[Federal Register: January 7, 2008 (Volume 73, Number 4)]
[Proposed Rules]
[Page 1195-1197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja08-21]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 07-51; FCC 07-189]
Exclusive Service Contracts for Provision of Video Services in
Multiple Dwelling Units and Other Real Estate Developments
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Further Notice of Proposed Rulemaking (``Notice'')
solicits comment on whether providers of Direct Broadcast Satellite
(``DBS'') service and Private Cable Operators (``PCOs'') should be
allowed to have exclusive access to so-called Multiple Dwelling Units
(``MDUs,'' such as apartment and condominium buildings). Also, the
Notice considers prohibiting all providers of video programming service
from using exclusive marketing arrangements (which allow one MVPD to be
the preferred video provider in an MDU) and bulk billing arrangements
(which require MDU dwellers to pay for a video provider in their rental
or condominium fees). The intended effect of the Notice is to determine
whether each of these practices benefits or harms video consumers in
MDUs on the whole.
DATES: Comments for this proceeding are due on or before February 6,
2008; reply comments are due on or before March 7, 2008.
ADDRESSES: You may submit comments, identified by MB Docket No. 07-51,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.
People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, please contact John W. Berresford, (202) 418-1886, or Holly
Saurer, (202) 418-7283, both of the Policy Division, Media Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Further Notice of Proposed Rulemaking in MB
Docket No. 07-51, FCC 07-189, adopted October 31, 2007, and released
November 13, 2007. 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. These documents will also be
available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be
available electronically in ASCII, Word 97, 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
this document in accessible formats (computer diskettes, large print,
audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).
[[Page 1196]]
Summary of the Further Notice of Proposed Rulemaking
I. Further Notice of Proposed Rulemaking
1. The Report and Order released simultaneously with this Notice
addresses primarily those providers of multichannel video programming
distribution (``MVPDs'') covered by section 628 of the Communications
Act of 1934, as amended, in part because the record before us
predominantly addressed building exclusivity clauses involving cable
operators. Therefore, in order to assess whether we should take action
to address such clauses entered into by DBS providers, PCOs, and other
MVPDs who are not subject to section 628, the Notice asks for comment
on several matters. Do DBS service providers, PCOs, and other MVPD
providers not subject to section 628 use any or all forms of
exclusivity clauses (e.g., building, marketing)? If they do, what kinds
of exclusivity do those clauses provide? Is it likely that an MVPD
provider subject to section 628, in reaction to the foregoing Report
and Order and seeking to avoid its effects, would partner with a DBS
provider or PCO? What are the effects of the use of exclusivity clauses
by MVPD providers not subject to section 628 on consumer choice,
competition for multi-channel video and other services, and on the
deployment of broadband and other advanced communications facilities?
Are those effects and the balance of benefits and harms the same as we
have found in the Report and Order with respect to the use of
exclusivity clauses by providers that are subject to Section 628?
2. If the net effect of the use of exclusivity clauses by MVPD
providers not subject to section 628 is harmful to consumers, what
remedy should we impose--the same kind of prohibition we adopt in the
Report and Order, or something different? We also ask for comment about
two legal matters. First, do our Over-the-Air Reception Devices rules
(47 CFR 1.4000) affect the remedy we should impose on DBS providers?
Second, we ask for comment about our legal authority. Does the
Commission have the authority to regulate the use of exclusivity
clauses by MVPD providers not subject to section 628? Does the
Commission have authority over DBS providers under section 335 of the
Act? Does the Commission have authority over DBS and other providers
under Title III generally, Title VI, its ancillary authority, or some
other source? We ask for comment on all the foregoing factual,
analytical, and legal issues.
3. We also seek comment on whether the Commission should prohibit
exclusive marketing and bulk billing arrangements. For example, we are
aware that certain clauses in contracts allow one MVPD into a MDU or
real estate development but constrain the ability of competitive MVPDs
to market their services directly to MDU residents. These arrangements
provide for what is called ``marketing exclusivity,'' and may be
anticompetitive. Some argue that in order for MDU residents to exercise
freely their choice, they must know about their MVPD options.
4. In particular, we seek comment on a number of questions. How
pervasive are these exclusive marketing arrangements? What is the
typical scope of such arrangements? In other words, we seek comment on
how the Commission should define them for regulatory purposes. Have
they been used to impede competition in the video marketplace? Can
other MVPDs effectively communicate with MDU residents in those MDUs
that have signed exclusive marketing agreements? Do the costs of
marketing, promotions and sales substantially increase when a
competitive video provider confronts exclusive marketing arrangements?
Do these arrangements constitute an unfair method of competition or an
unfair act or practice in violation of section 628(b) of the Act? If
so, how should the Commission act to address this problem? Should we
prohibit the enforcement of all existing exclusive marketing
arrangements as well as the execution of new ones? That is, should we
treat them in the same manner as we treat exclusive building access
arrangements in the Report and Order? Is our legal authority to address
such agreements the same as our legal authority for addressing
exclusive building access arrangements?
5. We also seek comment on these same questions with respect to
``bulk billing'' arrangements. Some have argued that bulk contracts are
anti-competitive. As we understand them, bulk billing arrangements may
be exclusive contracts because MDU owners agree to these arrangements
with only one MVPD, barring others from a similar arrangement. Such
arrangements may not prohibit MDU residents from selecting a
competitive video provider. However, because of the ``bulk billing''
nature of the contract, residents would have to continue paying a fee
to the provider with the bulk billing contract as well as pay a
subscription fee to the new service provider. We seek comment on
whether these ``bulk billing'' arrangements are typically formalized as
agreements between cable operators and MDUs or between MDUs and
residents (or both)? Do these arrangements have the same practical
effect as exclusive access arrangements in that most customers would be
dissuaded from switching video providers?
6. The Commission will conclude this rulemaking and release an
order within six months of publication of this Order.
II. Procedural Matters
A. Filing Requirements
7. Ex Parte Rules. The Further Notice of Proposed Rulemaking in
this proceeding will be treated as a ``permit-but-disclose'' subject to
the ``permit-but-disclose'' requirements under Sec. 1.1206(b) of the
Commission's 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 oral ex parte presentations are reminded
that a memorandum summarizing a presentation must contain a summary of
the substance of the 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. Additional rules
pertaining to oral and written presentations are set forth in Sec.
1.1206(b).
8. Comments and Reply Comments. 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: (1) The Commission's Electronic Comment Filing System (ECFS),
(2) the Federal Government's eRulemaking Portal, or (3) by filing paper
copies.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing
[[Page 1197]]
instructions, filers should send an e-mail to ecfs@fcc.gov, and include
the following words in the body of the message, ``get form.'' A sample
form and directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies 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 (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes 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 9300 East Hampton
Drive, Capitol Heights, MD 20743.
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 e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
9. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-A257, Washington,
DC 20554. Persons with disabilities who need assistance in the FCC
Reference Center may contact Bill Cline at (202) 418-0267 (voice),
(202) 418-7365 (TTY), or bill.cline@fcc.gov. These documents also will
be available from the Commission's Electronic Comment Filing System.
Documents are available electronically in ASCII, Word 97, and Adobe
Acrobat. Copies of filings in this proceeding may be obtained from Best
Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554; they can also be reached by telephone, at
(202) 488-5300 or (800) 378-3160; by e-mail at fcc@bcpiweb.com; or via
their Web site at http://www.bcpiweb.com. To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an e-mail to fcc504@fcc.gov or
call the Consumer and Governmental Affairs Bureau at (202) 418-0531
(voice), (202) 418-7365 (TTY).
B. Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as
amended (the ``RFA''), the Commission has prepared this Initial
Regulatory Flexibility Analysis (``IRFA'') of the possible significant
economic impact of the policies and rules proposed in the Further
Notice of Proposed Rulemaking (``FNPRM'') on a substantial number of
small entities.
C. Paperwork Reduction Act Analysis
10. This document does not contain new or modified information
collection requirements subject to the paperwork Reduction Act of 1995
(PRA), Public Law 104-13. In addition, therefore, it does not contain
any new or modified ``information collection burdens for small business
concerns with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
D. Additional Information
11. For additional information on this proceeding, please contact
John W. Berresford, (202) 418-1886, or Holly Saurer, (202) 418-7283,
both of the Policy Division, Media Bureau.
III. Ordering Clauses
12. It is ordered that, pursuant to sections 1, 4(i), 303(r), 335,
623 and 628(b, c) of the Communications Act of 1934, as amended, and
section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151,
154(i), 303(r), 335, 543, and 548(b, c), this Further Notice of
Proposed Rulemaking is hereby adopted.
13. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Further Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7-25214 Filed 1-4-08; 8:45 am]
BILLING CODE 6712-01-P