Implementation of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 To Amend Section 338 of the Communications Act, 24350-24358 [05-9290]
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Federal Register / Vol. 70, No. 88 / Monday, May 9, 2005 / Proposed Rules
III. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This proposed action merely
proposes to approve state law as
meeting Federal requirements and
imposes no additional requirements
beyond those imposed by state law.
Accordingly, the Administrator certifies
that this proposed rule will not have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Because this rule
proposes to approve pre-existing
requirements under state law and does
not impose any additional enforceable
duty beyond that required by state law,
it does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Public Law 104–4).
This proposed rule also does not have
tribal implications because it will not
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This
action also does not have federalism
implications because it does not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
proposes to approve a state rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the Clean
Air Act. This proposed rule also is not
subject to Executive Order 13045
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, April 23, 1997),
because it is not economically
significant.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. In this context, in the
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absence of a prior existing requirement
for the state to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the Clean Air Act. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This proposed
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
Authority: 42 U.S.C. 7401 et seq.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: April 29, 2005.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 05–9216 Filed 5–6–05; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 05–181; FCC 05–92]
Implementation of Section 210 of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004 To Amend
Section 338 of the Communications
Act
Federal Communications
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: In this document, the
Commission proposes rules to
implement section 210 of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004
(‘‘SHVERA’’). The Satellite Home
Viewer Extension and Reauthorization
Act of 2004 (SHVERA) was enacted on
December 8, 2004 as title IX of the
‘‘Consolidated Appropriations Act,
2005.’’ This proceeding to implement
section 210 of SHVERA is one of a
number of Commission proceedings that
will be required to implement SHVERA.
DATES: Comments for this proceeding
are due on or before June 8, 2005; reply
comments are due on or before June 23,
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2005. Written comments on the
proposed information collection
requirements contained in this
document must be submitted by the
public, the Office of Management and
Budget (OMB), and other interested
parties on or before July 8, 2005.
ADDRESSES: You may submit comments,
identified by MB Docket No. 05–181, by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
• People with Disabilities: Contact
the FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Eloise Gore,
Eloise.Gore@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 NPRM, 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. If
you would like to obtain or view a copy
of this revised information collection,
OMB Control Number 3060–0980, you
may do so by visiting the FCC PRA Web
page at: https://www.fcc.gov/omd/pra.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM), FCC 05–
92, adopted on April 29, 2005, and
released on May 2, 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
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Federal Register / Vol. 70, No. 88 / Monday, May 9, 2005 / Proposed Rules
(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 document contains proposed
information collection requirements.
The Commission, as part of its
continuing effort to reduce paperwork
burdens, invites the general public and
the Office of Management and Budget
(OMB) to comment on the information
collection requirements contained in
this document, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13. Public and agency
comments are due July 8, 2005.
Comments should address: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the Commission,
including whether the information shall
have practical utility; (b) the accuracy of
the Commission’s burden estimates; (c)
ways to enhance the quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on the
respondents, including the use of
automated collection techniques or
other forms of information technology.
In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4), we seek specific comment on
how we might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’
OMB Control Number: 3060–0980.
Title: SHVERA Rules; Implementation
of Section 210 of the Satellite Home
Viewer Extension and Reauthorization
Act of 2004 (Broadcast Signal Carriage
Issues, Retransmission Consent Issues).
Form No.: Not applicable.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other forprofit entities.
Estimated Number of Respondents:
7,179.
Estimated Time Per Response: 1–5
hours.
Frequency of Response: On occasion
reporting requirement; every three years
reporting requirement.
Estimated Total Annual Burden:
10,196 hours.
Estimated Total Annual Costs:
$30,000.
Privacy Act Impact Assessment: No
impact(s).
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Needs and Uses: On April 29, 2005,
the Commission adopted a Notice of
Proposed Rule Making (NPRM), In the
Matter of the Implementation of Section
210 of the Satellite Home Viewer
Extension and Reauthorization Act of
2004 to Amend Section 338 of the
Communications Act, MB Docket No.
05–181, FCC 05–92. The NPRM
proposed amendments to 47 CFR 76.66
to implement section 210 of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004
(‘‘SHVERA’’). Section 210 of the
SHVERA amends section 338(a) of the
Communications Act of 1934, as
amended, (‘‘Communications Act’’ or
‘‘Act’’). Section 338 governs the carriage
of local television broadcast stations by
satellite carriers. In general, the
SHVERA amends this section to require
satellite carriers to carry both the analog
and digital signals of television
broadcast stations in local markets in
noncontiguous States (including Alaska
and Hawaii), and to provide these
signals to substantially all of their
subscribers in each station’s local
market by December 8, 2005 for analog
signals and by June 8, 2007 for digital
signals.
On March 28, 2005, the Commission
adopted an Order, FCC 05–81,
Implementation of the Satellite Home
Viewer Extension and Reauthorization
Act of 2004 (‘‘SHVERA’’), Procedural
Rules, to implement procedural rules as
required by the SHVERA. The SHVERA
is the third statute that addresses
satellite carriage of television broadcast
stations. The 2004 SHVERA gives
satellite carriers the additional option to
carry Commission-determined
‘‘significantly viewed’’ out-of-market
signals to subscribers. The SHVERA
requires the Commission to undertake
several proceedings to implement new
rules, revise existing rules, and conduct
studies. The Procedural Rules Order to
implement sections 202, 205, and 209 of
the SHVERA is one of a number of
Commission proceedings that will be
required to implement the SHVERA.
Appropriations Act, 2005.’’ This
proceeding to implement section 210 of
SHVERA is one of a number of
Commission proceedings that will be
required to implement SHVERA. The
other proceedings will be undertaken
and largely completely in 2005; see
section 202 of the SHVERA (entitled
‘‘Significantly Viewed Signals Permitted
To Be Carried’’), SHVERA NPRM, MB
Docket No. 05–49, FCC 05–24, 2005 WL
289026 (rel. Feb. 7, 2005); sections 202,
204, 205, 207, 208, 209 and 210 of the
SHVERA; see also Public Notice,
‘‘Media Bureau Seeks Comment for
Inquiry Required by the SHVERA on
Rules Affecting Competition in the
Television Marketplace,’’ MB Docket
No. 05–28, DA 05–169 (rel. Jan. 25,
2005) (Public Notice regarding Inquiry
required by section 208 of the SHVERA
concerning the impact of certain rules
and statutory provisions on competition
in the television marketplace);
Implementation of Section 207 of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, Reciprocal
Bargaining Obligations, MB Docket No.
05–89, FCC 05–49 (rel. Mar. 7. 2005);
and Procedural Rules, FCC 05–81 (rel.
March 30, 2005) (Order implementing
rule revisions required by sections 202,
205, and 209). Section 210 of the
SHVERA amends section 338(a) of the
Communications Act of 1934, as
amended, (‘‘Communications Act’’ or
‘‘Act’’). Section 338 governs the carriage
of local television broadcast stations by
satellite carriers; see 47 U.S.C. 338. In
general, the SHVERA amends this
section to require satellite carriers to
carry both the analog and digital signals
of television broadcast stations in local
markets in noncontiguous states,
including Alaska and Hawaii, and to
provide these signals to substantially all
of their subscribers in each station’s
local market by December 8, 2005 for
analog signals and by June 8, 2007 for
digital signals; see 47 U.S.C. 338(a)(4)
(as amended by section 210 of the
SHVERA).
Summary of the Notice of Proposed
Rulemaking
A. Satellite Home Viewer Act (SHVA)
and Satellite Home Viewer
Improvement Act of 1999 (SHVIA)
2. In 1988, Congress passed the
Satellite Home Viewer Act (‘‘SHVA’’),
which established a statutory copyright
license for satellite carriers to offer
subscribers access to broadcast
programming via satellite when they are
unable to receive the signal of a
broadcast station over the air (that is, an
‘‘unserved’’ household). The Satellite
Home Viewer Act of 1988, Pub. L. 100–
667, 102 Stat. 3935, Title II (1988)
I. Introduction
1. In this Notice of Proposed
Rulemaking, NPRM, we propose rules to
implement section 210 of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004
(‘‘SHVERA’’). The Satellite Home
Viewer Extension and Reauthorization
Act of 2004 (SHVERA), Pub. L. 108–447,
section 210, 118 Stat 2809 (2004).
SHVERA was enacted on December 8,
2004, as title IX of the ‘‘Consolidated
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II. Background
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(codified at 17 U.S.C. 111, 119). SHVA
was enacted on November 16, 1988, as
an amendment to the copyright laws.
SHVA gave satellite carriers a statutory
license to offer signals to ‘‘unserved’’
households. 17 U.S.C. 119(a). In 1999,
Congress enacted the Satellite Home
Viewer Improvement Act (‘‘SHVIA’’),
which expanded on the 1988 SHVA by
amending both the 1988 copyright laws,
and the Communications Act to permit
satellite carriers to retransmit local
broadcast television signals directly to
subscribers in the station’s local market
(‘‘local-into-local’’ service) without
requiring that they be in ‘‘unserved’’
households; see 17 U.S.C. 119 and 122,
47 U.S.C. 325, 338 and 339. The
Satellite Home Viewer Improvement Act
of 1999, Pub. L. 106–113, 113 Stat. 1501
(1999) (codified in scattered sections of
17 and 47 U.S.C.). SHVIA was enacted
on November 29, 1999, as Title I of the
Intellectual Property and
Communications Omnibus Reform Act
of 1999 (‘‘IPACORA’’) (relating to
copyright licensing and carriage of
broadcast signals by satellite carriers).
The SHVIA created the copyright
license to provide local signals to
subscribers regardless of whether they
were ‘‘unserved;’’ see 17 U.S.C. 122.
3. A satellite carrier provides ‘‘localinto-local’’ service when it retransmits a
local television station’s signal back into
the local market of the television station
for reception by subscribers. If a carrier
carries one or more stations in the
market pursuant to the statutory
copyright license, it is required to carry
all of the other local stations in the local
market, upon the station’s request (that
is, the ‘‘carry-one, carry-all’’
requirement); see 47 U.S.C. 338(a)(1).
Generally, a television station’s ‘‘local
market’’ is the designated market area
(‘‘DMA’’) in which it is located. Section
340(i)(1) (as amended by section 202 of
the SHVERA), defines the term ‘‘local
market’’ by using the definition in 17
U.S.C. 122(j)(2): ‘‘The term ‘local
market,’ in the case of both commercial
and noncommercial television broadcast
stations, means the designated market
area in which a station is located, and—
(i) in the case of a commercial television
broadcast station, all commercial
television broadcast stations licensed to
a community within the same
designated market area are within the
same local market; and (ii) in the case
of a noncommercial educational
television broadcast station, the market
includes any station that is licensed to
a community within the same
designated market area as the
noncommercial educational television
broadcast station.’’ DMAs describe each
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television market in terms of a unique
geographic area, and are established by
Nielsen Media Research based on
measured viewing patterns; see 17
U.S.C. 122(j)(2)(A)–(C). There are 210
DMAs that encompass all counties in
the 50 United States, except for certain
areas in Alaska. Alaska has three DMAs
situated around major population
centers, but most of the State, which is
sparsely populated, is not included in
DMAs. A satellite carrier choosing to
provide such local-into-local service is
generally obligated to carry any
qualified local station in a particular
DMA that has made a timely election for
mandatory carriage, unless the station’s
programming is duplicative of the
programming of another station carried
by the carrier in the DMA, or the station
does not provide a good quality signal
to the carrier’s local receive facility; see
47 U.S.C. 338(a)(1), (b)(1) and (c)(1).
B. Satellite Home Viewer Extension and
Reauthorization Act of 2004 (SHVERA)
4. In December 2004, Congress passed
and the President signed the Satellite
Home Viewer Extension and
Reauthorization Act of 2004. SHVERA
again amends the 1988 copyright laws
and the Communications Act to further
aid the competitiveness of satellite
carriers and expand program offerings
for satellite subscribers; see 47 U.S.C.
325, 338, 339 and 340. Section 102 of
SHVERA creates a new 17 U.S.C.
119(a)(3) to provide satellite carriers
with a statutory copyright license to
offer ‘‘significantly viewed’’ signals as
part of their local service to subscribers.
This rulemaking is required to
implement provisions in section 210 of
the SHVERA concerning satellite
carriage of local stations in the
noncontiguous states, including Alaska
and Hawaii; see 47 U.S.C. 338(a)(4).
III. Discussion
5. Section 210 of the SHVERA amends
section 338(a) of the Communications
Act to require satellite carriers with
more than five million subscribers in
the United States to carry the analog and
digital signals of each television
broadcast station licensed in local
markets ‘‘within a State that is not part
of the contiguous United States.’’
Analog signals are required to be carried
by December 8, 2005, and digital signals
by June 8, 2007. A carrier is required to
provide these signals to substantially all
of its subscribers in each station’s local
market. In addition, a satellite carrier is
required to make available the stations
that it carries in at least one local market
to substantially all of its subscribers
located outside of local markets and in
the same State. The SHVERA also
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mandates that satellite carriers may not
charge subscribers for these local signals
more than they charge subscribers in
other States to receive local market
television stations. Although most of the
requirements imposed by the new
section 338(a)(4) are self-effectuating,
the SHVERA requires the Commission
to promulgate regulations concerning
the timing of carriage elections by
stations in local markets in the
noncontiguous states; see 47 U.S.C.
338(a)(4) (as amended by the SHVERA),
which provides: (4) CARRIAGE OF
SIGNALS OF LOCAL STATIONS IN
CERTAIN MARKETS–A satellite carrier
that offers multichannel video
programming distribution service in the
United States to more than 5,000,000
subscribers shall (A) within 1 year after
the date of the enactment of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004, retransmit
the signals originating as analog signals
of each television broadcast station
located in any local market within a
State that is not part of the contiguous
United States, and (B) within 30 months
after such date of enactment retransmit
the signals originating as digital signals
of each such station. The
retransmissions of such stations shall be
made available to substantially all of the
satellite carrier’s subscribers in each
station’s local market, and the
retransmissions of the stations in at least
one market in the State shall be made
available to substantially all of the
satellite carrier’s subscribers in areas of
the State that are not within a
designated market area. The cost to
subscribers of such retransmissions
shall not exceed the cost of
retransmissions of local television
stations in other States. Within 1 year
after the date of enactment of that Act,
the Commission shall promulgate
regulations concerning elections by
television stations in such State between
mandatory carriage pursuant to this
section and retransmission consent
pursuant to section 325(b), which shall
take into account the schedule on which
local television stations are made
available to viewers in such State. As
required by the SHVERA, we open this
rulemaking proceeding and seek
comments on implementation of the
SHVERA’s amendments to section
338(a) of the Act, on rule proposals in
this NPRM, and tentative conclusions
regarding these rules. The proposed
rules are in the Appendix to this NPRM.
These amendments apply only to
satellite service in the noncontiguous
states. The existing signal carriage
provisions in section 76.66 also
continue to apply to satellite service in
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the noncontiguous states, where
relevant and not inconsistent with the
rules proposed in this proceeding; see
47 CFR 76.66.
A. Satellite Carriers With More Than
5,000,000 Subscribers
6. The SHVERA adds subsection
338(a)(4) to the Act, which applies to a
‘‘satellite carrier that offers
multichannel video programming
distribution service in the United States
to more than 5,000,000 subscribers;’’ see
47 U.S.C. 338(a)(4). We include this
limitation in the proposed new section
76.66(b)(2). This provision applies to
satellite carriers that have more than
five million subscribers in 2005 and, in
the future, to any carriers with more
than five million subscribers. Currently,
DirecTV and EchoStar qualify under
this definition. We seek comments
regarding the proposed rule.
B. Noncontiguous States
7. Section 210 of SHVERA applies to
‘‘a State that is not part of the
contiguous United States;’’ see 47 U.S.C.
338(a)(4). In the Communications Act,
the definition of ‘‘State’’ includes ‘‘the
Territories and possessions;’’ see 47
U.S.C. 153(40). We seek comment on
whether ‘‘State’’ as used in the SHVERA
includes the noncontiguous territories
and possessions of the United States,
including but not limited to Puerto Rico
and Guam and whether considerations
such as a satellite provider’s regulatory
authorizations and/or actual service area
are relevant to interpreting the
obligation under section 338(a)(4) to
serve ‘‘noncontiguous states.’’ We note
that territories in the Pacific, such as
Guam, are in a different International
Telecommunication Union (‘‘ITU’’)
region. The contiguous United States,
Alaska, Hawaii, Puerto Rico and the
U.S. Virgin Islands are located in ITU
Region 2 and have orbital assignments
in the Region 2 BSS Plan. Guam, the
Northern Marianas, Wake Island and
Palmyra Island are located in ITU
Region 3 and have orbital assignments
in the Region 3 BSS plan at 122.0° E.L.,
121.80° E.L., 140.0° E.L. and 170.0° E.L.
respectively. We seek comment on the
impact of regulatory differences (e.g.,
use of different frequency bands)
between ITU regions in providing
service to these locations. Spot beam
technology may allow coverage of
widely spaced areas if visible from the
satellite location. Many areas are not
visible to all satellites. For example,
Guam is below the horizon for United
States allocations east of 148° W.L.
Previously the Commission recognized
that contiguous United States
(‘‘CONUS’’) antenna beams modified to
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include Puerto Rico and the U.S. Virgin
Islands could divert power from other
regions and potentially adversely affect
the services of other countries. We seek
comment on satellite carriers’ current
capability to serve these areas using
current or planned technology.
C. Analog and Digital Signals
8. The SHVERA requirements for
satellite carriage to the noncontiguous
states differ significantly from the
existing satellite broadcast carriage
requirements, both in scope and timing.
Currently, under the Communications
Act and Commission rules
implementing the Act, satellite carriers
choose whether to rely on the statutory
copyright license in section 122 of title
17 to offer ‘‘local-into-local service,’’
which in turn triggers the carry-one,
carry-all obligation; see 47 U.S.C.
338(a)(1) and 47 CFR 76.66(b),
Implementation of the Satellite Home
Viewer Improvement Act of 1999, 16
FCC Rcd 1918 (2000) 16 FCC Rcd 16544
(2001) (‘‘DBS Must Carry
Reconsideration Order’’). The U.S. Court
of Appeals for the Fourth Circuit upheld
the constitutional validity of SHVIA and
the reasonableness of the Commission’s
rules promulgated thereunder; see
Satellite Broadcasting and
Communications Ass’n v. FCC, 275 F.3d
337 (2001), cert. denied, 536 U.S. 922
(2002). The Communications Act,
moreover, prohibits a multichannel
video programming distributor from
retransmitting the signal of a broadcast
station unless it has ‘‘the express
authority’’ of the station. 47 U.S.C.
325(b)(1)(A), 17 U.S.C. 122(a) (as
amended by section 1002 of the SHVIA)
and 47 U.S.C. 338(a)(1) (as amended by
section 1008 of the SHVIA). Satellite
carriers are not currently required to
offer local-into-local service in all
markets. The question of satellite
carriage obligations concerning a
station’s digital signal is currently
pending before the Commission.
9. The new SHVERA provision for
noncontiguous states supersedes carryone, carry-all and the pending digital
carriage rulemaking proceeding by
mandating dual analog and digital
carriage in the noncontiguous states. A
satellite carrier with more than five
million subscribers is required by the
SHVERA to retransmit the analog
signals of each television station in local
markets in the noncontiguous states to
subscribers in those local markets by
December 8, 2005 (one year after
enactment of the SHVERA). The
SHVERA expands this requirement to
include the digital signals of each
station no later than June 8, 2007 (30
months after enactment of SHVERA). If
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24353
any or all of the local stations in the
noncontiguous states are still
broadcasting analog signals as well as
digital signals, as of June 8, 2007, the
SHVERA requirement mandates dual
must carry. The Communciations Act
provides for termination of analog signal
licenses as of December 31, 2006, unless
local stations request an extension and
demonstrate that one or more criteria
exist in their markets; see 47 U.S.C.
309(j)(14) (criteria include the so-called
‘‘85% test’’). Section 210 of the
SHVERA, which adds the carriage
obligations for stations in
noncontiguous states (section 338(a)(4)),
requires carriage of ‘‘signals originating
as analog signals’’ and ‘‘signals
originating as digital signals’’ with no
mention of a term such as ‘‘primary
video,’’ the term used in the cable
mandatory carriage provisions. 47
U.S.C. 534(b)(3) and 535(g). The
Commission recently concluded that the
statutory term relating to cable
mandatory carriage, ‘‘primary video,’’
was ambiguous with respect to whether
it requires cable operators to carry
broadcasters’ multicast signals. Faced
with an ambiguous statute, the
Commission did not require mandatory
carriage of multicast signals by cable
systems. The SHVERA provision before
us contains no such ambiguity.
Moreover, we note that section 210 uses
the plural term ‘‘signals,’’ requiring
satellite carriers to retransmit the signals
originating as digital signals of each
such station; see 47 U.S.C. 338(a)(4). In
sum, this SHVERA amendment to
section 338 does not contain any
limitation on the nature of the broadcast
signal that satellite operators must carry
in the non-contiguous states. We
believe, therefore, that the amendment
requires that satellite carriers carry all
multicast signals of each station in
noncontiguous states and carry the high
definition digital signals of stations in
noncontiguous states in high definition
format. We note that satellite carriage of
high definition local signals is also
under review in the ongoing broadcast
carriage rulemaking docket in the
context of applying the statutory
prohibition on material degradation. We
seek comment on these interpretations,
and any alternative construction of the
SHVERA as the statute relates to the
carriage of multicast and/or high
definition signals; see MB Docket Nos.
98–120 and 00–96, WHDT v. Echostar,
18 FCC Rcd 396 (MB 2003) (‘‘WHDT
Order’’).
D. Carriage Election by Stations
10. Section 210 of the SHVERA
expressly requires only that the
Commission promulgate regulations
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concerning the timing of the carriage
elections related to the new carriage
provisions in the noncontiguous states.
Section 210 of the SHVERA also refers
to the ‘‘cost to subscribers of such
transmissions’’ but does not require
rules for implementation. The
Commission does not regulate rates,
costs or prices for satellite service to
subscribers. In this proceeding we
propose regulations to implement the
timing required by the carriage
requirements in the noncontiguous
states, and we will otherwise apply the
rules pertaining to satellite carriage as
they were adopted to implement section
338 pursuant to the SHVIA; see 47
U.S.C. 338(a)(1), (b)(1), and (c), 47 CFR
76.66(g) and (h). Therefore, carriage is
mandated in the noncontiguous states
for the above dates in 2005 and 2007
when requested by a television station;
see proposed rule section 76.66(b)(2).
The carriage procedures for stations in
the noncontiguous states shall follow
the existing requirements, except with
respect to the carriage election process,
as proposed here; see proposed rule
section 76.66(c)(6). Non-commercial
television stations do not elect carriage
because they cannot elect
retransmission consent; see 47 U.S.C.
325(b)(2)(A). They are entitled to
mandatory carriage; see 47 U.S.C. 338,
proposed rule section 76.66(c)(6). They
are entitled to mandatory carriage; see
47 U.S.C. 338. We invite comment on
these interpretations and proposals.
11. The analog signal carriage
requirement mandated by the SHVERA
for satellite carriers serving
noncontiguous states commences
several weeks before the carriage cycle
that applies to satellite carriers and
broadcast stations in the contiguous
states, which commences January 1,
2006, and continues until December 31,
2008; see 47 CFR 76.66(c). The carriage
election process enables stations to
choose between carriage pursuant to
retransmission consent or mandatory
carriage. Retransmission consent is
based on an agreement between a
broadcast station and satellite carrier,
and includes a station’s authorization
and terms for allowing its broadcast
signal to be carried; see 47 U.S.C.
325(b). Broadcast stations and satellite
carriers are required to negotiate
retransmission consent agreements in
good faith; see 47 U.S.C. 338(b)(3)(c). If
a station elects must-carry status, it is,
in general, entitled to insist without
other terms that the satellite carrier
carry its signal in its local market; see
47 U.S.C. 338(a), 47 CFR 76.66(c).
12. To implement the carriage
election timing requirements in section
210 of the SHVERA, we propose to track
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the existing regulations as closely as
possible so that carriage elections in the
noncontiguous states will be
synchronized with carriage elections in
the contiguous states quickly and
smoothly. This synchronization is
intended to make the process simple
and certain for both the local stations
and the satellite carriers. The first
satellite carriage cycle (pursuant to the
SHVIA) will end on December 31, 2005.
The carriage election deadline for the
second cycle is October 1, 2005, for
carriage beginning January 1, 2006; see
47 CFR 76.66(c)(4). Because the analog
carriage requirement in the
noncontiguous states is effective only 24
days earlier, December 8, 2005, we
propose to keep the same election
deadline of October 1, 2005. Thus,
television broadcast stations in a local
market in the noncontiguous states
would be required to make a
retransmission consent-mandatory
carriage (must carry) election by October
1, 2005, which is the same deadline as
for local stations in local-into-local
markets in the contiguous states; see
proposed section 76.66(c)(6). Carriage
pursuant to a mandatory carriage
election in the contiguous states will
begin on January 1, 2006, and carriage
under our proposed rules for
noncontiguous states would begin by
December 8, 2005; see 47 CFR
76.66(c)(2).
13. With respect to carriage of the
digital signals of stations in a
noncontiguous state, we propose that
the retransmission consent-must carry
election by a television station in a local
market in the noncontiguous states
should be a two-step process with one
election that applies to the analog signal
carriage, which commences December 8,
2005, and a second carriage election that
would govern carriage of the digital
signal; see proposed rule section
76.66(c)(6). Carriage of signals
originating as digital must commence by
June, 8, 2007, but may begin pursuant
to retransmission consent at any time.
The deadline for the second carriage
election, for digital carriage, would be
April 1, 2007, two months before
carriage must commence. Alternatively,
the station’s election by October 1, 2005,
for its analog signal, could also apply to
its digital signal, for which mandatory
carriage will commence by June 8, 2007.
We seek comment on our proposed twostep approach and on the alternative of
a single election. Two separate elections
would be consistent with the
Commission’s Cable Must Carry
decision in 2001 which permits stations
broadcasting both analog and digital
signals to elect must carry for their
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analog signal and retransmission
consent for their digital signal. We
believe that, regardless of whether the
carriage election is two-step or one-step,
stations in the noncontiguous states
should be permitted to elect must carry
for their analog signals and negotiate for
carriage of the digital signals via
retransmission consent before the
mandatory digital signal carriage takes
effect. That is, until the digital carriage
rights for local stations in the
noncontiguous states take effect as of
June 8, 2007, stations should be
permitted to separately negotiate for
voluntary carriage of their digital signals
even if they elect mandatory carriage for
their analog signals; see proposed
section 76.66(c)(6). We seek comment
on these proposals.
14. After the initial carriage cycle in
the noncontiguous states, the election
cycle provided in section 76.66(c) will
apply in the future; see proposed
section 76.66(c)(6). For example, the
next election after the upcoming 2005
election is required by October 1, 2008,
for carriage beginning January 1, 2009;
see 47 CFR 76.66(c)(2) and (4). The
election made by a station in 2008
would apply uniformly to both its
analog and digital signals, if both signals
are continuing to be broadcast.
15. A new television station in a
noncontiguous state will have a right to
mandatory carriage for its analog signal
if it begins service after December 8,
2005, and for its digital signal if it
begins service after June 8, 2007. New
stations should follow section
76.66(d)(3) of the Commission’s rules to
notify the satellite carrier and elect
carriage; see 47 CFR 76.66(d)(3). We
seek comments on our proposed rules
governing the carriage election process.
E. Availability of Signals
16. The SHVERA provides that in the
noncontiguous states, satellite
retransmissions of local stations ‘‘shall
be made available to substantially all of
the satellite carrier’s subscribers in each
station’s local market;’’ see 47 U.S.C.
338(a)(4). The SHVERA does not define
what is meant by ‘‘substantially all’’
subscribers. This wording is consistent
with the physical limitations of some
satellite technology that may not be able
to reach all parts of a state or a DMA,
particularly where a spot beam is used
to provide local stations. We believe
that this provision recognizes the
existing physical limitations on satellite
service particularly in these
noncontiguous states. With respect to
DBS service to Alaska, for example, the
Commission has stated that although
reliable service usually requires a
minimum elevation angle of ten degrees
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or more, service to Alaska is often
offered at elevation angles as low as five
degrees. The Commission defined
elevation angle ‘‘as the upward tilt of an
earth station antenna measured in
degrees relative to the horizontal plane
(ground), that is required to aim the
earth station antenna at the satellite.
When aimed at the horizon, the
elevation angle is zero. If the satellite
were below the horizon, the elevation
angle would be less than zero. If the
earth station antenna were tilted to a
point directly overhead, it would have
an elevation angle of 90°;’’ see 47 U.S.C.
338(a)(4). In addition, the Commission
determined that in some areas of Alaska,
from some orbit locations, the elevation
angle was less than five degrees, or even
below the horizon, thereby making
service to those areas impossible. For
example, the elevation angle for Attu
Island, Alaska is less than zero or below
the horizon for the 61.5°, 101°, and 110°
orbit locations and only 4 for the 119°
location. We note, however, that
satellite carriers must abide by the
geographic service rules that require
service where technically feasible. We
welcome comment on the meaning of
‘‘substantially all of the carrier’s
subscribers in each station’s market.’’
17. We do not believe it is necessary
to adopt new rules to implement this
provision. This provision is similar to
the Commission interpretation adopted
in the implementation of the SHVIA,
that satellite carriers that offer localinto-local service are not required to
provide service to every subscriber in a
DMA. We seek comment on whether it
is necessary to adopt a rule on this
point, and, if so, what it should provide.
F. Areas Outside Local Markets
18. The SHVERA also addresses the
anomalous situation in Alaska, the only
one of the fifty states that has areas that
are not included within any DMA. The
eight major islands of Hawaii are
currently included within the Honolulu
DMA. If the reference to
‘‘noncontiguous States’’ is read to
include territories and possessions,
none of them are in DMAs and would
be subject to the special treatment
described in section 210. The statute
requires a satellite carrier in Alaska to
make available the signals of all the
local television stations that it carries in
at least one local market to substantially
all of its subscribers in areas outside of
local markets who are in the same State;
see 47 U.S.C. 338(a)(4). In Alaska, there
are three DMAs covering the main
population centers, but most of the
State, which is sparsely populated, is
not included in a DMA. Thus, a satellite
carrier in Alaska would be required to
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provide the television stations that it
carries in at least one of the three DMAs,
in which carriage of local stations is
required by section 210 of the SHVERA,
to areas of the State not included in
DMAs. We believe that the statute
speaks for itself and that no special rule
is required to implement this statutory
requirement. We seek comment on this
conclusion.
G. Notification by Satellite Carrier
19. Section 210 of the SHVERA does
not expressly require revisions to the
existing notification procedures in
connection with the new carriage
requirements in the noncontiguous
states. However, to ensure that the
purpose of section 210 is achieved, we
seek comment on whether to require
satellite carriers with more than 5
million subscribers to notify all
television broadcast stations located in
local markets in the noncontiguous
states that they are entitled to carriage
of their analog signals as of December 8,
2005, and of their digital signals as of
June 8, 2007, and that they must elect
mandatory carriage or retransmission
consent by October 1, 2005 and April 1,
2007, respectively, to be assured of
carriage, as provided in sections
76.66(b)(2) and (c)(6). If required, this
notification to the stations should
include a statement advising them of the
opportunity to have their analog and
digital signals made available by the
carrier to the carrier’s subscribers in the
local market of each station. If adopted,
this notification would be required by
September 1, 2005, with respect to
analog signal carriage election, and by
March 1, 2007, with respect to the
carriage election for digital signals; see
proposed section 76.66(d)(2)(iii). A new
satellite carrier that meets this
definition after 2005 would be required
to comply with section 76.66(d)(2) of
the Commission’s rules regarding ‘‘new
local-into-local service’’ (imposes
requirements when a new satellite
carrier intends to retransmit a local
television station back into its local
market); see 47 CFR 76.66(d)(2). We
seek comment on the need for this
notification. We also request comment
on whether such notice should be
required only for stations in Alaska and
Hawaii or also for television broadcast
stations in all noncontiguous territories
and possessions. We also seek comment
on the need for a second notification 30
days prior to the second carriage
election deadline, which is proposed for
April 1, 2007 for carriage of digital
signals. If, alternatively, the October 1,
2005 carriage election applies to both
the analog and digital signals of local
stations in the noncontiguous states, we
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propose that a second notification
would not be required prior to the
commencement of carriage of digital
signals in June of 2007. We seek
comment on these proposals.
IV. Procedural Matters
A. Initial Regulatory Flexibility
Certification
20. The Regulatory Flexibility Act of
1980, as amended (RFA), requires that
an initial 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.
605(b), 5 U.S.C. 603. The RFA, see 5
U.S.C. 601–612, has been amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA), Pub. L. 104–121, Title II, 110
Stat. 857 (1996). 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). 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.
21. As described in this NPRM, we
propose to amend section 76.66 of the
Commission’s rules as required by
section 210 of the SHVERA. We expect
these rule amendments, if adopted, will
not have a significant economic impact
on a substantial number of small
entities. The proposed rules contained
in this NPRM, as required by statute, are
intended to allow for local television
stations to elect carriage pursuant to
retransmission consent or mandatory
carriage with respect to satellite carriers
with more than 5 million subscribers in
a non-contiguous state. ‘‘Satellite
carriers,’’ including Direct Broadcast
Satellite (DBS) carriers, will be directly
and primarily affected by the proposed
rules, if adopted.
22. The satellite carriers covered by
these proposed rules fall within the
SBA-recognized small business size
standard of Cable and Other Program
Distribution; see 13 CFR 121.201. This
size standard provides that a small
entity is one with $12.5 million or less
in annual receipts; see 13 CFR 121.201.
The two satellite carriers that are subject
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B. Initial Paperwork Reduction Act of
1995 Analysis
26. Written comments on the PRA
proposed information collection
requirements must be submitted by the
public, the Office of Management and
Budget (OMB), and other interested
parties on or before July 8, 2005.
Comments should address: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the Commission,
including whether the information shall
have practical utility; (b) the accuracy of
the Commission’s burden estimates; (c)
ways to enhance the quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on the
respondents, including the use of
automated collection techniques or
other forms of information technology.
In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
we seek specific comment on how we
might ‘‘further reduce the information
collection burden for small business
concerns with fewer than 25
employees;’’ Pub. L. 107–198, see 44
U.S.C. 3506(c)(4).
27. In addition to filing comments
with the Office of the Secretary, a copy
of any comments on the proposed
information collection requirements
contained herein should be submitted to
Cathy Williams, Federal
Communications Commission, 445 12th
St, SW., Room 1–C823, Washington, DC
20554, or via the Internet to
Cathy.Williams@fcc.gov; and also to
Kristy L. LaLonde, OMB Desk Officer,
Room 10234 NEOB, 725 17th Street,
NW., Washington, DC 20503, or via
Internet to
Kristy_L._LaLonde@omb.eop.gov, or via
fax at (202) 395–5167.
28. Further Information. For
additional information concerning the
PRA proposed information collection
requirements contained in this NPRM,
contact Cathy Williams at (202) 418–
2918, or via the Internet to
Cathy.Williams@fcc.gov. If you would
like to obtain or view a copy of this
revised information collection, OMB
Control Number 3060–0980, you may do
so by visiting the FCC PRA Web page at:
https://www.fcc.gov/omd/pra.
25. This NPRM has been analyzed
with respect to the Paperwork
Reduction Act of 1995 (‘‘PRA’’), and
contains proposed information
collection requirements. The
Commission, as part of its continuing
effort to reduce paperwork burdens,
invites the general public and the Office
of Management and Budget (OMB) to
comment on the proposed information
collection requirements contained in
this NPRM, as required by the PRA.
C. Ex Parte Rules
29. Permit-but-Disclose. This
proceeding will be treated as a ‘‘permitbut-disclose’’ proceeding subject to the
‘‘permit-but-disclose’’ requirements
under section 1.1206(b) of the
Commission’s rules; see 47 CFR
1.1206(b); 47 CFR 1.1202, 1.1203. Ex
parte presentations are permissible if
disclosed in accordance with
Commission rules, except during the
Sunshine Agenda period when
to these proposed rule amendments
because they currently have more than
five million subscribers, DirecTV
(DirecTV is the largest DBS operator and
the second largest MVPD, serving an
estimated 13.04 million subscribers
nationwide) and EchoStar (EchoStar,
which provides service under the brand
name Dish Network, is the second
largest DBS operator and the fourth
largest MVPD, serving an estimated
10.12 million subscribers nationwide),
report annual revenues that are in
excess of the threshold for a small
business. We anticipate that any
satellite carrier that, in the future, has
more than five million subscribers
would necessarily have more than $12.5
million in annual receipts. Thus, the
entities directly affected by the
proposed rules are not small entities.
23. We also note that, in addition to
satellite carriers, television broadcast
stations are indirectly affected by the
proposed rule in that they potentially
benefit from the satellite carriage
required by the rule and must elect
between mandatory carriage and
retransmission consent. This carriage
election, however, follows the existing
Commission rules. These existing rules
currently permit stations in the
noncontiguous states to elect carriage if
and when a satellite carrier offers localinto-local service in their market. The
proposed rules would affect these
election rights by merely providing a
date certain for carriage in these
specified markets, which would not
have a significant economic impact.
24. Therefore, we certify that the
proposed rules, if adopted, will not have
a significant economic impact on a
substantial number of small entities.
The Commission will send a copy of
this Notice of Proposed Rulemaking,
including a copy of this Initial
Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the
SBA; see 5 U.S.C. 605(b). This initial
certification will also be published in
the Federal Register; see 5 U.S.C.
605(b).
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presentations, ex parte or otherwise, are
generally prohibited. Persons making
oral ex parte presentations are reminded
that a memorandum summarizing a
presentation must contain a summary of
the substance of the presentation and
not merely a listing of the subjects
discussed. More than a one-or twosentence description of the views and
arguments presented is generally
required; see 47 CFR 1.1206(b)(2).
Additional rules pertaining to oral and
written presentations are set forth in
section 1.1206(b).
D. Filing Requirements
30. Comments and Replies. The
SHVERA requires the Commission to
complete action within one year of
enactment (December 8, 2004) to take
account of carriage elections in light of
the schedule for carriage as required in
the noncontiguous states; see 47 U.S.C.
338(a)(4). The carriage election deadline
is October 1, 2005 for the next carriage
cycle. If the Commission waited until
December 8, 2005, to implement this
provision, it would be too late for
stations to elect between must carry and
retransmission consent for the carriage
to commence on December 8, 2005. In
addition, the Commission is proposing
to require satellite carriers to provide
notice to local stations in the
noncontiguous states concerning the
new carriage requirements one month
prior to the carriage election deadline.
Thus, the proposed notification
requirement, if adopted, must be in
effect by September 1, 2005, 30 days
prior to the carriage election deadline of
October 1, 2005, with respect to carriage
of the analog signals required to
commence by December 8, 2005.
Consequently, the pleading cycle for
comments and replies must be
compressed and expedited. Pursuant to
sections 1.415 and 1.419 of the
Commission’s rules, interested parties
may file comments on or before June 6,
2005, and reply comments on or before
June 20, 2005; see 47 CFR 1.415, 1419.
Comments may be filed using: (1) The
Commission’s Electronic Comment
Filing System (‘‘ECFS’’), (2) the Federal
Government’s eRulemaking Portal, or (3)
by filing paper copies; see 13 FCC Rcd
11322 (1998).
31. Electronic Filers: Comments may
be filed electronically using the Internet
by accessing the ECFS: https://
www.fcc.gov/cgb/ecfs/ or the Federal
eRulemaking Portal: https://
www.regulations.gov. Filers should
follow the instructions provided on the
Web site for submitting comments. For
ECFS filers, if multiple docket or
rulemaking numbers appear in the
caption of this proceeding, filers must
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transmit one electronic copy of the
comments for each docket or
rulemaking number referenced in the
caption. In completing the transmittal
screen, filers should include their full
name, U.S. Postal Service mailing
address, and the applicable docket or
rulemaking number. Parties may also
submit an electronic comment by
Internet e-mail. To get filing
instructions, filers should send an email to ecfs@fcc.gov, and include the
following words in the body of the
message, ‘‘get form.’’ A sample form and
directions will be sent in response.
32. Paper Filers: Parties who choose
to file by paper must file an original and
four copies of each filing. If more than
one docket or rulemaking number
appears in the caption of this
proceeding, filers must submit two
additional copies for each additional
docket or rulemaking number. Filings
can be sent by hand or messenger
delivery, by commercial overnight
courier, or by first-class or overnight
U.S. Postal Service mail (although we
continue to experience delays in
receiving U.S. Postal Service mail). All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• The Commission’s contractor will
receive hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary at 236
Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours
at this location are 8 a.m. to 7 p.m. All
hand deliveries must be held together
with rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
• U.S. Postal Service first-class,
Express, and Priority mail should be
addressed to 445 12th Street, SW.,
Washington DC 20554.
33. Availability of Documents.
Comments, reply comments, and ex
parte submissions will be available for
public inspection 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. Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.
34. Accessibility Information. To
request information in accessible
formats (computer diskettes, large print,
audio recording, and Braille), send an e-
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mail to fcc504@fcc.gov or call the FCC’s
Consumer and Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY). This document can
also be downloaded in Word and
Portable Document Format (PDF) at:
https://www.fcc.gov.
35. Additional Information. For
additional information on this
proceeding, contact Eloise Gore,
Eloise.Gore@fcc.gov, or Jim Keats,
Jim.Keats@fcc.gov, of the Media Bureau,
Policy Division, (202) 418–2120.
V. Ordering Clauses
36. Accordingly, it is ordered that
pursuant to section 210 of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004, and
sections 1, 4(i) and (j), and 338(a)(4) of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i) and (j),
and 338(a)(4), notice is hereby given of
the proposals and tentative conclusions
described in this Notice of Proposed
Rulemaking.
37. It is further ordered that the
Consumer and Governmental Affairs
Bureau, Reference Information Center,
shall send a copy of this Notice of
Proposed Rulemaking, including the
Initial Regulatory Flexibility
Certification, to the Chief Counsel for
Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 76
Cable television, Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed 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
1. The authority citation for 47 CFR
part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 302a, 307, 308, 309, 312, 317, 325, 338,
339, 503, 521, 522, 531, 532, 533, 534, 535,
536, 537, 543, 544, 544a, 545, 548, 549, 552,
554, 556, 558, 560, 561, 571, 572, and 573.
2. Section 76.66 is amended by
revising paragraphs (b)(2) and (c)(4), by
adding paragraph (c)(6), redesignate
paragraphs (d)(2)(iii) and (d)(2)(iv) as
paragraphs (d)(2)(iv) and (d)(2)(v) and
by adding a new paragraph (d)(2)(iii) to
read as follows:
§ 76.66
*
PO 00000
Satellite broadcast signal carriage.
*
*
(b) * * *
Frm 00032
*
Fmt 4702
*
Sfmt 4702
24357
(2) A satellite carrier that offers
multichannel video programming
distribution service in the United States
to more than 5,000,000 subscribers
shall, no later than December 8, 2005,
carry upon request the signal originating
as an analog signal of each television
broadcast station that is located in a
local market in a noncontiguous state;
and shall, no later than June 8, 2007,
carry upon request the signals
originating as digital signals of each
television broadcast station that is
located in a local market in a
noncontiguous State.
*
*
*
*
*
(c) * * *
(4) Except as provided in paragraphs
(c)(6), (d)(2) and (d)(3) of this section,
local commercial television broadcast
stations shall make their retransmission
consent-mandatory carriage election by
October 1st of the year preceding the
new cycle for all election cycles after
the first election cycle.
*
*
*
*
*
(6) A commercial television broadcast
station located in a local market in a
noncontiguous State shall make its
retransmission consent-mandatory
carriage election by October 1, 2005, for
carriage of its signal that originates as an
analog signal for carriage commencing
on December 8, 2005 and ending on
December 31, 2008, and by April 1,
2007, for its signal that originates as a
digital signal for carriage commencing
on June 8, 2007 and ending on
December 31, 2008. For analog and
digital signal carriage cycles
commencing after December 31, 2008,
such stations shall follow the election
cycle in paragraphs (c)(2) and (c)(4) of
this section. A noncommercial
television broadcast station located in a
local market in Alaska or Hawaii must
request carriage by October 1, 2005, for
carriage of its signal that originates as an
analog signal for carriage commencing
on December 8, 2005 and ending on
December 31, 2008, and for its signal
that originates as a digital signal for
carriage commencing on June 8, 2007
and ending on December 31, 2008.
*
*
*
*
*
(d) * * *
(2) * * *
(iii) A satellite carrier with more than
five million subscribers shall provide
the notice as required by paragraphs
(d)(2)(i) and (d)(2)(ii) of this section to
each television broadcast station located
in a local market in the noncontiguous
States, not later than September 1, 2005
with respect to carriage of analog signals
and not later than March 1, 2007 with
respect to carriage of digital signals;
provided, however, that the notice shall
E:\FR\FM\09MYP1.SGM
09MYP1
24358
Federal Register / Vol. 70, No. 88 / Monday, May 9, 2005 / Proposed Rules
also describe the carriage requirements
pursuant to section 338(a)(4) of title 47,
United States Code, and paragraph (b)(2)
of this section.
*
*
*
*
*
[FR Doc. 05–9290 Filed 5–6–05; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 383
[Docket No. FMCSA–2005–20043]
RIN 2126–AA01
Minimum Uniform Standards for a
Biometric Identification System To
Ensure Identification of Operators of
Commercial Motor Vehicles;
Withdrawal
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Advance notice of proposed
rulemaking (ANPRM); withdrawal.
AGENCY:
SUMMARY: The Federal Motor Carrier
Safety Administration (FMCSA)
(formerly the Federal Highway
Administration’s (FHWA) Office of
Motor Carriers) withdraws two advance
notices of proposed rulemaking
(ANPRM) on using biometric identifiers
to provide positive identification of
drivers in the Commercial Driver’s
License Information System (CDLIS)
and to prevent drivers from obtaining
more than one commercial driver’s
license (CDL). The ANPRM requesting
comments was published on May 15,
1989 at 54 FR 20875; an ANPRM
providing additional information was
published on March 8, 1991 at 56 FR
9925. The Transportation Security
Administration (TSA) currently is
developing a Transportation Worker
Identification Credential (TWIC) that
will incorporate biometric identifiers.
FMCSA does not want to cause a
conflict in standards adopted by each
agency or place an undue burden on
States by imposing two different
standards and/or technologies for CDLs
and the TWIC. In the future, FMCSA
may assess the impact of the TWIC upon
the Federal Motor Carrier Safety
Regulations.
The ANPRM with request for
comments published on May 15, 1989,
and the ANPRM with additional
information published on March 8,
1991, are withdrawn as of May 9, 2005.
FOR FURTHER INFORMATION CONTACT: Ms.
Carol Gore, Leader, Commercial Driver’s
DATES:
VerDate jul<14>2003
15:24 May 06, 2005
Jkt 205001
License Team, (202) 366–4013, Federal
Motor Carrier Safety Administration,
(MC–ESS), 400 Seventh Street SW.,
Washington, DC 20590–0001. Office
hours are from 7:45 a.m. to 4:15 p.m.
ET, Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Section 9105(a) of the Truck and Bus
Safety and Regulatory Reform Act of
1988 [Pub. L. 100–690, November 18,
1988, 102 Stat. 4530] required the
agency to issue minimum biometric
identification standards for operators of
commercial motor vehicles (CMVs) by
December 31, 1990. The purpose of this
system would be to provide positive
identification of drivers in the
Commercial Driver’s License
Information System (CDLIS) and to
prevent drivers from obtaining more
than one driver’s license.
In 1988, FHWA 1 and a committee
including four State licensing agencies
and the American Association of Motor
Vehicle Administrators (AAMVA)
assessed the feasibility of using certain
biometric identifier technologies to
fulfill the statutory requirements of sec.
9105(a) of the Truck and Bus Safety and
Regulatory Reform Act of 1988. The
committee found both retinal scanning
and automated fingerprint identification
systems (AFIS) feasible 2 for use in the
planned pilot study and identified an
initial set of functional requirements 3
for a biometric identification system for
CMV operators.
On May 15, 1989,4 the agency
requested comments on the
establishment of biometric identifiers
for operators of CMVs and announced
the pilot study on the use of fingerprints
and retinal scan technology to positively
and uniquely identify operators of
CMVs. The pilot study was conducted
in 1990.
On March 8, 1991,5 the agency
published an ANPRM with the results of
Federal Highway Administration (FHWA),
Office of Motor Carriers became the Federal Motor
Carrier Safety Administration (FMCSA) on January
1, 2000 (64 FR 72959, December 29, 1999).
2 ‘‘Personal Identifier Project Feasibility Study
Report,’’ State of California Department of Motor
Vehicles, Project No. 2300–75, Log No. 215–88;
Revised December 7, 1988.
3 ‘‘Functional Description for a Unique
Identification System for the Commercial Driver’s
License Information System (CDLIS),’’ Office of
Motor Carriers; Report No. FHWA–MC–88–048;
February 1988.
4 ‘‘Minimum Uniform Standards for a Biometric
Identification System to Ensure Identification of
Operators of Commercial Motor Vehicles;’’
published at 54 FR 20875, May 15, 1989); ANPRM.
5 ‘‘Minimum Uniform Standards for Biometric
Identification System to Ensure Identification of
Operators of Commercial Motor Vehicles;’’
PO 00000
1 The
Frm 00033
Fmt 4702
Sfmt 4702
the pilot study and with a summary and
response to comments to the 1989
ANPRM. (The 1991 ANPRM provided
supplemental information on the
biometric identifier issue but did not
request additional comments.) FHWA
concluded that neither retinal scanning
nor AFIS was sufficiently accurate or
cost effective to be practical at that time.
Therefore, the agency did not issue a
notice of proposed rulemaking. Instead,
further rulemaking action on the matter
was deferred until the technology
developed to meet FHWA functional
requirements. The agency continued to
require States to make available in
CDLIS a driver’s personal identification
information.
In 1998, section 4011(c) of the
Transportation Equity Act for the 21st
Century [49 U.S.C. 31308(2)] (TEA–21)
required the agency to issue a rule
mandating that all commercial driver’s
licenses (CDLs) issued by States after
January 1, 2001, include a unique
identifier that may be biometric.
Although the 1998 legislation did not
explicitly repeal the 1988 mandatory
biometric identifier language, the
agency concluded the contradictory
language of the 1998 statute, when
viewed against the lack of a statement
of congressional intent in the legislative
conference reports for TEA–21,
supersedes and repeals by implication
the 1988 mandate. Therefore, FMCSA
found that TEA–21 changed the
standard from mandating use of a
biometric identifier to mandating use of
a unique identifier, which may or may
not be biometric.
In 1999, FMCSA again conducted a
study to determine if a national
biometric program was feasible and
whether fingerprinting or facial imaging
should be used. The results showed that
a national biometric implementation
program is feasible and that
thumbprints are better than facial
images as a biometric standard.
Withdrawal of Proposal
FMCSA believes the agency has
satisfied the unique identifier standard
in TEA–21 through its adoption of a
specialized search procedure as part of
the CDLIS. This procedure contains the
following seven personal identifiers:
Name, date of birth, sex, height, weight,
eye color, and Social Security number,
in an algorithm designed to produce a
highly probable personal identification.
The Transportation Security
Administration (TSA) currently is
developing a Transportation Worker
Identification Credential (TWIC) that
published at 56 FR 9925 on March 8, 1991;
ANPRM; additional information.
E:\FR\FM\09MYP1.SGM
09MYP1
]]>Agencies
[Federal Register Volume 70, Number 88 (Monday, May 9, 2005)]
[Proposed Rules]
[Pages 24350-24358]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9290]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 05-181; FCC 05-92]
Implementation of Section 210 of the Satellite Home Viewer
Extension and Reauthorization Act of 2004 To Amend Section 338 of the
Communications Act
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission proposes rules to implement
section 210 of the Satellite Home Viewer Extension and Reauthorization
Act of 2004 (``SHVERA''). The Satellite Home Viewer Extension and
Reauthorization Act of 2004 (SHVERA) was enacted on December 8, 2004 as
title IX of the ``Consolidated Appropriations Act, 2005.'' This
proceeding to implement section 210 of SHVERA is one of a number of
Commission proceedings that will be required to implement SHVERA.
DATES: Comments for this proceeding are due on or before June 8, 2005;
reply comments are due on or before June 23, 2005. Written comments on
the proposed information collection requirements contained in this
document must be submitted by the public, the Office of Management and
Budget (OMB), and other interested parties on or before July 8, 2005.
ADDRESSES: You may submit comments, identified by MB Docket No. 05-181,
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Eloise Gore, Eloise.Gore@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 NPRM, 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. If you would
like to obtain or view a copy of this revised information collection,
OMB Control Number 3060-0980, you may do so by visiting the FCC PRA Web
page at: https://www.fcc.gov/omd/pra.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 05-92, adopted on April 29, 2005,
and released on May 2, 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
[[Page 24351]]
(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 document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due July 8, 2005. Comments should address: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
seek specific comment on how we might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
OMB Control Number: 3060-0980.
Title: SHVERA Rules; Implementation of Section 210 of the Satellite
Home Viewer Extension and Reauthorization Act of 2004 (Broadcast Signal
Carriage Issues, Retransmission Consent Issues).
Form No.: Not applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities.
Estimated Number of Respondents: 7,179.
Estimated Time Per Response: 1-5 hours.
Frequency of Response: On occasion reporting requirement; every
three years reporting requirement.
Estimated Total Annual Burden: 10,196 hours.
Estimated Total Annual Costs: $30,000.
Privacy Act Impact Assessment: No impact(s).
Needs and Uses: On April 29, 2005, the Commission adopted a Notice
of Proposed Rule Making (NPRM), In the Matter of the Implementation of
Section 210 of the Satellite Home Viewer Extension and Reauthorization
Act of 2004 to Amend Section 338 of the Communications Act, MB Docket
No. 05-181, FCC 05-92. The NPRM proposed amendments to 47 CFR 76.66 to
implement section 210 of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''). Section 210 of the SHVERA
amends section 338(a) of the Communications Act of 1934, as amended,
(``Communications Act'' or ``Act''). Section 338 governs the carriage
of local television broadcast stations by satellite carriers. In
general, the SHVERA amends this section to require satellite carriers
to carry both the analog and digital signals of television broadcast
stations in local markets in noncontiguous States (including Alaska and
Hawaii), and to provide these signals to substantially all of their
subscribers in each station's local market by December 8, 2005 for
analog signals and by June 8, 2007 for digital signals.
On March 28, 2005, the Commission adopted an Order, FCC 05-81,
Implementation of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''), Procedural Rules, to
implement procedural rules as required by the SHVERA. The SHVERA is the
third statute that addresses satellite carriage of television broadcast
stations. The 2004 SHVERA gives satellite carriers the additional
option to carry Commission-determined ``significantly viewed'' out-of-
market signals to subscribers. The SHVERA requires the Commission to
undertake several proceedings to implement new rules, revise existing
rules, and conduct studies. The Procedural Rules Order to implement
sections 202, 205, and 209 of the SHVERA is one of a number of
Commission proceedings that will be required to implement the SHVERA.
Summary of the Notice of Proposed Rulemaking
I. Introduction
1. In this Notice of Proposed Rulemaking, NPRM, we propose rules to
implement section 210 of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 (``SHVERA''). The Satellite Home Viewer
Extension and Reauthorization Act of 2004 (SHVERA), Pub. L. 108-447,
section 210, 118 Stat 2809 (2004). SHVERA was enacted on December 8,
2004, as title IX of the ``Consolidated Appropriations Act, 2005.''
This proceeding to implement section 210 of SHVERA is one of a number
of Commission proceedings that will be required to implement SHVERA.
The other proceedings will be undertaken and largely completely in
2005; see section 202 of the SHVERA (entitled ``Significantly Viewed
Signals Permitted To Be Carried''), SHVERA NPRM, MB Docket No. 05-49,
FCC 05-24, 2005 WL 289026 (rel. Feb. 7, 2005); sections 202, 204, 205,
207, 208, 209 and 210 of the SHVERA; see also Public Notice, ``Media
Bureau Seeks Comment for Inquiry Required by the SHVERA on Rules
Affecting Competition in the Television Marketplace,'' MB Docket No.
05-28, DA 05-169 (rel. Jan. 25, 2005) (Public Notice regarding Inquiry
required by section 208 of the SHVERA concerning the impact of certain
rules and statutory provisions on competition in the television
marketplace); Implementation of Section 207 of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, Reciprocal Bargaining
Obligations, MB Docket No. 05-89, FCC 05-49 (rel. Mar. 7. 2005); and
Procedural Rules, FCC 05-81 (rel. March 30, 2005) (Order implementing
rule revisions required by sections 202, 205, and 209). Section 210 of
the SHVERA amends section 338(a) of the Communications Act of 1934, as
amended, (``Communications Act'' or ``Act''). Section 338 governs the
carriage of local television broadcast stations by satellite carriers;
see 47 U.S.C. 338. In general, the SHVERA amends this section to
require satellite carriers to carry both the analog and digital signals
of television broadcast stations in local markets in noncontiguous
states, including Alaska and Hawaii, and to provide these signals to
substantially all of their subscribers in each station's local market
by December 8, 2005 for analog signals and by June 8, 2007 for digital
signals; see 47 U.S.C. 338(a)(4) (as amended by section 210 of the
SHVERA).
II. Background
A. Satellite Home Viewer Act (SHVA) and Satellite Home Viewer
Improvement Act of 1999 (SHVIA)
2. In 1988, Congress passed the Satellite Home Viewer Act
(``SHVA''), which established a statutory copyright license for
satellite carriers to offer subscribers access to broadcast programming
via satellite when they are unable to receive the signal of a broadcast
station over the air (that is, an ``unserved'' household). The
Satellite Home Viewer Act of 1988, Pub. L. 100-667, 102 Stat. 3935,
Title II (1988)
[[Page 24352]]
(codified at 17 U.S.C. 111, 119). SHVA was enacted on November 16,
1988, as an amendment to the copyright laws. SHVA gave satellite
carriers a statutory license to offer signals to ``unserved''
households. 17 U.S.C. 119(a). In 1999, Congress enacted the Satellite
Home Viewer Improvement Act (``SHVIA''), which expanded on the 1988
SHVA by amending both the 1988 copyright laws, and the Communications
Act to permit satellite carriers to retransmit local broadcast
television signals directly to subscribers in the station's local
market (``local-into-local'' service) without requiring that they be in
``unserved'' households; see 17 U.S.C. 119 and 122, 47 U.S.C. 325, 338
and 339. The Satellite Home Viewer Improvement Act of 1999, Pub. L.
106-113, 113 Stat. 1501 (1999) (codified in scattered sections of 17
and 47 U.S.C.). SHVIA was enacted on November 29, 1999, as Title I of
the Intellectual Property and Communications Omnibus Reform Act of 1999
(``IPACORA'') (relating to copyright licensing and carriage of
broadcast signals by satellite carriers). The SHVIA created the
copyright license to provide local signals to subscribers regardless of
whether they were ``unserved;'' see 17 U.S.C. 122.
3. A satellite carrier provides ``local-into-local'' service when
it retransmits a local television station's signal back into the local
market of the television station for reception by subscribers. If a
carrier carries one or more stations in the market pursuant to the
statutory copyright license, it is required to carry all of the other
local stations in the local market, upon the station's request (that
is, the ``carry-one, carry-all'' requirement); see 47 U.S.C. 338(a)(1).
Generally, a television station's ``local market'' is the designated
market area (``DMA'') in which it is located. Section 340(i)(1) (as
amended by section 202 of the SHVERA), defines the term ``local
market'' by using the definition in 17 U.S.C. 122(j)(2): ``The term
`local market,' in the case of both commercial and noncommercial
television broadcast stations, means the designated market area in
which a station is located, and--(i) in the case of a commercial
television broadcast station, all commercial television broadcast
stations licensed to a community within the same designated market area
are within the same local market; and (ii) in the case of a
noncommercial educational television broadcast station, the market
includes any station that is licensed to a community within the same
designated market area as the noncommercial educational television
broadcast station.'' DMAs describe each television market in terms of a
unique geographic area, and are established by Nielsen Media Research
based on measured viewing patterns; see 17 U.S.C. 122(j)(2)(A)-(C).
There are 210 DMAs that encompass all counties in the 50 United States,
except for certain areas in Alaska. Alaska has three DMAs situated
around major population centers, but most of the State, which is
sparsely populated, is not included in DMAs. A satellite carrier
choosing to provide such local-into-local service is generally
obligated to carry any qualified local station in a particular DMA that
has made a timely election for mandatory carriage, unless the station's
programming is duplicative of the programming of another station
carried by the carrier in the DMA, or the station does not provide a
good quality signal to the carrier's local receive facility; see 47
U.S.C. 338(a)(1), (b)(1) and (c)(1).
B. Satellite Home Viewer Extension and Reauthorization Act of 2004
(SHVERA)
4. In December 2004, Congress passed and the President signed the
Satellite Home Viewer Extension and Reauthorization Act of 2004. SHVERA
again amends the 1988 copyright laws and the Communications Act to
further aid the competitiveness of satellite carriers and expand
program offerings for satellite subscribers; see 47 U.S.C. 325, 338,
339 and 340. Section 102 of SHVERA creates a new 17 U.S.C. 119(a)(3) to
provide satellite carriers with a statutory copyright license to offer
``significantly viewed'' signals as part of their local service to
subscribers. This rulemaking is required to implement provisions in
section 210 of the SHVERA concerning satellite carriage of local
stations in the noncontiguous states, including Alaska and Hawaii; see
47 U.S.C. 338(a)(4).
III. Discussion
5. Section 210 of the SHVERA amends section 338(a) of the
Communications Act to require satellite carriers with more than five
million subscribers in the United States to carry the analog and
digital signals of each television broadcast station licensed in local
markets ``within a State that is not part of the contiguous United
States.'' Analog signals are required to be carried by December 8,
2005, and digital signals by June 8, 2007. A carrier is required to
provide these signals to substantially all of its subscribers in each
station's local market. In addition, a satellite carrier is required to
make available the stations that it carries in at least one local
market to substantially all of its subscribers located outside of local
markets and in the same State. The SHVERA also mandates that satellite
carriers may not charge subscribers for these local signals more than
they charge subscribers in other States to receive local market
television stations. Although most of the requirements imposed by the
new section 338(a)(4) are self-effectuating, the SHVERA requires the
Commission to promulgate regulations concerning the timing of carriage
elections by stations in local markets in the noncontiguous states; see
47 U.S.C. 338(a)(4) (as amended by the SHVERA), which provides: (4)
CARRIAGE OF SIGNALS OF LOCAL STATIONS IN CERTAIN MARKETS-A satellite
carrier that offers multichannel video programming distribution service
in the United States to more than 5,000,000 subscribers shall (A)
within 1 year after the date of the enactment of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, retransmit the
signals originating as analog signals of each television broadcast
station located in any local market within a State that is not part of
the contiguous United States, and (B) within 30 months after such date
of enactment retransmit the signals originating as digital signals of
each such station. The retransmissions of such stations shall be made
available to substantially all of the satellite carrier's subscribers
in each station's local market, and the retransmissions of the stations
in at least one market in the State shall be made available to
substantially all of the satellite carrier's subscribers in areas of
the State that are not within a designated market area. The cost to
subscribers of such retransmissions shall not exceed the cost of
retransmissions of local television stations in other States. Within 1
year after the date of enactment of that Act, the Commission shall
promulgate regulations concerning elections by television stations in
such State between mandatory carriage pursuant to this section and
retransmission consent pursuant to section 325(b), which shall take
into account the schedule on which local television stations are made
available to viewers in such State. As required by the SHVERA, we open
this rulemaking proceeding and seek comments on implementation of the
SHVERA's amendments to section 338(a) of the Act, on rule proposals in
this NPRM, and tentative conclusions regarding these rules. The
proposed rules are in the Appendix to this NPRM. These amendments apply
only to satellite service in the noncontiguous states. The existing
signal carriage provisions in section 76.66 also continue to apply to
satellite service in
[[Page 24353]]
the noncontiguous states, where relevant and not inconsistent with the
rules proposed in this proceeding; see 47 CFR 76.66.
A. Satellite Carriers With More Than 5,000,000 Subscribers
6. The SHVERA adds subsection 338(a)(4) to the Act, which applies
to a ``satellite carrier that offers multichannel video programming
distribution service in the United States to more than 5,000,000
subscribers;'' see 47 U.S.C. 338(a)(4). We include this limitation in
the proposed new section 76.66(b)(2). This provision applies to
satellite carriers that have more than five million subscribers in 2005
and, in the future, to any carriers with more than five million
subscribers. Currently, DirecTV and EchoStar qualify under this
definition. We seek comments regarding the proposed rule.
B. Noncontiguous States
7. Section 210 of SHVERA applies to ``a State that is not part of
the contiguous United States;'' see 47 U.S.C. 338(a)(4). In the
Communications Act, the definition of ``State'' includes ``the
Territories and possessions;'' see 47 U.S.C. 153(40). We seek comment
on whether ``State'' as used in the SHVERA includes the noncontiguous
territories and possessions of the United States, including but not
limited to Puerto Rico and Guam and whether considerations such as a
satellite provider's regulatory authorizations and/or actual service
area are relevant to interpreting the obligation under section
338(a)(4) to serve ``noncontiguous states.'' We note that territories
in the Pacific, such as Guam, are in a different International
Telecommunication Union (``ITU'') region. The contiguous United States,
Alaska, Hawaii, Puerto Rico and the U.S. Virgin Islands are located in
ITU Region 2 and have orbital assignments in the Region 2 BSS Plan.
Guam, the Northern Marianas, Wake Island and Palmyra Island are located
in ITU Region 3 and have orbital assignments in the Region 3 BSS plan
at 122.0[deg] E.L., 121.80[deg] E.L., 140.0[deg] E.L. and 170.0[deg]
E.L. respectively. We seek comment on the impact of regulatory
differences (e.g., use of different frequency bands) between ITU
regions in providing service to these locations. Spot beam technology
may allow coverage of widely spaced areas if visible from the satellite
location. Many areas are not visible to all satellites. For example,
Guam is below the horizon for United States allocations east of
148[deg] W.L. Previously the Commission recognized that contiguous
United States (``CONUS'') antenna beams modified to include Puerto Rico
and the U.S. Virgin Islands could divert power from other regions and
potentially adversely affect the services of other countries. We seek
comment on satellite carriers' current capability to serve these areas
using current or planned technology.
C. Analog and Digital Signals
8. The SHVERA requirements for satellite carriage to the
noncontiguous states differ significantly from the existing satellite
broadcast carriage requirements, both in scope and timing. Currently,
under the Communications Act and Commission rules implementing the Act,
satellite carriers choose whether to rely on the statutory copyright
license in section 122 of title 17 to offer ``local-into-local
service,'' which in turn triggers the carry-one, carry-all obligation;
see 47 U.S.C. 338(a)(1) and 47 CFR 76.66(b), Implementation of the
Satellite Home Viewer Improvement Act of 1999, 16 FCC Rcd 1918 (2000)
16 FCC Rcd 16544 (2001) (``DBS Must Carry Reconsideration Order''). The
U.S. Court of Appeals for the Fourth Circuit upheld the constitutional
validity of SHVIA and the reasonableness of the Commission's rules
promulgated thereunder; see Satellite Broadcasting and Communications
Ass'n v. FCC, 275 F.3d 337 (2001), cert. denied, 536 U.S. 922 (2002).
The Communications Act, moreover, prohibits a multichannel video
programming distributor from retransmitting the signal of a broadcast
station unless it has ``the express authority'' of the station. 47
U.S.C. 325(b)(1)(A), 17 U.S.C. 122(a) (as amended by section 1002 of
the SHVIA) and 47 U.S.C. 338(a)(1) (as amended by section 1008 of the
SHVIA). Satellite carriers are not currently required to offer local-
into-local service in all markets. The question of satellite carriage
obligations concerning a station's digital signal is currently pending
before the Commission.
9. The new SHVERA provision for noncontiguous states supersedes
carry-one, carry-all and the pending digital carriage rulemaking
proceeding by mandating dual analog and digital carriage in the
noncontiguous states. A satellite carrier with more than five million
subscribers is required by the SHVERA to retransmit the analog signals
of each television station in local markets in the noncontiguous states
to subscribers in those local markets by December 8, 2005 (one year
after enactment of the SHVERA). The SHVERA expands this requirement to
include the digital signals of each station no later than June 8, 2007
(30 months after enactment of SHVERA). If any or all of the local
stations in the noncontiguous states are still broadcasting analog
signals as well as digital signals, as of June 8, 2007, the SHVERA
requirement mandates dual must carry. The Communciations Act provides
for termination of analog signal licenses as of December 31, 2006,
unless local stations request an extension and demonstrate that one or
more criteria exist in their markets; see 47 U.S.C. 309(j)(14)
(criteria include the so-called ``85% test''). Section 210 of the
SHVERA, which adds the carriage obligations for stations in
noncontiguous states (section 338(a)(4)), requires carriage of
``signals originating as analog signals'' and ``signals originating as
digital signals'' with no mention of a term such as ``primary video,''
the term used in the cable mandatory carriage provisions. 47 U.S.C.
534(b)(3) and 535(g). The Commission recently concluded that the
statutory term relating to cable mandatory carriage, ``primary video,''
was ambiguous with respect to whether it requires cable operators to
carry broadcasters' multicast signals. Faced with an ambiguous statute,
the Commission did not require mandatory carriage of multicast signals
by cable systems. The SHVERA provision before us contains no such
ambiguity. Moreover, we note that section 210 uses the plural term
``signals,'' requiring satellite carriers to retransmit the signals
originating as digital signals of each such station; see 47 U.S.C.
338(a)(4). In sum, this SHVERA amendment to section 338 does not
contain any limitation on the nature of the broadcast signal that
satellite operators must carry in the non-contiguous states. We
believe, therefore, that the amendment requires that satellite carriers
carry all multicast signals of each station in noncontiguous states and
carry the high definition digital signals of stations in noncontiguous
states in high definition format. We note that satellite carriage of
high definition local signals is also under review in the ongoing
broadcast carriage rulemaking docket in the context of applying the
statutory prohibition on material degradation. We seek comment on these
interpretations, and any alternative construction of the SHVERA as the
statute relates to the carriage of multicast and/or high definition
signals; see MB Docket Nos. 98-120 and 00-96, WHDT v. Echostar, 18 FCC
Rcd 396 (MB 2003) (``WHDT Order'').
D. Carriage Election by Stations
10. Section 210 of the SHVERA expressly requires only that the
Commission promulgate regulations
[[Page 24354]]
concerning the timing of the carriage elections related to the new
carriage provisions in the noncontiguous states. Section 210 of the
SHVERA also refers to the ``cost to subscribers of such transmissions''
but does not require rules for implementation. The Commission does not
regulate rates, costs or prices for satellite service to subscribers.
In this proceeding we propose regulations to implement the timing
required by the carriage requirements in the noncontiguous states, and
we will otherwise apply the rules pertaining to satellite carriage as
they were adopted to implement section 338 pursuant to the SHVIA; see
47 U.S.C. 338(a)(1), (b)(1), and (c), 47 CFR 76.66(g) and (h).
Therefore, carriage is mandated in the noncontiguous states for the
above dates in 2005 and 2007 when requested by a television station;
see proposed rule section 76.66(b)(2). The carriage procedures for
stations in the noncontiguous states shall follow the existing
requirements, except with respect to the carriage election process, as
proposed here; see proposed rule section 76.66(c)(6). Non-commercial
television stations do not elect carriage because they cannot elect
retransmission consent; see 47 U.S.C. 325(b)(2)(A). They are entitled
to mandatory carriage; see 47 U.S.C. 338, proposed rule section
76.66(c)(6). They are entitled to mandatory carriage; see 47 U.S.C.
338. We invite comment on these interpretations and proposals.
11. The analog signal carriage requirement mandated by the SHVERA
for satellite carriers serving noncontiguous states commences several
weeks before the carriage cycle that applies to satellite carriers and
broadcast stations in the contiguous states, which commences January 1,
2006, and continues until December 31, 2008; see 47 CFR 76.66(c). The
carriage election process enables stations to choose between carriage
pursuant to retransmission consent or mandatory carriage.
Retransmission consent is based on an agreement between a broadcast
station and satellite carrier, and includes a station's authorization
and terms for allowing its broadcast signal to be carried; see 47
U.S.C. 325(b). Broadcast stations and satellite carriers are required
to negotiate retransmission consent agreements in good faith; see 47
U.S.C. 338(b)(3)(c). If a station elects must-carry status, it is, in
general, entitled to insist without other terms that the satellite
carrier carry its signal in its local market; see 47 U.S.C. 338(a), 47
CFR 76.66(c).
12. To implement the carriage election timing requirements in
section 210 of the SHVERA, we propose to track the existing regulations
as closely as possible so that carriage elections in the noncontiguous
states will be synchronized with carriage elections in the contiguous
states quickly and smoothly. This synchronization is intended to make
the process simple and certain for both the local stations and the
satellite carriers. The first satellite carriage cycle (pursuant to the
SHVIA) will end on December 31, 2005. The carriage election deadline
for the second cycle is October 1, 2005, for carriage beginning January
1, 2006; see 47 CFR 76.66(c)(4). Because the analog carriage
requirement in the noncontiguous states is effective only 24 days
earlier, December 8, 2005, we propose to keep the same election
deadline of October 1, 2005. Thus, television broadcast stations in a
local market in the noncontiguous states would be required to make a
retransmission consent-mandatory carriage (must carry) election by
October 1, 2005, which is the same deadline as for local stations in
local-into-local markets in the contiguous states; see proposed section
76.66(c)(6). Carriage pursuant to a mandatory carriage election in the
contiguous states will begin on January 1, 2006, and carriage under our
proposed rules for noncontiguous states would begin by December 8,
2005; see 47 CFR 76.66(c)(2).
13. With respect to carriage of the digital signals of stations in
a noncontiguous state, we propose that the retransmission consent-must
carry election by a television station in a local market in the
noncontiguous states should be a two-step process with one election
that applies to the analog signal carriage, which commences December 8,
2005, and a second carriage election that would govern carriage of the
digital signal; see proposed rule section 76.66(c)(6). Carriage of
signals originating as digital must commence by June, 8, 2007, but may
begin pursuant to retransmission consent at any time. The deadline for
the second carriage election, for digital carriage, would be April 1,
2007, two months before carriage must commence. Alternatively, the
station's election by October 1, 2005, for its analog signal, could
also apply to its digital signal, for which mandatory carriage will
commence by June 8, 2007. We seek comment on our proposed two-step
approach and on the alternative of a single election. Two separate
elections would be consistent with the Commission's Cable Must Carry
decision in 2001 which permits stations broadcasting both analog and
digital signals to elect must carry for their analog signal and
retransmission consent for their digital signal. We believe that,
regardless of whether the carriage election is two-step or one-step,
stations in the noncontiguous states should be permitted to elect must
carry for their analog signals and negotiate for carriage of the
digital signals via retransmission consent before the mandatory digital
signal carriage takes effect. That is, until the digital carriage
rights for local stations in the noncontiguous states take effect as of
June 8, 2007, stations should be permitted to separately negotiate for
voluntary carriage of their digital signals even if they elect
mandatory carriage for their analog signals; see proposed section
76.66(c)(6). We seek comment on these proposals.
14. After the initial carriage cycle in the noncontiguous states,
the election cycle provided in section 76.66(c) will apply in the
future; see proposed section 76.66(c)(6). For example, the next
election after the upcoming 2005 election is required by October 1,
2008, for carriage beginning January 1, 2009; see 47 CFR 76.66(c)(2)
and (4). The election made by a station in 2008 would apply uniformly
to both its analog and digital signals, if both signals are continuing
to be broadcast.
15. A new television station in a noncontiguous state will have a
right to mandatory carriage for its analog signal if it begins service
after December 8, 2005, and for its digital signal if it begins service
after June 8, 2007. New stations should follow section 76.66(d)(3) of
the Commission's rules to notify the satellite carrier and elect
carriage; see 47 CFR 76.66(d)(3). We seek comments on our proposed
rules governing the carriage election process.
E. Availability of Signals
16. The SHVERA provides that in the noncontiguous states, satellite
retransmissions of local stations ``shall be made available to
substantially all of the satellite carrier's subscribers in each
station's local market;'' see 47 U.S.C. 338(a)(4). The SHVERA does not
define what is meant by ``substantially all'' subscribers. This wording
is consistent with the physical limitations of some satellite
technology that may not be able to reach all parts of a state or a DMA,
particularly where a spot beam is used to provide local stations. We
believe that this provision recognizes the existing physical
limitations on satellite service particularly in these noncontiguous
states. With respect to DBS service to Alaska, for example, the
Commission has stated that although reliable service usually requires a
minimum elevation angle of ten degrees
[[Page 24355]]
or more, service to Alaska is often offered at elevation angles as low
as five degrees. The Commission defined elevation angle ``as the upward
tilt of an earth station antenna measured in degrees relative to the
horizontal plane (ground), that is required to aim the earth station
antenna at the satellite. When aimed at the horizon, the elevation
angle is zero. If the satellite were below the horizon, the elevation
angle would be less than zero. If the earth station antenna were tilted
to a point directly overhead, it would have an elevation angle of
90[deg];'' see 47 U.S.C. 338(a)(4). In addition, the Commission
determined that in some areas of Alaska, from some orbit locations, the
elevation angle was less than five degrees, or even below the horizon,
thereby making service to those areas impossible. For example, the
elevation angle for Attu Island, Alaska is less than zero or below the
horizon for the 61.5[deg], 101[deg], and 110[deg] orbit locations and
only 4 for the 119[deg] location. We note, however, that satellite
carriers must abide by the geographic service rules that require
service where technically feasible. We welcome comment on the meaning
of ``substantially all of the carrier's subscribers in each station's
market.''
17. We do not believe it is necessary to adopt new rules to
implement this provision. This provision is similar to the Commission
interpretation adopted in the implementation of the SHVIA, that
satellite carriers that offer local-into-local service are not required
to provide service to every subscriber in a DMA. We seek comment on
whether it is necessary to adopt a rule on this point, and, if so, what
it should provide.
F. Areas Outside Local Markets
18. The SHVERA also addresses the anomalous situation in Alaska,
the only one of the fifty states that has areas that are not included
within any DMA. The eight major islands of Hawaii are currently
included within the Honolulu DMA. If the reference to ``noncontiguous
States'' is read to include territories and possessions, none of them
are in DMAs and would be subject to the special treatment described in
section 210. The statute requires a satellite carrier in Alaska to make
available the signals of all the local television stations that it
carries in at least one local market to substantially all of its
subscribers in areas outside of local markets who are in the same
State; see 47 U.S.C. 338(a)(4). In Alaska, there are three DMAs
covering the main population centers, but most of the State, which is
sparsely populated, is not included in a DMA. Thus, a satellite carrier
in Alaska would be required to provide the television stations that it
carries in at least one of the three DMAs, in which carriage of local
stations is required by section 210 of the SHVERA, to areas of the
State not included in DMAs. We believe that the statute speaks for
itself and that no special rule is required to implement this statutory
requirement. We seek comment on this conclusion.
G. Notification by Satellite Carrier
19. Section 210 of the SHVERA does not expressly require revisions
to the existing notification procedures in connection with the new
carriage requirements in the noncontiguous states. However, to ensure
that the purpose of section 210 is achieved, we seek comment on whether
to require satellite carriers with more than 5 million subscribers to
notify all television broadcast stations located in local markets in
the noncontiguous states that they are entitled to carriage of their
analog signals as of December 8, 2005, and of their digital signals as
of June 8, 2007, and that they must elect mandatory carriage or
retransmission consent by October 1, 2005 and April 1, 2007,
respectively, to be assured of carriage, as provided in sections
76.66(b)(2) and (c)(6). If required, this notification to the stations
should include a statement advising them of the opportunity to have
their analog and digital signals made available by the carrier to the
carrier's subscribers in the local market of each station. If adopted,
this notification would be required by September 1, 2005, with respect
to analog signal carriage election, and by March 1, 2007, with respect
to the carriage election for digital signals; see proposed section
76.66(d)(2)(iii). A new satellite carrier that meets this definition
after 2005 would be required to comply with section 76.66(d)(2) of the
Commission's rules regarding ``new local-into-local service'' (imposes
requirements when a new satellite carrier intends to retransmit a local
television station back into its local market); see 47 CFR 76.66(d)(2).
We seek comment on the need for this notification. We also request
comment on whether such notice should be required only for stations in
Alaska and Hawaii or also for television broadcast stations in all
noncontiguous territories and possessions. We also seek comment on the
need for a second notification 30 days prior to the second carriage
election deadline, which is proposed for April 1, 2007 for carriage of
digital signals. If, alternatively, the October 1, 2005 carriage
election applies to both the analog and digital signals of local
stations in the noncontiguous states, we propose that a second
notification would not be required prior to the commencement of
carriage of digital signals in June of 2007. We seek comment on these
proposals.
IV. Procedural Matters
A. Initial Regulatory Flexibility Certification
20. The Regulatory Flexibility Act of 1980, as amended (RFA),
requires that an initial 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. 605(b), 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996). 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). 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.
21. As described in this NPRM, we propose to amend section 76.66 of
the Commission's rules as required by section 210 of the SHVERA. We
expect these rule amendments, if adopted, will not have a significant
economic impact on a substantial number of small entities. The proposed
rules contained in this NPRM, as required by statute, are intended to
allow for local television stations to elect carriage pursuant to
retransmission consent or mandatory carriage with respect to satellite
carriers with more than 5 million subscribers in a non-contiguous
state. ``Satellite carriers,'' including Direct Broadcast Satellite
(DBS) carriers, will be directly and primarily affected by the proposed
rules, if adopted.
22. The satellite carriers covered by these proposed rules fall
within the SBA-recognized small business size standard of Cable and
Other Program Distribution; see 13 CFR 121.201. This size standard
provides that a small entity is one with $12.5 million or less in
annual receipts; see 13 CFR 121.201. The two satellite carriers that
are subject
[[Page 24356]]
to these proposed rule amendments because they currently have more than
five million subscribers, DirecTV (DirecTV is the largest DBS operator
and the second largest MVPD, serving an estimated 13.04 million
subscribers nationwide) and EchoStar (EchoStar, which provides service
under the brand name Dish Network, is the second largest DBS operator
and the fourth largest MVPD, serving an estimated 10.12 million
subscribers nationwide), report annual revenues that are in excess of
the threshold for a small business. We anticipate that any satellite
carrier that, in the future, has more than five million subscribers
would necessarily have more than $12.5 million in annual receipts.
Thus, the entities directly affected by the proposed rules are not
small entities.
23. We also note that, in addition to satellite carriers,
television broadcast stations are indirectly affected by the proposed
rule in that they potentially benefit from the satellite carriage
required by the rule and must elect between mandatory carriage and
retransmission consent. This carriage election, however, follows the
existing Commission rules. These existing rules currently permit
stations in the noncontiguous states to elect carriage if and when a
satellite carrier offers local-into-local service in their market. The
proposed rules would affect these election rights by merely providing a
date certain for carriage in these specified markets, which would not
have a significant economic impact.
24. Therefore, we certify that the proposed rules, if adopted, will
not have a significant economic impact on a substantial number of small
entities. The Commission will send a copy of this Notice of Proposed
Rulemaking, including a copy of this Initial Regulatory Flexibility
Certification, to the Chief Counsel for Advocacy of the SBA; see 5
U.S.C. 605(b). This initial certification will also be published in the
Federal Register; see 5 U.S.C. 605(b).
B. Initial Paperwork Reduction Act of 1995 Analysis
25. This NPRM has been analyzed with respect to the Paperwork
Reduction Act of 1995 (``PRA''), and contains proposed information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the proposed
information collection requirements contained in this NPRM, as required
by the PRA.
26. Written comments on the PRA proposed information collection
requirements must be submitted by the public, the Office of Management
and Budget (OMB), and other interested parties on or before July 8,
2005. Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
we seek specific comment on how we might ``further reduce the
information collection burden for small business concerns with fewer
than 25 employees;'' Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).
27. In addition to filing comments with the Office of the
Secretary, a copy of any comments on the proposed information
collection requirements contained herein should be submitted to Cathy
Williams, Federal Communications Commission, 445 12th St, SW., Room 1-
C823, Washington, DC 20554, or via the Internet to
Cathy.Williams@fcc.gov; and also to Kristy L. LaLonde, OMB Desk
Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503,
or via Internet to Kristy--L.--LaLonde@omb.eop.gov, or via fax at (202)
395-5167.
28. Further Information. For additional information concerning the
PRA proposed information collection requirements contained in this
NPRM, contact Cathy Williams at (202) 418-2918, or via the Internet to
Cathy.Williams@fcc.gov. If you would like to obtain or view a copy of
this revised information collection, OMB Control Number 3060-0980, you
may do so by visiting the FCC PRA Web page at: https://www.fcc.gov/omd/
pra.
C. Ex Parte Rules
29. Permit-but-Disclose. This proceeding will be treated as a
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under section 1.1206(b) of the Commission's
rules; see 47 CFR 1.1206(b); 47 CFR 1.1202, 1.1203. Ex parte
presentations are permissible if disclosed in accordance with
Commission rules, except during the Sunshine Agenda period when
presentations, ex parte or otherwise, are generally prohibited. Persons
making oral ex parte presentations are reminded that a memorandum
summarizing a presentation must contain a summary of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one-or two-sentence description of the views and arguments
presented is generally required; see 47 CFR 1.1206(b)(2). Additional
rules pertaining to oral and written presentations are set forth in
section 1.1206(b).
D. Filing Requirements
30. Comments and Replies. The SHVERA requires the Commission to
complete action within one year of enactment (December 8, 2004) to take
account of carriage elections in light of the schedule for carriage as
required in the noncontiguous states; see 47 U.S.C. 338(a)(4). The
carriage election deadline is October 1, 2005 for the next carriage
cycle. If the Commission waited until December 8, 2005, to implement
this provision, it would be too late for stations to elect between must
carry and retransmission consent for the carriage to commence on
December 8, 2005. In addition, the Commission is proposing to require
satellite carriers to provide notice to local stations in the
noncontiguous states concerning the new carriage requirements one month
prior to the carriage election deadline. Thus, the proposed
notification requirement, if adopted, must be in effect by September 1,
2005, 30 days prior to the carriage election deadline of October 1,
2005, with respect to carriage of the analog signals required to
commence by December 8, 2005. Consequently, the pleading cycle for
comments and replies must be compressed and expedited. Pursuant to
sections 1.415 and 1.419 of the Commission's rules, interested parties
may file comments on or before June 6, 2005, and reply comments on or
before June 20, 2005; see 47 CFR 1.415, 1419. Comments may be filed
using: (1) The Commission's Electronic Comment Filing System
(``ECFS''), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies; see 13 FCC Rcd 11322 (1998).
31. Electronic Filers: Comments may be filed electronically using
the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the
Federal eRulemaking Portal: https://www.regulations.gov. Filers should
follow the instructions provided on the Web site for submitting
comments. For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must
[[Page 24357]]
transmit one electronic copy of the comments for each docket or
rulemaking number referenced in the caption. In completing the
transmittal screen, filers should include their full name, U.S. Postal
Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions, filers should send an e-mail to
ecfs@fcc.gov, and include the following words in the body of the
message, ``get form.'' A sample form and directions will be sent in
response.
32. Paper Filers: Parties who choose to file by paper must file an
original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
33. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection 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. Documents
will be available electronically in ASCII, Word 97, and/or Adobe
Acrobat.
34. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: https://www.fcc.gov.
35. Additional Information. For additional information on this
proceeding, contact Eloise Gore, Eloise.Gore@fcc.gov, or Jim Keats,
Jim.Keats@fcc.gov, of the Media Bureau, Policy Division, (202) 418-
2120.
V. Ordering Clauses
36. Accordingly, it is ordered that pursuant to section 210 of the
Satellite Home Viewer Extension and Reauthorization Act of 2004, and
sections 1, 4(i) and (j), and 338(a)(4) of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i) and (j), and 338(a)(4), notice
is hereby given of the proposals and tentative conclusions described in
this Notice of Proposed Rulemaking.
37. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.
List of Subjects in 47 CFR Part 76
Cable television, Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed 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
1. The authority citation for 47 CFR part 76 continues to read as
follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302a, 307, 308,
309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 533, 534,
535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558,
560, 561, 571, 572, and 573.
2. Section 76.66 is amended by revising paragraphs (b)(2) and
(c)(4), by adding paragraph (c)(6), redesignate paragraphs (d)(2)(iii)
and (d)(2)(iv) as paragraphs (d)(2)(iv) and (d)(2)(v) and by adding a
new paragraph (d)(2)(iii) to read as follows:
Sec. 76.66 Satellite broadcast signal carriage.
* * * * *
(b) * * *
(2) A satellite carrier that offers multichannel video programming
distribution service in the United States to more than 5,000,000
subscribers shall, no later than December 8, 2005, carry upon request
the signal originating as an analog signal of each television broadcast
station that is located in a local market in a noncontiguous state; and
shall, no later than June 8, 2007, carry upon request the signals
originating as digital signals of each television broadcast station
that is located in a local market in a noncontiguous State.
* * * * *
(c) * * *
(4) Except as provided in paragraphs (c)(6), (d)(2) and (d)(3) of
this section, local commercial television broadcast stations shall make
their retransmission consent-mandatory carriage election by October 1st
of the year preceding the new cycle for all election cycles after the
first election cycle.
* * * * *
(6) A commercial television broadcast station located in a local
market in a noncontiguous State shall make its retransmission consent-
mandatory carriage election by October 1, 2005, for carriage of its
signal that originates as an analog signal for carriage commencing on
December 8, 2005 and ending on December 31, 2008, and by April 1, 2007,
for its signal that originates as a digital signal for carriage
commencing on June 8, 2007 and ending on December 31, 2008. For analog
and digital signal carriage cycles commencing after December 31, 2008,
such stations shall follow the election cycle in paragraphs (c)(2) and
(c)(4) of this section. A noncommercial television broadcast station
located in a local market in Alaska or Hawaii must request carriage by
October 1, 2005, for carriage of its signal that originates as an
analog signal for carriage commencing on December 8, 2005 and ending on
December 31, 2008, and for its signal that originates as a digital
signal for carriage commencing on June 8, 2007 and ending on December
31, 2008.
* * * * *
(d) * * *
(2) * * *
(iii) A satellite carrier with more than five million subscribers
shall provide the notice as required by paragraphs (d)(2)(i) and
(d)(2)(ii) of this section to each television broadcast station located
in a local market in the noncontiguous States, not later than September
1, 2005 with respect to carriage of analog signals and not later than
March 1, 2007 with respect to carriage of digital signals; provided,
however, that the notice shall
[[Page 24358]]
also describe the carriage requirements pursuant to section 338(a)(4)
of title 47, United States Code, and paragraph (b)(2) of this section.
* * * * *
[FR Doc. 05-9290 Filed 5-6-05; 8:45 am]
BILLING CODE 6712-01-P
