[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4518 Reported in House (RH)]






                                                 Union Calendar No. 402
108th CONGRESS
  2d Session
                                H. R. 4518

                          [Report No. 108-660]

   To extend the statutory license for secondary transmissions under 
              section 119 of title 17, United States Code.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 4, 2004

     Mr. Smith of Texas (for himself, Mr. Conyers, and Mr. Berman) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

                           September 7, 2004

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on June 4, 
                                 2004]

_______________________________________________________________________

                                 A BILL


 
   To extend the statutory license for secondary transmissions under 
              section 119 of title 17, United States Code.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Satellite Home 
Viewer Extension and Reauthorization Act of 2004''.
    (b) Table of Contents.--

Sec. 1. Short title; table of contents.

           TITLE I--STATUTORY LICENSE FOR SATELLITE CARRIERS

Sec. 101. Extension of authority.
Sec. 102. Reporting of subscribers; significantly viewed and other 
                            signals; technical amendments.
Sec. 103. Statutory license for satellite carriers outside local 
                            markets.
Sec. 104. Waivers.
Sec. 105. Study.
Sec. 106. Effect on certain proceedings.
Sec. 107. Expedited consideration of voluntary agreements to provide 
                            satellite secondary transmissions to local 
                            markets.

           TITLE I--STATUTORY LICENSE FOR SATELLITE CARRIERS

SEC. 101. EXTENSION OF AUTHORITY.

    (a) In General.-- Section 4(a) of the Satellite Home Viewer Act of 
1994 (17 U.S.C. 119 note; Public Law 103-369; 108 Stat. 3481) is 
amended by striking ``December 31, 2004'' and inserting ``December 31, 
2009''.
    (b) Extension for Certain Subscribers.--Section 119(e) of title 17, 
United States Code, is amended by striking ``December 31, 2004'' and 
inserting ``December 31, 2009''.

SEC. 102. REPORTING OF SUBSCRIBERS; SIGNIFICANTLY VIEWED AND OTHER 
              SIGNALS; TECHNICAL AMENDMENTS.

    Section 119(a) of title 17, United States Code, is amended--
            (1) in paragraph (1)--
                    (A) in the paragraph heading, by striking ``and pbs 
                satellite feed'';
                    (B) in the first sentence, by striking ``(3), (4), 
                and (6)'' and inserting ``(5), (6), and (8)'';
                    (C) in the first sentence, by striking ``or by the 
                Public Broadcasting Service satellite feed''; and
                    (D) by striking the second sentence;
            (2) in paragraph (2)--
                    (A) in subparagraph (A), by striking ``(3), (4), 
                (5), and (6)'' and inserting ``(5), (6), (7), and 
                (8)''; and
                    (B) by striking subparagraph (C) and inserting the 
                following:
                    ``(C) Exceptions.--
                            ``(i) States with single full-power network 
                        station.--In a State in which there is licensed 
                        by the Federal Communications Commission a 
                        single full-power station that was a network 
                        station on January 1, 1995, the statutory 
                        license provided for in subparagraph (A) shall 
                        apply to the secondary transmission by a 
                        satellite carrier of the signal of that station 
                        to any subscriber in a community that is 
                        located within that State and that is not 
                        within the first 50 television markets as 
                        listed in the regulations of the Commission as 
                        in effect on such date (47 C.F.R. 76.51).
                            ``(ii) Certain additional stations.--The 
                        statutory license provided for in subparagraph 
                        (A) shall apply to the secondary transmission, 
                        by a satellite carrier to subscribers in no 
                        more than two counties in a State that are in 
                        local market principally comprised of counties 
                        in another State, of the signals of any network 
                        station located in the capital of the State in 
                        which such counties are located, if the total 
                        number of television households in the two 
                        counties combined did not exceed 10,000 for the 
                        year 2003 according to Nielsen Media Research.
                    ``(D) Submission of subscriber lists to networks.--
                            ``(i) Initial lists.--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--
                                    ``(I) 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 to subscribers in unserved 
                                households; and
                                    ``(II) a separate list, aggregated 
                                by designated market area (as defined 
                                in section 122(j)) (by name and street 
                                address, including county and zip 
                                code), which shall indicate those 
                                subscribers being served pursuant to 
                                subsection (a)(3), relating to 
                                significantly viewed stations.
                            ``(ii) Monthly lists.--After the submission 
                        of the initial lists under clause (i), on the 
15th of each month, the satellite carrier shall submit to the network--
                                    ``(I) a list identifying (by name 
                                and street address, including county 
                                and zip code) any persons who have been 
                                added or dropped as subscribers under 
                                clause (i)(I) since the last submission 
                                under clause (i); and
                                    ``(II) a separate list, aggregated 
                                by designated market area (by name and 
                                street address, including county and 
                                zip code), identifying those 
                                subscribers whose service pursuant to 
                                subsection (a)(3), relating to 
                                significantly viewed stations, has been 
                                added or dropped.
                            ``(iii) Use of subscriber information.--
                        Subscriber information submitted by a satellite 
                        carrier under this subparagraph may be used 
                        only for purposes of monitoring compliance by 
                        the satellite carrier with this subsection.
                            ``(iv) Applicability.--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) by striking paragraph (8);
            (4) by redesignating paragraphs (9) through (12) as 
        paragraphs (10) through (13), respectively;
            (5) by redesignating paragraphs (3) through (7) as 
        paragraphs (5) through (9), respectively;
            (6) by inserting after paragraph (2) the following:
            ``(3) Secondary transmissions of significantly viewed 
        signals.--
                    ``(A) In general.--Notwithstanding the provisions 
                of paragraph (2)(B), and subject to subparagraph (B) of 
                this paragraph, the statutory license provided for in 
                paragraphs (1) and (2) shall apply to the secondary 
                transmission of the signal of a network station or a 
                superstation to a subscriber who resides outside the 
                station's local market (as defined in section 122(j)) 
                but within a community in which the signal of that 
                station was determined by the Federal Communications 
                Commission, on or before the date of the enactment of 
                the Satellite Home Viewer Extension and Reauthorization 
                Act of 2004, to be significantly viewed in accordance 
                with the provisions of section 76.54 of title 47, Code 
                of Federal Regulations, as in effect on such date of 
                enactment.
                    ``(B) Limitation.--Subparagraph (A) shall apply 
                only to secondary transmissions of network stations and 
                superstations to subscribers who receive secondary 
                transmissions from a satellite carrier pursuant to the 
                statutory license under section 122.''; and
            (7) in paragraph (2)(B)(i), by adding at the end the 
        following new sentence: ``The limitation in this clause shall 
        not apply to secondary transmissions under paragraph (3).''.

SEC. 103. STATUTORY LICENSE FOR SATELLITE CARRIERS OUTSIDE LOCAL 
              MARKETS.

     Section 119 of title 17, United States Code, is amended as 
follows:
            (1) Subsection (a) is amended by inserting after paragraph 
        (3), as added by section 102 of this Act, the following:
            ``(4) Statutory license where retransmissions into local 
        market available.--
                    ``(A) Rules for subscribers under subsection (e).--
                            ``(i) For those receiving distant 
                        signals.--In the case of a subscriber of a 
                        satellite carrier who is eligible to receive 
                        the signal of a network station solely by 
                        reason of subsection (e) (in this subparagraph 
                        referred to as a `distant signal'), and who is 
                        receiving the distant signal of a network 
                        station on the date of the enactment of the 
                        Satellite Home Viewer Extension and 
                        Reauthorization Act of 2004, the following 
                        shall apply:
                                    ``(I) In a case in which the signal 
                                of a local network station affiliated 
                                with the same television network is 
                                made available by that satellite 
                                carrier to the subscriber pursuant to 
                                the statutory license under section 
                                122, the statutory license under 
                                paragraph (2) shall apply only to 
                                secondary transmissions by that 
                                satellite carrier to that subscriber of 
                                the distant signal of a station 
                                affiliated with the same television 
                                network--
                                            ``(aa) if, within 60 days 
                                        after receiving the notice of 
                                        the satellite carrier under 
                                        section 338(h) of the 
                                        Communications Act of 1934, the 
                                        subscriber elects to retain the 
                                        distant signal; but
                                            ``(bb) only until such time 
                                        as the subscriber elects to 
                                        receive such local signal.
                                    ``(II) Notwithstanding subclause 
                                (I), the statutory license under 
                                paragraph (2) shall not apply with 
                                respect to any subscriber who is 
                                eligible to receive the distant signal 
                                of a television network station solely 
                                by reason of subsection (e) and to whom 
                                subclause (I) applies unless the 
                                satellite carrier, within 60 days after 
                                the date of the enactment of the 
                                Satellite Home Viewer Extension and 
                                Reauthorization Act of 2004, submits to 
                                that television network a list, 
                                aggregated by designated market area 
                                (as defined in section 122(j)(2)(C)), 
                                that--
                                            ``(aa) identifies that 
                                        subscriber by name and address 
                                        (street or RFD number, city, 
                                        State, and zip code) and 
                                        specifies the distant signals 
                                        received by the subscriber; and
                                            ``(bb) states, to the best 
                                        of the satellite carrier's 
                                        knowledge and belief, after 
                                        having made diligent and good 
                                        faith inquiries, that the 
                                        subscriber is eligible under 
                                        subsection (e) to receive the 
                                        distant signals.
                            ``(ii) For those not receiving distant 
                        signals.--In the case of any subscriber of a 
                        satellite carrier who is eligible to receive 
                        the distant signal of a network station solely 
                        by reason of subsection (e) and who did not 
                        receive a distant signal of a station 
                        affiliated with the same network on July 1, 
                        2004, the statutory license under paragraph (2) 
                        shall not apply to secondary transmissions by 
that satellite carrier to that subscriber of that distant signal.
                    ``(B) Rules for other subscribers.--In the case of 
                a subscriber of a satellite carrier who is eligible to 
                receive the signal of a network station under the 
                statutory license under paragraph (2) (in this 
                subparagraph referred to as a `distant signal'), other 
                than subscribers to whom subparagraph (A) applies, the 
                following shall apply:
                            ``(i) In a case in which the signal of a 
                        local network station affiliated with the same 
                        television network is made available by that 
                        satellite carrier, on January 1, 2005, to the 
                        subscriber pursuant to the statutory license 
                        under section 122, the statutory license under 
                        paragraph (2) shall apply only to secondary 
                        transmissions by that satellite carrier to that 
                        subscriber of the distant signal of a station 
                        affiliated with the same television network if 
                        the subscriber's satellite carrier, within 60 
                        days after such date, submits to that 
                        television network a list, aggregated by 
                        designated market area (as defined in section 
                        122(j)(2)(C)), that identifies that subscriber 
                        by name and address (street or RFD number, 
                        city, State, and zip code) and specifies the 
                        distant signals received by the subscriber.
                            ``(ii) In a case in which the signal of a 
                        local network station affiliated with the same 
                        television network is not made available by 
                        that satellite carrier, on January 1, 2005, to 
                        a subscriber pursuant to the statutory license 
                        under section 122, the statutory license under 
                        paragraph (2) shall apply only to secondary 
                        transmissions by that satellite carrier of the 
                        distant signal of a station affiliated with the 
                        same network to any person--
                                    ``(I) who is a subscriber of that 
                                satellite carrier on such date, or
                                    ``(II) who becomes a subscriber of 
                                that satellite carrier after such date 
                                but before the local signal is 
                                available,
                        but only until such time as the subscriber 
                        elects to receive the local signal from that 
                        satellite carrier.
                    ``(C) Future applicability.--The statutory license 
                under paragraph (2) shall not apply to the secondary 
                transmission by a satellite carrier of a primary 
                transmission of a network station to a subscriber who--
                            ``(i) does not receive such secondary 
                        transmission as of the date of the enactment of 
                        the Satellite Home Viewer Extension and 
                        Reauthorization Act of 2004; and
                            ``(ii) resides in a local market where the 
                        satellite carrier makes available a network 
                        station affiliated with the same television 
                        network pursuant to the statutory license under 
                        section 122.
                    ``(D) Other provisions not affected.--This 
                paragraph shall not affect the applicability of the 
                statutory license to secondary transmissions under 
                paragraph (3) or to unserved households included under 
                paragraph (12).
                    ``(E) Available defined.--For purposes of this 
                paragraph, a local signal has been made available by a 
                satellite carrier to a subscriber or person if the 
                satellite carrier offers that local signal to other 
                subscribers who reside in the same zipcode as that 
                subscriber or person.''.
            (2) Subsection (b)(1) is amended by striking subparagraph 
        (B) and inserting the following:
                    ``(B) a royalty fee for that 6-month period, 
                computed by multiplying the total number of subscribers 
                receiving each secondary transmission of each 
                superstation or network station during each calendar 
                month by the appropriate rate in effect under this 
                section.''.
            (3) Subsection (b)(1) is further amended by adding at the 
        end the following flush sentence:
        ``Notwithstanding the provisions of subparagraph (B), a 
        satellite carrier whose secondary transmissions are subject to 
        statutory licensing under paragraph (1) or (2) of subsection 
        (a) shall have no royalty obligation for secondary 
        transmissions to a subscriber who resides outside the station's 
        local market (as defined in section 122(j)(2)) but within a 
        community in which the signal of that station was determined by 
        the Federal Communications Commission, on or before the date of 
        the enactment of the Satellite Home Viewer Extension and 
        Reauthorization Act of 2004, to be significantly viewed in 
        accordance with the provisions of section 76.54 of title 47, 
        Code of Federal Regulations, as in effect on such date of 
        enactment.''.
            (4) Subsection (c) is amended--
                    (A) by amending paragraph (1) to read as follows:
            ``(1) Applicability and determination of royalty fees.--The 
        appropriate rate for purposes of determining the royalty fee 
        under subsection (b)(1)(B) shall be the appropriate rate set 
        forth in part 258 of title 37, Code of Federal Regulations, as 
        in effect on the date of the enactment of the Satellite Home 
        Viewer Extension and Reauthorization Act of 2004, as modified 
        under this subsection.'';
                    (B) by striking paragraph (2);
                    (C) in paragraph (3)--
                            (i) by redesignating that paragraph as 
                        paragraph (2);
                            (ii) in subparagraph (A)--
                                    (I) by striking ``January 1, 
                                1997,'' and inserting ``January 1, 
                                2005,''; and
                                    (II) by striking ``who are not 
                                parties to a voluntary agreement filed 
                                with the Copyright Office in accordance 
                                with paragraph (2)'';
                            (iii) in subparagraph (C), by striking ``as 
                        provided'' and all that follows through 
                        ``later'' and inserting ``on January 1, 2006''; 
                        and
                            (iv) by striking subparagraph (D); and
                    (D) by striking paragraphs (4) and (5) and 
                inserting the following:
            ``(3) Cost of living adjustment.--The royalty rates set 
        forth in subsection (b)(1)(B), as adjusted under paragraph (2) 
        of this subsection, shall be adjusted by the Librarian of 
        Congress--
                    ``(A) on January 1, 2005, to reflect any changes 
                occurring during the period beginning on January 1, 
                2000, and ending on November 30, 2004, in the cost of 
                living as determined by the most recent Consumer Price 
                Index (for all consumers and items) published by the 
                Secretary of Labor during that period; and
                    ``(B) on January 1, 2007, and on January 1 of each 
                year thereafter, to reflect any changes occurring 
                during the preceding 12 months in the cost of living as 
                determined by the most recent Consumer Price Index so 
                published.
            ``(4) Reductions.--The rate of the royalty fee determined 
        under paragraph (2)--
                    ``(A) for superstations shall be reduced by 30 
                percent; and
                    ``(B) for network stations shall be reduced by 45 
                percent.''.
            (5) Subsection (d) is amended--
                    (A) by amending paragraph (9) to read as follows:
            ``(9) Superstation.--The term `superstation' means a 
        television broadcast station, other than a network station, 
        licensed by the Federal Communications Commission that is 
        secondarily transmitted by a satellite carrier.'';
                    (B) in paragraph (10)(D), by striking ``(a)(11)'' 
                and inserting ``(a)(12)''; and
                    (C) by striking paragraph (12).
            (6) Subsection (a)(7), as redesignated by section 102(5) of 
        this Act, is amended--
                    (A) in subparagraph (A), by striking ``who does not 
                reside in an unserved household'' and inserting ``who 
                is not eligible to receive the transmission under this 
                section'';
                    (B) in subparagraph (B), by striking ``who do not 
                reside in unserved households'' and inserting ``who are 
                not eligible to receive the transmission under this 
                section''; and
                    (C) in subparagraph (D), by striking ``is for 
                private home viewing to an unserved household'' and 
                inserting ``is to a subscriber who is eligible to 
                receive the transmission under this section''.

SEC. 104. WAIVERS.

    Section 119(a) of title 17, United States Code, is amended by 
adding at the end the following new paragraph:
            ``(14) Waivers.--A subscriber who is denied the secondary 
        transmission of a network station under paragraph (4)(C), or is 
        denied the secondary transmission of a network station or a 
        superstation under paragraph (3)(B), may request a waiver from 
        such denial by submitting a request, through the subscriber's 
        satellite carrier, to the network station or superstation in 
        the local market where the subscriber is located. The network 
        station or superstation shall accept or reject the subscriber's 
        request for a waiver within 30 days after receipt of the 
        request. If the network station or superstation fails to accept 
        or reject the subscriber's request for a waiver within that 30-
        day period, that network station or superstation, as the case 
        may be, shall be deemed to agree to the waiver request. Unless 
        specifically stated by the network station or superstation, a 
        waiver under section 339(c)(2) of the Communications Act shall 
        not constitute a waiver for purposes of this paragraph.''.

SEC. 105. STUDY.

     No later than June 30, 2008, the Register of Copyrights shall 
report to the Committee on the Judiciary of the House of 
Representatives and the Committee on the Judiciary of the Senate the 
Register's findings and recommendations on the operation and revision 
of the statutory licenses under sections 111, 119, and 122 of title 17, 
United States Code. The report should include, but not be limited to, 
the following:
            (1) A comparison of the royalties paid by licensees under 
        such sections, including historical rates of increases in these 
        royalties, a comparison between the royalties under each such 
        section and the prices paid in the marketplace for comparable 
        programming.
            (2) An analysis of the differences in the terms and 
        conditions of the licenses under such sections, an analysis of 
        whether these differences are required or justified by 
        historical, technological, or regulatory differences that 
        affect the satellite and cable industries, and an analysis of 
        whether either the cable or satellite industry is placed in a 
        competitive disadvantage due to these terms and conditions.
            (3) An analysis of whether the licenses under such sections 
        are still justified by the bases upon which they were 
        originally created.
            (4) An analysis of the correlation, if any, between the 
        royalties, or lack thereof, under such sections and the fees 
        charged to cable and satellite subscribers, addressing whether 
        cable and satellite companies have passed to subscribers any 
        savings realized as a result of the royalty structure and 
        amounts under such sections.

SEC. 106. EFFECT ON CERTAIN PROCEEDINGS.

    Nothing in this title shall modify any remedy imposed on a party 
that is required by the judgment of a court in any action that was 
brought before May 1, 2004, against that party for a violation of 
section 119 of title 17, United States Code.

SEC. 107. EXPEDITED CONSIDERATION OF VOLUNTARY AGREEMENTS TO PROVIDE 
              SATELLITE SECONDARY TRANSMISSIONS TO LOCAL MARKETS.

    Section 119 of title 17, United States Code, is amended by adding 
at the end the following:
    ``(f) Expedited Consideration by Justice Department of Voluntary 
Agreements To Provide Satellite Secondary Transmissions to Local 
Markets.--
            ``(1) In general.--In a case in which no satellite carrier 
        makes available, to subscribers located in a local market, as 
        defined in section 122(j)(2), the secondary transmission into 
        that market of a primary transmission of one or more television 
        broadcast stations licensed by the Federal Communications 
        Commission, and two or more satellite carriers request a 
        business review letter in accordance with section 50.6 of title 
        28, Code of Federal Regulations (as in effect on July 7, 2004), 
        in order to assess the legality under the antitrust laws of 
        proposed business conduct to make or carry out an agreement to 
        provide such secondary transmission into such local market, the 
        appropriate official of the Department of Justice shall respond 
        to the request no later than 90 days after the date on which 
        the request is received.
            ``(2) Definition.--For purposes of this subsection, the 
        term `antitrust laws'--
                    ``(A) has the meaning given that term in subsection 
                (a) of the first section of the Clayton Act (15 U.S.C. 
                12(a)), except that such term includes section 5 of the 
                Federal Trade Commission Act (15 U.S.C. 45) to the 
                extent such section 5 applies to unfair methods of 
                competition; and
                    ``(B) includes any State law similar to the laws 
                referred to in paragraph (1).''.




                                                 Union Calendar No. 402

108th CONGRESS

  2d Session

                               H. R. 4518

                          [Report No. 108-660]

_______________________________________________________________________

                                 A BILL

   To extend the statutory license for secondary transmissions under 
              section 119 of title 17, United States Code.

_______________________________________________________________________

                           September 7, 2004

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed