[Federal Register Volume 73, Number 87 (Monday, May 5, 2008)]
[Proposed Rules]
[Pages 24515-24519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9747]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 00-96; FCC 08-86]
Carriage of Digital Television Broadcast Signals; Implementation
of the Satellite Home Viewer Improvement Act of 1999: Local Broadcast
Signal Carriage Issues and Retransmission Consent Issues
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on the application of the
statutory requirement for nondiscriminatory treatment in carriage of
standard definition (``SD'') and high definition (``HD'') signals.
Satellite
[[Page 24516]]
carriers should be required to carry the signals of all local broadcast
stations in HD and SD if they carry the signals of any local station in
the same market in both HD and SD so that subscribers without HD-
capable equipment will be able to view all stations. That is, the
Commission seeks comment on whether the Communications Act would
prohibit satellite carriers from carrying some broadcast stations in
both HD and SD but not others.
DATES: Comments for this proceeding are due on or before June 4, 2008;
reply comments are due on or before June 19, 2008.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. You may submit comments, identified by CS Docket
No. 00-96, 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: [email protected] 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 more information on this
proceeding, please contact Lyle Elder, [email protected], or Eloise
Gore, [email protected], of the Media Bureau, Policy Division, (202)
418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Further Notice of Proposed Rulemaking in CS Docket No. 00-96, FCC 08-
86, adopted March 19, 2008, and released March 27, 2008. 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 (computer diskettes, large print, audio recording,
and Braille), send an e-mail to [email protected] or call the Commission's
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
Summary of the Notice of Proposed Rulemaking
I. Second Further Notice of Proposed Rulemaking
1. We seek comment on the scope of satellite carriers' carriage
obligations under Section 338 of the Act as the HD carriage requirement
becomes effective. In those markets, satellite carriers will be
carrying the HD signals from all stations broadcasting in HD. But many
subscribers in those markets may not have HD-capable set-top boxes on
all sets connected to the DBS system. In such markets, carriage of only
an HD signal would mean that those subscribers without HD-capable
equipment would not be able to view the programming.
2. In such circumstances, satellite carriers may wish to provide
separate SD broadcast feeds in addition to the mandated HD feeds. We
seek comment on whether satellite carriers should be required to carry
the signals of all local broadcast stations in HD and SD if they carry
the signals of any local station in the same market in both HD and SD.
That is, we seek comment on whether the Act would prohibit satellite
carriers from carrying some broadcast stations in both HD and SD but
not others--e.g., under the carry-one, carry-all provisions of section
338(a) of the Act or the nondiscrimination provisions of section 338(d)
of the Act.
3. We also seek comment on the applicability of section 338(g)(2)
of the Act, added in 2004, which provides that ``[i]f the carrier
retransmits signals in the digital television service, the carrier
shall retransmit such digital signals in such market by means of a
single reception antenna and associated equipment.'' In local markets
where a satellite carrier carries the signal of at least one local
broadcaster in both HD and SD format, we seek comment on whether this
provision requires that the operator do so for all broadcast stations
in that market.
4. Finally, we seek comment on the petition for rulemaking filed by
Rancho Palos Verdes (``RPV Petition''), which asks the Commission to
adopt rules for satellite carriers that would be similar to the
``viewability'' provisions governing cable operators. The statutory
bases for the cable viewability rules do not appear to have express DBS
equivalents. We seek comment on whether satellite carriers nonetheless
have an obligation, under sections 338(a), (d), (g), or any other
provision, to provide all subscribers in a local-into-local market with
the ability to view all stations carried pursuant to carry-one, carry-
all requirements. As a policy matter, should the Commission impose such
a requirement in the interests of regulatory parity and for the benefit
of consumers?
5. Requiring similar treatment among broadcast stations could help
ensure that consumers in local-into-local markets continue to receive
all of their local broadcast signals, regardless of their subscription
package. On the other hand, we seek comment on the impact of such a
requirement on satellite carriers' ability to add local-into-local
markets or to meet the HD implementation schedule set forth in the
Order (Adopted: 3/19/08, Released: 3/27/08). We seek comment on these
and any other legal, factual, or policy issues raised by the above
discussion.
II. Procedural Matters
A. Initial Regulatory Flexibility Analysis
6. As required by the Regulatory Flexibility Act of 1980 (``RFA''),
the Commission has prepared an Initial Regulatory Flexibility Analysis
(``IRFA'') relating to this Second Further Notice of Proposed
Rulemaking. The IRFA is set forth in Appendix B.
7. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA''), the Commission has prepared this Initial Regulatory
Flexibility Analysis (``IRFA'') of the possible economic impact on a
substantial number of small entities by the policies and rules proposed
in this Second Further Notice of Proposed Rulemaking (``Second Further
NPRM''). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments on the Second Further NPRM as indicated on the
first page of the Order. The Commission will send a copy of the Second
Further NPRM, including this IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration (``SBA''). In addition, the Second
Further NPRM and IRFA (or summaries thereof) will be published in the
Federal Register.
1. Need for, and Objectives of, the Proposals
8. This Second Further NPRM seeks comment on the scope of satellite
carriers' carriage obligations under
[[Page 24517]]
section 338 of the Act as the HD carriage requirement becomes
effective. It asks whether satellite carriers should be required to
carry the signals of all local broadcast stations in HD and SD if they
carry the signals of any local station in the same market in both HD
and SD. It also asks whether satellite carriers have an obligation,
under sections 338(a), (d), (g), or any other provision, to provide all
subscribers in a local-into-local market with the ability to view all
stations carried pursuant to carry-one, carry all requirements. It
seeks comment on whether, as a policy matter, the Commission should
impose such a requirement, and on the impact of such a requirement on
satellite carriers' ability to add local-into-local markets or to meet
the HD implementation schedule set forth in the Order. Finally, it
seeks comment on any other legal, factual or policy issues raised by
the discussion in the Further Notice itself.
2. Legal Basis
9. The authority for the action proposed in this rulemaking is
contained in sections 4(i), 4(j), 303(r), 325, 336, 338, 614, and 615
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), 303(r), 325, 336, 338, 534, and 535.
3. Description and Estimate of the Number of Small Entities To Which
the Proposals Will Apply
10. 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 rules adopted herein. The RFA defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small business concern''
under Section 3 of the Small Business Act. 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). The rules adopted herein will directly affect
small television broadcast stations and small satellite carriers. A
description of these small entities, as well as an estimate of the
number of such small entities, is provided below.
11. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $13.0 million in annual receipts. Business concerns included in
this industry are those ``primarily engaged in broadcasting images
together with sound.'' The Commission has estimated the number of
licensed commercial television stations to be 1,376. According to
Commission staff review of the BIA Publications, Inc. Master Access
Television Analyzer Database (BIA) on March 30, 2007, about 986 of an
estimated 1,374 commercial television stations (or approximately 72
percent) have revenues of $13.0 million or less and thus qualify as
small entities under the SBA definition. We note, however, that, in
assessing whether a business concern qualifies as small under the above
definition, business (control) affiliations must be included. Our
estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies. The Commission has estimated the number of
licensed noncommercial educational (NCE) television stations to be 380.
The Commission does not compile and otherwise does not have access to
information on the revenue of NCE stations that would permit it to
determine how many such stations would qualify as small entities.
12. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. We are
unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which rules may apply do not exclude any television station from the
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. We note that it is difficult at times
to assess these criteria in the context of media entities and our
estimates of small businesses to which they apply may be over-inclusive
to this extent.
13. Satellite Carriers. The term ``satellite carrier'' includes
entities providing services as described in 17 U.S.C. 119(d)(6) using
the facilities of a satellite or satellite service licensed under Part
25 of the Commission's rules to operate in Direct Broadcast Satellite
(``DBS'') or Fixed-Satellite Service (``FSS'') frequencies. As a
general practice, not mandated by any regulation, DBS licensees usually
own and operate their own satellite facilities as well as package the
programming they offer to their subscribers. In contrast, satellite
carriers using FSS facilities often lease capacity from another entity
that is licensed to operate the satellite used to provide service to
subscribers. These entities package their own programming and may or
may not be Commission licensees themselves. In addition, a third
situation may include an entity using a non-U.S. licensed satellite to
provide programming to subscribers in the United States pursuant to a
blanket earth station license. Since 2007, the SBA has recognized
satellite television distribution services within the broad economic
census category of Wired Telecommunications Carriers. The SBA has
developed a small business size standard for this category, which is:
All such firms having 1,500 or fewer employees. The most current Census
Bureau data, however, are from the last economic census of 2002, and we
will use those figures to gauge the prevalence of small businesses in
this category. Those size standards are for the two census categories
of ``Satellite Telecommunications'' and ``Other Telecommunications.''
Under both prior categories, such a business was considered small if it
had $13.5 million or less in average annual receipts.
14. Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. Because DBS provides subscription
services, DBS falls within the SBA-recognized definition of Wired
Telecommunications Carriers. However, as discussed above, we rely on
the previous size standard, Cable and Other Subscription Programming,
which provides that a small entity is one with $13.5 million or less in
annual receipts. Currently, only two operators--DirecTV and EchoStar
Communications Corporation (``EchoStar'')--hold licenses to provide DBS
service, which requires a great investment of capital for operation.
Both currently offer subscription services and report annual revenues
that are in excess of the threshold for a small business. Because DBS
service requires significant capital, we believe it is unlikely that a
small entity as defined by the SBA would have the financial wherewithal
to become a DBS licensee. Nevertheless, given the absence of specific
data on this point, we acknowledge the possibility that there are
entrants in this field that may not yet have generated $13.5 million in
annual receipts, and therefore may be categorized as a small business,
if independently owned and operated.
15. Fixed-Satellite Service (``FSS''). The FSS is a
radiocommunication service between earth stations at a
[[Page 24518]]
specified fixed point or between any fixed point within specified areas
and one or more satellites. The FSS, which utilizes many earth stations
that communicate with one or more space stations, may be used to
provide subscription video service. Therefore, to the extent FSS
frequencies are used to provide subscription services, FSS falls within
the SBA-recognized definition of Wired Telecommunications Carriers.
However, as discussed above, we rely on the previous size standard,
Cable and Other Subscription Programming, which provides that a small
entity is one with $13.5 million or less in annual receipts. Although a
number of entities are licensed in the FSS, not all such licensees use
FSS frequencies to provide subscription services. Both of the DBS
licensees (EchoStar and DirecTV) have indicated interest in using FSS
frequencies to broadcast signals to subscribers. It is possible that
other entities could similarly use FSS frequencies, although we are not
aware of any entities that might do so.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
16. The Second Further NPRM seeks comment on rules that would
primarily impose requirements on satellite carriers, and as discussed
above few if any satellite carriers qualify as small entities. Small
satellite carriers currently have obligations with respect to carriage
of local commercial and non-commercial broadcast stations. The
obligations would be increased by the rules contemplated in the Further
Notice of Proposed Rulemaking (Further NPRM), but would not change in
kind. As with existing statutory and regulatory requirements, small
satellite carriers will need engineering and legal services to comply
with the proposed rules, but if the proposed rules are implemented we
do not anticipate that this need will be any different for small
carriers than for large carriers. Small broadcast stations would be
affected by the proposed rules, although likely in a positive way, and
could be affected by other proposals raised in response to the Further
NPRM. Also, initially, broadcasters may need additional legal services.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
17. 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. We seek comment on the applicability of any of these
alternatives to affected small entities.
18. The requirements proposed in the Second Further NPRM would in
most cases create minimal economic impact on small entities, and in
some cases could provide positive economic impact. Station licensees
and other parties are encouraged to submit comment on the proposals'
impact on small television stations. Every effort will be made to
minimize the impact of any adopted proposals on small satellite
carriers. Finally, we are mindful of the potential concerns of small
entities and will, therefore, continue to carefully scrutinize our
policy determinations going forward. We invite small entities to submit
comment on how the Commission could further minimize potential burdens
on small entities if the proposals provided in the Second Further NPRM,
or those submitted into the record, are ultimately adopted.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
19. None.
B. Initial Paperwork Reduction Act Analysis
20. This Second Further Notice of Proposed Rulemaking has been
analyzed with respect to the PRA and does not contain proposed
information collection requirements. In addition, therefore, it does
not contain any new or modified ``information collection burden for
small business concerns with fewer than 25 employees,'' pursuant to the
Small Business Paperwork Relief Act of 2002.
C. Ex Parte Rules
21. 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. 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. Additional rules
pertaining to oral and written presentations are set forth in section
1.1206(b).
D. Filing Requirements
22. Comments and Replies. Pursuant to sections 1.415 and 1.419 of
the Commission's Rules, interested parties may file comments on or
before June 4, 2008, and reply comments on or before June 19, 2008,
using: (1) The Commission's Electronic Comment Filing System
(``ECFS''), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies.
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 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 [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
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
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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 must be addressed to 445 12th Street, SW., Washington, DC 20554.
23. 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.
24. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an e-mail to [email protected] 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.
E. Additional Information
25. For more information on this Second Further Notice of Proposed
Rule Making, please contact Lyle Elder, [email protected], or Eloise
Gore, [email protected], of the Media Bureau, Policy Division, (202)
418-2120.
26. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Second Further Notice of Proposed Rule Making, including the Final and
Initial Regulatory Flexibility Analyses, to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 76
Cable television, Digital television, Multichannel video
programming distributors, Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-9747 Filed 5-2-08; 8:45 am]
BILLING CODE 6712-01-P