Retransmission of Digital Broadcast Signals Pursuant to the Cable Statutory License, 54948-54953 [06-7927]
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54948
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules
Environment
LIBRARY OF CONGRESS
We have analyzed this proposed rule
under Commandant Instruction
M16475.1D, which guides the Coast
Guard in complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that there are no factors
in this case that would limit the use of
a categorical exclusion under section
2.B.2 of the Instruction. Therefore, we
believe that this rule should be
categorically excluded, under figure 2–
1, paragraph (32)(e), of the Instruction,
from further environmental
documentation. Under figure 2–1,
paragraph (32)(e), of the Instruction, an
‘‘Environmental Determination Check
List’’ and a ‘‘Categorical Exclusion
Determination’’ are not required for this
rule. However, comments on this
section still be considered before the
final rule.
Copyright Office
List of Subjects in 33 CFR Part 117
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
1. The authority citation for part 117
continues to read as follows:
Authority: 33 U.S.C. 499; Department of
Homeland Security Delegation No. 0170.1; 33
CFR 1.05–1(g); section 117.255 also issued
under the authority of Pub. L. 102–587, 106
Stat. 5039.
2. In § 117.465, paragraphs (b), (c), (d),
(e), and (f) are redesignated paragraphs
(c), (d), (e), (f) and (g). A new paragraph
(b) is added to read as follows:
Lafourche Bayou.
*
*
*
*
(b) The draw of the Valentine bridge,
mile 44.7 at Valentine, shall open on
signal; except that, from 6 p.m. to 6
a.m., the draw shall open on signal if at
least four hours advance notification is
given. During the advance notification
period, the draw shall open on less than
four hours notice for an emergency and
shall open on demand should a
temporary surge in water traffic occur.
*
*
*
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*
Dated: September 10, 2006.
Joel R. Whitehead,
Rear Admiral, U.S. Coast Guard, Commander,
Eighth Coast Guard District.
[FR Doc. E6–15561 Filed 9–19–06; 8:45 am]
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[Docket No. RM 2005–5]
Retransmission of Digital Broadcast
Signals Pursuant to the Cable
Statutory License
Copyright Office, Library of
Congress.
ACTION: Notice of Inquiry.
AGENCY:
SUMMARY: The Copyright Office is
seeking comment on copyright issues
associated with the secondary
transmission of digital television
broadcast signals by cable operators
under the Copyright Act.
DATES: Written comments are due
November 6, 2006. Reply comments are
due December 4, 2006. September 20,
2006.
If hand delivered by a
private party, an original and five copies
of a comment or reply comment should
be brought to Library of Congress, U.S.
Copyright Office, 2221 S. Clark Street,
11th Floor, Arlington, VA. 22202,
between 8:30 a.m. and 5 p.m. The
envelope should be addressed as
follows: Office of the General Counsel,
U.S. Copyright Office.
If delivered by a commercial courier,
an original and five copies of a comment
or reply comment must be delivered to
the Congressional Courier Acceptance
Site (‘‘CCAS’’) located at 2nd and D
Streets, NE, Washington, D.C. between
8:30 a.m. and 4 p.m. The envelope
should be addressed as follows: Office
of the General Counsel, U.S. Copyright
Office, LM 430, James Madison
Building, 101 Independence Avenue,
SE, Washington, DC. Please note that
CCAS will not accept delivery by means
of overnight delivery services such as
Federal Express, United Parcel Service
or DHL.
If sent by mail (including overnight
delivery using U.S. Postal Service
Express Mail), an original and five
copies of a comment or reply comment
should be addressed to U.S. Copyright
Office, Copyright GC/I&R, P.O. Box
70400, Southwest Station, Washington,
DC 20024.
FOR FURTHER INFORMATION CONTACT: Ben
Golant, Senior Attorney, and Tanya M.
Sandros, Associate General Counsel,
Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, DC
20024. Telephone: (202) 707–8380.
Telefax: (202) 707–8366.
SUPPLEMENTARY INFORMATION: Section
111 of the Copyright Act (‘‘Act’’), title
ADDRESSES:
Bridges.
§ 117.465
37 CFR Part 201
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17 of the United States Code (‘‘Section
111’’) provides cable systems with a
statutory license to retransmit a
performance or display of a work
embodied in a primary transmission
made by a television station licensed by
the Federal Communications
Commission (‘‘FCC’’). Cable systems
that retransmit broadcast signals in
accordance with the provisions
governing the statutory license set forth
in Section 111 are required to pay
royalty fees to the Copyright Office.
Payments made under the cable
statutory license are remitted semi–
annually to the Copyright Office which
invests the royalties in United States
Treasury securities pending distribution
of these funds to those copyright owners
who are entitled to receive a share of the
fees.
The Motion Picture Association of
America, Inc. (‘‘MPAA’’), its member
companies and other producers and/or
distributors of movies, series and
specials broadcast by television stations
(‘‘Program Suppliers’’) and the Office of
the Commissioner of Baseball, the
National Basketball Association, the
National Football League, the National
Collegiate Athletic Association, the
National Hockey League and the
Women’s National Basketball
Association (‘‘Joint Sports Claimants’’ or
‘‘JSC’’) (collectively, ‘‘Copyright
Owners’’) have requested that the
Copyright Office commence a
rulemaking to clarify the applicability of
existing Copyright Office rules to the
retransmission of digital broadcast
signals under the statutory license set
forth in Section 111 of the Copyright
Act.
The regulatory actions requested by
Copyright Owners are properly within
the authority of the Copyright Office. 17
U.S.C.111(d) and 702. However, the
retransmission of digital broadcast
signals under Section 111 raises many
issues, some of which require further
elucidation before amending Section
201.17 of title 37 of the Code of Federal
Regulations (‘‘CFR’’ or ‘‘Section
201.17’’) and the associated cable
Statement of Account forms (‘‘SOAs’’).
We therefore initiate this Notice of
Inquiry (‘‘NOI’’) to address the matters
raised by the Copyright Owners’
Petition for Rulemaking1and to seek
comment on other possible changes to
the Copyright Office’s existing rules and
cable SOA forms.
1 The petition and the attachments may be viewed
on the Copyright Office website at: https://
copyright.gov/docs/cable/digitalsignals.pdf and
https://copyright.gov/docs/cable/digitalsignalsattachments.pdf.
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Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules
Background
Digital television technology enables a
television broadcast station to provide,
over–the–air, an array of quality high–
definition digital television signals
(‘‘HDTV’’), standard–definition digital
television signals (‘‘SDTV’’), and many
different types of ancillary programming
and data services. In 1997, the FCC
adopted its initial rules governing the
transition of the broadcast television
industry from analog to digital
technology,2 and authorized each
individual television station licensee to
broadcast in a digital format. Advanced
Television Systems and Their Impact on
Existing Television Broadcast Service,
12 FCC Rcd. 12809 (1997). Since that
time, hundreds of television stations
have been transmitting both analog and
digital signals from their broadcast
facilities,3 and television stations may
choose to broadcast in a ‘‘digital–only’’
mode of operations, pursuant to FCC
authorization. See, e.g., Second Periodic
Review of the Commission’s Rules and
Policies Affecting the Conversion to
Digital Television, 19 FCC Rcd 18279,
18321–22 (2004). Moreover, a
significant number of cable operators
have agreed to voluntarily carry both
analog and digital broadcast signals
from the same broadcast licensee. See
https://www.ncta.com/
IssueBrief.aspx?contentId=2716&view=3
(Cable operators voluntarily carrying at
least 500 digital television station
signals).
It is this trend toward carriage of
digital signals, often simultaneously
with the transmission of an analog
counterpart, that has prompted
Copyright Owners to seek clarification
of the rules governing a cable system’s
carriage of broadcast signals under
Section 111. However, before proposing
new rules, the Copyright Office seeks
comment on the proposed changes and
a number of associated issues related to
the carriage of digital signals.
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Applicability of Section 111 to Digital
Broadcast Signals
Copyright Owners request that the
Copyright Office address the
recordkeeping and royalty calculation
issues that arise in connection with the
carriage of digital broadcast signals by
2 Recently, Congress established February 17,
2009, as the date for the completion of the
transition from analog to digital broadcast
television. See Pub. L. No. 109-171, Section 3002(a),
120 Stat. 4 (2006).
3 As of October 2005, more than 1,537 television
stations nationwide were broadcasting in a digital
format. See Annual Assessment of the Status of
Competition in the Market for the Delivery of Video
Programming, 21 FCC Rcd 2503 (2006) (‘‘12th
Annual Video Competition Report’’) at ¶95.
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cable operators, provided that the
Copyright Office is of the view that
Section 111 covers retransmissions of
digital broadcast signals. Petition at 5.
In 1976, Congress amended the
Copyright Act by adding, inter alia, the
cable statutory license. In so doing, it
explained the rationale supporting the
addition of Section 111. According to
the legislative history accompanying
Section 111 of the Act, Congress
recognized that ‘‘cable systems are
commercial enterprises whose basic
retransmission operations are based on
the carriage of copyrighted program
material and that copyright royalties
should be paid by cable operators to the
creators of such programs.’’ H.R. Rep.
No. 94–1476, 94th Cong., 2d Sess. at 89
(1976). It also recognized that ‘‘it would
be impractical and unduly burdensome
to require every cable system to
negotiate with every copyright owner
whose work was retransmitted by a
cable system.’’ Id. Consequently,
Congress established a statutory
copyright license for the retransmission
of those over–the–air broadcast signals
that a cable system is authorized to
carry pursuant to the FCC regulations
then in place.
In structuring the license, Congress
made a distinction between primary and
secondary transmissions and local
versus distant ones in order to identify
which transmissions are subject to the
statutory license and at what rate. It did
not define a broadcast transmission or
identify whether a transmission was
subject to the statutory license on the
basis of the signal’s technical
characteristics (i.e., an analog signal vs.
a digital signal) nor was there a need to
make such distinctions because all
transmissions at that time were
broadcast in an analog format.4
Specifically, Section 111(f) of the Act
broadly defines ‘‘primary transmission’’
as ‘‘a transmission made to the public
by the transmitting facility whose
signals are being received and further
transmitted by the secondary
4 Section 111 stands in contrast to Section 119,
the satellite statutory license, which Congress has
amended to cover satellite carrier retransmission of
digital broadcast signals. See Satellite Home Viewer
Extension and Reauthorization Act of 2004, Pub. L.
No. 108–447, Title IX, Section 103, 118 Stat. 3393
(2004) (‘‘SHVERA’’). The SHVERA contains
separate provisions concerning the royalties to be
paid for the retransmission of digital broadcast
signals by satellite carriers and it affords copyright
owners and satellite carriers the opportunity to
negotiate royalty rates for digital broadcast signals
separate from analog signals. It also contains special
rules, exceptions, and limitations regarding the
carriage of digital signals, including provisions on
the use of one satellite dish to receive all such
signals, which subscribers are eligible to receive
distant digital signals, and how to test the technical
availability of such signals.
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transmission service, regardless of
where or when the performance or
display was first transmitted,’’ and a
‘‘secondary transmission’’ as ‘‘the
further transmitting of a primary
transmission simultaneously with the
primary transmission, or
nonsimultaneously with the primary
transmission [under a narrowly
prescribed set of circumstances]...’’ It is
these secondary retransmissions to the
public, where the carriage of the signals
comprising the secondary transmission
is permissible under the rules,
regulations, or authorizations of the
FCC, which are subject to statutory
licensing.
Such transmissions are then
categorized as local or distant based
upon the statutory definition of the
‘‘local service area of the primary
transmitter,’’which ‘‘in the case of a
television broadcast station, comprises
the area in which such station is
entitled to insist upon its signal being
retransmitted by a cable system
pursuant to FCC requirements in effect
on April 15, 1976, or such station’s
television market as defined in section
76.55(e) of the FCC’s rules (as in effect
on September 18, 1993), or any
modifications to such television market
made, on or after September 18, 1993,
pursuant to sections 76.55(e) or 76.59 of
the FCC’s rules . . . .’’5
As seen above, there is nothing in the
Act, its legislative history, or the
Copyright Office’s implementing rules,
which limits the cable statutory license
to analog broadcast signals. Instead, the
cited provisions broadly state that the
statutory license applies to any
broadcast stations licensed by the FCC
or any of the signals transmitted by such
stations. Thus, use of the statutory
license for the retransmission of a
digital signal would not be precluded
merely because the technological
characteristics of a digital signal differ
from the traditional analog signal
format. See Consumer Electronics
Association v. FCC, 347 F.3d 291(D.C.
Cir. 2003) (FCC had authority to issue
order requiring that 13–inch and larger
televisions include tuners capable of
receiving and decoding digital
television signals under plain language
of the 1962 All Channel Receiver Act
(‘‘ACRA’’), even though ACRA’s original
intent was to promote and support the
viability of analog UHF broadcast
stations).
5 Section 201.17(b)(5) of the Copyright Office’s
rules states that the terms primary transmission,
secondary transmission, local service area of a
primary transmitter, distant signal equivalent,
network station, independent station, and
noncommercial educational station have the
meanings set forth in Section 111 of the Act.
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Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules
Even so, questions remain with regard
to the application and operation of the
cable statutory license structure in the
digital television context. For this
reason, we are seeking comment on the
issues raised by the Copyright Owners’
Petition and on additional issues raised
herein.
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Digital Broadcast Signal
Retransmission Issues
Retransmission of a digital television
broadcast signal. Today, television
broadcasters may choose to transmit
their signals in either a digital format or
an analog format, or simultaneously in
both formats. Some stations have also
chosen to make the initial transmission
of a new station signal solely in the
digital format.6 Carriage of digital
signals by a cable system under the
Section 111 license, however, requires a
review of the current regulations and
reporting practices as developed for
analog signals to determine if these
practices need to be readjusted in order
to ensure accurate and complete
reporting under the provisions of
Section 111.
First, in the case where the digital
signal has or has had an analog
counterpart, would the digital broadcast
station’s television market for Section
111 purposes be the same as the
broadcast station’s television market for
the analog signal? And if the analog
signal is considered distant, can the
digital counterpart ever be considered
local, or vice versa? Second, how should
the Copyright Office determine whether
a distant digital broadcast signal is
permitted or non–permitted for Distant
Signal Equivalent (‘‘DSE’’) purposes?
Third, how does the Copyright Office
determine the basis of carriage for a
distant digital signal (i.e. market quotas,
grandfathered status, etc.)? Fourth, what
DSE values (for network, educational,
independent) should be assigned to
digital signals? Fifth, how would the
Copyright Office determine the coverage
area of a broadcast licensee’s digital
television transmission for cable
copyright purposes, especially in the
context of significantly viewed signals?7
Would the resolution of these
questions be the same in the case where
the signal never had an analog
counterpart? The Copyright Office seeks
answers to these questions concerning
6 For example, WHDT–TV–DT, Stuart, Florida,
operates as a digital facility but never had a paired
analog station. See Petition for Declaratory Ruling
that Digital Broadcast Stations Have Mandatory
Carriage Rights, 16 FCC Rcd 2692 (2001).
7 As a point of reference, the Copyright Office
notes that digital television station’s coverage areas
are measured by noise limited service contours
under current FCC rules, not Grade B contours as
is the case for analog stations, see 47 CFR 76.54(c).
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the carriage of a digital signal and will
consider any related issues identified by
the commenters.
Simultaneous Retransmission of
Analog and Digital Broadcast Signals.
Currently, hundreds of television
stations are broadcasting in both an
analog and digital format. For example,
WRC in Washington, D.C., broadcasts
both an analog signal (Channel 4, WRC–
TV) and a digital signal (Channel 48,
WRC–DT). See https://www.nbc4.com/
tvlistings/.
Copyright owners acknowledge that
some cable systems are separately
reporting carriage of digital and analog
broadcast signals and, in their view,
doing so appropriately.8 However, they
state that it is unclear whether all cable
systems are identifying carriage of both
types of signals or are doing so in a
consistent and uniform manner.
According to Copyright Owners, the
lack of uniformity in reporting the
carriage of both analog and digital
broadcast signals necessitates
clarification of the Copyright Office’s
existing regulations.
Specifically, they urge the Copyright
Office to clarify that, if a cable operator
chooses to carry a television broadcast
station’s analog and digital signals, that
cable operator should identify those
signals separately in Space G on its SOA
(e.g., as WRC–TV on channel 4 and
WRC–DT on channel 48). Copyright
Owners assert that separate designation
provides notice that a cable operator is
carrying digital signals and may be
charging subscribers additional fees that
should be included in the gross receipts
calculation.9 Moreover, in the context of
distant signal carriage, Copyright
Owners argue that separate reporting of
both the digital and the analog signal is
necessary because such carriage would
generate an additional royalty
obligation.
For purposes of ascertaining the
royalties owed, Copyright Owners
suggest that where the programming is
identical, the DSE values for carriage of
a distant analog and a digital signal
would be the same. Alternatively, if the
programming on the two signals is
different (e.g., where the digital signal
does not carry network programming),
8 Cable operators are not required by the FCC to
carry both the analog and digital signals of local
broadcast stations. See Carriage of Digital
Television Broadcast Signals, 20 FCC Rcd 4516
(2005).
9 Gross receipts for the basic service of providing
secondary transmissions of primary broadcast
transmitters include the full amount of monthly (or
other periodic) service fees for any and all services
or tiers of services which include one or more
secondary transmissions of television or radio
broadcast signals, for additional set fees, and for
converter fees. See 37 CFR 201.17(b)(1).
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they assert that the DSE values may be
different and should be computed
separately in accordance with the
provisions of Section 111(f). But in
either case, Copyright Owners imply
that the cable operator would still have
to pay for each signal.
Must a cable operator pay separately
for carriage of a digital signal and an
analog signal where the signals carry
identical programming to the subscriber,
or does the statutory license allow for a
single payment for the delivery of the
same programming albeit in two
different formats?10 Would the
programming be considered ‘‘different’’
if the digital signal included only a
subset of the programming from the
analog signal or if the digital signal was
broadcast in a high definition format?
Are cable systems offering such
combinations to subscribers and is the
Copyright Owners’ method of valuation
appropriate?
We ask commenters to provide
examples of where cable operators are
retransmitting the analog and digital
signals of the same licensee, but the
programming on the primary (or main)
digital signal is different than that of the
analog signal. We also seek comment on
how a cable operator should report the
carriage of a digital signal that has been
downconverted to an analog signal (at
the cable operator’s headend) so that
subscribers without a digital set top box
are able to view such signals.
Retransmission of Digital Multicast
Streams. Multicasting is the process by
which multiple streams of digital
television programming are transmitted
at the same time over a single broadcast
channel. The eleven largest broadcast
groups and their affiliates broadcast
more than 937,000 hours of multicast
programming during the month of
October 2005. This multicast
programming included news, weather,
sports, religious material, music videos
and coverage of local musicians and
concerts, as well as foreign language
programming (especially, but not
limited to, Spanish programming). See
12th Annual Video Competition Report,
21 FCC Rcd. 2503 at ¶101.11
10 We note, for example, that Metrocast
Cablevision of New Hampshire has assigned a
single value for a number of television stations
transmitting both an analog and digital signal.
Metrocast Cablevision SA3 Long Form, 2005/1
period, Cable ID # 7438 (as assigned by the
Licensing Division of the Copyright Office).
11 The FCC has decided that if a digital
broadcaster elects to divide its digital spectrum into
several separate, independent and unrelated
multicast programming streams, only one of these
streams, the ‘‘primary’’ digital video stream, is
entitled to mandatory carriage under the
Communications Act. See Carriage of Digital
Television Broadcast Signals, 16 FCC Rcd 2598
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rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules
For example, Station WRAL in
Raleigh, North Carolina, transmits its
analog signal (WRAL–TV) on channel 5
and its digital signal (WRAL–DT) on
channel 5.1, which simulcasts (in some
cases in HDTV) certain of the
programming on channel 5. It also
transmits a 24–hour news channel
(WRAL–NC) on channel 5.2. And, it
transmits locally–produced
programming on channels 5.3 (WRAL–
DT3) and 5.4 (WRAL–DT4). See https://
www.wral.com/wralinfo/.
Copyright Owners ask the Copyright
Office to clarify that a cable operator
carrying multicast signals must identify
those signals separately in Space G on
its SOA form. They state that a cable
operator choosing to carry all of the
digital channels transmitted by WRAL,
for example, should state in Space G of
its SOA that it carried WRAL–DT on
channel 5.1; WRAL–NC on channel 5.2;
WRAL–DT3 on channel 5.3; and
WRAL–DT4 on channel 5.4. Copyright
Owners assert that separate reporting is
necessary in the case of carriage of
multiple digital channels, where the
copyright owners of the programming
on such separate channels may be
wholly different from the copyright
owners of the programming on the
primary digital video stream. We seek
comment on the Copyright Owners’
suggestions.
Copyright Owners also urge the
Copyright Office to require separate
calculation of DSE values and royalty
payments for carriage of multiple
streams of distant digital signals. If, for
example, a cable operator chose to
import two streams from a particular
digital multicast television signal, one of
which contained network programming
and the other of which did not, that
operator should be considered as
importing 1.25 DSEs. We seek comment
on Copyright Owners’ proposals.
Retransmission of Datacast Streams.
DTV technology allows television
stations to use part of their digital
bandwidth for new ancillary
programming and data services. These
services can be provided simultaneously
with high definition or standard
definition DTV programs, and can
deliver virtually any type of data, audio
or video, including text, graphics,
software, web pages, video–on–demand,
and niche programming. See 12th
Annual Video Competition Report, 21
FCC Rcd. 2503 at ¶105. Some of the
content produced and distributed by the
television station may be related to the
(2001). In any event, cable systems have voluntarily
agreed to carry multicast digital programming
streams from broadcast stations across the country.
See Carriage of Digital Television Broadcast
Signals, 20 FCC Rcd 4516 at ¶ 38 (2005).
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program being broadcast (i.e.,
‘‘program–related material’’). For
example, a television station may
transmit interactive sports statistics
along with the local major league
baseball game being digitally broadcast.
Copyright Owners did not directly
discuss the retransmission of digital
program–related material under Section
111 in their Petition for Rulemaking.
However, they did suggest that if one
digital broadcast stream contained only
material that was part of the copyrighted
programming on the other digital
broadcast stream, the cable operator
would report only a single DSE (or .25
DSE if the stream qualified as a
‘‘network station’’ as defined in the
Copyright Act). Copyright Owners cite
to WGN v. United Video, 693 F.2d 622
(7th Cir. 1982) in support of their
proposal. In WGN, the 7th Circuit held
that additional material broadcast with
a television program that ‘‘is intended to
be viewed with and as an integral
component of that program’’ is covered
by the copyright on the television
program.
We seek comment on Copyright
Owners’ recommendation. We also ask
whether the 1982 WGN case, decided in
an analog context, is still good
precedent for our purposes here.12 In
other words, have time and technology
eroded the precedential value of the 7th
Circuit’s decision?
We note that satellite carriers and
copyright owners have agreed that no
separate copyright royalty payment
would be due for any program–related
material contained on the digital
broadcast stream within the meaning of
WGN. See Rate Adjustment for the
Satellite Carrier Compulsory License, 70
FR 39178, 39179 (July 7, 2005). Should
we consider this agreement as
authoritative guidance in the Section
111 context?
Retransmission of Digital Audio
Broadcast Signals. Like television
station licensees, terrestrial radio station
licensees are also converting to digital
broadcasting. Using in band on channel
(‘‘IBOC’’) technology, radio stations
have initiated a new service known as
digital audio broadcasting (‘‘DAB’’).
DAB provides for enhanced sound
fidelity and improved reception while
giving radio stations the capability to
multicast and offer new data services to
12 With regard to the mandatory carriage of digital
program-related material, the FCC decided to use
the same factors enumerated in WGN, that are used
in the analog context, to determine what material
is considered program-related for must carry
purposes, at least for the time being. See Carriage
of Digital Television Broadcast Signals, 16 FCC Rcd
at 2624 (2001); but see id. at 2651 (FCC seeking
further comment ‘‘on the proper scope of programrelated in the digital context.’’)
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54951
the public (such as station, song and
artist identification, stock and news
information, as well as local traffic and
weather bulletins). This technology
allows broadcasters to use their current
radio spectrum to transmit AM and FM
analog signals simultaneously with new
higher quality digital signals. IBOC
technology makes use of the existing
AM and FM bands (In Band) by adding
digital carriers to a radio station’s analog
signal, allowing broadcasters to transmit
digitally on their existing channel
assignments (On Channel). There is,
however, no government mandated
transition for radio station licensees as
there is for television station licensees.
See generally, Digital Audio
Broadcasting Systems and Their Impact
on the Terrestrial Radio Broadcast
Service, 19 FCC Rcd 7505 (2004).
Nevertheless, we seek comment on
what changes in our rules and the SOAs
are necessary to accommodate the
secondary transmission of digital audio
signals by cable systems. How should
cable systems report the retransmission
of digital audio multicast streams? Will
cable subscribers need specialized
equipment or set top boxes to receive
these digital radio signals? If so, how
would this affect a cable operator’s gross
receipts calculations?
Marketing of Digital Broadcast Signals
and the Cable Statutory License
The Copyright Office’s regulations
require reporting of the gross receipts, as
defined in Section 201.17(b), for any tier
of service that must be purchased in
order to access the tier which contains
the broadcast signals. Compulsory
License for Cable Systems: Reporting of
Gross Receipts, 53 FR 2493, 2495 (Jan.
28, 1988); see also 37 CFR 201.17(b)(1);
Form SA 1–2, General Instructions, p. v;
Form SA 3, General Instructions, p. vi.
Copyright Owners state that cable
operators often carry digital broadcast
signals on a digital service tier, but for
subscribers to access such signals, they
must purchase other tiers of service.
They note, for example, that Time
Warner’s Lincoln, Nebraska cable
system offers several digital broadcast
signals in a package as a ‘‘free’’ service.
However, in order to receive this ‘‘free’’
package, a subscriber must not only rent
an HDTV set top box for $7.65 per
month, the subscriber must also
purchase the system’s ‘‘digital tier,’’
which contains many non–broadcast
digital programming services, for an
additional $6.95 per month.
Accordingly, Copyright Owners
request that the Copyright Office clarify
that a cable operator must include in its
gross receipts any revenues from the
tiers of service consumers must
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purchase in order to receive HDTV or
other digital broadcast signals–
notwithstanding that the operator may
market its offering of such digital signals
as ‘‘free.’’ Copyright Owners also
recommend that the Copyright Office
include in Space E of the cable SOAs a
specific reference to ‘‘Digital and HDTV
Tiers,’’ and explain that such reference
includes all service tiers that a
consumer must purchase in order to
receive digital broadcast signals. We
seek comment on these proposals. We
also ask commenters to submit other
examples of cable industry marketing
practices that require subscribers to
purchase tiers, services, or gateways, in
order to access digital broadcast signals.
Digital Equipment and Reception Issues
Under Section 111
Digital Set Top Boxes. Any fees
charged for converters necessary to
receive broadcast signals must be
included in the cable system’s gross
receipts used to calculate its Section 111
royalty payment. 37 CFR 201.17(b)(1);
Form SA 1–2, General Instructions, p. v;
Form SA 3, General Instructions, p. vi.
As the Copyright Office stated nearly
thirty years ago: ‘‘In either case, the
subscriber must have a converter to
receive, in usable form, the signals of all
of the television stations that constitute
the cable system’s ‘basic service of
providing secondary transmissions of
primary broadcast transmitters.’
Subscriber fees associated with
converters, therefore, are clearly
amounts paid for the system’s secondary
transmission service and are included in
that system’s ‘gross receipts.’’’
Compulsory License for Cable Systems,
43 FR 27827–27828 (June 27, 1978).
Currently, cable subscribers are
generally unable to receive digital
(including broadcast) signals offered by
their cable operator unless they obtain
a special converter, i.e. digital set top
box, regardless of whether those signals
are available as part of the lowest–
priced basic service. Copyright Owners
assert that some cable operators may not
be including set top box fees in their
calculation of gross receipts. They note,
for example, that Time Warner’s
Lincoln, Nebraska system lists its ‘‘HD
Converter’’ fee (as well as its ‘‘basic
converter’’ fee) in Block 2 of Space F of
its 2004–1 SOA (labeled as ‘‘Services
Other Than Secondary Transmission
Rates’’) and not in Block 1 of Space E
(labeled as ‘‘Secondary Transmission
Service: Subscribers and Rates’’).
Copyright Owners argue that only fees
identified in Space E are included in the
cable operator’s calculation of gross
receipts (and thus in the calculation of
the cable operator’s Section 111
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16:27 Sep 19, 2006
Jkt 208001
royalty). Copyright Owners assert that
Time Warner’s Nebraska cable system (if
it were carrying digital broadcast
signals) may have been incorrectly
reporting its revenues from the carriage
of retransmitted broadcast signals.
Copyright Owners are not suggesting
that all cable operators are failing to
include digital converter fees in their
gross receipts. They note, for example,
the 2004–1 SOA for Comcast’s
Montgomery County, Maryland cable
system does appear to include digital
converter fees in its calculation of gross
receipts. According to Copyright
Owners, the fact that some cable
systems are including such converter
fees in their gross receipts while others
are apparently not doing so underscores
the need for the Copyright Office to
clarify this issue to ensure consistency
in the application of the relevant rules.
Copyright Owners, therefore, request
the Copyright Office to clarify that, in
accordance with Section 201.17(b), a
cable operator must include in its gross
receipts any fees charged subscribers for
digital set top boxes used to receive
HDTV or other digital broadcast signals,
notwithstanding that the operator may
market its offering of such signals as
‘‘free.’’ Copyright Owners also
recommend that the Copyright Office
include in Space E of the cable
statement of account form specific
reference to ‘‘Digital and HDTV
Converters’’ and explain that this line
item refers to converters used to receive
HDTV or other digital broadcast signals.
We seek comment on these proposed
changes.
Cable Cards. As stated earlier, under
Section 201.17(b) of the Copyright
Office’s rules, gross receipts for the
retransmission of broadcast signals
include the full amount of service fees
for any and all services or tiers of
service which include one or more
secondary transmissions of television or
radio broadcast signals, for additional
set fees, and for converter fees.
(Emphasis added)
Section 624A of the Communications
Act, 47 U.S.C. 544a, governs the
compatibility between cable systems
and navigation devices (e.g., cable set–
top boxes, digital video recorders, and
television receivers with navigation
capabilities) manufactured by consumer
electronics manufacturers not affiliated
with cable operators. In connection with
the digital television transition, the
cable industry and the consumer
electronics industry have engaged in
ongoing inter–industry discussions
seeking to establish a cable ‘‘plug and
play’’ standard. With the standard in
place, consumers are able to directly
attach their DTV receivers to cable
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systems and receive cable television
service without the need for a digital set
top box. To receive cable service,
consumers would only need to use a
point–of–deployment module (‘‘POD’’),
now marketed as ‘‘CableCARD,’’ that
would fit into a slot built into the
television set. The POD acts as a key to
unlock encrypted programming. In
October 2003, the FCC adopted initial
‘‘plug and play’’ and POD requirements
that were generally proposed by the
cable and consumer electronics
industries. Compatibility Between Cable
Systems and Consumer Electronics
Equipment, 18 FCC Rcd 20885 (2003).
The current rules, however, apply only
to unidirectional programming (i.e.
programming coming from the cable
headend) and does not apply to bi–
directional programming, such as Video
On Demand and impulse pay–per–view.
The industries are currently working on
a bi–directional plug and play
agreement. In the meantime, cable
subscribers will still need a digital set
top box to access these types of
advanced services.
We seek comment on whether cable
subscribers have been required to
purchase CableCards in order to access
digital broadcast television signals. If so,
we ask whether the Copyright Office’s
definition of gross receipts should be
amended to include subscriber revenue
generated through the lease of
CableCards. How are cable operators
currently treating the lease of
CableCards on their SOAs? What space
and block on the SOAs should be
changed, or possibly added, to list
CableCard revenue?
Second Television Set Fees. Cable
operator fees for service to second
television sets are included in a cable
system’s gross receipts for the purposes
of Section 111. 37 CFR 201.17(b)(1);
Form SA 1–2, General Instructions, p. v;
Form SA 3, General Instructions, p. vi;
see also Compulsory License for Cable
Systems, 43 FR 958, 959 (Jan. 5, 1978)
(‘‘The additional set fee is, we believe,
clearly a payment for basic secondary
transmission service . . .’’).
Copyright Owners state that some
cable systems charge additional fees for
access to digital broadcast signals to a
second television set in the household.
They note, for example, that
Susquehanna’s York, Pennsylvania,
cable system charges its customers $6.95
per month for ‘‘Additional HDTV
Terminals,’’ even though it does not
charge customers for service to
additional television sets receiving only
an analog service. See https://
www.suscom.com/home/sites/
pricing.php?city=york). Copyright
Owners contend, however, that it is
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unclear whether this system, and others
like it, are including fees for service to
additional sets that receive HDTV and
other digital broadcast signals within
their calculation of gross receipts.
Copyright Owners thus ask the
Copyright Office to clarify that, in
accordance with Section 201.17(b) of
the rules, fees for service to additional
digital television sets or ‘‘HDTV
Terminals’’ must be included in a cable
system’s gross receipts. Copyright
Owners also recommend that the
Copyright Office include in Space E of
the cable SOA specific reference to
‘‘Digital and HDTV Additional Set Fees’’
and explain that such line item refers to
fees charged for service to additional
television sets receiving HDTV or other
digital broadcast signals. We seek
comment on the changes proposed by
the Copyright Owners. Moreover, some
cable operators offer their subscribers
in–home digital networks where one
digital set top box provides digital
signals to all sets in the household. We
seek comment on whether the fees
associated with such a service, if any,
should be included in the operator’s
gross receipts calculation.
Conclusion
We hereby seek comment from the
public on the issues identified herein
associated with the retransmission of
digital broadcast signals by cable
systems under Section 111 of the
Copyright Act. If there are any
additional issues concerning the
treatment of digital television
retransmissions not discussed above, we
encourage interested parties to bring
those matters to our attention.
Dated: September 14, 2006.
Marybeth Peters,
Register, U.S. Copyright Office.
[FR Doc. 06–7927 Filed 9–19–06; 8:45 am]
BILLING CODE 1410–30–S
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2006–0483; FRL–8078–2]
Chlorpropham, Linuron, Pebulate,
Asulam, and Thiophanate-methyl;
Proposed Tolerance Actions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
rwilkins on PROD1PC63 with PROPOSAL
AGENCY:
SUMMARY: EPA is proposing to revoke
certain tolerances for the herbicides
linuron and pebulate and the fungicide
thiophanate-methyl. Also, EPA is
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16:27 Sep 19, 2006
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proposing to modify certain tolerances
for the herbicides chlorpropham,
linuron, asulam and the fungicide
thiophanate-methyl. In addition, EPA is
proposing to establish new tolerances
for the herbicides chlorpropham,
linuron, asulam, and the fungicide
thiophanate-methyl. The regulatory
actions proposed in this document are
part of the Agency’s reregistration
program under the Federal Insecticide,
Fungicide, and Rodenticide Act
(FIFRA).
DATES: Comments must be received on
or before November 20, 2006.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPP–2006–0483, by
one of the following methods:
• Federal eRulemaking Portal:https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
Potomac Yard (South Bldg.); 2777 S.
Crystal Drive, Arlington, VA. Deliveries
are only accepted during the Docket’s
normal hours of operation (8:30 a.m. to
4 p.m., Monday through Friday,
excluding legal holidays). Special
arrangements should be made for
deliveries of boxed information. The
docket telephone number is (703) 305–
5805.
Instructions: Direct your comments to
docket ID number EPA–HQ–OPP–2006–
0483. EPA’s policy is that all comments
received will be included in the docket
without change and may be made
available on-line at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through regulations.gov or email. The Federal regulations.gov
website is an ‘‘anonymous access’’
system, which means EPA will not
know your identity or contact
information -unless you provide it in
the body of your comment. If you send
an e-mail comment directly to EPA
without going through regulations.gov,
your e-mail address will be
automatically captured and included as
part of the comment that is placed in the
docket and made available on the
Internet. If you submit an electronic
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54953
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD-ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the docket index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available in the electronic
docket at https://www.regulations.gov,
or, if only available in hard copy, at the
OPP Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Drive, Arlington, VA.
The hours of operation for this docket
facility are from 8:30 a.m. to 4 p.m.,
Monday through Friday, excluding legal
holidays. The docket facility telephone
number is (703) 305–5805.
FOR FURTHER INFORMATION CONTACT: Jane
Smith, Special Review and
Reregistration Division (7508P), Office
of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave, NW., Washington, DC 20460–0001;
telephone number: (703) 308–0048; email address:smith.jane-scott@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111)
• Animal production (NAICS code
112)
• Food manufacturing (NAICS code
311)
• Pesticide manufacturing (NAICS
code 32532)
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
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]]>Agencies
[Federal Register Volume 71, Number 182 (Wednesday, September 20, 2006)]
[Proposed Rules]
[Pages 54948-54953]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7927]
=======================================================================
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2005-5]
Retransmission of Digital Broadcast Signals Pursuant to the Cable
Statutory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of Inquiry.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office is seeking comment on copyright issues
associated with the secondary transmission of digital television
broadcast signals by cable operators under the Copyright Act.
DATES: Written comments are due November 6, 2006. Reply comments are
due December 4, 2006. September 20, 2006.
ADDRESSES: If hand delivered by a private party, an original and five
copies of a comment or reply comment should be brought to Library of
Congress, U.S. Copyright Office, 2221 S. Clark Street, 11th Floor,
Arlington, VA. 22202, between 8:30 a.m. and 5 p.m. The envelope should
be addressed as follows: Office of the General Counsel, U.S. Copyright
Office.
If delivered by a commercial courier, an original and five copies
of a comment or reply comment must be delivered to the Congressional
Courier Acceptance Site (``CCAS'') located at 2nd and D Streets, NE,
Washington, D.C. between 8:30 a.m. and 4 p.m. The envelope should be
addressed as follows: Office of the General Counsel, U.S. Copyright
Office, LM 430, James Madison Building, 101 Independence Avenue, SE,
Washington, DC. Please note that CCAS will not accept delivery by means
of overnight delivery services such as Federal Express, United Parcel
Service or DHL.
If sent by mail (including overnight delivery using U.S. Postal
Service Express Mail), an original and five copies of a comment or
reply comment should be addressed to U.S. Copyright Office, Copyright
GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Ben Golant, Senior Attorney, and Tanya
M. Sandros, Associate General Counsel, Copyright GC/I&R, P.O. Box
70400, Southwest Station, Washington, DC 20024. Telephone: (202) 707-
8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: Section 111 of the Copyright Act (``Act''),
title 17 of the United States Code (``Section 111'') provides cable
systems with a statutory license to retransmit a performance or display
of a work embodied in a primary transmission made by a television
station licensed by the Federal Communications Commission (``FCC'').
Cable systems that retransmit broadcast signals in accordance with the
provisions governing the statutory license set forth in Section 111 are
required to pay royalty fees to the Copyright Office. Payments made
under the cable statutory license are remitted semi-annually to the
Copyright Office which invests the royalties in United States Treasury
securities pending distribution of these funds to those copyright
owners who are entitled to receive a share of the fees.
The Motion Picture Association of America, Inc. (``MPAA''), its
member companies and other producers and/or distributors of movies,
series and specials broadcast by television stations (``Program
Suppliers'') and the Office of the Commissioner of Baseball, the
National Basketball Association, the National Football League, the
National Collegiate Athletic Association, the National Hockey League
and the Women's National Basketball Association (``Joint Sports
Claimants'' or ``JSC'') (collectively, ``Copyright Owners'') have
requested that the Copyright Office commence a rulemaking to clarify
the applicability of existing Copyright Office rules to the
retransmission of digital broadcast signals under the statutory license
set forth in Section 111 of the Copyright Act.
The regulatory actions requested by Copyright Owners are properly
within the authority of the Copyright Office. 17 U.S.C.111(d) and 702.
However, the retransmission of digital broadcast signals under Section
111 raises many issues, some of which require further elucidation
before amending Section 201.17 of title 37 of the Code of Federal
Regulations (``CFR'' or ``Section 201.17'') and the associated cable
Statement of Account forms (``SOAs''). We therefore initiate this
Notice of Inquiry (``NOI'') to address the matters raised by the
Copyright Owners' Petition for Rulemaking\1\and to seek comment on
other possible changes to the Copyright Office's existing rules and
cable SOA forms.
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\1\ The petition and the attachments may be viewed on the
Copyright Office website at: https://copyright.gov/docs/cable/
digitalsignals.pdf and https://copyright.gov/docs/cable/
digitalsignals-attachments.pdf.
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[[Page 54949]]
Background
Digital television technology enables a television broadcast
station to provide, over-the-air, an array of quality high-definition
digital television signals (``HDTV''), standard-definition digital
television signals (``SDTV''), and many different types of ancillary
programming and data services. In 1997, the FCC adopted its initial
rules governing the transition of the broadcast television industry
from analog to digital technology,\2\ and authorized each individual
television station licensee to broadcast in a digital format. Advanced
Television Systems and Their Impact on Existing Television Broadcast
Service, 12 FCC Rcd. 12809 (1997). Since that time, hundreds of
television stations have been transmitting both analog and digital
signals from their broadcast facilities,\3\ and television stations may
choose to broadcast in a ``digital-only'' mode of operations, pursuant
to FCC authorization. See, e.g., Second Periodic Review of the
Commission's Rules and Policies Affecting the Conversion to Digital
Television, 19 FCC Rcd 18279, 18321-22 (2004). Moreover, a significant
number of cable operators have agreed to voluntarily carry both analog
and digital broadcast signals from the same broadcast licensee. See
https://www.ncta.com/IssueBrief.aspx?contentId=2716&view=3 (Cable
operators voluntarily carrying at least 500 digital television station
signals).
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\2\ Recently, Congress established February 17, 2009, as the
date for the completion of the transition from analog to digital
broadcast television. See Pub. L. No. 109-171, Section 3002(a), 120
Stat. 4 (2006).
\3\ As of October 2005, more than 1,537 television stations
nationwide were broadcasting in a digital format. See Annual
Assessment of the Status of Competition in the Market for the
Delivery of Video Programming, 21 FCC Rcd 2503 (2006) (``12th Annual
Video Competition Report'') at ]95.
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It is this trend toward carriage of digital signals, often
simultaneously with the transmission of an analog counterpart, that has
prompted Copyright Owners to seek clarification of the rules governing
a cable system's carriage of broadcast signals under Section 111.
However, before proposing new rules, the Copyright Office seeks comment
on the proposed changes and a number of associated issues related to
the carriage of digital signals.
Applicability of Section 111 to Digital Broadcast Signals
Copyright Owners request that the Copyright Office address the
recordkeeping and royalty calculation issues that arise in connection
with the carriage of digital broadcast signals by cable operators,
provided that the Copyright Office is of the view that Section 111
covers retransmissions of digital broadcast signals. Petition at 5.
In 1976, Congress amended the Copyright Act by adding, inter alia,
the cable statutory license. In so doing, it explained the rationale
supporting the addition of Section 111. According to the legislative
history accompanying Section 111 of the Act, Congress recognized that
``cable systems are commercial enterprises whose basic retransmission
operations are based on the carriage of copyrighted program material
and that copyright royalties should be paid by cable operators to the
creators of such programs.'' H.R. Rep. No. 94-1476, 94th Cong., 2d
Sess. at 89 (1976). It also recognized that ``it would be impractical
and unduly burdensome to require every cable system to negotiate with
every copyright owner whose work was retransmitted by a cable system.''
Id. Consequently, Congress established a statutory copyright license
for the retransmission of those over-the-air broadcast signals that a
cable system is authorized to carry pursuant to the FCC regulations
then in place.
In structuring the license, Congress made a distinction between
primary and secondary transmissions and local versus distant ones in
order to identify which transmissions are subject to the statutory
license and at what rate. It did not define a broadcast transmission or
identify whether a transmission was subject to the statutory license on
the basis of the signal's technical characteristics (i.e., an analog
signal vs. a digital signal) nor was there a need to make such
distinctions because all transmissions at that time were broadcast in
an analog format.\4\
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\4\ Section 111 stands in contrast to Section 119, the satellite
statutory license, which Congress has amended to cover satellite
carrier retransmission of digital broadcast signals. See Satellite
Home Viewer Extension and Reauthorization Act of 2004, Pub. L. No.
108-447, Title IX, Section 103, 118 Stat. 3393 (2004) (``SHVERA'').
The SHVERA contains separate provisions concerning the royalties to
be paid for the retransmission of digital broadcast signals by
satellite carriers and it affords copyright owners and satellite
carriers the opportunity to negotiate royalty rates for digital
broadcast signals separate from analog signals. It also contains
special rules, exceptions, and limitations regarding the carriage of
digital signals, including provisions on the use of one satellite
dish to receive all such signals, which subscribers are eligible to
receive distant digital signals, and how to test the technical
availability of such signals.
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Specifically, Section 111(f) of the Act broadly defines ``primary
transmission'' as ``a transmission made to the public by the
transmitting facility whose signals are being received and further
transmitted by the secondary transmission service, regardless of where
or when the performance or display was first transmitted,'' and a
``secondary transmission'' as ``the further transmitting of a primary
transmission simultaneously with the primary transmission, or
nonsimultaneously with the primary transmission [under a narrowly
prescribed set of circumstances]...'' It is these secondary
retransmissions to the public, where the carriage of the signals
comprising the secondary transmission is permissible under the rules,
regulations, or authorizations of the FCC, which are subject to
statutory licensing.
Such transmissions are then categorized as local or distant based
upon the statutory definition of the ``local service area of the
primary transmitter,''which ``in the case of a television broadcast
station, comprises the area in which such station is entitled to insist
upon its signal being retransmitted by a cable system pursuant to FCC
requirements in effect on April 15, 1976, or such station's television
market as defined in section 76.55(e) of the FCC's rules (as in effect
on September 18, 1993), or any modifications to such television market
made, on or after September 18, 1993, pursuant to sections 76.55(e) or
76.59 of the FCC's rules . . . .''\5\
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\5\ Section 201.17(b)(5) of the Copyright Office's rules states
that the terms primary transmission, secondary transmission, local
service area of a primary transmitter, distant signal equivalent,
network station, independent station, and noncommercial educational
station have the meanings set forth in Section 111 of the Act.
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As seen above, there is nothing in the Act, its legislative
history, or the Copyright Office's implementing rules, which limits the
cable statutory license to analog broadcast signals. Instead, the cited
provisions broadly state that the statutory license applies to any
broadcast stations licensed by the FCC or any of the signals
transmitted by such stations. Thus, use of the statutory license for
the retransmission of a digital signal would not be precluded merely
because the technological characteristics of a digital signal differ
from the traditional analog signal format. See Consumer Electronics
Association v. FCC, 347 F.3d 291(D.C. Cir. 2003) (FCC had authority to
issue order requiring that 13-inch and larger televisions include
tuners capable of receiving and decoding digital television signals
under plain language of the 1962 All Channel Receiver Act (``ACRA''),
even though ACRA's original intent was to promote and support the
viability of analog UHF broadcast stations).
[[Page 54950]]
Even so, questions remain with regard to the application and
operation of the cable statutory license structure in the digital
television context. For this reason, we are seeking comment on the
issues raised by the Copyright Owners' Petition and on additional
issues raised herein.
Digital Broadcast Signal Retransmission Issues
Retransmission of a digital television broadcast signal. Today,
television broadcasters may choose to transmit their signals in either
a digital format or an analog format, or simultaneously in both
formats. Some stations have also chosen to make the initial
transmission of a new station signal solely in the digital format.\6\
Carriage of digital signals by a cable system under the Section 111
license, however, requires a review of the current regulations and
reporting practices as developed for analog signals to determine if
these practices need to be readjusted in order to ensure accurate and
complete reporting under the provisions of Section 111.
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\6\ For example, WHDT-TV-DT, Stuart, Florida, operates as a
digital facility but never had a paired analog station. See Petition
for Declaratory Ruling that Digital Broadcast Stations Have
Mandatory Carriage Rights, 16 FCC Rcd 2692 (2001).
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First, in the case where the digital signal has or has had an
analog counterpart, would the digital broadcast station's television
market for Section 111 purposes be the same as the broadcast station's
television market for the analog signal? And if the analog signal is
considered distant, can the digital counterpart ever be considered
local, or vice versa? Second, how should the Copyright Office determine
whether a distant digital broadcast signal is permitted or non-
permitted for Distant Signal Equivalent (``DSE'') purposes? Third, how
does the Copyright Office determine the basis of carriage for a distant
digital signal (i.e. market quotas, grandfathered status, etc.)?
Fourth, what DSE values (for network, educational, independent) should
be assigned to digital signals? Fifth, how would the Copyright Office
determine the coverage area of a broadcast licensee's digital
television transmission for cable copyright purposes, especially in the
context of significantly viewed signals?\7\
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\7\ As a point of reference, the Copyright Office notes that
digital television station's coverage areas are measured by noise
limited service contours under current FCC rules, not Grade B
contours as is the case for analog stations, see 47 CFR 76.54(c).
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Would the resolution of these questions be the same in the case
where the signal never had an analog counterpart? The Copyright Office
seeks answers to these questions concerning the carriage of a digital
signal and will consider any related issues identified by the
commenters.
Simultaneous Retransmission of Analog and Digital Broadcast
Signals. Currently, hundreds of television stations are broadcasting in
both an analog and digital format. For example, WRC in Washington,
D.C., broadcasts both an analog signal (Channel 4, WRC-TV) and a
digital signal (Channel 48, WRC-DT). See https://www.nbc4.com/
tvlistings/.
Copyright owners acknowledge that some cable systems are separately
reporting carriage of digital and analog broadcast signals and, in
their view, doing so appropriately.\8\ However, they state that it is
unclear whether all cable systems are identifying carriage of both
types of signals or are doing so in a consistent and uniform manner.
According to Copyright Owners, the lack of uniformity in reporting the
carriage of both analog and digital broadcast signals necessitates
clarification of the Copyright Office's existing regulations.
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\8\ Cable operators are not required by the FCC to carry both
the analog and digital signals of local broadcast stations. See
Carriage of Digital Television Broadcast Signals, 20 FCC Rcd 4516
(2005).
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Specifically, they urge the Copyright Office to clarify that, if a
cable operator chooses to carry a television broadcast station's analog
and digital signals, that cable operator should identify those signals
separately in Space G on its SOA (e.g., as WRC-TV on channel 4 and WRC-
DT on channel 48). Copyright Owners assert that separate designation
provides notice that a cable operator is carrying digital signals and
may be charging subscribers additional fees that should be included in
the gross receipts calculation.\9\ Moreover, in the context of distant
signal carriage, Copyright Owners argue that separate reporting of both
the digital and the analog signal is necessary because such carriage
would generate an additional royalty obligation.
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\9\ Gross receipts for the basic service of providing secondary
transmissions of primary broadcast transmitters include the full
amount of monthly (or other periodic) service fees for any and all
services or tiers of services which include one or more secondary
transmissions of television or radio broadcast signals, for
additional set fees, and for converter fees. See 37 CFR
201.17(b)(1).
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For purposes of ascertaining the royalties owed, Copyright Owners
suggest that where the programming is identical, the DSE values for
carriage of a distant analog and a digital signal would be the same.
Alternatively, if the programming on the two signals is different
(e.g., where the digital signal does not carry network programming),
they assert that the DSE values may be different and should be computed
separately in accordance with the provisions of Section 111(f). But in
either case, Copyright Owners imply that the cable operator would still
have to pay for each signal.
Must a cable operator pay separately for carriage of a digital
signal and an analog signal where the signals carry identical
programming to the subscriber, or does the statutory license allow for
a single payment for the delivery of the same programming albeit in two
different formats?\10\ Would the programming be considered
``different'' if the digital signal included only a subset of the
programming from the analog signal or if the digital signal was
broadcast in a high definition format? Are cable systems offering such
combinations to subscribers and is the Copyright Owners' method of
valuation appropriate?
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\10\ We note, for example, that Metrocast Cablevision of New
Hampshire has assigned a single value for a number of television
stations transmitting both an analog and digital signal. Metrocast
Cablevision SA3 Long Form, 2005/1 period, Cable ID 7438
(as assigned by the Licensing Division of the Copyright Office).
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We ask commenters to provide examples of where cable operators are
retransmitting the analog and digital signals of the same licensee, but
the programming on the primary (or main) digital signal is different
than that of the analog signal. We also seek comment on how a cable
operator should report the carriage of a digital signal that has been
downconverted to an analog signal (at the cable operator's headend) so
that subscribers without a digital set top box are able to view such
signals.
Retransmission of Digital Multicast Streams. Multicasting is the
process by which multiple streams of digital television programming are
transmitted at the same time over a single broadcast channel. The
eleven largest broadcast groups and their affiliates broadcast more
than 937,000 hours of multicast programming during the month of October
2005. This multicast programming included news, weather, sports,
religious material, music videos and coverage of local musicians and
concerts, as well as foreign language programming (especially, but not
limited to, Spanish programming). See 12th Annual Video Competition
Report, 21 FCC Rcd. 2503 at ]101.\11\
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\11\ The FCC has decided that if a digital broadcaster elects to
divide its digital spectrum into several separate, independent and
unrelated multicast programming streams, only one of these streams,
the ``primary'' digital video stream, is entitled to mandatory
carriage under the Communications Act. See Carriage of Digital
Television Broadcast Signals, 16 FCC Rcd 2598 (2001). In any event,
cable systems have voluntarily agreed to carry multicast digital
programming streams from broadcast stations across the country. See
Carriage of Digital Television Broadcast Signals, 20 FCC Rcd 4516 at
] 38 (2005).
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[[Page 54951]]
For example, Station WRAL in Raleigh, North Carolina, transmits its
analog signal (WRAL-TV) on channel 5 and its digital signal (WRAL-DT)
on channel 5.1, which simulcasts (in some cases in HDTV) certain of the
programming on channel 5. It also transmits a 24-hour news channel
(WRAL-NC) on channel 5.2. And, it transmits locally-produced
programming on channels 5.3 (WRAL-DT3) and 5.4 (WRAL-DT4). See https://
www.wral.com/wralinfo/.
Copyright Owners ask the Copyright Office to clarify that a cable
operator carrying multicast signals must identify those signals
separately in Space G on its SOA form. They state that a cable operator
choosing to carry all of the digital channels transmitted by WRAL, for
example, should state in Space G of its SOA that it carried WRAL-DT on
channel 5.1; WRAL-NC on channel 5.2; WRAL-DT3 on channel 5.3; and WRAL-
DT4 on channel 5.4. Copyright Owners assert that separate reporting is
necessary in the case of carriage of multiple digital channels, where
the copyright owners of the programming on such separate channels may
be wholly different from the copyright owners of the programming on the
primary digital video stream. We seek comment on the Copyright Owners'
suggestions.
Copyright Owners also urge the Copyright Office to require separate
calculation of DSE values and royalty payments for carriage of multiple
streams of distant digital signals. If, for example, a cable operator
chose to import two streams from a particular digital multicast
television signal, one of which contained network programming and the
other of which did not, that operator should be considered as importing
1.25 DSEs. We seek comment on Copyright Owners' proposals.
Retransmission of Datacast Streams. DTV technology allows
television stations to use part of their digital bandwidth for new
ancillary programming and data services. These services can be provided
simultaneously with high definition or standard definition DTV
programs, and can deliver virtually any type of data, audio or video,
including text, graphics, software, web pages, video-on-demand, and
niche programming. See 12th Annual Video Competition Report, 21 FCC
Rcd. 2503 at ]105. Some of the content produced and distributed by the
television station may be related to the program being broadcast (i.e.,
``program-related material''). For example, a television station may
transmit interactive sports statistics along with the local major
league baseball game being digitally broadcast.
Copyright Owners did not directly discuss the retransmission of
digital program-related material under Section 111 in their Petition
for Rulemaking. However, they did suggest that if one digital broadcast
stream contained only material that was part of the copyrighted
programming on the other digital broadcast stream, the cable operator
would report only a single DSE (or .25 DSE if the stream qualified as a
``network station'' as defined in the Copyright Act). Copyright Owners
cite to WGN v. United Video, 693 F.2d 622 (7th Cir. 1982) in support of
their proposal. In WGN, the 7th Circuit held that additional material
broadcast with a television program that ``is intended to be viewed
with and as an integral component of that program'' is covered by the
copyright on the television program.
We seek comment on Copyright Owners' recommendation. We also ask
whether the 1982 WGN case, decided in an analog context, is still good
precedent for our purposes here.\12\ In other words, have time and
technology eroded the precedential value of the 7th Circuit's decision?
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\12\ With regard to the mandatory carriage of digital program-
related material, the FCC decided to use the same factors enumerated
in WGN, that are used in the analog context, to determine what
material is considered program-related for must carry purposes, at
least for the time being. See Carriage of Digital Television
Broadcast Signals, 16 FCC Rcd at 2624 (2001); but see id. at 2651
(FCC seeking further comment ``on the proper scope of program-
related in the digital context.'')
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We note that satellite carriers and copyright owners have agreed
that no separate copyright royalty payment would be due for any
program-related material contained on the digital broadcast stream
within the meaning of WGN. See Rate Adjustment for the Satellite
Carrier Compulsory License, 70 FR 39178, 39179 (July 7, 2005). Should
we consider this agreement as authoritative guidance in the Section 111
context?
Retransmission of Digital Audio Broadcast Signals. Like television
station licensees, terrestrial radio station licensees are also
converting to digital broadcasting. Using in band on channel (``IBOC'')
technology, radio stations have initiated a new service known as
digital audio broadcasting (``DAB''). DAB provides for enhanced sound
fidelity and improved reception while giving radio stations the
capability to multicast and offer new data services to the public (such
as station, song and artist identification, stock and news information,
as well as local traffic and weather bulletins). This technology allows
broadcasters to use their current radio spectrum to transmit AM and FM
analog signals simultaneously with new higher quality digital signals.
IBOC technology makes use of the existing AM and FM bands (In Band) by
adding digital carriers to a radio station's analog signal, allowing
broadcasters to transmit digitally on their existing channel
assignments (On Channel). There is, however, no government mandated
transition for radio station licensees as there is for television
station licensees. See generally, Digital Audio Broadcasting Systems
and Their Impact on the Terrestrial Radio Broadcast Service, 19 FCC Rcd
7505 (2004).
Nevertheless, we seek comment on what changes in our rules and the
SOAs are necessary to accommodate the secondary transmission of digital
audio signals by cable systems. How should cable systems report the
retransmission of digital audio multicast streams? Will cable
subscribers need specialized equipment or set top boxes to receive
these digital radio signals? If so, how would this affect a cable
operator's gross receipts calculations?
Marketing of Digital Broadcast Signals and the Cable Statutory License
The Copyright Office's regulations require reporting of the gross
receipts, as defined in Section 201.17(b), for any tier of service that
must be purchased in order to access the tier which contains the
broadcast signals. Compulsory License for Cable Systems: Reporting of
Gross Receipts, 53 FR 2493, 2495 (Jan. 28, 1988); see also 37 CFR
201.17(b)(1); Form SA 1-2, General Instructions, p. v; Form SA 3,
General Instructions, p. vi.
Copyright Owners state that cable operators often carry digital
broadcast signals on a digital service tier, but for subscribers to
access such signals, they must purchase other tiers of service. They
note, for example, that Time Warner's Lincoln, Nebraska cable system
offers several digital broadcast signals in a package as a ``free''
service. However, in order to receive this ``free'' package, a
subscriber must not only rent an HDTV set top box for $7.65 per month,
the subscriber must also purchase the system's ``digital tier,'' which
contains many non-broadcast digital programming services, for an
additional $6.95 per month.
Accordingly, Copyright Owners request that the Copyright Office
clarify that a cable operator must include in its gross receipts any
revenues from the tiers of service consumers must
[[Page 54952]]
purchase in order to receive HDTV or other digital broadcast signals-
notwithstanding that the operator may market its offering of such
digital signals as ``free.'' Copyright Owners also recommend that the
Copyright Office include in Space E of the cable SOAs a specific
reference to ``Digital and HDTV Tiers,'' and explain that such
reference includes all service tiers that a consumer must purchase in
order to receive digital broadcast signals. We seek comment on these
proposals. We also ask commenters to submit other examples of cable
industry marketing practices that require subscribers to purchase
tiers, services, or gateways, in order to access digital broadcast
signals.
Digital Equipment and Reception Issues Under Section 111
Digital Set Top Boxes. Any fees charged for converters necessary to
receive broadcast signals must be included in the cable system's gross
receipts used to calculate its Section 111 royalty payment. 37 CFR
201.17(b)(1); Form SA 1-2, General Instructions, p. v; Form SA 3,
General Instructions, p. vi. As the Copyright Office stated nearly
thirty years ago: ``In either case, the subscriber must have a
converter to receive, in usable form, the signals of all of the
television stations that constitute the cable system's `basic service
of providing secondary transmissions of primary broadcast
transmitters.' Subscriber fees associated with converters, therefore,
are clearly amounts paid for the system's secondary transmission
service and are included in that system's `gross receipts.'''
Compulsory License for Cable Systems, 43 FR 27827-27828 (June 27,
1978).
Currently, cable subscribers are generally unable to receive
digital (including broadcast) signals offered by their cable operator
unless they obtain a special converter, i.e. digital set top box,
regardless of whether those signals are available as part of the
lowest-priced basic service. Copyright Owners assert that some cable
operators may not be including set top box fees in their calculation of
gross receipts. They note, for example, that Time Warner's Lincoln,
Nebraska system lists its ``HD Converter'' fee (as well as its ``basic
converter'' fee) in Block 2 of Space F of its 2004-1 SOA (labeled as
``Services Other Than Secondary Transmission Rates'') and not in Block
1 of Space E (labeled as ``Secondary Transmission Service: Subscribers
and Rates''). Copyright Owners argue that only fees identified in Space
E are included in the cable operator's calculation of gross receipts
(and thus in the calculation of the cable operator's Section 111
royalty). Copyright Owners assert that Time Warner's Nebraska cable
system (if it were carrying digital broadcast signals) may have been
incorrectly reporting its revenues from the carriage of retransmitted
broadcast signals.
Copyright Owners are not suggesting that all cable operators are
failing to include digital converter fees in their gross receipts. They
note, for example, the 2004-1 SOA for Comcast's Montgomery County,
Maryland cable system does appear to include digital converter fees in
its calculation of gross receipts. According to Copyright Owners, the
fact that some cable systems are including such converter fees in their
gross receipts while others are apparently not doing so underscores the
need for the Copyright Office to clarify this issue to ensure
consistency in the application of the relevant rules.
Copyright Owners, therefore, request the Copyright Office to
clarify that, in accordance with Section 201.17(b), a cable operator
must include in its gross receipts any fees charged subscribers for
digital set top boxes used to receive HDTV or other digital broadcast
signals, notwithstanding that the operator may market its offering of
such signals as ``free.'' Copyright Owners also recommend that the
Copyright Office include in Space E of the cable statement of account
form specific reference to ``Digital and HDTV Converters'' and explain
that this line item refers to converters used to receive HDTV or other
digital broadcast signals. We seek comment on these proposed changes.
Cable Cards. As stated earlier, under Section 201.17(b) of the
Copyright Office's rules, gross receipts for the retransmission of
broadcast signals include the full amount of service fees for any and
all services or tiers of service which include one or more secondary
transmissions of television or radio broadcast signals, for additional
set fees, and for converter fees. (Emphasis added)
Section 624A of the Communications Act, 47 U.S.C. 544a, governs the
compatibility between cable systems and navigation devices (e.g., cable
set-top boxes, digital video recorders, and television receivers with
navigation capabilities) manufactured by consumer electronics
manufacturers not affiliated with cable operators. In connection with
the digital television transition, the cable industry and the consumer
electronics industry have engaged in ongoing inter-industry discussions
seeking to establish a cable ``plug and play'' standard. With the
standard in place, consumers are able to directly attach their DTV
receivers to cable systems and receive cable television service without
the need for a digital set top box. To receive cable service, consumers
would only need to use a point-of-deployment module (``POD''), now
marketed as ``CableCARD,'' that would fit into a slot built into the
television set. The POD acts as a key to unlock encrypted programming.
In October 2003, the FCC adopted initial ``plug and play'' and POD
requirements that were generally proposed by the cable and consumer
electronics industries. Compatibility Between Cable Systems and
Consumer Electronics Equipment, 18 FCC Rcd 20885 (2003). The current
rules, however, apply only to unidirectional programming (i.e.
programming coming from the cable headend) and does not apply to bi-
directional programming, such as Video On Demand and impulse pay-per-
view. The industries are currently working on a bi-directional plug and
play agreement. In the meantime, cable subscribers will still need a
digital set top box to access these types of advanced services.
We seek comment on whether cable subscribers have been required to
purchase CableCards in order to access digital broadcast television
signals. If so, we ask whether the Copyright Office's definition of
gross receipts should be amended to include subscriber revenue
generated through the lease of CableCards. How are cable operators
currently treating the lease of CableCards on their SOAs? What space
and block on the SOAs should be changed, or possibly added, to list
CableCard revenue?
Second Television Set Fees. Cable operator fees for service to
second television sets are included in a cable system's gross receipts
for the purposes of Section 111. 37 CFR 201.17(b)(1); Form SA 1-2,
General Instructions, p. v; Form SA 3, General Instructions, p. vi; see
also Compulsory License for Cable Systems, 43 FR 958, 959 (Jan. 5,
1978) (``The additional set fee is, we believe, clearly a payment for
basic secondary transmission service . . .'').
Copyright Owners state that some cable systems charge additional
fees for access to digital broadcast signals to a second television set
in the household. They note, for example, that Susquehanna's York,
Pennsylvania, cable system charges its customers $6.95 per month for
``Additional HDTV Terminals,'' even though it does not charge customers
for service to additional television sets receiving only an analog
service. See https://www.suscom.com/home/sites/pricing.php?city=york).
Copyright Owners contend, however, that it is
[[Page 54953]]
unclear whether this system, and others like it, are including fees for
service to additional sets that receive HDTV and other digital
broadcast signals within their calculation of gross receipts.
Copyright Owners thus ask the Copyright Office to clarify that, in
accordance with Section 201.17(b) of the rules, fees for service to
additional digital television sets or ``HDTV Terminals'' must be
included in a cable system's gross receipts. Copyright Owners also
recommend that the Copyright Office include in Space E of the cable SOA
specific reference to ``Digital and HDTV Additional Set Fees'' and
explain that such line item refers to fees charged for service to
additional television sets receiving HDTV or other digital broadcast
signals. We seek comment on the changes proposed by the Copyright
Owners. Moreover, some cable operators offer their subscribers in-home
digital networks where one digital set top box provides digital signals
to all sets in the household. We seek comment on whether the fees
associated with such a service, if any, should be included in the
operator's gross receipts calculation.
Conclusion
We hereby seek comment from the public on the issues identified
herein associated with the retransmission of digital broadcast signals
by cable systems under Section 111 of the Copyright Act. If there are
any additional issues concerning the treatment of digital television
retransmissions not discussed above, we encourage interested parties to
bring those matters to our attention.
Dated: September 14, 2006.
Marybeth Peters,
Register, U.S. Copyright Office.
[FR Doc. 06-7927 Filed 9-19-06; 8:45 am]
BILLING CODE 1410-30-S
