$// MO&O, Recon., WCA, Standing, program access, FCC 94-203 //$

$/300.536 Regulation of Carriage Agreements /$
$/76.1302 Adjudicatory Proceedings /$
 FOR RECORD ONLY
 Before the
 Federal Communications Commission FCC 94-203
 Washington, D.C. 20554

In the Matter of )
 )
Implementation of the Cable ) MM Docket No. 92-265
Television Consumer Protection )
and Competition Act of 1992 )
 )
Development of Competition and )
Diversity in Video Programming )
Distribution and Carriage )

 MEMORANDUM OPINION AND ORDER

Adopted: August 2, 1994 Released: August 5, 1994

By the Commission:

 I. Introduction

 1. On October 5, 1992, Congress enacted the Cable Television Consumer Protection
and Competition Act of 1992 ("1992 Cable Act"). The 1992 Cable Act amended the
Communications Act of 1934, in part, by adding new Sections 616 and 628. Section 616
governs agreements between cable operators -- or other multichannel video programming
distributors ("MVPDs") -- and the programming services they distribute, and directs the
Commission to establish regulations that prevent cable operators or other MVPDs from
entering into carriage agreements that condition carriage of a vendor's programming on
particular concessions. Pursuant to that mandate, on September 23, 1993 the Commission
adopted general rules consistent with the statute's specific prohibitions in its Second Report
and Order in MM Docket No. 92-265 ("Second R&O").

 2. On December 15, 1993, the Wireless Cable Association International, Inc.
("WCA") filed a petition for partial reconsideration of the Second R&O. The petition
requested that the Commission amend the rules adopted therein to afford standing specifically
to any MVPD aggrieved by an alleged violation of Section 616 of the 1992 Cable Act to file
a complaint under Section 76.1302(a) of the Commission's rules. WCA's petition was
supported by Liberty Cable Company ("Liberty Cable") and GTE Service Corporation
("GTE"), and was opposed by Tele-Communications, Inc. ("TCI") and Liberty Media
Corporation ("Liberty Media").

 3. In this Memorandum Opinion and Order, we address WCA's petition, the
supporting comments, and the oppositions thereto, regarding the scope of standing for
complaints filed under Section 616 of the 1992 Cable Act. For the reasons stated below, the
Commission finds that it is in the public interest, and consistent with the Communications Act
of 1934, to amend Section 76.1302 to afford standing to file a complaint to any MVPD
aggrieved by a violation of Section 616. Moreover, we conclude that our regulations
proscribing the filing of frivolous complaints are adequate to address any concerns regarding
potential abuses of the Commission's complaint process caused by expanding the class of
complainants under Section 616.

 II. Background

 4. The 1992 Cable Act and its legislative history indicate that Congress found that
the cable television industry is highly concentrated. Congress concluded that excessive
concentration could inhibit the entry of new programmers into the cable industry, thereby
reducing the number of media voices available to consumers. Congress also found that the
cable industry had become vertically integrated in that cable systems and programmers are
often commonly owned. When drafting the 1992 Cable Act, Congress was concerned that
increased horizontal concentration and vertical integration in the cable industry had created an
imbalance of power between cable operators and program vendors. Congress concluded,
among other things, that vertically integrated cable operators have the incentive and ability to
favor affiliated programmers over unaffiliated programmers with respect to granting carriage
on their systems. Thus, cable operators or programmers which compete with the vertically
integrated entities may suffer harm to the extent that they do not receive the same favorable
terms and conditions of carriage. Congress also found that, in return for carriage on the
cable system, some cable operators have required certain non-affiliated programmers to grant
them exclusive rights to programming, a financial interest in the programming, or some other
consideration.

 5. Congress sought to address these concerns by including Sections 19 and 12 in the
1992 Cable Act, which added Sections 628 and 616, respectively, to the Communications Act
of 1934. Section 628 (containing the program access provisions) primarily restricts the
activities of vertically integrated programming vendors and cable operators with respect to
other, unaffiliated MVPDs. In contrast, Section 616 was designed to restrict the activities of
cable operators and other MVPDs when dealing with unaffiliated programming vendors.

 6. We note that, while these sections proscribe certain anticompetitive conduct,
Congress also intended to preserve the legitimate aspects of negotiations for multichannel
video programming that result in greater availability of programming in the multichannel
video marketplace. Indeed, the statute contained the specific directive to "rely on the
marketplace, to the maximum extent feasible, to achieve greater availability" of the relevant
programming.

 7. Thus, in implementing the provisions of Section 616, the Commission sought to
strike a balance that not only proscribed the behavior prohibited by the specific language of
the statute, but also preserved the ability of affected parties to engage in legitimate
negotiations. We stated that this flexible approach was consistent with our objective of
serving:
 the congressional intent to prohibit unfair and anticompetitive actions without
 restraining the amount of multichannel programming available by precluding
 legitimate business practices common to a competitive marketplace.

In addition, we observed that:

 the flexibility inherent in this approach will be important in our overall effort
 to resolve both carriage agreement and program access complaints, so that our
 implementing rules for Section 616 do not preclude as coercion any mutually
 acceptable arrangements that would otherwise comply with the program access
 provisions of Section 628.

 8. WCA, Liberty Cable and GTE contend that Section 76.1302 of our Rules is too
narrowly drafted because it does not specifically afford standing to file a complaint to any
MVPD aggrieved by a violation of Section 616. Petitioners urge the Commission to amend
the scope of Section 76.1302 to affirmatively afford standing to file a complaint to any third
party MVPD aggrieved by carriage agreements between other MVPDs and programming
vendors that violate Section 616. TCI and Liberty Media oppose the petition, contending,
inter alia, that Section 616 was intended solely to benefit unaffiliated programming vendors.

 III. Summary of Comments

 9. Petitioner WCA argues that, in crafting the 1992 Cable Act, Congress chose to
promote the emergence of competition to check cable's market power, and that the addition of
Section 616 to the Communications Act of 1934 was an instrumental part of Congress' efforts
to create a competitive marketplace. WCA states that the record before Congress established
that certain horizontally-concentrated Multiple System Operators ("MSOs") had systematically
abused their market power to gain control over programming sources and frustrate the
development of competitive technologies, and that "Congress expressly recognized that while
fair access to programming was a prerequisite for any wireless operator or other MVPD to
emerge as a viable competitor, the market power over programmers derived by these MSOs
from their de facto local monopolies was being abused to frustrate competition."

 10. Petitioner WCA notes that the Second R&O is silent as to who has standing to file
a complaint when a violation of Section 616 occurs. WCA contends that Section 76.1302
could be narrowly interpreted to limit standing solely to programming vendors aggrieved by
violations of the carriage agreement provisions, thus precluding a complaint from an MVPD
aggrieved by the same anticompetitive behavior. If so interpreted, WCA contends that the
very purpose of Section 616 will be frustrated because an MSO with sufficient market power
over a programming vendor to coerce exclusivity will be able to employ the same market
power to secure that programming vendor's silence. WCA contends that in today's market a
programming vendor will not risk alienating a horizontally-concentrated MSO by filing a
carriage agreement complaint with the Commission.

 11. WCA contends that two recent situations support its claims that aggrieved
programming vendors will not file complaints against powerful MSOs: (1) the Chairman of
Viacom International, Inc., ("Viacom") testified before the Senate Subcommittee on Antitrust,
Monopolies, and Business Rights that Viacom has not complained of alleged anticompetitive
abuses by TCI because of its fear of retaliation;and (2) TCI allegedly has been able to
coerce cable exclusivity from Fox Broadcasting Network ("Fox") for its new programming
service, fX, by implicitly or explicitly threatening to drop Fox's broadcast affiliates from
TCI's cable systems and/or refusing to carry fX absent a grant of exclusivity. WCA argues
that if wireless cable operators prevented from carrying fX because of such coerced
exclusivity are barred from complaining by a narrow interpretation of Section 76.1302, there
will be no effective method to redress such anticompetitive behavior.

 12. Liberty Cable, a satellite master antenna television operator, filed comments in
support of WCA's petition. Liberty Cable agrees with WCA's assertion that Congress
enactment of Section 616 implies a Congressional determination that a cable operator could
use its control over programmers to impede its competitors. Liberty Cable further states that
Congress manifested its concern about the impact of cable operators' coercive and retaliatory
practices on both programming vendors and competing MVPDs in the program access and
carriage agreement provisions of the 1992 Cable Act. Liberty Cable agrees that the
Commission's failure to specifically afford MVPDs allegedly victimized by a violation of
Section 616 with standing to file a complaint severely limits the effectiveness of Section 616
and does not comport with Congressional intent. Liberty Cable also contends that an
unaffiliated programmer will not risk alienating a powerful cable operator by filing a
complaint.

 13. GTE, on behalf of its domestic telephone operating companies, also filed
comments in support of WCA's petition. GTE contends that the purpose of Section 616 is to
protect both video programming vendors and emerging distribution competitors from certain
anticompetitive conduct undertaken by cable operators. GTE argues that, since programming
vendors are unlikely to lodge complaints against operators which carry their shows, limiting
standing under Section 616 to vendors which are party to the contract would frustrate
Congressional intent. GTE also contends that the language of the statute does not support this
unreasonable result. According to GTE, the plain purpose of Section 616 is to protect not
only programmers, but also other MVPDs from prohibited coercive conduct.

 14. TCI filed an opposition to WCA's petition. TCI contends that the program
carriage provisions in Section 616 were enacted solely for the benefit of programming
vendors, and that the interpretation requested by WCA is at odds with the language of Section
616 and its legislative history. With respect to the language of Section 616, TCI contends
that there is no mention of complaints to be filed by MVPDs, referring to the provision in
Section 616(a)(4) for expedited review of "complaints made by a video programming vendor
pursuant to this section," (emphasis added) and the definition of "video programming vendor"
in Section 616(b).

 15. TCI further contends that the legislative history of Section 616 mandates rejection
of WCA's requested interpretation. TCI notes that both the Conference Report and the House
Report include references to expedited review of all complaints made under this section of the
Act. According to TCI, if WCA is to prevail, it must convince the Commission that Section
616(a)(4) merely requires the Commission to give expedited treatment to complaints filed by
programming vendors, while allowing non-expedited review for all other carriage agreement
complaints. Thus, TCI concludes that the legislative history confirms that Congress intended
that only programming vendors be permitted to file complaints under Section 616 of the
Act.

 16. TCI responds to WCA's claim that cable operators will be able to coerce both
exclusivity and silence from programming vendors by noting that Section 616(a)(2) expressly
prohibits an MVPD not only from coercing exclusivity from a programming vendor, but also
from retaliating against such a vendor for failing to provide exclusivity. According to TCI,
this provision gives a programming vendor an opportunity for prompt and full redress if its
rejection of a coercive demand is met with retaliation and voids any claim by WCA that the
carriage agreement provisions will be weakened if competing aggrieved MVPDs are not
permitted to file complaints.

 17. TCI further contends that the program access provisions in Section 628, rather
than the carriage agreement provisions of Section 616, provide the appropriate avenue of
redress for MVPDs. TCI contends that Section 628 of the Act, and the implementing rules
promulgated by the Commission, allow exclusive contracts to be contested by third parties
when the Commission makes its determination as to whether they are in the public interest,
while Section 616 allows video programming vendors to protect themselves from any coercive
tactics which might be employed by MVPDs. According to TCI, the purpose of Section 628,
and not Section 616, is to "promote the public interest, convenience and necessity by
increasing competition and diversity in the multichannel video programming market . . . "

 18. Finally, TCI argues that allowing MVPDs standing to file complaints under
Section 616 will discourage parties from entering into contracts, including those that are in the
public interest, because parties will not want to face the Commission's examination of their
negotiating behavior. In addition, TCI claims that this will chill exclusive agreements that are
in the public interest by allowing MVPDs to use the Section 616 complaint process to obtain
potentially useful information regarding a rival's business practices.

 19. Liberty Media also opposes WCA's petition, reiterating many of the same
arguments made by TCI. Liberty Media contends that Section 616 and the Commission's
implementing rules make it clear that only video programming vendors have standing.
Liberty Media argues that the Commission's authorized remedies such as "mandatory carriage
of complainant's programming" in Section 76.1302(s)(1) make sense only with respect to
complaints brought by video programming vendors. Moreover, Liberty Media contends that
other provisions in the implementing rules, including the notice provisions in Section
76.1301(a) and the statute of limitations provision in Section 76.1302(r), are premised upon a
video programmer complainant. Liberty Media also contends that, while the Commission
sought to "strike a balance" in its regulations between proscribing prohibited behavior and
preserving legitimate negotiations, WCA's proposal would destroy that balance by interjecting
third parties into private negotiations or by permitting third-party discovery.

 20. In response to TCI and Liberty Media's opposition, both WCA and GTE filed
Replies. WCA contends that neither TCI nor Liberty Media identified a single provision in
the 1992 Cable Act or its legislative history that expressly calls for the Commission to deny
an aggrieved MVPD standing to complain when Section 616 is violated. WCA contends that
while it appears that Congress gave little, if any, attention to which entities should be entitled
to complain when a programmer is coerced into giving exclusivity, Congress was concerned
with the impact that coerced exclusivity has on programmers as well as on the ability of
emerging technologies to obtain the volume of programming necessary to compete.

 21. WCA further argues that TCI and Liberty Media's reliance on Sections 616(a)(4)
and 616(b) are without merit and ignore that Section 616(a)(6) expressly contemplates that
persons other than video programming vendors will be filing complaints. Section 616(a)(6)
specifies that the Commission is to "provide penalties to be assessed against any person filing
a frivolous complaint pursuant to this section". According to WCA, if TCI were correct, and
Congress only contemplated that video programming vendors would be entitled to file
complaints, this section would have called for the Commission to provide penalties to be
assessed against only video programming vendors filing frivolous complaints.

 22. WCA also responds that Section 628 does not necessarily provide an effective
remedy when a cable operator coerces exclusivity from a non-vertically integrated
programming vendor. WCA contends that Section 628 is designed to address problems
associated with vertical integration and is limited in scope to those situations where vertical
integration proves problematic, and it is not implicated when a cable operator coerces an
exclusive programming agreement from a programming vendor that is not vertically
integrated. Finally, WCA addresses TCI and Liberty Media's contention that WCA's
petition, if granted, will lead to abuse. WCA contends that in order to avoid such abuses,
Section 616(a)(6) of the 1992 Cable Act imposes penalties on those filing frivolous
complaints.

 23. GTE also asserts that Section 628 does not reach all of the conduct prohibited by
Section 616. Moreover, GTE disputes Liberty Media's suggestion that Congress' express
identification of one specific remedy for violations of Section 616 limits standing to video
programming vendors, pointing out that the precise language of the statute directs the
Commission to provide for appropriate penalties and remedies for violations of Section 616
"including" carriage. According to GTE, this permissive language does not limit the
Commission's ability to fashion appropriate penalties and remedies with respect to injured
MVPDs. Finally, GTE argues that Congress specifically identified MVPDs as parties which
could be injured by Section 616 prohibited conduct. Thus, according to GTE, limiting
standing to video programming vendors contradicts the remedial intent of Congress by leaving
parties specifically injured by the proscribed conduct without redress and is also contrary to
accepted rules of statutory construction.

 IV. Discussion

 24. The Commission has determined that it is in the public interest to grant WCA's
petition and to amend our implementing rules to specifically afford standing to MVPDs to file
complaints under Section 616 of the 1992 Cable Act. Based upon the record before us and
the criteria set forth in the 1992 Cable Act and its legislative history, we believe that it serves
the public interest if all potential violations of Section 616 are brought to the Commission's
attention. The statutory purpose of Section 616 is further served if the Commission is made
aware of such violations through complaints by both programming vendors and MVPDs alike.
Indeed, the mere threat of potential complaints by allegedly aggrieved competing distributors
is an added check on potential anticompetitive behavior by MVPDs with respect to carriage
agreements. While we are affording standing to MVPDs to file complaints under Section 616,
we emphasize that such complaints must be based on documentary evidence or testimony in
the form of affidavits, and may not merely reflect conjecture or allegations based only on
information or belief. We believe that Section 76.1302(q) of our rules will afford adequate
protection against any potential frivolous complaints as a result of our decision on this issue.

 25. Moreover, Liberty Media misplaces its reliance upon Sterling Suffolk Racecourse
L.P. v. Burrillville Racing Ass'n, Inc., 989 F. 2d 1266, 1270 (1st Cir. 1993), cert. denied,
114 S. Ct. 634 (1993) ("Sterling Suffolk"), as support for its argument that neither federal
agencies nor courts can substitute their judgment for that of Congress in extending standing to
seek relief under federal statutes. In Sterling Suffolk, the First Circuit held that in
determining whether a private cause of action is implied in a federal statute, a court's central
focus must be on congressional intent. The court listed three questions to discern this intent:
(1) is the plaintiff one of the class for whose particular benefit the legislation was enacted;
(2) is the remedy sought consistent with the underlying purposes of the legislative scheme;
and (3) is the cause of action one traditionally relegated to state law? We disagree with
Liberty Media's application of this standard to the issue before us on reconsideration as the
question of a private right of action in court is different from the question of whether a party
may bring an alleged statutory violation to an agency's attention. In any event, we believe
that in this case the first two questions are answered in the affirmative. The third question
has not even been raised as an issue by the parties and clearly is not relevant here.

 26. There is nothing in the statute that limits standing only to aggrieved video
programming vendors. Opponents point to Section 616(a)(4)'s reference to "expedited review
of any complaints made by a video programming vendor pursuant to this section" (emphasis
added) as a limitation on standing. In contrast, as noted by WCA, Section 616(a)(6),
appearing two sentences later in the statute, suggests otherwise. That section requires the
Commission "to provide penalties to be assessed against any person filing a frivolous
complaint pursuant to this section", suggesting that Congress intended to provide for a
broader class of complainants than just programming vendors aggrieved by the specified
conduct. Thus, in addition to the fact that there is nothing in the language of Section 616
which precludes standing to aggrieved MVPDs, such standing also fits well within the
statutory purpose.

 27. Further, we do not find anything in the legislative history of Section 616 that
limits standing only to video programming vendors. To the contrary, the underlying premise
of the program access and carriage provisions of the 1992 Cable Act was to increase
competition to franchised cable operators from other MVPDs, reducing the undue market
power held in noncompetitive markets by cable operators as compared to that of consumers
and video programming vendors. The legislative history shows that Section 616, like Section
628, was designed by Congress to prohibit unfair or anticompetitive actions without
precluding legitimate business practices common to a competitive marketplace. Indeed,
Congress routinely treated Sections 616 and 628 in concert, thereby confirming its concern for
the impact of anticompetitive conduct on programmers and on emerging MVPDs' access to
programming. Thus, far from precluding an aggrieved MVPD from seeking relief under
Section 616, the legislative history surrounding this section supports standing for such entities.

 28. Moreover, as pointed out by petitioner WCA, a discussion by the Senate
Committee on Commerce, Science and Transportation regarding what ultimately became
Section 616 of the 1992 Cable Act, as passed by both houses of Congress, shows that in
passing Section 616, Congress was concerned with the effect a cable operator's market power
would have both on programmers and on competing MVPDs:

 In addition to using its market power to the detriment of consumers directly, a cable
 operator with market power may be able to use this power to the detriment of
 programmers. Through greater control over programmers, a cable operator may be
 able to use its market power to the detriment of video distribution competitors.

 29. Contrary to TCI's and Liberty Media's assertions, the substantive differences
between Section 628, which clearly grants standing to aggrieved MVPDs, and Section 616
support our decision to grant WCA's petition. Section 628 does not address all conduct
proscribed under Section 616. Whether or not the behavior at issue constitutes a violation of
Section 628, however, we see no reason to deny MVPDs standing to file complaints for
violations of Section 616.

 30. Moreover, we share the concerns raised by WCA, Liberty Cable and GTE that
programming vendors which may have been coerced into granting anticompetitive concessions
to MSOs could lack the incentive to file a complaint because of potential damage to their
future business relationships with such MSOs. TCI's assertion that Section 616 also prohibits
retaliatory conduct by a cable operator against a programming vendor who refuses to grant
exclusive distribution rights does not answer this concern. If an MSO has the market power
to coerce the programming vendor to grant anticompetitive concessions in the first place, that
the statute also proscribes retaliation by that MSO for failure to grant such concessions hardly
provides additional incentives for that programming vendor to file a complaint if it is already
too intimidated to report the coercion.

 31. Thus, for the reasons discussed above, we conclude that it is in the public interest
to amend the carriage agreement rules in accordance with WCA's petition. While we believe
this approach is entirely consistent with the purpose and intent of the 1992 Cable Act, and
indeed necessary to fully implement Section 616, we further note that it is well within the
Commission's general authority in Sections 4(i) and (j) of the Communications Act of 1934,
as amended, to amend our rules in this manner.

 32. Finally, while we believe that amending the rule to grant standing to MVPDs
aggrieved by violations of Section 616 serves important public interest goals, we also are
mindful of the potential abuses that can result from the complaint process. In this regard, we
note that Section 76.1302(q) of our rules specifically provides that:

 [i]t shall be unlawful for any party to file a frivolous complaint with the Commission
 alleging any violation of this sub-part. Any violation of this paragraph shall constitute
 an abuse of process subject to appropriate sanctions.

 33. We intend to strictly enforce this prohibition against frivolous complaints.
Furthermore, we caution that complaints filed pursuant to Section 616 must be based on
documentary evidence or testimony in the form of affidavits, (signed by an authorized
representative or agent of the complaining party) and may not merely reflect conjecture or
allegations based only on information and belief. In this manner, we believe that the
Commission's rules afford adequate protection against any potential frivolous complaints filed
as a result of our decision to expand the scope of parties with standing to file carriage
agreement complaints pursuant to Section 616.

 34. For further information in this proceeding, contact Nancy Markowitz or Diane
Hofbauer, Cable Services Bureau, (202) 416-0856.

 V. Regulatory Flexibility Act Analysis

 Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Sections 601-602, the
Commission's final analysis is as follows:

 35. Need and purpose of this action: This action is taken to implement Section 12 of
the Cable Television Consumer Protection and Competition Act of 1992.

 36. Summary of the issues raised by the public comments in response to the Initial
Regulatory Flexibility Analysis: There were no comments submitted in response to the Initial
Regulatory Flexibility Analysis.

 37. Significant alternatives considered: We have analyzed the comments submitted in
light of our statutory directives and have formulated regulations which, to the extent possible,
minimize the regulatory burden placed on entities covered by the program carriage agreement
provisions of the 1992 Cable Act.

 38. Federal Rules which overlap, duplicate or conflict with these rules: None.

 39. Paperwork Reduction Act Statement: The proposal contained herein has been
analyzed with respect to the Paperwork Reduction Act of 1980 and found to impose no new
or modified information collection requirements on the public.

 VI. Ordering Clauses

 40. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and Section
616 of the Communications Act of 1934, as amended, 47 C.F.R. Sections 76.1302,
76.1302(a), 76.1302(r) and 76.1302(s) ARE AMENDED as set forth in Appendix A.

 41. IT IS FURTHER ORDERED that, the regulations established in this
Memorandum Opinion and Order shall become effective thirty days after publication in the
Federal Register.

 FEDERAL COMMUNICATIONS COMMISSION

 William F. Caton
 Acting Secretary
 APPENDIX A

 Part 76 of Title 47 of the Code of Federal Regulations is amended to read as follows:

Part 76 Cable Television Service

 1. The authority citation for Part 76 continues to read as follows:

AUTHORITY: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065,
1066, 1081, 1082, 1083, 1084, 1085, 1101; 47 U.S.C. Secs. 152, 153, 154, 301, 303, 307,
308, 309, 532, 533, 535, 542, 543, 552 as amended, 106 Stat. 1460.

 2. Section 76.1302 is amended by revising paragraphs (a)(r) and (s) to read as
follows:

76.1302 Adjudicatory Proceedings

 Any video programming vendor or multichannel video programming
distributor aggrieved by conduct that it alleges to constitute a violation of the regulations set
forth in this subpart may commence an adjudicatory proceeding at the Commission.

 (a) Notice required. Any aggrieved video programming vendor or
 multichannel video programming distributor intending to file a complaint
 under this section must first notify the defendant multichannel video
 programming distributor that it intends to file a complaint with the
 Commission based on actions alleged to violate one or more of the provisions
 contained in 76.1301 of this subpart. The notice must be sufficiently detailed
 so that its recipient(s) can determine the specific nature of the potential
 complaint. The potential complainant must allow a minimum of ten (10) days
 for the potential defendant(s) to respond before filing a complaint with the
 Commission.

*****

 (r) Statute of limitations.

 Any complaint filed pursuant to this subsection must be filed within one
 year of the date on which one of the following events occurs:

 (1) the multichannel video programming distributor enters into a
 contract with a video programming vendor that a party alleges to violate
 one or more of the rules contained in this subpart; or

 (2) the multichannel video programming distributor offers to carry the
 video programming vendor's programming pursuant to terms that a
 party alleges to violate one or more of the rules contained in this
 subpart; or

 (3) a party has notified a multichannel video programming distributor
 that it intends to file a complaint with the Commission based on
 violations of one or more of the rules contained in this subpart.

 (s) Remedies for violations.

 (1) Remedies authorized. Upon completion of such adjudicatory
 proceeding, the Commission shall order appropriate remedies, including,
 if necessary, mandatory carriage of a video programming vendor's
 programming on defendant's video distribution system, or the
 establishment of prices, terms, and conditions for the carriage of a video
 programming vendor's programming. Such order shall set forth a
 timetable for compliance, and shall become effective upon release,
 unless any order of mandatory carriage would require the defendant
 multichannel video programming distributor to delete existing
 programming from its system to accommodate carriage of a video
 programming vendor's programming. In such instances, if the
 defendant seeks review of the staff or administrative law judge decision,
 the order for carriage of a video programming vendor's programming
 will not become effective unless and until the decision of the staff or
 administrative law judge is upheld by the Commission. If the
 Commission upholds the remedy ordered by the staff or administrative
 law judge in its entirety, the defendant will be required to carry the
 video programming vendor's programming for an additional period of
 time equal to the time elapsed between the staff or administrative law
 judge decision and the Commission's ruling, on the terms and
 conditions approved by the Commission.

*****