minor streamlining changes to the rule discussed below. In reviewing 
these rules, we seek to make consumer notices more meaningful and 
accurate, reduce consumer confusion, and ensure that subscribers 
receive the information they need to make informed choices about their 
service options.
    Legal Basis. The proposed action is authorized pursuant to sections 
1, 4(i), 4(j), 623, 624, and 632 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 543, 544, and 552.
    Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply--Small Governmental Jurisdictions. A 
``small governmental jurisdiction'' is defined generally as 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand.'' U.S. Census Bureau data from the 2012 Census of Governments 
indicates that there were 90,056 local governmental jurisdictions 
consisting of general purpose governments and special purpose 
governments in the United States. Of this number there were 37,132 
General purpose governments (county, municipal and town or township) 
with populations of less than 50,000 and 12,184 Special purpose 
governments (independent school districts and special districts) with 
populations of less than 50,000. The 2012 U.S. Census Bureau data for 
most types of governments in the local government category shows that 
the majority of these governments have populations of less than 50,000. 
Based on this data we estimate that at least 49,316 local government 
jurisdictions fall in the category of ``small governmental 
jurisdictions.''
    Cable Companies and Systems (Rate Regulation Standard). The 
Commission has developed its own small business size standards, for the 
purpose of cable rate regulation. Under the Commission's rules, a 
``small cable company'' is one serving 400,000 or fewer subscribers, 
nationwide. Industry data indicate that, of 4,200 cable operators 
nationwide, all but 9 are small under this size standard. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Industry data indicate that, of 
4,200 systems nationwide, 3,900 have fewer than 15,000 subscribers, 
based on the same records. Thus, under this second size standard, the 
Commission believes that most cable systems are small.
    Cable System Operators. The Act also contains a size standard for 
small cable system operators, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250,000,000.'' There are approximately 49,011,210 
cable subscribers in the United States today. Accordingly, an operator 
serving fewer than 490,112 subscribers shall be deemed a small 
operator, if its annual revenues, when combined with the total revenues 
of all its affiliates, do not exceed $250 million in the aggregate. 
Based on the available data, we find that all but five independent 
cable operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Although it seems certain that some of 
these cable system operators are affiliated with entities whose gross 
annual revenues exceed $250 million, we note that the Commission 
neither requests nor collects information on whether cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250 million, and therefore we are unable to estimate more 
accurately the number of cable system operators that would qualify as 
small under the definition in the Communications Act.
    Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. Today, cable operators must provide notice to 
subscribers and LFAs at least 30 days prior to any service or rate 
change if the change is within the control of the cable operator and 
explain the reason for any rate change. If we were to adopt the rule 
changes upon which we seek comment, two reporting requirements would 
change. First, cable operators would not need to provide notice to 
subscribers 30 days in advance of channel lineup changes when the 
change is due to unsuccessful carriage negotiations, but rather the 
cable operator would need to provide notice ``as soon as possible'' to 
its subscribers and LFAs. Second, cable operators would only need to 
notify LFAs of any relevant rate or service changes if the LFA requires 
such notice.
    Steps Taken to Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.''
    We do not propose any specific steps to treat small entities 
differently from other entities because we see no statutory authority 
for such treatment. We seek comment on this analysis. The NPRM's 
proposals would reduce the burdens on all cable operators, including 
small operators, because the operators would not need to provide as 
many notices. Likewise, they could reduce the burdens on small local 
governments, which would not have to review as many filings. We 
believe, however, that some subscriber and LFA notice is necessary to 
effectuate the requirements of the Communications Act and provide 
subscribers and LFAs with information they need to make reasoned 
decisions.
    Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rule. None.
    It is ordered that, pursuant to the authority found in sections 1, 
4(i), 4(j), 623, 624, and 632 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 543, 544, and 552 this Notice 
of Proposed Rulemaking is adopted. It is further ordered that the 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center,

[[Page 663]]

shall send a copy of this Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 76

    Cable Television, Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 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. Revise Sec.  76.1601 to read as follows:


Sec.  76.1601   Deletion or repositioning of broadcast signals.

    A cable operator shall provide written notice to any broadcast 
television station at least 30 days prior to either deleting from 
carriage or repositioning that station.
0
3. Amend Sec.  76.1603 by revising paragraphs (b) and (c) to read as 
follows, removing paragraphs (d) and (e), and redesignating paragraph 
(f) as paragraph (d):


Sec.  76.1603   Customer service--rate and service changes.

* * * * *
    (b) Cable operators shall provide written notice to subscribers of 
any changes in rates, services, or any of the other information 
required to be provided to subscribers by Sec.  76.1602 using any 
reasonable written means at the operator's sole discretion. Notice 
shall be provided to subscribers at least 30 days in advance of the 
change, unless the change results from circumstances outside of the 
cable operator's control (including failed retransmission consent or 
program carriage negotiations during the last 30 days of a contract), 
in which case notice shall be provided as soon as possible. Notice of 
rate changes shall include the precise amount of the rate change and 
explain the reason for the change in readily understandable terms. 
Notice of changes involving the addition or deletion of channels shall 
individually identify each channel affected.
    (c) Upon the request of the local franchising authority, cable 
operators shall provide written notice to local franchising authorities 
of any changes in rates or services using any reasonable written means 
at the operator's sole discretion. Notice shall be provided to local 
franchising authorities 30 days in advance of the change, unless the 
change results from circumstances outside of the cable operator's 
control (including failed retransmission consent or program carriage 
negotiations during the last 30 days of a contract), in which case 
notice shall be provided as soon as possible. Notice of rate changes 
shall include the precise amount of the rate change and explain the 
reason for the change in readily understandable terms. Notice of 
changes involving the addition or deletion of channels shall 
individually identify each channel affected.
* * * * *
[FR Doc. 2019-28430 Filed 1-6-20; 8:45 am]
BILLING CODE 6712-01-P