[Senate Report 111-385]
[From the U.S. Government Publishing Office]
Calendar No. 709
111th Congress
2d Session SENATE Report
111-385
_______________________________________________________________________
SATELLITE TELEVISION EXTENSION AND LOCALISM ACT OF 2009
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2764
December 22, 2010.--Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
99-010 WASHINGTON : 2010
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian Hendricks, Republican General Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 709
111th Congress Report
SENATE
2d Session 111-385
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SATELLITE TELEVISION EXTENSION AND LOCALISM ACT OF 2009
_______
December 22, 2010.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 2764]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2764) to reauthorize the
Satellite Home Viewer Extension and Reauthorization Act of 2004
(SHVERA), having considered the same, reports favorably thereon
with an amendment (in the nature of a substitute) and
recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 2764, the Satellite Television Extension
and Localism Act of 2009 (STELA) is to reauthorize and amend
certain provisions of the Communications Act of 1934 that
govern satellite retransmission of television broadcast signals
that are set to expire at the end of 2009 and to update the
Communications Act to reflect the transition of full-power
television stations from analog to digital systems.
Background and Needs
Direct broadcast satellite (DBS) service is a nationally
distributed subscription service that delivers video and audio
programming over satellite to a small antenna located at a
subscriber's residence. The Federal Communications Commission
(Commission or FCC) first authorized the service in 1988, which
became commercially available in 1994. Currently, there are two
major DBS providers, DIRECTV and Dish Network.
Over the past 15 years, subscribership to DBS service has
grown substantially, and satellite carriers have become
significant competitors to cable operators. As of June 2006,
approximately 87 percent of households in the United States
subscribed to a multichannel video programming distributor
(MVPD), which includes cable operators, satellite carriers, and
new telephone company entrants offering comparable video
programming packages. Of the total number of MVPD subscribers,
29.2 percent are satellite customers. As of that date, DIRECTV
was the largest DBS provider and the second largest MVPD. Dish
Network was the second largest DBS provider and the third
largest MVPD.
Where satellite carriers offer subscribers access to local
broadcast signals, they have been more successful in competing
with terrestrial-based MVPDs. The licensing and regulatory
regime that enables satellite operators to retransmit broadcast
signals to subscribers has developed through a series of laws,
of which SHVERA is the latest.
Satellite Home Viewer Act (SHVA). Starting in the 1960s, the
cable industry began to offer broadcast programming to its
customers without paying broadcast television stations
copyright royalties. To address this, Congress passed the
Copyright Revision Act of 1976 (Copyright Act), which made
cable provider retransmission of broadcast signals without a
license a copyright violation. It also established a compulsory
copyright license and statutory royalty regime to allow the
retransmission of broadcast programming.
In 1988, Congress passed SHVA, creating a similar compulsory
copyright license in section 119 of the Copyright Act for
satellite carriers. A significant difference was that it
allowed satellite carriers to retransmit broadcast network and
superstation (e.g., WGN) programming only to those households
unable to receive viewable signals using over-the-air antennas
(so-called ``unserved households''). The reason for this
limitation was to preserve ``localism'' and to prevent non-
local or ``distant'' signals from taking viewers away from
local stations that provide community-focused programming such
as local news and weather. SHVA established a 5-year compulsory
copyright license, under which a satellite carrier may
retransmit distant network signals to unserved households
without permission from the copyright owners as well as
established a government-set copyright royalty to be paid by
such carrier.
SHVA also established the ``Grade B contour'' around a
broadcast tower as the determining factor as to whether a
particular household was eligible to receive distant signals
from a satellite operator. Individuals living inside a Grade B
contour were not allowed to receive distant signals, while
those outside the contour were. Following the passage of SHVA,
some satellite carriers began to offer distant signals to
served as well as unserved households. Network broadcasters
brought suit against one satellite carrier, Primetime 24,
asserting that it willfully violated SHVA by providing distant
network signals to households that did not meet the definition
of ``unserved.'' In 1998, the court found for the broadcasters
and issued a permanent injunction prohibiting Primetime 24 from
using the section 119 license to offer distant network signals.
The injunction was to take effect in stages the following year
and would have resulted in over 2 million subscribers who were
receiving the signals illegally losing access to distant
network signals. While this service was terminated for some
subscribers, the parties agreed to postpone the termination of
service for the remaining subscribers until the end of 1999.
Satellite Home Viewer Improvement Act (SHVIA). By the end of
1999, Congress had passed SHVIA. The act extended the
compulsory license regime of SHVA for an additional 5 years and
grandfathered certain customers who were receiving distant
signals illegally. SHVIA also established a ``waiver process''
under which consumers in an unserved market who cannot receive
local broadcast stations over-the-air, despite residing within
a Grade B contour, may seek a waiver to receive distant
signals.
A significant change in SHVIA was the creation of a new,
permanent, and free compulsory copyright license in section 122
of the Copyright Act, which permits satellite carriers to
retransmit local broadcast signals back into the same local
market from which they originated (local-into-local service).
The local market was defined by reference to the Nielsen
Designated Market Area (DMA). This provision was intended to
increase competition between satellite and cable operators.
Congress determined that over-the-air television would not be
adversely impacted and that advertising revenue would increase
because more viewers would have access to local stations.
Satellite carriers are not required to provide local-into-
local service to subscribers within a DMA, but if an operator
decides to provide local programming in a market, it is
required to carry all the local broadcast stations in the
market. This so-called ``carry one, carry all'' provision,
which is codified in section 338 of the Communications Act, has
an exception for duplicative stations and requires the
broadcaster seeking carriage to provide a good quality signal.
Generally, under section 325 of the Communications Act, cable
and satellite carriers are prohibited (with some exceptions)
from retransmitting the signal of a broadcast television
station without the express authority of the station. In SHVIA,
Congress exempted a satellite carrier from having to obtain
retransmission consent with respect to distant network signals
for five years. Satellite carriers, however, still must comply
with other FCC rules and regulations, including the network
non-duplication rule, the syndicated exclusivity rule, and, to
the extent feasible, the sports blackout rule.
SHVERA. Five years later, driven by the expiration of the
compulsory copyright licenses in section 119 of the Copyright
Act and the retransmission consent exception in section 325 of
the Communications Act, Congress passed SHVERA, which was
enacted on December 8, 2004. In addition to extending the
distant signal license and the retransmission consent exemption
for distant signals until December 31, 2009, SHVERA
acknowledged that stations were starting to transition to
digital broadcasting. Congress directed the FCC to study and
report on a digital signal strength standard as well as testing
procedures.
SHVERA also established a regime for the delivery of certain
``significantly viewed'' signals to consumers living in a DMA
adjacent to the DMA from which a signal originated. Under
SHVIA, broadcast signals originating from neighboring DMAs
would not be considered local even if members of a community
could view them over the air. SHVERA created a copyright
license that gives satellite carriers the option to offer
subscribers signals from an adjacent DMA, if they live in a
community that meets the ``significantly viewed'' definition.
SHVERA also grants satellite carriers retransmission rights for
such ``significantly viewed'' signals.
In addition, the act sought to rationalize a patchwork of
local and distant network signal service that grew as satellite
carriers offered local-into-local service in more markets.
SHVERA established a framework for when subscribers were
eligible to receive distant versus local signals. For example,
in areas where local signals were offered, certain subscribers
who illegally received distant signals prior to SHVIA had to
elect whether to receive local or distant network signals. They
could no longer receive both. In comparison, with limited
exceptions, new customers in markets where local-into-local
service is offered may only receive local signals.
Transition to Digital. On June 12, 2009, the nation's full
power television stations ceased analog broadcasts and began
broadcasting only digital signals. This shift necessitates a
series of amendments to the Communications Act to both remove
references to analog broadcast television signals and to ensure
that the Commission adjusts its rules related to the
retransmission of digital broadcast signals in a timely manner.
Summary of Provisions
S. 2764, the Satellite Television Extension and Localism Act
of 2009, would amend the Communications Act to extend for five
years various provisions set to expire at the end of 2009; to
reflect the transition of full-power television stations from
analog to digital; direct the FCC to complete its on-location
testing proceeding and consider ways to minimize consumer
burdens associated with such testing; to make sure consumers
who are lawfully receiving distant network signals as of the
date of enactment do not lose access to those signals; to
require satellite carriers within two years to carry the high
definition (HD) local signals of noncommercial, educational
television stations into markets where the satellite carrier
offers other local HD stations; to direct the FCC to conduct a
study of the current DMA system, including the extent to which
consumers in each local market have access to in-state
broadcast programming; to encourage satellite carriers to carry
state-wide public affairs networks; and to direct the
Comptroller General to study and report within 12 months of
enactment on the changes to communications laws and regulations
that would be necessary or beneficial to consumers should
Congress phase-out the statutory licensing requirements set
forth under sections 111, 119, and 122 of the Copyright Act.
Legislative History
In the 111th Congress, the Satellite Television Extension and
Localism Act of 2009 (S. 2764) was introduced by Senator
Rockefeller on November 10, 2009 and referred to the Senate
Committee on Commerce, Science, and Transportation. The bill is
co-sponsored by Senator Kerry. On October 7, 2009, the
Committee's Subcommittee on Communications, Technology, and the
Internet held a hearing on ``Reauthorization of the Satellite
Home Viewer Extension and Reauthorization Act of 2004.'' On
November 19, 2009, the Committee considered the bill, as
amended in the nature of a substitute, in an open executive
session. Senator Cantwell offered an amendment to allow
satellite providers to count the carriage of State public
affairs networks for the purpose of meeting the provider's
noncommercial programming carriage obligation. Senator
McCaskill offered an amendment to require satellite providers
to report information to the Commission regarding their
carriage of local broadcast stations and to direct the
Commission to study ways to incentivize such providers to offer
local broadcast stations to subscribers in local markets.
Senator Cantwell's and Senator McCaskill's amendments were
adopted as part of a manager's package. The Committee, without
objection, ordered that S. 2764, as amended, be reported.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2764--Satellite Television Extension and Localism Act of 2009
Under current law, satellite carriers pay royalty fees for
the right to transmit certain television signals to their
subscribers without obtaining specific permission from
copyright holders. S. 2764 would extend provisions of current
law that allow satellite carriers to transmit copyrighted
material without specific permission but would not extend the
requirement to pay royalties on those copyrighted
transmissions. The requirement to pay royalties will expire on
December 31, 2009. The bill also would require the Federal
Communications Commission (FCC) to conduct a study on local
network channel broadcasts and the Government Accountability
Office to conduct a report on satellite and cable company
licenses.
CBO estimates that implementing S. 2764 would not
significantly affect spending subject to appropriation;
enacting the bill would not affect direct spending or revenues.
S. 2764 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
S. 2764 would impose private-sector mandates, as defined in
UMRA, on satellite carriers and television broadcasters. Based
on information from industry sources, CBO estimates that the
aggregate cost of complying with the mandates in the bill would
fall below the annual threshold for private-sector mandates
($139 million in 2009, adjusted annually for inflation).
The bill would require that, in each market for which a
satellite carrier chooses to provide local channels in high
definition, the carrier must also provide high definition
signals of any local noncommercial, educational stations by
December 31, 2011. Assuming agreements with such stations could
be reached, CBO estimates that the cost for satellite carriers
to comply with this mandate would probably be small relative to
the annual threshold. In addition, the bill would require
satellite carriers to submit a report to the FCC containing
certain information about the markets in which they provide
local service. Based on information from industry sources about
the availability of such information, CBO estimates that the
cost of this mandate would be minimal.
The bill also would extend an existing mandate on
broadcasters that prohibits them from entering certain
exclusive contracts for the rights to broadcast their programs
and requires them to negotiate in good faith. The cost of the
mandate to broadcasters would be the net income forgone as a
result of the requirement to negotiate contracts with multiple
carriers. Based on information from industry sources, CBO
expects that few exclusive contracts would be reached.
Therefore, CBO estimates that the cost of the mandate would be
small. Additionally, the bill would impose a mandate on network
broadcasters by extending a provision that allows satellite
carriers to retransmit distant network signals to unserved
households without obtaining consent or providing compensation
to broadcasters. The cost of the mandate would be the forgone
net income broadcasters could obtain by charging satellite
carriers for such transmissions. Based upon information from
industry sources, CBO estimates the cost would be minimal.
On November 5, 2009, CBO transmitted a cost estimate for
H.R. 2994, the Satellite Home Viewer Reauthorization Act of
2009, as ordered reported by the House Committee on Energy and
Commerce on October 15, 2009. The two pieces of legislation are
similar and the CBO cost estimates (including mandate
statements) are the same.
The CBO staff contacts for this estimate are Susan Willie
and Matthew Pickford (for federal costs) and Sam Wice (for the
private-sector impact). The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 2764 would reauthorize and amend certain provisions of the
Communications Act that govern satellite retransmission of
television broadcast signals. The bill would affect
broadcasters and multichannel video programming distributors
(e.g. cable and satellite operators) already subject to these
obligations under the Communication Act, and, therefore, the
number of persons covered should be consistent with the current
levels of individuals impacted under the provisions that are
addressed in the bill.
ECONOMIC IMPACT
S. 2764 would not have an adverse impact on the nation's
economy.
PRIVACY
The reported bill would have no impact on the personal
privacy of U.S. citizens.
PAPERWORK
The reported bill would not significantly increase paperwork
requirements for individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
items contained in the bill, as reported, meet the definition
of congressionally directed spending items under the rule.
Section-by-Section Analysis
Section 1. Short Title
This section would provide that the legislation may be cited
as the ``Satellite Television Extension and Localism Act of
2009.''
Section 2. Extension of Authority
Section 2 would amend section 325(b) of the Communications
Act to extend for five years the statutory provision that
permits a satellite carrier to retransmit, without first having
to obtain consent, the signal of a distant network station to
certain unserved households. The section also would extend the
provisions in the Communications Act requiring that
retransmission consent negotiations be in good faith and
prohibiting exclusive carriage deals.
Section 3. Significantly Viewed Stations
Section 3(a) of the bill would amend section 340(b) of the
Communications Act to provide that a satellite carrier may
offer a significantly viewed station in high definition format
only if the carrier also provides the local station's
programming in high definition format, if such format is
available from the local station.
Section 3(b) of the bill would require the FCC to take all
actions necessary to implement the amendments in section 3(a)
within 180 days of the enactment of this bill.
Section 4. Conforming Amendments
This section would make modifications to sections 338, 339
and 340 of the Communications Act of 1934, as amended, to
address the transition of full-power broadcast stations from
analog to digital television.
Section 4(a) of the bill would amend section 338(g) to
require satellite carriers to retransmit local broadcast
signals in such a manner that a subscriber may receive all
local signals using one reception antenna. Section 4(a) also
would amend section 338(g) to require satellite carriers to
carry high definition local television broadcasts on a single
antenna; however, the reception antenna used to receive the
local signals in high definition format may be different from
the reception antenna used to receive the signals in non-high
definition, or standard format, provided that all local
stations carried pursuant to section 338 are available on one
reception antenna; either the one used to receive signals in
standard definition format or the one used to receive signals
in high definition format.
Section 4(b) of the bill would update the so-called
``grandfathering'' provisions that make sure that certain
consumers that are lawfully receiving distant signals do not
lose access to those signals because of a change in law or a
change in broadcast signal availability. The Committee has
established such provisions in the past to prevent unnecessary
disruptions to consumers.
Section 4(b)(1)(iv) of the bill would amend section
339(a)(2)(B) to provide that a satellite subscriber who is
lawfully receiving a distant network signal on the day before
the date of enactment of STELA does not lose access to that
signal and may continue to receive such a distant signal until
such subscriber chooses to no longer receive such distant
signal from such carrier, whether or not such subscriber elects
to subscribe to local signals.
Section 4(b)(1)(v) of the bill would amend section
339(a)(2)(C) to not allow a satellite carrier to provide a
distant signal to a person who is not lawfully receiving that
distant signal as of the date of the enactment of STELA and
either at the time such person seeks to subscribe to receive
such distant signal, resides in a local market where the
satellite carrier makes available to that person the signal of
a local network station affiliated with the same television
network pursuant to section 338 of the Communications Act and
the retransmission of such signal by such carrier can reach
such subscriber; or receives from the satellite carrier the
signal of a network station affiliated with the same network
that is broadcast by a local station in the market where the
subscriber resides, but is not the local station's primary
video.
Section 4(b)(1)(vi) of the bill would amend section
339(a)(2)(D) to provide that a subscriber would be eligible to
receive a distant signal of a network station if the subscriber
either is determined, based on the Commission's predictive
model, not to be able to receive over the air a signal of the
same network exceeding the signal intensity standard in the
Commission's rules, or successor rules, or is determined to be
an unserved household by the definition in section
119(d)(10)(A) of the Copyright Act.
This section also would update the requirement that a
satellite carrier may not use distant signals to ``time-shift''
programming. A satellite carrier may only retransmit the
distant signal of a television network to a subscriber in a
local market if the prime time network programming associated
with that distant signal is generally broadcast simultaneously
with, or later than, the prime time network programming of the
affiliate of the same network in the local market.
Section 4(b)(2) would amend section 339(c) to direct the
Commission to complete all actions necessary to develop and
prescribe by rule a point-to-point predictive model for
reliably and presumptively determining the ability of an
individual location, through the use of an antenna, to receive
a distant network signal, within 180 days of the date of
enactment of STELA. The Committee provides the Commission the
discretion to determine the appropriate type of antenna that
should be used for purposes of establishing the new predictive
model.
The section also would direct the Commission to compete,
within 180 days of the date of enactment of STELA, its
rulemaking proceeding concerning on-location testing of a
household's ability to receive an over-the-air digital signal.
The Commission is directed to seek ways to minimize consumer
burdens associated with on-location testing. The Committee
intends that the Commission consider how best to make these on-
location testing procedures as minimally burdensome on
consumers as possible.
The section also would amend the waiver provisions of section
339(c)(4)(A) of the Communications Act.
Section 5. Application Pending Completion of Rulemaking
This section would direct the FCC to follow its current rules
and regulations until the FCC adopts new rules pursuant to this
Act.
Section 5(a) of the bill would provide that between the date
of enactment of STELA and the adoption of rules by the
Commission pursuant to STELA, the Commission shall follow its
rules and regulations as in effect on the day before the date
of enactment of STELA. The Committee intends that, until the
Commission completes the rulemaking proceedings required by
STELA, the Commission's current rules shall continue to remain
in effect.
Section 5(b) of the bill would provide that for purposes of
determining whether a subscriber within the local market served
by a translator station or a low power television station
affiliated with a television network is eligible to receive
distant signals under section 339 of the Act, the Commission
shall follow its rules and regulations for determining such
subscriber's eligibility as in effect on the day before the
date of enactment of this Act until the date on which the
translator station or low power television station is licensed
to broadcast a digital signal.
Section 6. Savings Clause Regarding Definitions
Section 6 of the bill would provide that nothing in this Act
shall be construed to affect the definitions of ``program
related'' and ``primary video'' in the Communications Act of
1934 or any regulations promulgated pursuant to that Act by the
FCC. The purpose of this language is to ensure that the
treatment of multicast signals in STELA and in the Judiciary
Committee's companion legislation have no effect, one way or
the other, on ongoing consideration by the Commission of policy
issues relating to multicast signals.
Section 7. Nondiscrimination in Carriage of High Definition Digital
Signals of Noncommercial Educational Television Stations
Section 7 of the bill addresses the carriage of local public
television broadcast signals in high definition format by
satellite carriers.
In 1952, the Commission set aside 242 channels for the
exclusive use of local public television broadcasting. Congress
recognized the value of such stations to the public and
provided funding for public broadcasting starting in 1962. The
federal government continues to fund public television stations
in order to support its mission to inform, enlighten, and
enrich the public, particularly unserved and underserved
audiences such as children and minorities. Congress further
supported noncommercial, educational stations by requiring that
cable and satellite providers set aside capacity for such
programming. As more people used MVPD services, Congress
determined that carriage obligations were necessary to ensure
Americans' access to public television.
As technology has changed, Congress has modified the
obligations on MVPDs, including satellite providers, to make
sure consumers have access to noncommercial, educational
programming. This section would be a step toward requiring of
equal access and treatment of high definition noncommercial,
educational programming.
Public television representatives have reached high
definition format carriage agreements with the cable industry,
Verizon and the largest DBS operator, DirecTV. Despite ongoing
efforts to reach agreement with all satellite operators, these
efforts have been unsuccessful. As a result, millions of
consumers do not receive public broadcasting in high definition
format from their MVPD service. The Committee believes this
constitutes discriminatory treatment of locally owned and
controlled stations that serve their communities with high-
quality, local, educational, and cultural content. Absent a
private agreement, the Committee believes it is in the public
interest for Congress to require the carriage of local public
television programming in high definition format.
Section 7(a) of the bill would amend section 338(a) of the
Communications Act of 1934 to provide that an eligible
satellite carrier offer subscribers the high definition signals
of qualified noncommercial educational television stations in
local markets in which the carrier currently offers local
television broadcasts in high definition. The section would
provide that such an eligible carrier begin providing the high
definition format signals of qualified noncommercial education
television stations in at least 50 percent of the markets where
it offers local high definition format service by December 31,
2010, and in 100 percent of those markets by December 31, 2011.
This section also would require, after the date of enactment of
STELA, such a satellite provider, when it initiates the
provision of high definition local broadcast format in a local
market, to carry the high definition format signals of the
qualified noncommercial educational television station in that
market.
Section 7(b) of the bill would amend section 338(k) of the
Communications Act to reflect the Committee's strong preference
for privately negotiated carriage agreements. Specifically, the
bill would define eligible satellite carrier in a way to
nullify the above carriage requirements if a carrier is a party
to a carriage contract with a qualified noncommercial
educational television station or its representative that
governs carriage of more than 30 such stations and is in force
and effect as of the date of enactment of STELA.
Section 8. Report on Communications Implications of Statutory Licensing
Modifications
Section 8(a) of the bill would direct the Comptroller General
to study and report on the changes to communications laws and
regulations that would be necessary or beneficial to consumers
should Congress phase-out the statutory licensing requirements
set forth under sections 111, 119, and 122 of the Copyright
Act. The section would direct the Comptroller General, as part
of the study, to consider, among other things, the impact such
a phase-out and related changes to carriage requirements would
have on consumer prices and access to programming.
In June 2008, the United States Copyright Office issued a
report pursuant to section 109 of SHVERA. Congress charged the
Copyright Office with examining the compulsory statutory
licenses and making recommendations to improve the current
system. The principal recommendation of the Copyright Office
report was to move towards abolishing the licenses.
Section 8(b) of the bill would direct the Comptroller General
to report the results of the study to the Committee and the
House of Representatives Committee on Energy and Commerce not
later than 12 months after the date of enactment of this Act,
including any recommendations for legislative or administrative
actions.
Section 9. Local Network Channel Broadcast Reports
Section 9 of the bill would direct the FCC to conduct a study
of the current DMA system, including the extent to which
consumers in each local market have access to in-state
broadcast programming.
Section 9(a) of the bill would require satellite carriers to
submit a report to the FCC beginning six months after enactment
of this Act. Each satellite carrier would be required to submit
a report that contains: each local market in which it provides
signals of one or more network stations licensed to provide
signals in that market; detailed information regarding the use
of satellite capacity for the provision of local signals into
local markets; each local market in which it has commenced
providing such signals in the six-month period covered by the
report; and each local market in which it has ceased to provide
such signals in the six-month period covered by the report.
Section 9(b) of the bill would direct the FCC to initiate a
study as soon as practicable after the date of enactment of
STELA, to study the incentives that would induce a satellite
carrier to provide the signals of one or more television
stations licensed to provide signals in local markets in which
the satellite carrier does not provide such signals; and the
economic and satellite capacity conditions affecting delivery
of local signals by satellite carriers to these markets. The
FCC would be required to submit its report, containing its
findings, conclusions and recommendations, within one year
after enactment of this Act to the Committee and the House of
Representatives Committee on Energy and Commerce.
Section 10. State Public Affairs Broadcasts
Section 10 of the bill would encourage satellite carriers to
carry State public affairs networks by reducing the carrier's
required reserve for the retransmission of educational or
informational noncommercial programming pursuant to section
335(b) of the Communications Act.
This section would amend section 335(b) of the Communications
Act to reduce the portion of channel capacity that a
``qualified satellite provider'' is required to reserve
exclusively for noncommercial programming of an educational or
information nature from a minimum of 4 percent to 3.5 percent
of channel capacity.
The section would define ``qualified satellite provider'' as
any provider that provides the retransmission of the ``State
public affairs network'' of at least 15 different States upon
reasonable prices, terms, and conditions, and one that does not
delete any of the noncommercial education or information
programming in connection with the carriage of a State public
affairs network.
The section would define ``State public affairs network'' as
a noncommercial, non-broadcast network or a noncommercial
educational television station whose programming consists of
information about State government deliberations and public
policy events, and that is operated by a State government, a
501(c)(3) organization that is governed by an independent board
of directors, or a cable system.
Section 11. Severability
This section would provide that if any provision or
application of a provision is held unconstitutional, the
remainder of this Act, the amendments made by the Act, and the
application of such provisions shall not be affected thereby.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
COMMUNICATIONS ACT OF 1934
SEC. 325. FALSE, FRAUDULENT, OR UNAUTHORIZED TRANSMISSIONS.
[47 U.S.C. 325]
(a) False distress signals; rebroadcasting programs.--No
person within the jurisdiction of the United States shall
knowingly utter or transmit, or cause to be uttered or
transmitted, any false or fraudulent signal of distress, or
communication relating thereto, nor shall any broadcasting
station rebroadcast the program or any part thereof of another
broadcasting station without the express authority of the
originating station.
(b) Consent to retransmission of broadcasting station
signals.--(1) No cable system or other multichannel video
programming distributor shall retransmit the signal of a
broadcasting station, or any part thereof, except--
(A) with the express authority of the originating
station;
(B) under section 614, in the case of a station
electing, in accordance with this subsection, to assert
the right to carriage under such section; or
(C) under section 338, in the case of a station
electing, in accordance with this subsection, to assert
the right to carriage under such section.
(2) This subsection shall not apply--
(A) to retransmission of the signal of a
noncommercial television broadcast station;
(B) to retransmission of the signal of a television
broadcast station outside the station's local market by
a satellite carrier directly to its subscribers, if--
(i) such station was a superstation on May 1,
1991;
(ii) as of July 1, 1998, such station was
retransmitted by a satellite carrier under the
statutory license of section 119 of title 17,
United States Code; and
(iii) the satellite carrier complies with any
network nonduplication, syndicated exclusivity,
and sports blackout rules adopted by the
Commission under section 339(b) of this Act;
(C) until [December 31, 2009] December 31, 2014, to
retransmission of the signals of network stations
directly to a home satellite antenna, if the subscriber
receiving the signal--
(i) is located in an area outside the local
market of such stations; and
(ii) resides in an unserved household;
(D) to retransmission by a cable operator or other
multichannel video provider, other than a satellite
carrier, of the signal of a television broadcast
station outside the station's local market if such
signal was obtained from a satellite carrier and--
(i) the originating station was a
superstation on May 1, 1991; and
(ii) as of July 1, 1998, such station was
retransmitted by a satellite carrier under the
statutory license of section 119 of title 17,
United States Code; or
(E) during the 6-month period beginning on the date
of the enactment of the Satellite Home Viewer
Improvement Act of 1999, to the retransmission of the
signal of a television broadcast station within the
station's local market by a satellite carrier directly
to its subscribers under the statutory license of
section 122 of title 17, United States Code.
For purposes of this paragraph, the terms ``satellite
carrier'' and ``superstation'' have the meanings given those
terms, respectively, in section 119(d) of title 17, United
States Code, as in effect on the date of the enactment of the
Cable Television Consumer Protection and Competition Act of
1992, the term ``unserved household'' has the meaning given
that term under section 119(d) of such title, and the term
``local market'' has the meaning given that term in section
122(j) of such title.
(3)(A) Within 45 days after the date of enactment of the
Cable Television Consumer Protection and Competition Act of
1992, the Commission shall commence a rulemaking proceeding to
establish regulations to govern the exercise by television
broadcast stations of the right to grant retransmission consent
under this subsection and of the right to signal carriage under
section 614, and such other regulations as are necessary to
administer the limitations contained in paragraph (2). The
Commission shall consider in such proceeding the impact that
the grant of retransmission consent by television stations may
have on the rates for the basic service tier and shall ensure
that the regulations prescribed under this subsection do not
conflict with the Commission's obligation under section
623(b)(1) to ensure that the rates for the basic service tier
are reasonable. Such rulemaking proceeding shall be completed
within 180 days after the date of enactment of the Cable
Television Consumer Protection and Competition Act of 1992.
(B) The regulations required by subparagraph (A) shall
require that television stations, within one year after the
date of enactment of the Cable Television Consumer Protection
and Competition Act of 1992 and every three years thereafter,
make an election between the right to grant retransmission
consent under this subsection and the right to signal carriage
under section 614. If there is more than one cable system which
services the same geographic area, a station's election shall
apply to all such cable systems.
(C) The Commission shall commence a rulemaking proceeding to
revise the regulations governing the exercise by television
broadcast stations of the right to grant retransmission consent
under this subsection, and such other regulations as are
necessary to administer the limitations contained in paragraph
(2). Such regulations shall--
(i) establish election time periods that correspond
with those regulations adopted under subparagraph (B)
of this paragraph;
(ii) until [January 1, 2010] January 1, 2015,
prohibit a television broadcast station that provides
retransmission consent from engaging in exclusive
contracts for carriage or failing to negotiate in good
faith, and it shall not be a failure to negotiate in
good faith if the television broadcast station enters
into retransmission consent agreements containing
different terms and conditions, including price terms,
with different multichannel video programming
distributors if such different terms and conditions are
based on competitive marketplace considerations; and
(iii) until [January 1, 2010] January 1, 2015,
prohibit a multichannel video programming distributor
from failing to negotiate in good faith for
retransmission consent under this section, and it shall
not be a failure to negotiate in good faith if the
distributor enters into retransmission consent
agreements containing different terms and conditions,
including price terms, with different broadcast
stations if such different terms and conditions are
based on competitive marketplace considerations.
(4) If an originating television station elects under
paragraph (3)(B) to exercise its right to grant retransmission
consent under this subsection with respect to a cable system,
the provisions of section 614 shall not apply to the carriage
of the signal of such station by such cable system. If an
originating television station elects under paragraph (3)(C) to
exercise its right to grant retransmission consent under this
subsection with respect to a satellite carrier, section 338
shall not apply to the carriage of the signal of such station
by such satellite carrier.
(5) The exercise by a television broadcast station of the
right to grant retransmission consent under this subsection
shall not interfere with or supersede the rights under section
338, 614, or 615 of any station electing to assert the right to
signal carriage under that section.
(6) Nothing in this section shall be construed as modifying
the compulsory copyright license established in section 111 of
title 17, United States Code, or as affecting existing or
future video programming licensing agreements between
broadcasting stations and video programmers.
(7) For purposes of this subsection, the term--
(A) ``network station'' has the meaning given such
term under section 119(d) of title 17, United States
Code; and
(B) ``television broadcast station'' means an over-
the-air commercial or noncommercial television
broadcast station licensed by the Commission under
subpart E of part 73 of title 47, Code of Federal
Regulations, except that such term does not include a
low-power or translator television station.
(c) Broadcast to foreign countries for rebroadcast to United
States; permit. No person shall be permitted to locate, use, or
maintain a radio broadcast studio or other place or apparatus
from which or whereby sound waves are converted into electrical
energy, or mechanical or physical reproduction of sound waves
produced, and cause to be transmitted or delivered to a radio
station in a foreign country for the purpose of being broadcast
from any radio station there having a power output of
sufficient intensity and/or being so located geographically
that its emissions may be received consistently in the United
States, without first obtaining a permit from the Commission
upon proper application therefor.
(d) Application for permit.--Such application shall contain
such information as the Commission may by regulation prescribe,
and the granting or refusal thereof shall be subject to the
requirements of section 309 hereof with respect to applications
for station licenses or renewal or modification thereof, and
the license or permission so granted shall be revocable for
false statements in the application so required or when the
Commission, after hearings, shall find its continuation no
longer in the public interest.
(e) Enforcement proceedings against satellite carriers
concerning retransmissions of television broadcast stations in
the respective local markets of such carriers.--
(1) Complaints by television broadcast stations.--If
after the expiration of the 6-month period described
under subsection (b)(2)(E) a television broadcast
station believes that a satellite carrier has
retransmitted its signal to any person in the local
market of such station in violation of subsection
(b)(1), the station may file with the Commission a
complaint providing--
(A) the name, address, and call letters of
the station;
(B) the name and address of the satellite
carrier;
(C) the dates on which the alleged
retransmission occurred;
(D) the street address of at least one person
in the local market of the station to whom the
alleged retransmission was made;
(E) a statement that the retransmission was
not expressly authorized by the television
broadcast station; and
(F) the name and address of counsel for the
station.
(2) Service of complaints on satellite carriers.--For
purposes of any proceeding under this subsection, any
satellite carrier that retransmits the signal of any
broadcast station shall be deemed to designate the
Secretary of the Commission as its agent for service of
process. A television broadcast station may serve a
satellite carrier with a complaint concerning an
alleged violation of subsection (b)(1) through
retransmission of a station within the local market of
such station by filing the original and two copies of
the complaint with the Secretary of the Commission and
serving a copy of the complaint on the satellite
carrier by means of two commonly used overnight
delivery services, each addressed to the chief
executive officer of the satellite carrier at its
principal place of business, and each marked ``URGENT
LITIGATION MATTER'' on the outer packaging. Service
shall be deemed complete one business day after a copy
of the complaint is provided to the delivery services
for overnight delivery. On receipt of a complaint filed
by a television broadcast station under this
subsection, the Secretary of the Commission shall send
the original complaint by United States mail, postage
prepaid, receipt requested, addressed to the chief
executive officer of the satellite carrier at its
principal place of business.
(3) Answers by satellite carriers.--Within five
business days after the date of service, the satellite
carrier shall file an answer with the Commission and
shall serve the answer by a commonly used overnight
delivery service and by United States mail, on the
counsel designated in the complaint at the address
listed for such counsel in the complaint.
(4) Defenses.--
(A) Exclusive defenses.--The defenses under
this paragraph are the exclusive defenses
available to a satellite carrier against which
a complaint under this subsection is filed.
(B) Defenses.--The defenses referred to under
subparagraph (A) are the defenses that--
(i) the satellite carrier did not
retransmit the television broadcast
station to any person in the local
market of the station during the time
period specified in the complaint;
(ii) the television broadcast station
had, in a writing signed by an officer
of the television broadcast station,
expressly authorized the retransmission
of the station by the satellite carrier
to each person in the local market of
the television broadcast station to
which the satellite carrier made such
retransmissions for the entire time
period during which it is alleged that
a violation of subsection (b)(1) has
occurred;
(iii) the retransmission was made
after January 1, 2002, and the
television broadcast station had
elected to assert the right to carriage
under section 338 as against the
satellite carrier for the relevant
period; or
(iv) the station being retransmitted
is a noncommercial television broadcast
station.
(5) Counting of violations.--The retransmission
without consent of a particular television broadcast
station on a particular day to one or more persons in
the local market of the station shall be considered a
separate violation of subsection (b)(1).
(6) Burden of proof.--With respect to each alleged
violation, the burden of proof shall be on a television
broadcast station to establish that the satellite
carrier retransmitted the station to at least one
person in the local market of the station on the day in
question. The burden of proof shall be on the satellite
carrier with respect to all defenses other than the
defense under paragraph (4)(B)(i).
(7) Procedures.--
(A) Regulations.--Within 60 days after the
date of the enactment of the Satellite Home
Viewer Improvement Act of 1999, the Commission
shall issue procedural regulations implementing
this subsection which shall supersede
procedures under section 312.
(B) Determinations.--
(i) In general.--Within 45 days after
the filing of a complaint, the
Commission shall issue a final
determination in any proceeding brought
under this subsection. The Commission's
final determination shall specify the
number of violations committed by the
satellite carrier. The Commission shall
hear witnesses only if it clearly
appears, based on written filings by
the parties, that there is a genuine
dispute about material facts. Except as
provided in the preceding sentence, the
Commission may issue a final ruling
based on written filings by the
parties.
(ii) Discovery.--The Commission may
direct the parties to exchange
pertinent documents, and if necessary
to take prehearing depositions, on such
schedule as the Commission may approve,
but only if the Commission first
determines that such discovery is
necessary to resolve a genuine dispute
about material facts, consistent with
the obligation to make a final
determination within 45 days.
(8) Relief.--if the Commission determines that a
satellite carrier has retransmitted the television
broadcast station to at least one person in the local
market of such station and has failed to meet its
burden of proving one of the defenses under paragraph
(4) with respect to such retransmission, the Commission
shall be required to--
(A) make a finding that the satellite carrier
violated subsection (b)(1) with respect to that
station; and
(B) issue an order, within 45 days after the
filing of the complaint, containing--
(i) a cease-and-desist order
directing the satellite carrier
immediately to stop making any further
retransmissions of the television
broadcast station to any person within
the local market of such station until
such time as the Commission determines
that the satellite carrier is in
compliance with subsection (b)(1) with
respect to such station;
(ii) if the satellite carrier is
found to have violated subsection
(b)(1) with respect to more than two
television broadcast stations, a cease-
and-desist order directing the
satellite carrier to stop making any
further retransmission of any
television broadcast station to any
person within the local market of such
station, until such time as the
Commission, after giving notice to the
station, that the satellite carrier is
in compliance with subsection (b)(1)
with respect to such stations; and
(iii) an award to the complainant of
that complainant's costs and reasonable
attorney's fees.
(9) Court proceedings on enforcement of Commission
order.--
(A) In general.--On entry by the Commission
of a final order granting relief under this
subsection--
(i) a television broadcast station
may apply within 30 days after such
entry to the United States District
Court for the Eastern District of
Virginia for a final judgment enforcing
all relief granted by the Commission;
and
(ii) the satellite carrier may apply
within 30 days after such entry to the
United States District Court for the
Eastern District of Virginia for a
judgment reversing the Commission's
order.
(B) Appeal.--The procedure for an appeal
under this paragraph by the satellite carrier
shall supersede any other appeal rights under
Federal or State law. A United States district
court shall be deemed to have personal
jurisdiction over the satellite carrier if the
carrier, or a company under common control with
the satellite carrier, has delivered television
programming by satellite to more than 30
customers in that district during the preceding
4-year period. If the United States District
Court for the Eastern District of Virginia does
not have personal jurisdiction over the
satellite carrier, an enforcement action or
appeal shall be brought in the United States
District Court for the District of Columbia,
which may find personal jurisdiction based on
the satellite carrier's ownership of licenses
issued by the Commission. An application by a
television broadcast station for an order
enforcing any cease-and-desist relief granted
by the Commission shall be resolved on a highly
expedited schedule. No discovery may be
conducted by the parties in any such
proceeding. The district court shall enforce
the Commission order unless the Commission
record reflects manifest error and an abuse of
discretion by the Commission.
(10) Civil action for statutory damages.--Within 6
months after issuance of an order by the Commission
under this subsection, a television broadcast station
may file a civil action in any United States district
court that has personal jurisdiction over the satellite
carrier for an award of statutory damages for any
violation that the Commission has determined to have
been committed by a satellite carrier under this
subsection. Such action shall not be subject to
transfer under section 1404(a) of title 28, United
States Code. On finding that the satellite carrier has
committed one or more violations of subsection (b), the
District Court shall be required to award the
television broadcast station statutory damages of $
25,000 per violation, in accordance with paragraph (5),
and the costs and attorney's fees incurred by the
station. Such statutory damages shall be awarded only
if the television broadcast station has filed a binding
stipulation with the court that such station will
donate the full amount in excess of $ 1,000 of any
statutory damage award to the United States Treasury
for public purposes. Notwithstanding any other
provision of law, a station shall incur no tax
liability of any kind with respect to any amounts so
donated. Discovery may be conducted by the parties in
any proceeding under this paragraph only if and to the
extent necessary to resolve a genuinely disputed issue
of fact concerning one of the defenses under paragraph
(4). In any such action, the defenses under paragraph
(4) shall be exclusive, and the burden of proof shall
be on the satellite carrier with respect to all
defenses other than the defense under paragraph
(4)(B)(i). A judgment under this paragraph may be
enforced in any manner permissible under Federal or
State law.
(11) Appeals.--
(A) In general.--The nonprevailing party
before a United States district court may
appeal a decision under this subsection to the
United States Court of Appeals with
jurisdiction over that district court. The
Court of Appeals shall not issue any stay of
the effectiveness of any decision granting
relief against a satellite carrier unless the
carrier presents clear and convincing evidence
that it is highly likely to prevail on appeal
and only after posting a bond for the full
amount of any monetary award assessed against
it and for such further amount as the Court of
Appeals may believe appropriate.
(B) Appeal.--If the Commission denies relief
in response to a complaint filed by a
television broadcast station under this
subsection, the television broadcast station
filing the complaint may file an appeal with
the United States Court of Appeals for the
District of Columbia Circuit.
(12) Sunset.--No complaint or civil action may be
filed under this subsection after December 31, 2001.
This subsection shall continue to apply to any
complaint or civil action filed on or before such date.
* * * * * * *
SEC. 335. DIRECT BROADCAST SATELLITE SERVICE OBLIGATIONS.
[47 U.S.C. 335]
(a) Proceeding required to review DBS responsibilities.--The
Commission shall, within 180 days after the date of enactment
of this section, initiate a rulemaking proceeding to impose, on
providers of direct broadcast satellite service, public
interest or other requirements for providing video programming.
Any regulations prescribed pursuant to such rulemaking shall,
at a minimum, apply the access to broadcast time requirement of
section 312(a)(7) and the use of facilities requirements of
section 315 to providers of direct broadcast satellite service
providing video programming. Such proceeding also shall examine
the opportunities that the establishment of direct broadcast
satellite service provides for the principle of localism under
this Act, and the methods by which such principle may be served
through technological and other developments in, or regulation
of, such service.
(b) Carriage obligations for noncommercial, educational,
State public affairs, and informational programming.--
[(1) Channel capacity required.--The Commission shall
require, as a condition of any provision, initial
authorization, or authorization renewal for a provider
of direct broadcast satellite service providing video
programming, that the provider of such service reserve
a portion of its channel capacity, equal to not less
than 4 percent nor more than 7 percent, exclusively for
noncommercial programming of an educational or
informational nature.]
(1) Channel capacity required.--
(A) Except as provided in subparagraph (B),
the Commission shall require, as a condition of
any provision, initial authorization, or
authorization renewal for a provider of direct
broadcast satellite service providing video
programming, that the provider of such service
reserve a portion of its channel capacity,
equal to not less than 4 percent nor more than
7 percent, exclusively for noncommercial
programming of an educational or informational
nature.
(B) The Commission shall require, as a
condition of any provision, initial
authorization, or authorization renewal for a
qualified satellite provider of direct
broadcast satellite service providing video
programming, that such provider reserve a
portion of its channel capacity, equal to not
less than 3.5 percent nor more than 7 percent,
exclusively for noncommercial programming of an
educational or informational nature.
(2) Use of unused channel capacity.--A provider of
such service may utilize for any purpose any unused
channel capacity required to be reserved under this
subsection pending the actual use of such channel
capacity for noncommercial programming of an
educational or informational nature.
(3) Prices, terms, and conditions; editorial
control.--A provider of direct broadcast satellite
service shall meet the requirements of this subsection
by making channel capacity available to national
educational programming suppliers, upon reasonable
prices, terms, and conditions, as determined by the
Commission under paragraph (4). The provider of direct
broadcast satellite service shall not exercise any
editorial control over any video programming provided
pursuant to this subsection.
(4) Limitations.--In determining reasonable prices
under paragraph (3)--
(A) the Commission shall take into account
the nonprofit character of the programming
provider and any Federal funds used to support
such programming;
(B) the Commission shall not permit such
prices to exceed, for any channel made
available under this subsection, 50 percent of
the total direct costs of making such channel
available; and
(C) in the calculation of total direct costs,
the Commission shall exclude--
(i) marketing costs, general
administrative costs, and similar
overhead costs of the provider of
direct broadcast satellite service; and
(ii) the revenue that such provider
might have obtained by making such
channel available to a commercial
provider of video programming.
(5) Definitions.--For purposes of this subsection--
(A) The term ``provider of direct broadcast
satellite service'' means--
(i) a licensee for a Ku-band
satellite system under part 100 of
title 47 of the Code of Federal
Regulations; or
(ii) any distributor who controls a
minimum number of channels (as
specified by Commission regulation)
using a Ku-band fixed service satellite
system for the provision of video
programming directly to the home and
licensed under part 25 of title 47 of
the Code of Federal Regulations.
(B) The term ``national educational
programming supplier'' includes any qualified
noncommercial educational television station,
other public telecommunications entities, and
public or private educational institutions.
(C) The term ``qualified satellite provider''
means any provider of direct broadcast
satellite service that--
(i) provides the retransmission of
the State public affairs networks of at
least 15 different States;
(ii) offers the programming of State
public affairs networks upon reasonable
prices, terms, and conditions as
determined by the Commission under
paragraph (4) of this subsection; and
(iii) does not delete any
noncommercial programming of an
educational or informational nature in
connection with the carriage of a State
public affairs network.
(D) The term ``State public affairs network''
means a non-commercial non-broadcast network or
a noncommercial educational television
station--
(i) whose programming consists of
information about State government
deliberations and public policy events;
and
(ii) that is operated by--
(I) a State government;
(II) an organization
described in section 501(c)(3)
of the Internal Revenue Code of
1986 that is exempt from
taxation under section 501(a)
of such Code and that is
governed by an independent
board of directors; or
(III) a cable system.
* * * * * * *
SEC. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.
[47 U.S.C. 338]
(a) Carriage obligations.--
(1) In general.--Each satellite carrier providing,
under section 122 of title 17, United States Code,
secondary transmissions to subscribers located within
the local market of a television broadcast station of a
primary transmission made by that station shall carry
upon request the signals of all television broadcast
stations located within that local market, subject to
section 325(b).
(2) Remedies for failure to carry.--In addition to
the remedies available to television broadcast stations
under section 501(f) of title 17, United States Code,
the Commission may use the Commission's authority under
this Act to assure compliance with the obligations of
this subsection, but in no instance shall a Commission
enforcement proceeding be required as a predicate to
the pursuit of a remedy available under such section
501(f).
(3) Low power station carriage optional.--No low
power television station whose signals are provided
under section [119(a)(14)] 119(a)(15) of title 17,
United States Code, shall be entitled to insist on
carriage under this section, regardless of whether the
satellite carrier provides secondary transmissions of
the primary transmissions of other stations in the same
local market pursuant to section 122 of such title, nor
shall any such carriage be considered in connection
with the requirements of subsection (c) of this
section.
[(3) Effective date.--No satellite carrier shall be
required to carry local television broadcast stations
under paragraph (1) until January 1, 2002.]
(4) Carriage of signals of local stations in certain
markets.--A satellite carrier that offers multichannel
video programming distribution service in the United
States to more than 5,000,000 subscribers shall (A)
within 1 year after the date of the enactment of the
Satellite Home Viewer Extension and Reauthorization Act
of 2004, retransmit the signals originating as analog
signals of each television broadcast station located in
any local market within a State that is not part of the
contiguous United States, and (B) within 30 months
after such date of enactment retransmit the signals
originating as digital signals of each such station.
The retransmissions of such stations shall be made
available to substantially all of the satellite
carrier's subscribers in each station's local market,
and the retransmissions of the stations in at least one
market in the State shall be made available to
substantially all of the satellite carrier's
subscribers in areas of the State that are not within a
designated market area. The cost to subscribers of such
retransmissions shall not exceed the cost of
retransmissions of local television stations in other
States. Within 1 year after the date of enactment of
that Act, the Commission shall promulgate regulations
concerning elections by television stations in such
State between mandatory carriage pursuant to this
section and retransmission consent pursuant to section
325(b), which shall take into account the schedule on
which local television stations are made available to
viewers in such State.
(5) Nondiscrimination in carriage of high definition
signals of noncommercial educational television
stations.--
(A) Existing carriage of high definition
signals.--Each eligible satellite carrier
providing, under section 122 of title 17,
United States Code, any secondary transmissions
in high definition to subscribers located
within the local market of a television
broadcast station of a primary transmission
made by that station prior to the date of
enactment of the Satellite Television Extension
and Localism Act of 2009 shall carry the high
definition signals of qualified noncommercial
educational television stations located within
that local market in accordance with the
following schedule:
(i) By December 31, 2010, in at least
50 percent of the markets in which such
satellite carrier provides such
secondary transmissions in high
definition.
(ii) By December 31, 2011, in every
market in which such satellite carrier
provides such secondary transmissions
in high definition.
(B) New initiation of service.--Each eligible
satellite carrier that initiates the provision,
under section 122 of title 17, United States
Code, of any secondary transmissions in high
definition to subscribers located within the
local market of a television broadcast station
of a primary transmission made by that station
after the date of enactment of the Satellite
Television Extension and Localism Act of 2009
shall carry the high definition signals of all
qualified noncommercial educational television
stations located within that local market.
(b) Good signal required.--
(1) Costs.--A television broadcast station asserting
its right to carriage under subsection (a) shall be
required to bear the costs associated with delivering a
good quality signal to the designated local receive
facility of the satellite carrier or to another
facility that is acceptable to at least one-half the
stations asserting the right to carriage in the local
market.
(2) Regulations.--The regulations issued under
subsection (g) shall set forth the obligations
necessary to carry out this subsection.
(c) Duplication not required.--
(1) Commercial stations.--Notwithstanding subsection
(a)(1), a satellite carrier shall not be required to
carry upon request the signal of any local commercial
television broadcast station that substantially
duplicates the signal of another local commercial
television broadcast station which is secondarily
transmitted by the satellite carrier within the same
local market, or to carry upon request the signals of
more than one local commercial television broadcast
station in a single local market that is affiliated
with a particular television network unless such
stations are licensed to communities in different
States.
(2) Noncommercial stations.--The Commission shall
prescribe regulations limiting the carriage
requirements under subsection (a) of satellite carriers
with respect to the carriage of multiple local
noncommercial television broadcast stations. To the
extent possible, such regulations shall provide the
same degree of carriage by satellite carriers of such
multiple stations as is provided by cable systems under
section 615.
(d) Channel positioning.--No satellite carrier shall be
required to provide the signal of a local television broadcast
station to subscribers in that station's local market on any
particular channel number or to provide the signals in any
particular order, except that the satellite carrier shall
retransmit the signal of the local television broadcast
stations to subscribers in the stations' local market on
contiguous channels and provide access to such station's
signals at a nondiscriminatory price and in a nondiscriminatory
manner on any navigational device, on-screen program guide, or
menu.
(e) Compensation for carriage.--A satellite carrier shall not
accept or request monetary payment or other valuable
consideration in exchange either for carriage of local
television broadcast stations in fulfillment of the
requirements of this section or for channel positioning rights
provided to such stations under this section, except that any
such station may be required to bear the costs associated with
delivering a good quality signal to the local receive facility
of the satellite carrier.
(f) Remedies.--
(1) Complaints by broadcast stations.--Whenever a
local television broadcast station believes that a
satellite carrier has failed to meet its obligations
under subsections (b) through (e) of this section, such
station shall notify the carrier, in writing, of the
alleged failure and identify its reasons for believing
that the satellite carrier failed to comply with such
obligations. The satellite carrier shall, within 30
days after such written notification, respond in
writing to such notification and comply with such
obligations or state its reasons for believing that it
is in compliance with such obligations. A local
television broadcast station that disputes a response
by a satellite carrier that it is in compliance with
such obligations may obtain review of such denial or
response by filing a complaint with the Commission.
Such complaint shall allege the manner in which such
satellite carrier has failed to meet its obligations
and the basis for such allegations.
(2) Opportunity to respond.--The Commission shall
afford the satellite carrier against which a complaint
is filed under paragraph (1) an opportunity to present
data and arguments to establish that there has been no
failure to meet its obligations under this section.
(3) Remedial actions; dismissal.--Within 120 days
after the date a complaint is filed under paragraph
(1), the Commission shall determine whether the
satellite carrier has met its obligations under
subsections (b) through (e). If the Commission
determines that the satellite carrier has failed to
meet such obligations, the Commission shall order the
satellite carrier to take appropriate remedial action.
If the Commission determines that the satellite carrier
has fully met the requirements of such subsections, the
Commission shall dismiss the complaint.
[(g) Carriage of local stations on a single dish.--
[(1) Single dish.--Each satellite carrier that
retransmits the analog signals of local television
broadcast stations in a local market shall retransmit
such analog signals in such market by means of a single
reception antenna and associated equipment.
[(2) Exception.--If the carrier retransmits signals
in the digital television service, the carrier shall
retransmit such digital signals in such market by means
of a single reception antenna and associated equipment,
but such antenna and associated equipment may be
separate from the single reception antenna and
associated equipment used for analog television service
signals.
[(3) Effective date.--The requirements of paragraphs
(1) and (2) of this subsection shall apply on and after
18 months after the date of enactment of the Satellite
Home Viewer Extension and Reauthorization Act of 2004.
[(4) Notice of disruptions.--A carrier that is
providing signals of a local television broadcast
station in a local market under this section on the
date of enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004 shall, not
later than 15 months after such date of enactment,
provide to the licensees for such stations and the
carrier's subscribers in such local market a notice
that displays prominently and conspicuously a clear
statement of--
[(A) any reallocation of signals between
different reception antennas and associated
equipment that the carrier intends to make in
order to comply with the requirements of this
subsection;
[(B) the need, if any, for subscribers to
obtain an additional reception antenna and
associated equipment to receive such signals;
and
[(C) any cessation of carriage or other
material change in the carriage of signals as a
consequence of the requirements of this
paragraph.]
(g) Carriage of Local Stations on a Single Reception
Antenna.--
(1) Single reception antenna.--Each satellite carrier
that retransmits the signals of local television
broadcast stations in a local market shall retransmit
such stations in such market so that a subscriber may
receive such stations by means of a single reception
antenna and associated equipment.
(2) Additional reception antenna.--If the carrier
retransmits the signals of local television broadcast
stations in a local market in high definition format,
the carrier shall retransmit such signals in such
market so that a subscriber may receive such signals by
means of a single reception antenna and associated
equipment, but such antenna and associated equipment
may be separate from the single reception antenna and
associated equipment used to comply with paragraph (1).
(h) Additional notices to subscribers, networks, and stations
concerning signal carriage.--
(1) Notices to and elections by subscribers
concerning grandfathered signals.--Any carrier that
provides a distant signal of a network station to a
subscriber pursuant section 339(a)(2)(A) shall--
(A) within 60 days after the local signal of
a network station of the same television
network is available pursuant to section 338,
or within 60 days after the date of enactment
of the Satellite Home Viewer Extension and
Reauthorization Act of 2004, whichever is
later, send a notice to the subscriber--
(i) offering to substitute the local
network signal for the duplicating
distant network signal; and
(ii) informing the subscriber that,
if the subscriber fails to respond in
60 days, the subscriber will lose the
distant network signal but will be
permitted to subscribe to the local
network signal; and
(B) if the subscriber--
(i) elects to substitute such local
network signal within such 60 days,
switch such subscriber to such local
network signal within 10 days after the
end of such 60-day period; or
(ii) fails to respond within such 60
days, terminate the distant network
signal within 10 days after the end of
such 60-day period.
(2) Notice to station licensees of commencement of
local-into-local service.--
(A) Notice required.--Within 180 days after
the date of enactment of the Satellite Home
Viewer Extension and Reauthorization Act of
2004, the Commission shall revise the
regulations under this section relating to
notice to broadcast station licensees to comply
with the requirements of this paragraph.
(B) Contents of commencement notice.--The
notice required by such regulations shall
inform each television broadcast station
licensee within any local market in which a
satellite carrier proposes to commence carriage
of signals of stations from that market, not
later than 60 days prior to the commencement of
such carriage--
(i) of the carrier's intention to
launch local-into-local service under
this section in a local market, the
identity of that local market, and the
location of the carrier's proposed
local receive facility for that local
market;
(ii) of the right of such licensee to
elect carriage under this section or
grant retransmission consent under
section 325(b);
(iii) that such licensee has 30 days
from the date of the receipt of such
notice to make such election; and
(iv) that failure to make such
election will result in the loss of the
right to demand carriage under this
section for the remainder of the 3-year
cycle of carriage under section 325.
(C) Transmission of notices.--Such
regulations shall require that each satellite
carrier shall transmit the notices required by
such regulation via certified mail to the
address for such television station licensee
listed in the consolidated database system
maintained by the Commission.
(i) Privacy rights of satellite subscribers.--
(1) Notice.--At the time of entering into an
agreement to provide any satellite service or other
service to a subscriber and at least once a year
thereafter, a satellite carrier shall provide notice in
the form of a separate, written statement to such
subscriber which clearly and conspicuously informs the
subscriber of--
(A) the nature of personally identifiable
information collected or to be collected with
respect to the subscriber and the nature of the
use of such information;
(B) the nature, frequency, and purpose of any
disclosure which may be made of such
information, including an identification of the
types of persons to whom the disclosure may be
made;
(C) the period during which such information
will be maintained by the satellite carrier;
(D) the times and place at which the
subscriber may have access to such information
in accordance with paragraph (5); and
(E) the limitations provided by this section
with respect to the collection and disclosure
of information by a satellite carrier and the
right of the subscriber under paragraphs (7)
and (9) to enforce such limitations.
In the case of subscribers who have entered into such
an agreement before the effective date of this
subsection, such notice shall be provided within 180
days of such date and at least once a year thereafter.
(2) Definitions.--For purposes of this subsection,
other than paragraph (9)--
(A) the term ``personally identifiable
information'' does not include any record of
aggregate data which does not identify
particular persons;
(B) the term ``other service'' includes any
wire or radio communications service provided
using any of the facilities of a satellite
carrier that are used in the provision of
satellite service; and
(C) the term ``satellite carrier'' includes,
in addition to persons within the definition of
satellite carrier, any person who--
(i) is owned or controlled by, or
under common ownership or control with,
a satellite carrier; and
(ii) provides any wire or radio
communications service.
(3) Prohibitions.--
(A) Consent to collection.--Except as
provided in subparagraph (B), a satellite
carrier shall not use any facilities used by
the satellite carrier to collect personally
identifiable information concerning any
subscriber without the prior written or
electronic consent of the subscriber concerned.
(B) Exceptions.--A satellite carrier may use
such facilities to collect such information in
order to--
(i) obtain information necessary to
render a satellite service or other
service provided by the satellite
carrier to the subscriber; or
(ii) detect unauthorized reception of
satellite communications.
(4) Disclosure.--
(A) Consent to disclosure.--Except as
provided in subparagraph (B), a satellite
carrier shall not disclose personally
identifiable information concerning any
subscriber without the prior written or
electronic consent of the subscriber concerned
and shall take such actions as are necessary to
prevent unauthorized access to such information
by a person other than the subscriber or
satellite carrier.
(B) Exceptions.--A satellite carrier may
disclose such information if the disclosure
is--
(i) necessary to render, or conduct a
legitimate business activity related
to, a satellite service or other
service provided by the satellite
carrier to the subscriber;
(ii) subject to paragraph (9), made
pursuant to a court order authorizing
such disclosure, if the subscriber is
notified of such order by the person to
whom the order is directed;
(iii) a disclosure of the names and
addresses of subscribers to any
satellite service or other service,
if--
(I) the satellite carrier has
provided the subscriber the
opportunity to prohibit or
limit such disclosure; and
(II) the disclosure does not
reveal, directly or indirectly,
the--
(aa) extent of any
viewing or other use by
the subscriber of a
satellite service or
other service provided
by the satellite
carrier; or
(bb) the nature of
any transaction made by
the subscriber over any
facilities used by the
satellite carrier; or
(iv) to a government entity as
authorized under chapter 119, 121, or
206 of title 18, United States Code,
except that such disclosure shall not
include records revealing satellite
subscriber selection of video
programming from a satellite carrier.
(5) Access by subscriber.--A satellite subscriber
shall be provided access to all personally identifiable
information regarding that subscriber which is
collected and maintained by a satellite carrier. Such
information shall be made available to the subscriber
at reasonable times and at a convenient place
designated by such satellite carrier. A satellite
subscriber shall be provided reasonable opportunity to
correct any error in such information.
(6) Destruction of information.--A satellite carrier
shall destroy personally identifiable information if
the information is no longer necessary for the purpose
for which it was collected and there are no pending
requests or orders for access to such information under
paragraph (5) or pursuant to a court order.
(7) Penalties.--Any person aggrieved by any act of a
satellite carrier in violation of this section may
bring a civil action in a United States district court.
The court may award--
(A) actual damages but not less than
liquidated damages computed at the rate of $
100 a day for each day of violation or $ 1,000,
whichever is higher;
(B) punitive damages; and
(C) reasonable attorneys' fees and other
litigation costs reasonably incurred.
The remedy provided by this subsection shall be in
addition to any other lawful remedy available to a
satellite subscriber.
(8) Rule of construction.--Nothing in this title
shall be construed to prohibit any State from enacting
or enforcing laws consistent with this section for the
protection of subscriber privacy.
(9) Court orders.--Except as provided in paragraph
(4)(B)(iv), a governmental entity may obtain personally
identifiable information concerning a satellite
subscriber pursuant to a court order only if, in the
court proceeding relevant to such court order--
(A) such entity offers clear and convincing
evidence that the subject of the information is
reasonably suspected of engaging in criminal
activity and that the information sought would
be material evidence in the case; and
(B) the subject of the information is
afforded the opportunity to appear and contest
such entity's claim.
(j) Regulations by Commission.--Within 1 year after the date
of the enactment of this section, the Commission shall issue
regulations implementing this section following a rulemaking
proceeding. The regulations prescribed under this section shall
include requirements on satellite carriers that are comparable
to the requirements on cable operators under sections 614(b)(3)
and (4) and 615(g)(1) and (2).
(k) Definitions.--As used in this section:
(1) Distributor.--The term ``distributor'' means an
entity which contracts to distribute secondary
transmissions from a satellite carrier and, either as a
single channel or in a package with other programming,
provides the secondary transmission either directly to
individual subscribers or indirectly through other
program distribution entities.
(2) Eligible satellite carrier.--The term ``eligible
satellite carrier'' means any satellite carrier that is
not a party to a carriage contract with a qualified
noncommercial educational television station or its
representative that--
(A) governs carriage of more than 30 such
stations; and
(B) is in force and effect as of the date of
enactment of the Satellite Television Extension
and Localism Act of 2009.
[(2)] (3) Local receive facility.--The term ``local
receive facility'' means the reception point in each
local market which a satellite carrier designates for
delivery of the signal of the station for purposes of
retransmission.
[(3)] (4) Local market.--The term ``local market''
has the meaning given that term under section 122(j) of
title 17, United States Code.
[(4)] (5) Low power television station.--The term
``low power television station'' means a low power
television station as defined under section 74.701(f)
of title 47, Code of Federal Regulations, as in effect
on June 1, 2004. For purposes of this paragraph, the
term ``low power television station'' includes a low
power television station that has been accorded primary
status as a Class A television licensee under section
73.6001(a) of title 47, Code of Federal Regulations.
(6) Qualified noncommercial educational television
station.--The term ``qualified noncommercial
educational television station'' has the meaning given
such term in section 615(l)(1) of this Act.
[(5)] (7) Satellite carrier.--The term ``satellite
carrier'' has the meaning given such term under section
119(d) of title 17, United States Code.
[(6)] (8) Secondary transmission.--The term
``secondary transmission'' has the meaning given such
term in section 119(d) of title 17, United States Code.
[(7)] (9) Subscriber.--The term ``subscriber'' has
the meaning given that term under section 122(j) of
title 17, United States Code.
[(8)] (10) Television broadcast station.--The term
``television broadcast station'' has the meaning given
such term in section 325(b)(7).
SEC. 339. CARRIAGE OF DISTANT TELEVISION STATIONS BY SATELLITE
CARRIERS.
[47 U.S.C. 339]
(a) Provisions relating to carriage of distant signals.--
(1) Carriage permitted.--
(A) In general.--Subject to section 119 of
title 17, United States Code, any satellite
carrier shall be permitted to provide the
signals of no more than two network stations in
a single day for each television network to any
household not located within the local markets
of those network stations.
(B) Additional service.--In addition to
signals provided under subparagraph (A), any
satellite carrier may also provide service
under the statutory license of section 122 of
title 17, United States Code, to the local
market within which such household is located.
The service provided under section 122 of such
title may be in addition to the two signals
provided under section 119 of such title. [Such
two network stations may be comprised of both
the analog signal and digital signal of not
more than two network stations.]
(2) Replacement of distant signals with local
signals.--Notwithstanding any other provision of
paragraph (1), the following rules shall apply after
the date of enactment of the [Satellite Home Viewer
Extension and Reauthorization Act of 2004:] Satellite
Television Extension and Localism Act of 2009:
(A) Rules for [grandfathered subscribers to
analog signals.--] certain grandfathered
subscribers._
(i) For those receiving distant
[analog] signals.--In the case of a
subscriber of a satellite carrier who
is eligible to receive the [analog]
signal of a network station solely by
reason of section 119(e) of title 17,
United States Code (in this
subparagraph referred to as a ``distant
[analog] signal''), and who, as of
[October 1, 2004,] October 1, 2009, is
receiving the distant [analog] signal
of that network station, the following
shall apply:
(I) In a case in which the
satellite carrier makes
available to the subscriber the
analog signal of a local
network station affiliated with
the same television network
pursuant to section 338, the
carrier may only provide the
secondary transmissions of the
distant analog signal of a
station affiliated with the
same network to that
subscriber--
(aa) if, within 60
days after receiving
the notice of the
satellite carrier under
section 338(h)(1) of
this Act, the
subscriber elects to
retain the distant
analog signal; but
(bb) only until such
time as the subscriber
elects to receive such
local analog signal.
(II) Notwithstanding
subclause (I), the carrier may
not retransmit the distant
analog signal to any subscriber
who is eligible to receive the
analog signal of a network
station solely by reason of
section 119(e) of title 17,
United States Code, unless such
carrier, within 60 days after
the date of the enactment of
the Satellite Home Viewer
Extension and Reauthorization
Act of 2004, submits to that
television network the list and
statement required by
subparagraph (F)(i).
(ii) For those not receiving distant
[analog] signals.--In the case of any
subscriber of a satellite carrier who
is eligible to receive the distant
[analog] signal of a network station
solely by reason of section 119(e) of
title 17, United States Code, and who
did not receive a distant [analog]
signal of a station affiliated with the
same network on October 1, [2004,]
2009, the carrier may not provide the
secondary transmissions of the distant
[analog] signal of a station affiliated
with the same network to that
subscriber.
[(B) Rules for other subscribers to analog
signals.--In the case of a subscriber of a
satellite carrier who is eligible to receive
the analog signal of a network station under
this section (in this subparagraph referred to
as a ``distant analog signal''), other than
subscribers to whom subparagraph (A) applies,
the following shall apply:
[(i) In a case in which the satellite
carrier makes available to that
subscriber, on January 1, 2005, the
analog signal of a local network
station affiliated with the same
television network pursuant to section
338, the carrier may only provide the
secondary transmissions of the distant
analog signal of a station affiliate
with the same network to that
subscriber if the subscriber's
satellite carrier, not later than March
1, 2005, submits to that television
network the list and statement required
by subparagraph (F)(i).
[(ii) In a case in which the
satellite carrier does not make
available to that subscriber, on
January 1, 2005, the analog signal of a
local network station pursuant to
section 338, the carrier may only
provide the secondary transmissions of
the distant analog signal of a station
affiliated with the same network to
that subscriber if--
[(I) that subscriber seeks to
subscribe to such distant
analog signal before the date
on which such carrier commences
to carry pursuant to section
338 the analog signals of
stations from the local market
of such local network station;
and
[(II) the satellite carrier,
within 60 days after such date,
submits to each television
network the list and statement
required by subparagraph
(F)(ii).]
(B) Rules for other subscribers.--A
subscriber of a satellite carrier, other than a
subscriber to whom subparagraph (A) applies,
who was lawfully receiving the distant signal
of a network station on the day before the date
of enactment of the Satellite Television
Extension and Localism Act of 2009 may continue
to receive such distant signal until such
subscriber chooses to no longer receive such
distant signal from such carrier, whether or
not such subscriber elects to subscribe to
local signals.
(C) Future applicability.--A satellite
carrier may not provide a distant [analog]
signal (within the meaning of subparagraph (A)
or (B)) to a person who--
(i) is not a subscriber lawfully
receiving such secondary transmission
as of the date of the enactment of [the
Satellite Home Viewer Extension and
Reauthorization Act of 2004;] the
Satellite Television Extension and
Localism Act of 2009; and
[(ii) at the time such person seeks
to subscribe to receive such secondary
transmission, resides in a local market
where the satellite carrier makes
available to that person the analog
signal of a local network station
affiliated with the same television
network pursuant to section 338, and
the retransmission of such signal by
such carrier can reach such
subscriber.]
(ii) either--
(I) at the time such person
seeks to subscribe to receive
such secondary transmission,
resides in a local market where
the satellite carrier makes
available to that person the
signal of a local network
station affiliated with the
same television network
pursuant to section 338, and
the retransmission of such
signal by such carrier can
reach such subscriber; or
(II) receives from the
satellite carrier the signal of
a network station affiliated
with the same network that is
broadcast by a local station in
the market where the subscriber
resides, but is not the local
station's primary video.
[(D) Special rules for distant digital
signals.--
[(i) Eligibility.--In the case of a
subscriber of a satellite carrier who,
with respect to a local network
station--
[(I) is a subscriber whose
household is located outside
the coverage area of the analog
signal of such station as
predicted by the model
specified in subsection (c)(3)
of this section for the signal
intensity required under
section 73.683(a) of title 47
of the Code of Federal
Regulations, or a successor
regulation;
[(II) is in an unserved
household as determined under
section 119(d)(1)(A) of title
17, United States Code; or
[(III) is, after the date on
which the conditions required
by clause (vii) are met with
respect to such station,
determined under clause (vi) of
this subparagraph to be unable
to receive a digital signal of
such local network station that
exceeds the signal intensity
standard specified in such
clause;
such subscriber is eligible to receive
the digital signal of a distant network
station affiliated with the same
network under this section (in this
subparagraph referred to as a ``distant
digital signal'') subject to the
provisions of this subparagraph.
[(ii) Pre-enactment distant digital
signal subscribers.--Any eligible
subscriber under this subparagraph who
is a lawful subscriber to such a
distant digital signal as of the date
of enactment of the Satellite Home
Viewer Extension and Reauthorization
Act of 2004 may continue to receive
such distant digital signal, whether or
not such subscriber elects to subscribe
to local digital signals.
[(iii) Local-to-local analog
markets.--In a case in which the
satellite carrier makes available to an
eligible subscriber under this
subparagraph the analog signal of a
local network station pursuant to
section 338, the carrier may only
provide the distant digital signal of a
station affiliated with the same
network to that subscriber if--
[(I) in the case of any local
market in the 48 contiguous
States of the United States,
the distant digital signal is
the secondary transmission of a
station whose prime time
network programming is
generally broadcast
simultaneously with, or later
than, the prime time network
programming of the affiliate of
the same network in the local
market;
[(II) in any local market,
the retransmission of the
distant digital signal of the
distant station occupies at
least the equivalent bandwidth
(as such term is defined by the
Commission under section
340(h)(4)) as the digital
signal broadcast by such
station; and
[(III) the subscriber
subscribes to the analog signal
of such local network station
within 60 days after such
signal is made available by the
satellite carrier, and adds to
or replaces such analog signal
with the digital signal from
such local network station
within 60 days after such
signal is made available by the
satellite carrier, except that
such distant digital signal may
continue to be provided to a
subscriber who cannot be
reached by the satellite
transmission of the local
digital signal.
[(iv) Local-to-local digital
markets.--After the date on which a
satellite carrier makes available the
digital signal of a local network
station, the carrier may not offer the
distant digital signal of a network
station affiliated with the same
television network to any new
subscriber to such distant digital
signal after such date, except that
such distant digital signal may be
provided to a new subscriber who cannot
be reached by the satellite
transmission of the local digital
signal.
[(v) Non-local-to-local markets.
After the date of enactment of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, if the
satellite carrier does not make
available the digital signal of a local
network station in a local market, the
satellite carrier may offer a new
subscriber after such date who is
eligible under this subparagraph a
distant digital signal from a station
affiliated with the same network and,
in the case of any local market in the
48 contiguous States of the United
States, whose prime time network
programming is generally broadcast
simultaneously with, or later than, the
prime time network programming of the
affiliate of the same network in the
local market, except that--
[(I) such carrier may
continue to provide such
distant digital signal to such
a subscriber after the date on
which the carrier makes
available the digital signal of
a local network station
affiliated with such network
only if such subscriber
subscribes to the digital
signal from such local network
station; and
[(II) the limitation
contained in subclause (I) of
this clause shall not apply to
a subscriber that cannot be
reached by the satellite
transmission of the local
digital signal.
[(vi) Signal testing for digital
signals.--
[(I) A subscriber shall be
eligible for a distant digital
signal under clause (i)(III) if
such subscriber is determined,
based on a test conducted in
accordance with section
73.686(d) of title 47, Code of
Federal Regulations, or any
successor regulation, not to be
able to receive a signal that
exceeds the signal intensity
standard in section
73.622(e)(1) of title 47, Code
of Federal Regulations, as in
effect on the date of enactment
of the Satellite Home Viewer
Extension and Reauthorization
Act of 2004.
[(II) Such test shall be
conducted, upon written request
for a digital signal strength
test by the subscriber to the
satellite carrier, within 30
days after the date the
subscriber submits such request
for the test. Such test shall
be conducted by a qualified and
independent person selected by
the satellite carrier and the
network station or stations, or
who has been previously
approved by the satellite
carrier and by each affected
network station but not
previously disapproved. A
tester may not be so
disapproved for a test after
the tester has commenced such
test.
[(III) Unless the satellite
carrier and the network station
or stations otherwise agree,
the costs of conducting the
test shall be borne as follows:
[(aa) If the
subscriber is not
eligible for a distant
digital signal under
clause (i)(I) of this
subparagraph (by reason
of being outside of the
coverage area of the
analog signal), the
satellite carrier may
request the station
licensee for a waiver.
[(bb) If the licensee
agrees to a waiver, or
fails to respond to a
waiver request within
30 days, the subscriber
may receive such
distant digital signal.
[(cc) If the licensee
refuses to grant a
waiver, the subscriber
may request the
satellite carrier to
conduct the test.
[(dd) If the
satellite carrier
requests the test and--
[(AA) the
station's
signal is
determined to
exceed such
signal
intensity
standard, the
costs of the
test shall be
borne by the
satellite
carrier; and
[(BB) the
station's
signal is
determined to
not exceed such
signal
intensity
standard, the
costs of the
test shall be
borne by the
licensee.
[(ee) If the
satellite carrier does
not request the test,
or fails to respond
within 30 days, the
subscriber may request
the test be conducted
under the supervision
of the carrier, and the
costs of the test shall
be borne by the
subscriber in
accordance with
regulations prescribed
by the Commission. Such
regulations shall also
require the carrier to
notify the subscriber
of the typical costs of
such test.
[(vii) Trigger events for use of
testing.--A subscriber shall not be
eligible for a distant digital signal
under clause (i)(III) pursuant to a
test conducted under clause (vii)
until--
[(I) in the case of a
subscriber whose household is
located within the area
predicted to be served (by the
predictive model for analog
signals under subsection (b)(3)
of this section) by the signal
of a local network station and
who is seeking a distant
digital signal of a station
affiliated with the same
network as that local network
station--
[(aa) April 30, 2006,
if such local network
station is within the
top 100 television
markets and--
[(AA) has
received a
tentative
digital
television
service channel
designation
that is the
same as such
station's
current digital
television
service
channel; or
[(BB) has
been found by
the Commission
to have lost
interference
protection; or
[(bb) July 15, 2007,
for any other local
network stations, other
than translator
stations licensed to
broadcast on the date
of enactment of the
Satellite Home Viewer
Extension and
Reauthorization Act of
2004; or
[(II) in the case of a
translator station, 1 year
after the date on which the
Commission completes all
actions necessary for the
allocation and assignment of
digital television licenses to
television translator stations.
[(viii) Testing waivers.--Upon
request by a local network station, the
Commission may grant a waiver with
respect to such station to the
beginning of testing under clause
(vii), and prohibit subscribers from
receiving digital signal strength
testing with respect to such station.
Such a request shall be filed not less
than 5 months prior to the
implementation deadline specified in
such clause, and the Commission shall
act on such request by such
implementation deadline. Such a waiver
shall expire at the end of not more
than 6 months, except that a waiver may
be renewed upon a proper showing. The
Commission may only grant such a
request upon submission of clear and
convincing evidence that the station's
digital signal coverage is limited due
to the unremediable presence of one or
more of the following:
[(I) the need for
international coordination or
approvals;
[(II) clear zoning or
environmental legal
impediments;
[(III) force majeure;
[(IV) the station experiences
a substantial decrease in its
digital signal coverage area
due to necessity of using side-
mounted antenna;
[(V) substantial technical
problems that result in a
station experiencing a
substantial decrease in its
coverage area solely due to
actions to avoid interference
with emergency response
providers; or
[(VI) no satellite carrier is
providing the retransmission of
the analog signals of local
network stations under section
338 in the local market.
Under no circumstances may such a
waiver be based upon financial
exigency.
[(ix) Special waiver provision for
translators.--Upon request by a
television translator station, the
Commission may grant, for not more than
3 years, a waiver with respect to such
station to the beginning of testing
under clause (vii), and prohibit
subscribers from receiving digital
signal strength testing with respect to
such station, if the Commission
determines that the translator station
is not broadcasting a digital signal
due to one or more of the following:
[(I) frequent occurrence of
inclement weather; or
[(II) mountainous terrain at
the transmitter tower location.
[(x) Savings provision.--Nothing in
this subparagraph shall be construed to
affect a satellite carrier's
obligations under section 338.
[(xi) Definition.--For purposes of
clause (viii), the term ``emergency
response providers'' means Federal,
State, or local governmental and
nongovernmental emergency public
safety, law enforcement, fire,
emergency response, emergency medical
(including hospital emergency
facilities), and related personnel,
organizations, agencies, or
authorities.]
(D) Special rules for distant signals.--
(i) In general.--In the case of a
subscriber of a satellite carrier who,
with respect to a local network
station--
(I) is a subscriber whose
household is not predicted by
the model specified in
subsection (c)(3) of this
section to receive the signal
intensity required under
section 73.622(e)(1) or
73.683(a) of 47 of the Code of
Federal Regulations, or a
successor regulation, or
(II) is in an unserved
household, as determined under
section 119(d)(10)(A) of title
17, United States Code,
such subscriber is eligible to receive
the signal of a distant network station
affiliated with the same network under
this section, subject to the provisions
of this subparagraph.
(ii) Signal testing.--A subscriber
shall be eligible to receive a distant
signal of a distant network station
affiliated with the same network under
this section if such subscriber is
determined, based on a test conducted
in accordance with section 73.686(d) of
title 47, Code of Federal Regulations,
or any successor regulation, not to be
able to receive a signal that exceeds
the signal intensity standard in
section 73.622(e)(1) or 73.683(a) of
title 47, Code of Federal Regulations.
(iii) Time-shifting prohibited.--In a
case in which the satellite carrier
makes available to an eligible
subscriber under this subparagraph the
signal of a local network station
pursuant to section 338, the carrier
may only provide the distant signal of
a station affiliated with the same
network to that subscriber if, in the
case of any local market in the 48
contiguous States of the United States,
the distant signal is the secondary
transmission of a station whose prime
time network programming is generally
broadcast simultaneously with, or later
than, the prime time network
programming of the affiliate of the
same network in the local market.
(iv) Savings provision.--Nothing in
this subparagraph shall be construed to
affect a satellite carrier's
obligations under section 338.
(E) Authority to grant station-specific
waivers.--This paragraph shall not prohibit a
retransmission of a [distant analog signal or
distant digital signal (within the meaning of
subparagraph (A), (B), or (D))] distant signal
of any distant network station to any
subscriber to whom the signal of a local
network station affiliated with the same
network is available, if and to the extent that
such local network station has affirmatively
granted a waiver from the requirements of this
paragraph to such satellite carrier with
respect to retransmission of such distant
network station to such subscriber.
(F) Notices to networks of distant signal
subscribers.--
(i) Within 60 days after the date of
enactment of the Satellite Home Viewer
Extension and Reauthorization Act of
2004, each satellite carrier that
provides a distant signal of a network
station to a subscriber pursuant to
subparagraph (A) or (B)(i) of this
paragraph shall submit to each
network--
(I) a list, aggregated by
designated market area,
identifying each subscriber
provided such a signal by--
(aa) name;
(bb) address (street
or rural route number,
city, State, and zip
code); and
(cc) the distant
network signal or
signals received; and
(II) a statement that, to the
best of the carrier's knowledge
and belief after having made
diligent and good faith
inquiries, the subscriber is
qualified under the existing
law to receive the distant
network signal or signals
pursuant to subparagraph (A) or
(B)(i) of this paragraph.
(ii) Within 60 days after the date a
satellite carrier commences to carry
pursuant to section 338 the signals of
stations from a local market, such a
satellite carrier that provides a
distant signal of a network station to
a subscriber pursuant to subparagraph
(B)(ii) of this paragraph shall submit
to each network--
(I) a list identifying each
subscriber in that local market
provided such a signal by--
(aa) name;
(bb) address (street
or rural route number,
city, State, and zip
code); and
(cc) the distant
network signal or
signals received; and
(II) a statement that, to the
best of the carrier's knowledge
and belief after having made
diligent and good faith
inquiries, the subscriber is
qualified under the existing
law to receive the distant
network signal or signals
pursuant to subparagraph
(B)(ii) of this paragraph.
(G) Other provisions not affected.--This
paragraph shall not affect the eligibility of a
subscriber to receive secondary transmissions
under section 340 of this Act or as an unserved
household included under section 119(a)(12) of
title 17, United States Code.
(H) Available defined.--For purposes of this
paragraph, a satellite carrier makes available
a local signal to a subscriber or person if the
satellite carrier offers that local signal to
other subscribers who reside in the same zip
code as that subscriber or person.
(3) Penalty for violation.--Any satellite carrier
that knowingly and willfully provides the signals of
television stations to subscribers in violation of this
subsection shall be liable for a forfeiture penalty
under section 503 in the amount of $ 50,000 for each
violation or each day of a continuing violation, except
that paragraph (2)(D) of this subsection, relating to
the provision of distant digital signals, shall be
enforceable under the provisions of section 340(f).
(b) Extension of network nonduplication, syndicated
exclusivity, and sports blackout to satellite retransmission.--
(1) Extension of protections.--Within 45 days after
the date of the enactment of the Satellite Home Viewer
Improvement Act of 1999, the Commission shall commence
a single rulemaking proceeding to establish regulations
that--
(A) apply network nonduplication protection
(47 CFR 76.92) syndicated exclusivity
protection (47 CFR 76.151), and sports blackout
protection (47 CFR 76.67) to the retransmission
of the signals of nationally distributed
superstations by satellite carriers to
subscribers; and
(B) to the extent technically feasible and
not economically prohibitive, apply sports
blackout protection (47 CFR 76.67) to the
retransmission of the signals of network
stations by satellite carriers to subscribers.
(2) Deadline for action.--The Commission shall
complete all actions necessary to prescribe regulations
required by this section so that the regulations shall
become effective within 1 year after such date of
enactment.
(c) Eligibility for retransmission.--
(1) Study of digital strength testing procedures.--
(A) Study required.--Not later than 1 year
after the date of the enactment of the
Satellite Home Viewer Extension and
Reauthorization Act of 2004, the Federal
Communications Commission shall complete an
inquiry regarding whether, for purposes of
identifying if a household is unserved by an
adequate digital signal under section
119(d)(10) of title 17, United States Code, the
digital signal strength standard in section
73.622(e)(1) of title 47, Code of Federal
Regulations, or the testing procedures in
section 73.686(d) of title 47, Code of Federal
Regulations, such statutes or regulations
should be revised to take into account the
types of antennas that are available to
consumers.
(B) Study considerations.--In conducting the
study under this paragraph, the Commission
shall consider whether--
(i) to account for the fact that an
antenna can be mounted on a roof or
placed in a home and can be fixed or
capable of rotating;
(ii) section 73.686(d) of title 47,
Code of Federal Regulations, should be
amended to create different procedures
for determining if the requisite
digital signal strength is present than
for determining if the requisite analog
signal strength is present;
(iii) a standard should be used other
than the presence of a signal of a
certain strength to ensure that a
household can receive a high-quality
picture using antennas of reasonable
cost and ease of installation;
(iv) to develop a predictive
methodology for determining whether a
household is unserved by an adequate
digital signal under section 119(d)(10)
of title 17, United States Code;
(v) there is a wide variation in the
ability of reasonably priced consumer
digital television sets to receive
over-the-air signals, such that at a
given signal strength some may be able
to display high-quality pictures while
others cannot, whether such variation
is related to the price of the
television set, and whether such
variation should be factored into
setting a standard for determining
whether a household is unserved by an
adequate digital signal; and
(vi) to account for factors such as
building loss, external interference
sources, or undesired signals from both
digital television and analog
television stations using either the
same or adjacent channels in nearby
markets, foliage, and man-made clutter.
(C) Report.--Not later than 1 year after the
date of the enactment of the Satellite Home
Viewer Extension and Reauthorization Act of
2004, the Federal Communications Commission
shall submit to the Committee on Energy and
Commerce of the House of Representatives and
the Committee on Commerce, Science, and
Transportation of the Senate a report
containing--
(i) the results of the study under
this paragraph; and
(ii) recommendations, if any, as to
what changes should be made to Federal
statutes or regulations.
(2) Waivers.--A subscriber who is denied the
retransmission of a signal of a network station under
section 119 of title 17, United States Code, may
request a waiver from such denial by submitting a
request, through such subscriber's satellite carrier,
to the network station asserting that the
retransmission is prohibited. The network station shall
accept or reject a subscriber's request for a waiver
within 30 days after receipt of the request. The
subscriber shall be permitted to receive such
retransmission under section 119(d)(10)(B) of title 17,
United States Code, if such station agrees to the
waiver request and files with the satellite carrier a
written waiver with respect to that subscriber allowing
the subscriber to receive such retransmission. If a
television network station fails to accept or reject a
subscriber's request for a waiver within the 30-day
period after receipt of the request, that station shall
be deemed to agree to the waiver request and have filed
such written waiver.
[(3) Establishment of improved predictive model
required.--Within 180 days after the date of the
enactment of the Satellite Home Viewer Improvement Act
of 1999, the Commission shall take all actions
necessary, including any reconsideration, to develop
and prescribe by rule a point-to-point predictive model
for reliably and presumptively determining the ability
of individual locations to receive signals in
accordance with the signal intensity standard in effect
under section 119(d)(10)(A) of title 17, United States
Code. In prescribing such model, the Commission shall
rely on the Individual Location Longley-Rice model set
forth by the Federal Communications Commission in
Docket No. 98-201 and ensure that such model takes into
account terrain, building structures, and other land
cover variations. The Commission shall establish
procedures for the continued refinement in the
application of the model by the use of additional data
as it becomes available.]
(3) Establishment of improved predictive model and
on-location testing required.--
(A) Predictive model.--Within 180 days after
the date of the enactment of the Satellite
Television Extension and Localism Act of 2009,
the Commission shall take all actions necessary
to develop and prescribe by rule a point-to-
point predictive model for reliably and
presumptively determining the ability of
individual locations, through the use of an
antenna, to receive signals in accordance with
the signal intensity standard in section
73.622(e)(1) of title 47, Code of Federal
Regulations, including to account for the
continuing operation of translator stations and
low power television stations. In prescribing
such model, the Commission shall rely on the
Individual Location Longley-Rice model set
forth by the Commission in CS Docket No. 98-
201, as previously revised with respect to
analog signals, and as recommended by the
Commission with respect to digital signals in
its Report to Congress in ET Docket No. 05-182,
FCC 05-199 (released December 9, 2005). The
Commission shall establish procedures for the
continued refinement in the application of the
model by the use of additional data as it
becomes available.
(B) On-location testing.--The Commission
shall issue an order completing its rulemaking
proceeding in ET Docket No. 06-94 within 180
days after the date of enactment of the
Satellite Television Extension and Localism Act
of 2009. In conducting such rulemaking, the
Commission shall seek ways to minimize consumer
burdens associated with on-location testing.
(4) Objective verification.--
[(A) In general.--If a subscriber's request
for a waiver under paragraph (2) is rejected
and the subscriber submits to the subscriber's
satellite carrier a request for a test
verifying the subscriber's inability to receive
a signal that meets the signal intensity
standard in effect under section 119(d)(10)(A)
of title 17, United States Code, the satellite
carrier and the network station or stations
asserting that the retransmission is prohibited
with respect to that subscriber shall select a
qualified and independent person to conduct a
test in accordance with section 73.686(d) of
its regulations (47 CFR 73.686(d)), or any
successor regulation. Such test shall be
conducted within 30 days after the date the
subscriber submits a request for the test. If
the written findings and conclusions of a test
conducted in accordance with such section (or
any successor regulation) demonstrate that the
subscriber does not receive a signal that meets
or exceeds the signal intensity standard in
effect under section 119(d)(10)(A) of title 17,
United States Code, the subscriber shall not be
denied the retransmission of a signal of a
network station under section 119 of title 17,
United States Code.]
(A) In general.--If a subscriber's request
for a waiver under paragraph (2) is rejected
and the subscriber submits to the subscriber's
satellite carrier a request for a test
verifying the subscriber's inability to receive
a signal of the signal intensity referenced in
clause (i) of subsection (a)(2)(D), the
satellite carrier and the network station or
stations asserting that the retransmission is
prohibited with respect to that subscriber
shall select a qualified and independent person
to conduct the test referenced in such clause.
Such test shall be conducted within 30 days
after the date the subscriber submits a request
for the test. If the written findings and
conclusions of a test conducted in accordance
with such clause demonstrate that the
subscriber does not receive a signal that meets
or exceeds the requisite signal intensity
standard in such clause, the subscriber shall
not be denied the retransmission of a signal of
a network station under section 119 of title
17, United States Code.
(B) Designation of tester and allocation of
costs.--If the satellite carrier and the
network station or stations asserting that the
retransmission is prohibited are unable to
agree on such a person to conduct the test, the
person shall be designated by an independent
and neutral entity designated by the Commission
by rule. Unless the satellite carrier and the
network station or stations otherwise agree,
the costs of conducting the test under this
paragraph shall be borne by the satellite
carrier, if the station's signal meets or
exceeds [the signal intensity standard in
effect under section 119(d)(10)(A) of title 17,
United States Code] such requisite signal
intensity standard, or by the network station,
if its signal fails to meet or exceed such
standard.
(C) Avoidance of undue burden.--Commission
regulations prescribed under this paragraph
shall seek to avoid any undue burden on any
party.
(D) Reduction of verification burdens.--
Within 1 year after the date of enactment of
the Satellite Home Viewer Extension and
Reauthorization Act of 2004, the Commission
shall by rule exempt from the verification
requirements of subparagraph (A) any request
for a test made by a subscriber to a satellite
carrier to whom the retransmission of the
signals of local broadcast stations is
available under section 338 from such carrier.
(E) Exception.--A satellite carrier may
refuse to engage in the testing process. If the
carrier does so refuse, a subscriber in a local
market in which the satellite carrier does not
offer the signals of local broadcast stations
under section 338 may, at his or her own
expense, authorize a signal intensity test to
be performed pursuant to the procedures
specified by the Commission in section
73.686(d) of title 47, Code of Federal
Regulations, by a tester who is approved by the
satellite carrier and by each affected network
station, or who has been previously approved by
the satellite carrier and by each affected
network station but not previously disapproved.
A tester may not be so disapproved for a test
after the tester has commenced such test. The
tester shall give 5 business days advance
written notice to the satellite carrier and to
the affected network station or stations. A
signal intensity test conducted in accordance
with this subparagraph shall be determinative
of the signal strength received at that
household for purposes of determining whether
the household is capable of receiving a [Grade
B intensity] signal.
(5) Definition.--Notwithstanding subsection (d)(4),
for purposes of paragraphs (2) and (4) of this
subsection, the term ``satellite carrier'' includes a
distributor (as defined in section 119(d)(1) of title
17, United States Code), but only if the satellite
distributor's relationship with the subscriber includes
billing, collection, service activation, and service
deactivation.
(d) Definitions.--For the purposes of this section:
(1) Local market.--The term ``local market'' has the
meaning given that term under section 122(j) of title
17, United States Code.
(2) Nationally distributed superstation.--The term
``nationally distributed superstation'' means a
television broadcast station, licensed by the
Commission, that--
(A) is not owned or operated by or affiliated
with a television network that, as of January
1, 1995, offered interconnected program service
on a regular basis for 15 or more hours per
week to at least 25 affiliated television
licensees in 10 or more States;
(B) on May 1, 1991, was retransmitted by a
satellite carrier and was not a network station
at that time; and
(C) was, as of July 1, 1998, retransmitted by
a satellite carrier under the statutory license
of section 119 of title 17, United States Code.
(3) Network station.--The term ``network station''
has the meaning given such term under section 119(d) of
title 17, United States Code.
(4) Satellite carrier.--The term ``satellite
carrier'' has the meaning given such term under section
119(d) of title 17, United States Code.
(5) Television network.--The term ``television
network'' means a television network in the United
States which offers an interconnected program service
on a regular basis for 15 or more hours per week to at
least 25 affiliated broadcast stations in 10 or more
States.
SEC. 340. SIGNIFICANTLY VIEWED SIGNALS PERMITTED TO BE CARRIED.
[47 U.S.C. 340]
(a) Significantly viewed stations.--In addition to the
broadcast signals that subscribers may receive under section
338 and 339, a satellite carrier is also authorized to
retransmit to a subscriber located in a community the signal of
any station located outside the local market in which such
subscriber is located, to the extent such signal--
(1) has, before the date of enactment of the
Satellite Home Viewer Extension and Reauthorization Act
of 2004, been determined by the Federal Communications
Commission to be a signal a cable operator may carry as
significantly viewed in such community, except to the
extent that such signal is prevented from being carried
by a cable system in such community under the
Commission's network nonduplication and syndicated
exclusivity rules; or
(2) is, after such date of enactment, determined by
the Commission to be significantly viewed in such
community in accordance with the same standards and
procedures concerning shares of viewing hours and
audience surveys as are applicable under the rules,
regulations, and authorizations of the Commission to
determining with respect to a cable system whether
signals are significantly viewed in a community.
(b) Limitations.--
[(1) Analog service limited to subscribers taking
local-into-local service.--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.
[(2) Digital service limitations.--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; and
[(B) either--
[(i) the retransmission of the local
network station occupies at least the
equivalent bandwidth as the digital
signal retransmitted pursuant to this
section; or
[(ii) the retransmission of the local
network station is comprised of the
entire bandwidth of the digital signal
broadcast by such local network
station.]
(1) 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.
(2) 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.
(3) Limitation not applicable where no network
affiliates.--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.
(4) Authority to grant station-specific waivers.--
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.
(c) Publication and modifications of lists; regulations.--
(1) In general.--The Commission shall--
(A) within 60 days after the date of
enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004--
(i) publish a list of the stations
that are eligible for retransmission
under subsection (a)(1) and the
communities in which such stations are
eligible for such retransmission; and
(ii) commence a rulemaking proceeding
to implement this section by
publication of a notice of proposed
rulemaking;
(B) adopt rules pursuant to such rulemaking
within 1 year after such date of enactment.
(2) Public availability of list.--The Commission
shall make readily available to the public in
electronic form, on the Internet website of the
Commission or other comparable facility, a list of the
stations that are eligible for retransmission under
subsection (a) and the communities in which such
stations are eligible for such retransmission. The
Commission shall update such list within 10 business
days after the date on which the Commission issues an
order making any modification of such stations and
communities.
(3) Modifications.--In addition to cable operators
and television broadcast station licensees, the
Commission shall permit a satellite carrier to petition
for decisions and orders--
(A) by which stations may be added to those
that are eligible for retransmission under
subsection (a), and by which communities may be
added in which such stations are eligible for
such retransmission; and
(B) by which network nonduplication or
syndicated exclusivity regulations are applied
to the retransmission in accordance with
subsection (e).
(d) Effect on other obligations and rights.--
(1) No effect on carriage obligations.--Carriage of a
signal under this section is not mandatory, and any
right of a station licensee to have the signal of such
station carried under section 338 is not affected by
the eligibility of such station to be carried under
this section.
(2) Retransmission consent rights not affected.--The
eligibility of the signal of a station to be carried
under this section does not affect any right of the
licensee of such station to grant (or withhold)
retransmission consent under section 325(b)(1).
(e) Network nonduplication and syndicated exclusivity.--
(1) Not applicable except as provided by commission
regulations.--Signals eligible to be carried under this
section are not subject to the Commission's regulations
concerning network nonduplication or syndicated
exclusivity unless, pursuant to regulations adopted by
the Commission, the Commission determines to permit
network nonduplication or syndicated exclusivity to
apply within the appropriate zone of protection.
(2) Limitation.--Nothing in this subsection or
Commission regulations shall permit the application of
network nonduplication or syndicated exclusivity
regulations to the retransmission of distant signals of
network stations that are carried by a satellite
carrier pursuant to a statutory license under section
119(a)(2)(A) or (B) of title 17, United States Code,
with respect to persons who reside in unserved
households, under 119(a)(4)(A), or under section
119(a)(12), of such title.
(f) Enforcement.--
(1) Orders and damages.--Upon complaint, the
Commission shall issue a cease and desist order to any
satellite carrier found to have violated this section
in carrying any television broadcast station. Such
order may, if a complaining station requests damages--
(A) provide for the award of damages to a
complaining station that establishes that the
violation was committed in bad faith, in an
amount up to $ 50 per subscriber, per station,
per day of the violation; and
(B) provide for the award of damages to a
prevailing satellite carrier if the Commission
determines that the complaint was frivolous, in
an amount up to $ 50 per subscriber alleged to
be in violation, per station alleged, per day
of the alleged violation.
(2) Commission decision.--The Commission shall issue
a final determination resolving a complaint brought
under this subsection not later than 180 days after the
submission of a complaint under this subsection. The
Commission may hear witnesses if it clearly appears,
based on written filings by the parties, that there is
a genuine dispute about material facts. Except as
provided in the preceding sentence, the Commission may
issue a final ruling based on written filings by the
parties.
(3) Remedies in addition. The remedies under this
subsection are in addition to any remedies available
under title 17, United States Code.
(4) No effect on copyright proceedings.--Any
determination, action, or failure to act of the
Commission under this subsection shall have no effect
on any proceeding under title 17, United States Code,
and shall not be introduced in evidence in any
proceeding under that title. In no instance shall a
Commission enforcement proceeding under this subsection
be required as a predicate to the pursuit of a remedy
available under title 17.
(g) Notices concerning significantly viewed stations.--Each
satellite carrier that proposes to commence the retransmission
of a station pursuant to this section in any local market
shall--
(1) not less than 60 days before commencing such
retransmission, provide a written notice to any
television broadcast station in such local market of
such proposal; and
(2) designate on such carrier's website all
significantly viewed signals carried pursuant to
section 340 and the communities in which the signals
are carried.
(h) Additional corresponding changes in regulations.--
(1) Community-by-community elections.--The Commission
shall, no later than October 30, 2005, revise section
76.66 of its regulations (47 CFR 76.66), concerning
satellite broadcast signal carriage, to permit (at the
next cycle of elections under section 325) a television
broadcast station that is located in a local market
into which a satellite carrier retransmits a television
broadcast station pursuant to section 338, to elect,
with respect to such satellite carrier, between
retransmission consent pursuant to such section 325 and
mandatory carriage pursuant to section 338 separately
for each county within such station's local market,
if--
(A) the satellite carrier has notified the
station, pursuant to paragraph (3), that it
intends to carry another affiliate of the same
network pursuant to this section during the
relevant election period in the station's local
market; or
(B) on the date notification under paragraph
(3) was due, the satellite carrier was
retransmitting into the station's local market
pursuant to this section an affiliate of the
same television network.
(2) Unified negotiations.--In revising its
regulations as required by paragraph (1), the
Commission shall provide that any such station shall
conduct a unified negotiation for the entire portion of
its local market for which retransmission consent is
elected.
(3) Additional provisions.--The Commission shall, no
later than October 30, 2005, revise its regulations to
provide the following:
(A) Notifications by satellite carrier.--A
satellite carrier's retransmission of
television broadcast stations pursuant to this
section shall be subject to the following
limitations:
(i) In any local market in which the
satellite carrier provides service
pursuant to section 338 on the date of
enactment of the Satellite Home Viewer
Extension and Reauthorization Act of
2004, the carrier may notify a
television broadcast station in that
market, at least 60 days prior to any
date on which the station must
thereafter make an election under
section 76.66 of the Commission's
regulations (47 CFR 76.66), of--
(I) each affiliate of the
same television network that
the carrier reserves the right
to retransmit into that
station's local market pursuant
to this section during the next
election cycle under such
section of such regulations;
and
(II) for each such affiliate,
the communities into which the
satellite carrier reserves the
right to make such
retransmissions.
(ii) In any local market in which the
satellite carrier commences service
pursuant to section 338 after the date
of enactment of the Satellite Home
Viewer Extension and Reauthorization
Act of 2004, the carrier may notify a
station in that market, at least 60
days prior to the introduction of such
service in that market, and thereafter
at least 60 days prior to any date on
which the station must thereafter make
an election under section 76.66 of the
Commission's regulations (47 CFR
76.66), of each affiliate of the same
television network that the carrier
reserves the right to retransmit into
that station's local market during the
next election cycle under such section
of such regulations.
(iii) Beginning with the 2005
election cycle, a satellite carrier may
only retransmit pursuant to this
section during the pertinent election
period a signal--
(I) as to which it has
provided the notifications set
forth in clauses (i) and (ii);
or
(II) that it was
retransmitting into the local
market under this section as of
the date such notifications
were due.
(B) Harmonization of elections and
retransmission consent agreements.--If a
satellite carrier notifies a television
broadcast station that it reserves the right to
retransmit an affiliate of the same television
network during the next election cycle pursuant
to this section, the station may choose between
retransmission consent and mandatory carriage
for any portion of the 3-year election cycle
that is not covered by an existing
retransmission consent agreement.
(i) Definitions.--As used in this section:
(1) Local market; satellite carrier; subscriber;
television broadcast station.--The terms ``local
market'', ``satellite carrier'', ``subscriber'', and
``television broadcast station'' have the meanings
given such terms in section 338(k).
(2) Network station; television network.--The terms
``network station'' and ``television network'' have the
meanings given such terms in section 339(d).
(3) Community.--The term ``community'' means--
(A) a county or a cable community, as
determined under the rules, regulations, and
authorizations of the Commission applicable to
determining with respect to a cable system
whether signals are significantly viewed; or
(B) a satellite community, as determined
under such rules, regulations, and
authorizations (or revisions thereof) as the
Commission may prescribe in implementing the
requirements of this section.
[(4) Bandwidth.--The terms ``equivalent bandwidth''
and ``entire bandwidth'' shall be defined by the
Commission by regulation, except that this paragraph
shall not be construed--
[(A) to prevent a satellite operator from
using compression technology;
[(B) to require a satellite operator to use
the identical bandwidth or bit rate as the
local or distant broadcaster whose signal it is
retransmitting;
[(C) to require a satellite operator to use
the identical bandwidth or bit rate for a local
network station as it does for a distant
network station;
[(D) to affect a satellite operator's
obligations under subsection (a)(1); or
[(E) to affect the definitions of ``program
related'' and ``primary video''.