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108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-634
======================================================================
SATELLITE HOME VIEWER EXTENSION AND REAUTHORIZATION ACT OF 2004
_______
July 22, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
[To accompany H.R. 4501]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4501) to extend the statutory license for
secondary transmissions under section 119 of title 17, United
States Code, and to amend the Communications Act of 1934 with
respect to such transmissions, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 5
Statement of General Performance Goals and Objectives............ 5
New Budget Authority, Entitlement Authority, and Tax Expenditures 5
Committee Cost Estimate.......................................... 5
Congressional Budget Office Estimate............................. 5
Federal Mandates Statement....................................... 10
Advisory Committee Statement..................................... 10
Constitutional Authority Statement............................... 10
Applicability to Legislative Branch.............................. 10
Section-by-Section Analysis of the Legislation................... 10
Changes in Existing Law Made by the Bill, as Reported............ 21
Purpose and Summary
The purpose of H.R. 4501, the ``Satellite Home Viewer
Extension and Reauthorization Act of 2004'' (SHVERA), is to
modernize satellite television policy and enhance competition
between satellite and cable operators. The bill does so by
reauthorizing certain provisions of the Communications Act that
govern satellite retransmission of distant broadcast signals;
increasing regulatory parity by extending to satellite
operators the same type of authority cable operators already
have to carry ``significantly viewed'' signals into a market;
amending other provisions to reflect the increased carriage by
satellite operators of local broadcast signals; and beginning
to address how satellite operators may retransmit digital
broadcast signals.
Background and Need for Legislation
Direct Broadcast Satellite (DBS) operators have become
significant facilities-based competitors to cable operators in
the multichannel video programming distribution (MVPD) market
since the introduction of DBS about a decade ago. Approximately
20.4 million U.S. television households subscribed to DBS
service as of June 30, 2003, representing 19.1 percent of
television households and 21.6 percent of MVPD subscribers,
according to the Federal Communications Commission. See In re
Annual Assessment of the Status of Competition in the Market
for the Delivery of Video Programming, MB Docket No. 03-172,
Tenth Annual Report, 19 FCC Rcd 1606, at para.para. 61, 65 &
Tbl. B-1 (2004). This figure represents more than twice the
households that were receiving DBS service in June 1999, just
prior to the enactment of the Satellite Home Viewer Improvement
Act (SHVIA), when DBS had 10.1 percent TV household penetration
and 12.5 percent of the MVPD market. See Ninth Annual Report,
17 FCC Rcd 26901, at Tbl. B-1 (2002).
DBS retransmission of broadcast programming, and
particularly local programming, is responsible for much of the
growth. Approximately 58 percent of DBS subscribers receive
local or distantbroadcast signals from a DBS provider. Tenth
Annual Report, 19 FCC Rcd 1606, at para. 69. Some consumers have
trouble receiving television signals over the air for reasons such as
intervening terrain or their distance from a broadcast station.
Consequently, the Satellite Home Viewer Act of 1988 (SHVA) amended the
Communications Act to authorize a satellite operator to deliver the
signal of an out-of-market broadcast affiliate to a consumer who is
``unserved'' by the over-the-air signal of a local affiliate of that
network. See 47 U.S.C. Sec. 339. To facilitate that regime, SHVA also
created provisions exempting satellite operators from having to
negotiate with distant broadcast stations to retransmit the distant
stations' signals to consumers who are unserved over the air. See 47
U.S.C. Sec. 325(b). The retransmission-consent exemption created by
SHVA expires Dec. 31, 2004. See 47 U.S.C. Sec. 325(b)(2)(C).
In SHVIA, Congress expanded on SHVA by further amending the
Communications Act to authorize satellite operators to provide
consumers with local broadcast signals. As a general rule, a
satellite operator must carry all the local broadcast stations
in a market if it chooses to carry any local broadcast stations
in that market. See 47 U.S.C. Sec. 338. As of December 2003,
such local-into-local service was offered by at least one DBS
operator in 106 of the 210 Designated Market Areas (DMAs),
covering 86 percent of U.S. television households. Tenth Annual
Report, 19 FCC Rcd 1606, at para. 69. This represents an
increase from 64 DMAs, according to the prior year's report.
Id. As of July 2004, DirecTV alone listed local service in 106
markets on its web site, and indicated plans to add 18 more
markets by the end of 2004. EchoStar listed 137 local markets
on its web site as of June 2004, and has stated that it intends
to reach 147 by the end of 2004.
Satellite-delivered television service started as a way to
serve consumers, particularly in rural areas, who could not get
adequate over-the-air reception and did not have access to
cable. But DBS does more than serve otherwise unserved areas.
Its nationwide coverage allows it to compete against cable
operators, and in so doing it improves consumer options. The
General Accounting Office (GAO) reports that the carriage by
satellite operators of local stations in a market leads cable
operators to offer approximately 5 percent more cable channels.
See U.S. General Accounting Office, Issues Related to
Competition and Subscriber Rates in the Cable Television
Industry, GAO-04-8 (Oct. 2003). The availability of DBS has
also forced cable operators to upgrade their infrastructure to
allow consumers to receive high-quality video and more
channels, as well as interactive, broadband, and video-on-
demand services. See Tenth Annual Report, at para. 12. The FCC
also reports that ``as DBS offerings have become more
comparable to cable service (including the provision of
advanced video and non-video services), and pursuant to
Congress' authorization of the retransmission of local
broadcast signals, DBS subscribership has grown rapidly.''
Tenth Annual Report, at para. 5. Although some DBS customers
never before subscribed to MVPD service, many switch from
cable. Indeed, DirecTV has told the FCC that 70 percent of its
customers switched from cable the first time they subscribed to
DirecTV. Tenth Annual Report, at para. 65.
H.R. 4501 is necessary to maintain and increase these
competitive pressures. It does so by reauthorizing
Communications Act provisions regarding satellite
retransmission of distant broadcast signals, amending and
adding other provisions to reflect the increasing
retransmission by satellite of local signals, improving
regulatory parity between cable and satellite, and beginning to
consider how to treat satellite retransmission of digital
broadcast signals.
During the hearings and legislative markups on satellite
television reauthorization legislation, the Committee discussed
whether satellite and cable operators should be required to
offer programming on an a la carte or themed-tier basis, or
allowed to do so voluntarily, and whether there were any
regulatory barriers to the provision of such services on a
voluntary basis. A la carte service generally involves allowing
consumers to design their own programming packages by selecting
content on a channel-by-channel basis, or by choosing from
among a variety of themed tiers of channels. Currently,
satellite and cable operators generally organize channels based
on their own business judgments, negotiations with programmers,
and certain regulations.
The Committee concluded that adding a la carte or themed-
tier provisions to this satellite television reauthorization
legislation would be inappropriate at this time. A la carte and
themed-tier issues apply to cable as well as satellite, while
this legislation is focused on reauthorizing provisions
governing satellite retransmission of broadcast television
signals. Moreover, the Committee needs a fuller understanding
of the implications of a la carte legislation, including
whether there are any market or regulatory barriers to
providing such service today, and whether a la carte regulation
would help or harm consumer rates and programming choices.
Consequently, the Committee held an MVPD competition hearing
July 21, 2004, that addressed a la carte. The Committee has
also directed the FCC to initiate an inquiry on the subject.
Hearings
The Subcommittee on Telecommunications and the Internet
held two hearings on satellite-delivered broadcast television
during the second session of the 108th Congress. The
Subcommittee received testimony in an oversight hearing on
March 10, 2004, from: David Moskowitz, Senior Vice President &
General Counsel, EchoStar Communications Corp.; Robert Lee,
President & General Manager, WDBJ-TV, on behalf of the National
Association of Broadcasters; Matthew Polka, President, American
Cable Association; Gene Kimmelman, Senior Director of Public
Policy and Advocacy, Consumers Union; Martin Franks, Executive
Vice President, CBS Television; and, Eddy Hartenstein, Vice
Chairman, Hughes Electronics Corp. The Subcommittee received
testimony in a legislative hearing on April 1, 2004, from:
Eloise Gore, Assistant Division Chief, Media Bureau's Policy
Division, Federal Communications Commission; David Moskowitz,
Senior Vice President & General Counsel, EchoStar
Communications Corp.; Eddy Hartenstein, Vice Chairman, The
DirecTV Group; Robert Lee, President & General Manager, WDBJ-
TV, on behalf of the National Association of Broadcasters; and
Frank Wright, President, National Religious Broadcasters.
Committee Consideration
On Wednesday, April 28, 2004, the Subcommittee on
Telecommunications and the Internet met in open markup session
and approved a Committee Print for Full Committee
consideration, as amended, a quorum being present. On Thursday,
June 3, 2004, the Full Committee met in open markup session and
ordered a Committee Print reported to the House, amended, by
voice vote, a quorum being present. A request by Mr. Barton to
file a report on a bill to be introduced, and that the actions
of the Committee be deemed as action on that bill, was agreed
to by unanimous consent.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
the Committee Print reported. A motion by Mr. Barton to order
the Committee Print reported to the House, as amended, was
agreed to by a voice vote.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held legislative and
oversight hearings and made findings that are reflected in this
report.
Statement of General Performance Goals and Objectives
The goal of H.R. 4501 is to promote facilities-based
competition in the provision of video programming. It does so
by reauthorizing certain expiring statutory provisions
regarding satellite retransmission of distant broadcast
signals, amending and adding other provisions to reflect the
increasing satellite retransmission of local signals, and
increasing regulatory parity between cable and satellite
operators.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4501, the Satellite Home Viewer Extension and Reauthorization
Act of 2004, would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 8, 2004.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4501, the
Satellite Home Viewer Extension and Reauthorization Act of
2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Melissa E.
Zimmerman (for federal costs), and Jean Talarico and Philip
Webre (for the private sector-impact).
Sincerely,
Elizabeth Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 4501--Satellite Home Viewer Extension and Reauthorization Act of
2004
Summary: H.R. 4501 would amend current law relating to
satellite retransmission of television broadcasting. CBO
estimates that enacting only the provisions of H.R. 4501 would
not affect direct spending or revenues. However, if the
authority to collect and distribute copyright royalties for
satellite retransmissions were extended by subsequent
legislation, CBO estimates that enacting the bill (together
with that extension) would decrease revenues by about $1
million over the five-year period beginning in calendar year
2005 and also would decrease direct spending by about $1
million over the 10-year period beginning in calendar year
2005. The bill would not have a significant effect on spending
subject to appropriation.
H.R. 4501 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates
that the resulting costs would be minimal and would not exceed
the threshold established in UMRA ($60 million in 2004,
adjusted annually for inflation).
H.R. 4501 would impose private-sector mandates as defined
in UMRA on satellite companies. CBO estimates that the
aggregate cost of those mandates would not exceed the annual
threshold for private-sector mandates established by UMRA ($120
million in 2004, adjusted annually for inflation).
Estimated cost to the Federal Government: Under current
law, the use of certain copyrighted material by the public
operates under a compulsory license. Users of copyrighted
material do not need specific permission from owners to use
material with a compulsory license, but must pay royalties and
abide by certain conditions when using the material. The
federal Copyright Office collects royalties from users of
compulsory licenses and then later distributes the royalties to
owners of copyrighted works using guidelines agreed upon in
private negotiations between users and owners of copyrighted
work. The receipt of royalties from users of copyrighted
material are recorded in the budget as federal revenues, and
the distributions to copyright owners are recorded as federal
spending.
H.R. 4501 would extend current law to allow satellite
companies to use copyrighted material without specific
permission from copyright owners, but would not extend the
requirement for satellite companies to pay royalties in
exchange for the use of copyrighted material. Under current
law, the requirement to pay royalties will expire on December
31, 2004. Several provisions in H.R. 4501 would make changes
affecting royalties collected and distributed for satellite
transmissions; however, without extending the requirement for
satellite companies to pay royalties for use of copyrighted
material, these changes would have no effect after December 31,
2004.
Basis of estimate
Revenues and direct spending
CBO estimates that enacting H.R. 4501 by itself would have
no effect on revenues or direct spending from enactment through
the end of calendar year 2009. However, if the Congress extends
royalty requirements for satellite retransmission of broadcast
signals at the rate effective under current law, CBO estimates
that enacting the bill (together with that extension) would
decrease revenues by about $1 million over the five-year period
beginning in calendar year 2005. With lower royalty
collections, the payments to copyright owners would also
decrease.
Satellite retransmission of distant and local signals.
According to the FCC, about 20 million households subscribe to
a satellite television service in the United States. Under
current law, satellite companies are permitted to retransmit
signals originally broadcast by television stations back into
the same area where they originated (``local-into-local'') for
most subscribers and may retransmit signals that originate in a
distant market into a local area (``distant-into-local'') under
certain circumstances. As a result, some subscribers are
eligible to receive both distant-into-local and local-into-
local signals. Section 204 would require certain satellite
subscribers to choose between receiving distant-into-local and
local-into-local signals.
While satellite companies pay royalties for retransmitting
distant-into-local signals, they do not pay royalties for
retransmitting local-into-local signals. Under section 204,
satellite companies would pay fewer royalties because they
would be retransmitting distant-into-local signals to a smaller
number of subscribers than they would if the current copyright
laws were extended.
CBO estimates that enacting section 204 (and an extension
of the current-law requirements for royalties from satellite
retransmission) would decrease revenue collections by about $1
million over the five-year period beginning in calendar year
2005. In addition, payments to copyright owners would decrease,
causing a decrease in direct spending of about $1 million over
the 10-year period beginning in calendar year 2005.
Spending subject to appropriation
Section 208 of the bill would require the FCC to conduct a
study identifying consumers who will be unserved by over-the-
air signals starting in 2007, when those signals will no longer
be broadcast. Based on information provided by the FCC, CBO
estimates that completing this study would not have a
significant effect on spending subject to appropriation.
Estimated impact on state, local, and tribal governments:
H.R. 4501 contains an intergovernmental mandate as defined in
UMRA because it would establish procedures for appeal of FCC
orders, by satellite carriers, that would supersede any other
appeal rights under state law. CBO estimates that the resulting
costs to states of this preemption would be minimal and would
not exceed the threshold established in UMRA ($60 million in
2004, adjusted annually for inflation).
Estimated impact on the private sector: H.R. 4501 would
impose private-sector mandates as defined in UMRA on satellite
companies. Specifically, the bill would impose mandates on
satellite companies by requiring them to:
Reallocate their retransmission of local
television channels to a single dish;
Replace ``distant-into-local'' signals with
``local-into-local'' signals for certain subscribers;
Notify subscribers of their privacy rights;
and
Notify television broadcast stations of
plans to begin ``local-into-local'' satellite service
in their markets and provide them with the right to
elect carriage of their stations.
CBO estimates that the aggregate cost of those mandates
would not exceed the annual threshold for private-sector
mandates established by UMRA ($120 million in 2004, adjusted
annually for inflation).
Carriage of local stations in a single dish
Section 203 would require satellite companies to reallocate
their retransmission of local television channels in such a way
that satellite subscribers can receive all of the local
channels with only one satellite antenna (or satellite dish)
and associated equipment. Local channels are those channels
that can be received over the air with a conventional antenna
and television set. The bill would provide an exception to this
requirement in the case of digital local channels. Satellite
carriers may retransmit local digital channels to subscribers
by means of a separate dish, but must transmit all local
digital channels to the same dish. Section 203 also would
require satellite companies to notify their licensees
(broadcast television stations) and subscribers of the
reallocation of the channels and inform them of the need for
new reception antenna or equipment.
In many television markets, some subscribers to satellite
service require two dishes to receive all the local channels.
(Many subscribers in those markets do not have a second dish
and so do not receive some local channels.) Satellite companies
estimate that currently only 15 percent to 20 percent of
subscribers have two dishes nationally, but that proportion of
subscribers varies by market.
The bill would require carriers to meet the retransmission
requirements of section 203 within a year of enactment. Given
the one-year time frame, affected companies could comply with
the mandate in one of two ways. First, satellite carriers could
exit the market for retransmission of local channels. CBO
assumes that satellite companies would not abandon local
service entirely because the affected companies would risk
losing valuable customers to rival satellite companies and
cable providers. Second, carriers could reallocate their
satellite transmissions so that, in each market, subscribers
received all their local channels from a single satellite. In
some markets, receiving those local channels would require that
the companies provide a second dish to subscribers. The largest
cost facing affected companies would be the cost of installing
those additional dishes. CBO estimates thatproviding additional
dishes could cost the companies about $150 to $160 per customer,
including installation, notification, and equipment.
Service to as many as two million subscribers could be
subject to the reallocation requirements under the current
configuration of local television channels on the satellites.
Engineering studies, however, suggest that reallocation of
local channels on the satellites could reduce the number of
subscribers needing a second dish to 350,000 to 400,000. Such
relocation of local channels to a second dish would most likely
occur in the relatively smaller markets served by satellite
carriers. The affected number of subscribers might be reduced
further by technical changes available to satellite companies.
Based on those figures, CBO estimates that satellite
companies could spend $50 million to $65 million to comply with
this mandate.
Replacement of distant signals with local signals
Until recently, satellite carriers did not have the
technological capability to redistribute multiple local
broadcast signals back to the communities serviced by the local
broadcast stations (``local-into-local'') service. So satellite
providers retransmitted ``distant network signals'' from
locations such as New York, Atlanta, or Denver (``distant-into-
local'' service). Currently, some satellite providers have the
capability of retransmitting local signals into many local
markets.
Section 204 would prohibit satellite companies from
providing a distant-into-local signal to certain subscribers
that are currently receiving that signal. The companies would
be required to send notices to subscribers offering to
substitute the local-into-local signal for the distant-into-
local signal. The companies would then adjust the subscriber's
package so that the subscriber would receive the appropriate
signal. The bill also would require companies to send a list to
television networks with each subscriber that receives a
distant-into-local signal. Based on information from the
industry, the cost to not transmit a signal would be minor. CBO
estimates that the cost to send those notices would not be
great.
Privacy rights of satellite subscribers
Section 206 would require satellite companies to notify
their subscribers in a separate written statement of their
privacy rights. The bill also would prohibit the satellite
companies from collecting and disclosing program selection or
personally identifiable information concerning any subscriber
without prior consent from the subscriber. In addition,
satellite companies would be required to provide a subscriber
access to all personally identifiable information that is
collected and maintained by the satellite company regarding the
subscriber. When that information is no longer necessary and a
request by the subscriber for access is not pending, the
company must destroy that information. The main cost of these
provisions would be the one-time cost of notifying subscribers.
Accordingly to the FCC, there are about 20 million subscribers
of satellite services. CBO estimates that the cost to comply
with those mandates could be between $10 million and $20
million.
Additional notices
Section 205 would require satellite companies to inform
each television broadcast station licensee within a local
market of the company's intention to begin local-into-local
service and to provide them with the right to elect carriage of
their station. This section also would require satellite
companies to send a notice to any television broadcast station
in a local market that it will begin transmitting significantly
viewed stations. CBO estimates that the cost to send those
notices would be small.
Estimate prepared by: Federal Costs: Melissa E. Zimmerman;
Impact on State, Local, and Tribal Governments: Sarah Puro; and
Impact on the Private Sector: Jean Talarico and Philip Webre.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 of the bill establishes the short title, the
``Satellite Home Viewer Extension and Reauthorization Act of
2004'' (SHVERA).
Section 201. Extension of retransmission consent exemption
Section 201 of the bill extends to Dec. 31, 2009, from Dec.
31, 2004, the retransmission consent exemption in Section
325(b) of the Communications Act (47 U.S.C. Sec. 325(b)).
Ordinarily, a satellite operator must obtain consent from a
broadcaster to retransmit that broadcaster's television signal
to a distant market. Section 325(b) of the Communications Act,
however, exempts a satellite operator from having to obtain
consent from a network broadcast affiliate to provide that
affiliate's television signal to a consumer in a distant market
who cannot receive an over-the-air signal from an affiliate of
that network. The Committee chose to extend the exemption to
help satellite-delivered television continue to grow as a
multichannel video competitor.
Section 202. Cable/satellite comparability
Section 202 of the bill creates Section 340 of the
Communications Act to allow a satellite operator to retransmit
to a subscriber a signal of an out-of-market broadcast station
if the signal is ``significantly viewed'' over the air in the
subscriber's local community. Nielsen Media Research organizes
the country into designated market areas (DMAs) that determine
which television broadcasters are deemed ``local'' for
consumers in a particular community. These determinations
affect whether and how satellite and cable operators may
retransmit broadcast stations into a community. The reach of a
broadcast station's over-the-air signal does not necessarily
coincide with the Nielsen-defined local market, however.
Consequently, Section 340 allows a satellite operator to treat
as local in a community any signal that is significantly viewed
by consumers over the air in that community. A signal is
``significantly viewed'' based on the amount of viewership it
garners in non-cable households, i.e. over the air. Cable
operators already have authority to treat such significantly
viewed signals as local. See 47 C.F.R. Sec. Sec. 76.5(i),
76.54. Section 340 is designed to promote competition by
increasing regulatory parity.
Section 340 is also intended to help consumers receive
satellite retransmissions of in-state broadcasts when they are
assigned to DMAs that contain local broadcasters from another
state. State boundaries, just like the reach of over-the-air
signals, do no necessarily coincide with the Nielsen-defined
local markets. Nielsen defines television markets in a way that
some consumers near state lines fall in ``local'' markets
``outside'' their states. For these consumers, network-
affiliated broadcast stations within their states are
technically distant signals, and satellite operators generally
may not provide these consumers the signals of distant network-
affiliated stations unless the consumers cannot receive over
the air the out-of-state ``local'' signals of the corresponding
network-affiliated stations in their DMAs. See 47 U.S.C.
Sec. 339. Consequently, consumers who can receive network
signals over the air in these ``out of state'' local markets
may find that current law prevents them from receiving by
satellite the news, sports, or community programming from
within their states that they consider truly local. Section 340
can help remedy this problem by allowing satellite operators to
provide some consumers in out-of-state DMAs with in-state,
significantly viewed, network-affiliated distant signals in
addition to the out-of-state, but technically local, signals.
Thus, new section 340(a) authorizes a satellite operator to
retransmit an out-of-market signal to a subscriber in a
community if the FCC has determined that the signal is
significantly viewed in the community for purposes of cable
carriage. The Committee intends section 340 to authorize the
retransmission of a significantly viewed signal by a satellite
operator on a signal-specific basis, rather than a station-
specific basis. Thus, a station's analog signal must be
significantly viewed under the FCC's quantitative criteria to
qualify for satellite carriage, and a station's digital signal
must be independently significantly viewed under the FCC's
quantitative criteria to qualify for satellite carriage.
Section 340(a) also makes clear that a satellite operator
may carry an unlimited number of significantly viewed signals-
just as a cable operator may--by stating that satellite
operators may retransmit such signals ``[i]n addition to the
broadcast signals that subscribers may receive under section
338 [governing carriage of local signals] and 339[governing
carriage of distant signals].'' The exemption for significantly viewed
signals is necessary because section 339 of the Communications Act (47
U.S.C. Sec. 339) prohibits a satellite carrier from providing a
household with the signals of more than two distant affiliates of a
particular network per day.
Section 340(b)(1) provides that a satellite operator may
retransmit a significantly viewed distant analog signal to a
subscriber in a local market only if the subscriber also
receives local-into-local service. The provision adds this
condition to protect and promote localism. Cable operators are
subject to must-carry obligations that generally require them
to carry all local broadcast television stations. See 47 U.S.C.
Sec. 534. Consequently, any time a cable operator is
retransmitting into a market a distant broadcast affiliate of a
network, it is generally also retransmitting into that market
any local affiliate of that network. In recognition of capacity
constraints, Congress subjects satellite operators, by
contrast, to a ``carry-one, carry all'' obligation. That
obligation generally requires satellite operators to retransmit
all local stations in a market if they retransmit any local
stations in the market, but allows satellite operators to forgo
carrying local stations in the market altogether. See 47 U.S.C.
Sec. 338. As a result, absent section 340(b)(1), a satellite
operator could retransmit into a market a distant significantly
viewed signal of a network affiliate without also
retransmitting a signal of any local affiliate of the network.
Section 340(b)(2)(A) conditions retransmission to a
subscriber of a network broadcast station's distant
significantly viewed digital signal on retransmission to that
subscriber of a digital signal broadcast by a local affiliate
of the same network. Like section 340(b)(1), section
340(b)(2)(A) protects 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.
Section 340(b)(2)(B) prevents the satellite operator from
retransmitting a local affiliate's digital signal in a less
robust format than a significantly viewed digital signal of a
distant affiliate of the same network, such as by down-
converting the local affiliate's signal but not the distant
affiliate's signal from high-definition digital format to
analog or standard definition digital format. Section
340(b)(2)(B)(i) speaks of ``equivalent bandwidth'' to
recognize, for example, that a local affiliate may be
multicasting while a distant affiliate of the same network may
be broadcasting in high-definition, and to ensure that the
local affiliate's choice to multicast does not prevent the
satellite operator from retransmitting a significantly viewed
signal of a distant affiliate of the network that chooses to
broadcast in high-definition. Section 340(b)(2)(B)(ii) speaks
of ``entire bandwidth'' to ensure that a satellite operator may
still retransmit a distant significantly viewed digital signal
of a network affiliate in a more robust format than a digital
signal of a local broadcaster of the same network so long as
the satellite operator is carrying the digital signal of the
local affiliate in its original format. For example, if a local
broadcaster chooses to transmit only a single, standard
definition digital broadcast stream, the satellite operator may
still retransmit multicast or high-definition streams from the
distant affiliate of the same network if the satellite operator
carries the local broadcaster's standard definition stream and
meets the other conditions for the provision of significantly
viewed signals. Section 340(i)(3), discussed below, directs the
FCC to define ``equivalent bandwidth'' and ``entire
bandwidth.''
The Committee does not intend section 340(b)(2)(B) to
prevent a satellite operator from using compression technology;
to require a satellite operator to use the exact bandwidth or
bit rate as the local or distant broadcaster whose signal it is
retransmitting; or to require a satellite operator to use the
exact bandwidth or bit rate for a local broadcaster as it does
for a distant broadcaster. Nor does the Committee intend
section 340(b)(2)(B) to affect a satellite operator's carry-
one, carry-all obligations, or the definitions of ``program
related'' and ``primary video.'' The Committee also does not
intend the limitations of section 340(b)(2) to apply to
satellite provision of a significantly viewed distant digital
signal of a non-network broadcast station.
Section 340(b)(3) provides that the absence of an affiliate
of a particular network in a local market does not prevent a
satellite operator from retransmitting a significantly viewed
signal of a distant broadcast station from that network. More
than 70 markets do not have a full complement of network
affiliates. This provision allows a satellite provider to
retransmit into such a market a distant significantly viewed
analog signal of a network broadcast station even though the
market does not have a local affiliate from the same network.
Similarly, it allows a satellite operator to retransmit into a
market a distant significantly viewed digital signal of a
network broadcast station if the market does not have a local
affiliate from the same network.
Section 340(b)(3) does not allow provision of a distant
significantly viewed digital signal of a network broadcast
station if a local affiliate from the same network is present
in the market but not yet broadcasting a digital signal.
Section 340(b)(3) operates in this fashion to ensure that a
satellite operator may not retransmit the distant significantly
viewed digital signal of a network broadcast station if an
affiliate of that network is present in the local market but
has never begun to offer a digital signal for a reason excused
by the FCC.
Section 340(b)(4) allows a local network affiliate to waive
the limitations in sections 340(b)(1) or 340(b)(2) as they
apply to the retransmission, into the local affiliate's local
market, of a distant significantly viewed signal of a station
affiliated with the same network. The waiver can be as broad or
as narrow as the affiliate wants. For example, a local
affiliate can waive the application of sections 340(b)(1) or
340(b)(2) to one or more consumers in the local market, and
with respect to one or more specific distant affiliates of the
same network. It may do so as part of a negotiated agreement
and for any reason, including common ownership among the
stations. The Committee does not intend the FCC to grant these
waivers or preside over the waiver process. Whether to grant a
waiver is a decision to be made solely based on the
broadcaster's own business judgment, although the Committee
anticipates that a local broadcaster may grant a waiver as part
of an agreement made with a satellite operator or other
parties. The Committeealso does not intend to require a local
broadcaster to execute any particular document as part of the waiver
process, although the Committee expects that parties who intend to rely
on such a waiver or any attendant agreement will want to reduce the
waiver and the agreement to writing, so that they have something to
refer to should any dispute arise in the future. Nor does the Committee
intend such waivers or agreements to be subject to the section 325
good-faith negotiation requirement. The Committee intends that section
340(b)(4) will help provide consumers with more viewing choices without
causing undue harm to local broadcasters in a market.
Section 340(c)(1) allows a satellite operator to initiate
an FCC determination that a signal of a distant broadcast
station is significantly viewed. The Committee intends for the
FCC to maintain a unified list of significantly viewed stations
and communities that applies to both cable and satellite.
Section 340(c)(2) provides for significantly viewed
determinations in areas without cable service. Because current
regulations provide only for cable carriage of significantly
viewed signals, significantly viewed determinations currently
focus on cable communities. In areas of the country that do not
have cable service, there is no cable community. Section
340(c)(2) is intended to allow satellite operators to carry
significantly viewed signals in a community where no cable
franchise exists so long as a signal is significantly viewed in
the community based on the same quantitative criteria as
currently apply to cable operators. See 47 C.F.R.
Sec. Sec. 76.5(i), 76.54. The Committee intends that any signal
determined to be significantly viewed for purposes of satellite
carriage in an area where cable is not present would also be
significantly viewed for cable carriage should a cable operator
enter the community in the future.
Section 340(d)(1) makes clear that carriage in a local
market of a distant significantly viewed signal is not
mandatory. Cable operators are under no obligation to carry in
a local market a distant significantly viewed signal, and the
Committee intends satellite carriage of such a distant signal
in a local market to be similarly voluntary. Section 340(d)(1)
also makes clear that any right of a station to have its signal
carried in a local market under the carry-one, carry-all
provisions of section 338 is not affected by the significantly
viewed status of the signal in another market.
Section 340(d)(2) provides that the status of a distant
signal as significantly viewed does not affect whether a
satellite operator must get retransmission consent to carry
that signal into a local market. Cable operators must obtain
retransmission consent to carry distant significantly viewed
signals into a local market and the Committee intends the same
obligation to apply to satellite. If the satellite operator is
exempt from having to obtain retransmission consent for other
reasons, however, then retransmission consent would not be
necessary. For example, a satellite operator is exempt under
section 325(b) (47 U.S.C. Sec. 325(b)) from having to obtain
retransmission consent when providing a distant signal of a
network to an unserved subscriber who cannot receive an over-
the-air signal from an affiliate of the same network. The
satellite operator would still be exempt from having to
negotiate retransmission consent when providing a significantly
viewed signal if it was providing it as a distant signal to an
unserved consumer.
Section 340(e) allows the FCC to apply its network non-
duplication and syndicated exclusivity rules to ``remove''
stations from the significantly viewed list as applied to
satellite operators in a similar manner as it currently does
with cable operators. Many, if not all, broadcast stations
enter into contracts to be the sole providers of particular
network or syndicated programming within a certain geographic
radius. See 47 C.F.R. Sec. Sec. 76.93, 76.103. When broadcast
stations do so, the FCC's network non-duplication and
syndicated exclusivity rules generally require cable operators
to black out the duplicative programming when they retransmit
signals from distant stations into the protected areas. See 47
C.F.R. Sec. Sec. 76.92, 76.101. If the FCC determines that a
distant signal is significantly viewed in a community, the FCC
exempts the signal from the network non-duplication and
syndicated exclusivity rules so that the cable operator can
carry the distant signal, including the duplicative
programming, into the local market. See 47 C.F.R.
Sec. Sec. 76.92(f), 76.106(a). If the signal ever loses
viewership such that it no longer qualifies as significantly
viewed, the FCC does not literally remove the signal from the
significantly viewed list, but parties can petition the FCC to
re-impose the blackout obligations.
In the satellite context, however, the network non-
duplication and syndicated exclusivity rules ordinarily apply
only to retransmission of nationally distributed superstations.
See 47 C.F.R. Sec. Sec. 76.120(b), 76.122, 76.123. They do not
currently apply to retransmission of distant signals of network
stations or non-network stations that are not superstations.
Section 340(e)(1) is intended to give the FCC authority to
apply the network non-duplication and syndicated exclusivity
rules to distant signals of network or non-network stations in
a way that replicates, where and when appropriate, the way the
FCC ``removes'' signals from the significantly viewed list for
cable. Section 340(e)(2) makes clear that section 340(e)(1)
does not authorize the FCC to apply the network non-duplication
and syndicated exclusivity rules to other lawful
retransmissions of distant signals of network or non-network
stations, such as when a consumer is unserved over the air.
Section 340(f) creates a mechanism to enforce the new
provisions regarding satellite delivery of significantly viewed
signals. Section 340(f) is modeled after existing satellite-
retransmission-related enforcement mechanisms in 47 U.S.C.
Sec. 325(e).
Section 340(g)(1) gives the FCC 180 days from enactment to
commence a proceeding to implement the provisions of section
340. The notice of proposed rulemaking commencing the
proceeding is to include a list of the signals already deemed
significantly viewed for purposes of cable carriage and thus
that are eligible for satellite carriage. The Committee intends
for the FCC to continue to use this list, and add and
``remove'' stations in accordance with the other provisions of
section 340. The FCC will have one year from enactment to adopt
rules implementing section 340. Section 340(g)(2) makes clear
that satellite may start carrying the signals on the list
pending adoption of the rules.
Section 340(h)(1) gives the FCC until April 30, 2005, to
revise its rules so that a television broadcast station may
elect ``carry-one, carry-all status'' from a satellite operator
on a community-by-community basis within a local market. Under
current law, when a satellite operator offers local-into-local
service in a market, the local broadcasters may choose between
carry-one, carry-all status and retransmission consent. If the
local broadcaster elects carry-one, carry-all status, the
satellite operator must carry the station, but the station is
not entitled to compensation. If the station chooses
retransmission consent, the broadcaster can try to negotiate
for compensation, but runs the risk of not getting carried at
all.
Because cable systems are subject to local franchising,
each community within a local market generally has a separate
cable system. If a cable system is carrying a significantly
viewed signal in a community, a local broadcaster of the same
network can elect must-carry for that system, but still
negotiate retransmission consent for cable systems elsewhere in
the local market where no significantly viewed signal for the
same network is being carried.
Because satellite operators have a nationwide--rather than
local- franchise-based--service area, however, local
broadcasters ordinarily must choose between carry-one, carry-
all status and retransmission consent as an all-or-nothing
proposition throughout the entire local market. To accommodate
the new significantly viewed authority for satellite operators
and to recreate, as best as possible, a similar bargaining
framework for local broadcasters as exists with cable systems,
section 340(h)(1) allows a local broadcaster to elect carry-
one, carry-all status in communities with a significantly
viewed signal from the same network, while continuing to
negotiate retransmission consent in other communities in the
market.
To ease the administrative burden on the satellite
operator, section 340(h)(2) specifies that the community-by-
community elections within a local market shall take place in a
unified negotiation between each satellite operator and
broadcaster. The Committee does not intend to set any
particular time limit on the negotiation, or to suggest that it
must take place in one sitting, but does mean to require the
broadcaster to ``lay all its elections on the table at once''
so that the satellite operator can see the entire picture in
anticipation of any retransmission consent negotiations that
may be necessary in the communities where the broadcaster does
not elect ``carry-one, carry all.'' To facilitate the
community-by-community election process, section 340(h)(3)
gives the FCC until April 30, 2005, to revise its rules to
require satellite operators to notify broadcasters in advance
of any communities in which they intend to carry significantly
viewed signals. The satellite operators are permitted to carry
significantly viewed signals only in communities for which the
satellite operators provide such notice.
Section 203. Carriage of local stations on a single dish
Section 203 of the bill amends section 338 of the
Communications Act (47 U.S.C. Sec. 338) to require a satellite
operator that offers local-into-local service in a market to
provide to a subscriber any analog signals of the local
broadcasters in that market on a single reception antenna
device--often referred to as a ``dish''--as well as to provide
any digital signals of the local broadcasters on a single dish.
The satellite operator may, however, carry any analog signals
of the local broadcasters on a separate dish from any digital
signals of the local broadcasters.
Satellite operators will have one year from enactment to
comply. Within 270 days of enactment, a satellite operator
offering local-into-local service will be obligated to notify
local broadcasters and subscribers in the local market: (1)
what broadcast or non-broadcast signals, if any, it intends to
move among dishes to comply with these requirements; (2)
whether subscribers will need to obtain additional equipment to
receive such signals; and, (3) whether it plans to stop
carrying any broadcast or non-broadcast signals to comply.
DirecTV does not currently split local broadcasters between
dishes. As of May 2004, EchoStar split local broadcasters in 38
markets. The Committee does not expect EchoStar to withdraw
from local markets, or significantly delay roll-out into
additional local markets, to comply with the one-year deadline.
DirecTV has stated it will be in 124 markets by the end of
2004, and in all 210 sometime between 2006 and 2008. EchoStar
has said it does not intend to let DirecTV serve more local
markets than it does. Therefore, it will likely keep up a
fairly aggressive pace. In any event, even if EchoStar did drop
local markets or slowed down its roll-out, consumers would
likely still be able to get local broadcast signals from
DirecTV or other MVPD providers.
Section 204. Replacement of distant signals with local signals
Section 204 of the bill amends section 339 of the
Communications Act (47 U.S.C. Sec. 339) to require a satellite
operator to stop providing distant-signal service to certain
subscribers in a market once the operator begins providing
local-into-local service in that market.
New section 339(a)(2)(A) requires certain grandfathered
subscribers to choose between receiving a distant signal of a
network and a local signal. With SHVIA, Congress allowed some
subscribers who were receiving a distant signal to continue to
do so even though the subscribers were deemed as a matter of
law to be ``served'' over the air from an affiliate of the same
network. The grandfathered status of these subscribers is set
to expire at the end of this year. Section 339(a)(2)(A) allows
a satellite operator to continue retransmitting a distant
signal to such a grandfathered subscriber who affirmatively
elects to receive such a signal. The satellite operator may do
so, however, only until the subscriber elects to receive a
local signal of the network as part of the satellite operator's
local-into-local service.
New section 339(a)(2)(B) allows certain subscribers who are
deemed unserved by an over-the-air signal of a network
affiliate to receive from their satellite operator both a
distant signal and a local signal of that network. Under
section 339(a)(2)(B), a subscriber who is deemed unserved by an
over-the-air signal of a network affiliate, and who at the date
of enactment is already receiving from a satellite operator
both a local and a distant signal of that network, can continue
to receive both signals. If, however, an unserved subscriber is
receiving from a satellite operator a signal from only a
distant affiliate of the network,even though the subscriber had
the option on the date of enactment to receive from the satellite
operator a signal from a local affiliate of that network, the
subscriber may continue to receive the distant signal, but only until
the subscriber elects to receive the local signal. If a satellite
operator was not offering at the date of enactment a signal from a
local affiliate of a network, the satellite operator may provide a
signal of a distant affiliate of that network to an unserved consumer
who was a subscriber of the satellite operator at the date of
enactment, or who became a subscriber of that operator before the
operator began offering the local signal, but only until the subscriber
elects to receive the local signal.
New section 339(a)(2)(C) provides that a satellite operator
may not provide a signal of a distant affiliate of a network to
a consumer in a local market who becomes a subscriber to the
satellite operator after the operator has begun to make
available a signal of a local affiliate of that network in that
local market.
New section 339(a)(2)(D) allows a local affiliate to waive
any of the limitations in section 339(a)(2) as they apply to
the retransmission, into the local affiliate's local market, of
the distant signals of a station affiliated with the same
network. The local affiliate may waive application of the
limitations as to one or more consumers in the local market,
and with respect to one or more distant affiliates of the same
network. It may do so as part of a negotiated agreement and for
any reason, including common ownership among the stations. The
Committee does not intend the FCC to grant these waivers or
preside over the waiver process. Whether to grant a waiver is a
decision to be made solely based on the broadcaster's own
business judgment, although the Committee anticipates that a
local broadcaster may grant a waiver as part of an agreement
made with a satellite operator or other parties. The Committee
also does not intend to require a local broadcaster to execute
any particular document as part of the waiver process, although
the Committee expects that parties who intend to rely on such a
waiver or any attendant agreement will want to reduce the
waiver and the agreement to writing, so that they have
something to refer to should any dispute arise in the future.
Nor does the Committee intend such waivers or agreements to be
subject to the section 325 good-faith negotiation requirement.
The Committee intends that section 339(a)(2)(D) will help
provide consumers with more viewing choices without causing
undue harm to local broadcasters in that market.
New section 339(a)(2)(E) makes clear that the distant-
signal limitations of section 339(a)(2) do not apply to the
provision of significantly viewed signals under new section
340, or to the provision of distant signals to trucks and
recreational vehicles.
Section 205. Additional notices to subscribers, networks, and stations
concerning signal carriage
Section 205 of the bill creates new section 338(h) of the
Communications Act (47 U.S.C. Sec. 338(h)) obligating satellite
operators to provide subscribers, networks and stations certain
additional notices regarding the satellite operators' carriage
of signals. Section 338(h)(1) gives a satellite operator a
certain amount of time to notify a subscriber who receives a
distant signal of a network about the availability, if any, of
a signal of a local affiliate of that network, and to offer to
replace the distant signal with the local signal. If the
subscriber does not respond within 60 days, the satellite
operator is to stop providing the distant signal to the
subscriber within another 10 days.
Section 338(h)(2) gives a satellite operator 60 days from
enactment to provide each network with information regarding
the distant signals of that network that the operator
retransmits, and to certify that it does so lawfully to the
best of its knowledge. This provision is designed to help
networks and stations monitor satellite compliance with the new
Communications Act limitations the SHVERA creates on the
provision of distant signals.
Section 338(h)(3) gives the FCC 180 days from enactment to
revise its rules governing the form of the notice satellite
operators must provide local broadcasters when the operators
begin offering local-into-local service in a market. The
purpose of this section is to make sure such notices more
clearly indicate to local broadcasters the rights and
responsibilities they have under the carry-one, carry-all
provisions of the Communications Act and FCC regulations, as
well as the consequences of failing to respond to such notices.
This provision is also intended to require satellite operators
to send such notices by certified mail. Broadcasters are
already required to send their carry-one, carry-all elections
to satellite operators by certified mail to ensure that the
satellite operators take notice. Section 338(h)(3) is intended
to create a similar obligation for satellite operators to
ensure the broadcasters take notice of the satellite operators'
announcements that they are commencing local-into-local
service.
Section 338(h)(4) requires satellite operators to notify
local broadcasters of any intent to begin retransmitting into a
market the signal of distant stations that are significantly
viewed over the air in the local market. The Committee intends
this provision to help local broadcasters monitor satellite
compliance with the conditions SHVERA creates on the provision
of significantly viewed signals, and to exercise their option
of negotiating retransmission consent on a community-by-
community basis under new section 340. This provision also
requires satellite operators to list on their web sites the
significantly viewed signals they offer so that consumers are
aware of the signals available to them.
Section 206. Privacy rights of satellite subscribers
Section 206 of the bill creates new section 338(i) of the
Communications Act (47 U.S.C. Sec. 338(i)). Section 338(i)
obligates satellite operators to abide by the same privacy
obligations that section 631 of the Communications Act (57
U.S.C Sec. 551) applies to cable operators. The Committee
wishes to make clear that satellite operators may disclose to
broadcasters the information required by sections 338(h) and
340(h) without violating new section 338(i). Such disclosures
are ``necessary to render, or conduct a legitimate business
activity related to, a satellite service provided by the
satellite carrier to the subscriber,'' and so fall within new
section 338(i)(4)(B)(i).
Section 207. Reciprocal bargaining obligations
Section 207 of the bill extends until Jan. 1, 2010, the
obligations broadcasters have under section 325(b)(3)(C)(ii)
(47 U.S.C. Sec. 325(b)(3)(C)(ii)) to negotiate retransmission
consent in good faith and not to enter into exclusive
retransmission consent agreements. The good-faith and non-
exclusivity requirements currently expire Jan. 1, 2006. In
light of evidence that retransmission negotiations continue to
be contentious, the Committee chose to extend these
obligations, and also to begin applying the good-faith
obligations to MVPDs. The Committee intends the MVPD good-faith
obligations to be analogous to those that apply to
broadcasters, and not to affect the ultimate ability of an MVPD
to decide not to enter into a retransmission consent agreement
with a broadcaster.
Section 208. Unserved digital customers
Section 208 of the bill requires the FCC to recommend to
Congress by Dec. 31, 2005, a methodology for determining
whether a particular consumer would be unserved over the air by
the digital signal of a specific network as transmitted by a
broadcast station after the broadcasters in that consumer's
market have ceased to broadcast in analog because of the
implementation of section 309(j)(14) of the Communications Act.
A consumer is unserved if the consumer cannot receive a network
affiliate signal of adequate signal strength as set out by FCC
regulations. If possible, the FCC is also to report whether it
might be possible to determine prior to the end of the digital
television transition if there will be particular parts of the
country that will be unserved over the air by the digital
signals of the affiliates of particular networks after the
transition, and what those parts of the country might be. The
Committee intends the FCC to base its methodology on the FCC's
existing technical specifications for digital television
service and the individual location Longley-Rice algorithm.
Just as there are consumers today who cannot receive analog
signals over the air, there will be consumers who cannot
receive digital signals over the air once the digital
television transition is complete. The Committee intends this
report to help provide Congress the information it needs to
consider whether to enact additional legislation governing the
way satellite operators may provide consumers with distant
digital signals.
Section 209. Reduction of required tests
Section 209 of the bill amends the provisions of section
339(c)(4) of the Communications Act (47 U.S.C Sec. 339(c)(4))
governing signal-strength testing. Under current law, if the
FCC's predictive model indicates that a consumer can receive an
adequate analog signal over the air--making the consumer
ineligible for analog distant-signal service--the consumer may
challenge that prediction by requesting an on-location signal-
strength test. If the test determines that the consumer is, in
fact, served, the satellite operator must pay for the test. If
the test indicates that the consumer is not served, the
broadcaster must pay for the test. New section 339(c)(4)(D)(i)
makes a consumer in a local-into-local market ineligible for a
test at the expense of a broadcaster or satellite operator
because under this bill such consumers are no longer eligible
for distant-signal service if they do not have it already,
making the test irrelevant. New section 339(c)(4)(D)(ii) makes
a consumer ineligible for a test at satellite provider or
broadcaster expense if the FCC's predictive model reports a
signal-strength within a certain margin of error to be
determined by the FCC by rule within one year of enactment. In
such circumstances, on-location tests are unlikely to return
results different than the predictive model. New section
339(c)(4)(E), however, allows consumers to pay for their own
tests if the FCC's model predicts the consumer to be ``served''
over the air. The Committee intends the satellite operator to
provide a consumer who requests a signal-strength test under
section 339(c)(4)(E) with a good-faith estimate of the costs
usually incurred by the satellite operator or broadcaster when
the satellite operator and the broadcaster follow the ordinary
procedures under section 339(c)(4)(A) and (B) for arranging
such a test. If the consumer agrees to pay those costs, the
Committee intends the satellite operator and the broadcaster to
engage in those procedures, intends the satellite operator to
report the results to the consumer, and intends the satellite
operator and broadcaster to respect the results of those tests
as if the satellite operator or broadcaster had requested it.
Section 210. Carriage of certain additional stations
Section 210 of the bill adds new section 340(c)(3) of the
Communications Act to help consumers in certain small
communities receive by satellite certain television broadcasts
from within their states. New section 340, as created by
Section 202 of the bill and discussed above, helps consumers
who Nielsen Media Research assigns to ``local'' markets outside
their states receive by satellite certain distant broadcast
signals from within their states if those signals are
significantly viewed over the air in the consumers' Nielsen-
defined local markets. Some small communities assigned by
Nielsen to out-of-state markets, however, have no significantly
viewed over-the-air signals from within their own states.
Section 340(c)(3) allows satellite providers to offer consumers
in certain small communities in out-of-state markets receive by
satellite certain broadcast signals from stations within their
states, in addition to signals from their Nielsen-defined local
markets.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE III--PROVISIONS RELATING TO RADIO
PART I--GENERAL PROVISIONS
* * * * * * *
SEC. 325. FALSE DISTRESS SIGNALS; REBROADCASTING; STUDIOS OF FOREIGN
STATIONS.
(a) * * *
(b)(1) * * *
(2) This subsection shall not apply--
(A) * * *
* * * * * * *
(C) until December 31, [2004] 2009, to retransmission
of the signals of network stations directly to a home
satellite antenna, if the subscriber receiving the
signal--
(i) * * *
* * * * * * *
(3)(A) * * *
* * * * * * *
(C) [Within 45 days after the date of the enactment of the
Satellite Home Viewer Improvement Act of 1999, the] The
Commission shall commence a rulemaking proceeding to revise the
regulations governing the exercise by television broadcast
stations of the right to grant retransmission consent under
this subsection, and such other regulations as are necessary to
administer the limitations contained in paragraph (2). [The
Commission shall complete all actions necessary to prescribe
such regulations within 1 year after such date of enactment.]
Such regulations shall--
(i) establish election time periods that correspond
with those regulations adopted under subparagraph (B)
of this paragraph; [and]
(ii) until January 1, [2006] 2010, prohibit a
television broadcast station that provides
retransmission consent from engaging in exclusive
contracts for carriage or failing to negotiate in good
faith, and it shall not be a failure to negotiate in
good faith if the television broadcast station enters
into retransmission consent agreements containing
different terms and conditions, including price terms,
with different multichannel video programming
distributors if such different terms and conditions are
based on competitive marketplace con-siderations[.];
and
(iii) until January 1, 2010, prohibit a multichannel
video programming distributor from failing to negotiate
in good faith for retransmission consent under this
section, and it shall not be a failure to negotiate in
good faith if the distributor enters into
retransmission consent agreements containing different
terms and conditions, including price terms, with
different broadcast stations if such different terms
and conditions are based on competitive marketplace
considerations.
* * * * * * *
SEC. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.
(a) * * *
* * * * * * *
(g) Carriage of Local Stations on a Single Dish.--
(1) Single dish.--Each satellite carrier that
retransmits the signals of local television broadcast
stations in a local market shall retransmit the signals
of all local television broadcast stations
retransmitted by that carrier to subscribers in such
market by means of a single reception antenna and
associated equipment.
(2) Exception.--Notwithstanding paragraph (1), if the
carrier retransmits signals in the digital television
service, the carrier shall retransmit the digital
television service signals of all the local television
broadcast stations retransmitted by that carrier to
subscribers in such market by means of a single
reception antenna and associated equipment, but such
antenna and associated equipment may be separate from
the single reception antenna and associated equipment
used for signals that are not in the digital television
service.
(3) Effective date.--The requirements of paragraphs
(1) and (2) of this subsection shall apply on and after
one year after the date of enactment of the Satellite
Home Viewer Extension and Reauthorization Act of 2004.
(4) Notice of disruptions.--A carrier that is
providing signals of a local television broadcast
station in a local market under this section on the
date of enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004 shall, not
later than 270 days after such date of enactment,
provide to the licensees for such stations and the
carrier's subscribers in such local market a notice
that displays prominently and conspicuously a clear
statement of--
(A) any reallocation of signals between
different reception antennas and associated
equipment that the carrier intends to make in
order to comply with the requirements of this
subsection;
(B) the need, if any, for subscribers to
obtain an additional reception antenna and
associated equipment to receive such signals;
and
(C) any cessation of carriage or other
material change in the carriage of signals as a
consequence of the requirements of this
paragraph.
(5) Enforcement.--Notwithstanding any other provision
of this section, the Commission may enforce this
section and any regulation thereunder in accordance
with titles IV and V of this Act.
(h) Additional Notices to Subscribers, Networks, and Stations
Concerning Signal Carriage.--
(1) Notices to and elections by subscribers
concerning grandfathered signals.--Any carrier that
provides a distant signal of a network station to a
subscriber pursuant to a statutory license under
section 119(a)(4)(A) of title 17, United States Code,
shall--
(A) within 60 days after the local signal of
a network station of the same television
network is available pursuant to a statutory
license under section 122, or within 60 days
after the date of enactment of the Satellite
Home Viewer Extension and Reauthorization Act
of 2004, whichever is later, send a notice to
the subscriber--
(i) offering to substitute the local
network signal for the duplicating
distant network signal; and
(ii) informing the subscriber that,
if the subscriber fails to respond in
60 days, the subscriber will lose the
distant network signal but will be
permitted to subscribe to the local
network signal; and
(B) if the subscriber--
(i) elects to substitute such local
network signal within such 60 days,
switch such subscriber to such local
network signal within 10 days after the
end of such 60-day period; or
(ii) fails to respond within such 60
days, terminate the distant network
signal within 10 days after the end of
such 60-day period.
(2) Notices to networks of distant signal
subscribers.--Within 60 days after the date of
enactment of the Satellite Home Viewer Extension and
Reauthorization Act of 2004, each satellite carrier
that provides a distant signal of a network station to
a subscriber pursuant to a statutory license under
section 119(a)(4)(A) or 119(a)(4)(B)(i) of title 17,
United States Code, shall submit to each network--
(A) a list, aggregated by designated market
area, identifying each subscriber provided such
a signal by--
(i) name;
(ii) address (street or RFD number,
city, state, and zip code); and
(iii) the distant network signal or
signals received; and
(B) a statement that, to the best of the
carrier's knowledge and belief after having
made diligent and good faith inquiries, the
subscriber is qualified under the existing law
to receive the distant network signal or
signals pursuant to a statutory license under
section 119(a)(4)(A) or 119(a)(4)(B)(i) of
title 17, United States Code.
(3) Notice to station licensees of commencement of
local-into-local service.--
(A) Notice required.--Within 180 days after
the date of enactment of the Satellite Home
Viewer Extension and Reauthorization Act of
2004, the Commission shall revise the
regulations under this section relating to
notice to broadcast station licensees to comply
with the requirements of this paragraph.
(B) Contents of commencement notice.--The
notice required by such regulations shall
inform each television broadcast station
licensee within any local market in which a
satellite carrier proposes to commence carriage
of signals of stations from that market, not
later than 60 days prior to the commencement of
such carriage--
(i) of the carrier's intention to
launch local-into-local service under
this section in a local market, the
identity of that local market, and the
location of the carrier's proposed
local receive facility for that local
market;
(ii) of the right of such licensee to
elect carriage under this section or
grant retransmission consent under
section 325(b);
(iii) that such licensee has 30 days
from the date of the receipt of such
notice to make such election; and
(iv) that failure to make such
election will result in the loss of the
right to demand carriage under this
section for the remainder of the 3-year
cycle of carriage under section 325.
(C) Transmission of notices.--Such
regulations shall require that each satellite
carrier shall transmit the notices required by
such regulation via certified mail to the
address for such television station licensee
listed in the consolidated database system
maintained by the Commission.
(4) Notices concerning significantly viewed
stations.--Each satellite carrier that proposes to
commence the retransmission of a station pursuant to
section 340 in any local market shall--
(A) not less than 60 days before commencing
such retransmission, provide a written notice
to any television broadcast station in such
local market of a such proposal; and
(B) designate on such carrier's website all
significantly viewed signals carried pursuant
to section 340 and the communities in which the
signals are carried.
(i) Privacy Rights of Satellite Subscribers.--
(1) Notice.--At the time of entering into an
agreement to provide any satellite service or other
service to a subscriber and at least once a year
thereafter, a satellite carrier shall provide notice in
the form of a separate, written statement to such
subscriber which clearly and conspicuously informs the
subscriber of--
(A) the nature of personally identifiable
information collected or to be collected with
respect to the subscriber and the nature of the
use of such information;
(B) the nature, frequency, and purpose of any
disclosure which may be made of such
information, including an identification of the
types of persons to whom the disclosure may be
made;
(C) the period during which such information
will be maintained by the satellite carrier;
(D) the times and place at which the
subscriber may have access to such information
in accordance with paragraph (5); and
(E) the limitations provided by this section
with respect to the collection and disclosure
of information by a satellite carrier and the
right of the subscriber under paragraphs (7)
and (9) to enforce such limitations.
In the case of subscribers who have entered into such
an agreement before the effective date of this
subsection, such notice shall be provided within 180
days of such date and at least once a year thereafter.
(2) Definitions.--For purposes of this subsection,
other than paragraph (9)--
(A) the term ``personally identifiable
information'' does not include any record of
aggregate data which does not identify
particular persons;
(B) the term ``other service'' includes any
wire or radio communications service provided
using any of the facilities of a satellite
carrier that are used in the provision of
satellite service; and
(C) the term ``satellite carrier'' includes,
in addition to persons within the definition of
satellite carrier, any person who--
(i) is owned or controlled by, or
under common ownership or control with,
a satellite carrier; and
(ii) provides any wire or radio
communications service.
(3) Prohibitions.--
(A) Consent to collection.--Except as
provided in subparagraph (B), a satellite
carrier shall not use any facilities used by
the satellite carrier to collect programming
selection or subscription information from such
a subscriber to collect personally identifiable
information concerning any subscriber without
the prior written or electronic consent of the
subscriber concerned.
(B) Exceptions.--A satellite carrier may use
such facilities to collect such information in
order to--
(i) obtain information necessary to
render a satellite service or other
service provided by the satellite
carrier to the subscriber; or
(ii) detect unauthorized reception of
satellite communications.
(4) Disclosure.--
(A) Consent to disclosure.--Except as
provided in subparagraph (B), a satellite
carrier shall not disclose personally
identifiable information concerning any
subscriber without the prior written or
electronic consent of the subscriber concerned
and shall take such actions as are necessary to
prevent unauthorized access to such information
by a person other than the subscriber or
satellite carrier.
(B) Exceptions.--A satellite carrier may
disclose such information if the disclosure
is--
(i) necessary to render, or conduct a
legitimate business activity related
to, a satellite service or other
service provided by the satellite
carrier to the subscriber;
(ii) subject to paragraph (9), made
pursuant to a court order authorizing
such disclosure, if the subscriber is
notified of such order by the person to
whom the order is directed;
(iii) a disclosure of the names and
addresses of subscribers to any
satellite service or other service,
if--
(I) the satellite carrier has
provided the subscriber the
opportunity to prohibit or
limit such disclosure; and
(II) the disclosure does not
reveal, directly or indirectly,
the--
(aa) extent of any
viewing or other use by
the subscriber of a
satellite service or
other service provided
by the satellite
carrier; or
(bb) the nature of
any transaction made by
the subscriber over any
facilities used by the
satellite carrier to
collect programming
selection or
subscription
information from such a
subscriber; or
(iv) to a government entity as
authorized under chapters 119, 121, or
206 of title 18, United States Code,
except that such disclosure shall not
include records revealing satellite
subscriber selection of video
programming from a satellite carrier.
(5) Access by subscriber.--A satellite subscriber
shall be provided access to all personally identifiable
information regarding that subscriber which is
collected and maintained by a satellite carrier. Such
information shall be made available to the subscriber
at reasonable times and at a convenient place
designated by such satellite carrier. A satellite
subscriber shall be provided reasonable opportunity to
correct any error in such information.
(6) Destruction of information.--A satellite carrier
shall destroy personally identifiable information if
the information is no longer necessary for the purpose
for which it was collected and there are no pending
requests or orders for access to such information under
paragraph (5) or pursuant to a court order.
(7) Penalties.--Any person aggrieved by any act of a
satellite carrier in violation of this section may
bring a civil action in a United States district court.
The court may award--
(A) actual damages but not less than
liquidated damages computed at the rate of $100
a day for each day of violation or $1,000,
whichever is higher;
(B) punitive damages; and
(C) reasonable attorneys' fees and other
litigation costs reasonably incurred.
The remedy provided by this subsection shall be in
addition to any other lawful remedy available to a
satellite subscriber.
(8) Rule of construction.--Nothing in this title
shall be construed to prohibit any State from enacting
or enforcing laws consistent with this section for the
protection of subscriber privacy.
(9) Court orders.--Except as provided in paragraph
(4)(B)(iv), a governmental entity may obtain personally
identifiable information concerning a satellite
subscriber pursuant to a court order only if, in the
court proceeding relevant to such court order--
(A) such entity offers clear and convincing
evidence that the subject of the information is
reasonably suspected of engaging in criminal
activity and that the information sought would
be material evidence in the case; and
(B) the subject of the information is
afforded the opportunity to appear and contest
such entity's claim.
[(g)] (j) Regulations by Commission.--Within 1 year after the
date of the enactment of this section, the Commission shall
issue regulations implementing this section following a
rulemaking proceeding. The regulations prescribed under this
section shall include requirements on satellite carriers that
are comparable to the requirements on cable operators under
sections 614(b)(3) and (4) and 615(g)(1) and (2).
[(h)] (k) Definitions.--As used in this section:
(1) Distributor.--The term ``distributor'' means an
entity which contracts to distribute secondary
transmissions from a satellite carrier and, either as a
single channel or in a package with other programming,
provides the secondary transmission either directly to
individual subscribers or indirectly through other
program distribution entities.
* * * * * * *
SEC. 339. CARRIAGE OF DISTANT TELEVISION STATIONS BY SATELLITE
CARRIERS.
(a) Provisions Relating to Carriage of Distant Signals.--
(1) * * *
(2) Replacement of distant signals with local
signals.--Notwithstanding any other provision of
paragraph (1), the following rules shall apply after
the date of enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004:
(A) Rules for grandfathered subscribers.--In
the case of a subscriber of a satellite carrier
who is eligible to receive the signal of a
network station solely by reason of section
119(e) of title 17, United States Code (in this
subparagraph referred to as a ``distant
signal''), the following shall apply:
(i) In a case in which the signal of
a local network station affiliated with
the same television network is made
available pursuant to the statutory
license under section 122 by that
satellite carrier to the subscriber,
the carrier may only provide the
secondary transmissions of the distant
signal of such network station to that
subscriber--
(I) if, within 60 days after
receiving the notice of the
satellite carrier under section
338(h)(1) of the Communications
Act of 1934, the subscriber
elects to retain the distant
signal; but
(II) only until such time as
the subscriber elects to
receive such local signal.
(ii) Notwithstanding clause (i), the
carrier may not retransmit the distant
signal to any subscriber who is
eligible to receive the signal of a
network station solely by reason of
section 119(e) of title 17, United
States Code, unless such carrier,
within 60 days after the date of the
enactment of the Satellite Home Viewer
Extension and Reauthorization Act of
2004, submits to that television
network the list and statement required
by section 338(h)(2).
(B) Rules for other subscribers.--In the case
of a subscriber of a satellite carrier who is
eligible to receive the signal of a network
station under the statutory license under
section 119(a)(2) of title 17, United States
Code (in this subparagraph referred to as a
``distant signal''), other than subscribers to
whom subparagraph (A) applies, the following
shall apply:
(i) In a case in which the signal of
a local network station affiliated with
the same television network is made
available pursuant to the statutory
license under section 122 by that
satellite carrier to the subscriber on
the date of the enactment of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, the
carrier may only provide the secondary
transmissions of the distant signal of
such network station to that
subscriber--
(I)(aa) if, on such date of
enactment, the subscriber is
receiving such distant signal
and is also receiving such
local signal, and
(bb) the subscriber's
satellite carrier, within 60
days after the date of the
enactment of the Satellite Home
Viewer Extension and
Reauthorization Act of 2004,
submits to that television
network the list and statement
required by section 338(h)(2);
or
(II)(aa) if, on such date of
enactment, the subscriber is
receiving such distant signal
and is not receiving such local
signal; but
(bb) only until such time as
the subscriber elects to
receive such local signal.
(ii) In a case in which the signal of
a local network station affiliated with
the same television network is not made
available pursuant to the statutory
license under section 122 by that
satellite carrier to a subscriber on
the date of the enactment of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, the
carrier may only provide the secondary
transmissions of the distant signal of
such network station to that
subscriber--
(I) who is a subscriber of
that satellite carrier on such
date of enactment, or
(II) who becomes a subscriber
of that satellite carrier after
such date but before the local
signal is made available by the
carrier,
but only until such time as the
subscriber elects to receive the local
signal from that satellite carrier.
(C) Future applicability.--A satellite
carrier may not provide a distant signal
(within the meaning of subparagraph (A) or (B))
to any person in a location to which the signal
of a local network station affiliated with the
same television network was made available by
that carrier pursuant to the statutory license
under section 122 of title 17, United States
Code, before the person becomes a subscriber to
that carrier.
(D) Authority to grant station-specific
waivers.--Notwithstanding the provisions of
this paragraph, a satellite carrier may provide
the distant signal (within the meaning of
subparagraph (A) or (B)) of any distant network
station to any person to whom the signal of a
local network station is available pursuant to
the statutory license under section 122 of
title 17, United States Code, if and to the
extent that such local network station has
granted a waiver from the requirements of this
paragraph to such satellite carrier with
respect to such distant network station.
(E) Other provisions not affected.--This
paragraph shall not affect the eligibility of a
subscriber to receive secondary transmissions
under section 119(a)(3) of title 17, United
States Code, or as an unserved household
included under section 119(a)(12) of such
title.
[(2)] (3) Penalty for violation.--Any satellite
carrier that knowingly and willfully provides the
signals of television stations to subscribers in
violation of this subsection shall be liable for a
forfeiture penalty under section 503 in the amount of
$50,000 for each violation or each day of a continuing
violation.
* * * * * * *
(c) Eligibility for Retransmission.--
(1) * * *
* * * * * * *
(4) Objective verification.--
(A) * * *
* * * * * * *
(D) Reduction of verification burdens.--
Within one year after the date of enactment of
the Satellite Home Viewer Extension and
Reauthorization Act of 2004, the Commission
shall by rule exempt from the verification
requirements of subparagraph (A) any request
for a test made by a subscriber to a satellite
carrier--
(i) to whom the retransmission of the
signals of local broadcast stations is
available under section 122 of title
17, United States Code, from such
carrier; or
(ii) for whom the predictive model
required by paragraph (3) predicts a
signal intensity that exceeds the
signal intensity standard in effect
under section 119(d)(11)(A) of such
title by such number of decibels as the
Commission specifies in such rule.
(E) Exception.--Notwithstanding any provision
of this Act, this section does not prohibit a
subscriber who is predicted to receive a signal
that meets or exceeds such signal intensity
standard from conducting a signal strength test
at the subscriber's own expense for the purpose
of determining their eligibility for distant
signals under this section.
* * * * * * *
SEC. 340. SIGNIFICANTLY VIEWED SIGNALS PERMITTED TO BE CARRIED.
(a) Significantly Viewed Stations.--In addition to the
broadcast signals that subscribers may receive under section
338 and 339, a satellite carrier is also authorized to
retransmit to subscribers located in a community the signal of
any station that a cable system in the same community is
authorized to retransmit pursuant to section 111 of title 17,
United States Code, if such station is treated as significantly
viewed in the county within which such community is located in
accordance with the rules, regulations, and authorizations of
the Commission.
(b) Limitations.--
(1) Analog service limited to subscribers taking
local-into-local service.--With respect to a signal
that originates as an analog signal of a television
broadcast station, this section shall apply only to
retransmissions to subscribers who receive
retransmissions from a satellite carrier pursuant to
the statutory license under section 122 of title 17,
United States Code.
(2) Digital service limitations.--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 the statutory
license under section 122 of title 17, United
States Code, 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) either--
(i) the retransmission of the local
network station occupies at least the
equivalent bandwidth as the digital
signal retransmitted pursuant to this
section; or
(ii) the retransmission of the local
network station carries the entire
bandwidth of the digital signal
broadcast by such local network
station.
(3) Limitation not applicable where no network
affiliates.--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.
(4) Authority to grant station-specific waivers.--
Notwithstanding paragraphs (1) and (2), a satellite
carrier may provide to subscribers the retransmission
of a network station that is determined to be
significantly viewed under this section, 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 granted a waiver
from the requirements of paragraph (1) and (2) to such
satellite carrier with respect to such significantly
viewed station.
(c) Modifications of List.--
(1) Petitions from satellite carriers.--In addition
to cable operators and television broadcast station
licensees, the Commission shall permit a satellite
carrier to petition for decisions and orders--
(A) by which stations and communities may be
added to those that are eligible for
retransmission under subsection (a); and
(B) by which stations and communities may be
determined to be eligible for retransmission
under paragraph (2) of this subsection.
(2) Application of criteria to communities without
cable service.--In addition to the stations and
communities that are eligible for retransmission under
subsection (a), in a community that is not served by a
cable system, a satellite carrier is also authorized to
retransmit to subscribers located in such community the
signal of any station that a cable system in that
community would be authorized to retransmit pursuant to
section 111 of title 17, United States Code, if such
signal would be treated as significantly viewed in the
county within which such community is located in
accordance with the rules, regulations, and
authorizations of the Commission.
(3) Carriage of certain additional stations.--
(A) Additional stations authorized.--In
addition to the signals that are eligible to be
carried under subsection (a) and paragraph (2)
of this subsection, a satellite carrier is also
authorized to retransmit to subscribers in no
more than two counties in a State that are in a
local market principally comprised of counties
in another State, the signals of any television
station located in the capital city of the
State in which such counties are located, if
the total number of television households in
the two counties combined did not exceed 10,000
for the year 2003 according to Nielson Media
Research.
(B) Treatment as significantly viewed;
limitations.--Such signals shall be deemed,
solely for purposes of this section, to be
significantly viewed in such two counties. In
total, a satellite carrier that carries one or
more additional signals under this paragraph
may retransmit no more than four television
broadcast stations in such counties pursuant to
this paragraph. All rules applicable to
carriage of stations pursuant to subsection (a)
or paragraph (2) of this subsection shall apply
to carriage of stations pursuant to this
paragraph.
(d) Effect on Other Obligations and Rights.--
(1) No effect on carriage obligations.--Carriage of a
signal under this section is not mandatory, and any
right of a station licensee to have the signal of such
station carried under section 338 is not affected by
the eligibility of such station to be carried under
this section.
(2) Retransmission consent rights not affected.--The
eligibility of the signal of a station to be carried
under this section does not affect the right of the
licensee of such station to grant (or withhold)
retransmission consent under section 325(b)(1).
(e) Network Nonduplication and Syndicated Exclusivity.--
(1) Not applicable except as provided by commission
regulations.--Signals eligible to be carried under this
section are not subject to the Commission's regulations
concerning network nonduplication or syndicated
exclusivity unless, pursuant to regulations adopted by
the Commission, the Commission determines to permit
network nonduplication or syndicated exclusivity to
apply within the appropriate zone of protection.
(2) Limitation.--Nothing in this subsection or
Commission regulations shall permit the application of
network nonduplication or syndicated exclusivity
regulations to the retransmission of distant signals of
network stations that are carried by a satellite
carrier pursuant to a statutory license under section
119(a)(2)(A) or (B), with respect to persons who reside
in unserved households, under 119(a)(4)(A), or under
section 119(a)(12).
(f) Enforcement Proceedings.--
(1) Notice by television broadcast stations.--If a
television broadcast station believes that a satellite
carrier has retransmitted to any subscriber in the
local market of such station the signal of another
television broadcast station affiliated with the same
television network in violation of this section, the
station may provide the satellite carrier with written
notice of such violation. Such notice shall be provided
via overnight delivery, addressed to the chief
executive officer of the satellite carrier at its
principal place of business and marked ``URGENT
LITIGATION MATTER'' on the outer packaging. Such
notification shall set forth--
(A) the name, address, and call letters of
the station that is claimed to have been
unlawfully retransmitted (for purposes of this
subsection, the ``imported station'');
(B) the name and address of the satellite
carrier;
(C) the dates on which the alleged
retransmission occurred;
(D) the street address of at least one person
to whom the alleged retransmission was made;
(E) a statement that the retransmission was
not permitted because--
(i) the Commission had not determined
that the imported station is
significantly viewed in the relevant
community;
(ii) the subscriber is not eligible
for the retransmission of the signal
because of the limitation in subsection
(b) (1) or (2);
(iii) the satellite carrier had not
provided the notification required by
subsection (h)(3); or
(iv) two or more of the above; and
(F) the name and address of counsel for the
station.
(2) Complaints by television broadcast stations.--If,
within 30 days of providing to the satellite carrier a
notice pursuant to paragraph (1), the satellite carrier
has not cured the alleged retransmission in violation
of this section, or if the satellite carrier cures the
alleged violation after notice and then renews such
violation within the next two years, the station may
file a complaint with the Commission. Such complaint
shall set forth the information provided in a notice
under paragraph (1).
(3) Service of complaints on satellite carriers.--For
purposes of any proceeding under this subsection, any
satellite carrier that retransmits the signal of any
broadcast station shall be deemed to designate the
Secretary of the Commission as its agent for service of
process. A television broadcast station may serve a
satellite carrier with a complaint concerning an
alleged violation of this section through
retransmission of a station within the local market of
such station by filing the original and two copies of
the complaint with the Secretary of the Commission and
serving a copy of the complaint on the satellite
carrier by means of two commonly used overnight
delivery services, each addressed to the chief
executive officer of the satellite carrier at its
principal place of business, and each marked ``URGENT
LITIGATION MATTER'' on the outer packaging. Service
shall be deemed complete one business day after a copy
of the complaint is provided to the delivery services
for overnight delivery. On receipt of a complaint filed
by a television broadcast station under this
subsection, the Secretary of the Commission shall send
the original complaint by United States mail, postage
prepaid, receipt requested, addressed to the chief
executive officer of the satellite carrier at its
principal place of business.
(4) Answers by satellite carriers.--Within 20
business days after the date of service, the satellite
carrier shall file an answer with the Commission and
shall serve the answer by a commonly used overnight
delivery service and by United States mail, on the
counsel designated in the complaint at the address
listed for such counsel in the complaint. The answer
shall include, as a schedule, a complete and accurate
list of all subscribers to which the satellite carrier
retransmitted the imported station into the community
in question pursuant to this section for each month
during the relevant time period. Such subscriber
information submitted by a satellite carrier may be
used only for purposes of determining compliance by the
satellite carrier with this section.
(5) Defenses.--
(A) Exclusive defenses.--The defenses under
this paragraph are the exclusive defenses
available to a satellite carrier against which
a complaint under this subsection is filed.
(B) Defenses.--The defenses referred to under
subparagraph (A) are the defenses--
(i) that the satellite carrier did
not retransmit the imported station to
any person in the complaining station's
local market pursuant to this section
during the time period specified in the
complaint;
(ii) if the complaining station has
alleged that the retransmission was
unlawful because the Commission had not
determined that the station is
significantly viewed in the relevant
community, that the Commission had in
fact made that determination;
(iii) with respect to particular
subscribers referenced in the
complaint, that those subscribers
reside in communities in which the
Commission has determined the station
to be significantly viewed;
(iv) if the complaining station has
alleged that the retransmission is
unlawful because the subscriber is
ineligible for the retransmission
because of the limitation in subsection
(b) (1) or (2), that such limitation is
inapplicable; and
(v) if the complaining station has
alleged that the retransmission was
unlawful because the satellite carrier
had not provided the notification
required by subsection (h)(3), that the
satellite carrier had in fact provided
that notification.
(6) Counting of violations.--The unlawful
retransmission of a particular television broadcast
station on a particular day subsequent to the notice
and opportunity to cure described in paragraphs (1) and
(2) of this subsection to a single subscriber pursuant
to this section shall be considered a separate
violation of this section.
(7) Procedures.--
(A) Regulations.--Within 60 days after the
date of enactment, the Commission shall issue
procedural regulations implementing this
subsection which shall supersede procedures
under section 312.
(B) Determinations.--
(i) In general.--Within 45 days after
the filing of a complaint, the
Commission shall issue a final
determination in any proceeding brought
under this subsection, unless the
Commission issues an interim
determination in writing that there has
been a genuine, reasonable, good faith
dispute about the applicability of one
of the defenses set forth in paragraph
(5), in which case the Commission shall
have 135 additional days to issue a
final determination. The Commission
shall hear witnesses only if it clearly
appears, based on written filings by
the parties, that there is a genuine
dispute about material facts. Except as
provided in the preceding sentence, the
Commission may issue a final ruling
based on written filings by the
parties.
(ii) Discovery.--The Commission may
direct the parties to exchange
pertinent documents, and if necessary
to take prehearing depositions, on such
schedule as the Commission may approve,
but only if the Commission first
determines that such discovery is
necessary to resolve a genuine dispute
about material facts, consistent with
the obligation to make a final
determination within 45 days (or 180
days, as appropriate).
(8) Relief.--If the Commission determines that a
satellite carrier has retransmitted the imported
stations to at least one person in the complaining
station's local market based on this section and has
failed to meet its burden of proving one of the
defenses under paragraph (5) with respect to such
retransmission, the Commission shall be required to--
(A) make a finding that the satellite carrier
violated this section with respect to that
station; and
(B) issue an order containing--
(i) a cease-and-desist order
directing the satellite carrier
immediately to stop making any further
retransmissions in violation of this
section;
(ii) a monetary penalty of $50 per
violation, which may be waived by the
Commission only if the Commission
determines that there was a genuine,
reasonable, good faith dispute about
the applicability of one of the
defenses set forth in paragraph (5);
and
(C) an award to the complainant of the
complainant's costs and reasonable attorney's
fees.
(9) Court proceedings on enforcement of commission
order.--
(A) In general.--On entry by the Commission
of a final order granting relief under this
subsection--
(i) a television broadcast station
may apply within 30 days after such
entry to the United States District
Court for the District of Columbia for
a final judgment enforcing all relief
granted by the Commission; and
(ii) the satellite carrier may apply
within 30 days after such entry to the
United States District Court for the
District of Columbia for a judgment
reversing the Commission's order.
(B) Appeal.--
(i) For cases in which the Commission
has not determined that there has been
a genuine, reasonable, good faith
dispute about the applicability of one
of the defenses set forth in paragraph
(5),the procedure for an appeal under
this subparagraph by the satellite
carrier shall supersede any other
appeal rights under Federal or State
law. The United States District Court
for the District of Columbia may find
personal jurisdiction based on the
satellite carrier's ownership of
licenses issued by the Commission. An
application by a television broadcast
station for an order enforcing any
cease-and-desist relief granted by the
Commission shall be resolved on a
highly expedited schedule. No discovery
may be conducted by the parties in any
such proceeding. The district court
shall enforce the Commission order
unless the Commission record reflects
manifest error and an abuse of
discretion by the Commission.
(ii) For cases in which the
Commission has determined that there
has been genuine, reasonable, good
faith dispute about the applicability
of one of the defenses set forth in
paragraph (5), the appeals process set
forth in section 402 shall apply, with
the following caveats:
(I) If the Commission has
found the retransmissions in
question to be in violation of
this section, the satellite
carrier must cease such
retransmissions during the
pendency of any appeal. Any
such retransmissions after the
date of the Commission's order
but prior to any order
overturning the Commission on
appeal shall be considered
violations under paragraph (6).
(II) If the Commission has
found the retransmissions in
question to be not in violation
of this section, the satellite
carrier may continue such
retransmissions during the
pendency of the appeal. Any
such retransmissions after the
date of the Commission's order
but prior to any order
overturning the Commission on
appeal shall not be considered
violations under paragraph (6).
(g) Rulemaking.--
(1) Requirements.--The Commission shall--
(A) commence a rulemaking proceeding to
implement this section by publication of a
notice of proposed rulemaking within 180 days
after the date of enactment of the Satellite
Home Viewer Extension and Reauthorization Act
of 2004;
(B) include in such notice a list of the
stations or communities eligible for carriage
under subsection (a); and
(C) adopt rules pursuant to such rulemaking
within one year after such date of enactment.
(2) Interim eligibility.--Stations and communities
listed as eligible for carriage in the notice of
proposed rulemaking issued by the Commission under
paragraph (1) may be treated as eligible for carriage
under this section on an interim basis pending adoption
of such rules and publication of the list of eligible
stations and communities under such rules.
(h) Additional Corresponding Changes in Regulations.--
(1) Community-by-community elections.--The Commission
shall, no later than April 30, 2005, revise section
76.66 of its regulations (47 CFR 76.66), concerning
satellite broadcast signal carriage, to permit (at the
next cycle of elections under section 325) a television
broadcast station that is located in a local market
into which a satellite carrier retransmits a television
broadcast station on the basis of a statutory license
under section 122 of title 17, United States Code, to
elect, with respect to such satellite carrier, between
retransmission consent pursuant to such section 325 and
mandatory carriage pursuant to section 338 separately
for each county within such station's local market,
if--
(A) the satellite carrier has notified the
station, pursuant to paragraph (3), that it
intends to carry another affiliate of the same
network pursuant to this section during the
relevant election period in the station's local
market; or
(B) on the date notification under paragraph
(3) was due, the satellite carrier was
retransmitting into the station's local market
pursuant to this section an affiliate of the
same television network.
(2) Single negotiations.--In revising its regulations
as required by paragraph (1), the Commission shall
provide that any such station shall conduct a single
negotiation for the entire portion of its local market
for which retransmission consent is elected.
(3) Additional provisions.--The Commission shall, no
later than April 30, 2005, revise its regulations to
provide the following:
(A) Notifications by satellite carrier.--A
satellite carrier's retransmission of
television broadcast stations pursuant to this
section shall be subject to the following
limitations:
(i) In any local market in which the
satellite carrier provides service on
the basis of a statutory license under
section 122 of title 17, United States
Code, on the date of enactment of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, the
carrier may notify a television
broadcast station in that market, at
least 60 days prior to any date on
which the station must thereafter make
an election under section 76.66 of the
Commission's regulations (47 CFR
76.66), of--
(I) each affiliate of the
same television network that
the carrier reserves the right
to retransmit into that
station's local market pursuant
to this section during the next
election cycle under such
section of such regulations;
and
(II) for each such affiliate,
the communities into which the
satellite carrier reserves the
right to make such
retransmissions.
(ii) In any local market in which the
satellite carrier commences service on
the basis of a statutory license under
section 122 of title 17, United States
Code, after the date of enactment of
the Satellite Home Viewer Extension and
Reauthorization Act of 2004, the
carrier may notify a station in that
market, at least 60 days prior to the
introduction of such service in that
market, and thereafter at least 60 days
prior to any date on which the station
must thereafter make an election under
under section 76.66 of the Commission's
regulations (47 CFR 76.66), of each
affiliate of the same television
network that the carrier reserves the
right to retransmit into that station's
local market during the next election
cycle under such section of such
regulations.
(iii) Beginning with the 2005
election cycle, a satellite carrier may
only retransmit pursuant to this
section during the pertinent election
period a signal--
(I) as to which it has
provided the notifications set
forth in clauses (i) and (ii);
or
(II) that it was
retransmitting into the local
market under this section as of
the date such notifications
were due.
(B) Harmonization of elections and
retransmission consent agreements.--If a
satellite carrier notifies a television
broadcast station that it reserves the right to
retransmit an affiliate of the same television
network during the next election cycle pursuant
to this section, the station may choose between
retransmission consent and mandatory carriage
for any portion of the 3-year election cycle
that is not covered by an existing
retransmission consent agreement.
(i) Definitions.--As used in this section:
(1) Local market; satellite carrier; subscriber;
television broadcast station.--The terms ``local
market'', ``satellite carrier'', ``subscriber'', and
``television broadcast station'' have the meanings
given such terms in section 338(k).
(2) Network station; television network.--The terms
``network station'' and ``television network'' have the
meanings given such term in section 339(d).
(3) Bandwidth.--The terms ``equivalent bandwidth''
and ``entire bandwidth'' shall be defined by the
Commission by regulation.
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