83 FR 30639 - Leased Commercial Access; Modernization of Media Regulation Initiative

FEDERAL COMMUNICATIONS COMMISSION

Federal Register Volume 83, Issue 126 (June 29, 2018)

Page Range		30639-30644
FR Document		2018-14014
In this document, the Commission seeks to update its leased access rules as part of its Modernization of Media Regulation Initiative. First, the Commission tentatively concludes that it should vacate its 2008 Leased Access Order, which the U.S. Court of Appeals for the Sixth Circuit has stayed for a decade in conjunction with several judicial appeals of the order. Second, the Commission seeks input on the state of the leased access marketplace generally and invites comment on ways to modernize its existing leased access rules.
Federal Register, Volume 83 Issue 126 (Friday, June 29, 2018)
[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30639-30644]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14014]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket Nos. 07-42 and 17-105; FCC 18-80]


Leased Commercial Access; Modernization of Media Regulation 
Initiative

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks to update its leased 
access rules as part of its Modernization of Media Regulation 
Initiative. First, the Commission tentatively concludes that it should 
vacate its 2008 Leased Access Order, which the U.S. Court of Appeals 
for the Sixth Circuit has stayed for a decade in conjunction with 
several judicial appeals of the order. Second, the Commission seeks 
input on the state of the leased access marketplace generally and 
invites comment on ways to modernize its existing leased access rules.

DATES: Comments are due on or before July 30, 2018; reply comments are 
due on or before August 13, 2018.

ADDRESSES: You may submit comments, identified by MB Docket Nos. 18-80 
and 17-105, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's website: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: 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.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.

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 
Further Notice of Proposed Rulemaking, FCC 18-80, adopted on June 7, 
2018 and released on June 8, 2017. 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 http://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 this Further Notice of Proposed Rulemaking (FNPRM), we seek 
to update our leased access rules as part of the Commission's 
Modernization of Media Regulation Initiative. In response to the public 
notice initiating the media modernization proceeding, some commenters 
made proposals related to the Commission's leased access rules, which 
require cable operators to set aside channel capacity for commercial 
use by unaffiliated video programmers.\1\ By addressing these proposals 
in this FNPRM, we advance our efforts to modernize our 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. We tentatively conclude that we should vacate the 2008 Leased 
Access Order, including the Further Notice of Proposed Rulemaking 
issued in conjunction with that order. This action would enable the 
Commission to clean up a longstanding backlog and position us to 
freshly consider new revisions to

[[Page 30640]]

the leased access rules.\2\ Due to the Sixth Circuit proceedings as 
well as the OMB disapproval, the rule changes contained in the 2008 
Leased Access Order never went into effect. 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. Accordingly, vacating the 2008 Leased Access Order 
would not have any impact on any party's compliance with or 
expectations concerning the leased access requirements.
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    \2\ If we vacate the 2008 Leased Access Order, we will 
subsequently dismiss as moot the NCTA FCC Stay Request (asking the 
Commission to stay the 2008 Leased Access Order) and the TVC Recon 
Petition (seeking reconsideration of the 2008 Leased Access Order).
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    3. In making this tentative conclusion, we note the concerns the 
Sixth Circuit expressed in its Stay Order regarding the leased access 
rules that were adopted in the 2008 Leased Access Order, including 
``that NCTA has raised some substantial appellate issues.'' The Sixth 
Circuit determined that a stay of the 2008 Leased Access Order was 
justified due to ``[t]he balance of the harms and the public interest, 
as well as NCTA's potential of success on the merits.'' The Sixth 
Circuit also noted NCTA's argument that cable operators would suffer 
irreparable harm absent a stay because the new leased access rate 
formula adopted in the order would set leased access rates at an 
unreasonably low level, which would lead to more leased access requests 
that would displace other programming, ultimately leading to 
dissatisfied cable customers.
    4. Further support for our tentative finding that we should vacate 
the 2008 Leased Access Order arises from the concerns about the 
paperwork burden set forth in the OMB Notice. OMB detailed five ways in 
which certain requirements adopted in the order were inconsistent with 
the PRA. OMB specifically cited 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. Some commenters in the media modernization 
proceeding agree with OMB that the 2008 Leased Access Order failed to 
comply with the PRA.
    5. We also tentatively find that vacating the 2008 Leased Access 
Order would be consistent with the goal of the Commission's 
Modernization of Media Regulation Initiative to remove rules that are 
outdated or no longer justified by market realities. Because of the 
concerns raised in the Sixth Circuit Stay Order and the OMB Notice, the 
significant amount of time that has passed since the 2008 Leased Access 
Order was adopted and became subject to a stay, the significant amount 
of time that the cable industry and programmers have remained subject 
to the pre-existing leased access rules during the pendency of the 
stay, and the very small number of leased access disputes brought 
before the Commission in recent years,\3\ we tentatively find that 
there is no sound policy basis for the rules adopted in the 2008 order 
at this point. For all these reasons, rather than proceeding with the 
pending judicial review of the 2008 Leased Access Order that has now 
been stayed for a decade, we tentatively conclude that a better 
approach would be for the Commission to vacate the 2008 Leased Access 
Order and consider potential rule revisions anew.
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    \3\ The Commission currently adjudicates an average of less than 
one leased access dispute per year.
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    6. We seek comment on our tentative conclusions. Is there any 
policy justification for not vacating the entire order? Is there any 
policy justification for retaining any particular rules adopted 
therein? Parties urging us not to vacate the entire order or particular 
rules should specify how the Commission should overcome both the 
judicial concerns noted in the Sixth Circuit Stay Order and those 
raised in the OMB Notice. We also ask parties to address any benefits 
associated with the 2008 rules and whether these benefits outweigh the 
costs.
    7. We next seek comment on any updates and improvements we should 
make to our existing leased access rules. The stated purpose of the 
leased access statute ``is to promote competition in the delivery of 
diverse sources of video programming and to assure that the widest 
possible diversity of information sources are made available to the 
public from cable systems in a manner consistent with growth and 
development of cable systems.'' The statute also specifies that the 
price, terms, and conditions for commercial leased access should be 
``at least sufficient to assure that such use will not adversely affect 
the operation, financial condition, or market development of the cable 
system.'' We note that the video distribution marketplace has become 
much more competitive since Congress first established the leased 
access regime in 1984. For example, at that time, direct broadcast 
satellite (DBS) service was not available to consumers as an 
alternative to cable. While consumers previously had access to only one 
pay television service, today they have access to multiple pay 
television services as well as online video programming. In addition, 
the number of channels offered by cable operators has increased.
    8. Against this backdrop, we invite comment on the current state of 
the leased access marketplace generally and on whether, and if so how, 
the prevalence of alternative means of video distribution should 
influence our actions in this proceeding. How many leased access 
programmers are currently in existence, and is that number increasing 
or decreasing? What portion of a cable system's programming consists of 
leased access? Do the leased access rules currently in effect 
facilitate the successful leasing of time by leased access programmers, 
and if not, what issues do programmers experience? To what extent do 
leased access programmers continue to rely on cable carriage versus 
alternative means of distribution? Does the widespread availability of 
DBS service today or the proliferation of online video distributors 
provide programmers, including leased access programmers, with more 
options for content distribution?
    9. As discussed below, we also seek comment on specific proposals 
raised in the media modernization proceeding to update and improve the 
Commission's existing leased access rules as well as on any other 
proposals we should consider.
    10. First, as supported by several commenters in the media 
modernization proceeding, we propose to revise 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 provide 
the information specified in paragraph (i)(1) only in response to a 
bona fide request for leased access information from a prospective 
leased access programmer.\4\ For purposes of the leased access rules 
applicable to cable operators eligible for small system relief,\5\ a 
bona fide request for information is defined as a request

[[Page 30641]]

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.''
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    \4\ The 2008 Leased Access Order distinguished between 
``requests for information'' and ``proposals for leased access.'' 
Had that order gone into effect, it would have provided non-small 
cable systems with three days to respond to a request for 
information, whereas small cable systems would have had 30 days to 
respond to a bona fide request for information. All cable systems, 
regardless of size, would have been required to respond to bona fide 
leased access proposals within 10 days of receipt.
    \5\ For purposes of the leased access rules, a small system is 
defined as either (i) a system that qualifies as small under Sec.  
76.901(c) of the Commission's rules and is owned by a small cable 
company as defined in Sec.  76.901(e); or (ii) a system that has 
been granted special relief.
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    11. Section 76.970(i)(1) 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.'' 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.\6\ As a result, some operators 
of systems that do not qualify as small may spend a significant amount 
of time compiling information to respond to non-bona fide leased access 
inquiries. These operators are not permitted to ask prospective leased 
access programmers for any information before responding to a leased 
access request, due to the Commission's concern that cable operators 
otherwise could use requests for information to discourage leasing 
access.
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    \6\ We propose to correct Sec.  76.970(i)(2) by replacing the 
reference to ``paragraph (h)(1) of this section,'' which does not 
exist, with ``paragraph (i)(1) of this section.'' All leased access 
requests are required to be in writing and to specify the date on 
which the request was sent to the cable operator.
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    12. We seek comment on our proposal to extend the bona fide request 
limitation to all leased access requests. Is there any reason not to 
provide all cable operators with the flexibility of responding only to 
a bona fide request? We ask commenters to provide information on the 
costs that cable operators currently face in responding to non-bona 
fide leased access requests. How often do cable operators receive non-
bona fide leased access requests, and how much time does it take to 
provide the required information in response to such a request? Does 
the bona fide request limitation that currently applies to operators of 
small cable systems in any way discourage prospective leased access 
programmers, including small programmers, from seeking to lease access 
and if so, how? If we extend the bona fide request limitation to all 
leased access requests, should we adopt any modifications to the 
current definition of a bona fide request?
    13. Second, we invite comment on whether we should extend the time 
within which cable operators must provide prospective leased access 
programmers with the information specified in Sec.  76.970(i)(1) of our 
rules. Current rules require cable system operators to provide the 
required information ``within 15 calendar days of the date on which a 
request for leased access information is made,'' while operators of 
systems that are subject to small system relief must provide the 
required information ``within 30 calendar days of a bona fide request 
from a prospective leased access programmer.'' We invite comment on 
whether cable operators have found it difficult to comply with the 
current deadlines for providing the required information, and if so, 
why. What steps must cable operators take to compile the information 
listed in Sec.  76.970(i)(1) of the Commission's rules, and what costs 
do cable operators face in doing so under the current timeframe? Is the 
information readily available to cable operators? We also seek input on 
whether leased access programmers have found that the required 
information is generally provided on a timely basis in accordance with 
current rules. If, as discussed above, we revise our rules to provide 
that all cable operators, and not just those with small systems, are 
required to provide the listed information only in response to a bona 
fide request from a prospective leased access programmer, then is there 
any basis for extending the deadline to provide the information?
    14. NCTA asks the Commission to provide cable operators with 
additional time, such as 45 days, within which ``to respond to requests 
to lease time on multiple systems.'' Is a 45-day response period 
reasonable for leased access requests covering multiple systems, and if 
not, what response time period is appropriate? Is it necessary to also 
provide additional response time for single cable systems? Do leased 
access requests typically involve multiple systems or are single-system 
requests often made? Would lengthening the deadline serve as a 
deterrent to or create a hardship for potential leased access 
programmers? Should we maintain a longer deadline for operators of 
small cable systems as compared to other cable operators?
    15. Third, as urged by several commenters in the media 
modernization proceeding, we seek comment on whether we should permit 
cable operators to require leased access programmers to pay a nominal 
application fee \7\ and/or a deposit,\8\ which is currently prohibited. 
Cable operators state that requiring a deposit or a nominal application 
fee would ``help defray the costs of gathering the information 
necessary to calculate the leased access rate and to respond to any 
bona fide requests for leased access capacity that never lead to an 
actual leased access agreement.'' In the past the Commission has not 
supported the collection of fees or deposits with respect to leased 
access. In light of this history, how should we consider the impact of 
fees and deposits on interest, accessibility and diversity in leased 
access? Although the Commission previously found that such fees and 
deposits are not permissible, has anything changed that may persuade us 
that they are now a reasonable means of covering the costs of 
responding to leased access inquiries? If the Commission permits fees, 
what criteria should be used to determine whether an application fee is 
nominal? Rather than adopting rules governing what constitutes a 
``nominal'' application fee, should the Commission evaluate such fees 
on a case-by-case basis when presented with a complaint that a 
particular fee is not nominal? Similarly, if we permit deposits, should 
we establish rules regarding an appropriate deposit amount, or 
alternatively, evaluate deposits on a case-by-case basis? If the 
Commission decides to adopt rules, how should it decide whether a 
deposit is reasonable? Should the cable operator refund all or part of 
the deposit if the leased access request does not result in carriage?
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    \7\ By ``nominal application fee,'' we mean a processing fee 
that would be collected and retained by the cable operator 
regardless of whether the request results in leased access carriage.
    \8\ By ``deposit,'' we mean a potentially more substantial fee 
that would be collected by the cable operator and used to offset 
future payments (e.g., the first month's payment) if the leased 
access request results in carriage.
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    16. We seek comment on whether it would be preferable to permit a 
nominal application fee or a deposit, or both, and on the costs and 
benefits of each option. If we adopt our proposal to require all cable 
operators to respond only to bona fide leased access requests, is there 
any justification for requiring a deposit or application fee? Would 
requiring a deposit or application fee prior to obtaining the 
information set forth in Sec.  76.970(i)(1) dissuade potential leased 
access programmers, particularly small entities, from seeking to lease 
access? Finally, should the Commission permit all cable operators, or 
permit only small cable operators, to require a nominal application fee 
or deposit before the

[[Page 30642]]

operator responds to a leased access request by providing the 
information set forth in Sec.  76.970(i)(1)? Any commenter advocating 
that we permit only small cable operators to require a nominal 
application fee or deposit should explain its rationale.
    17. Fourth, we invite comment on modifications to our procedures 
for addressing leased access disputes. Congress has provided the 
Commission with authority to adjudicate leased access disputes. Parties 
previously have contacted Commission staff to express confusion about 
inconsistencies between the leased access dispute resolution rule 
(Sec.  76.975) and the Commission's more general rule governing 
complaints (Sec.  76.7). Accordingly, to promote consistency between 
the two rules, we propose to revise Sec.  76.975 of our rules as 
follows. First, we propose to revise our terminology by referencing an 
answer to a petition, rather than a response to a petition. Second, we 
propose that the 30-day timeframe for filing an answer to a leased 
access petition should be calculated from the date of service of the 
petition, rather than the date on which the petition was filed. Third, 
whereas Sec.  76.975 currently does not include any allowance for 
replies, we propose adding a provision stating that replies to answers 
must be filed within 15 days after submission of the answer. Fourth, we 
propose adding a statement that Sec.  76.7 applies to petitions for 
relief filed under Sec.  76.975, unless otherwise provided in Sec.  
76.975. We invite comment on these proposals, which we intend to 
alleviate any ongoing confusion about how both Sec. Sec.  76.7 and 
76.975 govern leased access proceedings. Is 15 days the appropriate 
timeframe for submitting a reply to an answer to a leased access 
petition? We note that the general complaint-filing rule provides 10 
days for filing replies, but it also provides only 20 days for filing 
an answer, whereas the leased access rule provides 30 days for an 
answer. Are there any other changes we should make to our rules in 
order to make the adjudication of leased access disputes more 
efficient?
    18. Finally, we invite comment on any other ways in which we should 
modernize our leased access rules. For example, are any new rules 
needed to govern the relationship between leased access programmers and 
cable operators, such as a rule requiring cable operators to provide 
programmers with contact information for the person responsible for 
leased access matters? Should we adopt any new rules governing leased 
access rates or part-time leased access? Commenters supporting 
additional rules governing leased access rates should explain why 
additional rate rules are needed and what issues the rules should 
address. We ask commenters to explain the relative costs and benefits 
of any additional proposals.
    19. In seeking comment on updating the FCC's leased access rules, 
we also seek comment on whether our rules implicate First Amendment 
interests. If so, what level of First Amendment scrutiny is 
appropriate, and how does that analysis apply to our existing rules and 
the potential changes we seek comment on here, in light of the 
statutory obligations of section 612? In this context, we also seek 
comment on whether there have been any changes in the video 
distribution market since Congress and the FCC first addressed these 
issues that are relevant to the First Amendment analysis. For instance, 
are there relevant changes in the distribution market that we should 
now consider? Is the FCC's 2015 decision regarding effective 
competition relevant to this analysis?
    20. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared an Initial Regulatory 
Flexibility Analysis (IRFA) concerning the possible significant 
economic impact on small entities by the policies and rules proposed in 
the FNPRM. Written public comments are requested on the 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 FNPRM. The 
Commission will send a copy of the FNPRM, including the IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In summary, the FNPRM seeks to update the Commission's leased access 
rules as part of its Modernization of Media Regulation Initiative. 
First, it tentatively concludes that we should vacate the Commission's 
2008 Leased Access Order, which the U.S. Court of Appeals for the Sixth 
Circuit has stayed for a decade in conjunction with several judicial 
appeals of the order. Second, it seeks input on the state of the leased 
access marketplace generally and invites comment on ways to modernize 
our existing leased access rules. The proposed 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) A tentative conclusion that we 
should vacate the 2008 Leased Access Order; (2) as suggested by 
commenters in response to the Media Modernization Public Notice, a 
proposal to require cable operators to respond only to bona fide 
requests from prospective leased access programmers; (3) seeking 
comment on other suggested changes to leased access rules that were 
raised in the media modernization proceeding, including extending the 
timeframe for providing responses to leased access requests and 
permitting cable operators to require leased access programmers to pay 
a nominal application fee and/or a deposit; and (4) seeking comment on 
proposals to modify our procedures for addressing leased access 
disputes. There is no overlap with other regulations or laws.
    21. We note that the FNPRM tentatively finds that vacating the 2008 
Leased Access Order would be consistent with the goal of the 
Commission's Modernization of Media Regulation Initiative to remove 
rules that are outdated or no longer justified by market realities. It 
is within this backdrop that the Commission tentatively concludes that 
it should vacate the 2008 Leased Access Order. The FNPRM explains that 
further support for our tentative finding that we should vacate the 
2008 Leased Access Order arises from the concerns about the paperwork 
burden set forth in the OMB Notice, where OMB detailed five ways in 
which certain requirements adopted in the order were inconsistent with 
the PRA.
    22. Regarding specific proposals involving the leased access rules, 
the Commission invites comment on alternative ways it can reduce 
burdens on small entities. For example, the Commission proposes to 
extend the current bona fide request limitation, which only applies to 
operators of small cable systems, to all operators. The FNPRM seeks 
information on whether the current bona fide request limitation in any 
way discourages prospective leased access programmers, including small 
programmers, from seeking to lease access and if so, how. For example, 
if prospective leased access programmers indicate that they find it 
difficult to prepare a request that constitutes a ``bona fide'' 
request, the Commission will consider such difficulties in determining 
how to

[[Page 30643]]

proceed. To the extent there is currently any negative impact on 
prospective leased access programmers, including small programmers, the 
Commission will weigh that impact in determining how to proceed. The 
FNPRM also considers the timeframe within which cable operators must 
provide prospective leased access programmers with the information 
specified in Sec.  76.970(i)(1) of the Commission's rules. The FNPRM 
considers whether, in the alternative to adopting a single deadline for 
all cable systems, it should instead maintain a longer deadline for 
operators of small cable systems. Such an approach could minimize the 
impact of the leased access rules on small cable system operators. 
Similarly, in the alternative to permitting all cable operators to 
require a nominal application fee or deposit before the operator 
responds to a leased access request by providing the information set 
forth in Sec.  76.970(i)(1), the FNPRM considers whether it should 
permit only small cable operators to do so. Such an approach could ease 
burdens on small cable operators. The FNPRM also considers the impact 
of requiring a deposit or application fee on small programmers, by 
asking whether potential leased access programmers, particularly small 
entities, would be dissuaded from seeking to lease access if faced with 
a deposit or application fee. The Commission will consider responses to 
all of these issues in determining how to proceed.
    23. This document contains proposed new or revised information 
collection requirements, including the proposal that all cable 
operators are required to provide the information specified in Sec.  
76.970(i)(1) only in response to a bona fide request from a prospective 
leased access programmer, and the addition of a provision governing 
replies to answers to leased access complaints. The Commission, as part 
of its continuing effort to reduce paperwork burdens, invites 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 seeks specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''
    24. Permit-But-Disclose. This proceeding shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. 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. 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 rule 1.1206(b). In proceedings governed by 
rule 1.49(f) 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.
    25. The proposed 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.

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, Office of the 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. Amend Sec.  76.970 by revising paragraph (i)(1) and (2) to read as 
follows:


Sec.  76.970   Commercial leased access rates.

* * * * *
    (i)(1) Cable system operators shall provide prospective leased 
access programmers with the following information within 15 calendar 
days of the date on which a bona fide request for leased access 
information is made:
    (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.
    (2) Operators of systems subject to small system relief shall 
provide the information required in paragraph (i)(1) of this section 
within 30 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.
* * * * *
0
3. 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

[[Page 30644]]

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. 2018-14014 Filed 6-28-18; 8:45 am]
 BILLING CODE 6712-01-P
Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30639

Access Stimulation, it shall within 45 to reflect the removal of any increases accommodations (accessible format
days of commencing Access in revenue requirement or revenues documents, sign language interpreters,
Stimulation, or by [date 45 days after resulting from Access Stimulation CART, etc.) by email: FCC504@fcc.gov
effective date of the final rule], activity the Rate-of-Return Carrier or phone: (202) 418–0530 or TTY: (202)
whichever is later, notify in writing all engaged in during the relevant 418–0432.
Intermediate Access Providers which it measuring period. A Rate-of-Return FOR FURTHER INFORMATION CONTACT: For
subtends and Interexchange Carriers Carrier should make this adjustment for additional information on this
with which it does business of the its initial July 1, 2012, tariff filing, but proceeding, contact Diana Sokolow,
following: the adjustment may result from a Diana.Sokolow@fcc.gov, of the Policy
(1) That it is a local exchange carrier subsequent Commission or court ruling. Division, Media Bureau, (202) 418–
engaged in Access Stimulation; * * * * * 2120.
(2) That it will either: [FR Doc. 2018–13699 Filed 6–28–18; 8:45 am]
(i) Obtain and pay for terminating BILLING CODE 6712–01–P
SUPPLEMENTARY INFORMATION: This is a
access services from Intermediate summary of the Commission’s Further
Access Providers for such traffic as of Notice of Proposed Rulemaking, FCC
that date; or FEDERAL COMMUNICATIONS 18–80, adopted on June 7, 2018 and
(ii) Offer direct-trunked transport COMMISSION released on June 8, 2017. The full text
service to any affected Interexchange is available for public inspection and
Carrier (or to an Intermediate Access 47 CFR Part 76 copying during regular business hours
Provider of the Interexchange Carrier’s in the FCC Reference Center, Federal
[MB Docket Nos. 07–42 and 17–105; FCC
choosing); and 18–80] Communications Commission, 445 12th
(3) To the extent that the local Street SW, Room CY–A257,
exchange carrier engaged in Access Leased Commercial Access; Washington, DC 20554. This document
Stimulation intends to comply with Modernization of Media Regulation will also be available via ECFS at http://
paragraph (a) of this section through Initiative fjallfoss.fcc.gov/ecfs/. Documents will
electing the option described in be available electronically in ASCII,
paragraph (a)(2) of this section, AGENCY: Federal Communications Microsoft Word, and/or Adobe Acrobat.
designate where on its network it will Commission. Alternative formats are available for
accept the requested direct connection. ACTION: Proposed rule. people with disabilities (Braille, large
(c) Nothing in this section creates an print, electronic files, audio format), by
independent obligation for a local SUMMARY: In this document, the
sending an email to fcc504@fcc.gov or
exchange carrier to construct new Commission seeks to update its leased
calling the Commission’s Consumer and
facilities other than, as necessary, access rules as part of its Modernization
Governmental Affairs Bureau at (202)
adding switch trunk ports. of Media Regulation Initiative. First, the
418–0530 (voice), (202) 418–0432
(d) In the event that an Intermediate Commission tentatively concludes that
(TTY).
Access Provider receives notice under it should vacate its 2008 Leased Access
paragraph (b) of this section that a local Order, which the U.S. Court of Appeals Synopsis
exchange carrier engaged in Access for the Sixth Circuit has stayed for a
1. In this Further Notice of Proposed
Stimulation will be obtaining and decade in conjunction with several
Rulemaking (FNPRM), we seek to
paying for terminating access service judicial appeals of the order. Second,
update our leased access rules as part of
from such Intermediate Access Provider, the Commission seeks input on the state
the Commission’s Modernization of
an Intermediate Access Provider shall of the leased access marketplace
Media Regulation Initiative. In response
not bill Interexchange Carriers generally and invites comment on ways
to the public notice initiating the media
terminating tandem switching and to modernize its existing leased access
modernization proceeding, some
terminating switched transport access rules.
commenters made proposals related to
for traffic bound for such local exchange DATES: Comments are due on or before
the Commission’s leased access rules,
carrier but, instead bill such local July 30, 2018; reply comments are due which require cable operators to set
exchange carrier for such services. on or before August 13, 2018. aside channel capacity for commercial
(e) Notwithstanding any provision of ADDRESSES: You may submit comments, use by unaffiliated video programmers.1
this section, any carrier that is not itself identified by MB Docket Nos. 18–80 and By addressing these proposals in this
engaged in Access Stimulation, as that 17–105, by any of the following FNPRM, we advance our efforts to
term is defined in § 61.3(bbb) of this methods: modernize our media regulations and
chapter, but serves as an Intermediate • Federal eRulemaking Portal: http:// remove unnecessary requirements that
Access Provider with respect to traffic www.regulations.gov. Follow the can impede competition and innovation
bound for an access-stimulating local instructions for submitting comments. in the media marketplace.
exchange carrier, shall not itself be • Federal Communications
Commission’s website: http:// 2. We tentatively conclude that we
deemed a local exchange carrier should vacate the 2008 Leased Access
engaged in Access Stimulation or be fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments. Order, including the Further Notice of
affected by this rule other than Proposed Rulemaking issued in
paragraph (d) of this section. • Mail: Filings can be sent by hand or
messenger delivery, by commercial conjunction with that order. This action
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■ 4. Amend § 51.917 by revising would enable the Commission to clean
paragraph (c) to read as follows: overnight courier, or by first-class or
overnight U.S. Postal Service mail. All up a longstanding backlog and position
§ 51.917 Revenue recovery for Rate-of- filings must be addressed to the us to freshly consider new revisions to
Return Carriers. Commission’s Secretary, Office of the
1 The leased access rules are in Subpart N of Part
* * * * * Secretary, Federal Communications
76, which was listed in the Media Modernization
(c) Adjustment for Access Stimulation Commission. Public Notice as one of the principal rule parts that
activity. 2011 Rate-of-Return Carrier • People with Disabilities: Contact the pertains to media entities and that is the subject of
Base Period Revenue shall be adjusted FCC to request reasonable the media modernization review.

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30640 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules

the leased access rules.2 Due to the by market realities. Because of the available to consumers as an alternative
Sixth Circuit proceedings as well as the concerns raised in the Sixth Circuit Stay to cable. While consumers previously
OMB disapproval, the rule changes Order and the OMB Notice, the had access to only one pay television
contained in the 2008 Leased Access significant amount of time that has service, today they have access to
Order never went into effect. The leased passed since the 2008 Leased Access multiple pay television services as well
access rules that are currently in effect, Order was adopted and became subject as online video programming. In
and that currently appear in the Code of to a stay, the significant amount of time addition, the number of channels
Federal Regulations, are those that were that the cable industry and programmers offered by cable operators has increased.
in existence prior to the 2008 Leased have remained subject to the pre- 8. Against this backdrop, we invite
Access Order. Accordingly, vacating the existing leased access rules during the comment on the current state of the
2008 Leased Access Order would not pendency of the stay, and the very small leased access marketplace generally and
have any impact on any party’s number of leased access disputes on whether, and if so how, the
compliance with or expectations brought before the Commission in prevalence of alternative means of video
concerning the leased access recent years,3 we tentatively find that distribution should influence our
requirements. there is no sound policy basis for the actions in this proceeding. How many
3. In making this tentative conclusion, rules adopted in the 2008 order at this leased access programmers are currently
we note the concerns the Sixth Circuit point. For all these reasons, rather than in existence, and is that number
expressed in its Stay Order regarding proceeding with the pending judicial increasing or decreasing? What portion
the leased access rules that were review of the 2008 Leased Access Order of a cable system’s programming
adopted in the 2008 Leased Access that has now been stayed for a decade, consists of leased access? Do the leased
Order, including ‘‘that NCTA has raised we tentatively conclude that a better access rules currently in effect facilitate
some substantial appellate issues.’’ The approach would be for the Commission the successful leasing of time by leased
Sixth Circuit determined that a stay of to vacate the 2008 Leased Access Order access programmers, and if not, what
the 2008 Leased Access Order was and consider potential rule revisions issues do programmers experience? To
justified due to ‘‘[t]he balance of the anew. what extent do leased access
harms and the public interest, as well as 6. We seek comment on our tentative programmers continue to rely on cable
NCTA’s potential of success on the conclusions. Is there any policy carriage versus alternative means of
merits.’’ The Sixth Circuit also noted justification for not vacating the entire distribution? Does the widespread
NCTA’s argument that cable operators order? Is there any policy justification availability of DBS service today or the
would suffer irreparable harm absent a for retaining any particular rules proliferation of online video distributors
stay because the new leased access rate adopted therein? Parties urging us not to provide programmers, including leased
formula adopted in the order would set vacate the entire order or particular access programmers, with more options
leased access rates at an unreasonably rules should specify how the for content distribution?
low level, which would lead to more Commission should overcome both the 9. As discussed below, we also seek
leased access requests that would judicial concerns noted in the Sixth comment on specific proposals raised in
displace other programming, ultimately Circuit Stay Order and those raised in the media modernization proceeding to
leading to dissatisfied cable customers. the OMB Notice. We also ask parties to update and improve the Commission’s
4. Further support for our tentative address any benefits associated with the existing leased access rules as well as on
finding that we should vacate the 2008 2008 rules and whether these benefits any other proposals we should consider.
Leased Access Order arises from the outweigh the costs. 10. First, as supported by several
concerns about the paperwork burden 7. We next seek comment on any commenters in the media modernization
set forth in the OMB Notice. OMB updates and improvements we should proceeding, we propose to revise
detailed five ways in which certain make to our existing leased access rules. § 76.970(i) of our rules to provide that
requirements adopted in the order were The stated purpose of the leased access all cable operators, and not just those
inconsistent with the PRA. OMB statute ‘‘is to promote competition in that qualify as ‘‘small systems’’ under
specifically cited the Commission’s the delivery of diverse sources of video that rule, are required to provide the
failure to demonstrate the need for the programming and to assure that the information specified in paragraph (i)(1)
more burdensome requirements widest possible diversity of information only in response to a bona fide request
adopted, its failure to demonstrate that sources are made available to the public for leased access information from a
it had taken reasonable steps to from cable systems in a manner prospective leased access programmer.4
minimize the burdens, and its failure to consistent with growth and For purposes of the leased access rules
provide reasonable protection for development of cable systems.’’ The applicable to cable operators eligible for
proprietary and confidential statute also specifies that the price, small system relief,5 a bona fide request
information. Some commenters in the terms, and conditions for commercial for information is defined as a request
media modernization proceeding agree leased access should be ‘‘at least
with OMB that the 2008 Leased Access sufficient to assure that such use will
4 The 2008 Leased Access Order distinguished

Order failed to comply with the PRA. between ‘‘requests for information’’ and ‘‘proposals
not adversely affect the operation, for leased access.’’ Had that order gone into effect,
5. We also tentatively find that financial condition, or market it would have provided non-small cable systems
vacating the 2008 Leased Access Order development of the cable system.’’ We with three days to respond to a request for
would be consistent with the goal of the note that the video distribution information, whereas small cable systems would
Commission’s Modernization of Media have had 30 days to respond to a bona fide request
sradovich on DSK3GMQ082PROD with PROPOSALS

marketplace has become much more for information. All cable systems, regardless of
Regulation Initiative to remove rules competitive since Congress first size, would have been required to respond to bona
that are outdated or no longer justified established the leased access regime in fide leased access proposals within 10 days of
receipt.
2 If we vacate the 2008 Leased Access Order, we
1984. For example, at that time, direct 5 For purposes of the leased access rules, a small

will subsequently dismiss as moot the NCTA FCC broadcast satellite (DBS) service was not system is defined as either (i) a system that qualifies
Stay Request (asking the Commission to stay the as small under § 76.901(c) of the Commission’s
2008 Leased Access Order) and the TVC Recon 3 The Commission currently adjudicates an rules and is owned by a small cable company as
Petition (seeking reconsideration of the 2008 Leased average of less than one leased access dispute per defined in § 76.901(e); or (ii) a system that has been
Access Order). year. granted special relief.

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30642 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules

operator responds to a leased access supporting additional rules governing Operators (Telecom Act Standard),
request by providing the information set leased access rates should explain why Cable and Other Subscription
forth in § 76.970(i)(1)? Any commenter additional rate rules are needed and Programming, Motion Picture and Video
advocating that we permit only small what issues the rules should address. Production, and Motion Picture and
cable operators to require a nominal We ask commenters to explain the Video Distribution. The projected
application fee or deposit should relative costs and benefits of any reporting, recordkeeping, and other
explain its rationale. additional proposals. compliance requirements are: (1) A
17. Fourth, we invite comment on 19. In seeking comment on updating tentative conclusion that we should
modifications to our procedures for the FCC’s leased access rules, we also vacate the 2008 Leased Access Order;
addressing leased access disputes. seek comment on whether our rules (2) as suggested by commenters in
Congress has provided the Commission implicate First Amendment interests. If response to the Media Modernization
with authority to adjudicate leased so, what level of First Amendment Public Notice, a proposal to require
access disputes. Parties previously have scrutiny is appropriate, and how does cable operators to respond only to bona
contacted Commission staff to express that analysis apply to our existing rules fide requests from prospective leased
confusion about inconsistencies and the potential changes we seek access programmers; (3) seeking
between the leased access dispute comment on here, in light of the comment on other suggested changes to
resolution rule (§ 76.975) and the statutory obligations of section 612? In leased access rules that were raised in
Commission’s more general rule this context, we also seek comment on the media modernization proceeding,
governing complaints (§ 76.7). whether there have been any changes in including extending the timeframe for
Accordingly, to promote consistency the video distribution market since providing responses to leased access
between the two rules, we propose to Congress and the FCC first addressed requests and permitting cable operators
revise § 76.975 of our rules as follows. these issues that are relevant to the First to require leased access programmers to
First, we propose to revise our Amendment analysis. For instance, are pay a nominal application fee and/or a
terminology by referencing an answer to there relevant changes in the deposit; and (4) seeking comment on
a petition, rather than a response to a distribution market that we should now proposals to modify our procedures for
petition. Second, we propose that the consider? Is the FCC’s 2015 decision addressing leased access disputes. There
30-day timeframe for filing an answer to regarding effective competition relevant is no overlap with other regulations or
a leased access petition should be to this analysis? laws.
calculated from the date of service of the 20. As required by the Regulatory 21. We note that the FNPRM
petition, rather than the date on which Flexibility Act of 1980, as amended tentatively finds that vacating the 2008
the petition was filed. Third, whereas (RFA), the Commission has prepared an Leased Access Order would be
§ 76.975 currently does not include any Initial Regulatory Flexibility Analysis consistent with the goal of the
allowance for replies, we propose (IRFA) concerning the possible Commission’s Modernization of Media
adding a provision stating that replies to significant economic impact on small Regulation Initiative to remove rules
answers must be filed within 15 days entities by the policies and rules that are outdated or no longer justified
after submission of the answer. Fourth, proposed in the FNPRM. Written public by market realities. It is within this
we propose adding a statement that comments are requested on the IRFA. backdrop that the Commission
§ 76.7 applies to petitions for relief filed Comments must be identified as tentatively concludes that it should
under § 76.975, unless otherwise responses to the IRFA and must be filed vacate the 2008 Leased Access Order.
provided in § 76.975. We invite by the deadlines for comments provided The FNPRM explains that further
comment on these proposals, which we on the first page of the FNPRM. The support for our tentative finding that we
intend to alleviate any ongoing Commission will send a copy of the should vacate the 2008 Leased Access
confusion about how both §§ 76.7 and FNPRM, including the IRFA, to the Order arises from the concerns about the
76.975 govern leased access Chief Counsel for Advocacy of the Small paperwork burden set forth in the OMB
proceedings. Is 15 days the appropriate Business Administration (SBA). In Notice, where OMB detailed five ways
timeframe for submitting a reply to an summary, the FNPRM seeks to update in which certain requirements adopted
answer to a leased access petition? We the Commission’s leased access rules as in the order were inconsistent with the
note that the general complaint-filing part of its Modernization of Media PRA.
rule provides 10 days for filing replies, Regulation Initiative. First, it tentatively 22. Regarding specific proposals
but it also provides only 20 days for concludes that we should vacate the involving the leased access rules, the
filing an answer, whereas the leased Commission’s 2008 Leased Access Commission invites comment on
access rule provides 30 days for an Order, which the U.S. Court of Appeals alternative ways it can reduce burdens
answer. Are there any other changes we for the Sixth Circuit has stayed for a on small entities. For example, the
should make to our rules in order to decade in conjunction with several Commission proposes to extend the
make the adjudication of leased access judicial appeals of the order. Second, it current bona fide request limitation,
disputes more efficient? seeks input on the state of the leased which only applies to operators of small
18. Finally, we invite comment on access marketplace generally and invites cable systems, to all operators. The
any other ways in which we should comment on ways to modernize our FNPRM seeks information on whether
modernize our leased access rules. For existing leased access rules. The the current bona fide request limitation
example, are any new rules needed to proposed action is authorized pursuant in any way discourages prospective
govern the relationship between leased to sections 4(i), 303, and 612 of the leased access programmers, including
sradovich on DSK3GMQ082PROD with PROPOSALS

access programmers and cable Communications Act of 1934, as small programmers, from seeking to
operators, such as a rule requiring cable amended, 47 U.S.C. 154(i), 303, and lease access and if so, how. For
operators to provide programmers with 532. The types of small entities that may example, if prospective leased access
contact information for the person be affected by the proposals contained programmers indicate that they find it
responsible for leased access matters? in the FNPRM fall within the following difficult to prepare a request that
Should we adopt any new rules categories: Cable Television Distribution constitutes a ‘‘bona fide’’ request, the
governing leased access rates or part- Services, Cable Companies and Systems Commission will consider such
time leased access? Commenters (Rate Regulation), Cable System difficulties in determining how to

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Document Created: 2018-06-29 01:14:07
Document Modified: 2018-06-29 01:14:07
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Comments are due on or before July 30, 2018; reply comments are due on or before August 13, 2018.
Contact		For additional information on this proceeding, contact Diana Sokolow, [email protected], of the Policy Division, Media Bureau, (202) 418-2120.
FR Citation		83 FR 30639
CFR Associated		Administrative Practice and Procedure; Cable Television and Reporting and Recordkeeping Requirements