Network Affiliated Stations Alliance (NASA) Petition for Inquiry Into Network Practices and Motion for Declaratory Ruling, 56999-57001 [E8-23152]
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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations
that the entries for this value that appear
in the ‘‘wage index’’ column of the table
itself, as well as the corresponding entry
for CBSA 16300 in Table 8 (‘‘FY 2009
Wage Index for Urban Areas Based on
CBSA Labor Market Areas,’’ which
appeared as an addendum to the August
8, 2008 final rule), both correctly reflect
this value as 0.8919.
In addition, in the addendum to the
August 8, 2008 final rule, we are
revising an entry in Table 9 (‘‘FY 2009
Wage Index Based on CBSA Labor
Market Areas for Rural Areas’’) in order
to correct a technical error made to the
wage data for one inpatient hospital
provider in rural New Hampshire. We
are revising the wage index value
displayed in Table 9 for rural New
Hampshire from ‘‘1.0182’’ to the
corrected value of ‘‘1.0219’’. Since this
revision involves only a single entry in
Table 9, we are not republishing the
table in its entirety in this notice;
however, we note that the corrected
version of this table is available on the
SNF PPS Web site, which can be
accessed online at https://
www.cms.hhs.gov/SNFPPS/.
ebenthall on PROD1PC60 with RULES
III. Correction of Errors
In FR Doc. E8–17948 (73 FR 46416),
make the following corrections:
1. On page 46430, in Table 10, the
wage index value ‘‘0.8924’’ displayed in
the title is revised to read ‘‘0.8919’’.
2. On page 46462, in Table 9, in the
wage index column for New Hampshire,
State code 30, the wage index value
‘‘1.0182’’ is revised to read ‘‘1.0219’’.
IV. Waiver of Proposed Rulemaking
and Delayed Effective Date
We ordinarily publish a proposed rule
in the Federal Register to provide a
period for public comment before the
provisions of a rule such as this take
effect in accordance with section 553(b)
of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)). We also
ordinarily provide a 30-day delay in the
effective date of the provisions of a
notice in accordance with section 553(d)
of the APA (5 U.S.C. 553(d)). However,
we can waive both the notice and
comment procedure and the 30-day
delay in effective date if the Secretary
finds, for good cause, that a notice and
comment process is impracticable,
unnecessary, or contrary to the public
interest, and incorporates a statement of
the finding and the reasons for it in the
notice.
We find for good cause that it is
unnecessary to undertake notice and
comment rulemaking because this
notice merely provides technical
corrections to the regulations. We are
not making substantive changes to our
VerDate Aug<31>2005
15:26 Sep 30, 2008
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payment methodologies or policies, but
rather, are simply implementing
correctly the payment methodologies
and policies that we previously
proposed, received comment on, and
subsequently finalized. The public has
already had the opportunity to comment
on these payment methodologies and
policies, and this correction notice is
intended solely to ensure that the FY
2009 SNF PPS final rule accurately
reflects them. Therefore, we believe that
undertaking further notice and comment
procedures to incorporate these
corrections into the final rule is
unnecessary and contrary to the public
interest.
Further, we believe a delayed
effective date is unnecessary because
this correction notice merely corrects
inadvertent technical errors. The
changes noted above do not make any
substantive changes to the SNF PPS
payment methodologies or policies.
Moreover, we regard imposing a delay
in the effective date as being contrary to
the public interest. We believe that it is
in the public interest for providers to
receive appropriate SNF PPS payments
in as timely a manner as possible and
to ensure that the FY 2009 SNF PPS
final rule accurately reflects our
payment methodologies, payment rates,
and policies. Therefore, we find good
cause to waive notice and comment
procedures, as well as the 30-day delay
in effective date.
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: September 29, 2008.
Ashley Files Flory,
Deputy Executive Secretary to the
Department.
[FR Doc. E8–23253 Filed 9–30–08; 8:45 am]
BILLING CODE 4120–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 25
Satellite Communications
CFR Correction
In title 47 of the Code of Federal
Regulations, parts 20 to 39, revised as of
October 1, 2007, in § 25.208, on page
239, in Table 1G in paragraph (g) and,
on page 240, in Table 1H in paragraph
(h) make the following change:
For each entry in the tables, remove
the number ‘‘40’’ from the third column,
‘‘Percentage of time during which
EPFDdown level may not be exceeded’’
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56999
and add it to the fourth column,
‘‘Reference bandwidth (kHz)’’.
[FR Doc. E8–23115 Filed 9–30–08; 8:45 am]
BILLING CODE 1505–01–D
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[FCC 08–192]
Network Affiliated Stations Alliance
(NASA) Petition for Inquiry Into
Network Practices and Motion for
Declaratory Ruling
Federal Communications
Commission.
ACTION: Notice of petition for inquiry.
AGENCY:
SUMMARY: NASA and the Networks
request that the Commission affirm a
number of basic principles relating to
the Commission rules governing
network/affiliate relationships to avoid
future disputes. Since that time, each of
the Networks engaged in constructive
discussions with its respective affiliates
and revised its current standard
affiliation agreement to address the
central issues raised by NASA.
Accordingly, NASA and the Networks
agree that a Commission ruling with
respect to those particular contract
provisions is no longer necessary.
Pursuant to the Commission’s rules, we
grant NASA’s request for declaratory
ruling in part and grant the Joint
Request in full.
DATES: October 1, 2008.
ADDRESSES: You may submit comments,
identified by FCC 08–192, 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, please contact Holly Saurer,
Holly.Saurer@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120.
E:\FR\FM\01OCR1.SGM
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57000
Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations
This is a
summary of the Federal
Communications Commission’s
Declaratory Ruling in FCC 08–192,
adopted August 20, 2008, and released
September 3, 2008. The full text of this
document is available for public
inspection and copying during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street, SW., CY–
A257, Washington, DC 20554. These
documents will also be available via
ECFS (https://www.fcc.gov/cgb/ecfs/).
(Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text
may be purchased from the
Commission’s copy contractor, 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
Summary of the Final Rule
I. Introduction
1. The Commission has before it a
Petition for Inquiry into Network
Practices (Petition), a Motion for
Declaratory Ruling (Motion), and a Joint
Request of Network Affiliated Stations
Alliance (NASA) and the ABC, CBS,
NBC and Fox Television Networks
(Networks) to Resolve NASA Petition.
NASA and the Networks request that
the Commission affirm a number of
basic principles relating to the
Commission rules governing network/
affiliate relationships to avoid future
disputes. Pursuant to § 1.2 of the
Commission’s rules, we grant NASA’s
request for declaratory ruling in part
and grant the Joint Request in full.
ebenthall on PROD1PC60 with RULES
II. Background
2. In its Petition, NASA asked the
Commission to institute an inquiry as to
whether certain alleged practices of the
Networks regarding their affiliates were
consistent with the Commission’s
network rules, the Communications Act,
and the public interest. NASA
subsequently filed the Motion, in which
it sought a declaratory ruling that
certain specified practices engaged in by
the Networks are inconsistent with the
Communications Act and the
Commission’s rules and policies. In
response, the Networks contended that
it would be improper for the
Commission to involve itself in the
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15:26 Sep 30, 2008
Jkt 217001
private contractual relationships
between networks and affiliates.
3. On January 19, 2005, NASA filed a
Third Update of Record and Continued
Request that Commission Issue
Declaratory Ruling on Basic Principles
in which it stated that each of the
Networks has reformed its contracts to
address the central issues raised by
NASA. At the same time, NASA asked
the Commission to clarify the meaning
of the existing network/affiliate rules,
consistent with the reformed affiliation
agreements. In response, the Networks
asked the Commission to reject NASA’s
request and to close this proceeding,
arguing that there is no longer any basis
for Commission action.
4. On June 9, 2008, NASA and the
Networks filed the Joint Request, stating
that they had revised their standard
affiliation agreements to address the
issues raised by NASA with respect to
particular contractual provisions, and
that a Commission ruling regarding the
resolved contractual issues is
unnecessary. Nevertheless, they state
that ‘‘NASA and the Networks have a
mutual interest in avoiding future
controversies regarding the meaning of
the Commission’s network/affiliate rules
and in assuring that the rules of the road
for the network/affiliate relationship are
clear.’’ The parties thus request that the
Commission issue an order ratifying a
number of principles ‘‘with which both
NASA and the Networks agree,
consistent with the revisions to the
standard affiliation agreements by the
Networks and the amendments
negotiated by the Networks and their
affiliates to their current affiliation
agreements.’’
III. Discussion
5. Under § 1.2 of the rules, the
Commission ‘‘may * * * issue a
declaratory ruling terminating a
controversy or removing uncertainty.’’
The Commission has broad discretion
whether to issue such a ruling. We agree
with NASA and the Networks that
additional guidance concerning licensee
control, the right-to-reject rule, and the
option-time rule would be helpful to
avoid future disputes, and that the
principles identified below are
consistent with the Act and our rules.
A. Licensee Control
6. Section 310(d) of the
Communications Act prohibits the
direct or indirect transfer of control of
any station license to another entity
without a Commission finding that ‘‘the
public interest, convenience, and
necessity will be served thereby.’’ We
affirm that the following principle
identified in the Joint Request is
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Fmt 4700
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consistent with the Act and the
Commission’s rules:
• Affiliates, as the licensees of local
television stations, must retain ultimate
control over station programming,
operations and other critical decisions
with respect to their stations, and
network affiliations must not undercut
this basic control. Retention of this
control by Commission licensees is
required by section 310(d) of the
Communications Act and the
Commission’s rules.
B. Right-to-Reject Rule
7. To ensure that licensees retain
sufficient control over programming to
fulfill their obligation to operate in the
public interest, the Commission’s rightto-reject rule prohibits a television
broadcast station from entering into
‘‘any contract, arrangement, or
understanding, express or implied, with
a network organization’’ that prevents or
hinders the station from ‘‘[r]ejecting or
refusing network programs which the
station reasonably believes to be
unsatisfactory or unsuitable or contrary
to the public interest’’ or from
‘‘[s]ubstituting a program which, in the
station’s opinion, is of greater local or
national importance.’’
8. We affirm that the following
principles relating to the right-to-reject
rule identified in the Joint Request are
consistent with the Act and the
Commission’s rules:
• Pursuant to § 73.658(e) of the
Commission’s rules, networks and their
affiliates are prohibited from ‘‘having
any contract * * * which, with respect
to programs offered or already
contracted for pursuant to an affiliation
contract, prevents or hinders the station
from: (1) Rejecting or refusing network
programs which the station reasonably
believes to be unsatisfactory or
unsuitable or contrary to the public
interest, or (2) Substituting a program
which, in the station’s opinion, is of
greater local or national importance.’’
This language does not give an affiliate
the unfettered right to preempt network
programs, but where a preemption is
made pursuant to one of the two prongs
of the right-to-reject rule, the economic
consequence to the affiliate is irrelevant.
• Consistent with the Commission’s
right-to-reject rule, affiliation
agreements should not include
provisions that limit right-to-reject
preemptions for ‘‘greater local or
national importance’’ to breaking news
events or any other specific type of
programming. Affiliation agreements
should not include provisions that
prevent affiliates from rejecting a
program as ‘‘unsatisfactory or unsuitable
or contrary to the public interest’’
E:\FR\FM\01OCR1.SGM
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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations
because they have carried a similar
network program in the past. Affiliation
agreements should not include
provisions that impose monetary or
non-monetary penalties on affiliates
based on preemptions protected by the
right-to-reject rule. Affiliation
agreements should not include
provisions that subject right-to-reject
preemptions to, or count them against,
contractual preemption limits (or
‘‘baskets’’) (though baskets are perfectly
appropriate for preemptions not
protected by the right-to-reject rule).
ebenthall on PROD1PC60 with RULES
C. Option-Time Rule
9. The Commission’s option-time rule
proscribes any clause in an affiliation
agreement that ‘‘prevents or hinders the
station from scheduling programs before
the network agrees to utilize the time
during which such programs are
scheduled, or which requires the station
to clear time already scheduled when
the network organization seeks to utilize
the time.’’ In its Petition, NASA argued
that certain contract provisions, with
respect to both analog and digital
broadcasting, violated the option-time
rule by allowing networks to reserve an
option to use an affiliate’s broadcast
time without committing to supply
programming for the optioned time. To
clarify the reciprocal obligations of
networks and affiliates under the
Commission’s option-time rule, we
affirm that the following principles set
forth in the Joint Request are consistent
with the Act and our rules:
• Consistent with the option-time
rule, affiliation agreements should not
include provisions that result in the
optioning of the station’s time to the
network organization or that have the
same restraining effect as time
optioning. Network affiliation
agreements may not, under the
Commission’s option-time rule, obligate
stations to carry a network’s
programming or other content during
certain time periods without
reciprocally obligating the network to
provide the content for those time
periods. Similarly, network affiliation
agreements may not require affiliates to
carry, at some unspecified future date,
unspecified digital content that the
network may (or may not) choose to
offer.
IV. Ordering Clauses
10. Accordingly, it is ordered that the
Network Affiliated Stations Alliance’s
Motion for Declaratory Ruling filed June
22, 2001 is granted in part as discussed
above.
11. It is further ordered that the Joint
Request is granted and that this
proceeding is terminated.
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15:26 Sep 30, 2008
Jkt 217001
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8–23152 Filed 9–30–08; 8:45 am]
57001
without the customary 30-day delay
following publication, the changes will
appear in the next revision of Title 49.
II. Section by Section Review
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 171, 172, 173, 175, 176,
178, 179, and 180
[Docket No. PHMSA–2008–0227 (HM–244A)]
RIN 2137–AE40
Hazardous Materials Regulations:
Minor Editorial Corrections and
Clarifications
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This final rule corrects
editorial errors, makes minor regulatory
changes and, in response to requests for
clarification, improves the clarity of
certain provisions in the Hazardous
Materials Regulations (HMR). The
intended effect of this rule is to enhance
the accuracy and reduce
misunderstandings of the regulations.
The amendments contained in this rule
are non-substantive changes.
DATES: Effective date: October 1, 2008.
FOR FURTHER INFORMATION CONTACT:
Eileen Edmonson, Office of Hazardous
Materials Standards, 202–366–8553,
PHMSA, East Building, PHH–10, 1200
New Jersey Avenue, SE., Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
I. Background
PHMSA annually reviews the
Hazardous Materials Regulations (HMR;
49 CFR parts 171–180) to identify
typographical and other errors, outdated
addresses or other contact information,
and similar errors. In this final rule, we
are correcting typographical errors;
incorrect CFR references and citations;
an incorrect address; inaccurate office
names; inconsistent use of terminology;
misstatements of certain regulatory
requirements; and inadvertent
omissions of information. In addition,
this final rule revises the address for
PHMSA to indicate the new location for
the headquarters office. Because these
amendments do not impose new
requirements, notice and public
comment procedures are unnecessary.
By making these amendments effective
PO 00000
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The following is a summary by
section of the major changes made in
this final rule. The summary does not
include minor editorial corrections such
as punctuation errors, or similar minor
revisions.
Part 171
Section 171.3
This section prescribes requirements
for transporting hazardous waste under
the HMR. Paragraph (b)(1) requires each
motor vehicle to be marked in
accordance with 49 CFR 390.21 and
1058.2. Because § 1058.2 no longer
exists, in this final rule we are removing
this reference in paragraph (b)(1).
Section 171.7
Paragraph (a) of § 171.7 lists materials
incorporated by reference into the HMR.
In paragraph (a)(3), we are correcting the
mailing address for the American
Pyrotechnic Association.
Paragraph (b) of § 171.7 lists
information materials that are not
incorporated by reference. In a final rule
published on January 28, 2008 (Docket
No. 05–21812 (HM–218D); 73 FR 4699,
effective October 1, 2008), we added in
paragraph (b) an entry for the
Compressed Gas Association’s (CGA’s)
publication, CGA C–1.1 in § 171.7(b). A
new paragraph (g)(6) in § 180.205 listed
CGA C–1.1 as an example of training
material that may be used by persons
who requalify cylinders using the
volumetric expansion test method.
Following the publication of the HM–
215D final rule, we received an appeal
from Hydro-Test (PHMSA–2005–21812–
0025) asking us to either remove this
reference to CGA C–1.1 or add examples
of other training materials that may be
used. Hydro-Test noted that referencing
only the CGA publication in the HMR
could suggest that other training
materials are not acceptable. We added
CGA C–1.1 as an example of guidance
material that may be used to assist
requalifiers in setting up their cylinder
training procedures and recordkeeping
requirements. The publication is not a
stand alone tool for training persons on
how to perform requalification of
cylinders using the volumetric
expansion test method. However, to
alleviate confusion for cylinder
requalifiers, in this final rule, we are
removing the new entry for CGA C–1.1
from § 171.7(b) and paragraph (g)(6)
from § 180.205.
E:\FR\FM\01OCR1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 191 (Wednesday, October 1, 2008)]
[Rules and Regulations]
[Pages 56999-57001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23152]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[FCC 08-192]
Network Affiliated Stations Alliance (NASA) Petition for Inquiry
Into Network Practices and Motion for Declaratory Ruling
AGENCY: Federal Communications Commission.
ACTION: Notice of petition for inquiry.
-----------------------------------------------------------------------
SUMMARY: NASA and the Networks request that the Commission affirm a
number of basic principles relating to the Commission rules governing
network/affiliate relationships to avoid future disputes. Since that
time, each of the Networks engaged in constructive discussions with its
respective affiliates and revised its current standard affiliation
agreement to address the central issues raised by NASA. Accordingly,
NASA and the Networks agree that a Commission ruling with respect to
those particular contract provisions is no longer necessary. Pursuant
to the Commission's rules, we grant NASA's request for declaratory
ruling in part and grant the Joint Request in full.
DATES: October 1, 2008.
ADDRESSES: You may submit comments, identified by FCC 08-192, 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, please contact Holly Saurer, Holly.Saurer@fcc.gov, of the
Policy Division, Media Bureau, (202) 418-2120.
[[Page 57000]]
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Declaratory Ruling in FCC 08-192, adopted
August 20, 2008, and released September 3, 2008. The full text of this
document is available for public inspection and copying during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These
documents will also be available via ECFS (https://www.fcc.gov/cgb/ecfs/
). (Documents will be available electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text may be purchased from the
Commission's copy contractor, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. To request this document in accessible formats
(computer diskettes, large print, audio recording, and Braille), send
an e-mail to fcc504@fcc.gov or call the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Summary of the Final Rule
I. Introduction
1. The Commission has before it a Petition for Inquiry into Network
Practices (Petition), a Motion for Declaratory Ruling (Motion), and a
Joint Request of Network Affiliated Stations Alliance (NASA) and the
ABC, CBS, NBC and Fox Television Networks (Networks) to Resolve NASA
Petition. NASA and the Networks request that the Commission affirm a
number of basic principles relating to the Commission rules governing
network/affiliate relationships to avoid future disputes. Pursuant to
Sec. 1.2 of the Commission's rules, we grant NASA's request for
declaratory ruling in part and grant the Joint Request in full.
II. Background
2. In its Petition, NASA asked the Commission to institute an
inquiry as to whether certain alleged practices of the Networks
regarding their affiliates were consistent with the Commission's
network rules, the Communications Act, and the public interest. NASA
subsequently filed the Motion, in which it sought a declaratory ruling
that certain specified practices engaged in by the Networks are
inconsistent with the Communications Act and the Commission's rules and
policies. In response, the Networks contended that it would be improper
for the Commission to involve itself in the private contractual
relationships between networks and affiliates.
3. On January 19, 2005, NASA filed a Third Update of Record and
Continued Request that Commission Issue Declaratory Ruling on Basic
Principles in which it stated that each of the Networks has reformed
its contracts to address the central issues raised by NASA. At the same
time, NASA asked the Commission to clarify the meaning of the existing
network/affiliate rules, consistent with the reformed affiliation
agreements. In response, the Networks asked the Commission to reject
NASA's request and to close this proceeding, arguing that there is no
longer any basis for Commission action.
4. On June 9, 2008, NASA and the Networks filed the Joint Request,
stating that they had revised their standard affiliation agreements to
address the issues raised by NASA with respect to particular
contractual provisions, and that a Commission ruling regarding the
resolved contractual issues is unnecessary. Nevertheless, they state
that ``NASA and the Networks have a mutual interest in avoiding future
controversies regarding the meaning of the Commission's network/
affiliate rules and in assuring that the rules of the road for the
network/affiliate relationship are clear.'' The parties thus request
that the Commission issue an order ratifying a number of principles
``with which both NASA and the Networks agree, consistent with the
revisions to the standard affiliation agreements by the Networks and
the amendments negotiated by the Networks and their affiliates to their
current affiliation agreements.''
III. Discussion
5. Under Sec. 1.2 of the rules, the Commission ``may * * * issue a
declaratory ruling terminating a controversy or removing uncertainty.''
The Commission has broad discretion whether to issue such a ruling. We
agree with NASA and the Networks that additional guidance concerning
licensee control, the right-to-reject rule, and the option-time rule
would be helpful to avoid future disputes, and that the principles
identified below are consistent with the Act and our rules.
A. Licensee Control
6. Section 310(d) of the Communications Act prohibits the direct or
indirect transfer of control of any station license to another entity
without a Commission finding that ``the public interest, convenience,
and necessity will be served thereby.'' We affirm that the following
principle identified in the Joint Request is consistent with the Act
and the Commission's rules:
Affiliates, as the licensees of local television stations,
must retain ultimate control over station programming, operations and
other critical decisions with respect to their stations, and network
affiliations must not undercut this basic control. Retention of this
control by Commission licensees is required by section 310(d) of the
Communications Act and the Commission's rules.
B. Right-to-Reject Rule
7. To ensure that licensees retain sufficient control over
programming to fulfill their obligation to operate in the public
interest, the Commission's right-to-reject rule prohibits a television
broadcast station from entering into ``any contract, arrangement, or
understanding, express or implied, with a network organization'' that
prevents or hinders the station from ``[r]ejecting or refusing network
programs which the station reasonably believes to be unsatisfactory or
unsuitable or contrary to the public interest'' or from
``[s]ubstituting a program which, in the station's opinion, is of
greater local or national importance.''
8. We affirm that the following principles relating to the right-
to-reject rule identified in the Joint Request are consistent with the
Act and the Commission's rules:
Pursuant to Sec. 73.658(e) of the Commission's rules,
networks and their affiliates are prohibited from ``having any contract
* * * which, with respect to programs offered or already contracted for
pursuant to an affiliation contract, prevents or hinders the station
from: (1) Rejecting or refusing network programs which the station
reasonably believes to be unsatisfactory or unsuitable or contrary to
the public interest, or (2) Substituting a program which, in the
station's opinion, is of greater local or national importance.'' This
language does not give an affiliate the unfettered right to preempt
network programs, but where a preemption is made pursuant to one of the
two prongs of the right-to-reject rule, the economic consequence to the
affiliate is irrelevant.
Consistent with the Commission's right-to-reject rule,
affiliation agreements should not include provisions that limit right-
to-reject preemptions for ``greater local or national importance'' to
breaking news events or any other specific type of programming.
Affiliation agreements should not include provisions that prevent
affiliates from rejecting a program as ``unsatisfactory or unsuitable
or contrary to the public interest''
[[Page 57001]]
because they have carried a similar network program in the past.
Affiliation agreements should not include provisions that impose
monetary or non-monetary penalties on affiliates based on preemptions
protected by the right-to-reject rule. Affiliation agreements should
not include provisions that subject right-to-reject preemptions to, or
count them against, contractual preemption limits (or ``baskets'')
(though baskets are perfectly appropriate for preemptions not protected
by the right-to-reject rule).
C. Option-Time Rule
9. The Commission's option-time rule proscribes any clause in an
affiliation agreement that ``prevents or hinders the station from
scheduling programs before the network agrees to utilize the time
during which such programs are scheduled, or which requires the station
to clear time already scheduled when the network organization seeks to
utilize the time.'' In its Petition, NASA argued that certain contract
provisions, with respect to both analog and digital broadcasting,
violated the option-time rule by allowing networks to reserve an option
to use an affiliate's broadcast time without committing to supply
programming for the optioned time. To clarify the reciprocal
obligations of networks and affiliates under the Commission's option-
time rule, we affirm that the following principles set forth in the
Joint Request are consistent with the Act and our rules:
Consistent with the option-time rule, affiliation
agreements should not include provisions that result in the optioning
of the station's time to the network organization or that have the same
restraining effect as time optioning. Network affiliation agreements
may not, under the Commission's option-time rule, obligate stations to
carry a network's programming or other content during certain time
periods without reciprocally obligating the network to provide the
content for those time periods. Similarly, network affiliation
agreements may not require affiliates to carry, at some unspecified
future date, unspecified digital content that the network may (or may
not) choose to offer.
IV. Ordering Clauses
10. Accordingly, it is ordered that the Network Affiliated Stations
Alliance's Motion for Declaratory Ruling filed June 22, 2001 is granted
in part as discussed above.
11. It is further ordered that the Joint Request is granted and
that this proceeding is terminated.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-23152 Filed 9-30-08; 8:45 am]
BILLING CODE 6712-01-P
