[Federal Register: May 9, 2005 (Volume 70, Number 88)]
[Proposed Rules]
[Page 24350-24358]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my05-25]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 05-181; FCC 05-92]
Implementation of Section 210 of the Satellite Home Viewer
Extension and Reauthorization Act of 2004 To Amend Section 338 of the
Communications Act
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Commission proposes rules to implement
section 210 of the Satellite Home Viewer Extension and Reauthorization
Act of 2004 (``SHVERA''). The Satellite Home Viewer Extension and
Reauthorization Act of 2004 (SHVERA) was enacted on December 8, 2004 as
title IX of the ``Consolidated Appropriations Act, 2005.'' This
proceeding to implement section 210 of SHVERA is one of a number of
Commission proceedings that will be required to implement SHVERA.
DATES: Comments for this proceeding are due on or before June 8, 2005;
reply comments are due on or before June 23, 2005. Written comments on
the proposed information collection requirements contained in this
document must be submitted by the public, the Office of Management and
Budget (OMB), and other interested parties on or before July 8, 2005.
ADDRESSES: You may submit comments, identified by MB Docket No. 05-181,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Eloise Gore, Eloise.Gore@fcc.gov of the Media
Bureau, Policy Division, (202) 418-2120. For additional information
concerning the Paperwork Reduction Act information collection
requirements contained in this NPRM, contact Cathy Williams, Federal
Communications Commission, 445 12th St, SW., Room 1-C823, Washington,
DC 20554, or via the Internet to Cathy.Williams@fcc.gov. If you would
like to obtain or view a copy of this revised information collection,
OMB Control Number 3060-0980, you may do so by visiting the FCC PRA Web
page at: http://www.fcc.gov/omd/pra.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 05-92, adopted on April 29, 2005,
and released on May 2, 2005. The full text of this document is
available for public inspection and copying during regular business
hours in the FCC Reference Center, Federal Communications Commission,
445 12th Street, SW., CY-A257, Washington, DC 20554. These documents
will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/).
(Documents will be available electronically in ASCII, Word 97, and/or
Adobe Acrobat.) The complete text may be purchased from the
Commission's copy contractor, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. To request this document in accessible formats
[[Page 24351]]
(computer diskettes, large print, audio recording, and Braille), send
an e-mail to fcc504@fcc.gov or call the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Initial Paperwork Reduction Act of 1995 Analysis
This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due July 8, 2005. Comments should address: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
seek specific comment on how we might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
OMB Control Number: 3060-0980.
Title: SHVERA Rules; Implementation of Section 210 of the Satellite
Home Viewer Extension and Reauthorization Act of 2004 (Broadcast Signal
Carriage Issues, Retransmission Consent Issues).
Form No.: Not applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities.
Estimated Number of Respondents: 7,179.
Estimated Time Per Response: 1-5 hours.
Frequency of Response: On occasion reporting requirement; every
three years reporting requirement.
Estimated Total Annual Burden: 10,196 hours.
Estimated Total Annual Costs: $30,000.
Privacy Act Impact Assessment: No impact(s).
Needs and Uses: On April 29, 2005, the Commission adopted a Notice
of Proposed Rule Making (NPRM), In the Matter of the Implementation of
Section 210 of the Satellite Home Viewer Extension and Reauthorization
Act of 2004 to Amend Section 338 of the Communications Act, MB Docket
No. 05-181, FCC 05-92. The NPRM proposed amendments to 47 CFR 76.66 to
implement section 210 of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''). Section 210 of the SHVERA
amends section 338(a) of the Communications Act of 1934, as amended,
(``Communications Act'' or ``Act''). Section 338 governs the carriage
of local television broadcast stations by satellite carriers. In
general, the SHVERA amends this section to require satellite carriers
to carry both the analog and digital signals of television broadcast
stations in local markets in noncontiguous States (including Alaska and
Hawaii), and to provide these signals to substantially all of their
subscribers in each station's local market by December 8, 2005 for
analog signals and by June 8, 2007 for digital signals.
On March 28, 2005, the Commission adopted an Order, FCC 05-81,
Implementation of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''), Procedural Rules, to
implement procedural rules as required by the SHVERA. The SHVERA is the
third statute that addresses satellite carriage of television broadcast
stations. The 2004 SHVERA gives satellite carriers the additional
option to carry Commission-determined ``significantly viewed'' out-of-
market signals to subscribers. The SHVERA requires the Commission to
undertake several proceedings to implement new rules, revise existing
rules, and conduct studies. The Procedural Rules Order to implement
sections 202, 205, and 209 of the SHVERA is one of a number of
Commission proceedings that will be required to implement the SHVERA.
Summary of the Notice of Proposed Rulemaking
I. Introduction
1. In this Notice of Proposed Rulemaking, NPRM, we propose rules to
implement section 210 of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''). The Satellite Home Viewer
Extension and Reauthorization Act of 2004 (SHVERA), Pub. L. 108-447,
section 210, 118 Stat 2809 (2004). SHVERA was enacted on December 8,
2004, as title IX of the ``Consolidated Appropriations Act, 2005.''
This proceeding to implement section 210 of SHVERA is one of a number
of Commission proceedings that will be required to implement SHVERA.
The other proceedings will be undertaken and largely completely in
2005; see section 202 of the SHVERA (entitled ``Significantly Viewed
Signals Permitted To Be Carried''), SHVERA NPRM, MB Docket No. 05-49,
FCC 05-24, 2005 WL 289026 (rel. Feb. 7, 2005); sections 202, 204, 205,
207, 208, 209 and 210 of the SHVERA; see also Public Notice, ``Media
Bureau Seeks Comment for Inquiry Required by the SHVERA on Rules
Affecting Competition in the Television Marketplace,'' MB Docket No.
05-28, DA 05-169 (rel. Jan. 25, 2005) (Public Notice regarding Inquiry
required by section 208 of the SHVERA concerning the impact of certain
rules and statutory provisions on competition in the television
marketplace); Implementation of Section 207 of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, Reciprocal Bargaining
Obligations, MB Docket No. 05-89, FCC 05-49 (rel. Mar. 7. 2005); and
Procedural Rules, FCC 05-81 (rel. March 30, 2005) (Order implementing
rule revisions required by sections 202, 205, and 209). Section 210 of
the SHVERA amends section 338(a) of the Communications Act of 1934, as
amended, (``Communications Act'' or ``Act''). Section 338 governs the
carriage of local television broadcast stations by satellite carriers;
see 47 U.S.C. 338. In general, the SHVERA amends this section to
require satellite carriers to carry both the analog and digital signals
of television broadcast stations in local markets in noncontiguous
states, including Alaska and Hawaii, and to provide these signals to
substantially all of their subscribers in each station's local market
by December 8, 2005 for analog signals and by June 8, 2007 for digital
signals; see 47 U.S.C. 338(a)(4) (as amended by section 210 of the
SHVERA).
II. Background
A. Satellite Home Viewer Act (SHVA) and Satellite Home Viewer
Improvement Act of 1999 (SHVIA)
2. In 1988, Congress passed the Satellite Home Viewer Act
(``SHVA''), which established a statutory copyright license for
satellite carriers to offer subscribers access to broadcast programming
via satellite when they are unable to receive the signal of a broadcast
station over the air (that is, an ``unserved'' household). The
Satellite Home Viewer Act of 1988, Pub. L. 100-667, 102 Stat. 3935,
Title II (1988)
[[Page 24352]]
(codified at 17 U.S.C. 111, 119). SHVA was enacted on November 16,
1988, as an amendment to the copyright laws. SHVA gave satellite
carriers a statutory license to offer signals to ``unserved''
households. 17 U.S.C. 119(a). In 1999, Congress enacted the Satellite
Home Viewer Improvement Act (``SHVIA''), which expanded on the 1988
SHVA by amending both the 1988 copyright laws, and the Communications
Act to permit satellite carriers to retransmit local broadcast
television signals directly to subscribers in the station's local
market (``local-into-local'' service) without requiring that they be in
``unserved'' households; see 17 U.S.C. 119 and 122, 47 U.S.C. 325, 338
and 339. The Satellite Home Viewer Improvement Act of 1999, Pub. L.
106-113, 113 Stat. 1501 (1999) (codified in scattered sections of 17
and 47 U.S.C.). SHVIA was enacted on November 29, 1999, as Title I of
the Intellectual Property and Communications Omnibus Reform Act of 1999
(``IPACORA'') (relating to copyright licensing and carriage of
broadcast signals by satellite carriers). The SHVIA created the
copyright license to provide local signals to subscribers regardless of
whether they were ``unserved;'' see 17 U.S.C. 122.
3. A satellite carrier provides ``local-into-local'' service when
it retransmits a local television station's signal back into the local
market of the television station for reception by subscribers. If a
carrier carries one or more stations in the market pursuant to the
statutory copyright license, it is required to carry all of the other
local stations in the local market, upon the station's request (that
is, the ``carry-one, carry-all'' requirement); see 47 U.S.C. 338(a)(1).
Generally, a television station's ``local market'' is the designated
market area (``DMA'') in which it is located. Section 340(i)(1) (as
amended by section 202 of the SHVERA), defines the term ``local
market'' by using the definition in 17 U.S.C. 122(j)(2): ``The term
`local market,' in the case of both commercial and noncommercial
television broadcast stations, means the designated market area in
which a station is located, and--(i) in the case of a commercial
television broadcast station, all commercial television broadcast
stations licensed to a community within the same designated market area
are within the same local market; and (ii) in the case of a
noncommercial educational television broadcast station, the market
includes any station that is licensed to a community within the same
designated market area as the noncommercial educational television
broadcast station.'' DMAs describe each television market in terms of a
unique geographic area, and are established by Nielsen Media Research
based on measured viewing patterns; see 17 U.S.C. 122(j)(2)(A)-(C).
There are 210 DMAs that encompass all counties in the 50 United States,
except for certain areas in Alaska. Alaska has three DMAs situated
around major population centers, but most of the State, which is
sparsely populated, is not included in DMAs. A satellite carrier
choosing to provide such local-into-local service is generally
obligated to carry any qualified local station in a particular DMA that
has made a timely election for mandatory carriage, unless the station's
programming is duplicative of the programming of another station
carried by the carrier in the DMA, or the station does not provide a
good quality signal to the carrier's local receive facility; see 47
U.S.C. 338(a)(1), (b)(1) and (c)(1).
B. Satellite Home Viewer Extension and Reauthorization Act of 2004
(SHVERA)
4. In December 2004, Congress passed and the President signed the
Satellite Home Viewer Extension and Reauthorization Act of 2004. SHVERA
again amends the 1988 copyright laws and the Communications Act to
further aid the competitiveness of satellite carriers and expand
program offerings for satellite subscribers; see 47 U.S.C. 325, 338,
339 and 340. Section 102 of SHVERA creates a new 17 U.S.C. 119(a)(3) to
provide satellite carriers with a statutory copyright license to offer
``significantly viewed'' signals as part of their local service to
subscribers. This rulemaking is required to implement provisions in
section 210 of the SHVERA concerning satellite carriage of local
stations in the noncontiguous states, including Alaska and Hawaii; see
47 U.S.C. 338(a)(4).
III. Discussion
5. Section 210 of the SHVERA amends section 338(a) of the
Communications Act to require satellite carriers with more than five
million subscribers in the United States to carry the analog and
digital signals of each television broadcast station licensed in local
markets ``within a State that is not part of the contiguous United
States.'' Analog signals are required to be carried by December 8,
2005, and digital signals by June 8, 2007. A carrier is required to
provide these signals to substantially all of its subscribers in each
station's local market. In addition, a satellite carrier is required to
make available the stations that it carries in at least one local
market to substantially all of its subscribers located outside of local
markets and in the same State. The SHVERA also mandates that satellite
carriers may not charge subscribers for these local signals more than
they charge subscribers in other States to receive local market
television stations. Although most of the requirements imposed by the
new section 338(a)(4) are self-effectuating, the SHVERA requires the
Commission to promulgate regulations concerning the timing of carriage
elections by stations in local markets in the noncontiguous states; see
47 U.S.C. 338(a)(4) (as amended by the SHVERA), which provides: (4)
CARRIAGE OF SIGNALS OF LOCAL STATIONS IN CERTAIN MARKETS-A satellite
carrier that offers multichannel video programming distribution service
in the United States to more than 5,000,000 subscribers shall (A)
within 1 year after the date of the enactment of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, retransmit the
signals originating as analog signals of each television broadcast
station located in any local market within a State that is not part of
the contiguous United States, and (B) within 30 months after such date
of enactment retransmit the signals originating as digital signals of
each such station. The retransmissions of such stations shall be made
available to substantially all of the satellite carrier's subscribers
in each station's local market, and the retransmissions of the stations
in at least one market in the State shall be made available to
substantially all of the satellite carrier's subscribers in areas of
the State that are not within a designated market area. The cost to
subscribers of such retransmissions shall not exceed the cost of
retransmissions of local television stations in other States. Within 1
year after the date of enactment of that Act, the Commission shall
promulgate regulations concerning elections by television stations in
such State between mandatory carriage pursuant to this section and
retransmission consent pursuant to section 325(b), which shall take
into account the schedule on which local television stations are made
available to viewers in such State. As required by the SHVERA, we open
this rulemaking proceeding and seek comments on implementation of the
SHVERA's amendments to section 338(a) of the Act, on rule proposals in
this NPRM, and tentative conclusions regarding these rules. The
proposed rules are in the Appendix to this NPRM. These amendments apply
only to satellite service in the noncontiguous states. The existing
signal carriage provisions in section 76.66 also continue to apply to
satellite service in
[[Page 24353]]
the noncontiguous states, where relevant and not inconsistent with the
rules proposed in this proceeding; see 47 CFR 76.66.
A. Satellite Carriers With More Than 5,000,000 Subscribers
6. The SHVERA adds subsection 338(a)(4) to the Act, which applies
to a ``satellite carrier that offers multichannel video programming
distribution service in the United States to more than 5,000,000
subscribers;'' see 47 U.S.C. 338(a)(4). We include this limitation in
the proposed new section 76.66(b)(2). This provision applies to
satellite carriers that have more than five million subscribers in 2005
and, in the future, to any carriers with more than five million
subscribers. Currently, DirecTV and EchoStar qualify under this
definition. We seek comments regarding the proposed rule.
B. Noncontiguous States
7. Section 210 of SHVERA applies to ``a State that is not part of
the contiguous United States;'' see 47 U.S.C. 338(a)(4). In the
Communications Act, the definition of ``State'' includes ``the
Territories and possessions;'' see 47 U.S.C. 153(40). We seek comment
on whether ``State'' as used in the SHVERA includes the noncontiguous
territories and possessions of the United States, including but not
limited to Puerto Rico and Guam and whether considerations such as a
satellite provider's regulatory authorizations and/or actual service
area are relevant to interpreting the obligation under section
338(a)(4) to serve ``noncontiguous states.'' We note that territories
in the Pacific, such as Guam, are in a different International
Telecommunication Union (``ITU'') region. The contiguous United States,
Alaska, Hawaii, Puerto Rico and the U.S. Virgin Islands are located in
ITU Region 2 and have orbital assignments in the Region 2 BSS Plan.
Guam, the Northern Marianas, Wake Island and Palmyra Island are located
in ITU Region 3 and have orbital assignments in the Region 3 BSS plan
at 122.0[deg] E.L., 121.80[deg] E.L., 140.0[deg] E.L. and 170.0[deg]
E.L. respectively. We seek comment on the impact of regulatory
differences (e.g., use of different frequency bands) between ITU
regions in providing service to these locations. Spot beam technology
may allow coverage of widely spaced areas if visible from the satellite
location. Many areas are not visible to all satellites. For example,
Guam is below the horizon for United States allocations east of
148[deg] W.L. Previously the Commission recognized that contiguous
United States (``CONUS'') antenna beams modified to include Puerto Rico
and the U.S. Virgin Islands could divert power from other regions and
potentially adversely affect the services of other countries. We seek
comment on satellite carriers' current capability to serve these areas
using current or planned technology.
C. Analog and Digital Signals
8. The SHVERA requirements for satellite carriage to the
noncontiguous states differ significantly from the existing satellite
broadcast carriage requirements, both in scope and timing. Currently,
under the Communications Act and Commission rules implementing the Act,
satellite carriers choose whether to rely on the statutory copyright
license in section 122 of title 17 to offer ``local-into-local
service,'' which in turn triggers the carry-one, carry-all obligation;
see 47 U.S.C. 338(a)(1) and 47 CFR 76.66(b), Implementation of the
Satellite Home Viewer Improvement Act of 1999, 16 FCC Rcd 1918 (2000)
16 FCC Rcd 16544 (2001) (``DBS Must Carry Reconsideration Order''). The
U.S. Court of Appeals for the Fourth Circuit upheld the constitutional
validity of SHVIA and the reasonableness of the Commission's rules
promulgated thereunder; see Satellite Broadcasting and Communications
Ass'n v. FCC, 275 F.3d 337 (2001), cert. denied, 536 U.S. 922 (2002).
The Communications Act, moreover, prohibits a multichannel video
programming distributor from retransmitting the signal of a broadcast
station unless it has ``the express authority'' of the station. 47
U.S.C. 325(b)(1)(A), 17 U.S.C. 122(a) (as amended by section 1002 of
the SHVIA) and 47 U.S.C. 338(a)(1) (as amended by section 1008 of the
SHVIA). Satellite carriers are not currently required to offer local-
into-local service in all markets. The question of satellite carriage
obligations concerning a station's digital signal is currently pending
before the Commission.
9. The new SHVERA provision for noncontiguous states supersedes
carry-one, carry-all and the pending digital carriage rulemaking
proceeding by mandating dual analog and digital carriage in the
noncontiguous states. A satellite carrier with more than five million
subscribers is required by the SHVERA to retransmit the analog signals
of each television station in local markets in the noncontiguous states
to subscribers in those local markets by December 8, 2005 (one year
after enactment of the SHVERA). The SHVERA expands this requirement to
include the digital signals of each station no later than June 8, 2007
(30 months after enactment of SHVERA). If any or all of the local
stations in the noncontiguous states are still broadcasting analog
signals as well as digital signals, as of June 8, 2007, the SHVERA
requirement mandates dual must carry. The Communciations Act provides
for termination of analog signal licenses as of December 31, 2006,
unless local stations request an extension and demonstrate that one or
more criteria exist in their markets; see 47 U.S.C. 309(j)(14)
(criteria include the so-called ``85% test''). Section 210 of the
SHVERA, which adds the carriage obligations for stations in
noncontiguous states (section 338(a)(4)), requires carriage of
``signals originating as analog signals'' and ``signals originating as
digital signals'' with no mention of a term such as ``primary video,''
the term used in the cable mandatory carriage provisions. 47 U.S.C.
534(b)(3) and 535(g). The Commission recently concluded that the
statutory term relating to cable mandatory carriage, ``primary video,''
was ambiguous with respect to whether it requires cable operators to
carry broadcasters' multicast signals. Faced with an ambiguous statute,
the Commission did not require mandatory carriage of multicast signals
by cable systems. The SHVERA provision before us contains no such
ambiguity. Moreover, we note that section 210 uses the plural term
``signals,'' requiring satellite carriers to retransmit the signals
originating as digital signals of each such station; see 47 U.S.C.
338(a)(4). In sum, this SHVERA amendment to section 338 does not
contain any limitation on the nature of the broadcast signal that
satellite operators must carry in the non-contiguous states. We
believe, therefore, that the amendment requires that satellite carriers
carry all multicast signals of each station in noncontiguous states and
carry the high definition digital signals of stations in noncontiguous
states in high definition format. We note that satellite carriage of
high definition local signals is also under review in the ongoing
broadcast carriage rulemaking docket in the context of applying the
statutory prohibition on material degradation. We seek comment on these
interpretations, and any alternative construction of the SHVERA as the
statute relates to the carriage of multicast and/or high definition
signals; see MB Docket Nos. 98-120 and 00-96, WHDT v. Echostar, 18 FCC
Rcd 396 (MB 2003) (``WHDT Order'').
D. Carriage Election by Stations
10. Section 210 of the SHVERA expressly requires only that the
Commission promulgate regulations
[[Page 24354]]
concerning the timing of the carriage elections related to the new
carriage provisions in the noncontiguous states. Section 210 of the
SHVERA also refers to the ``cost to subscribers of such transmissions''
but does not require rules for implementation. The Commission does not
regulate rates, costs or prices for satellite service to subscribers.
In this proceeding we propose regulations to implement the timing
required by the carriage requirements in the noncontiguous states, and
we will otherwise apply the rules pertaining to satellite carriage as
they were adopted to implement section 338 pursuant to the SHVIA; see
47 U.S.C. 338(a)(1), (b)(1), and (c), 47 CFR 76.66(g) and (h).
Therefore, carriage is mandated in the noncontiguous states for the
above dates in 2005 and 2007 when requested by a television station;
see proposed rule section 76.66(b)(2). The carriage procedures for
stations in the noncontiguous states shall follow the existing
requirements, except with respect to the carriage election process, as
proposed here; see proposed rule section 76.66(c)(6). Non-commercial
television stations do not elect carriage because they cannot elect
retransmission consent; see 47 U.S.C. 325(b)(2)(A). They are entitled
to mandatory carriage; see 47 U.S.C. 338, proposed rule section
76.66(c)(6). They are entitled to mandatory carriage; see 47 U.S.C.
338. We invite comment on these interpretations and proposals.
11. The analog signal carriage requirement mandated by the SHVERA
for satellite carriers serving noncontiguous states commences several
weeks before the carriage cycle that applies to satellite carriers and
broadcast stations in the contiguous states, which commences January 1,
2006, and continues until December 31, 2008; see 47 CFR 76.66(c). The
carriage election process enables stations to choose between carriage
pursuant to retransmission consent or mandatory carriage.
Retransmission consent is based on an agreement between a broadcast
station and satellite carrier, and includes a station's authorization
and terms for allowing its broadcast signal to be carried; see 47
U.S.C. 325(b). Broadcast stations and satellite carriers are required
to negotiate retransmission consent agreements in good faith; see 47
U.S.C. 338(b)(3)(c). If a station elects must-carry status, it is, in
general, entitled to insist without other terms that the satellite
carrier carry its signal in its local market; see 47 U.S.C. 338(a), 47
CFR 76.66(c).
12. To implement the carriage election timing requirements in
section 210 of the SHVERA, we propose to track the existing regulations
as closely as possible so that carriage elections in the noncontiguous
states will be synchronized with carriage elections in the contiguous
states quickly and smoothly. This synchronization is intended to make
the process simple and certain for both the local stations and the
satellite carriers. The first satellite carriage cycle (pursuant to the
SHVIA) will end on December 31, 2005. The carriage election deadline
for the second cycle is October 1, 2005, for carriage beginning January
1, 2006; see 47 CFR 76.66(c)(4). Because the analog carriage
requirement in the noncontiguous states is effective only 24 days
earlier, December 8, 2005, we propose to keep the same election
deadline of October 1, 2005. Thus, television broadcast stations in a
local market in the noncontiguous states would be required to make a
retransmission consent-mandatory carriage (must carry) election by
October 1, 2005, which is the same deadline as for local stations in
local-into-local markets in the contiguous states; see proposed section
76.66(c)(6). Carriage pursuant to a mandatory carriage election in the
contiguous states will begin on January 1, 2006, and carriage under our
proposed rules for noncontiguous states would begin by December 8,
2005; see 47 CFR 76.66(c)(2).
13. With respect to carriage of the digital signals of stations in
a noncontiguous state, we propose that the retransmission consent-must
carry election by a television station in a local market in the
noncontiguous states should be a two-step process with one election
that applies to the analog signal carriage, which commences December 8,
2005, and a second carriage election that would govern carriage of the
digital signal; see proposed rule section 76.66(c)(6). Carriage of
signals originating as digital must commence by June, 8, 2007, but may
begin pursuant to retransmission consent at any time. The deadline for
the second carriage election, for digital carriage, would be April 1,
2007, two months before carriage must commence. Alternatively, the
station's election by October 1, 2005, for its analog signal, could
also apply to its digital signal, for which mandatory carriage will
commence by June 8, 2007. We seek comment on our proposed two-step
approach and on the alternative of a single election. Two separate
elections would be consistent with the Commission's Cable Must Carry
decision in 2001 which permits stations broadcasting both analog and
digital signals to elect must carry for their analog signal and
retransmission consent for their digital signal. We believe that,
regardless of whether the carriage election is two-step or one-step,
stations in the noncontiguous states should be permitted to elect must
carry for their analog signals and negotiate for carriage of the
digital signals via retransmission consent before the mandatory digital
signal carriage takes effect. That is, until the digital carriage
rights for local stations in the noncontiguous states take effect as of
June 8, 2007, stations should be permitted to separately negotiate for
voluntary carriage of their digital signals even if they elect
mandatory carriage for their analog signals; see proposed section
76.66(c)(6). We seek comment on these proposals.
14. After the initial carriage cycle in the noncontiguous states,
the election cycle provided in section 76.66(c) will apply in the
future; see proposed section 76.66(c)(6). For example, the next
election after the upcoming 2005 election is required by October 1,
2008, for carriage beginning January 1, 2009; see 47 CFR 76.66(c)(2)
and (4). The election made by a station in 2008 would apply uniformly
to both its analog and digital signals, if both signals are continuing
to be broadcast.
15. A new television station in a noncontiguous state will have a
right to mandatory carriage for its analog signal if it begins service
after December 8, 2005, and for its digital signal if it begins service
after June 8, 2007. New stations should follow section 76.66(d)(3) of
the Commission's rules to notify the satellite carrier and elect
carriage; see 47 CFR 76.66(d)(3). We seek comments on our proposed
rules governing the carriage election process.
E. Availability of Signals
16. The SHVERA provides that in the noncontiguous states, satellite
retransmissions of local stations ``shall be made available to
substantially all of the satellite carrier's subscribers in each
station's local market;'' see 47 U.S.C. 338(a)(4). The SHVERA does not
define what is meant by ``substantially all'' subscribers. This wording
is consistent with the physical limitations of some satellite
technology that may not be able to reach all parts of a state or a DMA,
particularly where a spot beam is used to provide local stations. We
believe that this provision recognizes the existing physical
limitations on satellite service particularly in these noncontiguous
states. With respect to DBS service to Alaska, for example, the
Commission has stated that although reliable service usually requires a
minimum elevation angle of ten degrees
[[Page 24355]]
or more, service to Alaska is often offered at elevation angles as low
as five degrees. The Commission defined elevation angle ``as the upward
tilt of an earth station antenna measured in degrees relative to the
horizontal plane (ground), that is required to aim the earth station
antenna at the satellite. When aimed at the horizon, the elevation
angle is zero. If the satellite were below the horizon, the elevation
angle would be less than zero. If the earth station antenna were tilted
to a point directly overhead, it would have an elevation angle of
90[deg];'' see 47 U.S.C. 338(a)(4). In addition, the Commission
determined that in some areas of Alaska, from some orbit locations, the
elevation angle was less than five degrees, or even below the horizon,
thereby making service to those areas impossible. For example, the
elevation angle for Attu Island, Alaska is less than zero or below the
horizon for the 61.5[deg], 101[deg], and 110[deg] orbit locations and
only 4 for the 119[deg] location. We note, however, that satellite
carriers must abide by the geographic service rules that require
service where technically feasible. We welcome comment on the meaning
of ``substantially all of the carrier's subscribers in each station's
market.''
17. We do not believe it is necessary to adopt new rules to
implement this provision. This provision is similar to the Commission
interpretation adopted in the implementation of the SHVIA, that
satellite carriers that offer local-into-local service are not required
to provide service to every subscriber in a DMA. We seek comment on
whether it is necessary to adopt a rule on this point, and, if so, what
it should provide.
F. Areas Outside Local Markets
18. The SHVERA also addresses the anomalous situation in Alaska,
the only one of the fifty states that has areas that are not included
within any DMA. The eight major islands of Hawaii are currently
included within the Honolulu DMA. If the reference to ``noncontiguous
States'' is read to include territories and possessions, none of them
are in DMAs and would be subject to the special treatment described in
section 210. The statute requires a satellite carrier in Alaska to make
available the signals of all the local television stations that it
carries in at least one local market to substantially all of its
subscribers in areas outside of local markets who are in the same
State; see 47 U.S.C. 338(a)(4). In Alaska, there are three DMAs
covering the main population centers, but most of the State, which is
sparsely populated, is not included in a DMA. Thus, a satellite carrier
in Alaska would be required to provide the television stations that it
carries in at least one of the three DMAs, in which carriage of local
stations is required by section 210 of the SHVERA, to areas of the
State not included in DMAs. We believe that the statute speaks for
itself and that no special rule is required to implement this statutory
requirement. We seek comment on this conclusion.
G. Notification by Satellite Carrier
19. Section 210 of the SHVERA does not expressly require revisions
to the existing notification procedures in connection with the new
carriage requirements in the noncontiguous states. However, to ensure
that the purpose of section 210 is achieved, we seek comment on whether
to require satellite carriers with more than 5 million subscribers to
notify all television broadcast stations located in local markets in
the noncontiguous states that they are entitled to carriage of their
analog signals as of December 8, 2005, and of their digital signals as
of June 8, 2007, and that they must elect mandatory carriage or
retransmission consent by October 1, 2005 and April 1, 2007,
respectively, to be assured of carriage, as provided in sections
76.66(b)(2) and (c)(6). If required, this notification to the stations
should include a statement advising them of the opportunity to have
their analog and digital signals made available by the carrier to the
carrier's subscribers in the local market of each station. If adopted,
this notification would be required by September 1, 2005, with respect
to analog signal carriage election, and by March 1, 2007, with respect
to the carriage election for digital signals; see proposed section
76.66(d)(2)(iii). A new satellite carrier that meets this definition
after 2005 would be required to comply with section 76.66(d)(2) of the
Commission's rules regarding ``new local-into-local service'' (imposes
requirements when a new satellite carrier intends to retransmit a local
television station back into its local market); see 47 CFR 76.66(d)(2).
We seek comment on the need for this notification. We also request
comment on whether such notice should be required only for stations in
Alaska and Hawaii or also for television broadcast stations in all
noncontiguous territories and possessions. We also seek comment on the
need for a second notification 30 days prior to the second carriage
election deadline, which is proposed for April 1, 2007 for carriage of
digital signals. If, alternatively, the October 1, 2005 carriage
election applies to both the analog and digital signals of local
stations in the noncontiguous states, we propose that a second
notification would not be required prior to the commencement of
carriage of digital signals in June of 2007. We seek comment on these
proposals.
IV. Procedural Matters
A. Initial Regulatory Flexibility Certification
20. The Regulatory Flexibility Act of 1980, as amended (RFA),
requires that an initial regulatory flexibility analysis be prepared
for notice-and-comment rule making proceedings, unless the agency
certifies that ``the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities;'' see 5
U.S.C. 605(b), 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996). The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction;'' see 5 U.S.C. 601(6). In addition, the term
``small business'' has the same meaning as the term ``small business
concern'' under the Small Business Act; see 5 U.S.C. 601(3). 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); see 15 U.S.C. 632.
21. As described in this NPRM, we propose to amend section 76.66 of
the Commission's rules as required by section 210 of the SHVERA. We
expect these rule amendments, if adopted, will not have a significant
economic impact on a substantial number of small entities. The proposed
rules contained in this NPRM, as required by statute, are intended to
allow for local television stations to elect carriage pursuant to
retransmission consent or mandatory carriage with respect to satellite
carriers with more than 5 million subscribers in a non-contiguous
state. ``Satellite carriers,'' including Direct Broadcast Satellite
(DBS) carriers, will be directly and primarily affected by the proposed
rules, if adopted.
22. The satellite carriers covered by these proposed rules fall
within the SBA-recognized small business size standard of Cable and
Other Program Distribution; see 13 CFR 121.201. This size standard
provides that a small entity is one with $12.5 million or less in
annual receipts; see 13 CFR 121.201. The two satellite carriers that
are subject
[[Page 24356]]
to these proposed rule amendments because they currently have more than
five million subscribers, DirecTV (DirecTV is the largest DBS operator
and the second largest MVPD, serving an estimated 13.04 million
subscribers nationwide) and EchoStar (EchoStar, which provides service
under the brand name Dish Network, is the second largest DBS operator
and the fourth largest MVPD, serving an estimated 10.12 million
subscribers nationwide), report annual revenues that are in excess of
the threshold for a small business. We anticipate that any satellite
carrier that, in the future, has more than five million subscribers
would necessarily have more than $12.5 million in annual receipts.
Thus, the entities directly affected by the proposed rules are not
small entities.
23. We also note that, in addition to satellite carriers,
television broadcast stations are indirectly affected by the proposed
rule in that they potentially benefit from the satellite carriage
required by the rule and must elect between mandatory carriage and
retransmission consent. This carriage election, however, follows the
existing Commission rules. These existing rules currently permit
stations in the noncontiguous states to elect carriage if and when a
satellite carrier offers local-into-local service in their market. The
proposed rules would affect these election rights by merely providing a
date certain for carriage in these specified markets, which would not
have a significant economic impact.
24. Therefore, we certify that the proposed rules, if adopted, will
not have a significant economic impact on a substantial number of small
entities. The Commission will send a copy of this Notice of Proposed
Rulemaking, including a copy of this Initial Regulatory Flexibility
Certification, to the Chief Counsel for Advocacy of the SBA; see 5
U.S.C. 605(b). This initial certification will also be published in the
Federal Register; see 5 U.S.C. 605(b).
B. Initial Paperwork Reduction Act of 1995 Analysis
25. This NPRM has been analyzed with respect to the Paperwork
Reduction Act of 1995 (``PRA''), and contains proposed information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the proposed
information collection requirements contained in this NPRM, as required
by the PRA.
26. Written comments on the PRA proposed information collection
requirements must be submitted by the public, the Office of Management
and Budget (OMB), and other interested parties on or before July 8,
2005. Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
we seek specific comment on how we might ``further reduce the
information collection burden for small business concerns with fewer
than 25 employees;'' Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).
27. In addition to filing comments with the Office of the
Secretary, a copy of any comments on the proposed information
collection requirements contained herein should be submitted to Cathy
Williams, Federal Communications Commission, 445 12th St, SW., Room 1-
C823, Washington, DC 20554, or via the Internet to
Cathy.Williams@fcc.gov; and also to Kristy L. LaLonde, OMB Desk
Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503,
or via Internet to Kristy_L._LaLonde@omb.eop.gov, or via fax at (202)
395-5167.
28. Further Information. For additional information concerning the
PRA proposed information collection requirements contained in this
NPRM, contact Cathy Williams at (202) 418-2918, or via the Internet to
Cathy.Williams@fcc.gov. If you would like to obtain or view a copy of
this revised information collection, OMB Control Number 3060-0980, you
may do so by visiting the FCC PRA Web page at: http://www.fcc.gov/omd/pra
.
C. Ex Parte Rules
29. Permit-but-Disclose. This proceeding will be treated as a
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under section 1.1206(b) of the Commission's
rules; see 47 CFR 1.1206(b); 47 CFR 1.1202, 1.1203. Ex parte
presentations are permissible if disclosed in accordance with
Commission rules, except during the Sunshine Agenda period when
presentations, ex parte or otherwise, are generally prohibited. Persons
making oral ex parte presentations are reminded that a memorandum
summarizing a presentation must contain a summary of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one-or two-sentence description of the views and arguments
presented is generally required; see 47 CFR 1.1206(b)(2). Additional
rules pertaining to oral and written presentations are set forth in
section 1.1206(b).
D. Filing Requirements
30. Comments and Replies. The SHVERA requires the Commission to
complete action within one year of enactment (December 8, 2004) to take
account of carriage elections in light of the schedule for carriage as
required in the noncontiguous states; see 47 U.S.C. 338(a)(4). The
carriage election deadline is October 1, 2005 for the next carriage
cycle. If the Commission waited until December 8, 2005, to implement
this provision, it would be too late for stations to elect between must
carry and retransmission consent for the carriage to commence on
December 8, 2005. In addition, the Commission is proposing to require
satellite carriers to provide notice to local stations in the
noncontiguous states concerning the new carriage requirements one month
prior to the carriage election deadline. Thus, the proposed
notification requirement, if adopted, must be in effect by September 1,
2005, 30 days prior to the carriage election deadline of October 1,
2005, with respect to carriage of the analog signals required to
commence by December 8, 2005. Consequently, the pleading cycle for
comments and replies must be compressed and expedited. Pursuant to
sections 1.415 and 1.419 of the Commission's rules, interested parties
may file comments on or before June 6, 2005, and reply comments on or
before June 20, 2005; see 47 CFR 1.415, 1419. Comments may be filed
using: (1) The Commission's Electronic Comment Filing System
(``ECFS''), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies; see 13 FCC Rcd 11322 (1998).
31. Electronic Filers: Comments may be filed electronically using
the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should
follow the instructions provided on the Web site for submitting
comments. For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must
[[Page 24357]]
transmit one electronic copy of the comments for each docket or
rulemaking number referenced in the caption. In completing the
transmittal screen, filers should include their full name, U.S. Postal
Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions, filers should send an e-mail to
ecfs@fcc.gov, and include the following words in the body of the
message, ``get form.'' A sample form and directions will be sent in
response.
32. Paper Filers: Parties who choose to file by paper must file an
original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
33. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-A257, Washington,
DC 20554. These documents will also be available via ECFS. Documents
will be available electronically in ASCII, Word 97, and/or Adobe
Acrobat.
34. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: http://www.fcc.gov.
35. Additional Information. For additional information on this
proceeding, contact Eloise Gore, Eloise.Gore@fcc.gov, or Jim Keats,
Jim.Keats@fcc.gov, of the Media Bureau, Policy Division, (202) 418-
2120.
V. Ordering Clauses
36. Accordingly, it is ordered that pursuant to section 210 of the
Satellite Home Viewer Extension and Reauthorization Act of 2004, and
sections 1, 4(i) and (j), and 338(a)(4) of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i) and (j), and 338(a)(4), notice
is hereby given of the proposals and tentative conclusions described in
this Notice of Proposed Rulemaking.
37. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.
List of Subjects in 47 CFR Part 76
Cable television, Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
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
1. The authority citation for 47 CFR part 76 continues to read as
follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302a, 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.
2. Section 76.66 is amended by revising paragraphs (b)(2) and
(c)(4), by adding paragraph (c)(6), redesignate paragraphs (d)(2)(iii)
and (d)(2)(iv) as paragraphs (d)(2)(iv) and (d)(2)(v) and by adding a
new paragraph (d)(2)(iii) to read as follows:
Sec. 76.66 Satellite broadcast signal carriage.
* * * * *
(b) * * *
(2) A satellite carrier that offers multichannel video programming
distribution service in the United States to more than 5,000,000
subscribers shall, no later than December 8, 2005, carry upon request
the signal originating as an analog signal of each television broadcast
station that is located in a local market in a noncontiguous state; and
shall, no later than June 8, 2007, carry upon request the signals
originating as digital signals of each television broadcast station
that is located in a local market in a noncontiguous State.
* * * * *
(c) * * *
(4) Except as provided in paragraphs (c)(6), (d)(2) and (d)(3) of
this section, local commercial television broadcast stations shall make
their retransmission consent-mandatory carriage election by October 1st
of the year preceding the new cycle for all election cycles after the
first election cycle.
* * * * *
(6) A commercial television broadcast station located in a local
market in a noncontiguous State shall make its retransmission consent-
mandatory carriage election by October 1, 2005, for carriage of its
signal that originates as an analog signal for carriage commencing on
December 8, 2005 and ending on December 31, 2008, and by April 1, 2007,
for its signal that originates as a digital signal for carriage
commencing on June 8, 2007 and ending on December 31, 2008. For analog
and digital signal carriage cycles commencing after December 31, 2008,
such stations shall follow the election cycle in paragraphs (c)(2) and
(c)(4) of this section. A noncommercial television broadcast station
located in a local market in Alaska or Hawaii must request carriage by
October 1, 2005, for carriage of its signal that originates as an
analog signal for carriage commencing on December 8, 2005 and ending on
December 31, 2008, and for its signal that originates as a digital
signal for carriage commencing on June 8, 2007 and ending on December
31, 2008.
* * * * *
(d) * * *
(2) * * *
(iii) A satellite carrier with more than five million subscribers
shall provide the notice as required by paragraphs (d)(2)(i) and
(d)(2)(ii) of this section to each television broadcast station located
in a local market in the noncontiguous States, not later than September
1, 2005 with respect to carriage of analog signals and not later than
March 1, 2007 with respect to carriage of digital signals; provided,
however, that the notice shall
[[Page 24358]]
also describe the carriage requirements pursuant to section 338(a)(4)
of title 47, United States Code, and paragraph (b)(2) of this section.
* * * * *
[FR Doc. 05-9290 Filed 5-6-05; 8:45 am]
BILLING CODE 6712-01-P