Review Procedures; Modernization of Media Regulation Initiative; Program Carriage Rules
| Published date | 17 December 2020 |
| Citation | 85 FR 81805 |
| Record Number | 2020-26259 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
81805
Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations
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.
T
ABLE
1
TO
P
ARAGRAPH
(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.
T
ABLE
2
TO
P
ARAGRAPH
(
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 good-
faith 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
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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
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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 post-
offer 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
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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
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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 anti-
retaliation 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 good-
faith 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
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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
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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 over-
inclusive.
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, good-
faith 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
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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
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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
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