[Federal Register Volume 75, Number 144 (Wednesday, July 28, 2010)]
[Proposed Rules]
[Pages 44198-44209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18538]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 10-148; FCC 10-130]
Implementation of Section 203 of the Satellite Television
Extension and Localism Act of 2010 (STELA); Amendments to Section 340
of the Communications Act
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission proposes changes to its
satellite television ``significantly viewed'' rules to implement
Section 203 of the Satellite Television Extension and Localism Act of
2010 (STELA). Section 203 of the STELA amends Section 340 of the
Communications Act, which gives satellite carriers the authority to
offer out-of-market but ``significantly viewed'' broadcast television
network stations as part of their local service to subscribers. The
STELA requires the Commission to issue final rules in this proceeding
on or before November 24, 2010.
DATES: Comments are due on or before August 17, 2010; reply comments
are due on or before August 27, 2010.
ADDRESSES: You may submit comments, identified by MB Docket No. 10-148,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Electronic Comment
Filing System (ECFS) Web Site: http://fjallfoss.fcc.gov/ecfs/. Follow
the instructions for submitting comments.
Mail: All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission,
445 12th Street, SW., Washington, DC 20554.
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 section V. ``PROCEDURAL
MATTERS'' heading of the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, Evan Baranoff, [email protected], of the Media Bureau,
Policy Division, (202) 418-7142.
[[Page 44199]]
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 10-130, adopted on July 22, 2010,
and released on July 23, 2010. The full text of this document is
available electronically via ECFS at http://fjallfoss.fcc.gov/ecfs/or
may be downloaded at http://hraunfoss.fcc.gov/edocs-public/attachmatch/FCC-10-130.pdf. (Documents will be available electronically in ASCII,
Word 97, and/or Adobe Acrobat.) This document is also 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. The complete text may be purchased
from the Commission's copy contractor, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554. Alternative formats are available for
people with disabilities (Braille, large print, electronic files, audio
format), by sending an e-mail to [email protected] or calling 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. Introduction
1. In this Notice of Proposed Rulemaking (NPRM), we propose changes
to our satellite television ``significantly viewed'' rules to implement
Section 203 of the Satellite Television Extension and Localism Act of
2010 (STELA).\1\ Section 203 of the STELA amends Section 340 of the
Communications Act of 1934 (``Communications Act'' or ``Act''), which
gives satellite carriers the authority to offer out-of-market but
``significantly viewed'' broadcast television network stations as part
of their local service to subscribers.\2\ The STELA requires the
Commission to issue final rules in this proceeding on or before
Wednesday, November 24, 2010.\3\
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\1\ The Satellite Television Extension and Localism Act of 2010
(STELA) sec. 203, Pub. L. 111-175, 124 Stat. 1218, 1245 (2010) (sec.
203 codified as amended at 47 U.S.C. 340, other STELA amendments
codified in scattered sections of 17 and 47 U.S.C.). The STELA was
enacted on May 27, 2010 (S. 3333, 111th Cong.). This proceeding to
implement STELA sec. 203 (titled ``Significantly Viewed Stations''),
124 Stat. at 1245, and the related statutory copyright license
provisions in STELA sec. 103 (titled ``Modifications to Statutory
License for Satellite Carriers in Local Markets''), 124 Stat. at
1227-28, is one of a number of Commission proceedings that are
required to implement the STELA.
\2\ 47 U.S.C. 340. We note that the nature of SV carriage under
Section 340 is permissive (and not mandatory), meaning the statute
applies when a satellite carrier chooses to carry an SV station and
has obtained retransmission consent from such SV station. Id. at
340(d).
\3\ The STELA requires the Commission to take all actions
necessary to promulgate a rule to implement the amendments within
270 days after the date of the enactment. STELA sec. 203(b). The
STELA establishes February 27, 2010 as its effective date or ``date
of enactment,'' even though the law was enacted by Presidential
signature on May 27, 2010. STELA sec. 307. Congress backdated the
STELA's effective date to protect the satellite carriers that
continued to provide distant signals (which, at that time, included
significantly viewed signals) during a two-day gap in coverage of
the distant signal statutory copyright license, which expired on
February 28 and was not extended until March 2, 2010. Congress
passed four short-term extensions of the distant signal statutory
copyright license (December 19, 2009, March 2, March 25 and April
15, 2010) before finally passing STELA to reauthorize the license
for five years.
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2. Significantly viewed (``SV'') stations are television broadcast
stations that the Commission has determined have sufficient over-the-
air (i.e., non-cable or non-satellite) viewing \4\ to be considered
local for certain purposes and so are not constrained by the boundary
of that station's local market or Designated Market Area (``DMA''). The
individual TV station, or cable operator or satellite carrier that
seeks to carry the station, may petition the Commission to obtain
``significantly viewed'' status for the station,\5\ and placement on
the SV List.\6\ The designation of ``significantly viewed'' status
allows a station assigned to one market to be treated as a ``local''
station with respect to a particular cable or satellite community \7\
in another market, and, thus, enables its cable or satellite carriage
into said community in that other market.\8\ Whereas cable operators
have had carriage rights for SV stations since 1972,\9\ satellite
carriers have had such authority only since 2004 \10\ and may only
retransmit SV network stations to ``eligible'' satellite
subscribers.\11\ These satellite subscriber eligibility restrictions
are intended to prevent satellite carriers from favoring an SV network
station over the in-market (local) station affiliated with the same
network.\12\
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\4\ To qualify for significantly viewed status (i.e., for
placement on the significantly viewed list or ``SV List''), an SV
station can be either a ``network'' station or an ``independent''
station, with network stations requiring a higher share of viewing
hours. 47 CFR 76.5(i)(1) and (2). The Commission's rules define
network station as one of the ``three major national television
networks'' (i.e., ABC, CBS or NBC). 47 CFR 76.5(j) and (k). Parties
may demonstrate that stations are significantly viewed either on a
community basis or on a county-wide basis. 47 CFR 76.54(b), (d).
\5\ See 47 CFR 76.5, 76.7, 76.54. A TV station, cable operator
or satellite carrier that wishes to have a station designated
significantly viewed must file a petition pursuant to the pleading
requirements in 47 CFR 76.7(a)(1) and use the method described in 47
CFR 76.54 to demonstrate that the station is significantly viewed as
defined in 47 CFR 76.5(i). SHVERA Significantly Viewed Report and
Order, FCC 05-187, 70 FR 76504, December 27, 2005.
\6\ The significantly viewed list or ``SV List'' identifies the
list of stations the Commission has determined to be significantly
viewed in specified counties and communities. The list applies to
both cable and satellite providers. The Commission updates this list
as necessary upon the appropriate demonstrations by stations or
cable or satellite providers. The current SV List is available on
the Media Bureau's Web site at http://www.fcc.gov/ mb/.
\7\ We note that the SV station can only be carried in the cable
or satellite community in which it is significantly viewed. See 47
CFR 76.5(dd) (defining cable ``community unit'') and 76.5(gg)
(defining a ``satellite community'').
\8\ For copyright purposes, significantly viewed status means
that cable and satellite providers may carry the distant but SV
station with the reduced copyright payment obligations applicable to
local (in-market) stations. See 17 U.S.C. 111(a), (c), (d), and (f),
as amended by STELA sec. 104 (relating to cable statutory copyright
license) and 122(a)(2), as amended by STELA sec. 103 (relating to
satellite statutory copyright license).
\9\ See Cable Television Report and Order, FCC 72-108, 37 FR
3252, February 3, 1972 (adopting the concept of ``significantly
viewed'' signals to differentiate between otherwise out-of-market
television stations ``that have sufficient audience to be considered
local and those that do not'').
\10\ Section 202 of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (SHVERA) created Section 340 of the
Communications Act, which authorized satellite carriage of
Commission-determined SV stations. See SHVERA sec. 202, Pub. L. 108-
447, 118 Stat 2809, 3393 (2004) (codified in 47 U.S.C. 340). See
also SHVERA Significantly Viewed Report and Order.
\11\ See 47 U.S.C. 340(b) and 47 CFR 76.54(g) and (h).
\12\ 47 U.S.C. 340(b)(1) and (2). See, e.g., SHVERA
Significantly Viewed Report and Order. The Copyright Act's
definitions of ``network station'' and ``non-network station'' will
apply for purposes of determining subscriber eligibility to receive
an SV network station. See 47 U.S.C. 339(d) and 47 U.S.C 122(j)(4),
as amended, applying the definitions of such terms in 47 U.S.C
119(d)(2) and (9). Unlike the definition in the Commission's rules,
which specifically include only ABC, CBS and NBC, the Copyright Act
definition of ``network station'' may include other stations. See
SHVERA Significantly Viewed Report and Order.
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3. Section 203 of the STELA eliminates two statutory limitations on
subscriber eligibility to receive SV network stations from satellite
carriers.\13\ To implement the STELA, we propose the following changes
to our satellite subscriber eligibility rules:
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\13\ 47 U.S.C. 340(b)(1) and (2).
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We propose to eliminate the requirement that satellite
carriers offer ``equivalent bandwidth'' to the local and SV network
station pair, and to require instead carriage of the local network
affiliate in high definition (HD) as a precondition to satellite
carriage of the HD programming of an SV station affiliated with the
same network.
We propose to eliminate the requirement that a subscriber
receive the specific local network station (as part of the satellite
carrier's ``local-into-local'' service) in order for that subscriber to
also receive an SV station affiliated with the same network and to
[[Page 44200]]
require instead that the subscriber receive local-into-local satellite
service.
II. Background
4. In May 2010, Congress passed and the President signed the STELA,
which amends the 1988 copyright laws \14\ and the Communications Act of
1934 \15\ to ``modernize, improve and simplify the compulsory copyright
licenses governing the retransmission of distant and local television
signals by cable and satellite television operators.'' \16\ Congress
intended for the STELA to increase competition and service to satellite
and cable consumers and update the law to reflect the completion of the
digital television (DTV) transition.\17\ Notably, Congress reauthorizes
the statutory copyright license for satellite carriage of SV stations
and moves that license from the distant signal statutory copyright
license provisions to the local signal statutory copyright license
provisions.\18\ The STELA is the fourth in a series of statutes that
addresses satellite carriage of television broadcast stations.
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\14\ See 17 U.S.C. 119 and 122. 17 U.S.C. 119 contains the
statutory copyright license for satellite carriage of ``distant''
network stations (limited to ``unserved households'') and 17 U.S.C.
122 contains the statutory copyright license for satellite carriage
of ``local'' stations (generally defined as stations and subscribers
in the same DMA but which now also includes SV stations that are
treated as ``local'' for copyright purposes, even though such
stations are not in the same DMA as the subscribers). The STELA also
amended 17 U.S.C. 111, the statutory copyright license for cable
carriage of broadcast stations.
\15\ See 47 U.S.C. 325, 338, 339 and 340.
\16\ See House Judiciary Committee Report dated Oct. 28, 2009,
accompanying House Bill, H.R. 3570, 111th Cong. (2009), H.R. Rep.
No. 111-319, at 4 (``H.R. 3570 Report''). There was no final Report
issued to accompany the final version of the STELA bill (S. 3333) as
it was enacted. See Senate Bill, S. 3333, 111th Cong. (2010)
(enacted). Therefore, for the relevant legislative history, we look
to the Reports accompanying the various predecessor bills (e.g.,
H.R. 3570, H.R. 2994, and S. 1670). These Reports remain relevant
with respect to those provisions that were unchanged, which is the
case for the amendments to the ``significantly viewed'' provisions
(see STELA secs. 203, 103). Finally, also relevant are certain
remarks made in floor statements in passing the bill (S. 3333). See
``House of Representatives Proceedings and Debates of the 111th
Congress, Second Session,'' 156 Cong. Rec. H3317, H3328-3330 (daily
ed. May 12, 2010) (statements of Reps. Conyers and Smith) (``House
Floor Debate'') and ``Senate Proceedings and Debates of the 111th
Congress, Second Session,'' 156 Cong. Rec. S3435, (daily ed. May 7,
2010) (statement of Sen. Leahy) (``Senate Floor Debate'').
\17\ See H.R. 3570 Report at 5. As of the June 12, 2009
statutory DTV transition deadline, all full-power television
stations stopped broadcasting in analog and are broadcasting only
digital signals. 47 U.S.C. 309(j)(14)(A).
\18\ STELA sec. 103 (moving the SV signal statutory copyright
license from 17 U.S.C. 119(a)(3) to 17 U.S.C. 122 (a)(2)). In doing
so, Congress now defines SV signals as another type of local signal,
rather than as an exception to distant signals. The move also means
that Congress won't need to reauthorize the SV signal license in
five years, when the distant signal license will expire.
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5. In the 1988 Satellite Home Viewer Act (``1988 SHVA''), Congress
established a statutory copyright license to enable satellite carriers
to offer subscribers who could not receive the over-the-air signal of a
broadcast station access to broadcast programming via satellite.\19\
The 1988 SHVA was intended to protect the role of local broadcasters in
providing over-the-air television by limiting satellite delivery of
network broadcast programming to subscribers who were ``unserved'' by
over-the-air signals. The 1988 SHVA also permitted satellite carriers
to offer distant ``superstations'' to subscribers.\20\
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\19\ The Satellite Home Viewer Act of 1988 (SHVA), Pub. L. 100-
667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111,
119). The 1988 SHVA was enacted on November 16, 1988, as an
amendment to the copyright laws. The 1988 SHVA gave satellite
carriers a statutory copyright license to offer distant signals to
``unserved'' households. 17 U.S.C. 119(a).
\20\ See id. 119(a)(1) (2009). The STELA sec. 102(g) replaces
the term ``superstation'' with the term ``non-network station.''
This change in wording has no substantive impact on our rules. A
non-network station (previously superstation) is defined as a
television station, other than a network station, licensed by the
Commission that is retransmitted by a satellite carrier. Non-network
stations are still not considered ``network stations'' for copyright
purposes. See 17 U.S.C. 119(d)(9).
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6. In the 1999 Satellite Home Viewer Improvement Act (``SHVIA''),
Congress expanded satellite carriers' ability to retransmit local
broadcast television signals directly to subscribers.\21\ A key element
of the SHVIA was the grant to satellite carriers of a statutory
copyright license to retransmit local broadcast programming, or
``local-into-local'' service, to subscribers. A satellite carrier
provides ``local-into-local'' service when it retransmits a local
television signal back into the local market of that television station
for reception by subscribers.\22\ Generally, a television station's
``local market'' is the DMA in which it is located.\23\ Each satellite
carrier providing local-into-local service pursuant to the statutory
copyright license is generally obligated to carry any qualified local
television station in the 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.\24\ This is commonly
referred to as the ``carry one, carry all'' requirement. The Commission
implemented the SHVIA by adopting rules for satellite carriers with
regard to carriage of broadcast signals, retransmission consent, and
program exclusivity that paralleled the requirements for cable
service.\25\
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\21\ The Satellite Home Viewer Improvement Act of 1999 (SHVIA),
Pub. L. 106-113, 113 Stat. 1501 (1999). The 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). In the SHVIA, Congress amended both the copyright laws,
17 U.S.C. 119 and 122, and the Communications Act, 47 U.S.C. 325,
338 and 339.
\22\ 47 CFR 76.66(a)(6).
\23\ See 17 U.S.C. 122(j)(2)(A); 47 U.S.C. 340(i)(1). DMAs,
which describe each television market in terms of a unique
geographic area, are established by Nielsen Media Research based on
measured viewing patterns. See 17 U.S.C. 122(j)(2)(A) through (C).
\24\ See 47 U.S.C. 338.
\25\ See SHVIA Signal Carriage Order, 66 FR 7410, January 23,
2001; OET SHVIA Report, FCC 00-416 (rel. Nov. 29, 2000); SHVIA
Satellite Exclusivity Order, 65 FR 68082, November 14, 2000; SHVIA
Retransmission Consent Enforcement Order; 65 FR 10718, February 29,
2000; SHVIA Good Faith Retransmission Consent Order, 65 FR 15559,
March 23, 2000.
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7. In the 2004 Satellite Home Viewer Extension and Reauthorization
Act (``SHVERA''), Congress established the framework for satellite
carriage of ``significantly viewed'' stations.\26\ Specifically, the
SHVERA expanded the statutory copyright license to allow satellite
carriers to retransmit a distant (out-of-market) network station as
part of their local service to subscribers in a local market where the
Commission determined that distant station to be ``significantly
viewed'' (based on over-the-air viewing).\27\ In providing this
authority to satellite carriers, Congress
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sought to create parity with cable operators, who had already had such
authority to offer SV stations to subscribers for more than 38
years.\28\ The Commission implemented the SHVERA's significantly viewed
provisions by publishing a list of SV stations and adopting rules for
stations to attain eligibility for significantly viewed status and for
subscribers to receive SV stations from satellite carriers. The SHVERA
mandated that the Commission apply the same station eligibility
requirements (i.e., rules and procedures for parties to show that a
station qualifies for significantly viewed status) to satellite
carriers that already applied to cable operators.\29\ However, to
prevent a satellite carrier from favoring SV stations over traditional
local market stations, the SHVERA also imposed subscriber eligibility
requirements that applied only to satellite carriers.\30\
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\26\ The Satellite Home Viewer Extension and Reauthorization Act
of 2004 (SHVERA), Pub. L. 108-447, 118 Stat 2809 (2004) (codified in
scattered sections of 17 and 47 U.S.C.). The SHVERA was enacted on
December 8, 2004 as title IX of the ``Consolidated Appropriations
Act, 2005.'' The SHVERA contained additional mandates requiring
Commission action, but not relevant to this proceeding, which
concerns the carriage of SV stations. See SHVERA Reciprocal
Bargaining Order, 70 FR 40216, July 13, 2005 (imposing a reciprocal
good faith retransmission consent bargaining obligation on
multichannel video programming distributors); SHVERA Section 210
Order, 70 FR 51658, August 31, 2005 (requiring satellite carriers to
carry local TV broadcast stations in Alaska and Hawaii); SHVERA
Procedural Rules Order, 70 FR 21669, April 27, 2005 (adopting
procedural rules concerning satellite carriers' notifications to TV
broadcast stations and obligations to conduct signal testing);
Public Notice, ``Media Bureau Seeks Comment For Inquiry Required By
the on Rules Affecting Competition In the Television Marketplace,''
70 FR 6593, February 8, 2005 (opening inquiry concerning the impact
of certain rules and statutory provisions on competition in the
television marketplace).
\27\ In the SHVERA, Congress again amended both the
Communications Act, 47 U.S.C. 325, 338, 339 and 340, and the
copyright laws, 17 U.S.C. 119 and 122. In creating a statutory
copyright license for satellite carriers to offer significantly
viewed stations as part of their local service to subscribers,
Congress distinguished between out-of-market stations that had
significant over-the-air viewership in a local market (i.e.,
significantly viewed stations) and truly ``distant'' stations.
\28\ See SHVERA Significantly Viewed Report and Order. In 1972,
the Commission adopted the concept of ``significantly viewed''
stations for cable television to differentiate between out-of-market
television stations ``that have sufficient audience to be considered
local and those that do not.'' Cable Television Report and Order.
The Commission concluded at that time that it would not be
reasonable if choices on cable were more limited than choices over
the air, and gave cable carriage rights to stations in communities
where they had significant over-the-air (non-cable) viewing. Id.
\29\ See 47 CFR 76.5, 76.7 and 76.54(a) through (d). As mandated
by the SHVERA, the Commission required satellite carriers or
broadcast stations seeking significantly viewed status for satellite
carriage to follow the same petition process now in place for cable
carriage.
\30\ 47 U.S.C. 340(b) (2004). The eligibility requirements also
addressed the different carriage requirements that apply to cable
(i.e., ``must carry'' for all cable systems) as compared with
satellite (i.e., ``carry one, carry all'').
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8. The SHVERA limited subscribers' eligibility to receive SV
digital television stations from satellite carriers in two key ways.
First, the SHVERA allowed a satellite carrier to offer SV stations only
to subscribers that received the carrier's ``local-into-local''
service.\31\ The Commission interpreted this provision to further
require that the subscriber receive the specific local network station
(as part of the carrier's ``local-into-local'' service) in order for
that subscriber to also receive an SV station affiliated with the same
network (called the receipt of the ``same network affiliate''
requirement).\32\ Second, the SHVERA allowed a satellite carrier to
offer an SV digital station to a subscriber only if the carrier also
provided to that subscriber the affiliated local network station in a
format that used either (1) An ``equivalent'' amount of bandwidth for
the local and SV network station pair, or (2) the ``entire'' bandwidth
of the local station (called the ``equivalent or entire bandwidth''
requirement).\33\ The Commission interpreted this provision to require
an objective comparison of each station's use of its bandwidth in terms
of megabits per second (mbps) or bit rate.\34\
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\31\ See id. at 340(b)(1) (analog service limitations) and
(b)(2)(A) (digital service limitations) (2004). The Commission found
that ``subscriber receipt of `local-into-local' service [was]
unambiguously required by the statute.'' SHVERA Significantly Viewed
Report and Order. The SHVERA provided for two exceptions to the
local service limitations, contained in 47 U.S.C. 340(b)(3) and (4),
respectively. Section 340(b)(3) allows satellite carriage of an SV
network station to a subscriber when there is no local station
affiliated with the same television network as the SV station
present in the local market. Section 340(b)(4) allows a satellite
carrier to privately negotiate with the local network station to
obtain a waiver of the subscriber eligibility restrictions in
Sections 340(b)(1) and 340(b)(2). While revising the eligibility
limitations, the STELA retains these exceptions unchanged.
\32\ The SHVERA's language differed with respect to the analog
and digital service limitations. The Commission noted that,
``[u]nlike the ambiguity in its sister analog provision [of 47
U.S.C. 340(b)(1) (2004)], Section 340(b)(2)(A) of the Act, 47 U.S.C.
340(b)(2)(A) (2004), is clear in requiring a subscriber to receive
``the digital signal of a network station in the subscriber's local
market that is affiliated with the same television network.'' Id.
\33\ 47 U.S.C. 340(b)(2)(B) (2004). Congress sought to prevent
satellite carriers from offering the local network station's digital
signal ``in a less robust format'' than the significantly viewed
affiliate station's digital signal). SHVERA Significantly Viewed
Report and Order.
\34\ See id.
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III. Discussion
9. STELA simplifies the significantly viewed provisions in Section
340(b) of the Communications Act to make it easier for satellite
carriers to offer SV stations to subscribers.\35\ The STELA makes two
key changes to the significantly viewed provisions in Section 340(b) to
ease the limitations on satellite subscriber eligibility to receive SV
stations.\36\ First, the STELA eliminates the equivalent or entire
bandwidth requirement in Section 340(b)(2)(B).\37\ In its place, the
STELA permits a satellite carrier to carry in high definition (HD)
format an SV network station, provided the satellite carrier also
carries in HD format the local station in the market that is affiliated
with the same network whenever the local station is available in HD
format.\38\ Second, the STELA strikes Section 340(b)(2)(A), the former
digital service limitation which contained the ``same network
affiliate'' limitation language, choosing, instead, to apply Section
340(b)(1), the former analog service limitation which contained only
the ``local-into-local'' service limitation language, to digital
stations.\39\ Accordingly, we propose rules to implement the changes
made to Section 340(b) of the Act and seek comment on them. Our
discussion below addresses these two key changes to Section 340(b), and
also considers the impact of these changes on the statutory exceptions
to this section. We also propose some non-substantive,
``housecleaning'' rule changes. We seek comment on our proposals and
tentative conclusions set forth herein, and also invite comment on any
other issues that may be relevant to our implementation of the STELA's
amendments to the significantly viewed provisions.
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\35\ See H.R. 3570 Report at 4-5.
\36\ STELA sec. 203(a) (amendments to be codified at 47 U.S.C.
340(b)(1) and (2)). We note that the subscriber eligibility
limitations in 47 U.S.C. 340(b)(1) and (2), which are amended by the
STELA sec. 203, do not apply to cable subscribers and that we do not
propose to substantively amend our significantly viewed rules and
procedures that satellite carriers share with cable operators. See
47 CFR 76.54(a) through (d). Furthermore, we note that the STELA
sec. 203 does not amend the ``significantly viewed'' provisions in
the Communications Act governing the eligibility of a television
broadcast station to qualify for ``significantly viewed'' status.
See 47 U.S.C. 340(a), (c) through (g). Therefore, we do not propose
here any substantive (non-``housecleaning'') changes to our rules
and procedures implementing the significantly viewed station
eligibility requirements. See 47 CFR 76.54(a) through (f), (j) and
(k).
\37\ The STELA sec. 203(a) removes the equivalent or entire
bandwidth requirement in 47 U.S.C. 340(b)(2)(B) and the STELA sec.
204(c) strikes the definition of equivalent or entire bandwidth in
47 U.S.C. 340(i)(4).
\38\ See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA
sec. 203(a).
\39\ See Id. 340(b)(1) (2010), as amended by the STELA sec.
203(a).
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A. Proposed Elimination of ``Equivalent or Entire Bandwidth''
Requirement
10. In the 2004 SHVERA, Congress enacted the ``equivalent'' or
``entire'' bandwidth requirements to prevent a satellite carrier from
using technological means to discriminate against a local network
station in favor of the SV network affiliate.\40\ The Commission
codified these requirements in Sec. 76.54(h) of the rules, which
tracks the language of the statute.\41\ In implementing this provision,
the Commission strictly interpreted the statutory requirement for
``equivalent bandwidth.'' As a result, satellite
[[Page 44202]]
carriers must ensure virtually minute-by-minute comparisons between the
satellite bandwidth allocated to carriage of the local station and the
SV stations, making carriage of SV stations so burdensome that they are
rarely carried.\42\
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\40\ 47 U.S.C. 340(b)(2)(B) (2004). The law reflects Congress'
intent to prevent a satellite carrier from offering the local
digital station ``in a less robust format'' than the SV digital
station). SHVERA Significantly Viewed Report and Order.
\41\ 47 CFR 76.54(h) states: ``Signals of significantly viewed
network stations that originate as digital signals may not be
retransmitted to subscribers unless the satellite carrier
retransmits the digital signal of the local network station, which
is affiliated with the same television network as the network
station whose signal is significantly viewed, in either (1) At least
the equivalent bandwidth of the significantly viewed station or (2)
the entire bandwidth of the digital signal broadcast by such local
station.''
\42\ In a House Energy and Commerce Committee Report, Congress
noted that the ``equivalent bandwidth'' requirement ``has generally
served to discourage satellite carriers from using Section 340 to
provide significantly viewed signals to qualified households.'' See
House Energy and Commerce Committee Report dated Dec. 12, 2009,
accompanying House Bill, H.R. 2994, 111th Cong. (2009), H.R. Rep.
No. 111-349, at 16 (``H.R. 2994 Report''). See also Testimony of Bob
Gabrielli, Senior Vice President, Broadcasting Operations and
Distribution, DIRECTV, Inc., before the U.S. House of
Representatives Subcommittee on Communications, Technology and the
Internet, Hearing on Reauthorization of the of the Satellite Home
Viewer Extension and Reauthorization Act, at 9 (Feb. 24, 2009)
(asserting that it is ``infeasible'' for DIRECTV to ``carry local
stations in the same format as SV stations every moment of the
day'').
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11. STELA eliminates the ``equivalent or entire bandwidth''
requirement from the statute,\43\ changing the focus of the provision
from ``equivalent bandwidth'' to ``HD format.'' The STELA amends
Section 340(b)(2) of the Act to read as follows: \44\
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\43\ We note that DIRECTV, Inc. (``DIRECTV'') and EchoStar
Satellite LLC (``EchoStar'') filed a joint petition, which remains
pending, seeking reconsideration of two decisions in the 2005 SHVERA
Significantly Viewed Report and Order. The first decision challenged
by the petition is the Commission's interpretation of the
``equivalent bandwidth'' requirement. See DIRECTV and EchoStar Joint
Petition for Reconsideration in MB Docket No. 05-49 (filed Jan. 26,
2006) (``DIRECTV/EchoStar Joint Petition''). As a result of the
STELA's elimination of this requirement, we believe the petition on
this first issue is now moot. The second issue relates to the
receipt of the local analog station affiliate requirement, which we
also believe is moot. We expect to dismiss the petition soon after
we issue final rules in this proceeding.
\44\ 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec.
203(a).
Service Limitations.--A satellite carrier may retransmit to a
subscriber in high definition format the signal of a station
determined by the Commission to be significantly viewed under
subsection (a) only if such carrier also retransmits in high
definition format the signal of a station located in the local
market of such subscriber and affiliated with the same network
---------------------------------------------------------------------------
whenever such format is available from such station.
12. In doing so, Congress intended to facilitate satellite carriage
of SV stations, which Congress thought was thwarted by the Commission's
implementation of the predecessor provision.\45\ The legislative
history also indicates an intent by Congress to simplify the law and
increase service to satellite consumers.\46\ Additionally, in
reauthorizing the SHVERA and mostly retaining its framework for the
carriage of SV stations, the STELA retains the key goals of its
predecessor statute--those being to foster localism and promote parity
between cable and satellite service.\47\ The principal concern of
Congress was simply to clarify that a satellite carrier may provide an
SV station in HD format when the local network affiliate is
broadcasting only in Standard Definition (SD) format, as long as the
carrier provides the local station in HD format whenever such format is
available.\48\ Moreover, in moving the statutory copyright license into
the ``local'' license, we believe Congress recognized the ``local''
nature of an SV station, and that carriage of an SV network station, in
itself, promotes localism, as long as such station is not favored over
the in-market (local) affiliate. Therefore, we tentatively conclude
that, in revising the law, Congress intended for the Commission to
create a workable framework that would generally provide for the
satellite carriage of SV stations, while ensuring that the SV network
station is not retransmitted in HD format unless the in-market
affiliate is also retransmitted in HD format when so broadcast.
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\45\ See H.R. 2994 Report at 16.
\46\ See H.R. 3570 Report at 4-5. Congress wanted to clarify
that a satellite carrier may provide an SV station in HD format,
when the local network affiliate is broadcasting only in Standard
Definition (SD) format, as long as the carrier provides the local
station in HD format whenever such format is available. H.R. 2994
Report at 16.
\47\ See SHVERA Significantly Viewed Report and Order.
\48\ H.R. 2994 Report at 16. The Commission interpreted the
``equivalent bandwidth'' requirement to include multicast signals.
SHVERA Significantly Viewed Report and Order. (concluding that ``if
the SV station transmits in HD and the local station transmits
multiplexed (multicast) signal, then a satellite carrier may carry
the SV station's HD signal, provided it also carries as many of the
local station's multicast channels as necessary to match the
bandwidth provided to the SV station.''). However, the STELA's
change to 47 U.S.C. 340(b)(2) appears to refocus the comparison of
the local and SV network station pair on HD format.
---------------------------------------------------------------------------
13. Accordingly, we propose to revise our rule in Sec. 76.54(h),
which we now move to Sec. 76.54(g)(2), to eliminate the ``equivalent
or entire bandwidth'' requirement and to provide that a satellite
carrier may retransmit the HD signal of an SV station to a subscriber
only if such carrier also retransmits the HD signal of the local
station affiliated with the same network whenever that signal is
available in HD format.\49\ Our proposed rule tracks the revised
language in Section 340(b)(2).\50\ We also tentatively conclude that
Section 340(b)(2), by its terms, only limits satellite carriage of an
SV station with respect to HD format; it does not apply if the
satellite carrier only carries the SV station in SD format.\51\
Finally, we note that the Advanced Television Systems Committee
(``ATSC''), a non-profit organization that develops voluntary standards
for digital television, including HDTV, defines ``high definition''
television as having a screen resolution of 720p, 1080i, or higher, and
believe that no further definition of ``HD format'' is needed to
implement the statute.\52\ We seek comment on our statutory
interpretation, proposed rule and tentative conclusions. We also seek
comment on whether satellite carriers will face any technical problems
in order to comply with our proposed rule.
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\49\ See Proposed rule 47 CFR 76.54(g)(2).
\50\ Id.
\51\ We propose including a sentence in our proposed rule to
clarify this point. See Proposed rule 47 CFR 76.54(g)(2).
\52\ See, e.g., Local Broadcast Signal Carriage First Report and
Order, 66 FR 16533, March 26, 2001 (discussing several formats that
are considered ``high definition''); Local Broadcast Signal Carriage
Second Report and Order, 73 FR 24502, May 5, 2008. See also, e.g.,
Newton's Telecom Dictionary definition of HDTV at 389 (20th ed.
2004) and the Commission's ``DTV Shopping Guide'' for consumers at
http://www.dtv.gov/shopgde.html.
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14. Section 340(b)(2) permits retransmission of an SV network
station in HD ``only if such carrier also retransmits in high
definition format the signal of a station located in the local market
of such subscriber and affiliated with the same network whenever such
format is available from such station.'' \53\ We seek comment on the
significance of this requirement. What is required by this language in
the event a satellite carrier wants to retransmit an SV network
affiliate and there is an in-market (local) station that is
multicasting in HD format and airing programming affiliated with the
same network in HD on a secondary stream? Is the satellite carrier
required to carry this secondary stream in HD in order to be permitted
to retransmit the SV station in HD even if the in-market station's
primary stream is affiliated with another network? We also seek
information on the extent to which stations are broadcasting HD
programming from two different networks, and whether this is
sufficiently rare that it can be addressed on a case-by-case basis,
rather than in a rule or order.
---------------------------------------------------------------------------
\53\ See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA
sec. 203(a).
---------------------------------------------------------------------------
B. Proposed Elimination of Requirement To Receive Specific Local
Affiliate of the Same Network
15. We propose to amend our rules regarding subscriber eligibility
to address STELA's change to Sections 340(b)(1) and 340(b)(2)(A) that
eliminates the reference to receiving a
[[Page 44203]]
specific local station affiliated with the same network as the SV
station.\54\ In the 2004 SHVERA, Congress authorized satellite carriers
to offer SV stations to subscribers, but crafted Sections 340(b)(1) and
340(b)(2)(A) of the Act to protect localism by requiring that these
subscribers also receive the carrier's local service.\55\ These two
provisions, however, contained different language. Whereas Section
340(b)(1),\56\ the provision related to analog service, required only
that the analog subscriber receive local service ``pursuant to Section
338''--referring to the ``carry one, carry all'' carriage requirements
that pertain to local stations,\57\ Section 340(b)(2)(A),\58\ the
provision related to digital service, contained additional language
that expressly required the digital subscriber to receive the local
station that was specifically ``affiliated with the same television
network'' as the SV station (hereinafter referred to as the ``same
network affiliate'' language). Thus, while each of these provisions
clearly required a subscriber to at least receive the satellite
carrier's local-into-local service before that subscriber could receive
an SV station, it was unclear whether Section 340(b)(1) also required
an analog subscriber to receive the specific local network station
before that subscriber could receive the SV station affiliated with the
same network.\59\ For example, the statute did not address the
situation where there is a local network station in the local market,
but such station fails to request local carriage, refuses to grant
retransmission consent, or is otherwise ineligible for local
carriage.\60\
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\54\ See 47 U.S.C. 340(b)(1) (2010), as amended by the STELA
sec. 203(a).
\55\ 47 U.S.C. 340(b)(1) and (b)(2)(A) (2004). Congress intended
for these provisions to protect localism ``by helping ensure that
the satellite operator cannot retransmit into a market a
significantly viewed digital signal of a network broadcast station
from a distant market without also retransmitting into the market a
digital signal of any local affiliate from the same network.''
SHVERA Significantly Viewed Report and Order.
\56\ 47 U.S.C. 340(b)(1) (2004), as established in 2004, stated:
``With respect to a signal that originates as an analog signal of a
network station, this section shall apply only to retransmissions to
subscribers of a satellite carrier who receive retransmissions of a
signal that originates as an analog signal of a local network
station from that satellite carrier pursuant to section 338.''
\57\ 47 U.S.C. 338.
\58\ 47 U.S.C. 340(b)(2)(A) (2004), as established in 2004,
stated: ``With respect to a signal that originates as a digital
signal of a network station, this section shall apply only if--(A)
the subscriber receives from the satellite carrier pursuant to
section 338 the retransmission of the digital signal of a network
station in the subscriber's local market that is affiliated with the
same television network * * *.''
\59\ SHVERA Significantly Viewed Report and Order.
\60\ See id.
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16. Ultimately, in the 2005 SHVERA Significantly Viewed Report and
Order, the Commission interpreted both Sections 340(b)(1) and
340(b)(2)(A) to require that the subscriber receive the specific local
station that is affiliated with the same network as the SV station.\61\
Although Section 340(b)(1) lacked the express ``same network
affiliate'' language as contained in Section 340(b)(2)(A), the
Commission read the two provisions together and interpreted Section
340(b)(1) to also contain the ``same network affiliate'' requirement,
based largely on the notion that Congress intended the two provisions
to achieve similar ends.\62\ Accordingly, the Commission adopted Sec.
76.54(g) of the rules, based on the ``same network affiliate'' language
in Section 340(b)(2)(A).\63\
---------------------------------------------------------------------------
\61\ Id. This is the second decision challenged by the pending
2006 DIRECTV/EchoStar Joint Petition. The petition challenged only
the Commission's interpretation of the analog service limitation
provision in 47 U.S.C. 340(b)(1), essentially conceding the meaning
of the plain language in the digital provision in 47 U.S.C.
340(b)(2)(A). With the end of analog full-power broadcasting (due to
the completion of DTV transition), we believe this second issue in
the petition is also moot, and we expect to dismiss the petition
soon after we issue final rules in this proceeding.
\62\ See SHVERA Significantly Viewed Report and Order. We note
that the Commission also stated that its interpretation of Section
340(b)(1) was necessary to give meaning to the statutory exceptions
in Sections 340(b)(3) and (4). As discussed in more detail later, we
believe the statutory exceptions remain meaningful to, and are
consistent with, our proposed interpretation of Section 340(b)(1) as
amended by STELA.
\63\ 47 CFR 76.54(g) states: ``(g) Signals of analog or digital
significantly viewed television broadcast stations may not be
retransmitted by satellite carriers to subscribers who do not
receive local-into-local service, including a station affiliated
with the same network as the significantly viewed station, pursuant
to Sec. 76.66 of this chapter; except that a satellite carrier may
retransmit a significantly viewed signal of a television broadcast
station to a subscriber who receives local-into-local service but
does not receive a local station affiliated with the same network as
the significantly viewed station, if: (1) There is no station
affiliated with the same television network as the station whose
signal is significantly viewed; or (2) The station affiliated with
the same television network as the station whose signal is
significantly viewed has granted a waiver in accordance with 47
U.S.C. 340(b)(4).''
---------------------------------------------------------------------------
17. In the STELA, Congress strikes Section 340(b)(2)(A), which
governed digital stations and included the ``same network affiliate''
language,\64\ and removes the references to analog in Section 340(b)(1)
because of the completion of the DTV transition.\65\ Specifically, the
STELA amends Section 340(b)(1) of the Act to read as follows: \66\
---------------------------------------------------------------------------
\64\ 47 U.S.C 340(b)(2)(A) (2004). The digital local service
provision provided: ``With respect to a signal that originates as a
digital signal of a network station, this section shall apply only
if--(A) the subscriber receives from the satellite carrier pursuant
to section 338 of this title the retransmission of the digital
signal of a network station in the subscriber's local market that is
affiliated with the same television network; and'' (B) the
retransmission complies with either the (i) equivalent or (ii)
entire bandwidth requirement. (Emphasis added.)
\65\ 47 U.S.C. 340(b)(1) (2004). The analog local service
provision provided: ``With respect to a signal that originates as an
analog signal of a network station, this section shall apply only to
retransmissions to subscribers of a satellite carrier who receive
retransmissions of a signal that originates as an analog signal of a
local network station from that satellite carrier pursuant to
section 338 of this title.''
\66\ 47 U.S.C. 340(b)(1) (2010), as amended by the STELA sec.
203(a).
Service Limited to Subscribers Taking Local-Into-Local
Service.--This section shall apply only to retransmissions to
subscribers of a satellite carrier who receive retransmissions of a
---------------------------------------------------------------------------
signal from that satellite carrier pursuant to section 338.
This provision, as amended, still contains the local-into-local service
requirement,\67\ but no longer requires carriage of the local affiliate
of the same network. We presume that Congress acted intentionally and
purposely when it chose to discard the ``same network affiliate''
language in Section 340(b)(2)(A), which language the Commission had
relied upon for its more restrictive interpretation of Section
340(b)(1).\68\
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\67\ The provision limits subscriber eligibility for SV stations
to those subscribers that receive retransmissions from their
satellite carrier pursuant to the ``carry one, carry all''
requirement in 47 U.S.C. 338.
\68\ See, e.g., Moshe Gozlon-Peretz v. United States, 498 U.S.
395, 404 (1990) (``[Where] Congress includes particular language in
one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.'') (internal
citations omitted); Russello v. United States, 464 U.S. 16, 23
(1983) (same); Estate of Bell v. Commissioner, 928 F.2d 901, 904
(9th Cir. 1991) (``Congress is presumed to act intentionally and
purposely when it includes language in one section but omits it in
another.''); Arizona Elec. Power Co-op. v. United States, 816 F.2d
1366, 1375 (9th Cir. 1987) (``When Congress includes a specific term
in one section of a statute but omits in another section of the same
Act, it should not be implied where it is excluded.'').
---------------------------------------------------------------------------
18. Accordingly, we propose to revise our rule in Sec. 76.54(g) to
reflect the amended statutory language in Section 340(b)(1).\69\ We
tentatively conclude that, by striking Section 340(b)(2)(A), Congress
intended to eliminate the requirement that a subscriber receive the
specific local station that is affiliated with the same network as the
SV station. Therefore, our proposed rule requires only that a
subscriber receive the satellite carrier's local-into-local service as
a pre-condition for the subscriber to receive SV stations. We
[[Page 44204]]
note that this interpretation would allow a satellite carrier to carry
an SV station affiliated with a particular network if the local in-
market station affiliated with the same network does not grant
retransmission consent. We seek comment on our proposed rule and
tentative conclusions.
---------------------------------------------------------------------------
\69\ See Proposed rule 47 CFR 76.54(g)(1).
---------------------------------------------------------------------------
C. Statutory Exceptions to the Subscriber Eligibility Limitations
19. While revising the subscriber eligibility limitations in
Sections 340(b)(1) and 340(b)(2), the STELA retains without change the
statutory exceptions in Sections 340(b)(3) and 340(b)(4) to these
restrictions.\70\ As noted above, the Section 340(b)(3) exception to
the subscriber eligibility limitations permits a satellite carrier to
offer an SV network station to a subscriber when there is no local
network affiliate present in the local market.\71\ The Section
340(b)(4) exception permits a satellite carrier to privately negotiate
with the local network station to obtain a waiver of the eligibility
restrictions.\72\ These two exceptions provide as follows:
---------------------------------------------------------------------------
\70\ 47 U.S.C. 340(b)(3) and (4). We note that the STELA sec.
103 does amend the waiver provision in the corresponding satellite
statutory copyright license in 17 U.S.C. 122(a)(2) to eliminate the
``sunset'' provision and replace the term ``superstation'' with
``non-network station.''
\71\ Id. at 340(b)(3).
\72\ Id. at 340(b)(4).
(b)(3) The limitations in paragraphs (1) and (2) shall not
prohibit a retransmission under this section to a subscriber located
in a local market in which there are no network stations affiliated
with the same television network as the station whose signal is
being retransmitted pursuant to this section.
(b)(4) Paragraphs (1) and (2) shall not prohibit a
retransmission of a network station to a subscriber if and to the
extent that the network station in the local market in which the
subscriber is located, and that is affiliated with the same
television network, has privately negotiated and affirmatively
granted a waiver from the requirements of paragraph (1) and (2) to
such satellite carrier with respect to retransmission of the
significantly viewed station to such subscriber.
We tentatively conclude that these statutory exceptions will continue
to apply as they have before and are consistent with our proposed
interpretations of the amended subscriber limitation provisions in
Sections 340(b)(1)-(2). We believe the statutory exceptions in Sections
340(b)(3)-(4) will continue to have meaning, and would not be
superfluous, to our proposed interpretation of Section 340(b)(1).\73\
For example, the statutory exceptions in Sections 340(b)(3)-(4) would
still apply where local-into-local service is not available to a
subscriber for technical reasons (such as the spot beam does not cover
the DMA or its reception is blocked for an individual subscriber by
terrain or foliage) or if local-into-local service is not yet offered
by the satellite carrier to a subscriber's market. We seek comment on
our tentative conclusions. We also invite comment on whether
application of these unchanged statutory exceptions to the amended
subscriber limitation provisions raise any issues that may be relevant
to our implementation of the Section 340(b) significantly viewed
provisions as a whole.
---------------------------------------------------------------------------
\73\ See SHVERA Significantly Viewed Report and Order. The
Commission stated that if Section 340(b)(1) only required receipt of
any local-into-local service as a prerequisite to receiving an SV
network affiliate, as opposed to receiving the specific local
affiliate of the same network as the SV station, then there would be
no need for the statutory exceptions in Sections 340(b)(3) and (4)
to apply to Section 340(b)(1). Id.
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D. Housecleaning Rule Changes
20. In this section, we propose non-substantive changes to update
our significantly viewed rules. We seek comment on these proposed rule
changes.
21. 47 CFR 76.5(i). We propose to amend Sec. 76.5(i) of the rules
to replace its references to the term ``non-cable'' with the term
``over-the-air.'' \74\ In the 2005 SHVERA Significantly Viewed Report
and Order, the Commission made this change to Sec. 76.54 to reflect
the rule's true meaning, that being to indicate over-the-air
viewing.\75\ The Commission explained that, in the 1972 Order, the
concept of significant viewing was adopted to apply to over-the-air
households, which at the time essentially meant households without
cable (i.e., non-cable households).\76\ Thus, amending Sec. 76.5(i) to
change ``non-cable'' to ``over-the-air'' reflects the true intent of
the rule as it was in 1976, and is more consistent with the statute's
intent to establish parity between cable and satellite.
---------------------------------------------------------------------------
\74\ See Proposed rule change to 47 CFR 76.5(i).
\75\ SHVERA Significantly Viewed Report and Order.
\76\ Id. (citing to Cable Television Report and Order).
---------------------------------------------------------------------------
22. 47 CFR 76.54(c). We propose to amend Sec. 76.54(c) of the
rules to strike the outdated reference to the analog Grade B
contour.\77\ In the 2004 SHVERA Significantly Viewed Report and Order,
the Commission revised this rule to add the appropriate service contour
relevant for a station's digital signal--that being the noise limited
service contour (``NLSC'').\78\ With the completion of the transition,
we now propose to eliminate this reference to Grade B contour.
---------------------------------------------------------------------------
\77\ See Proposed rule change to 47 CFR 76.54(c).
\78\ SHVERA Significantly Viewed Report and Order. (The digital
NLSC is defined in 47 CFR 73.622(e).)
---------------------------------------------------------------------------
IV. Conclusion
23. In conclusion, in this NPRM, we propose to simplify our
satellite TV significantly viewed rules, as mandated by Congress. To
implement Section 203 of the STELA, we propose changes to Sec. 76.54
of our rules. Our proposed rule changes--shown, below, in the Proposed
Rule Changes section of this document--are modeled on the amended
language in the statute. Specifically, we propose to eliminate both the
``equivalent or entire bandwidth'' requirement and the requirement for
a subscriber to receive the specific local affiliate of the SV station.
V. Procedural Matters
A. Initial Regulatory Flexibility Act Analysis
24. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') \79\ the Commission has prepared this present Initial
Regulatory Flexibility Analysis (``IRFA'') concerning the possible
significant economic impact on small entities by the policies and rules
proposed in this 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 provided in Section V.D. of the
NPRM. The Commission will send a copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
(``SBA'').\80\ In addition, the NPRM and IRFA (or summaries thereof)
will be published in the Federal Register.\81\
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\79\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has
been amended by the Contract With America Advancement Act of 1996,
Pub. L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA
is the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA).
\80\ See 5 U.S.C. 603(a).
\81\ See id.
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1. Need for, and Objectives of, the Proposed Rule Changes
25. This document proposes changes to the Commission's satellite
television ``significantly viewed'' rules to implement Section 203 of
the Satellite Television Extension and Localism Act of 2010
(STELA).\82\ The STELA requires
[[Page 44205]]
the Commission to issue final rules in this proceeding on or before
Wednesday, November 24, 2010.\83\
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\82\ The Satellite Television Extension and Localism Act of 2010
(STELA) sec. 203, Pub. L. 111-175, 124 Stat 1218, 1245 (2010) (sec.
203 codified as amended at 47 U.S.C. 340, other STELA amendments
codified in scattered sections of 17 and 47 U.S.C.).
\83\ STELA sec. 203(b).
---------------------------------------------------------------------------
26. Section 203 of the STELA amends Section 340 of the
Communications Act, which gives satellite carriers the authority to
offer out-of-market but ``significantly viewed'' broadcast television
network stations as part of their local service to subscribers.\84\ The
designation of ``significantly viewed'' status allows a station
assigned to one DMA to be treated as a ``local'' station with respect
to a particular cable or satellite community in another DMA, and, thus,
enables cable or satellite carriage into said community in that other
DMA. Whereas cable operators have had carriage rights for
``significantly viewed'' (``SV'') stations since 1972, satellite
carriers have had such authority only since the 2004 Satellite Home
Viewer Extension and Reauthorization Act of 2004 (SHVERA) and may only
retransmit SV network stations to ``eligible'' satellite subscribers.
The satellite subscriber eligibility rules impose conditions on when
satellite carriers may retransmit SV stations to subscribers. These
conditions are intended to prevent satellite carriers from favoring an
SV network station over the in-market (local) station affiliated with
the same network. We note that the nature of SV carriage under Section
340 is permissive (and not mandatory), meaning the statute applies when
a satellite carrier chooses to carry an SV station and has obtained
retransmission consent from such SV station.\85\
---------------------------------------------------------------------------
\84\ 47 U.S.C. 340.
\85\ Id. at 340(d).
---------------------------------------------------------------------------
27. Section 203 of the STELA amends the SHVERA's Section 340(b)
satellite subscriber eligibility rules in two ways. First, it
eliminates the former requirement that satellite carriers devote
``equivalent bandwidth'' to the carriage of the in-market (local)
station as compared with the bandwidth devoted to carriage of the out-
of-market SV station.\86\ In its place, the STELA requires a satellite
carrier to retransmit ``in high definition format the signal of a
station located in the local market of such subscriber and affiliated
with the same network whenever such format is available from such
station.'' \87\ Second, STELA revises the subscriber eligibility
requirements by eliminating the SHVERA requirement that the subscriber
receive the local station affiliated with the same network as the SV
station and requires only that the subscriber receive the local-into-
local package from the satellite carrier.\88\ The STELA does not amend
the SHVERA's Section 340(a) station eligibility requirements, which
govern the eligibility of a television broadcast station to qualify for
``significantly viewed'' status.\89\
---------------------------------------------------------------------------
\86\ 47 U.S.C. 340(b)(2)(B) (2004).
\87\ 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec.
203(a).
\88\ Id. at 340(b)(1) (2010), as amended by the STELA sec.
203(a). In the NPRM, the Commission explains that ``a satellite
carrier provides `local-into-local' service when it retransmits a
local television signal back into the local market of that
television station for reception by subscribers.''
\89\ 47 U.S.C. 340(a). Accordingly, the NPRM does not propose
any changes to such station eligibility requirements; see 47 CFR
76.54(a) through (f), (j) and (k).
---------------------------------------------------------------------------
28. To implement the STELA's two amendments to Section 340(b), the
NPRM proposes the following changes to our satellite subscriber
eligibility rules:
The document proposes to eliminate the requirement that
satellite carriers offer ``equivalent bandwidth'' to the local and SV
network station pair, and to require instead carriage of the local
network affiliate in high definition (HD) as a precondition to
satellite carriage of the HD programming of an SV station affiliated
with the same network.
The document proposes to eliminate the requirement that a
subscriber receive the specific local network station (as part of the
satellite carrier's ``local-into-local'' service) in order for that
subscriber to also receive an SV station affiliated with the same
network and to require instead that the subscriber receive local-into-
local satellite service.
Finally, the document also seeks comment on the proposals and tentative
conclusions set forth in the NPRM, and invites comment on any other
issues that may be relevant to the Commission's implementation of the
STELA's amendments to the significantly viewed provisions.
2. Legal Basis
29. The proposed action is authorized pursuant to Section 203 of
the Satellite Television Extension and Localism Act of 2010, and
Sections 1, 4(i) and (j), and 340 of the Communications Act, as
amended, 47 U.S.C. 151, 154(i) and (j), and 340.
3. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
30. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\90\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \91\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\92\ 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 SBA.\93\ Below, we provide a description of such
small entities, as well as an estimate of the number of such small
entities, where feasible.
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\90\ 5 U.S.C. 603(b)(3).
\91\ 5 U.S.C. 601(6).
\92\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\93\ 15 U.S.C. 632. Application of the statutory criteria of
dominance in its field of operation and independence are sometimes
difficult to apply in the context of broadcast television.
Accordingly, the Commission's statistical account of television
stations may be over-inclusive.
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31. Satellite Carriers. The term ``satellite carrier'' means an
entity that uses the facilities of a satellite or satellite service
licensed under Part 25 of the Commission's rules to operate in the
Direct Broadcast Satellite (DBS) service or Fixed-Satellite Service
(FSS) frequencies.\94\ 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
[[Page 44206]]
earth station license.\95\ In the SHVERA Significantly Viewed Report
and Order, the Commission concluded that the definition of ``satellite
carrier'' includes all three of these types of entities.\96\
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\94\ The Communications Act defines the term ``satellite
carrier'' by reference to the definition in the copyright laws in
title 17. See 47 U.S.C. 340(i)(1) and 338(k)(3); 17 U.S.C.
119(d)(6). Part 100 of the Commission's rules was eliminated in 2002
and now both FSS and DBS satellite facilities are licensed under
Part 25 of the rules. Policies and Rules for the Direct Broadcast
Satellite Service, 67 FR 51110, August 7, 2002; 47 CFR 25.148.
\95\ See, e.g., DIRECTV 5 Blanket Earth Station License, DA 04-
2526, August 12, 2004.
\96\ SHVERA Significantly Viewed Report and Order.
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32. 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. DBS, by exception, is now included in the
SBA's broad economic census category, ``Wired Telecommunications
Carriers,'' \97\ which was developed for small wireline firms. Under
this category, the SBA deems a wireline business to be small if it has
1,500 or fewer employees.\98\ However, the data we have available as a
basis for estimating the number of such small entities were gathered
under a superseded SBA small business size standard formerly titled
``Cable and Other Program Distribution.'' The definition of Cable and
Other Program Distribution provided that a small entity is one with
$12.5 million or less in annual receipts.\99\ Currently, only two
entities provide DBS service, which requires a great investment of
capital for operation: DIRECTV and EchoStar Communications Corporation
(``EchoStar'') (marketed as the DISH Network).\100\ Each currently
offer subscription services. DIRECTV \101\ and EchoStar \102\ each
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 service provider. We seek
comments that have data on the annual revenues and number of employees
of DBS service providers.
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\97\ See 13 CFR 121.201, NAICS code 517110 (2007). The 2007
North American Industry Classification System (``NAICS'') defines
the category of ``Wired Telecommunications Carriers'' as follows:
``This industry comprises establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single
technology or a combination of technologies. Establishments in this
industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired
telephony services, including VoIP services; wired (cable) audio and
video programming distribution; and wired broadband Internet
services. By exception, establishments providing satellite
television distribution services using facilities and infrastructure
that they operate are included in this industry.'' (Emphasis added
to text relevant to satellite services.) U.S. Census Bureau, 2007
NAICS Definitions, ``517110 Wired Telecommunications Carriers'';
http://www.census.gov/naics/2007/def/ND517110.HTM.
\98\ 13 CFR 121.201, NAICS code 517110 (2007).
\99\ 13 CFR 121.201, NAICS code 517510 (2002).
\100\ See Thirteenth Annual Cable/MVPD Competition Report, 74 FR
11102, March 16, 2009. We note that, in 2007, EchoStar purchased the
licenses of Dominion Video Satellite, Inc. (``Dominion'') (marketed
as Sky Angel). See Public Notice, ``Policy Branch Information;
Actions Taken,'' Report No. SAT-00474, DA 07-4164 (IB rel. Oct. 5,
2007).
\101\ As of June 2006, DIRECTV is the largest DBS operator and
the second largest MVPD, serving an estimated 16.20% of MVPD
subscribers nationwide. See Thirteenth Annual Cable/MVPD Competition
Report.
\102\ As of June 2006, DISH Network is the second largest DBS
operator and the third largest MVPD, serving an estimated 13.01% of
MVPD subscribers nationwide. Id. As of June 2006, Dominion served
fewer than 500,000 subscribers, which may now be receiving ``Sky
Angel'' service from DISH Network. See id.
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33. Fixed-Satellite Service (``FSS''). The FSS is a
radiocommunication service between earth stations at a specified fixed
point or between any fixed point within specified areas and one or more
satellites.\103\ The FSS, which utilizes many earth stations that
communicate with one or more space stations, may be used to provide
subscription video service. FSS, by exception, is now included in the
SBA's broad economic census category, ``Wired Telecommunications
Carriers,'' \104\ which was developed for small wireline firms. Under
this category, the SBA deems a wireline business to be small if it has
1,500 or fewer employees.\105\ However, the data we have available as a
basis for estimating the number of such small entities were gathered
under a superseded SBA small business size standard formerly titled
``Cable and Other Program Distribution.'' The definition of Cable and
Other Program Distribution provided that a small entity is one with
$12.5 million or less in annual receipts.\106\ Although a number of
entities are licensed in the FSS, not all such licensees use FSS
frequencies to provide subscription services. The two 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.
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\103\ See 47 CFR 2.1(c).
\104\ See 13 CFR 121.201, NAICS code 517110 (2007).
\105\ Id.
\106\ 13 CFR 121.201, NAICS code 517510 (2002).
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34. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $14.0 million in annual receipts.\107\ Business concerns included
in this industry are those ``primarily engaged in broadcasting images
together with sound.'' \108\ The Commission has estimated the number of
licensed commercial television stations to be 1,392.\109\ According to
Commission staff review of the BIA/Kelsey, MAPro Television Database
(``BIA'') as of April 7, 2010, about 1,015 of an estimated 1,380
commercial television stations \110\ (or about 74 percent) have
revenues of $14 million or less and, thus, qualify as small entities
under the SBA definition. The Commission has estimated the number of
licensed noncommercial educational (NCE) television stations to be
390.\111\ We note, however, that, in assessing whether a business
concern qualifies as small under the above definition, business
(control) affiliations \112\ 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
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.
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\107\ See 13 CFR 121.201, NAICS Code 515120 (2007).
\108\ Id. This category description continues, ``These
establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in
turn broadcast the programs to the public on a predetermined
schedule. Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS code
512110; Motion Picture and Video Distribution, NAICS Code 512120;
Teleproduction and Other Post-Production Services, NAICS Code
512191; and Other Motion Picture and Video Industries, NAICS Code
512199.
\109\ See News Release, ``Broadcast Station Totals as of
December 31, 2009,'' 2010 WL 676084 (F.C.C.) (dated Feb. 26, 2010)
(``Broadcast Station Totals''); also available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296538A1.pdf.
\110\ We recognize that this total differs slightly from that
contained in Broadcast Station Totals; however, we are using BIA's
estimate for purposes of this revenue comparison.
\111\ See Broadcast Station Totals.
\112\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has to power to control both.''
13 CFR 121.103(a)(1).
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35. 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
[[Page 44207]]
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.
36. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are now included in the SBA's broad economic census
category, ``Wired Telecommunications Carriers,'' \113\ which was
developed for small wireline firms.\114\ Under this category, the SBA
deems a wireline business to be small if it has 1,500 or fewer
employees.\115\ However, the data we have available as a basis for
estimating the number of such small entities were gathered under a
superseded SBA small business size standard formerly titled ``Cable and
Other Program Distribution.'' The definition of Cable and Other Program
Distribution provided that a small entity is one with $12.5 million or
less in annual receipts.\116\ As of June 2004, there were approximately
135 members in the Independent Multi-Family Communications Council
(IMCC), the trade association that represents PCOs.\117\ The IMCC
indicates that, as of June 2006, PCOs serve about 1 to 2 percent of the
multichannel video programming distributors (MVPD) marketplace.\118\
Individual PCOs often serve approximately 3,000-4,000 subscribers, but
the larger operations serve as many as 15,000-55,000 subscribers. In
total, as of June 2006, PCOs serve approximately 900,000
subscribers.\119\ Because these operators are not rate regulated, they
are not required to file financial data with the Commission.
Furthermore, we are not aware of any privately published financial
information regarding these operators. Based on the estimated number of
operators and the estimated number of units served by the largest 10
PCOs, we believe that a substantial number of PCOs may have been
categorized as small entities under the now superseded SBA small
business size standard for Cable and Other Program Distribution.\120\
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\113\ See 13 CFR 121.201, NAICS code 517110 (2007).
\114\ Although SMATV systems often use DBS video programming as
part of their service package to subscribers, they are not included
in Section 340's definition of ``satellite carrier.'' See 47 U.S.C.
340(i)(1) and 338(k)(3); 17 U.S.C.119(d)(6).
\115\ 13 CFR 121.201, NAICS code 517110 (2007).
\116\ 13 CFR 121.201, NAICS code 517510 (2002).
\117\ See Eleventh Annual Cable/MVPD Competition Report, FCC 05-
13 (rel. Feb. 4, 2005).
\118\ See Thirteenth Annual Cable/MVPD Competition Report.
\119\ Id.
\120\ 13 CFR 121.201, NAICS code 517510 (2002).
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4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
37. The NPRM's proposed rules do not impose any new reporting,
recordkeeping or other compliance requirements.
5. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
38. 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.\121\
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\121\ 5 U.S.C. 603(c)(1) through (4).
---------------------------------------------------------------------------
39. We invite comment on whether there are any alternatives we
should consider to our proposed implementation of the statutory
amendments to Section 340(b) that would minimize any adverse impact on
small businesses, but which are consistent with the statute and its
goals and also maintain the benefits of our proposals. As discussed in
the NPRM, STELA's amendments to Section 340(b) intend to facilitate
satellite carriage of SV stations, with the expectation that this will
increase satellite TV service to consumers and promote regulatory
parity between cable and satellite service.\122\ We believe our
proposed rule changes implement the statute in the way that is most
consistent with the plain language of the statute.\123\ We also note
that the plain language of the statute does not appear to give us
discretion to treat small entities differently from larger ones, but
seek comment on this question.
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\122\ See H.R. 3570 Report at 4-5; H.R. 2994 Report at 16. In
the NPRM, we stated that, in revising the law, Congress intended for
the Commission to create a framework that would generally provide
for the satellite carriage of SV stations.
\123\ Our proposed rules are based on, and largely track, the
amended language of the statute.
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40. As was the intent of Congress, we believe our proposed rules
will benefit satellite carriers and the SV stations which they would
carry,\124\ as well as consumers of satellite TV service.\125\ We
believe that adverse impact to these entities is unlikely because SV
carriage under Section 340 is permissive (and not mandatory); that is,
the satellite carrier chooses to carry an SV station and the SV station
must grant its consent to be carried.\126\ We do not have data to
measure whether small TV stations on the whole, including in-market
network affiliates, are more or less likely to benefit from satellite
carriage of SV stations, so we invite small stations to comment on this
issue.
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\124\ For example, small broadcast stations will benefit from
the opportunity to be delivered as an SV station to more viewers.
\125\ See H.R. 3570 Report at 4-5.
\126\ See 47 U.S.C. 340(d).
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6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
41. None.
B. Initial Paperwork Reduction Act of 1995 Analysis
42. This NPRM has been analyzed with respect to the Paperwork
Reduction Act of 1995 (``PRA''),\127\ and does not propose any new or
modified information collection requirements.\128\ 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
[[Page 44208]]
Business Paperwork Relief Act of 2002.\129\
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\127\ The Paperwork Reduction Act of 1995 (``PRA''), Pub. L.
104-13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44
U.S.C.).
\128\ The Commission does not propose to modify the existing
information collections that relate to the Commission's
significantly viewed rules and procedures: OMB Control Nos. 3060-
0311 (47 CFR 76.54), 3060-0960 (47 CFR 76.122, 76.123, 76.124,
76.127), and 3060-0888 (47 CFR 76.7). The Commission will continue
to maintain these collections and seek extensions at the appropriate
time.
\129\ The Small Business Paperwork Relief Act of 2002
(``SBPRA''), Pub. L. 107-198, 116 Stat 729 (2002) (codified in
Chapter 35 of title 44 U.S.C.); see 44 U.S.C. 3506(c)(4).
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C. Ex Parte Rules
43. 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.\130\ 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.\131\ Additional
rules pertaining to oral and written presentations are set forth in
section 1.1206(b).
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\130\ See 47 CFR 1.1206(b); see also id. 1.1202, 1.1203.
\131\ See id. 1.1206(b)(2).
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D. Filing Requirements
44. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of
the Commission's rules,\132\ interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. 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.\133\
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\132\ See id. 1.415, 1419.
\133\ See Electronic Filing of Documents in Rulemaking
Proceedings, Report and Order, 63 FR 24121, May 1, 1998.
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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.
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. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
[cir] All hand-delivered or messenger-delivered paper filings for
the Commission's Secretary must be delivered to FCC Headquarters at 445
12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes
must be disposed of before entering the building. The filing hours are
8 a.m. to 7 p.m.
[cir] 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.
[cir] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street, SW., Washington DC 20554.
45. 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, Microsoft Word, and/or Adobe
Acrobat.
46. 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.
47. Additional Information. For additional information on this
proceeding, contact Evan Baranoff, [email protected], of the Media
Bureau, Policy Division, (202) 418-2120.
VI. Ordering Clauses
48. Accordingly, it is ordered that pursuant to Section 203 of the
Satellite Television Extension and Localism Act of 2010, and Sections
1, 4(i) and (j), and 340 of the Communications Act of 1934, as amended,
47 U.S.C. 151, 154(i) and (j), and 340, notice is hereby given of the
proposals and tentative conclusions described in this Notice of
Proposed Rulemaking.
49. It is further ordered that the Reference Information Center,
Consumer Information Bureau, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 76
Satellite television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rule Changes
For the reasons discussed in the preamble, the FCC proposes to
amend 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE.
1. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521,
522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549,
552, 554, 556, 558, 560, 561, 571, 572, 573.
2. Amend Sec. 76.5(i) by removing the words ``other than cable
television'' and adding in their place the words ``over-the-air'' and
in the Note following paragraph (i) remove the word ``noncable'' each
place it appears and add in its place the words ``over-the-air''.
3. Amend Sec. 76.54 by revising the first sentence in paragraph
(c), revising paragraph (g) and by removing and reserving paragraph (h)
to read as follows:
Sec. 76.54 Significantly viewed signals; method to be followed for
special showings.
* * * * *
(c) Notice of a survey to be made pursuant to paragraph (b) of this
section shall be served on all licensees or permittees of television
broadcast stations within whose predicted noise limited service
contour, as defined in Sec. 73.622(e) of this chapter, the cable or
satellite community or communities are located, in whole or in part,
and on all other system community units, franchisees, and franchise
applicants in the cable community or communities at least (30) days
prior to the initial survey period. * * *
* * * * *
(g) Limitations on satellite subscriber eligibility. A satellite
carrier may retransmit a significantly viewed network station to a
subscriber, provided the subscriber satisfies the conditions in
paragraphs (g)(1) and (g)(2) of this section or qualifies for one of
the two exceptions to these conditions provided in paragraphs (g)(3)
and (g)(4) of this section.
(1) Receipt of local-into-local service. A satellite carrier may
retransmit to a
[[Page 44209]]
subscriber the signal of a significantly viewed station only if that
subscriber receives local-into-local service, pursuant to Sec. 76.66.
(2) Receipt in HD format. A satellite carrier may retransmit to a
subscriber in high definition (HD) format the signal of a significantly
viewed station only if such carrier also retransmits in HD format the
signal of a station located in the local market of such subscriber and
affiliated with the same network whenever such format is available from
such station. This condition does not apply to, nor prohibit, the
retransmission to a subscriber of a significantly viewed station in
standard definition (SD) format.
(3) Exception if no network affiliate in local market. The
limitations in paragraphs (g)(1) and (g)(2) of this section will not
prohibit a satellite carrier from retransmitting a significantly viewed
network station to a subscriber located in a local market in which
there are no network stations affiliated with the same television
network as the significantly viewed station.
(4) Exception if waiver granted by local station. The limitations
in paragraphs (g)(1) and (g)(2) of this section will not apply if, and
to the extent that, the local network station affiliated with the same
television network as the significantly viewed station has granted a
waiver in accordance with 47 U.S.C. 340(b)(4).
* * * * *
[FR Doc. 2010-18538 Filed 7-27-10; 8:45 am]
BILLING CODE 6712-01-P