IB Union Calendar No. 201 111th CONGRESS 1st Session H. R. 2994 [Report No. 111–349] IN THE HOUSE OF REPRESENTATIVES June 23, 2009 Mr. Boucher (for himself and Mr. Stearns) introduced the following bill; which was referred to the Committee on Energy and Commerce December 2, 2009 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 23, 2009 A BILL To reauthorize the Satellite Home Viewer Extension and Reauthorization Act of 2004, and for other purposes.

1.

Short title

This Act may be cited as the Satellite Home Viewer Reauthorization Act of 2009.

2.

Extension of authority

Section 325(b) of the Communications Act of 1934 (47 U.S.C. 325(b)) is amended— (1)in paragraph (2)(C), by striking December 31, 2009 and inserting December 31, 2014; and (2)in paragraph (3)(C), by striking January 1, 2010 each place it appears in clauses (ii) and (iii) and inserting January 1, 2015.

3.

Significantly viewed stations

(a)

In general

Paragraphs (1) and (2) of section 340(b) of such Act (47 U.S.C. 340(b)) are amended to read as follows: (1)

Service limited to subscribers taking local-into-local service

This section shall apply only to retransmissions to subscribers of a satellite carrier who receive retransmissions of a signal from that satellite carrier pursuant to section 338. (2)

Service Limitations

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

Rulemaking required

Within 180 days after the date of the enactment of this Act, the Federal Communications Commission shall take all actions necessary to promulgate a rule to implement the amendments made by subsection (a).

4.

Conforming amendments

(a)

Section 338

Section 338 of the Communications Act of 1934 (47 U.S.C. 338) is amended— (1)in subsection (a), by striking (3) Effective date.—No satellite and all that follows through until January 1, 2002.; and (2)by amending subsection (g) to read as follows: (g)

Carriage of Local Stations on a Single Reception Antenna

(1)

Single reception antenna

Each satellite carrier that retransmits the signals of local television broadcast stations in a local market shall retransmit such stations in such market so that a subscriber may receive such stations by means of a single reception antenna and associated equipment. (2)

Additional reception antenna

If the carrier retransmits the signals of local television broadcast stations in a local market in high definition format, the carrier shall retransmit such signals in such market so that a subscriber may receive such signals by means of a single reception antenna and associated equipment, but such antenna and associated equipment may be separate from the single reception antenna and associated equipment used to comply with paragraph (1). . (b)

Section 339

Section 339 of such Act (47 U.S.C. 339) is amended— (1)in subsection (a)— (A)in paragraph (1)(B), by striking Such two network stations and all that follows through more than two network stations.; and (B)in paragraph (2)— (i)in the heading for subparagraph (A), by striking to analog signals; (ii)in subparagraph (A)— (I)in the heading for clause (i), by striking analog; (II)in clause (i)— (aa)by striking analog each place it appears; and (bb)by striking October 1, 2004 and inserting October 1, 2009; (III)in the heading for clause (ii), by striking analog; and (IV)in clause (ii)— (aa)by striking analog each place it appears; and (bb)by striking 2004 and inserting 2009; (iii)by amending subparagraph (B) to read as follows: (B)

Rules for other subscribers

(i)

In general

In the case of a subscriber of a satellite carrier who is eligible to receive the signal of a network station under this section (in this clause 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 satellite carrier makes available to that subscriber, on January 1, 2005, the signal of a local network station affiliated with the same television network pursuant to section 338, the carrier may only provide the secondary transmissions of the distant signal of a station affiliated with the same network to that subscriber if the subscriber’s satellite carrier, not later than March 1, 2005, submits to that television network the list and statement required by subparagraph (F)(i). (II)In a case in which the satellite carrier does not make available to that subscriber, on January 1, 2005, the signal of a local network station pursuant to section 338, the carrier may only provide the secondary transmissions of the distant signal of a station affiliated with the same network to that subscriber if— (aa)that subscriber seeks to subscribe to such distant signal before the date on which such carrier commences to carry pursuant to section 338 the signals of stations from the local market of such local network station; and (bb)the satellite carrier, within 60 days after such date, submits to each television network the list and statement required by subparagraph (F)(ii). (ii)

Special circumstances

A subscriber of a satellite carrier who was lawfully receiving the distant signal of a network station on the day before the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009 may receive both such distant signal and the local signal of a network station affiliated with the same network until such subscriber chooses to no longer receive such distant signal from such carrier. ; (iv)in subparagraph (C)— (I)by striking analog; (II)in clause (i), by striking the Satellite Home Viewer Extension and Reauthorization Act of 2004 and inserting the Satellite Home Viewer Reauthorization Act of 2009; and (III)by amending clause (ii) to read as follows: (ii)either— (I)at the time such person seeks to subscribe to receive such secondary transmission, resides in a local market where the satellite carrier makes available to that person the signal of a local network station affiliated with the same television network pursuant to section 338, and the retransmission of such signal by such carrier can reach such subscriber; or (II)receives from the satellite carrier the signal of a network station affiliated with the same network that is broadcast by a local station in the market where the subscriber resides, but is not the local station’s primary video. ; (v)in subparagraph (D)— (I)by striking clauses (i), (iii) through (v), (vii) through (ix), and (xi); (II)by redesignating clause (vi) as clause (i) and transfering such clause to appear before clause (ii); (III)by amending such clause (i) (as so redesignated) to read as follows: (i)

Signal Testing

A subscriber shall be eligible to receive a distant signal of a distant network station affiliated with the same network under this section if such subscriber is determined, based on a test conducted in accordance with section 73.686(d) of title 47, Code of Federal Regulations, or any successor regulation, not to be able to receive a signal that exceeds the signal intensity standard in section 73.622(e)(1) of title 47, Code of Federal Regulations. ; (IV)in clause (ii)— (aa)by striking digital in the heading; (bb)by striking digital the first two places such term appears; (cc)by striking Satellite Home Viewer Extension and Reauthorization Act of 2004 and inserting Satellite Home Viewer Reauthorization Act of 2009; and (dd)by striking , whether or not such subscriber elects to subscribe to local digital signals; (V)by inserting after clause (ii) the following new clause: (iii)

Time-shifting prohibited

In a case in which the satellite carrier makes available to an eligible subscriber under this subparagraph the signal of a local network station pursuant to section 338, the carrier may only provide the distant signal of a station affiliated with the same network to that subscriber if, in the case of any local market in the 48 contiguous States of the United States, the distant signal is the secondary transmission of a station whose prime time network programming is generally broadcast simultaneously with, or later than, the prime time network programming of the affiliate of the same network in the local market. ; and (VI)by redesignating clause (x) as clause (iv); and (vi)in subparagraph (E), by striking distant analog signal or and all that follows through (B), or (D)) and inserting distant signal; (2)in subsection (c)— (A)by amending paragraph (3) to read as follows: (3)

Establishment of improved predictive model and on-location testing required

(A)

Predictive model

Within 180 days after the date of the enactment of the Satellite Home Viewer Reauthorization Act of 2009, the Commission shall take all actions necessary to develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining the ability of individual locations, through the use of a conventional, stationary, outdoor rooftop receiving antenna, to receive signals in accordance with the signal intensity standard in section 73.622(e)(1) of title 47, Code of Federal Regulations, including to account for the continuing operation of translator stations and low power television stations. In prescribing such model, the Commission shall rely on the Individual Location Longley-Rice model set forth by the Commission in CS Docket No. 98-201, as previously revised with respect to analog signals, and as recommended by the Commission with respect to digital signals in its Report to Congress in ET Docket No. 05-182, FCC 05-199 (released December 9, 2005). The Commission shall establish procedures for the continued refinement in the application of the model by the use of additional data as it becomes available. (B)

On-location testing

The Commission shall issue an order completing its rulemaking proceeding in ET Docket No. 06-94 within 180 days after the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009. (C)

Study of types of antennas available to receive digital signals

(i)

Study required

Not later than 1 year after the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009, the Commission shall complete a study regarding whether, for purposes of identifying if a household is unserved by an adequate digital signal under section 119(d)(10) of title 17, United States Code, the digital signal strength standard in section 73.622(e)(1) of title 47, Code of Federal Regulations, or the testing procedures in section 73.686 of title 47, Code of Federal Regulations, such statutes or regulations should be revised to take into account the types of antennas that are available to and used by consumers. (ii)

Study consideration

In conducting the study under clause (i), the Commission shall consider whether to account for the fact that an antenna can be mounted on a roof or placed in a home and can be fixed or capable of rotating. (iii)

Report

Not later than 1 year after the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009, the Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing— (I)the results of the study conducted under clause (i); and (II)recommendations, if any, regarding changes to be made to Federal statutes or regulations. ; (B)by amending paragraph (4)(A) to read as follows: (A)

In general

If a subscriber’s request for a waiver under paragraph (2) is rejected and the subscriber submits to the subscriber’s satellite carrier a request for a test verifying the subscriber’s inability to receive a signal of the signal intensity referenced in clause (i) of subsection (a)(2)(D), the satellite carrier and the network station or stations asserting that the retransmission is prohibited with respect to that subscriber shall select a qualified and independent person to conduct the test referenced in such clause. Such test shall be conducted within 30 days after the date the subscriber submits a request for the test. If the written findings and conclusions of a test conducted in accordance with such clause demonstrate that the subscriber does not receive a signal that meets or exceeds the requisite signal intensity standard in such clause, the subscriber shall not be denied the retransmission of a signal of a network station under section 119 of title 17, United States Code. ; (C)in paragraph (4)(B), by striking the signal intensity and all that follows through United States Code and inserting such requisite signal intensity standard; and (D)in paragraph (4)(E), by striking Grade B intensity. (c)

Section 340

Section 340(i) of such Act (47 U.S.C. 340(i)) is amended by striking paragraph (4).

5.

Application pending completion of rulemakings

(a)

In general

Between the date of enactment of this Act and the adoption of rules by the Federal Communications Commission pursuant to the amendments to the Communications Act of 1934 made by sections 3 and 4 of this Act, the Federal Communications Commission shall follow its rules and regulations promulgated pursuant to sections 338, 339, and 340 of the Communications Act of 1934 as in effect on the day before the date of enactment of this Act. (b)

Translator stations and low power television stations

Notwithstanding subsection (a), for purposes of determining whether a subscriber within the local market served by a translator station or a low power television station affiliated with a television network is eligible to receive distant signals under section 339 of such Act, the Federal Communications Commission shall follow its rules and regulations for determining such subscriber’s eligibility as in effect on the day before the date of enactment of this Act until the date on which the translator station or low power television station is licensed to broadcast a digital signal. (c)

Definitions

As used in this Act: (1)

Local market; low power television station; satellite carrier; subscriber; television broadcast station

The terms local market, low power television station, satellite carrier, subscriber, and television broadcast station have the meanings given such terms in section 338(k) of the Communications Act of 1934. (2)

Network station; television network

The terms network station and television network have the meanings given such terms in section 339(d) of such Act.

6.

Process for issuing qualified carrier certification

Part I of title III of the Communications Act of 1934 is amended by adding at the end the following new section:

342.

Process for issuing qualified carrier certification

(a)

Certification

The Commission shall issue a certification for the purposes of section 119(g)(3)(A)(iii) of title 17, United States Code, if the Commission determines that— (1)a satellite carrier is providing local service pursuant to the statutory license under section 122 of such title in each designated market area; and (2)with respect to each designated market area in which such satellite carrier was not providing such local service as of the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009— (A)the satellite carrier’s satellite beams are designed, and predicted by the satellite manufacturer’s pre-launch test data, to provide a good quality satellite signal to 90 percent of the households in each such designated market area based on the most recent census data released by the United States Census Bureau; and (B)there is no material evidence that there has been a satellite or sub-system failure subsequent to the satellite’s launch that precludes the ability of the satellite carrier to satisfy the requirements of subparagraph (A). (b)

Information required

Any entity seeking the certification provided for in subsection (a) shall submit to the Commission the following information: (1)An affidavit stating that, to the best of the affiant’s knowledge, the satellite carrier provides local service in all designated market areas pursuant to the statutory license provided for in section 122 of title 17, United States Code, and listing those designated market areas in which local service was provided as of the date of enactment of the Satellite Home Viewer Reauthorization Act of 2009. (2)For each designated market area not listed in paragraph (1): (A)Identification of each such designated market area and the location of its local receive facility. (B)Data showing the number of households, and maps showing the geographic distribution thereof, in each such designated market area based on the most recent census data released by the United States Census Bureau. (C)Maps, with superimposed effective isotropically radiated power predictions obtained in the satellite manufacturer’s pre-launch tests, showing that the contours of the carrier’s satellite beams as designed and the geographic area that the carrier’s satellite beams are designed to cover are predicted to provide a good quality satellite signal to 90 percent of the households in such designated market area based on the most recent census data released by the United States Census Bureau. (D)For any satellite relied upon for certification under this section, an affidavit stating that, to the best of the affiant’s knowledge, there have been no satellite or sub-system failures subsequent to the satellite’s launch that would degrade the design performance to such a degree that a satellite transponder used to provide local service to any such designated market area is precluded from delivering a good quality satellite signal to 90 percent of the households in such designated market area based on the most recent census data released by the United States Census Bureau. (E)Any additional engineering, designated market area, or other information the Commission considers necessary to determine whether the Commission shall grant a certification under this section. (c)

Certification Issuance

(1)

Public comment

The Commission shall provide 30 days for public comment on a request for certification under this section. (2)

Deadline for decision

The Commission shall grant or deny a request for certification within 90 days after the date on which such request is filed. (d)

Subsequent affirmation

An entity granted qualified carrier status pursuant to section 119(g) of title 17, United States Code, shall file an affidavit with the Commission 30 months after such status was granted stating that, to the best of the affiant’s knowledge, it is in compliance with the requirements for a qualified carrier. (e)

Definitions

For the purposes of this section: (1)

Designated Market Area

The term designated market area has the meaning given such term in section 122(j)(2)(C) of title 17, United States Code. (2)

Good quality satellite signal

(A)

In general

The term “good quality satellite signal” means— (i)a satellite signal whose power level as designed shall achieve reception and demodulation of the signal at an availability level of at least 99.7 percent using models of satellite antennas normally used by the satellite carrier’s subscribers and the same calculation methodology used by the satellite carrier to determine predicted signal availability in the top 100 designated market areas; and (ii)a video signal transmitted by satellite carrier such that, taking into account whether a signal is in standard definition format or high definition format, compression methodology, modulation, error correction, power level, and utilization of advances in technology that does not circumvent the intent of this section to provide for non-discriminatory treatment with respect to any comparable television broadcast station signal— (I)the satellite carrier treats all television broadcast station’s signals the same with respect to statistical multiplexer prioritization; and (II)the number of video signals in the relevant satellite transponder is not more than the then current greatest number of video signals carried on any equivalent transponder serving the top 100 designated market areas. (B)

Determination

For the purposes of subparagraph (A), the top 100 designated market areas shall be as determined by Nielsen Media Research and published in the Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication as of the date of a satellite carrier’s application for certification under this section.

.

7.

Savings clause regarding definitions

Nothing in this Act or the amendments made by this Act shall be construed to affect the definitions of program related and primary video in the Communications Act of 1934 or in any regulations promulgated pursuant to such Act by the Federal Communications Commission.

8.

Savings clause regarding use of non-compulsory licenses; Report

(a)

In general

Nothing in this Act, the Communications Act of 1934, or regulations promulgated by the Federal Communications Commission under this Act or the Communications Act of 1934 shall limit the ability of a satellite carrier to retransmit a performance or display of a work pursuant to an authorization granted by the copyright owner or, if within the scope of its authorization, its licensee. (b)

Report

Not later than 1 year after the date of enactment of this Act, the Federal Communications Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing an analysis of— (1)the number of households in a State that receive local broadcast stations from a station of license that is located in a different State; (2)the extent to which consumers have access to in-state broadcast programming; and (3)whether there are alternatives to the use of designated market areas, as defined in section 122 of title 17, United States Code, to define local markets that would provide more consumers with in-state broadcast programming.

9.

Nondiscrimination in Carriage of High Definition Digital Signals of Noncommercial Educational Television Stations

(a)

In general

Section 338(a) of the Communications Act of 1934 (47 U.S.C. 338(a)) is amended by adding at the end the following new paragraph: (5)

Nondiscrimination in Carriage of High Definition Signals of Noncommercial Educational Television Stations

(A)

Existing carriage of high definition signals

Each eligible satellite carrier providing, under section 122 of title 17, United States Code, any secondary transmissions in high definition to subscribers located within the local market of a television broadcast station of a primary transmission made by that station prior to the date of enactment of this paragraph shall carry the high-definition signals of qualified noncommercial educational television stations located within that local market in accordance with the following schedule: (i)By December 31, 2010, in at least 50 percent of the markets in which such satellite carrier provides such secondary transmissions in high definition. (ii)By December 31, 2011, in every market in which such satellite carrier provides such secondary transmissions in high definition. (B)

New Initiation of Service

Each eligible satellite carrier that initiates the provision, under section 122 of title 17, United States Code, of any secondary transmissions in high definition to subscribers located within the local market of a television broadcast station of a primary transmission made by that station after the date of enactment of this paragraph shall carry the high-definition signals of all qualified noncommercial educational television stations located within that local market. . (b)

Definitions

Section 338(k) of such Act (47 U.S.C. 338(k)) is amended— (1)by redesignating paragraphs (2) through (8) as paragraphs (3) through (9), respectively; (2)by inserting after paragraph (1) the following new paragraph: (2)

Eligible Satellite Carrier

The term eligible satellite carrier means any satellite carrier that is not a party to a carriage contract with a  qualified noncommercial educational television station, or its representative, that is in force and effect as of the date of enactment of this paragraph. ; (3)by redesignating paragraphs (6) through (9) (as previously redesignated) as paragraphs (7) through (10), respectively; and (4)by inserting after paragraph (5) (as so redesignated) the following new paragraph: (6)

Qualified Noncommercial Educational Television Station

The term ‘qualified noncommercial educational television station’ has the meaning given such term in section 615(l)(1) of this Act. .

December 2, 2009 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed