To enact section 1332.36 of the Revised Code to require cable operators to participate in arbitration regarding disputes with providers of competing video programming.

Section 1.  That section 1332.36 of the Revised Code be enacted to read as follows:

Sec. 1332.36.  (A) As used in this section:

"Affiliated video programming" means video programming owned in whole or in part by a cable operator.

"Basic cable service" and "video programming" have the same meanings as in the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat. 2780, 2781, 47 U.S.C. 522, as amended by the "Telecommunications Act of 1996," Pub. L. No. 104-104, 110 Stat. 56.

"Cable operator" means a video service provider granted a video service authorization under sections 1332.21 to 1332.34 of the Revised Code or a person described in division (B)(1)(b) of section 1332.23 of the Revised Code. "Cable operator" includes any affiliate or subsidiary of a cable operator or multichannel video programming distributor.

"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.

"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.

"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 director of commerce under this section.

(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.

(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 ninety days after an initial request made by the provider or renewal of an agreement between the cable operator and provider leads to a dispute.

(D) If the dispute remains unresolved ten days after submission of the request for arbitration under division (C) of this section, either party may file with the department of commerce a formal demand for arbitration. The formal demand shall be made in a form and manner prescribed by the department in rules adopted under division (G) of this section. The formal demand shall 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.

(E) The arbitration shall be conducted by a single arbitrator designated by the director of commerce under the expedited procedures for arbitration rules adopted by the director under division (G) of this section. The arbitrator shall examine the final offer and response provided under division (D) of this section 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.

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:

(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 such contracts;

(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;

(3) Price, terms, conditions, and relationships that the provider of competing video programming has regarding carriage with other cable operators;

(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;

(5) The extent of national carriage of the competing video programming;

(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.

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

(F) The award made in an arbitration under division (E) of this section shall be made in writing and signed by the arbitrator within ninety days after the initiation of the formal arbitration. A copy of the award shall be delivered to each of the parties.

A copy of the award and any penalty assessment made under this division shall be filed with the court of common pleas designated by the parties, or, if no such designation has been made, in the court of common pleas 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 such corporation is situated, or has or had its principal office or place of business, or in which such 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.

The court with which the copy of the award and penalty assessment is filed is authorized to enforce the award and assessment in the same manner it would enforce an award under sections 2711.08 to 2711.16 of the Revised Code.

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's fees, against the offending party.

(G) The director shall adopt rules in accordance with Chapter 119. of the Revised Code doing all of the following:

(1) Establishing the form and manner of a formal demand for arbitration;

(2) Establishing rules of arbitration, in particular, the rules for an expedited arbitration process;

(3) Establishing any additional programming categories to those provided in division (A) of this section;

(4) Any other rules necessary to implement this section.