[Code of Federal Regulations]

[Title 47, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 47CFR76.65]



[Page 574-575]

 

                       TITLE 47--TELECOMMUNICATION

 

                    CHAPTER I--FEDERAL COMMUNICATIONS

                         COMMISSION (CONTINUED)

 

PART 76_MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE--Table of Contents

 

           Subpart D_Carriage of Television Broadcast Signals

 

Sec. 76.65  Good faith and exclusive retransmission consent complaints.



    (a) Duty to negotiate in good faith. Television broadcast stations 

and multichannel video programming distributors shall negotiate in good 

faith the terms and conditions of retransmission consent agreements to 

fulfill the duties established by section 325(b)(3)(C) of the Act; 

provided, however, that it shall not be a failure to negotiate in good 

faith if:

    (1) The television broadcast station proposes or enters into 

retransmission consent agreements containing different terms and 

conditions, including price terms, with different multichannel video 

programming distributors if such different terms and conditions are 

based on competitive marketplace considerations; or

    (2) The multichannel video programming distributor enters into 

retransmission consent agreements containing different terms and 

conditions, including price terms, with different broadcast stations if 

such different terms and conditions are based on competitive marketplace 

considerations. If a television broadcast station or multichannel video 

programming distributor negotiates in accordance with the rules and 

procedures set forth in this section, failure to reach an agreement is 

not an indication of a failure to negotiate in good faith.

    (b) Good faith negotiation--(1) Standards. The following actions or 

practices violate a broadcast television station's or multichannel video 

programming distributor's (the ``Negotiating Entity'') duty to negotiate 

retransmission consent agreements in good faith:

    (i) Refusal by a Negotiating Entity to negotiate retransmission 

consent;

    (ii) Refusal by a Negotiating Entity to designate a representative 

with authority to make binding representations on retransmission 

consent;

    (iii) Refusal by a Negotiating Entity to meet and negotiate 

retransmission consent at reasonable times and locations, or acting in a 

manner that unreasonably delays retransmission consent negotiations;

    (iv) Refusal by a Negotiating Entity to put forth more than a 

single, unilateral proposal;

    (v) Failure of a Negotiating Entity to respond to a retransmission 

consent proposal of the other party, including the reasons for the 

rejection of any such proposal;

    (vi) Execution by a Negotiating Entity of an agreement with any 

party, a term or condition of which, requires that such Negotiating 

Entity not enter into a retransmission consent agreement with any other 

television broadcast station or multichannel video programming 

distributor; and

    (vii) Refusal by a Negotiating Entity to execute a written 

retransmission consent agreement that sets forth the full understanding 

of the television broadcast station and the multichannel video 

programming distributor.

    (2) Totality of the circumstances. In addition to the standards set 

forth in Sec. 76.65(b)(1), a Negotiating Entity may demonstrate, based 

on the totality of the circumstances of a particular retransmission 

consent negotiation, that a television broadcast station or multichannel 

video programming distributor breached its duty to negotiate in good 

faith as set forth in Sec. 76.65(a).

    (c) Good faith negotiation and exclusivity complaints. Any 

television broadcast station or multichannel video programming 

distributor aggrieved by conduct that it believes constitutes a 

violation of the regulations set forth in this section or Sec. 76.64(l) 

may commence an adjudicatory proceeding at the Commission to obtain 

enforcement of the rules through the filing of a complaint. The 

complaint shall be filed and responded to in accordance with the 

procedures specified in Sec. 76.7.

    (d) Burden of proof. In any complaint proceeding brought under this 

section, the burden of proof as to the existence of a violation shall be 

on the complainant.

    (e) Time limit on filing of complaints. Any complaint filed pursuant 

to this subsection must be filed within one year of the date on which 

one of the following events occurs:



[[Page 575]]



    (1) A complainant enters into a retransmission consent agreement 

with a television broadcast station or multichannel video programming 

distributor that the complainant alleges to violate one or more of the 

rules contained in this subpart; or

    (2) A television broadcast station or multichannel video programming 

distributor engages in retransmission consent negotiations with a 

complainant that the complainant alleges to violate one or more of the 

rules contained in this subpart, and such negotiation is unrelated to 

any existing contract between the complainant and the television 

broadcast station or multichannel video programming distributor; or

    (3) The complainant has notified the television broadcast station or 

multichannel video programming distributor that it intends to file a 

complaint with the Commission based on a request to negotiate 

retransmission consent that has been denied, unreasonably delayed, or 

unacknowledged in violation of one or more of the rules contained in 

this subpart.

    (f) Termination of rules. This section shall terminate at midnight 

on December 31, 2009.



[70 FR 40224, July 13, 2005]