Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 81805 

Dated: November 30, 2020. 

Edward Messina, 

Acting Director, Office of Pesticide Programs. 

Therefore, for the reasons stated in the 

preamble, EPA is amending 40 CFR 

chapter I as follows: 

PART 180—TOLERANCES AND 

EXEMPTIONS FOR PESTICIDE 

CHEMICAL RESIDUES IN FOOD 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Add § 180.714 to subpart C to read 

as follows: 

§ 180.714 Broflanilide; tolerances for 

residues. 

(a) General. (1) Tolerances are 

established for residues of broflanilide, 

including its metabolites and 

degradates, in or on the commodities to 

Table 1 of this section. Compliance with 

the tolerance levels specified in Table 1 

is to be determined by measuring only 

broflanilide, 3-(benzoylmethylamino)-N- 

[2-bromo-4-[1,2,2,2-tetrafluoro-1- 

(trifluoromethyl)ethyl]-6- 

(trifluoromethyl)phenyl]-2- 

fluorobenzamide, in or on the 

commodity. 

TABLE 1 TO PARAGRAPH (a)(1) 

Commodity Parts per 

million 

Amaranth, grain, grain ................ 0.01 

Amaranth, grain, stover .............. 0.01 

Can ̃ihua, grain ............................ 0.01 

Chia, grain .................................. 0.01 

Corn, field, milled byproducts ..... 0.015 

Cram-cram, grain ........................ 0.01 

Grain, cereal, group 15, except 

rice .......................................... 0.01 

Food and feed commodities 

(other than those covered by a 

higher tolerance) ..................... 0.01 

Grain, cereal, forage, fodder, 

and straw, group 16, except 

rice .......................................... 0.01 

Huauzontle, grain ....................... 0.01 

Potato, wet peel .......................... 0.08 

Quinoa, forage ............................ 0.01 

Quinoa, grain .............................. 0.01 

Quinoa, hay ................................ 0.01 

Quinoa, straw ............................. 0.01 

Spelt, grain ................................. 0.01 

Teff, forage ................................. 0.01 

Teff, grain ................................... 0.01 

Teff, hay ...................................... 0.01 

Teff, straw ................................... 0.01 

Vegetable, tuberous and corm, 

subgroup 1C ........................... 0.04 

(2) Tolerances are established for 

residues of broflanilide, including its 

metabolites and degradates, in or on the 

commodities to Table 2 of this section. 

Compliance with the tolerance levels 

specified in Table 2 is to be determined 

by measuring the sum of broflanilide, 3- 

(benzoylmethylamino)-N-[2-bromo-4- 

[1,2,2,2-tetrafluoro-1- 

(trifluoromethyl)ethyl]-6- 

(trifluoromethyl)phenyl]-2- 

fluorobenzamide, and its metabolite 3- 

benzamido-N-[2-bromo-4- 

(perfluoropropan-2-yl)-6- 

(trifluoromethyl)phenyl]-2- 

fluorobenzamide, calculated as the 

stoichiometric equivalent of 

broflanilide, in or on the commodity. 

TABLE 2 TO PARAGRAPH (A)(2) 

Commodity Parts per 

million 

Cattle, fat .................................... 0.02 

Cattle, meat ................................ 0.02 

Cattle, meat byproducts ............. 0.02 

Egg ............................................. 0.02 

Goat, fat ...................................... 0.02 

Goat, meat .................................. 0.02 

Goat, meat byproducts ............... 0.02 

Hog, fat ....................................... 0.02 

Hog, meat ................................... 0.02 

Hog, meat byproducts ................ 0.02 

Horse, fat .................................... 0.02 

Horse, meat ................................ 0.02 

Horse, meat byproducts ............. 0.02 

Milk ............................................. 0.02 

Poultry, fat .................................. 0.02 

Poultry, meat .............................. 0.02 

Poultry, meat byproducts ............ 0.02 

Sheep, fat ................................... 0.02 

Sheep, meat ............................... 0.02 

Sheep, meat byproducts ............ 0.02 

(b)–(d) [Reserved] 

[FR Doc. 2020–27906 Filed 12–16–20; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket Nos. 20–70, 17–105, 11–131; 

FCC 20–162; FRS 17261] 

Review Procedures; Modernization of 

Media Regulation Initiative; Program 

Carriage Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission revises the rules governing 

the resolution of program carriage 

disputes between video programming 

vendors and multichannel video 

programming distributors (MVPDs) and 

parallel procedural rules, which govern 

program access, open video system 

(OVS), and good-faith retransmission 

consent complaints. Specifically, the 

document amends the third prong of the 

statute of limitations for filing program 

carriage complaints so that it no longer 

undermines the fundamental purpose of 

a statute of limitations. To harmonize 

the rules, the document similarly 

amends the statutes of limitations for 

filing program access, OVS, and goodfaith retransmission consent complaints. 

The document also revises the effective 

date and review procedures for initial 

decisions issued by an administrative 

law judge (ALJ) in program carriage, 

program access, and OVS proceedings to 

make them consistent with the 

Commission’s generally applicable 

procedures and adopts an aspirational 

shot clock to encourage quick resolution 

of appeals of such decisions. The 

Commission concludes that these 

changes will help to ensure a clear and 

expeditious program access, program 

carriage, retransmission consent, and 

OVS complaint process for potential 

complainants and defendants. 

DATES: Effective January 19, 2021. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact John Cobb, 

John.Cobb@fcc.gov, of the Policy 

Division, Media Bureau, (202) 418– 

2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, MB Docket Nos. 20–70, 17– 

105, 11–131; FCC 20–162, adopted and 

released on November 18, 2020. The full 

text of this document is available via 

ECFS (http://www.fcc.gov/cgb/ecfs/). 

(Documents will be available 

electronically in ASCII, Word, and/or 

Adobe Acrobat.) To request these 

documents in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an email to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

Synopsis 

In this Report and Order (Order), we 

adopt proposed changes to the rules 

governing the resolution of program 

carriage disputes between video 

programming vendors and multichannel 

video programming distributors 

(MVPDs) and parallel procedural rules 

in part 76 of our rules, which govern 

program access, open video system 

(OVS), and good-faith retransmission 

consent complaints. Specifically, we 

amend the third prong of the statute of 

limitations for filing program carriage 

complaints so that it no longer 

undermines the fundamental purpose of 

a statute of limitations. To harmonize 

our rules, we similarly amend the 

statutes of limitations for filing program 

81806 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

access, OVS, and good-faith 

retransmission consent complaints. We 

also revise the effective date and review 

procedures for initial decisions issued 

by an administrative law judge (ALJ) in 

program carriage, program access, and 

OVS proceedings to make them 

consistent with the Commission’s 

generally applicable procedures and 

adopt an aspirational shot clock to 

encourage quick resolution of appeals of 

such decisions. We find that these 

changes will help to ensure a clear and 

expeditious program access, program 

carriage, retransmission consent, and 

OVS complaint process for potential 

complainants and defendants. With this 

proceeding, we continue our efforts to 

modernize our media regulations. 

Background. Section 616 of the 

Communications Act of 1934, as 

amended (the Act), directs the 

Commission to adopt regulations 

governing program carriage agreements 

between MVPDs and video 

programming vendors that prohibit 

certain anti-competitive practices and 

provide for expedited review of program 

carriage complaints. Congress passed 

section 616 as part of the Cable 

Television Consumer Protection and 

Competition Act of 1992 (1992 Cable 

Act), which was designed to preserve 

diversity and competition in the video 

programming market. Two sets of rules 

adopted pursuant to the 1992 Cable Act 

principally are addressed in this Report 

and Order: The statute of limitations for 

filing a program carriage complaint and 

the rules governing the effective date 

and review procedures for initial 

decisions issued by an ALJ in program 

carriage cases. We discuss these rules, 

in turn, below. 

First, for a program carriage complaint 

to be timely filed under our rules, it 

must be brought within one year of the 

date on which any of the following 

events occurs: (1) The defendant MVPD 

enters into a contract with a video 

programming vendor that a party alleges 

to violate the program carriage rules, (2) 

the defendant MVPD makes a carriage 

offer that allegedly violates the program 

carriage rules, and such offer is 

unrelated to any existing contract 

between the complainant and the 

MVPD; or (3) ‘‘[a] party has notified [an 

MVPD] that it intends to file a 

complaint with the Commission’’ based 

on a violation of the program carriage 

rules. As noted in the further notice of 

proposed rulemaking (FNPRM) in this 

proceeding (85 FR 21131, April 16, 

2020), the third prong of the statute of 

limitations, as originally adopted in the 

1993 Program Carriage Order (58 FR 

60390, November 16, 1993), contained 

additional limiting language that made 

it functionally identical to the current 

statutes of limitations governing 

program access, OVS, and good-faith 

negotiation of retransmission consent 

complaints. In particular, the original 

language provided that a program 

carriage complaint was timely if filed 

within one year of the date on which 

‘‘the complainant has notified [an 

MVPD] that it intends to file a 

complaint with the Commission based 

on a request for carriage or to negotiate 

for carriage of its programming on a 

defendant’s distribution system that has 

been denied or unacknowledged,’’ 

allegedly in violation of the program 

carriage rules. In a subsequent 1994 

amendment (59 FR 43776, August 25, 

1994), the Commission modified 

§ 76.1302(h)(3) to eliminate this limiting 

language without setting forth an 

explicit rationale for doing so. After 

several program carriage decisions in 

which the third prong of the statute of 

limitations had been interpreted in a 

manner consistent with the plain 

meaning of the 1994 rule language, the 

Commission expressed concern in the 

2011 Program Carriage NPRM (76 FR 

60675, September 29, 2011) that the 

third prong could be read to mean that 

a complaint would be deemed timely 

filed under our rules if brought within 

one year of the date on which a 

complainant notified the defendant 

MVPD of its intention to file a 

complaint, regardless of when the 

alleged violation of the rules had 

occurred, thereby ‘‘undermining the 

fundamental purpose of a statute of 

limitations.’’ In the FNPRM, we 

proposed to reinsert in the program 

carriage rules statute of limitations 

language similar to that adopted in the 

1993 Program Carriage Order, which 

would make the triggering event for the 

statute of limitations the denial or 

failure to acknowledge a request for 

carriage or to negotiate for carriage, and 

to clarify that the third prong applies 

only in instances where there is no 

existing contract or offer of carriage. For 

consistency, we also proposed to modify 

the similar third prongs of the statutes 

of limitations governing program access, 

OVS, and good-faith retransmission 

consent complaints to make the 

triggering event for each the denial or 

failure to acknowledge a request. 

Second, program carriage disputes 

may be referred by the Chief of the 

Media Bureau to an ALJ for a hearing on 

the merits if a complainant establishes 

that a prima facie violation of § 76.1301 

has occurred. A program carriage 

decision issued by an ALJ becomes 

effective upon release except in certain 

circumstances. If a party seeks review, 

the decision remains in effect pending 

Commission review, unlike the 

generally applicable procedures of 

§ 1.276(d) that automatically stay an 

ALJ’s initial decision pending 

Commission review. In the FNPRM, we 

noted that although Congress instructed 

the Commission to adopt procedures for 

the expedited review of program 

carriage complaints, there is no specific 

statutory requirement for ALJ decisions 

to take immediate effect, nor that they 

remain in effect pending Commission 

review. We observed that, in the past, 

the incongruous provisions in parts 76 

and 1 of our rules have caused 

confusion for both parties and 

adjudicators, and can create 

inconsistent outcomes pending appeal. 

Therefore, we proposed to harmonize 

our parts 76 and 1 rules so that review 

of an ALJ’s initial decision in program 

carriage, program access, and OVS 

proceedings is subject to the same 

procedural rules as other complaints 

adjudicated by the Commission. 

Additionally, the FNPRM proposed to 

make several technical edits to the part 

76 rules. The FNPRM also sought 

comment on whether, given the amount 

of time that has passed, the Commission 

should consider any of the substantive 

proposals from the 2011 Program 

Carriage NPRM, which considered a 

range of substantive and procedural 

revisions to the program carriage rules. 

As further discussed below, MVPDs 

responding to the FNPRM generally 

support our proposals and advocate for 

simplifying the regulatory framework 

for program carriage disputes. MVPDs 

assert that the rationale for protecting 

consumers from vertically-integrated 

distributors is outdated, given the 

increased competition in the video 

marketplace. On the other hand, 

independent video programming 

vendors oppose the rule revisions 

proposed in the FNPRM. In general, 

such programmers advocate for program 

carriage rules more favorable for 

programmers, citing the practical and 

financial hardships they face when 

bringing a complaint under our rules 

and alleging that the negotiation 

practices of vertically-integrated MVPDs 

continue to restrain their ability to 

compete. 

Discussion. For the reasons discussed 

below, we adopt our proposals to amend 

the third prong of the statute of 

limitations for program carriage, 

program access, OVS, and good-faith 

retransmission consent complaints, as 

well as the rules governing the effective 

date and review procedures for initial 

decisions issued by an ALJ in program 

access, program carriage, and OVS 

proceedings. Additionally, in order to 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 81807 

ensure prompt resolution of appeals in 

program access, program carriage, and 

OVS proceedings, we adopt an 

aspirational 180-day shot clock for 

circulating a final Commission decision 

of ALJ initial decision appeals in such 

proceedings. We also make other 

revisions to our part 76 rules to ensure 

consistency among parallel provisions, 

clarify existing language, and eliminate 

inoperative language. Finally, we 

decline at this time to adopt other 

proposals from the 2011 Program 

Carriage NPRM. We find that the rule 

revisions adopted herein will serve the 

public interest by clarifying and 

harmonizing the Commission’s rules 

and encouraging the timely resolution of 

program carriage disputes. 

Program Carriage Statute of 

Limitations. We adopt our proposal to 

revise the third prong of the program 

carriage statute of limitations to clarify 

that it applies only in circumstances 

where there is not an existing program 

carriage contract or carriage offer and 

the defendant MVPD has denied or 

failed to acknowledge either a request 

for program carriage or a request to 

negotiate for program carriage. We find 

that this rule revision will provide 

certainty to both MVPDs and 

prospective complainants and foreclose 

the possibility that the third prong 

could be read to allow the filing of a 

program carriage complaint at 

essentially any time, regardless of when 

the alleged violation of the rules 

occurred. 

As explained above, the third prong of 

the program carriage statute of 

limitations currently provides that a 

complaint must be filed within one year 

of the date on which ‘‘[a] party has 

notified [an MVPD] that it intends to file 

a complaint with the Commission based 

on violations of one or more of the rules 

contained in this section.’’ We agree 

with those commenters who assert that 

we should adopt our proposal because 

the current rule could be read to 

‘‘undermine[ ] the fundamental purpose 

of a statute of limitations ‘to protect a 

potential defendant against stale and 

vexatious claims by ending the 

possibility of litigation after a 

reasonable period of time has elapsed.’ ’’ 

NCTA asserts, for example, that under 

the existing statute of limitations a 

complainant could file a program 

carriage complaint years after a contract 

is entered into with the goal of 

‘‘belatedly modify[ing] the agreed-upon 

terms of a contract.’’ As explained 

previously, the third prong originally 

contained language limiting its 

application to circumstances in which 

there is an unreasonable refusal to 

negotiate, and this language was 

stricken by the Commission in 1994 

without explanation. We agree with 

Comcast that this limiting language 

made clear that the statute of limitations 

contained ‘‘three distinct and mutually 

exclusive paths for a program carriage 

complaint’’ and that the ‘‘ambiguity in 

the language of the revised rule has led 

to . . . interpretations of the third prong 

as an exception that swallows the other 

two prongs of the rule.’’ We therefore 

clarify that the third prong applies only 

in circumstances where there is no 

existing contract or carriage offer, and 

the MVPD has denied or failed to 

acknowledge a request for carriage or a 

request to negotiate for program carriage 

allegedly in violation of the program 

carriage rules, consistent with the 

program carriage rules as originally 

adopted and with Congress’s directive 

in section 616. 

We are not persuaded that the public 

interest would be better served by 

abandoning our proposed changes in 

favor of alternative revisions advocated 

for by commenters. As an initial matter, 

we affirm our tentative conclusion from 

the FNPRM that reincorporating the 

limiting language originally contained 

in the third prong is preferable to 

adopting a single provision that would 

run for one year from the date on which 

a violation of the program carriage rules 

allegedly occurred. No commenter 

supported this latter option. Rather, we 

conclude that revising the third prong of 

the rule strikes an appropriate balance 

between the interest of MVPDs in 

ensuring that program carriage 

complaints are brought in a timely 

manner, unaffiliated programmers’ 

interest in securing relief for alleged 

violations of the program carriage rules, 

and the interest of all parties in having 

greater procedural certainty. 

We also decline to adopt alternative 

proposals raised by commenters in the 

record because we find that none would 

provide greater certainty to parties and 

adjudicators. First, Independent 

Programmers oppose our proposal, 

asserting that instead we should revise 

the statute of limitations to permit 

claims submitted within one year of the 

date that a programmer becomes aware, 

or should have become aware through 

the exercise of reasonable diligence, of 

an alleged program carriage violation. 

They assert that MVPDs often ‘‘do not 

clearly decline or refuse carriage 

proposals’’ during negotiations, making 

it difficult to determine when a denial 

of carriage occurs. However, given the 

inherent uncertainty in determining 

whether and when a potential 

complainant knew or should have 

known of an alleged violation of the 

program carriage rules, we agree with 

NCTA and AT&T that this option would 

not provide greater certainty and finality 

to the parties. Independent 

Programmers also assert that limiting 

the third prong to instances where a 

contract does not exist opens the door 

for MVPD misconduct in pre- or postoffer renewal negotiations. However, as 

noted in the FNPRM, our intent is that 

this revised third prong will 

‘‘encompass instances where an MVPD 

refuses to renew or to negotiate for 

renewal of a contract.’’ Accordingly, we 

revise the rule to make clear that the 

third prong also applies in such 

instances. Other commenters do not 

directly oppose revising the third prong 

as proposed, but assert that if we were 

to do so, we should adopt a new fourth 

prong that would run from the date that 

a potential complainant learns that a 

contractual right has been exercised in 

a discriminatory manner by an MVPD. 

Commenters supporting this proposal 

contend that such a fourth prong is 

necessary because a contract provision 

may be consistent with the rules at the 

time it is entered into, but subsequently 

may be exercised by an MVPD in a 

manner that is unlawfully 

discriminatory. We decline to adopt this 

proposal. We agree with Comcast that 

such a proposal, if adopted, would 

create ‘‘ongoing uncertainty and 

litigation risk for material decisions 

[MVPDs] make pursuant to existing 

agreements,’’ and would fail to provide 

finality to the parties as virtually any 

conduct by an MVPD during the course 

of a carriage agreement could become 

the basis for a claim of allegedly 

impermissible discrimination. We also 

find merit in Comcast’s assertion that 

allowing claims based on an MVPD’s 

exercise (or non-exercise) of rights that 

a programmer has agreed to 

contractually would deprive the MVPD 

of the ‘‘benefit of its bargain.’’ 

We also reject beIN’s proposal that we 

amend the rules so that the one-year 

period is separately triggered by each 

materially different offer made by an 

unaffiliated programmer to a vertically 

integrated MVPD. beIN contends that 

this would reflect the reality that 

program carriage negotiations often run 

longer than a single calendar year, and 

thus a programmer absent such an 

amendment may feel that it needs to 

resort to filing a program carriage 

complaint before necessary. However, 

we are persuaded that such a rule 

appears to give programmers the 

unilateral power to restart the 

limitations period at any point by 

making a new offer to an MVPD on 

whose platform they are seeking 

carriage. Thus, we find that such a rule 

81808 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

would be administratively unworkable 

and be susceptible to gaming by 

programmers seeking carriage. 

We also conclude that determining 

when an MVPD has denied or failed to 

acknowledge a request for carriage or a 

request to negotiate for carriage is an 

inherently fact-specific exercise and, 

therefore, such a determination should 

be made on a case-by-case basis. beIN 

asks that we amend the rule so that ‘‘the 

third prong of the statute of limitations 

does not begin to run until the vertically 

integrated MVPD provides a written and 

substantiated rejection of the 

unaffiliated programmer’s carriage offer 

or request to negotiate.’’ beIN suggests 

that such a rule is necessary to 

encourage MVPDs to ‘‘be responsive to 

the offers and requests of unaffiliated 

programmers’’ and to provide clarity 

about where such programmers stand in 

carriage negotiations. To the extent that 

it may be unclear whether an MVPD has 

denied or failed to respond to a request 

for carriage or to negotiate for carriage, 

we agree with commenters who assert 

that it would be appropriate for a 

programmer to request an answer by a 

reasonable date, after which it may 

consider an MVPD’s failure to respond 

to constitute a denial of its request for 

purposes of triggering the third prong of 

the statute of limitations. We are not 

persuaded, however, that MVPDs 

should be required to substantiate in 

writing their denial of a request for 

carriage or to negotiate for carriage in 

order to trigger the third prong, as beIN 

requests. Because, as noted, an MVPD’s 

failure to respond to a carriage request 

within a reasonable date specified by 

the programmer would be deemed a 

denial of such request, we find that 

requiring MVPDs to provide denials in 

writing is unnecessary and that the 

burdens imposed by such a requirement 

would outweigh any purported benefits. 

Finally, we adopt our proposal to 

amend the parallel prongs in the 

statutes of limitations for program 

access, OVS, and good-faith 

retransmission consent complaints so 

that they run from the date that a 

potential defendant has denied or failed 

to acknowledge an offer or a request to 

negotiate, rather than from the date a 

potential complainant provides notice 

of its intent to file on that basis. Every 

commenter who addressed this proposal 

voiced support for maintaining 

consistency between the statutes of 

limitations for program carriage, 

program access, OVS, and good-faith 

retransmission consent complaints, and 

also ensures a finite limitations period. 

Part 76 ALJ Initial Decision Effective 

Date and Review Procedures. We also 

adopt our proposal to harmonize the 

procedures governing the effective date 

and review of initial ALJ decisions in 

program carriage, program access, and 

OVS proceedings with the generally 

applicable procedures in part 1 of the 

Commission’s rules. In practice, this 

means that rather than taking immediate 

effect and remaining in effect pending 

Commission review, ALJ initial 

decisions in these contexts will not take 

effect for at least 50 days following 

release and will be stayed automatically 

upon the filing of exceptions. We find 

that this action will simplify and 

streamline the Commission’s 

procedures, which in turn will reduce 

uncertainty and confusion for both 

parties and adjudicators. Further, we 

agree with Comcast and AT&T that this 

action will benefit consumers by 

avoiding ‘‘carriage whipsaw’’ in the 

event that an ALJ initial decision 

mandating carriage is reversed by the 

Commission. 

Although programmers express 

concern that any additional delays in 

implementing ALJ initial decisions 

would harm unaffiliated programmers, 

we disagree that this concern is best 

remedied by abandoning our proposal. 

Specifically, Independent Programmers 

contend that further delaying an order 

for mandatory carriage amplifies the 

harms to programmers by extending the 

length of time during which their 

programming is not carried. 

Independent Programmers further 

suggest that delaying the effectiveness of 

an ALJ initial decision pending appeal 

would incentivize MVPDs to pursue 

frivolous appeals for the purpose of 

delay. We are not persuaded that the 

potential harms to programmers from 

delaying the effectiveness of ALJ initial 

decisions justify retaining the existing 

effective date and review procedures. As 

noted by AT&T and Comcast, the rules 

provide that if the Commission upholds 

a mandatory carriage decision that is 

stayed pending review in certain 

instances, the MVPD will be required to 

carry the relevant programming for an 

additional period of time equal to the 

length of the delay caused by the 

review. Further, the Commission 

generally has the discretion to ‘‘order 

appropriate remedies’’ upon completion 

of program carriage proceedings. We 

find that these remedies adequately 

address the potential harm to 

unaffiliated programmers from delaying 

the effectiveness of ALJ initial decisions 

pending appeal. 

Recognizing ‘‘the logic’’ in 

harmonizing the part 76 review 

procedures, but expressing concern 

about the effect of prolonged program 

carriage disputes on unaffiliated 

programmers, AMC Networks (AMCN) 

proposes that the Commission adopt a 

six-month ‘‘shot clock’’ for the 

Commission to review and issue an 

order upholding or overturning an ALJ 

initial decision when a party seeks 

review. We note that no other 

commenters addressed AMCN’s 

proposal. Although the Commission is 

under no statutory obligation to review 

ALJ initial decisions within a specified 

timeframe, we agree with AMCN that 

such a timeframe would serve the 

public interest by limiting the harms to 

those programmers with finite litigation 

resources and expediting the resolution 

of complaints. We, therefore, establish a 

180-day aspirational shot-clock for 

circulating to the Commission a 

proposed ruling on review of an initial 

ALJ decision in program access, 

program carriage, and OVS proceedings 

that commences from the date that an 

aggrieved party appeals such initial 

decision. We believe that creating this 

aspirational shot-clock will establish 

clearer expectations for all parties 

involved and facilitate prompt review of 

ALJ initial decisions. As in other 

contexts where the Commission has 

established such shot clocks, ‘‘we 

intend to apply it in the ordinary course 

and only anticipate suspending it under 

special circumstances.’’ 

Other Proposals. Standstill Rule. We 

decline to reimpose the standstill 

provision in the program carriage rules, 

as requested by beIN. In 2013, the 

Second Circuit vacated this provision 

without prejudice, which provides that 

‘‘[a] program carriage complainant 

seeking renewal of an existing 

programming contract may file a 

petition along with its complaint 

requesting a temporary standstill of the 

price, terms, and other conditions of the 

existing programming contract pending 

resolution of the complaint.’’ The 

Second Circuit found that the public did 

not have adequate notice under the APA 

when the Commission adopted the 

provision. beIN asks that we initiate a 

notice-and-comment rulemaking to 

readopt this provision consistent with 

the APA. Comcast opposes this request, 

asserting that such a rule would be 

inconsistent with the goal of 

expeditious resolution of program 

carriage complaints. Because the 

absence of explicit standstill procedures 

in the program carriage rules does not 

preclude parties from filing a request for 

temporary injunctive relief with the 

Commission, we find it unnecessary to 

pursue readopting the standstill rule at 

this time. As the rule was vacated by the 

Second Circuit, we will take this 

opportunity to delete the standstill 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 81809 

provision, § 76.1302(k), from the text of 

the CFR. 

2011 Proposals. We decline to address 

any of the remaining program carriage 

proposals put forth in the 2011 Program 

Carriage NPRM at this time, but may 

consider them in a future order. As 

content and speaker neutral regulations 

on protected speech, the program 

carriage rules must advance an 

important government interest—here, 

fair competition and a diversity of 

voices in the video market—and be 

narrowly tailored to advance that 

interest. The Commission has recently 

found that the video programming 

market has vastly changed in the past 

decade. Congress enacted section 616 to 

promote competition in the marketplace 

at a time when most Americans had 

access to only a single MVPD and their 

local broadcast stations for video 

programming. Today, most Americans 

have access to at least three MVPDs, in 

addition to broadcast and online video 

distributor (OVD) offerings. Consumers 

now have a competitive choice of 

multiple delivery systems offering more 

programming options of more diverse 

types from more diverse sources than 

was envisioned when the 1992 Cable 

Act was enacted nearly 30 years ago. 

Significantly, in 2013, the last time the 

program carriage statute was considered 

in federal court, the Second Circuit 

observed that ‘‘there is no denying that 

the video programming industry is 

dynamic and that the level of 

competition has rapidly increased in the 

last two decades.’’ The court elaborated 

that in light of these changes ‘‘some of 

the Cable Act’s broad prophylactic rules 

may no longer be justified’’ and that it 

considered the ‘‘possibility more real 

than speculative’’ that developments in 

the market would erode the justification 

for the program carriage regime. 

Commenters disagree starkly on the 

degree of competition and vertical 

integration in today’s video 

programming market and the need for 

these proposals. On one hand, MVPDs 

assert that competition is at an all-time 

high in the video programming market 

as a result of the advent of alternative 

video programming options since the 

passage of the 1992 Cable Act, and 

therefore generally oppose the adoption 

of any additional program carriage rules. 

On the other hand, programmers 

contend that MVPDs retain outsized 

market power in the video marketplace 

and thus have the ability to engage in 

behavior detrimental to programmers. 

Accordingly, programmers voice 

support for several of the 2011 

proposals that they claim would create 

a more competitive video programming 

market, including: Adopting an antiretaliation rule; allowing for the award 

of damages in successful program 

carriage complaints; implementing 

limited automatic discovery at the 

prima facie stage; shifting the burden of 

proof after the prima facie stage; and 

applying a good-faith negotiation rule to 

vertically integrated MVPDs in program 

carriage negotiations. Given the lack of 

consensus in the record, we are not 

persuaded that this procedure-focused 

proceeding is the appropriate vehicle 

through which to fully consider these 

proposals that, if adopted, would 

substantially alter the existing program 

carriage framework. Therefore, we 

decline to address these proposals at 

this time and instead may consider 

them in a future order. 

Other Proposals. Commenters urge 

that we consider broader amendments 

to the program carriage rules to address, 

among other things, the imposition of 

most favored nation clauses by MVPDs, 

the challenges faced by smaller stations 

seeking to obtain carriage on virtual 

MVPDs (vMVPDs), and the effect of the 

retransmission consent rules on the 

program carriage market. We concur 

with those commenters who suggest that 

these other proposals fall outside the 

scope of this narrow procedure-focused 

proceeding, and therefore we decline to 

consider those proposals here. 

Procedural Matters. Final Regulatory 

Flexibility Analysis. As required by the 

Regulatory Flexibility Act of 1980, as 

amended (RFA), the Commission has 

prepared a Final Regulatory Flexibility 

Analysis (FRFA) relating to this Order. 

The FRFA is set forth in Appendix B of 

the Report and Order. 

Paperwork Reduction Act Analysis. 

This document does not contain new or 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. In addition, therefore, it 

does not contain any new or modified 

information collection burden for small 

business concerns with fewer than 25 

employees, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Congressional Review Act. The 

Commission has determined, and the 

Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget 

concurs, that this rule is ‘‘non-major’’ 

under the Congressional Review Act, 5 

U.S.C. 804(2). The Commission will 

send a copy of this Report & Order to 

Congress and the Government 

Accountability Office pursuant to 5 

U.S.C. 801(a)(1)(A). 

Final Regulatory Flexibility Act 

Analysis. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

FNPRM in this proceeding. The 

Commission sought written public 

comment on the proposals in the 

FNPRM, including comment on the 

IRFA. We received no comments 

specifically directed toward the IRFA. 

This present Final Regulatory Flexibility 

Analysis (FRFA) conforms to the RFA. 

Need for, and Objective of, the Report 

and Order. In this Report and Order, we 

adopt changes to the rules governing the 

resolution of program carriage disputes 

between video programming vendors 

and multichannel video programming 

distributors (MVPDs). Specifically, we 

amend the statute of limitations for 

program carriage complaints to make 

clear that the third triggering event 

applies only when a party seeks renewal 

of an existing contract or when there is 

not an existing program carriage 

contract or contract offer, and a 

defendant MVPD has denied or failed to 

acknowledge either a request for 

carriage or a request to negotiate for 

program carriage. This third prong of 

the program carriage statute of 

limitations originally contained similar 

limiting language concerning an 

unreasonable refusal to deal that 

appears to have been inadvertently 

stricken by the Commission in 1994. 

The Commission has previously 

expressed concern that without that 

language this provision could be read to 

mean that a complaint would be timely 

within one year of the date on which a 

complainant notified the defendant 

MVPD of its intention to file a 

complaint, regardless of when the actual 

violation of the rules had occurred, 

undermining the fundamental purpose 

of a statute of limitations. For 

consistency, we similarly amend 

parallel provisions in the statutes of 

limitations for filing program access, 

open video system (OVS), and goodfaith retransmission consent complaints 

so that they run from the date that a 

potential defendant denied an offer or a 

request to negotiate, rather than from 

the date a potential complainant 

provides notice of its intent to file on 

that basis. We find that these changes 

will help ensure an expeditious program 

access, program carriage, retransmission 

consent, and OVS complaint process 

and provide additional clarity to both 

potential complainants and defendants, 

as well as adjudicators. 

We also revise the effective date and 

review procedures for initial decisions 

issued by an administrative law judge 

(ALJ) in program carriage, program 

access, and OVS proceedings to make 

them consistent with the Commission’s 

81810 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

generally applicable procedures. In 

practice, this means that rather than 

taking immediate effect and remaining 

in effect pending review, ALJ initial 

decisions in these contexts will not take 

effect for at least 50 days following 

release and will be stayed automatically 

upon the filing of exceptions. As 

discussed fully in the FNPRM, the 

incongruous provisions concerning the 

effective date and review procedures for 

ALJ initial decisions in parts 76 and 1 

of our rules have caused confusion for 

both parties and adjudicators and can 

create inconsistent outcomes pending 

appeal. We find that this action will 

simplify and streamline the 

Commission’s procedures, which will 

reduce uncertainty and confusion for 

both parties and adjudicators. The rest 

of the existing rules governing the 

resolution of program carriage, program 

access, OVS, and good-faith 

retransmission consent complaints 

remain unchanged by this Report and 

Order. 

Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA. There were no comments filed in 

response to the IRFA. 

Response to comments by the Chief 

Counsel for Advocacy of the Small 

Business Administration. Pursuant to 

the Small Business Jobs Act of 2010, 

which amended the RFA, the 

Commission is required to respond to 

any comments filed by the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA), and to 

provide a detailed statement of any 

change made to the proposed rules as a 

result of those comments. 

The Chief Counsel did not file any 

comments in response to the proposed 

rules in this proceeding. 

Description and Estimate of the 

Number of Small Entities to Which 

Rules Will Apply. The RFA directs 

agencies to provide a description of, and 

where feasible, an estimate of the 

number of small entities that may be 

affected by the proposed rules, if 

adopted. The RFA generally defines the 

term ‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’ 

‘‘small organization,’’ and ‘‘small 

governmental jurisdiction.’’ In addition, 

the term ‘‘small business’’ has the same 

meaning as the term ‘‘small business 

concern’’ under the Small Business Act. 

A small business concern is one which: 

(1) Is independently owned and 

operated; (2) is not dominant in its field 

of operation; and (3) satisfies any 

additional criteria established by the 

SBA. Below, we provide a description of 

such small entities, as well as an 

estimate of the number of such small 

entities, where feasible. 

Cable Companies and Systems (Rate 

Regulation Standard). The Commission 

has also developed its own small 

business size standards for the purpose 

of cable rate regulation. Under the 

Commission’s rules, a ‘‘small cable 

company’’ is one serving 400,000 or 

fewer subscribers nationwide. Industry 

data indicates that, of the 777 cable 

companies currently operating in the 

United States, 766 serve 400,000 or 

fewer subscribers. Additionally, under 

the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. According to 

industry data, there are currently 4,336 

active cable systems in the United 

States. Of this total, 3,650 cable systems 

have fewer than 15,000 subscribers. 

Thus, the Commission believes that the 

vast majority of cable companies and 

cable systems are small entities. 

Cable System Operators (Telecom Act 

Standard). The Communications Act of 

1934, as amended, also contains a size 

standard for small cable system 

operators, which is ‘‘a cable operator 

that, directly or through an affiliate, 

serves in the aggregate fewer than one 

percent of all subscribers in the United 

States and is not affiliated with any 

entity or entities whose gross annual 

revenues in the aggregate exceed 

$250,000,000.’’ As of 2019, there were 

approximately 48,646,056 basic cable 

video subscribers in the United States. 

Accordingly, an operator serving fewer 

than 486,460 subscribers shall be 

deemed a small operator if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that all but five cable operators are 

small entities under this size standard. 

We note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million. 

Therefore, we are unable at this time to 

estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

Direct Broadcast Satellite (DBS) 

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic dish 

antenna at the subscriber’s location. For 

the purposes of economic classification, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in the Wired 

Telecommunications Carriers industry. 

The Wired Telecommunications 

Carriers industry comprises 

establishments primarily engaged in 

operating and/or providing access to 

transmission facilities and infrastructure 

that they own and/or lease for the 

transmission of voice, data, text, sound, 

and video using wired 

telecommunications networks. 

Transmission facilities may be based on 

a single technology or combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution; and wired broadband 

internet services. The SBA determines 

that a wireline business is small if it has 

fewer than 1,500 employees. Economic 

census data for 2012 indicate that 3,117 

wireline companies were operational 

during that year. Of that number, 3,083 

operated with fewer than 1,000 

employees. Based on that data, we 

conclude that the majority of wireline 

firms are small under the applicable 

standard. However, currently only two 

entities provide DBS service, which 

requires a great deal of capital for 

operation: DIRECTV (owned by AT&T) 

and DISH Network. According to 

industry data, DIRECTV and DISH serve 

14,831,379 and 8,957,469 subscribers 

respectively, and count the third and 

fourth most subscribers of any 

multichannel video distribution system 

in the U.S. Given the capital required to 

operate a DBS service, its national 

scope, and the approximately one-third 

share of the video market controlled by 

these two companies, we presume that 

neither would qualify as a small 

business. 

Motion Picture and Video Production. 

This industry comprises establishments 

primarily engaged in producing, or 

producing and distributing motion 

pictures, videos, television programs, or 

television commercials. The SBA has 

established a small size standard for 

businesses operating this industry, 

which consists of all such firms with 

gross annual receipts of $35 million 

dollars or less. U.S. Census Bureau data 

for 2012 show that there were 8203 

firms operated for the entire year. Of 

that number, 8,075 had annual receipts 

of less than $25 million per year. Based 

on this data, we conclude that the 

majority of firms operating in this 

industry are small. 

Motion Picture and Video 

Distribution. This industry ‘‘comprises 

establishments primarily engaged in 

acquiring distribution rights and 

distributing film and video productions 

to motion picture theaters, television 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 81811 

networks and stations, and exhibitors.’’ 

The Small Business Administration has 

developed a size standard for firms 

operating in this industry, which is that 

companies whose annual receipts are 

$34.5 million or less are considered 

small. U.S. Census Bureau data for 2012 

indicate there were 307 firms that were 

operational throughout the entire year. 

Of those, 294 firms had annual receipts 

of less than $25 million. Based on this 

data, we conclude that a majority of 

firms operating in the motion picture 

and video distribution industry are 

small. 

Television Broadcasting. This 

Economic Census category ‘‘comprises 

establishments primarily engaged in 

broadcasting images together with 

sound.’’ These establishments operate 

television broadcast studios and 

facilities for the programming and 

transmission of programs to the public. 

These establishments also produce or 

transmit visual programming to 

affiliated broadcast television stations, 

which in turn broadcast the programs to 

the public on a predetermined schedule. 

Programming may originate in their own 

studio, from an affiliated network, or 

from external sources. The SBA has 

created the following small business 

size standard for such businesses: those 

having $41.5 million or less in annual 

receipts. The 2012 Economic Census 

reports that 751 firms in this category 

operated in that year. Of this number, 

656 had annual receipts of less than $25 

million, 25 had annual receipts ranging 

from $25 million to $49,999,999, and 70 

had annual receipts of $50 million or 

more. Based on this data, we estimate 

that the majority of commercial 

television broadcasters are small entities 

under the applicable SBA size standard. 

Additionally, the Commission has 

estimated the number of licensed 

commercial television stations to be 

1374. Of this total, 1,282 stations (or 

94.2%) had revenues of $38.5 million or 

less in 2018, according to Commission 

staff review of the BIA Kelsey Inc. 

Media Access Pro Television Database 

(BIA) on April 15, 2019, and therefore 

these licensees qualify as small entities 

under the SBA definition. In addition, 

the Commission estimates the number 

of licensed noncommercial educational 

(NCE) television stations to be 388. The 

Commission does not compile and does 

not have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

We note, however, that in assessing 

whether a business concern qualifies as 

‘‘small’’ under the above definition, 

business (control) affiliations must be 

included. Our estimate, therefore, likely 

overstates the number of small entities 

that might be affected by our action, 

because the revenue figure on which it 

is based does not include or aggregate 

revenues from affiliated companies. In 

addition, another element of the 

definition of ‘‘small business’’ requires 

that an entity not be dominant in its 

field of operation. We are unable at this 

time to define or quantify the criteria 

that would establish whether a specific 

television broadcast station is dominant 

in its field of operation. Accordingly, 

the estimate of small businesses to 

which rules may apply does not exclude 

any television station from the 

definition of a small business on this 

basis and is therefore possibly overinclusive. 

There are also 387 Class A stations. 

Given the nature of these services, the 

Commission presumes that all of these 

stations qualify as small entities under 

the applicable SBA size standard. In 

addition, there are 1,892 LPTV stations 

and 3,621 TV translator stations. Given 

the nature of these services as secondary 

and in some cases purely a ‘‘fill-in’’ 

service, we will presume that all of 

these entities qualify as small entities 

under the above SBA small business 

size standard. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities. As 

discussed fully above, this Report and 

Order adopts revisions to the part 76 

procedural rules. These amendments do 

not create any new reporting or 

recordkeeping requirements. 

Steps Taken to Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered. The RFA requires an 

agency to describe any significant 

alternatives that it has considered in 

developing its approach, which may 

include the following four alternatives 

(among others): ‘‘(1) the establishment 

of differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance an reporting requirements 

under the rule for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 

The Report and Order, as stated in 

Section A of this FRFA, minimizes the 

burdens associated with the resolution 

of program carriage, program access, 

OVS, and good-faith retransmission 

consent complaints by amending the 

rules governing two procedural aspects 

of the complaint process. First, we 

clarify that the third prong of the statute 

of limitations for all four types of 

complaints is triggered by an MVPD’s 

denial or failure to acknowledge either 

a request for program carriage or a 

request to negotiate for program 

carriage, rather than delivery of a notice 

of intent to file a complaint on that 

basis. Second, we amend the rules to 

provide that initial decisions by an ALJ 

in program carriage, program access, 

and OVS proceedings will be 

automatically stayed upon the filing of 

exceptions, consistent with the 

Commission’s generally applicable 

procedures. The rest of the procedures 

governing the resolution of these 

complaints—e.g., deadlines for filing 

answers and replies, adjudication 

procedures, etc.—remain unchanged. 

We find that these revisions will aid in 

the expeditious resolution of program 

access, program carriage, OVS, goodfaith retransmission consent complaints 

consistent with the Act. These changes 

will reduce the costs associated with 

litigating program access, program 

carriage, OVS, good-faith retransmission 

consent complaints before the 

Commission by eliminating any 

confusion surrounding the statute of 

limitations in all four contexts and by 

eliminating the need to seek a stay of an 

initial decision issued by an ALJ 

pending review for program carriage, 

program access, and OVS complaints. 

This change will benefit both small and 

large entities. 

Report to Congress. The Commission 

will send a copy of the Report and 

Order, including this FRFA, in a report 

to be sent to Congress pursuant to the 

Congressional Review Act. In addition, 

the Commission will send a copy of the 

Report and Order, including this FRFA, 

to the Chief Counsel for Advocacy of the 

SBA. A copy of the Report and Order 

and FRFA (or summaries thereof) will 

also be published in the Federal 

Register. 

Accordingly, it is ordered that, 

pursuant to the authority contained in 

sections 1, 4(i), 4(j), 303(r), 325, 616, 

628, and 653 of the Communications 

Act of 1934, as amended, 47 U.S.C. 151, 

154(i), 154(j), 303(r), 325, 536, 548, and 

573, this Report and Order is adopted. 

It is further ordered that the 

Commission’s rules are hereby amended 

as set forth in Appendix A of the Report 

and Order and such amendments shall 

be effective 30 days after publication in 

the Federal Register. It is further 

ordered that the Commission’s 

Consumer and Governmental Affairs 

Bureau, Reference Information Center, 

shall send a copy of this Report and 

Order, including the Final Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

81812 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

Business Administration. It is further 

ordered that the Commission will send 

a copy of this Report and Order in a 

report to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act (CRA). It is 

further ordered that, should no petitions 

for reconsideration or petitions for 

judicial review be timely filed, MB 

Docket No. 20–70 shall be terminated 

and its docket closed. 

List of Subjects in 47 CFR Part 76 

Administrative practice and 

procedure, Cable Television, 

Communications, Telecommunications. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

For the reasons set forth in the 

preamble, the Federal Communications 

Commission amends part 76 of title 47 

of the Code of Federal Regulations as 

follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 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. 

■ 2. Amend § 76.10 by revising 

paragraph (c)(2) to read as follows: 

§ 76.10 Review. 

* * * * * 

(c) * * * 

(2) Any party to a proceeding under 

this part aggrieved by any decision on 

the merits by an administrative law 

judge may file an appeal of the decision 

directly with the Commission, in 

accordance with §§ 1.276(a) and 

1.277(a) through (c) of this chapter. 

■ 3. Amend § 76.65 by revising 

paragraph (e)(3) to read as follows: 

§ 76.65 Good faith and exclusive 

retransmission consent complaints. 

* * * * * 

(e) * * * 

(3) The television broadcast station or 

multichannel video programming 

distributor has denied, unreasonably 

delayed, or failed to acknowledge a 

request to negotiate retransmission 

consent in violation of one or more of 

the rules contained in this subpart. 

* * * * * 

■ 4. Amend § 76.1003 by revising 

paragraphs (g)(3) and (h)(1) to read as 

follows: 

§ 76.1003 Program access proceedings. 

* * * * * 

(g) * * * 

(3) A cable operator, or a satellite 

cable programming vendor or a satellite 

broadcast programming vendor has 

denied or failed to acknowledge a 

request to purchase or negotiate to 

purchase satellite cable programming, 

satellite broadcast programming, or 

terrestrial cable programming, or a 

request to amend an existing contract 

pertaining to such programming 

pursuant to § 76.1002(f), allegedly in 

violation of one or more of the rules 

contained in this subpart. 

(h) * * * 

(1) Remedies authorized. Upon 

completion of such adjudicatory 

proceeding, the Commission, 

Commission staff, or Administrative 

Law Judge shall order appropriate 

remedies, including, if necessary, the 

imposition of damages, and/or the 

establishment of prices, terms, and 

conditions for the sale of programming 

to the aggrieved multichannel video 

programming distributor. Such order 

shall set forth a timetable for 

compliance. Such order issued by the 

Commission or Commission staff shall 

be effective upon release. See 

§§ 1.102(b) and 1.103 of this chapter. 

The effective date of such order issued 

by the Administrative Law Judge is set 

forth in § 1.276(d) of this chapter. 

* * * * * 

■ 5. Amend § 76.1302 by: 

■ a. Revising paragraphs (h)(1) and (3) 

and (j)(1); 

■ b. Removing paragraph (k). 

The revisions read as follows: 

§ 76.1302 Carriage agreement 

proceedings. 

* * * * * 

(h) * * * 

(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 

section; or 

* * * * * 

(3) In instances where there is no 

existing contract or an offer for carriage, 

or in instances where a party seeks 

renewal of an existing contract, the 

multichannel video programming 

distributor has denied or failed to 

acknowledge a request by a video 

programming vendor for carriage or to 

negotiate for carriage of that video 

programming vendor’s programming on 

defendant’s distribution system, 

allegedly in violation of one or more of 

the rules contained in this section. 

* * * * * 

(j) * * * 

(1) Remedies authorized. Upon 

completion of such adjudicatory 

proceeding, the Commission, 

Commission staff, or Administrative 

Law Judge 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. The 

effective date of such order issued by 

the Administrative Law Judge is set 

forth in § 1.276(d) of this chapter. Such 

order issued by the Commission or 

Commission staff shall become effective 

upon release, see §§ 1.102(b) and 1.103 

of this chapter, unless any order of 

mandatory carriage issued by the staff 

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 decision, the order for 

carriage of a video programming 

vendor’s programming will not become 

effective unless and until the decision of 

the staff is upheld by the Commission. 

If the Commission upholds the remedy 

ordered by the staff or Administrative 

Law Judge in its entirety, the defendant 

MVPD will be required to carry the 

video programming vendor’s 

programming for an additional period 

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. 

* * * * * 

■ 6. Amend § 76.1513 by revising 

paragraphs (g)(3) and (h)(1) to read as 

follows: 

§ 76.1513 Open video dispute resolution. 

* * * * * 

(g) * * * 

(3) An open video system operator has 

denied or failed to acknowledge a 

request for such operator to carry the 

complainant’s programming on its open 

video system, allegedly in violation of 

one or more of the rules contained in 

this part. 

(h) * * * 

(1) Remedies authorized. Upon 

completion of such adjudicatory 

proceeding, the Commission, 

Commission staff, or Administrative 

Law Judge shall order appropriate 

remedies, including, if necessary, the 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 81813 

requiring carriage, awarding damages to 

any person denied carriage, or any 

combination of such sanctions. Such 

order shall set forth a timetable for 

compliance. Such order issued by the 

Commission or Commission staff shall 

be effective upon release. See 

§§ 1.102(b) and 1.103 of this chapter. 

The effective date of such order issued 

by the Administrative Law Judge is set 

forth in § 1.276(d) of this chapter. 

* * * * * 

[FR Doc. 2020–26259 Filed 12–16–20; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2020–0103; 

FF09E21000 FXES11110900000 212] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding for the 

Monarch Butterfly 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12-month finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to list 

the monarch butterfly (Danaus 

plexippus plexippus) as a threatened 

species under the Endangered Species 

Act of 1973, as amended. After a 

thorough review of the best available 

scientific and commercial information, 

we find that listing the monarch 

butterfly as an endangered or threatened 

species is warranted but precluded by 

higher priority actions to amend the 

Lists of Endangered and Threatened 

Wildlife and Plants. We will develop a 

proposed rule to list the monarch 

butterfly as our priorities allow. 

However, we ask the public to submit to 

us any new information relevant to the 

status of the species or its habitat at any 

time. 

DATES: The finding in this document 

was made on December 17, 2020. 

ADDRESSES: A detailed description of 

the basis for this finding is available on 

the internet at http://

www.regulations.gov under docket 

number FWS–R3–ES–2020–0103. 

Supporting information used to 

prepare this finding is available for 

public inspection, by appointment, 

during normal business hours, by 

contacting the person specified under 

FOR FURTHER INFORMATION CONTACT. 

Please submit any new information, 

materials, comments, or questions 

concerning this finding to the person 

specified under FOR FURTHER

INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Hosler, Regional Listing 

Coordinator, Ecological Services, Great 

Lakes Region, telephone: 517–351–6326, 

email: monarch@fws.gov. If you use a 

telecommunications device for the deaf 

(TDD), please call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Under section 4(b)(3)(B) of the 

Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

we are required to make a finding 

whether or not a petitioned action is 

warranted within 12 months after 

receiving any petition that we have 

determined contains substantial 

scientific or commercial information 

indicating that the petitioned action 

may be warranted (‘‘12-month finding’’). 

We must make a finding that the 

petitioned action is (1) not warranted, 

(2) warranted, or (3) warranted but 

precluded. ‘‘Warranted but precluded’’ 

means that (a) the petitioned action is 

warranted, but the immediate proposal 

of a regulation implementing the 

petitioned action is precluded by other 

pending proposals to determine whether 

species are endangered or threatened 

species, and (b) expeditious progress is 

being made to add qualified species to 

the Lists of Endangered and Threatened 

Wildlife and Plants (Lists) and to 

remove from the Lists species for which 

the protections of the Act are no longer 

necessary. Section 4(b)(3)(C) of the Act 

requires that, when we find that a 

petitioned action is warranted but 

precluded, we treat the petition as 

though it is resubmitted on the date of 

such finding, that is, requiring that a 

subsequent finding be made within 12 

months of that date. We must publish 

these 12-month findings in the Federal 

Register. 

Summary of Information Pertaining to 

the Five Factors 

Section 4 of the Act (16 U.S.C. 1533) 

and the implementing regulations at 

part 424 of title 50 of the Code of 

Federal Regulations (50 CFR part 424) 

set forth procedures for adding species 

to, removing species from, or 

reclassifying species on the Lists (found 

in 50 CFR part 17). The Act defines 

‘‘endangered species’’ as any species 

that is in danger of extinction 

throughout all or a significant portion of 

its range (16 U.S.C. 1532(6)) and 

‘‘threatened species’’ as any species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range (16 U.S.C. 1532(20)). Under 

section 4(a)(1) of the Act, a species may 

be determined to be an endangered 

species or a threatened species because 

of any of the following five factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only