Implementation of Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA); Amendments to Section 340 of the Communications Act, 44198-44209 [2010-18538]

Download as PDF 44198 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules etofenprox, 2-(4-ethoxyphenyl)-2methylpropyl 3-phenoxybenzyl ether, in or on the commodity. Commodity Parts per million Rice, grain ............................ 0.01 (b) Section 18 emergency exemptions. [Reserved] (c) Tolerances with regional registrations. [Reserved] (d) Indirect or inadvertent residues. [Reserved] [FR Doc. 2010–18373 Filed 7–27–10; 8:45 am] BILLING CODE 6560–50–S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA–HQ–OPPT–2009–0686; FRL–8828–3] RIN 2070–AB27 Proposed Significant New Use Rule for Multi-walled Carbon Nanotubes; Reopening of Comment Period Environmental Protection Agency (EPA). ACTION: Proposed rule; reopening of comment period. AGENCY: EPA issued a proposed rule in the Federal Register of February 3, 2010, concerning a proposed significant new use rule (SNUR) for the chemical substance identified generically as multi-walled carbon nanotubes (P–08– 199). In order to address public comments, EPA is adding information to the docket and reopening the comment period. This document reopens the comment period for 30 days. DATES: Comments, identified by docket identification (ID) number EPA–HQ– OPPT–2009–0686, must be received on or before August 27, 2010. ADDRESSES: Follow the detailed instructions as provided under ADDRESSES in the Federal Register document of February 3, 2010. FOR FURTHER INFORMATION CONTACT: For technical information contact: Jim Alwood, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (202) 564–8974; e-mail address: alwood.jim@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554– 1404; e-mail address: TSCAHotline@epa.gov. erowe on DSK5CLS3C1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 This document reopens the public comment period established in the Federal Register of February 3, 2010 (75 FR 5546) (FRL–8796–7). In that document, EPA proposed a SNUR for the chemical substance identified generically as multi-walled carbon nanotubes as identified in Premanufacture Notice (PMN) P–08–199. EPA received several comments in response to the proposed SNUR. EPA will address those comments when it issues the final SNUR. One commenter noted that neither the proposed rule nor the docket contained specific carbon nanotube data or data supporting the nature of the dermal concern for carbon nanotubes. That commenter stated it was not possible to assess the Agency’s evaluation and determination under § 721.170(b)(3)(ii) based on the current record. Another commenter noted that EPA’s subsequent reviews and concerns for carbon nanotubes have expanded and that the proposed SNUR should reflect those updated data. EPA has added additional explanation and references of its health and environmental concerns for carbon nanotubes to the public docket for consideration. EPA is hereby reopening the comment period for 30 days to allow for any public comments in response to this additional data. To submit comments, or access the docket, please follow the detailed instructions as provided under ADDRESSES in the February 3, 2010 Federal Register document. If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: List of Subjects in 40 CFR Part 721 Environmental protection, Chemicals, Hazardous substances, Reporting, and recordkeeping requirements. Dated: July 15, 2010. Wendy C. Hamnett, Director, Office of Pollution Prevention and Toxics. [FR Doc. 2010–18543; Filed 7–27–10; 8:45 am] BILLING CODE 6560–50–S PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 10–148; FCC 10–130] Implementation of Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA); Amendments to Section 340 of the Communications Act Federal Communications Commission. ACTION: Proposed rule. AGENCY: In this document, the Commission proposes changes to its satellite television ‘‘significantly viewed’’ rules to implement Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA). Section 203 of the STELA amends Section 340 of the Communications Act, which gives satellite carriers the authority to offer out-of-market but ‘‘significantly viewed’’ broadcast television network stations as part of their local service to subscribers. The STELA requires the Commission to issue final rules in this proceeding on or before November 24, 2010. DATES: Comments are due on or before August 17, 2010; reply comments are due on or before August 27, 2010. ADDRESSES: You may submit comments, identified by MB Docket No. 10–148, by any of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Federal Communications Commission’s Electronic Comment Filing System (ECFS) Web Site: https:// fjallfoss.fcc.gov/ecfs/. Follow the instructions for submitting comments. • Mail: All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. • 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 section V. ‘‘PROCEDURAL MATTERS’’ heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, Evan Baranoff, Evan.Baranoff@fcc.gov, of the Media Bureau, Policy Division, (202) 418– 7142. SUMMARY: E:\FR\FM\28JYP1.SGM 28JYP1 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules This is a summary of the Commission’s Notice of Proposed Rulemaking (NPRM), FCC 10– 130, adopted on July 22, 2010, and released on July 23, 2010. The full text of this document is available electronically via ECFS at https:// fjallfoss.fcc.gov/ecfs/or may be downloaded at https://hraunfoss.fcc.gov/ edocs-public/attachmatch/FCC–10– 130.pdf. (Documents will be available electronically in ASCII, Word 97, and/ or Adobe Acrobat.) This document is also 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. The complete text may be purchased from the Commission’s copy contractor, 445 12th Street, SW., Room CY–B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an e-mail to fcc504@fcc.gov or calling the Commission’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). SUPPLEMENTARY INFORMATION: Summary of the Notice of Proposed Rulemaking erowe on DSK5CLS3C1PROD with PROPOSALS I. Introduction 1. In this Notice of Proposed Rulemaking (NPRM), we propose changes to our satellite television ‘‘significantly viewed’’ rules to implement Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA).1 Section 203 of the STELA amends Section 340 of the Communications Act of 1934 (‘‘Communications Act’’ or ‘‘Act’’), which gives satellite carriers the authority to offer out-of-market but ‘‘significantly viewed’’ broadcast television network stations as part of their local service to subscribers.2 The STELA requires the Commission to issue final rules in this 1 The Satellite Television Extension and Localism Act of 2010 (STELA) sec. 203, Pub. L. 111–175, 124 Stat. 1218, 1245 (2010) (sec. 203 codified as amended at 47 U.S.C. 340, other STELA amendments codified in scattered sections of 17 and 47 U.S.C.). The STELA was enacted on May 27, 2010 (S. 3333, 111th Cong.). This proceeding to implement STELA sec. 203 (titled ‘‘Significantly Viewed Stations’’), 124 Stat. at 1245, and the related statutory copyright license provisions in STELA sec. 103 (titled ‘‘Modifications to Statutory License for Satellite Carriers in Local Markets’’), 124 Stat. at 1227–28, is one of a number of Commission proceedings that are required to implement the STELA. 2 47 U.S.C. 340. We note that the nature of SV carriage under Section 340 is permissive (and not mandatory), meaning the statute applies when a satellite carrier chooses to carry an SV station and has obtained retransmission consent from such SV station. Id. at 340(d). VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 proceeding on or before Wednesday, November 24, 2010.3 2. Significantly viewed (‘‘SV’’) stations are television broadcast stations that the Commission has determined have sufficient over-the-air (i.e., non-cable or non-satellite) viewing 4 to be considered local for certain purposes and so are not constrained by the boundary of that station’s local market or Designated Market Area (‘‘DMA’’). The individual TV station, or cable operator or satellite carrier that seeks to carry the station, may petition the Commission to obtain ‘‘significantly viewed’’ status for the station,5 and placement on the SV List.6 The designation of ‘‘significantly viewed’’ status allows a station assigned to one market to be treated as a ‘‘local’’ station with respect to a particular cable or satellite community 7 in another market, and, thus, enables its cable or satellite carriage into said community in 3 The STELA requires the Commission to take all actions necessary to promulgate a rule to implement the amendments within 270 days after the date of the enactment. STELA sec. 203(b). The STELA establishes February 27, 2010 as its effective date or ‘‘date of enactment,’’ even though the law was enacted by Presidential signature on May 27, 2010. STELA sec. 307. Congress backdated the STELA’s effective date to protect the satellite carriers that continued to provide distant signals (which, at that time, included significantly viewed signals) during a two-day gap in coverage of the distant signal statutory copyright license, which expired on February 28 and was not extended until March 2, 2010. Congress passed four short-term extensions of the distant signal statutory copyright license (December 19, 2009, March 2, March 25 and April 15, 2010) before finally passing STELA to reauthorize the license for five years. 4 To qualify for significantly viewed status (i.e., for placement on the significantly viewed list or ‘‘SV List’’), an SV station can be either a ‘‘network’’ station or an ‘‘independent’’ station, with network stations requiring a higher share of viewing hours. 47 CFR 76.5(i)(1) and (2). The Commission’s rules define network station as one of the ‘‘three major national television networks’’ (i.e., ABC, CBS or NBC). 47 CFR 76.5(j) and (k). Parties may demonstrate that stations are significantly viewed either on a community basis or on a county-wide basis. 47 CFR 76.54(b), (d). 5 See 47 CFR 76.5, 76.7, 76.54. A TV station, cable operator or satellite carrier that wishes to have a station designated significantly viewed must file a petition pursuant to the pleading requirements in 47 CFR 76.7(a)(1) and use the method described in 47 CFR 76.54 to demonstrate that the station is significantly viewed as defined in 47 CFR 76.5(i). SHVERA Significantly Viewed Report and Order, FCC 05–187, 70 FR 76504, December 27, 2005. 6 The significantly viewed list or ‘‘SV List’’ identifies the list of stations the Commission has determined to be significantly viewed in specified counties and communities. The list applies to both cable and satellite providers. The Commission updates this list as necessary upon the appropriate demonstrations by stations or cable or satellite providers. The current SV List is available on the Media Bureau’s Web site at https://www.fcc.gov/ mb/. 7 We note that the SV station can only be carried in the cable or satellite community in which it is significantly viewed. See 47 CFR 76.5(dd) (defining cable ‘‘community unit’’) and 76.5(gg) (defining a ‘‘satellite community’’). PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 44199 that other market.8 Whereas cable operators have had carriage rights for SV stations since 1972,9 satellite carriers have had such authority only since 2004 10 and may only retransmit SV network stations to ‘‘eligible’’ satellite subscribers.11 These satellite subscriber eligibility restrictions are intended to prevent satellite carriers from favoring an SV network station over the inmarket (local) station affiliated with the same network.12 3. Section 203 of the STELA eliminates two statutory limitations on subscriber eligibility to receive SV network stations from satellite carriers.13 To implement the STELA, we propose the following changes to our satellite subscriber eligibility rules: • We propose to eliminate the requirement that satellite carriers offer ‘‘equivalent bandwidth’’ to the local and SV network station pair, and to require instead carriage of the local network affiliate in high definition (HD) as a precondition to satellite carriage of the HD programming of an SV station affiliated with the same network. • We propose to eliminate the requirement that a subscriber receive the specific local network station (as part of the satellite carrier’s ‘‘local-intolocal’’ service) in order for that subscriber to also receive an SV station affiliated with the same network and to 8 For copyright purposes, significantly viewed status means that cable and satellite providers may carry the distant but SV station with the reduced copyright payment obligations applicable to local (in-market) stations. See 17 U.S.C. 111(a), (c), (d), and (f), as amended by STELA sec. 104 (relating to cable statutory copyright license) and 122(a)(2), as amended by STELA sec. 103 (relating to satellite statutory copyright license). 9 See Cable Television Report and Order, FCC 72– 108, 37 FR 3252, February 3, 1972 (adopting the concept of ‘‘significantly viewed’’ signals to differentiate between otherwise out-of-market television stations ‘‘that have sufficient audience to be considered local and those that do not’’). 10 Section 202 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) created Section 340 of the Communications Act, which authorized satellite carriage of Commission-determined SV stations. See SHVERA sec. 202, Pub. L. 108–447, 118 Stat 2809, 3393 (2004) (codified in 47 U.S.C. 340). See also SHVERA Significantly Viewed Report and Order. 11 See 47 U.S.C. 340(b) and 47 CFR 76.54(g) and (h). 12 47 U.S.C. 340(b)(1) and (2). See, e.g., SHVERA Significantly Viewed Report and Order. The Copyright Act’s definitions of ‘‘network station’’ and ‘‘non-network station’’ will apply for purposes of determining subscriber eligibility to receive an SV network station. See 47 U.S.C. 339(d) and 47 U.S.C 122(j)(4), as amended, applying the definitions of such terms in 47 U.S.C 119(d)(2) and (9). Unlike the definition in the Commission’s rules, which specifically include only ABC, CBS and NBC, the Copyright Act definition of ‘‘network station’’ may include other stations. See SHVERA Significantly Viewed Report and Order. 13 47 U.S.C. 340(b)(1) and (2). E:\FR\FM\28JYP1.SGM 28JYP1 44200 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules require instead that the subscriber receive local-into-local satellite service. II. Background erowe on DSK5CLS3C1PROD with PROPOSALS 4. In May 2010, Congress passed and the President signed the STELA, which amends the 1988 copyright laws 14 and the Communications Act of 1934 15 to ‘‘modernize, improve and simplify the compulsory copyright licenses governing the retransmission of distant and local television signals by cable and satellite television operators.’’ 16 Congress intended for the STELA to increase competition and service to satellite and cable consumers and update the law to reflect the completion of the digital television (DTV) transition.17 Notably, Congress reauthorizes the statutory copyright license for satellite carriage of SV stations and moves that license from the distant signal statutory copyright license provisions to the local signal statutory copyright license provisions.18 The STELA is the fourth in a series of 14 See 17 U.S.C. 119 and 122. 17 U.S.C. 119 contains the statutory copyright license for satellite carriage of ‘‘distant’’ network stations (limited to ‘‘unserved households’’) and 17 U.S.C. 122 contains the statutory copyright license for satellite carriage of ‘‘local’’ stations (generally defined as stations and subscribers in the same DMA but which now also includes SV stations that are treated as ‘‘local’’ for copyright purposes, even though such stations are not in the same DMA as the subscribers). The STELA also amended 17 U.S.C. 111, the statutory copyright license for cable carriage of broadcast stations. 15 See 47 U.S.C. 325, 338, 339 and 340. 16 See House Judiciary Committee Report dated Oct. 28, 2009, accompanying House Bill, H.R. 3570, 111th Cong. (2009), H.R. Rep. No. 111–319, at 4 (‘‘H.R. 3570 Report’’). There was no final Report issued to accompany the final version of the STELA bill (S. 3333) as it was enacted. See Senate Bill, S. 3333, 111th Cong. (2010) (enacted). Therefore, for the relevant legislative history, we look to the Reports accompanying the various predecessor bills (e.g., H.R. 3570, H.R. 2994, and S. 1670). These Reports remain relevant with respect to those provisions that were unchanged, which is the case for the amendments to the ‘‘significantly viewed’’ provisions (see STELA secs. 203, 103). Finally, also relevant are certain remarks made in floor statements in passing the bill (S. 3333). See ‘‘House of Representatives Proceedings and Debates of the 111th Congress, Second Session,’’ 156 Cong. Rec. H3317, H3328–3330 (daily ed. May 12, 2010) (statements of Reps. Conyers and Smith) (‘‘House Floor Debate’’) and ‘‘Senate Proceedings and Debates of the 111th Congress, Second Session,’’ 156 Cong. Rec. S3435, (daily ed. May 7, 2010) (statement of Sen. Leahy) (‘‘Senate Floor Debate’’). 17 See H.R. 3570 Report at 5. As of the June 12, 2009 statutory DTV transition deadline, all fullpower television stations stopped broadcasting in analog and are broadcasting only digital signals. 47 U.S.C. 309(j)(14)(A). 18 STELA sec. 103 (moving the SV signal statutory copyright license from 17 U.S.C. 119(a)(3) to 17 U.S.C. 122 (a)(2)). In doing so, Congress now defines SV signals as another type of local signal, rather than as an exception to distant signals. The move also means that Congress won’t need to reauthorize the SV signal license in five years, when the distant signal license will expire. VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 statutes that addresses satellite carriage of television broadcast stations. 5. In the 1988 Satellite Home Viewer Act (‘‘1988 SHVA’’), Congress established a statutory copyright license to enable satellite carriers to offer subscribers who could not receive the over-the-air signal of a broadcast station access to broadcast programming via satellite.19 The 1988 SHVA was intended to protect the role of local broadcasters in providing over-the-air television by limiting satellite delivery of network broadcast programming to subscribers who were ‘‘unserved’’ by over-the-air signals. The 1988 SHVA also permitted satellite carriers to offer distant ‘‘superstations’’ to subscribers.20 6. In the 1999 Satellite Home Viewer Improvement Act (‘‘SHVIA’’), Congress expanded satellite carriers’ ability to retransmit local broadcast television signals directly to subscribers.21 A key element of the SHVIA was the grant to satellite carriers of a statutory copyright license to retransmit local broadcast programming, or ‘‘local-into-local’’ service, to subscribers. A satellite carrier provides ‘‘local-into-local’’ service when it retransmits a local television signal back into the local market of that television station for reception by subscribers.22 Generally, a television station’s ‘‘local market’’ is the DMA in which it is located.23 Each satellite carrier providing local-into-local service pursuant to the statutory copyright license is generally obligated to carry any qualified local television station in 19 The Satellite Home Viewer Act of 1988 (SHVA), Pub. L. 100–667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111, 119). The 1988 SHVA was enacted on November 16, 1988, as an amendment to the copyright laws. The 1988 SHVA gave satellite carriers a statutory copyright license to offer distant signals to ‘‘unserved’’ households. 17 U.S.C. 119(a). 20 See id. 119(a)(1) (2009). The STELA sec. 102(g) replaces the term ‘‘superstation’’ with the term ‘‘nonnetwork station.’’ This change in wording has no substantive impact on our rules. A non-network station (previously superstation) is defined as a television station, other than a network station, licensed by the Commission that is retransmitted by a satellite carrier. Non-network stations are still not considered ‘‘network stations’’ for copyright purposes. See 17 U.S.C. 119(d)(9). 21 The Satellite Home Viewer Improvement Act of 1999 (SHVIA), Pub. L. 106–113, 113 Stat. 1501 (1999). The 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). In the SHVIA, Congress amended both the copyright laws, 17 U.S.C. 119 and 122, and the Communications Act, 47 U.S.C. 325, 338 and 339. 22 47 CFR 76.66(a)(6). 23 See 17 U.S.C. 122(j)(2)(A); 47 U.S.C. 340(i)(1). DMAs, which describe each television market in terms of a unique geographic area, are established by Nielsen Media Research based on measured viewing patterns. See 17 U.S.C. 122(j)(2)(A) through (C). PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 the 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.24 This is commonly referred to as the ‘‘carry one, carry all’’ requirement. The Commission implemented the SHVIA by adopting rules for satellite carriers with regard to carriage of broadcast signals, retransmission consent, and program exclusivity that paralleled the requirements for cable service.25 7. In the 2004 Satellite Home Viewer Extension and Reauthorization Act (‘‘SHVERA’’), Congress established the framework for satellite carriage of ‘‘significantly viewed’’ stations.26 Specifically, the SHVERA expanded the statutory copyright license to allow satellite carriers to retransmit a distant (out-of-market) network station as part of their local service to subscribers in a local market where the Commission determined that distant station to be ‘‘significantly viewed’’ (based on overthe-air viewing).27 In providing this authority to satellite carriers, Congress 24 See 47 U.S.C. 338. SHVIA Signal Carriage Order, 66 FR 7410, January 23, 2001; OET SHVIA Report, FCC 00–416 (rel. Nov. 29, 2000); SHVIA Satellite Exclusivity Order, 65 FR 68082, November 14, 2000; SHVIA Retransmission Consent Enforcement Order; 65 FR 10718, February 29, 2000; SHVIA Good Faith Retransmission Consent Order, 65 FR 15559, March 23, 2000. 26 The Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA), Pub. L. 108–447, 118 Stat 2809 (2004) (codified in scattered sections of 17 and 47 U.S.C.). The SHVERA was enacted on December 8, 2004 as title IX of the ‘‘Consolidated Appropriations Act, 2005.’’ The SHVERA contained additional mandates requiring Commission action, but not relevant to this proceeding, which concerns the carriage of SV stations. See SHVERA Reciprocal Bargaining Order, 70 FR 40216, July 13, 2005 (imposing a reciprocal good faith retransmission consent bargaining obligation on multichannel video programming distributors); SHVERA Section 210 Order, 70 FR 51658, August 31, 2005 (requiring satellite carriers to carry local TV broadcast stations in Alaska and Hawaii); SHVERA Procedural Rules Order, 70 FR 21669, April 27, 2005 (adopting procedural rules concerning satellite carriers’ notifications to TV broadcast stations and obligations to conduct signal testing); Public Notice, ‘‘Media Bureau Seeks Comment For Inquiry Required By the on Rules Affecting Competition In the Television Marketplace,’’ 70 FR 6593, February 8, 2005 (opening inquiry concerning the impact of certain rules and statutory provisions on competition in the television marketplace). 27 In the SHVERA, Congress again amended both the Communications Act, 47 U.S.C. 325, 338, 339 and 340, and the copyright laws, 17 U.S.C. 119 and 122. In creating a statutory copyright license for satellite carriers to offer significantly viewed stations as part of their local service to subscribers, Congress distinguished between out-of-market stations that had significant over-the-air viewership in a local market (i.e., significantly viewed stations) and truly ‘‘distant’’ stations. 25 See E:\FR\FM\28JYP1.SGM 28JYP1 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS sought to create parity with cable operators, who had already had such authority to offer SV stations to subscribers for more than 38 years.28 The Commission implemented the SHVERA’s significantly viewed provisions by publishing a list of SV stations and adopting rules for stations to attain eligibility for significantly viewed status and for subscribers to receive SV stations from satellite carriers. The SHVERA mandated that the Commission apply the same station eligibility requirements (i.e., rules and procedures for parties to show that a station qualifies for significantly viewed status) to satellite carriers that already applied to cable operators.29 However, to prevent a satellite carrier from favoring SV stations over traditional local market stations, the SHVERA also imposed subscriber eligibility requirements that applied only to satellite carriers.30 8. The SHVERA limited subscribers’ eligibility to receive SV digital television stations from satellite carriers in two key ways. First, the SHVERA allowed a satellite carrier to offer SV stations only to subscribers that received the carrier’s ‘‘local-into-local’’ service.31 The Commission interpreted this provision to further require that the subscriber receive the specific local 28 See SHVERA Significantly Viewed Report and Order. In 1972, the Commission adopted the concept of ‘‘significantly viewed’’ stations for cable television to differentiate between out-of-market television stations ‘‘that have sufficient audience to be considered local and those that do not.’’ Cable Television Report and Order. The Commission concluded at that time that it would not be reasonable if choices on cable were more limited than choices over the air, and gave cable carriage rights to stations in communities where they had significant over-the-air (non-cable) viewing. Id. 29 See 47 CFR 76.5, 76.7 and 76.54(a) through (d). As mandated by the SHVERA, the Commission required satellite carriers or broadcast stations seeking significantly viewed status for satellite carriage to follow the same petition process now in place for cable carriage. 30 47 U.S.C. 340(b) (2004). The eligibility requirements also addressed the different carriage requirements that apply to cable (i.e., ‘‘must carry’’ for all cable systems) as compared with satellite (i.e., ‘‘carry one, carry all’’). 31 See id. at 340(b)(1) (analog service limitations) and (b)(2)(A) (digital service limitations) (2004). The Commission found that ‘‘subscriber receipt of ‘local-into-local’ service [was] unambiguously required by the statute.’’ SHVERA Significantly Viewed Report and Order. The SHVERA provided for two exceptions to the local service limitations, contained in 47 U.S.C. 340(b)(3) and (4), respectively. Section 340(b)(3) allows satellite carriage of an SV network station to a subscriber when there is no local station affiliated with the same television network as the SV station present in the local market. Section 340(b)(4) allows a satellite carrier to privately negotiate with the local network station to obtain a waiver of the subscriber eligibility restrictions in Sections 340(b)(1) and 340(b)(2). While revising the eligibility limitations, the STELA retains these exceptions unchanged. VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 network station (as part of the carrier’s ‘‘local-into-local’’ service) in order for that subscriber to also receive an SV station affiliated with the same network (called the receipt of the ‘‘same network affiliate’’ requirement).32 Second, the SHVERA allowed a satellite carrier to offer an SV digital station to a subscriber only if the carrier also provided to that subscriber the affiliated local network station in a format that used either (1) An ‘‘equivalent’’ amount of bandwidth for the local and SV network station pair, or (2) the ‘‘entire’’ bandwidth of the local station (called the ‘‘equivalent or entire bandwidth’’ requirement).33 The Commission interpreted this provision to require an objective comparison of each station’s use of its bandwidth in terms of megabits per second (mbps) or bit rate.34 III. Discussion 9. STELA simplifies the significantly viewed provisions in Section 340(b) of the Communications Act to make it easier for satellite carriers to offer SV stations to subscribers.35 The STELA makes two key changes to the significantly viewed provisions in Section 340(b) to ease the limitations on satellite subscriber eligibility to receive SV stations.36 First, the STELA eliminates the equivalent or entire bandwidth requirement in Section 340(b)(2)(B).37 In its place, the STELA 32 The SHVERA’s language differed with respect to the analog and digital service limitations. The Commission noted that, ‘‘[u]nlike the ambiguity in its sister analog provision [of 47 U.S.C. 340(b)(1) (2004)], Section 340(b)(2)(A) of the Act, 47 U.S.C. 340(b)(2)(A) (2004), is clear in requiring a subscriber to receive ‘‘the digital signal of a network station in the subscriber’s local market that is affiliated with the same television network.’’ Id. 33 47 U.S.C. 340(b)(2)(B) (2004). Congress sought to prevent satellite carriers from offering the local network station’s digital signal ‘‘in a less robust format’’ than the significantly viewed affiliate station’s digital signal). SHVERA Significantly Viewed Report and Order. 34 See id. 35 See H.R. 3570 Report at 4–5. 36 STELA sec. 203(a) (amendments to be codified at 47 U.S.C. 340(b)(1) and (2)). We note that the subscriber eligibility limitations in 47 U.S.C. 340(b)(1) and (2), which are amended by the STELA sec. 203, do not apply to cable subscribers and that we do not propose to substantively amend our significantly viewed rules and procedures that satellite carriers share with cable operators. See 47 CFR 76.54(a) through (d). Furthermore, we note that the STELA sec. 203 does not amend the ‘‘significantly viewed’’ provisions in the Communications Act governing the eligibility of a television broadcast station to qualify for ‘‘significantly viewed’’ status. See 47 U.S.C. 340(a), (c) through (g). Therefore, we do not propose here any substantive (non-‘‘housecleaning’’) changes to our rules and procedures implementing the significantly viewed station eligibility requirements. See 47 CFR 76.54(a) through (f), (j) and (k). 37 The STELA sec. 203(a) removes the equivalent or entire bandwidth requirement in 47 U.S.C. PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 44201 permits a satellite carrier to carry in high definition (HD) format an SV network station, provided the satellite carrier also carries in HD format the local station in the market that is affiliated with the same network whenever the local station is available in HD format.38 Second, the STELA strikes Section 340(b)(2)(A), the former digital service limitation which contained the ‘‘same network affiliate’’ limitation language, choosing, instead, to apply Section 340(b)(1), the former analog service limitation which contained only the ‘‘local-into-local’’ service limitation language, to digital stations.39 Accordingly, we propose rules to implement the changes made to Section 340(b) of the Act and seek comment on them. Our discussion below addresses these two key changes to Section 340(b), and also considers the impact of these changes on the statutory exceptions to this section. We also propose some non-substantive, ‘‘housecleaning’’ rule changes. We seek comment on our proposals and tentative conclusions set forth herein, and also invite comment on any other issues that may be relevant to our implementation of the STELA’s amendments to the significantly viewed provisions. A. Proposed Elimination of ‘‘Equivalent or Entire Bandwidth’’ Requirement 10. In the 2004 SHVERA, Congress enacted the ‘‘equivalent’’ or ‘‘entire’’ bandwidth requirements to prevent a satellite carrier from using technological means to discriminate against a local network station in favor of the SV network affiliate.40 The Commission codified these requirements in § 76.54(h) of the rules, which tracks the language of the statute.41 In implementing this provision, the Commission strictly interpreted the statutory requirement for ‘‘equivalent bandwidth.’’ As a result, satellite 340(b)(2)(B) and the STELA sec. 204(c) strikes the definition of equivalent or entire bandwidth in 47 U.S.C. 340(i)(4). 38 See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec. 203(a). 39 See Id. 340(b)(1) (2010), as amended by the STELA sec. 203(a). 40 47 U.S.C. 340(b)(2)(B) (2004). The law reflects Congress’ intent to prevent a satellite carrier from offering the local digital station ‘‘in a less robust format’’ than the SV digital station). SHVERA Significantly Viewed Report and Order. 41 47 CFR 76.54(h) states: ‘‘Signals of significantly viewed network stations that originate as digital signals may not be retransmitted to subscribers unless the satellite carrier retransmits the digital signal of the local network station, which is affiliated with the same television network as the network station whose signal is significantly viewed, in either (1) At least the equivalent bandwidth of the significantly viewed station or (2) the entire bandwidth of the digital signal broadcast by such local station.’’ E:\FR\FM\28JYP1.SGM 28JYP1 44202 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules carriers must ensure virtually minuteby-minute comparisons between the satellite bandwidth allocated to carriage of the local station and the SV stations, making carriage of SV stations so burdensome that they are rarely carried.42 11. STELA eliminates the ‘‘equivalent or entire bandwidth’’ requirement from the statute,43 changing the focus of the provision from ‘‘equivalent bandwidth’’ to ‘‘HD format.’’ The STELA amends Section 340(b)(2) of the Act to read as follows: 44 Service Limitations.—A satellite carrier may retransmit to a subscriber in high definition format the signal of a station determined by the Commission to be significantly viewed under subsection (a) only if such carrier also retransmits in high definition format the signal of a station located in the local market of such subscriber and affiliated with the same network whenever such format is available from such station. erowe on DSK5CLS3C1PROD with PROPOSALS 12. In doing so, Congress intended to facilitate satellite carriage of SV stations, which Congress thought was thwarted by the Commission’s implementation of the predecessor provision.45 The legislative history also indicates an intent by Congress to simplify the law and increase service to satellite consumers.46 Additionally, in 42 In a House Energy and Commerce Committee Report, Congress noted that the ‘‘equivalent bandwidth’’ requirement ‘‘has generally served to discourage satellite carriers from using Section 340 to provide significantly viewed signals to qualified households.’’ See House Energy and Commerce Committee Report dated Dec. 12, 2009, accompanying House Bill, H.R. 2994, 111th Cong. (2009), H.R. Rep. No. 111–349, at 16 (‘‘H.R. 2994 Report’’). See also Testimony of Bob Gabrielli, Senior Vice President, Broadcasting Operations and Distribution, DIRECTV, Inc., before the U.S. House of Representatives Subcommittee on Communications, Technology and the Internet, Hearing on Reauthorization of the of the Satellite Home Viewer Extension and Reauthorization Act, at 9 (Feb. 24, 2009) (asserting that it is ‘‘infeasible’’ for DIRECTV to ‘‘carry local stations in the same format as SV stations every moment of the day’’). 43 We note that DIRECTV, Inc. (‘‘DIRECTV’’) and EchoStar Satellite LLC (‘‘EchoStar’’) filed a joint petition, which remains pending, seeking reconsideration of two decisions in the 2005 SHVERA Significantly Viewed Report and Order. The first decision challenged by the petition is the Commission’s interpretation of the ‘‘equivalent bandwidth’’ requirement. See DIRECTV and EchoStar Joint Petition for Reconsideration in MB Docket No. 05–49 (filed Jan. 26, 2006) (‘‘DIRECTV/ EchoStar Joint Petition’’). As a result of the STELA’s elimination of this requirement, we believe the petition on this first issue is now moot. The second issue relates to the receipt of the local analog station affiliate requirement, which we also believe is moot. We expect to dismiss the petition soon after we issue final rules in this proceeding. 44 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec. 203(a). 45 See H.R. 2994 Report at 16. 46 See H.R. 3570 Report at 4–5. Congress wanted to clarify that a satellite carrier may provide an SV station in HD format, when the local network VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 reauthorizing the SHVERA and mostly retaining its framework for the carriage of SV stations, the STELA retains the key goals of its predecessor statute— those being to foster localism and promote parity between cable and satellite service.47 The principal concern of Congress was simply to clarify that a satellite carrier may provide an SV station in HD format when the local network affiliate is broadcasting only in Standard Definition (SD) format, as long as the carrier provides the local station in HD format whenever such format is available.48 Moreover, in moving the statutory copyright license into the ‘‘local’’ license, we believe Congress recognized the ‘‘local’’ nature of an SV station, and that carriage of an SV network station, in itself, promotes localism, as long as such station is not favored over the in-market (local) affiliate. Therefore, we tentatively conclude that, in revising the law, Congress intended for the Commission to create a workable framework that would generally provide for the satellite carriage of SV stations, while ensuring that the SV network station is not retransmitted in HD format unless the in-market affiliate is also retransmitted in HD format when so broadcast. 13. Accordingly, we propose to revise our rule in § 76.54(h), which we now move to § 76.54(g)(2), to eliminate the ‘‘equivalent or entire bandwidth’’ requirement and to provide that a satellite carrier may retransmit the HD signal of an SV station to a subscriber only if such carrier also retransmits the HD signal of the local station affiliated with the same network whenever that signal is available in HD format.49 Our proposed rule tracks the revised language in Section 340(b)(2).50 We also tentatively conclude that Section 340(b)(2), by its terms, only limits satellite carriage of an SV station with respect to HD format; it does not apply affiliate is broadcasting only in Standard Definition (SD) format, as long as the carrier provides the local station in HD format whenever such format is available. H.R. 2994 Report at 16. 47 See SHVERA Significantly Viewed Report and Order. 48 H.R. 2994 Report at 16. The Commission interpreted the ‘‘equivalent bandwidth’’ requirement to include multicast signals. SHVERA Significantly Viewed Report and Order. (concluding that ‘‘if the SV station transmits in HD and the local station transmits multiplexed (multicast) signal, then a satellite carrier may carry the SV station’s HD signal, provided it also carries as many of the local station’s multicast channels as necessary to match the bandwidth provided to the SV station.’’). However, the STELA’s change to 47 U.S.C. 340(b)(2) appears to refocus the comparison of the local and SV network station pair on HD format. 49 See Proposed rule 47 CFR 76.54(g)(2). 50 Id. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 if the satellite carrier only carries the SV station in SD format.51 Finally, we note that the Advanced Television Systems Committee (‘‘ATSC’’), a non-profit organization that develops voluntary standards for digital television, including HDTV, defines ‘‘high definition’’ television as having a screen resolution of 720p, 1080i, or higher, and believe that no further definition of ‘‘HD format’’ is needed to implement the statute.52 We seek comment on our statutory interpretation, proposed rule and tentative conclusions. We also seek comment on whether satellite carriers will face any technical problems in order to comply with our proposed rule. 14. Section 340(b)(2) permits retransmission of an SV network station in HD ‘‘only if such carrier also retransmits in high definition format the signal of a station located in the local market of such subscriber and affiliated with the same network whenever such format is available from such station.’’ 53 We seek comment on the significance of this requirement. What is required by this language in the event a satellite carrier wants to retransmit an SV network affiliate and there is an inmarket (local) station that is multicasting in HD format and airing programming affiliated with the same network in HD on a secondary stream? Is the satellite carrier required to carry this secondary stream in HD in order to be permitted to retransmit the SV station in HD even if the in-market station’s primary stream is affiliated with another network? We also seek information on the extent to which stations are broadcasting HD programming from two different networks, and whether this is sufficiently rare that it can be addressed on a case-by-case basis, rather than in a rule or order. B. Proposed Elimination of Requirement To Receive Specific Local Affiliate of the Same Network 15. We propose to amend our rules regarding subscriber eligibility to address STELA’s change to Sections 340(b)(1) and 340(b)(2)(A) that eliminates the reference to receiving a 51 We propose including a sentence in our proposed rule to clarify this point. See Proposed rule 47 CFR 76.54(g)(2). 52 See, e.g., Local Broadcast Signal Carriage First Report and Order, 66 FR 16533, March 26, 2001 (discussing several formats that are considered ‘‘high definition’’); Local Broadcast Signal Carriage Second Report and Order, 73 FR 24502, May 5, 2008. See also, e.g., Newton’s Telecom Dictionary definition of HDTV at 389 (20th ed. 2004) and the Commission’s ‘‘DTV Shopping Guide’’ for consumers at https://www.dtv.gov/shopgde.html. 53 See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec. 203(a). E:\FR\FM\28JYP1.SGM 28JYP1 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS specific local station affiliated with the same network as the SV station.54 In the 2004 SHVERA, Congress authorized satellite carriers to offer SV stations to subscribers, but crafted Sections 340(b)(1) and 340(b)(2)(A) of the Act to protect localism by requiring that these subscribers also receive the carrier’s local service.55 These two provisions, however, contained different language. Whereas Section 340(b)(1),56 the provision related to analog service, required only that the analog subscriber receive local service ‘‘pursuant to Section 338’’—referring to the ‘‘carry one, carry all’’ carriage requirements that pertain to local stations,57 Section 340(b)(2)(A),58 the provision related to digital service, contained additional language that expressly required the digital subscriber to receive the local station that was specifically ‘‘affiliated with the same television network’’ as the SV station (hereinafter referred to as the ‘‘same network affiliate’’ language). Thus, while each of these provisions clearly required a subscriber to at least receive the satellite carrier’s local-intolocal service before that subscriber could receive an SV station, it was unclear whether Section 340(b)(1) also required an analog subscriber to receive the specific local network station before that subscriber could receive the SV station affiliated with the same network.59 For example, the statute did not address the situation where there is a local network station in the local market, but such station fails to request local carriage, refuses to grant 54 See 47 U.S.C. 340(b)(1) (2010), as amended by the STELA sec. 203(a). 55 47 U.S.C. 340(b)(1) and (b)(2)(A) (2004). Congress intended for these provisions to protect localism ‘‘by helping ensure that the satellite operator cannot retransmit into a market a significantly viewed digital signal of a network broadcast station from a distant market without also retransmitting into the market a digital signal of any local affiliate from the same network.’’ SHVERA Significantly Viewed Report and Order. 56 47 U.S.C. 340(b)(1) (2004), as established in 2004, stated: ‘‘With respect to a signal that originates as an analog signal of a network station, this section shall apply only to retransmissions to subscribers of a satellite carrier who receive retransmissions of a signal that originates as an analog signal of a local network station from that satellite carrier pursuant to section 338.’’ 57 47 U.S.C. 338. 58 47 U.S.C. 340(b)(2)(A) (2004), as established in 2004, stated: ‘‘With respect to a signal that originates as a digital signal of a network station, this section shall apply only if—(A) the subscriber receives from the satellite carrier pursuant to section 338 the retransmission of the digital signal of a network station in the subscriber’s local market that is affiliated with the same television network * * *.’’ 59 SHVERA Significantly Viewed Report and Order. VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 retransmission consent, or is otherwise ineligible for local carriage.60 16. Ultimately, in the 2005 SHVERA Significantly Viewed Report and Order, the Commission interpreted both Sections 340(b)(1) and 340(b)(2)(A) to require that the subscriber receive the specific local station that is affiliated with the same network as the SV station.61 Although Section 340(b)(1) lacked the express ‘‘same network affiliate’’ language as contained in Section 340(b)(2)(A), the Commission read the two provisions together and interpreted Section 340(b)(1) to also contain the ‘‘same network affiliate’’ requirement, based largely on the notion that Congress intended the two provisions to achieve similar ends.62 Accordingly, the Commission adopted § 76.54(g) of the rules, based on the ‘‘same network affiliate’’ language in Section 340(b)(2)(A).63 17. In the STELA, Congress strikes Section 340(b)(2)(A), which governed digital stations and included the ‘‘same network affiliate’’ language,64 and id. This is the second decision challenged by the pending 2006 DIRECTV/EchoStar Joint Petition. The petition challenged only the Commission’s interpretation of the analog service limitation provision in 47 U.S.C. 340(b)(1), essentially conceding the meaning of the plain language in the digital provision in 47 U.S.C. 340(b)(2)(A). With the end of analog full-power broadcasting (due to the completion of DTV transition), we believe this second issue in the petition is also moot, and we expect to dismiss the petition soon after we issue final rules in this proceeding. 62 See SHVERA Significantly Viewed Report and Order. We note that the Commission also stated that its interpretation of Section 340(b)(1) was necessary to give meaning to the statutory exceptions in Sections 340(b)(3) and (4). As discussed in more detail later, we believe the statutory exceptions remain meaningful to, and are consistent with, our proposed interpretation of Section 340(b)(1) as amended by STELA. 63 47 CFR 76.54(g) states: ‘‘(g) Signals of analog or digital significantly viewed television broadcast stations may not be retransmitted by satellite carriers to subscribers who do not receive localinto-local service, including a station affiliated with the same network as the significantly viewed station, pursuant to § 76.66 of this chapter; except that a satellite carrier may retransmit a significantly viewed signal of a television broadcast station to a subscriber who receives local-into-local service but does not receive a local station affiliated with the same network as the significantly viewed station, if: (1) There is no station affiliated with the same television network as the station whose signal is significantly viewed; or (2) The station affiliated with the same television network as the station whose signal is significantly viewed has granted a waiver in accordance with 47 U.S.C. 340(b)(4).’’ 64 47 U.S.C 340(b)(2)(A) (2004). The digital local service provision provided: ‘‘With respect to a signal that originates as a digital signal of a network station, this section shall apply only if—(A) the subscriber receives from the satellite carrier pursuant to section 338 of this title the retransmission of the digital signal of a network station in the subscriber’s local market that is affiliated with the same television network; and’’ (B) the retransmission complies with either the (i) PO 00000 60 See 61 Id. Frm 00041 Fmt 4702 Sfmt 4702 44203 removes the references to analog in Section 340(b)(1) because of the completion of the DTV transition.65 Specifically, the STELA amends Section 340(b)(1) of the Act to read as follows: 66 Service Limited to Subscribers Taking Local-Into-Local Service.—This section shall apply only to retransmissions to subscribers of a satellite carrier who receive retransmissions of a signal from that satellite carrier pursuant to section 338. This provision, as amended, still contains the local-into-local service requirement,67 but no longer requires carriage of the local affiliate of the same network. We presume that Congress acted intentionally and purposely when it chose to discard the ‘‘same network affiliate’’ language in Section 340(b)(2)(A), which language the Commission had relied upon for its more restrictive interpretation of Section 340(b)(1).68 18. Accordingly, we propose to revise our rule in § 76.54(g) to reflect the amended statutory language in Section 340(b)(1).69 We tentatively conclude that, by striking Section 340(b)(2)(A), Congress intended to eliminate the requirement that a subscriber receive the specific local station that is affiliated with the same network as the SV station. Therefore, our proposed rule requires only that a subscriber receive the satellite carrier’s local-into-local service as a pre-condition for the subscriber to receive SV stations. We equivalent or (ii) entire bandwidth requirement. (Emphasis added.) 65 47 U.S.C. 340(b)(1) (2004). The analog local service provision provided: ‘‘With respect to a signal that originates as an analog signal of a network station, this section shall apply only to retransmissions to subscribers of a satellite carrier who receive retransmissions of a signal that originates as an analog signal of a local network station from that satellite carrier pursuant to section 338 of this title.’’ 66 47 U.S.C. 340(b)(1) (2010), as amended by the STELA sec. 203(a). 67 The provision limits subscriber eligibility for SV stations to those subscribers that receive retransmissions from their satellite carrier pursuant to the ‘‘carry one, carry all’’ requirement in 47 U.S.C. 338. 68 See, e.g., Moshe Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1990) (‘‘[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’) (internal citations omitted); Russello v. United States, 464 U.S. 16, 23 (1983) (same); Estate of Bell v. Commissioner, 928 F.2d 901, 904 (9th Cir. 1991) (‘‘Congress is presumed to act intentionally and purposely when it includes language in one section but omits it in another.’’); Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987) (‘‘When Congress includes a specific term in one section of a statute but omits in another section of the same Act, it should not be implied where it is excluded.’’). 69 See Proposed rule 47 CFR 76.54(g)(1). E:\FR\FM\28JYP1.SGM 28JYP1 44204 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules note that this interpretation would allow a satellite carrier to carry an SV station affiliated with a particular network if the local in-market station affiliated with the same network does not grant retransmission consent. We seek comment on our proposed rule and tentative conclusions. C. Statutory Exceptions to the Subscriber Eligibility Limitations 19. While revising the subscriber eligibility limitations in Sections 340(b)(1) and 340(b)(2), the STELA retains without change the statutory exceptions in Sections 340(b)(3) and 340(b)(4) to these restrictions.70 As noted above, the Section 340(b)(3) exception to the subscriber eligibility limitations permits a satellite carrier to offer an SV network station to a subscriber when there is no local network affiliate present in the local market.71 The Section 340(b)(4) exception permits a satellite carrier to privately negotiate with the local network station to obtain a waiver of the eligibility restrictions.72 These two exceptions provide as follows: (b)(3) The limitations in paragraphs (1) and (2) shall not prohibit a retransmission under this section to a subscriber located in a local market in which there are no network stations affiliated with the same television network as the station whose signal is being retransmitted pursuant to this section. (b)(4) Paragraphs (1) and (2) shall not prohibit a retransmission of a network station to a subscriber if and to the extent that the network station in the local market in which the subscriber is located, and that is affiliated with the same television network, has privately negotiated and affirmatively granted a waiver from the requirements of paragraph (1) and (2) to such satellite carrier with respect to retransmission of the significantly viewed station to such subscriber. erowe on DSK5CLS3C1PROD with PROPOSALS We tentatively conclude that these statutory exceptions will continue to apply as they have before and are consistent with our proposed interpretations of the amended subscriber limitation provisions in Sections 340(b)(1)–(2). We believe the statutory exceptions in Sections 340(b)(3)–(4) will continue to have meaning, and would not be superfluous, to our proposed interpretation of Section 340(b)(1).73 For example, the 70 47 U.S.C. 340(b)(3) and (4). We note that the STELA sec. 103 does amend the waiver provision in the corresponding satellite statutory copyright license in 17 U.S.C. 122(a)(2) to eliminate the ‘‘sunset’’ provision and replace the term ‘‘superstation’’ with ‘‘non-network station.’’ 71 Id. at 340(b)(3). 72 Id. at 340(b)(4). 73 See SHVERA Significantly Viewed Report and Order. The Commission stated that if Section VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 statutory exceptions in Sections 340(b)(3)–(4) would still apply where local-into-local service is not available to a subscriber for technical reasons (such as the spot beam does not cover the DMA or its reception is blocked for an individual subscriber by terrain or foliage) or if local-into-local service is not yet offered by the satellite carrier to a subscriber’s market. We seek comment on our tentative conclusions. We also invite comment on whether application of these unchanged statutory exceptions to the amended subscriber limitation provisions raise any issues that may be relevant to our implementation of the Section 340(b) significantly viewed provisions as a whole. D. Housecleaning Rule Changes 20. In this section, we propose nonsubstantive changes to update our significantly viewed rules. We seek comment on these proposed rule changes. 21. 47 CFR 76.5(i). We propose to amend § 76.5(i) of the rules to replace its references to the term ‘‘non-cable’’ with the term ‘‘over-the-air.’’ 74 In the 2005 SHVERA Significantly Viewed Report and Order, the Commission made this change to § 76.54 to reflect the rule’s true meaning, that being to indicate over-the-air viewing.75 The Commission explained that, in the 1972 Order, the concept of significant viewing was adopted to apply to over-the-air households, which at the time essentially meant households without cable (i.e., non-cable households).76 Thus, amending § 76.5(i) to change ‘‘non-cable’’ to ‘‘over-the-air’’ reflects the true intent of the rule as it was in 1976, and is more consistent with the statute’s intent to establish parity between cable and satellite. 22. 47 CFR 76.54(c). We propose to amend § 76.54(c) of the rules to strike the outdated reference to the analog Grade B contour.77 In the 2004 SHVERA Significantly Viewed Report and Order, the Commission revised this rule to add the appropriate service contour relevant for a station’s digital signal—that being the noise limited service contour 340(b)(1) only required receipt of any local-intolocal service as a prerequisite to receiving an SV network affiliate, as opposed to receiving the specific local affiliate of the same network as the SV station, then there would be no need for the statutory exceptions in Sections 340(b)(3) and (4) to apply to Section 340(b)(1). Id. 74 See Proposed rule change to 47 CFR 76.5(i). 75 SHVERA Significantly Viewed Report and Order. 76 Id. (citing to Cable Television Report and Order). 77 See Proposed rule change to 47 CFR 76.54(c). PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 (‘‘NLSC’’).78 With the completion of the transition, we now propose to eliminate this reference to Grade B contour. IV. Conclusion 23. In conclusion, in this NPRM, we propose to simplify our satellite TV significantly viewed rules, as mandated by Congress. To implement Section 203 of the STELA, we propose changes to § 76.54 of our rules. Our proposed rule changes—shown, below, in the Proposed Rule Changes section of this document—are modeled on the amended language in the statute. Specifically, we propose to eliminate both the ‘‘equivalent or entire bandwidth’’ requirement and the requirement for a subscriber to receive the specific local affiliate of the SV station. V. Procedural Matters A. Initial Regulatory Flexibility Act Analysis 24. As required by the Regulatory Flexibility Act of 1980, as amended (‘‘RFA’’) 79 the Commission has prepared this present Initial Regulatory Flexibility Analysis (‘‘IRFA’’) concerning the possible significant economic impact on small entities by the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided in Section V.D. of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (‘‘SBA’’).80 In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.81 1. Need for, and Objectives of, the Proposed Rule Changes 25. This document proposes changes to the Commission’s satellite television ‘‘significantly viewed’’ rules to implement Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA).82 The STELA requires 78 SHVERA Significantly Viewed Report and Order. (The digital NLSC is defined in 47 CFR 73.622(e).) 79 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has been amended by the Contract With America Advancement Act of 1996, Pub. L. 104– 121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 80 See 5 U.S.C. 603(a). 81 See id. 82 The Satellite Television Extension and Localism Act of 2010 (STELA) sec. 203, Pub. L. 111–175, 124 Stat 1218, 1245 (2010) (sec. 203 codified as amended at 47 U.S.C. 340, other STELA amendments codified in scattered sections of 17 and 47 U.S.C.). E:\FR\FM\28JYP1.SGM 28JYP1 erowe on DSK5CLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules the Commission to issue final rules in this proceeding on or before Wednesday, November 24, 2010.83 26. Section 203 of the STELA amends Section 340 of the Communications Act, which gives satellite carriers the authority to offer out-of-market but ‘‘significantly viewed’’ broadcast television network stations as part of their local service to subscribers.84 The designation of ‘‘significantly viewed’’ status allows a station assigned to one DMA to be treated as a ‘‘local’’ station with respect to a particular cable or satellite community in another DMA, and, thus, enables cable or satellite carriage into said community in that other DMA. Whereas cable operators have had carriage rights for ‘‘significantly viewed’’ (‘‘SV’’) stations since 1972, satellite carriers have had such authority only since the 2004 Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) and may only retransmit SV network stations to ‘‘eligible’’ satellite subscribers. The satellite subscriber eligibility rules impose conditions on when satellite carriers may retransmit SV stations to subscribers. These conditions are intended to prevent satellite carriers from favoring an SV network station over the in-market (local) station affiliated with the same network. We note that the nature of SV carriage under Section 340 is permissive (and not mandatory), meaning the statute applies when a satellite carrier chooses to carry an SV station and has obtained retransmission consent from such SV station.85 27. Section 203 of the STELA amends the SHVERA’s Section 340(b) satellite subscriber eligibility rules in two ways. First, it eliminates the former requirement that satellite carriers devote ‘‘equivalent bandwidth’’ to the carriage of the in-market (local) station as compared with the bandwidth devoted to carriage of the out-of-market SV station.86 In its place, the STELA requires a satellite carrier to retransmit ‘‘in high definition format the signal of a station located in the local market of such subscriber and affiliated with the same network whenever such format is available from such station.’’ 87 Second, STELA revises the subscriber eligibility requirements by eliminating the SHVERA requirement that the subscriber receive the local station affiliated with the same network as the 83 STELA sec. 203(b). U.S.C. 340. 85 Id. at 340(d). 86 47 U.S.C. 340(b)(2)(B) (2004). 87 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec. 203(a). 84 47 VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 SV station and requires only that the subscriber receive the local-into-local package from the satellite carrier.88 The STELA does not amend the SHVERA’s Section 340(a) station eligibility requirements, which govern the eligibility of a television broadcast station to qualify for ‘‘significantly viewed’’ status.89 28. To implement the STELA’s two amendments to Section 340(b), the NPRM proposes the following changes to our satellite subscriber eligibility rules: • The document proposes to eliminate the requirement that satellite carriers offer ‘‘equivalent bandwidth’’ to the local and SV network station pair, and to require instead carriage of the local network affiliate in high definition (HD) as a precondition to satellite carriage of the HD programming of an SV station affiliated with the same network. • The document proposes to eliminate the requirement that a subscriber receive the specific local network station (as part of the satellite carrier’s ‘‘local-into-local’’ service) in order for that subscriber to also receive an SV station affiliated with the same network and to require instead that the subscriber receive local-into-local satellite service. Finally, the document also seeks comment on the proposals and tentative conclusions set forth in the NPRM, and invites comment on any other issues that may be relevant to the Commission’s implementation of the STELA’s amendments to the significantly viewed provisions. 2. Legal Basis 29. The proposed action is authorized pursuant to Section 203 of the Satellite Television Extension and Localism Act of 2010, and Sections 1, 4(i) and (j), and 340 of the Communications Act, as amended, 47 U.S.C. 151, 154(i) and (j), and 340. 3. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 30. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by 88 Id. at 340(b)(1) (2010), as amended by the STELA sec. 203(a). In the NPRM, the Commission explains that ‘‘a satellite carrier provides ‘local-intolocal’ service when it retransmits a local television signal back into the local market of that television station for reception by subscribers.’’ 89 47 U.S.C. 340(a). Accordingly, the NPRM does not propose any changes to such station eligibility requirements; see 47 CFR 76.54(a) through (f), (j) and (k). PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 44205 the proposed rules, if adopted.90 The RFA generally defines the term ‘‘small entity’’ as having the same meaning as the terms ‘‘small business,’’ ‘‘small organization,’’ and ‘‘small governmental jurisdiction.’’ 91 In addition, the term ‘‘small business’’ has the same meaning as the term ‘‘small business concern’’ under the Small Business Act.92 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.93 Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible. 31. Satellite Carriers. The term ‘‘satellite carrier’’ means an entity that uses the facilities of a satellite or satellite service licensed under Part 25 of the Commission’s rules to operate in the Direct Broadcast Satellite (DBS) service or Fixed-Satellite Service (FSS) frequencies.94 As a general practice (not mandated by any regulation), DBS licensees usually own and operate their own satellite facilities as well as package the programming they offer to their subscribers. In contrast, satellite carriers using FSS facilities often lease capacity from another entity that is licensed to operate the satellite used to provide service to subscribers. These entities package their own programming and may or may not be Commission licensees themselves. In addition, a third situation may include an entity using a non-U.S. licensed satellite to provide programming to subscribers in the United States pursuant to a blanket 90 5 U.S.C. 603(b)(3). U.S.C. 601(6). 92 5 U.S.C. 601(3) (incorporating by reference the definition of ‘‘small business concern’’ in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ‘‘unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.’’ 5 U.S.C. 601(3). 93 15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission’s statistical account of television stations may be over-inclusive. 94 The Communications Act defines the term ‘‘satellite carrier’’ by reference to the definition in the copyright laws in title 17. See 47 U.S.C. 340(i)(1) and 338(k)(3); 17 U.S.C. 119(d)(6). Part 100 of the Commission’s rules was eliminated in 2002 and now both FSS and DBS satellite facilities are licensed under Part 25 of the rules. Policies and Rules for the Direct Broadcast Satellite Service, 67 FR 51110, August 7, 2002; 47 CFR 25.148. 91 5 E:\FR\FM\28JYP1.SGM 28JYP1 44206 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS earth station license.95 In the SHVERA Significantly Viewed Report and Order, the Commission concluded that the definition of ‘‘satellite carrier’’ includes all three of these types of entities.96 32. Direct Broadcast Satellite (‘‘DBS’’) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic ‘‘dish’’ antenna at the subscriber’s location. DBS, by exception, is now included in the SBA’s broad economic census category, ‘‘Wired Telecommunications Carriers,’’ 97 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.98 However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled ‘‘Cable and Other Program Distribution.’’ The definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.99 Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and EchoStar Communications Corporation (‘‘EchoStar’’) (marketed as the DISH Network).100 Each currently offer 95 See, e.g., DIRECTV 5 Blanket Earth Station License, DA 04–2526, August 12, 2004. 96 SHVERA Significantly Viewed Report and Order. 97 See 13 CFR 121.201, NAICS code 517110 (2007). The 2007 North American Industry Classification System (‘‘NAICS’’) defines the category of ‘‘Wired Telecommunications Carriers’’ as follows: ‘‘This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.’’ (Emphasis added to text relevant to satellite services.) U.S. Census Bureau, 2007 NAICS Definitions, ‘‘517110 Wired Telecommunications Carriers’’; https://www.census.gov/naics/2007/def/ ND517110.HTM. 98 13 CFR 121.201, NAICS code 517110 (2007). 99 13 CFR 121.201, NAICS code 517510 (2002). 100 See Thirteenth Annual Cable/MVPD Competition Report, 74 FR 11102, March 16, 2009. We note that, in 2007, EchoStar purchased the licenses of Dominion Video Satellite, Inc. (‘‘Dominion’’) (marketed as Sky Angel). See Public Notice, ‘‘Policy Branch Information; Actions Taken,’’ Report No. SAT–00474, DA 07–4164 (IB rel. Oct. 5, 2007). VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 subscription services. DIRECTV 101 and EchoStar 102 each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider. We seek comments that have data on the annual revenues and number of employees of DBS service providers. 33. Fixed-Satellite Service (‘‘FSS’’). The FSS is a radiocommunication service between earth stations at a specified fixed point or between any fixed point within specified areas and one or more satellites.103 The FSS, which utilizes many earth stations that communicate with one or more space stations, may be used to provide subscription video service. FSS, by exception, is now included in the SBA’s broad economic census category, ‘‘Wired Telecommunications Carriers,’’ 104 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.105 However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled ‘‘Cable and Other Program Distribution.’’ The definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.106 Although a number of entities are licensed in the FSS, not all such licensees use FSS frequencies to provide subscription services. The two DBS licensees (EchoStar and DirecTV) have indicated interest in using FSS frequencies to broadcast signals to subscribers. It is possible that other entities could similarly use FSS frequencies, although we are not aware of any entities that might do so. 34. Television Broadcasting. The SBA defines a television broadcasting station as a small business if such station has no more than $14.0 million in annual 101 As of June 2006, DIRECTV is the largest DBS operator and the second largest MVPD, serving an estimated 16.20% of MVPD subscribers nationwide. See Thirteenth Annual Cable/MVPD Competition Report. 102 As of June 2006, DISH Network is the second largest DBS operator and the third largest MVPD, serving an estimated 13.01% of MVPD subscribers nationwide. Id. As of June 2006, Dominion served fewer than 500,000 subscribers, which may now be receiving ‘‘Sky Angel’’ service from DISH Network. See id. 103 See 47 CFR 2.1(c). 104 See 13 CFR 121.201, NAICS code 517110 (2007). 105 Id. 106 13 CFR 121.201, NAICS code 517510 (2002). PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 receipts.107 Business concerns included in this industry are those ‘‘primarily engaged in broadcasting images together with sound.’’ 108 The Commission has estimated the number of licensed commercial television stations to be 1,392.109 According to Commission staff review of the BIA/Kelsey, MAPro Television Database (‘‘BIA’’) as of April 7, 2010, about 1,015 of an estimated 1,380 commercial television stations 110 (or about 74 percent) have revenues of $14 million or less and, thus, qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 390.111 We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations 112 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. 35. In addition, an element of the definition of ‘‘small business’’ is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific 107 See 13 CFR 121.201, NAICS Code 515120 (2007). 108 Id. This category description continues, ‘‘These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or from external sources.’’ Separate census categories pertain to businesses primarily engaged in producing programming. See Motion Picture and Video Production, NAICS code 512110; Motion Picture and Video Distribution, NAICS Code 512120; Teleproduction and Other Post-Production Services, NAICS Code 512191; and Other Motion Picture and Video Industries, NAICS Code 512199. 109 See News Release, ‘‘Broadcast Station Totals as of December 31, 2009,’’ 2010 WL 676084 (F.C.C.) (dated Feb. 26, 2010) (‘‘Broadcast Station Totals’’); also available at https://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC-296538A1.pdf. 110 We recognize that this total differs slightly from that contained in Broadcast Station Totals; however, we are using BIA’s estimate for purposes of this revenue comparison. 111 See Broadcast Station Totals. 112 ‘‘[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.’’ 13 CFR 121.103(a)(1). E:\FR\FM\28JYP1.SGM 28JYP1 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of ‘‘small business’’ is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. 36. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA’s broad economic census category, ‘‘Wired Telecommunications Carriers,’’ 113 which was developed for small wireline firms.114 Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.115 However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled ‘‘Cable and Other Program Distribution.’’ The definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.116 As of June 2004, there were approximately 135 members in the Independent Multi-Family Communications Council (IMCC), the trade association that represents PCOs.117 The IMCC indicates that, as of June 2006, PCOs serve about 1 to 2 percent of the multichannel video programming distributors (MVPD) marketplace.118 Individual PCOs often serve approximately 3,000–4,000 113 See 13 CFR 121.201, NAICS code 517110 (2007). 114 Although SMATV systems often use DBS video programming as part of their service package to subscribers, they are not included in Section 340’s definition of ‘‘satellite carrier.’’ See 47 U.S.C. 340(i)(1) and 338(k)(3); 17 U.S.C.119(d)(6). 115 13 CFR 121.201, NAICS code 517110 (2007). 116 13 CFR 121.201, NAICS code 517510 (2002). 117 See Eleventh Annual Cable/MVPD Competition Report, FCC 05–13 (rel. Feb. 4, 2005). 118 See Thirteenth Annual Cable/MVPD Competition Report. VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 subscribers, but the larger operations serve as many as 15,000–55,000 subscribers. In total, as of June 2006, PCOs serve approximately 900,000 subscribers.119 Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest 10 PCOs, we believe that a substantial number of PCOs may have been categorized as small entities under the now superseded SBA small business size standard for Cable and Other Program Distribution.120 4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 37. The NPRM’s proposed rules do not impose any new reporting, recordkeeping or other compliance requirements. 5. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 38. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.121 39. We invite comment on whether there are any alternatives we should consider to our proposed implementation of the statutory amendments to Section 340(b) that would minimize any adverse impact on small businesses, but which are consistent with the statute and its goals and also maintain the benefits of our proposals. As discussed in the NPRM, STELA’s amendments to Section 340(b) intend to facilitate satellite carriage of SV stations, with the expectation that this will increase satellite TV service to consumers and promote regulatory parity between cable and satellite PO 00000 119 Id. 120 13 121 5 CFR 121.201, NAICS code 517510 (2002). U.S.C. 603(c)(1) through (4). Frm 00045 Fmt 4702 Sfmt 4702 44207 service.122 We believe our proposed rule changes implement the statute in the way that is most consistent with the plain language of the statute.123 We also note that the plain language of the statute does not appear to give us discretion to treat small entities differently from larger ones, but seek comment on this question. 40. As was the intent of Congress, we believe our proposed rules will benefit satellite carriers and the SV stations which they would carry,124 as well as consumers of satellite TV service.125 We believe that adverse impact to these entities is unlikely because SV carriage under Section 340 is permissive (and not mandatory); that is, the satellite carrier chooses to carry an SV station and the SV station must grant its consent to be carried.126 We do not have data to measure whether small TV stations on the whole, including inmarket network affiliates, are more or less likely to benefit from satellite carriage of SV stations, so we invite small stations to comment on this issue. 6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule 41. None. B. Initial Paperwork Reduction Act of 1995 Analysis 42. This NPRM has been analyzed with respect to the Paperwork Reduction Act of 1995 (‘‘PRA’’),127 and does not propose any new or modified information collection requirements.128 In addition, therefore, it does not contain any new or modified ‘‘information collection burden for small business concerns with fewer than 25 employees,’’ pursuant to the Small 122 See H.R. 3570 Report at 4–5; H.R. 2994 Report at 16. In the NPRM, we stated that, in revising the law, Congress intended for the Commission to create a framework that would generally provide for the satellite carriage of SV stations. 123 Our proposed rules are based on, and largely track, the amended language of the statute. 124 For example, small broadcast stations will benefit from the opportunity to be delivered as an SV station to more viewers. 125 See H.R. 3570 Report at 4–5. 126 See 47 U.S.C. 340(d). 127 The Paperwork Reduction Act of 1995 (‘‘PRA’’), Pub. L. 104–13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.). 128 The Commission does not propose to modify the existing information collections that relate to the Commission’s significantly viewed rules and procedures: OMB Control Nos. 3060–0311 (47 CFR 76.54), 3060–0960 (47 CFR 76.122, 76.123, 76.124, 76.127), and 3060–0888 (47 CFR 76.7). The Commission will continue to maintain these collections and seek extensions at the appropriate time. E:\FR\FM\28JYP1.SGM 28JYP1 44208 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules Business Paperwork Relief Act of 2002.129 C. Ex Parte Rules 43. 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.130 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 twosentence description of the views and arguments presented is generally required.131 Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b). erowe on DSK5CLS3C1PROD with PROPOSALS D. Filing Requirements 44. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of the Commission’s rules,132 interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. 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.133 • 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. • 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. All filings must be addressed to the Commission’s Secretary, Office of the 129 The Small Business Paperwork Relief Act of 2002 (‘‘SBPRA’’), Pub. L. 107–198, 116 Stat 729 (2002) (codified in Chapter 35 of title 44 U.S.C.); see 44 U.S.C. 3506(c)(4). 130 See 47 CFR 1.1206(b); see also id. 1.1202, 1.1203. 131 See id. 1.1206(b)(2). 132 See id. 1.415, 1419. 133 See Electronic Filing of Documents in Rulemaking Proceedings, Report and Order, 63 FR 24121, May 1, 1998. VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 Secretary, Federal Communications Commission. Æ All hand-delivered or messengerdelivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW–A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. The filing hours are 8 a.m. to 7 p.m. Æ 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. Æ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554. 45. 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, Microsoft Word, and/or Adobe Acrobat. 46. Accessibility Information. To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email 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. 47. Additional Information. For additional information on this proceeding, contact Evan Baranoff, Evan.Baranoff@fcc.gov, of the Media Bureau, Policy Division, (202) 418– 2120. VI. Ordering Clauses 48. Accordingly, it is ordered that pursuant to Section 203 of the Satellite Television Extension and Localism Act of 2010, and Sections 1, 4(i) and (j), and 340 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), and 340, notice is hereby given of the proposals and tentative conclusions described in this Notice of Proposed Rulemaking. 49. It is further ordered that the Reference Information Center, Consumer Information Bureau, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 76 Satellite television. Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rule Changes For the reasons discussed in the preamble, the FCC proposes to amend 47 CFR part 76 as follows: PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE. 1. The authority citation for part 76 continues to read as follows: Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573. 2. Amend § 76.5(i) by removing the words ‘‘other than cable television’’ and adding in their place the words ‘‘overthe-air’’ and in the Note following paragraph (i) remove the word ‘‘noncable’’ each place it appears and add in its place the words ‘‘over-the-air’’. 3. Amend § 76.54 by revising the first sentence in paragraph (c), revising paragraph (g) and by removing and reserving paragraph (h) to read as follows: § 76.54 Significantly viewed signals; method to be followed for special showings. * * * * * (c) Notice of a survey to be made pursuant to paragraph (b) of this section shall be served on all licensees or permittees of television broadcast stations within whose predicted noise limited service contour, as defined in § 73.622(e) of this chapter, the cable or satellite community or communities are located, in whole or in part, and on all other system community units, franchisees, and franchise applicants in the cable community or communities at least (30) days prior to the initial survey period. * * * * * * * * (g) Limitations on satellite subscriber eligibility. A satellite carrier may retransmit a significantly viewed network station to a subscriber, provided the subscriber satisfies the conditions in paragraphs (g)(1) and (g)(2) of this section or qualifies for one of the two exceptions to these conditions provided in paragraphs (g)(3) and (g)(4) of this section. (1) Receipt of local-into-local service. A satellite carrier may retransmit to a E:\FR\FM\28JYP1.SGM 28JYP1 Federal Register / Vol. 75, No. 144 / Wednesday, July 28, 2010 / Proposed Rules subscriber the signal of a significantly viewed station only if that subscriber receives local-into-local service, pursuant to § 76.66. (2) Receipt in HD format. A satellite carrier may retransmit to a subscriber in high definition (HD) format the signal of a significantly viewed station only if such carrier also retransmits in HD format the signal of a station located in the local market of such subscriber and affiliated with the same network whenever such format is available from such station. This condition does not apply to, nor prohibit, the retransmission to a subscriber of a significantly viewed station in standard definition (SD) format. (3) Exception if no network affiliate in local market. The limitations in paragraphs (g)(1) and (g)(2) of this section will not prohibit a satellite carrier from retransmitting a significantly viewed network station to a subscriber located in a local market in which there are no network stations affiliated with the same television network as the significantly viewed station. (4) Exception if waiver granted by local station. The limitations in paragraphs (g)(1) and (g)(2) of this section will not apply if, and to the extent that, the local network station affiliated with the same television network as the significantly viewed station has granted a waiver in accordance with 47 U.S.C. 340(b)(4). * * * * * [FR Doc. 2010–18538 Filed 7–27–10; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 600 and 622 [Docket No. 0907201152–91188–01] RIN 0648–AY05 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Regulatory Amendment to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. erowe on DSK5CLS3C1PROD with PROPOSALS AGENCY: NMFS issues this proposed rule that would implement a regulatory SUMMARY: VerDate Mar<15>2010 15:46 Jul 27, 2010 Jkt 220001 amendment to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands (FMP) prepared by the Caribbean Fishery Management Council (Council). This proposed rule would modify the Bajo de Sico seasonal closure from a 3-month closure to a 6-month closure, and prohibit fishing for and possession of Caribbean reef fish in or from the exclusive economic zone (EEZ) portion of Bajo de Sico during the closure. The proposed rule would also prohibit anchoring in the EEZ portion of Bajo de Sico year-round. In addition to the measures contained in the regulatory amendment, this proposed rule would also add spear to the list of allowable gears in the commercial sector of the Caribbean reef fish fishery. The intended effect of this proposed rule is to provide further protection for red hind spawning aggregations and large snappers and groupers, and better protect the essential fish habitat (EFH) where these species reside. DATES: Written comments must be received on or before August 27, 2010. ADDRESSES: You may submit comments on the proposed rule identified by 0648–AY05, by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Britni Tokotch, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. • Fax: 727–824–5308; Attention: Britni Tokotch. Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to https://www.regulations.gov without change. All personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of the regulatory amendment-which includes an Environmental Assessment (EA), an initial regulatory flexibility analysis (IRFA), and a regulatory impact review (RIR)--may be obtained from Britni Tokotch, Southeast PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 44209 Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701 or may be downloaded from the Southeast Regional Office website at https://sero.nmfs.noaa.gov. FOR FURTHER INFORMATION CONTACT: Britni Tokotch, 727–824–5305. SUPPLEMENTARY INFORMATION: The Caribbean reef fish fishery is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background The Bajo de Sico area closure was first implemented in 1996 to protect spawning aggregations of red hind. Currently, the EEZ portion of Bajo de Sico is closed to all fishing activities from December 1 through the end of February, each year. Within the EEZ portion of the Bajo de Sico closed area, the use of bottom-tending gear, including traps, pots, gillnets, trammel nets, and bottom longlines, is prohibited year-round. Recently, Bajo de Sico has been identified as an important spawning site, especially for red hind, and possibly for other resident groupers, including Nassau and yellowfin groupers. Bajo de Sico is also an important foraging site for these and other Caribbean reef fish. The Bajo de Sico closed area has been described as a well developed and diverse coral and sponge habitat, which provides EFH for Caribbean reef fish within Bajo de Sico. The purpose of this proposed rule is to protect red hind spawning aggregations and large snappers and groupers from directed fishing mortality to achieve a more natural sex ratio, age, and size structure, and to protect associated EFH, while minimizing adverse social and economic effects. Management Measures Contained in this Proposed Rule Within the EEZ portion of Bajo de Sico, this proposed rule would establish a seasonal closure from October 1 through March 31, each year, during which fishing for and possession of Caribbean reef fish in or from the area would be prohibited. The proposed revision of the Bajo de Sico closure would provide additional protection for Caribbean reef fish inhabiting Bajo de Sico. This proposed rule would also prohibit anchoring by fishing vessels year-round while in the EEZ portion of the Bajo de Sico closed area. Prohibiting E:\FR\FM\28JYP1.SGM 28JYP1

Agencies

FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 144 (Wednesday, July 28, 2010)]
[Proposed Rules]
[Pages 44198-44209]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18538]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 10-148; FCC 10-130]


Implementation of Section 203 of the Satellite Television 
Extension and Localism Act of 2010 (STELA); Amendments to Section 340 
of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes changes to its 
satellite television ``significantly viewed'' rules to implement 
Section 203 of the Satellite Television Extension and Localism Act of 
2010 (STELA). Section 203 of the STELA amends Section 340 of the 
Communications Act, which gives satellite carriers the authority to 
offer out-of-market but ``significantly viewed'' broadcast television 
network stations as part of their local service to subscribers. The 
STELA requires the Commission to issue final rules in this proceeding 
on or before November 24, 2010.

DATES: Comments are due on or before August 17, 2010; reply comments 
are due on or before August 27, 2010.

ADDRESSES: You may submit comments, identified by MB Docket No. 10-148, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Electronic Comment 
Filing System (ECFS) Web Site: https://fjallfoss.fcc.gov/ecfs/. Follow 
the instructions for submitting comments.
     Mail: All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission, 
445 12th Street, SW., Washington, DC 20554.
     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 section V. ``PROCEDURAL 
MATTERS'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, Evan Baranoff, Evan.Baranoff@fcc.gov, of the Media Bureau, 
Policy Division, (202) 418-7142.

[[Page 44199]]


SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), FCC 10-130, adopted on July 22, 2010, 
and released on July 23, 2010. The full text of this document is 
available electronically via ECFS at https://fjallfoss.fcc.gov/ecfs/or 
may be downloaded at https://hraunfoss.fcc.gov/edocs-public/attachmatch/FCC-10-130.pdf. (Documents will be available electronically in ASCII, 
Word 97, and/or Adobe Acrobat.) This document is also 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. The complete text may be purchased 
from the Commission's copy contractor, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554. Alternative formats are available for 
people with disabilities (Braille, large print, electronic files, audio 
format), by sending an e-mail to fcc504@fcc.gov or calling the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Summary of the Notice of Proposed Rulemaking

I. Introduction

    1. In this Notice of Proposed Rulemaking (NPRM), we propose changes 
to our satellite television ``significantly viewed'' rules to implement 
Section 203 of the Satellite Television Extension and Localism Act of 
2010 (STELA).\1\ Section 203 of the STELA amends Section 340 of the 
Communications Act of 1934 (``Communications Act'' or ``Act''), which 
gives satellite carriers the authority to offer out-of-market but 
``significantly viewed'' broadcast television network stations as part 
of their local service to subscribers.\2\ The STELA requires the 
Commission to issue final rules in this proceeding on or before 
Wednesday, November 24, 2010.\3\
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    \1\ The Satellite Television Extension and Localism Act of 2010 
(STELA) sec. 203, Pub. L. 111-175, 124 Stat. 1218, 1245 (2010) (sec. 
203 codified as amended at 47 U.S.C. 340, other STELA amendments 
codified in scattered sections of 17 and 47 U.S.C.). The STELA was 
enacted on May 27, 2010 (S. 3333, 111th Cong.). This proceeding to 
implement STELA sec. 203 (titled ``Significantly Viewed Stations''), 
124 Stat. at 1245, and the related statutory copyright license 
provisions in STELA sec. 103 (titled ``Modifications to Statutory 
License for Satellite Carriers in Local Markets''), 124 Stat. at 
1227-28, is one of a number of Commission proceedings that are 
required to implement the STELA.
    \2\ 47 U.S.C. 340. We note that the nature of SV carriage under 
Section 340 is permissive (and not mandatory), meaning the statute 
applies when a satellite carrier chooses to carry an SV station and 
has obtained retransmission consent from such SV station. Id. at 
340(d).
    \3\ The STELA requires the Commission to take all actions 
necessary to promulgate a rule to implement the amendments within 
270 days after the date of the enactment. STELA sec. 203(b). The 
STELA establishes February 27, 2010 as its effective date or ``date 
of enactment,'' even though the law was enacted by Presidential 
signature on May 27, 2010. STELA sec. 307. Congress backdated the 
STELA's effective date to protect the satellite carriers that 
continued to provide distant signals (which, at that time, included 
significantly viewed signals) during a two-day gap in coverage of 
the distant signal statutory copyright license, which expired on 
February 28 and was not extended until March 2, 2010. Congress 
passed four short-term extensions of the distant signal statutory 
copyright license (December 19, 2009, March 2, March 25 and April 
15, 2010) before finally passing STELA to reauthorize the license 
for five years.
---------------------------------------------------------------------------

    2. Significantly viewed (``SV'') stations are television broadcast 
stations that the Commission has determined have sufficient over-the-
air (i.e., non-cable or non-satellite) viewing \4\ to be considered 
local for certain purposes and so are not constrained by the boundary 
of that station's local market or Designated Market Area (``DMA''). The 
individual TV station, or cable operator or satellite carrier that 
seeks to carry the station, may petition the Commission to obtain 
``significantly viewed'' status for the station,\5\ and placement on 
the SV List.\6\ The designation of ``significantly viewed'' status 
allows a station assigned to one market to be treated as a ``local'' 
station with respect to a particular cable or satellite community \7\ 
in another market, and, thus, enables its cable or satellite carriage 
into said community in that other market.\8\ Whereas cable operators 
have had carriage rights for SV stations since 1972,\9\ satellite 
carriers have had such authority only since 2004 \10\ and may only 
retransmit SV network stations to ``eligible'' satellite 
subscribers.\11\ These satellite subscriber eligibility restrictions 
are intended to prevent satellite carriers from favoring an SV network 
station over the in-market (local) station affiliated with the same 
network.\12\
---------------------------------------------------------------------------

    \4\ To qualify for significantly viewed status (i.e., for 
placement on the significantly viewed list or ``SV List''), an SV 
station can be either a ``network'' station or an ``independent'' 
station, with network stations requiring a higher share of viewing 
hours. 47 CFR 76.5(i)(1) and (2). The Commission's rules define 
network station as one of the ``three major national television 
networks'' (i.e., ABC, CBS or NBC). 47 CFR 76.5(j) and (k). Parties 
may demonstrate that stations are significantly viewed either on a 
community basis or on a county-wide basis. 47 CFR 76.54(b), (d).
    \5\ See 47 CFR 76.5, 76.7, 76.54. A TV station, cable operator 
or satellite carrier that wishes to have a station designated 
significantly viewed must file a petition pursuant to the pleading 
requirements in 47 CFR 76.7(a)(1) and use the method described in 47 
CFR 76.54 to demonstrate that the station is significantly viewed as 
defined in 47 CFR 76.5(i). SHVERA Significantly Viewed Report and 
Order, FCC 05-187, 70 FR 76504, December 27, 2005.
    \6\ The significantly viewed list or ``SV List'' identifies the 
list of stations the Commission has determined to be significantly 
viewed in specified counties and communities. The list applies to 
both cable and satellite providers. The Commission updates this list 
as necessary upon the appropriate demonstrations by stations or 
cable or satellite providers. The current SV List is available on 
the Media Bureau's Web site at https://www.fcc.gov/ mb/.
    \7\ We note that the SV station can only be carried in the cable 
or satellite community in which it is significantly viewed. See 47 
CFR 76.5(dd) (defining cable ``community unit'') and 76.5(gg) 
(defining a ``satellite community'').
    \8\ For copyright purposes, significantly viewed status means 
that cable and satellite providers may carry the distant but SV 
station with the reduced copyright payment obligations applicable to 
local (in-market) stations. See 17 U.S.C. 111(a), (c), (d), and (f), 
as amended by STELA sec. 104 (relating to cable statutory copyright 
license) and 122(a)(2), as amended by STELA sec. 103 (relating to 
satellite statutory copyright license).
    \9\ See Cable Television Report and Order, FCC 72-108, 37 FR 
3252, February 3, 1972 (adopting the concept of ``significantly 
viewed'' signals to differentiate between otherwise out-of-market 
television stations ``that have sufficient audience to be considered 
local and those that do not'').
    \10\ Section 202 of the Satellite Home Viewer Extension and 
Reauthorization Act of 2004 (SHVERA) created Section 340 of the 
Communications Act, which authorized satellite carriage of 
Commission-determined SV stations. See SHVERA sec. 202, Pub. L. 108-
447, 118 Stat 2809, 3393 (2004) (codified in 47 U.S.C. 340). See 
also SHVERA Significantly Viewed Report and Order.
    \11\ See 47 U.S.C. 340(b) and 47 CFR 76.54(g) and (h).
    \12\ 47 U.S.C. 340(b)(1) and (2). See, e.g., SHVERA 
Significantly Viewed Report and Order. The Copyright Act's 
definitions of ``network station'' and ``non-network station'' will 
apply for purposes of determining subscriber eligibility to receive 
an SV network station. See 47 U.S.C. 339(d) and 47 U.S.C 122(j)(4), 
as amended, applying the definitions of such terms in 47 U.S.C 
119(d)(2) and (9). Unlike the definition in the Commission's rules, 
which specifically include only ABC, CBS and NBC, the Copyright Act 
definition of ``network station'' may include other stations. See 
SHVERA Significantly Viewed Report and Order.
---------------------------------------------------------------------------

    3. Section 203 of the STELA eliminates two statutory limitations on 
subscriber eligibility to receive SV network stations from satellite 
carriers.\13\ To implement the STELA, we propose the following changes 
to our satellite subscriber eligibility rules:
---------------------------------------------------------------------------

    \13\ 47 U.S.C. 340(b)(1) and (2).
---------------------------------------------------------------------------

     We propose to eliminate the requirement that satellite 
carriers offer ``equivalent bandwidth'' to the local and SV network 
station pair, and to require instead carriage of the local network 
affiliate in high definition (HD) as a precondition to satellite 
carriage of the HD programming of an SV station affiliated with the 
same network.
     We propose to eliminate the requirement that a subscriber 
receive the specific local network station (as part of the satellite 
carrier's ``local-into-local'' service) in order for that subscriber to 
also receive an SV station affiliated with the same network and to

[[Page 44200]]

require instead that the subscriber receive local-into-local satellite 
service.

II. Background

    4. In May 2010, Congress passed and the President signed the STELA, 
which amends the 1988 copyright laws \14\ and the Communications Act of 
1934 \15\ to ``modernize, improve and simplify the compulsory copyright 
licenses governing the retransmission of distant and local television 
signals by cable and satellite television operators.'' \16\ Congress 
intended for the STELA to increase competition and service to satellite 
and cable consumers and update the law to reflect the completion of the 
digital television (DTV) transition.\17\ Notably, Congress reauthorizes 
the statutory copyright license for satellite carriage of SV stations 
and moves that license from the distant signal statutory copyright 
license provisions to the local signal statutory copyright license 
provisions.\18\ The STELA is the fourth in a series of statutes that 
addresses satellite carriage of television broadcast stations.
---------------------------------------------------------------------------

    \14\ See 17 U.S.C. 119 and 122. 17 U.S.C. 119 contains the 
statutory copyright license for satellite carriage of ``distant'' 
network stations (limited to ``unserved households'') and 17 U.S.C. 
122 contains the statutory copyright license for satellite carriage 
of ``local'' stations (generally defined as stations and subscribers 
in the same DMA but which now also includes SV stations that are 
treated as ``local'' for copyright purposes, even though such 
stations are not in the same DMA as the subscribers). The STELA also 
amended 17 U.S.C. 111, the statutory copyright license for cable 
carriage of broadcast stations.
    \15\ See 47 U.S.C. 325, 338, 339 and 340.
    \16\ See House Judiciary Committee Report dated Oct. 28, 2009, 
accompanying House Bill, H.R. 3570, 111th Cong. (2009), H.R. Rep. 
No. 111-319, at 4 (``H.R. 3570 Report''). There was no final Report 
issued to accompany the final version of the STELA bill (S. 3333) as 
it was enacted. See Senate Bill, S. 3333, 111th Cong. (2010) 
(enacted). Therefore, for the relevant legislative history, we look 
to the Reports accompanying the various predecessor bills (e.g., 
H.R. 3570, H.R. 2994, and S. 1670). These Reports remain relevant 
with respect to those provisions that were unchanged, which is the 
case for the amendments to the ``significantly viewed'' provisions 
(see STELA secs. 203, 103). Finally, also relevant are certain 
remarks made in floor statements in passing the bill (S. 3333). See 
``House of Representatives Proceedings and Debates of the 111th 
Congress, Second Session,'' 156 Cong. Rec. H3317, H3328-3330 (daily 
ed. May 12, 2010) (statements of Reps. Conyers and Smith) (``House 
Floor Debate'') and ``Senate Proceedings and Debates of the 111th 
Congress, Second Session,'' 156 Cong. Rec. S3435, (daily ed. May 7, 
2010) (statement of Sen. Leahy) (``Senate Floor Debate'').
    \17\ See H.R. 3570 Report at 5. As of the June 12, 2009 
statutory DTV transition deadline, all full-power television 
stations stopped broadcasting in analog and are broadcasting only 
digital signals. 47 U.S.C. 309(j)(14)(A).
    \18\ STELA sec. 103 (moving the SV signal statutory copyright 
license from 17 U.S.C. 119(a)(3) to 17 U.S.C. 122 (a)(2)). In doing 
so, Congress now defines SV signals as another type of local signal, 
rather than as an exception to distant signals. The move also means 
that Congress won't need to reauthorize the SV signal license in 
five years, when the distant signal license will expire.
---------------------------------------------------------------------------

    5. In the 1988 Satellite Home Viewer Act (``1988 SHVA''), Congress 
established a statutory copyright license to enable satellite carriers 
to offer subscribers who could not receive the over-the-air signal of a 
broadcast station access to broadcast programming via satellite.\19\ 
The 1988 SHVA was intended to protect the role of local broadcasters in 
providing over-the-air television by limiting satellite delivery of 
network broadcast programming to subscribers who were ``unserved'' by 
over-the-air signals. The 1988 SHVA also permitted satellite carriers 
to offer distant ``superstations'' to subscribers.\20\
---------------------------------------------------------------------------

    \19\ The Satellite Home Viewer Act of 1988 (SHVA), Pub. L. 100-
667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111, 
119). The 1988 SHVA was enacted on November 16, 1988, as an 
amendment to the copyright laws. The 1988 SHVA gave satellite 
carriers a statutory copyright license to offer distant signals to 
``unserved'' households. 17 U.S.C. 119(a).
    \20\ See id. 119(a)(1) (2009). The STELA sec. 102(g) replaces 
the term ``superstation'' with the term ``non-network station.'' 
This change in wording has no substantive impact on our rules. A 
non-network station (previously superstation) is defined as a 
television station, other than a network station, licensed by the 
Commission that is retransmitted by a satellite carrier. Non-network 
stations are still not considered ``network stations'' for copyright 
purposes. See 17 U.S.C. 119(d)(9).
---------------------------------------------------------------------------

    6. In the 1999 Satellite Home Viewer Improvement Act (``SHVIA''), 
Congress expanded satellite carriers' ability to retransmit local 
broadcast television signals directly to subscribers.\21\ A key element 
of the SHVIA was the grant to satellite carriers of a statutory 
copyright license to retransmit local broadcast programming, or 
``local-into-local'' service, to subscribers. A satellite carrier 
provides ``local-into-local'' service when it retransmits a local 
television signal back into the local market of that television station 
for reception by subscribers.\22\ Generally, a television station's 
``local market'' is the DMA in which it is located.\23\ Each satellite 
carrier providing local-into-local service pursuant to the statutory 
copyright license is generally obligated to carry any qualified local 
television station in the 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.\24\ This is commonly 
referred to as the ``carry one, carry all'' requirement. The Commission 
implemented the SHVIA by adopting rules for satellite carriers with 
regard to carriage of broadcast signals, retransmission consent, and 
program exclusivity that paralleled the requirements for cable 
service.\25\
---------------------------------------------------------------------------

    \21\ The Satellite Home Viewer Improvement Act of 1999 (SHVIA), 
Pub. L. 106-113, 113 Stat. 1501 (1999). The 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). In the SHVIA, Congress amended both the copyright laws, 
17 U.S.C. 119 and 122, and the Communications Act, 47 U.S.C. 325, 
338 and 339.
    \22\ 47 CFR 76.66(a)(6).
    \23\ See 17 U.S.C. 122(j)(2)(A); 47 U.S.C. 340(i)(1). DMAs, 
which describe each television market in terms of a unique 
geographic area, are established by Nielsen Media Research based on 
measured viewing patterns. See 17 U.S.C. 122(j)(2)(A) through (C).
    \24\ See 47 U.S.C. 338.
    \25\ See SHVIA Signal Carriage Order, 66 FR 7410, January 23, 
2001; OET SHVIA Report, FCC 00-416 (rel. Nov. 29, 2000); SHVIA 
Satellite Exclusivity Order, 65 FR 68082, November 14, 2000; SHVIA 
Retransmission Consent Enforcement Order; 65 FR 10718, February 29, 
2000; SHVIA Good Faith Retransmission Consent Order, 65 FR 15559, 
March 23, 2000.
---------------------------------------------------------------------------

    7. In the 2004 Satellite Home Viewer Extension and Reauthorization 
Act (``SHVERA''), Congress established the framework for satellite 
carriage of ``significantly viewed'' stations.\26\ Specifically, the 
SHVERA expanded the statutory copyright license to allow satellite 
carriers to retransmit a distant (out-of-market) network station as 
part of their local service to subscribers in a local market where the 
Commission determined that distant station to be ``significantly 
viewed'' (based on over-the-air viewing).\27\ In providing this 
authority to satellite carriers, Congress

[[Page 44201]]

sought to create parity with cable operators, who had already had such 
authority to offer SV stations to subscribers for more than 38 
years.\28\ The Commission implemented the SHVERA's significantly viewed 
provisions by publishing a list of SV stations and adopting rules for 
stations to attain eligibility for significantly viewed status and for 
subscribers to receive SV stations from satellite carriers. The SHVERA 
mandated that the Commission apply the same station eligibility 
requirements (i.e., rules and procedures for parties to show that a 
station qualifies for significantly viewed status) to satellite 
carriers that already applied to cable operators.\29\ However, to 
prevent a satellite carrier from favoring SV stations over traditional 
local market stations, the SHVERA also imposed subscriber eligibility 
requirements that applied only to satellite carriers.\30\
---------------------------------------------------------------------------

    \26\ The Satellite Home Viewer Extension and Reauthorization Act 
of 2004 (SHVERA), Pub. L. 108-447, 118 Stat 2809 (2004) (codified in 
scattered sections of 17 and 47 U.S.C.). The SHVERA was enacted on 
December 8, 2004 as title IX of the ``Consolidated Appropriations 
Act, 2005.'' The SHVERA contained additional mandates requiring 
Commission action, but not relevant to this proceeding, which 
concerns the carriage of SV stations. See SHVERA Reciprocal 
Bargaining Order, 70 FR 40216, July 13, 2005 (imposing a reciprocal 
good faith retransmission consent bargaining obligation on 
multichannel video programming distributors); SHVERA Section 210 
Order, 70 FR 51658, August 31, 2005 (requiring satellite carriers to 
carry local TV broadcast stations in Alaska and Hawaii); SHVERA 
Procedural Rules Order, 70 FR 21669, April 27, 2005 (adopting 
procedural rules concerning satellite carriers' notifications to TV 
broadcast stations and obligations to conduct signal testing); 
Public Notice, ``Media Bureau Seeks Comment For Inquiry Required By 
the on Rules Affecting Competition In the Television Marketplace,'' 
70 FR 6593, February 8, 2005 (opening inquiry concerning the impact 
of certain rules and statutory provisions on competition in the 
television marketplace).
    \27\ In the SHVERA, Congress again amended both the 
Communications Act, 47 U.S.C. 325, 338, 339 and 340, and the 
copyright laws, 17 U.S.C. 119 and 122. In creating a statutory 
copyright license for satellite carriers to offer significantly 
viewed stations as part of their local service to subscribers, 
Congress distinguished between out-of-market stations that had 
significant over-the-air viewership in a local market (i.e., 
significantly viewed stations) and truly ``distant'' stations.
    \28\ See SHVERA Significantly Viewed Report and Order. In 1972, 
the Commission adopted the concept of ``significantly viewed'' 
stations for cable television to differentiate between out-of-market 
television stations ``that have sufficient audience to be considered 
local and those that do not.'' Cable Television Report and Order. 
The Commission concluded at that time that it would not be 
reasonable if choices on cable were more limited than choices over 
the air, and gave cable carriage rights to stations in communities 
where they had significant over-the-air (non-cable) viewing. Id.
    \29\ See 47 CFR 76.5, 76.7 and 76.54(a) through (d). As mandated 
by the SHVERA, the Commission required satellite carriers or 
broadcast stations seeking significantly viewed status for satellite 
carriage to follow the same petition process now in place for cable 
carriage.
    \30\ 47 U.S.C. 340(b) (2004). The eligibility requirements also 
addressed the different carriage requirements that apply to cable 
(i.e., ``must carry'' for all cable systems) as compared with 
satellite (i.e., ``carry one, carry all'').
---------------------------------------------------------------------------

    8. The SHVERA limited subscribers' eligibility to receive SV 
digital television stations from satellite carriers in two key ways. 
First, the SHVERA allowed a satellite carrier to offer SV stations only 
to subscribers that received the carrier's ``local-into-local'' 
service.\31\ The Commission interpreted this provision to further 
require that the subscriber receive the specific local network station 
(as part of the carrier's ``local-into-local'' service) in order for 
that subscriber to also receive an SV station affiliated with the same 
network (called the receipt of the ``same network affiliate'' 
requirement).\32\ Second, the SHVERA allowed a satellite carrier to 
offer an SV digital station to a subscriber only if the carrier also 
provided to that subscriber the affiliated local network station in a 
format that used either (1) An ``equivalent'' amount of bandwidth for 
the local and SV network station pair, or (2) the ``entire'' bandwidth 
of the local station (called the ``equivalent or entire bandwidth'' 
requirement).\33\ The Commission interpreted this provision to require 
an objective comparison of each station's use of its bandwidth in terms 
of megabits per second (mbps) or bit rate.\34\
---------------------------------------------------------------------------

    \31\ See id. at 340(b)(1) (analog service limitations) and 
(b)(2)(A) (digital service limitations) (2004). The Commission found 
that ``subscriber receipt of `local-into-local' service [was] 
unambiguously required by the statute.'' SHVERA Significantly Viewed 
Report and Order. The SHVERA provided for two exceptions to the 
local service limitations, contained in 47 U.S.C. 340(b)(3) and (4), 
respectively. Section 340(b)(3) allows satellite carriage of an SV 
network station to a subscriber when there is no local station 
affiliated with the same television network as the SV station 
present in the local market. Section 340(b)(4) allows a satellite 
carrier to privately negotiate with the local network station to 
obtain a waiver of the subscriber eligibility restrictions in 
Sections 340(b)(1) and 340(b)(2). While revising the eligibility 
limitations, the STELA retains these exceptions unchanged.
    \32\ The SHVERA's language differed with respect to the analog 
and digital service limitations. The Commission noted that, 
``[u]nlike the ambiguity in its sister analog provision [of 47 
U.S.C. 340(b)(1) (2004)], Section 340(b)(2)(A) of the Act, 47 U.S.C. 
340(b)(2)(A) (2004), is clear in requiring a subscriber to receive 
``the digital signal of a network station in the subscriber's local 
market that is affiliated with the same television network.'' Id.
    \33\ 47 U.S.C. 340(b)(2)(B) (2004). Congress sought to prevent 
satellite carriers from offering the local network station's digital 
signal ``in a less robust format'' than the significantly viewed 
affiliate station's digital signal). SHVERA Significantly Viewed 
Report and Order.
    \34\ See id.
---------------------------------------------------------------------------

III. Discussion

    9. STELA simplifies the significantly viewed provisions in Section 
340(b) of the Communications Act to make it easier for satellite 
carriers to offer SV stations to subscribers.\35\ The STELA makes two 
key changes to the significantly viewed provisions in Section 340(b) to 
ease the limitations on satellite subscriber eligibility to receive SV 
stations.\36\ First, the STELA eliminates the equivalent or entire 
bandwidth requirement in Section 340(b)(2)(B).\37\ In its place, the 
STELA permits a satellite carrier to carry in high definition (HD) 
format an SV network station, provided the satellite carrier also 
carries in HD format the local station in the market that is affiliated 
with the same network whenever the local station is available in HD 
format.\38\ Second, the STELA strikes Section 340(b)(2)(A), the former 
digital service limitation which contained the ``same network 
affiliate'' limitation language, choosing, instead, to apply Section 
340(b)(1), the former analog service limitation which contained only 
the ``local-into-local'' service limitation language, to digital 
stations.\39\ Accordingly, we propose rules to implement the changes 
made to Section 340(b) of the Act and seek comment on them. Our 
discussion below addresses these two key changes to Section 340(b), and 
also considers the impact of these changes on the statutory exceptions 
to this section. We also propose some non-substantive, 
``housecleaning'' rule changes. We seek comment on our proposals and 
tentative conclusions set forth herein, and also invite comment on any 
other issues that may be relevant to our implementation of the STELA's 
amendments to the significantly viewed provisions.
---------------------------------------------------------------------------

    \35\ See H.R. 3570 Report at 4-5.
    \36\ STELA sec. 203(a) (amendments to be codified at 47 U.S.C. 
340(b)(1) and (2)). We note that the subscriber eligibility 
limitations in 47 U.S.C. 340(b)(1) and (2), which are amended by the 
STELA sec. 203, do not apply to cable subscribers and that we do not 
propose to substantively amend our significantly viewed rules and 
procedures that satellite carriers share with cable operators. See 
47 CFR 76.54(a) through (d). Furthermore, we note that the STELA 
sec. 203 does not amend the ``significantly viewed'' provisions in 
the Communications Act governing the eligibility of a television 
broadcast station to qualify for ``significantly viewed'' status. 
See 47 U.S.C. 340(a), (c) through (g). Therefore, we do not propose 
here any substantive (non-``housecleaning'') changes to our rules 
and procedures implementing the significantly viewed station 
eligibility requirements. See 47 CFR 76.54(a) through (f), (j) and 
(k).
    \37\ The STELA sec. 203(a) removes the equivalent or entire 
bandwidth requirement in 47 U.S.C. 340(b)(2)(B) and the STELA sec. 
204(c) strikes the definition of equivalent or entire bandwidth in 
47 U.S.C. 340(i)(4).
    \38\ See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA 
sec. 203(a).
    \39\ See Id. 340(b)(1) (2010), as amended by the STELA sec. 
203(a).
---------------------------------------------------------------------------

A. Proposed Elimination of ``Equivalent or Entire Bandwidth'' 
Requirement

    10. In the 2004 SHVERA, Congress enacted the ``equivalent'' or 
``entire'' bandwidth requirements to prevent a satellite carrier from 
using technological means to discriminate against a local network 
station in favor of the SV network affiliate.\40\ The Commission 
codified these requirements in Sec.  76.54(h) of the rules, which 
tracks the language of the statute.\41\ In implementing this provision, 
the Commission strictly interpreted the statutory requirement for 
``equivalent bandwidth.'' As a result, satellite

[[Page 44202]]

carriers must ensure virtually minute-by-minute comparisons between the 
satellite bandwidth allocated to carriage of the local station and the 
SV stations, making carriage of SV stations so burdensome that they are 
rarely carried.\42\
---------------------------------------------------------------------------

    \40\ 47 U.S.C. 340(b)(2)(B) (2004). The law reflects Congress' 
intent to prevent a satellite carrier from offering the local 
digital station ``in a less robust format'' than the SV digital 
station). SHVERA Significantly Viewed Report and Order.
    \41\ 47 CFR 76.54(h) states: ``Signals of significantly viewed 
network stations that originate as digital signals may not be 
retransmitted to subscribers unless the satellite carrier 
retransmits the digital signal of the local network station, which 
is affiliated with the same television network as the network 
station whose signal is significantly viewed, in either (1) At least 
the equivalent bandwidth of the significantly viewed station or (2) 
the entire bandwidth of the digital signal broadcast by such local 
station.''
    \42\ In a House Energy and Commerce Committee Report, Congress 
noted that the ``equivalent bandwidth'' requirement ``has generally 
served to discourage satellite carriers from using Section 340 to 
provide significantly viewed signals to qualified households.'' See 
House Energy and Commerce Committee Report dated Dec. 12, 2009, 
accompanying House Bill, H.R. 2994, 111th Cong. (2009), H.R. Rep. 
No. 111-349, at 16 (``H.R. 2994 Report''). See also Testimony of Bob 
Gabrielli, Senior Vice President, Broadcasting Operations and 
Distribution, DIRECTV, Inc., before the U.S. House of 
Representatives Subcommittee on Communications, Technology and the 
Internet, Hearing on Reauthorization of the of the Satellite Home 
Viewer Extension and Reauthorization Act, at 9 (Feb. 24, 2009) 
(asserting that it is ``infeasible'' for DIRECTV to ``carry local 
stations in the same format as SV stations every moment of the 
day'').
---------------------------------------------------------------------------

    11. STELA eliminates the ``equivalent or entire bandwidth'' 
requirement from the statute,\43\ changing the focus of the provision 
from ``equivalent bandwidth'' to ``HD format.'' The STELA amends 
Section 340(b)(2) of the Act to read as follows: \44\
---------------------------------------------------------------------------

    \43\ We note that DIRECTV, Inc. (``DIRECTV'') and EchoStar 
Satellite LLC (``EchoStar'') filed a joint petition, which remains 
pending, seeking reconsideration of two decisions in the 2005 SHVERA 
Significantly Viewed Report and Order. The first decision challenged 
by the petition is the Commission's interpretation of the 
``equivalent bandwidth'' requirement. See DIRECTV and EchoStar Joint 
Petition for Reconsideration in MB Docket No. 05-49 (filed Jan. 26, 
2006) (``DIRECTV/EchoStar Joint Petition''). As a result of the 
STELA's elimination of this requirement, we believe the petition on 
this first issue is now moot. The second issue relates to the 
receipt of the local analog station affiliate requirement, which we 
also believe is moot. We expect to dismiss the petition soon after 
we issue final rules in this proceeding.
    \44\ 47 U.S.C. 340(b)(2) (2010), as amended by the STELA sec. 
203(a).

    Service Limitations.--A satellite carrier may retransmit to a 
subscriber in high definition format the signal of a station 
determined by the Commission to be significantly viewed under 
subsection (a) only if such carrier also retransmits in high 
definition format the signal of a station located in the local 
market of such subscriber and affiliated with the same network 
---------------------------------------------------------------------------
whenever such format is available from such station.

    12. In doing so, Congress intended to facilitate satellite carriage 
of SV stations, which Congress thought was thwarted by the Commission's 
implementation of the predecessor provision.\45\ The legislative 
history also indicates an intent by Congress to simplify the law and 
increase service to satellite consumers.\46\ Additionally, in 
reauthorizing the SHVERA and mostly retaining its framework for the 
carriage of SV stations, the STELA retains the key goals of its 
predecessor statute--those being to foster localism and promote parity 
between cable and satellite service.\47\ The principal concern of 
Congress was simply to clarify that a satellite carrier may provide an 
SV station in HD format when the local network affiliate is 
broadcasting only in Standard Definition (SD) format, as long as the 
carrier provides the local station in HD format whenever such format is 
available.\48\ Moreover, in moving the statutory copyright license into 
the ``local'' license, we believe Congress recognized the ``local'' 
nature of an SV station, and that carriage of an SV network station, in 
itself, promotes localism, as long as such station is not favored over 
the in-market (local) affiliate. Therefore, we tentatively conclude 
that, in revising the law, Congress intended for the Commission to 
create a workable framework that would generally provide for the 
satellite carriage of SV stations, while ensuring that the SV network 
station is not retransmitted in HD format unless the in-market 
affiliate is also retransmitted in HD format when so broadcast.
---------------------------------------------------------------------------

    \45\ See H.R. 2994 Report at 16.
    \46\ See H.R. 3570 Report at 4-5. Congress wanted to clarify 
that a satellite carrier may provide an SV station in HD format, 
when the local network affiliate is broadcasting only in Standard 
Definition (SD) format, as long as the carrier provides the local 
station in HD format whenever such format is available. H.R. 2994 
Report at 16.
    \47\ See SHVERA Significantly Viewed Report and Order.
    \48\ H.R. 2994 Report at 16. The Commission interpreted the 
``equivalent bandwidth'' requirement to include multicast signals. 
SHVERA Significantly Viewed Report and Order. (concluding that ``if 
the SV station transmits in HD and the local station transmits 
multiplexed (multicast) signal, then a satellite carrier may carry 
the SV station's HD signal, provided it also carries as many of the 
local station's multicast channels as necessary to match the 
bandwidth provided to the SV station.''). However, the STELA's 
change to 47 U.S.C. 340(b)(2) appears to refocus the comparison of 
the local and SV network station pair on HD format.
---------------------------------------------------------------------------

    13. Accordingly, we propose to revise our rule in Sec.  76.54(h), 
which we now move to Sec.  76.54(g)(2), to eliminate the ``equivalent 
or entire bandwidth'' requirement and to provide that a satellite 
carrier may retransmit the HD signal of an SV station to a subscriber 
only if such carrier also retransmits the HD signal of the local 
station affiliated with the same network whenever that signal is 
available in HD format.\49\ Our proposed rule tracks the revised 
language in Section 340(b)(2).\50\ We also tentatively conclude that 
Section 340(b)(2), by its terms, only limits satellite carriage of an 
SV station with respect to HD format; it does not apply if the 
satellite carrier only carries the SV station in SD format.\51\ 
Finally, we note that the Advanced Television Systems Committee 
(``ATSC''), a non-profit organization that develops voluntary standards 
for digital television, including HDTV, defines ``high definition'' 
television as having a screen resolution of 720p, 1080i, or higher, and 
believe that no further definition of ``HD format'' is needed to 
implement the statute.\52\ We seek comment on our statutory 
interpretation, proposed rule and tentative conclusions. We also seek 
comment on whether satellite carriers will face any technical problems 
in order to comply with our proposed rule.
---------------------------------------------------------------------------

    \49\ See Proposed rule 47 CFR 76.54(g)(2).
    \50\ Id.
    \51\ We propose including a sentence in our proposed rule to 
clarify this point. See Proposed rule 47 CFR 76.54(g)(2).
    \52\ See, e.g., Local Broadcast Signal Carriage First Report and 
Order, 66 FR 16533, March 26, 2001 (discussing several formats that 
are considered ``high definition''); Local Broadcast Signal Carriage 
Second Report and Order, 73 FR 24502, May 5, 2008. See also, e.g., 
Newton's Telecom Dictionary definition of HDTV at 389 (20th ed. 
2004) and the Commission's ``DTV Shopping Guide'' for consumers at 
https://www.dtv.gov/shopgde.html.
---------------------------------------------------------------------------

    14. Section 340(b)(2) permits retransmission of an SV network 
station in HD ``only if such carrier also retransmits in high 
definition format the signal of a station located in the local market 
of such subscriber and affiliated with the same network whenever such 
format is available from such station.'' \53\ We seek comment on the 
significance of this requirement. What is required by this language in 
the event a satellite carrier wants to retransmit an SV network 
affiliate and there is an in-market (local) station that is 
multicasting in HD format and airing programming affiliated with the 
same network in HD on a secondary stream? Is the satellite carrier 
required to carry this secondary stream in HD in order to be permitted 
to retransmit the SV station in HD even if the in-market station's 
primary stream is affiliated with another network? We also seek 
information on the extent to which stations are broadcasting HD 
programming from two different networks, and whether this is 
sufficiently rare that it can be addressed on a case-by-case basis, 
rather than in a rule or order.
---------------------------------------------------------------------------

    \53\ See 47 U.S.C. 340(b)(2) (2010), as amended by the STELA 
sec. 203(a).
---------------------------------------------------------------------------

B. Proposed Elimination of Requirement To Receive Specific Local 
Affiliate of the Same Network

    15. We propose to amend our rules regarding subscriber eligibility 
to address STELA's change to Sections 340(b)(1) and 340(b)(2)(A) that 
eliminates the reference to receiving a

[[Page 44203]]

specific local station affiliated with the same network as the SV 
station.\54\ In the 2004 SHVERA, Congress authorized satellite carriers 
to offer SV stations to subscribers, but crafted Sections 340(b)(1) and 
340(b)(2)(A) of the Act to protect localism by requiring that these 
subscribers also receive the carrier's local service.\55\ These two 
provisions, however, contained different language. Whereas Section 
340(b)(1),\56\ the provision related to analog service, required only 
that the analog subscriber receive local service ``pursuant to Section 
338''--referring to the ``carry one, carry all'' carriage requirements 
that pertain to local stations,\57\ Section 340(b)(2)(A),\58\ the 
provision related to digital service, contained additional language 
that expressly required the digital subscriber to receive the local 
station that was specifically ``affiliated with the same television 
network'' as the SV station (hereinafter referred to as the ``same 
network affiliate'' language). Thus, while each of these provisions 
clearly required a subscriber to at least receive the satellite 
carrier's local-into-local service before that subscriber could receive 
an SV station, it was unclear whether Section 340(b)(1) also required 
an analog subscriber to receive the specific local network station 
before that subscriber could receive the SV station affiliated with the 
same network.\59\ For example, the statute did not address the 
situation where there is a local network station in the local market, 
but such station fails to request local carriage, refuses to grant 
retransmission consent, or is otherwise ineligible for local 
carriage.\60\
---------------------------------------------------------------------------

    \54\ See 47 U.S.C. 340(b)(1) (2010), as amended by the STELA 
sec. 203(a).
    \55\ 47 U.S.C. 340(b)(1) and (b)(2)(A) (2004). Congress intended 
for these provisions to protect localism ``by helping ensure that 
the satellite operator cannot retransmit into a market a 
significantly viewed digital signal of a network broadcast station 
from a distant market without also retransmitting into the market a 
digital signal of any local affiliate from the same network.'' 
SHVERA Significantly Viewed Report and Order.
    \56\ 47 U.S.C. 340(b)(1) (2004), as established in 2004, stated: 
``With respect to a signal that originates as an analog signal of a 
network station, this section shall apply only to retransmissions to 
subscribers of a satellite carrier who receive retransmissions of a 
signal that originates as an analog signal of a local network 
station from that satellite carrier pursuant to section 338.''
    \57\ 47 U.S.C. 338.
    \58\ 47 U.S.C. 340(b)(2)(A) (2004), as established in 2004, 
stated: ``With respect to a signal that originates as a digital 
signal of a network station, this section shall apply only if--(A) 
the subscriber receives from the satellite carrier pursuant to 
section 338 the retransmission of the digital signal of a network 
station in the subscriber's local market that is affiliated with the 
same television network * * *.''
    \59\ SHVERA Significantly Viewed Report and Order.
    \60\ See id.
---------------------------------------------------------------------------

    16. Ultimately, in the 2005 SHVERA Significantly Viewed Report and 
Order, the Commission interpreted both Sections 340(b)(1) and 
340(b)(2)(A) to require that the subscriber receive the specific local 
station that is affiliated with the same network as the SV station.\61\ 
Although Section 340(b)(1) lacked the express ``same network 
affiliate'' language as contained in Section 340(b)(2)(A), the 
Commission read the two provisions together and interpreted Section 
340(b)(1) to also contain the ``same network affiliate'' requirement, 
based largely on the notion that Congress intended the two provisions 
to achieve similar ends.\62\ Accordingly, the Commission adopted Sec.  
76.54(g) of the rules, based on the ``same network affiliate'' language 
in Section 340(b)(2)(A).\63\
---------------------------------------------------------------------------

    \61\ Id. This is the second decision challenged by the pending 
2006 DIRECTV/EchoStar Joint Petition. The petition challenged only 
the Commission's interpretation of the analog service limitation 
provision in 47 U.S.C. 340(b)(1), essentially conceding the meaning 
of the plain language in the digital provision in 47 U.S.C. 
340(b)(2)(A). With the end of analog full-power broadcasting (due to 
the completion of DTV transition), we believe this second issue in 
the petition is also moot, and we expect to dismiss the petition 
soon after we issue final rules in this proceeding.
    \62\ See SHVERA Significantly Viewed Report and Order. We note 
that the Commission also stated that its interpretation of Section 
340(b)(1) was necessary to give meaning to the statutory exceptions 
in Sections 340(b)(3) and (4). As discussed in more detail later, we 
believe the statutory exceptions remain meaningful to, and are 
consistent with, our proposed interpretation of Section 340(b)(1) as 
amended by STELA.
    \63\ 47 CFR 76.54(g) states: ``(g) Signals of analog or digital 
significantly viewed television broadcast stations may not be 
retransmitted by satellite carriers to subscribers who do not 
receive local-into-local service, including a station affiliated 
with the same network as the significantly viewed station, pursuant 
to Sec.  76.66 of this chapter; except that a satellite carrier may 
retransmit a significantly viewed signal of a television broadcast 
station to a subscriber who receives local-into-local service but 
does not receive a local station affiliated with the same network as 
the significantly viewed station, if: (1) There is no station 
affiliated with the same television network as the station whose 
signal is significantly viewed; or (2) The station affiliated with 
the same television network as the station whose signal is 
significantly viewed has granted a waiver in accordance with 47 
U.S.C. 340(b)(4).''
---------------------------------------------------------------------------

    17. In the STELA, Congress strikes Section 340(b)(2)(A), which 
governed digital stations and included the ``same network affiliate'' 
language,\64\ and removes the references to analog in Section 340(b)(1) 
because of the completion of the DTV transition.\65\ Specifically, the 
STELA amends Section 340(b)(1) of the Act to read as follows: \66\
---------------------------------------------------------------------------

    \64\ 47 U.S.C 340(b)(2)(A) (2004). The digital local service 
provision provided: ``With respect to a signal that originates as a 
digital signal of a network station, this section shall apply only 
if--(A) the subscriber receives from the satellite carrier pursuant 
to section 338 of this title the retransmission of the digital 
signal of a network station in the subscriber's local market that is 
affiliated with the same television network; and'' (B) the 
retransmission complies with either the (i) equivalent or (ii) 
entire bandwidth requirement. (Emphasis added.)
    \65\ 47 U.S.C. 340(b)(1) (2004). The analog local service 
provision provided: ``With respect to a signal that originates as an 
analog signal of a network station, this section shall apply only to 
retransmissions to subscribers of a satellite carrier who receive 
retransmissions of a signal that originates as an analog signal of a 
local network station from that satellite carrier pursuant to 
section 338 of this title.''
    \66\ 47 U.S.C. 340(b)(1) (2010), as amended by the STELA sec. 
203(a).

    Service Limited to Subscribers Taking Local-Into-Local 
Service.--This section shall apply only to retransmissions to 
subscribers of a satellite carrier who receive retransmissions of a 
---------------------------------------------------------------------------
signal from that satellite carrier pursuant to section 338.

This provision, as amended, still contains the local-into-local service 
requirement,\67\ but no longer requires carriage of the local affiliate 
of the same network. We presume that Congress acted intentionally and 
purposely when it chose to discard the ``same network affiliate'' 
language in Section 340(b)(2)(A), which language the Commission had 
relied upon for its more restrictive interpretation of Section 
340(b)(1).\68\
---------------------------------------------------------------------------

    \67\ The provision limits subscriber eligibility for SV stations 
to those subscribers that receive retransmissions from their 
satellite carrier pursuant to the ``carry one, carry all'' 
requirement in 47 U.S.C. 338.
    \68\ See, e.g., Moshe Gozlon-Peretz v. United States, 498 U.S. 
395, 404 (1990) (``[Where] Congress includes particular language in 
one section of a statute but omits it in another section of the same 
Act, it is generally presumed that Congress acts intentionally and 
purposely in the disparate inclusion or exclusion.'') (internal 
citations omitted); Russello v. United States, 464 U.S. 16, 23 
(1983) (same); Estate of Bell v. Commissioner, 928 F.2d 901, 904 
(9th Cir. 1991) (``Congress is presumed to act intentionally and 
purposely when it includes language in one section but omits it in 
another.''); Arizona Elec. Power Co-op. v. United States, 816 F.2d 
1366, 1375 (9th Cir. 1987) (``When Congress includes a specific term 
in one section of a statute but omits in another section of the same 
Act, it should not be implied where it is excluded.'').
---------------------------------------------------------------------------

    18. Accordingly, we propose to revise our rule in Sec.  76.54(g) to 
reflect the amended statutory language in Section 340(b)(1).\69\ We 
tentatively conclude that, by striking Section 340(b)(2)(A), Congress 
intended to eliminate the requirement that a subscriber receive the 
specific local station that is affiliated with the same network as the 
SV station. Therefore, our proposed rule requires only that a 
subscriber receive the satellite carrier's local-into-local service as 
a pre-condition for the subscriber to receive SV stations. We

[[Page 44204]]

note that this interpretation would allow a satellite carrier to carry 
an SV station affiliated with a particular network if the local in-
market station affiliated with the same network does not grant 
retransmission consent. We seek comment on our proposed rule and 
tentative conclusions.
---------------------------------------------------------------------------

    \69\ See Proposed rule 47 CFR 76.54(g)(1).
---------------------------------------------------------------------------

C. Statutory Exceptions to the Subscriber Eligibility Limitations

    19. While revising the subscriber eligibility limitations in 
Sections 340(b)(1) and 340(b)(2), the STELA retains without change the 
statutory exceptions in Sections 340(b)(3) and 340(b)(4) to these 
restrictions.\70\ As noted above, the Section 340(b)(3) exception to 
the subscriber eligibility limitations permits a satellite carrier to 
offer an SV network station to a subscriber when there is no local 
network affiliate present in the local market.\71\ The Section 
340(b)(4) exception permits a satellite carrier to privately negotiate 
with the local network station to obtain a waiver of the eligibility 
restrictions.\72\ These two exceptions provide as follows:
---------------------------------------------------------------------------

    \70\ 47 U.S.C. 340(b)(3) and (4). We note that the STELA sec. 
103 does amend the waiver provision in the corresponding satellite 
statutory copyright license in 17 U.S.C. 122(a)(2) to eliminate the 
``sunset'' provision and replace the term ``superstation'' with 
``non-network station.''
    \71\ Id. at 340(b)(3).
    \72\ Id. at 340(b)(4).

    (b)(3) The limitations in paragraphs (1) and (2) shall not 
prohibit a retransmission under this section to a subscriber located 
in a local market in which there are no network stations affiliated 
with the same television network as the station whose signal is 
being retransmitted pursuant to this section.
    (b)(4) Paragraphs (1) and (2) shall not prohibit a 
retransmission of a network station to a subscriber if and to the 
extent that the network station in the local market in which the 
subscriber is located, and that is affiliated with the same 
television network, has privately negotiated and affirmatively 
granted a waiver from the requirements of paragraph (1) and (2) to 
such satellite carrier with respect to retransmission of the 
significantly viewed station to such subscriber.

We tentatively conclude that these statutory exceptions will continue 
to apply as they have before and are consistent with our proposed 
interpretations of the amended subscriber limitation provisions in 
Sections 340(b)(1)-(2). We believe the statutory exceptions in Sections 
340(b)(3)-(4) will continue to have meaning, and would not be 
superfluous, to our proposed interpretation of Section 340(b)(1).\73\ 
For example, the statutory exceptions in Sections 340(b)(3)-(4) would 
still apply where local-into-local service is not available to a 
subscriber for technical reasons (such as the spot beam does not cover 
the DMA or its reception is blocked for an individual subscriber by 
terrain or foliage) or if local-into-local service is not yet offered 
by the satellite carrier to a subscriber's market. We seek comment on 
our tentative conclusions. We also invite comment on whether 
application of these unchanged statutory exceptions to the amended 
subscriber limitation provisions raise any issues that may be relevant 
to our implementation of the Section 340(b) significantly viewed 
provisions as a whole.
---------------------------------------------------------------------------

    \73\ See SHVERA Significantly Viewed Report and Order. The 
Commission stated that if Section 340(b)(1) only required receipt of 
any local-into-local service as a prerequisite to receiving an SV 
network affiliate, as opposed to receiving the specific local 
affiliate of the same network as the SV station, then there would be 
no need for the statutory exceptions in Sections 340(b)(3) and (4) 
to apply to Section 340(b)(1). Id.
---------------------------------------------------------------------------

D. Housecleaning Rule Changes

    20. In this section, we propose non-substantive changes to update 
our significantly viewed rules. We seek comment on these proposed rule 
changes.
    21. 47 CFR 76.5(i). We propose to amend Sec.  76.5(i) of the rules 
to replace its references to the term ``non-cable'' with the term 
``over-the-air.'' \74\ In the 2005 SHVERA Significantly Viewed Report 
and Order, the Commission made this change to Sec.  76.54 to reflect 
the rule's true meaning, that being to indicate over-the-air 
viewing.\75\ The Commission explained that, in the 1972 Order, the 
concept of significant viewing was adopted to apply to over-the-air 
households, which at the time essentially meant households without 
cable (i.e., non-cable households).\76\ Thus, amending Sec.  76.5(i) to 
change ``non-cable'' to ``over-the-air'' reflects the true intent of 
the rule as it was in 1976, and is more consistent with the statute's 
intent to establish parity between cable and satellite.
---------------------------------------------------------------------------

    \74\ See Proposed rule change to 47 CFR 76.5(i).
    \75\ SHVERA Significantly Viewed Report and Order.
    \76\ Id. (citing to Cable Television Report and Order).
---------------------------------------------------------------------------

    22. 47 CFR 76.54(c). We propose to amend Sec.  76.54(c) of the 
rules to strike the outdated reference to the analog Grade B 
contour.\77\ In the 2004 SHVERA Significantly Viewed Report and Order, 
the Commission revised this rule to add the appropriate service contour 
relevant for a station's digital signal--that being the noise limited 
service contour (``NLSC'').\78\ With the completion of the transition, 
we now propose to eliminate this reference to Grade B contour.
---------------------------------------------------------------------------

    \77\ See Proposed rule change to 47 CFR 76.54(c).
    \78\ SHVERA Significantly Viewed Report and Order. (The digital 
NLSC is defined in 47 CFR 73.622(e).)
---------------------------------------------------------------------------

IV. Conclusion

    23. In conclusion, in this NPRM, we propose to simplify our 
satellite TV significantly viewed rules, as mandated by Congress. To 
implement Section 203 of the STELA, we propose changes to Sec.  76.54 
of our rules. Our proposed rule changes--shown, below, in the Proposed 
Rule Changes section of this document--are modeled on the amended 
language in the statute. Specifically, we propose to eliminate both the 
``equivalent or entire bandwidth'' requirement and the requirement for 
a subscriber to receive the specific local affiliate of the SV station.

V. Procedural Matters

A. Initial Regulatory Flexibility Act Analysis

    24. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') \79\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
significant economic impact on small entities by the policies and rules 
proposed in this NPRM. Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments provided in Section V.D. of the 
NPRM. The Commission will send a copy of the NPRM, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration 
(``SBA'').\80\ In addition, the NPRM and IRFA (or summaries thereof) 
will be published in the Federal Register.\81\
---------------------------------------------------------------------------

    \79\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Pub. L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA 
is the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA).
    \80\ See 5 U.S.C. 603(a).
    \81\ See id.
---------------------------------------------------------------------------

1. Need for, and Objectives of, the Proposed Rule Changes
    25. This document proposes changes to the Commission's satellite 
television ``significantly viewed'' rules to implement Section 203 of 
the Satellite Television Extension and Localism Act of 2010 
(STELA).\82\ The STELA requires

[[Page 44205]]

the Commission to issue final rules in this proceeding on or before 
Wednesday, November 24, 2010.\83\
---------------------------------------------------------------------------

    \82\ The Satellite Television Extension and Localism Act of 2010 
(STELA) sec. 203, Pub. L. 111-175, 124 Stat 1218, 1245 (2010) (sec. 
203 codified as amended at 47 U.S.C. 340, other STELA amendments 
codified in scattered sections of 17 and 47 U.S.C.).
    \83\ STELA sec. 203(b).
---------------------------------------------------------------------------

    26. Section 203 of the STELA amends Section 340 of the 
Communications Act, which gives satellite carriers the authority to 
offer out-of-market but ``significantly viewed'' broadcast television 
network stations as part of their local service to subscribers.\84\ The 
designation of ``significantly viewed'' status allows a station 
assigned to one DMA to be treated as a ``local'' station with respect 
to a particular cable or satellite community in another DMA, and, thus, 
enables cable or satellite carriage into said community in that other 
DMA. Whereas cable operators have had carriage rights for 
``significantly viewed'' (``SV'') stations since 1972, satellite 
carriers have had such authority only since the 2004 Satellite Home 
Viewer Extension and Reauthorization Act of 2004 (SHVERA) and may only 
retransmit SV network stations to ``eligible'' satellite subscribers. 
The satellite subscriber eligibility rules impose conditions on when 
satellite carriers may retransmit SV stations to subscribers. These 
conditions are intended to prevent satellite carriers from favoring an 
SV network station over the in-market (local) station affiliated with 
the same network. We note that the nature of SV carriage under Section 
340 is permissive (and not mandatory), meaning the statute applies when 
a satellite carrier chooses to carry an SV station and has obtained 
retransmission consent from such SV station.\85\
---------------------------------------------------------------------------

    \84\ 47 U.S.C. 340.
    \85\ Id. at 340(d).
---------------------------------------------------------------------------

    27. Section 203 of the STELA amends the SHVERA's Section 340(b) 
satellite subscriber eligibility rules in two ways. First, it 
eliminates the former requirement that satellite carriers devote 
``equivalent bandwidth'' to the carriage of the in-market (local) 
station as compared with the bandwidth devoted to carriage of the out-
of-market SV station.\86\ In its place, the STELA requires a satellite 
carrier to retransmit ``in high definition format the signal of a 
station located in the local market of such subscriber and affiliated 
with the same network whenever such format is available from such 
station.'' \87\ Second, STELA revises the subscriber eligibility 
requirements by eliminating the SHVERA requirement that the subscriber 
receive the local station affiliated with the same network as the SV 
station and requires only that the subscriber receive the local-into-
local package from the satellite carrier.\88\ The STELA does not amend 
the SHVERA's Section 340(a) station eligibility requirements, which 
govern the eligibility of a television broadcast station to qualify for 
``significantly viewed'' status.\89\
---------------------------------------------------------------------------

    \86\ 47 U.S.C. 340(b)(2)(B) (2

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