[Senate Report 108-427]
[From the U.S. Government Publishing Office]
108th Congress Report
SENATE
2d Session 108-427
_______________________________________________________________________
Calendar No. 815
SATELLITE HOME VIEWER EXTENSION AND RURAL CONSUMER ACCESS TO DIGITAL
TELEVISION ACT OF 2004
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. H.R. deg. 2644
DATE deg.December 7, 2004.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eighth congress
second session
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
FRANK LAUTENBERG, New Jersey
Jeanne Bumpus, Staff Director and General Counsel
Rob Freeman, Deputy Staff Director
Samuel Whitehorn, Democratic Staff Director and Chief Counsel
Margaret Spring, Democratic Senior Counsel
Calendar No. 815
108th Congress Report
SENATE
2d Session 108-427
======================================================================
SATELLITE HOME VIEWER EXTENSION AND RURAL CONSUMER ACCESS TO DIGITAL
TELEVISION ACT OF 2004
_______
December 7, 2004.--Ordered to be printed
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2644]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
H.R. deg. 2644) TITLE deg. to amend the
Communications Act of 1934 with respect to the carriage of
direct broadcast satellite television signals by satellite
carriers to consumers in rural areas, and for other purposes,
having considered the same, reports favorably thereon
without amendment deg. with amendments deg.
with an amendment (in the nature of a substitute) and
recommends that the bill joint resolution deg. (as
amended) do pass.
Purpose of the Bill
The purpose of S. 2644 the ``Satellite Home Viewer Extension
and Rural Consumer Access to Digital Television Act of 2004''
is to ensure that rural consumers continue to have access to
the same quality of broadcast television signals, including
access to high definition, digital signals, as those enjoyed by
urban consumers.
Background and Need
Direct Broadcast Satellite (DBS), which first became
commercially available in the early 1990s, has become the most
significant national competitor to cable with almost 22 percent
of the multi- channel video program distribution (MVPD) market.
In 1988, Congress enacted the Satellite Home Viewer Act (SHVA),
which first allowed home viewers to receive broadcast
television through the use of satellite dishes. In 1999,
Congress expanded and extended SHVA by enacting the Satellite
Home Viewer Improvement Act (SHVIA). The goal of SHVIA was to
place satellite carriers on an equal footing with cable
operators to provide local broadcast programming to consumers,
and thus give consumers more choices in selecting a MVPD. SHVIA
offers consumers greater access to both local and distant
broadcast signals, by allowing DBS companies to retransmit
local broadcast signals into the same local market and to
import distant broadcast signals for subscribers unable to
receive a local broadcast signal. The principal provisions of
SHVIA that allow the lawful importation of distant network
signals are set to expire at the end of 2004. This bill is
necessary to maintain these provisions, including the continued
availability of distant broadcast signals to rural consumers.
Legislative History
On May 4, 2004, the Senate Commerce, Science, and
Transportation Committee held a hearing on the reauthorization
of the Satellite Home Viewers Improvement Act of 1999. Senators
Ensign and McCain introduced S. 2644 on July 13, 2004. The
Senate Commerce, Science, and Transportation Committee held an
executive session on July 22, 2004 at which S. 2644 was
considered. The bill was approved by voice vote and was ordered
reported with amendments. The only amendment was an amendment
in the nature of a substitute offered by Senators Ensign and
McCain.
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. 2644--Satellite Home Viewer Extension and Rural Consumer Access to
Digital Television Act of 2004
Summary: S. 2644 would amend current law relating to
satellite retransmission of television broadcasting. CBO
estimates that enacting only the provisions of S. 2644 would
not affect direct spending or revenues. If the authority to
collect and distribute copyright royalties for satellite
retransmission were extended by subsequent legislation, CBO
estimates that enacting the bill (together with that extension)
would affect direct spending and revenues, but by an
insignificant amount. Implementing the bill would not have a
significant effect on spending subject to appropriation.
S. 2644 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. 2644 would impose private-sector mandates as defined in
UMRA on satellite companies and television network stations.
CBO estimates that the aggregate cost of those mandates would
not exceed the annual threshold for private-sector mandates
established by UMRA ($120 million in 2004, adjusted annually
for inflation).
Estimated cost to the Federal Government: Under current
law, the use of certain copyrighted material by the public is
governed by the terms of a compulsory license. Users of
copyrighted material do not need specific permission from
owners to use material with a compulsory license but must pay
royalties and abide by certain conditions when using the
material. The federal Copyright Office collects royalties from
users of material subject to compulsory licenses and then later
distributes the royalties to owners of copyrighted works using
guidelines agreed upon in private negotiations between users
and owners of copyrighted work. Receipts of royalties from
users of copyrighted material are recorded in the budget as
federal revenues, and the distributions to copyright owners are
recorded as federal spending.
S. 2644 would extend current law to allow satellite
companies to use copyrighted material without specific
permission from copyright owners but would not extend the
requirement for satellite companies to pay royalties in
exchange for the use of such material. Under current law, the
requirement to pay royalties will expire on December 31, 2004.
Several provisions in S. 2644 would make changes affecting
royalties collected and distributed for satellite
transmissions; however, without extending the requirement for
satellite companies to pay royalties for use of copyrighted
material, those changes would have no effect on the budget
after December 31, 2004.
As a result, CBO estimates that enacting S. 2644 by itself
would have no effect on revenues or direct spending from
enactment through 2014. If the Congress extends royalty
requirements for satellite retransmission of broadcast signals
at the rate effective under current law, CBO estimates that
enacting the bill (together with that extension) would have an
insignificant effect on direct spending and revenues.
Basis of estimate: Under section 4, satellite subscribers
who live in a ``digital white area'' (i.e., persons who cannot
receive a local digital signal from broadcasters) could choose
to receive digital signals for digital programming. As a
result, some subscribers who do not receive a distant signal
under current law would receive the signal under section 4 of
the bill. Because satellite companies currently pay royalties
for retransmitting distant signals, enacting section 4 would
increase both revenues from royalty collections and payments to
copyright owners.
Neither the satellite industry nor the Federal
Communications Commission has information regarding the number
of satellite subscribers who are located in digital white areas
as defined under section 4. For this estimate, CBO assumes that
satellite subscribers in digital white areas would generally
overlap with satellite subscribers in analog white areas. Under
that assumption, any increase in copyright royalties from new
digital transmissions would be offset by a decrease in
copyright royalties from analog transmissions as satellite
subscribers switch from analog to digital. Thus, CBO estimates
that enacting section 4 would not have a significant effect on
revenues or direct spending, even if the requirement to pay
royalties were extended.
S. 2644 would not make a number of other changes to current
law regarding satellite subscribers' eligibility to receive
distant signals. CBO estimates that enacting those provisions
would not have a significant effect on revenues or direct
spending if the requirement to pay royalties were extended.
Estimated impact on state, local, and tribal governments:
S. 2644 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impact on the private sector: S. 2644 would
impose private-sector mandates as defined in UMRA on satellite
companies and television network stations. Specifically, the
bill would impose mandates on satellite companies by requiring
them to:
Reallocate their retransmission of local
television channels to a single dish,
Retransmit a distant digital signal only if
they retransmit a local analog signal in that same
market and notify those customers that are receiving a
distant digital signal when they are no longer eligible
to receive those distant signals,
Notify subscribers of their privacy rights,
Provide the television network stations with
a list of subscribers when those subscribers would no
longer be eligible to receive a distant digital signal,
and
Announce the sponsor of commercial or
political advertising that originates with the
satellite company.
The bill also would require that the television network
stations notify a satellite company when a household would no
longer be eligible to receive a distant digital signal.
CBO estimates that the aggregate cost of those mandates
would not exceed the annual threshold for private-sector
mandates established by UMRA ($120 million in 2004, adjusted
annually for inflation).
Carriage of local stations on a single dish
Section 3 would require satellite companies to reallocate
their retransmission of local television channels so that
satellite subscribers could receive all of the local channels
with only one satellite antenna (or satellite dish) and
associated equipment. Local channels are those channels that
can be received over the air with a conventional antenna and
television set. The bill would provide an exception to this
requirement in the case of local digital channels. It would
allow satellite carriers to retransmit local digital channels
to subscribers by means of a separate dish, if they transmit
all local digital channels to the same dish.
In many television markets, some subscribers to satellite
service require two dishes to receive all the local channels.
Many subscribers in those markets do not have a second dish and
so do not receive some local channels. Satellite companies
estimate that currently only 15 percent to 20 percent of
subscribers nationally have two dishes, but that proportion of
subscribers varies by market.
The bill would require carriers to meet the retransmission
requirements of section 3 within 18 months of enactment. Given
that time frame, affected companies could comply with the
mandate in one of two ways. First, satellite carriers could
exit the market for retransmission of local channels. CBO
expects that satellite companies would not abandon local
service entirely because the affected companies would risk
losing valuable customers to rival satellite companies and
cable providers. Second, carriers could reallocate their
satellite transmissions so that, in each market, subscribers
received all their local channels from a single satellite. In
some markets, receiving those local channels would require that
the companies provide a second dish to subscribers. The largest
cost facing affected companies would be the cost of installing
those additional dishes. CBO estimates that providing
additional dishes could cost the companies about $150 per
customer, including equipment, installation, and notification
of customers.
Service to as many as two million subscribers could be
subject to the reallocation requirements under the current
configuration of local television channels on the satellites.
Thus, under the current configuration of channels on the
satellites, as many as two million additional dishes would have
to be installed. Engineering studies, however, suggest that
reallocation of local channels on the satellites could reduce
the number of subscribers needing the second dish to 350,000 to
400,000. Such reallocation of local channels would most likely
occur in the smaller markets served by the carriers.
Based on those figures, CBO estimates that satellite
companies could spend $50 million to $60 million to comply with
that mandate. The number of subscribers affected might be
reduced further by technical changes available to satellite
companies. CBO has not accounted for such technical changes in
its estimate.
Transmission of a distant digital signal in a local market
Section 4 would require that a satellite company retransmit
a distant digital signal only if that company is also
transmitting a local analog signal and not a local digital
signal in that same market. The satellite company also would be
required to notify those customers that are receiving a distant
digital signal when they are no longer eligible to receive
those distant signals. According to information from industry
representatives, satellite companies currently retransmit a
distant digital signal only in markets where they also
retransmit a local analog signal. The number of those
households that receive those signals is very small. Therefore,
CBO estimates that the satellite companies would incur minimal
cost to comply with those requirements.
Privacy rights of satellite subscribers
Section 7 would extend the current privacy rights of cable
subscribers to satellite subscribers. That section would
require satellite companies to provide a separate, written
notice that would inform the subscriber of the personally
identifiable information that the satellite company collects
and how it is to be used; the nature, frequency, and purpose of
any disclosures; the time and place at which the subscriber may
access the information; and the time frame during which the
company would maintain that information. That section also
would prohibit satellite companies from collecting and
disclosing program selection or personally identifiable
information on any subscriber without prior consent from the
subscriber. In addition, satellite companies would be required
to provide a subscriber access to all personally identifiable
information that it collected. When that information is no
longer necessary and a request for access is not pending, the
company would have to destroy such information. Information
from representatives of the satellite companies indicates that
they currently comply with many of those requirements. CBO
estimates that the incremental cost to provide a written notice
of the subscribers' privacy rights could be about $20 million.
Notices to satellite companies and television network stations
regarding a digital signal
Within two years after the enactment of S. 2644, the bill
would require that the FCC determine what households would be
considered ``unserved households'' for a distant digital
signal. A television network station would be required to
notify the satellite company when it files a license
application with the FCC that would result in any household
ceasing to be an unserved digital household. When the satellite
company receives that notification, it would have to send a
list identifying each subscriber that would no longer be an
unserved digital household and, therefore, would no longer be
allowed to receive a distant digital signal. The satellite
company also would be required to send a comprehensive list to
television network stations that provide a digital signal to
the satellite company's subscribers. Based on information from
the representatives of the satellite companies, CBO estimates
that the cost to comply with those notification requirements
would be minimal.
Sponsorship identification requirement
Section 8 would extend the sponsorship identification rules
that currently apply to cable operators of satellite companies.
As a result, a satellite company would be required to announce
a sponsor of any commercial or political advertising that
originates with a satellite company. According to
representatives of the satellite companies, they only
retransmit programming and do not add any advertising to those
programs. Therefore, CBO estimates that the satellite companies
would incur no costs to comply with this requirement.
Previous CBO estimates: On July 8, 2004, CBO transmitted a
cost estimate for H.R. 4501, the Satellite Home Viewer
Extension and Reauthorization Act of 2004, as ordered reported
by the House Committee on Energy and Commerce on June 3, 2004.
Both bills contain provisions that would make changes to
satellite retransmission of distant and local signals, but S.
2644 would affect a smaller number of subscribers. The cost
estimates for the bills reflect this difference.
On July 22, 2004, CBO transmitted a cost estimate for H.R.
4518, the Satellite Home Viewer Extension Act of 2004, as
ordered reported by the House Committee on the Judiciary on
July 7, 2004. While H.R. 4518 would extend copyright royalty
fees, S. 2644 would not. Both bills contain provisions that
would make changes to satellite retransmission of distant and
local signals, but S. 2644 would affect a smaller number of
subscribers. The cost estimates for the bills reflect those
differences.
On July 22, 2004, CBO transmitted a cost estimate for S.
2013, the Satellite Home Viewer Extension Act of 2004, as
ordered reported by the Senate Committee on the Judiciary on
June 17, 2004. While S. 2013 would extend copyright royalty
fees, S. 2644 would not. The cost estimates for the bills
reflect this difference.
Both S. 2644 and H.R. 4501 would require that satellite
companies retransmit local television channels to a single dish
and to notify customers of their privacy rights. H.R. 4518 and
S. 2013 would require a satellite company to submit a list to
television network stations of their subscribers that are
receiving signals of ``significantly viewed'' stations. The
total direct costs of mandates contained in each of the bills
would fall below the annual threshold for private-sector
mandates established in UMRA.
Estimate prepared by: Federal Costs: Melissa E. Zimmerman.
Impact on State, Local, and Tribal Governments: Sarah Puro.
Impact on the Private Sector: Jean Talarico.
Estimate approved by: Robert A. Sunshine, 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. 2644 would reauthorize particular elements of the
Satellite Home Viewer Improvement Act of 1999. The number of
persons covered by this legislation should be consistent with
current levels of individuals affected. The legislation would
impose new regulatory obligations on DBS carriers including a
new prohibition on the use of two satellite dishes to
retransmit the signals of local broadcasters into local
markets, new restrictions on the use of subscribers' account
information, and new obligations with respect to the
identification of sponsors of certain advertising. The bill
would also impose new good-faith bargaining obligations on both
direct broadcast satellite carriers and cable operators vis-a-
vis local broadcasters.
ECONOMIC IMPACT
The legislation would impose new limitations on the ability
of DBS carriers to retransmit the signals of local broadcasters
into a local market over more than one receiving antenna. The
section would permit EchoStar, the only satellite provider
currently using more than one antenna to receive all of the
broadcast stations in particular local markets, to continue
this practice for 18 months. At the end of this transition
period, the new limitation may have an adverse effect on
EchoStar and consumers may then be required to purchase a
second satellite dish to receive local broadcast television
retransmissions.
PRIVACY
S. 2644 is not expected to have an adverse effect on the
personal privacy of any individuals that will be impacted by
this legislation. Section 7 of the bill would enhance personal
privacy by setting forth requirements for the protection of
subscribers' account information.
PAPERWORK
The legislation should have minimal impact on current
paperwork levels.
Section-by-Section Analysis
Section 1. Short title; table of contents
This section provides that the act may be cited as ``The
Satellite Home Viewer Extension and Rural Consumer Access to
Digital Television Act of 2004,'' and sets forth the table of
contents of the bill.
Section 2. Extension of retransmission consent exception
This section would extend until December 31, 2009, the
retransmission consent exception provided in section 325 of the
Communications Act of 1934. This section allows DBS companies
to retransmit the signals of network stations directly to
certain subscribers without requiring the satellite carrier to
obtain the consent of the network station. This provision is
set to expire December 31, 2004.
Section 3. Carriage of local stations on a single dish
This section amends section 338 of the Communications Act by
mandating that a satellite carrier choosing to offer the local
stations of a particular market provide such stations to
subscribers through the use of a single reception antenna and
associated equipment (i.e., a single satellite dish). The DBS
carrier may carry local stations on a separate dish from the
rest of its programming channels (CNN, ESPN, etc.), and may
also elect to carry analog signals of the local broadcasters on
a separate dish from digital signals of the local broadcasters.
Satellite carriers would have 18 months from enactment to
comply with the new requirement. This section responds to the
concerns about discriminatory treatment made by local
broadcasters, particularly religious and foreign-language
broadcasters, by banning the division of local broadcast
stations between two satellite dishes.
A significant beneficiary of DBS providers' use of two-dishes
has been consumers in medium- sized markets who have been able
to receive their local stations via satellite earlier than
would have been possible if carriage on one-dish was mandated.
While ultimately sympathizing with those broadcasters who have
been placed on a separate satellite dish, this bill would
attempt to minimize the disruption to consumers in the medium-
sized markets by providing an 18 month transition period for a
satellite carrier to deliver all broadcasters to one-dish.
Section 4. Carriage of distant digital signals; unserved digital
customers
This section would ensure that consumers in rural and other
areas who are unable to receive a local broadcaster's digital
signal could enjoy high definition (HD) digital content carried
by the broadcast networks. Consumers could be confident that if
they purchased expensive high definition television sets, they
could enjoy high profile HD events available on broadcast
channels, such as the Super Bowl, the World Series, the Oscars,
and other programming.
This section would direct the FCC to develop a method for
identifying unserved digital households within two years. The
FCC would establish a process similar to the predictive model
used today to determine when a household is ``unserved'' with
respect to analog signal reception. Thus, the Commission would
(1) determine the appropriate signal standard for determining
eligibility for distant digital signals; (2) develop a
predictive model for presumptively determining the ability of
individual locations to receive digital signals in accordance
with the signal standard; and (3) establish waiver and
objective verification standards. The bill would also preserve
the existing eligibility of certain households who are unable
to receive an analog signal to receive distant digital signals
until the FCC completes this process. However, satellite
carriers could only import distant digital signals into markets
where they were already offering the local analog signals.
The bill is not intended to be punitive toward any
broadcaster. It is primarily focused on ensuring consumers have
access to digital HD broadcast programming. As a concession to
broadcasters, therefore, the bill would make clear that, even
after the Commission establishes a permanent predictive model,
if a broadcaster demonstrates that its signal would reach a
particular household but for circumstances that lie beyond its
control, that household would not be eligible to receive a
distant digital signal.
Broadcasters have expressed significant concern that a
satellite carrier that is permitted to provide a distant
digital signal will never terminate that signal even after the
broadcaster is able to reach the household. In response to this
concern, this section would require that satellite companies
terminate distant digital signals whenever a change in
circumstances occurs that would result in an ``unserved
household'' becoming a ``served household'' for that network
affiliate. Moreover, satellite carriers would be required to
give any potential subscribers clear, conspicuous, and prior
notice that the distant digital service will be terminated
within 120 days after the date the subscriber becomes
ineligible for the service (because the household is now able
to receive the broadcaster's over-the-air digital signal).
Satellite carriers would also be required to provide
broadcasters with a list of subscribers receiving distant
digital signals whose service would be terminated as a result
of such a change.
Failure to provide networks with a ``complete'' list of
subscribers receiving service under the rule provided in this
section, and failure to cease distant digital transmissions
within 120 days of the date when a subscriber becomes
ineligible, would subject satellite carriers to extremely
severe enforcement penalties for each household out of
compliance. Each household at issue would be considered a
separate violation, and each day would be a separate violation.
For example, if a satellite carrier illegally provided a
distant digital signal to fifty households in a local market,
the company would be eligible for a fine of $550,000 dollars a
day ($11,000 50 households).
Section 5. Bargaining obligations
This section would extend and expand the good faith
bargaining obligation from the current January 1, 2006 sunset
to January 1, 2010. Currently, the good faith obligation is
only imposed on broadcasters. This bill will impose the
obligation on not only broadcasters, but also DBS providers and
cable companies.
Section 6. Reduction of required tests
This section would modify section 339 of the Communications
Act, which designates whether broadcasters or satellite
companies must pay for a signal strength test requested by a
consumer in a household that disagrees with a determination by
the Commission's predictive model that it should be able to
receive an over-the-air analog signal. The section would
preclude subscribers who are capable of receiving local signals
via satellite, as well as subscribers who are predicted to
receive a signal of an intensity better than whatever standard
is in effect (currently Grade B intensity) from the network at
issue, from demanding a signal strength test under section
339(c)(4) of that Act. Such subscribers may, however, request a
test at their own expense.
Section 7. Privacy rights of satellite subscribers
This section would modify section 631 of the Communications
Act, which sets forth requirements for protection of cable
subscriber account information, by making it applicable to
satellite operators.
Section 8. Sponsorship identification rules for DBS
This section would direct the FCC to apply section 317 of the
Communications Act to DBS providers. This provision of the Act
deals with sponsorship identification, and provides that any
matter broadcast in exchange for payment must be accompanied by
an announcement that the matter was paid for or sponsored by
the paying entity. Section 317 currently applies to cable
operators and broadcasters.
Section 9. Certain vessels and aircraft
This section would include aircraft and ``recreational
vessels'' (i.e., certain types of boats) within the definition
of unserved households, thereby making such entities eligible
for distant signals.
Section 10. Carriage of local television signals by certain satellite
carriers
This section would allow a satellite carrier to offer a
broadcaster's signal, if the broadcaster was the only network
signal in that State prior to January 1, 1995, to other viewers
in that State as long as the community is not contained in the
top 50 broadcast television markets. Additionally, a DBS
provider would be able to provide to viewers in a State that
contains a top 50 market any network and superstation signals
that were licensed as of January 1, 1995 in the same market, if
the market does not encompass all the counties in a State and
if the market is not a top 50 market.
Section 11. Carriage of television stations to certain subscribers
This section would allow a DBS carrier to retransmit any
stations that are located in an eligible county within a State
where a MVPD was transmitting the same stations to subscribers
in the county on January 1, 2004. These stations would be
considered ``significantly viewed.'' Additionally, this section
would allow a DBS carrier to retransmit up to two stations
located in the State in which the county is located if the MVPD
is authorized to carry less than three. The section also
defines which counties are eligible for these stations.
Section 12. Retransmission of signals into adjacent local market in
certain markets
This section would prevent a satellite carrier from carrying
the signal of a television station into an adjacent local
market where such market is comprised of only a portion of a
county, other than to unserved households in such county.
Section 13. Satellite carriage of Alaska television stations in areas
of Alaska outside any DMA
This section would require all satellite carriers offering
MVPD service in the United States to over 5 million subscribers
to retransmit the analog and digital signals of each local
Alaska broadcast station within 2 years and to retransmit
stations in at least one Alaska market to other areas of the
State that are not within a Designated Market Area (DMA). This
section would also prohibit the importation of distant digital
signals into Alaska pursuant to the distant signal copyright
license once local Alaska stations are made available by the
satellite operator to Alaska subscribers pursuant to the local-
into-local copyright license.
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):
TITLE 17. COPYRIGHTS
CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 119. Limitations on exclusive rights: Secondary transmissions of
superstations and network stations for private home
viewing
(a) Secondary Transmissions by Satellite Carriers.--
(1) Superstations and pbs satellite feed.--Subject to
the provisions of paragraphs (3), (4), and (6) of this
subsection and section 114(d), secondary transmissions
of a performance or display of a work embodied in a
primary transmission made by a superstation or by the
Public Broadcasting Service satellite feed shall be
subject to statutory licensing under this section if
the secondary transmission is made by a satellite
carrier to the public for private home viewing, with
regard to secondary transmissions the satellite carrier
is in compliance with the rules, regulations, or
authorizations of the Federal Communications Commission
governing the carriage of television broadcast station
signals, and the carrier makes a direct or indirect
charge for each retransmission service to each
household receiving the secondary transmission or to a
distributor that has contracted with the carrier for
direct or indirect delivery of the secondary
transmission to the public for private home viewing. In
the case of the Public Broadcasting Service satellite
feed, the statutory license shall be effective until
January 1, 2002.
(2) Network stations.--
(A) In general.--Subject to the provisions of
subparagraphs (B) and (C) of this paragraph and
paragraphs (3), (4), (5), and (6) of this
subsection and section 114(d), secondary
transmissions of a performance or display of a
work embodied in a primary transmission made by
a network station shall be subject to statutory
licensing under this section if the secondary
transmission is made by a satellite carrier to
the public for private home viewing, with
regard to secondary transmissions the satellite
carrier is in compliance with the rules,
regulations, or authorizations of the Federal
Communications Commission governing the
carriage of television broadcast station
signals, and the carrier makes a direct or
indirect charge for such retransmission service
to each subscriber receiving the secondary
transmission.
(B) Secondary transmissions to unserved
households.--
(i) In general.--The statutory
license provided for in subparagraph
(A) shall be limited to secondary
transmissions of the signals of no more
than two network stations in a single
day for each television network to
persons who reside in unserved
households.
(ii) Accurate determinations of
eligibility.--
(I) Accurate predictive
model.--In determining
presumptively whether a person
resides in an unserved
household under subsection
[(d)(10)(A),] (d)(10), a court
shall rely on the Individual
Location Longley-Rice model set
forth by the Federal
Communications Commission in
Docket No. 98-201, as that
model may be amended by the
Commission over time under
section [339(c)(3)] 339 of the
Communications Act of 1934 to
increase the accuracy of that
model.
(II) Accurate measurements.--
For purposes of site
measurements to determine
whether a person resides in an
unserved household under
subsection [(d)(10)(A),]
(d)(10), a court shall rely on
section [339(c)(4)] 339 of the
Communications Act of 1934.
(iii) C-band exemption to unserved
households.--
(I) In general.--The
limitations of clause (i) shall
not apply to any secondary
transmissions by C-band
services of network stations
that a subscriber to C-band
service received before any
termination of such secondary
transmissions before October
31, 1999.
(II) Definition.--In this
clause the term ``C-band
service'' means a service that
is licensed by the Federal
Communications Commission and
operates in the Fixed Satellite
Service under part 25 of title
47 of the Code of Federal
Regulations.
(C) Submission of subscriber lists to
networks.--A satellite carrier that makes
secondary transmissions of a primary
transmission made by a network station pursuant
to subparagraph (A) shall, 90 days after
commencing such secondary transmissions, submit
to the network that owns or is affiliated with
the network station a list identifying (by name
and street address, including county and zip
code) all subscribers to which the satellite
carrier makes secondary transmissions of that
primary transmission. Thereafter, on the 15th
of each month, the satellite carrier shall
submit to the network a list identifying (by
name and street address, including county and
zip code) any persons who have been added or
dropped as such subscribers since the last
submission under this subparagraph. Such
subscriber information submitted by a satellite
carrier may be used only for purposes of
monitoring compliance by the satellite carrier
with this subsection. The submission
requirements of this subparagraph shall apply
to a satellite carrier only if the network to
whom the submissions are to be made places on
file with the Register of Copyrights a document
identifying the name and address of the person
to whom such submissions are to be made. The
Register shall maintain for public inspection a
file of all such documents.
(3) Noncompliance with reporting and payment
requirements.--Notwithstanding the provisions of
paragraphs (1) and (2), the willful or repeated
secondary transmission to the public by a satellite
carrier of a primary transmission made by a
superstation or a network station and embodying a
performance or display of a work is actionable as an
act of infringement under section 501, and is fully
subject to the remedies provided by sections 502
through 506 and 509, where the satellite carrier has
not deposited the statement of account and royalty fee
required by subsection (b), or has failed to make the
submissions to networks required by paragraph (2)(C).
(4) Willful alterations.--Notwithstanding the
provisions of paragraphs (1) and (2), the secondary
transmission to the public by a satellite carrier of a
performance or display of a work embodied in a primary
transmission made by a superstation or a network
station is actionable as an act of infringement under
section 501, and is fully subject to the remedies
provided by sections 502 through 506 and sections 509
and 510, if the content of the particular program in
which the performance or display is embodied, or any
commercial advertising or station announcement
transmitted by the primary transmitter during, or
immediately before or after, the transmission of such
program, is in any way willfully altered by the
satellite carrier through changes, deletions, or
additions, or is combined with programming from any
other broadcast signal.
(5) Violation of territorial restrictions on
statutory license for network stations.--
(A) Individual violations.--The willful or
repeated secondary transmission by a satellite
carrier of a primary transmission made by a
network station and embodying a performance or
display of a work to a subscriber who does not
reside in an unserved household is actionable
as an act of infringement under section 501 and
is fully subject to the remedies provided by
sections 502 through 506 and 509, except that--
(i) no damages shall be awarded for
such act of infringement if the
satellite carrier took corrective
action by promptly withdrawing service
from the ineligible subscriber, and
(ii) any statutory damages shall not
exceed $5 for such subscriber for each
month during which the violation
occurred.
(B) Pattern of violations.--If a satellite
carrier engages in a willful or repeated
pattern or practice of delivering a primary
transmission made by a network station and
embodying a performance or display of a work to
subscribers who do not reside in unserved
households, then in addition to the remedies
set forth in subparagraph (A)--
(i) if the pattern or practice has
been carried out on a substantially
nationwide basis, the court shall order
a permanent injunction barring the
secondary transmission by the satellite
carrier, for private home viewing, of
the primary transmissions of any
primary network station affiliated with
the same network, and the court may
order statutory damages of not to
exceed $250,000 for each 6-month period
during which the pattern or practice
was carried out; and
(ii) if the pattern or practice has
been carried out on a local or regional
basis, the court shall order a
permanent injunction barring the
secondary transmission, for private
home viewing in that locality or
region, by the satellite carrier of the
primary transmissions of any primary
network station affiliated with the
same network, and the court may order
statutory damages of not to exceed
$250,000 for each 6-month period during
which the pattern or practice was
carried out.
(C) Previous subscribers excluded.--
Subparagraphs (A) and (B) do not apply to
secondary transmissions by a satellite carrier
to persons who subscribed to receive such
secondary transmissions from the satellite
carrier or a distributor before November 16,
1988.
(D) Burden of proof.--In any action brought
under this paragraph, the satellite carrier
shall have the burden of proving that its
secondary transmission of a primary
transmission by a network station is for
private home viewing to an unserved household.
(E) Exception.--The secondary transmission by
a satellite carrier of a performance or display
of a work embodied in a primary transmission
made by a network station to subscribers who do
not reside in unserved households shall not be
an act of infringement if--
(i) the station on May 1, 1991, was
retransmitted by a satellite carrier
and was not on that date owned or
operated by or affiliated with a
television network that 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;
(ii) as of July 1, 1998, such station
was retransmitted by a satellite
carrier under the statutory license of
this section; and
(iii) the station 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.
(6) Discrimination by a satellite carrier.--
Notwithstanding the provisions of paragraph (1), the
willful or repeated secondary transmission to the
public by a satellite carrier of a performance or
display of a work embodied in a primary transmission
made by a superstation or a network station is
actionable as an act of infringement under section 501,
and is fully subject to the remedies provided by
sections 502 through 506 and 509, if the satellite
carrier unlawfully discriminates against a distributor.
(7) Geographic limitation on secondary
transmissions.--The statutory license created by this
section shall apply only to secondary transmissions to
households located in the United States.
(8) Transitional signal intensity measurement
procedures.--
(A) In general.--Subject to subparagraph (C),
upon a challenge by a network station regarding
whether a subscriber is an unserved household
within the predicted Grade B Contour of the
station, the satellite carrier shall, within 60
days after the receipt of the challenge--
(i) terminate service to that
household of the signal that is the
subject of the challenge, and within 30
days thereafter notify the network
station that made the challenge that
service to that household has been
terminated; or
(ii) conduct a measurement of the
signal intensity of the subscriber's
household to determine whether the
household is an unserved household
after giving reasonable notice to the
network station of the satellite
carrier's intent to conduct the
measurement.
(B) Effect of measurement.--If the satellite
carrier conducts a signal intensity measurement
under subparagraph (A) and the measurement
indicates that--
(i) the household is not an unserved
household, the satellite carrier shall,
within 60 days after the measurement is
conducted, terminate the service to
that household of the signal that is
the subject of the challenge, and
within 30 days thereafter notify the
network station that made the challenge
that service to that household has been
terminated; or
(ii) the household is an unserved
household, the station challenging the
service shall reimburse the satellite
carrier for the costs of the signal
measurement within 60 days after
receipt of the measurement results and
a statement of the costs of the
measurement.
(C) Limitation on measurements.--
(i) Notwithstanding subparagraph (A),
a satellite carrier may not be required
to conduct signal intensity
measurements during any calendar year
in excess of 5 percent of the number of
subscribers within the network
station's local market that have
subscribed to the service as of the
effective date of the Satellite Home
Viewer Act of 1994.
(ii) If a network station challenges
whether a subscriber is an unserved
household in excess of 5 percent of the
subscribers within the network
station's local market within a
calendar year, subparagraph (A) shall
not apply to challenges in excess of
such 5 percent, but the station may
conduct its own signal intensity
measurement of the subscriber's
household after giving reasonable
notice to the satellite carrier of the
network station's intent to conduct the
measurement. If such measurement
indicates that the household is not an
unserved household, the carrier shall,
within 60 days after receipt of the
measurement, terminate service to the
household of the signal that is the
subject of the challenge and within 30
days thereafter notify the network
station that made the challenge that
service has been terminated. The
carrier shall also, within 60 days
after receipt of the measurement and a
statement of the costs of the
measurement, reimburse the network
station for the cost it incurred in
conducting the measurement.
(D) Outside the predicted grade b contour.--
(i) If a network station challenges
whether a subscriber is an unserved
household outside the predicted Grade B
Contour of the station, the station may
conduct a measurement of the signal
intensity of the subscriber's household
to determine whether the household is
an unserved household after giving
reasonable notice to the satellite
carrier of the network station's intent
to conduct the measurement.
(ii) If the network station conducts
a signal intensity measurement under
clause (i) and the measurement
indicates that--
(I) the household is not an
unserved household, the station
shall forward the results to
the satellite carrier who
shall, within 60 days after
receipt of the measurement,
terminate the service to the
household of the signal that is
the subject of the challenge,
and shall reimburse the station
for the costs of the
measurement within 60 days
after receipt of the
measurement results and a
statement of such costs; or
(II) the household is an
unserved household, the station
shall pay the costs of the
measurement.
(9) Loser pays for signal intensity measurement;
recovery of measurement costs in a civil action.--In
any civil action filed relating to the eligibility of
subscribing households as unserved households--
(A) a network station challenging such
eligibility shall, within 60 days after receipt
of the measurement results and a statement of
such costs, reimburse the satellite carrier for
any signal intensity measurement that is
conducted by that carrier in response to a
challenge by the network station and that
establishes the household is an unserved
household; and
(B) a satellite carrier shall, within 60 days
after receipt of the measurement results and a
statement of such costs, reimburse the network
station challenging such eligibility for any
signal intensity measurement that is conducted
by that station and that establishes the
household is not an unserved household.
(10) Inability to conduct measurement.--If a network
station makes a reasonable attempt to conduct a site
measurement of its signal at a subscriber's household
and is denied access for the purpose of conducting the
measurement, and is otherwise unable to conduct a
measurement, the satellite carrier shall within 60 days
notice thereof, terminate service of the station's
network to that household.
(11) Service to [recreational vehicles and commercial
trucks.--] recreational vehicles, vessels, aircraft,
and commercial trucks._
(A) Exemption.--
(i) In general.--For purposes of this
subsection, and subject to clauses (ii)
and (iii), the term ``unserved
household'' shall include--
(I) recreational vehicles as
defined in regulations of the
Secretary of Housing and Urban
Development under section
3282.8 of title 24 of the Code
of Federal Regulations; [and]
(II) commercial trucks that
qualify as commercial motor
vehicles under regulations of
the Secretary of Transportation
under section 383.5 of title 49
of the Code of Federal
[Regulations.] Regulations;
(III) recreational vessels as
defined in section 2101(25) of
title 46, United States Code,
documented in accordance with
section 12101 of title 46 or
State law; and
(IV) aircraft registered
under section 44103 of title
49.
(ii) Limitation.--Clause (i) shall
apply only to a recreational [vehicle
or] vehicle, vessel, aircraft, or
commercial truck if any satellite
carrier that proposes to make a
secondary transmission of a network
station to the operator of such a
recreational [vehicle or] vehicle,
vessel, aircraft, or commercial truck
complies with the documentation
requirements under subparagraphs (B)
and (C).
(iii) Exclusion.--For purposes of
this subparagraph, the terms
``recreational [vehicle''] vehicle,
recreational vessel, aircraft'' and
``commercial truck'' shall not include
any fixed dwelling, whether a mobile
home or otherwise.
(B) Documentation requirements.--A
recreational [vehicle] vehicle, recreational
vessel, aircraft, or commercial truck shall be
deemed to be an unserved household beginning 10
days after the relevant satellite carrier
provides to the network that owns or is
affiliated with the network station that will
be secondarily transmitted to the recreational
[vehicle] vehicle, recreational vessel,
aircraft, or commercial truck the following
documents:
(i) Declaration.--A signed
declaration by the operator of the
recreational [vehicle] vehicle,
recreational vessel, aircraft, or
commercial truck that the satellite
dish is permanently attached to the
recreational [vehicle] vehicle,
recreational vessel, aircraft, or
commercial truck, and will not be used
to receive satellite programming at any
fixed dwelling.
(ii) Registration.--In the case of a
recreational vehicle, a copy of the
current State vehicle registration for
the recreational vehicle.
(iii) Registration and license.--In
the case of a commercial truck, a copy
of--
(I) the current State vehicle
registration for the truck; and
(II) a copy of a valid,
current commercial driver's
license, as defined in
regulations of the Secretary of
Transportation under section
383 of title 49 of the Code of
Federal Regulations, issued to
the operator.
(C) Updated documentation requirements.--If a
satellite carrier wishes to continue to make
secondary transmissions to a recreational
[vehicle or] vehicle, recreational vessel,
aircraft, or commercial truck for more than a
2-year period, that carrier shall provide each
network, upon request, with updated
documentation in the form described under
subparagraph (B) during the 90 days before
expiration of that 2-year period.
(12) Statutory license contingent on compliance with
FCC rules and remedial steps.--Notwithstanding any
other provision of this section, the willful or
repeated secondary transmission to the public by a
satellite carrier of a primary transmission embodying a
performance or display of a work made by a broadcast
station licensed by the Federal Communications
Commission is actionable as an act of infringement
under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if, at
the time of such transmission, the satellite carrier is
not in compliance with the rules, regulations, and
authorizations of the Federal Communications Commission
concerning the carriage of television broadcast station
signals.
(13) No importation of distant signals into certain
markets.--Notwithstanding any other provision of this
title, the statutory license in this subsection and
subsection (b) shall not apply to any secondary
transmission of a television station located outside of
the State of Alaska to any subscriber in that State to
whom secondary transmissions of television stations
located in that State are made available by the
satellite carrier pursuant to section 122.
(b) Statutory License for Secondary Transmissions for Private
Home Viewing.--
(1) Deposits with the register of copyrights.--A
satellite carrier whose secondary transmissions are
subject to statutory licensing under subsection (a)
shall, on a semiannual basis, deposit with the Register
of Copyrights, in accordance with requirements that the
Register shall prescribe by regulation--
(A) a statement of account, covering the
preceding 6-month period, specifying the names
and locations of all superstations and network
stations whose signals were retransmitted, at
any time during that period, to subscribers for
private home viewing as described in
subsections (a)(1) and (a)(2), the total number
of subscribers that received such
retransmissions, and such other data as the
Register of Copyrights may from time to time
prescribe by regulation; and
(B) a royalty fee for that 6-month period,
computed by--
(i) multiplying the total number of
subscribers receiving each secondary
transmission of a superstation during
each calendar month by 17.5 cents per
subscriber in the case of superstations
that as retransmitted by the satellite
carrier include any program which, if
delivered by any cable system in the
United States, would be subject to the
syndicated exclusivity rules of the
Federal Communications Commission, and
14 cents per subscriber in the case of
superstations that are syndex-proof as
defined in section 258.2 of title 37,
Code of Federal Regulations;
(ii) multiplying the number of
subscribers receiving each secondary
transmission of a network station or
the Public Broadcasting Service
satellite feed during each calendar
month by 6 cents; and
(iii) adding together the totals
computed under clauses (i) and (ii).
(2) Investment of fees.--The Register of Copyrights
shall receive all fees deposited under this section
and, after deducting the reasonable costs incurred by
the Copyright Office under this section (other than the
costs deducted under paragraph (4)), shall deposit the
balance in the Treasury of the United States, in such
manner as the Secretary of the Treasury directs. All
funds held by the Secretary of the Treasury shall be
invested in interest-bearing securities of the United
States for later distribution with interest by the
Librarian of Congress as provided by this title.
(3) Persons to whom fees are distributed.--The
royalty fees deposited under paragraph (2) shall, in
accordance with the procedures provided by paragraph
(4), be distributed to those copyright owners whose
works were included in a secondary transmission for
private home viewing made by a satellite carrier during
the applicable 6-month accounting period and who file a
claim with the Librarian of Congress under paragraph
(4).
(4) Procedures for distribution.--The royalty fees
deposited under paragraph (2) shall be distributed in
accordance with the following procedures:
(A) Filing of claims for fees.--During the
month of July in each year, each person
claiming to be entitled to statutory license
fees for secondary transmissions for private
home viewing shall file a claim with the
Librarian of Congress, in accordance with
requirements that the Librarian of Congress
shall prescribe by regulation. For purposes of
this paragraph, any claimants may agree among
themselves as to the proportionate division of
statutory license fees among them, may lump
their claims together and file them jointly or
as a single claim, or may designate a common
agent to receive payment on their behalf.
(B) Determination of controversy;
distributions.--After the first day of August
of each year, the Librarian of Congress shall
determine whether there exists a controversy
concerning the distribution of royalty fees. If
the Librarian of Congress determines that no
such controversy exists, the Librarian of
Congress shall, after deducting reasonable
administrative costs under this paragraph,
distribute such fees to the copyright owners
entitled to receive them, or to their
designated agents. If the Librarian of Congress
finds the existence of a controversy, the
Librarian of Congress shall, pursuant to
chapter 8 of this title, convene a copyright
arbitration royalty panel to determine the
distribution of royalty fees.
(C) Withholding of fees during controversy.--
During the pendency of any proceeding under
this subsection, the Librarian of Congress
shall withhold from distribution an amount
sufficient to satisfy all claims with respect
to which a controversy exists, but shall have
discretion to proceed to distribute any amounts
that are not in controversy.
(c) Adjustment of Royalty Fees.--
(1) Applicability and determination of royalty
fees.--The rate of the royalty fee payable under
subsection (b)(1)(B) shall be effective unless a
royalty fee is established under paragraph (2) or (3)
of this subsection.
(2) Fee set by voluntary negotiation.--
(A) Notice of initiation of proceedings.--On
or before July 1, 1996, the Librarian of
Congress shall cause notice to be published in
the Federal Register of the initiation of
voluntary negotiation proceedings for the
purpose of determining the royalty fee to be
paid by satellite carriers under subsection
(b)(1)(B).
(B) Negotiations.--Satellite carriers,
distributors, and copyright owners entitled to
royalty fees under this section shall negotiate
in good faith in an effort to reach a voluntary
agreement or voluntary agreements for the
payment of royalty fees. Any such satellite
carriers, distributors, and copyright owners
may at any time negotiate and agree to the
royalty fee, and may designate common agents to
negotiate, agree to, or pay such fees. If the
parties fail to identify common agents, the
Librarian of Congress shall do so, after
requesting recommendations from the parties to
the negotiation proceeding. The parties to each
negotiation proceeding shall bear the entire
cost thereof.
(C) Agreements binding on parties; filing of
agreements.--Voluntary agreements negotiated at
any time in accordance with this paragraph
shall be binding upon all satellite carriers,
distributors, and copyright owners that are
parties thereto. Copies of such agreements
shall be filed with the Copyright Office within
30 days after execution in accordance with
regulations that the Register of Copyrights
shall prescribe.
(D) Period agreement is in effect.--The
obligation to pay the royalty fees established
under a voluntary agreement which has been
filed with the Copyright Office in accordance
with this paragraph shall become effective on
the date specified in the agreement, and shall
remain in effect until December 31, 1999, or in
accordance with the terms of the agreement,
whichever is later.
(3) Fee set by compulsory arbitration.--
(A) Notice of initiation of proceedings.--On
or before January 1, 1997, the Librarian of
Congress shall cause notice to be published in
the Federal Register of the initiation of
arbitration proceedings for the purpose of
determining a reasonable royalty fee to be paid
under subsection (b)(1)(B) by satellite
carriers who are not parties to a voluntary
agreement filed with the Copyright Office in
accordance with paragraph (2). Such arbitration
proceeding shall be conducted under chapter 8.
(B) Establishment of royalty fees.--In
determining royalty fees under this paragraph,
the copyright arbitration royalty panel
appointed under chapter 8 shall establish fees
for the retransmission of network stations and
superstations that most clearly represent the
fair market value of secondary transmissions.
In determining the fair market value, the panel
shall base its decision on economic,
competitive, and programming information
presented by the parties, including--
(i) the competitive environment in
which such programming is distributed,
the cost of similar signals in similar
private and compulsory license
marketplaces, and any special features
and conditions of the retransmission
marketplace;
(ii) the economic impact of such fees
on copyright owners and satellite
carriers; and
(iii) the impact on the continued
availability of secondary transmissions
to the public.
(C) Period during which decision of
arbitration panel or order of Librarian
effective.--The obligation to pay the royalty
fee established under a determination which--
(i) is made by a copyright
arbitration royalty panel in an
arbitration proceeding under this
paragraph and is adopted by the
Librarian of Congress under section
802(f), or
(ii) is established by the Librarian
of Congress under section 802(f), shall
become effective as provided in section
802(g) or July 1, 1997, whichever is
later.
(D) Persons subject to royalty fee.--The
royalty fee referred to in subparagraph (C)
shall be binding on all satellite carriers,
distributors, and copyright owners, who are not
party to a voluntary agreement filed with the
Copyright Office under paragraph (2).
(4) Reduction.--
(A) Superstation.--The rate of the royalty
fee in effect on January 1, 1998, payable in
each case under subsection (b)(1)(B)(i) shall
be reduced by 30 percent.
(B) Network and public broadcasting satellite
feed.--The rate of the royalty fee in effect on
January 1, 1998, payable under subsection
(b)(1)(B)(ii) shall be reduced by 45 percent.
(5) Public broadcasting service as agent.--For
purposes of section 802, with respect to royalty fees
paid by satellite carriers for retransmitting the
Public Broadcasting Service satellite feed, the Public
Broadcasting Service shall be the agent for all public
television copyright claimants and all Public
Broadcasting Service member stations.
(d) 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 for private home viewing or
indirectly through other program distribution entities.
(2) Network station.--The term ``network station''
means--
(A) a television broadcast station, including
any translator station or terrestrial satellite
station that rebroadcasts all or substantially
all of the programming broadcast by a network
station, that is owned or operated by, or
affiliated with, one or more of the television
networks in the United States which offer an
interconnected program service on a regular
basis for 15 or more hours per week to at least
25 of its affiliated television licensees in 10
or more States; or
(B) a noncommercial educational broadcast
station (as defined in section 397 of the
Communications Act of 1934); except that the
term does not include the signal of the Alaska
Rural Communications Service, or any successor
entity to that service.
(3) Primary network station.--The term ``primary
network station'' means a network station that
broadcasts or rebroadcasts the basic programming
service of a particular national network.
(4) Primary transmission.--The term ``primary
transmission'' has the meaning given that term in
section 111(f) of this title.
(5) Private home viewing.--The term ``private home
viewing'' means the viewing, for private use in a
household by means of satellite reception equipment
which is operated by an individual in that household
and which serves only such household, of a secondary
transmission delivered by a satellite carrier of a
primary transmission of a television station licensed
by the Federal Communications Commission.
(6) Satellite carrier.--The term ``satellite
carrier'' means an entity that uses the facilities of a
satellite or satellite service licensed by the Federal
Communications Commission and operates in the Fixed-
Satellite Service under part 25 of title 47 of the Code
of Federal Regulations or the Direct Broadcast
Satellite Service under part 100 of title 47 of the
Code of Federal Regulations, to establish and operate a
channel of communications for point-to-multipoint
distribution of television station signals, and that
owns or leases a capacity or service on a satellite in
order to provide such point-to-multipoint distribution,
except to the extent that such entity provides such
distribution pursuant to tariff under the
Communications Act of 1934, other than for private home
viewing.
(7) Secondary transmission.--The term ``secondary
transmission'' has the meaning given that term in
section 111(f) of this title.
(8) Subscriber.--The term ``subscriber'' means an
individual who receives a secondary transmission
service for private home viewing by means of a
secondary transmission from a satellite carrier and
pays a fee for the service, directly or indirectly, to
the satellite carrier or to a distributor.
(9) Superstation.--The term ``superstation''--
(A) means a television broadcast station,
other than a network station, licensed by the
Federal Communications Commission that is
secondarily transmitted by a satellite carrier;
and
(B) except for purposes of computing the
royalty fee, includes the Public Broadcasting
Service satellite feed.
[(10) Unserved household.--The term ``unserved
household'', with respect to a particular television
network, means a household that--
[(A) cannot receive, through the use of a
conventional, stationary, outdoor rooftop
receiving antenna, an over-the-air signal of a
primary network station affiliated with that
network of Grade B intensity as defined by the
Federal Communications Commission under section
73.683(a) of title 47 of the Code of Federal
Regulations, as in effect on January 1, 1999;
[(B) is subject to a waiver granted under
regulations established under section 339(c)(2)
of the Communications Act of 1934;
[(C) is a subscriber to whom subsection (e)
applies;
[(D) is a subscriber to whom subsection
(a)(11) applies; or
[(E) is a subscriber to whom the exemption
under subsection (a)(2)(B)(iii) applies.]
(10) Unserved household.--
(A) In general.--The term ``unserved
household'', with respect to a particular
television network, means an unserved analog
household or an unserved digital household.
(B) Unserved analog household.--In this
paragraph, the term ``unserved analog
household'' means, with respect to an analog
signal, a household that--
(i) cannot receive, through the use
of a conventional, stationary, outdoor
rooftop receiving antenna, an over-the-
air signal of a primary network station
affiliated with that network of Grade B
intensity as defined by the Federal
Communications Commission under section
73.683(a) of title 47 of the Code of
Federal Regulations, as in effect on
January 1, 1999;
(ii) is subject to a waiver granted
under regulations established under
section 339(c)(2) of the Communications
Act of 1934;
(iii) is a subscriber to whom
subsection (e) applies;
(iv) is a subscriber to whom
subsection (a)(11) applies; or
(v) is a subscriber to whom the
exemption under subsection
(a)(2)(B)(iii) applies.
(C) Unserved digital household.--In this
paragraph, the term ``unserved digital
household'' means, with respect to a digital
signal, a household that is eligible to receive
distant digital signals pursuant to section
339(d) of the Communications Act of 1934 (47
U.S.C. 339(d)).
(11) Local market.--The term ``local market'' has the
meaning given such term under section 122(j).
(12) Public broadcasting service satellite feed.--The
term ``Public Broadcasting Service satellite feed''
means the national satellite feed distributed and
designated for purposes of this section by the Public
Broadcasting Service consisting of educational and
informational programming intended for private home
viewing, to which the Public Broadcasting Service holds
national terrestrial broadcast rights.
(e) Moratorium on Copyright Liability.--Until December 31,
2004, a subscriber who does not receive a signal of Grade A
intensity (as defined in the regulations of the Federal
Communications Commission under section 73.683(a) of title 47
of the Code of Federal Regulations, as in effect on January 1,
1999, or predicted by the Federal Communications Commission
using the Individual Location Longley-Rice methodology
described by the Federal Communications Commission in Docket
No. 98-201) of a local network television broadcast station
shall remain eligible to receive signals of network stations
affiliated with the same network, if that subscriber had
satellite service of such network signal terminated after July
11, 1998, and before October 31, 1999, as required by this
section, or received such service on October 31, 1999.
Sec. 122. Limitations on exclusive rights: Secondary transmissions by
satellite carriers within local markets
(a) Secondary Transmissions of Television Broadcast Stations
by Satellite Carriers.--A secondary transmission of a
performance or display of a work embodied in a primary
transmission of a television broadcast station into the
station's local market shall be subject to statutory licensing
under this section if--
(1) the secondary transmission is made by a satellite
carrier to the public;
(2) with regard to secondary transmissions, the
satellite carrier is in compliance with the rules,
regulations, or authorizations of the Federal
Communications Commission governing the carriage of
television broadcast station signals; and
(3) the satellite carrier makes a direct or indirect
charge for the secondary transmission to--
(A) each subscriber receiving the secondary
transmission; or
(B) a distributor that has contracted with
the satellite carrier for direct or indirect
delivery of the secondary transmission to the
public.
(b) Reporting Requirements.--(1) Initial Lists.--A satellite
carrier that makes secondary transmissions of a primary
transmission made by a network station under subsection (a)
shall, within 90 days after commencing such secondary
transmissions, submit to the network that owns or is affiliated
with the network station a list identifying (by name in
alphabetical order and street address, including county and zip
code) all subscribers to which the satellite carrier makes
secondary transmissions of that primary transmission under
subsection (a).
(2) Subsequent Lists.--After the list is submitted under
paragraph (1), the satellite carrier shall, on the 15th of each
month, submit to the network a list identifying (by name in
alphabetical order and street address, including county and zip
code) any subscribers who have been added or dropped as
subscribers since the last submission under this subsection.
(3) Use of Subscriber Information.--Subscriber information
submitted by a satellite carrier under this subsection may be
used only for the purposes of monitoring compliance by the
satellite carrier with this section.
(4) Requirements of Networks.--The submission requirements of
this subsection shall apply to a satellite carrier only if the
network to which the submissions are to be made places on file
with the Register of Copyrights a document identifying the name
and address of the person to whom such submissions are to be
made. The Register of Copyrights shall maintain for public
inspection a file of all such documents.
(c) No Royalty Fee Required.--A satellite carrier whose
secondary transmissions are subject to statutory licensing
under subsection (a) shall have no royalty obligation for such
secondary transmissions.
(d) Noncompliance with Reporting and Regulatory
Requirements.--Notwithstanding subsection (a), the willful or
repeated secondary transmission to the public by a satellite
carrier into the local market of a television broadcast station
of a primary transmission embodying a performance or display of
a work made by that television broadcast station is actionable
as an act of infringement under section 501, and is fully
subject to the remedies provided under sections 502 through 506
and 509, if the satellite carrier has not complied with the
reporting requirements of subsection (b) or with the rules,
regulations, and authorizations of the Federal Communications
Commission concerning the carriage of television broadcast
signals.
(e) Willful Alterations.--Notwithstanding subsection (a), the
secondary transmission to the public by a satellite carrier
into the local market of a television broadcast station of a
performance or display of a work embodied in a primary
transmission made by that television broadcast station is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through
506 and sections 509 and 510, if the content of the particular
program in which the performance or display is embodied, or any
commercial advertising or station announcement transmitted by
the primary transmitter during, or immediately before or after,
the transmission of such program, is in any way willfully
altered by the satellite carrier through changes, deletions, or
additions, or is combined with programming from any other
broadcast signal.
(f) Violation of Territorial Restrictions on Statutory
License for Television Broadcast Stations.--
(1) Individual violations.--The willful or repeated
secondary transmission to the public by a satellite
carrier of a primary transmission embodying a
performance or display of a work made by a television
broadcast station to a subscriber who does not reside
in that station's local market, and is not subject to
statutory licensing under section 119 or a private
licensing agreement, is actionable as an act of
infringement under section 501 and is fully subject to
the remedies provided by sections 502 through 506 and
509, except that--
(A) no damages shall be awarded for such act
of infringement if the satellite carrier took
corrective action by promptly withdrawing
service from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5
for such subscriber for each month during which
the violation occurred.
(2) Pattern of violations.--If a satellite carrier
engages in a willful or repeated pattern or practice of
secondarily transmitting to the public a primary
transmission embodying a performance or display of a
work made by a television broadcast station to
subscribers who do not reside in that station's local
market, and are not subject to statutory licensing
under section 119 or a private licensing agreement,
then in addition to the remedies under paragraph (1)--
(A) if the pattern or practice has been
carried out on a substantially nationwide
basis, the court--
(i) shall order a permanent
injunction barring the secondary
transmission by the satellite carrier
of the primary transmissions of that
television broadcast station (and if
such television broadcast station is a
network station, all other television
broadcast stations affiliated with such
network); and
(ii) may order statutory damages not
exceeding $ 250,000 for each 6-month
period during which the pattern or
practice was carried out; and
(B) if the pattern or practice has been
carried out on a local or regional basis with
respect to more than one television broadcast
station, the court--
(i) shall order a permanent
injunction barring the secondary
transmission in that locality or region
by the satellite carrier of the primary
transmissions of any television
broadcast station; and
(ii) may order statutory damages not
exceeding $ 250,000 for each 6-month
period during which the pattern or
practice was carried out.
(g) Burden of Proof.--In any action brought under subsection
(f), the satellite carrier shall have the burden of proving
that its secondary transmission of a primary transmission by a
television broadcast station is made only to subscribers
located within that station's local market or subscribers being
served in compliance with section 119 or a private licensing
agreement.
(h) Geographic Limitations on Secondary Transmissions.--The
statutory license created by this section shall apply to
secondary transmissions to locations in the United States.
(i) Exclusivity with Respect to Secondary Transmissions of
Broadcast Stations by Satellite to Members of the Public.--No
provision of section 111 or any other law (other than this
section and section 119) shall be construed to contain any
authorization, exemption, or license through which secondary
transmissions by satellite carriers of programming contained in
a primary transmission made by a television broadcast station
may be made without obtaining the consent of the copyright
owner.
(j) Definitions.--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) Local market.--(A) In general.--The term ``local
market'', in the case of both commercial and
noncommercial television broadcast stations, means the
designated market area in which a station is located,
and--
(i) in the case of a commercial television
broadcast station, all commercial television
broadcast stations licensed to a community
within the same designated market area are
within the same local market; and
(ii) in the case of a noncommercial
educational television broadcast station, the
market includes any station that is licensed to
a community within the same designated market
area as the noncommercial educational
television broadcast station.
(B) County of license.--In addition to the area
described in subparagraph (A), a station's local market
includes the county in which the station's community of
license is located.
(C) Designated market area.--For purposes of
subparagraph (A), the term ``designated market area''
means a designated market area, as determined by
Nielsen Media Research and published in the 1999-2000
Nielsen Station Index Directory and Nielsen Station
Index United States Television Household Estimates or
any successor publication.
(D) Certain states.--If a satellite carrier elects,
under section 338(a)(3)(A) or (B) of the Communications
Act of 1934 (47 U.S.C. 338(a)(3)(A) or (B)), to carry
the signal of a network station or superstation then,
in addition to the area described in subparagraph (A)
of this paragraph, the local market of that station
includes, solely for the purposes of the secondary
transmission of that signal by the satellite carrier,
all households within the geographic borders of the
State in which that station is licensed.
(E) Certain areas outside of any designated market
area.--Any census area, borough, or other area in the
State of Alaska that is outside of a designated market
area, as determined by Nielsen Media Research, shall be
deemed to be part of one of the local markets in the
State of Alaska. A satellite carrier may determine
which local market in the State of Alaska will be
deemed to be the relevant local market in connection
with each subscriber in such census area, borough, or
other area.
(3) Network station; satellite carrier; secondary
transmission.--The terms ``network station'',
``satellite carrier'', and ``secondary transmission''
have the meanings given such terms under section
119(d).
(4) Subscriber.--The term ``subscriber'' means a
person who receives a secondary transmission service
from a satellite carrier and pays a fee for the
service, directly or indirectly, to the satellite
carrier or to a distributor.
(5) Television broadcast station.--The term
``television broadcast station''--
(A) means an over-the-air, commercial or
noncommercial television broadcast station
licensed by the Federal Communications
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; and
(B) includes a television broadcast station
licensed by an appropriate governmental
authority of Canada or Mexico if the station
broadcasts primarily in the English language
and is a network station as defined in section
119(d)(2)(A).
* * * * * * *
COMMUNICATIONS ACT OF 1934
TITLE III--PROVISIONS RELATING TO RADIO
PART I. GENERAL PROVISIONS
SEC. 325. FALSE DISTRESS SIGNALS; REBROADCASTING; STUDIOS OF FOREIGN
STATIONS.
[47 U.S.C. 325]
(a) No person within the jursidiction of the United States
shall knowingly utter or transmit, or cause to be uttered or
transmitted, any false or fraudulent signals 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)(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, 2004,] December 31, 2009, 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) [Within 45 days after the date of the enactment of the
Satellite Home Viewer Improvement Act of 1999, the] 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). [The
Commission shall complete all actions necessary to prescribe
such regulations within 1 year after such date of enactment.]
Such regulations shall--
(i) establish election time periods that correspond
with those regulations adopted under subparagraph (B)
of this paragraph; [and]
(ii) until [January 1, 2006,] January 1, 2010,
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.]
considerations; and
(iii) until January 1, 2010, 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) \1\ For purposes of this subsection, the term--
---------------------------------------------------------------------------
\1\ Margin so in law.
---------------------------------------------------------------------------
(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) 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 caused 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) 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. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.
[47 U.S.C. 338]
(a) Carriage Obligations.--
(1) In general.--Subject to the limitations of
paragraph [(2),] (2) and except as provided by
paragraph (3), 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.--The remedies for
any failure to meet the obligations [under this
subsection] under paragraph (1) shall be available
exclusively under section 501(f ) of title 17, United
States Code.
[(3) Effective date.--No satellite carrier shall be
required to carry local television broadcast stations
under paragraph (1) until January 1, 2002.]
(3) Certain broadcast areas.--
(A) Single network station states.--A
satellite carrier may elect to carry also the
signal of a commercial television broadcast
station that was the only network station (as
defined in section 339(d)(3)) in that State as
of January 1, 1995, for secondary transmission
to subscribers in any community in that State
that is not within 1 of the first 50 major
television markets listed in section 76.51(a)
of the Commission's regulations (47 C.F.R.
76.51(a)), as such regulations were in effect
on January 1, 1995, if the satellite carrier is
retransmitting the signal of the station
pursuant to paragraph (1) of this subsection or
section 325(b) of this Act.
(B) Multiple network station states.--A
satellite carrier may elect to carry also the
signals of any network station (as defined in
section 339(d)(3)) or superstation (as defined
in section 325(b)(2)) in a State in which--
(i) all network stations and
superstations licensed by the
Commission as of January 1, 1995, were
assigned to the same local market, and
(ii) that local market does not
encompass all counties of that State,
for secondary transmission to subscribers in
that State who reside in one of the first 50
major television markets listed in section
76.51(a) of the Commission's regulations (47
C.F.R. 76.51(a)), as such regulations were in
effect on January 1, 1995, if the satellite
carrier is retransmitting the signals pursuant
to paragraph (1) of this subsection or section
325(b) of this Act.
(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, within
2 years after the date of enactment of the Satellite
Home Viewer Extension and Rural Consumer Access to
Digital Television Act of 2004, retransmit the analog
and digital signals of each television broadcast
station located in any local market within a State that
is not part of the contiguous United States and that
contains more than one television market. 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.
(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), 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) General rule.--A satellite carrier that
retransmits the signals of local television broadcast
stations in a local market shall retransmit the signals
of all local television broadcast stations
retransmitted by that carrier to subscribers in that
market by means of a single reception antenna and
associated equipment.
(2) Exception for digital television service.--
Notwithstanding paragraph (1), if the carrier
retransmits signals in the digital television service,
the carrier shall retransmit the digital television
service signals of all the local television broadcast
stations retransmitted by that carrier to subscribers
in that market by means of a single reception antenna
and associated equipment, but the antenna and
associated equipment may be separate from the single
reception antenna and associated equipment used for
signals that are not in the digital television service.
(3) 18-month transition period for existing 2-dish
markets.--In the case of a satellite carrier that, as
of July 1, 2004, is retransmitting local television
broadcast signals to subscribers in local markets by
means of more than a single reception antenna and
associated equipment, the requirements of paragraphs
(1) and (2) shall first apply to that carrier in those
local markets 18 months after the date of enactment of
the Satellite Home Viewer Extension and Rural Consumer
Access to Digital Television Act of 2004.
(4) Enforcement.--If a satellite carrier fails to
comply with the requirements of this subsection--
(A) the failure to comply shall be punishable
under titles IV and V of this Act;
(B) each market with respect to which the
satellite carrier fails to comply shall be
considered to be a separate violation; and
(C) each day of a continuing violation shall
be considered to be a separate violation.
[(g)] (h) 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).
[(h)] (i) 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) 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) Local market.--The term ``local market'' has the
meaning given that term under section 122( j) 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) Secondary transmission.--The term ``secondary
transmission'' has the meaning given such term in
section 119(d) of title 17, United States Code.
(6) Subscriber.--The term ``subscriber'' has the
meaning given that term under section 122( j) of title
17, United States Code.
(7) 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.]
(1) Carriage permitted.--
(A) Analog signals.--
(i) In general.--Subject to section
119 of title 17, United States Code, a
satellite carrier may provide the
analog signals of no more than 2
network stations in a single day for
each television network to any
household not located within the local
markets of those network stations.
(ii) Additional service.--To the
extent consistent with sections 119 and
122 of title 17, United States Code, a
satellite carrier may also provide
service under the statutory license of
those sections to the local market
within which such household is located
in addition to the signals provided
under clause (i).
(B) Digital signals.--To the extent
consistent with section 119 of title 17, United
States Code, a satellite carrier may provide
the digital signals of no more than 2 network
stations in a single day for each television
network to any household not located within the
local markets of those network stations.
Nothing in this subparagraph creates a
statutory license under section 119(a) or (b)
of title 17, United States Code.
(2) 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.
(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 of Distant Analog
Signals.--
(1) Signal standard for satellite carrier purposes.--
For the purposes of identifying an unserved household
under section 119(d)(10) of title 17, United States
Code, within 1 year after the date of the enactment of
the Satellite Home Viewer Improvement Act of 1999, the
Commission shall conclude an inquiry to evaluate all
possible standards and factors for determining
eligibility for retransmissions of the signals of
network stations, and, if appropriate--
(A) recommend modifications to the Grade B
intensity standard for analog signals set forth
in section 73.683(a) of its regulations (47 CFR
73.683(a)), or recommend alternative standards
or factors for purposes of determining such
eligibility; and
(B) make a further recommendation relating to
an appropriate standard for digital signals.
(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.
(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.
(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, 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 one year after the date of enactment of
the Satellite Home Viewer Extension and Rural
Consumer Access to Digital Television 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--
(i) to whom the retransmission of the
signals of local broadcast stations is
available under section 122 of title
17, United States Code, from such
carrier; or
(ii) for whom the predictive model
required by paragraph (3) predicts a
signal intensity that exceeds the
signal intensity standard in effect
under section 119(d)(11)(A) of such
title by such number of decibels as the
Commission specifies in such rule.
(E) Exception.--Notwithstanding any provision
of this Act, this section does not prohibit a
subscriber who is predicted to receive a signal
that meets or exceeds such signal intensity
standard from conducting a signal strength test
at the subscriber's own expense for the purpose
of determining their eligibility for distant
signals under this section.
(5) Definition.--Notwithstanding subsection [(d)(4),]
(e)(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) Eligibility for Retransmission of Distant Digital
Signals.--
(1) In general.--For purposes of identifying an
unserved digital household under section 119(d)(10) of
title 17, United States Code, within 2 years after the
date of enactment of the Satellite Home Viewer
Extension and Rural Consumer Access to Digital
Television Act of 2004, the Commission shall conclude a
proceeding--
(A) to determine the appropriate signal
standard for determining eligibility for
retransmissions of the digital signals of
network stations;
(B) to develop and prescribe by rule a point-
to-point predictive model for reliably and
presumptively determining the ability of
individual locations to receive digital signals
in accordance with the signal standard
determined under subparagraph (A), and in
prescribing that model, the Commission shall--
(i) ensure that it takes into account
terrain, building structures, and other
land cover variations;
(ii) establish procedures for the
continued refinement in the application
of the model by the use of additional
data as it becomes available; and
(iii) provide that any network
station that would be expected to serve
a household but is not serving that
household due to noneconomic
circumstances beyond its control will
be deemed to be serving such a
household; and
(C) to establish appropriate waiver and
objective verification procedures, similar to
the procedures under paragraphs (2) and (4) of
subsection (c), to apply to unserved digital
household determinations made pursuant to the
model.
(2) Preservation of existing eligibility.--Until the
Commission completes the proceeding required by
paragraph (1), an unserved household for purposes of
section 119(d)(10) of title 17, United States Code,
with respect to the digital signals of a particular
network, is a household that is eligible to receive
retransmission of analog signals pursuant to subsection
(c) of this section and section 119(a) of title 17,
United States Code.
(3) Local-to-local market requirement.--For purposes
of applying the rule prescribed by the Commission under
paragraph (1) only, a satellite carrier may not
retransmit the digital signals of a network station in
any local market in which it does not provide secondary
transmission to subscribers located within that local
market of the analog signals of television broadcast
stations located within that local market under section
338(a)(1) of this Act.
(4) Notices.--
(A) By carrier to customers to whom digital
signal will be provided.--A satellite carrier
providing a distant digital signal pursuant to
this section shall notify its customers in a
clear and conspicuous manner before offering
the distant digital signal that it will cease
providing that digital signal within 120 days
after the date on which it is notified that the
household ceases to be an unserved household
with respect to digital signals.
(B) By network station to satellite
carrier.--Within not more than 48 hours after
filing with the Commission any license
application that will result in any household
ceasing to be an unserved digital household, a
network station shall notify all satellite
carriers of the filing.
(C) By satellite carriers to network
stations.--
(i) Response to station notice.--
Within 60 days after receiving
notification under subparagraph (B)
from a network station, a satellite
carrier shall transmit a list
identifying (by name and street
address, including county and zip code)
all subscribers to which the satellite
carrier provides a distant digital
signal in the local market of the
network station whose service will be
terminated under paragraph (5).
(ii) Completion of commission
proceeding.--Within 120 days after the
Commission completes the proceeding
required by paragraph (1), each
satellite carrier shall transmit a
comprehensive list to the network
stations that, as a result of the
proceeding, are providing a digital
signal to the satellite carrier's
subscribers, containing the information
required by clause (i).
(D) List used only for compliance.--It is
unlawful for any person to use a list provided
under this paragraph, or information derived
from such a list, for any purpose other than
compliance with the requirements of this
section.
(5) Termination of carriage to households that lose
unserved status.--Within 120 days after the date on
which a satellite carrier receives notice under
paragraph (4)(B), it shall cease providing the distant
digital signal to subscribers in households, determined
on the basis of the notice, that will cease to be
unserved households with respect to digital signals.
Within 120 days after the date on which the Commission
completes the proceeding required by paragraph (1) (or
on such date as the Commission in that proceeding may
otherwise specify), a satellite carrier shall cease
providing distant digital signals to households
required as a result of the Commission's action.
(6) Enforcement.--
(A) In general.--Compliance with this section
shall be enforced under titles IV and V of this
Act.
(B) Special rule for satellite carrier list
requirement.--If a satellite carrier fails to
provide a complete list of subscribers in
accordance with the requirements of paragraph
(4)(C)(i), then each household with respect to
which such failure occurs shall constitute a
separate violation.
(C) Special rule for terminations.--If a
satellite carrier providing a distant digital
signal pursuant to this section fails to comply
with the requirements of paragraph (5), then--
(i) each household with respect to
which the satellite carrier fails to
comply shall be considered to be a
separate violation for purposes of
section 503(b) of this Act; and
(ii) each day of a continuing
violation shall be considered to be a
separate violation.
(7) Application of section 338.--Nothing in this
subsection affects the obligations of a satellite
carrier under section 338(a) of this Act.
[(d)] (e) 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. CARRIAGE OF TELEVISION SIGNALS TO CERTAIN SUBSCRIBERS.
(a) In General.--A multichannel video programming distributor
may elect to retransmit, to subscribers in an eligible county--
(1) any television broadcast stations that are
located in the State in which the county is located and
that any multichannel video programming distributor was
retransmitting to subscribers in the county on January
1, 2004; or
(2) up to 2 television broadcast stations located in
the State in which the county is located, if the number
of television broadcast stations that the multichannel
video programming distributor is authorized to carry
under paragraph (1) is less than 3.
(b) Deemed Significantly Viewed.--Any station described in
subsection (a) is deemed to be significantly viewed in the
eligible county within the meaning of section 76.54 of the
Commission's regulations (47 C.F.R. 76.54).
(c) Definition of Eligible County.--For purposes of this
subsection, the term ``eligible county'' means any 1 of 4
counties that--
(1) are in a single State;
(2) on January 1, 2004, were in local markets
principally comprised of counties in another State; and
(3) had a combined total of 41,340 television
households according to the U.S. Television Household
Estimates by Nielsen Media Research for 2003-2004.
(d) Limitation.--Carriage of a station under this section
shall be at the option of the multichannel video programming
distributor.
* * * * * * *
TITLE VI--CABLE COMMUNICATIONS
PART IV. MISCELLANEOUS PROVISIONS
SEC. 631. PROTECTION OF SUBSCRIBER PRIVACY.
[47 U.S.C. 551]
(a)(1) At the time of entering into an agreement to provide
any cable service or other service to a subscriber and at least
once a year thereafter, a cable operator 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 cable operator;
(D) the times and place at which the subscriber may
have access to such information in accordance with
subsection (d); and
(E) the limitations provided by this section with
respect to the collection and disclosure of information
by a cable operator and the right of the subscriber
under subsections (f) and (h) to enforce such
limitations.
In the case of subscribers who have entered into such an
agreement before the effective date of this section, such
notice shall be provided within 180 days of such date and at
least once a year thereafter.
(2) For purposes of this section, other than subsection (h)--
(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 cable operator that are used in the
provision of cable service; and
(C) the term ``cable operator'' includes, in addition
to persons within the definition of cable operator in
section 602, any person who (i) is owned or controlled
by, or under common ownership or control with, a cable
operator, and (ii) provides any wire or radio
communications service.
(b)(1) Except as provided in paragraph (2), a cable operator
shall not use the cable system to collect personally
identifiable information concerning any subscriber without the
prior written or electronic consent of the subscriber
concerned.
(2) A cable operator may use the cable system to collect such
information in order to--
(A) obtain information necessary to render a cable
service or other service provided by the cable operator
to the subscriber; or
(B) detect unauthorized reception of cable
communications.
(c)(1) Except as provided in paragraph (2), a cable operator
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 cable
operator.
(2) A cable operator may disclose such information if the
disclosure is--
(A) necessary to render, or conduct a legitimate
business activity related to, a cable service or other
service provided by the cable operator to the
subscriber;
(B) subject to subsection (h), 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;
(C) a disclosure of the names and addresses of
subscribers to any cable service or other service, if--
(i) the cable operator has provided the
subscriber the opportunity to prohibit or limit
such disclosure, and
(ii) the disclosure does not reveal, directly
or indirectly, the--
(I) extent of any viewing or other
use by the subscriber of a cable
service or other service provided by
the cable operator, or
(II) the nature of any transaction
made by the subscriber over the cable
system of the cable operator; or
(D) to a government entity as authorized under
chapters 119, 121, or 206 of title 18, United States
Code, except that such disclosure shall not include
records revealing cable subscriber selection of video
programming from a cable operator.
(d) A cable subscriber shall be provided access to all
personally identifiable information regarding that subscriber
which is collected and maintained by a cable operator. Such
information shall be made available to the subscriber at
reasonable times and at a convenient place designated by such
cable operator. A cable subscriber shall be provided reasonable
opportunity to correct any error in such information.
(e) A cable operator 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
subsection (d) or pursuant to a court order.
(f)(1) Any person aggrieved by any act of a cable operator in
violation of this section may bring a civil action in a United
States district court.
(2) 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.
(3) The remedy provided by this section shall be in addition
to any other lawful remedy available to a cable subscriber.
(g) Nothing in this title shall be construed to prohibit any
State or any franchising authority from enacting or enforcing
laws consistent with this section for the protection of
subscriber privacy.
(h) Except as provided in subsection (c)(2)(D), a
governmental entity may obtain personally identifiable
information concerning a cable subscriber pursuant to a court
order only if, in the court proceeding relevant to such court
order--
(1) 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
(2) the subject of the information is afforded the
opportunity to appear and contest such entity's claim.
(i) Application to DBS Providers.--
(1) In general.--The provisions of this section shall
apply to satellite carriers in the same way and to the
same extent as they apply to cable operators.
(2) Special rule.--For the purpose of applying the
last sentence of subsection (a)(1) to a satellite
carrier, the phrase ``the date of enactment of the
Satellite Home Viewer Extension and Rural Consumer
Access to Digital Television Act of 2004,'' shall be
substituted for the phrase ``the effective date of this
section,''.
(3) Satellite carrier.--In this subsection, the term
``satellite carrier'' means any person using the
facilities of a satellite or satellite service licensed
by the Federal Communications Commission and operating
in the Fixed-Satellite Service, or the Direct Broadcast
Satellite Service, under part 25 of title 47 of the
Code of Federal Regulations to establish and operate a
channel of communications for distribution of signals,
and owning or leasing a capacity or service on a
satellite in order to provide such distribution.