Goto Section: 76.1905 | 76.1907 | Table of Contents
Revised as of September 1, 2021
Goto Year:2020 |
§ 76.1906 Encoding rules for undefined business models.
(a) Upon public notice and subject to requirements as set forth herein,
a covered entity may launch a program service pursuant to an undefined
business model. Subject to Commission review upon complaint, the
covered entity may initially encode programs pursuant to such undefined
business model without regard to limitations set forth in § 76.1904(b).
(1) Notice. Concurrent with the launch of an undefined business model
by a covered entity, the covered entity shall issue a press release to
the PR Newswire so as to provide public notice of the undefined
business model, and the proposed encoding terms. The notice shall
provide a concise summary of the commercial audiovisual content to be
provided pursuant to the undefined business model, and of the terms on
which such content is to be available to consumers. Immediately upon
request from a party entitled to be a complainant, the covered entity
shall make available information that indicates the proposed encoding
terms, including the use of copy never or copy one generation encoding,
and the encoding of content with respect to “pause” as defined in
(2) Complaint process. Any interested party (“complainant”) may file a
complaint with the Commission objecting to application of encoding as
set forth in the notice.
(i) Pre-complaint resolution. Prior to initiating a complaint with the
Commission under this section, the complainant shall notify the covered
entity that it may file a complaint under this section. The notice must
be sufficiently detailed so that the covered entity can determine the
specific nature of the potential complaint. The potential complainant
must allow a minimum of thirty (30) days from such notice before filing
such complaint with the Commission. During this period the parties
shall endeavor in good faith to resolve the issue(s) in dispute. If the
parties fail to reach agreement within this 30 day period, complainant
may initiate a complaint in accordance with the procedures set forth
(ii) Complaint. Within two years of publication of a notice under
paragraph (a)(1) of this section, a complainant may file a complaint
with the Commission objecting to application of the encoding terms to
the service at issue. Such complaint shall state with particularity the
basis for objection to the encoding terms.
(A) The complaint shall contain the name and address of the complainant
and the name and address of the covered entity.
(B) The complaint shall be accompanied by a certification of service on
the named covered entity.
(C) The complaint shall set forth with specificity all information and
arguments relied upon. Specific factual allegations shall be supported
by a declaration of a person or persons with actual knowledge of the
facts, and exhibits shall be verified by the person who prepares them.
(D) The complaint shall set forth attempts made by the complainant to
resolve its complaint pursuant to paragraph (a)(2)(i) of this section.
(iii) Public notice. The Commission shall give public notice of the
filing of the complaint. Once the Commission has issued such public
notice, any person otherwise entitled to be a complainant shall instead
have the status of a person submitting comments under paragraph
(a)(2)(iv) of this section rather than a complainant.
(iv) Comments and reply. (A) Any person may submit comments regarding
the complaint within thirty (30) days after the date of public notice
by the Commission. Comments shall be served on the complainant and the
covered entity and on any persons listed in relevant certificates of
service, and shall contain a detailed full statement of any facts or
considerations relied on. Specific factual allegations shall be
supported by a declaration of a person or persons with actual knowledge
of the facts, and exhibits shall be verified by the person who prepares
(B) The covered entity may file a response to the complaint and
comments within twenty (20) days after the date that comments are due.
Such response shall be served on all persons who have filed complaints
or comments and shall also contain a detailed full showing, supported
by affidavit or declaration, of any additional facts or considerations
relied on. Replies shall be due ten (10) days from the date for filing
(v) Basis for Commission determination as to encoding terms for an
undefined business model. In a permit-but-disclose proceeding, unless
otherwise specified by the Commission, to determine whether encoding
terms as noticed may be applied to an undefined business model, the
covered entity shall have the burden of proof to establish that
application of the encoding terms in the undefined business model is in
the public interest. In making any such determination, the Commission
shall take into account the following factors:
(A) Whether the benefit to consumers of the new service, including but
not limited to earlier release windows, more favorable terms,
innovation or original programming, outweighs the limitation on the
consumers' control over the new service;
(B) Ways in which the new service differs from services offered by any
covered entity prior to December 31, 2002;
(vi) Determination procedures. The Commission may specify other
procedures, such as oral argument, evidentiary hearing, or further
written submissions directed to particular aspects, as it deems
(b) Complaint regarding a service not subject to notice. In an instance
in which an interested party has a substantial basis to believe and
believes in good faith that a service pursuant to an undefined business
model has been launched without requisite notice, such party may file a
complaint pursuant to § 76.7.
Goto Section: 76.1905 | 76.1907
Goto Year: 2020 |
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