Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30639 

1The leased access rules are in Subpart N of Part 

76, which was listed in the Media Modernization 

Public Notice as one of the principal rule parts that 

pertains to media entities and that is the subject of 

the media modernization review. 

Access Stimulation, it shall within 45 

days of commencing Access 

Stimulation, or by [date 45 days after 

effective date of the final rule], 

whichever is later, notify in writing all 

Intermediate Access Providers which it 

subtends and Interexchange Carriers 

with which it does business of the 

following: 

(1) That it is a local exchange carrier 

engaged in Access Stimulation; 

(2) That it will either: 

(i) Obtain and pay for terminating 

access services from Intermediate 

Access Providers for such traffic as of 

that date; or 

(ii) Offer direct-trunked transport 

service to any affected Interexchange 

Carrier (or to an Intermediate Access 

Provider of the Interexchange Carrier’s 

choosing); and 

(3) To the extent that the local 

exchange carrier engaged in Access 

Stimulation intends to comply with 

paragraph (a) of this section through 

electing the option described in 

paragraph (a)(2) of this section, 

designate where on its network it will 

accept the requested direct connection. 

(c) Nothing in this section creates an 

independent obligation for a local 

exchange carrier to construct new 

facilities other than, as necessary, 

adding switch trunk ports. 

(d) In the event that an Intermediate 

Access Provider receives notice under 

paragraph (b) of this section that a local 

exchange carrier engaged in Access 

Stimulation will be obtaining and 

paying for terminating access service 

from such Intermediate Access Provider, 

an Intermediate Access Provider shall 

not bill Interexchange Carriers 

terminating tandem switching and 

terminating switched transport access 

for traffic bound for such local exchange 

carrier but, instead bill such local 

exchange carrier for such services. 

(e) Notwithstanding any provision of 

this section, any carrier that is not itself 

engaged in Access Stimulation, as that 

term is defined in § 61.3(bbb) of this 

chapter, but serves as an Intermediate 

Access Provider with respect to traffic 

bound for an access-stimulating local 

exchange carrier, shall not itself be 

deemed a local exchange carrier 

engaged in Access Stimulation or be 

affected by this rule other than 

paragraph (d) of this section. 

■ 4. Amend § 51.917 by revising 

paragraph (c) to read as follows: 

§ 51.917 Revenue recovery for Rate-ofReturn Carriers. 

* * * * * 

(c) Adjustment for Access Stimulation 

activity. 2011 Rate-of-Return Carrier 

Base Period Revenue shall be adjusted 

to reflect the removal of any increases 

in revenue requirement or revenues 

resulting from Access Stimulation 

activity the Rate-of-Return Carrier 

engaged in during the relevant 

measuring period. A Rate-of-Return 

Carrier should make this adjustment for 

its initial July 1, 2012, tariff filing, but 

the adjustment may result from a 

subsequent Commission or court ruling. 

* * * * * 

[FR Doc. 2018–13699 Filed 6–28–18; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket Nos. 07–42 and 17–105; FCC 

18–80] 

Leased Commercial Access; 

Modernization of Media Regulation 

Initiative 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission seeks to update its leased 

access rules as part of its Modernization 

of Media Regulation Initiative. First, the 

Commission tentatively concludes that 

it should vacate its 2008 Leased Access 

Order, which the U.S. Court of Appeals 

for the Sixth Circuit has stayed for a 

decade in conjunction with several 

judicial appeals of the order. Second, 

the Commission seeks input on the state 

of the leased access marketplace 

generally and invites comment on ways 

to modernize its existing leased access 

rules. 

DATES: Comments are due on or before 

July 30, 2018; reply comments are due 

on or before August 13, 2018. 

ADDRESSES: You may submit comments, 

identified by MB Docket Nos. 18–80 and 

17–105, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s website: http://

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: (202) 418–0530 or TTY: (202) 

418–0432. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Diana Sokolow, 

Diana.Sokolow@fcc.gov, of the Policy 

Division, Media Bureau, (202) 418– 

2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

Notice of Proposed Rulemaking, FCC 

18–80, adopted on June 7, 2018 and 

released on June 8, 2017. The full text 

is available for public inspection and 

copying during regular business hours 

in the FCC Reference Center, Federal 

Communications Commission, 445 12th 

Street SW, Room CY–A257, 

Washington, DC 20554. This document 

will also be available via ECFS at http:// 

fjallfoss.fcc.gov/ecfs/. Documents will 

be available electronically in ASCII, 

Microsoft Word, and/or Adobe Acrobat. 

Alternative formats are available for 

people with disabilities (Braille, large 

print, electronic files, audio format), by 

sending an email to fcc504@fcc.gov or 

calling the Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Synopsis 

1. In this Further Notice of Proposed 

Rulemaking (FNPRM), we seek to 

update our leased access rules as part of 

the Commission’s Modernization of 

Media Regulation Initiative. In response 

to the public notice initiating the media 

modernization proceeding, some 

commenters made proposals related to 

the Commission’s leased access rules, 

which require cable operators to set 

aside channel capacity for commercial 

use by unaffiliated video programmers.1

By addressing these proposals in this 

FNPRM, we advance our efforts to 

modernize our media regulations and 

remove unnecessary requirements that 

can impede competition and innovation 

in the media marketplace. 

2. We tentatively conclude that we 

should vacate the 2008 Leased Access 

Order, including the Further Notice of 

Proposed Rulemaking issued in 

conjunction with that order. This action 

would enable the Commission to clean 

up a longstanding backlog and position 

us to freshly consider new revisions to 


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

2 If we vacate the 2008 Leased Access Order, we 

will subsequently dismiss as moot the NCTA FCC 

Stay Request (asking the Commission to stay the 

2008 Leased Access Order) and the TVC Recon 

Petition (seeking reconsideration of the 2008 Leased 

Access Order). 

3The Commission currently adjudicates an 

average of less than one leased access dispute per 

year. 

4The 2008 Leased Access Order distinguished 

between ‘‘requests for information’’ and ‘‘proposals 

for leased access.’’ Had that order gone into effect, 

it would have provided non-small cable systems 

with three days to respond to a request for 

information, whereas small cable systems would 

have had 30 days to respond to a bona fide request 

for information. All cable systems, regardless of 

size, would have been required to respond to bona 

fide leased access proposals within 10 days of 

receipt. 

5For purposes of the leased access rules, a small 

system is defined as either (i) a system that qualifies 

as small under § 76.901(c) of the Commission’s 

rules and is owned by a small cable company as 

defined in § 76.901(e); or (ii) a system that has been 

granted special relief. 

the leased access rules.2 Due to the 

Sixth Circuit proceedings as well as the 

OMB disapproval, the rule changes 

contained in the 2008 Leased Access 

Order never went into effect. The leased 

access rules that are currently in effect, 

and that currently appear in the Code of 

Federal Regulations, are those that were 

in existence prior to the 2008 Leased 

Access Order. Accordingly, vacating the 

2008 Leased Access Order would not 

have any impact on any party’s 

compliance with or expectations 

concerning the leased access 

requirements. 

3. In making this tentative conclusion, 

we note the concerns the Sixth Circuit 

expressed in its Stay Order regarding 

the leased access rules that were 

adopted in the 2008 Leased Access 

Order, including ‘‘that NCTA has raised 

some substantial appellate issues.’’ The 

Sixth Circuit determined that a stay of 

the 2008 Leased Access Order was 

justified due to ‘‘[t]he balance of the 

harms and the public interest, as well as 

NCTA’s potential of success on the 

merits.’’ The Sixth Circuit also noted 

NCTA’s argument that cable operators 

would suffer irreparable harm absent a 

stay because the new leased access rate 

formula adopted in the order would set 

leased access rates at an unreasonably 

low level, which would lead to more 

leased access requests that would 

displace other programming, ultimately 

leading to dissatisfied cable customers. 

4. Further support for our tentative 

finding that we should vacate the 2008 

Leased Access Order arises from the 

concerns about the paperwork burden 

set forth in the OMB Notice. OMB 

detailed five ways in which certain 

requirements adopted in the order were 

inconsistent with the PRA. OMB 

specifically cited the Commission’s 

failure to demonstrate the need for the 

more burdensome requirements 

adopted, its failure to demonstrate that 

it had taken reasonable steps to 

minimize the burdens, and its failure to 

provide reasonable protection for 

proprietary and confidential 

information. Some commenters in the 

media modernization proceeding agree 

with OMB that the 2008 Leased Access 

Order failed to comply with the PRA. 

5. We also tentatively find that 

vacating the 2008 Leased Access Order 

would be consistent with the goal of the 

Commission’s Modernization of Media 

Regulation Initiative to remove rules 

that are outdated or no longer justified 

by market realities. Because of the 

concerns raised in the Sixth Circuit Stay 

Order and the OMB Notice, the 

significant amount of time that has 

passed since the 2008 Leased Access 

Order was adopted and became subject 

to a stay, the significant amount of time 

that the cable industry and programmers 

have remained subject to the preexisting leased access rules during the 

pendency of the stay, and the very small 

number of leased access disputes 

brought before the Commission in 

recent years,3 we tentatively find that 

there is no sound policy basis for the 

rules adopted in the 2008 order at this 

point. For all these reasons, rather than 

proceeding with the pending judicial 

review of the 2008 Leased Access Order 

that has now been stayed for a decade, 

we tentatively conclude that a better 

approach would be for the Commission 

to vacate the 2008 Leased Access Order 

and consider potential rule revisions 

anew. 

6. We seek comment on our tentative 

conclusions. Is there any policy 

justification for not vacating the entire 

order? Is there any policy justification 

for retaining any particular rules 

adopted therein? Parties urging us not to 

vacate the entire order or particular 

rules should specify how the 

Commission should overcome both the 

judicial concerns noted in the Sixth 

Circuit Stay Order and those raised in 

the OMB Notice. We also ask parties to 

address any benefits associated with the 

2008 rules and whether these benefits 

outweigh the costs. 

7. We next seek comment on any 

updates and improvements we should 

make to our existing leased access rules. 

The stated purpose of the leased access 

statute ‘‘is to promote competition in 

the delivery of diverse sources of video 

programming and to assure that the 

widest possible diversity of information 

sources are made available to the public 

from cable systems in a manner 

consistent with growth and 

development of cable systems.’’ The 

statute also specifies that the price, 

terms, and conditions for commercial 

leased access should be ‘‘at least 

sufficient to assure that such use will 

not adversely affect the operation, 

financial condition, or market 

development of the cable system.’’ We 

note that the video distribution 

marketplace has become much more 

competitive since Congress first 

established the leased access regime in 

1984. For example, at that time, direct 

broadcast satellite (DBS) service was not 

available to consumers as an alternative 

to cable. While consumers previously 

had access to only one pay television 

service, today they have access to 

multiple pay television services as well 

as online video programming. In 

addition, the number of channels 

offered by cable operators has increased. 

8. Against this backdrop, we invite 

comment on the current state of the 

leased access marketplace generally and 

on whether, and if so how, the 

prevalence of alternative means of video 

distribution should influence our 

actions in this proceeding. How many 

leased access programmers are currently 

in existence, and is that number 

increasing or decreasing? What portion 

of a cable system’s programming 

consists of leased access? Do the leased 

access rules currently in effect facilitate 

the successful leasing of time by leased 

access programmers, and if not, what 

issues do programmers experience? To 

what extent do leased access 

programmers continue to rely on cable 

carriage versus alternative means of 

distribution? Does the widespread 

availability of DBS service today or the 

proliferation of online video distributors 

provide programmers, including leased 

access programmers, with more options 

for content distribution? 

9. As discussed below, we also seek 

comment on specific proposals raised in 

the media modernization proceeding to 

update and improve the Commission’s 

existing leased access rules as well as on 

any other proposals we should consider. 

10. First, as supported by several 

commenters in the media modernization 

proceeding, we propose to revise 

§ 76.970(i) of our rules to provide that 

all cable operators, and not just those 

that qualify as ‘‘small systems’’ under 

that rule, are required to provide the 

information specified in paragraph (i)(1) 

only in response to a bona fide request 

for leased access information from a 

prospective leased access programmer.4

For purposes of the leased access rules 

applicable to cable operators eligible for 

small system relief,5 a bona fide request 

for information is defined as a request 


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Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30641 

6We propose to correct § 76.970(i)(2) by replacing 

the reference to ‘‘paragraph (h)(1) of this section,’’ 

which does not exist, with ‘‘paragraph (i)(1) of this 

section.’’ All leased access requests are required to 

be in writing and to specify the date on which the 

request was sent to the cable operator. 

7By ‘‘nominal application fee,’’ we mean a 

processing fee that would be collected and retained 

by the cable operator regardless of whether the 

request results in leased access carriage. 

8By ‘‘deposit,’’ we mean a potentially more 

substantial fee that would be collected by the cable 

operator and used to offset future payments (e.g., 

the first month’s payment) if the leased access 

request results in carriage. 

from a potential leased access 

programmer that includes: ‘‘(i) The 

desired length of a contract term; (ii) 

The time slot desired; (iii) The 

anticipated commencement date for 

carriage; and (iv) The nature of the 

programming.’’ 

11. Section 76.970(i)(1) directs cable 

operators to provide prospective leased 

access programmers with the following 

information: ‘‘(i) How much of the 

operator’s leased access set-aside 

capacity is available; (ii) A complete 

schedule of the operator’s full-time and 

part-time leased access rates; (iii) Rates 

associated with technical and studio 

costs; and (iv) If specifically requested, 

a sample leased access contract.’’ 

Current rules require operators of small 

cable systems to provide the 

information only in response to a bona 

fide request from a prospective leased 

access programmer, whereas other cable 

system operators must provide the 

information in response to any request 

for leased access information.6 As a 

result, some operators of systems that do 

not qualify as small may spend a 

significant amount of time compiling 

information to respond to non-bona fide 

leased access inquiries. These operators 

are not permitted to ask prospective 

leased access programmers for any 

information before responding to a 

leased access request, due to the 

Commission’s concern that cable 

operators otherwise could use requests 

for information to discourage leasing 

access. 

12. We seek comment on our proposal 

to extend the bona fide request 

limitation to all leased access requests. 

Is there any reason not to provide all 

cable operators with the flexibility of 

responding only to a bona fide request? 

We ask commenters to provide 

information on the costs that cable 

operators currently face in responding 

to non-bona fide leased access requests. 

How often do cable operators receive 

non-bona fide leased access requests, 

and how much time does it take to 

provide the required information in 

response to such a request? Does the 

bona fide request limitation that 

currently applies to operators of small 

cable systems in any way discourage 

prospective leased access programmers, 

including small programmers, from 

seeking to lease access and if so, how? 

If we extend the bona fide request 

limitation to all leased access requests, 

should we adopt any modifications to 

the current definition of a bona fide 

request? 

13. Second, we invite comment on 

whether we should extend the time 

within which cable operators must 

provide prospective leased access 

programmers with the information 

specified in § 76.970(i)(1) of our rules. 

Current rules require cable system 

operators to provide the required 

information ‘‘within 15 calendar days of 

the date on which a request for leased 

access information is made,’’ while 

operators of systems that are subject to 

small system relief must provide the 

required information ‘‘within 30 

calendar days of a bona fide request 

from a prospective leased access 

programmer.’’ We invite comment on 

whether cable operators have found it 

difficult to comply with the current 

deadlines for providing the required 

information, and if so, why. What steps 

must cable operators take to compile the 

information listed in § 76.970(i)(1) of the 

Commission’s rules, and what costs do 

cable operators face in doing so under 

the current timeframe? Is the 

information readily available to cable 

operators? We also seek input on 

whether leased access programmers 

have found that the required 

information is generally provided on a 

timely basis in accordance with current 

rules. If, as discussed above, we revise 

our rules to provide that all cable 

operators, and not just those with small 

systems, are required to provide the 

listed information only in response to a 

bona fide request from a prospective 

leased access programmer, then is there 

any basis for extending the deadline to 

provide the information? 

14. NCTA asks the Commission to 

provide cable operators with additional 

time, such as 45 days, within which ‘‘to 

respond to requests to lease time on 

multiple systems.’’ Is a 45-day response 

period reasonable for leased access 

requests covering multiple systems, and 

if not, what response time period is 

appropriate? Is it necessary to also 

provide additional response time for 

single cable systems? Do leased access 

requests typically involve multiple 

systems or are single-system requests 

often made? Would lengthening the 

deadline serve as a deterrent to or create 

a hardship for potential leased access 

programmers? Should we maintain a 

longer deadline for operators of small 

cable systems as compared to other 

cable operators? 

15. Third, as urged by several 

commenters in the media modernization 

proceeding, we seek comment on 

whether we should permit cable 

operators to require leased access 

programmers to pay a nominal 

application fee 7 and/or a deposit,8

which is currently prohibited. Cable 

operators state that requiring a deposit 

or a nominal application fee would 

‘‘help defray the costs of gathering the 

information necessary to calculate the 

leased access rate and to respond to any 

bona fide requests for leased access 

capacity that never lead to an actual 

leased access agreement.’’ In the past 

the Commission has not supported the 

collection of fees or deposits with 

respect to leased access. In light of this 

history, how should we consider the 

impact of fees and deposits on interest, 

accessibility and diversity in leased 

access? Although the Commission 

previously found that such fees and 

deposits are not permissible, has 

anything changed that may persuade us 

that they are now a reasonable means of 

covering the costs of responding to 

leased access inquiries? If the 

Commission permits fees, what criteria 

should be used to determine whether an 

application fee is nominal? Rather than 

adopting rules governing what 

constitutes a ‘‘nominal’’ application fee, 

should the Commission evaluate such 

fees on a case-by-case basis when 

presented with a complaint that a 

particular fee is not nominal? Similarly, 

if we permit deposits, should we 

establish rules regarding an appropriate 

deposit amount, or alternatively, 

evaluate deposits on a case-by-case 

basis? If the Commission decides to 

adopt rules, how should it decide 

whether a deposit is reasonable? Should 

the cable operator refund all or part of 

the deposit if the leased access request 

does not result in carriage? 

16. We seek comment on whether it 

would be preferable to permit a nominal 

application fee or a deposit, or both, and 

on the costs and benefits of each option. 

If we adopt our proposal to require all 

cable operators to respond only to bona 

fide leased access requests, is there any 

justification for requiring a deposit or 

application fee? Would requiring a 

deposit or application fee prior to 

obtaining the information set forth in 

§ 76.970(i)(1) dissuade potential leased 

access programmers, particularly small 

entities, from seeking to lease access? 

Finally, should the Commission permit 

all cable operators, or permit only small 

cable operators, to require a nominal 

application fee or deposit before the 


sradovich on DSK3GMQ082PROD with PROPOSALS
30642 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 

operator responds to a leased access 

request by providing the information set 

forth in § 76.970(i)(1)? Any commenter 

advocating that we permit only small 

cable operators to require a nominal 

application fee or deposit should 

explain its rationale. 

17. Fourth, we invite comment on 

modifications to our procedures for 

addressing leased access disputes. 

Congress has provided the Commission 

with authority to adjudicate leased 

access disputes. Parties previously have 

contacted Commission staff to express 

confusion about inconsistencies 

between the leased access dispute 

resolution rule (§ 76.975) and the 

Commission’s more general rule 

governing complaints (§ 76.7). 

Accordingly, to promote consistency 

between the two rules, we propose to 

revise § 76.975 of our rules as follows. 

First, we propose to revise our 

terminology by referencing an answer to 

a petition, rather than a response to a 

petition. Second, we propose that the 

30-day timeframe for filing an answer to 

a leased access petition should be 

calculated from the date of service of the 

petition, rather than the date on which 

the petition was filed. Third, whereas 

§ 76.975 currently does not include any 

allowance for replies, we propose 

adding a provision stating that replies to 

answers must be filed within 15 days 

after submission of the answer. Fourth, 

we propose adding a statement that 

§ 76.7 applies to petitions for relief filed 

under § 76.975, unless otherwise 

provided in § 76.975. We invite 

comment on these proposals, which we 

intend to alleviate any ongoing 

confusion about how both §§ 76.7 and 

76.975 govern leased access 

proceedings. Is 15 days the appropriate 

timeframe for submitting a reply to an 

answer to a leased access petition? We 

note that the general complaint-filing 

rule provides 10 days for filing replies, 

but it also provides only 20 days for 

filing an answer, whereas the leased 

access rule provides 30 days for an 

answer. Are there any other changes we 

should make to our rules in order to 

make the adjudication of leased access 

disputes more efficient? 

18. Finally, we invite comment on 

any other ways in which we should 

modernize our leased access rules. For 

example, are any new rules needed to 

govern the relationship between leased 

access programmers and cable 

operators, such as a rule requiring cable 

operators to provide programmers with 

contact information for the person 

responsible for leased access matters? 

Should we adopt any new rules 

governing leased access rates or parttime leased access? Commenters 

supporting additional rules governing 

leased access rates should explain why 

additional rate rules are needed and 

what issues the rules should address. 

We ask commenters to explain the 

relative costs and benefits of any 

additional proposals. 

19. In seeking comment on updating 

the FCC’s leased access rules, we also 

seek comment on whether our rules 

implicate First Amendment interests. If 

so, what level of First Amendment 

scrutiny is appropriate, and how does 

that analysis apply to our existing rules 

and the potential changes we seek 

comment on here, in light of the 

statutory obligations of section 612? In 

this context, we also seek comment on 

whether there have been any changes in 

the video distribution market since 

Congress and the FCC first addressed 

these issues that are relevant to the First 

Amendment analysis. For instance, are 

there relevant changes in the 

distribution market that we should now 

consider? Is the FCC’s 2015 decision 

regarding effective competition relevant 

to this analysis? 

20. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared an 

Initial Regulatory Flexibility Analysis 

(IRFA) concerning the possible 

significant economic impact on small 

entities by the policies and rules 

proposed in the FNPRM. Written public 

comments are requested on the IRFA. 

Comments must be identified as 

responses to the IRFA and must be filed 

by the deadlines for comments provided 

on the first page of the FNPRM. The 

Commission will send a copy of the 

FNPRM, including the IRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA). In 

summary, the FNPRM seeks to update 

the Commission’s leased access rules as 

part of its Modernization of Media 

Regulation Initiative. First, it tentatively 

concludes that we should vacate the 

Commission’s 2008 Leased Access 

Order, which the U.S. Court of Appeals 

for the Sixth Circuit has stayed for a 

decade in conjunction with several 

judicial appeals of the order. Second, it 

seeks input on the state of the leased 

access marketplace generally and invites 

comment on ways to modernize our 

existing leased access rules. The 

proposed action is authorized pursuant 

to sections 4(i), 303, and 612 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303, and 

532. The types of small entities that may 

be affected by the proposals contained 

in the FNPRM fall within the following 

categories: Cable Television Distribution 

Services, Cable Companies and Systems 

(Rate Regulation), Cable System 

Operators (Telecom Act Standard), 

Cable and Other Subscription 

Programming, Motion Picture and Video 

Production, and Motion Picture and 

Video Distribution. The projected 

reporting, recordkeeping, and other 

compliance requirements are: (1) A 

tentative conclusion that we should 

vacate the 2008 Leased Access Order; 

(2) as suggested by commenters in 

response to the Media Modernization 

Public Notice, a proposal to require 

cable operators to respond only to bona 

fide requests from prospective leased 

access programmers; (3) seeking 

comment on other suggested changes to 

leased access rules that were raised in 

the media modernization proceeding, 

including extending the timeframe for 

providing responses to leased access 

requests and permitting cable operators 

to require leased access programmers to 

pay a nominal application fee and/or a 

deposit; and (4) seeking comment on 

proposals to modify our procedures for 

addressing leased access disputes. There 

is no overlap with other regulations or 

laws. 

21. We note that the FNPRM 

tentatively finds that vacating the 2008 

Leased Access Order would be 

consistent with the goal of the 

Commission’s Modernization of Media 

Regulation Initiative to remove rules 

that are outdated or no longer justified 

by market realities. It is within this 

backdrop that the Commission 

tentatively concludes that it should 

vacate the 2008 Leased Access Order. 

The FNPRM explains that further 

support for our tentative finding that we 

should vacate the 2008 Leased Access 

Order arises from the concerns about the 

paperwork burden set forth in the OMB 

Notice, where OMB detailed five ways 

in which certain requirements adopted 

in the order were inconsistent with the 

PRA. 

22. Regarding specific proposals 

involving the leased access rules, the 

Commission invites comment on 

alternative ways it can reduce burdens 

on small entities. For example, the 

Commission proposes to extend the 

current bona fide request limitation, 

which only applies to operators of small 

cable systems, to all operators. The 

FNPRM seeks information on whether 

the current bona fide request limitation 

in any way discourages prospective 

leased access programmers, including 

small programmers, from seeking to 

lease access and if so, how. For 

example, if prospective leased access 

programmers indicate that they find it 

difficult to prepare a request that 

constitutes a ‘‘bona fide’’ request, the 

Commission will consider such 

difficulties in determining how to 


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Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30643 

proceed. To the extent there is currently 

any negative impact on prospective 

leased access programmers, including 

small programmers, the Commission 

will weigh that impact in determining 

how to proceed. The FNPRM also 

considers the timeframe within which 

cable operators must provide 

prospective leased access programmers 

with the information specified in 

§ 76.970(i)(1) of the Commission’s rules. 

The FNPRM considers whether, in the 

alternative to adopting a single deadline 

for all cable systems, it should instead 

maintain a longer deadline for operators 

of small cable systems. Such an 

approach could minimize the impact of 

the leased access rules on small cable 

system operators. Similarly, in the 

alternative to permitting all cable 

operators to require a nominal 

application fee or deposit before the 

operator responds to a leased access 

request by providing the information set 

forth in § 76.970(i)(1), the FNPRM 

considers whether it should permit only 

small cable operators to do so. Such an 

approach could ease burdens on small 

cable operators. The FNPRM also 

considers the impact of requiring a 

deposit or application fee on small 

programmers, by asking whether 

potential leased access programmers, 

particularly small entities, would be 

dissuaded from seeking to lease access 

if faced with a deposit or application 

fee. The Commission will consider 

responses to all of these issues in 

determining how to proceed. 

23. This document contains proposed 

new or revised information collection 

requirements, including the proposal 

that all cable operators are required to 

provide the information specified in 

§ 76.970(i)(1) only in response to a bona 

fide request from a prospective leased 

access programmer, and the addition of 

a provision governing replies to answers 

to leased access complaints. The 

Commission, as part of its continuing 

effort to reduce paperwork burdens, 

invites the general public and the Office 

of Management and Budget (OMB) to 

comment on the information collection 

requirements contained in this 

document, as required by the Paperwork 

Reduction Act of 1995, Public Law 104– 

13 (44 U.S.C. 3501–3520). In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

the Commission seeks specific comment 

on how it might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’ 

24. Permit-But-Disclose. This 

proceeding shall be treated as a ‘‘permitbut-disclose’’ proceeding in accordance 

with the Commission’s ex parte rules. 

Persons making ex parte presentations 

must file a copy of any written 

presentation or a memorandum 

summarizing any oral presentation 

within two business days after the 

presentation (unless a different deadline 

applicable to the Sunshine period 

applies). Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentation must (1) list all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made, and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenter’s 

written comments, memoranda or other 

filings in the proceeding, the presenter 

may provide citations to such data or 

arguments in his or her prior comments, 

memoranda, or other filings (specifying 

the relevant page and/or paragraph 

numbers where such data or arguments 

can be found) in lieu of summarizing 

them in the memorandum. Documents 

shown or given to Commission staff 

during ex parte meetings are deemed to 

be written ex parte presentations and 

must be filed consistent with rule 

1.1206(b). In proceedings governed by 

rule 1.49(f) or for which the 

Commission has made available a 

method of electronic filing, written ex 

parte presentations and memoranda 

summarizing oral ex parte 

presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding, and must 

be filed in their native format (e.g., .doc, 

.xml, .ppt, searchable .pdf). Participants 

in this proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

25. The proposed action is authorized 

pursuant to sections 4(i), 303, and 612 

of the Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303, and 

532. 

List of Subjects in 47 CFR Part 76 

Administrative practice and 

procedure, Cable television, Reporting 

and recordkeeping requirements. 

Federal Communications Commission. 

Katura Jackson, 

Federal Register Liaison Officer, Office of the 

Secretary. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 76 as follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 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 § 76.970 by revising 

paragraph (i)(1) and (2) to read as 

follows: 

§ 76.970 Commercial leased access rates. 

* * * * * 

(i)(1) Cable system operators shall 

provide prospective leased access 

programmers with the following 

information within 15 calendar days of 

the date on which a bona fide request 

for leased access information is made: 

(i) How much of the operator’s leased 

access set-aside capacity is available; 

(ii) A complete schedule of the 

operator’s full-time and part-time leased 

access rates; 

(iii) Rates associated with technical 

and studio costs; and 

(iv) If specifically requested, a sample 

leased access contract. 

(2) Operators of systems subject to 

small system relief shall provide the 

information required in paragraph (i)(1) 

of this section within 30 calendar days 

of a bona fide request from a prospective 

leased access programmer. For these 

purposes, systems subject to small 

system relief are systems that either: 

(i) Qualify as small systems under 

§ 76.901(c) and are owned by a small 

cable company as defined under 

§ 76.901(e); or 

(ii) Have been granted special relief. 

* * * * * 

■ 3. Amend § 76.975 by revising 

paragraph (e) and adding paragraph (i) 

to read as follows: 

§ 76.975 Commercial leased access 

dispute resolution. 

* * * * * 

(e) The cable operator or other 

respondent will have 30 days from 

service of the petition to file an answer. 

If a leased access rate is disputed, the 

answer must show that the rate charged 

is not higher than the maximum 

permitted rate for such leased access, 

and must be supported by the affidavit 

of a responsible company official. If, 

after an answer is submitted, the staff 

finds a prima facie violation of our 

rules, the staff may require a respondent 

to produce additional information, or 


sradovich on DSK3GMQ082PROD with PROPOSALS
30644 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 

specify other procedures necessary for 

resolution of the proceeding. Replies to 

answers must be filed within fifteen (15) 

days after submission of the answer. 

* * * * * 

(i) Section 76.7 applies to petitions for 

relief filed under this section, except as 

otherwise provided in this section. 

[FR Doc. 2018–14014 Filed 6–28–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 211 

[Docket DARS–2018–0021] 

RIN 0750–AJ23 

Defense Federal Acquisition 

Regulation Supplement: Use of 

Commercial or Non-Government 

Standards (DFARS Case 2017–D014) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2017 (Pub. L. 114–328), which 

requires DoD to revise the DFARS to 

encourage contractors to propose 

commercial or non-Government 

standards and industry-wide practices 

that meet the intent of military 

specifications and standards. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

August 28, 2018, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2017–D014, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2017–D014.’’ Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2017–D014’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2017–D014 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mr. Mark 

Gomersall, OUSD(A&S)DPAP/DARS, 

Room 3B941, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately 2 to 3 days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, telephone 571–372– 

6099. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to implement section 875(c) of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2017 (Pub. 

L. 114–328). Section 875(c) requires 

DoD to revise the DFARS to encourage 

contractors to propose commercial or 

non-Government standards and 

industry-wide practices that meet the 

intent of military specifications and 

standards. 

II. Discussion and Analysis 

DoD is proposing to amend DFARS 

211.107(b) to require the use of Federal 

Acquisition Regulation (FAR) provision 

52.211–7, Alternatives to GovernmentUnique Standards, in DoD solicitations 

and contracts that include military or 

Government-unique specifications and 

standards; and, in so doing, encourage 

and permit offerors to propose 

alternatives to Government-unique 

standards using an existing FAR 

provision. 

The use of FAR provision 52.211–7 is 

optional for agencies that report their 

use of voluntary consensus standards to 

the National Institute of Standards and 

Technology using the categorical 

reporting method. However, Office of 

Management and Budget (OMB) 

Circular A–119, Federal Participation in 

the Development and Use of Voluntary 

Consensus Standards and in Conformity 

Assessment Activities, requires, at 

paragraph 12.a.(4), that agencies using 

the categorical method of reporting 

method must ‘‘Enable potential offerors 

to suggest voluntary consensus 

standards that can replace Governmentunique standards.’’ Use of this existing 

FAR provision will enable DoD to meet 

the intent of section 875(c). 

In response to OMB Circular A–119, 

the National Institute of Standards and 

Technology collects reports from 

Federal Agencies on their use of 

Government-unique standards, which is 

reported annually to Congress. DoD 

statistics used for that report do not 

differentiate among the many different 

types of Government-unique Standards. 

The overriding conceptual approach is 

to reduce Government reliance on 

standards produced by Government 

entities for their own use. 

As a matter of existing policy, DoD 

discourages the use of military 

specifications and standards in 

solicitations. As stated in DoD Directive 

5000.01: ‘‘When using performancebased strategies, contract requirements 

shall be stated in performance terms, 

limiting the use of military 

specifications and standards to 

Government-unique requirements 

only.’’ However, to meet the intent of 

section 875(c) of the NDAA for FY 2017, 

DoD is proposing to amend DFARS 

211.107(b) to require the use of FAR 

provision 52.211–7, Alternatives to 

Government-Unique Standards, in DoD 

solicitations and contracts that include 

military or Government-unique 

specifications and standards to 

encourage and permit offerors to 

propose alternatives to Governmentunique standards. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and Contracts for 

Commercial Items, Including 

Commercially Available Off-the-Shelf 

(COTS) Items 

The purpose of this rule is to 

implement section 875(c) of the NDAA 

for FY 2017, which requires DoD to 

revise the DFARS to encourage 

contractors to propose commercial or 

non-Government standards and 

industry-wide practices that meet the 

intent of military specifications and 

standards. DoD does not intend to apply 

the requirements of section 875(c) to 

solicitations for contracts valued at or 

below the SAT or to contracts for 

commercial items, including COTS 

items, because such contracts do not 

generally include or require use of 

military or Government-unique 

standards or specifications. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 


sradovich on DSK3GMQ082PROD with PROPOSALS