Carriage of Digital Television Broadcast Signals, 14412-14420 [05-5611]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 70, Number 54 (Tuesday, March 22, 2005)]
[Rules and Regulations]
[Pages 14412-14420]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5611]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-120; FCC 05-27]


Carriage of Digital Television Broadcast Signals

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: In this document, the Commission considers several petitions 
for reconsideration of its First Report and Order (FCC 01-22) and 
various comments submitted in response to the Further Notice of 
Proposed Rulemaking (FCC 01-22) in this proceeding, but limited to two 
issues raised therein: Whether cable operators are required to carry 
both the digital and analog signals of a station during the transition 
when television stations are still broadcasting analog signals (also 
referred to as the ``dual carriage'' issue); and how to construe the 
``primary video'' carriage limitation under Sections 614(b)(3)(A) (for 
commercial stations) and 615(g)(1) (for noncommercial stations) under 
the Communications Act of 1934, as amended, if a broadcaster chooses to 
broadcast multiple digital television streams (also referred to as the 
``multicast carriage'' issue). In this document, the Commission grants 
in part and denies in part the petitions for reconsideration. The 
Commission affirms its tentative conclusion in the First Report and 
Order not to impose a dual carriage requirement. With regard to the 
digital multicast carriage issue, the Commission affirms its earlier 
conclusion in the First Report and Order and declines to require cable 
operators to carry any more than one programming stream of a digital 
television station. Although the Commission found that the operative 
statutory language at issue is ambiguous on the subject of multicast 
must carry, it also found, based on the current record, that such a 
requirement is not necessary to further the purposes of the must carry 
statute, as defined by the Supreme Court.

DATES: Effective March 22, 2005.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Ben Bartolome, Ben.Bartolome@fcc.gov, or Eloise 
Gore, Eloise.Gore@fcc.gov, of the Media Bureau, Policy Division, (202) 
418-2120. For additional information concerning the Paperwork Reduction 
Act of 1995 analysis, please contact Cathy Williams, Federal 
Communications Commission, 445 12th St, SW., Room 1-C823, Washington, 
DC, 20554, or via the Internet to Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Second Report and Order and First Order on 
Reconsideration, FCC 05-27, adopted February 10, 2005, and released on 
February 23, 2005. The full text of this document is available for 
public inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street, 
SW., CY-A257, Washington, DC, 20554. These documents will also be 
available via ECFS (https://www.fcc.gov/cgb/ecfs/). (Documents will be 
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request 
this document in accessible formats (computer diskettes, large print, 
audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call 
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

    This Second Report and Order and First Order on Reconsideration has 
been analyzed with respect to the Paperwork Reduction Act of 1995 
(``PRA''), Public Law 104-13, 109 Stat 163 (1995), and does not contain 
proposed new and/or modified information collection requirements.

Synopsis of the Second Report and Order and First Order on 
Reconsideration

I. Introduction

    1. In this Second Report and Order and First Order on 
Reconsideration, we consider several petitions for reconsideration of 
the Commission's First Report and Order, 66 FR 16533, Mar. 26, 2001, 
and the various comments submitted in response to the Further Notice of 
Proposed Rulemaking (FNPRM), 63 FR 42330, Aug. 7, 1998, in this 
proceeding. The actions taken in this order are limited to two 
significant issues, the resolution of which are essential to the 
Commission's ongoing efforts to complete the transition from analog to 
digital television. In the interest of providing certainty on these 
significant issues at this time, we are deferring resolution of the 
other issues raised on reconsideration and in the FNPRM to a future 
order. The two issues resolved in this order are: (1) whether cable 
operators are required to carry both the digital and analog signals of 
a station during the transition when television stations are still 
broadcasting analog signals (also generally referred to as the ``dual 
carriage'' issue); and (2) how to construe the ``primary video'' 
carriage limitation under Sections 614(b)(3)(A) (for commercial 
stations) and 615(g)(1) (for noncommercial stations) under the Act if a 
broadcaster chooses to broadcast multiple digital television streams 
(this issue is generally referred to as the mandatory multicast 
carriage issue); see 47 U.S.C. 534(b)(3)(A), 535(g)(1).
    2. With respect to the dual carriage issue, we determined in the 
First Report and Order that the statute neither mandates nor precludes 
the mandatory simultaneous carriage of both a television station's 
digital and analog signals. Furthermore, we tentatively concluded that, 
based on the available record evidence, a dual carriage requirement 
would likely violate the cable operator's First Amendment rights. In 
order to evaluate the issue more fully, we adopted the FNPRM to solicit 
comment on the constitutionality of imposing a dual carriage 
requirement. Several members of the broadcast industry seek 
reconsideration of the Commission's statutory interpretation on this 
issue, and urge us to conclude that the Act mandates dual carriage. For 
the reasons provided in this order, we are denying the petitions on 
this issue and affirm our tentative decision not to impose a dual 
carriage requirement.
    3. With respect to the mandatory multicast carriage issue, the 
Commission, in the First Report and Order, interpreted the statutory 
term ``primary video'' to mean only a single programming stream. As a 
result, if a digital broadcaster elects to divide its digital spectrum 
into several separate, independent, and unrelated programming streams, 
the Commission found that only one of these streams is considered 
primary and entitled to mandatory carriage. Several members of the 
broadcast industry seek reconsideration of our statutory 
interpretation. For the reasons provided below, we are also denying the 
petitions on this issue and thereby affirm our decision in the First 
Report and Order.

II. Background

    4. Sections 614 and 615 of the Act govern mandatory carriage for 
cable operators. Our task in this ongoing proceeding is to determine 
how to

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implement and apply the statute to digital signals during the 
transition as well as after the transition is completed. Our approach 
is guided by Title VI of the Act, which states, in part, that ``cable 
communications provide and are encouraged to provide the widest 
possible diversity of information sources and services to the public.'' 
In addition, we are directed to ``promote competition in cable 
communications and minimize unnecessary regulation that would impose an 
undue economic burden on cable systems.''
    5. The law governing retransmission consent generally prohibits 
cable operators and other multichannel video programming distributors, 
such as satellite carriers, from retransmitting the signal of a 
commercial television station, unless the station whose signal is being 
transmitted consents or chooses mandatory carriage; see 47 U.S.C. 
325(b)(1)(A) and (B). Generally, every three years, commercial 
television stations must elect to either grant retransmission consent 
or pursue their mandatory carriage rights; see 47 CFR 76.64(f).
    6. Under Section 614 of the Act, and the implementing rules adopted 
by the Commission, a commercial television broadcast station is 
entitled to request mandatory carriage, if it does not elect 
retransmission consent, on cable systems located within the station's 
market. A station's market for this purpose is its ``designated market 
area,'' or DMA, as defined by Nielsen Media Research (A DMA is a 
geographic market designation that defines each television market 
exclusive of others based on measured viewing patterns). Systems with 
more than 12 usable activated channels must carry local commercial 
television stations ``up to one-third of the aggregate number of usable 
activated channels of such system[s]''; see 47 U.S.C. 534(b)(1)(B). 
Beyond this requirement, the carriage of additional television stations 
is at the discretion of the cable operator. In addition, Section 615 of 
the Act requires cable systems to carry local noncommercial educational 
television stations (``NCE'' stations) according to a different 
formula, and based upon a cable system's number of usable activated 
channels. Carriage of NCE stations are in addition to the one-third cap 
that applies to full power commercial stations. Low power television 
stations, including Class A stations, may request carriage if they meet 
six statutory criteria; see 47 U.S.C. 534(c)(1) and (h)(2); 47 CFR 
76.55(d). A cable operator, however, cannot carry a low power 
television station in lieu of a full power television station; see 47 
U.S.C. 534(b)(1)(A) and (h)(2); 47 CFR 76.56(b)(1) and (b)(4)(i). Among 
these criteria are that the low power TV station meets all of the 
Commission's requirements that are applicable to full power TV stations 
with respect to certain types of programming, such as children's and 
political programming, and ``the Commission determines that the 
provision of such programming by such station would address local news 
and informational needs which are not being adequately served by full 
power television broadcast stations because of the geographic distance 
of such full power stations from the low power station's community of 
license''; see 47 U.S.C. 534(h)(2)(B).

III. Carriage of Digital Broadcast Signals

A. Stations Broadcasting in Analog and Digital
    7. A fundamental issue addressed in the First Report and Order and 
in the FNPRM is whether cable operators are required to carry both the 
analog and digital signals of a station during the transition when 
television stations are broadcasting analog and digital signals; see 16 
FCC Rcd at 2603-09, 2649-52. We said therein that if the Commission 
requires carriage of both analog and digital signals (i.e., ``dual 
carriage''), cable operators could be required to carry double the 
number of television signals, many of which contain duplicative 
content, while having to drop or forego carriage of varied cable 
programming services where channel capacity is limited; see 16 FCC Rcd 
at 2603-09, 2649-52.
    8. In the First Report and Order, we examined our authority to 
impose a dual carriage requirement and determined, after extensive 
review of Sections 614 and 615 of the Act and the accompanying 
legislative history, that ``the statute neither mandates nor precludes 
the mandatory simultaneous carriage of both a television station's 
digital and analog signals;'' see 16 FCC Rcd at 2600. It is precisely 
the ambiguity of the statute that has driven contentious policy debate 
on this issue. In order to weigh the constitutional questions inherent 
in a statutory construction that would permit dual carriage, we 
determined that it was appropriate and necessary to more fully develop 
the record in this regard. It was our tentative conclusion, however, 
that a dual carriage requirement would burden cable operators' First 
Amendment rights substantially more than necessary to further the 
government's substantial interests; see 16 FCC Rcd at 2600. We issued a 
FNPRM addressing several critical questions concerning the 
constitutionality of dual carriage, including: (1) Whether a cable 
operator will have the channel capacity to carry the digital television 
signal of a station, in addition to the analog signal of that same 
station, without displacing other cable programming or services; (2) 
whether market forces, through retransmission consent, will provide 
cable subscribers access to digital television signals; and (3) how the 
resolution of the carriage issues would impact the digital transition 
process; see 16 FCC Rcd at 2600, 2647-54. Before considering the 
additional record and finally determining the dual carriage question, 
we first address the petitions for reconsideration of our preliminary 
decision on the statutory issue in the First Report and Order.
1. Statutory Analysis
    9. Several members of the broadcast industry seek reconsideration 
of the Commission's statutory interpretation on this issue, and urge us 
to conclude that the Act mandates dual carriage. Commercial 
Broadcasters specifically argue that Section 614(a) of the Act makes no 
distinction between qualifying analog and digital signals, so therefore 
all local television station signals must be carried. They point out 
that Section 614(h)(1)(A) of the A defines the term ``local commercial 
television station,'' does not expressly exclude DTV signals from 
carriage during the time that the companion analog signal would be 
carried. They state that ``Section 614 applies to the signals of any 
full power commercial television station licensed and operating on a 
channel regularly assigned to its community by the Commission, not 
otherwise excluded by the terms of Section 614.'' Furthermore, they 
assert that the new DTV signals of full power television broadcast 
stations at issue here were, at the time of the 1992 Cable Act, 
anticipated to be ``licensed and operating on a channel regularly 
assigned to its community by the Commission.'' They surmise that if 
Congress intended to exclude these DTV signals from carriage 
requirements during the transitional period, it would have so indicated 
in Section 614. In their view, ``[b]ecause the statutory mandate to 
carry broadcasters' DTV signals is clear, the Commission lacks 
discretion to water down or modify the express requirement that cable 
operators carry DTV signals.''
    10. Cable operators and non-broadcast programmers, on the other 
hand, ask the Commission to deny petitioners' request for 
reconsideration of this issue. NCTA argues that, in the absence of a 
clear statutory directive for dual carriage, the

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Commission must read the statute to err on the side of avoiding 
constitutional infirmities. Cable programmer A&E states that if 
Congress had intended for the Commission to greatly expand the cable 
industry's carriage burden during the DTV transition, it would have 
done so much more plainly and explicitly. A&E points out that 
subsequent congressional actions and relevant legislative histories in 
the Telecommunications Act of 1996, the Balanced Budget Act of 1997, 
and the Satellite Home Viewer Improvement Act of 1999, demonstrate that 
Congress did not intend to compel dual carriage through Section 
614(b)(4)(B) of the Act.
    11. The arguments that the parties have presented in support of a 
statutory reading to require dual carriage essentially are no different 
from those that have previously been submitted, considered, and 
rejected in the First Report and Order; see 16 FCC Rcd at 2603-09. We 
therefore affirm our earlier conclusion that the Act is ambiguous on 
the issue of dual carriage. The statute neither mandates nor precludes 
the mandatory simultaneous carriage of both a television station's 
digital and analog signals; see 16 FCC Rcd at 2600. Further, we do not 
believe that mandating dual carriage is necessary either to advance the 
governmental interests identified by Congress in enacting Sections 614 
and 615 and upheld in Turner II or to effectuate the DTV transition. 
Since no evidence or arguments submitted on reconsideration gives us 
any reason to question our original judgment, we deny the petitions for 
reconsideration on this point.
2. Constitutional Analysis
    12. As indicated above, the First Report and Order held that the 
Act was ambiguous as to the question of dual carriage and that further 
fact-finding was necessary to determine the appropriate statutory 
interpretation; see 16 FCC Rcd at 2648. We rely on several 
constitutional principles and cases, in particular the Supreme Court's 
decisions in Turner I (Turner Broadcasting Systems, Inc. v. FCC, 512 
U.S. 622 (1994)) and Turner II (Turner Broadcasting Systems, Inc. v. 
FCC, 520 U.S. 180 (1997)) in addressing the constitutionality of 
mandatory dual carriage. The Supreme Court has recognized that 
mandatory carriage directly interferes with the free speech rights of 
cable operators and cable programmers. Nevertheless, the Turner II 
Court upheld the constitutionality of Sections 614 and 615 under an 
intermediate scrutiny analysis. A majority of the Court found that the 
mandatory carriage provisions of the Act furthered two governmental 
interests: (1) preserving the benefits of free, over-the-air local 
broadcast television for viewers; and (2) promoting the widespread 
dissemination of information from a multiplicity of sources. 
Significantly, the Court found that mandatory carriage was narrowly 
tailored because the burden imposed at that time was congruent to the 
benefits obtained. A plurality of the Court also concluded that 
Sections 614 and 615 furthered a third governmental interest--Justice 
Breyer, whose vote was necessary to sustain the requirement, however, 
did not believe that must carry was necessary to promote ``fair 
competition,'' as did the other justices in the majority.
    13. In the First Report and Order, we recognized that any type of 
dual carriage rule must satisfy the Turner factors and pass the test 
provided in United States v. O'Brien, 391 U.S. 367, 377 (1968), for 
determining whether a content-neutral rule or regulation violates the 
Constitution; see 16 FCC Rcd at 2648. Under the O'Brien test, a 
content-neutral regulation would be upheld if: (1) it furthered an 
important or substantial governmental interest; (2) the government 
interest was unrelated to the suppression of free expression; and (3) 
the incidental restriction on First Amendment freedoms was no greater 
than is essential to the furtherance of that interest. In sum, under 
the O'Brien test, a regulation must not burden substantially more 
speech than is necessary to further the government's legitimate 
interests. We invited commenters that support a dual carriage 
requirement to submit evidence to show how mandatory dual carriage 
would satisfy the constitutional requirements of both Turner and 
O'Brien. After close examination of the information submitted, we find 
nothing in the record that would allow us to conclude that mandatory 
dual carriage is necessary to further the governmental interests 
identified in Turner, or other potential governmental interests put 
forward by commenters. In addition, even if it could be shown that dual 
carriage could further any of the governmental interests based on the 
current record, the burden that mandatory dual carriage places on cable 
operators' speech appears to be greater than is necessary to achieve 
the interests that must carry was meant to serve. Mandatory dual 
carriage would essentially double the carriage rights and substantially 
increase the burdens on free speech beyond those upheld in Turner. As 
noted, Turner II found the benefits and burdens of must carry to be 
congruent, such that must carry is narrowly tailored to preserve the 
multiplicity of broadcast stations for households that do not subscribe 
to cable.
    14. Preserving the benefits of free over-the-air television for 
viewers. The first governmental interest identified in Turner to 
support mandatory carriage is the preservation of the benefits of free 
over-the-air television for non-subscribers. The broadcast industry 
argues that a slow DTV transition places preservation of over-the-air 
broadcasting at risk. Commercial Broadcasters assert that the entire 
premise of the digital transition is for digital signals to replace 
analog signals. They argue that if viewers are unable to receive 
digital signals, digital cannot replace analog, and broadcasters will 
be forced to sustain the operation of two facilities at considerable 
expense, without any additional revenue. Noncommercial Broadcasters 
assert that the costs of dual transmissions are overwhelming for 
smaller television stations.
    15. NCTA contends that the broadcast industry sought a second 
channel of spectrum to provide digital programming, prior to which 
there was no apparent threat to the preservation of broadcast stations 
for over-the-air viewers, given that cable operators were required to 
carry virtually all existing analog stations. International Channel 
asserts that analog carriage, by itself, serves the government interest 
in preserving the benefits of free over-the-air television. A&E states 
that the only reason the Court upheld the analog carriage requirements 
is that Congress found cable carriage to be necessary to promote the 
continued availability of free television programming, ``especially for 
viewers who are unable to afford other means of receiving 
programming.''
    16. Despite the broadcast parties' assertions, the record as a 
whole does not demonstrate that television stations would face undue 
hardship in the absence of dual carriage that would, in turn, threaten 
the ability of broadcasters to provide service to non-cable households. 
The critical governmental interest, reflected in the Act, was described 
by the Supreme Court as the preservation of over-the-air broadcasting. 
More specifically, the congressionally-adopted governmental interest 
identified in Turner was the protection of the interests of over-the-
air television viewers--i.e., viewers whose interests were not 
reflected in the carriage decisions of cable operators nor in the 
viewing options available to cable subscribers. Thus, the focus of the 
government interest in Turner is not the economic health of 
broadcasting per se,

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but the benefits that broadcasting provides to consumers. In sum, the 
critical factor in interpreting the intent of the statute and in the 
constitutional analysis of it is that it is designed ``to provide over-
the-air viewers who lack cable with a rich mix of over-the-air 
programming by guaranteeing the over-the-air stations that provide such 
programming with the extra dollars that an additional cable audience 
will generate'' and to assure the over-the-air public ``access to a 
multiplicity of information sources.'' With respect to mandatory dual 
carriage, all broadcast stations are required to build a digital 
facility and broadcast a digital signal. Thus, cable carriage is not 
needed to ensure that non-cable, over-the-air viewers have access to 
digital broadcast signals. Broadcasters advocating mandatory dual 
carriage have not demonstrated that non-cable households would benefit 
from more or better broadcast programming if stations have mandatory 
dual carriage. (We note that Congress has recently enacted a dual 
carriage requirement under very limited circumstances. The Satellite 
Home Viewer Extension Reauthorization Act (``SHVERA''), Public Law 108-
447, sec. 210, 118 Stat. 2809, 3393 (2004), requires a phase-in of 
mandatory dual carriage only in Alaska and Hawaii by satellite carriers 
with more than five million subscribers. Congress may, of course, 
decide to impose a dual carriage requirement in situations in which it 
finds it necessary to further an important governmental interest. By 
imposing a dual carriage requirement in only two states, Congress 
implicitly determined that the benefits and burdens of dual carriage in 
Alaska and Hawaii with respect to satellite carriers are different from 
those in the contiguous United States.). Local analog broadcasters are 
already carried today--either pursuant to must carry or retransmission 
consent--on virtually every cable system in their market. We have no 
evidence that the absence of a dual carriage requirement will 
substantially diminish the availability or quality of broadcast signals 
available to non-cable subscribers. A small number of broadcasters that 
have demonstrated legitimate financial hardship if they were required 
to build their digital facilities have been granted extensions, but the 
hardship is not due to lack of cable carriage. The absence of a dual 
carriage requirement might in fact encourage broadcasters to produce a 
``rich mix of over-the-air programming'' in order to convince cable 
operators to voluntarily carry their digital signal. Furthermore, the 
goal of the DTV transition is not to support the ongoing existence of 
two 6 MHz channels for each broadcast licensee, but rather to 
transition from one 6 MHz analog allocation to one 6 MHz digital 
allocation, with the anticipated return of one 6 MHz allocation.
    17. Promoting the widespread dissemination of information from a 
multiplicity of sources. The second of the three interrelated 
governmental interests identified in Turner is ``promoting the 
widespread dissemination of information from a multiplicity of 
sources.'' Discovery argues that if the Commission were to mandate dual 
carriage, it would allow a single broadcaster to use up to 12 MHz of 
cable capacity. Discovery comments that the second 6 MHz channel 
requested by broadcasters could instead be used by a cable operator to 
provide as many as a dozen diverse non-broadcast programming services 
offered on a compressed digital basis. Cable industry commenters also 
argue that most broadcast stations are upconverting analog signals to a 
standard definition digital format, and that such duplicative broadcast 
programming does not contribute to program diversity. On the other 
hand, CEA argues that dual carriage assures broadcasters and 
programmers of carriage for digital programming, thus motivating them 
to produce original digital programming, that will, in turn, provide 
consumers with incentive to purchase digital receivers. On balance, we 
find that the current record fails to demonstrate that dual carriage is 
needed to further this governmental interest because program diversity 
is not promoted under a dual carriage requirement, given that it would 
not result in additional sources of programming and that digital 
programming largely simulcasts analog programming.
    18. Promoting fair competition in the market for television 
programming. The third important governmental interest identified in 
Turner is promoting fair competition in the market for television 
programming. While a majority of the Court agreed that this is an 
important governmental interest, only four justices found that this 
interest was achieved by the must carry statutory requirements. Based 
on our previous conclusions--i.e., that dual carriage is not needed to 
further the governmental interests found by a majority of the Court, it 
is unnecessary to consider this third interest in great detail. The 
anti-competitive concerns cited by Congress and the Supreme Court 
stemmed from the increasing vertical integration and penetration of the 
cable industry in 1992. Commercial Broadcasters claim that cable 
operators still act as gatekeepers as they serve nearly 70% of American 
households, and compete with local broadcast stations for advertising 
dollars. They contend that the enhanced services that DTV makes 
possible directly compete with cable services, resulting in greater 
disincentives for cable to afford digital broadcasters access to their 
audience. Cable operators and programmers counter that such concerns 
about competition for local advertising are misplaced.
    19. Court TV urges the Commission to recognize the central premise 
of broadcasting--i.e., that the medium has the inherent ability to 
reach viewers over-the-air independent of cable carriage. HBO adds that 
broadcasters use analog retransmission consent/must carry rights to 
secure cable channel capacity for their affiliated cable networks. The 
Filipino Channel argues that dual carriage, even for a limited period 
of time, would foreclose carriage options for many cable networks.
    20. In many respects, competition in the MVPD market has increased 
since 1992, although the market for the delivery of video programming 
to households continues to be characterized by substantial barriers to 
entry. The record, however, does not evidence a connection between 
mandating dual carriage and remedying any allegations of cable 
operators' anti-competitive action against local broadcast stations. 
Because operators must carry local broadcaster's analog signal, there 
is no obvious need for cable operators to carry two signals for each 
local station, and it has not been proven necessary to guarantee such 
access for both analog and digital signals to ensure fair competition. 
We believe the burden is on the advocates of dual carriage to prove 
this competitive necessity and that speculative allegations in this 
regard are inadequate in light of the burden on cable operators and 
cable programmers competing for cable access.
    21. Advancing the Digital Transition. Broadcast commenters state 
that a rapid transition from analog to digital broadcast signals is an 
important governmental interest that can justify burdening speech 
protected by the First Amendment. They contend that dual carriage is 
necessary to achieve a swift and successful DTV transition. NCTA 
counters that Congress never expressed that hastening the end of the 
transition is a governmental interest, and nor has the Supreme Court 
``embraced any such interest'' in upholding must carry requirements. 
CEA, on the other hand,

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states that some form of dual carriage is necessary for public 
acceptance of digital television technology because it will spur 
broadcasters to produce digital television programming, which, in turn, 
will convince consumers to purchase DTV receivers. Maranatha argues 
that consumers will not have the incentive to buy DTV receivers until 
they can actually receive digital broadcast programming through their 
local cable systems. AT&T and others in the cable industry counter that 
dual carriage provides no incentive for consumers to purchase digital 
television sets, particularly when broadcasters are creating little or 
no original content.
    22. A swift digital television transition and the return of the 
analog spectrum for other uses are important governmental concerns. We 
find that the imposition of a dual carriage requirement, however, is 
not necessary to complete the transition. Many factors are necessary 
for the transition to be successful, such as consumer acceptance of a 
new type of television service and rapid digital receiver penetration. 
The top ten cable operators (representing more than 85% of cable 
subscribers nationwide) have committed to deploying high-definition 
services and are fulfilling that commitment. More recently, NCTA 
reports that the HDTV carriage data reflect that more and more cable 
households are receiving HDTV programming: (1) the number of local TV 
markets in which consumers can now receive a package of HDTV services 
from their cable operator has grown to 184 (out of 210), including all 
of the top 100 DMAs; (2) the number of local digital broadcast stations 
being carried voluntarily by cable systems increased to 504, up from 
304 in December 2003; (3) of the 108 million U.S. TV households today, 
92 million are now passed by a cable system that offers a package of 
HDTV programming; and (4) 18 cable networks now offer HD programming 
during some or all of their network schedules, in broad genres 
reflecting movies, sports, and general interest.
    23. The voluntary carriage of network television stations by these 
operators, as well as carriage of high definition digital programming 
from non-broadcast sources like HBO, are more likely to spur the sale 
of digital television equipment (thereby, facilitating the transition) 
than the forced dual carriage of all television stations. We thus 
decline to impose dual carriage requirements that burden speech in the 
absence of record evidence showing dual carriage is necessary for a 
timely completion of the transition.
    24. Fifth Amendment Argument. NCTA argues that dual carriage would 
constitute an uncompensated taking of private property in violation of 
the Fifth Amendment to the Constitution, especially where, as here, 
Congress has not clearly authorized such a requirement. NAB responds, 
in part, that the mere fact that a dual carriage rule might exact some 
financial toll from cable operators would not render mandatory dual 
carriage a taking. Given that we have declined to impose dual carriage 
on other grounds, we need not address the cable industry's Fifth 
Amendment argument.
    25. Conclusion. We have analyzed the governmental interests 
identified in Turner, additional governmental interests proposed by the 
broadcast industry, and policy concerns. We find that there has not 
been an adequate showing that dual carriage is necessary to achieve any 
valid governmental interest. Therefore, in the absence of a clear 
statutory requirement for dual carriage, we decline to impose this 
burden on cable operators.

B. Primary Video/Multicast Carriage

    26. In the First Report and Order, the Commission examined how to 
apply the ``primary video'' carriage limitation if a broadcaster 
chooses to broadcast multiple standard definition digital television 
streams, or a mixture of high definition and standard definition 
digital television streams; see 16 FCC Rcd at 2620-22. Section 
614(b)(3)(A) of the Act states:

    A cable operator shall carry in its entirety, on the cable 
system of that operator, the primary video, accompanying audio, and 
line 21 closed caption transmission of each of the local commercial 
television stations carried on the cable system and, to the extent 
technically feasible, program-related material carried in the 
vertical blanking interval or on subcarriers. Retransmission of 
other material in the vertical blanking [interval] or other 
nonprogram-related material (including teletext and other 
subscription and advertiser-supported information services) shall be 
at the discretion of the cable operator. Where appropriate and 
feasible, operators may delete signal enhancements, such as ghost-
canceling, from the broadcast signal and employ such enhancements at 
the system headend or headends; see 47 U.S.C. 534(b)(3).

    Largely parallel provisions are contained in Section 615(g)(1) for 
noncommercial stations; see 47 U.S.C. 535(g)(1).
    27. In the First Report and Order, the Commission recognized that 
``the terms `primary video' as used in Sections 614(b)(3) and 615(g)(1) 
are susceptible to different interpretations,'' and that ``[t]he 
legislative history does not definitively resolve the ambiguity 
regarding the intended application of the term `primary video' as used 
in [the multicasting] context;'' see 16 FCC Rcd at 2620-21. The 
Commission thus analyzed the term within its statutory context, 
considered the legislative history, and examined the technological 
developments at the time the must carry provisions were enacted; see 16 
FCC Rcd at 2620-22. As a result of dictionary definitions and 
legislative history indicating that ``must carry provisions were not 
intended to cover all uses of a signal,'' the Commission stated that 
``[b]ased on the record currently before us, we conclude that `primary 
video' means a single programming stream and other program-related 
content;'' see 16 FCC Rcd at 2620-22. As a result, the Commission held 
that if a digital broadcaster elects to divide its digital spectrum 
into several separate, independent, and unrelated programming streams, 
only one of these streams is considered primary and entitled to 
mandatory carriage; see 16 FCC Rcd at 2620-22. Under this 
determination, the broadcaster elects which programming stream is its 
primary video, and the cable operator is required to provide mandatory 
carriage only of that designated stream; see 16 FCC Rcd at 2620-22.
    28. Several commercial and noncommercial broadcasters seek 
reconsideration of our interpretation of the term ``primary video.'' 
They contend that we wrongly concluded that when a digital signal 
becomes eligible for mandatory carriage, cable operators are only 
required to carry a single video stream. In the view of some broadcast 
petitioners, ``primary video'' means all video that is included in a 
broadcaster's digital signal. Other broadcast petitioners suggest that 
since all video contained in analog broadcast signals has been 
available free to over-the-air viewers, the ``primary video'' of a 
digital signal should be deemed to include video programming that is 
available ``free of charge.'' Disney specifically asks us to adopt a 
definition of ``primary video'' that requires ``full carriage of the 
entire 19.4 Mbps bit stream of a local broadcaster's digital signal, 
except for those ancillary and supplementary services expressly 
excluded by statute.'' Disney asserts that such a standard will impose 
no greater burden on cable operators than that created by the existing 
analog must carry requirements, or by carriage of an HDTV signal.
    29. More specifically, the broadcast petitioners argue that the 
Commission's definition of ``primary video'' is not supported by the 
statutory language and the accompanying legislative history.

[[Page 14417]]

Noncommercial Broadcasters state that because of the unavailability of 
a plain meaning interpretation, the Commission must look to the Act as 
a whole to determine what Congress meant by a broadcaster's ``primary 
video.'' They submit that, because of the ambiguity of the statute, the 
most reasonable interpretation of the term ``primary video'' includes 
``the package of video and audio digital services transmitted by the 
broadcaster free and over the air to viewers.'' Similarly, Commercial 
Broadcasters argue that the word ``primary'' is a generic adjective 
that may be used with singular or plural noun forms, as in the phrases 
``primary elements'' and ``primary colors.'' They state that the 
Commission should not have applied a literal definition, but rather 
interpreted for the new digital context what was intended by the term 
for the analog situation.
    30. NCTA, Time Warner, and other parties ask us to deny the 
petitions. They contend that a plain reading of the statute clearly 
indicates a limited carriage obligation, and that, even if there are 
other interpretations of the provision, the Commission's interpretation 
is a reasonable one, because it gives meaning to the word ``primary'' 
and is consistent with the common usage and meaning of the term. 
Additionally, NCTA contends that the Commission's interpretation is 
consistent with the underlying policy objectives of the Act and 
Congress's clear intention to limit carriage obligations in light of 
First Amendment concerns. NCTA argues that carriage of multiple video 
programming streams would multiply the burden on cable operators as 
well as the unfairness to cable program networks without serving any of 
the purposes of the must carry provisions of the statute, thereby 
raising First Amendment infirmities. NCTA states that the Commission is 
compelled to avoid such a construction of the Act even if it were to 
find the term ``primary video'' to be at all ambiguous. According to 
Professor Tribe's filing on behalf of the NCTA, ``forcing cable 
operators to carry multiple video streams of digital broadcasters would 
abridge the editorial freedom of cable operators, harm cable 
programmers, and invade the right of audiences to choose what they want 
to view--all without promoting any of the governmental interests 
contemplated by Congress in enacting the must-carry rules, or any of 
the interests approved by the Supreme Court in Turner I and Turner 
II.'' Professor Tribe also argues that mandatory carriage of multiple 
streams of video programming would result in a permanent, physical 
occupation of a substantial amount of a cable operator's capacity, 
raising ``substantial issues under the Fifth Amendment's Takings Clause 
and under the separation of powers.''
    31. After consideration of all the arguments and evidence presented 
on this issue, we affirm our earlier decision, and decline, based on 
the current record before us, to require cable operators to carry any 
more than one programming stream of a digital television station that 
multicasts. On reconsideration, we acknowledge, however, that the 
language of the Act may be less definitive than portions of our earlier 
decision suggested. This conclusion is, in fact, more consistent with 
our observations in the First Report and Order ``that the terms 
`primary video' as used in sections 614(b)(3) and 615(g)(1) are 
susceptible to different interpretations,'' and that ``[t]he 
legislative history does not definitively resolve the ambiguity 
regarding the intended application of the term `primary video' as used 
in this context;'' see 16 FCC Rcd at 2620-21. As explained below, 
however, we continue to hold that the best construction of the must-
carry provisions, based on the current record before us, is that cable 
operators need not carry more than one programming stream.
    32. We recognize that Sections 614(b)(3) and 615(g)(1) do not 
directly translate to digital technology generally, much less to 
associated multicasting capabilities specifically, and thus do not 
appear to compel a particular result for multicasting must-carry. In 
the First Report and Order, we noted that ``the incorporation of the 
primary video construct into the Act in 1992 was reasonably 
contemporaneous with the gradual change in common understanding of the 
new television service * * * to DTV (digital television) with the 
ability to broadcast high definition television, SDTV (standard 
definition television) with multicasting possibilities, as well as the 
broadcast of non-video services;'' see 16 FCC Rcd at 2621. On 
reconsideration, we agree with the broadcasters that Sections 614(b)(3) 
and 615(g)(1) appear to have been written with analog technology in 
mind, given references to ``line 21,'' ``vertical blanking interval,'' 
and ``subcarriers,'' which are not applicable in digital technology. 
Thus, we conclude that Congress--although aware of digital technology 
when it drafted the must-carry requirement--did not expressly compel a 
particular result with respect to the application of ``primary video'' 
to digital television generally, and multicasting specifically; see 16 
FCC Rcd at 2621-2622, H.R. Rep. No. 104-204(I), 104th Cong., 1st Sess. 
220 (1995) (We reject, however, the argument of Disney and other 
broadcast petitioners that the Commission's definition of ``primary 
video'' for purposes of Section 614(b)(3)(A) of the Act is somehow 
inconsistent with Section 614(b)(3)(B), which provides that ``[t]he 
cable operator shall carry the entirety of the program schedule of any 
television station carried on the cable system unless carriage of 
specific programming is prohibited, and other programming authorized to 
be substituted, under section 76.67 or subpart F of part 76 of title 
47, Code of Federal Regulations (as in effect on January 1, 1991) or 
any successor regulations thereto,'' 47 U.S.C. 534(b)(3)(B). The 
legislative history of Section 614(b)(3)(B) does not indicate any 
connection to the carriage of multiple video programming streams of a 
single broadcaster. According to the House Report accompanying the 1992 
Cable Act, ``[s]ubsection (b)(3)(B) prohibits `cherry picking' of 
programs from television stations by requiring cable systems to carry 
the entirety of the program schedule of television stations they carry. 
* * *'' H.R. Rep. No. 102-628, at 93 (1992). In other words, the point 
of Section 614(b)(3)(B) is ``to prevent[] cable operators from using 
portions of the signals of different broadcasters to create composite 
channels in an effort to increase the audience for cable programming.'' 
Id. at 58. That provision, therefore, requires cable operators to carry 
the entire program lineup that is assembled by a broadcaster on a 
particular channel that is entitled to carriage pursuant to Section 
614(b)(3)(A). We agree with Time Warner Cable that it has nothing to do 
with carriage of multiple channels or program lineups. Section 
614(b)(3)(B) simply requires that when a cable operator carries an 
eligible primary video programming stream, it must carry that stream in 
its entirety and may not provide a composite, cherry-picked programming 
stream. If Section 614(b)(3)(B) meant what broadcasters say it means, 
then Section 614(b)(3)(A) would be a nullity. We also disagree with 
some broadcasters' argument that, as a policy matter, the Commission's 
interpretation of ``primary video'' creates potential ``administrative 
problems.'' Disney, for example, asserts that a digital broadcast 
signal may be configured in a variety of ways throughout the day, 
requiring the broadcaster, at multiple times throughout the day, to 
have to ascertain whether the programming elements being televised are 
independent or

[[Page 14418]]

related, program-related, or otherwise. They surmise that there will 
thus be constant disputes as to whether particular multicast signals 
are program-related (and thus required to be carried) or unrelated 
(therefore not required to be carried). Although a mandatory multicast 
carriage policy could eliminate the need to determine what is or is not 
program related, we do not find that a compelling reason to read the 
term ``primary video'' as requiring cable operators to carry more than 
one programming stream. We will define in a subsequent Report and Order 
in this docket the parameters of what is program-related in the digital 
context, which we believe will assist in alleviating the type of 
dispute that some broadcasters predict.).
    33. Recognizing that the statutory language is ambiguous, however, 
of course does not mean that we are now compelled to interpret the 
statute differently than the Commission previously did. Rather, given 
that ``Congress has not directly addressed the precise question at 
issue''--i.e., ``the statute is silent or ambiguous with respect to the 
specific issue,'' the question for us is to derive a ``reasonable 
interpretation'' of the meaning of ``primary video;'' see Chevron USA 
Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 844 (1984 
).
    34. Given the ambiguity of the language of the statute, we consider 
its legislative history. As the Commission acknowledged in the First 
Report and Order, however, ``[t]he legislative history does not 
definitively resolve the ambiguity regarding the intended application 
of the term `primary video' as used in [the multicasting] context;'' 
see 16 FCC Rcd at 2621. The legislative history indicates that ``the 
must carry provisions were not intended to cover all uses of a 
signal,'' but they do not precisely specify which portion of a signal 
is entitled to carriage and which is not; see 16 FCC Rcd at 2621. In 
other words, ``[t]he term primary video, as found in Sections 614 and 
615 of the Act, suggests that there is some video that is primary and 
some that is not,'' but the legislative history of these sections does 
not suggest precisely which video signal(s) is (are) primary and which 
is (are) not; see 16 FCC Rcd at 2621. The legislative history of 
subsequently enacted Section 336, which relates not to cable carriage 
obligations but mostly to digital television implementation, likewise 
does not reveal any clear intention of Congress with respect to the 
multicasting must-carry issue.
    35. We next focus on the underlying purposes of the statutory 
provisions, and evaluate whether requiring cable operators to carry 
more than one programming stream of a multicasting station would 
fulfill those purposes. In Turner II, a majority of the Supreme Court 
recognized as ``important'' two ``interrelated interests'' that 
Congress sought to further through the must-carry provisions: (1) 
preserving the benefits of free, over-the-air local broadcast 
television for viewers, and (2) promoting ``the widespread 
dissemination of information from a multiplicity of sources.'' As 
explained below, we cannot find on the current record that a 
multicasting carriage requirement is necessary to further either of 
these goals. Based on the current record, we find a reasonable 
interpretation of the Act is to require cable operators to carry one 
programming stream.
    36. Significantly, there is nothing in the current record to 
convince us that mandatory carriage of all multiple streams of a 
broadcaster's transmission is necessary to achieve either of these 
goals. In the analog context, broadcasters could invoke explicit 
Congressional findings that the benefits of free, over-the-air 
television for viewers would be jeopardized without must carry. 
Congress, however, has made no such findings regarding multicast must 
carry and broadcasters have not made a convincing argument that over-
the-air broadcasting would be jeopardized in the absence of mandatory 
multicasting. Unlike in the analog carriage debate, here broadcasters 
fail to substantiate their claim that mandatory multicasting is 
essential to ensure station carriage or survival. Broadcasters argue 
that carriage of multicast streams is essential to help them develop 
and support additional programming streams, but they have not made the 
case on the current record that these additional programming streams 
are essential to preserve the benefits of a free, over-the-air 
television system for viewers. Broadcasters will continue to be 
afforded must carry for their main video programming stream, which can 
be in standard definition or high definition, and any additional 
material that is considered program-related. Broadcasters can also rely 
on the marketplace working without mandatory carriage in order to 
persuade cable systems to carry additional streams of programming. 
There is evidence from the record, as well as news accounts, that cable 
operators are voluntarily carrying the multiple streams of programming 
of some broadcast stations, including public television stations, that 
are currently multicasting. Indeed, the Association of Public 
Television Stations and the NCTA recently announced an agreement that 
involves cable operators carrying up to four programming streams of at 
least one public TV station in a DMA during the transition from analog 
to digital technology, and every public TV station in a DMA after the 
transition, subject to certain nonduplication contingencies. Under 
these circumstances, the interests of over-the-air television viewers 
appear to remain protected.
    37. Likewise, based on the current record, there is little to 
suggest that requiring cable operators to carry more than one 
programming stream of a digital television station would contribute to 
promoting ``the widespread dissemination of information from a 
multiplicity of sources.'' Under a single-channel must-carry 
requirement, broadcasters will have a presence on cable systems. Adding 
additional channels of the same broadcaster would not enhance source 
diversity. Furthermore, programming shifted from a broadcaster's main 
channel to the same broadcaster's multicast channel would not promote 
diversity of information sources. Indeed, mandatory multicast carriage 
would arguably diminish the ability of other, independent voices to be 
carried on the cable system.
    38. Additionally, no persuasive case has been made on the current 
record that a multicasting carriage requirement will facilitate the 
digital transition. High quality programming in a digital format is a 
major factor that will drive this transition. Some broadcasters explain 
that they are reluctant to invest in additional programming streams 
absent an assurance of carriage. In response, NCTA states that cable 
operators ``want to carry HDTV and other compelling digital broadcast 
content that is desired by their customers,'' and that they want to 
carry local programming to distinguish their offerings from satellite. 
NCTA also cautions that giving ``shelf space'' to broadcasters might 
lead to carriage of ``infomercials, home shopping, or other low value 
content.'' NCTA therefore suggests that a guaranteed carriage 
requirement would diminish incentives for broadcast stations to produce 
high quality programming, which would ``reduce incentive for consumers 
to switch to digital TV.''
    39. Given the lack of a meaningful showing on the current record 
that mandatory carriage of more than one programming stream is 
necessary to

[[Page 14419]]

achieve any of the goals discussed above, we determine not to impose 
such a requirement. We thus find it a reasonable construction of the 
must-carry provisions of the Act, on the record before us and in light 
of the Supreme Court's precedent, not to require cable operators to 
designate capacity or ``shelf space'' for multicasting programming 
streams at the expense of other competing interests.
    40. We also note that cable operators contend that requiring them 
to carry more than one programming stream would constitute a taking 
under the Fifth Amendment. Given that we decline to impose such a 
requirement, we do not reach this issue.
    41. Nothing in this Order diminishes the Commission's commitment to 
completing action on the multiple open proceedings on localism and on 
the public interest obligations of digital broadcasters. We believe the 
public interest and localism proceedings are essential components of 
the Commission's efforts to complete the transition to digital 
television. The Commission intends to move forward on these decisions 
within the next few months and complete action in these dockets by the 
end of the year.
    42. Accordingly, we grant in part and deny in part the petitions 
for reconsideration on this issue and affirm our decision in the First 
Report and Order. Therefore, if a digital broadcaster elects to divide 
its digital spectrum into several separate, independent and unrelated 
programming streams, only one of these streams is considered primary 
and entitled to mandatory carriage. The broadcaster must elect which 
programming stream is its primary video, and the cable operator is 
required to provide carriage of that stream. Cable operators can choose 
to carry additional video programming streams through retransmission 
consent agreements. As reflected in the statute, cable operators are 
also required to carry ``program-related material,'' to the extent 
technically feasible; see 47 U.S.C. 614(b)(3)(A). What constitutes 
program-related material in the new digital context is defined 
separately from primary video and will be addressed fully in a 
subsequent Report and Order in this docket.

IV. Procedural Matters

    43. Paperwork Reduction Act of 1995 Analysis. This document does 
not contain new or modified information collection(s) subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, 
therefore, it does not contain any new or modified ``information 
collection burden for small business concerns with fewer than 25 
employees,'' pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    44. Final Regulatory Flexibility Certification. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice-and-comment rule making 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities;'' see 5 U.S.C. 601-612, 5 U.S.C. 605(b). The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction;'' see 5 U.S.C. 601(6). In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act; see 5 U.S.C. 601(3), 5 U.S.C. 
601(3). 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 Small Business 
Administration (SBA); see 15 U.S.C. 632.
    45. In this Second Report and Order and First Order on 
Reconsideration, the Commission takes action on two significant cable 
carriage issues, the resolution of which are essential to the 
Commission's ongoing efforts to complete the transition from analog to 
digital television. The issues resolved in this Order concern (1) 
whether cable operators are required under the Communications Act to 
carry both the digital and analog signals of a station (also referred 
to as ``dual carriage'') during the transition when television stations 
are still broadcasting analog signals; and (2) whether the Commission, 
in the First Report and Order in this proceeding, properly construed 
the term ``primary video,'' which appears in Sections 614(b)(3) (for 
commercial broadcasters) and 615(g)(1) (for noncommercial 
broadcasters), as requiring cable operators to carry only a single 
video programming stream (and not multiple streams of several separate, 
independent, and unrelated programming streams). Further, in the First 
Report and Order, the Commission also determined that the statute 
neither mandates nor precludes the mandatory carriage of both a 
television station's digital and analog signals. The Commission 
tentatively concluded that, based on the available record evidence, a 
dual carriage requirement would likely violate cable operators' First 
Amendment rights. In order to evaluate the issue more fully, the 
Commission adopted a Further Notice of Proposed Rulemaking. In this 
Second Report and Order and First Order on Reconsideration, the 
Commission affirms its tentative decision in the First Report and Order 
not to impose a dual carriage requirement on cable operators, and 
declines, based on the record evidence, to require cable operators to 
carry any more than one programming stream of a digital television 
station that multicasts.
    46. Although the Commission did not receive any comments directed 
at the Initial Regulatory Flexibility Analysis, some of the comments 
filed in response to the Further Notice of Proposed Rulemaking 
addressed issues of concern to small entities. The American Cable 
Association, for example, filed reply comments contending that dual 
carriage and mandatory multicast carriage would be overly burdensome 
for small cable operators because of the more limited channel capacity 
of smaller cable systems and that the costs of implementing such 
requirements, if imposed, ``present an economic impossibility'' for 
smaller systems. The Commission considered these concerns, and decided 
not to impose additional requirements. While small broadcast television 
stations could benefit from a decision to impose mandatory dual 
carriage and mandatory multicast carriage, consideration of the 
economic impact of our decision is only relevant to cable operators, 
because the obligation to comply with an expanded must carry 
requirement would attach (in the context of this proceeding) only to 
cable operators (i.e., a decision not to impose expanded must carry 
requirements does not, in any way, result in any regulatory obligation 
on the part of television broadcast stations or any other non-cable 
entities. Our resolution of the specific issues in the Second Report 
and Order and First Order on Reconsideration does not result in any 
rule changes affecting small entities.
    47. The Commission, therefore, certifies that the requirement of 
this Second Report and Order and First Order on Reconsideration will 
not have a significant economic impact on a substantial number of small 
entities. Rather, it appears that our decisions here are likely to 
foster competition in the video marketplace and ensure the ability of 
small cable systems, in particular, to maximize the use of its 
available capacity to deliver diverse digital programming and to offer 
other

[[Page 14420]]

services, such as high-speed Internet service, to customers.
    48. The Commission will send a copy of the Second Report and Order 
and First Order on Reconsideration, including a copy of this Final 
Regulatory Flexibility Certification, in a report to Congress pursuant 
to the Congressional Review Act; see 5 U.S.C. 801(a)(1)(A). In 
addition, the Second Report and Order and First Order on 
Reconsideration will be sent to the Chief Counsel for Advocacy of the 
SBA, and will be published in the Federal Register; see 5 U.S.C. 
605(b).

V. Ordering Clauses

    49. Accordingly, it is ordered, pursuant to Section 405(a) of the 
Communications Act of 1934, as amended, 47 U.S.C. 405(a), and Sec.  
1.429 of the Commission's rules, 47 CFR 1.429, that the petitions for 
reconsideration filed by the parties are granted in part and denied in 
part as indicated above, and that this Second Report and Order and 
First Order on Reconsideration is adopted.
    50. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Report and Order and First Order on 
Reconsideration, including the Final Regulatory Flexibility 
Certification, to Congress, pursuant to the Congressional Review Act, 
and also to the Chief Counsel for Advocacy of the Small Business 
Administration, in accordance with the Regulatory Flexibility Act.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-5611 Filed 3-21-05; 8:45 am]
BILLING CODE 6712-01-P