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Proposed Rule: Television broadcasting: Cable television systems— Satellite Home Viewer Extension and Reauthorization Act; Communications Act Section 340; implementation

Proposed Rule: Television broadcasting: Cable television systems— Satellite Home Viewer Extension and Reauthorization Act; Communications Act Section 340; implementation

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Published by Justia.com
Proposed Rule: Television broadcasting:
Cable television systems—
Satellite Home Viewer Extension and Reauthorization Act; Communications Act Section 340; implementation, 11313-11418 [05-3847] Federal Communications Commission
Proposed Rule: Television broadcasting:
Cable television systems—
Satellite Home Viewer Extension and Reauthorization Act; Communications Act Section 340; implementation, 11313-11418 [05-3847] Federal Communications Commission

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Tuesday,
March 8, 2005
Part II

Federal
Communications
Commission

47 CFR Part 76

Implementation of the Satellite Home
Viewer Extension and Reauthorization Act
of 2004; Implementation of Section 340
of the Communications Act; Notice of
Proposed Rulemaking; Proposed Rule

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11314
Federal Register/Vol. 70, No. 44/Tuesday, March 8, 2005/Proposed Rules
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 05\u201349; FCC 05\u201324]

Implementation of the Satellite Home
Viewer Extension and Reauthorization
Act of 2004; Implementation of Section
340 of the Communications Act; Notice
of Proposed Rulemaking

AGENCY:Federal Communications
Commission.
ACTION: Proposed rule.
SUMMARY:In this document, the

Commission proposes rules to
implement Section 202 of the Satellite
Home Viewer Extension and
Reauthorization Act of 2004
(\u2018\u2018SHVERA\u2019\u2019), which creates Section 340
of the Communications Act of 1934, as
amended (\u2018\u2018Act\u2019\u2019), and amends the
copyright laws in order to provide
satellite carriers with the authority to
offer Commission-determined
\u2018\u2018significantly-viewed\u2019\u2019 signals of out-of-
market broadcast stations to subscribers.
This document achieves the SHVERA\u2019s
statutory objectives to publish and
maintain a list of the stations and the
communities containing such stations
that are eligible for \u2018\u2018significantly
viewed\u2019\u2019 status; and commence a
rulemaking proceeding to implement
new Section 340.

DATES:Submit comments on or before

April 8, 2005; and reply comments must
be filed on or before April 29, 2005.
Written comments on the proposed
information collection requirements
contained in the document must be
submitted by the public, the Office of
Management and Budget (OMB), and
other interested parties on or before May
9, 2005.

ADDRESSES:All filings must be

addressed to the Commission\u2019s
Secretary, Office of the Secretary,
Federal Communications Commission,
445 12th Street, SW., Room TW\u2013A325,
Washington, DC 20554. See

SUPPLEMENTARY INFORMATIONfor filing
instructions.
FOR FURTHER INFORMATION CONTACT:For
additional information on this
proceeding, contact Evan Baranoff,
Evan.Baranoff@fcc.gov, or Eloise Gore,
Eloise.Gore@fcc.gov, of the Media

Bureau, Policy Division, (202) 418\u2013
2120. For additional information
concerning the Paperwork Reduction
Act information collection requirements
contained in this document, contact
Cathy Williams, Federal
Communications Commission, 445 12th
St, SW., Room 1\u2013C823, Washington, DC

20554, or via the Internet to
Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION:This is a

summary of the Federal
Communications Commission\u2019s Notice
of Proposed Rulemaking (\u2018\u2018NPRM\u2019\u2019) FCC
05\u201324, adopted on February 4, 2005,
and released on February 7, 2005. The
full text of this document is available for
public inspection and copying during
regular business hours in the FCC
Reference Center, Federal
Communications Commission, 445 12th
Street, SW., CY\u2013A257, Washington, DC
20554. These documents will also be
available via ECFS (http://www.fcc.gov/

cgb/ecfs/). (Documents will be available

electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text
may be purchased from the
Commission\u2019s copy contractor, 445 12th
Street, SW., Room CY\u2013B402,
Washington, DC 20554. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
tofcc504@fcc.gov or call the
Commission\u2019s Consumer and
Governmental Affairs Bureau at (202)
418\u20130530 (voice), (202) 418\u20130432
(TTY).

Initial Paperwork Reduction Act of
1995 Analysis

ThisNPRM has been analyzed with
respect to the Paperwork Reduction Act
of 1995 (\u2018\u2018PRA\u2019\u2019), Public Law. 104\u201313,
109 Stat 163 (1995), and contains
proposed information collection
requirements. It will be submitted to the
Office of Management and Budget
(OMB) for review under section 3507(d)
of the PRA. The Commission, as part of
its continuing effort to reduce
paperwork burdens, invites the general
public and the OMB to comment on the
proposed information collection
requirements contained in thisNPRM,
as required by the PRA. Written
comments on the PRA proposed
information collection requirements
must be submitted by the public, the
Office of Management and Budget
(OMB), and other interested parties on
or before May 9, 2005. Comments
should address: (a) Whether the
proposed collection of information is
necessary for the proper performance of
the functions of the Commission,
including whether the information shall
have practical utility; (b) the accuracy of
the Commission\u2019s burden estimates; (c)
ways to enhance the quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on the
respondents, including the use of
automated collection techniques or

other forms of information technology.
In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
(\u2018\u2018SBPRA\u2019\u2019), Public Law 107\u2013198, 116
Stat 729 (2002), see 44 U.S.C. 3506(c)(4),
comments should also address how the
Commission might \u2018\u2018further reduce the
information collection burden for small
business concerns with fewer than 25
employees.\u2019\u2019

The following existing information
collection requirements would be
modified if the proposed rules
contained in theNPRM are adopted.

OMB Control Number:3060\u20130311.
Title: 47 CFR 76.54, Significantly
Viewed Signals; Method to be Followed
for Special Showings.
Form Number: Not Applicable.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other for-
profit entities.
Number of Respondents:250.
Frequency of Response: On occasion
reporting requirement; Third party
disclosure requirement.
Estimated Time Per Response:1\u201315
hours (average).

Total Annual Burden: 4,610 hours.
Total Annual Costs:None.
Privacy Impact Assessment:No

impact(s).
Needs and Uses: 47 CFR 76.54(c) is

used to notify interested parties,
including licensees or permittees of
television broadcast stations, about
audience surveys that are being
conducted by an organization to
demonstrate that a particular broadcast
station is eligible for significantly
viewed status under the Commission\u2019s
rules. The notifications provide
interested parties with an opportunity to
review survey methodologies and file
objections. The proposed \u00a7 76.54(c)
retains the existing notification
requirement, but, if adopted, would
increase the potential number of parties
that would file such notifications. 47
CFR 76.54(e) and (f), if adopted, would
be used to notify television broadcast
stations about the retransmission of
significantly viewed signals by a
satellite carrier into these stations\u2019 local
market.

OMB Control Number:3060\u20130888.
Title: Part 76, Multichannel Video and

Cable Television Service; Pleading and Complaint Rules; 47 CFR 76.7 Petition Procedures.

Form Number: Not applicable.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other for-
profit entities.
Number of Respondents:500.
Frequency of Response: On occasion
reporting requirement; Third party
disclosure requirement.
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11315
Federal Register/Vol. 70, No. 44/Tuesday, March 8, 2005/Proposed Rules
Estimated Time Per Response:4\u201340
hours (average).

Total Annual Burden: 11,000 hours.
Total Annual Costs:$2,000,000.
Privacy Impact Assessment:No

impact(s).
Needs and Uses: 47 CFR 76.7 is used

to make determinations on petitions and
complaints filed with the Commission.
The proposed rule changes, if adopted,
would expand the potential number of
parties and situations that may require
the filing of\u00a7 76.7 petitions. Parties
(cable operators and broadcast stations)
are currently permitted to file\u00a7 76.7
petitions (with audience surveys) to
demonstrate significantly viewed status
under rule\u00a7 76.54. The proposed rule
changes, if adopted, would authorize
additional parties (satellite carriers) to
file such\u00a7 76.7 petitions to demonstrate
significantly viewed status under new
Section 340 of the Act. Moreover, the
proposed rule changes, if adopted,
would authorize parties to file\u00a7 76.7
petitions in order to file a complaint
under the Section 340 enforcement
provisions.

OMB Control Number:3060\u20130960.
Title: 47 CFR 76.122, Satellite

Network Non-duplication Protection
Rules; 47 CFR 76.123, Satellite
Syndicated Program Exclusivity Rules;
47 CFR 76.124, Requirements for
Invocation of Non-duplication and
Syndicated Exclusivity Protection; 47
CFR 76.127, Satellite Sports Blackout
Rules.

Form Number: Not Applicable.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other for-
profit entities.
Number of Respondents:1,428.
Estimated Time Per Response:0.5\u20131
hour (average).
Frequency of Response: On occasion
reporting requirement; Third party
disclosure requirement.

Total Annual Burden: 68,529 hours.
Total Annual Costs:None.
Privacy Impact Assessment:No

impact(s).
Needs and Uses: 47 CFR 76.122,

76.123, 76.124 and 76.127 are used to
protect exclusive contract rights
negotiated between broadcasters,
distributors, and rights holders for the
transmission of network, syndicated,
and sports programming in the
broadcasters\u2019 recognized market areas.
The proposed rule changes to\u00a7\u00a7 76.122
and 76.123, if adopted, would
implement statutory requirements to
provide new rights for in-market
stations to assert nonduplication and
exclusivity rights, potentially increasing
the number of filings pursuant to these
rules. No changes to\u00a7\u00a7 76.124 and
76.127 are proposed.

Summary of the Notice of Proposed
Rulemaking
I. Introduction

1. In this Notice of Proposed
Rulemaking (\u2018\u2018NPRM\u2019\u2019), the Commission
proposes rules to implement Section
202 of the Satellite Home Viewer
Extension and Reauthorization Act of
2004 (\u2018\u2018SHVERA\u2019\u2019), Pub. L. No. 108\u2013447,
sec. 202, 118 Stat 2809, 3393 (2004) (to
be codified at 47 U.S.C. 340). (The
SHVERA was enacted on December 8,
2004 as title IX of the\u2018\u2018Consolidated
Appropriations Act, 2005.\u2019\u2019 This
proceeding is one of a number of
Commission proceedings that will be
required to implement the SHVERA.
The other proceedings will follow
according to the timeframes set forth in
the SHVERA, to be undertaken and
largely completely in 2005;see Sections
202, 204, 205, 207, 208, 209 and 210 of
the SHVERA; see also public notice,

\u2018\u2018Media Bureau Seeks Comment For

Inquiry Required By the on Rules
Affecting Competition In the Television
Marketplace,\u2019\u2019 MB Docket No. 05\u201328,
DA 05\u2013169 (rel. Jan. 25, 2005).) Section
202 of the SHVERA creates Section 340
of the Communications Act of 1934, as
amended (\u2018\u2018Communications Act\u2019\u2019 or

\u2018\u2018Act\u2019\u2019), which provides satellite carriers

with the authority to offer Commission-
determined\u2018\u2018significantly viewed\u2019\u2019
signals of out-of-market (or\u2018\u2018distant\u2019\u2019)
broadcast stations to subscribers. The
SHVERA imposes strict statutory
deadlines, directing the Commission to
(1) publish and maintain a list of
stations eligible for\u2018\u2018significantly
viewed\u2019\u2019 status and the related
communities (as determined by the
Commission), and (2) commence a
rulemaking proceeding to implement
Section 340 of the Act, 47 U.S.C. 340,
both within 60 days, thus enabling
satellite carriage of such\u2018\u2018significantly
viewed\u2019\u2019 signals. The SHVERA was
enacted by Presidential signature on
December 8, 2004. The SHVERA also
requires that the Commission adopt
rules implementing Section 340 of the
Act, 47 U.S.C. 340, within one year of
the statute\u2019s enactment. Section 340(h)
of the Act, 47 U.S.C. 340(h), directs the
Commission to make specific revisions
to\u00a7 76.66 of our rules, 47 CFR 76.66,
with respect to carriage elections,
retransmission consent negotiations and
notifications to stations in local-into-
local markets no later than October 30,
2005. These revisions will be addressed
in a separate proceeding.)

2. With the SHVERA, Congress takes
another step toward\u2018\u2018moderniz[ing]
satellite television policy and
enhanc[ing] competition between
satellite and cable operators.\u2019\u2019 The

SHVERA adopts for satellite carriers and subscribers the concept of\u2018\u2018significantly viewed,\u2019\u2019 which has applied in the cable context for more than 30 years. In 1972, the Commission adopted the concept of

\u2018\u2018significantly viewed\u2019\u2019 signals to

differentiate between out-of-market
television stations\u2018\u2018that have sufficient
audience to be considered local and
those that do not.\u2019\u2019 The Commission
concluded at that time that it would not
be reasonable if choices on cable were
more limited than choices over the air,
and gave cable carriage rights to stations
in communities where they had
significant over-the-air non-cable
viewing. (At the time the Commission
adopted the significantly viewed rules,
the cable television carriage rules were
generally based on mileage zones from
the relevant stations. A television
station was generally considered\u2018\u2018local\u2019\u2019
for cable carriage purposes if the
relevant community served was within
35 miles of the station\u2019s city of license
or within its Grade B contour but not
within the 35 mile zone of another
market. Cable system carriage of
significantly viewed stations, however,
was based on audience viewership
levels in the relevant communities
rather than by strict mileage zones. This
afforded significantly viewed stations
carriage when they otherwise would
have been considered distant stations,
47 CFR 76.5(i), 47 CFR 76.5(i).) The
designation is salient because it has
enabled stations assigned to one market
to be treated as\u2018\u2018local\u2019\u2019 stations with
respect to a particular cable community
in another market.

3. The copyright provisions that apply
to cable systems have recognized the
Commission\u2019s designation of stations as

\u2018\u2018significantly viewed\u2019\u2019 and treated

them, for copyright purposes, as\u2018\u2018local,\u2019\u2019
and therefore subject to reduced
copyright payment obligations. The
copyright provisions governing satellite
carriers did not, however, provide a
statutory copyright license for
significantly viewed signals, and as a
consequence such signals are not, as a
practical matter, generally available for
carriage for satellite distribution outside
of their Designated Market Areas
(\u2018\u2018DMAs\u2019\u2019). Recognizing that the reach of
a station\u2019s over-the-air signal is not
constrained by the boundary of a DMA,
the SHVERA now will allow a satellite
carrier to treat an otherwise distant
signal as\u2018\u2018local\u2019\u2019 in a community where
such signal is\u2018\u2018significantly viewed\u2019\u2019 by
consumers in that community. (A DMA
generally identifies a television station\u2019s

\u2018\u2018local market.\u2019\u2019). In this way, the
statutory provisions governing satellite
carriage of broadcast stations move
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