1.This Act may be cited as the Satellite Home Viewer Update and Reauthorization Act of 2009
.
2.Except as otherwise provided, whenever in this Act an amendment is made to a section or other provision, the reference shall be considered to be made to such section or provision of title 17, United States Code.
3.Modifications to statutory license for satellite carriers
(a)
(1)The heading of section 119 is amended by striking superstations and network stations for private home viewing
and inserting distant television programming by satellite
.
(2)The table of contents for chapter I is amended by striking the item relating to section 119 and inserting the following:
119. Limitations on exclusive rights: Secondary transmissions of distant television programming by satellite. .
(b)Unserved household definedSection 119(d)(10) is amended—
(1)by striking subparagraph (A) and inserting the following:
(A)cannot receive, through the use of a conventional, stationary, outdoor rooftop receiving antenna, an over-the-air signal containing the primary video or qualified multicast video of a primary network station located in that household’s local market and affiliated with that network of—
(i)if the signal originates as an analog signal, Grade B intensity as defined by the Federal Communications Commission under section 73.683(a) of title 47, Code of Federal Regulations, as in effect on January 1, 1999; or
(ii)if the signal originates as a digital signal, intensity defined in the values for digital television noise-limited service contour, as defined in regulations issued by the Federal Communications Commission under section 73.622(e) of title 47, Code of Federal Regulations, as such regulations may be amended from time to time; ;
(2)in subparagraph (B)—
(A)by striking subsection (a)(14)
and inserting subsection (a)(13),
; and
(B)by striking Satellite Home Viewer Extension and Reauthorization Act of 2004
and inserting Satellite Home Viewer Update and Reauthorization Act of 2009
;
(3)in subparagraph (D)—
(A)by striking (a)(12)
and inserting (a)(11)
; and
(B)by striking or
;
(4)in subparagraph (E), by striking the period at the end and inserting ; or
; and
(5)by adding at the end the following new subparagraph:
(F)is a subscriber who was lawfully receiving, by reason of subparagraph (A) of this paragraph, as in effect on the day before the date of the enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009, secondary transmissions of the primary transmission of a network station affiliated with that network. .
(c)Section 119(b)(1) is amended—
(1)in subparagraph (A), by striking and
after the semicolon at the end;
(2)in subparagraph (B), by striking the period and inserting ; and
; and
(3)by adding at the end the following:
(C)a filing fee, as determined by the Register of Copyrights pursuant to section 708(a). .
(d)Emergency monitoring, planning, or respondingSection 119(a) is amended by adding at the end the following:
(17)Retransmission for emergency preparation, response, or recovery
(A)The secondary transmission by a satellite carrier of a performance or display of a work embodied in a primary transmission of a television broadcast station is not an infringement of copyright if such secondary transmission is made—
(i)to a Federal governmental body designated by the Secretary of Homeland Security or an organization established with the purpose of carrying out a system of national and international relief efforts and chartered under section 300101 of title 36;
(ii)to officers or employees of such body or such organization as a part of the official duties or employment of such officers or employees;
(iii)at the request of the Secretary of Homeland Security; and
(iv)for the sole purpose of preparing for, responding to, or recovering from an emergency described under subparagraph (B).
(B)An emergency is described under this subparagraph if the Secretary of Homeland Security identifies such emergency as a major disaster, a catastrophe, an act of terrorism, or a transportation security incident.
(C)Not later than 6 months after the date of the enactment of this paragraph, the Secretary of Homeland Security shall issue regulations to protect copyright owners by preventing the unauthorized access to the secondary transmissions described in subparagraph (A).
(D)Reports to congressional committeesNot later than one year after the date of the enactment of this paragraph and by September 30 of each year thereafter, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate describing—
(i)the manner in which the authority granted under subparagraph (A) is being used; and
(ii)any additional legislative recommendations the Secretary may have.
(E)As used in this paragraph:
(i)The term terrorism has the meaning given that term in section 2(16) of the Homeland Security Act of 2002 (6 U.S.C. 101(16)).
(ii)Transportation security incidentThe term transportation security incident has the meaning given that term in section 70101 of title 46.
(F)This paragraph shall take effect with respect to a secondary transmission described under subparagraph (A) that is made after the end of the 30-day period beginning on the effective date of the regulations issued by the Secretary of Homeland Security under subparagraph (C). .
(e)License provided for certain networks of noncommercial educational broadcast stationsSection 119(a)(2)(C) is amended by adding at the end the following new clause:
(vi)Networks of noncommercial educational broadcast stationsIn the case of a system of three or more noncommercial educational broadcast stations licensed by a single State, public agency, or political, educational, or special purpose subdivision of a State, the statutory license provided for in subparagraph (A) shall apply to the secondary transmission of the primary transmission of such system to any subscriber in any county within such State, if such subscriber is located in a designated market area that is not otherwise eligible to receive the secondary transmission of the primary transmission of such system pursuant to section 122(a). .
(f)Deposit of statements and fees; verification proceduresSection 119(b) is amended—
(1)by amending the subsection heading to read as follows: (b) Deposit of statements and fees; verification procedures.—
;
(2)by redesignating paragraphs (2), (3), and (4) as paragraphs (3), (4), and (5), respectively;
(3)by inserting after paragraph (1) the following:
(2)Verification of accounts and fee paymentsThe Register of Copyrights shall issue regulations to permit interested parties to verify and audit the statements of account and royalty fees submitted by satellite carriers under this subsection. ;
(4)in paragraph (3), as redesignated, by striking paragraph (4)
and inserting paragraph (5)
;
(5)in paragraph (4), as redesignated—
(A)by striking paragraph (2)
and inserting paragraph (3)
; and
(B)by striking paragraph (4)
each place it appears and inserting paragraph (5)
; and
(6)in paragraph (5), as redesignated, by striking paragraph (2)
and inserting paragraph (3)
.
(g)Adjustment of royalty feesSection 119(c) is amended as follows:
(1)Paragraph (1) is amended—
(A)in the heading for such paragraph, by striking analog
;
(B)in subparagraph (A)—
(i)by striking primary analog transmissions
and inserting primary transmissions
; and
(ii)by striking July 1, 2004
and inserting July 1, 2009
;
(C)in subparagraph (B)—
(i)by striking January 2, 2005, the Librarian of Congress
and inserting January 4, 2010, the Copyright Royalty Judges
;
(ii)by striking primary analog transmission
and inserting primary transmissions
; and
(iii)by adding at the end the following: A separate fee shall be established for each stream of a multicast transmission included in the secondary transmission to the subscriber.
;
(D)in subparagraph (C), by striking Librarian of Congress
and inserting Copyright Royalty Judges
;
(E)in subparagraph (D)—
(i)in clause (i)—
(I)by striking (i) Voluntary agreements
and inserting the following:
(i)Voluntary agreements; filingVoluntary agreements ; and
(II)by striking that a parties
and inserting that are parties
; and
(ii)in clause (ii)—
(I)by striking (ii)(I) Within
and inserting the following:
(ii)Procedure for adoption of fees
(I)Within ;
(II)in subclause (I), by striking an arbitration proceeding pursuant to subparagraph (E)
and inserting a proceeding under subparagraph (F)
;
(III)in subclause (II), by striking (II) Upon receiving a request under subclause (I), the Librarian of Congress
and inserting the following:
(II)Upon receiving a request under subclause (I), the Copyright Royalty Judges ; and
(IV)in subclause (III)—
- (aa)by striking
(III) The Librarian
and inserting the following:
(III)The Copyright Royalty Judges ;
- (bb)by striking
an arbitration proceeding
and inserting the proceeding under subparagraph (F)
; and
- (cc)by striking
the arbitration proceeding
and inserting that proceeding
;
(F)in subparagraph (E)—
(i)by striking Copyright Office
and inserting Copyright Royalty Judges
; and
(ii)by striking December 31, 2009
and inserting December 31, 2014
; and
(G)in subparagraph (F)—
(i)in the heading, by striking compulsory arbitration
and inserting Copyright Royalty Judges proceeding
;
(ii)in clause (i)—
(I)in the heading, by striking proceedings
and inserting the proceeding
;
(II)in the matter preceding subclause (I)—
- (aa)by striking
May 1, 2005, the Librarian of Congress
and inserting May 3, 2010, the Copyright Royalty Judges
;
- (bb)by striking
arbitration proceedings
and inserting a proceeding
;
- (cc)by striking
fee to be paid
and inserting fees to be paid
;
- (dd)by striking
primary analog transmission
and inserting the primary transmissions
; and
- (ee)by striking
distributors
and inserting distributors—
;
(III)in subclause (II)—
- (aa)by striking
Librarian of Congress
and inserting Copyright Royalty Judges
; and
- (bb)by striking
arbitration
; and
(IV)by amending the last sentence to read as follows: Such proceeding shall be conducted under chapter 8.
;
(iii)in clause (ii), by amending the matter preceding subclause (I) to read as follows:
(ii)Establishment of royalty feesIn determining royalty fees under this subparagraph, the Copyright Royalty Judges shall establish fees for the secondary transmissions of the primary transmissions of network stations and non-network stations that most clearly represent the fair market value of secondary transmissions, except that the Copyright Royalty Judges shall adjust royalty fees to account for the obligations of the parties under any applicable voluntary agreement filed with the Copyright Royalty Judges in accordance with subparagraph (D). In determining the fair market value, the Judges shall base their decision on economic, competitive, and programming information presented by the parties, including— ;
(iv)by amending clause (iii) to read as follows:
(iii)Effective date for decision of copyright royalty judgesThe obligation to pay the royalty fees established under a determination that is made by the Copyright Royalty Judges in a proceeding under this paragraph shall be effective as of January 1, 2010. ; and
(v)in clause (iv)—
(I)in the heading, by striking fee
and inserting fees
; and
(II)by striking fee
and inserting fees
.
(2)Paragraph (2) is amended to read as follows:
(2)Annual royalty fee adjustmentEffective January 1 of each year, the royalty fee payable under subsection (b)(1)(B) for the secondary transmission of the primary transmissions of network stations and non-network stations shall be adjusted by the Copyright Royalty Judges to reflect any changes occurring in the cost of living as determined by the most recent Consumer Price Index (for all consumers and for all items) published by the Secretary of Labor before December 1 of the preceding year. Notification of the adjusted fees shall be published in the Federal Register at least 25 days before January 1. .
(h)
(1)Section 119(d)(8) is amended to read as follows:
(8)The term subscriber means a person or entity that 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. .
(2)Low power television stationSection 119(d)(12) is amended by striking low power television as
and inserting low power TV station as
.
(3)Section 119(d)(11) is amended to read as follows:
(11)The term local market has the meaning given such term under section 122(j). .
(4)Noncommercial educational broadcast stationSection 119(d) is amended—
(A)in paragraph (2)(B), by striking (as defined in section 397 of the Communications Act of 1934)
; and
(B)by adding at the end the following:
(14)Noncommercial educational broadcast stationThe term noncommercial educational broadcast station means a television broadcast station that—
(A)under the rules and regulations of the Federal Communications Commission in effect on November 2, 1978, is eligible to be licensed by the Federal Communications Commission as a noncommercial educational television broadcast station and is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or
(B)is owned and operated by a municipality and transmits only noncommercial programs for education purposes. .
(5)Section 119(d) is amended by adding at the end the following:
(15)A multicast transmission
is a transmission by a television station that contains more than one channel or digital stream, each containing its own distinct programming. .
(6)Qualified multicast videoSection 119(d), as amended by paragraph (5), is further amended by adding at the end the following new paragraph:
(16)Qualified multicast videoA qualified multicast video
is a video stream other than the primary video that, with respect to a particular satellite carrier either—
(A)was carried by that satellite carrier on July 1, 2009, and remains affiliated with the same network; or
(B)exists on January 1, 2013, and remains affiliated with the same network. .
(7)Section 119(d), as amended by paragraph (6), is further amended by adding at the end the following new paragraph:
(17)The term primary video means the single programming stream and associated data that received the highest aggregate viewership ratings of all programming streams offered by that station as of the date of enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009, offered by a television broadcast station. .
(8)Section 119(d) is amended in paragraphs (1),(2), and (5) by striking which
each place it appears and inserting that
.
(i)Superstation redesignated as non-network stationSection 119 is amended—
(1)by striking superstation
each place it appears in a heading and each place it appears in text and inserting non-network station
; and
(2)by striking superstations
each place it appears in a heading and each place it appears in text and inserting non-network stations
.
(j)Low power television stationsSection 119(a)(15) is amended to read as follows:
(15)Secondary transmissions of low power television programming
(A)Notwithstanding paragraph (2)(B), and subject to subparagraphs (B) through (D) of this paragraph, the statutory license provided for in paragraph (1) shall apply to the secondary transmission by a satellite carrier of the primary transmission of the programming of a non-network station that is licensed as a low power television station, to a subscriber who resides within the same designated market area as the station that originates the programming signal.
(B)No applicability to repeaters and translatorsSecondary transmissions provided for in subparagraph (A) shall not apply to any low power television station that retransmits the programs and signals of another television station for more than 2 hours each day.
(C)A satellite carrier whose secondary transmission of the primary transmission of the programming of a low power television station is subject to statutory licensing under this section shall be subject to royalty payments under subsection (b)(1)(B) for any transmission to a subscriber outside of the local market of the low power television station.
(D)Limitation to subscribers taking local-into-local serviceSecondary transmissions provided for in subparagraph (A) may be made by a satellite carrier only to subscribers who receive secondary transmissions of primary transmissions from that satellite carrier pursuant to the statutory license under section 122. .
(k)Removal of significantly viewed provision
(1)Section 119(a) is amended by striking paragraph (3) and redesignating paragraphs (4) through (17) as paragraphs (3) through (16), respectively.
(2)Section 119 is amended—
(A)in subsection (a)—
(i)in paragraph (1), by striking (5), (6), and (8)
and inserting (4), (5), and (7)
;
(ii)in paragraph (2)—
(I)in subparagraph (A), by striking paragraphs (5), (6), (7), and (8)
and inserting paragraphs (4), (5), (6), and (7)
;
(II)in subparagraph (B)(i), by striking the second sentence; and
(III)in subparagraph (D), by striking clauses (i) and (ii) and inserting the following:
(i)A satellite carrier that makes secondary transmissions of a primary transmission made by a network station pursuant to subparagraph (A) shall, not later than 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 address, including street or rural route number, city, State, and 9-digit zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission to subscribers in unserved households.
(ii)After the submission of the initial lists under clause (i), the satellite carrier shall, not later than the 15th of each month, submit to the network a list identifying (by name and address, including street or rural route number, city, State, and 9-digit zip code) any persons who have been added or dropped as subscribers under clause (i) since the last submission under clause (i). ; and
(iii)in paragraph (3)(E) (as redesignated)—
(I)by striking under paragraph (3) or
; and
(II)by striking paragraph (12)
and inserting paragraph (11)
; and
(B)in subsection (b)(1), by striking the final sentence.
(l)Modifications to provisions for secondary transmissions by satellite carriers
(1)Section 119(a)(2)(B)(ii) is amended by adding at the end the following:
(III)Accurate predictive model with respect to digital signalsNotwithstanding subclause (I), in determining presumptively whether a person resides in an unserved household under subsection (d)(10)(A) with respect to digital signals, a court shall rely on a predictive model set forth by the Federal Communications Commission pursuant to a rulemaking as provided in section 339(c)(3) of the Communications Act of 1934 (47 U.S.C. 339(c)(3)), as that model may be amended by the Commission over time under such section to increase the accuracy of that model. Until such time as the Commission sets forth such model, a court shall rely on the predictive model endorsed by the Commission in FCC 05–199, released December 9, 2005. .
(2)Modifications to statutory license where retransmissions into local market availableSection 119(a)(3) (as redesignated) is amended—
(A)by striking analog
each place it appears in a heading and text; and
(B)by amending subparagraph (B) to read as follows:
(B)Rules for other subscribersThe 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 person who—
(i)is not a subscriber lawfully receiving such secondary transmission as of the date of the enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009; or
(ii)at the time such person seeks to subscribe to receive such secondary transmission, resides in a local market where the satellite carrier makes available to that person the secondary transmission of the primary transmission of a local network station affiliated with the same television network pursuant to the statutory license under section 122, and such secondary transmission of such primary transmission can reach such person. ;
(C)by striking subparagraphs (C) and (D);
(D)by redesignating subparagraphs (E), (F), and (G) as subparagraphs (C), (D), and (E), respectively;
(E)in subparagraph (D) (as redesignated), by striking (C) or (D)
and inserting (B)
; and
(F)in subparagraph (E) (as redesignated), by inserting 9-digit
before zip code
.
(3)Statutory damages for territorial restrictionsSection 119(a)(6) (as redesignated) is amended—
(A)by striking $5
and inserting $250
; and
(B)by striking $250,000
each place it appears and inserting $2,500,000
.
(4)Section 119(a)(2)(B)(iii)(II) is amended by striking In this clause
and inserting In this clause,
.
(m)Section 119(e) is amended by striking 2009
and inserting 2014
.
(n)Section 119 is amended—
(1)by striking of the Code of Federal Regulations
each place it appears and inserting , Code of Federal Regulations
; and
(2)in subsection (d)(6), by striking or the Direct
and inserting , or the Direct
.
4.Modifications to statutory license for satellite carriers in local markets
(a)
(1)The heading of section 122 is amended by striking by satellite carriers within local markets
and inserting of local television programming by satellite
.
(2)The table of contents for chapter I is amended by striking the item relating to section 122 and inserting the following:
122. Limitations on exclusive rights: Secondary transmissions of local television programming by satellite. .
(b)Section 122(a) is amended to read as follows:
(a)Secondary transmissions into local markets
(1)Secondary transmissions of television broadcast stations within a local marketA 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—
(A)the secondary transmission is made by a satellite carrier to the public;
(B)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
(C)the satellite carrier makes a direct or indirect charge for the secondary transmission to—
(i)each subscriber receiving the secondary transmission; or
(ii)a distributor that has contracted with the satellite carrier for direct or indirect delivery of the secondary transmission to the public.
(2)Significantly viewed stations
(A)The statutory license under paragraph (1) shall apply to the secondary transmission of the primary transmission of a network station or a non-network station to a subscriber who resides outside the station's local market but within a community in which the signal has been determined by the Federal Communications Commission to be significantly viewed in such community, pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect on April 15, 1976, applicable to determining with respect to a cable system whether signals are significantly viewed in a community.
(B)Subparagraph (A) shall apply only to secondary transmissions of the primary transmissions of network stations or non-network stations to subscribers who receive secondary transmissions from a satellite carrier pursuant to the statutory license under paragraph (1).
(C)A subscriber who is denied the secondary transmission of the primary transmission of a network station or a non-network station under subparagraph (B) may request a waiver from such denial by submitting a request, through the subscriber’s satellite carrier, to the network station or non-network station in the local market affiliated with the same network or non-network where the subscriber is located. The network station or non-network station shall accept or reject the subscriber’s request for a waiver within 30 days after receipt of the request. If the network station or non-network station fails to accept or reject the subscriber’s request for a waiver within that 30-day period, that network station or non-network station shall be deemed to agree to the waiver request.
(3)Secondary transmission of low power programming
(A)Subject to subparagraphs (B) through (D) of this paragraph, the statutory license provided under paragraph (1) shall apply to the secondary transmission by a satellite carrier of the primary transmission of a network station or a non-network station that is licensed as a low power television station, to a subscriber who resides within the same local market as the station that originates the transmission.
(B)No applicability to repeaters and translatorsSecondary transmissions by a satellite carrier provided for in subparagraph (A) shall not apply to any low power television station that retransmits the programs and signals of another television station for more than 2 hours each day.
(C)Limitation to subscribers taking local-into-local serviceSecondary transmissions by a satellite carrier provided for in subparagraph (A) may be made only to subscribers who receive secondary transmissions of primary transmissions from that satellite carrier pursuant to the statutory license in paragraph (1), and only in conformity with the requirements under section 340(b) of the Communications Act of 1934, as in effect on the date of the enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009.
(D)No impact on other secondary transmissions obligationsA satellite carrier that makes secondary transmissions of a primary transmission of a low power television station under a statutory license provided under this section is not required, by reason of such secondary transmissions, to make any other secondary transmissions. .
(c)Section 122(b) is amended—
(1)in paragraph (1), by striking station a list
and all that follows through the end and inserting the following:
station—
(A)a list identifying (by name in alphabetical order and street address, including county and 9-digit zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission under subsection (a); and
(B)a separate list, aggregated by designated market area (by name and address, including street or rural route number, city, State, and 9-digit zip code), which shall indicate those subscribers being served pursuant to subsection (a)(2), relating to significantly viewed stations. ; and
(2)in paragraph (2), by striking network a list
and all that follows through the end and inserting the following:
network—
(A)a list identifying (by name in alphabetical order and street address, including county and 9-digit zip code) any subscribers who have been added or dropped as subscribers since the last submission under this subsection; and
(B)a separate list, aggregated by designated market area (by name and street address, including street or rural route number, city, State, and 9-digit zip code), identifying those subscribers whose service pursuant to subsection (a)(2), relating to significantly viewed stations, has been added or dropped since the last submission under this subsection. .
(d) Violations for territorial restrictions
(1)Modification to statutory damagesSection 122(f) is amended—
(A)in paragraph (1)(B), by striking $5
and inserting $250
; and
(B)in paragraph (2), by striking $250,000
each place it appears and inserting $2,500,000
.
(2)Conforming amendment for significantly viewed stationsSection 122 is amended—
(A)in subsection (f), by striking section 119 or
each place it appears and inserting the following: section 119, subject to statutory licensing by reason of subsection (a)(2)(A), or subject to
; and
(B)in subsection (g), by striking section 119 or
and inserting the following: section 119, subsection (a)(2)(A), or
.
(e)Section 122(j) is amended—
(1)in paragraph (1), by striking which contracts
and inserting that contracts
;
(2)by amending paragraph (2)(A) to read as follows:
(A)The term local market means—
(i)in the case of a television broadcast station that is not a low power television station, the designated market area in which such 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, any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station; and
(ii)in the case of a low power television broadcast station, the area that is both—
(I)within the designated market area in which such station is located; and
(II)within the area within 35 miles of the transmitter site of such station, except that in the case of such a station located in a standard metropolitan statistical area that has 1 of the 50 largest populations of all standard metropolitan statistical areas (based on the 1980 decennial census of population taken by the Secretary of Commerce), the area within 20 miles of the transmitter site of such station. ;
(3)in paragraph (3)—
(A)in the heading of such paragraph, by inserting non-network station;
after Network station;
; and
(B)by inserting non-network station
,
after network station
,
;
(4)by amending paragraph (4) to read as follows:
(4)The term subscriber means a person or entity that 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. ; and
(5)by adding at the end the following:
(6)Low power television stationThe term “low power television station” means a low power TV station as defined under section 74.701(f) of title 47, Code of Federal Regulations, as in effect on June 1, 2004. For purposes of this paragraph, the term “low power television station” includes a low power television station that has been accorded primary status as a Class A television licensee under section 73.6001(a) of title 47, Code of Federal Regulations. .
5.Modifications to cable system secondary transmission rights under section 111
(a)
(1)The heading of section 111 is amended by inserting at the end the following: of television programming by cable
.
(2)The table of contents for chapter I is amended by striking the item relating to section 111 and inserting the following:
111. Limitations on exclusive rights: Secondary transmissions of television programming by cable. .
(b)National emergency monitoring exemptionSection 111 is amended—
(1)in subsection (a)—
(A)in paragraph (4), by striking ; or
and inserting or section 122;
;
(B)in paragraph (5), by striking the period and inserting ; or
; and
(C)by adding at the end the following new paragraph:
(6)the secondary transmission is made by a cable system for emergency preparation, response, or recovery as described under subsection (g). ; and
(2)by adding at the end the following new subsection:
(g)Retransmission for emergency preparation, response, or recovery
(1)For purposes of subsection (a)(6), a secondary transmission by a cable system of a performance or display of a work embodied in a primary transmission by a television broadcast station is made for emergency preparation, response, or recovery if such transmission is made—
(A)by a cable system to a Federal governmental body designated by the Secretary of Homeland Security or an organization established with the purpose of carrying out a system of national and international relief efforts and chartered under section 300101 of title 36;
(B)to officers or employees of such body or such organization as a part of the official duties or employment of such officers or employees;
(C)at the request of the Secretary of Homeland Security; and
(D)for the sole purpose of preparing for, responding to, or recovering from an emergency described under paragraph (2).
(2)An emergency is described under this paragraph if the Secretary of Homeland Security identifies such emergency as a major disaster, a catastrophe, an act of terrorism, or a transportation security incident.
(3)Not later than 6 months after the date of the enactment of this subsection, the Secretary of Homeland Security shall issue regulations to protect copyright owners by preventing the unauthorized access to the secondary transmissions described in paragraph (1).
(4)Reports to congressional committeesNot later than one year after the date of the enactment of this subsection and by September 30 of each year thereafter, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate describing—
(A)the manner in which the authority granted under paragraph (1) is being used; and
(B)any additional legislative recommendations the Secretary may have.
(5)As used in this subsection:
(A)The term terrorism has the meaning given that term in section 2(16) of the Homeland Security Act of 2002 (6 U.S.C. 101(16)).
(B)Transportation security incidentThe term transportation security incident has the meaning given that term in section 70101 of title 46.
(6)This subsection shall take effect with respect to a secondary transmission described under paragraph (1) that is made after the end of the 30-day period beginning on the effective date of the regulations issued by the Secretary of Homeland Security under paragraph (3). .
(c)Statutory license for secondary transmissions by cable systemsSection 111(d) is amended—
(1)in paragraph (1)—
(A)in the matter preceding subparagraph (A)—
(i)by striking A cable system whose secondary
and inserting the following: Statement of account and royalty fees.—A cable system whose secondary
; and
(ii)by striking by regulation—
and inserting by regulation the following:
;
(B)in subparagraph (A)—
(i)by striking a statement of account
and inserting A statement of account
; and
(ii)by striking ;and
and inserting a period; and
(C)by striking subparagraphs (B), (C), and (D), and inserting the following:
(B)A total royalty fee for the period covered by the statement, computed on the basis of specified percentages of the gross receipts from subscribers to the cable service during such period for the basic service of providing secondary transmissions of primary broadcast transmitters, as follows:
(i)1.064 percent for the privilege of further transmitting, beyond the local service area of such primary transmitter, any non-network programming of a primary transmitter in whole or in part, such amount to be applied against the fee, if any, payable pursuant to clauses (ii) through (iv);
(ii)1.064 percent of such gross receipts for the first distant signal equivalent;
(iii)0.701 percent of such gross receipts for each of the second, third, and fourth distant signal equivalents; and
(iv)0.330 percent of such gross receipts for the fifth distant signal equivalent and each distant signal equivalent thereafter.
(C)In computing amounts under clauses (ii) through (iv) of subparagraph (B)—
(i)any fraction of a distant signal equivalent shall be computed at its fractional value;
(ii)in the case of any cable system located partly within and partly outside of the local service area of a primary transmitter, gross receipts shall be limited to those gross receipts derived from subscribers located outside of the local service area of such primary transmitter; and
(iii)if a cable system provides a secondary transmission of a primary transmitter to some but not all communities served by that cable system—
(I)the gross receipts and the distant signal equivalent values for such secondary transmission shall be derived solely on the basis of the subscribers in those communities where the cable system provides such secondary transmission; and
(II)the total royalty fee for the period paid by such system shall not be less than the royalty fee calculated under subparagraph (B)(i) multiplied by the gross receipts from all subscribers to the system.
(D)A cable system that, on a statement submitted before the date of the enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009, computed its royalty fee consistent with the methodology under this paragraph or that amends a statement filed before such date of enactment to compute the royalty fee due using such methodology shall not be subject to an action for infringement, or eligible for any royalty refund, arising out of its use of such methodology on such statement.
(E)If the actual gross receipts paid by subscribers to a cable system for the period covered by the statement for the basic service of providing secondary transmissions of primary broadcast transmitters total $263,800 or less—
(i)gross receipts of the cable system for the purpose of this paragraph shall be computed by subtracting from such actual gross receipts the amount by which $263,800 exceeds such actual gross receipts, except that in no case shall a cable system’s gross receipts be reduced to less than $10,400; and
(ii)the royalty fee payable under this paragraph shall be 0.5 percent, regardless of the number of distant signal equivalents, if any.
(F)If the actual gross receipts paid by subscribers to a cable system for the period covered by the statement for the basic service of providing secondary transmissions of primary broadcast transmitters are more than $263,800 but less than $527,600, the royalty fee payable under this paragraph shall be—
(i)0.5 percent of any gross receipts up to $263,800, regardless of the number of distant signal equivalents, if any; and
(ii)1 percent of any gross receipts in excess of $263,800, but less than $527,600, regardless of the number of distant signal equivalents, if any.
(G)A filing fee, as determined by the Register of Copyrights pursuant to section 708(a). ;
(2)in paragraph (2), by striking The Register of Copyrights
and inserting the following: Handling of fees.—The Register of Copyrights
;
(3)in paragraph (3)—
(A)by striking The royalty fees
and inserting the following: Distribution of royalty fees to copyright owners.—The royalty fees
;
(B)in subparagraph (A)—
(i)by striking any such
and inserting Any such
; and
(ii)by striking ; and
and inserting a period;
(C)in subparagraph (B)—
(i)by striking any such
and inserting Any such
; and
(ii)by striking ; and
and inserting a period; and
(D)in subparagraph (C), by striking any such
and inserting Any such
;
(4)in paragraph (4), by striking The royalty fees
and inserting the following: Procedures for royalty fee distribution.—The royalty fees
; and
(5)by adding at the end the following new paragraphs:
(5)Verification of accounts and fee paymentsThe Register of Copyrights shall issue regulations to provide for the confidential verification and audit of the information reported on the semi-annual statement of account filed after the date of the enactment of the Satellite Home Viewer Update and Reauthorization Act of 2009. The regulations shall provide for a single verification procedure, with respect to the semi-annual statements of account filed by a cable system, to be conducted by a qualified independent auditor on behalf of all copyright owners whose works were the subject of a secondary transmission to the public by a cable system of a performance or display of a work embodied in a primary transmission and for a mechanism to review and cure defects identified by any such audit.
(6)Acceptance of additional depositsAny royalty fee payments received by the Copyright Office from cable systems for the secondary transmission of primary transmissions that are in addition to the payments calculated and deposited in accordance with this subsection shall be deemed to have been deposited for the particular accounting period during which they are received and shall be distributed as specified under this subsection. .
(d)Section 111(f) is amended—
(1)in the first undesignated paragraph, by striking A primary transmission
is a transmission
and inserting the following:
(1)A primary transmission
is a transmission, including a multicast transmission, ;
(2)in the second undesignated paragraph—
(A)by striking A secondary transmission
and inserting the following:
(2)A secondary transmission
; and
(B)by striking cable system
and inserting cable system
;
(3)in the third undesignated paragraph—
(A)by striking A cable system
and inserting the following:
(3)A cable system
; and
(B)by striking Territory, Trust Territory, or Possession
and inserting territory, trust territory, or possession of the United States
;
(4)in the fourth undesignated paragraph—
(A)in the first sentence, by striking The local service area of a primary transmitter
and inserting the following:
(4)Local service area of a primary transmitterThe local service area of a primary transmitter
;
(B)by striking 76.59 of title 47 of the Code of Federal Regulations
and inserting the following: 76.59 of title 47, Code of Federal Regulations, or within the noise-limited contour as defined in 73.622(e)(1) of title 47, Code of Federal Regulations
; and
(C)by striking as defined by the rules and regulations of the Federal Communications Commission,
;
(5)by amending the fifth undesignated paragraph to read as follows:
(5)Distant signal equivalent
(A)Except as provided under subparagraph (B), a distant signal equivalent
—
(i)is the value assigned to the secondary transmission of any non-network television programming carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programming; and
(ii)is computed by assigning a value of one to each channel or digital steam carrying independent television programming, and a value of one-quarter to each channel or digital stream carrying network television programming or noncommercial educational television programming transmitted by a television broadcast station pursuant to the rules, regulations, and authorizations of the Federal Communications Commission.
(B)The values for independent, network, and noncommercial educational programming specified in subparagraph (A) are subject to the following:
(i)Where the rules and regulations of the Federal Communications Commission require a cable system to omit the further transmission of a particular program and such rules and regulations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, or where such rules and regulations in effect on the date of enactment of the Copyright Act of 1976 permit a cable system, at its election, to effect such omission and substitution of a nonlive program or to carry additional programs not transmitted by primary transmitters within whose local service area the cable system is located, no value shall be assigned for the substituted or additional program.
(ii)Where the rules, regulations, or authorizations of the Federal Communications Commission in effect on the date of enactment of the Copyright Act of 1976 permit a cable system, at its election, to omit the further transmission of a particular program and such rules, regulations, or authorizations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, the value assigned for the substituted or additional program shall be, in the case of a live program, the value of one full distant signal equivalent multiplied by a fraction that has as its numerator the number of days in the year in which such substitution occurs and as its denominator the number of days in the year.
(iii)In the case of a channel or digital stream carried pursuant to the late-night or specialty programming rules of the Federal Communications Commission, or a channel or digital stream carried on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals that it is authorized to carry, the values for independent, network, and noncommercial educational programming set forth in subparagraph (A), as the case may be, shall be multiplied by a fraction that is equal to the ratio of the broadcast hours of such channel or digital stream carried by the cable system to the total broadcast hours of the channel or digital stream. ;
(6)in the sixth undesignated paragraph—
(A)by striking A network station
and inserting the following:
(6)
(A)A network station
; and
(B)by adding at the end the following:
(B)The term network television programming means programming that is transmitted by a network station. ;
(7)by striking the seventh undesignated paragraph and inserting the following:
(7)
(A)An independent station
is a commercial television broadcast station other than a network station.
(B)The term independent television programming means all programming other than network television programming
or noncommercial educational television programming
. ;
(8)by striking the eighth undesignated paragraph and inserting the following:
(8)Noncommercial educational station
(A)A noncommercial educational station
is a television or radio broadcast station that—
(i)under the rules and regulations of the Federal Communications Commission in effect on November 2, 1978, is eligible to be licensed by the Federal Communications Commission as a noncommercial educational radio or television broadcast station and that is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or
(ii)is owned and operated by a municipality and that transmits only noncommercial programs for education purposes.
(B)Noncommercial educational programmingThe term noncommercial educational television programming means programming that is transmitted by a noncommercial educational station. ; and
(9)by adding at the end the following:
(9)A multicast transmission
is a transmission by a television station that contains more than one channel or digital stream, each containing its own distinct programming.
(10)The term subscriber means a person or entity that receives a secondary transmission service from a cable system and pays a fee for the service, directly or indirectly, to the cable system. .
(e)Timing of section 111 proceedingsSection 804(b)(1) is amended by striking 2005
each place it appears and inserting 2015
.
(f)Technical and conforming amendments
(1)Corrections to fix level designationsSection 111 is amended—
(A)in subsections (a), (c), and (e), by striking clause
each place it appears and inserting paragraph
;
(B)in subsection (c), by striking clauses
and inserting paragraphs
; and
(C)in subsection (e)(1)(F), by striking subclause
each place it appears and inserting subparagraph
.
(2)Conforming amendment to hyphenate nonnetworkSection 111 is amended by striking nonnetwork
each place it appears and inserting non-network
.
(3)Previously undesignated paragraphSection 111(e)(1) is amended by striking second paragraph of subsection (f)
and inserting subsection (f)(2)
.
(4)Removal of superfluous andsSection 111(e) is amended—
(A)in paragraph (1)(A), by striking and
at the end;
(B)in paragraph (1)(B), by striking and
at the end;
(C)in paragraph (1)(C), by striking and
at the end;
(D)in paragraph (1)(D), by striking and
at the end; and
(E)in paragraph (2)(A), by striking and
at the end;
(5)Removal of variant forms referencesSection 111 is amended—
(A)in subsection (e)(4), by striking , and each of its variant forms,
; and
(B)in subsection (f), by striking and their variant forms
.
(6)Correction to territory referenceSection 111(e)(2) is amended in the matter preceding subparagraph (A) by striking three territories
and inserting five entities
.
6.Certain waivers granted to providers of local-into-local service for all DMAsSection 119 is amended by adding at the end the following new subsection:
(g)Certain waivers granted to providers of Local-Into-Local service to all DMAs
(1)A court that issued an injunction pursuant to subsection (a)(7)(B) before the date of the enactment of this subsection shall waive such injunction if the court recognizes the entity against which the injunction was issued as a qualified carrier.
(2)
(A)Upon a request made by a satellite carrier, a court that issued an injunction against such carrier under subsection (a)(7)(B) before the date of the enactment of this subsection shall waive such injunction with respect to the statutory license provided under subsection (a)(2) to the extent necessary to allow such carrier to retransmit distant network signals to unserved households located in short markets in which such carrier was not providing local service pursuant to the license under section 122 as of December 31, 2009.
(B)Expiration of temporary waiverA temporary waiver of an injunction under subparagraph (A) shall expire after the end of the 120-day period beginning on the date such temporary waiver is made unless extended for good cause by the court making the temporary waiver.
(C)Failure to make good faith effort to provide local-into-local service to all DMAs
(i)If the court making a temporary waiver under subparagraph (A) determines that the satellite carrier that made the request for such waiver has failed to make a good faith effort to provide local-into-local service to all DMAs and determines that such failure was willful, such failure—
(I)is actionable as an act of infringement under section 501 and the court may in its discretion impose the remedies provided for in section 502 through 506 and subsection (a)(6)(B) of this section; and
(II)shall result in the termination of the waiver provided under subparagraph (A).
(ii)If the court making a temporary waiver under subparagraph (A) determines that the satellite carrier that made the request for such waiver has failed to make a good faith effort to provide local-into-local service to all DMAs and determines that such failure was nonwillful, the court may in its discretion impose financial penalties that reflect—
(I)the degree of control the carrier had over the circumstances that resulted in the failure;
(II)the quality of the carrier's efforts to remedy the failure; and
(III)the severity and duration of the service interruption.
(D)Single temporary waiver availableAn entity may only receive one temporary waiver under this paragraph.
(E)For purposes of this paragraph, the term short market means a local market in which programming of one or more of the four most widely viewed television networks nationwide as measured on the date of enactment of this subsection is not offered on the primary signal of any local television broadcast station.
(3)Establishment of qualified carrier recognition
(A)An entity seeking to be recognized as a qualified carrier under this subsection shall file a statement of eligibility with the court that imposed the injunction. A statement of eligibility must include—
(i)an affidavit that the entity is providing local-into-local service to all DMAs;
(ii)a request for a waiver of the injunction; and
(iii)a certification issued pursuant to section X of E&C Act.
(B)Grant of recognition as a qualified carrierUpon receipt of a statement of eligibility, the court shall recognize the entity as a qualified carrier and issue the waiver under paragraph (1).
(C)At any time, an entity recognized as a qualified carrier may file a statement of voluntary termination with the court certifying that it no longer wishes to be recognized as a qualified carrier. Upon receipt of such statement, the court shall reinstate the injunction waived under paragraph (1).
(D)Loss of recognition prevents future recognitionNo entity may be recognized as a qualified carrier if such entity had previously been recognized as a qualified carrier and subsequently lost such recognition or voluntarily terminated such recognition under subparagraph (C).
(4)Qualified carrier obligations and compliance
(A)An entity recognized as a qualified carrier shall continue to provide local-into-local service to all DMAs.
(B)Upon the motion of an aggrieved television broadcast station, the court recognizing an entity as a qualified carrier may make a determination of whether the entity is providing local-into-local service to all DMAs.
(C)In any motion brought under subparagraph (B), the party making such motion shall specify one or more designated market areas (as such term is defined in section 122(j)(2)(C)) for which the failure to provide service is being alleged, and, for each such designated market area, shall plead with particularity the circumstances of the alleged failure.
(D)In any proceeding to make a determination under subparagraph (B), and with respect to a designated market area for which failure to provide service is alleged, the entity recognized as a qualified carrier shall have the burden of proving that the entity provided local-into-local service with a good quality satellite signal to 90 percent of the households in such designated market area at the time and place alleged.
(5)Failure to provide service
(A)If the court recognizing an entity as a qualified carrier finds that such entity has willfully failed to provide local-into-local service to all DMAs, such finding shall result in the loss of recognition of the entity as a qualified carrier and the termination of the waiver provided under paragraph (1), and the court may, in its discretion—
(i)treat such failure as an act of infringement under section 501, and subject such infringement to the remedies provided for in sections 502 through 506 and subsection (a)(6)(B) of this section; and
(ii)impose a fine of no greater than $250,000.
(B)Exception for nonwillful violationIf the court determines that the failure to provide local-into-local service to all DMAs is nonwillful, the court may in its discretion impose financial penalties for noncompliance that reflect—
(i)the degree of control the entity had over the circumstances that resulted in the failure;
(ii)the quality of the entity's efforts to remedy the failure and restore service; and
(iii)the severity and duration of the service interruption.
(6)Penalties for violations of licenseA court that finds, under subsection (a)(6)(A), that an entity recognized as a qualified carrier has willfully made a secondary transmission of a primary transmission made by a network station and embodying a performance or display of a work to a subscriber who is not eligible to receive the transmission under this section shall reinstate the injunction waived under paragraph (1), and the court may order statutory damages of not to exceed $2,500,000.
(7)Local-into-local service to all DMAs definedFor purposes of this subsection:
(A)An entity provides local-into-local service to all DMAs
if the entity provides local service in all designated market areas (as such term is defined in section 122(j)(2)(C)) pursuant to the license under section 122.
(B)For purposes of subparagraph (A), an entity that makes available local-into-local service with a good quality satellite signal to 90 percent of the households in a designated market area based on the most recent census data shall be considered to be providing local service to such designated market area.
(C)Good quality satellite signal definedThe term good quality signal has the meaning given such term under section X of E&C Act. .
7.Section 119, as amended by this Act, shall cease to be effective on December 31, 2014.