[Federal Register: January 28, 2004 (Volume 69, Number 18)]
[Rules and Regulations]
[Page 4081-4083]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja04-11]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 97-80; PP Docket No. 00-67; FCC 03-329]
Commercial Availability of Navigation Devices and Compatibility
Between Cable Systems and Consumer Electronics Equipment
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission revised the definition of
unencrypted broadcast television adopted in its earlier Second Report
and Order and Second Further Notice of Proposed Rulemaking in this
proceeding. This revision clarifies a potential conflict between our
stated intent and the scope of the rules. This action is taken to
further the digital television transition and the commercial
availability of navigation devices pursuant to section 629 of the
Communications Act.
DATES: Effective February 27, 2004.
FOR FURTHER INFORMATION CONTACT: Susan Mort, susan.mort@fcc.gov, (202)
418-1043.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Order on Reconsideration, FCC 03-329,
adopted on December 19, 2003, and released on December 23, 2003. The
full text of this document is available for inspection and copying
during normal business hours in the FCC Reference Center, 445 12th
Street, SW., Washington, DC 20554. The complete text may be purchased
from the Commission's copy contractor, Qualex International, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554. The full text may also
be downloaded at: http://www.fcc.gov. Alternative formats are available
to persons with disabilities by contacting Brian Millin at (202) 418-
7426 or TTY (202) 418-7365 or at Brian.Millin@fcc.gov.
Summary of the Order on Reconsideration
1. In our recent Second Report and Order and Second Further Notice
of Proposed Rulemaking in this proceeding, we adopted encoding rules
that included, inter alia, a prohibition on the down resolution of
unencrypted broadcast programming and caps on the level of copy
protection that may apply to various categories of MVPD programming.
The copy protection caps included a prohibition on the imposition of
copy restrictions on unencrypted broadcast television. Our stated goal
in adopting these encoding rules was to strike a measured balance
between the rights of content owners and the home viewing expectations
of consumers, while ensuring competitive parity among MVPDs.
2. Following release of the Second Report and Order and Second
Further Notice of Proposed Rulemaking, a potential conflict between our
stated intent and the scope of the rules became apparent. The
limitation of the encoding rules for broadcast television programming
to ``Unencrypted Broadcast Television'' could inadvertently be
interpreted to create a competitive disparity in so far as certain
MVPDs encrypt their broadcast signals while others do not. The
resulting imbalance could also negatively impact consumers who would
otherwise expect to have the same viewing and recording capabilities
for broadcast television programming regardless of distribution
platform. To prevent this unintended consequence, by our own motion we
revise the definition of Unencrypted Broadcast Television in our
encoding rules as set forth herein.
3. Paperwork Reduction Act of 1995 Analysis. This Order on
Reconsideration does not contain information collection(s) subject to
the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13.
4. Regulatory Flexibility Act: As required by the Regulatory
Flexibility Act, the Commission has prepared a Supplemental Final
Regulatory Flexibility Analysis (``Supplemental FRFA'') relating to
this Order on Reconsideration. The Supplemental FRFA is set forth
within.
5. Ordering Clauses: Pursuant to the authority contained in
sections 1, 4(i) and (j), 303, 403, 405, 601, 624A and 629 of the
Communications Act of 1934, 47 U.S.C 151, 154(i) and (j), 303, 403,
405, 521, 544a and 549, the Commission's rules are hereby amended as
set forth herein, and shall become effective February 27, 2004.
Supplemental Final Regulatory Flexibility Analysis
6. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') an Initial Regulatory Flexibility Analysis (``IRFA'')
was incorporated in the Further Notice of Proposed Rulemaking
(``FNPRM'') in this proceeding. The Commission sought written public
comment on the proposals in the FNPRM, including comment on the IRFA.
Based upon the comments in response to the FNPRM
[[Page 4082]]
and the IRFA, the Commission included a Final Regulatory Flexibility
Analysis (``FRFA'') in the Second Report and Order and Second Further
Notice of Proposed Rulemaking (``Digital Cable Compatibility Order and
FNPRM'') in this proceeding. In this Order on Reconsideration, the
Commission is, on its own motion, amending the rules in a manner that
may affect small entities. Accordingly, this Supplemental Regulatory
Flexibility Analysis (``Supplemental FRFA'') addresses those amendments
and conforms to the RFA.
7. Need for, and Objectives of, the Order on Reconsideration. In
the Digital Cable Compatibility Order and FNPRM, the Commission adopted
regulations setting a cable compatibility standard for an integrated,
unidirectional digital cable television receiver, as well as for other
unidirectional digital cable products. These regulations include, inter
alia, technical standards, a labeling regime and encoding rules for
audiovisual content delivered by multichannel video programming
distributors (``MVPD''). The objective of the final rules is to
facilitate the DTV transition and ensure parity among MVPDs. However,
the encoding rule adopted in the Digital Cable Compatibility Order and
FNPRM prohibiting MVPDs from encoding unencrypted broadcast television
with copy restrictions or to trigger down resolution may be susceptible
to different interpretations and could create an imbalance between
different MVPDs in so far as certain providers typically encrypt the
broadcast television signals that they retransmit whereas others do not
or cannot. This Order on Reconsideration amends the encoding rules to
cover all broadcast television programming that is unencrypted when
originally broadcast, regardless of whether or not they are carried in
encrypted form by an MVPD.
8. Summary of Significant Issues Raised in Response to the FRFA. No
parties have addressed the FRFA in any subsequent filings.
9. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply. The RFA directs the Commission to
provide a description of and, where feasible, an estimate of the number
of small entities that will be affected by the proposed rules. The RFA
generally defines the term ``small entity'' as encompassing the terms
``small business,'' ``small organization,'' and ``small governmental
entity.'' 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 Small Business
Administration (``SBA'').
10. As noted, a FRFA was incorporated into the Digital Cable
Compatibility Order and FNPRM. In that analysis, the Commission
described in detail the various small business entities that may be
affected by the final rules. Those entities consist of: television
broadcasting stations, cable and other program distribution (which
includes, among others, cable operators, direct broadcast satellite
services, home satellite dish services, multipoint distribution
services, multichannel multipoint distribution service, Instructional
Television Fixed Service, local multipoint distribution service,
satellite master antenna television systems, and open video systems),
electronics equipment manufacturers, and computer manufacturers. In
this present Order on Reconsideration, the Commission is amending the
final rules adopted in the Digital Cable Compatibility Order and FNPRM
on its own motion. In this Supplemental FRFA, we incorporate by
reference the description and estimate of the number of small entities
from the FRFA in this proceeding.
11. Description of Projected Reporting, Recordkeeping and other
Compliance Requirements. Among the final rules adopted in the Digital
Cable Compatibility Order and FNPRM, is a prohibition on all MVPDs from
encoding unencrypted broadcast television programming to activate copy
restrictions or down-resolution. This Order on Reconsideration revises
this prohibition to encompass all broadcast television programming that
is unencrypted when broadcast, regardless of the form in which it is
carried by an MVPD.
12. Steps Taken to Minimize Significant Impact on Small Entities,
and Significant Alternatives Considered. The RFA requires an agency to
describe any significant alternatives that it has considered in
reaching its proposed 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 or
reporting requirements under the rule for 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 small entities.
13. In the Digital Cable Compatibility Order and FNPRM, we
concluded that the encoding prohibitions on selectable output controls
and the down-resolution of unencrypted broadcast programming would
largely impact upon the DBS industry, which is primarily composed of
large entities. Similarly, while we concluded that the caps on copy
protection would affect all MVPDs, we believed they would not have a
negative impact on small entities. We do not believe that our revision
of the encoding rules in this Order on Reconsideration changes our
earlier conclusions.
14. Federal Rules Which Duplicate, Overlap, or Conflict with the
Commission's Proposals. None.
15. Report to Congress: The Commission will send a copy of the
Order on Reconsideration, including this Supplemental 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 Order on
Reconsideration, including this Supplemental FRFA, to the Chief Counsel
for Advocacy of the SBA. A copy of the Order on Reconsideration and
Supplemental FRFA (or summaries thereof) will also be published in the
Federal Register.
List of Subjects in 47 CFR Part 76
Cable television, Incorporation by reference, Recordings,
Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
1. The authority for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302a, 303, 303a,
307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532,
533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554,
556, 558, 560, 561, 571, 572, and 573.
0
2. Revise paragraph (s) of Sec. 76.1902 to read as follows:
Sec. 76.1902 Definitions.
* * * * *
(s) Unencrypted broadcast television means the retransmission by a
covered entity of any service, program, or schedule or group of
programs originally broadcast in the clear without use of a
commercially-adopted access control method by a terrestrial television
broadcast station regardless of whether such covered entity employs an
[[Page 4083]]
access control method as a part of its retransmission.
* * * * *
[FR Doc. 04-1836 Filed 1-27-04; 8:45 am]
BILLING CODE 6712-01-P