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| To enact section 1332.36 of the Revised Code to | 1 |
| require cable operators to participate in | 2 |
| arbitration regarding disputes with providers of | 3 |
| competing video programming. | 4 |
| Section 1. That section 1332.36 of the Revised Code be | 5 |
| enacted to read as follows: | 6 |
| Sec. 1332.36. (A) As used in this section: | 7 |
| "Affiliated video programming" means video programming owned | 8 |
| in whole or in part by a cable operator. | 9 |
| "Basic cable service" and "video programming" have the same | 10 |
| meanings as in the "Cable Communications Policy Act of 1984," Pub. | 11 |
| L. No. 98-549, 98 Stat. 2780, 2781, 47 U.S.C. 522, as amended by | 12 |
| the "Telecommunications Act of 1996," Pub. L. No. 104-104, 110 | 13 |
| Stat. 56. | 14 |
| "Cable operator" means a video service provider granted a | 15 |
| video service authorization under sections 1332.21 to 1332.34 of | 16 |
| the Revised Code or a person described in division (B)(1)(b) of | 17 |
| section 1332.23 of the Revised Code. "Cable operator" includes any | 18 |
| affiliate or subsidiary of a cable operator or multichannel video | 19 |
| programming distributor. | 20 |
| "Provider of competing video programming" means a person | 21 |
| engaged in the production, creation, or wholesale distribution of | 22 |
| video programming that is not affiliated with a cable operator and | 23 |
| that offers video programming that competes in the same | 24 |
| programming category as video programming owned by a cable | 25 |
| operator. | 26 |
| "Extended basic cable service" means a category of cable | 27 |
| service provided by a cable operator that is immediately superior | 28 |
| in terms of price and the number of available channels to the | 29 |
| basic cable service offered by the cable operator. | 30 |
| "Programming category" means video programming that | 31 |
| predominantly contains one of the following types of information: | 32 |
| sports, news and public affairs, entertainment, or any other | 33 |
| category provided for in rules adopted by the director of commerce | 34 |
| under this section. | 35 |
| (B) A cable operator that offers affiliated video programming | 36 |
| on its extended basic cable service shall treat in a fair, | 37 |
| reasonable, and nondiscriminatory manner the provider of competing | 38 |
| video programming that competes in the same programming category | 39 |
| with the cable operator's affiliated video programming. | 40 |
| (C) If the provider of competing video programming has reason | 41 |
| to believe it has not been treated in a fair, reasonable, and | 42 |
| nondiscriminatory manner by a cable operator concerning carriage | 43 |
| of the provider's competing video programming by the cable | 44 |
| operator, it may submit a request for commercial arbitration with | 45 |
| the cable operator not later than ninety days after an initial | 46 |
| request made by the provider or renewal of an agreement between | 47 |
| the cable operator and provider leads to a dispute. | 48 |
| (D) If the dispute remains unresolved ten days after | 49 |
| submission of the request for arbitration under division (C) of | 50 |
| this section, either party may file with the department of | 51 |
| commerce a formal demand for arbitration. The formal demand shall | 52 |
| be made in a form and manner prescribed by the department in rules | 53 |
| adopted under division (G) of this section. The formal demand | 54 |
| shall include a final offer. Once a formal demand for arbitration | 55 |
| is made, the department shall notify the other party of the demand | 56 |
| for arbitration. The responding party shall submit its final | 57 |
| offer not later than five days after receipt of notice from the | 58 |
| department. | 59 |
| (E) The arbitration shall be conducted by a single arbitrator | 60 |
| designated by the director of commerce under the expedited | 61 |
| procedures for arbitration rules adopted by the director under | 62 |
| division (G) of this section. The arbitrator shall examine the | 63 |
| final offer and response provided under division (D) of this | 64 |
| section and shall make an award in favor of the party whose offer | 65 |
| most closely approximates the fair market value of the | 66 |
| programming carriage rights at issue. The arbitrator shall use the | 67 |
| terms and conditions and form of the contract of the initiating | 68 |
| party. | 69 |
| To determine fair market value, the arbitrator may consider | 70 |
| any relevant evidence and may require the parties to submit, under | 71 |
| confidentiality safeguards imposed by the arbitrator, any relevant | 72 |
| evidence within their control, including the following: | 73 |
| (1) Current or previous contracts between the provider of | 74 |
| competing video programming and other cable operators in which the | 75 |
| cable operator does or does not have an interest, including offers | 76 |
| made during negotiation of such contracts; | 77 |
| (2) Current or previous contracts for the carriage of the | 78 |
| cable operator's affiliated video programming by the cable | 79 |
| operator and other cable operators, including related and | 80 |
| integrated carriage or other arrangements for the affiliated | 81 |
| video programming; | 82 |
| (3) Price, terms, conditions, and relationships that the | 83 |
| provider of competing video programming has regarding carriage | 84 |
| with other cable operators; | 85 |
| (4) Evidence of the relative value, including ratings or | 86 |
| advertising rates, of the competing video programming compared to | 87 |
| the affiliated video programming being carried by the cable | 88 |
| operator; | 89 |
| (5) The extent of national carriage of the competing video | 90 |
| programming; | 91 |
| (6) Whether the cable operator's affiliated video programming | 92 |
| and the competing video programming have, in the past five years, | 93 |
| pursued the same programming content from third parties. | 94 |
| The arbitrator may not consider offers made prior to the | 95 |
| arbitration made between the cable operator or the provider of | 96 |
| competing video programming. | 97 |
| (F) The award made in an arbitration under division (E) of | 98 |
| this section shall be made in writing and signed by the | 99 |
| arbitrator within ninety days after the initiation of the formal | 100 |
| arbitration. A copy of the award shall be delivered to each of the | 101 |
| parties. | 102 |
| A copy of the award and any penalty assessment made under | 103 |
| this division shall be filed with the court of common pleas | 104 |
| designated by the parties, or, if no such designation has been | 105 |
| made, in the court of common pleas of any county in which a party | 106 |
| in interest resides or may be summoned, or if any party in | 107 |
| interest is a corporation, in any county in which such corporation | 108 |
| is situated, or has or had its principal office or place of | 109 |
| business, or in which such corporation has an office or agent, or | 110 |
| in any county in which a summons may be served upon the president, | 111 |
| chairperson or president of the board of directors or trustees, or | 112 |
| other chief officer. | 113 |
| The court with which the copy of the award and penalty | 114 |
| assessment is filed is authorized to enforce the award and | 115 |
| assessment in the same manner it would enforce an award under | 116 |
| sections 2711.08 to 2711.16 of the Revised Code. | 117 |
| If the arbitrator finds that one party's conduct during the | 118 |
| course of the arbitration has been unreasonable, the arbitrator | 119 |
| may assess all or a portion of the other party's costs and | 120 |
| expenses, including attorney's fees, against the offending party. | 121 |
| (G) The director shall adopt rules in accordance with Chapter | 122 |
| 119. of the Revised Code doing all of the following: | 123 |
| (1) Establishing the form and manner of a formal demand for | 124 |
| arbitration; | 125 |
| (2) Establishing rules of arbitration, in particular, the | 126 |
| rules for an expedited arbitration process; | 127 |
| (3) Establishing any additional programming categories to | 128 |
| those provided in division (A) of this section; | 129 |
| (4) Any other rules necessary to implement this section. | 130 |