§ 76.1503 Carriage of video programming providers on open video systems. ( a ) *Non-discrimination principle.* Except as otherwise permitted in applicable law or in this part, an operator of an open video system shall not discriminate among video programming providers with regard to carriage on its open video system, and its rates, terms and conditions for such carriage shall be just and reasonable and not unjustly or unreasonably discriminatory.
( b ) *Demand for carriage.* An operator of an open video system shall solicit and determine the level of demand for carriage on the system among potential video programming providers in a non-discriminatory manner. ( 1 ) *Notification.* An open video system operator shall file a “Notice of Intent” to establish an open video system, which the Commission will release in a Public Notice. The Notice of Intent must be filed via electronic mail (email) at the following address: *OVS@fcc.gov .* The subject line shall read “Open Video System Notice of Intent.” An Open Video system notice of intent will not be considered properly filed unless filed as described in this paragraph (b). This Notice of Intent shall include the following information: ( i ) A heading clearly indicating that the document is a Notice of Intent to establish an open video system;
( ii ) The name, address and telephone number of the open video system operator;
( iii ) A description of the system's projected service area;
( iv ) A description of the system's projected channel capacity, in terms of analog, digital and other type(s) of capacity upon activation of the system;
( v ) A description of the steps a potential video programming provider must follow to seek carriage on the open video system, including the name, address and telephone number of a person to contact for further information;
( vi ) The starting and ending dates of the initial enrollment period for video programming providers;
( vii ) The process for allocating the system's channel capacity, in the event that demand for carriage on the system exceeds the system's capacity; and
( viii ) A certification that the operator has complied with all relevant notification requirements under the Commission's open video system regulations concerning must-carry and retransmission consent (§ 76.1506), including a list of all local commercial and non-commercial television stations served, and a certificate of service showing that the Notice of Intent has been served on all local cable franchising authorities entitled to establish requirements concerning the designation of channels for public, educational and governmental use.
( 2 ) *Information.* An open video system operator shall provide the following information to a video programming provider within five business days of receiving a written request from the provider, unless otherwise included in the Notice of Intent: ( i ) The projected activation date of the open video system. If a system is to be activated in stages, the operator should describe the respective stages and the projected dates on which each stage will be activated;
( ii ) A preliminary carriage rate estimate;
( iii ) The information a video programming provider will be required to provide to qualify as a video programming provider, e.g., creditworthiness;
( iv ) Technical information that is reasonably necessary for potential video programming providers to assess whether to seek capacity on the open video system, including what type of customer premises equipment subscribers will need to receive service;
( v ) Any transmission or reception equipment needed by a video programming provider to interface successfully with the open video system; and
( vi ) The equipment available to facilitate the carriage of unaffiliated video programming and the electronic form(s) that will be accepted for processing and subsequent transmission through the system.
( 3 ) *Qualifications of video programming providers.* An open video system operator may impose reasonable, non-discriminatory requirements to assure that a potential video programming provider is qualified to obtain capacity on the open video system.
( c ) *One-third limit.* If carriage demand by video programming providers exceeds the activated channel capacity of the open video system, the operator of the open video system and its affiliated video programming providers may not select the video programming services for carriage on more than one-third of the activated channel capacity on such system. ( 1 ) *Measuring capacity.* For purposes of this section: ( i ) If an open video system carries both analog and digital signals, an open video system operator shall measure analog and digital activated channel capacity independently;
( ii ) Channels that an open video system is required to carry pursuant to the Commission's regulations concerning public, educational and governmental channels and must-carry channels shall be included in “activated channel capacity” for purposes of calculating the one-third of such capacity on which the open video system operator and its affiliates are allowed to select the video programming for carriage. Such channels shall not be included in the one-third of capacity on which the open video system operator is permitted to select programming where demand for carriage exceeds system capacity;
( iii ) Channels that an open video system operator carries pursuant to the Commission's regulations concerning retransmission consent shall be included in “activated channel capacity” for purposes of calculating the one-third of such capacity on which the open video system operator and its affiliates are allowed to select the video programming for carriage. Such channels shall be included in the one-third of capacity on which the open video system operator is permitted to select programming, where demand for carriage exceeds system capacity, to the extent that the channels are carried as part of the programming service of the operator or its affiliate, subject to paragraph (c)(1)(iv); and
( iv ) Any channel on which shared programming is carried shall be included in “activated channel capacity” for purposes of calculating the one-third of such capacity on which the open video system operator and its affiliates are allowed to select the video programming for carriage. Such channels shall be included in the one-third of capacity on which the open video system operator is permitted to select programming, where demand for carriage exceeds system capacity, to the extent the open video system operator or its affiliate is one of the video programming providers sharing such channel. Note to paragraph ( c
)(1)( iv
):
For example, if the open video system operator and two unaffiliated video programming providers each carry a programming service that is placed on a shared channel, the shared channel shall count as 0.33 channels against the one-third amount of capacity allocable to the open video system operator, where demand for carriage exceeds system capacity.
( 2 ) *Allocating capacity.* An operator of an open video system shall allocate activated channel capacity through a fair, open and non-discriminatory process; the process must be insulated from any bias of the open video system operator and verifiable. ( i ) If an open video system carries both analog and digital signals, an open video system operator shall treat analog and digital capacity separately in allocating system capacity.
( ii ) *Subsequent changes in capacity or demand.* An open video system operator must allocate open capacity, if any, at least once every three years, beginning three years from the date of service commencement. Open capacity shall be allocated in accordance with this section. Open capacity shall include all capacity that becomes available during the course of the three-year period, as well as capacity in excess of one-third of the system's activated channel capacity on which the operator of the open video system or its affiliate selects programming. Note 1 to paragraph ( c
)(2)( ii
):
An open video system operator will not be required to comply with the regulations contained in this section if there is no open capacity to be allocated at the end of the three year period.
Note 2 to paragraph ( c
)(2)( ii
):
An open video system operator shall be required to accommodate changes in obligations concerning public, educational or governmental channels or must-carry channels in accordance with Sections 611, 614 and 615 of the Communications Act and the regulations contained in this part.
Note 3 to paragraph ( c
)(2)( ii
):
An open video system operator shall be required to comply with the recordkeeping requirements of § 76.1712.
( iii ) *Channel sharing.* An open video system operator may carry on only one channel any video programming service that is offered by more than one video programming provider (including the operator's video programming affiliate), provided that subscribers have ready and immediate access to any such programming service. Nothing in this section shall be construed to impair the rights of programming services. Note 1 to paragraph ( c
)(2)( iii
):
An open video system operator may implement channel sharing only after it becomes apparent that one or more video programming services will be offered by multiple video programming providers. An open video system operator may not select, in advance of any duplication among video programming providers, which programming services shall be placed on shared channels.
Note 2 to paragraph ( c
)(2)( iii
):
Each video programming provider offering a programming service that is carried on a shared channel must have the contractual permission of the video programming service to offer the service to subscribers. The placement of a programming service on a shared channel, however, is not subject to the approval of the video programming service or vendor.
Note 3 to paragraph ( c
)(2)( iii
):
Ready and immediate access in this context means that the channel sharing is “transparent” to subscribers.
( iv ) *Open video system operator discretion.* Notwithstanding the foregoing, an operator of an open video system may: ( A ) Require video programming providers to request and obtain system capacity in increments of no less than one full-time channel; however, an operator of an open video system may not require video programming providers to obtain capacity in increments of more than one full-time channel;
( B ) Limit video programming providers from selecting the programming on more capacity than the amount of capacity on which the system operator and its affiliates are selecting the programming for carriage; and
( v ) Notwithstanding the general prohibition on an open video system operator's discrimination among video programming providers contained in paragraph (a) of this section, a competing, in-region cable operator or its affiliate(s) that offer cable service to subscribers located in the service area of an open video system shall not be entitled to obtain capacity on such open video system, except where a showing is made that facilities-based competition will not be significantly impeded.
( 3 ) Nothing in this paragraph shall be construed to limit the number of channels that the open video system operator and its affiliates, or another video programming provider, may offer to provide directly to subscribers. Co-packaging is permissible among video programming providers, but may not be a condition of carriage. Video programming providers may freely elect whether to enter into co-packaging arrangements.
Note to paragraph ( c
)(3):
Any video programming provider on an open video system may co-package video programming that is selected by itself, an affiliated video programming provider and/or unaffiliated video programming providers on the system.
[61 FR 28708, June 5, 1996, as amended at 61 FR 43176, Aug. 21, 1996; 62 FR 26239, May 13, 1997; 65 FR 377, Jan. 5, 2000; 65 FR 53617, Sept. 5, 2000; 67 FR 13235, Mar. 21, 2002; 83 FR 61136, Nov. 28, 2018]