[Federal Register: January 26, 2005 (Volume 70, Number 16)]
[Proposed Rules]
[Page 3656-3658]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja05-21]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 258
[Docket No. 2004-9 CARP SRA]
Rate Adjustment for the Satellite Carrier Compulsory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Copyright Office of the Library of Congress is submitting
for public comment a proposed settlement of royalty rates for analog
television broadcast stations retransmitted by satellite carriers under
statutory license.
DATES: Comments and Notices of Intent to Participate must be submitted
no later than February 25, 2005.
ADDRESSES: If hand delivered by a private party, an original and five
copies of a comment and a Notice of Intent to Participate should be
brought to Room LM-401 of the James Madison Memorial Building between
8:30 a.m. and 5 p.m. and the envelope should be addressed as follows:
Copyright Office General Counsel/CARP, U.S. Copyright Office, James
Madison Memorial Building, Room LM-401, 101 Independence Avenue, S.E.,
Washington, DC 20559-6000. If delivered by a commercial courier, an
original and five copies of a comment and a Notice of Intent to
Participate must be delivered to the Congressional Courier Acceptance
Site located at 2nd and D Streets, N.E., between 8:30 a.m. and 4 p.m.
The envelope should be addressed as follows: Copyright Office General
Counsel/CARP, Room LM-403, James Madison Memorial Building, 101
Independence Avenue, S.E., Washington, DC. If sent by mail (including
overnight delivery using U.S. Postal Service Express Mail), an original
and five copies of a comment and a Notice of Intent to Participate
should be addressed to: Copyright Arbitration Royalty Panel (CARP),
P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Comments
and Notices of Intent to Participate may not be delivered by means of
overnight delivery services such as Federal Express, United Parcel
Service, etc., due to delays in processing receipt of such deliveries.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
William J. Roberts, Jr., Senior Attorney, Copyright Arbitration Royalty
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024-
0977. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION: On December 8, 2004, the President signed
the Satellite Home Viewer Extension and Reauthorization Act
(``SHVERA''), a part of the Consolidated Appropriations Act of 2005,
Pub. L. 108-447. SHVERA extends for an additional five years the
statutory license for satellite carriers retransmitting over-the-air
television broadcast stations to their subscribers, 17 U.S.C. 119, as
well as makes a number of amendments to the license. One of the
amendments to section 119 sets forth a process for adjusting the
royalty fees paid by satellite carriers for retransmitting analog
television network and superstations. 17 U.S.C. 119(c)(1). The law
directs the Librarian of Congress to publish notice in the Federal
Register requesting satellite carriers, distributors and copyright
owners to submit to the Copyright Office any voluntary agreements they
have negotiated as to the adjustment of the rates for analog stations.
The Library published such a notice on
[[Page 3657]]
December 30, 2004, and, pursuant to the statute, requested that any
agreements be submitted no later than January 10, 2005. 69 FR 78482
(December 30, 2004).
The Office has received one agreement, submitted jointly by the
satellite carriers DirecTV, Inc. and EchoStar Satellite L.L.C., the
copyright owners of motion pictures and syndicated television series
represented by the Motion Picture Association of America, and the
copyright owners of sports programming represented by the Office of the
Commissioner of Baseball. Section 119(c)(1)(D)(ii)(II) requires the
Library to ``provide public notice of the royalty fees from the
voluntary agreement and afford parties an opportunity to state that
they object to those fees.'' 17 U.S.C. 119(c)(1)(D)(ii)(II). This
Notice of Proposed Rulemaking (``NPRM'') fulfills the requirement.
The law further provides that the Librarian shall adopt the rates
contained in the voluntary agreement as applicable to all satellite
carriers, distributors and copyright owners ``unless a party with an
intent to participate'' in a royalty rate adjustment proceeding before
a Copyright Arbitration Royalty Panel (``CARP'') and a ``significant
interest in the outcome'' of the CARP proceeding files an objection.
Consequently, any party that objects to the rates proposed in this NPRM
must submit the following on or before February 25, 2005:
1. A notice of objection to the rates identifying the rate or rates
to which the objection applies and the reasons for the objection;
2. A statement setting forth in detail why the objector has a
significant interest in the royalty rates to be adopted; and
3. A separate Notice of Intent to Participate in the CARP
proceeding to adjust the rates. The CARP proceeding will commence on
May 1, 2005. See 17 U.S.C. 119(c)(1)(F).
Only parties objecting to the royalty rates should submit the
above-described documents.
A copy of the voluntary agreement can be viewed at http://www.copyright.gov/carp/sat_rate_agreement.pdf.
The Library is not
proposing for adoption the additional terms set forth in the agreement
as the statute only provides for adoption of royalty rates. See 17
U.S.C. 119(c)(1)(D)(ii)(III).
Proposed Regulations
For the reasons set forth above, the Copyright Office proposes to
amend 37 CFR chapter II as follows:
PART 258--ADJUSTMENT OF ROYALTY FEE FOR SECONDARY TRANSMISSIONS BY
SATELLITE CARRIERS
1. The authority citation for part 258 is amended to read as
follows:
Authority: 17 U.S.C. 119, 702, 802.
2. Section 258.2 is revised to read as follows:
Sec. 258.2 Definitions.
(a) Commercial establishment. The term ``commercial establishment''
means an establishment used for commercial purposes, such as bars,
restaurants, private offices, fitness clubs, oil rigs, retail stores,
banks and financial institutions, supermarkets, auto and boat
dealerships, and other establishments with common business areas;
provided that the term ``commercial establishment'' shall not include a
multi-unit permanent or temporary dwelling where private home viewing
occurs, such as hotels, dormitories, hospitals, apartments,
condominiums and prisons, all of which shall be subject to the rates
applicable to private home viewing.
(b) Syndex-proof signal. A satellite retransmission of a broadcast
signal shall be deemed ``syndex proof'' for purposes of Sec. 258.3(b)
if, during any semi-annual reporting period, the retransmission does
not include any program which, if delivered by any cable system in the
United States, would be subject to the syndicated exclusivity rules of
the Federal Communications Commission.
(c) Per subscriber per month. The term ``per subscriber per month''
means each subscriber subscribing to the station in question, or to a
package including such station, on the last day of a given month.
3. Section 258.3 is amended by adding new paragraphs (d) through
(h) to read as follows:
Sec. 258.3 Royalty fee for secondary transmission of broadcast
stations by satellite carriers.
* * * * *
(d) Commencing January 1, 2005, the royalty rate for secondary
transmission of broadcast stations by satellite carriers shall be as
follows:
(1) For private home viewing-
(i) 20 cents per subscriber per month for distant superstations.
(ii) 17 cents per subscriber per month for distant network
stations.
(2) For viewing in commercial establishments, 40 cents per
subscriber per month for distant superstations.
(e) Commencing January 1, 2006, the royalty rate for secondary
transmission of broadcast stations by satellite carriers shall be as
follows:
(1) For private home viewing-
(i) 21.5 cents per subscriber per month for distant superstations.
(ii) 20 cents per subscriber per month for distant network
stations.
(2) For viewing in commercial establishments, 43 cents per
subscriber per month for distant superstations.
(f) Commencing January 1, 2007, the royalty rate for secondary
transmission of broadcast stations by satellite carriers shall be as
follows:
(1) For private home viewing-
(i) 23 cents per subscriber per month for distant superstations.
(ii) 23 cents per subscriber per month for distant network
stations.
(2) For viewing in commercial establishments, 46 cents per
subscriber per month for distant superstations.
(g) Commencing January 1, 2008, the royalty rate for secondary
transmission of broadcast stations by satellite carriers shall be as
follows:
(1) For private home viewing-
(i) The 2007 rate per subscriber per month for distant
superstations adjusted for the amount of inflation as measured by the
change in the Consumer Price Index for all Urban Consumers from January
2007 to January 2008.
(ii) The 2007 rate per subscriber per month for distant network
stations adjusted for the amount of inflation as measured by the change
in the Consumer Price Index for all Urban Consumers from January 2007
to January 2008.
(2) For viewing in commercial establishments, the 2007 rate per
subscriber per month for viewing distant superstations in commercial
establishments adjusted for the amount of inflation as measured by the
change in the Consumer Price Index for all Urban Consumers from January
2007 to January 2008.
(h) Commencing January 1, 2009, the royalty rate for secondary
transmission of broadcast stations by satellite carriers shall be as
follows:
(1) For private home viewing-
(i) The 2008 rate per subscriber per month for distant
superstations adjusted for the amount of inflation as measured by the
change in the Consumer Price Index for all Urban Consumers from January
2008 to January 2009.
(ii) The 2008 rate per subscriber per month for distant network
stations adjusted for the amount of inflation as measured by the change
in the Consumer Price Index for all Urban Consumers from January 2008
to January 2009.
(2) For viewing in commercial establishments, the 2008 rate per
[[Page 3658]]
subscriber per month for viewing distant superstations in commercial
establishments adjusted for the amount of inflation as measured by the
change in the Consumer Price Index for all Urban Consumers from January
2008 to January 2009.
Dated: January 21, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-1435 Filed 1-25-05; 8:45 am]
BILLING CODE 1410-33-S