HF 3212

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to telecommunications; providing for arbitration concerning competing
video programming; requiring rulemaking; proposing coding for new law in
Minnesota Statutes, chapter 238.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [238.45] COMPETING VIDEO PROGRAMMING.
new text end

new text begin (a) As used in this section:
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new text begin (1) "Affiliated video programming" means video programming owned in whole or in
part by a cable operator;
new text end

new text begin (2) "Cable operator" means a cable communications system. Cable operator
includes any affiliate or subsidiary of a cable operator or multichannel video programming
distributor;
new text end

new text begin (3) "Commissioner" means the commissioner of commerce;
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new text begin (4) "Provider of competing video programming" means a person engaged in the
production, creation, or wholesale distribution of video programming that is not affiliated
with a cable operator and that offers video programming that competes in the same
programming category as video programming owned by a cable operator;
new text end

new text begin (5) "Extended basic cable service" means a category of cable service provided by a
cable operator that is immediately superior in terms of price and the number of available
channels to the basic cable service offered by the cable operator; and
new text end

new text begin (6) "Programming category" means video programming that predominantly contains
one of the following types of information: sports, news and public affairs, entertainment,
or any other category provided for in rules adopted by the commissioner under this section.
new text end

new text begin (b) A cable operator that offers affiliated video programming on its extended basic
cable service shall treat in a fair, reasonable, and nondiscriminatory manner the provider
of competing video programming that competes in the same programming category with
the cable operator's affiliated video programming.
new text end

new text begin (c) If the provider of competing video programming has reason to believe it has not
been treated in a fair, reasonable, and nondiscriminatory manner by a cable operator
concerning carriage of the provider's competing video programming by the cable operator,
it may submit a request for commercial arbitration with the cable operator not later than
90 days after an initial request made by the provider or renewal of an agreement between
the cable operator and provider leads to a dispute.
new text end

new text begin (d) If the dispute remains unresolved ten days after submission of the request for
arbitration under paragraph (c), either party may file with the Department of Commerce a
formal demand for arbitration. The formal demand must be made in a form and manner
prescribed by the department in rules adopted under paragraph (g). The formal demand
must include a final offer. Once a formal demand for arbitration is made, the department
shall notify the other party of the demand for arbitration. The responding party shall
submit its final offer not later than five days after receipt of notice from the department.
new text end

new text begin (e) The arbitration must be conducted by a single arbitrator designated by the
commissioner under the expedited procedures for arbitration rules adopted by the
commissioner under paragraph (g). The arbitrator shall examine the final offer and
response provided under paragraph (d) and shall make an award in favor of the party
whose offer most closely approximates the fair market value of the programming carriage
rights at issue. The arbitrator shall use the terms and conditions and form of the contract
of the initiating party.
new text end

new text begin To determine fair market value, the arbitrator may consider any relevant evidence
and may require the parties to submit, under confidentiality safeguards imposed by the
arbitrator, any relevant evidence within their control, including the following:
new text end

new text begin (1) current or previous contracts between the provider of competing video
programming and other cable operators in which the cable operator does or does not have
an interest, including offers made during negotiation of those contracts;
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new text begin (2) current or previous contracts for the carriage of the cable operator's affiliated
video programming by the cable operator and other cable operators, including related and
integrated carriage or other arrangements for the affiliated video programming;
new text end

new text begin (3) price, terms, conditions, and relationships that the provider of competing video
programming has regarding carriage with other cable operators;
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new text begin (4) evidence of the relative value, including ratings or advertising rates, of the
competing video programming compared to the affiliated video programming being
carried by the cable operator;
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new text begin (5) the extent of national carriage of the competing video programming; and
new text end

new text begin (6) whether the cable operator's affiliated video programming and the competing
video programming have, in the past five years, pursued the same programming content
from third parties.
new text end

new text begin The arbitrator may not consider offers made prior to the arbitration made between
the cable operator or the provider of competing video programming.
new text end

new text begin (f)(1) The award made in an arbitration under paragraph (e) must be in writing and
signed by the arbitrator within 90 days after the initiation of the formal arbitration. A copy
of the award must be delivered to each of the parties.
new text end

new text begin (2) A copy of the award and any penalty assessment made under this paragraph
must be filed with the district court designated by the parties, or, if no such designation
has been made, in the district court of any county in which a party in interest resides or
may be summoned, or if any party in interest is a corporation, in any county in which the
corporation is situated or has or had its principal office or place of business, or in which
the corporation has an office or agent, or in any county in which a summons may be
served upon the president, chairperson, or president of the board of directors or trustees,
or other chief officer of the corporation.
new text end

new text begin (3) The court with which the copy of the award and penalty assessment is filed
may enforce the award and assessment.
new text end

new text begin (4) If the arbitrator finds that one party's conduct during the course of the arbitration
has been unreasonable, the arbitrator may assess all or a portion of the other party's costs
and expenses, including attorney fees, against the offending party.
new text end

new text begin (g) The commissioner shall adopt rules establishing:
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new text begin (1) the form and manner of a formal demand for arbitration;
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new text begin (2) rules of arbitration, in particular the rules for an expedited arbitration process;
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new text begin (3) any additional programming categories to those provided in paragraph (a); and
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new text begin (4) other rules necessary to implement this section.
new text end