[Federal Register Volume 75, Number 180 (Friday, September 17, 2010)]
[Rules and Regulations]
[Pages 56868-56873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22814]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2010-2]
Implementation of the Satellite Television Extension and Localism
Act of 2010
ACTION: Interim Rule.
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SUMMARY: The Copyright Office amends its rules governing statements of
account for cable systems and satellite carriers to reflect changes
resulting from the recent enactment of the Satellite Television
Extension and Localism Act of 2010.
FOR FURTHER INFORMATION CONTACT: Ben E. Golant, Assistant General
Counsel or Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R,
P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8380.
Telefax: (202)-707-8366.
EFFECTIVE DATES: September 17, 2010.
SUPPLEMENTARY INFORMATION: Congress recently passed the Satellite
Television Extension and Localism Act of 2010 (``STELA'') which was
signed by the President on May 27, 2010. See Pub. L. No. 111-175. This
legislation updated and reauthorized the distant signal license for
satellite carriers under Section 119 of title 17. It also amended the
local-into-local satellite license and the cable statutory license in
several respects. The purpose of this Interim Rule is to account for
the new statutory provisions under Sections 111, 119, and 122, as
discussed below.
I. SECTION 111 AMENDMENTS
A. Phantom Signals and Subscriber Groups
For the past 30 years, cable operators have paid royalties for the
retransmission of non-network programming carried by distant broadcast
television signals under the Section 111 statutory license. The
royalties have been based on a percentage of gross receipts generated
by a cable system. Under the licensing framework established by
Congress in 1976, cable operators had to pay for the number of distant
signals carried, even though some such signals were not received or
made available to every subscriber of a particular cable system.
Distant broadcast signals that were not made available on a system-wide
basis, but on which operators were required to pay royalties, have been
called ``phantom signals.'' The Copyright Office has long recognized
the phantom signal situation, but the matter has only recently received
legislative attention.\1\
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\1\There is no legislative history accompanying STELA. However,
an earlier iteration of the legislation in 2009 contained the same
statutory language with respect to phantom signals and did have
accompanying legislative history.See Satellite Home Viewer Update
and Reauthorization Act of 2009, H. Rep. No. 111-319, 111th Cong.,
1st Sess. (Oct. 28, 2009) at 12 (``[T]he cable television and
content industries have taken different views on whether cable
providers should include certain signals that are not received by
every customer in the calculation of Section 111 royalty
obligations. Members of the cable industry argue that providers
should not have to pay for such signals because some consumers do
not receive them. Members of the content industry assert that, under
the law, all signals should be taken into account in the royalty
rate calculation. The Committee understands that there are two
different readings of the statute and that the issue should be
resolved to provide certainty to both industries.'')
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Section 104 of STELA, entitled ``Modifications to Cable System
Secondary Transmission Rights Under Section 111,'' directly addresses
phantom signals. Specifically, it amended Section 111(d)(1) of the
Copyright Act which sets forth the methodology for cable operators to
calculate royalties. Cable operators now pay royalties only where the
distant broadcast signal is actually received by subscribers rather
than on a broader cable system basis as had been the case since 1978.
The amendments finally resolve this enduring dispute.\2\
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\2\See id. at 23-24. (``Subsection (c) resolves the phantom
signal ambiguity that required cable systems to pay royalty fees for
carriage to all subscribers within the system. It allows a cable
system that provides transmissions of distant signals to some but
not all communities to calculate royalty fees on the basis of the
actual carriage of specific signals and the gross receipts derived
from the subscribers in the community.'')
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Specifically, the legislation amends subparagraph (C) of Section
111(d)(1) to state that if a cable system provides secondary
transmissions of primary transmitters to some, but not all, communities
served by the cable system, the gross receipts and distant signal
equivalent values for each secondary transmission may be derived on the
basis of the subscribers in those communities where the cable system
actually provides such secondary transmission. Where a cable system
calculates its royalties on a community-specific (``subscriber group'')
basis, the operator applies the methodology in Section
111(d)(1)(B)(ii)-(iv) to calculate a separate royalty for each
subscriber group. However, the operator will still compute the minimum
fee calculation under Section 111(d)(1)(B)(i) on a cable system basis
and is required to pay no less than the minimum fee. \3\
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\3\ See id. at 12. (``The legislation revises and updates
subparagraphs (C) and (D) of Section 111(d)(1) to resolve the so-
called ``phantom signal''issue. Just as the current law allows
subscriber group calculations for ``partially local/partially
distant'' situations, so too may cable systems use the subscriber
group methodology when calculating royalties for phantom signal
situations. . . . This change shall not affect a cable system's
obligation to pay the minimum fee as appropriate.'')
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[[Page 56869]]
The legislation also amends subparagraph (D) of Section 111(d)(1)
to state that for any accounting period prior to the enactment of the
amendments in subparagraph (C), a cable system's computation of its
royalty fee consistent with the methodology described in subparagraph
(C)(iii), or a cable system's use of such methodology on an amendment
of a statement originally filed before the date of enactment, will not
be deemed actionable as an act of infringement within the meaning of
Section 111(c)(2)(B). In other words, operators who have heretofore
based royalty payments on subscriber group calculations will not face
liability for having done so. Moreover, the amendments also make clear
that cable operators who paid for phantom signals in the past are not
entitled to now seek refunds or offsets for those payments.\4\
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\4\See id. at 12 (noting the same).
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As part of the legislative compromise on the phantom signal matter,
certain cable operators agreed to the payment of additional royalty
amounts directly to the Copyright Office for a five year period. These
additional royalty payments are addressed in new paragraph (7) of
subsection (d), which directs the Copyright Office to treat them as
part of the Section 111 royalty pool attributable to the period for
which they are submitted.\5\
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\5\ See id. at 13. (``Finally, as a result of discussions among
the parties affected by the phantom signal issue that helped lead to
broad industry support for these amendments, certain cable operators
agreed to the payment of additional royalty amounts directly to the
Copyright Office for a 5-year period. . . . For example, if the
first such additional royalty payments are submitted on the filing
deadline for the first accounting period of 2010 (i.e., August 29,
2010), the Office shall treat such amounts as part of the base rate
royalty pool for the first accounting period of 2010 for deposit and
distribution to claimants using the existing procedures.'')
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The changes to Section 111(d) necessitate an amendment to Section
201.17 as well as a revision to the Form 3 Statement of Account. The
interim rule adds a new subsection ``g'' to the rules to implement the
statutory language regarding subscriber groups and reflect the new
royalty rates (noted below). The Office has also revised SOA Form 3 to
better accommodate subscriber group reporting and to recognize the
additional royalties that will be submitted by certain cable operators.
B. Rate Adjustments
Section 104 of STELA also revises and updates Section 111(d)(1) to
adjust the royalty percentages payable by cable systems that must
compute their royalty payments in accordance with subparagraph (B) of
that provision. The adjusted royalty percentages were made effective as
of January 1, 2010, in lieu of any adjustments in royalty percentages
or gross receipts thresholds that might have been made this year in a
cable royalty rate inflation adjustment proceeding pursuant to Sections
801(b)(2) and 804(b)(1).\6\ The new law adjusts the existing ``base''
royalty rates for Form 3 systems upwards by approximately 5 percent
starting with the first accounting period of 2010. Under STELA, the fee
for the first distant signal equivalent increases from 1.013 percent to
1.064 percent; the fee for the second through fourth distant signal
equivalent increases from 0.668 percent to 0.701 percent; and the fee
for the fifth distant signal equivalent, and each additional distant
signal equivalent increases from 0.314 percent to 0.330 percent. STELA
does not change the rates for smaller cable systems that use the SOA
Form 1-2 nor does it disturb the gross receipts thresholds for
determining whether an operator should file SOA Form 3 or SOA Form 1-2.
STELA also clarifies that the base rate fees, the 3.75 fee, and the
syndicated exclusivity surcharge will not be subject to an adjustment
again before 2015. The Office has updated Section 201.17 to reflect the
rate adjustment provisions of STELA, but it does not believe any
further regulatory amendments are required.
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\6\On January 5, 2010, the Copyright Royalty Judges issued a
Federal Register Notice commencing the 2010 Cable Rate Proceeding to
adjust the gross receipt limitations and royalty rates applicable
under Section 111. See 75 FR 455 (Jan. 5, 2010). Soon after STELA
was enacted, cable operators and copyright owners filed a Joint
Motion to Terminate the proceeding. The Judges have not yet issued
an Order terminating the proceeding.
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C. DTV Signals
1. Multicasting
Section 104 of STELA modifies particular provisions in Section 111
to accommodate the 2009 digital broadcast television transition.
Digital television signals are different from analog signals in that a
digital television broadcaster has the ability to air several sub-
channels, or multicasts, from its single broadcast transmitter. Cable
operators have retransmitted distant multicasts for a number of years
under the Section 111 license. STELA clarifies that a royalty payment
should be made for the retransmission of non-network television
programming carried on each unique digital multicast stream of a
distant digital television signal. Specifically, the definition of
distant signal equivalent (``DSE'') in Section 111 was changed to
account for the retransmission of multicast streams. A DSE, as modified
by STELA, is :
(i) the value assigned to the secondary transmission of any non-
network television programming carried by a cable system in whole or in
part beyond the local service area of the primary transmitter of such
programming; and
(ii) computed by assigning a value of one to each primary stream
and to each multicast stream (other than a simulcast) that is an
independent station, and by assigning a value of one-quarter to each
primary stream and to each multicast stream (other than a simulcast)
that is a network station or a noncommercial educational station.
At the same time, however, STELA carves out special exceptions
regarding the royalty treatment of multicast streams under Section 111.
Specifically, ``the royalty rates specified in Sections 256.2(c) and
256.2(d) of title 37, Code of Federal Regulations (commonly referred to
as the ``3.75 percent rate'' and the ``syndicated exclusivity
surcharge'' respectively), as in effect on the date of enactment of the
Satellite Television Extension and Localism Act, as such rates may be
adjusted, or such sections redesignated, thereafter by the Copyright
Royalty Judges, shall not apply to the secondary transmission of a
multicast stream.'' This provision, in effect, would permit a cable
operator to carry multiple multicast streams without concern about
exceeding its market quota of distant signals and being required to pay
the 3.75% fee. In addition, no royalties are due for carrying a distant
multicast stream that ``simulcasts'' (i.e., duplicates) a primary
stream or another multicast stream of the same station that the system
is carrying. The amendments to Section 201.17 incorporate the relevant
statutory language on multicast streams into new subpart (j) of the
Copyright Office's rules.\7\
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\7\Two years ago, the Office issued a Notice of Proposed
Rulemaking to address the legal concerns raised by the
retransmission of digital television signals by cable operators
under the Section 111 license. See 73 F.R. 31399 (June 2, 2008).
Multicasting was one of the prominent matters raised for comment.
Now that STELA has been enacted, we will be re-examining the issues
that remain in that rulemaking.
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2. Effective Dates
Section 104 of STELA specifically delineates the effective dates
with respect to the treatment of multicast
[[Page 56870]]
streams under the cable statutory license. First, STELA states that the
Section 111 amendments, with regard to the distant signal equivalent
value of the secondary transmission of the multicast stream of a
primary transmitter, takes effect on the date of the enactment of the
Act [i.e., February 27, 2010].\8\ That is, any distant multicasts first
retransmitted by a cable operator on or after February 27, 2010, is
subject to royalties. Second, STELA delays the implementation of the
requirement to pay for carriage of a multicast stream ``in any case in
which a cable system was making secondary transmissions of a multicast
stream beyond the local service area of its primary transmitter before
the date of enactment of this Act [i.e., February 27, 2010] and states
that ``a distant signal equivalent value shall not be assigned to
secondary transmissions of such multicast stream that are made on or
before June 30, 2010.''\9\ [emphasis added]. Clearly, cable operators
will not have to pay royalties for any multicasts carried prior to
STELA's effective date. Further, Congress has built a grace period into
the statute so that those cable operators that have carried distant
multicasts prior to the effective date through to June 30, 2010, do not
have to pay royalties for the first accounting period of this year.\10\
Finally, STELA states that ``in any case in which the secondary
transmission of a multicast stream of a primary transmitter is the
subject of a written agreement entered into on or before June 30, 2009,
between a cable system or an association representing the cable system
and a primary transmitter or an association representing the primary
transmitter, a distant signal equivalent value shall not be assigned to
secondary transmissions of such multicast stream beyond the local
service area of its primary transmitter that are made on or before the
date on which such written agreement expires.'' This could be
characterized as the ``Grandfathered Agreement Exception.'' Here, no
royalties are due for the retransmission of a distant multicast that is
subject to an ongoing agreement. However, once the agreement expires,
then royalties would have to be paid for such distant multicasts if
they continue to be carried.
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\8\The date of enactment is usually the date the President signs
the bill whereas the effective date may be either earlier or later.
However, STELA includes a provision that clarifies that in most
instances references to ``date of enactment'' shall be deemed to
refer to February 27, 2010, unless otherwise specified. See Section
307of STELA
\9\June 30, 2010, is the last day of the first accounting period
for 2010 (i.e., 2010/1).
\10\A cable operator that did not want to pay royalties for a
multicast for the second accounting period of 2010 had to drop the
signal prior to July 1, 2010 (the first day of the second accounting
period), the date when a royalty obligation would commence.
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It is important to mention that a cable system that has reported
secondary transmissions of a multicast stream beyond the local service
area of its primary transmitter on a statement of account deposited
under Section 111 before the date of the enactment of STELA is not
entitled to any refund, or offset, of royalty fees paid on account of
such secondary transmissions of such multicast stream.
3. Statement of Account Forms
Section 201.17(e), the rule dictating the fields and parameters of
the cable statement of account forms, has to be revised to account for
the changes in Section 111 due to STELA. We have identified at least
two separate subsections that need to be amended to conform with the
new multicast provisions of the new law. The first is the designation
of ``channels'' under Section 201.17(e)(5). Here, we amend the
regulation to recognize that a multicast stream would be considered a
``channel'' for Statement of Account purposes. Similarly, we amend
Section 201.17(e)(9) to account for multicast streams in the ``Primary
Transmitters'' designation in the rules. Specifically, we find it
necessary to explain how to label and account for the retransmission of
multicast signals on the SOA. The revised SOAs the Office has released
for the 2010/1 period reflect this change and request that each
multicast stream be identified by its over-the-air call sign followed
by the sub-channel number assigned to it by the television broadcast
licensee. It is important to note that a simulcast stream\11\ is a
multicast stream, and even though no royalties must be paid for its
retransmission, the carriage of such still must be reported on the
Statement of Account form. A simulcast stream should be properly
labeled on the form (e.g., WETA-simulcast) so that Licensing Division
examiners are able to differentiate this type of stream from other
multicast streams that may require a royalty payment.
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\11\A simulcast is defined as ``[A] multicast stream of a
television broadcast station that duplicates the programming
transmitted by the primary stream or another multicast stream of
such station.''
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4. Definitions
STELA amended Section 111(f) of the Copyright Act in many respects
to include new definitions that relate to digital broadcast television
and for other purposes. The new or modified definitions in Section 111,
like the revised definition of ``DSE'' discussed above, focus on the
technical aspects of digital signals and the ability of television
stations to multicast or split its one digital signal into many sub-
channels. Under STELA, the terms ``primary stream,'' ``multicast
stream,'' and ``simulcast''were added to Section 111 because of the
digital television transition. The terms ``independent station,''
``noncommercial educational station,'' and ``network station'' which
have been part of Section 111 for over 33 years, were modified for the
same reason. The same can be said with regard to the revised
definitions of the terms ``primary transmission'' and ``local service
area of a primary transmitter,'' which is discussed in greater detail,
below.
The definitions of ``secondary transmission,'' and ``cable system''
were modified slightly and new terms ``Subscribe,'' ``Subscriber'' and
``Primary Transmitter'' were added to Section 111(f). These new or
revised definitions are simple clarifications with no direct
association with the digital transition. Consequently, the Office
amends Section 201.17(b)(5) to account for these new definitions and
has revised the SOA forms to reflect the statutory language. Network
Stations. There is a newly expanded definition of ``network station''in
STELA. It reflects the inclusion of digital television signals in the
Section 111 rubric. For a digital television station's primary stream,
the term ``network station'' means a ``television broadcast station
that is owned or operated by, or affiliated with, one or more of the
television networks in the United States providing nationwide
transmissions, and that transmits a substantial part of the programming
supplied by such networks for a substantial part of the primary
stream's typical broadcast day.'' This is the same definition that has
been in Section 111(f) since 1976. However, the term ``network
station'' is different for multicast streams, where Congress has
adopted the Section 119 definition of the term. So, the second half of
the new network station definition now reads as follows:
The term ``network station'' shall be applied to a multicast stream
on which a television broadcast station transmits all or substantially
all of the programming of an interconnected program service that is
owned or operated by, or affiliated with, one or more of the television
networks described in subparagraph (A); and offers programming on a
regular basis for 15 or more hours per week to at least 25 of the
affiliated television licensees
[[Page 56871]]
of the interconnected program service in 10 or more States.
We propose to incorporate this definition by reference into Section
201.17 of the Office's rules.
Local Service Area of a Primary Transmitter. Before STELA, Section
111(f) defined ``local service area of a primary transmitter,'' as
``comprising the area in which such station is entitled to insist upon
its signal being retransmitted by a cable system pursuant to the rules,
regulations, and authorizations of the Federal Communications
Commission (FCC) in effect on April 15, 1976, or such station's
television market as defined in Section 76.55(e) of title 47, Code of
Federal Regulations (as in effect on September 18, 1993), or any
modifications to such television market made, on or after September 18,
1993, pursuant to Section 76.55(e) or 76.59 of title 47 of the Code of
Federal Regulations.'' For cable statutory licensing purposes, a
television broadcast station's local-distant status may be determined
by the television station's 35-mile zone (a market definition concept
arising under the FCC's old rules), its Area of Dominant Influence
(``ADI'') (under Arbitron's defunct television market system), or
Designated Market Area (``DMA'') (under Nielsen's current television
market system). Grade B contour coverage has also been used in
determining the scope of a noncommercial television station's local
service area. However, Grade B contours apply only to analog signals,
not digital signals whose service area is now defined by the FCC's
``noise-limited service contour.'' STELA amended Section 111(f) to
include a television station's noise limited service contour as one of
the local service area parameters in Section 111(f). This amendment
directly addresses the local/distant status of full power noncommercial
educational television stations under Section 111 of the Act.
II. AMENDMENTS TO THE SECTION 119 AND 122 LICENSES
A. Definitions
Section 102 of STELA amended Section 119 in several respects to
account for the digital television transition and for other purposes.
However, the new law does not require the Office to implement
significant rule changes. Instead, the task here is to implement minor
modifications to Section 201.11, the regulatory provisions centered on
the satellite SOA forms, to account for new and modified nomenclature.
For example, Section 201.11(b)(1) needs to be updated to include new
definitions.\12\ Moreover, the rules need to be amended to account for
the change in nomenclature from ``Superstations'' to ``Non-network
stations.'' It is also important to note that STELA moved certain
provisions of Section 119, such as the provisions governing low power
television stations and special market exceptions, to Section 122.
Moreover, Section 103 of STELA added a new provision governing the
retransmission of state public television networks. While the majority
of the statutory changes to Sections 119 and 122 are self-executing, it
is worth highlighting these and other changes that relate to the
retransmission of distant television signals by satellite carriers.
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\12\STELA amended Section 119(f) to add the terms ``Subscribe,''
``Multicast Stream,'' and ``Primary Stream.'' It also amended the
terms, ``Local Market'' and ``Subscriber'' and moved the definition
of ``Low Power Television Station'' to Section 122.
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Unserved Household Definition. STELA updates the definition of
``unserved household'' to include a standard for determining when a
household is served by a digital signal for Section 119 purposes.
Specifically, the definition now includes a provision pertaining to the
digital noise-limited service contour in addition to the existing
analog Grade B contour reference.\13\ A household falling within the
noise-limited contour of the primary stream of a digital network
station signal will now be considered ``served'' under Section 119.
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\13\See amended Section 119(d)(10)(A)(ii).
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STELA also amends the unserved household definition to take into
account the ability of a television broadcast station to transmit
multicast streams. Specifically, a subscriber who can receive an in-
market, over-the-air signal of a multicast stream affiliated with a
particular television broadcast network will be considered ``served''
starting in October 2010 or January 2011, depending on when the
multicast stream first came into existence.\14\ For example, a
household will be considered served on October 1, 2010, if the
multicast stream existed on March 31, 2010. For all other in-market
multicast streams, a household will not be considered served until
January 1, 2011. STELA specifically states that satellite carriers must
pay royalties, on a per-subscriber basis, for both distant primary
streams and distant multicast streams.\15\
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\14\See amended Section 119(d)(14).
\15\See amended Section 119(b)(1)(B).
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Unrelated to the digital television transition, but nonetheless
important to the unserved household definition, STELA clarifies that a
particular household's ``unserved'' status is determined by the reach
of a network station signal in its local television market and is
unaffected by the availability of an over-the-air signal from a network
station licensed to a community located in an adjacent non-local
market.\16\
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\16\See amended Section 119(d)(10)(A).
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B. State Public Television Networks
STELA also added a new provision for the retransmission of certain
distant noncommercial educational stations to the Section 122 license.
Many state public television networks, which by statute or charter have
a mandate to serve their states' citizens, have been unable to reach
substantial portions of their intended audience by satellite
television. In response, STELA explicitly permits the retransmission of
``out-of-market'' noncommercial educational television station signals
that are part of a statewide system of three or more such signals to
satellite subscribers located in a county in the state where
subscribers would otherwise not be eligible to receive an in-state
noncommercial educational station.\17\ Even though STELA adds this
provision to Section 122 (the local-into-local royalty-free license),
satellite carriers must still pay royalties to retransmit such
signals.\18\ Satellite carriers are expected to list such signals in
Spaces C and D of the satellite Statement of Account form.
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\17\See amended Section 122(a)(4)(E).
\18\See amended Section 122(a)(5).
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C. Section 119 Deletions and Section 122 Additions
STELA reorganized Sections 119 and 122 to better reflect the
royalty/royalty-free dichotomy of the licenses. For example, the
provisions regarding the royalty-free retransmission of significantly
viewed signals and low-power television stations have been moved from
Section 119 to Section 122 of the Copyright Act.\19\ With regard to
low-power television stations, STELA changed the local service area of
such stations so that a signal can be carried on throughout a
designated market area.\20\ The special market exceptions, which were
added to Section 119 in 2004, were also moved to Section 122, although
satellite carriers are still obligated to pay royalties for the
stations subject to such exceptions under the statute.\21\ Satellite
carriers should
[[Page 56872]]
continue to list the special exception stations in Spaces C and D of
their Statement of Account forms.
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\19\See amended Sections 122(a)(2) and (3), respectively.
\20\See amended Section 122(a)(3).
\21\See amended Sections 122(a)(4) and (5), respectively.
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III. CONCLUSION
We hereby issue interim regulations and will seek comment in the
future from the public on the subjects discussed above related to the
implementation of Sections 102 through 104 of the Satellite Television
Extension and Localism Act of 2010.
List of Subjects in 37 CFR 201
Cable, Copyright, Satellite
Interim Regulation
For the reasons set forth in the preamble, Part 201 of Title 37 of
the Code of Federal Regulations is amended as follows:
PART 201 - GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702
0
2. Amend Sec. 201.11 as follows:
a. By removing ``superstation'' each place it appears and adding in
its place ``non-network station'';
b. In paragraph (a) by adding ``and Section 122(a)'' after
``section 119(b)(1)'';
c. In paragraphs (a) and (b) by removing ``Pub. L. 103-369'' each
place it appears and adding in its place ``Pub. L. No. 111-175'' and
d. By revising paragraph (b)(1).
The revision reads as follows:
Sec. 201.11 Satellite carrier statements of account covering statutory
licenses for secondary transmissions.
* * * * *
(b) Definitions. (1) The terms distributor, network station,
private home viewing, satellite carrier, subscribe, subscriber, non-
network station, unserved household, primary stream, and multicast
stream, have the meanings set forth in Section 119(d) of title 17 of
the United States Code, as amended by Pub. L. No. 111-175.
* * * * *
0
3. Amend Sec. 201.17 as follows:
a. By revising paragraph (b)(5);
b. In paragraph (e)(5)(i) by adding ``, including multicast
streams'' after ``The number of channels'';
c. By adding paragraph (e)(5)(iii);
d. By redesignating paragraphs (e)(9)(vii) and (viii) as paragraphs
(e)(9)(ix) and (x)and adding new paragraphs (e)(9)(vii) and (viii);
e. In newly redesignated paragraph (e)(9)(ix) by removing
``subclauses (v) and (vi)'' and add in its place ``paragraphs (v)
through (viii)'';
f. By redesignating paragraphs (g) through (l) as paragraphs (h)
through (m) and adding a new paragraph (g);
g. In newly redesignated paragraph (i), by adding paragraph (10);
and
h. By redesignating newly redesignated paragraphs (j) through (m)
as paragraphs (k) through (n) and adding a new paragraph (j).
i. In newly redesignated paragraph (m), by removing ``(k)'' each
place it appears and adding ``(m)'' in its place; and
j. In newly redesignated paragraph (m)(3)(v) by removing ``(j)''
and adding ``(m)'' in its place.
The revisions and additions read as follows:
Sec. 201.17 Statements of Account covering compulsory licenses for
secondary transmissions by cable systems.
* * * * *
(b) * * *
(5) The terms primary transmission, secondary transmission, local
service area of a primary transmitter, distant signal equivalent,
network station, independent station, noncommercial educational
station, primary stream, multicast stream, simulcast, primary
transmitter, subscriber, and subscribe have the meanings set forth in
Section 111(f) of title 17 of the United States Code, as amended by
Pub. L. No. 94-553, Pub. L. No. 103-369, and Pub. L. No. 111-175.
* * * * *
(e) * * *
(5) * * *
(iii) A multicast stream is considered a channel for purposes of
this section
(9) * * *
(vii) A designation as to whether the channel carried is a
multicast stream, and if so, the sub-channel number assigned to that
stream by the television broadcast licensee.
(viii)Simulcasts must be reported and labeled on the Statement of
Accounts form in an easily identifiable manner (e.g., WETA-simulcast).
* * * * *
(g) Computation of copyright royalty fee: subscriber groups. (1) If
a cable system provides a secondary transmission of a primary
transmitter to some, but not all, communities served by that cable
system--
(i) The gross receipts and the distant signal equivalent values for
such secondary transmission shall be derived solely on the basis of the
subscribers in those communities where the cable system provides such
secondary transmission; and
(ii) The total royalty fee for the period paid by such system shall
not be less than the minimum fee multiplied by the gross receipts from
all subscribers to the system.
(2) A cable system that, on a statement submitted before the date
of the enactment of the Satellite Television Extension and Localism Act
of 2010, computed its royalty fee consistent with the methodology under
paragraph (i)(1) of this section or that amends a statement filed
before such date of enactment to compute the royalty fee due using such
methodology, shall not be subject to an action for infringement, or
eligible for any royalty refund or offset, arising out of the use of
such methodology on such statement.
(3) Any royalty fee payments received by the Copyright Office from
cable systems for the secondary transmission of primary transmissions
that are in addition to the payments calculated and deposited in
accordance with this subsection shall be deemed to have been deposited
for the particular accounting period for which they are received and
shall be distributed as specified under subsection 111(d) of title 17,
United States Code. Such payments shall be considered as part of the
base rate royalty fund.
(4) The royalty fee rates established by the Satellite Television
Extension and Localism Act shall take effect commencing with the first
accounting period occurring in 2010.
* * * * *
(i) * * *
(10) The 3.75% rate does not apply to distant multicast streams
retransmitted by cable systems.
(j) Multicasting. (1) A royalty payment shall be made for the
retransmission of non-network television programming carried on each
multicast stream of a distant digital television signal under the
following circumstances:
(i) If the distant multicast stream was first retransmitted by a
cable system on or after February 27, 2010, or
(ii) If the distant multicast stream is retransmitted by a cable
operator on or after July 1, 2010.
(2) In any case in which a distant multicast stream is the subject
of a written agreement entered into on or before June 30, 2009, between
a cable system or an association representing the cable system and a
primary transmitter or an association representing the primary
transmitter, a distant signal equivalent value shall not be assigned to
a distant multicast stream that is made on or before the date on which
such written agreement expires.
(3) No royalties are due for carrying a distant multicast stream
that
[[Page 56873]]
``simulcasts'' (i.e., duplicates) a primary stream or another multicast
stream of the same station that the cable system is carrying. However,
simulcast streams must be reported on the Statement of Accounts.
(4) Multicast streams of digital broadcast programming shall not be
subject to the 3.75% fee or the syndicated exclusivity surcharge.
* * * * *
Dated: August 10,2010
Marybeth Peters,
Register of Copyrights.
Dated: August 10, 2010
James H. Billington,
The Librarian of Congress.
[FR Doc. 2010-22814 Filed 9-16-10; 8:45 am]
BILLING CODE 1410-30-S