Television Market Modification; Statutory Implementation, 59635-59664 [2015-24999]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 80, Number 191 (Friday, October 2, 2015)]
[Rules and Regulations]
[Pages 59635-59664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24999]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 15-71; FCC 15-111]


Television Market Modification; Statutory Implementation

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts satellite television 
market modification rules to implement section 102 of the Satellite 
Television Extension and Localism Act Reauthorization (STELAR) Act of 
2014. The STELAR gives the Commission authority to modify a commercial 
television broadcast station's local television market for purposes of 
satellite carriage rights. In this document, the Commission revises the 
current cable market modification rule

[[Page 59636]]

to apply also to satellite carriage, while adding provisions to address 
the unique nature of satellite television service. The document also 
makes conforming and other minor changes to the cable market 
modification rules.

DATES: Effective November 2, 2015, except Sec. Sec.  76.59(a) and (b) 
which contain information collection requirements that have not been 
approved by OMB. The Commission will publish a document in the Federal 
Register announcing when OMB approval for this information collection 
has been received and these rules will take effect.

FOR FURTHER INFORMATION CONTACT: Evan Baranoff, Evan.Baranoff@fcc.gov, 
of the Media Bureau, Policy Division, (202) 418-2120. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an email to 
PRA@fcc.gov or contact Cathy Williams at (202) 418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 15-111, adopted and released on September 2, 2015. The 
full text of this document is available electronically via the FCC's 
Electronic Comment Filing System (ECFS) Web site at https://fjallfoss.fcc.gov/ecfs2/ or via the FCC's Electronic Document 
Management System (EDOCS) Web site at https://fjallfoss.fcc.gov/edocs_public/. (Documents will be available electronically in ASCII, 
Microsoft Word, and/or Adobe Acrobat.) This document is also available 
for public inspection and copying during regular business hours in the 
FCC Reference Information Center, Federal Communications Commission, 
445 12th Street SW., CY-A257, Washington, DC, 20554. The complete text 
may be purchased from the Commission's copy contractor, 445 12th Street 
SW., Room CY-B402, Washington, DC 20554. Alternative formats are 
available for people with disabilities (Braille, large print, 
electronic files, audio format), by sending an email to fcc504@fcc.gov 
or calling the Commission's Consumer and Governmental Affairs Bureau at 
(202) 418-0530 (voice), (202) 418-0432 (TTY).

I. Introduction

    1. In this Report and Order, the Commission adopts rules to enable 
commercial television stations, satellite carriers and cable operators 
to better serve the interests of their local communities. These rules 
implement an important provision in the Satellite Television Extension 
and Localism Act Reauthorization Act of 2014 (``STELAR'') to promote 
carriage of in-state and other relevant local television programming. 
Specifically, in the STELAR, Congress recognized that satellite 
subscribers in some communities across the country are not able to 
access broadcast stations in their own states via the local television 
packages offered by satellite carriers. This problem results from the 
way TV stations are defined as ``local'' for purposes of satellite 
carriage. In some cases, subscribers may be included in a local 
television programming market that is served exclusively, or almost 
exclusively, by television stations in a neighboring state. As a 
result, these subscribers are not receiving news, politics, sports, 
emergency information and other television programming relevant to 
their home state. The STELAR seeks to address this problem by changing 
the laws to provide for ``market modifications'' that add flexibility 
to the current definition of a local television programming market. 
Market modifications allow the Commission, upon request, to modify the 
local market assignment of a station to include such neighboring 
communities that are located in the same state as the station. As 
required by the STELAR, the Commission determines whether to grant a 
market modification based on consideration of five statutory factors 
that allow petitioners to demonstrate that they provide local service 
to the community. Significantly, in the STELAR, Congress included a 
factor requiring consideration of access to television stations that 
are located in the same state as the community considered for 
modification. Congress also added this factor to the existing market 
modification statutory factors applicable to cable operators. Our rules 
implement the STELAR to achieve the goal of better service for 
consumers. Finally, Congress recognized that satellite carriage of 
additional stations might be technically or economically infeasible in 
some circumstances. Accordingly, our rules implement this exception to 
the carriage requirements that would otherwise apply for modified 
markets. We recognize that the ability of the market modification rules 
to successfully address the problem of consumer access to in-state 
stations will depend in large part on broadcasters' willingness to 
grant retransmission consent to be carried in the new community and 
satellite carriers' technical ability to provide the in-state stations 
in the new community. Therefore, we strongly urge broadcasters and 
satellite carriers to work together to provide relief to consumers and 
achieve the goals of the STELAR (to promote access to in-state 
programming) in cases where carriage is technically feasible.
    2. In this Report and Order, we adopt satellite television market 
modification rules to implement section 102 of the STELAR.\1\ The 
STELAR amended the Communications Act (``Act'') and the Copyright Act 
to give the Commission authority to modify a commercial television 
broadcast station's local television market for purposes of satellite 
carriage rights.\2\ The Commission previously had such authority to 
modify markets only in the cable carriage context.\3\ With section 102 
of the STELAR, Congress provides regulatory parity in this regard in 
order to promote consumer access to in-state and other relevant 
television programming.\4\
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    \1\ The STELA Reauthorization Act of 2014 (STELAR), sec. 102, 
Pub. L. 113-200, 128 Stat. 2059, 2060-62 (2014) (codified at 47 
U.S.C. 338(l)). The STELAR was enacted on December 4, 2014 (H. R. 
5728, 113th Cong.). This proceeding implements STELAR section 102 
(titled ``Modification of television markets to further consumer 
access to relevant television programming''), 128 Stat. at 2060-62, 
and the related statutory copyright license provisions in STELAR 
sec. 204 (titled ``Market determinations''), 128 Stat. at 2067 
(codified at 17 U.S.C. 122(j)(2)(E)).
    \2\ STELAR secs. 102, 204, 128 Stat. at 2060-62, 2067. STELAR 
section 102(a) amends section 338 of the Act by adding a new 
paragraph (l), titled ``Market Determinations.'' 47 U.S.C. 338(l). 
STELAR section 102(b) also makes conforming amendments to the cable 
market modification provision at 47 U.S.C. 534(h)(1)(C). STELAR sec. 
204 amends the statutory copyright license for satellite carriage of 
``local'' stations in 17 U.S.C. 122 to cover market modifications in 
accordance with 47 U.S.C. 338(l). 17 U.S.C. 122(j)(2)(E). We note 
that, like the existing cable provision, the STELAR provision 
pertains only to ``commercial'' stations, thus excluding 
noncommercial stations from seeking market modification. See 47 
U.S.C. 338(l)(1).
    \3\ See 47 U.S.C. 534(h)(1)(C). This section was added to the 
Act by the Cable Television Consumer Protection and Competition Act 
of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992), as part of the 
cable must-carry/retransmission consent regime for carriage of local 
television stations. See also 47 CFR 76.59.
    \4\ See title of STELAR section 102, ``Modification of 
Television Markets to Further Consumer Access to Relevant Television 
Programming.'' See also 47 U.S.C. 534(h)(1)(C)(ii)(III) (directing 
the Commission to consider whether a market modification would 
``promote consumers' access to television broadcast station signals 
that originate in their State of residence''). There was no final 
Report issued to accompany the final version of the STELAR bill (H. 
R. 5728, 113th Cong.) as it was enacted. Because section 102 of the 
STELAR was added from the Senate predecessor bill (S. 2799, the 
Satellite Television Access and Viewer Rights Act (STAVRA)), we 
therefore look to the Senate Report No. 113-322 (dated December 12, 
2014) accompanying this predecessor bill for the relevant 
legislative history for this provision. See Report from the Senate 
Committee on Commerce, Science, and Transportation accompanying S. 
2799, 113th Cong., S. Rep. No. 113-322 (2014) (``Senate Commerce 
Committee Report'').
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    3. Section 102 of the STELAR, and the Commission's actions in this 
Report and

[[Page 59637]]

Order, seek to establish a market modification process for the 
satellite carriage context and, to the extent possible, address 
satellite subscribers' inability to receive in-state programming in 
certain areas, sometimes called ``orphan counties.'' \5\ In this Report 
and Order, consistent with Congress' intent that the Commission model 
the satellite market modification process on the current cable market 
modification process, we implement section 102 of the STELAR by 
revising the current cable market modification rule, section 76.59, to 
apply also to satellite carriage, while adding provisions to the rules 
to address the unique nature of satellite television service.\6\ In 
addition to authorizing satellite market modifications, section 102 of 
the STELAR makes certain conforming amendments to the cable market 
modification statutory provision \7\ and also directs the Commission to 
consider whether to make other changes to the cable market modification 
rules.\8\ Accordingly, as part of our implementation of the STELAR, we 
make conforming and other minor changes to the cable market 
modification rules.
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    \5\ The Commission has sometimes referred to the situation in 
which a county in one state is assigned to a neighboring state's 
local television market and, therefore, satellite subscribers 
residing in such county cannot receive some or any broadcast 
stations that originate in-state as the ``orphan county'' problem. 
See, e.g., Implementation of Section 203 of the Satellite Television 
Extension and Localism Act of 2010 (STELA), MB Docket No. 10-148, 
Report and Order and Order on Reconsideration, FCC 10-193, para. 48, 
75 FR 72968, Nov. 29, 2010 (STELA Significantly Viewed Report and 
Order). The inability of satellite subscribers located in ``orphan 
counties'' to access in-state programming has been the subject of 
some congressional interest. See, e.g., Orphan County 
Telecommunications Rights Act, H.R. 4635, 113th Cong. (2014); 
Colorado News, Emergency, Weather, and Sports Act, S. 2375, 113th 
Cong. (2014); Four Corners Television Access Act, H.R. 4469, 112th 
Cong. (2012); Letting Our Communities Access Local Television Act, 
S. 3894, 111th Cong. (2010); Local Television Freedom Act, H.R. 
3216, 111th Cong. (2009).
    \6\ See 47 CFR 76.59. As discussed herein, we revise section 
76.59 of our rules to apply to both cable systems and satellite 
carriers. See Final Rules. We note Congress' intent that the process 
established by the Commission under the section 102 of the STELAR be 
``modeled'' on the current cable market modification process. See 
Senate Commerce Committee Report at 10. However, the STELAR 
recognizes the inherent difference between cable and satellite 
television service with provisions specific to satellite. See 47 
U.S.C. 338(l)(3)(A), (5).
    \7\ See STELAR sec. 102(b) (amending 47 U.S.C. 
534(h)(1)(C)(ii)).
    \8\ STELAR section 102(d) directs the Commission to consider as 
part of this rulemaking whether the ``procedures for the filing and 
consideration of a written request under sections 338(l) and 
614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338(l); 
534(h)(1)(C)) fully effectuate the purposes of the amendments made 
by this section, and update what it considers to be a community for 
purposes of a modification of a market under section 338(l) or 
614(h)(1)(C) of the Communications Act of 1934.''
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    4. The following are among the key conclusions adopted in this 
Report and Order:
     We amend the cable market modification rule, section 76.59 
of our rules, to apply also to satellite market modifications, and 
amend the rule to reflect the STELAR provisions that uniquely apply to 
satellite carriers, such as an exception if the resulting carriage is 
``not technically and economically feasible.''
     We conclude that the involved commercial broadcast 
station, satellite carrier, and county government have standing to file 
a satellite market modification petition. Petitions must be filed in 
accordance with the procedures for filing Special Relief petitions in 
section 76.7 of our rules.
     We conclude that the new in-state factor,\9\ when 
applicable, favors any market modification that would promote 
consumers' access to an in-state station. When applicable, this in-
state factor serves as an enhancement, the particular weight of which 
depends on the strength of showing by the petitioner.
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    \9\ 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III) 
(``whether modifying the market of the television station would 
promote consumers' access to television broadcast station signals 
that originate in their State of residence'').
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     We conclude that the evidentiary requirements for cable 
market modifications will apply to satellite market modifications. In 
addition, to satisfy the new in-state factor when applicable, we 
require a petitioner to make a statement in its petition that the 
station is licensed to a community within the same state as the new 
community.
     We conclude that market modifications will be considered 
separately in the cable and satellite contexts and that, in the 
satellite context, market modifications will apply only to the specific 
stations, satellite carriers, and communities addressed in a particular 
market modification petition.
     We conclude that prior cable market modification 
determinations will not automatically apply in the satellite context, 
nor will such prior decisions be afforded a presumption; however, we 
note that we are required to consider historic carriage under the first 
statutory factor.
     We conclude that a television broadcast station that 
becomes eligible for mandatory satellite carriage by operation of a 
market modification may elect retransmission consent or mandatory 
carriage with respect to a satellite carrier within 30 days after the 
market determination. We conclude that a satellite carrier must 
commence carriage within 90 days after receiving the station's request 
for carriage.
     We conclude that it is per se not technically and 
economically feasible for a satellite carrier to provide a station to a 
new community that is outside of the relevant spot beam on which that 
station is currently carried.
     We conclude that, if a satellite carrier can provide the 
station at issue in a market modification request to only part of a new 
community, then it must do so.
     We conclude that the satellite carrier has the burden to 
demonstrate that the resulting carriage from a market modification is 
technically and economically infeasible.
     We will allow satellite carriers to demonstrate spot beam 
coverage infeasibility by providing a detailed certification under 
penalty of perjury.
     We conclude that a satellite carrier must raise any 
technical or economic impediments either in the market modification 
proceeding or prior to such proceeding in response to a prospective 
petitioner's inquiry about feasibility of carriage resulting from a 
contemplated market modification.
     We establish a process that will allow a prospective 
petitioner to obtain a certification from a satellite carrier about 
whether or not (and to what extent) it is technically and economically 
feasible for the carrier to provide the station to a new community. We 
will not grant a market modification petition if such grant could not 
create a new carriage obligation for the carrier at that time due to a 
finding of technical or economic infeasibility.
     We recognize that there may be other bases than spot beam 
coverage for a carrier to assert that carriage would be technically or 
economically infeasible and will review these assertions on a case-by-
case basis.
     We define a ``satellite community'' as a county for 
purposes of a satellite market modification. We retain our existing 
definition of a ``cable community'' for purposes of a cable market 
modification.

II. Background

    5. The STELAR, enacted December 4, 2014, is the latest in a series 
of statutes that have amended the Communications Act and Copyright Act 
to set the parameters for the satellite carriage of television 
broadcast stations. The 1988 Satellite Home Viewer Act (SHVA) first 
established a ``distant'' statutory copyright license to enable 
satellite

[[Page 59638]]

carriers to offer subscribers who could not receive the over-the-air 
signal of a broadcast station access to broadcast programming via 
satellite.\10\ The 1999 Satellite Home Viewer Improvement Act (SHVIA) 
established a ``local'' statutory copyright license and expanded 
satellite carriers' ability to offer broadcast television signals 
directly to subscribers by permitting carriers to offer ``local'' 
broadcast signals.\11\ The 2004 Satellite Home Viewer Extension and 
Reauthorization Act (SHVERA) reauthorized the distant signal statutory 
copyright license until December 31, 2009 and expanded that license to 
allow satellite carriers to carry ``significantly viewed'' 
stations.\12\ The 2010 Satellite Television Extension and Localism Act 
(STELA) extended the distant signal statutory copyright license through 
December 31, 2014,\13\ moved the significantly viewed station copyright 
provisions to the local statutory copyright license (which does not 
expire), and revised the ``significantly viewed'' provisions to 
facilitate satellite carrier use of that option.\14\ With the STELAR, 
Congress extended the distant signal statutory copyright license for 
another five years, through December 31, 2019, and, among other things, 
authorized market modification in the satellite carriage context and 
revised the market modification provisions for cable to promote parity 
for satellite and cable subscribers and competition between satellite 
and cable operators.\15\
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    \10\ Satellite Home Viewer Act of 1988 (SHVA), Public Law 100-
667, 102 Stat. 3935, Title II (1988); 17 U.S.C. 119 (distant 
statutory copyright license). In addition to allowing satellite 
carriers to retransmit television signals of distant network 
stations to ``unserved'' subscriber households, the SHVA also 
permitted satellite carriers to retransmit distant superstations 
(non-network stations) to any subscriber household. See 17 U.S.C. 
119(d)(2) (defining ``network station''), (d)(9) (defining ``non-
network station,'' previously ``superstation'') and (d)(10) 
(defining ``unserved household''). The 1994 Satellite Home Viewer 
Act reauthorized the distant statutory copyright license for five 
years and made other changes to the distant statutory copyright 
license but did not amend the Communications Act or otherwise alter 
satellite carriage rights. Satellite Home Viewer Act of 1994, Public 
Law 103-369, 108 Stat. 3477 (1994). Each successive statute in the 
SHVA progeny has reauthorized the distant statutory copyright 
license.
    \11\ Satellite Home Viewer Improvement Act of 1999 (SHVIA), 
Public Law 106-113, 113 Stat. 1501 (1999); 17 U.S.C. 122 (local 
statutory copyright license). The local statutory copyright license 
makes no distinction between network and non-network signals or 
served or unserved households. See id. Local stations may elect 
mandatory carriage or carriage pursuant to retransmission consent. 
47 U.S.C. 325, 338. See 47 CFR 76.66(c). Unlike the distant license, 
the local statutory copyright license does not expire.
    \12\ Satellite Home Viewer Extension and Reauthorization Act of 
2004 (SHVERA), Public Law 108-447, 118 Stat 2809 (2004). 
Significantly viewed stations are television broadcast stations that 
the Commission has determined have sufficient over-the-air (i.e., 
non-cable and non-satellite) viewing to be treated as local stations 
with respect to a particular satellite community in another market, 
thus, allowing them to be carried by the satellite carrier in that 
community in the other market. For copyright purposes, significantly 
viewed status entitles satellite carriers to carry the out-of-market 
but significantly viewed station with the reduced copyright payment 
obligations applicable to local (in-market) stations. See 17 U.S.C. 
122(a)(2). Satellite carriers are not required to carry out-of-
market significantly viewed stations. If they do carry such 
significantly viewed stations, retransmission consent is required. 
See 47 U.S.C. 340(d).
    \13\ The Satellite Television Extension and Localism Act of 2010 
(STELA), Public Law 111-175, 124 Stat. 1218, 1245 (2010). Congress 
passed four short-term extensions of the distant signal statutory 
copyright license (on December 19, 2009, March 2, March 26 and April 
15, 2010) before passing the STELA to reauthorize the distant signal 
statutory copyright license for a full five years, until December 
31, 2014. STELA sec. 107(a). See Department of Defense 
Appropriations Act, 2010, sec. 1003(b), Public Law 111-118, 123 Stat 
3409, 3469 (2009) (extending distant license until February 28, 
2010); Temporary Extension Act of 2010, sec. 10, Public Law 111-144, 
124 Stat 42, 47 (2010) (extending license until March 28, 2010); 
Satellite Television Extension Act of 2010, Public Law 111-151, 124 
Stat 1027 (2010) (extending license until April 30, 2010); 
Continuing Extension Act of 2010, sec. 9, Public Law 111-157, 124 
Stat 1116 (2010) (extending license until May 31, 2010).
    \14\ As noted, the STELA reauthorized the statutory copyright 
license for satellite carriage of significantly viewed signals and 
moved that license from the distant signal statutory copyright 
license provisions in 17 U.S.C. 119(a)(3) to the local signal 
statutory copyright license provisions in 17 U.S.C. 122(a)(2). STELA 
sec. 103. By doing so, Congress defined significantly viewed signals 
as another type of local signal, rather than as an exception to 
distant signal status. The move to the local license also meant that 
the significantly viewed signal license would not expire. STELA sec. 
107(a). In the STELA Significantly Viewed Report and Order, the 
Commission revised its satellite television significantly viewed 
rules to facilitate satellite carriage of significantly viewed 
stations and thereby provide satellite subscribers with greater 
choice of programming and to improve parity and competition between 
satellite and cable carriage of broadcast stations. STELA 
Significantly Viewed Report and Order, para. 55.
    \15\ In section 102 of the STELAR, Congress intended to ``create 
a television market modification process for satellite carriers 
similar to the one already used for cable operators.'' Senate 
Commerce Committee Report at 6. The STELAR also makes a variety of 
reforms to the video programming distribution laws and regulations 
that are not relevant to our implementation here of this section.
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    6. Section 338 of the Communications Act authorizes satellite 
carriage of local broadcast stations into their local markets, which is 
called ``local-into-local'' service.\16\ Specifically, a satellite 
carrier provides ``local-into-local'' service when it retransmits a 
local television signal back into the local market of that television 
station for reception by subscribers.\17\ Generally, a television 
station's ``local market'' is defined by the Designated Market Area 
(DMA) in which it is located, as determined by the Nielsen Company 
(Nielsen).\18\ DMAs describe each television market in terms of a group 
of counties and are defined by Nielsen based on measured viewing 
patterns.\19\ The United States is divided into 210 DMAs.\20\ Unlike 
cable operators, satellite carriers are not required to carry local 
broadcast television stations. However, if a satellite carrier chooses 
to carry a local station in a particular DMA in reliance on the 
statutory copyright license, it generally must carry any qualified 
local station in the same DMA that makes a timely election for 
retransmission consent or mandatory carriage.\21\ This is commonly 
referred to as the ``carry one, carry all'' requirement. If a 
broadcaster elects retransmission consent, the satellite carrier and 
broadcaster negotiate the terms of a retransmission consent agreement. 
With respect to those stations electing mandatory carriage, satellite 
carriers are generally not required to carry a station if the station's 
programming ``substantially duplicates'' \22\ that of another station

[[Page 59639]]

carried by the satellite carrier in the DMA,\23\ and satellite carriers 
are not required to carry more than one affiliate station of a 
particular network in a DMA (even if the affiliates do not 
substantially duplicate their programming), unless the stations are 
licensed to communities in different states.\24\ Satellite carriers are 
also not required to carry an otherwise qualified station if the 
station fails to provide a good quality signal to the satellite 
carrier's local receive facility.\25\
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    \16\ See 47 U.S.C. 338(a)(1).
    \17\ 47 CFR 76.66(a)(6).
    \18\ See 17 U.S.C. 122(j)(2); 47 CFR 76.66(e) (defining a 
television broadcast station's local market for purposes of 
satellite carriage as the DMA in which the station is located). We 
note that a commercial television broadcast station's local market 
for purposes of cable carriage is also generally defined as the DMA 
in which the station is located. See 47 U.S.C. 534(h)(1)(C); 47 CFR 
76.55(e)(2).
    \19\ The Nielsen Company delineates television markets by 
assigning each U.S. county (except for certain counties in Alaska) 
to one market based on measured viewing patterns both off-air and 
via MVPD distribution. Generally, each U.S. county is assigned 
exclusively to the market whose stations receive the preponderance 
of the audience in that county. However, in a few cases where a 
county is large and viewing patterns differ significantly between 
parts of the county, a portion of the county is assigned to one 
television market and another portion of the county is assigned to 
another market. Several counties in Alaska are not assigned to any 
DMA. Retransmission Consent and Exclusivity Rules: Report to 
Congress Pursuant to Section 208 of the Satellite Home Viewer 
Extension and Reauthorization Act of 2004, 2005 WL 2206070, at para. 
53, n.177 (Sept. 8, 2005) (SHVERA Report); see also Nielsen Media 
Research, Glossary of Media Terms, at https://www.nielsenmedia.com/glossary/.
    \20\ DMAs frequently cross state lines and thus may include 
counties from multiple states.
    \21\ See 17 U.S.C. 122; 47 U.S.C. 338(a)(1); 47 CFR 76.66(b)(1). 
DISH Network currently provides local service to all 210 DMAs, and 
DIRECTV currently provides local service to 198 DMAs, according to 
the most recent Local Network Channel Broadcast Reports filed by 
these satellite carriers. 47 U.S.C.A. 338 Note. These annual reports 
were initially required for five years by section 305 of the STELA 
and were continued to be required for another five years by section 
108 of the STELAR.
    \22\ ``A commercial television station substantially duplicates 
the programming of another commercial television station if it 
simultaneously broadcasts the identical programming of another 
station for more than 50 percent of the broadcast week.'' 47 CFR 
76.66(h)(6). ``A noncommercial television station substantially 
duplicates the programming of another noncommercial station if it 
simultaneously broadcasts the same programming as another 
noncommercial station for more than 50 percent of prime time, as 
defined by [47 CFR] 76.5(n), and more than 50 percent outside of 
prime time over a three month period, provided, however, that after 
three noncommercial television stations are carried, the test of 
duplication shall be whether more than 50 percent of prime time 
programming and more than 50 percent outside of prime time 
programming is duplicative on a non-simultaneous basis.'' 47 CFR 
76.66(h)(7).
    \23\ 47 U.S.C. 338(c)(1); 47 CFR 76.66(h)(1). ``A satellite 
carrier may select which duplicating signal in a market it shall 
carry.'' 47 CFR 76.66(h)(2).
    \24\ 47 U.S.C. 338(c)(1); 47 CFR 76.66(h)(1). ``A satellite 
carrier may select which network affiliate in a market it shall 
carry.'' 47 CFR 76.66(h)(3). However, a satellite carrier must carry 
network affiliated television stations licensed to different states, 
but located in the same market, even if the stations meet the 
definition of substantial duplication under the Commission's rules. 
See Implementation of the Satellite Home Viewer Improvement Act of 
1999: Broadcast Signal Carriage Issues, Retransmission Consent 
Issues, CS Docket Nos. 00-96 and 99-363, Report and Order, FCC 00-
417, para. 80, 66 FR 7410, Jan. 23, 2001 (DBS Broadcast Carriage 
Report and Order). If two stations located in different states (but 
within the same local market) duplicate each other, but are not 
network affiliates, the satellite carrier only has to carry one. Id.
    \25\ 47 U.S.C. 338(b)(1); 47 CFR 76.66(g)(1). A television 
station asserting its right to carriage is required to bear the 
costs associated with delivering a good quality signal to the 
designated local-receive-facility of the satellite carrier or to 
another facility that is acceptable to at least one-half the 
stations asserting the right to carriage in the local market. Id.
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    7. STELAR section 102, which adds section 338(l) of the Act, 
creates a satellite market modification regime very similar to that in 
place for cable, while adding provisions to address the unique nature 
of satellite television service.\26\ Market modification, which has 
been available in the cable carriage context since 1992,\27\ will allow 
the Commission to modify the local television market of a commercial 
television broadcast station to enable those broadcasters and satellite 
carriers to better serve the interests of local communities.\28\ Market 
modification provides a means to avoid rigid adherence to DMA 
designations and to promote consumer access to in-state and other 
relevant television programming.\29\ To better reflect market realities 
and effectuate these purposes, section 338(l), like the corresponding 
cable provision in section 614(h)(1)(C), permits the Commission to add 
communities to, or delete communities from, a station's local 
television market following a written request.\30\ Furthermore, as in 
the cable carriage context, the Commission may determine that 
particular communities are part of more than one television market.\31\ 
As in the cable carriage context, when the Commission modifies a 
station's market to add a community for purposes of carriage rights, 
the station is considered local and is covered by the local statutory 
copyright license and may assert mandatory carriage (or pursue 
retransmission consent) by the applicable satellite carrier in the 
local market.\32\ Conversely, if the Commission modifies a station's 
market to delete a community, the station is considered ``distant'' and 
loses its right to assert mandatory carriage (or retransmission 
consent) on the applicable satellite carrier in the local market.\33\ 
We note that, in the cable carriage context, market modifications 
pertain to individual stations in specific cable communities and apply 
only to the particular cable system named in the petition.\34\
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    \26\ See 47 U.S.C. 338(l), 534(h)(1)(C).
    \27\ See 47 CFR 76.59.
    \28\ See In-State Broadcast Programming: Report to Congress 
Pursuant to Section 304 of the Satellite Television Extension and 
Localism Act of 2010, MB Docket No. 10-238, Report, DA 11-1454, 
paras. 55-59 (MB rel. Aug. 29, 2011) (In-State Programming Report) 
(stating that ``market modifications could potentially address 
special situations in underserved areas and facilitate greater 
access to local information''). See also Broadcast Localism, MB 
Docket No. 04-233, Report on Broadcast Localism and Notice of 
Proposed Rulemaking, FCC 07-218, paras. 49-50, 73 FR 8255, Feb. 13, 
2008 (Broadcast Localism Report).
    \29\ Broadcast Localism Report, para. 50. The Commission has 
observed that, in some cases, general reliance on DMAs to define a 
station's market may not provide viewers with the most local 
programming. Id. at paras. 49-50. Certain DMAs cross state borders 
and, in such cases, current Commission rules sometimes require 
carriage of the broadcast signal of an out-of-state station rather 
than that of an in-state station. Id. The Commission has observed 
that such cases may weaken localism, since viewers are often more 
likely to receive information of local interest and relevance--
particularly local weather and other emergency information and local 
news and electoral and public affairs--from a station located in the 
state in which they live. Id.
    \30\ 47 U.S.C. 338(l)(1), 534(h)(1)(C).
    \31\ 47 U.S.C. 338(l)(2)(A).
    \32\ Section 204 of the STELAR amends the local statutory 
copyright license in 17 U.S.C. 122 to the effect that when the 
Commission modifies a station's market for purposes of satellite 
carriage rights, the station is considered local and is covered by 
the local statutory copyright license. See 17 U.S.C. 122(j)(2)(E) 
(as amended by STELAR sec. 204); 47 U.S.C. 338. See also 17 
U.S.C.U.S.C. 111(f)(4) (defining ``local service area of a primary 
transmitter'' for cable carriage copyright purposes); 47 U.S.C. 
534(h)(1)(C).
    \33\ See id.
    \34\ See Implementation of the Cable Television Consumer 
Protection and Competition Act of 1992, Broadcast Signal Carriage 
Issues, MM Docket No. 92-259, Report and Order, FCC 93-144, para. 
47, 58 FR 17350, April 2, 1993 (Must Carry Order) (stating that 
``the statute is intended to permit the modification of a station's 
market to reflect its individual situation''); 47 CFR 76.59.
---------------------------------------------------------------------------

    8. Section 338(l) states that, in ruling on requests for market 
modifications for purposes of satellite carriage, the Commission must 
afford particular attention to the value of localism by taking into 
account the following five factors:
    (1) Whether the station, or other stations located in the same 
area--(a) have been historically carried on the cable system or systems 
within such community; and (b) have been historically carried on the 
satellite carrier or carriers serving such community;
    (2) Whether the television station provides coverage or other local 
service to such community;
    (3) Whether modifying the local market of the television station 
would promote consumers' access to television broadcast station signals 
that originate in their State of residence;
    (4) Whether any other television station that is eligible to be 
carried by a satellite carrier in such community in fulfillment of the 
requirements of this section provides news coverage of issues of 
concern to such community or provides carriage or coverage of sporting 
and other events of interest to the community; and
    (5) Evidence of viewing patterns in households that subscribe and 
do not subscribe to the services offered by multichannel video 
programming distributors within the areas served by such multichannel 
video programming distributors in such community.\35\
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    \35\ 47 U.S.C. 338(l)(2)(B)(i) through (v) (discussed in section 
III.B. below).

These statutory factors largely mirror those originally set forth for 
cable in section 614(h)(1)(C)(ii) of the Act. To the extent the factors 
differ from the previous factors applicable to cable, the STELAR 
section 102 makes conforming changes to the cable factors.\36\ These 
include adding a fifth factor (inserted as factor number three) to 
section 614(h)(1)(C)(ii) to ``promote consumers' access to television 
broadcast station signals that originate in their State of residence.'' 
\37\ Thus, STELAR creates parallel factors for satellite and cable.\38\
---------------------------------------------------------------------------

    \36\ See 47 U.S.C. 534(h)(1)(C)(ii), as amended by STELAR sec. 
102(b).
    \37\ See 47 U.S.C. 534(h)(1)(C)(ii)(III) (``whether modifying 
the market of the television station would promote consumers' access 
to television broadcast station signals that originate in their 
State of residence'').
    \38\ Shortly after our final rules are published in the Federal 
Register, we will implement section 102(c) of the STELAR by creating 
a consumer guide that will explain the market modification rules and 
procedures as revised and adopted in this proceeding, and by posting 
the guide on the Commission's Web site. Section 102(c) requires the 
Commission to ``make information available to consumers on its Web 
site that explains the market modification process.'' STELAR 102(c); 
47 U.S.C.A. 338 Note. Such information must include: ``(1) who may 
petition to include additional communities within, or exclude 
communities from, a--(A) local market (as defined in section 122(j) 
of title 17, United States Code); or (B) television market (as 
determined under section 614(h)(1)(C) of the Communications Act of 
1934 (47 U.S.C. 534(h)(1)(C))); and (2) the factors that the 
Commission takes into account when responding to a petition 
described in paragraph (1).'' See 47 U.S.C. 338(l)(2)(B)(i) through 
(v); 47 U.S.C. 534(h)(1)(C)(ii)(I) through (V).

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[[Page 59640]]

    9. The STELAR, however, provides a unique exception applicable only 
---------------------------------------------------------------------------
in the satellite context, providing that a market modification:

shall not create additional carriage obligations for a satellite 
carrier if it is not technically and economically feasible for such 
carrier to accomplish such carriage by means of its satellites in 
operation at the time of the determination.\39\
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    \39\ 47 U.S.C. 338(l)(3)(A) (discussed in section III.D. below).

    Also unique to satellite, the STELAR provides that a market 
modification will not have ``any effect on the eligibility of 
households in the community affected by such modification to receive 
distant signals pursuant to section 339 [of the Act].'' \40\ Like the 
cable provision, section 338(l) gives the Commission 120 days to act on 
a request for market modification and does not allow a carrier to 
delete from carriage the signal of a commercial television station 
during the pendency of any market modification proceeding.\41\
---------------------------------------------------------------------------

    \40\ 47 U.S.C. 338(l)(5) (discussed in section III.E. below). 
Section 339 of the Act provides for the satellite carriage of 
distant stations under certain conditions. See 47 U.S.C. 339.
    \41\ 47 U.S.C. 338(l)(3)(B), (4).
---------------------------------------------------------------------------

    10. On March 26, 2015, we began this proceeding by issuing a Notice 
of Proposed Rulemaking (NPRM).\42\ We received 12 comments and five 
reply comments in response. With this Report and Order, we satisfy the 
STELAR's mandate that the Commission adopt final rules in this 
proceeding on or before September 4, 2015.\43\
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    \42\ Amendment to the Commission's Rules Concerning Market 
Modification; Implementation of Section 102 of the STELA 
Reauthorization Act of 2014; MB Docket No. 15-71, Notice of Proposed 
Rulemaking, FCC 15-34, 80 FR 19594, Apr. 13, 2015 (NPRM).
    \43\ STELAR sec. 102(d)(1).
---------------------------------------------------------------------------

III. Discussion

    11. Consistent with the STELAR's goal of regulatory parity, we 
largely model the satellite market modification process on the existing 
process for cable and adopt our proposal to amend section 76.59 of our 
rules--the current cable market modification rule--to apply in both the 
cable and satellite contexts.\44\ We also adopt our proposal to amend 
section 76.59 to reflect the STELAR provisions that apply uniquely to 
satellite carriers, such as affording carriers with an exception if the 
resulting carriage is ``not technically and economically feasible .'' 
Finally, we define a ``satellite community'' for purposes of market 
modification and retain our existing definition of a ``cable 
community.''
---------------------------------------------------------------------------

    \44\ See 47 CFR 76.59.
---------------------------------------------------------------------------

A. Standing and Procedures To Request Market Modification

    12. We conclude that the involved broadcaster, satellite carrier 
and county government may file a satellite market modification 
petition.\45\ We choose a slightly modified alternative to the 
procedure proposed in the NPRM,\46\ and deviate from the cable rule 
which allows only the involved broadcaster and cable operator to file 
cable petitions, in order to more fully effectuate the core purpose of 
this provision of the STELAR to promote consumer access to in-state and 
other relevant programming.
---------------------------------------------------------------------------

    \45\ See 47 CFR 76.59(a).
    \46\ NPRM, para. 8.
---------------------------------------------------------------------------

    13. Section 338(l)(1) of the Act permits the Commission to modify a 
local television market ``following a written request,'' but does not 
specify the appropriate party to make such requests.\47\ The 
corresponding cable statutory provision in section 614(h)(1)(C)(i) of 
the Act contains nearly identical language in this regard.\48\ In 
interpreting the cable provision, the Commission concluded that the 
involved broadcaster and cable operator are the only appropriate 
parties to file market modification requests.\49\ Section 102(d) of the 
STELAR, however, directs the Commission to ensure in both the cable and 
satellite contexts that ``procedures for the filing and consideration 
of a written request . . . fully effectuate the purposes of the 
amendments made by this section.'' \50\ In the NPRM, consistent with 
the cable rule, we proposed to allow only the involved commercial 
broadcast station or the satellite carrier to file a satellite market 
modification request because only these entities have carriage rights 
or obligations at stake.\51\ The NPRM sought comment on any alternative 
approaches and observed that some local governments had previously 
sought the ability to petition for market modifications on behalf of 
their citizens.\52\ The NPRM tentatively concluded to limit the 
participation of local governments and individuals to filing comments 
in support of, or in opposition to, particular market modification 
requests and sought comment on this tentative conclusion.\53\ 
Broadcasters and the satellite carriers supported the NPRM's proposal, 
asserting that only the involved station or satellite carrier ``have 
rights or obligations that are directly affected by a market 
modification'' and therefore only such entities should have standing to 
file requests to modify these rights or obligations.\54\ Some 
commenters, however, advocate that county governments should be allowed 
to

[[Page 59641]]

petition for market modifications on behalf of their citizens.\55\
---------------------------------------------------------------------------

    \47\ 47 U.S.C. 338(l)(1).
    \48\ 47 U.S.C. 338(l)(1) (``Following a written request, the 
Commission may, with respect to a particular commercial television 
broadcast station, include additional communities within its local 
market or exclude communities from such station's local market to 
better effectuate the purposes of this section.) See 47 U.S.C. 
534(h)(1)(C)(i) (``For purposes of this section, a broadcasting 
station's market shall be determined by the Commission by regulation 
or order using, where available, commercial publications which 
delineate television markets based on viewing patterns, except that, 
following a written request, the Commission may, with respect to a 
particular television broadcast station, include additional 
communities within its television market or exclude communities from 
such station's television market to better effectuate the purposes 
of this section. . . .'').
    \49\ See Must Carry Order, para. 46; John Wiegand v. Post 
Newsweek Pacifica Cable, Inc., CSR 4179-M, Memorandum Opinion and 
Order, FCC 01-239 (rel. Aug. 24, 2001) (Wiegand v. Post Newsweek) 
(limiting standing in the must carry and market modification 
contexts to the affected broadcaster or cable operator). The 
Commission reasoned that ``the fact that Congress made must carry an 
elective choice for broadcasters diminishes the argument that third 
parties have standing to demand carriage of a broadcast station on a 
cable system. A subscriber's ability to receive the benefits 
provided from must carry is predicated upon a station's election to 
exercise its rights under the statute. No statute or Commission rule 
requires a broadcaster to allow its signal to be carried on a local 
cable system because another party wishes to view it. Instead, 
broadcasters are given a choice whether to demand carriage under 
must carry, to negotiate carriage under the retransmission consent 
provisions, or not to be carried on a particular cable system at 
all.'' See Wiegand v. Post Newsweek, para. 10.
    \50\ STELAR sec. 102(d)(2) directs the Commission to consider as 
part of this rulemaking whether the ``procedures for the filing and 
consideration of a written request under sections 338(l) and 
614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338(l); 
534(h)(1)(C)) fully effectuate the purposes of the amendments made 
by this section.'' See 47 U.S.C.A. 338 Note.
    \51\ NPRM, para. 8.
    \52\ NPRM, para. 9. See In-State Programming Report, para. 58.
    \53\ Id. The NPRM also asked ``how else satellite subscribers or 
their representatives can meaningfully advocate for the receipt of 
in-state programming via satellite.'' Id.
    \54\ DIRECTV Comments at 7, n.20; DISH Comments at 3; NAB 
Comments at 3-4. See NPRM, para. 8.
    \55\ See Letter from Michael F. Bennet, U.S. Senator, Colo.; 
Cory Gardner, U.S. Senator, Colo.; and Scott Tipton, U.S. 
Representative, Colo. to Tom Wheeler, Chairman, FCC, dated April 14, 
2015 at (``Sen. Bennet et al. Letter''). See also Letter from Mike 
D. Rogers, U.S. Representative, Ala.; Robert Aderholt, U.S. 
Representative, Ala. to Tom Wheeler, Chairman, FCC dated May 12, 
2015 at 1 (``Rep. Rogers et al. Letter'') (seeking role in market 
modification process for Counties, Parishes or the equivalent 
political subdivisions). Although no local government comments were 
filed in this docket, commenters in the docket relating to the STELA 
In-State Programming Report advocated to allow consumer concerns to 
be addressed more directly by permitting local governments to 
petition for market modifications on behalf of their citizens. See 
In-State Programming Report, para. 58.
---------------------------------------------------------------------------

    14. Upon further consideration pursuant to section 102(d) of the 
STELAR, we conclude that we will better effectuate the purposes of the 
STELAR (to promote consumer access to in-state programming) by also 
permitting a county governmental entity (such as a county board, 
council, commission or other equivalent subdivision) to file a 
satellite market modification petition, as advocated by some 
commenters.\56\ Allowing a county government to petition for market 
modification for its community is appropriate given our decision to 
define a satellite community on a county basis.\57\ We also are mindful 
of the record in the In-State Programming Report proceeding, which 
reflects numerous examples of counties in which consumers have little 
or no access to in-state broadcast stations.\58\ We acknowledge that 
station carriage relies in part on business decisions involving 
broadcasters and satellite carriers and that without the willing 
participation of the affected broadcaster, modifying the market of a 
particular television station, in itself, would not result in consumer 
access to that station.\59\ However, by allowing a county government to 
file a satellite market modification on behalf of its residents, we 
seek to empower orphan counties to eliminate certain legal barriers 
which may have deprived local residents of the cultural, sports, 
political and local news relevant to the state in which they 
reside.\60\ We recognize that our rules require petitioners to provide 
specific evidence to demonstrate the five statutory factors and that 
much of this information may not be easily obtained by county 
governments.\61\ To avoid dismissal based on a failure to meet our 
specific evidentiary requirements, we strongly encourage county 
government petitioners to enlist the aid and cooperation of the station 
they wish to bring to their county. Moreover, to the extent the 
involved station opposes carriage in the county, a county government 
may not want to go through the time and expense of filing a petition to 
expand such station's market to include its county.
---------------------------------------------------------------------------

    \56\ See id.
    \57\ See infra section III.F. (Definition of Community). We note 
that a county (or its political equivalent) was the only 
jurisdictional definition for which commenters in this proceeding 
sought the ability to file market modification petitions.
    \58\ See In-State Programming Report, at App. F (Case Studies) 
(discussing 35 counties in 13 DMAs with little or no access to in-
state broadcast stations via satellite service). The In-State 
Programming Report, also described the impact on consumers in these 
orphan counties. See id. at para. 18 (``Because the DMA may include 
one or more counties located in a different state from that of the 
DMA's principal city or cities where most of the local television 
stations originate, some consumers through their MVPD, may receive 
only out-of-state stations and thereby lack access to in-state 
programming, including political and election coverage, public 
affairs programming, and weather and other emergency information. 
Consumers from disparate areas throughout the nation comment that 
they are deprived of vital information that is overwhelmingly 
available to other households across the country. Consumers in 
affected areas typically do not have access to programming content 
from in-state local television stations that cover the issues 
emanating from their state capitals and, as a result, believe they 
are less well served by the broadcast programming they are able to 
receive. Without such state-focused information and programming 
content, consumers express frustration at their inability to make 
informed election and other civic decisions. Additionally, some 
consumers indicate that they would prefer television advertising 
that supports their state economies rather than the out-of-state 
advertisements that air on the in-market stations they receive. 
Commenters opine that their inability to access in-state advertising 
has a continuing negative impact on their communities through the 
loss of revenue.''). We also note that consumers have raised similar 
concerns in the record for the Commission's pending Report to 
Congress on DMAs required by section 109 of the STELAR. See, e.g., 
Leroy Axtell Comments (seeking in-state stations for Fairfield 
County, CT); Spencer Karter Comments (seeking in-state stations for 
Greenville County, SC); Richard Bolt Comments in MB Docket No. 15-43 
(filed May 15, 2015) (seeking in-state stations for Garrett County, 
MD); Kyle Ramie Comments in MB Docket No. 15-43 (filed May 6, 2015), 
Timothy Brastow Comments in MB Docket No. 15-43 (filed Mar. 24, 
2015) and Jerome Gibbs Comments in MB Docket No. 15-43 (filed Jun. 
2, 2015) (each seeking in-state stations for Bristol County, MA).
    \59\ NPRM, para. 9. See Wiegand v. Post Newsweek, para. 
11(``[t]he granting of a request to expand the market of a 
television station merely allows a broadcaster the option to seek 
must carry status on cable systems added to its market. A 
broadcaster is not required to seek carriage of its signal on all of 
the cable systems in its market.''). Likewise, in the satellite 
context, the granting of a request to expand the market of a 
television station merely allows a broadcaster the option to seek 
mandatory carriage with respect to the new community, but does not 
require the broadcaster grant retransmission consent for it to be 
carried in the new community. Thus, our decision here about standing 
to file a satellite market modification should not be construed as 
affording a county government a right to demand carriage of a 
particular station via satellite in its county. Notwithstanding the 
grant of a petition to modify a market, a local broadcast station 
that elects retransmission consent with respect to the new community 
may not be carried without its express written consent. See 47 
U.S.C. 325(b)(1) (``No cable system or other multichannel video 
programming distributor shall retransmit the signal of a 
broadcasting station, or any part thereof, except (A) with the 
express authority of the originating station''); 47 CFR 76.66.
    \60\ See Sen. Bennet et al. Letter at 1 (seeking to ``facilitate 
the ability of a community to voice its own opinion about the local 
television content that it would prefer to access''). We also note 
that local government and consumer comments in a market modification 
proceeding can help demonstrate a station's nexus to the community 
at issue. See Sen. Bennet et al. Letter at 1; Rep. Rogers et al. 
Letter at 1 (seeking to ``allow Counties, Parishes or the equivalent 
political subdivisions to make public comments about the television 
content their community prefers.''). For example, the Commission can 
consider consumer comments pursuant to the second statutory factor 
relating to a station's local service to a community. See 47 U.S.C. 
338(l)(2)(B)(ii), 534(h)(1)(C)(ii)(II); Tennessee Broadcasting 
Partners, CSR 7596-A, Memorandum Opinion and Order, DA 08-542, 
paras. 22-37 (MB rel. Mar. 10, 2008) (considering statements made by 
local officials).
    \61\ See infra at para. 20 (Evidentiary Requirements). For 
example, a petitioner must provide contour maps and published 
audience data for the involved broadcast station.
---------------------------------------------------------------------------

    15. We acknowledge that we are implementing a procedural aspect of 
section 338(l)(1) in a manner that differs from our implementation of 
section 614(h)(1)(C)(i), despite the nearly identical language of the 
two provisions.\62\ We find that a different procedure is appropriate 
to implement STELAR's directive in section 102(d) for purposes of 
filing a market modification petition in the satellite context. 
Significantly, the record and case studies in the 2011 In-State 
Programming Report show that the problem of subscriber access to in-
state stations disproportionately affects satellite subscribers.\63\ 
Notably, the Commission frequently receives satellite consumer calls 
about this problem and other complaints about not receiving the 
consumers' desired local station via satellite, while cable consumers 
rarely complain about this issue.\64\ This may be a product of the 
localized nature of cable systems as opposed to the national

[[Page 59642]]

nature of satellite service.\65\ The remote geographic location of 
orphan counties also contributes to the disproportionate impact on 
satellite subscribers. In the In-State Programming Report record, 
DIRECTV observed that ``[b]ecause many orphan counties tend to be 
isolated, their residents tend to rely more on satellite than on cable 
for access to television programming.'' \66\ We also observe that the 
cable market modification process has worked well for more than 20 
years and there is nothing in the record to suggest that changing the 
cable petition process to include local governments is necessary to 
effectuate the goals of the STELAR (to promote access to in-state 
programming) at this time.
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    \62\ See 47 U.S.C. 338(l)(1); 47 U.S.C. 534(h)(1)(C)(i).
    \63\ See In-State Programming Report, at App. F (Case Studies) 
(discussing 35 counties in 13 DMAs with little or no access to in-
state broadcast stations via satellite service). The BIA/Kelsey 
study submitted by NAB in the In-State Programming Report docket 
also illustrates this point, estimating that 0.1 percent of cable 
subscribers do not receive at least one in-state television station, 
while 2.2 percent of DISH subscribers do not receive at least one 
in-state television station and 6.1 percent of DIRECTV subscribers 
do not receive at least one in-state TV station. In-State 
Programming Report, para. 44.
    \64\ According to staff review, at least 165 consumers have 
called the Commission's call center in 2015 to complain that their 
satellite carrier does not carry a particular station. See also, 
e.g., Leroy Axtell Comments at 1 (Fairfield County, Connecticut 
resident explaining that ``Comcast and Frontier cable carry New York 
and Hartford/New Haven television channels,'' while ``Directv and 
Dish can presently carry only New York channels.'')
    \65\ See Implementation of the Satellite Home Viewer Extension 
and Reauthorization Act of 2004, Implementation of Section 340 of 
the Communications Act, MB Docket No. 05-49, Report and Order, FCC 
05-187, para. 44, 70 FR 76504, December 27, 2005 (2005) (SHVERA 
Significantly Viewed Report and Order).
    \66\ DIRECTV Comments in MB Docket No. 10-238 (filed Jan. 24, 
2011) at 3-4, n.8.
---------------------------------------------------------------------------

    16. We adopt our proposal to require petitioners (i.e., broadcast 
stations, satellite carriers and county governments) to file market 
modification requests for satellite carriage purposes in accordance 
with the procedures for filing Special Relief petitions in section 76.7 
of the rules.\67\ Commenters on this issue generally support our 
proposal.\68\ Consistent with section 76.7, a petitioner must serve a 
copy of its market modification request on any MVPD operator, station 
licensee, permittee, or applicant, or other interested party who is 
likely to be directly affected if the relief requested is granted, and 
we amend section 76.7(a)(3), accordingly, to reference ``any MVPD 
operator.'' \69\ The NPRM sought comment on whether franchising 
authorities or certain local government entities (such as cities, 
counties, or towns) that may represent subscribers and local viewers in 
affected communities should be considered ``interested parties'' and 
served with market modification petitions.\70\ Consistent with our 
decision above to permit a county government to file a petition, we 
find that the relevant county government is an ``interested party'' 
that must also be served with a satellite market modification 
petition.\71\
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    \67\ NPRM, para. 10. See 47 CFR 76.59(b). A fee is generally 
required for the filing of Special Relief petitions; 47 CFR 1.1104, 
1.1117, 76.7. We remind filers that Special Relief petitions must be 
submitted electronically using the Commission's Electronic Comment 
Filing System (ECFS). See Media Bureau Announces Commencement of 
Mandatory Electronic Filing for Cable Special Relief Petitions and 
Cable Show Cause Petitions Via the Electronic Comment Filing System, 
Public Notice, DA 11-2095 (MB rel. Dec. 30, 2011). Petitions must be 
initially filed in MB Docket No. 12-1. Id.
    \68\ NAB Comments at 3.
    \69\ See 47 CFR 76.7(a)(3).
    \70\ See NPRM, para. 10. No parties filed comments advocating 
that cable franchise authorities be served with satellite market 
modification requests. We decline to require such notifications, 
given that cable franchising authorities have no role in satellite 
regulation. See DIRECTV Comments at 7, n.20; UCC Comments at 8.
    \71\ If after due diligence, a petitioner is unable to identify 
the appropriate county government on which to serve its petition, 
the petitioner should request Commission staff assistance in this 
regard.
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B. Statutory Factors and Evidentiary Requirements

    17. As discussed above, the purpose of market modification is to 
permit adjustments to a particular station's local television market 
(which is initially defined by the DMA in which it is located) to 
better serve the value of localism by ensuring that satellite 
subscribers receive the broadcast stations most relevant to them.\72\ 
To this end, the STELAR requires the Commission to consider five 
statutory factors when evaluating market modification requests.\73\ As 
noted, the STELAR added a fifth factor (inserted as the new third 
statutory factor) for both cable and satellite to ``promote consumers' 
access to television broadcast station signals that originate in their 
State of residence.'' \74\ In the NPRM, we tentatively concluded that 
this new third statutory factor is intended to favor a market 
modification to add a new community \75\ if doing so would increase 
consumer access to in-state programming.\76\ In the record, NAB and 
DISH appear to support this general conclusion; however, DISH states 
that we should consider under this factor whether the new community 
lacks any (or an adequate number of) in-state stations, while NAB 
states that the statutory language imposes no such requirement.\77\ In 
addition, NCTA expresses concerns about how we may evaluate market 
modification petitions under this new in-state factor, particularly in 
situations that would grant cable carriage rights to previously 
uncarried in-state stations.\78\
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    \72\ See 47 U.S.C. 338(l)(2)(B), 534(h)(1)(C)(ii) (requiring the 
Commission to ``afford particular attention to the value of 
localism'' by taking into account the five statutory factors).
    \73\ See supra para. 8. The Commission must also consider other 
relevant information to develop a result that is designed to 
``better effectuate the purposes'' of the law. See 47 U.S.C. 
338(l)(1); Definition of Markets for Purposes of the Cable 
Television Broadcast Signal Carriage Rules, CS Docket No. 95-178, 
Order on Reconsideration and Second Report and Order, FCC 99-116, 
para. 53, 64 FR 33788, Jun. 24, 1999 (Cable Market Modification 
Second Report and Order).
    \74\ 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III). We will 
refer to this new third statutory factor as the ``in-state factor.''
    \75\ For purposes of our discussion, by ``new community'' we 
refer to a new community to be added to a station's local television 
market by grant of the prospective market modification.
    \76\ NPRM, para. 11. The NPRM also asked if we should ``require 
the petitioner to show that the station at issue is licensed to a 
community within the state in which the modification is requested 
and that the DMA at issue lacks any (or an adequate number of) in-
state stations?'' NPRM, para. 13.
    \77\ See DISH Comments at 3-4; NAB Comments at 5.
    \78\ See NCTA Reply at 2-4.
---------------------------------------------------------------------------

    18. We conclude that the in-state factor favors any market 
modification that would promote consumers' access to an in-state 
station.\79\ The language of this new statutory factor speaks clearly 
in this regard.\80\ Therefore, a petitioner will be afforded credit for 
satisfying this factor simply by showing that the involved station is 
licensed to a community within the same state as the new community.\81\ 
We disagree with those commenters that sought a requirement for more 
substantial showings, such as the lack of in-state stations in the new 
community, in order to get credit for satisfying this factor.\82\ We 
find that such additional showings are not necessary to satisfy this 
factor. We read the statutory language--in requiring the Commission to 
consider whether the prospective modification would ``promote'' 
consumers' access to television broadcast station ``signals'' that 
originate in their state of residence--as applying to any situation 
that would increase access to in-state stations, regardless of whether 
there are other in-state stations present in the new community.\83\ 
However, we find that such additional showings can increase the weight 
afforded to this factor. For example, this factor may be found to weigh 
more heavily in favor of modification if the petitioner shows the 
involved station provides programming specifically related to 
subscribers' state of residence, and may be given even more weight if 
such subscribers in the new community had little (or no) access

[[Page 59643]]

to such in-state programming.\84\ We find that this interpretation of 
the factor will better effectuate its purpose, observing that the 
legislative history expresses Congress' concern that ``many consumers, 
particularly those who reside in DMAs that cross State lines or cover 
vast geographic distances,'' may ``lack access to local television 
programming that is relevant to their everyday lives'' and indicates 
Congress' intent that the Commission ``consider the plight of these 
consumers when judging the merits of a [market modification] petition . 
. ., even if granting such modification would pose an economic 
challenge to various local television broadcast stations.'' \85\ We 
clarify, however, that this new factor is not universally more 
important than any of the other factors and its relative importance 
will vary depending on the circumstances in a given case.\86\ In sum, 
in market modification petitions involving the addition of an in-state 
broadcaster, the in-state factor does not serve as a trump card 
negating the other four statutory factors. Instead, where applicable, 
we believe the in-state factor serves as an enhancement, the particular 
weight of which depends on the strength of showing by the petitioner. 
Ultimately, each petition for market modification will turn on the 
unique facts of the case.\87\
---------------------------------------------------------------------------

    \79\ See 47 U.S.C. 338(l)(2)(B)(iii) (``whether modifying the 
market of the television station would promote consumers' access to 
television broadcast station signals that originate in their State 
of residence'').
    \80\ See id. See also NAB Comments at 5.
    \81\ See infra at para. 20 (Evidentiary Requirements).
    \82\ See DISH Comments at 4 (stating ``a petitioner should have 
to `show . . . that the DMA at issue lacks any (or an adequate 
number of) in-state stations'''); NCTA Comments at 3 (stating ``the 
Commission should assess whether cable customers already receive 
television stations that provide in-state coverage'').
    \83\ See NAB Comments at 5 (``The statute does not suggest that 
the Commission should take into account only those in-state market 
modification requests that would help to remedy a complete absence--
or some minimum number--of in-state broadcast stations.'').
    \84\ See NAB at 5 (``Consideration of the `in-state signal' 
statutory factor also could involve an evaluation of programming or 
advertising on that station.'') We note that our analysis of the in-
state nature of the programming would be similar to our analysis of 
the local nature of the programming under the second statutory 
factor and would consider whether the television station provides 
programming specifically related to the subscribers' state of 
residence. For example, under factor two, we consider whether the 
station has aired programming, such as news, politics, sports, 
weather and other emergency information, specifically targeted to 
the community at issue (e.g., town council meeting, news or weather 
event that occurred in the community, local emergencies, etc.). 
Under factor three, we would consider whether the station has aired 
programming, such as news, politics, sports, emergency information, 
specifically related to the state in which the community is located 
(e.g., coverage of state politics and legislative matters, state 
sports team coverage, state emergency information, etc.).
    \85\ Senate Commerce Committee Report at 11.
    \86\ See Cable Market Modification Second Report and Order, 
para. 59 (stating that ``it is inappropriate to state that one 
factor is universally more important than any other, as each is 
valuable in assessing whether a particular community should be 
included or excluded from a station's local market, and the relative 
importance of particular factors will vary depending on the 
circumstances in a given case''). See also, e.g., NCTA Reply at 2 
(stating that ``[w]hile promoting access to in-state programming is 
one factor in the market modification process, Congress preserved 
the other four factors as well. In evaluating any market 
modification petitions going forward, therefore, the Commission must 
consider all of the factors.''); UCC Comments at 6 (stating that 
``the laudable goal of providing satellite subscribers with access 
to the signals of some television stations licensed to communities 
within the same state should not trump the value of local coverage 
provided by stations that happen to be licensed to communities in a 
different state so as to deprive satellite customers of access to 
the signals of those stations that are more truly `local' than the 
more distant same-state stations.'').
    \87\ For example, we agree with NCTA that we should consider the 
potential disruption to customers if grant of the modification 
request would displace service from a long-established network 
station. See NCTA Comments at 3-4 (stating ``the Commission should 
consider the potential disruption to cable customers that could be 
caused by wholesale changes to markets. Market changes that would 
require operators to delete one group of broadcast stations in favor 
of another could upset long-established cable customer viewing 
patterns.''). The Bureau has previously considered, in the cable 
context, whether grant of the market modification would ``upset the 
economic marketplace expectations underlying the network-affiliate 
relationship.'' See, e.g., Broad Street Television, L.P., CSR-3868-
A, Memorandum Opinion and Order, DA 95-1106, para. 12 (CSB rel. May 
25, 1995); Guy Gannett Communications, Inc., CSR-5289-A, Memorandum 
Opinion and Order, DA 98-2464, para. 21 (CSB rel. Dec. 4, 1998), 
aff'd, Order on Reconsideration, DA 00-1325 (CSB rel. Jun. 19, 
2000); Pacific & Southern Co., Inc., CSR-5326-A, Memorandum Opinion 
and Order, DA 99-628, para. 25 (CSB rel. Apr. 2, 1999); Harron 
Communications Corp., CSR-5325-A, Memorandum Opinion and Order, DA 
99-627, para. 26 (CSB rel. Apr. 2, 1999); Free State Communications, 
LLC, CSR-8121-A, Memorandum Opinion and Order, DA 09-1206, para. 22 
(MB rel. May 28, 2009). We note that, for must carry purposes, 
although cable operators are not required to carry duplicating 
stations or more than one local station affiliated with a particular 
network, if a cable system declines to carry duplicating stations, 
it must carry the station closest to the principal headend of the 
cable system, even if that station is from another state. See 47 CFR 
76.56(b)(5). By contrast, in the satellite carriage context, a 
satellite carrier must carry two stations affiliated with the same 
network if they are from different states, see 47 U.S.C. 338(c)(1); 
47 CFR 76.66(h)(1), and otherwise may select which duplicating 
station or network affiliate in a market it will carry. See 47 CFR 
76.66(h)(2) through (3). Thus, the potential for market disruption 
is lower in the satellite context.
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    19. We adopt our tentative conclusion that the new in-state factor 
is not intended to bar a market modification simply because it would 
not result in increased consumer access to an in-state station's 
programming.\88\ In such cases, we find that this new in-state factor 
would be inapplicable and the modification request would be evaluated 
based on the other statutory factors.\89\ Commenters on this issue 
support these tentative conclusions.\90\ We agree with commenters that 
the statute intended to promote access to in-state programming, but did 
not intend to disfavor other market modification requests.\91\
---------------------------------------------------------------------------

    \88\ NPRM, para. 11.
    \89\ Id.
    \90\ See UCC Comments at 6-7; WVIR-TV Comments at 4; Tracy 
Comments at 1.
    \91\ See UCC Comments at 6-7 (``STELAR did not intend to 
forestall market modification requests that would not have the 
effect of supplying in-state programming to residents of `orphan 
counties.' ''); WVIR-TV Comments at 4 (asking Commission ``not to 
confine any new rules to situations where a subscriber's community 
or county is assigned to an out-of-state DMA by Nielsen''); Tracy 
Comments at 1.
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    20. Evidentiary Requirements. We adopt our proposal to apply the 
evidentiary requirements for cable market modifications to satellite 
market modifications.\92\ Commenters on this issue support this 
proposal.\93\ We find it appropriate, and that it promotes parity, to 
apply the same evidentiary requirements in both contexts, particularly 
given the same language is used in both the cable and satellite 
statutory factors and the record provides no basis for adopting a 
different interpretation in the satellite versus cable context.\94\ In 
addition, to implement our decision (above) that the in-state factor 
favors any market modification that would promote consumers' access to 
an in-state station, we require the petitioner to make a statement in 
its petition whether or not the station is licensed to a community 
within the same state as the new community.\95\ We find this sufficient 
evidence to show that a station's petition satisfies this factor. 
Accordingly, market modification requests for both satellite carriers 
and cable system operators must include the following evidence: \96\
---------------------------------------------------------------------------

    \92\ NPRM, para. 12.
    \93\ See NAB Comments at 4-5; DISH Comments at 3-4.
    \94\ 47 U.S.C. 338(l)(2)(B)(i) through (v), 534(h)(1)(C)(ii)(I) 
through (V).
    \95\ See 47 CFR 76.59(b)(7). As noted above (see supra para. 
18), to better effectuate the purpose of the law, we will consider 
(but not require) additional evidence showing the relevance of the 
in-state programming (including advertising) to the new community, 
as well as the absence of other in-state stations in the new 
community, to evaluate the strength afforded to this factor.
    \96\ See 47 CFR 76.59(b)(1) through (7). To make section 
76.59(b)(6) consistent with the language of the STELAR, we are also 
updating the rule to reflect the change from ``evidence of viewing 
patterns in cable and noncable households . . .'' to ``evidence of 
viewing patterns in households that subscribe and do not subscribe 
to the services offered by multichannel video programming 
distributors'' in the fifth statutory factor (emphasis added). See 
47 U.S.C. 338(l)(2)(B)(v), 534(h)(1)(C)(ii)(V).
---------------------------------------------------------------------------

    (1) A map or maps illustrating the relevant community locations and 
geographic features, station transmitter sites, cable system headend or 
satellite carrier local receive facility locations, terrain features 
that would affect station reception, mileage between the community and 
the television station transmitter site, transportation routes and any 
other evidence contributing to the scope of the market;
    (2) Noise-limited service contour maps (for full-power digital 
stations) or protected contour maps (for Class A and low power 
television stations)

[[Page 59644]]

delineating the station's technical service area and showing the 
location of the cable system headends or satellite carrier local 
receive facilities and communities in relation to the service areas.
    (3) Available data on shopping and labor patterns in the local 
market.
    (4) Television station programming information derived from station 
logs or the local edition of the television guide.
    (5) Cable system or satellite carrier channel line-up cards or 
other exhibits establishing historic carriage, such as television guide 
listings.
    (6) Published audience data for the relevant station showing its 
average all day audience (i.e., the reported audience averaged over 
Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both 
multichannel video programming distributor (MVPD) and non-MVPD 
households or other specific audience indicia, such as station 
advertising and sales data or viewer contribution records.
    (7) If applicable, a statement that the station is licensed to a 
community within the same state as the relevant community.

As discussed above, DISH and NCTA sought additional evidentiary 
requirements for a petitioner to satisfy the in-state factor.\97\ 
Because we decide that the in-state factor generally favors any market 
modification that would promote consumers' access to an in-state 
station, we reject the suggestions by DISH and NCTA to require more 
evidence in this regard. As explained above, however, a petitioner may 
offer evidence concerning whether the television station provides 
programming specifically related to the subscribers' state of 
residence, as well as the lack of other in-state stations providing 
service to subscribers in the new community, to demonstrate that the 
in-state factor should be afforded even greater weight.\98\
---------------------------------------------------------------------------

    \97\ See DISH Comments at 4 (suggesting that petitioners be 
required to ``submit evidence to demonstrate that a substantial 
portion of the population in the geographic area covered by the 
request supports the change''); NCTA Reply at 3 (suggesting that 
petitioning broadcasters ``should demonstrate a historical pattern 
of providing significant in-state programming that is not otherwise 
available on the local DMA broadcast stations (or on any other 
station already carried on the system)''). WVIR-TV opposed the DISH 
proposal, stating ``DISH's suggestion that a broadcaster seeking to 
be added to a market provide evidence of popular demand by viewers 
goes far beyond what is required in the cable context and should not 
be adopted.'' WVIR-TV Reply at 5.
    \98\ See supra para. 18.
---------------------------------------------------------------------------

    21. In addition, we adopt our proposal to revise section 
76.59(b)(2) of the rules to add a reference to the digital noise-
limited service contour (NLSC), which is the relevant service contour 
for a full-power station's digital signal.\99\ NAB, the only commenter 
on this issue, supports our proposal.\100\ Section 76.59(b)(2) requires 
petitioners seeking a market modification to provide Grade B contour 
maps delineating the station's technical service area;\101\ however the 
Grade B contour defines an analog television station's service 
area.\102\ Since the completion of the full power digital television 
transition on June 12, 2009, there are no longer any full power analog 
stations and, therefore, the Commission uses the NLSC set forth in 47 
CFR 73.622(e),\103\ in place of the analog Grade B contour set forth in 
47 CFR 73.683(a), to describe a full power station's technical service 
area.\104\ Since the DTV transition, the Media Bureau has required full 
power stations to provide NLSC maps, in place of Grade B contour maps, 
for purposes of cable market modifications.\105\ Therefore, we adopt 
our tentative conclusion that section 76.59(b)(2) should be updated for 
purposes of market modifications in both the cable and satellite 
contexts. We also delete the reference in the rule to the Grade B 
contour because that reference has no relevance in the absence of full-
power analog stations. We observe that, in the rare situation in which 
a Class A or LPTV station might seek a market modification, the 
relevant service contour for such stations would be its ``protected 
contour.'' \106\ Accordingly, we revise our rule to reflect this 
contour.
---------------------------------------------------------------------------

    \99\ NPRM, para. 14; 47 CFR 76.59(b)(2).
    \100\ NAB Comments at 4.
    \101\ 47 CFR 76.59(b)(2).
    \102\ See 47 CFR 73.683(a).
    \103\ As set forth in section 73.622(e), a full-power station's 
DTV service area is defined as the area within its noise-limited 
contour where its signal strength is predicted to exceed the noise-
limited service level. See 47 CFR 73.622(e).
    \104\ See STELA Significantly Viewed Report and Order, para. 51 
(stating that the digital NLSC is ``the appropriate service contour 
relevant for a station's digital signal''); 2010 Quadrennial 
Regulatory Review--Review of the Commission's Broadcast Ownership 
Rules Adopted Pursuant to Section 202 of the Telecommunications Act 
of 1996, MB Docket No. 09-182, Notice of Inquiry, FCC 10-92, para. 
103, 75 FR 33227, June 11, 2010 (stating that the Commission 
developed the digital NLSC to approximate the same probability of 
service as the Grade B contour and has stated that the two are 
roughly equivalent); Report To Congress: The Satellite Home Viewer 
Extension And Reauthorization Act of 2004; Study of Digital 
Television Field Strength Standards and Testing Procedures; ET 
Docket No. 05-182, FCC 05-199, para. 111 (rel. Dec. 9, 2005). Since 
the DTV transition, the Media Bureau has used the digital NLSC in 
place of the analog Grade B contour in the cable context. See, e.g., 
KXAN, Inc., CSR-7825-N, Memorandum Opinion and Order, DA 10-589, 
para. 8 n.32 (MB rel. Apr. 1, 2010) (using the NLSC in place of the 
Grade B contour for purposes of the cable network non-duplication 
and syndicated program exclusivity rules). Congress has also acted 
on the presumption that the two standards are roughly equivalent, by 
adopting parallel definitions for households that are ``unserved'' 
by analog (measured by Grade B) or digital (measured by NLSC) 
broadcasters in the STELA legislation enacted after the DTV 
transition. See 17 U.S.C.U.S.C. 119(d)(10)(A)(i).
    \105\ See, e.g., Tennessee Broadcasting Partners, CSR-7596-A, 
Order on Reconsideration, DA 10-824, para. 6, n.14 (MB rel. May 12, 
2010) (stating, in a market modification order, that the Commission 
has treated a digital station's NLSC as the functional equivalent of 
an analog station's Grade B contour); Lenfest Broadcasting, LLC, 
CSR-6278-A, Memorandum Opinion and Order, DA 04-1414, para. 7, n.27 
(MB rel. May 20, 2004).
    \106\ The relevant technical service area for Class A and LPTV 
stations is defined by their protected contour, as defined in 
sections 73.6010 (Class A), 74.707 (analog LPTV) and 74.792 (digital 
LPTV) of the rules; 47 CFR 73.6010, 74.707, 74.792. Although LPTV 
stations are not entitled to mandatory satellite carriage, see 47 
U.S.C. 338(a)(3), LPTV stations may be entitled to mandatory cable 
carriage, but only in limited circumstances. Both the Communications 
Act and the Commission's rules mandate that only a minimum number of 
qualified low power stations must be carried by cable systems, see 
47 U.S.C. 534(c)(1); 47 CFR 76.56(b)(3), and, in order to qualify, 
such stations must meet several criteria. See 47 U.S.C. 534(h)(2)(A) 
through (F); 47 CFR 76.55(d)(1) through (6). Class A stations have 
the same limited must carry rights as LPTV stations; in other words, 
they are ``low power stations'' for mandatory carriage purposes. See 
Establishment of a Class A Television Service, MM Docket No. 00-10, 
Memorandum Opinion and Order on Reconsideration, FCC 01-123, paras. 
40-42, 66 FR 21681, May 1, 2001. Finally, we note that the Media 
Bureau recently suspended the September 1, 2015 digital transition 
deadline for LPTV stations. (The Bureau's action did not affect the 
September 1, 2015 digital transition deadline for Class A stations.) 
See Suspension of September 1, 2015 Digital Transition Date for Low 
Power Television and TV Translator Stations, MB Docket No. 03-185, 
Public Notice, DA 15-486, 80 FR 27862, May 15, 2015.
---------------------------------------------------------------------------

    22. Consistent with the cable carriage rule, we adopt our proposals 
that satellite market modification requests that do not include the 
required evidence be dismissed without prejudice and that they may be 
supplemented and re-filed at a later date with the appropriate filing 
fee.\107\ In addition, consistent with the cable carriage rule, we 
adopt our proposal that, during the pendency of a market modification 
petition before the Commission, satellite carriers will be required to 
maintain the status quo with regard to signal carriage and must not 
delete from carriage the signal of an affected commercial television 
station.\108\ NAB, the only commenter on these issues, supports our 
proposals.\109\ We adopt our proposals, which create regulatory parity 
with cable.
---------------------------------------------------------------------------

    \107\ NPRM, para. 15. See 47 CFR 76.59(c).
    \108\ NPRM, para. 15. See 47 CFR 76.59(d). See also 47 U.S.C. 
338(l)(3)(B), 534(h)(1)(C)(iii); Must Carry Order, para. 46.
    \109\ NAB Comments at 4.
---------------------------------------------------------------------------

C. Market Determinations

    23. We adopt our tentative conclusion that market modifications in 
the satellite

[[Page 59645]]

carriage context will apply only to the specific stations and 
communities addressed in a particular market modification 
petition.\110\ NAB, the only commenter on this issue, supports our 
conclusion.\111\ Our conclusion is consistent with the cable carriage 
rules \112\ and is based on the statute's language granting authority 
to modify markets ``with respect to a particular commercial television 
broadcast station.'' \113\ It is also reasonable because market 
modification determinations are highly fact-specific and turn on 
whether a particular commercial television broadcast station serves the 
needs of a specific community.
---------------------------------------------------------------------------

    \110\ NPRM, para. 16.
    \111\ NAB Comments at 5.
    \112\ See Must Carry Order, para. 47 n.139 (stating that ``the 
statute is intended to permit the modification of a station's market 
to reflect its individual situation''); 47 CFR 76.59. We note that 
this is also consistent with the Commission's previous determination 
that stations may make a different retransmission consent/mandatory 
carriage election in the satellite context from that made in the 
cable context. See DBS Broadcast Carriage Report and Order, para. 
23.
    \113\ 47 U.S.C. 338(l)(1).
---------------------------------------------------------------------------

    24. We also adopt our tentative conclusion that we will consider 
market modification requests separately in the cable and satellite 
contexts.\114\ NAB and DISH, the only commenters on this issue, support 
our conclusion.\115\ We find this preferable given the differences in 
service area and community sizes between cable systems and satellite 
carriers.\116\ In contrast to the cable context, we must also consider 
the technical and economic capability of the satellite carriers at 
issue to effectuate a satellite market modification.\117\
---------------------------------------------------------------------------

    \114\ NPRM, para. 16. This is consistent with our conclusion 
below that prior cable market modification determinations will not 
automatically apply in the satellite context; see infra para. 26.
    \115\ DISH at Comments 4; NAB Comments at 5-6.
    \116\ See DISH Comments at 4. See also infra section III.F. 
(deciding that a ``satellite community'' for market modification 
purposes can be defined by a county).
    \117\ See DISH Comments at 4-5.
---------------------------------------------------------------------------

    25. Finally, we adopt our tentative conclusion that market 
modification requests will apply only to the satellite carrier or 
carriers named in the request.\118\ NAB and DISH support our 
conclusion,\119\ although DIRECTV believes this is unnecessary if we 
allow each satellite carrier to carry a station based on its respective 
spot beam coverage.\120\ We disagree with DIRECTV that this is 
unnecessary. Instead, we find that a modification may not always 
appropriately apply to both carriers. For example, the carriers' spot 
beams may be different, even though they are serving the same market, 
and thus one may have an infeasibility defense while the other may not.
---------------------------------------------------------------------------

    \118\ NPRM, para. 16. This is also consistent with the satellite 
carriage election process. See Implementation of the Satellite Home 
Viewer Improvement Act of 1999: Broadcast Signal Carriage Issues, CS 
Docket No. 00-96, Order on Reconsideration, FCC 01-249, para. 62, 66 
FR 49124, Sept. 26., 2001 (DBS Must Carry Reconsideration Order) 
(``where there is more than one satellite carrier in a local market 
area, a television station can elect retransmission consent for one 
satellite carrier and elect must carry for another satellite 
carrier'').
    \119\ DISH at Comments 5; NAB Comments at 5.
    \120\ DIRECTV Comments at 9.
---------------------------------------------------------------------------

    26. Prior Determinations. We adopt our tentative conclusion that 
prior cable market modification determinations will not automatically 
apply in the satellite context.\121\ We also decline to establish a 
presumption that prior cable determinations should apply to satellite 
markets.\122\ DISH, NAB, and DIRECTV support these conclusions,\123\ 
while Gray proposes that we establish a presumption that prior cable 
market modification determinations should apply to satellite 
markets.\124\ We find the same reasoning that requires us to consider 
market modification requests separately in the cable and satellite 
contexts also makes it inadvisable to apply prior cable market 
determinations to satellite markets. As discussed above, market 
modifications are specific to the stations, operators/carriers, and 
communities addressed in a particular market modification petition, as 
of the time of the petition. Given the differences in service areas and 
community sizes between cable systems and satellite carriers, and 
changes that may have occurred since the time of the cable petition, we 
conclude that it would not be reasonable to automatically apply prior 
cable market determinations to satellite carriers or establish a 
rebuttable presumption. We note that Gray's proposal would have us 
establish a presumption for an entire county based on a finding with 
respect to a single cable community or several cable communities within 
a county.\125\ Moreover, we note that satellite carriers did not have 
the opportunity to participate in these prior market modification 
proceedings.\126\ We also agree with DIRECTV that establishing a 
presumption would be inconsistent with our statutory obligation to 
evaluate modifications based on the statutory factors.\127\ However, as 
noted in the NPRM, historic carriage is one of the five factors the 
Commission must consider in evaluating market modification requests and 
would carry weight in a market modification determination in the 
satellite context.\128\ We agree with NAB that consideration of this 
factor will give sufficient weight to prior decisions without the need 
to establish a presumption.\129\
---------------------------------------------------------------------------

    \121\ NPRM, para. 17.
    \122\ NPRM, para. 17.
    \123\ See DISH Comments at 4-5; NAB at 5-6; DIRECTV Reply at 9-
10. See also DIRECTV ex parte (dated June 11, 2015) at 2; DISH ex 
parte (dated June 11, 2015) at 2.
    \124\ Gray Comments at 4-5 (``When a satellite market 
modification is requested for a county or counties where a previous 
cable market modification has been granted, the FCC should require 
only that a petitioner file a simple request that the station's 
satellite market be modified to include the counties that include 
the communities associated with the earlier modification. Any party 
opposing the modification would have the burden of demonstrating 
that, notwithstanding the outcome of the earlier proceeding, the 
statutory factors do not support a market modification in the 
satellite context.'').
    \125\ Gray Comments at 4-6 (``If a previous market modification 
proceeding has resulted in the assignment of additional communities 
to a television station's cable carriage market, the FCC should 
presume that the county or counties in which those communities are 
located should be added to the station's DBS market.'').
    \126\ DIRECTV correctly observes that there is no official list 
of previously-granted modifications. DIRECTV ex parte (dated June 
11, 2015) at 2.
    \127\ DIRECTV Reply at 9.
    \128\ See 47 U.S.C. 338(l)(2)(B)(i)(I) (whether the station, or 
other stations located in the same area--``have been historically 
carried on the cable system or systems within such community'').
    \129\ NAB Comments at 6.
---------------------------------------------------------------------------

    27. Carriage after a market modification. We adopt our tentative 
conclusion that television broadcast stations that become eligible for 
mandatory carriage with respect to a satellite carrier (pursuant to 
section 76.66 of the rules) by virtue of a change in the market 
definition (by operation of a market modification pursuant to section 
76.59 of the rules) may, within 30 days of the effective date of the 
new definition, elect retransmission consent or mandatory carriage with 
respect to such carrier.\130\ This is consistent with the cable 
rule.\131\ NAB and Gray support this conclusion,\132\ while DISH 
expresses concern that, as a result of a market modification (and an 
existing retransmission consent agreement with the involved station), 
it could have to carry and pay retransmission consent fees to two 
stations from different states but that are affiliated with the same 
network.\133\ DISH proposes that a station's election with respect to 
the communities added by a market modification should be limited to 
must-carry for the remainder of the carriage election cycle.\134\ NAB 
responds that

[[Page 59646]]

``[s]atellite carriers cannot lawfully obtain a `free pass' to carry 
retransmission consent stations without negotiating the prices, terms 
and conditions of such consent in any geographic area.\135\ 
Alternatively, DISH asks the Commission to ``clarify that 
notwithstanding any retransmission consent agreements that would 
automatically entitle the station to carriage in additional geographic 
areas due to a market modification, the station must negotiate a new 
retransmission consent agreement for the new areas.''\136\ NAB responds 
that ``DISH and other satellite carriers must abide by provisions of 
the Communications Act and FCC rules governing retransmission consent 
and must-carry within a station's market, including areas affected by a 
market modification.'' \137\
---------------------------------------------------------------------------

    \130\ NPRM, para. 18. See 47 CFR 76.66(d)(6).
    \131\ See 47 CFR 76.64(f)(5).
    \132\ NAB Comments at 6; Gray Comments at 8; NAB Reply at 3.
    \133\ See DISH Comments at 9-10.
    \134\ See DISH ex parte (dated June 11, 2015) at 2. We note that 
DISH initially agreed that a station should elect either 
retransmission consent or must-carry with the applicable satellite 
carriers for the new geographic area within 30 days of the market 
modification order. DISH Comments at 5.
    \135\ NAB Reply at 2.
    \136\ DISH ex parte (dated June 11, 2015) at 2. DISH's proposal 
recognizes that its concern is a short-term problem that would last 
for the length of any existing retransmission consent agreement. Id. 
In DISH's scenario, after expiration of the existing agreements with 
the two same-network affiliates, we expect the marketplace would 
resolve this concern.
    \137\ NAB Reply at 1, 3-5. See also 47 U.S.C. 325, 338 and 47 
CFR 76.64 through 76.66.
---------------------------------------------------------------------------

    28. We reject DISH's proposal to mandate a must-carry election for 
the remainder of the current election cycle because it directly 
contravenes section 325 of the Act and would be inconsistent with our 
satellite carriage rules.\138\ As with any other election for satellite 
carriage, we find that when a station's market is modified for purposes 
of satellite carriage, then the station is entitled to elect either 
retransmission consent pursuant to section 325 or mandatory carriage 
pursuant to section 338 with respect to the new community or 
communities added to its market by the modification.\139\ This is also 
consistent with the cable market modification process \140\ and, 
moreover, is required by application of sections 325 and 338 of the 
Act.\141\ Section 338(a)(1) requires that a satellite carrier must 
carry upon request all local television stations seeking carriage in 
any market in which the carrier provides local-into-local service, 
subject to section 325(b) of the Act.\142\ Section 325(b)(1) prohibits 
an MVPD from retransmitting the signal of a broadcast station except 
``with the express authority of the originating station.'' \143\ The 
statute provides for no exception in the market modification context to 
the retransmission consent requirement. Thus, we reject DISH's argument 
that the silence of section 102 of the STELAR with respect to 
retransmission consent means that Congress could not have intended 
retransmission consent to apply to the carriage of stations in 
communities added by market modification.\144\ To the contrary, 
considering the provisions together in context, we believe the better 
reading of the statute is that the retransmission consent requirement 
applies in this context given the absence of an express indication 
otherwise in either section 102 of STELAR or the retransmission consent 
provisions.\145\ We note that, while the network programming may be the 
same, the two stations would likely be providing very different local 
programming (e.g., different news, sports, advertising and political 
programming), each of which may be of interest to the new community, 
because the stations are licensed to different communities and 
particularly if the stations are located in different states. Finally, 
with respect to DISH's proposal that we prevent application of an 
existing retransmission consent agreement containing a provision 
requiring carriage pursuant to its terms in the event the Commission 
modifies a given market, DISH provides no reasoning that persuades us 
to abrogate a bargained-for and agreed-to contractual provision between 
a broadcaster and a satellite carrier that expressly contemplates the 
addition of communities through the market modification process.\146\ 
We note, however, that the very purpose of this provision of the STELAR 
is to provide consumers with access to news, politics, sports, 
emergency and other programming specifically related to their home 
state.\147\ Accordingly, we expect broadcasters and satellite carriers 
alike will make the needs and expectations of orphan county consumers 
the priority in negotiating retransmission consent following a 
successful modification petition.\148\ We will monitor this situation 
closely and will take further action if such monitoring indicates that 
the purpose of this provision is not being effectuated.
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    \138\ See 47 U.S.C. 325(b) and 47 CFR 76.66.
    \139\ See 47 CFR 76.66(c) (``In television markets where a 
satellite carrier is providing local-into-local service, a 
commercial television broadcast station may elect either 
retransmission consent, pursuant to section 325 of title 47 United 
States Code, or mandatory carriage, pursuant to section 338, title 
47 United States Code.''). We thus agree with NAB that ``a station 
electing retransmission consent with regard to a community or 
communities that become part of its defined market following a 
modification request is the same as any other station making a 
retransmission consent election.'' NAB Reply at 3.
    \140\ See 47 CFR 76.64(f)(5).
    \141\ See 47 U.S.C. 325, 338.
    \142\ 47 U.S.C. 338(a)(1).
    \143\ 47 U.S.C. 325(b)(1).
    \144\ See DISH Comments at 9-10. DISH also appears to argue 
that, because STELAR provides that a market modification could 
operate both to add communities to, and delete communities from, a 
station's local market, the Commission could delete the community at 
issue from the existing network affiliate's local market at the same 
time that it adds the new community to the local market of the same-
network station seeking the market modification. Id. at 10. Under 
current rules, however, to delete the community at issue from the 
existing network station's local market, DISH would have to file a 
separate petition to modify that station's local market, based on 
the statutory factors. There is nothing in the record that persuades 
us to alter the existing process.
    \145\ See STELAR section 102. See also 47 U.S.C. 325(b), 
338(c)(1). We also disagree with Gray's argument that the 
``substantial duplication'' exceptions to the satellite mandatory 
carriage rules should not apply to stations in communities that have 
been added to their markets via the market modification process. 
Gray Comments at 8. Section 338(c)(1) speaks clearly on this point 
in permitting but not requiring a satellite carrier to carry more 
than one network affiliate licensed to the same state. 47 U.S.C. 
338(c)(1).
    \146\ See DISH ex parte (dated June 11, 2015) at 2 (stating that 
``[m]any retransmission consent contracts require DBS providers to 
carry a station's signal throughout its local market, even if that 
local market's boundary is changed by FCC action--meaning the DBS 
provider could be obligated to pay retransmission consent fees to 
two network-affiliated stations in a given area pursuant to a market 
modification, even if these stations duplicate one another.''). See 
also NAB Reply at 3 (opposing DISH's various proposals to avoid 
paying retransmission consent fees).
    \147\ See Senate Commerce Committee Report at 11.
    \148\ See supra note 59 (describing the impact on consumers of 
residing in orphan counties) and note 65 (noting Commission receipt 
of at least 165 consumer complaints in 2015 that their satellite 
carrier does not carry a particular station).
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    29. We also adopt our tentative conclusion that a satellite carrier 
must commence carriage within 90 days of receiving the request for 
carriage from the television broadcast station.\149\ In the record, NAB 
and Gray support the 90-day deadline,\150\ while DISH asks for 120 
days.\151\ The 90-day deadline is consistent with our cable rules,\152\ 
as well as with existing carriage procedures involving the addition of 
a new station to a carrier's lineup \153\ and we see no reason to 
deviate from the 90-day deadlines in these similar contexts.\154\ Thus, 
we conclude that 90

[[Page 59647]]

days is an appropriate amount of, time for satellite carriers to 
commence carriage. We note that, as is the case in the cable context, 
the filing of a petition for reconsideration or application for review 
does not automatically stay the effect of a Bureau order to add a 
station to a new community; however, based on the directive in section 
338(l)(3)(B)--the satellite counterpart to cable's section 
614(h)(1)(C)(iii)--a petition for reconsideration or application for 
review would automatically stay a Bureau order to delete a station in a 
community.\155\ Finally, we adopt our tentative conclusion that the 
carriage election must be made in accordance with the procedures set 
forth in section 76.66(d)(1).\156\
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    \149\ NPRM, para. 18.
    \150\ NAB Comments at 6; Gray Comments at 8; NAB Reply at 3.
    \151\ DISH Comments at 5-6. We note that 120 days is 
inconsistent with DISH's proposal that requests for carriage use the 
procedures governing carriage of new stations. DISH Comments at 5.
    \152\ See 47 CFR 76.64(f)(5).
    \153\ See 47 CFR 76.66(d)(3). We note that DISH's proposal for 
120 days to commence carriage is inconsistent with DISH's proposal 
that requests for carriage use the procedures governing carriage of 
new stations. See DISH Comments at 5.
    \154\ DISH speculates that ``there may be time-consuming 
technical or billing changes, among other things, necessary for the 
satellite carrier to undertake'' in order to effectuate carriage of 
a market modification. DISH Comments at 5-6. We see no evidence in 
the record to suggest that commencement of carriage after a market 
modification is more difficult or complicated in the satellite 
context or more difficult or complicated than adding a new station 
to a carrier's lineup.
    \155\ See NAB Comments at 6-7 (seeking clarification that ``the 
filing of a petition for reconsideration or application for review 
does not relieve a cable or satellite provider of its obligation to 
commence carriage pursuant to a broadcaster's must carry election or 
begin retransmission consent negotiations consistent with good faith 
requirements''). In the Cable Market Modification Second Report and 
Order, paras. 63-64, the Commission found that section 
614(h)(1)(C)(iii)--the cable counterpart to section 338(l)(3)(B)--
``prohibits cable operators from deleting from carriage commercial 
broadcast stations during the pendency of a market modification 
request but does not address maintaining the status quo with respect 
to additions. Given the absence of a parallel statutory directive 
with respect to channel additions, we see no reason to depart from 
the general presumption that a decision is valid and binding until 
it is stayed or overruled. To the extent the process aids broadcast 
stations in both retaining and obtaining cable carriage rights, that 
appears to be the result intended by the statutory framework 
adopted.'' See Cablevision Systems Corporation, CSR-3873-A, 
Memorandum Opinion and Order, DA 96-1231, para. 11 (CSB, rel. Aug. 
2, 1996) (explaining that ``if we were to accept the general 
arguments for granting the stay raised by Time Warner and 
Cablevision, every initial market modification decision adverse to 
any cable operator would be postponed while either the Bureau or 
Commission acts on the petition for reconsideration or application 
for review. Such a result would unduly delay qualified television 
stations from realizing their statutory cable carriage rights.''). 
See also Dynamic Cablevision of Florida Ltd., et al., CSR-4722-A, 
CSR-4707-A, Memorandum Opinion and Order, FCC 97-191, para. 20 (rel. 
Jul. 1, 1997) (``hold[ing] that a commercial television station may 
not be deleted from a cable system until the Commission has 
completed all administrative proceedings pertaining to a particular 
market redefinition . . . . There can be no question that Commission 
reconsideration or review of a Bureau market redefinition ruling is 
a `proceeding' pursuant to the market re-definition section.'').
    \156\ NPRM, para. 18. Section 76.66(d)(1) requires that an 
election request made by a television station must be in writing and 
sent to the satellite carrier's principal place of business, by 
certified mail, return receipt requested. 47 CFR 76.66(d)(1)(ii). 
The rule requires that a television station's written notification 
shall include the following information: (1) Station's call sign; 
(2) Name of the appropriate station contact person; (3) Station's 
address for purposes of receiving official correspondence; (4) 
Station's community of license; (5) Station's DMA assignment; and 
(6) Station's election of mandatory carriage or retransmission 
consent. 47 CFR 76.66(d)(1)(iii). The rule also requires that, 
within 30 days of receiving the request for carriage from the 
television broadcast station, a satellite carrier must notify the 
station in writing that it will not carry the station, along with 
the reasons for such decision, or that it intends to carry the 
station. 47 CFR 76.66(d)(1)(iv). DISH proposes that requests for 
carriage follow the procedures outlined in 47 CFR 76.66(d)(3), which 
governs written requests for carriage by new stations. DISH Comments 
at 5. However the carriage election procedures outlined in 47 CFR 
76.66(d)(3) expressly refer to the procedures set forth in 47 CFR 
76.66(d)(1). See 47 CFR 76.66(d)(1)(ii) through (iii) and 
(d)(3)(ii). The only difference is timing and even DISH agrees with 
the filing of an election within 30 days of the market modification 
order which is consistent with the 30 days in 47 CFR 76.66(d)(1).
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D. Technical or Economic Infeasibility Exception for Satellite Carriers

    30. We adopt our proposal to codify the language of section 
338(l)(3), which provides that ``[a] market determination . . . shall 
not create additional carriage obligations for a satellite carrier if 
it is not technically and economically feasible for such carrier to 
accomplish such carriage by means of its satellites in operation at the 
time of the determination.'' \157\ In enacting this provision, Congress 
recognized that the unique nature of satellite television service may 
make a particular market modification difficult for a satellite carrier 
to effectuate and, thus, exempted the carrier from the resulting 
carriage obligation.\158\ According to the record, spot beam coverage 
and capacity constraints (discussed below) are the primary technical 
and economic impediments to carriage facing both satellite carriers. 
Based on the constraints described in the record, we conclude that it 
is per se not technically and economically feasible for a satellite 
carrier to provide a station to a new community \159\ that is, or to 
the extent to which it is,\160\ outside the relevant spot beam \161\ on 
which that station is currently carried.\162\ We adopt our tentative 
conclusion that the satellite carrier has the burden to demonstrate 
that the resulting carriage from a market modification ``is not 
technically and economically feasible . . . by means of [a carrier's] 
satellites in operation.'' \163\ In this regard, we will allow 
satellite carriers to demonstrate spot beam coverage infeasibility by 
providing a detailed and specialized certification, under penalty of 
perjury (as described herein).\164\ In addition, with respect to other 
possible bases for a carrier to assert that carriage would be 
technically or economically infeasible, such as costs associated with 
changes to customer satellite dishes to accommodate reception from 
different orbital locations, we will review these assertions on a case-
by-case basis. To avoid unnecessary burdens on broadcasters, satellite 
carriers, county governments and the Commission, we establish a process 
for prospective petitioners to obtain information from a satellite 
carrier regarding feasibility of carriage by the carrier prior to the 
filing of a market modification petition. We require satellite carriers 
to respond to broadcaster and county government requests for 
information about the feasibility of prospective market modifications 
with certifications and afford prospective petitioners with a process 
for Commission review of such certifications before filing a market 
modification petition. The Commission

[[Page 59648]]

will not proceed to evaluate the five factors for a market modification 
with respect to a particular satellite carrier where it is shown that 
the resulting carriage obligation would not be technically and 
economically feasible at the time of the market determination.
---------------------------------------------------------------------------

    \157\ 47 U.S.C. 338(l)(3). See 47 CFR 76.59(e).
    \158\ Senate Commerce Committee Report at 11 (recognizing ``that 
there are technical and operational differences that may make a 
particular television market modification difficult for a satellite 
carrier to effectuate.'').
    \159\ For purposes of our discussion, by ``new community'' we 
refer to a new community to be added to a station's local television 
market by grant of the prospective market modification. As discussed 
below in section III.F., a ``community'' for purposes of a satellite 
market modification is defined as a county.
    \160\ This per se exemption is limited to areas outside the 
carrier's spot beam. Thus, a satellite carrier will be required to 
carry the station to those areas inside the relevant spot beam even 
if part of the new community (i.e., county) is outside the relevant 
spot beam, in the absence of additional evidence of infeasibility. 
See infra paras. 34-35 (Partial Spot Beam Coverage).
    \161\ Satellite carriers use spot beams to offer local broadcast 
stations. DIRECTV Comments at 2. DIRECTV explains that ``[s]pot-beam 
technology divides up a portion of the bandwidth available to a 
satellite into beams that cover limited geographic areas. Doing so 
allows particular sets of frequencies to be reused many times. This 
spectral efficiency unlocked the potential for satellite carriers to 
offer local broadcast signals in the late 1990s, and it enables 
satellite carriers to offer local service today.'' Id.
    \162\ See DIRECTV Comments at 9 (asking the Commission to find 
that ``it is per se technically and economically infeasible for a 
satellite carrier to provide a station to subscribers who live in an 
area outside of the spot beam on which that station is currently 
carried.''). For purposes of our discussion, we will refer to the 
spot beam on which the station is currently carried as the 
``relevant spot beam.''
    \163\ NPRM, para. 19. See 47 U.S.C. 338(l)(3). The legislative 
history also indicates ``that claims of the existence of such 
difficulties should be well substantiated and carefully examined by 
the [Commission] as part of the petition consideration process.'' 
Senate Commerce Committee Report at 11.
    \164\ We will refer to this as the ``detailed certification.'' 
See infra at section III.D.2. We base our proposal on DIRECTV's 
suggested certification, which we find would meet the carrier's 
burden to demonstrate spot beam coverage infeasibility. See DIRECTV 
ex parte (dated Jul. 9, 2015) at 3-4. To ensure the ongoing accuracy 
and veracity of the spot beam coverage infeasibility certification 
process, we may, in particular cases, require a satellite carrier to 
provide us with supporting documentation for the certification. 47 
U.S.C. 154(i), 154(j), 308(b), 403.
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1. Technical or Economic Impediments to Carriage
    31. The NPRM sought comment on the types of technical or economic 
impediments contemplated by section 338(l)(3) that would make satellite 
carriage infeasible in a new community.\165\ The NPRM also sought 
comment on any objective criteria by which the Commission could 
determine technical or economic infeasibility, such as spot beam 
coverage constraints.\166\ In response, we received very few comments 
on potential impediments except infeasibility due to insufficient spot 
beam coverage and due to costs of making changes to customer satellite 
dishes. DIRECTV described spot beam coverage and capacity constraints 
as being the key technical and economic impediments to carriage.\167\ 
DIRECTV asserted, and DISH agreed, that carriage should be considered 
per se infeasible if the new community is outside the coverage of the 
spot beam that carries the station.\168\ The carriers explain that if 
the spot beam on which a station is being carried does not cover the 
new community, a satellite carrier ``has no good [carriage] options 
available to it.'' \169\ Even if the spot beam on which a station is 
being carried covers the new community, DISH adds that carriage of the 
station may be infeasible if the station is carried on a different 
satellite at a different orbital position than the satellite providing 
the existing local broadcast stations to the market.\170\ DISH explains 
that ``it is possible'' that this situation could require DISH to make 
equipment changes at ``all or most households'' in the new 
community.\171\ The broadcast comments do not substantively refute spot 
beam coverage and capacity constraints as legitimate technical or 
economic impediments, except to say that such constraints must be 
appropriately demonstrated, consistent with the statute and legislative 
history.\172\
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    \165\ In particular, the NPRM sought comment on whether spot 
beam contour diagrams should be required to demonstrate spot beam 
coverage limitations. NPRM, para. 20 (``Should we require satellite 
carriers claiming infeasibility due to insufficient spot beam 
coverage to provide spot beam contour diagrams to show whether a 
particular spot beam can be used to cover a particular community? 
'').
    \166\ NPRM, para. 20 (asking ``Are there any objective criteria 
by which the Commission could determine technical or economic 
infeasibility? For example, the Commission has recognized that spot 
beam coverage limitations, in the provision of local-into-local 
service context, may be a legitimate technical impediment. Under 
what circumstances would the limitations or coverage of a spot beam 
be a sufficient basis for a satellite carrier to prove that carriage 
of a station in the community at issue is not technically and 
economically feasible?'').
    \167\ See DIRECTV Comments at 3-4, 8-9. In its comments, DISH 
generally observed that a satellite carrier may be unable as a 
technical or financial matter to comply with a market modification. 
DISH Comments at 7.
    \168\ See DIRECTV Reply at 7; DISH ex parte (dated Jun. 11, 
2015) at 3.
    \169\ DISH ex parte (dated Jun. 11, 2015) at 3.
    \170\ See DISH ex parte (dated Jun. 11, 2015) at 3; DISH ex 
parte (dated Jul. 8, 2015) at 1.
    \171\ DISH ex parte (dated Jun. 11, 2015) at 3; DISH ex parte 
(dated Jul. 8, 2015) at 1 (explaining that ``DISH offers local 
broadcast stations on spot beams on several satellites at a variety 
of different orbital locations. Therefore, it is possible that 
households in a given local market might be unable to receive a new 
broadcast station that was assigned by Nielsen to a different market 
unless the households, among other things, have a second satellite 
dish installed, have an existing satellite dish replaced, or have an 
existing satellite dish repositioned. Where this is the case, it is 
possible that all or most households in the geographic area impacted 
by a market modification would require a DISH technician to visit 
their home to make these equipment changes, which would be 
technically and economically infeasible.''). (DIRECTV does not 
indicate that it would have this same problem.)
    \172\ See Gray Comments at 6-7 (``Gray understands and 
appreciates the technical burdens that satellite operators face in 
adding signals to their satellite systems, but . . . Satellite 
operators therefore should be permitted to claim this exemption only 
in limited circumstances''); NAB Comments at 9 (``NAB urges the 
Commission to require satellite carriers claiming infeasibility due 
to insufficient spot beam coverage to provide spot beam contour 
diagrams to show whether a particular spot beam can be used to cover 
a particular community''); NAB Reply at 2-3 (saying that claims of 
infeasibility must be ``well substantiated and carefully 
examined''); WVIR-TV Reply at 2, para. 2 (asserting that the purpose 
of STELAR would be defeated if satellite operators do not ``bear the 
burden of proving the validity of an assertion of infeasibility''); 
WVIR-TV ex parte (dated Jul. 2, 2015) at 2 (same).
---------------------------------------------------------------------------

    32. We are persuaded by the satellite carriers that if the relevant 
spot beam does not cover the new community, then it is not technically 
and economically feasible for the carrier to provide the station to 
such new community.\173\ In such a scenario, the only available options 
would be to place the station on the satellite carrier's CONUS beam 
\174\ to reach subscribers in the new community, redirect each and 
every spot beam on the satellite in order to enable the relevant spot 
beam to cover the new community,\175\ or place the station on a second, 
neighboring spot beam that does cover the new community, if such a beam 
exists and has capacity. DIRECTV argues that it would be an 
``inefficient use of resources to devote a CONUS beam, which can be 
seen throughout the United States, to provide coverage to a single or 
handful of communities.'' \176\ Next, DIRECTV argues that, if the new 
community is covered by a different, neighboring spot beam than the one 
on which the station is carried, it would almost always lack space on 
such neighboring spot beam.\177\ Moreover, DIRECTV explains that, even 
if there were space, it ``would have to reserve capacity on the entire 
`neighboring' spot beam--capacity that could otherwise be used for a 
new station or a multicast signal carried throughout the neighboring 
market.'' \178\ Thus, it would be inefficient for the carrier to use 
that space on the neighboring spot beam for a station that could only 
be received by subscribers in a small part of the local market served 
by such spot beam.\179\

[[Page 59649]]

Finally, DIRECTV argues that redirecting the entire array of spot beams 
on the satellite, would cause unacceptable consequences to existing 
local service.\180\ We agree with these points and conclude that each 
of these options are per se technically and economically 
infeasible.\181\ Accordingly, we conclude that ``it is per se 
technically and economically infeasible for a satellite carrier to 
provide a station to subscribers who live in an area outside of the 
spot beam on which that station is currently carried.'' \182\ This 
conclusion is consistent with the Commission's past recognition and 
acceptance of the service constraints associated with the use of spot 
beams.\183\ This means that, if a carrier shows that the relevant spot 
beam does not provide coverage to the new community, then that is a per 
se demonstration of infeasibility. Thus, for example, a carrier would 
not need to show that there is no space on a neighboring spot beam or 
that it cannot reconfigure a spot beam to effectuate carriage.
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    \173\ See DIRECTV Reply at 7; DISH ex parte (dated Jun. 11, 
2015) at 3.
    \174\ DIRECTV carries all of its national programming on 
satellite beams that cover the entire contiguous United States 
(``CONUS''). DIRECTV Comments at 2. ``DIRECTV carries New York and 
Los Angeles stations on CONUS beams, but only because those stations 
are offered throughout the country as distant signals pursuant to 17 
U.S.C. 119 and 47 U.S.C. 339.'' DIRECTV Comments at 2, n.3.
    \175\ See DIRECTV Comments at 6-7, n.16.
    \176\ DIRECTV Reply at 7; DIRECTV Comments at 8. The Commission 
has previously recognized that ``to carry a local channel on a 
transponder designated for CONUS would be particularly inefficient 
as that channel could only be permissibly viewed in a single DMA.'' 
Carriage of Digital Television Broadcast Signals: Amendment to Part 
76 of the Commission's Rules; Implementation of the Satellite Home 
Viewer Improvement Act of 1999: Local Broadcast Signal Carriage 
Issues and Retransmission Consent Issues, CS Docket No. 00-96, 
Second Report and Order, Memorandum Opinion and Order, and Second 
Further Notice of Proposed Rulemaking, FCC 08-86, para. 11, 73 FR 
24502, May 5, 2008 (Satellite DTV Carriage Order). We note, however, 
that if the station seeking the market modification was already 
being carried on a CONUS satellite (e.g., the New York or Los 
Angeles stations), then carriage of such station would not be per se 
infeasible in a new community.
    \177\ DIRECTV explains that it ``has designed its spot beams to 
carry only the primary signals of stations within the local markets 
they cover. The vast majority of its spot beams are now currently 
full. In most cases, DIRECTV could not add a station to a 
`neighboring' spot beam without removing one of the stations already 
on that beam.'' DIRECTV Comments at 8, n.24.
    \178\ DIRECTV Comments at 9 (explaining that ``[r]eserving spot-
beam capacity for a station that could only be received in at most a 
handful of communities would represent a significant waste of 
spectral resources.''); DIRECTV Reply at 8 (explaining that devoting 
capacity to the station on a neighboring spot beam ``could preclude 
DIRECTV from carrying a new station that later commences service'' 
and also ``would certainly preclude DIRECTV from using the capacity 
in question to benefit viewers throughout the [local television 
market at issue],'' such as by adding a multicast feed from a local 
station.).
    \179\ We thus disagree with NAB that a satellite carrier should 
be required to show that the station could not be added to a spot 
beam different than the one on which the station is currently 
carried that does cover the new community. NAB ex parte (dated Jul. 
15, 2015) at 3 (arguing that ``the DBS carrier should be required to 
certify that the spot beam that does serve the affected communities 
does not have the capacity to carry the station unless another 
channel is deleted (or other technical or economic reason)''). We 
find that the financial and opportunity costs associated with 
requiring a carrier to use scarce capacity on a second spot beam for 
a station that could only be received by subscribers in a small part 
of the local market served by such spot beam makes carriage on such 
spot beam per se infeasible. See DIRECTV Reply at 9.
    \180\ See DIRECTV Comments at 6-7, n.16 (explaining that it 
generally cannot ``move'' spot beams on a satellite--except for 
SPACEWAY satellites which are being replaced--and that it could 
``slightly adjust the entire array of spot beams on the satellite 
simultaneously,'' but this would affect the local service provided 
by all of the spot beams on the satellite, thus ``disrupt[ing] 
[local] service across dozens of markets and negat[ing] DIRECTV's 
efforts to optimize population coverage.''); DIRECTV Reply at 7 
(``moving the entire array of spot beams means subscribers in 
portions of the [local television market at issue] and many other 
markets would lose all the local stations they now receive.'').
    \181\ See DIRECTV Reply at 7-9; DISH ex parte (dated Jun. 11, 
2015) at 3.
    \182\ DIRECTV Comments at 9; DISH ex parte (dated Jun. 11, 2015) 
at 3.
    \183\ In the DBS Broadcast Carriage Report and Order, the 
Commission allowed satellite carriers to use spot beam technology to 
provide local-into-local service, even if the spot beam did not 
cover the entire market. DBS Broadcast Carriage Report and Order, 
para. 42. The Commission ``observe[d] that section 338 does not 
require a satellite carrier to serve each and every county in a 
television market. Rather, it requires that in the areas it does 
provide local-into-local service, it must carry all local television 
stations subject to carriage under the statute.'' Id. The Commission 
``recognize[d] that there are some markets, such as the Denver DMA 
encompassing counties in four states, that are geographically 
expansive'' and that ``[a] spot beam may not be able to cover the 
entire DMA in these instances, and to make the satellite carrier 
reconfigure its spot beam may deprive it of capacity to serve 
additional markets with local-into-local coverage.'' Id.
---------------------------------------------------------------------------

    33. We recognize that there may be other technical or economic 
impediments to carriage that could qualify for the infeasibility 
exception. For example, DISH explains that it provides local broadcast 
stations from spot beams on several satellites at a variety of 
different orbital locations and that each subscriber's satellite dish 
must be pointed and configured to receive signals from a particular 
orbital location.\184\ Therefore, even if the station is on a spot beam 
that covers the new community, carriage of the station in the new 
community could still be infeasible if the station is carried on a 
different satellite at a different orbital location than the satellite 
providing local service to that community, because such carriage would 
require DISH to install a second satellite dish, replace an existing 
satellite dish, or reposition an existing satellite dish, at ``all or 
most households'' in the new community.\185\ We do not have sufficient 
information in the record to determine that the costs of customer 
equipment changes to accommodate reception from different orbital 
positions should be treated as per se infeasible. We will therefore 
consider assertions of this and other types of infeasibility on a case-
by-case basis.
---------------------------------------------------------------------------

    \184\ DISH ex parte (dated Jul. 8, 2015) at 1; DISH ex parte 
(dated Jun. 11, 2015) at 3.
    \185\ See DISH ex parte (dated Jul. 8, 2015) at 1; DISH ex parte 
(dated Jun. 11, 2015) at 3 (arguing such situation ``would impose 
very significant costs'' and should constitute economic 
infeasibility). In this presumably rare situation, the station at 
issue is on a spot beam that covers the new community, but this spot 
beam is different than the spot beam providing local service to the 
new community. (In other words, there are two spot beams that cover, 
to some extent, the new community at issue.) In addition, the two 
spot beams are on different satellites located at different orbital 
positions and, therefore, subscribers in the new community will need 
two satellite dishes pointed in different directions to get both the 
original local stations from one spot beam and the new local station 
from the second spot beam.
---------------------------------------------------------------------------

    34. Partial Spot Beam Coverage. The NPRM sought comment on how to 
handle a situation in which only part of a community could be served 
with the relevant spot beam.\186\ The satellite carriers oppose having 
to serve part of a community if the entire community is not covered by 
the spot beam, \187\ but DIRECTV says it determines spot-beam coverage 
based on zip codes and asserts that it would be able to serve a 
community defined as a county based on those zip codes within the 
county.\188\ NAB argues, however, that if carriage is viable within 
portions of a community that is the subject of a market modification 
request, then satellite carriers should be required to carry the 
station in those areas.\189\ We conclude that, if a satellite carrier 
can provide the station to only part of a new community, then it must 
do so.
---------------------------------------------------------------------------

    \186\ NPRM, para. 20 (``To the extent that a satellite carrier 
can provide the station at issue to some, but not all, subscribers 
in the community, should we allow or require the carrier to deliver 
the station to subscribers in the community who are capable of 
receiving the signal?'').
    \187\ See DISH Comments at 8-9 (arguing that ``any finding of 
technical or economic infeasibility should excuse a satellite 
carrier entirely from accommodating a market modification request, 
even if the satellite carrier can provide the station at issue to 
some, but not all, relevant subscribers''); DIRECTV Reply at 11, 
n.36 (agreeing with DISH).
    \188\ See DIRECTV Reply at 11-12.
    \189\ See NAB Comments at 9.
---------------------------------------------------------------------------

    35. As discussed above, the statute requires a satellite carrier to 
carry a station pursuant to a market modification, unless it is not 
technically and economically feasible for the carrier to do so. Given 
the relatively large size of many counties, we conclude that it would 
be a disservice to consumers, and would not fully effectuate the 
mandate of the satellite market modification provisions of the STELAR, 
to presume that partial carriage to a county-defined community is per 
se infeasible. We are not persuaded by DISH that requiring such partial 
coverage of a county would necessarily ``be burdensome and cause 
customer confusion for a satellite carrier to target the carriage of a 
station down to such a granular level, for example by providing a 
different local broadcast station to a subset of subscribers.'' \190\ 
DISH provides no evidence of the burdens associated with partial 
carriage. Any ``confusion'' is outweighed by the benefits of providing 
the added station to the customers who can receive it, consistent with 
Congressional intent in expanding market modification to satellite 
carriage. On a case-by-case basis, we will consider whether the area of 
a new community in which service is feasible is so de minimis that 
addition of that community to the station's market is effectively 
infeasible. We also disagree with DIRECTV to the extent that it claims 
that ``there is no underlying requirement to provide service in any 
particular area to begin with,'' and therefore ``the Commission need 
not `excuse' any particular [market modification].'' \191\ Pursuant to 
the ``carry one, carry all'' statutory requirement, a satellite carrier 
must carry, on request, all local television broadcast stations' 
signals in local markets in which the satellite carrier carries at 
least one local television broadcast signal pursuant to the statutory 
copyright license.\192\

[[Page 59650]]

Furthermore, the statutory language of the infeasibility exception in 
section 338(l)(3) contemplates that a carriage obligation would result 
from a market modification.\193\ If carriage were merely discretionary 
for the carrier, then there would be no need for the infeasibility 
exception to relieve the carrier of a carriage obligation. Therefore, 
if the carrier is providing local television broadcast stations to the 
new community pursuant to the local statutory copyright license, then 
it must also provide a station that becomes eligible for carriage as a 
local station in the new community by operation of the market 
modification.\194\
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    \190\ DISH Comments at 8-9.
    \191\ DIRECTV Reply at 11, n.36.
    \192\ See 47 U.S.C. 338. This requirement is subject to 
exceptions for duplicating stations and lack of good quality signal, 
as specified by statute and regulation. See 47 U.S.C. 338(b)(1), 
(c)(1); 47 CFR 76.66(g)(1), (h)(1) through (2).
    \193\ See 47 U.S.C. 338(l)(3) (``[a] market determination . . . 
shall not create additional carriage obligations . . .'' if carriage 
``is not technically and economically feasible. . .'').
    \194\ See 47 U.S.C. 338(a). We note that, by operation of the 
market modification, the station will be afforded ``carry one, carry 
all'' carriage rights in the area of the new community in which a 
carrier provides the other local broadcast stations to the extent 
the spot beam on which it is carried covers such area of the new 
community. See id. If the spot beam on which the new local station 
is carried is different than the one providing local-into-local 
service to the new community, and therefore the spot beam coverage 
for the two beams will be different, there may be an area in the new 
community that had not been receiving local-into-local service, but 
could receive the new local station. In this situation, the new 
station by operation of the market modification would be eligible 
for carriage as a local station in such area of the new community, 
pursuant to 47 U.S.C. 338(a) (``carry one, carry all'').
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2. Demonstrating Infeasibility
    36. Based on the record, we expect the vast majority of satellite 
carrier claims of infeasibility will be related to insufficient spot 
beam coverage. Because of the technical complexities involved in 
demonstrating spot beam coverage infeasibility, including the use of 
proprietary confidential information, we establish a streamlined 
process for carriers to demonstrate spot beam coverage infeasibility 
through the use of detailed certifications under penalty of perjury, 
based on a proposal by DIRECTV. Because of the limited record with 
respect to other possible claims of infeasibility, and our expectation 
that such other claims will be relatively rare, we do not at this time 
establish a detailed certification process for demonstrating other 
types of infeasibility. Instead, carriers will be required to 
demonstrate other types of infeasibility through the submission of 
evidence specifically demonstrating the technical or economic reason 
that carriage is infeasible. Although prospective petitioners will have 
two options for seeking a Commission determination about the carrier's 
claim of infeasibility (i.e., filing a market modification petition or 
filing a separate petition beforehand solely with respect to the 
infeasibility issue), the requirements for demonstrating infeasibility 
are the same for both options.
    37. The NPRM tentatively concluded that the satellite carrier has 
the burden to demonstrate technical or economic infeasibility and 
invited comment on the type of evidence needed to prove such 
infeasibility claims.\195\ Most commenters, including the broadcasters 
and DISH, agree that the statute places the burden on satellite 
carriers to demonstrate infeasibility; \196\ however, satellite 
carriers contend that a certification should be sufficient to meet its 
burden,\197\ while broadcasters say an ``unverifiable'' certification 
would be inadequate to meet their burden under the statute and that a 
carrier should be required to provide documentation that demonstrates 
infeasibility.\198\
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    \195\ NPRM, paras. 19-20.
    \196\ DISH Comments at 7; Gray Comments at 6-7; NAB Comments at 
7; WVIR-TV Reply at 1.
    \197\ DIRECTV ex parte (dated Jun. 11, 2015) at 1 (stating that 
its proposed detailed certification would ``easily satisfy any 
requirement that satellite carriers `substantiate' and the 
Commission `examine' the technical and economic infeasibility of 
spot-beam carriage in these areas, even though no such requirement 
appears in the statute itself.''); DISH Comments at 7 (``the 
Commission should limit the required showing to a certification from 
the satellite carrier that it has analyzed the proposed market 
modification and has determined that it is not technically and 
economically feasible for such carrier to accomplish such carriage. 
A certification should be sufficient, because the types of evidence 
that the Commission might request could be technically or 
competitively sensitive, such as spot beam contour maps, cost of 
equipment upgrades, and subscriber numbers in a given geographic 
area.'').
    \198\ See NAB Reply at 2 (quoting legislative history that 
``Congress intended satellite carrier claims of technical and 
economic infeasibility `should be well substantiated and carefully 
examined by the [Commission] as part of the petition consideration 
process.' ''); WVIR-TV Reply at 2 (arguing that the purpose of 
STELAR is frustrated if satellite carriers are not required to 
actually prove infeasibility). See also NAB Reply at 3 (``an 
approach that involves only an unverifiable certification would be 
inadequate''); Gray Comments at 6 (arguing that satellite carrier 
claims of infeasibility must be ``conclusively demonstrated'').
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    38. We adopt our tentative conclusion that the statute places the 
burden on satellite carriers to demonstrate infeasibility if they 
assert that carriage of a station in a new community would be 
technically or economically infeasible. Our conclusion is consistent 
with the legislative history that claims of infeasibility be ``well 
substantiated and carefully examined by the [Commission].'' \199\ 
Moreover, we agree with commenters that, as a practical matter, only 
the satellite carriers have the specific information necessary to 
determine if the carriage contemplated in a market modification would 
not be technically and economically feasible by operation of their 
satellites.\200\
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    \199\ Senate Commerce Committee Report at 11.
    \200\ See DISH Comments at 7; WVIR-TV Reply at 1.
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    39. We adopt a certification process for carriers to demonstrate 
spot beam coverage infeasibility that should avoid imposing undue 
expense on, or compromising the confidential business information of, 
the satellite carriers while also providing the Commission with an 
appropriate basis for making market modification determinations. We 
conclude that a detailed certification submitted under penalty of 
perjury would satisfy the carrier's burden under the statute to 
substantiate their claims of insufficient spot beam coverage and allow 
us to carefully examine such claims of infeasibility.\201\ Broadcasters 
argue that ``the mere `certification' proposed by satellite carriers 
would not comport with the legislative intent of the technical and 
economic infeasibility provision'' and that ``an approach that involves 
only an unverifiable certification would be inadequate.'' \202\ 
Instead, broadcasters argue that satellite carriers should be required 
to make detailed technical showings related to spot-beam coverage.\203\ 
NAB argues that if the Commission chooses to use a certification 
approach, then we should at least require certain supporting 
documentation be provided with the certification or in the event of a 
Commission audit of a certification.\204\

[[Page 59651]]

We agree that a simple certification would not be appropriate, but we 
also agree with DIRECTV that it would be anomalous to require 
compendious and detailed evidentiary showings for spot beam coverage of 
modified local markets when such showings are not (and have never been) 
required for the provision of local service to unmodified local 
markets.\205\ Therefore, we adopt a certification process that requires 
satellite carriers to evaluate the feasibility of providing the station 
to the new community in the same manner that it currently uses to 
determine where in the relevant DMA it can provide the current local 
broadcast stations.\206\ These ``detailed certifications'' about spot 
beam coverage infeasibility must contain sufficient detail to ensure 
that the analysis performed by the carrier was appropriate and valid, 
and they will be subject to penalties for perjury to ensure its 
reliability. The Commission's review of the detailed certification will 
generally be limited to determining whether it satisfies the procedural 
and content requirements described herein.\207\ Although we will not 
require carriers to provide supporting documentation as part of their 
certification, as an additional check the Commission may decide to look 
behind any certification and require supporting documentation when we 
deem it appropriate, such as when there is evidence that the 
certification may be inaccurate.\208\
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    \201\ DIRECTV ex parte (dated Jun. 11, 2015) at 1.
    \202\ NAB Reply at 2. See also WVIR-TV Reply at 2 (opposing 
DISH's proposal to ``self-certify'' without providing supporting 
documentation). WVIR-TV explains that ``[s]ince information about 
feasibility is entirely within the possession of the DBS operator, 
the DBS operator should bear the burden of proving the validity of 
an assertion of infeasibility. Otherwise, broadcasters will be 
completely at the mercy of DBS operators who oppose market 
modifications, largely defeating the purpose of the STELAR statute, 
if not rendering it a nullity.'' Id. NAB also argues that a 
certification approach ``would also be inconsistent with the 
Commission's longstanding approach to market modification requests 
in the cable context, which involve a substantial evidentiary 
showing.'' NAB Reply at 2-3. The issue of infeasibility, however, is 
separate from our analysis of the merits of modifying a market under 
the statutory factors.
    \203\ See NAB Comments at 9 (asking the Commission ``to require 
satellite carriers claiming infeasibility due to insufficient spot 
beam coverage to provide spot beam contour diagrams to show whether 
a particular spot beam can be used to cover a particular community'' 
and ``to document that reconfiguring a spot beam, or adding a 
station to another spot beam that does cover an affected community 
would be technically or economically infeasible''); Gray Comments at 
6 (arguing that satellite carriers should ``be required to 
conclusively demonstrate technical infeasibility'').
    \204\ See NAB ex parte (dated Jul. 15, 2015) at 1-2.
    \205\ DIRECTV ex parte (dated Jun. 11, 2015) at 1. In other 
words, because a carrier does not normally have to demonstrate 
insufficient spot beam coverage with respect to the provision of 
local service to a local television market (i.e., a carrier provides 
local service in the areas of the market covered by the relevant 
spot beam), it would be inconsistent to require a carrier to make a 
detailed demonstration of insufficient spot beam coverage with 
respect to the provision of local service to a new community added 
to such market. See DBS Broadcast Carriage Report and Order, para. 
42 (allowing satellite carriers to use spot beam technology to 
provide local-into-local service, even if the spot beam did not 
cover the entire market).
    \206\ We note that this certification process will be explained 
in the consumer guide that we create to comply with the STELAR 
section 102(c).
    \207\ See infra at para. 41 (Content of Spot Beam Coverage 
Infeasibility Detailed Certification).
    \208\ 47 U.S.C. 154(i), 154(j), 308(b), 403. If we find that a 
satellite carrier is claiming infeasibility with respect to a 
significant number of requests, we may decide to start routinely 
requiring that carrier to provide supporting documentation with its 
certification. See infra at para. 40 (Supporting Documentation). See 
also NAB ex parte (dated Jul. 15, 2015) at 2 (urging the Commission 
to require carriers to file certain materials supporting 
certifications).
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    40. Supporting Documentation. In the event that we require 
supporting documentation, we will require a satellite carrier to 
provide its ``satellite link budget'' calculations that were created 
for the new community. DIRECTV explains that a ``satellite link budget 
is a calculation that accounts for certain factors that affect a radio 
signal as it travels from an uplink earth station to a space station 
and back down through the atmosphere to the customer's earth station 
receiver'' and that this technical document ``generally takes the form 
of a table, with entries that include (among other things) transmit 
power from the uplink earth station and from the satellite, antenna 
gains, system noise, intersystem interference, and atmospheric 
attenuation including the effects of `rain fade.' '' \209\ DIRECTV 
states that the net result of this satellite link budget calculation 
``is an estimation of end-to-end satellite link performance.'' \210\ 
DIRECTV pointed out that the supporting materials suggested by NAB are 
in fact inputs for ``link budgets.'' \211\ We agree with DIRECTV and 
NAB that it would be appropriate to require a carrier to submit 
satellite link budget information if the Commission were to determine 
in a given case that supporting documentation should be provided to 
support a detailed certification.\212\ Thus, we require satellite 
carriers to retain such supporting documentation in the event that the 
Commission determines further review by the Commission is necessary. 
Satellite carriers must retain such supporting documentation throughout 
the pendency of Commission or judicial proceedings involving the 
certification and any related market modification petition.\213\ We 
find this retention period will provide parties with a reasonable 
amount of time to challenge certifications. If satellite carriers have 
concerns about providing proprietary and confidential information 
underlying their analysis, they may request confidentiality.\214\
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    \209\ DIRECTV ex parte (dated Jul. 23, 2015) at 1.
    \210\ Id.
    \211\ Id. NAB stated that detailed certifications provided by 
the carrier to demonstrate spot beam coverage infeasibility should 
be supported by the following documentation: ``(1) the latitude and 
longitude of the calculation point used for each zip code in 
analyzing (a) the measured performance of the spot beam covering 
station's local market; (b) the estimated atmospheric effects for 
reception of the signal; and (c) the estimated levels of 
interference]; (2) predicted clear-sky signal level based on actual 
spot beam performance; (3) rain fade statistics and predicted 
reductions in signal level; (4) predicted levels of inter-system 
interference; and (5) determination of service or ``no service'' at 
the calculation point (in map form with county boundaries shown).'' 
See NAB ex parte (dated Jul. 15, 2015) at 2.
    \212\ See NAB ex parte (dated Jul. 15, 2015) at 2; DIRECTV ex 
parte (dated Jul. 23, 2015) at 1 (``if a satellite carrier were to 
certify that it could not serve some or all of a proposed modified 
area, and Commission staff were to find a genuine dispute of fact 
related to such certification, the Commission could require the 
satellite carrier to submit a representative link budget for the 
area in question for staff review on a confidential basis.'').
    \213\ See NAB ex parte (dated Jul. 15, 2015) at 2 (seeking 
carrier retention of supporting material ``for a period of either: 
(i) Two years; or (ii) throughout the pendency of Commission or 
judicial proceedings involving the certification and any related 
market modification petition, whichever is longer''); DIRECTV ex 
parte (dated Jul. 23, 2015) at 2. (``Satellite carriers could be 
required to preserve records sufficient to generate such a 
representative link budget, presumably during the pendency of any 
market modification proceeding.'').
    \214\ See 47 CFR 0.457, 0.459, 76.9.
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    41. Content of Spot Beam Coverage Infeasibility Detailed 
Certification. Based on DIRECTV's proposed detailed certification,\215\ 
a satellite carrier's certification of infeasibility due to 
insufficient spot beam coverage must contain the following elements in 
order to be used and relied upon as evidence to demonstrate carrier 
claims of technical and economic infeasibility. First, the detailed 
certification must explain why carriage is not technically and 
economically feasible, including a detailed explanation of the 
``process by which a satellite carrier has determined whether or not 
the spot beam in question covers the geographic area at issue.'' \216\ 
Second, to ensure equal treatment to all stations, the detailed 
certification must state that the satellite carrier ``has conducted 
this analysis in substantially the same manner and using substantially 
the same parameters used to determine the geographic area in which it 
currently offers stations carried on the spot beam.'' \217\ Finally, 
the satellite carrier must support its detailed certification with an 
affidavit or declaration under penalty of perjury, as contemplated 
under section 1.16 of the Commission's rules and 28 U.S.C. 1746,\218\ 
signed and dated by an authorized officer of the satellite carrier with 
personal knowledge of the representations provided in the 
certification, verifying the truth and accuracy of the information 
therein.\219\
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    \215\ See DIRECTV ex parte (dated Jul. 9, 2015) at 3-4. We find 
that DIRECTV's proposed detailed certification would meet a 
satellite carrier's burden to demonstrate spot beam coverage 
infeasibility.
    \216\ DIRECTV ex parte (dated Jun. 23, 2015) at 1.
    \217\ DIRECTV ex parte (dated Jul. 9, 2015) at 4.
    \218\ 47 CFR 1.16 (Declarations under penalty of perjury in lieu 
of affidavits). See 28 U.S.C. 1746.
    \219\ We further note that willful false statements in a 
certification are punishable by fine and/or imprisonment pursuant to 
18 U.S.C. 1001, may result in loss of a satellite carrier's licenses 
and authorizations (47 U.S.C. 312), and may subject the satellite 
carrier to forfeiture (47 U.S.C. 503). See also 47 CFR 1.17. See NAB 
ex parte (dated Jul. 15, 2015) at 2-3.
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    42. We will consider on a case-by-case basis other claims of 
technical or economic infeasibility, such as DISH's

[[Page 59652]]

claim of infeasibility due to the costs associated with changing 
customer satellite dishes to accommodate reception from different 
orbital locations. In addition, there may be circumstances of technical 
and economic infeasibility not yet contemplated. As discussed above, a 
satellite carrier bears the burden of demonstrating that the carriage 
contemplated in a market modification would not be technically and 
economically feasible by operation of its satellites. To demonstrate 
such infeasibility, a carrier must provide detailed technical or 
economic information to substantiate its claim of infeasibility.
3. Infeasibility Determinations
    43. We will resolve disputes about carrier claims of infeasibility 
either in the context of a market modification proceeding or, at a 
prospective petitioner's option, in a separate proceeding before a 
market modification petition is filed. Thus, a prospective petitioner 
has two options. First, a prospective petitioner may file its market 
modification petition. In such cases, a satellite carrier would raise 
any claim of infeasibility in response to the petition and we would 
make a determination about the validity of such claim (and would not 
further process a petition for which the resulting carriage is 
infeasible). We recognize that prospective petitioners may want to know 
about carrier's claims of infeasibility, and may want a Commission 
determination about the validity of such claim, before filing a market 
modification petition. Therefore, a prospective petitioner's second 
option is to initiate the pre-filing coordination process (described 
below). Through this process, a prospective petitioner would request 
information from a carrier about infeasibility and a carrier would 
raise any claim of infeasibility in response to this request in the 
form of a certification. A carrier claiming spot beam coverage 
infeasibility must provide the detailed certification (described 
above). For all other claims of infeasibility, the certification 
provided for here is for the purpose of a carrier to notify the 
prospective petitioner about the carrier's claim of infeasibility prior 
to a petition being filed. The prospective petitioner can then decide 
whether it would like to file a special relief petition to obtain a 
Commission determination about the validity of the carrier's claim of 
infeasibility.\220\
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    \220\ As discussed above, in cases other than spot beam coverage 
infeasibility, a carrier will be required to provide evidence to 
support its claim of infeasibility. In the case of a claim of spot 
beam coverage infeasibility, the Commission's review of the 
certification will generally be limited to determining whether it 
meets with the requirements for a ``detailed certification.'' See 
supra section III.D.2.
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    44. The NPRM tentatively concluded that a satellite carrier must 
raise any technical or economic impediments in the market modification 
proceeding.\221\ The NPRM sought comment on whether the Commission, in 
the case of satellite market modifications, should require or encourage 
stations seeking market modifications to contact a satellite carrier 
before filing a market modification request in order to get an initial 
determination of whether the carrier considers the request technically 
and economically feasible.\222\ The NPRM observed that such an initial 
inquiry might save some broadcasters the time and expense of compiling 
the standardized evidence for a modification that is not technically 
and economically feasible by alerting them to the technical or economic 
issue, which they could then take into account in deciding whether to 
file the request.\223\
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    \221\ NPRM, para. 19. The NPRM further considered whether the 
satellite carrier should be deemed to have waived technical or 
economic infeasibility arguments if not raised in response to the 
market modification request (and, thus, be prohibited from raising 
such a claim after a market determination, such as in response to a 
station's request for carriage). Id.
    \222\ NPRM, para. 21.
    \223\ NPRM, para. 21.
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    45. Most commenters support addressing satellite carrier claims of 
infeasibility before a broadcaster files a prospective market 
modification petition; \224\ however, NAB argues that a satellite 
carrier's claim of infeasibility should not preclude the filing of a 
market modification petition.\225\ Commenters seem to agree that 
satellite carriers generally must raise claims of technical and 
economic infeasibility during, if not before, the market modification 
proceeding.\226\ Broadcasters, however, argue that a satellite carrier 
should be deemed to have waived technical and economic infeasibility 
claims if not raised in or before a market modification 
proceeding,\227\ while DIRECTV argues that satellite carriers should 
not be precluded from raising future claims of infeasibility, such as 
technical infeasibility due to reduced spot beam coverage.\228\
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    \224\ DIRECTV Comments at 11; Gray Comments at 6; WVIR-TV Reply 
at 2 n.1.
    \225\ NAB Comments at 9-10.
    \226\ See NAB Comments at 7 (stating that ``the statute requires 
satellite carriers to raise any technical or economic impediments in 
the context of the market modification proceeding''); Gray Comments 
at 6 (stating ``the rules should require satellite providers to 
assert technical infeasibility before broadcasters go through the 
trouble and expense of preparing a market modification petition''); 
DIRECTV Comments at 11 (stating that it would be willing to provide 
a certification to broadcasters about ``whether DIRECTV's spot beam 
covers the communities they would like to add to their local 
markets'' before a broadcaster seeks a prospective market 
modification because ``[s]uch information . . . would prove of most 
value to stations before they undergo the time and effort of filing 
a market modification petition.'').
    \227\ NAB Comments at 7 (stating that ``that a satellite carrier 
be deemed to have waived technical and economic infeasibility 
arguments if they are not raised during a market modification 
proceeding''); Gray at 6 (asserting that ``[f]ailure to assert 
`technical infeasibility' at this stage of the process would 
foreclose the satellite provider from later claiming technical 
infeasibility.'').
    \228\ DIRECTV Comments at 10 n.28 (``The possibility of 
technical problems reducing spot-beam coverage serves as yet another 
reason why satellite carriers should not lose `rights' to assert 
feasibility issues if they do not raise them during a market 
modification proceeding'').
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    46. We conclude that it is most efficient and practical for 
stakeholders to consider and resolve satellite carrier claims of 
technical or economic infeasibility before petitioners go through the 
time and expense of seeking a prospective market modification and 
before the Commission uses administrative resources to evaluate the 
merits of a prospective market modification petition under the five 
statutory factors. Therefore, we slightly modify our tentative 
conclusion and proposal.\229\ We conclude that a satellite carrier must 
raise any technical or economic impediments either in the market 
modification proceeding or prior to the market modification proceeding 
in response to a broadcaster or county government inquiry about 
feasibility of carriage resulting from a prospective market 
modification.\230\
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    \229\ NPRM, para. 19.
    \230\ In the event that a previously feasible market 
modification were to later become infeasible (e.g., due to reduction 
of spot beam coverage), the satellite carrier must file a petition 
for market modification to delete the previously added new community 
from the station's local market and provide evidence of 
infeasibility (e.g., spot beam infeasibility certification). See 
DIRECTV Comments at 10 n.28.
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    47. Pre-Filing Coordination Process. We establish a process that 
will allow a prospective petitioner (broadcaster or county government), 
at its option, to obtain a certification from a satellite carrier about 
whether or not (and to what extent) carriage resulting from a 
contemplated market modification is technically and economically 
feasible for such carrier before the prospective petitioner undertakes 
the time and expense of preparing and filing a market modification 
petition.\231\ To initiate this

[[Page 59653]]

process, a prospective petitioner may make a request in writing to a 
satellite carrier for the carrier to provide the certification about 
the feasibility or infeasibility of carriage. A satellite carrier must 
respond to this request within a reasonable amount of time by providing 
a feasibility certification to the prospective petitioner. A satellite 
carrier must also file a copy of the correspondence \232\ and 
feasibility certification it provides to the prospective petitioner in 
this docket electronically via ECFS \233\ so that the Media Bureau can 
track these certifications and monitor carrier response time. If the 
carrier is claiming spot beam coverage infeasibility, then the 
certification provided by the carrier must be the same type of detailed 
certification that would be required in response to a market 
modification petition (discussed above).\234\ For any other claim of 
infeasibility, the carrier's feasibility certification must explain in 
detail the basis of such infeasibility \235\ and must be prepared to 
provide documentation in support of its claim, in the event the 
prospective petitioner decides to seek a Commission determination about 
the validity of the carrier's claim. If carriage is feasible, a 
statement to that effect must be provided in the certification. To 
obtain a Commission determination about the validity of the carrier's 
claim of infeasibility, a prospective petitioner must either file a 
(separate) petition for special relief \236\ or its market modification 
petition.\237\
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    \231\ See Gray Comments at 7 (stating ``there should be a 
procedure for resolving disputes over technical infeasibility before 
broadcasters invest in making the necessary market modification 
showing''); DIRECTV Comments at 11 (``the most efficient process 
regarding feasibility would be for a station that is considering 
filing a market modification petition to first ask the two satellite 
carriers if they can provide the station in the communities 
proposed''). Although we encourage prospective petitioners to 
utilize the optional procedure for obtaining information and, if 
necessary, Commission determinations regarding carrier claims of 
infeasibility, we decline to require this preliminary procedure in 
order to provide petitioners with flexibility to decide which 
procedure is best suited for their situation.
    \232\ Correspondence would include, for example, a brief cover 
letter and the prospective petitioner's initiating request for the 
feasibility certification provided.
    \233\ A satellite carrier must file the correspondence and 
feasibility certification electronically into this docket through 
the Commission's Electronic Comment Filing System (``ECFS'') using 
the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/. 
The filing must be clearly designated as a ``STELAR feasibility 
certification'' and must clearly reference this proceeding and 
docket number (MB Docket No. 15-71).
    \234\ See supra at paras. 39-41. NAB ex parte (dated Jul. 15, 
2015) at 2 (with respect to a ``pre-filing process,'' stating that 
``the satellite carrier should be required to undertake the same 
steps and make the same certification that would be involved in 
connection with an actual petition'').
    \235\ The carrier must state in its certification that the new 
community is covered by the relevant spot beam, but carriage is 
nevertheless infeasible and explain why.
    \236\ See 47 CFR 76.7.
    \237\ The Bureau may on its own motion review the adequacy of a 
certification filed in the docket, but generally a prospective 
petitioner must request such review by filing a petition for special 
relief; 47 CFR 76.7. See Gray Comments at 7 (stating ``[i]f a 
broadcaster wishes to challenge the satellite operator's showing, it 
should be permitted to do so either before filing a market 
modification petition or concurrent with a petition as part of the 
market modification proceeding.''); NAB ex parte (dated Jul. 15, 
2015) at 2 (stating that ``the satellite carrier's determination 
should be reviewable by the FCC and result in a final FCC action 
that could be the subject of a petition for reconsideration, 
applications for review (and ultimately, court review'').
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    48. For purposes of determining a reasonable amount of time for a 
carrier to respond to a request for a feasibility certification, we 
find a carrier should generally respond within 45 days of receipt of a 
prospective petitioner's written request; \238\ however, we find that 
it would be reasonable for the carrier to respond in 90 days if the 
carrier has to process several requests at the same time.\239\ If the 
response is after 45 days, the carrier must provide an explanation for 
the longer time period in its certification (e.g., having to respond to 
multiple simultaneous requests).\240\ With this process, we are trying 
to balance the need to provide broadcasters' with as fast a response as 
possible, while recognizing that satellite carriers may have difficulty 
responding to numerous requests at once.
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    \238\ See Gray Comments at 6 (stating that satellite carriers 
should be required to respond to requests about spot-beam coverage 
within a ``specified period'' such as 30 or 45 days).
    \239\ DIRECTV explains that ``while DIRECTV will endeavor to 
respond to any and all requests as soon as it can, it should not be 
required to do so in fewer than 90 days, particularly if required to 
respond to multiple simultaneous requests.'' DIRECTV Reply at 10.
    \240\ If the Media Bureau finds that a carrier is routinely 
taking up to 90 days to respond or is not providing a reasonable 
explanation for when it takes 90 days to respond, the Bureau may 
order such carrier to respond to future requests in a shorter time 
period or may take other enforcement action.
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    49. The NPRM proposed that a meritorious market modification 
request would be granted even if such grant would not create a new 
carriage obligation at that time, for example, due to a finding of 
technical or economic infeasibility.\241\ The NPRM explained that this 
would ensure that, if there is a change in circumstances such that it 
later becomes technically and economically feasible for the satellite 
carrier to carry the station, then the station could assert its 
carriage rights pursuant to the earlier market modification.\242\ The 
NPRM also sought comment on whether to impose a reporting requirement 
on satellite carriers to notify the affected broadcaster if 
circumstances change at a later time making it technically and 
economically feasible for the carrier to carry the station.\243\ NAB 
supports the proposal to grant a meritorious market modification 
request, even if the grant would not create a new carriage obligation 
at that time because of a finding of technical or economic 
infeasibility.\244\ Commenters split regarding whether to require 
satellite carriers to provide notice if and when carriage later becomes 
feasible. Broadcasters support such a requirement,\245\ while satellite 
carriers oppose it.\246\
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    \241\ NPRM, para. 19. The NPRM noted that this is consistent 
with the cable carriage context, in which the Commission might grant 
a market modification, even if such grant would not result in a new 
carriage obligation at that time, for example, due to the station 
being a duplicating signal. See 47 CFR 76.56(b)(5).
    \242\ NPRM, para. 19. This concept is similar to the duplicating 
signals situation, in which a satellite carrier must add a 
television station to its channel line-up if such station no longer 
duplicates the programming of another local television station. See 
47 CFR 76.66(h)(4). Alternatively, the NPRM sought comment on 
whether we should deny a market modification request that would not 
create a new carriage obligation at the time of the determination. 
NPRM, para. 19.
    \243\ NPRM, para. 20. The NPRM asked ``Would such changes in 
circumstances be sufficiently public so as to not necessitate the 
burden of such a reporting requirement? If not notified by the 
carrier, how else could a broadcaster find out about such a change 
in the feasibility of carriage?'' Id.
    \244\ NAB Comments at 7-8.
    \245\ See Gray Comments at 7 (``Satellite operators likewise 
should be required to notify broadcasters and the FCC within sixty 
days of any change that results in previously infeasible carriage 
becoming feasible.''); NAB Comments at 8; WVIR-TV Reply at 3. Gray 
suggests that this requirement include notice to the broadcaster and 
the Commission within sixty days of feasibility, as well as periodic 
reports affirming continued infeasibility. Gray Comments at 7.
    \246\ See DISH Comments at 8 (arguing that ``a [reporting] 
requirement would be unduly burdensome for the satellite carrier 
because it would require a carrier to constantly track and 
reevaluate an unknown number of market modification requests.''); 
DIRECTV Comments at 10 (``the Commission should not require ongoing 
monitoring or reporting of spot beam issues. . . . [A]bsent 
technical problems reducing spot-beam coverage, spot beams remain 
static for the life of the satellite.'').
---------------------------------------------------------------------------

    50. We conclude that we will not grant a market modification 
petition that could not create a new carriage obligation at that time 
due to a finding of technical or economic infeasibility. We find that 
our conclusion is more consistent with the statute's requirement that a 
market modification ``shall not create additional carriage obligations 
for a satellite carrier'' if it is infeasible ``at the time of the 
determination.'' \247\ We also note that

[[Page 59654]]

claims of infeasibility related to a carrier's satellites are not 
likely to change for the life of a satellite, which can be as long as 
15 years.\248\ Because we will not grant a market modification for 
which carriage would be infeasible, we find it unnecessary to require 
satellite carriers to provide notice if and when carriage later becomes 
feasible. Instead, a petitioner may re-initiate the process if at a 
later time a satellite carrier has deployed new satellites that could 
change this feasibility determination.
---------------------------------------------------------------------------

    \247\ See 47 U.S.C. 338(l)(3). See also Senate Commerce 
Committee Report at 11 (indicating an expectation that ``a 
petitioner may refile its petition if at a later time a satellite 
carrier has deployed new satellites that could change this 
feasibility determination'').
    \248\ See DIRECTV Comments at 10 (``absent technical problems 
reducing spot-beam coverage, spot beams remain static for the life 
of the satellite''); DIRECTV ex parte (dated Jul. 9, 2015) at 2 
(``While the figure varies for individual satellites, 15 years 
represents a good `rule of thumb' for the life of a direct-to-home 
geostationary satellite.''). See also Amendment of Commission's 
Space Station Licensing Rules and Policies, IB Docket No. 00-248, 
First Report and Order, FCC 02-45, para. 143, 67 FR 12485, Mar. 19, 
2002.
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E. No Effect on Eligibility To Receive Distant Signals via Satellite

    51. We adopt our proposal to codify the language of section 
338(l)(5), which provides that ``[n]o modification of a commercial 
television broadcast station's local market pursuant to this subsection 
shall have any effect on the eligibility of households in the community 
affected by such modification to receive distant signals pursuant to 
section 339, notwithstanding subsection (h)(1) of this section.'' \249\ 
We also adopt our interpretation of this provision as an exception to 
the restrictions on a satellite subscriber's eligibility to receive 
``distant'' (out-of-market) signals.\250\ Commenters on this issue 
supported our proposal.\251\
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    \249\ 47 U.S.C. 338(l)(5); NPRM, para. 22. See 47 CFR 76.59(f).
    \250\ NPRM, para. 22.
    \251\ See DIRECTV Comments at 8 n.21; DISH Comments at 6.
---------------------------------------------------------------------------

    52. The Communications Act and copyright laws set out two key 
restrictions on a satellite subscriber's eligibility to receive 
``distant'' (out-of-market) signals.\252\ First, subscribers are 
generally eligible to receive a distant station from a satellite 
carrier only if the subscriber is ``unserved'' over the air by a local 
station of the same network.\253\ Second, even if ``unserved,'' a 
subscriber is not eligible to receive a distant station from a 
satellite carrier if the carrier is making ``available'' to such 
subscriber a local station of the same network.\254\ We conclude that 
section 338(l)(5) is largely intended as an exception to these two 
subscriber eligibility requirements. In other words, we find that the 
addition of a new local station to a local television market by 
operation of a market modification (which might otherwise restrict a 
subscriber's eligibility to receive a distant station) would not 
disqualify an otherwise eligible satellite subscriber from receiving a 
distant station of the same network. For example, a subscriber may be 
receiving a distant station because the subscriber resides in a ``short 
market,'' \255\ has obtained a waiver from the relevant network 
station,\256\ or is otherwise eligible to receive distant signals 
pursuant to section 339. That subscriber will continue to be eligible 
to receive the distant station after a market modification that adds a 
new local station of the same network.
---------------------------------------------------------------------------

    \252\ See 17 U.S.C. 119; 47 U.S.C. 339. Generally, a station is 
considered ``distant'' with respect to a subscriber if such station 
originates from outside of the subscriber's local television market 
(or DMA). See id.
    \253\ The Copyright Act defines an ``unserved household,'' with 
respect to a particular television network, as ``a household that 
cannot receive, through the use of an antenna, an over-the-air 
signal containing the primary stream, or, on or after the qualifying 
date, the multicast stream, originating in that household's local 
market and affiliated with that network--(i) if the signal 
originates as an analog signal, Grade B intensity as defined by the 
Federal Communications Commission in section 73.683(a) of title 47, 
Code of Federal Regulations, as in effect on January 1, 1999; or 
(ii) if the signal originates as a digital signal, intensity defined 
in the values for the digital television noise-limited service 
contour, as defined in regulations issued by the Federal 
Communications Commission (section 73.622(e) of title 47, Code of 
Federal Regulations), as such regulations may be amended from time 
to time. 17 U.S.C. 119(d)(10)(A). An unserved household can also be 
one that is subject to one of four statutory waivers or exemptions. 
See 47 U.S.C. 119(d)(10)(B) through (E).
    \254\ See 47 U.S.C. 339(a)(2); 17 U.S.C. 119(a)(3). This second 
restriction on eligibility is commonly referred to as the ``no 
distant where local'' rule. A satellite carrier makes ``available'' 
a local signal to a subscriber or person if the satellite carrier 
offers that local signal to other subscribers who reside in the same 
zip code as that subscriber or person. 47 U.S.C. 339(a)(2)(H). See 
also 17 U.S.C. 119(a)(3)(F).
    \255\ See 47 U.S.C. 339(a)(2)(C); 17 U.S.C. 119(d)(10). By a 
``short market,'' we refer to a market in which one of the four 
major television networks is not offered on the primary stream of a 
local broadcast station, thus permitting satellite carriers to 
deliver a distant station affiliated with that missing network to 
subscribers in that market.
    \256\ See 47 U.S.C. 339(a)(2)(E).
---------------------------------------------------------------------------

    53. The NPRM sought comment on whether section 338(l)(5) also means 
that the deletion of a local station from a local television market by 
operation of a market modification would not make otherwise ineligible 
subscribers now eligible to receive a distant station of the same 
network.\257\ We agree with DIRECTV that this provision ``was meant to 
ensure that households would not lose eligibility for distant signals 
for which they were eligible prior to modification'' and should not 
``be interpreted as denying distant signals to subscribers who newly 
become eligible for them because they have lost their local signals 
through market modification.'' \258\ Thus, the deletion of a local 
network station from a community by operation of a market modification 
may allow a satellite carrier to import a distant station of the same 
network into such community, provided subscribers in such community 
would now satisfy the requirements for receipt of distant stations 
(pursuant to section 339).
---------------------------------------------------------------------------

    \257\ NPRM, para. 22.
    \258\ DIRECTV Comments at 7-8, n.21.
---------------------------------------------------------------------------

F. Definition of Community

    54. For purposes of a satellite market modification, we define a 
``satellite community'' as a county, which is supported by all 
commenters on this issue.\259\ Consistent with the cable context, in a 
market modification request, the petitioner will define the satellite 
community (or communities) to be added or deleted from a particular 
station's local television market. We also retain our existing 
definition of a ``cable community'' for purposes of a cable market 
modification, having received no comment on this issue.
---------------------------------------------------------------------------

    \259\ See 47 CFR 76.5(gg)(2). See DISH Comments at 6; Gray 
Comments at 3; UCC Comments at 8; Sen. Bennet et al. Letter at 1. 
See also DIRECTV Reply at 11-12 (stating a county-based definition 
was acceptable, if certain conditions were met).
---------------------------------------------------------------------------

    55. In the NPRM, as directed by the STELAR,\260\ we sought comment 
on how to define a ``community'' for purposes of market modification in 
both the cable and satellite contexts.\261\ The concept of a 
``community'' is important in the market modification context because 
the term describes the geographic area that will be added to or deleted 
from a station's local television market (based on the statutory 
factors), which in turn determines the stations that must be carried by 
a cable operator or a satellite carrier to subscribers in

[[Page 59655]]

that community.\262\ Because of the localized nature of cable systems, 
cable communities are usually easily defined by the geographic 
boundaries of a given cable system, which are often, but not always, 
coincident with a municipal boundary and may vary as determined on a 
case-by-case basis.\263\ In the cable carriage context, the Commission 
considers market modification requests on a community-by-community 
basis \264\ and defines a community unit in terms of a ``distinct 
community or municipal entity'' where a cable system operates or will 
operate.\265\ A ``satellite community,'' however, is not as easily 
defined as a cable community. Unlike cable service, which reaches 
subscribers in a defined local area via local franchises, satellite 
carriers offer service on a national basis, with no connection to a 
particular local community or municipality. Moreover, satellite service 
is sometimes offered in areas of the country that do not have cable 
service, and thus cannot be defined by cable communities.
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    \260\ Section 102(d)(2) of the STELAR requires the Commission to 
``update what it considers to be a community for purposes of a 
modification of a market'' in both the satellite and cable contexts. 
See STELAR sec. 102(d)(2); 47 U.S.C.A. 338 Note. The legislative 
history indicates Congress' intent for the Commission ``to consider 
alternative definitions for community that could make the market 
modification process more effective and useful.'' Senate Commerce 
Committee Report at 12.
    \261\ See NPRM, para. 23. In considering how to define a 
``satellite community'' for purposes of a satellite market 
modification, the NPRM sought comment on whether to use a cable 
community-based definition (as was done in the significantly viewed 
context; see 47 CFR 76.5(gg)), a zip code-based definition, and/or a 
county-based definition. See NPRM, para. 25.
    \262\ See NPRM, para. 24. See also 47 U.S.C. 338(a)(1); 47 CFR 
76.66(b)(1).
    \263\ See Amendment of Part 76 of the Commission's Rules and 
Regulations with Respect to the Definition of a Cable Television 
System and the Creation of Classes of Cable Systems, Docket No. 
20561, First Report and Order, FCC 77-205, para. 20 n.5, 42 FR 
19329, Apr. 13, 1977 (1977 Cable Order) (citing Amendment of Parts 
21, 74, and 91 to Adopt Rules and Regulations Relating to the 
Distribution of Television Broadcast Signals By Community Antenna 
Television Systems, and Related Matters, Docket Nos. 14895, 15233, 
15971, Second Report and Order, FCC 66-220, para. 149, 31 FR 4540, 
Mar. 17, 1966 (``community'' as used in the rules must be determined 
case-by-case depending on the circumstances involved).
    \264\ See 1977 Cable Order, para. 22 (explaining that the cable 
carriage rules apply ``on a community-by-community basis''). See 
also 47 CFR 76.5(dd), 76.59.
    \265\ See 47 CFR 76.5(dd). A cable system community is assigned 
a community unit identifier number (``CUID'') when registered with 
the Commission, pursuant to section 76.1801 of the rules. 47 CFR 
76.1801.
---------------------------------------------------------------------------

    56. Satellite Community. We define a ``satellite community'' on a 
county basis. All commenters on this issue support this 
definition.\266\ DISH and Gray assert that the use of a county 
definition will better address the orphan county problem.\267\ In 
addition, UCC observes that ``[c]ounty-wide data is more easily 
available than community-specific data.'' \268\ We agree. DIRECTV, who 
initially supported only zip codes, stated in its reply that it could 
support a county-based definition, as long as satellite carriers are 
not required to provide service to the parts of a modified market 
outside the market's spot beam.\269\ We agree with commenters that a 
county definition is better suited for the national nature of satellite 
service and will most effectively promote access to in-state 
programming for subscribers in orphan counties. In addition, we agree 
that county-wide data will work effectively and is easily available. We 
also take note of the support for a county definition from both 
broadcasters and satellite carriers. Thus, we are persuaded that 
allowing satellite market modifications on a county basis would best 
effectuate the satellite market modification provision.
---------------------------------------------------------------------------

    \266\ See DISH Comments at 6; Gray Comments at 3; UCC Comments 
at 8; Sen. Bennet et al. Letter at 1. See also DIRECTV Reply at 11-
12 (stating a county-based definition was acceptable, if certain 
conditions were met).
    \267\ See DISH Comments at 6 (``a county-based definition will 
most effectively promote consumer access to in-state programming''); 
Gray Comments at 3 (``county-by-county approach would best carry out 
Congress' intent to give the FCC the tools necessary to solve the 
`orphan county' problem in appropriate cases''). Gray also states 
that ``a county-by-county approach better suits the way that 
satellite providers actually provide service.'' Gray Comments at 3-
4. DISH also observes that ``[t]his approach mirrors the existing 
statutory special exceptions in section 122 designed to address 
orphan counties, such as the provision allowing a satellite carrier 
to provide in-state local broadcast stations to two counties in 
Vermont that are assigned to out-of-state DMAs.'' DISH Comments at 6 
(citing 17 U.S.C. 122(a)(4)(B)).
    \268\ UCC Comments at 8.
    \269\ DIRECTV Reply at 11-12. DIRECTV initially conditioned its 
support for a county-based definition on our requiring broadcasters 
to provide the zip codes corresponding with the county in the market 
modification petition. Id. DIRECTV later clarified that ``it should 
be a relatively easy task for either satellite carriers or 
broadcasters to associate zip codes with particular market 
modification requests.'' DIRECTV ex parte (dated July 9, 2015) at 2.
---------------------------------------------------------------------------

    57. We find this approach preferable to defining a ``satellite 
community'' on a cable community \270\ or zip code basis. In the NPRM, 
we considered a cable community and/or a zip code as two possible 
definitions of a satellite community for purposes of market 
modification.\271\ No commenters supported the cable community-based 
definition. We observed the Commission's use of a cable community-based 
definition in the significantly viewed context.\272\ As noted above, 
satellite carriers, unlike cable systems, have no connection to a 
particular local community or municipality. Given this fact, and based 
on the absence of any support for this definition, we reject a cable 
community-based definition for the satellite market modification 
context. DIRECTV supports the use of zip codes, explaining it 
determines spot-beam coverage based on zip codes, but (as noted above) 
expressed qualified support for a county-based definition.\273\ DISH 
opposes the use of zip codes, explaining that its systems recognize DMA 
boundaries based on counties, and that it would be burdensome to do 
zip-code-based modifications.\274\ Given DIRECTV's qualified support 
for a county-based definition and DISH's difficulties associated with 
the use of zip codes, we reject a zip-code-based definition for the 
satellite market modification context.
---------------------------------------------------------------------------

    \270\ The NPRM considered the ``satellite community'' definition 
in the significantly viewed context, which is based on the 
definition of a ``cable community.'' NPRM, para. 25. See 47 CFR 
76.5(gg) (defining a ``satellite community'' for the significantly 
viewed context).
    \271\ See NPRM, para. 25.
    \272\ See 47 CFR 76.5(gg).
    \273\ DIRECTV Comments at 12; DIRECTV Reply at 11.
    \274\ DISH ex parte (dated June 11, 2015) at 3.
---------------------------------------------------------------------------

    58. Definition of ``Cable Community'' for Cable Market 
Modifications. We adopt our tentative conclusion to retain the existing 
definition of a ``cable community.'' \275\ No comments were filed on 
this issue. Section 76.5(dd) of the rules defines a ``community unit'' 
as ``[a] cable television system, or portion of a cable television 
system, that operates or will operate within a separate and distinct 
community or municipal entity (including unincorporated communities 
within unincorporated areas and including single, discrete 
unincorporated areas).'' \276\ We conclude that this definition has 
worked well in cable market modifications for more than 20 years and 
should not be changed. We find that retaining the cable definition best 
effectuates the cable market modification provision. Although (as 
discussed herein) we allow a satellite community to be defined on a 
county basis, we see no reason to change the definition to allow cable 
modifications on a county basis. Despite our objective of treating 
satellite market modifications and cable market modifications similarly 
where feasible, we find that practical differences justify different 
treatment on this issue.
---------------------------------------------------------------------------

    \275\ See NPRM, para. 23.
    \276\ 47 CFR 76.5(dd).
---------------------------------------------------------------------------

IV. Procedural Matters

A. Final Regulatory Flexibility Act Analysis

    59. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\277\ an Initial Regulatory Flexibility Analysis (IRFA) 
was incorporated in the Notice of Proposed Rulemaking (NPRM) in this

[[Page 59656]]

proceeding.\278\ The Commission sought written public comment on the 
proposals in the NPRM, including comment on the IRFA. The Commission 
received no comments on the IRFA. This present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.\279\
---------------------------------------------------------------------------

    \277\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \278\ See Amendment to the Commission's Rules Concerning Market 
Modification; Implementation of Section 102 of the STELA 
Reauthorization Act of 2014; MB Docket No. 15-71, Notice of Proposed 
Rulemaking, FCC 15-34, 80 FR 19594, Apr. 13, 2015 (NPRM).
    \279\ See 5 U.S.C. 604.
---------------------------------------------------------------------------

1. Need for, and Objectives of, the Rules
    60. This Report and Order adopts rules to implement section 102 of 
the Satellite Television Extension and Localism Act (STELA) 
Reauthorization Act of 2014 (``STELA Reauthorization Act'' or 
``STELAR'').\280\ The STELAR amended the Communications Act and the 
Copyright Act to give the Commission authority to modify a commercial 
television broadcast station's local television market for purposes of 
satellite carriage rights.\281\ The Commission previously had the 
authority to modify markets only in the cable carriage context.\282\ 
With section 102 of the STELAR, Congress provides regulatory parity in 
this regard in order to promote consumer access to in-state and other 
relevant television programming. Significantly, the STELAR added a new 
factor for the Commission to consider when evaluating a market 
modification petition--``whether modifying the local market of the 
television station would promote consumers' access to television 
broadcast station signals that originate in their State of residence.'' 
\283\ Section 102 of the STELAR, and the Commission's actions in this 
Report and Order, seek to establish a market modification process for 
the satellite carriage context and, to the extent possible, address 
satellite subscribers' inability to receive in-state programming in 
certain areas. In this Report and Order, consistent with Congress' 
intent that the Commission model the satellite market modification 
process on the current cable market modification process, the 
Commission adopts rules to implement section 102 of the STELAR by 
revising the current cable market modification rule, section 76.59, to 
apply also to satellite carriage, while adding provisions to the rules 
to address the unique nature of satellite television service.\284\ For 
example, the STELAR recognizes that satellite carriage of additional 
stations pursuant to a market modification might be technically and 
economically infeasible in some circumstances.\285\ In addition to 
establishing rules for satellite market modifications, section 102 of 
the STELAR directs the Commission to consider whether it should make 
changes to the current cable market modification rules,\286\ and it 
also makes certain conforming amendments to the cable market 
modification statutory provision.\287\ Accordingly, as part of the 
implementation of the STELAR, the Commission makes conforming and other 
minor changes to the cable market modification rules.
---------------------------------------------------------------------------

    \280\ The STELA Reauthorization Act of 2014 (STELAR), sec. 102, 
Public Law 113-200, 128 Stat. 2059, 2060-62 (2014) (codified at 47 
U.S.C. 338(l)). The STELAR was enacted on December 4, 2014 (H. R. 
5728, 113th Cong.). See Report and Order, para. 1.
    \281\ STELAR secs. 102, 204, 128 Stat. at 2060-62, 2067.
    \282\ See 47 U.S.C. 534(h)(1)(C). See also 47 CFR 76.59.
    \283\ See 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III).
    \284\ See 47 CFR 76.59. The Commission revises section 76.59 of 
the rules to apply to both cable systems and satellite carriers.
    \285\ 47 U.S.C. 338(l)(3) (stating that ``[a] market 
determination . . . shall not create additional carriage obligations 
for a satellite carrier if it is not technically and economically 
feasible for such carrier to accomplish such carriage by means of 
its satellites in operation at the time of the determination.'').
    \286\ STELAR sec. 102(d).
    \287\ See STELAR sec. 102(b) (amending 47 U.S.C. 
534(h)(1)(C)(ii)).
---------------------------------------------------------------------------

2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    61. No public comments were filed in response to the IRFA.
    62. Pursuant to the Small Business Jobs Act of 2010, the Commission 
is required to respond to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA), and to provide a 
detailed statement of any change made to the proposed rules as a result 
of those comments.\288\ The Chief Counsel did not file any comments in 
response to the proposed rules in this proceeding.
---------------------------------------------------------------------------

    \288\ See 5 U.S.C. 604(a)(3).
---------------------------------------------------------------------------

3. Description and Estimate of the Number of Small Entities To Which 
the Rules Will Apply
    63. The RFA directs agencies to provide a description of and an 
estimate of the number of small entities to which the rules will 
apply.\289\ The RFA generally defines the term ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' \290\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\291\ A small 
business concern is one which: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.\292\ The rule changes 
adopted herein will directly affect small television broadcast 
stations, small MVPD systems, which include cable system operators and 
satellite carriers and small county governmental jurisdictions. Below, 
we provide a description of such small entities, as well as an estimate 
of the number of such small entities, where feasible.
---------------------------------------------------------------------------

    \289\ 5 U.S.C. 604(a)(4).
    \290\ 5 U.S.C. 601(6).
    \291\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy 
of the Small Business Administration and after opportunity for 
public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \292\ 15 U.S.C. 632. Application of the statutory criteria of 
dominance in its field of operation and independence are sometimes 
difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
---------------------------------------------------------------------------

    64. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' \293\ 
Census Bureau data for 2011 indicate that there were 89,476 local 
governmental jurisdictions in the United States.\294\ We estimate that, 
of this total, a substantial majority may qualify as ``small 
governmental jurisdictions.'' \295\ Thus,

[[Page 59657]]

we estimate that most governmental jurisdictions are small.
---------------------------------------------------------------------------

    \293\ 5 U.S.C. 601(5).
    \294\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2011, Table 427 (2007).
    \295\ The 2007 U.S Census data for small governmental 
organizations indicate that there were 89,476 local governments in 
2007. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 
2011, Table 428. The criterion by which the size of such local 
governments is determined to be small is a population of fewer than 
50,000. 5 U.S.C. 601(5). However, since the Census Bureau, in 
compiling the cited data, does not state that it applies that 
criterion, it cannot be determined with precision how many such 
local governmental organizations are small. Nonetheless, the 
inference seems reasonable that a substantial number of these 
governmental organizations have a population of fewer than 50,000. 
To look at Table 428 in conjunction with a related set of data in 
Table 429 in the Census's Statistical Abstract of the U.S., that 
inference is further supported by the fact that in both Tables, many 
sub-entities that may well be small are included in the 89,476 local 
governmental organizations, e.g., county, municipal, township and 
town, school district and special district entities. Measured by a 
criterion of a population of fewer than 50,000, many of the cited 
sub-entities in this category seem more likely than larger county-
level governmental organizations to have small populations. 
Accordingly, of the 89,746 small governmental organizations 
identified in the 2007 Census, the Commission estimates that a 
substantial majority are small.
---------------------------------------------------------------------------

    65. Wired Telecommunications Carriers. The North American Industry 
Classification System (``NAICS'') defines ``Wired Telecommunications 
Carriers'' as follows: ``This industry comprises establishments 
primarily engaged in operating and/or providing access to transmission 
facilities and infrastructure that they own and/or lease for the 
transmission of voice, data, text, sound, and video using wired 
telecommunications networks. Transmission facilities may be based on a 
single technology or a combination of technologies. Establishments in 
this industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired telephony 
services, including VoIP services; wired (cable) audio and video 
programming distribution; and wired broadband Internet services. By 
exception, establishments providing satellite television distribution 
services using facilities and infrastructure that they operate are 
included in this industry.'' \296\ The SBA has developed a small 
business size standard for wireline firms for the broad economic census 
category of ``Wired Telecommunications Carriers.'' Under this category, 
a wireline business is small if it has 1,500 or fewer employees.\297\ 
Census data for 2007 shows that there were 3,188 firms that operated 
for the entire year.\298\ Of this total, 3,144 firms had fewer than 
1,000 employees, and 44 firms had 1,000 or more employees.\299\ 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities.
---------------------------------------------------------------------------

    \296\ U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: broadband Internet 
service providers (e.g., cable, DSL); local telephone carriers 
(wired); cable television distribution services; long-distance 
telephone carriers (wired); closed circuit television (``CCTV'') 
services; VoIP service providers, using own operated wired 
telecommunications infrastructure; direct-to-home satellite system 
(``DTH'') services; telecommunications carriers (wired); satellite 
television distribution systems; and multichannel multipoint 
distribution services (``MMDS'').
    \297\ 13 CFRCFR 121.201; NAICS code 517110.
    \298\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \299\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    66. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers, which category is defined 
above.\300\ The SBA has developed a small business size standard for 
this category, which is: All such businesses having 1,500 or fewer 
employees.\301\ Census data for 2007 shows that there were 3,188 firms 
that operated for the entire year.\302\ Of this total, 3,144 firms had 
fewer than 1,000 employees, and 44 firms had 1,000 or more 
employees.\303\ Therefore, under this size standard, we estimate that 
the majority of businesses can be considered small entities.
---------------------------------------------------------------------------

    \300\ See also U.S. Census Bureau, 2012 NAICS Definitions, 
``517110 Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \301\ 13 CFR 121.201; NAICS code 517110.
    \302\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \303\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    67. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rate regulation rules, a ``small 
cable company'' is one serving 400,000 or fewer subscribers, 
nationwide.\304\ According to the Television and Cable Factbook, there 
are 856 cable operators.\305\ Of this total, all but 10 incumbent cable 
companies are small under this size standard.\306\ In addition, under 
the Commission's rules, a ``small system'' is a cable system serving 
15,000 or fewer subscribers.\307\ Current Commission records show 4,562 
cable systems nationwide.\308\ Of this total, 4,000 cable systems have 
fewer than 20,000 subscribers, and 562 systems have 20,000 subscribers 
or more, based on the same records. Thus, under this standard, we 
estimate that most cable systems are small.
---------------------------------------------------------------------------

    \304\ 47 CFR 76.901(e). The Commission determined that this size 
standard equates approximately to a size standard of $100 million or 
less in annual revenues. Implementation of Sections of the Cable 
Television Consumer Protection and Competition Act of 1992: Rate 
Regulation, MM Docket No. 92-266, MM Docket No. 93-215, Sixth Report 
and Order and Eleventh Order on Reconsideration, FCC 95-196, 60 FR 
35854, July 12, 1995.
    \305\ See Warren Communications News, ``Television and Cable 
Factbook 2015'', Cable Volume 2, at D-1073--D-1120. We note that, 
according to NCTA, there are 660 cable systems. See NCTA, Industry 
Data, Number of Cable Operators and Systems, https://www.ncta.com/Statistics.aspx (visited Aug. 6, 2015). Depending upon the number of 
homes and the size of the geographic area served, cable operators 
use one or more cable systems to provide video service. See Annual 
Assessment of the Status of Competition in the Market for Delivery 
of Video Programming, MB Docket No. 12-203, Fifteenth Report, FCC 
13-99, para. 24 (rel. July 22, 2013) (15th Annual Competition 
Report).
    \306\ SNL Kagan, U.S. Multichannel Top Cable MSOs, https://www.snl.com/interactivex/TopCableMSOs.aspx (visited June 26, 2014). 
We note that when this size standard (i.e., 400,000 or fewer 
subscribers) is applied to all MVPD operators, all but 14 MVPD 
operators would be considered small. 15th Annual Competition Report, 
paras. 27-28 (subscriber data for DBS and Telephone MVPDs). The 
Commission applied this size standard to MVPD operators in its 
implementation of the CALM Act. See Implementation of the Commercial 
Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93, 
Report and Order, FCC 11-182, para. 37, 77 FR 40276, July 9, 2012 
(CALM Act Report and Order) (defining a smaller MVPD operator as one 
serving 400,000 or fewer subscribers nationwide, as of December 31, 
2011).
    \307\ 47 CFR 76.901(c).
    \308\ The number of active, registered cable systems comes from 
the Commission's Cable Operations and Licensing System (COALS) 
database on August 6, 2015. A cable system is a physical system 
integrated to a principal headend. We note that, according to NCTA, 
there are 5,208 cable systems. See NCTA, Industry Data, Number of 
Cable Operators and Systems, https://www.ncta.com/Statistics.aspx 
(visited Aug. 6, 2015).
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    68. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, also contains a size standard 
for small cable system operators, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250,000,000.'' \309\ The Commission has determined 
that an operator serving fewer than 677,000 subscribers shall be deemed 
a small operator, if its annual revenues, when combined with the total 
annual revenues of all its affiliates, do not exceed $250 million in 
the aggregate.\310\ Based on available data, we find that all but 10 
incumbent cable operators are small under this size

[[Page 59658]]

standard.\311\ We note that the Commission neither requests nor 
collects information on whether cable system operators are affiliated 
with entities whose gross annual revenues exceed $250 million.\312\ 
Although it seems certain that some of these cable system operators are 
affiliated with entities whose gross annual revenues exceed 
$250,000,000, we are unable to estimate with greater precision the 
number of cable system operators that would qualify as small cable 
operators under this definition.
---------------------------------------------------------------------------

    \309\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
    \310\ 47 CFR 76.901(f); see Public Notice, FCC Announces New 
Subscriber Count for the Definition of Small Cable Operator, DA 01-
158 (CSB, rel. Jan. 24, 2001) (establishing the threshold for 
determining whether a cable operator meets the definition of small 
cable operator at 677,000 subscribers and stating that this 
threshold will remain in effect for purposes of section 76.901(f) 
until the Commission issues a superseding public notice). We note 
that current industry data indicates that there are approximately 54 
million incumbent cable video subscribers in the United States today 
and that this updated number may be considered in developing size 
standards in a context different than section 76.901(f). NCTA, 
Industry Data, Cable's Customer Base (June 2014), https://www.ncta.com/industry-data (visited June 25, 2014).
    \311\ See SNL Kagan, U.S. Multichannel Top Cable MSOs, https://www.snl.com/interactivex/TopCableMSOs.aspx (visited June 26, 2014).
    \312\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to [47 CFR] 76.901(f) of the Commission's rules. See 47 CFR 
76.901(f).
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    69. Satellite Carriers. The term ``satellite carrier'' means an 
entity that uses the facilities of a satellite or satellite service 
licensed under Part 25 of the Commission's rules to operate in the 
Direct Broadcast Satellite (DBS) service or Fixed-Satellite Service 
(FSS) frequencies.\313\ As a general practice (not mandated by any 
regulation), DBS licensees usually own and operate their own satellite 
facilities as well as package the programming they offer to their 
subscribers. In contrast, satellite carriers using FSS facilities often 
lease capacity from another entity that is licensed to operate the 
satellite used to provide service to subscribers. These entities 
package their own programming and may or may not be Commission 
licensees themselves. In addition, a third situation may include an 
entity using a non-U.S. licensed satellite to provide programming to 
subscribers in the United States pursuant to a blanket earth station 
license.\314\ The Commission has concluded that the definition of 
``satellite carrier'' includes all three of these types of 
entities.\315\
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    \313\ The Communications Act defines the term ``satellite 
carrier'' by reference to the definition in the copyright laws in 
title 17. See 47 U.S.C. 340(i)(1) and 338(k)(3); 17 U.S.C.119(d)(6). 
Part 100 of the Commission's rules was eliminated in 2002 and now 
both FSS and DBS satellite facilities are licensed under Part 25 of 
the rules. Policies and Rules for the Direct Broadcast Satellite 
Service, FCC 02-110, 67 FR 51110, August 7, 2002; 47 CFR 25.148.
    \314\ See, e.g., Application Of DIRECTV Enterprises, LLC, 
Request For Special Temporary Authority for the DIRECTV 5 Satellite; 
Application Of DIRECTV Enterprises, LLC, Request for Blanket 
Authorization for 1,000,000 Receive Only Earth Stations to Provide 
Direct Broadcast Satellite Service in the U.S. using the Canadian 
Authorized DIRECTV 5 Satellite at the 72.5[deg] W.L. Broadcast 
Satellite Service Location, Order and Authorization, DA 04-2526 
(Sat. Div. rel. Aug. 13, 2004).
    \315\ SHVERA Significantly Viewed Report and Order, FCC 05-187, 
paras. 59-60.
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    70. Direct Broadcast Satellite (DBS) Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS, by exception, is now included in the 
SBA's broad economic census category, Wired Telecommunications 
Carriers,\316\ which was developed for small wireline businesses. Under 
this category, the SBA deems a wireline business to be small if it has 
1,500 or fewer employees.\317\ Census data for 2007 shows that there 
were 3,188 firms that operated for the entire year.\318\ Of this total, 
3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or 
more employees.\319\ Therefore, under this size standard, the majority 
of such businesses can be considered small. However, the data we have 
available as a basis for estimating the number of such small entities 
were gathered under a superseded SBA small business size standard 
formerly titled ``Cable and Other Program Distribution.'' The 
definition of Cable and Other Program Distribution provided that a 
small entity is one with $12.5 million or less in annual receipts.\320\ 
Currently, only two entities provide DBS service, which requires a 
great investment of capital for operation: DIRECTV and DISH 
Network.\321\ Each currently offers subscription services. DIRECTV and 
DISH Network each reports annual revenues that are in excess of the 
threshold for a small business. Because DBS service requires 
significant capital, we believe it is unlikely that a small entity as 
defined by the SBA would have the financial wherewithal to become a DBS 
service provider.
---------------------------------------------------------------------------

    \316\ This category of Wired Telecommunications Carriers is 
defined above (``By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.''). U.S. Census 
Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications 
Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \317\ 13 CFR 121.201; NAICS code 517110.
    \318\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \319\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
    \320\ 13 CFR 121.201; NAICS code 517510 (2002).
    \321\ See 15th Annual Competition Report, at para. 27. As of 
June 2012, DIRECTV is the largest DBS operator and the second 
largest MVPD in the United States, serving approximately 19.9 
million subscribers. DISH Network is the second largest DBS operator 
and the third largest MVPD, serving approximately 14.1 million 
subscribers. Id. at paras. 27, 110-11.
---------------------------------------------------------------------------

    71. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths without 
using any public right-of-way. They acquire video programming and 
distribute it via terrestrial wiring in urban and suburban multiple 
dwelling units such as apartments and condominiums, and commercial 
multiple tenant units such as hotels and office buildings. SMATV 
systems or PCOs are now included in the SBA's broad economic census 
category, Wired Telecommunications Carriers,\322\ which was developed 
for small wireline businesses. Under this category, the SBA deems a 
wireline business to be small if it has 1,500 or fewer employees.\323\ 
Census data for 2007 shows that there were 3,188 firms that operated 
for the entire year.\324\ Of this total, 3,144 firms had fewer than 
1,000 employees, and 44 firms had 1,000 or more employees.\325\ 
Therefore, under this size standard, the majority of such businesses 
can be considered small.
---------------------------------------------------------------------------

    \322\ This category of Wired Telecommunications Carriers is 
defined above (``By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.''). U.S. Census 
Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications 
Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \323\ 13 CFR 121.201; NAICS code 517110.
    \324\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \325\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    72. Home Satellite Dish (HSD) Service. HSD or the large dish 
segment of the satellite industry is the original satellite-to-home 
service offered to consumers, and involves the home reception of 
signals transmitted by satellites operating generally in the C-band 
frequency. Unlike DBS, which uses small dishes, HSD antennas are 
between four and eight feet in diameter and can receive a wide range of 
unscrambled (free) programming and scrambled programming purchased from 
program packagers that are licensed to facilitate subscribers' receipt 
of video programming. Because HSD provides subscription services, HSD 
falls within the SBA-recognized definition of Wired

[[Page 59659]]

Telecommunications Carriers.\326\ The SBA has developed a small 
business size standard for this category, which is: all such businesses 
having 1,500 or fewer employees.\327\ Census data for 2007 shows that 
there were 3,188 firms that operated for the entire year.\328\ Of this 
total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 
1,000 or more employees.\329\ Therefore, under this size standard, we 
estimate that the majority of businesses can be considered small 
entities.
---------------------------------------------------------------------------

    \326\ This category of Wired Telecommunications Carriers is 
defined above (``By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.''). U.S. Census 
Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications 
Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \327\ 13 CFR 121.201; NAICS code 517110.
    \328\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \329\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    73. Open Video Services. The open video system (OVS) framework was 
established in 1996, and is one of four statutorily recognized options 
for the provision of video programming services by local exchange 
carriers.\330\ The OVS framework provides opportunities for the 
distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services,\331\ OVS falls 
within the SBA small business size standard covering cable services, 
which is Wired Telecommunications Carriers.\332\ The SBA has developed 
a small business size standard for this category, which is: all such 
businesses having 1,500 or fewer employees.\333\ Census data for 2007 
shows that there were 3,188 firms that operated for the entire 
year.\334\ Of this total, 3,144 firms had fewer than 1,000 employees, 
and 44 firms had 1,000 or more employees.\335\ Therefore, under this 
size standard, we estimate that the majority of businesses can be 
considered small entities. In addition, we note that the Commission has 
certified some OVS operators, with some now providing service.\336\ 
Broadband service providers (``BSPs'') are currently the only 
significant holders of OVS certifications or local OVS franchises.\337\ 
The Commission does not have financial or employment information 
regarding the entities authorized to provide OVS, some of which may not 
yet be operational. Thus, again, at least some of the OVS operators may 
qualify as small entities.
---------------------------------------------------------------------------

    \330\ 47 U.S.C. 571(a)(3) through (4). See Annual Assessment of 
the Status of Competition in the Market for the Delivery of Video 
Programming, MB Docket No. 06-189, Thirteenth Annual Report, FCC 07-
206, para. 135, 74 FR 11102, March 16, 2009 (2009) (``Thirteenth 
Annual Cable Competition Report'').
    \331\ See 47 U.S.C. 573.
    \332\ This category of Wired Telecommunications Carriers is 
defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, 
``517110 Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \333\ 13 CFR 121.201; NAICS code 517110.
    \334\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \335\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
    \336\ A list of OVS certifications may be found at https://www.fcc.gov/mb/ovs/csovscer.html.
    \337\ See Thirteenth Annual Cable Competition Report, para. 135. 
BSPs are newer businesses that are building state-of-the-art, 
facilities-based networks to provide video, voice, and data services 
over a single network.
---------------------------------------------------------------------------

    74. Wireless cable systems--Broadband Radio Service and Educational 
Broadband Service. Wireless cable systems use the Broadband Radio 
Service (BRS) \338\ and Educational Broadband Service (EBS) \339\ to 
transmit video programming to subscribers. In connection with the 1996 
BRS auction, the Commission established a small business size standard 
as an entity that had annual average gross revenues of no more than $40 
million in the previous three calendar years.\340\ The BRS auctions 
resulted in 67 successful bidders obtaining licensing opportunities for 
493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the 
definition of a small business. BRS also includes licensees of stations 
authorized prior to the auction. At this time, we estimate that of the 
61 small business BRS auction winners, 48 remain small business 
licensees. In addition to the 48 small businesses that hold BTA 
authorizations, there are approximately 392 incumbent BRS licensees 
that are considered small entities.\341\ After adding the number of 
small business auction licensees to the number of incumbent licensees 
not already counted, we find that there are currently approximately 440 
BRS licensees that are defined as small businesses under either the SBA 
or the Commission's rules. In 2009, the Commission conducted Auction 
86, the sale of 78 licenses in the BRS areas.\342\ The Commission 
offered three levels of bidding credits: (i) A bidder with attributed 
average annual gross revenues that exceed $15 million and do not exceed 
$40 million for the preceding three years (small business) received a 
15 percent discount on its winning bid; (ii) a bidder with attributed 
average annual gross revenues that exceed $3 million and do not exceed 
$15 million for the preceding three years (very small business) 
received a 25 percent discount on its winning bid; and (iii) a bidder 
with attributed average annual gross revenues that do not exceed $3 
million for the preceding three years (entrepreneur) received a 35 
percent discount on its winning bid.\343\ Auction 86 concluded in 2009 
with the sale of 61 licenses.\344\ Of the 10 winning bidders, two 
bidders that claimed small business status won four licenses; one 
bidder that claimed very small business status won three licenses; and 
two bidders that claimed entrepreneur status won six licenses.
---------------------------------------------------------------------------

    \338\ BRS was previously referred to as Multipoint Distribution 
Service (MDS) and Multichannel Multipoint Distribution Service 
(MMDS). See Amendment of Parts 21 and 74 of the Commission's Rules 
with Regard to Filing Procedures in the Multipoint Distribution 
Service and in the Instructional Television Fixed Service and 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, 
Report and Order, FCC 95-230, para. 7, 60 FR 36524, Jul. 17, 1995.
    \339\ EBS was previously referred to as the Instructional 
Television Fixed Service (ITFS). See id.
    \340\ 47 CFR 21.961(b)(1).
    \341\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard of 1,500 or fewer employees.
    \342\ Auction of Broadband Radio Service (BRS) Licenses, 
Scheduled for October 27, 2009, Notice and Filing Requirements, 
Minimum Opening Bids, Upfront Payments, and Other Procedures for 
Auction 86, AU Docket No. 09-56, Public Notice, DA 09-1376 (WTB rel. 
Jun. 26, 2009).
    \343\ Id.
    \344\ Auction of Broadband Radio Service Licenses Closes, 
Winning Bidders Announced for Auction 86, Down Payments Due November 
23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to 
Deny Period, Public Notice, DA 09-2378 (WTB rel. Nov. 6, 2009).
---------------------------------------------------------------------------

    75. In addition, the SBA's placement of Cable Television 
Distribution Services in the category of Wired Telecommunications 
Carriers is applicable to cable-based Educational Broadcasting 
Services. Since 2007, these services have been defined within the broad 
economic census category of Wired Telecommunications Carriers,\345\

[[Page 59660]]

which was developed for small wireline businesses. The SBA has 
developed a small business size standard for this category, which is: 
All such businesses having 1,500 or fewer employees.\346\ Census data 
for 2007 shows that there were 3,188 firms that operated for the entire 
year.\347\ Of this total, 3,144 firms had fewer than 1,000 employees, 
and 44 firms had 1,000 or more employees.\348\ Therefore, under this 
size standard, we estimate that the majority of businesses can be 
considered small entities. In addition to Census data, the Commission's 
internal records indicate that as of September 2012, there are 2,241 
active EBS licenses.\349\ The Commission estimates that of these 2,241 
licenses, the majority are held by non-profit educational institutions 
and school districts, which are by statute defined as small 
businesses.\350\
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    \345\ This category of Wired Telecommunications Carriers is 
defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, 
``517110 Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \346\ 13 CFR 121.201; NAICS code 517110.
    \347\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \348\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
    \349\ https://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp.
    \350\ The term ``small entity'' within SBREFA applies to small 
organizations (non-profits) and to small governmental jurisdictions 
(cities, counties, towns, townships, villages, school districts, and 
special districts with populations of fewer than 50,000). 5 U.S.C. 
601(4) through (6).
---------------------------------------------------------------------------

    76. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. ILECs are included 
in the SBA's economic census category, Wired Telecommunications 
Carriers.\351\ Under this category, the SBA deems a wireline business 
to be small if it has 1,500 or fewer employees.\352\ Census data for 
2007 shows that there were 3,188 firms that operated for the entire 
year.\353\ Of this total, 3,144 firms had fewer than 1,000 employees, 
and 44 firms had 1,000 or more employees.\354\ Therefore, under this 
size standard, the majority of such businesses can be considered small.
---------------------------------------------------------------------------

    \351\ This category of Wired Telecommunications Carriers is 
defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, 
``517110 Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \352\ 13 CFR 121.201; NAICS code 517110.
    \353\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \354\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    77. Small Incumbent Local Exchange Carriers. We have included small 
incumbent local exchange carriers in this present RFA analysis. A 
``small business'' under the RFA is one that, inter alia, meets the 
pertinent small business size standard (e.g., a telephone 
communications business having 1,500 or fewer employees), and ``is not 
dominant in its field of operation.'' \355\ The SBA's Office of 
Advocacy contends that, for RFA purposes, small incumbent local 
exchange carriers are not dominant in their field of operation because 
any such dominance is not ``national'' in scope.\356\ We have therefore 
included small incumbent local exchange carriers in this RFA analysis, 
although we emphasize that this RFA action has no effect on Commission 
analyses and determinations in other, non-RFA contexts.
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    \355\ 15 U.S.C. 632.
    \356\ Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small-business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 
601(3) (RFA). SBA regulations interpret ``small business concern'' 
to include the concept of dominance on a national basis. See 13 CFR 
121.102(b).
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    78. Competitive Local Exchange Carriers (CLECs), Competitive Access 
Providers (CAPs), Shared-Tenant Service Providers, and Other Local 
Service Providers. Neither the Commission nor the SBA has developed a 
small business size standard specifically for these service providers. 
These entities are included in the SBA's economic census category, 
Wired Telecommunications Carriers.\357\ Under this category, the SBA 
deems a wireline business to be small if it has 1,500 or fewer 
employees.\358\ Census data for 2007 shows that there were 3,188 firms 
that operated for the entire year.\359\ Of this total, 3,144 firms had 
fewer than 1,000 employees, and 44 firms had 1,000 or more 
employees.\360\ Therefore, under this size standard, the majority of 
such businesses can be considered small.
---------------------------------------------------------------------------

    \357\ This category of Wired Telecommunications Carriers is 
defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, 
``517110 Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \358\ 13 CFR 121.201; NAICS code 517110.
    \359\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ5; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \360\ Id. With respect to the latter 44 firms, there is no data 
available that shows how many operated with more than 1,500 
employees.
---------------------------------------------------------------------------

    79. Television Broadcasting. This economic census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' \361\ The SBA has created the following small 
business size standard for such businesses: Those having $38.5 million 
or less in annual receipts.\362\ The 2007 U.S. Census indicates that 
808 firms in this category operated in that year. Of that number, 709 
had annual receipts of $25,000,000 or less, and 99 had annual receipts 
of more than $25,000,000.\363\ Because the Census has no additional 
classifications that could serve as a basis for determining the number 
of stations whose receipts exceeded $38.5 million in that year, we 
conclude that the majority of television broadcast stations were small 
under the applicable SBA size standard.
---------------------------------------------------------------------------

    \361\ U.S. Census Bureau, 2012 NAICS Definitions, ``515120 
Television Broadcasting,'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch. This category description continues, ``These 
establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.''
    \362\ 13 CFR 121.201; 2012 NAICS code 515120.
    \363\ U.S. Census Bureau, Table No. EC0751SSSZ4, Information: 
Subject Series--Establishment and Firm Size: Receipts Size of Firms 
for the United States: 2007 (515120), https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table.
---------------------------------------------------------------------------

    80. Apart from the U.S. Census, the Commission has estimated the 
number of licensed commercial television stations to be 1,390 
stations.\364\ Of this total, 1,221 stations (or about 88 percent) had 
revenues of $38.5 million or less, according to Commission staff review 
of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on 
July 2, 2014. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 
395.\365\ NCE stations are non-profit, and therefore considered to be 
small entities.\366\ Therefore, we estimate that

[[Page 59661]]

the majority of television broadcast stations are small entities.
---------------------------------------------------------------------------

    \364\ See Broadcast Station Totals as of December 31, 2014, 
Press Release (MB rel. Jan. 7, 2015) (Broadcast Station Totals) at 
https://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-331381A1.pdf.
    \365\ See Broadcast Station Totals, supra.
    \366\ See generally 5 U.S.C. 601(4), (6).
---------------------------------------------------------------------------

    81. We note, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations \367\ must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action because the revenue figure on which it is based does not include 
or aggregate revenues from affiliated companies. In addition, an 
element of the definition of ``small business'' is that the entity not 
be dominant in its field of operation. We are unable at this time to 
define or quantify the criteria that would establish whether a specific 
television station is dominant in its field of operation. Accordingly, 
the estimate of small businesses to which rules may apply does not 
exclude any television station from the definition of a small business 
on this basis and is therefore possibly over-inclusive to that extent.
---------------------------------------------------------------------------

    \367\ ``[Business concerns] are affiliates of each other when 
one concern controls or has the power to control the other or a 
third party or parties controls or has to power to control both.'' 
13 CFR 21.103(a)(1).
---------------------------------------------------------------------------

    82. Class A TV and LPTV Stations. The same SBA definition that 
applies to television broadcast stations would apply to licensees of 
Class A television stations and low power television (LPTV) stations, 
as well as to potential licensees in these television services. As 
noted above, the SBA has created the following small business size 
standard for this category: those having $38.5 million or less in 
annual receipts.\368\ The Commission has estimated the number of 
licensed Class A television stations to be 431.\369\ The Commission has 
also estimated the number of licensed LPTV stations to be 2,003.\370\ 
Given the nature of these services, we will presume that these 
licensees qualify as small entities under the SBA definition.
---------------------------------------------------------------------------

    \368\ 13 CFR 121.201; NAICS code 515120.
    \369\ See Broadcast Station Totals, supra.
    \370\ See Broadcast Station Totals, supra.
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    83. The Report and Order revises section 76.59 of the rules to 
apply also to the satellite television context. The new satellite rules 
permit commercial television broadcast stations, satellite carriers and 
county governments to file petitions seeking to modify a commercial 
television broadcast station's local television market for purposes of 
satellite carriage rights.\371\ Under section 76.59 of the rules, 
commercial TV broadcast stations and cable system operators may already 
file such requests for market modification for purposes of cable 
carriage rights. Consistent with the current cable requirements, the 
adopted rules require petitioners to file market modification requests 
and/or responsive pleadings in accordance with the procedures for 
filing Special Relief petitions in section 76.7 of the rules.\372\ 
Consistent with the current cable requirements, the adopted rules 
require petitioners to provide specific forms of evidence to support 
market modification petitions, should they ch0ose to file such 
petitions.\373\ A television broadcast station that becomes eligible 
for mandatory satellite carriage by operation of a market modification 
may elect retransmission consent or mandatory carriage with respect to 
a satellite carrier within 30 days of the market determination.\374\ A 
satellite carrier must commence carriage within 90 days of receiving 
the station's request for carriage.\375\
---------------------------------------------------------------------------

    \371\ See Report and Order para. 9.
    \372\ See Report and Order paras. 12-13. Broadcasters and 
satellite carriers that want to oppose market modification requests 
would need to file responsive pleadings in accordance with 47 CFR 
76.7.
    \373\ See Report and Order para. 17 (discussing evidentiary 
requirements for filing market modification petitions). These 
requirements are codified in 47 CFR 76.59.
    \374\ See Report and Order at para. 24. Carriage elections must 
be made in accordance with the procedures set forth in section 
76.66(d)(1). See Report and Order at para. 26. Section 76.66(d)(1) 
requires that an election request made by a television station must 
be in writing and sent to the satellite carrier's principal place of 
business, by certified mail, return receipt requested. 47 CFR 
76.66(d)(1)(ii). The rule requires that a television station's 
written notification shall include the following information: (1) 
Station's call sign; (2) Name of the appropriate station contact 
person; (3) Station's address for purposes of receiving official 
correspondence; (4) Station's community of license; (5) Station's 
DMA assignment; and (6) Station's election of mandatory carriage or 
retransmission consent. 47 CFR 76.66(d)(1)(iii).
    \375\ See Report and Order at para. 25.
---------------------------------------------------------------------------

    84. The Report and Order establishes a process that will allow a 
prospective petitioner (i.e., broadcaster or county government) to 
obtain a certification from a satellite carrier about whether or not 
(and to what extent) carriage resulting from a contemplated market 
modification is technically and economically feasible for such carrier 
before the prospective petitioner undertakes the time and expense of 
preparing and filing a market modification petition.\376\ To initiate 
this process, a prospective petitioner may make a request in writing to 
a satellite carrier for the carrier to provide the certification about 
the feasibility or infeasibility of carriage. A satellite carrier must 
respond to this request within a reasonable amount of time by providing 
a feasibility certification to the prospective petitioner.\377\ A 
satellite carrier must also file a copy of the correspondence and 
feasibility certification it provides to the prospective petitioner in 
this docket electronically via ECFS so that the Media Bureau can track 
these certifications and monitor carrier response time. If the carrier 
is claiming spot beam coverage infeasibility, then the certification 
provided by the carrier must be the same detailed certification that 
would be required in response to a market modification petition.\378\ 
For any other claim of infeasibility, the carrier's feasibility 
certification must explain in detail the basis of such infeasibility 
and must be prepared to provide documentation in support of its claim, 
in the event the prospective petitioner decides to challenge the 
carrier's claim.\379\ If carriage is feasible, a statement to that 
effect must be provided in the certification.\380\ If a broadcaster or 
county government has concerns about the adequacy of the carrier's 
certification, or has some reason to question the validity of the 
carrier's certification, the broadcaster or county government may raise 
such concerns in a (separate) petition for special relief or its market 
modification petition.\381\
---------------------------------------------------------------------------

    \376\ See Report and Order para. 45.
    \377\ Id. With respect to what would be a reasonable amount of 
time for a carrier to respond to a request for a feasibility 
certification, we expect carriers will generally be able to respond 
within 45 days of receipt of a prospective petitioner's written 
request; however, we find that it would be reasonable for the 
satellite carrier to respond in 90 days if the carrier has to 
process several requests at the same time. If the response is after 
45 days, the carrier must provide an explanation for the longer time 
period in its certification (e.g., having to respond to multiple 
simultaneous requests). If the Media Bureau finds that a carrier is 
routinely taking up to 90 days to respond or is not providing a 
reasonable explanation for when it takes 90 days to respond, the 
Bureau may order such carrier to respond to future requests in a 
shorter time period or may take other enforcement action. With this 
process, we are trying to balance the need to provide broadcasters' 
with as fast a response as possible, while recognizing that 
satellite carriers may have problems responding to numerous requests 
at once.
    \378\ See Report and Order paras. 37-39.
    \379\ See Report and Order para. 45.
    \380\ See Report and Order para. 45.
    \381\ See Report and Order para. 45.
---------------------------------------------------------------------------

    85. The adopted rules require a satellite carrier to provide a 
detailed and specialized certification to demonstrate its claim that 
satellite carriage resulting from a market modification would be 
technically or economically infeasible due to insufficient spot beam 
coverage.\382\ Satellite carriers will be required to provide 
supporting

[[Page 59662]]

documentation upon request by the Commission and must therefore retain 
such supporting documentation substantiating potential review by the 
Commission.\383\ As noted in section C of this FRFA, neither one of the 
satellite carriers, DISH nor DIRECTV, qualify as a small entity and 
small businesses do not generally have the financial ability to become 
DBS licensees because of the high implementation costs associated with 
satellite services.
---------------------------------------------------------------------------

    \382\ See Report and Order paras. 35-36.
    \383\ See Report and Order para. 35.
---------------------------------------------------------------------------

5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    86. The RFA requires an agency to describe the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.\384\
---------------------------------------------------------------------------

    \384\ 5 U.S.C. 604(a)(6).
---------------------------------------------------------------------------

    87. Consistent with the statute's goal of promoting regulatory 
parity between cable and satellite service, the Report and Order 
applies the existing cable market modification rules to the satellite 
context, while adding provisions to the rules to address the unique 
nature of satellite television service. Therefore, the adopted rules 
for the first time allow a commercial television broadcast station to 
request a modification of its local television market for purposes of 
satellite carriage. Small TV stations that choose to file satellite 
market modification petitions must comply with the associated filing 
and evidentiary requirements (explained in section D of the FRFA); 
however, the filing of such petitions is voluntary. In addition, small 
TV stations may want to respond to a petition to modify its market (or 
the market of a competitor station) filed by a satellite carrier or a 
competitor station; however, there are no standardized evidentiary 
requirements associated with such responsive pleadings. Through a 
market modification process, a small TV station may gain or lose 
carriage rights with respect to a particular community, based on the 
five statutory factors, to better reflect localism.\385\
---------------------------------------------------------------------------

    \385\ See Report and Order para. 6. Section 338(l) of the Act 
provides that, in deciding requests for market modifications, the 
Commission must afford particular attention to the value of localism 
by taking into account the following five factors: (1) Whether the 
station, or other stations located in the same area--(a) have been 
historically carried on the cable system or systems within such 
community; and (b) have been historically carried on the satellite 
carrier or carriers serving such community; (2) whether the 
television station provides coverage or other local service to such 
community; (3) whether modifying the local market of the television 
station would promote consumers' access to television broadcast 
station signals that originate in their State of residence; (4) 
whether any other television station that is eligible to be carried 
by a satellite carrier in such community in fulfillment of the 
requirements of this section provides news coverage of issues of 
concern to such community or provides carriage or coverage of 
sporting and other events of interest to the community; and (5) 
evidence of viewing patterns in households that subscribe and do not 
subscribe to the services offered by multichannel video programming 
distributors within the areas served by such multichannel video 
programming distributors in such community. 47 U.S.C. 
338(l)(2)(B)(i) through (v). See also discussion at Report and Order 
at section III.B.
---------------------------------------------------------------------------

    88. In the IRFA, we invited small TV stations to comment on whether 
they are more or less likely, on the whole, to benefit from market 
modifications.\386\ In addition, we invited comment on whether there 
are any alternatives we should consider to the Commission's proposed 
implementation of section 102 of the STELAR that would minimize any 
adverse impact on small TV stations, but which are consistent with the 
statute and its goals, such as promoting localism and regulatory 
parity.\387\ We received no comments in direct response to these 
inquiries. In comments to the NPRM, Gray Television, Inc. (``Gray'') 
proposed that the Commission should establish a presumption in favor of 
applying prior cable market modification determinations to satellite 
markets to lower the burden on television broadcast stations, including 
small stations.\388\ In the Report and Order, the Commission rejected 
Gray's proposal, finding it was inconsistent with the statute's 
requirement to apply the statutory factors to each market modification 
petition.\389\ The Commission did observe, however, that consideration 
of historic carriage is one of the five statutory factors that the 
Commission is required to consider in evaluating market modification 
requests and explained that consideration under such factor would 
``give sufficient weight to prior decisions without the need to 
establish a presumption.'' \390\
---------------------------------------------------------------------------

    \386\ NPRM, para. 25.
    \387\ Id.
    \388\ Comments of Gray Television, Inc., MB Docket No. 15-71, at 
4-5 (filed May 13, 2015) (Gray Comments).
    \389\ See Report and Order para. 23 (explaining the reasons for 
not establishing a presumption that prior cable market 
determinations should apply to satellite markets).
    \390\ Id.
---------------------------------------------------------------------------

    89. Unique to satellite market modifications, the STELAR provides 
that a satellite carrier is not required to carry a station pursuant to 
a market modification if it is not technically and economically 
feasible for the carrier to do so.\391\ The Report and Order allows 
satellite carriers to demonstrate spot beam coverage infeasibility by 
providing a detailed and specialized certification under penalty of 
perjury.\392\ To avoid unnecessary burdens on broadcasters, satellite 
carriers, and the Commission, the Report and Order established a 
process for the parties to exchange information regarding feasibility 
of carriage prior to the filing of a prospective market modification 
petition.\393\ The adopted rules allow TV broadcast stations to request 
a certification regarding claims of technical or economic infeasibility 
from a satellite carrier before filing a prospective market 
modification petition, and the station may seek review of such 
certification by filing a petition for special relief before filing a 
prospective petition for market modification.\394\ This process will 
particularly benefit small stations, allowing them to avoid the time 
and expense of filing a market modification petition that could not 
result in carriage of the station. In comments to the NPRM, the 
Virginia Broadcasting Corp. (``WVIR-TV'') expressed concern that a 
certification approach would not provide broadcasters with sufficient 
information to challenge the validity of the satellite carrier's claim 
of infeasibility.\395\ The Report and Order addressed this concern by 
requiring a detailed and specialized certification that is subject to 
penalties for perjury and which would contain sufficient detail to 
ensure that the analysis performed by the satellite carrier was 
appropriate and valid.\396\
---------------------------------------------------------------------------

    \391\ See 47 U.S.C. 338(l)(3) (providing that ``[a] market 
determination . . . shall not create additional carriage obligations 
for a satellite carrier if it is not technically and economically 
feasible for such carrier to accomplish such carriage by means of 
its satellites in operation at the time of the determination.''). 
See also discussion in Report and Order at section III.D.
    \392\ See Report and Order para. 36.
    \393\ See section D of this FRFA.
    \394\ See Report and Order paras. 39-40.
    \395\ Reply Comments of Virginia Broadcasting Corp., MB Docket 
No. 15-71, at 1 (filed May 28, 2015) (WVIR-TV Reply) (urging the 
Commission ``to reject suggestions by DBS operators that would 
impose heavy burdens on broadcasters seeking market modifications--
burdens that would be particularly onerous for small market 
television stations--by withholding information that is uniquely in 
their possession regarding technical and economic infeasibility or 
by requiring broadcasters to provide support for market modification 
requests that goes well beyond what is required in the cable 
television context.'').
    \396\ See Report and Order paras. 35-36.

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[[Page 59663]]

    90. The adopted rules, for the first time, allow satellite carriers 
to request market modifications. The adopted rules also allow satellite 
carriers to assert claims of infeasibility by certification, which will 
minimize the burden on them, although the Commission may require 
satellite carriers to provide documentation upon request.\397\ As 
previously discussed, only two entities--DIRECTV and DISH Network--
provide direct broadcast satellite (DBS) service, which requires a 
great investment of capital for operation. As noted in section C of 
this FRFA, neither one of these two entities qualify as a small entity 
and small businesses do not generally have the financial ability to 
become DBS licensees because of the high implementation costs 
associated with satellite services.
---------------------------------------------------------------------------

    \397\ See Report and Order para. 35.
---------------------------------------------------------------------------

6. Report to Congress
    91. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act.\398\ In addition, the Commission will send a 
copy of the Report and Order, including this FRFA, to the Chief Counsel 
for Advocacy of the SBA. A copy of the Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.\399\
---------------------------------------------------------------------------

    \398\ See 5 U.S.C. 801(a)(1)(A).
    \399\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

B. Final Paperwork Reduction Act Analysis

    92. This document contains modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA).\400\ 
The requirements will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies will be invited to comment 
on the information collection requirements contained in this 
proceeding. The Commission will publish a separate document in the 
Federal Register at a later date seeking these comments. In addition, 
we note that pursuant to the Small Business Paperwork Relief Act of 
2002 (SBPRA),\401\ we previously sought specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
---------------------------------------------------------------------------

    \400\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44 
U.S.C.). See OMB Control Number 3060-0546. The Commission received 
pre-approval for this modified collection on June 17, 2015; however, 
we are making additional modifications to this collection in this 
Report and Order.
    \401\ The Small Business Paperwork Relief Act of 2002 (SBPRA), 
Publaw Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of 
title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).
---------------------------------------------------------------------------

C. Congressional Review Act

    93. The Commission will send a copy of this Report and Order in a 
report to be sent to Congress and the Government Accountability Office, 
pursuant to the Congressional Review Act.\402\
---------------------------------------------------------------------------

    \402\ See 5 U.S.C. 801(a)(1)(A).
---------------------------------------------------------------------------

V. Ordering Clauses

    94. Accordingly, it is ordered that, pursuant to section 102 of the 
STELA Reauthorization Act of 2014 (STELAR), Public Law 113-200, 128 
Stat. 2059 (2014), and sections 1, 4(i), 303(r), 325, 338 and 614 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 
303(r), 325, 338 and 534, this Report and Order is hereby adopted, 
effective thirty (30) days after the date of publication in the Federal 
Register.
    95. It is further ordered that the Commission's rules are hereby 
amended as set forth in Appendix B of the Report and Order and will 
become effective November 2, 2015, except for 47 CFR 76.59(a) and (b), 
which contain information collection requirements that have not been 
approved by OMB. The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.
    96. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 76

    Broadcast television, Cable television, Satellite television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

0
2. Section 76.5 is amended by revising paragraph (gg) to read as 
follows:


Sec.  76.5  Definitions.

* * * * *
    (gg) Satellite community. (1) For purposes of the significantly 
viewed rules (see Sec.  76.54), a separate and distinct community or 
municipal entity (including unincorporated communities within 
unincorporated areas and including single, discrete unincorporated 
areas). The boundaries of any such unincorporated community may be 
defined by one or more adjacent five-digit zip code areas. Satellite 
communities apply only in areas in which there is no pre-existing cable 
community, as defined in paragraph (dd) of this section.
    (2) For purposes of the market modification rules (see Sec.  
76.59), a county.
* * * * *
0
3. Section 76.7 is amended by revising paragraph (a)(3) to read as 
follows:


Sec.  76.7  General special relief, waiver, enforcement, complaint, 
show cause, forfeiture, and declaratory ruling procedures.

    (a) * * *
    (3) Certificate of service. Petitions and Complaints shall be 
accompanied by a certificate of service on any cable television system 
operator, multichannel video programming distributor, franchising 
authority, station licensee, permittee, or applicant, or other 
interested person who is likely to be directly affected if the relief 
requested is granted.
* * * * *
0
4. Section 76.59 is amended by revising paragraphs (a), (b)(1) and (2), 
and (b)(5) and (6), adding paragraph (b)(7), revising paragraph (d), 
and adding paragraphs (e) and (f) to read as follows:


Sec.  76.59  Modification of television markets.

    (a) The Commission, following a written request from a broadcast 
station, cable system, satellite carrier or county government (only 
with respect to satellite modifications), may deem that the television 
market, as defined either by Sec.  76.55(e) or Sec.  76.66(e), of a 
particular commercial television broadcast station should include 
additional communities within its television market or exclude 
communities from such station's television market. In this respect, 
communities may be considered part of more than one television market.
    (b) * * *
    (1) A map or maps illustrating the relevant community locations and

[[Page 59664]]

geographic features, station transmitter sites, cable system headend or 
satellite carrier local receive facility locations, terrain features 
that would affect station reception, mileage between the community and 
the television station transmitter site, transportation routes and any 
other evidence contributing to the scope of the market.
    (2) Noise-limited service contour maps (for full-power digital 
stations) or protected contour maps (for Class A and low power 
television stations) delineating the station's technical service area 
and showing the location of the cable system headends or satellite 
carrier local receive facilities and communities in relation to the 
service areas.

    Note to paragraph (b)(2):  Service area maps using Longley-Rice 
(version 1.2.2) propagation curves may also be included to support a 
technical service exhibit.

* * * * *
    (5) Cable system or satellite carrier channel line-up cards or 
other exhibits establishing historic carriage, such as television guide 
listings.
    (6) Published audience data for the relevant station showing its 
average all day audience (i.e., the reported audience averaged over 
Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both 
multichannel video programming distributor (MVPD) and non-MVPD 
households or other specific audience indicia, such as station 
advertising and sales data or viewer contribution records.
    (7) If applicable, a statement that the station is licensed to a 
community within the same state as the relevant community.
* * * * *
    (d) A cable operator or satellite carrier shall not delete from 
carriage the signal of a commercial television station during the 
pendency of any proceeding pursuant to this section.
    (e) A market determination under this section shall not create 
additional carriage obligations for a satellite carrier if it is not 
technically and economically feasible for such carrier to accomplish 
such carriage by means of its satellites in operation at the time of 
the determination.
    (f) No modification of a commercial television broadcast station's 
local market pursuant to this section shall have any effect on the 
eligibility of households in the community affected by such 
modification to receive distant signals from a satellite carrier 
pursuant to 47 U.S.C. 339.
0
5. Section 76.66 is amended by adding paragraph (d)(6) and revising 
paragraph (e)(1) introductory text to read as follows:


Sec.  76.66  Satellite broadcast signal carriage.

* * * * *
    (d) * * *
    (6) Carriage after a market modification. Television broadcast 
stations that become eligible for mandatory carriage with respect to a 
satellite carrier (pursuant to Sec.  76.66) due to a change in the 
market definition (by operation of a market modification pursuant to 
Sec.  76.59) may, within 30 days of the effective date of the new 
definition, elect retransmission consent or mandatory carriage with 
respect to such carrier. A satellite carrier shall commence carriage 
within 90 days of receiving the carriage election from the television 
broadcast station. The election must be made in accordance with the 
requirements in paragraph (d)(1) of this section.
    (e) Market definitions. (1) A local market, in the case of both 
commercial and noncommercial television broadcast stations, is the 
designated market area in which a station is located, unless such 
market is amended pursuant to Sec.  76.59, and
* * * * *
[FR Doc. 2015-24999 Filed 10-1-15; 8:45 am]
 BILLING CODE 6712-01-P