[Senate Hearing 108-1023]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 108-1023

 REAUTHORIZATION OF THE SATELLITE HOME VIEWERS IMPROVEMENT ACT OF 1999 
                                (SHVIA)

=======================================================================

                                HEARING

                               BEFORE THE

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 4, 2004

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation
                             
                             
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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South 
CONRAD BURNS, Montana                    Carolina, Ranking
TRENT LOTT, Mississippi              DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN D. ROCKEFELLER IV, West 
OLYMPIA J. SNOWE, Maine                  Virginia
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois        BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  RON WYDEN, Oregon
GEORGE ALLEN, Virginia               BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire        BILL NELSON, Florida
                                     MARIA CANTWELL, Washington
                                     FRANK R. LAUTENBERG, New Jersey
      Jeanne Bumpus, Republican Staff Director and General Counsel
             Robert W. Chamberlin, Republican Chief Counsel
      Kevin D. Kayes, Democratic Staff Director and Chief Counsel
                Gregg Elias, Democratic General Counsel
                            
                            
                            
                            
                          
                            
                            
                            
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 4, 2004......................................     1
Statement of Senator Burns.......................................     3
    Prepared statement...........................................     5
Statement of Senator Lautenberg..................................    54
    Prepared statement...........................................    54
Statement of Senator Lott........................................    56
    Prepared statement...........................................    60
Statement of Senator McCain......................................     1
    Letter dated April 28, 2004 to Hon. John McCain from 
      Congressman Raul M. Grijalva, Member of Congress, House of 
      Representatives............................................     2
Statement of Senator Sununu......................................     3

                               Witnesses

DeLeon, Araceli, Vice President and General Manager of Stations 
  KDRX-TV, Phoenix and KHRR-TV, Tucson, Arizona..................    44
    Prepared statement...........................................    45
Ergen, Charles, Chairman and Chief Executive Officer, EchoStar 
  Communications Corporation.....................................     6
    Prepared statement...........................................     7
Hartenstein, Eddy, Vice Chairman, The DIRECTV Group..............    40
    Prepared statement...........................................    42
Sohn, Gigi B., President, Public Knowledge.......................    48
    Prepared statement...........................................    50
Yager, Jim, Chief Executive Officer, Barrington Broadcasting 
  Company........................................................    13
    Prepared statement...........................................    14

                                Appendix

Letter dated August 19, 2003 to David R. Goodfriend, Director, 
  Legal and Business Affairs, EchoStar Satellite Corporation from 
  William J. Roberts, Jr., Senior Attorney, U.S. Copyright Office    69

 
 REAUTHORIZATION OF THE SATELLITE HOME VIEWERS IMPROVEMENT ACT OF 1999 
                                (SHVIA)

                              ----------                              


                          TUESDAY, MAY 4, 2004

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 a.m. in room 
SR-253, Russell Senate Office Building, Hon. John McCain, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    The Chairman. Good morning. Today, the Committee reexamines 
its previous work, the Satellite Home Viewers Improvement Act 
of 1999, commonly known as SHVIA. Portions of SHVIA are set to 
expire at the end of this year, and efforts to reauthorize this 
legislation have begun in both the House and the Senate.
    In 1999, Congress's goal in enacting SHVIA was to place 
satellite operators on equal footing with cable operators. 
Congress's attempt at achieving regulatory parity for these two 
providers of video subscription services has produced mixed 
results. Five years after the enactment of SHVIA, cable 
companies remain the dominant providers of subscription video 
services. According to the Federal Communications Commission, 
these companies have more than 75 percent of the market for 
delivering video programming, and continue to press forward 
each year with rate increases considerably above the rate of 
inflation.
    Unfortunately, the General Accounting Office has found that 
the presence of a satellite operator in a local market has no 
competitive effect on the rates a cable operator charges. A 
February USA Today article noted recent rate hikes aptly 
stated, ``So much for predictions Rupert Murdoch and News Corp. 
would start a cable-satellite-TV industry price war after 
taking over DIRECTV, the top U.S. satellite service.''
    There is good news, however; satellite operators are now 
offering more consumers the ability to receive their local 
broadcast stations. In 2000, approximately 19 percent of 
satellite subscribers were able to receive local signals. By 
the end of 2003, that number increased to 86 percent of the 
U.S. households. The General Accounting Office has found that 
DBS operators have 40 percent higher subscribership in markets 
where local broadcast stations are offered.
    In 1999, I voted against SHVIA, not only because it was 
included as part of an appropriations bill, but also because I 
did not feel the legislation went far enough in promoting 
regulatory parity and encouraging the growth of satellite-
delivered television programming against the entrenched cable 
monopoly.
    As we now look to reauthorize SHVIA, I believe we must keep 
the goal of real regulatory parity in mind. This time around, 
Congress must ensure satellite operators have the right tools 
to bring robust competition to the video subscription market, 
which will lead to more programming options and lower prices 
for consumers. Additionally, Congress must review SHVIA in 
light of the looming transition to digital television, and 
ensure that cable and satellite operators can provide consumers 
with outstanding high-definition digital television content to 
facilitate this transition.
    I have a letter from Congressman Grijalva concerning the 
use or discrimination against Spanish language independent 
public broadcasters, and, without objection, it'll be included 
in the record at this time.
    [The information referred to follows:]

                                   House of Representatives
                                     Washington, DC, April 28, 2004
Hon. John McCain,
United States Senate,
Washington, DC.

Dear Senator McCain:

    In further reference to our conversation on the reauthorization of 
the Satellite Home Viewers Improvement Act (SHVIA), EchoStar's practice 
of placing major English language network affiliated broadcasters on a 
favorable satellite dish, while relegating Spanish language, 
independent and public broadcasters to a second, disfavored dish is 
discriminatory and in violation of current law. As you are aware, the 
FCC found this practice to be inconsistent with SHVIA and its own 
agency rules. Still, EchoStar is clearly abusing the statute and is now 
seeking codification of their practices in the reauthorization of 
SHVIA.
    I find it disturbing that in markets in which EchoStar ``found it 
necessary'' to split broadcasters between two dishes, Spanish language 
broadcasters were systematically relegated to a second dish, while 
other, often lower rated stations, were placed on the main satellite 
dish. While EchoStar made the case that capacity was the issue and that 
local-into-local service would need to be terminated in some areas if 
all broadcasters are placed on the same dish, it is surprising that 
EchoStar ``found'' capacity for some Spanish language broadcasters on 
the main dish after House members from both sides of the aisle 
questioned their practices. Still, many Spanish language stations 
remain on the disfavored dish. While I am pleased that some capacity 
was made available (after EchoStar made several statements that it was 
not), I am concerned that EchoStar reassigned these stations for 
political purposes and will move them back to the second dish after the 
SHVIA bill passes if it does not address the matter.
    Spanish language, independent and public broadcast stations in 
Arizona and across the country are an important part of the broadcast 
television landscape and it is important that EchoStar follow the law 
in regards to equitable placement on their satellite network.
    In this regard, I would reinforce the message expressed to you by 
the Congressional Hispanic Caucus to include language in the Senate 
version of SHVIA that requires all broadcasters be placed on one dish 
and ask you to establish a 6 month compliance deadline.
            Sincerely,
                                          Raul M. Grijalva,
                                                Member of Congress.

    The Chairman. Senator Sununu?

               STATEMENT OF HON. JOHN E. SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Sununu. Thank you, Mr. Chairman.
    I'm very interested in what our panel has to say today 
about the success of the Satellite Home Viewer Act, and, in 
addition to the regulatory issues that you raised, I think the 
question is whether or not the Act has performed as hoped for, 
in terms of providing access and competition and good prices 
for consumers.
    In addition, I'm very interested in an issue which I've 
been working with the Chairman and his staff on, dealing with 
an anomaly, in that we use these DMAs, these marketing areas, 
for regulatory purposes. And in small states, like New 
Hampshire, where we have very limited access to local 
affiliates, I think there's only one broadcast affiliate, 
sometimes satellite consumers are prevented from getting access 
to local signals. We want to try to deal with this anomaly, and 
have been working with most all of the participants in the 
issue. Everyone seems pretty receptive to some kind of a fix, 
and I'm working to structure legislation that will attempt to 
deal with this problem felt by New Hampshire and a couple of 
other small states, again where the number of local affiliates 
is limited to two or even fewer.
    I hope to be able to come to some accommodation, and look 
forward to the testimony today.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Burns, welcome, and thank you for your long 
involvement in this issue.

                STATEMENT OF HON. CONRAD BURNS, 
                   U.S. SENATOR FROM MONTANA

    Senator Burns. Thank you very much, Mr. Chairman. And thank 
you for this hearing to reauthorize this Act.
    I think it's probably one of the really good pieces of 
legislation that we all got to work on. It's also important to 
my state of Montana. As you know, we have the highest 
penetration level of satellite television in the country, over 
40 percent. Over-the-air broadcast signals, cable delivery 
limited to the geography of my state, of course, and satellite 
television has been a staple for our video marketplace for a 
long time.
    I think today's hearing should focus on this 
reauthorization, which corrected problems that satellite TV's 
customers faced in getting access to network television 
programming and helped to level the playing field so that 
satellite TV could compete with cable. To a large degree, this 
bill has functioned as intended. In fact, it has had some 
dramatic effect on subscribers in my state.
    While I'm a former broadcaster, I recognize the tremendous 
contribution that local broadcasting makes to our communities, 
particularly in rural states. The ability to receive local 
television signals is more than just having access to local 
sports or entertainment programming; it's critical for the way 
we receive our local news and our community information. Access 
to local signals is particularly critical where we are; when we 
experience extreme weather conditions, ranging from severe 
floods to intense blizzards. Not to say that they need a little 
farm news out there in markets, too, every now and then, so I 
think that's pretty important.
    Unfortunately, the vast majority of the local-to-local 
offerings by DBS operators serve urban markets, while Congress 
has heard numerous proposals and promises for local-into-local 
signals in rural areas by satellite broadcasters over the 
years, the reality seems to always be driven by raw economics. 
With this in mind, I was the author of the Local TV Act of 
2000, which created a $1.25 billion loan program, guarantee 
program, to fund local-to-local services to be administered by 
the Rural Utility Service. Unfortunately, as with so many 
issues, passing legislation was only the first step in moving 
forward. In fact, the board created under the local TV only 
issued final regulations for that program last December. 
Frankly, it is moving at a glacial pace, and it should be 
moving much more quickly. I will do everything in my power to 
make sure that that RUS makes up for lost time and moves 
quickly on the applications to provide local-to-local services 
in rural America.
    I'd also like to touch on two areas in the current debate 
on the Home Viewer Act reauthorization which concerns me 
greatly. I have serious reservations about the idea of a 
digital white area which would supplant the current grade B 
contour definitions for purposes of allowing distance signal 
carriage by satellite providers. I'm concerned that localism 
would be significantly harmed by allowing for the import of 
out-of-market signals even when viewers are able to receive 
quality local over-the-air analog signals.
    I'm troubled by EchoStar's requirement that consumers 
obtain a second dish to receive local Spanish language 
programming. I believe this is a direct violation of the Act's 
``carry one, carry all'' provision.
    Despite the inevitable challenges in what is still a 
relatively new technology, the future of the DBS industry in 
rural America remains bright. DBS has substantially contributed 
to the quality of rural life, opening up new sources of news, 
information, and entertainment. In turn, rural Americans have 
helped power-drive DBS into a major communications force.
    Rural America needs access to local television stations and 
network programming. This former farm broadcaster also believes 
that rural America is unique in news and information needs, 
needs that are being met elsewhere. Whether it's information 
about mad- cow disease, commodity markets or equine West Nile 
virus, there are fewer and fewer outlets of this type of 
information being made available.
    So bearing that in mind, the information needs of rural 
America, and I'm pleased that both DISH Network and DIRECTV 
carry RFD-TV, a rural public-interest television network which 
is helping to keep farm broadcasting alive. I'd like to hear 
more about that as we move along.
    I want to thank all the people who have come here today, 
and I'm looking forward to the testimony, Mr. Chairman.
    Thank you very much.
    [The prepared statement of Senator Burns follows:]

  Prepared Statement of Hon. Conrad Burns, U.S. Senator from Minnesota
    Thank you, Mr. Chairman, for holding today's hearing which is 
particularly crucial to rural states such as Montana. In fact, Montana 
has the highest penetration level of satellite television in the 
country at over 40 percent. With over-the-air broadcast signals and 
cable delivery limited by the geography of my state, satellite 
television has been a staple of our video marketplace for many years.
    Today's hearing focuses on the reauthorization of the ``Satellite 
Home Viewer Improvement Act,'' which corrected problems that satellite 
TV customers faced in getting access to network TV programming and 
helped to level the playing field so that satellite TV could compete 
with cable. To a large degree, the bill has functioned as intended, and 
in fact satellite providers have dramatically increased subscribers 
where they offer local signals.
    As a former broadcaster, I recognize the tremendous contributions 
that local broadcasting makes to our communities, particularly in rural 
areas. The ability to receive local television signals is more than 
just having access to local sports or entertainment programming. It is 
a critical and immediate way to receive important local news and 
community information. Access to local signals is particularly critical 
in Montana, where we often experience extreme weather, ranging from 
severe floods to intense blizzards.
    Unfortunately, the vast majority of ``local-to-local'' offerings by 
the DBS operators serve urban markets. While the Congress has heard 
numerous proposals and promises for local-into-local signals in rural 
areas by the satellite broadcasters over the years, the reality seems 
to always be driven by raw economics. With this in mind, I was the 
author of the LOCALTV Act of 2000, which created a $1.25 billion loan 
guarantee program to fund local-to-local services to be administered by 
the Rural Utilities Service.
    Unfortunately, as with so many issues, passing legislation was only 
the first step in moving forward. In fact, the Board created under the 
LOCALTV only issued final regulations for the program late last 
December. Frankly, I have been very frustrated at the glacial pace that 
the program has been implemented, which was recently criticized by GAO. 
I will do everything in my power to make sure that the RUS makes up for 
lost time and moves quickly on applications to provide local-to-local 
services for rural America under the program.
    I would like to touch upon two areas in the current debate on SHVIA 
reauthorization which concern me greatly. I have serious reservations 
about the idea of a ``digital white area'' which would supplant the 
current grade 8 contour definition for the purposes of allowing distant 
signal carriage by the satellite providers. I am concerned that 
localism would be significantly harmed by allowing for the import of 
out-of-market signals even when viewers are able to receive quality 
local, over-the-air analog signals.
    I am also troubled by EchoStar's requirement that consumers obtain 
a second dish to receive local Spanish language programming. I believe 
this is a direct violation of SHVIA's ``carry one, carry all'' 
provision.
    Despite the inevitable challenges in what is still a relatively new 
technology, the future of the DBS industry in rural America remains 
bright. DBS has substantially contributed to the quality of rural life, 
opening up new sources of news, information and entertainment. In turn 
rural Americans have helped power drive DBS into a major communications 
force.
    Rural America needs access to its local television stations and 
network programming. As a former farm broadcaster, I also believe that 
rural America has unique news and information needs that are not being 
met elsewhere. Whether it is information about mad cow disease, 
commodity markets or equine West Nile Virus, there are fewer and fewer 
outlets for this type of important information.
    Bearing the unique information needs of rural America in mind, I am 
pleased that both Dish Network and DirecTV carry RFD-TV, a rural public 
interest television network, which is helping keep farm broadcasting 
alive. I would like to hear more about how the satellite TV industry 
sees its relationship with rural America and what the industry is doing 
to meet those special rural needs.
    I look forward to the testimony of the witnesses. Thank you, Mr. 
Chairman.

    The Chairman. Thank you very much.
    Our panel this morning is Mr. Charlie Ergen, well known to 
this Committee, Chairman and Chief Executive Officer of 
EchoStar Communications Corporation; Mr. Jim Yager, Chief 
Executive Officer of Barrington Broadcasting Company; Mr. Eddy 
Hartenstein, Vice Chairman, Executive Board, DIRECTV; Ms. 
Araceli De Leon, Vice President and General Manager of 
Telemundo Communications Group; and Ms. Gigi B. Sohn, President 
and Co-Founder of Public Knowledge.
    Good morning, and welcome.
    And, Mr. Ergen, we'll begin with you. Welcome back.

              STATEMENT OF CHARLES ERGEN, CHAIRMAN

                  AND CHIEF EXECUTIVE OFFICER,

              ECHOSTAR COMMUNICATIONS CORPORATION

    Mr. Ergen. Thank you, Mr. Chairman and distinguished 
Members of the Committee. On behalf of EchoStar Communications, 
I'm pleased to be invited to discuss the Satellite Home Viewer 
Act.
    As you know, EchoStar led the fight in the late 1990s for 
the right to transmit local signals, arguing this was critical 
to our ability to compete. We've invested billions of dollars 
in technology to launch local markets, and today, in less than 
5 years, we're in 119 markets servicing almost 90 percent of 
the United States with local signals.
    While SHVIA has been a good first step in addressing huge 
disparities between DBS and dominant cable operators, it has 
not gone far enough. Reauthorization is a tremendous 
opportunity for Congress to cement the good parts of the Act 
and to bridge those disparities.
    Let me point out ways to improve the law. First, the laws 
directed to the FCC to establish good faith obligations for 
retransmission consent bargaining agreements is not complete 
enough to adequately police the unreasonable behavior of 
powerful media conglomerates, and it was further watered down 
in its implementation. Many local broadcast stations are now 
controlled by companies with multi-video programming 
properties. In our experience, retransmission consent 
negotiations provide those companies with the opportunity every 
three or 4 years to foist on us additional channels that 
consumers do not want, and do not want to pay for, as a 
condition of retransmission consent. While good faith 
requirement has not been effective in preventing such 
practices, and needs to be strengthened, we do believe that it 
has had an influence on the bargaining behavior of some 
broadcasters, and should, at a minimum, be preserved.
    Second, the must-carry obligations imposed on satellite 
carriers did not adequately take into account the enormous 
technical difficulties associated with satellite must-carry. 
EchoStar vehemently protested must-carry obligations in the 
1999 Act, arguing that spectrum constraints would result in the 
inability to do all 210 local television markets, and would 
result in carriage of many stations that contain no local 
content and that were already being broadcast nationally by DBS 
companies. It doesn't make a lot of sense for home-shopping 
channels and many religious networks to be broadcast 
nationally, and have absolutely no local programming--no local 
news, no local weather--to be part of the must-carry act.
    Third, with respect to distance stations, the law left some 
important things undone. While the law required the FCC to 
improve the model for predicting whether a household is 
unserved, the improvements that the FCC came up with did not 
take into consideration two fundamental issues. It did not take 
into account interference to the over-air broadcasts which 
weaken stations, and it did not take into consideration the 
phenomenon of ``ghosting,'' which makes many stations 
unwatchable in today's world. These households count as 
``served.'' Congress should require the FCC to implement 
improvements to the model in both these areas.
    Fourth, we encourage you to improve the parity between 
cable and satellite by giving satellite TV providers the 
ability to retransmit significantly viewed stations with a 
community, and afford the same market modification 
opportunities that cable systems have.
    And, finally, looking forward, we believe that the 
reauthorization of SHVIA offers Congress the opportunity to 
facilitate the digital transition. Today, 2 years before the 
transition deadline, we have a Satellite Home Viewer Act that 
addresses only analog unserved households. Consumers who cannot 
receive an over-the-air HD signal, either because a local 
broadcaster has only built a low-power facility or because he 
has not built any facility whatsoever, should be allowed to be 
broadcast via satellite.
    DBS can speed the transition to digital broadcasting. We 
are now 2 years past the May 1, 2002, deadline for local TV 
broadcasters to make the conversion, and still more than half 
of the 1,600 broadcast stations are not providing full power 
digital broadcasts. While the broadcasters have told Congress 
that only a handful of networks have failed to build DTV 
stations that operate at full power, a study the NAB recently 
presented to the FCC contradicts this claim. Their own study, 
again, verifies that more than half the operational DTV 
stations are not licensed at their full power. But Congress can 
stimulate local broadcasters to speed up their digital 
transmission by allowing satellite TV providers to provide DTV 
programming to households that are not served with a local 
over-the-air digital signal.
    In conclusion, while SHVIA has helped create a more level 
playing field between cable and satellite, there are many 
significant differences in the regulatory treatment that affect 
DBS's value to the consumers. In reauthorizing and revising 
SHVIA, Congress should eliminate these differences so that 
satellite can compete more vigorously and impose no new 
requirements that would further disadvantage us relative to our 
dominant cable competitors.
    We believe you have a unique opportunity with SHVIA to spur 
the transition to digital. We hope you will seize it with both 
hands.
    Thank you.
    [The prepared statement of Mr. Ergen follows:]

 Prepared Statement of Charles W. Ergen, Chairman and Chief Executive 
              Officer, EchoStar Communications Corporation
    Thank you Chairman McCain, Senator Hollings, and distinguished 
members of the Committee, on behalf of EchoStar Communications 
Corporation, I want to thank you for inviting our company to discuss 
with you the Satellite Home Viewer Improvement Act. My name is Charles 
Ergen, and I am Chairman and Chief Executive Officer of EchoStar 
Communications Corporation.
    The reauthorization of the Satellite Home Viewer Improvement Act 
(``SHVIA'') offers Congress an excellent opportunity to preserve and 
extend the pro-competitive measures in the current Act, as well as to 
improve regulatory parity between cable and satellite TV providers. 
While SHVIA helped create a more level playing field for cable and 
satellite TV providers in the multichannel video programming 
distributor (``MVPD'') market, there are still many significant 
differences in the regulatory treatment of cable and satellite that 
affect their relative attractiveness to consumers. In reauthorizing and 
revising SHVIA, Congress should take steps to eliminate these 
regulatory differences and ensure that satellite carriers can continue 
to compete vigorously with cable in the MVPD market. At the same time, 
care should be taken not to impose new requirements on satellite 
carriers that further disadvantage them relative to their primary MVPD 
competitors, the dominant cable industry.
Reauthorization of Section 119--Carriage of Distant Network Signals
    Under Section 119 of the Copyright Act, which is set to expire on 
December 31, 2004, satellite carriers are allowed to make distant 
network programming available to ``unserved households.'' Satellite 
carriers' ability to provide distant signals is of crucial importance 
to millions of consumers, mostly in rural areas, who cannot receive an 
adequate, over-the-air local broadcast signal. One of the reasons there 
are so many unserved households is because the cost to broadcasters of 
serving these additional households often exceeds the advertising 
revenue that the broadcasters hope to generate. To ensure that such 
households continue to have access to distant network signals from 
their satellite providers, we urge you to reauthorize Section 119 and 
to make the statutory license permanent. Cable operators currently 
enjoy a permanent license with respect to distant signals. Satellite 
carriers should enjoy the same right.
    Broadcasters have asked you to limit our ability to provide distant 
signals in markets in which we provide local-into-local service. We 
oppose this change to the distant signal license. Consumers who do not 
have access to an over-the-air signal, and who have to pay for their 
television service, should have a choice as to whether to watch their 
local broadcaster or a distant broadcaster on their satellite platform. 
Just as a consumer in Kalamazoo, Michigan can purchase either the 
Kalamazoo Gazette or the Los Angeles Times, satellite subscribers who 
qualify under the current law should continue to have this same basic 
choice. It is not right to penalize satellite carriers for making the 
substantial investments necessary to provide local-into-local service 
by taking away their distant signal rights. Nor is it right to penalize 
consumers by taking away an option they have today merely because a 
satellite carrier has worked to make available to them an additional 
option.
    By reauthorizing the distant signal license, you will also be 
providing a spur to broadcasters to improve and extend their over-the-
air signal to reach as many households as possible. In contrast, taking 
away that license would remove any such incentive for broadcasters who 
find it less costly to serve unserved households by cable or satellite 
than to improve their signals.
    Section 119 also permits satellite carriers to retransmit non-
network broadcast stations (i.e., superstations) to satellite 
subscribers. Superstations are a staple of cable line-ups and their 
availability on satellite systems has been a key driver of growth in 
the satellite television industry. Reauthorization of Section 119 will 
ensure that satellite carriers will continue to have the same 
opportunity as cable to offer such popular programming to satellite 
subscribers.
    Also, Congress should extend the ``grandfather'' clause in Section 
119 so that households that subscribed to distant network signals prior 
to October 31, 1999 can continue to receive such signals. We have 
hundreds of thousands of satisfied, long-term subscribers that have 
come to rely on this provision. There is no reason to disenfranchise 
them now.
    And Congress should not place a new deadline on eligible consumers' 
ability to receive distant stations. Congress has now had long enough 
experience with the distant station license to appreciate its benefits. 
The license should become permanent.
Transition to Digital Television
    The reauthorization of SHVIA also offers Congress an opportunity to 
broaden the existing definition of ``unserved household'' so that 
consumers who cannot receive a digital television (DTV) signal from 
their local broadcaster will have the ability to receive it from their 
satellite TV provider. This will spur the transition to digital TV 
broadcasting, which has lagged to date despite the statutory deadline 
of December 31, 2006 for the relinquishment of analog TV spectrum. 
Specifically, a significant number of viewing households (as of 
February 2004, all except 17 out of 210 markets) still lack access to a 
full complement (ABC, CBS, NBC, FOX, and PBS) of full power digital 
broadcasts from the networks serving their areas. And while the 
broadcasters have told Congress that only a handful of network stations 
have failed to build DTV stations that operate at full power, a study 
the NAB recently presented to the FCC contradicts this claim--even 
according to that partisan study, more than half the operational DTV 
stations are not operating at their licensed power level. Consumers 
cannot reasonably be expected to make the investment in DTV equipment 
if they cannot even receive DTV signals.
    By allowing satellite TV providers to offer DTV programming to 
households that are not served with a local over the air digital 
signal, Congress would increase demand for digital television sets 
among satellite TV subscribers. With more digital TV sets in the 
market, broadcasters will have increased incentives to make their 
digital signals available to more households sooner. To a significant 
extent, the rate of DTV adoption has been slow because consumers are 
not willing to buy DTV sets until there is more DTV programming, while 
broadcasters are not willing to provide DTV programming until more 
consumers have DTV sets. Allowing satellite carriers to beam distant 
DTV signals to unserved households would help cut this Gordian knot by 
leveraging the deployment of DTV in one part of the country into other 
parts of the country that have no such service. By accelerating the 
rate of DTV adoption in this way, the vicious cycle that impedes DTV 
deployment may at last be broken.
    To achieve this, however, it is not enough to ask the FCC to submit 
a report to you about an appropriate predictive model. First of all, 
this is a ``death by committee'' approach: it would ensure that nothing 
happens to expedite the DTV transition until after the deadline for the 
transition has elapsed.
    Second, no model is necessary in cases where the local broadcaster 
has not built any DTV facilities whatsoever. In those cases, there is 
no need for a prediction--all of the households that the broadcaster 
was supposed to reach with a DTV signal are certainly unserved. 
Consequently, Congress should allow immediate distant HDTV service to 
those DTV unserved households for which no prediction is necessary, and 
should require the FCC to establish a DTV predictive model by expedited 
rulemaking for all other cases.
    Not surprisingly, this plan is vehemently opposed by broadcast 
interests. But these same broadcasters are busily developing lots of 
creative ideas for extracting all the benefits offered by digital 
spectrum, including a plan to use their DTV spectrum to set up wireless 
cable systems to compete with satellite and traditional cable systems. 
At the same time, they are failing to hold up their end of the bargain 
with the American public by providing full power DTV and returning the 
analog spectrum on a timely basis. The broadcasters should not be 
permitted to reap all of the benefits of digital, while shirking their 
obligations. Congress should adopt our proposal to hasten the digital 
transition.
Determining Which Households are ``Unserved Households''
    Congress also has an opportunity to improve the process for 
determining which households are ``unserved households'' under Section 
119 in the following ways.
    First, it can improve the model used to predict whether a household 
can receive a local network signal of grade B intensity so as to take 
into account interference conditions and ``multi-path'' transmission 
problems. Currently, the Individual Location Longley Rice (``ILLR'') 
model predicts many households to be served when in fact they cannot 
receive an adequate signal because local interference conditions have 
weakened the signal. In addition, even when the signal strength is 
adequate, a household may receive an unwatchable picture as a result of 
``ghosting'' caused by multi-path transmissions. Such households should 
be treated as unserved. Congress should also consider directing the FCC 
to increase the grade B intensity threshold to reflect modern consumer 
expectations about picture clarity. The current standard was adopted in 
the 1950s and based on consumer quality expectations from that era of 
hazy TV reception. Modern consumer expectations are considerably 
higher.
    Second, Congress could improve SHVIA's waiver and signal strength 
testing process, which is not working as envisioned. Five years of 
experience with this process shows us that it often leads to a bad 
customer experience. In some instances, the law is unclear; in other 
cases consumers have unrealistic expectations; and in still other 
cases, DBS providers and their customers are subject to the whims of 
broadcasters. We recommend narrowing the waiver process to permit only 
consumers predicted as receiving weak Grade B signals to request a 
signal strength test. We also recommend an explicit clarification of 
what we believe to be the current law: that broadcasters may not revoke 
waivers once given so long as a subscriber receives continuous service 
from the DBS provider--the customer should not be victim to whimsical 
rescissions of previously granted waivers. Further, the rules should be 
clarified to eliminate consumer confusion when a subscriber is 
predicted to receive the same network signal from two local network 
affiliates in different DMAs. In those cases, a waiver should be 
required only from the network station in the subscriber's DMA. This 
will eliminate the need for customers to get multiple waivers from 
affiliates of the same network.
    Third, Congress should clarify that where there is not the full 
complement of four network stations in a given DMA (e.g. ABC, CBS, NBC 
are present, but not Fox), then satellite providers can import a 
distant signal of the missing network into that DMA, even though some 
households in the DMA might be predicted to be served by an affiliate 
of that network in a neighboring DMA.
Carriage of Broadcast Stations
    Significantly Viewed Stations. We encourage the Senate to improve 
regulatory parity between cable and satellite by giving satellite TV 
providers the ability to retransmit ``significantly viewed'' stations 
within a community, and afford the same market modification 
opportunities that cable systems have. Significantly viewed signals 
should also be exempted from network nonduplication, syndicated 
exclusivity and sports blackout rules in the communities where those 
stations are significantly viewed. We note that, even with these 
changes, cable operators will still enjoy a broader copyright license 
than the license of Section 119, but these adjustments will help lessen 
the gap.
    Retransmission Consent. The Committee should also eliminate the 
sunset on the non-exclusivity and good faith requirements for 
retransmission consent. Currently, for local stations that elect 
retransmission consent rather than must-carry, Section 325(b)(3)(C)(ii) 
of SHVIA and the Commission's rules prohibit exclusive retransmission 
consent agreements and require the local station to negotiate 
retransmission agreements in good faith. These requirements sunset on 
January 1, 2006.
    EchoStar considers these limitations on broadcasters' ability to 
negotiate retransmission consent agreements to be essential for the 
preservation of a competitive MVPD market and for keeping video 
programming prices low. Exclusive retransmission consent agreements not 
only can result in limiting the distribution of a local station's 
signal to a single MVPD (rather than all of the providers that choose 
to carry that signal), but may even give that unfair advantage to an 
affiliate of the local broadcaster. In addition, elimination of the 
good faith requirement might further encourage troublesome current 
practices such as bundling of programming networks. Many local 
broadcast stations are now controlled by conglomerates with many other 
video programming properties. EchoStar's experience has been that 
retransmission consent negotiations provide such companies with the 
opportunity every three years to renegotiate video programming deals or 
to foist on MVPDs additional video programming that consumers do not 
want as a condition of retransmission consent for important local 
broadcast stations. While the good faith requirement has not been very 
effective in preventing such practices and may need to be strengthened, 
EchoStar believes that it does have an influence on the bargaining 
behavior of broadcasters and should, at a minimum, be preserved.
    Also, Congress should resist the ``symmetry'' of imposing 
``reciprocal'' requirements on distributors. Such restrictions make 
sense only when the negotiating party has market power that it can use 
as leverage in the negotiations. This is true of broadcast stations 
that elect retransmission consent versus must-carry, and it may also be 
true of the dominant MVPDs--cable systems. But it is not true of all 
MVPDs, and Congress should not impose such obligations across the board 
on all distributors. To do so would only give broadcasters a 
negotiating tool that would neutralize the discipline Congress intended 
to impose on broadcasters by making provision for a unilateral good 
faith obligation in 1999.
Local-into-local and Two-dish
    EchoStar is a pioneer of local-into-local service. We knew that it 
was essential to provide such service if we were to compete effectively 
with cable. We lobbied Congress in the late 1990s for the rights to be 
able to retransmit such signals, and were pleased when Congress passed 
SHVIA to give satellite providers such rights. We then invested 
billions of dollars in satellite technology to launch local markets as 
quickly as possible. Today, EchoStar offers more local broadcasters' 
signals within their local communities than any other cable or 
satellite TV provider. DISH Network was the first satellite TV provider 
to offer local channels with a roll-out of 13 markets. In less than 
five years since passage of SHVIA, EchoStar's DISH Network has launched 
local-into-local service in 119 television markets, serving more than 
86 percent of the country.
    Early on, in order to make maximum use of scarce spectrum 
resources, we began providing local-into-local service in a number of 
markets using a 2-dish solution. Under this solution, subscribers who 
want local stations in certain markets are provided with a second dish 
completely free of charge so that they can receive all of their local 
stations. Once the second dish is installed, the fact that the local 
stations are being provided through two dishes instead of one is 
completely transparent to the consumer--all the local channels are 
listed contiguously on our electronic program guide. The use of the 2-
dish solution has allowed us to deliver local-into-local into more 
markets, more quickly than would otherwise have been possible.
    Notably, our two dish solution is no different conceptually from 
the requirement, in many locations, of multiple over-the-air antennas 
to receive all local stations. The multiple antennas are necessitated 
by the fact that all broadcasters in a market seldom use the same 
transmitter tower, or even locate their individual towers in the same 
area. Where transmitter towers are located in different areas, multiple 
reception antennas pointed in the direction of the different 
transmitters are necessary. Ironically, while broadcasters have decried 
EchoStar's two-dish solution, broadcasters appear to expect consumers 
to accept the need for multiple over-the-air antennas as a fact of 
life.
    Nevertheless, the broadcasters are asking Congress to outlaw our 
company's specific plan for complying with must-carry and require its 
abolition within one year. The wiser course is to resist these 
misguided calls and let consumer preferences be the guiding criterion 
that will lead to optimal carriage of local broadcast stations. There 
are many good reasons for this.
    First of all, it is important to recognize that a ``same dish'' 
requirement for all broadcast stations does not necessarily mean a 
``single dish'' for all consumers. If our two dish plan were 
prohibited, compliance with the new rule would still require many two-
dish markets, albeit with all broadcast stations on the same dish. In 
those two-dish markets, all subscribers that want even one network 
station will need a second dish. Furthermore, compliance with the rule 
will likely require some current single-dish markets to be converted to 
two-dish markets, as shown by DIRECTV's own attempt at remapping 
EchoStar's system.
    Second, prohibiting our plan would cause massive disruption and 
possibly loss of local service for our subscribers in 15 to 30 markets. 
This is because moving a market A station from a wing slot to a ``full-
CONUS'' spot beam that now provides some local stations from markets A, 
B and C will require the displacement of markets B and/or C from the 
spot beam. This in turn means that the subscribers whose stations are 
displaced will need a second (or different) dish. To illustrate, take 
our EchoStar 7-11 spot beam. That beam currently provides more fully 
effective competition to cable, and more choice for consumers, in 
Chicago, Indianapolis, St. Louis and Grand Rapids. It has the physical 
capacity to carry a total of 24 channels. Some have suggested that we 
should increase the compression ratio of our signals to squeeze more 
channels onto the spot beam. We have concluded, however, that 
increasing the compression ratio above current levels would degrade 
signal reception quality to a level we are unwilling to impose on our 
customers. We do not compress our signal to a greater extent on any of 
our satellites, whether spot beam or full CONUS.
    Consequently, the entire capacity of that spot beam is consumed by 
four channels from Chicago, seven channels from Indianapolis, six 
channels from St. Louis and seven channels from Grand Rapids. In order 
to be able to serve all of these markets, five channels from Chicago, 
two channels from Indianapolis and two channels from St. Louis were 
placed on the wing satellite located at 61.5 degrees in compliance with 
existing law. If the law is now changed, the five wing channels from 
Chicago could be placed in the spot beam, but since the capacity of the 
spot beam is limited to 24 channels, in order to comply with a single 
dish edict this would necessitate that all of the channels from 
Indianapolis, St. Louis and Grand Rapids which are currently in the 
spot beam be relocated to the 61.5 degree location, or to a satellite 
located at some other orbital position in order to make all markets in 
this spot beam ``same dish'' markets.
    Equally important, the number of subscribers that will need second 
or new dishes will overwhelm EchoStar's capacity to install them. The 
result? With a one-year time frame, many subscribers will lose their 
local service.
    Third, there are many misconceptions circulating about our two dish 
solution. For example, the argument that no one is willing to install 
dishes to watch programming from two locations is just plain wrong. 
Almost two million of our customers have had dishes installed to view 
programming from our 61.5 or 148 degree locations. While the ``look 
angle'' from those locations has been cited as a problem by detractors, 
in fact with respect to most of our 61.5 degree two dish markets, the 
angle for a dish pointed at EchoStar III, located at our 61.5 degree 
orbital location, is better than the angle of a dish pointed at the 
spot beam satellites located at our 119 and 110 degree orbital 
locations, where the remaining local channels are carried. That is, a 
consumer is actually more likely to be able to view programming from 
the 61.5 degree wing location, than from the 119 degree ``core'' 
location. Simple math, and the help of a map, confirms the mid-point of 
119 and 61.5 degrees longitude to be approximately 90 degrees, a 
longitudinal line running approximately through Madison, Wisconsin, to 
Springfield, Illinois and Memphis, Tennessee, to Jackson, Mississippi 
and New Orleans, Louisiana in the southern United States. From any 
location east of that line, the look angle to the 61.5 degree satellite 
is empirically better than is the look angle from a dish which must 
view programming from a satellite located at 119 degrees.
    Another common misconception is that EchoStar charges more for 
channels located at wing slots, or charges for the dish required to 
view those channels. Again, this is simply not accurate. The second 
dish necessary to view those channels, together with professional 
installation of the second dish and the channels themselves, are in all 
cases offered absolutely free to the customer. While the cost to 
EchoStar to provide the second dish and installation is substantial, we 
absorb that cost, having concluded that it is more important to be able 
to offer the local channels in the greatest number of markets.
    Detractors also have complained that EchoStar does not inform 
customers of the availability of the wing channels free of charge, and 
that we discriminate against the wing channels in channel guide 
location. These assertions are inaccurate. Channels at a wing location 
are located in our program guide in a fully integrated manner with the 
channels located at other locations. Channel numbering--regardless of 
location--is contiguous, with each local channel assigned the channel 
number it carries off air (with the exception of older EchoStar boxes 
where off air channel numbering is not possible for any local channels, 
but all local channels are in that event offered with contiguous 
numbering). Scrolling through the on screen channel guide, a consumer 
who has installed a second dish has no visibility to the existence of 
that second dish and can not in any way distinguish between channels 
being delivered from satellites located at different orbital positions.
    Importantly, where a consumer decides not to take local channels 
from the wing satellite, the on screen guide boldly advertises the 
availability of the second dish and installation free of charge. Tuning 
to the wing channel produces the following bold message: ``YOU MUST 
HAVE A SECOND DISH TO VIEW THIS CHANNEL. DISH NETWORK WILL PROVIDE THE 
DISH FREE OF CHARGE. CALL 1-800-333-DISH''. Clearly, we give our 
customers notice and the choice of getting the wing slot stations for 
free, if they want them.
    Fourth, it is important to recognize that we have reduced the 
number of two-dish markets to only 38 out of 119 markets currently 
being served with local stations. Overall, we now carry a total of 895 
of local broadcast stations. Of those, only 106 are offered from one of 
our wing satellites. Economics has been the driving force for this 
reduction. Economically, it is in our best interest to offer a single-
dish solution where possible simply because we offer the second dish 
and related hardware, and a professional installation, free to every 
consumer who wants a second dish. The cost to EchoStar is well over 
$100 for each second dish installed, a significant incentive to offer 
channels from a single dish wherever possible, and eliminating the need 
for governmental intervention. In fact, over the last year we have 
already transitioned eight two dish markets to a single dish solution 
(Charlotte, Cincinnati, Ft. Myers, Grand Rapids, Kansas City, 
Lexington, Miami and Raleigh), and based on the focus on this issue 
provided in recent weeks, we are pleased to advise that effective this 
week we have also been able to transition Albuquerque, Phoenix, San 
Antonio and Tucson from two dish, to one dish solutions. We are also 
moving a total of 27 channels from wing satellites to spot beams over 
the next week. As stated, this reduces our two dish markets from 42 to 
38 and reduces the number of wing satellite channels from 133 to 106.
    In fact, I am prepared to commit to you today that, barring changes 
in channel configurations in local markets, we do not intend to add any 
more 2-dish markets beyond the 38 that currently exist. We will 
continue to migrate existing 2-dish markets to single dish as we are 
able to find or create additional spectrum capacity to do so. We hope 
to be able to complete that process entirely within four years. But if 
we are required to complete the transition on an artificially 
compressed time schedule (such as the one-year time frame being 
mentioned), the result will be a lose-lose for consumers and 
competition. That deadline is both unrealistic and, in any case, 
unnecessary because EchoStar plans on migrating all of its subscribers 
to a same-dish solution for local-into-local service within four years 
anyway. Legislation is simply not necessary to address this transitory 
issue.
Conclusion
    In conclusion, in reauthorizing SHVIA, I urge you to lessen the gap 
that still separates DBS providers from cable operators, create greater 
parity between the two competing modes, and resist the creation of 
obstacles that would further hamper our efforts to compete.

    The Chairman. Thank you very much.
    Mr. Yager?

  STATEMENT OF JIM YAGER, CHIEF EXECUTIVE OFFICER, BARRINGTON 
                      BROADCASTING COMPANY

    Mr. Yager. Thank you, Mr. Chairman, Members of the 
Committee.
    There are two paramount goals that Congress has repeatedly 
reaffirmed since the first Satellite Home Viewer Act was 
enacted in 1988. First, the preferred method to provide network 
programming to viewers is through local affiliated stations. 
And, second, providing network programming by importing 
distance signals should only be used when the local station 
cannot be provided to a subscriber.
    As you know, SHVIA contains two compulsory licenses.
    The first, a license allowing DBS to deliver local stations 
to local viewers, the so-called local-to-local license, has 
been a tremendous success. Since Congress created this license, 
tens of millions of your constituents can now receive local 
news, weather, and sports programming via satellite. The number 
of viewers enjoying this important benefit will grow. DIRECTV 
should be commended for its pledge to provide local-to-local in 
all 210 television markets across this country as soon as 2006, 
and no later than 2008. This aggressive competition has prodded 
EchoStar to move forward with its own local-to-local carriage, 
currently serving, as Mr. Ergen said, 119 markets. 
Unfortunately, in many markets EchoStar forces consumers to 
obtain a second satellite dish in order to receive some 
stations. Most often Spanish language, religious, and public 
stations. We hope Congress will end this discriminatory 
practice.
    The second license, the distance signal license, has been a 
recipe for DBS mischief and abuse. For decades, DBS ignored the 
rules for governing who should be eligible for distance 
signals, signing up anyone and everyone willing to say they 
were unhappy with their over-the-air signal. When the courts 
finally ended the illegal practice, there was a firestorm of 
consumer outrage, much of which DBS unfairly funneled toward 
Congress. Since that time, DIRECTV has complied with the law. 
EchoStar, however, continues providing illegal service to 
hundreds of thousands of subscribers. A Federal judge recently 
found EchoStar broke a sworn promise to a Federal court by 
failing to disconnect them. Fortunately, as the local-to-local 
rollout accelerates, the distance signal compulsory license 
will become increasingly irrelevant.
    A major advantage in the expansion of local-to-local is 
that is that it eliminates the need for importing distance 
signals into local markets. In this regard, NAB urges that in 
any market in which local-to-local is offered, the right to 
import distance signals should be eliminated.
    Today, some in DBS ask that you provide them a new benefit 
by vastly expanding the distance signal compulsory license to 
create a so-called digital white area. Their claim that this 
would accelerate the DTV transition is without merit.
    Let me dispel some myths that some in the satellite 
industry recently spread. Today, according to the FCC's own 
figures, 1,411 television stations are on the air in digital in 
203 television markets that serve over 99 percent of U.S. 
households, and broadcasters are close to replicating their 
analog coverage areas. DTV stations already are reaching 92 
percent of the populations they will be required to serve. 
Collectively, these stations have spent billions of dollars on 
their digital buildouts, and have every incentive to see the 
transition completed. EchoStar's claim that a majority of 
stations are not complying is false and misleading.
    A few examples. Scores of stations cannot complete their 
digital buildouts because Mexico and Canada have not provided 
the necessary clearances. Under EchoStar's criteria, these 
stations are noncompliant. In other areas, particularly out 
West, stations must use translators to cover their vast market 
areas. The FCC has not authorized upgrading these translators 
to digital. In some cases, a station may need as many as 50 to 
60 translators to cover their market. EchoStar counts these 
stations as noncompliant.
    In short, EchoStar evidently asserts that 771 stations 
operating at special temporary authority power levels are not 
serving their full market area in digital. That's simply not 
true. Many of these stations, my three included, are not only 
serving their market area in digital, but exceeding their 
analog coverage area. EchoStar is simply playing fast and loose 
with the numbers. Letting EchoStar siphon off local television 
station viewers by providing distant digital signals will not 
expedite the DTV transition, but could well undermine localism. 
And EchoStar has no intention of returning these viewers, even 
after they receive local over-the-air digital signals.
    I submit that the answer to stimulating the digital 
conversion is not massive importation of distance signals into 
a local station's markets. The answer is to have DBS carry the 
digital signals of local stations into their market.
    At the end of the day, the Committee may choose to simply 
extend the Satellite Home Viewer Improvement Act in its current 
form for another 5 years. Should the Committee go any further, 
we would suggest two changes: ending EchoStar's two-dish 
scheme, and ending distance signal importation in any market 
that has local-to-local.
    As the Committee is aware, the House has begun to 
legislate. During that process, NAB has worked with the House 
Committee and attempted to work with all affected parties to 
find reasonable compromise in these many issues. In that vein, 
we endorse the common ground outlined in DIRECTV's written 
statement, and will continue to seek accord as the Senate 
approaches SHVIA.
    Mr. Chairman, this Committee has repeatedly emphasized that 
localism should be central to broadcasting. I strongly urge the 
Committee to adopt a SHVIA reauthorization that strengthens 
localism and does not harm it.
    Thank you, sir.
    [The prepared statement of Mr. Yager follows:]

 Prepared Statement of Jim Yager, Chief Executive Officer, Barrington 
   Broadcasting on behalf of the National Association of Broadcasting
    Thank you, Mr. Chairman.
    There are two paramount goals that Congress has repeatedly 
reaffirmed since the first Satellite Home Viewer Act was enacted in 
1988:

   First, the preferred method to provide network programming 
        is through local affiliate stations and

   Second, providing network programming by importing distant 
        signals should only be used when the local station cannot be 
        provided to a subscriber.

    As you know, SHVIA contains two compulsory licenses.
    The first, the license allowing DBS to deliver local stations to 
local viewers--the so-called local-to-local license--has been a 
tremendous success.
    Since Congress created this license, tens of millions of your 
constituents can now receive local news, weather, and sports 
programming via satellite. The number of viewers enjoying this 
important benefit will grow.
    DirecTV should be commended for its pledge to provide local-to-
local in all 210 markets as soon as 2006 and no later than 2008.
    This aggressive competition has prodded EchoStar to move forward 
with its own local-to-local carriage, currently serving 119 markets.
    Unfortunately, in many markets, EchoStar forces consumers to obtain 
a second satellite dish in order to receive some stations . . . most 
often Spanish language, religious and public stations.
    We hope Congress will end this discriminatory practice.
    The second license, the distant signal license, has been a recipe 
for DBS mischief and abuse.
    For decades, DBS ignored the rules governing who should be eligible 
for distant signals, signing up anyone and everyone willing to say they 
were unhappy with their over-the-air signal.
    When the courts finally ended this illegal practice, there was a 
firestorm of consumer outrage . . . much of which DBS unfairly funneled 
towards Congress.
    Since that time, DirecTV has complied with the law.
    EchoStar, however, continues providing illegal service to hundreds 
of thousands of subscribers. A Federal judge recently found EchoStar 
broke a sworn promise to a Federal court by failing to disconnect them.
    Fortunately, as the local-to-local rollout accelerates, the distant 
signal compulsory license will become increasingly irrelevant.
    A major advantage of the expansion of local-to-local is that it 
eliminates the need for importing distant signals into local markets. 
In this regard, NAB urges that in any market in which local-to-local is 
offered, the right to import distant signals should be eliminated.
    Today, some in DBS ask that you provide them a new benefit by 
vastly expanding the distant signal compulsory license to create a so-
called ``Digital White Area.''
    Their claim that this would accelerate the DTV transition is false.
    Let me dispel some myths that some in the satellite industry 
recently spread.
    Today, according to the FCC, 1,411 television stations are on-air 
in digital in 203 markets that serve over 99 percent of U.S. 
households.
    And broadcasters are close to replicating their analog coverage 
areas.
    DTV stations already are reaching 92 percent of the populations 
they will be required to serve.
    Collectively, these stations have spent billions of dollars on 
their digital build-outs and have every incentive to see the transition 
completed.
    EchoStar's claim that a majority of stations are not complying is 
flawed and misleading.
    A few examples:

        Scores of stations cannot complete their digital build-outs 
        because Mexico and Canada have not provided the necessary 
        clearances.

        Under EchoStar's criteria, these stations are non-compliant.

    In other areas, particularly out West, stations must use 
translators to cover their vast market areas.
    The FCC has not authorized upgrading these translators to digital. 
In some cases, a station may need as many as 50 or 60 translators to 
cover their market.
    EchoStar counts these stations non-compliant.
    In short, EchoStar evidently asserts that 771 stations operating at 
Special Temporary Authority power level are not serving their full 
market area in digital.
    That's false.
    Many of these stations--my three included--are not only serving 
their market area in digital, but exceeding their analog coverage area.
    EchoStar is simply playing fast and loose with the numbers.
    Letting EchoStar siphon off local television stations, viewers by 
providing distant digital signals will not expedite the DTV transition. 
. . . But it will undermine localism.
    And EchoStar has no intention of returning these viewers. . . . 
Even after they receive local, over-the-air digital signals.
    I submit that the answer to stimulating the digital conversion is 
not massive importation of distant signals into local stations' 
markets. The answer is to have DBS carry the digital signals of local 
stations into their markets.
    At the end of the day, the Committee may choose to simply extend 
the Satellite Home Viewer Improvement Act in its current form for 
another five years.
    Should the Committee go any further, we would suggest two changes:

   Ending EchoStar's 2--dish scheme and

   Ending distant signal importation into any market that has 
        local to local.

    As the Committee is aware, the House has begun to legislate. During 
that process, NAB has worked with the House Committees and attempted to 
work with all affected parties to find reasonable compromise on these 
many issues. In that vein, we endorse the common ground outlined in 
DirecTV's written statement and will continue to seek accord as the 
Senate approaches SHVIA.
    Mr. Chairman, this Committee has repeatedly emphasized that 
localism should be central to broadcasting.
    I strongly urge the Committee to adopt a SHVIA reauthorization that 
strengthens localism . . . and does not harm it.
                                 ______
                                 
                               Attachment
     Written Testimony of K. James Yager, Chief Executive Officer, 
   Barrington Broadcasting on Behalf of the National Association of 
                              Broadcasters
Introduction and Summary
    Ever since Congress crafted the original Satellite Home Viewer Act 
of 1988 (``SHYA''), it has worked to ensure both (1) that free, over-
the-air network broadcast television programming will be widely 
available to American television households, and (2) that satellite 
retransmission of television broadcast stations will not jeopardize the 
strong public interest in maintaining free, over-the-air local 
television broadcasting. Those two goals remain paramount today.s
    There can be no doubt that delivery of local stations by satellite 
is the best way to meet these twin objectives. The first two times 
Congress considered the topic--in 1988 and 1994--delivery of local 
stations by satellite seemed far-fetched. Congress therefore resorted 
to a considerably less desirable solution: permitting importation of 
distant television stations, although only to households that could not 
receive their local network stations over the air.
    When Congress revisited this area in 1999, the world had changed: 
local-to-local satellite transmission had gone from pipe dream to 
technological reality. And in response, in the 1999 Satellite Home 
Viewer Improvement Act (``SHVIA''), Congress took an historic step, 
creating a new ``local-to-local'' compulsory license to encourage 
satellite carriers to deliver local television stations by satellite to 
their viewers. At the same time, Congress knew that allowing satellite 
carriers to use the new license to ``cherry-pick'' only certain 
stations would be very harmful to free, over-the-air broadcasting and 
to competition within local television markets. Congress therefore made 
the new ``local-to-local'' license available only to satellite carriers 
that deliver all qualified local stations.
    Congress' decision to create a carefully-designed local-to-local 
compulsory license has proven to be a smashing success. Despite gloomy 
predictions by satellite carriers before enactment of SHVIA that the 
``carry-one-carry-all'' principle would sharply limit their ability to 
offer local-to-local service, the Nation's two major DBS companies, 
DirecTV and EchoStar, today deliver local stations by satellite to the 
overwhelming majority of American television households.
    Thanks to the wise decision by the FCC and the Department of 
Justice to block the proposed horizontal merger of DirecTV and 
EchoStar, the two DBS firms continue to compete vigorously against one 
another in expanding their delivery of local stations. While EchoStar 
predicted when it sought to acquire DirecTV that it would never be able 
to serve more than 70 markets without the merger, EchoStar now serves 
119 Designated Local Markets (``DMA's'') that collectively cover more 
than 85 percent of all U.S. TV households. Nor is there any sign that 
EchoStar's expansion of local-to-local service has stopped.
    The story with DirecTV is even more dramatic. With the launch of a 
new satellite (set for this week), DirecTV expects to serve 100 DMAs 
covering 85 percent of all U.S. TV households. By the end of 2004, 
DirecTV has committed to providing local-to-local in an additional 30 
markets, for a total of at least 130 DMAs covering 92 percent of all TV 
households. And as early as 2006 and no later than 2008, ``DirecTV will 
offer a seamless, integrated local channel package in all 210 DMAs.'' 
In Re General Motors Corporation and Hughes Electronics Corporation, 
Transferors and The News Corporation Limited, Transferee, for Authority 
to Transfer Control,  332, MB Docket No. 03-124 (released Jan. 14, 
2004) (emphasis added).
    The local-to-local compulsory license is the right way--and the 
distant-signal compulsory license is the wrong way--to address delivery 
of over-the-air television stations to satellite subscribers. If 
Congress wishes to do anything other than briefly extend the expiration 
date of Section 119, it should--as a matter of simple logic--limit the 
distant-signal compulsory license to markets in which the satellite 
carrier does not offer local-to-local service. It makes no sense, for 
example, to treat a satellite subscriber as ``unserved'' by its local 
CBS station when the subscriber's DBS firm offers that station as part 
of its satellite-delivered package, with what the satellite industry 
describes as ``a 100 percent, crystal-clear digital audio and video 
signal.'' And even if Congress elects to allow certain subscribers who 
are technically considered ``unserved'' today to retain distant network 
signals, Congress should not allow any new signups for distant signals 
in local-to-local markets.
    Although the rapid rollout of DBS local-to-local service has 
vindicated the actions that Congress took in SHVIA in 1999, there is 
one major blemish on the success story: an outrageous form of 
discrimination that EchoStar has inflicted on some local stations. 
EchoStar's method of discrimination is simple, but devastating. While 
placing what it considers the most ``popular'' stations in a market on 
its main satellites, EchoStar relegates certain stations (particularly 
Hispanic and foreign-language stations) to a form of satellite 
Siberia--placing them on remote ``wing satellites'' far over the 
Atlantic or Pacific, which can be seen only if one obtains a second 
satellite dish. Very few subscribers actually do acquire a second dish, 
thereby rendering many local stations invisible to their own local 
viewers. As DirecTV has acknowledged, this practice violates the 
``carry one, carry all'' principle of the SHVIA. The FCC has thus far 
tolerated this grossly improper practice, imposing only minor 
restrictions on this form of discrimination. Congress should step in to 
halt this misconduct.
    While the local-to-local compulsory license has (with the exception 
of EchoStar's two dish abuse) generally worked well, the history of the 
distant-signal compulsory license (codified in Section 119 of the 
Copyright Act) has been just the opposite. For the first ten years 
after this law was enacted, satellite carriers systematically ignored 
the clear, objective definition of ``unserved household'' and instead 
delivered distant signals to anyone willing to say that they did not 
like their over-the-air picture quality. Only through costly 
litigation--culminating in a 1998 ruling against PrimeTime 24 and a 
1999 ruling against DirecTV--were broadcasters able to bring a halt to 
most of this lawlessness. Even after those rulings, however, EchoStar 
has continued to serve hundreds of thousands of illegal subscribers, 
forcing broadcasters to spend years chasing it through the courts to 
obtain relief. Last June, a United States District Court found (after a 
ten-day trial) that EchoStar willfully or repeatedly violated the 
distant-signal provisions of the Copyright Act--and, in the process, 
broke a sworn promise to the court to tum off large numbers of illegal 
subscribers. This finding was only the latest in what has been a long 
string of instances in which courts and the FCC have found EchoStar to 
have violated statutes and rules--and abused legal processes--for its 
own private benefit.
    Startlingly, EchoStar, having engaged in this widespread pattern of 
misconduct, and having been content to violate the distant-signal 
license until ordered by a court to stop breaking the law, now urges 
Congress to radically expand the distant-signal compulsory license. In 
particular, EchoStar now asks to be allowed to import ABC, CBS, Fox, 
and NBC programming from New York and Los Angeles stations to millions 
of households that can receive the same programming from their local 
stations over the air-and in most cases, can also get their local 
stations in superb quality, by satellite, from EchoStar and DirecTV as 
part of their local-to-local package. Although these homes are 
unquestionably ``served'' by their local stations, EchoStar proposes to 
be allowed to deliver the same programming from New York or Los Angeles 
if the household is--in their view--``digitally unserved.''
    The EchoStar proposal--by a company with a long track record of 
lawlessness--is a recipe for mischief. As this Committee has repeatedly 
recognized, the distant-signal compulsory license is a departure from 
marketplace principles that is appropriate only as a ``lifeline'' for 
households that otherwise cannot view network programming. It would 
make no sense to override normal copyright principles for households 
that can readily view their own local stations. It would give the DBS 
firms a government-provided crutch that would set back for years what 
would otherwise be a market-driven race between DirecTV and EchoStar--
further spurred by competition with cable--to deliver digital signals 
on a local-to-local basis. And when local stations later sought to 
reclaim their own local viewers from the distant digital transmissions, 
there would be a consumer firestorm much like what occurred when two 
major satellite carriers were required to tum off (illegally-delivered) 
distant analog signals to millions of households in 1999.
    Finally, given the rapid pace of technological and economic change, 
Congress should again specify that Section 119 will sunset after a 
limited, five-year period, so that Congress can decide then if there is 
any reason to continue this government intervention in the free market 
for copyrighted television programming.
I. The Principles of Localism and of Respect for Local Station 
        Exclusivity are Fundamental to America's Extraordinarily 
        Successful Television Delivery System
    As Congress has consistently stressed--going back to 1988, when it 
originally crafted the rules governing satellite importation of distant 
broadcast stations--the principles of localism and of local station 
exclusivity have been pivotal to the success of American television.
A. The Principle of Localism is Critical to America's Extraordinary 
        Television 
        Broadcast System
    Unlike many other countries that offer only national television 
channels, the United States has succeeded in creating a rich and varied 
mix of local television outlets through which more than 200 
communities--including towns as small as Glendive, Montana, which has 
fewer than 4,000 television households--can have their own local 
voices. But over-the-air local TV stations--particularly those in 
smaller markets such as Glendive--can survive only if they can generate 
advertising revenue based on local viewership. If satellite carriers 
can override the copyright interests of local stations by offering the 
same programs on stations imported from other markets, the viability of 
local TV stations--and their ability to serve their communities with 
the highest-quality programming--is put at risk.
    The ``unserved household'' limitation is simply the latest way in 
which the Congress and the FCC have implemented the fundamental policy 
of localism, which has been embedded in Federal law since the Radio Act 
of 1927.\1\ In particular, the ``unserved household'' limitation in the 
SHVA implements a longstanding communications policy of ensuring that 
local network affiliates--which provide free television and local news 
to virtually all Americans--do not face importation of duplicative 
network programming.
---------------------------------------------------------------------------
    \1\ First Report and Order, 14 FCC Red 2654,  11 (1999); see SHVA 
Notice of Proposed Rule Making,  3 (``The network station compulsory 
licenses created by the Satellite Home Viewer Act are limited because 
Congress recognized the importance that the network-affiliate 
relationship plays in delivering free, over-the-air broadcasts to 
American families, and because of the value of localism in 
broadcasting. Localism, a principle underlying the broadcast service 
since the Radio Act of 1927, serves the public interest by making 
available to local citizens information of interest to the local 
community (e.g., local news, information on local weather, and 
information on community events). Congress was concerned that without 
copyright protection, the economic viability of local stations, 
specifically those affiliated with national broadcast network[s], might 
be jeopardized, thus undermining one important source of local 
information.'')
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    The objective of localism in the broadcast industry is ``to afford 
each community of appreciable size an over-the-air source of 
information and an outlet for exchange on matters of local concern.'' 
Turner Broadcasting Sys. v. FCC, 512 U.S. 622,663 (1994) (Turner I); 
see United States v. Southwestern Cable Co., 392 U.S. 157, 174 & n.39 
(1968) (same). That policy has provided crucial public interest 
benefits. Just a few years ago, the Supreme Court declared that

        Broadcast television is an important source of information to 
        many Americans. Though it is but one of many means for 
        communication, by tradition and use for decades now it has been 
        an essential part of the national discourse on subjects across 
        the whole broad spectrum of speech, thought, and expression.

        Turner Broadcasting Sys. v. FCC, 117 S. Ct. 1174, 1188 (1997).

    Thanks to the vigilance of Congress and the Commission over the 
past 50 years in protecting the rights of local stations, over-the-air 
television stations today serve more than 200 local markets across the 
United States, including markets as small as Presque Isle, Maine (with 
only 28,000 television households), North Platte, Nebraska (with fewer 
than 15,000 television households), and Glendive, Montana (with fewer 
than 5,000 television households).
    This success is largely the result of the partnership between 
broadcast networks and affiliated television stations in markets across 
the country. The programming offered by network affiliated stations is, 
of course, available over-the-air for free to local viewers, unlike 
cable or satellite services, which require substantial payments by the 
viewer. See Turner I, 512 U.S. 622, 663; Satellite Broadcasting & 
Communications Ass'n v. FCC, 275 F.3d 337, 350 (4th Cir. 2001) (``SHVIA 
. . . was designed to preserve a rich mix of broadcast outlets for 
consumers who do not (or cannot) pay for subscription television 
services.''); Communications Act of 1934, Sec. 307(b), 48 Stat. 1083, 
47 U.S.C. Sec. 307(b). Although cable, satellite, and other 
technologies offer alternative ways to obtain television programming, 
tens of millions of Americans still rely on broadcast stations as their 
exclusive source of television programming, Turner I, 512 U.S. at 663, 
and broadcast stations continue to offer most of the top-rated 
programming on television.
    The network/affiliate system provides a service that is very 
different from nonbroadcast networks. Each network affiliated station 
offers a unique mix of national programming provided by its network, 
local programming produced by the station itself, and syndicated 
programs acquired by the station from third parties. As Congress 
recognized in drafting the original SHVA in 1988, ``historically and 
currently the network-affiliate partnership serves the broad public 
interest.'' H.R. Rep. 100-887, pt. 2, at 19-20 (1988). Unlike 
nonbroadcast networks such as Nickelodeon or USA Network, which 
telecast the same material to all viewers nationally, each network 
affiliate provides a customized blend of programming suited to its 
community--in the Supreme Court's words, a ``local voice.''
    The local voices of America's local television broadcast stations 
make an enormous contribution to their communities. In Appendix A, we 
list just a few examples of television broadcasters' commitment to 
localism in the form of help to local citizens--and local charities-in 
need. It is through local broadcasters that local citizens and 
charities raise awareness and educate members of the community.
    Community service programming--along with day-to-day local news, 
weather, and public affairs programs--is made possible, in substantial 
part, by the sale of local advertising time during and adjacent to 
network programs. These programs (such as ``Alias,'' ``CSI,'' 
``American Idol,'' and ``Friends'') often command large audiences, and 
the sale of local advertising slots during and adjacent to these 
programs is therefore a crucial revenue source for local stations.
    A variety of technologies have been developed or planned--including 
cable, satellite, open video systems, and the Internet--that, as a 
technological matter, enable third parties to retransmit distant 
network stations into the homes of local viewers. Whenever those 
technologies posed a risk to the network/affiliate system, Congress or 
the Commission (or both) have acted to ensure that the retransmission 
system does not import duplicative network programming from distant 
markets. A recent example is the threat of unauthorized Internet 
retransmissions of television stations, which was quickly halted by the 
courts (applying the Copyright Act) and condemned by Congress as 
outside the scope of any existing compulsory license.\2\
---------------------------------------------------------------------------
    \2\ See National Football League v. TVRadioNow Corp. (d/b/a 
iCraveTV), 53 U.S.P.Q.2d (BNA) 1831 (W.D. Pa. 2000); 145 Cong. Rec. 
S14990 (Nov. 19, 1999) (statements by Senators Leahy and Hatch that no 
compulsory license permits Internet retransmission of TV broadcast 
programming).
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    In the case of cable television, for example, the FCC has since the 
mid-1960s imposed ``network nonduplication'' rules on cable systems. 47 
C.F.R. Sec. Sec. 76.92-76.97 (1996). As the Commission explained when 
it strengthened the network nonduplication rules in 1988:

        [I]mportation of duplicating network signals can have severe 
        adverse effects on a station's audience. In 1982, network non-
        duplication protection was temporarily withdrawn from station 
        KMIR-TV, Palm Springs. The local cable system imported another 
        network signal from a larger market, with the result that KMIR 
        TV lost about one-half of its sign-on to sign-off audience. 
        Loss of audience by affiliates undermines the value of network 
        programming both to the affiliate and to the network. Thus, an 
        effective non-duplication rule continues to be necessary.\3\
---------------------------------------------------------------------------
    \3\ Report and Order, In Re Amendment of Parts 73 and 76 of the 
Commission's Rules Relating to Program Exclusivity in the Cable and 
Broadcast Industries, 3 FCC Red 5299, 5319 (1988), aff'd, 890 F.2d 1173 
(D.C. Cir. 1989); see also Southwestern Cable Co., 392 U.S. at 165; 
Wheeling Antenna Co. v. WTRF-TV, Inc., 391 F.2d 179, 183 (4th Cir. 
1968).
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B. Protecting the Rights of Copyright Owners to License Their Works in 
        the 
        Marketplace is Another Principle Supporting a Highly 
        Circumscribed Distant-
        Signal Compulsory License
    By definition, the Copyright Act is designed to limit unauthorized 
marketing of works as to which the owners enjoy exclusive rights. See 
U.S. Constitution, art. I, Sec. 8, cl. 8 (``The Congress shall have 
Power . . . To promote the Progress of Science and useful Arts, by 
securing for limited Times to Authors and Inventors the exclusive Right 
to their respective Writings and Discoveries''); Mazer v. Stein, 347 
U.S. 201, 219 (1954) (``The economic philosophy behind the clause 
empowering Congress to grant patents and copyrights is the conviction 
that encouragement of individual effort by personal gain is the best 
way to advance public welfare through the talents of authors and 
inventors in 'Science and useful Arts.'').
    While Congress has determined that compulsory licenses are needed 
in certain circumstances, the courts have emphasized that such licenses 
must be construed narrowly, ``lest the exception destroy, rather than 
prove, the rule.'' Fame Publ'g Co. v. Alabama Custom Tape, Inc., 507 
F.2d 667, 670 (5th Cir. 1975); see also Cable Compulsory License; 
Definition of Cable Systems, 56 Fed. Reg. 31,580,31,590 (1991) (same). 
The principle of narrow application and construction of compulsory 
licenses is particularly important as applied to the distant-signal 
compulsory license, because that license not only interferes with free 
market copyright transactions but also threatens localism.
C. In Enacting the SHVA and the SHVIA, Congress Reaffirmed the Central 
        Role of Localism and of Local Program Exclusivity
    When Congress crafted the original Satellite Home Viewer Act in 
1988, it emphasized that the legislation ``respects the network/
affiliate relationship and promotes localism.'' H.R. Rep. No. 100-887, 
pt. 1, at 20 (1988). And when Congress temporarily extended the 
distant-signal compulsory license in 1999, it reaffirmed the importance 
of localism as fundamental to the American television system. For 
example, the 1999 SHVIA Conference Report says this:

        ``[T)he Conference Committee reasserts the importance of 
        protecting and fostering the system of television networks as 
        they relate to the concept of localism. . . . [T]elevision 
        broadcast stations provide valuable programming tailored to 
        local needs, such as news, weather, special announcements and 
        information related to local activities. To that end, the 
        Committee has structured the copyright licensing regime for 
        satellite to encourage and promote retransmissions by satellite 
        of local television broadcast stations to subscribers who 
        reside in the local markets of those stations.''

        SHVIA Conference Report, 145 Cong. Rec. H11792 (daily ed. Nov. 
        9, 1999) (emphasis added).

    The SHVIA Conference Report also stressed the need to interfere 
only minimally with marketplace arrangements--premised on protection of 
copyrights--in the distribution of television programming:

        ``[T]he Conference Committee is aware that in creating 
        compulsory licenses . . . [it] needs to act as narrowly as 
        possible to minimize the effects of the government's intrusion 
        on the broader market in which the affected property rights and 
        industries operate. . . .[A]llowing the importation of distant 
        or out-of-market network stations in derogation of the local 
        stations' exclusive right--bought and paid for in market-
        negotiated arrangements--to show the works in question 
        undermines those market arrangements.''

    Id. The Conference Report also emphasized that ``the specific goal 
of the 119 license, which is to allow for a life-line network 
television service to those homes beyond the reach of their local 
television stations, must be met by only allowing distant network 
service to those homes which cannot receive the local network 
television stations. Hence, the 'unserved household' limitation that 
has been in the license since its inception.'' Id. (emphasis added).
    Finally, the SHVIA Conference Report highlighted ``the continued 
need to monitor the effects of distant signal importation by 
satellite,'' and made clear that Congress would need to re-evaluate 
after five years whether there is any ``continuing need'' for the 
distant signal license. Id. That time, of course, is now.
II. Properly Implemented, The Local-to-Local Compulsory License is a 
        Win-Win-Win for Consumers, Broadcasters, and Satellite 
        Companies
    Unlike the importation of distant network stations, which can do 
grave damage to the network/affiliate relationship, delivery of local 
stations to the stations' own local viewers--e.g., San Antonio stations 
to viewers in the San Antonio area--is a win-win-win for consumers, 
local broadcasters, and DBS firms alike. As Congress explained in 1999 
when it created a new local-to-local compulsory license in Section 122 
of the Copyright Act, the new Act ``structures the copyright licensing 
regime for satellite to encourage and promote retransmissions by 
satellite of local television broadcast stations to subscribers who 
reside in the local markets of those stations.'' 145 Cong. Rec. H11792 
(daily ed. Nov. 9, 1999) (emphasis added).
A. Satellite Firms Have Enjoyed Extraordinary Growth, Thanks in Major 
        Part to the Local-to-Local Compulsory License
    As the FCC recognized in its January 2004 Annual Assessment of the 
Status of Competition in Markets for the Delivery of Video Programming, 
the Direct Broadcast Satellite (``DBS'') industry is thriving--and 
offering potent competition to cable. The DBS industry, which signed up 
its first customer only decade ago, grew to more than 20 million 
subscribers as of June 2003. Annual Assessment, MB Dkt. No. 03-172,  8 
(released Jan. 28, 2004). The growth rate for DBS ``exceeded the growth 
of cable by double digits'' in every year between 1994 and 2002, and in 
2003 exceeded the cable growth rate by 9.2 percent. Id. Just in the 12 
months between June 2002 and June 2003, the DBS industry added 2.2 
million net new subscribers, surging from 18.2 million to 20.4 million 
households. Id.
    DirecTV is currently the second-largest multichannel video 
programming distributor (``MVPD''), behind only Comcast, while EchoStar 
is the fourth-largest MVPD. Id.,  67. The DBS firms take many 
subscribers away from cable: ``according to [DirecTV] internal data, 
approximately 70 percent of its customers were cable subscribers at the 
time that they first subscribed to DirecTV.'' Id.,  65.
    The growth of the DBS industry has far outstripped even optimistic 
predictions made just a few years ago. In its January 2000 Annual 
Assessment, for example, the FCC quoted bullish industry analysts who 
predicted that ``DBS will have nearly 21 million subscribers by 2007.'' 
2000 Annual Assessment, 15 FCC Red. 978,  70. As the statistics quoted 
above show, DBS reached that level not in 2007, but in 2003--four years 
earlier than predicted.
    As the FCC has repeatedly pointed out, delivery of local stations 
by satellite has been a major spur to this explosive growth. E.g., 2004 
Annual Assessment,  8. In June 1999, just before the enactment of the 
new local-to-local compulsory license in the SHVIA, the DBS industry 
had 10.1 million subscribers. 2000 Annual Assessment,  8. Only four 
years later, the industry had more than doubled that figure to 20.4 
million subscribers. 2004 Annual Assessment,  8. That this growth has 
been spurred by the availability of local-to-local is beyond doubt: the 
DBS industry's own trade association, the Satellite Broadcasting & 
Communications Association, stressed just a few months ago that ``[t]he 
expansion of local-into-local service by DBS providers continues to be 
a principal reason that customers subscribe to DES.'' SBCA Comments at 
4, Dkt. No. 03-172 (filed Sept. 11, 2003) (emphasis added).
B. Contrary to the DBS Industry's Pessimistic Predictions, Satellite 
        Local-to-Local Service is Now Available to the Overwhelming 
        Majority of American Television Households
    Over the past few years, EchoStar and DirecTV have repeatedly 
claimed that capacity constraints will severely limit their ability to 
offer local-to-local service to more than a small number of markets. 
The DBS firms used that argument--unsuccessfully--in 1999 in attempting 
to persuade Congress that it should permit DBS companies to use a new 
compulsory license to ``cherry-pick'' only the most heavily-watched 
stations in each market. They used it again in arguing--again 
unsuccessfully--in 2000 and 2001 that the courts should strike down 
SHVIA's ``carry one, carry all'' principle as somehow unconstitutional. 
And they trotted out the same claims as a justification for the 
proposed horizontal merger of the Nation's only two major DBS firms, 
DirecTV and EchoStar. As recently as 2002, for example, the two DBS 
firms claimed that unless they were permitted to merge, neither firm 
could offer local-to-local in more than about 50 to 70 markets. 
EchoStar, DirecTV CEOs Testify On Benefits of Pending Merger Before US. 
Senate Antitrust Subcommittee, www.spacedaily.com/news/satellite-biz-
02p.html (``Without the merger, the most markets that each company 
would serve with local channels as a standalone provider, both for 
technical and economic reasons, would be about 50 to 70.'') (quoting 
DirecTV executive).
    Contrary to these pessimistic predictions, the two DBS firms 
already offer local-to-local programming to the overwhelming majority 
of U.S. television households. Although the DBS firms claimed they 
would never be able to serve more than 70 markets unless they merged, 
EchoStar already serves 119 Designated Local Markets (``DMA's''), which 
collectively cover more than 85 percent of all U.S. TV households.\4\ 
Nor is there any sign that EchoStar's expansion of local-to-local 
service has stopped.
---------------------------------------------------------------------------
    \4\ EchoStar Press Release, www.dishnetwork.com, DISH Network 
Satellite Television Brings Local Channels to La Crosse-Eau Claire, 
Wis., Area. (April 29, 2004) (EchoStar now serving 119 DMAs); EchoStar 
Testimony on Reauthorization of the SHVIA Before the House Energy & 
Commerce Committee (April 1, 2004), available at http://
energycommerce.house.gov/108/Hearings/04012004hearing1246/
Moskowitz1923.htm (EchoStar offering local-to-local to more than 85 
percent of all U.S. television households when it was serving 110 
DMAs).
---------------------------------------------------------------------------
    DirecTV's plans are still more ambitious. As of November 2003, 
DirecTV offered local-to-local to 64 markets covering more than 72 
percent of all U.S. television households. With the launch of a new 
satellite in the next few months, DirecTV expects to serve 100 DMAs 
covering 85 percent of all U.S. TV households. By the end of2004, 
DirecTV has committed to providing local-to-local in an additional 30 
markets, for a total of at least 130 DMAs that collectively include 92 
percent of all U.S. TV households.\5\ And as early as 2006 and no later 
than 2008, ``DirecTV will offer a seamless, integrated local channel 
package in all 210 DMAs.'' \6\ In other words, DirecTV alone will soon 
offer local-to-local service to virtually all American television 
households--even though EchoStar told Congress and the FCC just two 
years ago that this result was unthinkable unless the two firms merged.
---------------------------------------------------------------------------
    \5\ Press Release, DIRECTV Names 18 New Local Channel Markets to 
Launch in 2004 (Jan. 8, 2004), www.directv.com/DTVAPP/
aboutuslheadline.dsp?id=01_08_2004B.
    \6\ 1AIn the Matter of General Motors Corporation and Hughes 
Electronics Corporation, Transferors and The News Corporation Limited, 
Transferee, for Authority to Transfer Control,  332, MB Docket No. 03-
124 (released Jan. 14, 2004) (emphasis added).
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C. EchoStar and DirecTV Boast About the Excellent Technical Quality of 
        Their 
        Current Local-To-Local Service--Which Retransmits ``Digitized'' 
        Analog Signals
    As discussed below, the satellite industry now demands that 
Congress expand the distant-signal compulsory license--which EchoStar 
has systematically abused over the past eight years--by creating a new 
category of households that are ``digitally unserved.'' But any 
suggestion that EchoStar and DirecTV have difficulty attracting 
customers under the current law is belied by the following facts.
    First, both DirecTV and EchoStar can now--or will within a few 
months--each be able to deliver local television stations by satellite 
to nearly 90 percent of U.S. television households. Second, both DBS 
firms obtain excellent-quality analog signals from the stations, often 
working with the stations themselves to obtain a direct feed from the 
station's studios. Third, after receiving a high-quality analog signal, 
the DBS firms then ``digitize'' the signals and retransmit them in 
digital format to their customers. See www.dishnetwork.com/content/
prograrnming/index.shtml (``DISH Network now has your digital local 
channels.'')  (emphasis added). While these 
signals do not equal the quality of a signal originating from a digital 
broadcast, or particularly of a high-definition broadcast, the result, 
according to the DBS industry's trade association, is that DBS ``always 
delivers a 100 percent, crystal-clear digital audio and video signal,'' 
even if the original source is an analog broadcast. SBCA Website, 
www.sbca.com/mediaguide/faq.htm  (emphasis 
added).
    In other words, consumers who receive an excellent-quality 
``digitized'' analog signal from a local station from a DBS firm--as 
opposed to an imported digital station--are scarcely in a ``hardship'' 
position. Of course, it has never been the case that ``obtaining the 
best-quality signal'' would justify abandoning the principles of 
localism and free market competition. The principle behind the long-
standing ``Grade B intensity'' standard for determining which 
households are ``unserved'' is that Grade B intensity is an objective 
proxy for an acceptable signal, not for the optimal signal. If localism 
could be so easily sacrificed, Congress would not have adopted--and 
twice reaffirmed--the Grade B intensity standard.\7\
---------------------------------------------------------------------------
    \7\ In the SHVIA, Congress directed the FCC to prepare a report 
about whether Grade B intensity--or instead some other standard--should 
be used for determining whether households are ``unserved'' by their 
local stations. In its report, the FCC recommended retaining the Grade 
B intensity standard. See In Re Technical Standards for Determining 
Eligibility For Satellite Delivered Network Signals Pursuant To the 
Satellite Home Viewer Improvement Act, ET Docket No. 00-90 (released 
Nov. 29, 2000).
---------------------------------------------------------------------------
    Finally, these local channel offerings have made DBS so attractive 
to consumers that it is gaining millions of new subscribers every year 
while the number of cable subscribers is actually shrinking. 2004 
Annual Assessment,  8 (``In the last several years . . . cable 
subscribership has declined such that as of June 2003, there were 
approximately the same number of cable subscribers as there were at 
year-end 1999.'') While delivery of local digital signals by DirecTV 
and EchoStar would be a highly desirable development, there is no basis 
for suggesting that DirecTV and EchoStar need to import distant digital 
signals to serve their customers.
D. DirecTV and EchoStar Have Many Options for Continuing to Expand 
        Their 
        Ability to Deliver Local Signals, Including Local Digital 
        Signals
    As discussed above, DirecTV and EchoStar have brilliant engineers 
who constantly find ways to deliver more programming in the same 
spectrum. Nevertheless, in policy debates in Washington, the two firms 
regularly assure Congress (and the FCC) that no further technological 
improvement can be achieved. To mention one other example: even as 
DirecTV was doubling its ``compression ratio'' between 1998 and 2001 -
enabling it to carry twice as many channels in the same amount of 
spectrum--it repeatedly told the FCC that it had hit a brick wall as 
far as any further progress in compression technology:

   July 31, 1998: ``DIRECTV has substantially reached current 
        limits on digital compression with respect to the capacity on 
        its existing satellites. Therefore, the addition of more 
        channels will necessitate expanding to additional satellites.. 
        . .''

   Aug. 6, 1999: ``DIRECTV has substantially reached current 
        limits on digital compression with respect to the capacity on 
        its existing satellites.''

   Sept. 8, 2000: ``DIRECTV has substantially reached current 
        technological limits on digital compression with respect to 
        capacity on its existing satellites. Although there are 
        potentially very small gains still possible through the use of 
        advanced algorithms, such technological developments can 
        neither be predicted nor relied upon as a means of increasing 
        system channel capacity.''

   Aug. 3, 2001: ``DIRECTV has offered digitally compressed 
        signals from its inception, and has substantially reached 
        current technological limits on digital compression with 
        respect to capacity on its existing satellites. Although there 
        are potentially very small gains still possible through the use 
        of advanced algorithms, such technological developments can 
        neither be predicted nor relied upon as a means of increasing 
        system channel capacity.\8\
---------------------------------------------------------------------------
    \8\ See, e.g., Comments of DIRECTV, Inc., [1998] Annual Assessment 
of the Status of Competition in the Markets for the Delivery of Video 
Programming, CS Docket No. 98-102, at 5 (filed July 31, 1998); Comments 
of DIRECTV, Inc., [1999] Annual Assessment of the Status of Competition 
in the Markets for the Delivery of Video Programming, CS Docket No. 99-
230, at 9 (filed Aug. 6, 1999); Comments of DIRECTV, Inc. [2000] Annual 
Assessment of the Status of Competition in the Markets for the Delivery 
of Video Programming, CS Docket No. 00-132, at 16 (filed Sept. 8, 
2000); Comments of DIRECTV, Inc. [2001] Annual Assessment of the Status 
of Competition in the Markets for the Delivery of Video Programming, CS 
Docket No. 01-129, at 16 (filed Aug. 3, 2001) (emphasis added in all 
cases).
---------------------------------------------------------------------------
    This year, the Committee can expect to hear from EchoStar yet again 
that it has no hope of significantly expanding their capacity. For 
example, we can expect to hear from EchoStar that it will never be able 
to carry the digital signals of local television stations, and that it 
should instead be given a crutch by Congress to help it compete with 
cable. In fact, the satellite firms have available to them a wide range 
of potential new techniques for massively expanding their capacity, 
including:

   spectrum-sharing between DirecTV and EchoStar;

   use of Ka-band as well as Ku-band spectrum;

   higher-order modulation and coding;

   closer spacing of Ku-band satellites;

   satellite dishes pointed at multiple orbital slots;

   use of a second dish to obtain all local stations;\9\ and
---------------------------------------------------------------------------
    \9\ The SHVIA permits a satellite carrier to offer all local 
stations via a second dish, but not to split local channels into a 
``favored'' group (available with one dish) and a ``disfavored'' group 
(available only with a second dish).

---------------------------------------------------------------------------
   improved signal compression techniques.

    If Congress allows the power of American technical ingenuity to 
continue to move forward, we can expect to see DirecTV and EchoStar 
continue to make tremendous progress in doing more with the same 
resources. Just as today's desktop computers are unimaginably more 
powerful than those available just a few years ago, we can expect 
similar quantum improvements from America's satellite engineers-if 
Congress leaves the free market to do its magic, and leaves necessity 
to continue to be the mother of invention.s
E. If the FCC Does Not Act, Congress Will Need to Step in to Correct A 
        Major Abuse of Local-to-Local By EchoStar
    In crafting the SHVIA, Congress was well aware that if a DBS firm 
were permitting to select only some--but not all--local stations for 
retransmission, the stations left off the service would have little 
chance of reaching viewers who obtain their TV service from the 
satellite company. In the same spirit as the requirement in the 1992 
Cable Act that cable systems carry all qualified local stations in each 
market in which they operate, the SHVIA specifies that if a satellite 
carrier chooses to use the local-to-local license to carry signals in a 
particular market, it must carry all qualified local stations. 47 
U.S.C. Sec. 338(a)(1). That requirement has been upheld against 
constitutional attack by EchoStar, DirecTV, and their trade 
association. Satellite Broadcasting and Communications Ass 'n v. FCC, 
275 F.3d 337 (4th Cir. 2001). The purpose of the ``carry one, carry 
all'' principle is, of course, to ensure the continued availability of 
a wide variety of different over-the-air channels, and to prevent the 
local-to-local compulsory license from interfering with existing 
vigorous competition among all of the broadcast stations in each local 
market.
    Since late 2001, EchoStar has egregiously violated the requirement 
that it carry all stations in a nondiscriminatory manner: in many 
markets, EchoStar forces consumers to acquire a second satellite dish 
to receive some--but not all--local stations. Here in the Washington, 
D.C. area, for example, EchoStar enables its customers to see the ABC, 
CBS, Fox, and NBC stations (and a handful of other local stations) with 
a single satellite dish, pointed at EchoStar's main satellites. See 
EchoStar website, www.dishnetwork.com/content/programming/locals/
index.shtml. On the other hand, viewers wishing to see Channel14 
(Univision), Channel 32 (WHUT--PBS), Channel 53 (WNVT--International), 
Channel 56 (WNVC--International), or WJAL (Channel68--Independent) are 
forced to obtain a second satellite dish aimed at a satellite far over 
the Atlantic. Id. (In this and other markets, EchoStar targets public 
television, Hispanic, and other foreign-language stations for this 
discrimination.) Because few viewers will go to the time and trouble of 
obtaining a second dish--e.g., a long wait at home for an installer--
the net result is that only a tiny percentage of EchoStar subscribers 
can actually view all of their local stations. To date, the FCC has 
taken only ineffective steps to address this egregious form of 
discrimination,\10\ even though EchoStar's fellow DBS company, DirecTV, 
has told the FCC that EchoStar's two-dish ploy ``is inconsistent with 
the language of the Satellite Home Viewer Improvement Act. '' See 
Letter from Merrill S. Spiegel to Marlene H. Dortch, Dkt. No. 00-196 
(Jan. 16, 2003).
---------------------------------------------------------------------------
    \10\ Declaratory Ruling & Order, In re National Association of 
Broadcasters and Association of Local Television Stations Request for 
Modification or Clarification of Broadcast Carriage Rules for Satellite 
Carriers, Dkt. No. CSR-5865-Z (Media Bureau Apr. 4, 2002). The · 
Commission has to date required only that EchoStar fully disclose its 
discriminatory treatment and that it pay for the installation of the 
second dish. Not surprisingly, these requirements have not solved the 
fundamental problem that acquiring a second dish requires a major 
expenditure of time and effort on the part of the subscriber, with the 
result that--just as EchoStar hopes--few viewers ever actually acquire 
a second dish. And, as discussed in Appendix B, EchoStar has grossly 
violated even the minimal restrictions currently imposed by the 
Commission.
---------------------------------------------------------------------------
    The Commission has recently indicated that it plans to take action 
soon to address EchoStar's two-dish practices,\11\ but it remains 
uncertain when it will act on pending petitions for review. Should the 
Commission fail to take prompt action, Congress should step in to 
ensure that EchoStar can no longer thumb its nose at Congress' 
unmistakable directive that DBS firms that local-to-local means 
carriage of all local stations, without relegating many of the stations 
to an inaccessible electronic ghetto.
---------------------------------------------------------------------------
    \11\ See Separate Statement of Chairman Michael K. Powell, at 2 
n.3, In Re General Motors Corporation and Hughes Electronics 
Corporation, Transferors and The News Corporation Limited, Transferee, 
for Authority to Transfer Control, MB Docket No. 03-124 (released Jan. 
14, 2004).
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III. The Distant-Signal Compulsory License Has Been Egregiously Abused 
        by Satellite Carriers, and the Need for it is Rapidly 
        Diminishing With the Growth of Local-to-Local
    America's free, over-the-air television system is based on local 
stations providing programming to local viewers. When satellite 
carriers began delivering television programming in the 1980s, however, 
retransmission of local television stations by satellite was not yet 
technologically feasible. In 1988, Congress therefore fashioned a 
stopgap remedy: a compulsory license that allows satellite carriers to 
retransmit distant network stations, but only to ``unserved 
households.'' 17 U.S.C. Sec. 119. The heart of the definition of 
``unserved household'' is whether the residence can receive an over-
the-air signal of a certain objective strength, called ``Grade B 
intensity,'' from an affiliate of the relevant network. Id., 
Sec. 119(d)(10) (definition of ``unserved household''). In 1994, 
Congress extended the distant-signal license for another five years, 
although it expressly placed on satellite carriers the burden of 
proving that each of their customers is ``unserved.'' 17 U.S.C. 
Sec. 119(a)(5)(D).
    In 1999, Congress again extended the distant-signal license as part 
of the SHVIA, and statutorily mandated use of the FCC-endorsed computer 
model (called the ``Individual Location Longley-Rice'' model, or 
``ILLR'') for predicting which households are able to receive signals 
of Grade B intensity from local network stations. 17 U.S.C. 
Sec. 119(a)(2)(B)(ii). In the SHVIA, Congress also classified certain 
very limited new categories of viewers as ``unserved,'' including (1) 
certain subscribers who had been illegally served by satellite carriers 
but whom Congress elected to ``grandfather'' temporarily, see 17 U.S.C. 
Sec. 119(e), and (2) qualified owners of recreational vehicles and 
commercial trucks, see id., Sec. 119(a)(11).
    By its terms, grandfathering will expire at the end of2004. 17 
U.S.C. Sec. 119(e). Unlike in 1999, when Congress saw grandfathering as 
a way to reduce consumer complaints by allowing certain ineligible 
subscribers to continue receiving distant signals, the end of 
grandfathering will have little impact in the marketplace. This special 
exception should therefore be allowed to expire routinely.\12\
---------------------------------------------------------------------------
    \12\ First, by the end of the year, DirecTV will offer local-to-
local in no fewer than 130 DMAs, which collectively cover more than 90 
percent of U.S. television households. EchoStar already offers local-
to-local in 119 DMAs, and that figure is constantly growing. All of the 
subscribers in these markets (including subscribers claimed to be 
grandfathered) will be able to receive their local channels by 
satellite, making the availability of distant signals irrelevant. 
Second, a Federal judge found in 2003 that EchoStar forfeited the right 
to rely on grandfathering by defaulting at trial in proving that any of 
its subscribers actually satisfy the requirements for grandfathering. 
Third, because of ordinary subscriber churn and relocation, many 
grandfathered subscribers are no longer DBS customers or are no longer 
grandfathered. Fourth, for the small number of subscribers in non-
local-to-local markets that they might claim are currently 
grandfathered, DirecTV and EchoStar are free to seek (and may already 
have obtained) waivers from the affected stations. Finally, any 
grandfathered subscriber is (by definition) predicted to receive at 
least Grade B intensity signals over the air from their local network 
stations, and thus to be able to view their own stations even if they 
obtain no network stations by satellite.
---------------------------------------------------------------------------
A. Delivery Of Distant Signals Is A Poor Substitute For Delivery of 
        Local Television Stations
    From a policy perspective, there is no benefit--and many 
drawbacks--to satellite delivery of distant, as opposed to local, 
network stations. Unlike local stations, distant stations do not 
provide viewers with their own local news, weather, emergency, and 
public service programming. Nor does viewership of distant stations 
provide any financial benefit to local stations to help fund their 
free, over-the-air service. To the contrary, distant signals, when 
delivered to any household that can receive local over-the-air 
stations, simply siphon off audiences and diminish the revenues that 
would otherwise go to support free, over-the-air programming.
    Members of Congress and other candidates for election are uniquely 
injured by distant signals: a viewer in Phoenix, for example, will 
never see political advertisements running on local Phoenix stations if 
he or she is watching New York or Los Angeles stations from EchoStar or 
DirecTV instead. Such viewers become virtually unreachable by political 
advertising, unless (for example) a candidate in Phoenix wishes to 
purchase advertising on stations in the costliest media markets in the 
United States-New York and Los Angeles.
B. Satellite Carriers Have Grievously Abused the Distant-Signal 
        Compulsory License
    Satellite carriers--most egregiously EchoStar--have systematically 
abused the distant-signal compulsory license since its creation. To the 
extent that satellite carriers have complied with the limitations 
placed by Congress on the distant-signal license, it is solely as a 
result of litigation that broadcasters were forced to undertake to halt 
satellite carrier lawbreaking.
    From 1988 until1998, satellite carriers simply ignored the 
objective ``Grade B intensity'' standard and instead signed up anyone 
willing to say that they were dissatisfied with their over-the-air 
picture. Starting in the mid-1990s, when the large ``C-hand'' dishes 
began to be replaced by the hot-selling 18-inch dishes offered by 
DirecTV and EchoStar, the carriers' distant-signal lawbreaking quickly 
became a crisis.
    When DirecTV went into business in 1994, and when EchoStar did so 
in 1996, they immediately began abusing the narrow distant-signal 
compulsory license to illegally deliver distant ABC, CBS, Fox, and NBC 
stations to ineligible subscribers. In essence, the DBS companies 
pretended that a narrow license that could legally be used only with 
remote rural viewers was in fact a blanket license to deliver distant 
network stations to viewers in cities and suburbs.\13\
---------------------------------------------------------------------------
    \13\ For the first few years, DirecTV and EchoStar relied on a 
distributor called PrimeTime 24 as their wholesaler of distant network 
station signals. See CBS Broadcasting Inc. v. PrimeTime 24,48 F. Supp. 
2d 1342, 1348 (S.D. Fla. 1998) (``PrimeTime 24 sells its service 
through distributors, such as DIRECTV and EchoStar . . . [M]ost of 
PrimeTime's growth is through customer sales to owners of small dishes 
who purchase programming from packagers such as DirecTV or 
EchoStar.''). Starting in 1998 (for EchoStar) and 1999 (for DirecTV), 
the two companies fired PrimeTime 24 in an effort to dodge court orders 
to obey the Copyright Act.
---------------------------------------------------------------------------
    As a result of EchoStar's and DirecTV's lawbreaking, viewers in 
markets such as Meridian, Mississippi, Lafayette, Louisiana, Traverse 
City, Michigan, Santa Barbara, California, Springfield, Massachusetts, 
Peoria, Illinois, and Lima, Ohio were watching their favorite network 
shows not from their local stations but from stations in distant cities 
such as New York. Since local viewers are the lifeblood of local 
stations, EchoStar's and DirecTV's copyright infringements were a 
direct assault on free, over-the-air local television.
    When broadcasters complained about this flagrant lawbreaking, the 
satellite industry effectively said: if you want me to obey the law, 
you're going to have to sue me. Broadcasters were finally forced to do 
just that, starting in 1996, when they sued the distributor (PrimeTime 
24) that both DirecTV and EchoStar used as their supplier of distant 
signals. But even a lawsuit for copyright infringement was not enough 
to get the DBS firms to obey the law: both EchoStar and DirecTV decided 
that they would continue delivering distant stations illegally until 
the moment a court ordered them to stop.
    The courts recognized--and condemned--the satellite industry's 
lawbreaking. See, e.g., CBS Broadcasting Inc. v. PrimeTime 24, 9 F. 
Supp. 2d 1333 (S.D. Fla. 1998) (entering preliminary injunction against 
DirecTV's and EchoStar's distributor, PrimeTime 24); CBS Broadcasting 
Inc. v. PrimeTime 24 Joint Venture, 48 F. Supp. 2d 1342 (S.D. Fla. 
1998) (permanent injunction); CBS Broadcasting Inc. v. DIRECTV, Inc., 
No. 99-0565-CIV-NESBITT (S.D. Fla. Sept. 17, 1999) (permanent 
injunction after entry of contested preliminary injunction); ABC, Inc. 
v. PrimeTime 24, 184 F.3d 348 (4th Cir. 1999) (affirming issuance of 
permanent injunction).
    By the time the courts began putting a halt to this lawlessness, 
however, satellite carriers were delivering distant ABC, CBS, Fox, and 
NBC stations to millions and millions of subscribers, the vast majority 
of whom were ineligible urban and suburban households. See CBS 
Broadcasting, 9 F. Supp. 2d 1333.
    By getting so many subscribers accustomed to an illegal service, 
DirecTV and EchoStar put both the courts and Congress in a terrible 
box: putting a complete stop to the DBS firms' lawbreaking meant 
irritating millions of consumers. Any member of Congress who was around 
in 1999 will remember the storm of protest that DirecTV and EchoStar 
stirred up from the subscribers they had illegally signed up for 
distant network stations.
    Even when the courts ordered the DBS firms to stop their massive 
violations of the Copyright Act, they took further evasive action to 
enable them to continue their lawbreaking. In particular, when their 
vendor (PrimeTime 24) was ordered to stop breaking the law, both DBS 
firms fired their supplier in an effort to continue their lawbreaking.
    When DirecTV attempted this in February 1999, a United States 
District Judge promptly stopped it from doing so. CBS Broadcasting Inc. 
eta/v. DirecTV, No. 99-565-CIV-Nesbitt (S.D. Fla. Feb. 25, 1999); see 
id. (S.D. Fla. Sept. 17, 1999) (stipulated permanent injunction).
    EchoStar has played the game of ``catch me if you can'' with 
greater success, thanks to a series of stalling tactics in court. But 
in 2003, a United States District Court judge for the Southern District 
of Florida held a 10-day trial in a copyright infringement case brought 
by broadcast television networks, and trade associations representing 
local network affiliates, originally filed against EchoStar in 
1998.\14\ In June 2003, the District Court issued a meticulously-
documented 32-page final judgment, holding EchoStar liable for 
nationwide, willful or repeated copyright infringement by violating the 
distant-signal compulsory license. CBS Broad., Inc. v. EchoStar 
Communications Corp., 276 F. Supp. 2d 1237 (S.D. Fla. 2003).
---------------------------------------------------------------------------
    \14\ The trial was conducted by the Hon. William Dimitrouleas, who 
took over the case after the original District Court judge, the Hon. 
Lenore Nesbitt, passed away in 2002. While Judge Nesbitt also ruled 
that EchoStar was committing massive copyright infringements, EchoStar 
was able--by making false claims about its supposed compliance 
efforts--to obtain a delay in enforcement of that ruling.
    EchoStar's appeal of this decision was argued before the 11th 
Circuit in late February 2004.
---------------------------------------------------------------------------
    EchoStar had the burden of proving that each of its subscribers 
receiving distant ABC, CBS, Fox, and NBC stations is an ``unserved 
household.'' 17 U.S.C. Sec. 119(a)(5)(D). Yet the District Court found 
that EchoStar had failed to prove that any of its 1.2 million distant-
signal subscribers is in fact ``unserved.'' That is, EchoStar did not 
prove that any of its subscribers is unable to receive a Grade B 
signal, is grandfathered, or is eligible on any other basis. Id., 82.
    Worst of all, the District Court found that EchoStar had 
deliberately sought to mislead the court about what it did with the 
vast pool of illegal subscribers it accumulated between 1996 and 1999. 
Most important, EchoStar made--and then deliberately broke--a sworn 
pledge (in a declaration by its CEO, Charles Ergen) to tum off the many 
ineligible subscribers it signed up using the unlawful do-you-like-
your-picture method. Id.,  46. Far from turning off its accumulated 
illegal subscribers, EchoStar knowingly continued delivering distant 
signals to many hundreds of thousands of customers that it knew--from a 
study EchoStar itself ordered--to be ineligible. Id,,  38-47.
    EchoStar's decision to continue its highly profitable lawbreaking 
was the height of cynicism: as the District Court found, ``EchoStar 
executives, including Ergen and [General Counsel] David Moskowitz, when 
confronted with the prospect of cutting off network programming to 
hundreds of thousands of subscribers, elected instead to break Mr. 
Ergen's promise to the Court.'' Id., 46 (emphasis added).
    Nor is EchoStar's abuse of the distant-signal compulsory license 
the only example of its flouting of laws and regulations and misuse of 
legal processes. Appendix B is a list of other violations by EchoStar 
of substantive legal rules, and of instances in which EchoStar has 
abused judicial and administrative procedures.\15\ This is, of course, 
the same EchoStar that now asks Congress to expand the distant-signal 
compulsory license--and to do so in ways that would allow EchoStar to 
offer highly profitable programming packages to millions of 
subscribers, at virtually no cost to EchoStar, but at great cost to 
broadcasters, program suppliers, and the principle of localism.
---------------------------------------------------------------------------
    \15\ In concluding that the proposed takeover of DirecTV by 
EchoStar was not in the public interest, the FCC stated: ``EchoStar's 
record with respect to compliance with SHVIA's must carry provisions 
and our rules suggests a resistance to taking steps to serve the public 
interest that do not also serve the company's view of its own private 
economic interest.'' In Re Application of EchoStar Communications 
Corporation, CS Docket No. 01-348 (released Oct. 18, 2002).
---------------------------------------------------------------------------
C. With the Widespread Availability of Local-to-Local Service, the 
        Number of Truly ``Unserved'' Households is Minimal
    Unlike the local-to-local compulsory license, the distant-signal 
compulsory license threatens localism and interferes with the free 
market copyright system. As a result, the only defensible justification 
for that compulsory license is as a ``hardship'' exception--to make 
network programming available to the small number of households that 
otherwise have no access to it. The 1999 SHVIA Conference Report states 
that principle eloquently: ``the specific goal of the 119 license . . . 
is to allow for a life-line network television service to those homes 
beyond the reach of their local television stations.'' 145 Cong. Rec. 
at H11792-793. (emphasis added).\16\
---------------------------------------------------------------------------
    \161\ See, e.g., Copyright Office Report at 104 (``The legislative 
history of the 1988 Satellite Home Viewer Act is replete with 
Congressional endorsements of the network-affiliate relationship and 
the need for nonduplication protection.'') (emphasis added); Satellite 
Home Viewer[] Act of 1988, H.R. Rep. No. 100-887, pt. 2 at 20 (1988) 
(``The Committee intends [by Section 119] to . . . bring[] network 
programming to unserved areas while preserving the exclusivity that is 
an integral part of today's network-affiliate relationship'') (emphasis 
added); id. at 26 (``The Committee is concerned that changes in 
technology, and accompanying changes in law and regulation, do not 
undermine the base of free local television service upon which the 
American people continue to rely'') (emphasis added); H.R. Rep. No. 
100-887, pt. 1, at 20 (1988) (``Moreover, the bill respects the 
network/affiliate relationship and promotes localism.'') (emphasis 
added).
---------------------------------------------------------------------------
    Today, more than 80 percent of all U.S. television viewers have the 
option of viewing their local network affiliates by satellite--and that 
number is growing all the time. Even satellite dish owners in local-to-
local markets who cannot receive Grade B intensity signals over-the-air 
(e.g., a household in a remote part of the Washington, D.C. DMA) are 
obviously not ``unserved'' by their local stations: they can receive 
them, with excellent technical quality, directly from their satellite 
carrier, just by picking up the phone. And they can do so without any 
need to obtain a waiver, and without regard to what the ILLR model 
predicts about the over-the-air signal strength at their home.
    The widespread availability of local-to-local network affiliate 
retransmissions means that, as a real-world matter, there are no 
unserved viewers in areas in which local-to-local satellite 
transmissions of the relevant network are available, because it is no 
more difficult for viewers to obtain their local stations from their 
satellite carriers than to obtain distant stations. There is therefore 
no policy justification for treating satellite subscribers in local-to-
local markets as ``unserved'' and therefore eligible to receive distant 
network stations.
    The distant-signal compulsory license is not designed to permit 
satellite carriers to sabotage the network/affiliate relationship by 
delivering to viewers in served households--who can already watch their 
own local ABC, CBS, Fox, and NBC stations--network programming from 
another source. Yet satellite carriers have aggressively advertised the 
benefits to served households of obtaining distant signal programming, 
including most notably:

   time-shifting (e.g., Mountain and Pacific Time Zone viewers 
        watching network programming two or three hours earlier from 
        East Coast stations)

   out-of-town sports: because TV networks often show different 
        sports events (such as NFL games) in different cities, a 
        subscription to an out-of-town network station enables viewers 
        to see sports events that are not televised locally.

    These abuses of the compulsory license damage both the network/
affiliate system and the free market copyright regime. Consider, for 
example, a network affiliate in Sacramento, California, a DMA in which 
there are today no DBS subscribers who are genuinely ``unserved'' 
because both DIRECTV and EchoStar offer the local Sacramento ABC, CBS, 
Fox, and NBC stations by satellite. Nevertheless, for any Sacramento-
area viewer who is technically ``unserved'' under the Grade B intensity 
standard, DIRECTV and EchoStar can scoop the Sacramento stations with 
the stations' own programming by offering distant signals from East 
Coast stations. The Sacramento station--and every other station in the 
Mountain and Pacific Time Zones that has local-to-local service--
therefore loses badly needed local viewers, even though the viewers 
have zero need to obtain a distant signal to watch network programming.
    Similarly, the ability of satellite carriers to offer distant 
stations that carry attractive sports events is a needless infringement 
of the rights of copyright owners, who offer the same product--out-of-
town games--on a free market basis. For example, the NFL has for years 
offered satellite dish owners (at marketplace rates) a package called 
``NFL Sunday Ticket,'' which includes all of the regular season games 
played in the NFL. The distant-signal compulsory license creates a 
needless ``end-around'' this free-market arrangement by permitting 
satellite carriers to retransmit distant network stations for a 
pittance through the compulsory license.
    The House Energy & Commerce Committee has approved a bill that 
would bar any new signups for distant network stations in local-to-
local markets and create transitional procedures for existing distant 
network customers. In the spirit of compromise, on the understanding 
that other important reforms (such as elimination of the two-dish scam) 
will be implemented, and that other ill-advised proposals (such as the 
so-called ``digital white area'' and ``ILLR reform'' proposals) are not 
adopted, NAB believes that such an approach is reasonable.
D. For the Small Number of Markets in Which The DBS Firms Do Not Now 
        Offer Local-to-Local, The FCC Has Repeatedly and Recently 
        Reaffirmed that the Grade B Standard and the ILLR Model Are the 
        Best Tools for Determining Which Households are ``Unserved''
    For the ever-shrinking number of markets in which the DBS firms do 
not offer local-to-local (which will encompass no more than 8 percent 
of U.S. television households by the end of2004 for DirecTV), the Grade 
B intensity standard, implemented via the FCC-endorsed Individual 
Location Longley-Rice (``ILLR'') model, continues to be the logical 
method for predicting which households are unable to receive local 
stations over the air.
    For years, the satellite industry simply ignored the objective 
signal intensity standard that Congress established in 1988, and 
instead used a meaningless subjective standard (``are you satisfied 
with your picture quality?'') that was effectively no standard at all. 
As discussed above, in 1998, the courts found that the satellite 
industry had broken the law by signing up millions of subscribers using 
this illegal method. Rather than coming into compliance, the satellite 
industry raced to the FCC to demand that the Commission alter (in the 
satellite industry's favor) what the DBS firms characterized as an 
``antiquated,'' ``1950s-era'' Grade B standard.
    The FCC carefully considered the engineering data and other 
evidence presented by the satellite industry, but concluded that, in 
fact, there was no basis for changing the Grade B standard. In Re 
Satellite Delivery of Network Signals to Unserved Households for 
Purposes of the Satellite Home Viewer Act, 32-43, Dkt. No. 98-201 
(released Feb. 2, 1999). Although the Grade B standard was originally 
established in the 1950s, the Commission pointed out that it had 
repeatedly re-evaluated the standard during the intervening decades and 
found it to be still sound. Id.,  42. As the Commission observed, many 
of the changes that have occurred since the 1950s have made it easier 
to obtain a picture of acceptable quality with the same strength 
signal: for example, the ``low cost noisy tubes and . . . components'' 
of the 1950s have been replaced by ``modem solid state components that 
produce lower set noise.'' Id.,  41. Overall, the FCC found that the 
``environmental and technical changes that have taken place'' since the 
Grade B standard was first established have moved ``in opposite 
directions and tend to cancel each other out.'' Id.,  42.
    Despite this exhaustive review by the Commission in 1998 and 1999, 
when Congress approved the SHVIA, it directed the Commission to conduct 
yet another proceeding to evaluate whether Grade B intensity is an 
appropriate standard. After carefully evaluating the submissions by all 
interested parties, including engineering data submitted by the 
satellite industry, the Commission recommended that the Grade B 
standard remain unchanged in virtually all respects. In Re Technical 
Standards for Determining Eligibility For Satellite-Delivered Network 
Signals Pursuant To the Satellite Home Viewer Improvement Act, ET Dkt. 
No. 00-90 (released Nov. 29, 2000).
    Similarly, the FCC's ILLR predictive model, first announced in 
1999, grew out of years of Commission experience with the Longley-Rice 
model in other contexts. In Re Satellite Delivery of Network Signals to 
Unserved Households for Purposes of the Satellite Home Viewer Act, at 
 61-88. In response to Congress' directive in the SHVIA, and after 
reviewing all of the satellite industry's submissions, the Commission 
made further refinements to the ILLR model in May 2000 and reaffirmed 
that ILLR is an accurate and reliable model. In Re Establishment of an 
Improved Model for Predicting the Broadcast Television Field Strength 
Received at Individual Locations, ET Docket No. 00-11 (released May 26, 
2000). In doing so, the Commission considered how ILLR predictions 
fared when compared to actual signal intensity measurements at the same 
location, and found that in many cases ILLR actually underpredicts the 
actual signal strength available at particular households--precisely 
the opposite of the satellite industry's claims. Id.
IV. The DBS Industry's Proposal to Expand the Distant-Signal Compulsory 
        License Defies Logic and Would Set Back Local-to-Local Carriage 
        of Digital Signals for Years
    Having elected to deliberately violate the limits that Congress 
imposed on the existing compulsory license unless and until ordered by 
a Federal court to obey them, EchoStar now demands that Congress 
radically expand the distant-signal license they have abused. The 
Committee should reject this irresponsible proposal out of hand.
    In essence, EchoStar asks the Committee to create a brand-new 
compulsory license to permit them to deliver the digital broadcasts of 
the New York and Los Angeles ABC, CBS, Fox, and NBC stations to 
millions of households nationwide, even though (a) the households can 
receive the same programming over the air from their local station's 
analog signal and (b) in the overwhelming majority of cases, EchoStar 
and DirecTV already deliver the same programming via what SBCA 
describes as ``a 100 percent, crystal-clear digital audio and video 
signal'' retransmitted from the local station's analog broadcasts.
    The simple greed behind this proposal is clear, and the tactic is 
familiar. In the 1990s, the DBS industry sought to offer network 
broadcast programming ``on the cheap'' by delivering the analog 
broadcasts of New York and Los Angeles stations nationwide--completely 
bypassing the network/affiliate system that Congress and the FCC have 
worked so hard to foster. (Indeed, in the 1990s satellite companies 
urged Congress to eliminate the ``unserved household'' restriction 
entirely and to permit universal distribution of New York and Los 
Angeles stations in return for payment of a ``surcharge.'') This 
Committee, and Congress as a whole, blocked those maneuvers, instead 
insisting on localism and on marketplace solutions. By standing its 
ground against the ``quick fix'' urged by the DBS industry, Congress 
has fostered the win/win/win result described above: DirecTV and 
EchoStar (and their contractors) dug deep to find technical solutions 
to enable them to offer local-to-local broadcast programming to the 
overwhelming majority of U.S. television households--and soon to all of 
them. (They found these solutions, of course, only after repeatedly 
telling Congress and the FCC that the technical problems were 
unsolvable.)
    EchoStar's current proposal is equally self-serving. EchoStar would 
enjoy a tremendous financial benefit from being able--again ``on the 
cheap''--to deliver the digital broadcasts of New York and Los Angeles 
ABC, CBS, Fox, and NBC stations to many millions of viewers nationwide. 
Instead of investing in delivering local digital broadcasts, as cable 
systems are gradually beginning to do, EchoStar could use a single, 
inexpensive national feed (e.g., of WCBS in New York) to deliver 
digital programming of a particular network around the country. 
Although this gambit would cost the DBS firms virtually nothing, they 
would gain enormously, both in additional customers (at $40, $50 or 
more per month) and in selling additional network packages (at $6 per 
month) to both old and new customers.
    While the ``distant digital'' proposal would be a tremendous 
windfall for EchoStar, it would be a disaster for Congress, the public, 
and broadcasters. As discussed in detail below, the supposed 
``factual'' basis for this proposal--that the broadcast television 
industry has not been diligent in pushing the digital transition--is 
palpable nonsense. And as also described below, this gift to the DBS 
industry would come at a crippling cost in terms of Congress' public 
policy objectives.
A. The Broadcast Industry Has Spent Enormous Sums and Dedicated 
        Extraordinary Efforts to Implementing the Transition to Digital 
        Broadcasting--With 
        Tremendous Success in Rolling Out Digital to the Vast Majority 
        of 
        American TV Households
    Contrary to the satellite industry's ill-informed accusations, 
broadcasters have worked tirelessly to implement the transition to 
digital broadcasting. Thanks to the expenditure of billions of dollars 
and millions of person-hours, broadcasters have built--and are on-air 
with--digital television (``DTV'') facilities in 203 markets that serve 
99.6 percent of all U.S. TV households.\17\ Midway through the 
transition, almost three-quarters--73.7 percent--of U.S. television 
households have access to at least six free, over-the-air digital 
television signals.\18\ Nationwide, 1411 television stations in 203 
markets are delivering free, over-the-air digital signals today.\19\ 
More than 70 million households receive six or more DTV signals; 49 
million households receive nine or more DTV signals; and a full 30 
million households receive 12 or more DTV signals. More digital 
stations are resolving their obstacles and going on the air almost 
daily. The digital transition is working and moving ahead quickly, and 
the claims of the satellite industry to the contrary are empty 
rhetoric, not fact.
---------------------------------------------------------------------------
    \17\ National Association of Broadcasters, DTV Stations in 
Operation, http://www.nab.org/Newsroom/issues/digitaltv/DTVStations.asp 
(last checked Apr. 30, 2004).
    \18\ See Mark R. Fratrik, Ph.D, Reaching the Audience: An Analysis 
of Digital Broadcast Power and Coverage (BIA Financial Network, Oct. 
17, 2003) (prepared for the Association for Maximum Service Television, 
Inc.) (``MSTV Study'').
    \19\ See www.fcc.gov/mb/video/dtvstatus.html (``FCC statistics'').
---------------------------------------------------------------------------
    In the top ten markets, covering 30 percent of U.S. households, all 
top four network affiliates are on-air 38 with licensed full power 
digital facilities and two New York city stations with Special 
Temporary Authority (``STA'') currently covering a significant chunk of 
their service areas and with plans to expand even more. In markets 11-
30 (representing another 24 percent ofU.S. households), all 79 top four 
affiliated stations are on-air--72 with full power licensed digital 
facilities and seven with STAs. Thus, all ABC/CBS/Fox/NBC affiliates in 
the top 30 markets, representing 53.5 percent of all U.S. households, 
are on-air with DTV--110 stations with full power licensed digital 
facilities and nine with STAs.\20\
---------------------------------------------------------------------------
    \20\ Id.
---------------------------------------------------------------------------
    Even as to smaller stations in these markets and stations in 
smaller markets--which have far fewer resources but equally high 
costs--1292 of 1524 stations are on air with digita1,\21\ having 
overcome enormous challenges and in many cases mortgaging their 
stations to do so, despite having no immediate prospect of revenues to 
offset these huge investments.
---------------------------------------------------------------------------
    \21\ Id.
---------------------------------------------------------------------------
    Those who do not understand the digital transition sometimes claim 
that DTV stations operating with STAs broadcast with very low power. 
That is simply wrong. Many stations, particularly those outside the 
largest stations in the largest markets, are ``DTV maximizers,'' i.e., 
are maximizing their power to greatly exceed their analog coverage. 
Many maximizers need only a fourth or less of their maximum (licensed) 
power to cover their entire analog service area. Maximizers operating 
at even much reduced power are still covering 70 percent or more of 
their analog service areas. Almost 19 percent of current DTV stations 
operating pursuant to STAs currently serve more than 100 percent of 
their analog service area with a digital signal.\22\ This number will 
expand exponentially as the transition continues. This high percentage 
is particularly striking given that there are still no FCC rules for 
digital translators or booster stations, which will further expand 
digital signals in rural areas (at still further cost to local 
broadcasters). Free, over-the-air broadcasters take seriously the 
potential for expanding their service area and diminishing the very 
small number of households nationwide that cannot receive local 
signals, and the digital transition will provide an opportunity to 
increase nationwide broadcast service.
---------------------------------------------------------------------------
    \22\ See MSTV Study, supra, at 16.
---------------------------------------------------------------------------
    An authoritative study from last fall shows that on-air DTV 
facilities are serving 92.7 percent of the population served by the 
corresponding analog stations.\23\ The small percentage of viewers who 
do not yet receive a fully replicated digital signal of their local 
television stations is shrinking by the day as broadcasters work hard, 
at great expense, to expand the coverage of their digital stations.
---------------------------------------------------------------------------
    \23\ MSTV Study, supra, at i.
---------------------------------------------------------------------------
    On the programming side, broadcasters, both networks and local 
stations, are providing an extraordinary amount of high-quality DTV and 
high-definition television (``HDTV'') programming to entice viewers to 
join the digital television transition and purchase DTV sets to display 
the glory of dazzling HDTV programs and the multiple offerings of the 
growing DTV multicasts. Three networks offer virtually all their prime 
time programming in HDTV, as well as high-profile specials and sporting 
events, such as

   The Academy Awards

   The Grammys

   11 National Hockey League playoff games

   The Kentucky Derby

   The Super Bowl

   The AFC Championship

   Masters' Golf

   US Open Tennis

   College football

   NCAA Tournament games

   The Stanley Cup

   The NBA Finals

   The primary NFL games of the week

   The entire schedule of Monday Night Football

    PBS is launching its HD Channel, in addition to its multicast 
channels of educational fare. WB is doubling its amount of HD 
programming this fall to account for more than half of its program 
schedule. PAX is multicasting on its digital channels, including prime 
time fare. And now many special effects, like the first-down marker and 
graphics, are also going high definition, to enhance the viewer 
experience and move the transition along faster and faster.
    While it is local stations that bring these national HDTV programs 
to the vast majority of viewers, these local stations also are doing 
more and more on the local level to supplement the network HDTV and 
multicast fare. Examples abound of local HDTV and multicast broadcasts 
(at an enormous cost for full local HD production facilities):

   WRAL-TV produces its local news in HDTV

   Post-Newsweek's Detroit station broadcast live America's 
        Thanksgiving Day Parade in HD

   WRAZ-TV in Durham NC broadcast 10 Carolina Hurricanes hockey 
        games in HD last winter

   KTLA in LA broadcast last January's Rose Parade in HD in a 
        commercial-free broadcast simulcast in Spanish and closed 
        captioned and repeated it throughout the day and distributed it 
        on many Tribune and other stations

   Last April, Belo's Seattle station KING-TV began producing 
        its award-winning local programs Evening Magazine and Northwest 
        Backroads in HDTV. Evening Magazine is daily. These programs 
        are broadcast on Belo's other Seattle and Portland and Spokane 
        stations

   KTLA last March broadcast live LA Clippers and the Lakers in 
        HD. It was the third sports presentation by KTLA, which 
        included two Dodgers games

   Many public TV stations are providing adult and children's 
        education, foreign language programming and gavel-to-gavel 
        coverage of state legislatures

   NBC and its affiliates are planning a local weather/news 
        multicast service

   ABC is multicasting news/public affairs and weather channels 
        at its KFSN station in Fresno, Calif. It plans to replicate 
        this model at the nine other stations it owns.

   WKMG in Orlando plans to broadcast a Web-style screen with 
        local news, weather maps, headlines and rotating live traffic 
        views.

    This ever-increasing variety of DTV and HDTV programming, being 
broadcast to the vast proportion of American households, will attract 
consumers to purchase DTV sets. Another major driver of the transition 
is the FCC's August 2002 Tuner Order, which requires all new television 
sets, on a phased-in basis and starting this summer with the half of 
the largest sets, to have a DTV tuner. As a result, DTV tuners will be 
available in an ever-increasing number of households, thereby further 
hastening the transition.
    In short, the suggestion that broadcasters have somehow failed 
America in the transition to digital broadcasting is demonstrably 
false. Indeed, EchoStar's General Counsel, David Moskowitz, admitted as 
much in testimony before the Judiciary Committee in February: ``I agree 
with you completely [that broadcasters can't be blamed for decisions by 
consumers not to invest in digital sets]. I'm not saying the NAB or the 
broadcasters are at fault.'' \24\
---------------------------------------------------------------------------
    \24\ Testimony of David Moskowitz before the Subcommittee on 
Courts, the Internet, And Intellectual Property of the House Judiciary 
Committee (Feb. 24, 2004).
---------------------------------------------------------------------------
    Moreover, the notion that new compulsory license for ``digital 
white areas'' would improve matters is sheer fantasy. In fact, allowing 
satellite carriers to deliver distant digital (or HD) signals to so-
called ``digital white areas'' would set the stage for a consumer 
nightmare almost identical to what occurred in 1999, when hundreds of 
thousands of households had to switch from (illegally-delivered) 
distant signals to over-the-air reception of local stations.
    The reason is simple: as Congress painfully experienced from 
mountains of letters, e-mails, and phone messages in 1999, viewers who 
are accustomed to receiving all of their TV programming (including 
network stations) by satellite are often enraged when told that they 
must switch to a hybrid system in which they combine satellite 
reception with an off-air antenna or cable service. The import of the 
``distant digital'' proposal is therefore clear: after EchoStar had 
``grabbed'' customers with a distant digital signal, the costs to local 
broadcast stations of reclaiming those viewers would go sky-high, since 
stations would face not only the same financial costs they do now but 
also the high costs of confronting thousands of angry local viewers 
with the need to change their reception setup. EchoStar knows all of 
this, and it fully understands the implication: the ``distant digital'' 
plan would not encourage a smooth digital transition, and would not 
encourage stations to invest in the digital rollout, but would simply 
make it easy for EchoStar to hook customers on (distant) satellite-
delivered digital signals and keep them forever.\25\
---------------------------------------------------------------------------
    \25\ In his oral testimony in February before a subcommittee of the 
House Judiciary Committee, SBCA spokesman (and EchoStar General 
Counsel) David Moskowitz said that once DBS firms begin delivering a 
distant digital signal to a household, they should never have to turn 
off that signal. Far from encouraging stations to expand their digital 
service areas, this naked ``land grab'' would have the opposite effect: 
no matter what they did, stations would have forever lost many of their 
local customers to a distant signal.
---------------------------------------------------------------------------
    If there were any doubt about EchoStar's tenacity in retaining 
distant-signal customers once they begin serving them regardless of the 
legality of doing so--EchoStar's behavior with regard to analog distant 
signals would eliminate it. As a District Court found last year after a 
10-day trial, EchoStar was so determined to retain its illegal distant-
signal customers that, ``when confronted with the prospect of cutting 
off network programming to hundreds of thousands of subscribers,'' the 
key ``EchoStar executives, including [CEO Charles] Ergen and [General 
Counsel] David Moskowitz,'' choose instead ``to break Mr. Ergen's 
promise to the Court'' that it would tum them off. CBS Broad., Inc. v. 
EchoStar Communications Corp., 276 F. Supp. 2d at 1246, 46.
B. The Radical New Compulsory License Demanded by EchoStar Is 
        Unnecessary and Would Do Lasting Damage to Localism
    At all times since 1988, the purpose of the distant-signal license 
has been to make over-the-air broadcast programming available by 
satellite solely as a ``lifeline'' to satellite subscribers that had no 
other options for viewing network programming.\26\ The EchoStar 
proposal would do exactly the opposite: Congress would override normal 
copyright principles to permit DBS companies to transmit distant 
network stations to many millions of additional households, even though 
(1) the households get a strong signal from their local stations over 
the air and (2) in most cases, the DBS firm already offers the local 
analog broadcasts of the same programming, in crisp, digitized form, as 
part of a local-to-local package. The suggestion that Congress needs to 
step in to offer a ``lifeline'' under these circumstances is 
baffling.\27\
---------------------------------------------------------------------------
    \26\ E.g., SHVIA Conference Report, 145 Cong. Rec. H11792 (``the 
specific goal of the 119 license, which is to allow for a life-line 
network television service to those homes beyond the reach of their 
local television stations, must be met by only allowing distant network 
service to those homes which cannot receive the local network 
television stations. Hence, the 'unserved household' limitation that 
has been in the license since its inception.'' Id. (emphasis added).
    \27\ The Committee should be aware that, in the guise of a letter 
seeking advice about how to fill out a Copyright Office form, EchoStar 
sought last year to obtain from the Copyright Office a statement that 
the Copyright Act as now in force already recognizes the ``distant 
digital'' concept. See Letter from David Goodfriend, EchoStar 
Communications Corp. to David O. Carson, General Counsel, Copyright 
Office (June 18, 2003). The Office swiftly, and properly, rebuffed that 
back-door effort. Letter from William J. Roberts to David Goodfriend 
(Aug. 19, 2003).
---------------------------------------------------------------------------
    The consequences of this radical proposal, if adopted, would be 
likely to be grave. According to EchoStar, for example, if a station 
(through no fault of its own, e.g., because of a local zoning obstacle) 
has been unable to go on-air with a digital signal, every household in 
that station's market would be considered ``unserved''--and therefore 
eligible to receive a retransmitted signal from the New York or Los 
Angeles ABC, CBS, Fox, and NBC affiliates' digital broadcasts. In these 
markets, EchoStar would take us back to the dark days of the mid-1990s, 
when, before courts began to intervene, the DBS firms used national 
feeds to deliver ABC, CBS, Fox, and NBC network programming to any 
subscriber who asked for it.\28\ And they would do so even though, in 
most cases, the DBS firms are themselves already delivering the same 
programming by satellite from the local stations. With DBS penetration 
already at more than 20 million households nationwide, and with the 
highest levels of DBS penetration in smaller markets, the impact on the 
viability of local broadcasters could be devastating.\29\ Worse yet, 
based on the misconduct of EchoStar in their retransmission of distant 
analog signals, once EchoStar has begun delivering distant digital 
stations, it will take enormous efforts (and years of struggle) to get 
them to ever stop doing so, even if they have ``promised'' to do so, 
and even if the law squarely requires them to do so.
---------------------------------------------------------------------------
    \28\ In other markets, while stations have gone on-air with their 
digital signals, their coverage area is temporarily reduced for reasons 
entirely beyond their control--such as the destruction by terrorists of 
the World Trade Center and its broadcasting facilities.
    \29\ Of course, the tiny number of genuinely unserved households 
(e.g., those unable to receive Grade B intensity analog signals over 
the air) can receive either an analog or a digital signal from a 
distant affiliate of the same network. See Letter from William J. 
Roberts, U.S. Copyright Office, to David Goodfriend (Aug. 19, 2003).
---------------------------------------------------------------------------
    Granting this enormous government subsidy to the DBS industry, at 
the expense of local broadcasters (and ultimately at the expense of 
local over-the-air audiences), would also have profoundly negative 
long-term consequences for the continued progress of the satellite 
industry. Over-the-air broadcasting is a local phenomenon, and the 
right way to deliver local stations is on a local-to-local basis. In 
their drive to compete with cable, and with each other, DirecTV and 
EchoStar are likely to devise ingenious technical solutions to enable 
them to carry digital broadcasts on a local-to-local basis, just as 
they have--despite their gloomy predictions--found a way to do so for 
analog broadcasts. But rewriting the laws to give EchoStar a cheap, 
short-term, government-mandated ``fix'' will take away much of the 
incentive that would otherwise exist to continue to find creative 
technological solutions. Congress wisely refused to abandon the bedrock 
principles of localism and free market competition in the 1990s, when 
the satellite industry made similar proposals, and Congress should do 
the same now.\30\
---------------------------------------------------------------------------
    \30\ When analog broadcasting ceases several years from now, there 
may-but may not-be a need for a distant-signal compulsory license. If 
the DBS firms are then providing local-to-local broadcasts of local TV 
stations in a digital (or HD) format, for example, there may be no need 
for a distant-signal license at all, or a need only for an extremely 
limited license.
---------------------------------------------------------------------------
    The EchoStar proposal would also sabotage another key objective of 
the SHVIA, namely minimizing unnecessary regulatory differences between 
cable and satellite. If EchoStar could deliver an out-of-town digital 
broadcast to anyone who does not receive a digital broadcast over the 
air, it would have a huge (and wholly unjustifiable) leg up on its 
cable competitors, which are virtually always barred by the FCC's 
network non-duplication rules from any such conduct. See 47 C.P.R. 
Sec. Sec. 76.92-76.97 (1996).
    Finally, it would be particularly inappropriate to grant EchoStar a 
vastly expanded compulsory license when it has shown no respect for the 
rules of the road that Congress placed on the existing license. If 
Congress were to adopt this ill-conceived proposal, it can expect more 
years of controversy, litigation, and--ultimately--millions of angry 
consumers complaining to Congress when their ``distant digital'' 
service is eventually terminated. This Committee should rebuff the 
invitation to participate in such a reckless folly.
V. DBS Carriage of ``Significantly Viewed'' Stations
    The concept of ``significant viewing'' of TV stations--as applied 
to cable carriage--dates back more than 30 years. In 1972, the FCC 
adopted a rule, using data about over-the-air viewing in 1971, to 
establish which television stations were viewed over the air by a 
significant number of households in each community (usually by county). 
Local cable systems that would not otherwise have been allowed to carry 
these stations were permitted to do so on the theory that, if 
significant numbers of viewers could watch a station over the air in a 
given area, cable subscribers in that area should also be able to view 
the station. See 47 C.F.R. Sec. 76.92(f) (exception to ``network 
nonduplication'' rule permitting cable carriage of stations in areas in 
which the stations are significantly viewed).
    The FCC maintains a list of significantly-viewed stations, based on 
standards set forth in 47 C.F.R. Sec. 76.54. If a station is 
significantly viewed in the community served by a cable system, the 
cable operator may carry that station on a copyright-free basis in that 
community under 17 U.S.C. Sec. 111. The Commission has procedures for 
adding stations to the list for additional communities based on new 
data, as well as a waiver procedure by which stations can effectively 
be removed from the list for particular communities. If a station is 
dropped from the list for a particular area, the network nonduplication 
rules once again apply to carriage of that station in that area.
    The local-to-local compulsory license for satellite carriers is 
currently limited to retransmissions within a station's own local 
market, or DMA. The DBS industry has asked Congress to modify the law 
to permit satellite carriers to deliver TV stations outside of their 
own local markets into areas in which the stations are considered 
``significantly viewed'' by the FCC.
    In the spirit of accommodation, NAB does not oppose a carefully-
tailored amendment extending to DBS to ability to retransmit 
``significantly-viewed'' television stations. Any amendment to allow 
DBS firms to retransmit TV stations into ``significantly viewed'' 
areas, however, needs to be consistent with the principles of localism 
that underlie the entire Satellite Home Viewer Improvement Act. Such 
amendments should, to the extent possible, provide the satellite 
industry with the same right to retransmit ``significantly viewed'' 
stations that the cable industry now enjoys, and impose the same 
restrictions now imposed on cable. In addition, given the years of 
violations of existing copyright law and abuse of FCC processes by 
EchoStar, any amendments must be airtight--and create the strongest 
possible incentives to those companies to comply with the law--to 
reduce the risk that a new exception will become the basis for a new 
round of lawbreaking.
    In particular, an amendment to add ``significantly-viewed'' 
stations to the list of those that DBS firms may carry should implement 
the following principles:

    1. Strict enforcement provisions to protect against abuse by DBS 
firms. As Congress is aware, EchoStar has broken a sworn promise to a 
Federal judge to tum off illegal distant-signal subscribers, and in 
many other instances has shown a disregard for compliance with the 
law.\31\ Any ``significantly-viewed'' amendment should guard against a 
new wave of lawbreaking by creating strict, objective, verifiable, and 
enforceable rules about when satellite carriers can deliver out-of-
market signals into ``significantly viewed'' areas. In particular:
---------------------------------------------------------------------------
    \31\ The following very recent examples (from 2003 and 2004) 
illustrate EchoStar's indifference to legal requirements: CBS Broad., 
Inc. v. EchoStar Communications Corp., 276 F. Supp. 2d 1237,  46 (S.D. 
Fla. 2003) (``EchoStar executives, including [CEO Charles] Ergen and 
[General Counsel] David Moskowitz, when confronted with the prospect of 
cutting off network programming to hundreds of thousands of 
subscribers, elected instead to break Mr. Ergen's promise to the 
Court''); In Re Agape Church, Inc. v. EchoStar Communications Corp., 
CSR-6249-M (FCC Media Burea Mar. 16, 2004) (EchoStar violated 
Commission's Order on local-to-local service by unlawfully discouraging 
subscribers from obtaining access to local religious station); In Re 
Tri-State Christian, Inc., Mem. Op. & Order, Dkt. No. CSR-5751 (FCC 
Media Burea Feb. 5, 2004) (same); EchoStar Satellite Corp. v. Brockbank 
Ins. Servs., Inc., No. 00-N-1513, at 3 (D. Colo. Feb. 5, 2004) 
(imposing $30,000 sanction against EchoStar and finding that its 
actions ``rose to the level of conscious wrongdoing'').

   The FCC, and not any DBS company, should make the 
        determination about whether a particular TV station is 
---------------------------------------------------------------------------
        ``significantly viewed'' in a particular community.

   To make it easier to check on their compliance, DBS firms 
        should indicate separately which subscribers are being served 
        under the ``significantly viewed'' provision in their monthly 
        reports to networks listing new local-to-local subscribers..

   If DBS firms violate these simple, objective rules after 
        being notified of the violation, they would forfeit the 
        privilege of delivering stations in that market to 
        ``significantly viewed'' areas outside the market. For example, 
        if EchoStar illegally delivered Washington, D.C. stations to 
        viewers in Florida, falsely claiming that the stations are 
        ``significantly viewed'' over the air there, EchoStar should 
        lose the privilege of retransmitting any Washington, D.C. 
        station outside of the Washington, D.C. DMA. In addition, if 
        the FCC determines that a station is no longer significantly 
        viewed in a defined geographic area, the compulsory license 
        permitting DBS to carry that station should expire shortly 
        thereafter.

   The FCC should be directed to establish expedited 
        enforcement procedures so that affected stations can obtain 
        quick relief from the Commission for violations by a DBS finn. 
        (In the example above, stations in Florida could quickly obtain 
        relief against the unlawful retransmission of Washington, D.C. 
        stations to subscribers in Florida.)

    2. Protection against potentially severe harm to localism. Delivery 
of out-of-market stations to a household should be a supplement to the 
DBS firms' delivery of a viewers' local stations, not a substitute for 
true local-to-local. (This is always true for cable, which always 
offers local stations.) For example, in the case cited by the DBS firms 
in their testimony, delivery by DBS firms of New York City stations to 
``significantly viewed'' areas in the Hartford/New Haven DMA would be 
in addition to DirecTV's and EchoStar's delivery of local Hartford/New 
Haven stations.
    It would be extraordinarily damaging, however, if the DBS firms 
could deliver an out-of market station into a market in which they do 
not offer local-to-local service. For example, if EchoStar could 
deliver out-of-market stations into DMAs in which EchoStar does not 
offer local-to-local, EchoStar subscribers in the latter markets would 
see an out-of-town station on their DBS lineup, but would not see their 
own local stations. Particularly because the DMAs in which local-to-
local is not yet available are generally small markets, the economic 
health, and even the viability, of free, over-the-air local stations 
could be threatened as out-of-town stations siphoned off their local 
viewers.
    For the same reasons, delivery of an out-of-market station in 
digital (or high-definition) format into a market in which the local 
stations are available only in an analog form would be very damaging to 
the local stations in the ``invaded'' market. Congress should therefore 
draft any amendment carefully to ensure that any importation of digital 
signals into a market does not harm the local stations in the market.
    In addition, allowing importation of signals into non-local-to-
local markets (or allowing importation of digital signals into analog-
only local-to-local markets) would damage the incentives for the DBS 
firms to continue expanding the number of markets they serve with local 
to-local. In some small markets, DirecTV and EchoStar could get much of 
the benefit of local-to-local by relying on the ``significantly-
viewed'' exception to deliver stations from neighboring markets. As a 
result, the satellite carriers would have much less reason to invest in 
providing true local-to-local service in currently unserved markets.
    To ensure that expanding the DBS license to include carriage of 
``significantly viewed'' stations does not have these harmful effects, 
therefore, any proposal to do so must permit delivery of stations into 
``significantly-viewed'' areas only if the satellite carrier is already 
providing local-to-local service in those areas. When the DBS firm 
carries the ``significantly viewed'' station in a digital format, it 
should be allowed to import the station into another market into the 
relevant community only if doing so will not unfairly harm the local 
stations--for example, if the DBS firm is already offering the local 
stations in digital.
    Finally, an additional amendment is necessary to put broadcasters' 
carriage negotiations with satellite carriers on the same footing as 
negotiations with cable operators, once both cable and DBS have the 
benefit of delivering stations in ``significantly viewed'' communities. 
The amendment should direct the FCC to amend its regulations to allow 
broadcasters, in appropriate cases, to make their elections between 
retransmission consent and mandatory carriage on a community-by-
community, rather than DMA-wide, basis.
VI. What Congress Should Do This Year
    As the Committee is aware, the local-to-local compulsory license is 
permanent, but Congress has wisely extended the distant-signal license 
(in Section 119 of the Copyright Act) only for five-year increments. 
Given the short legislative calendar and the press of other urgent 
business, Congress may wish simply to extend Section 119, as now in 
force, for another five years.
    If Congress wishes to do anything other than a simple extension of 
the existing distant signal compulsory license, NAB urges:

   No distant signals where local-to-local is available. For 
        the reasons discussed above, Congress should amend the 
        definition of ``unserved household'' to exclude any household 
        whose satellite carrier offers the household's own network 
        stations on a local-to-local basis. There is no logic to 
        interfering with localism--and with basic copyright principles-
        under these circumstances. It makes no sense, for example, to 
        give satellite carriers the right to ``scoop'' local stations 
        on the West Coast (and in the mountain West) by delivering 8 
        Simple Rules, Everybody Loves Raymond, 24, or The Tonight Show 
        two or three hours early, or to permit EchoStar to evade normal 
        copyright restrictions by delivering out-of-town NFL games to 
        local-to-local households without ever negotiating for the 
        rights to do so. (At a minimum, Congress should cease any new 
        signups for distant signals in local-to-local markets, and 
        establish appropriate transition provisions for existing 
        customers who are (under current law) legally receiving distant 
        network signals today.)

   No expansion of the distant-signal compulsory license. 
        Congress should flatly reject any proposal to expand the 
        distant-signal compulsory license, such as the irresponsible 
        ``distant digital'' proposal discussed above. Since the 
        compulsory license is intended only to address ``hardship'' 
        situations in which viewers have no other means of viewing 
        network programming, there is no policy basis for expanding the 
        compulsory license to cover households that receive can view 
        their local station's analog signals over the air. Still less 
        would it make any sense to declare a household to be 
        ``unserved'' when it already receives (or can receive with a 
        phone call) a crisp, high-quality digitized retransmission of 
        their local station's analog broadcasts from DirecTV or 
        EchoStar.

    The Committee not take seriously EchoStar's predictable claims that 
        it lacks the technological capacity over time to offer local 
        digital signals, since--as discussed above--EchoStar and 
        DirecTV are notorious for ``underpredicting'' their ability to 
        solve technological challenges. Moreover, it would be wholly 
        inappropriate to reward companies such as EchoStar, which have 
        knowingly violated the existing law and broken sworn promises 
        to courts about compliance, by broadening the compulsory 
        license they have abused.

   Five-year sunset. Congress should again provide that Section 
        119 will sunset after a five-year period, to permit it to 
        evaluate at the end of that period whether there is any 
        continuing need for a government ``override'' of this type in 
        the free market for copyrighted television programming.

   Stopping the ``two-dish'' scam. As discussed above, Congress 
        should--if the FCC does not do so first--bring a halt to 
        EchoStar's two-dish gambit, which is thwarting Congress' intent 
        to make all stations in each local-to-local market equally 
        available to local viewers.

   Significantly-viewed stations. As an accommodation to the 
        satellite industry, NAB does not oppose adoption of a provision 
        allowing importation, in certain instances, of stations that 
        are considered ``significantly viewed'' in the community to 
        which they are delivered by the DBS firm--provided that the 
        amendment contains strong safeguards (and potent penalties) to 
        ensure against damage to localism.
Conclusion
    With the perspective available after 16 years of experience with 
the Act, Congress should adhere to the same principles it has 
consistently applied: that localism and free-market competition are the 
bedrocks of sound policy concerning any proposal to limit the copyright 
protection enjoyed by free, over-the-air local broadcast stations.
    If Congress makes any change to the existing distant-signal 
license, it should amend the Act to specify that a household that can 
receive its own local stations by satellite from the satellite carrier 
is not ``unserved'' (subject, perhaps, to limited transitional 
provisions). The Committee should flatly reject reckless bids by 
companies like EchoStar--which have scoffed at the law for years--to 
expand the distant-signal license.
    Far from rewarding EchoStar for its indifference to congressional 
mandates, Congress should--if the FCC does not--make clear that 
EchoStar's flouting of ``carry one, carry all'' through its two-dish 
gambit must come to an end. And as it has done in the past, Congress 
should limit any extension of the distant-signal license to a five-year 
period, to enable a fresh review of the appropriateness of continuing 
this major governmental intervention in the free marketplace.
                               Appendix A
           Recent Examples of Local TV Station Public Service
Helping People In Need
WXYZ ``Can Do'' Raises 500,000 Pounds of Food for Food Banks
    WXYZ-TV Detroit (E.W. Scripps-owned ABC affiliate) undertook its 
22nd annual ``Operation Can-Do'' campaign this winter, bringing in more 
than 500 thousand pounds of canned and non-perishable food to help feed 
families and individuals through soup kitchens and food banks in the 
tri-county area. Since it began the program, WXYZ has collected more 
than six million pounds of food, providing more than 20 million meals 
to the hungry of Metropolitan Detroit. (Jan/Feb 2004)
WHSV-TV Builds a Habitat House
    WHSV-TV Harrisonburg, VA (Gray Television-owned ABC affiliate) 
decided the best possible way to celebrate its October 2003 50th 
Anniversary would be to partner with Habitat for Humanity to raise $50 
thousand over the summer to build a house for a needy family. January 
2003 marked the first time that the Staunton-Augusta-Waynesboro Habitat 
affiliate partnered with a television station to build a house and show 
the public the Habitat miracle. WHSV had several fundraisers, including 
production and distribution of a Shenandoah Valley cookbook 
commemorating the station's 50 years of service and the Habitat 
chapter's 10 years of service. In August, WHSV hosted a special benefit 
screening of ``From Here to Eternity,'' which won the Academy Award in 
the same year WSVA-TV (now WHSV) sent out its first broadcast. 
Community members who supported the screening were driven by limousine 
to the theater and entered on a red carpet. WHSV sent out calls for and 
coordinated volunteers throughout the fundraising and building process. 
The station met its goal, the house was built and a grateful family of 
four moved in. (Jan/Feb 2004)
Children
WFAA-TV Collects 82,000 Toys in Four-Week Campaign
    WFAA-TV Dallas/Fort Worth (Belo-owned ABC affiliate) in 2003 ran 
its most successful Santa's Helpers campaign in the 34-year history of 
this program. WFAA was able to collect more than 82,000 toys over the 
course of the four-week campaign, allowing the station to help more 
than 50,000 children in the North Texas area. In 2002 the station 
collected 76,000 toys. Santa's Helpers is promoted on air through 
numerous promos and PSAs, and also by WFAA's chief weathercaster, Troy 
Dungan, who has served as Santa's Helpers spokesman for 28 years. Each 
year, the highlight of the campaign is a ``drive-thru'' event that is 
held in front of the station, where WFAA anchors and reporters greet 
viewers as they drop off toys. After all of the toys have been 
collected, they are distributed to needy children by more than 40 
nonprofit organizations in the Dallas/Fort Worth area. (Jan/Feb 2004)
Healthy Communities
KTTC-TV: 50 Years On-Air, 50 Years Fighting Cancer
    KTTC-TV Rochester, MN (QNI Broadcasting-owned, NBC) celebrated its 
50th anniversary in July and nearly 50 years of partnership with the 
local Eagles Lodge producing and airing a 20-hour telethon to raise 
money for cancer research. Fifty years ago young Rochester television 
sportscaster Bernie Lusk was searching for a way to use the powerful 
new medium of television to make a difference. At a time when the 
battle with polio garnered much attention, Bernie wanted to tackle 
another disease that claimed many lives-cancer. Bernie shared his idea 
with fellow Eagles Lodge members, and the now 50-year-old, totally 
local telethon was born.
    In its first year, the 1954 KTTC/Eagles Cancer Telethon raised 
$3,777. In 2003, $702,900 was raised for the Mayo Clinic, the 
University of Minnesota, and the Hormel Institute of Research. To date 
the telethon has raised more than $9 million dollars. (Nov/Dec 2003)
KLAS-TV Promotes Breast Cancer Awareness
    KLAS-TV Las Vegas (Landmark Broadcasting, CBS) runs the Buddy Check 
8 program asking viewers to call a buddy on the 8th day of the month to 
remind her to do a breast self examination. KBLR-TV (Telemundo) also 
produces the same messages in Spanish. (September 2003)
Helping Animals
KEYE Raises $172,000 for Humane Society
    KEYE-TV Austin, TX (Viacom, CBS) hosted the Austin Humane Society's 
6th Annual Pet Telethon June 20 and 22, raising $172,000 and resulting 
in the adoption of 104 animals. The society runs a no-kill shelter, 
where animals accepted into the adoption program are kept for as long 
as it takes to find them a loving home. The society has saved 
approximately 2,700 animals in the past year alone. (July 2003)
Drug Prevention
Hawaii TV Stations Forego New Network Shows to Blanket Islands with 
        Drug Documentary
    Television stations in the Hawaiian Islands simultaneously aired an 
unprecedented, commercial-free drug documentary at 7 p.m. on September 
24, with network affiliates pre empting the first hour of primetime 
during the networks' debut of their new fall shows. The stations were 
honoring their commitment to help battle Hawaii's biggest drug problem. 
``Ice: Hawaii's Crystal Meth Epidemic,'' produced by Edgy Lee's 
FilmWorks Pacific, details the epic proportions of crystal meth abuse, 
with grassroots reaction and views. Originally conceived as a 30-minute 
show, it was expanded to an hour because of the magnitude of the 
epidemic and originally was to air in August to avoid the fall network 
season. The commercial-free airing agreement did not come without a 
cost. It meant thousands of dollars in lost ad revenues for the 
stations and the canceling or delayed airing of the season premieres of 
``Ed,'' ``60 Minutes II,'' ``My Wife and Kids'' and ``Performing As.'' 
KITV-TV (Hearst Argyle, ABC) general manager Mike Rosenberg estimated 
the loss was as much as $10 thousand per station. Stations that 
simulcast the program included: Honolulu stations KITV-TV (Hearst 
Argyle, ABC), KBFD (Independent), Raycorn Media stations KHNL (NBC) and 
KFVE (WB), KIKU (International Media Group, Independent), Ernrnis 
Communications stations KHON (Fox) and KGMB (CBS) and KWHE 
(Independent). Some stations even added additional ice programming to 
follow Lee's film. Among them were KHON, which showed an hour-long 
panel including Governor Linda Lingle and Lt. Governor James Aiona; and 
KFVE, which aired a half-hour program focusing on teen drug usage. 
(October 2003)
Broadcasters Without Borders
Roanoke Station's Viewers Come Through for Troops
    A six-day promotion at WDBJ-TV Roanoke, VA (Schurz Communications, 
CBS) to gather items such as toiletries and snack foods for American 
troops serving in the Iraq war resulted in more than two tons of 
welcome supplies. Viewers overwhelmed the station and collection points 
at several Roanoke area automobile dealerships with more than 4,000 
pounds of Packages from Horne to be sent overseas. The American Red 
Cross local chapter helped get the goods to the Middle East. ``Thursday 
and Friday afternoons, the cars were bumper to bumper at our front 
door,'' said WDBJ President and General Manager Bob Lee. ``We filled up 
the lobby, and then the packages started to spill over into other areas 
of the building.'' Red Cross and station volunteers sorted the DOD-
approved personal items. Said Lee, ``Who would have thought we would 
end up with more than two tons of merchandise! We were beginning to 
think we'd need our own C-130 for the delivery.'' (April 2003)
Education
KTLA Student Scholarships
    KTLA-TV Los Angeles (Tribune-owned WB affiliate) is launching its 
sixth Annual Stan Chambers Journalism Awards competition a partnership 
with area county departments of education and member school districts. 
The station has invited more than 300 high schools to have their 
seniors submit essays on ``What Matters Most,'' for the opportunity to 
receive scholarships to further their education. Five winners will 
receive $1,000 and a chance to experience work in the KTLA Newsroom. 
Winners will produce videos of their entries, with guidance from KTLA 
News writers, producers and reporters. The program honors KTLA's 
veteran reporter and journalist Stan Chambers for his contributions to 
the community. (Jan/Feb 2004)
KRON-TV's ``Beating the Odds''
    KRON-TV San Francisco's ``Beating the Odds'' is a series of news 
stories and specials reported by anchorwoman Wendy Tokuda and other 
KRON News reporters. Tokuda's ``Beating the Odds'' series features 
extraordinary high school students who are rising above tough 
circumstances. Some are growing up without parents, others are homeless 
and some are raising siblings. All of them want to go to college. The 
stories are tied to a scholarship fund established by KRON and the 
Peninsula Community Foundation to help low-income, high-risk Bay Area 
high school students pay for college. Following each ``Beating the 
Odds'' report, viewers are encouraged to donate to the fund. Since 
1997, the fund has raised more than $1.5 million for students profiled 
in the series. The Foundation waives all its fees, so 100 percent of 
the tax-deductible donations go to the students. KRON is an independent 
station owned by Young Broadcasting. (March 2003)
Belo/Phoenix Launches Statewide Education Initiative
    Belo Broadcasting/Phoenix has launched a six-month, statewide 
initiative on education to address major issues affecting students and 
schools. Running through March, ``Educating Arizona's Families'' 
involves monthly topics ranging from early brain development and 
learning readiness to literacy, accountability, dropout, post-secondary 
education, the teaching profession and the economic impact of education 
on the state. The stations focus on each initiative for one month, 
producing two dozen stories per topic. Weekly public affairs 
programming is directed toward the specific issues being covered each 
month and guests on mid-day newscasts, three times weekly, offer 
insight to parents, caregivers and other viewers. KTVK-TV Phoenix 
(Independent) is driving the initiative through news and daily 
promotional announcements that also air in Tucson on Belo's KMSB-TV 
(Fox) and KTTU-TV (UPN). Promotion spots change monthly and individual 
30-second sponsor announcements address education interests of each 
sponsor. (Nov/Dec 2003)
Protecting the Environment/Endangered Species
Emmis Makes $90,000 Grant to Indianapolis Zoo For Endangered Species
    Radio and television station owner Emmis Communications will donate 
$90,000 to the Indianapolis Zoo for a multi-year conservation research 
project aimed at saving one of the planet's most endangered species, 
the ring-tailed lemur. A portion of the donation will be used to 
research potential problems that could occur from the re-introduction 
of the animals into the wild from zoos around the world, paving the way 
for future reintroduction of the species into their native range. 
(January 2002)
                               Appendix B
               Recent Examples of Misconduct by EchoStar
    1. The owners of the ABC, CBS, Fox, and NBC television networks, 
along with the ABC, CBS, Fox, and NBC Affiliate Associations, sued 
EchoStar in 1998 in the Southern District of Florida for violations of 
the Copyright Act relating to delivery of distant network stations. The 
case was tried to the Hon. William Dimitrouleas for ten days in 
April2002. The Court's Findings of Fact and Conclusions of Law are 
reported at CBS Broadcasting Inc. v. EchoStar Communications 
Corporation, 276 F. Supp. 2d 1247 (S.D. Fla. 2003). The Court found 
that EchoStar had failed to meet its burden of proving that any of its 
1.2 million subscribers to distant network stations met the statutory 
standard. Id.  82. Rejecting testimony provided by EchoStar CEO 
Charles Ergen, U.S. District Court William Dimitrouleas found that 
``(n]o credible evidence was presented to the Court to support the 
contention that EchoStar turned off distant signals for compliance 
reasons . . ..'' Id.  45.
    2. The Court also found that EchoStar had knowingly broken a sworn 
promise to the Court to tum off ineligible subscribers. The Court 
stated:

        It appears that EchoStar executives, including Mr. Ergen and 
        David Moskowitz, when confronted with the prospect of cutting 
        off network programming to hundreds of thousands of 
        subscribers, elected instead to break Mr. Ergen's promise to 
        the Court.

        Id.  46.

    The Court also found that ``when Mr. Moskowitz, an EchoStar 
executive who worked closely on SHVA compliance, was questioned during 
his deposition about the 1999 Decisionmark ILLR analysis, he paused for 
an unusually long period of time and then answered the questions 
concerning the ILLR analysis in a vague manner, unable or unwilling to 
give any details on the results of the analysis or EchoStar's actions 
following the analysis.'' Id.,  47.
    3. In a lawsuit filed by EchoStar claiming antitrust violations for 
alleged conspiracy and boycott by an insurance company, a United States 
District Judge imposed a $30,000 sanction on EchoStar under the Court's 
inherent authority to punish discovery misconduct. Order, EchoStar 
Satellite Corp. v. Brockbank Ins. Servs., Inc., No. 00-N-1513 (D. Colo. 
Feb. 5, 2004). The Court found that EchoStar's action ``rose to the 
level of conscious wrongdoing.'' Id. at 23. With respect to testimony 
by EchoStar's General Counsel, David Moskowitz, who was required to 
present knowledgeable testimony as EchoStar's designated spokesperson, 
the Court found that ``either Mr. Moskowitz was not knowledgeable or he 
was not candid.'' Id. at 22. The Court also found that Mr. Moskowitz' 
testimony was ``evasive[].'' Id. at 22 n.16.
    4. In a 2002 proceeding, the FCC's Media Bureau found that EchoStar 
had, in numerous respects, violated the SHVIA through its practices 
relating to delivery of certain local television stations in a manner 
requiring subscribers to obtain a second satellite dish. Declaratory 
Ruling & Order, In re National Ass'n of Broadcasters and Ass'n of Local 
Television Stations: Request for Modification or Clarification of 
Broadcast Carriage Rules for Satellite Carriers, Docket No. CSR-5865-Z, 
17 FCC Red 6065 (2002). See id.  12 (``EchoStar's ``two dish'' plan, 
as implemented, violates both the Act and the Commission's rules.''); 
id.  25 (``EchoStar's 'two-dish' plan violates the contiguous channel 
placement requirement of the statute . . .''); id.  34 (``We cannot 
consider or grant a waiver insofar as EchoStar's actions directly 
violate the statute.''); id.  35 (``Given our concerns about 
EchoStar's violations, and the severe impact they have on certain local 
stations and subscribers, EchoStar is required to submit a Compliance 
Report and Plan within 30 days after release of this Order.'')
    5. Since the Commission's 2002 ruling, EchoStar has, on many 
occasions, violated even the minimal requirements imposed by the FCC 
for carriage of some (but not all) local stations through use of a 
second dish. Among other things, EchoStar has discouraged subscribers 
from obtaining a second dish, falsely told subscribers they would have 
to pay for a second dish, and falsely stated that customers could not 
have a second dish installed at the time of their original 
installation. In re University Broadcasting, Inc. v. EchoStar 
Communications Corp., Mem. Op. & Order, Dkt. No CSR-6007-M (Feb. 20, 
2003); In Re Entravision Holdings, LLC, Mem. Order & Op., Dkt. No. CSC-
389 (April15, 2002); In Re Tri-State Christian, Inc., Mem. Op. & Order, 
Dkt. No. CSR-5751 (Feb. 5, 2004).
    6. In its April 2002 Declaratory Ruling & Order, the FCC Media 
Bureau provided the following summary of earlier instances in which the 
Commission had sanctioned EchoStar for illegal or improper conduct:

        ``EchoStar has previously been fined by the Commission for rule 
        violations and admonished for its 'disingenuous' behavior and 
        lack of candor. In June 1998, the Commission fined EchoStar, 
        and its subsidiary Directsat, the maximum forfeiture amount 
        permitted under the Commission's rules for operating satellites 
        from non authorized locations. . . . The FCC justified the 
        forfeiture amount based on EchoStar's degree of misconduct, 
        lack of voluntary disclosure and continuing violation of the 
        Commission's rules. In November 1999, EchoStar tried to 
        disregard its public interest programming requirements by 
        placing all of its public interest programming on secondary 
        satellites in violation of the Commission's DBS rules. See 
        American Distance Education Consortium Request for an Expedited 
        Declaratory Ruling and Informal Complaint, Declaratory Ruling 
        and Order, 14 FCC Red 19976 (1999). In this instance, the 
        Commission assessed a forfeiture against EchoStar, finding that 
        it had willfully violated the Communications Act and the 
        Commission's rules, that it had been 'disingenuous' in its 
        legal interpretations, and that none of the circumstances 
        EchoStar presented supported mitigation of the forfeiture. In 
        the Matter of EchoStar Satellite Corporation, Notice of 
        Apparent Liability for Forfeiture, 15 FCC Red 5557, 5558-59 (EB 
        2000). In August 2001, the Commission found that 'EchoStar 
        failed in its duty of candor' by withholding information from 
        the Commission. See EchoStar Satellite Corporation v. Young 
        Broadcasting, Inc., Memorandum Opinion and Order, 16 FCC Red 
        15070, 15075 (CSB 2001).''

        Id.  37, n.116.

    7. In 2001, EchoStar Satellite Corporation filed a complaint at the 
FCC alleging that Young Broadcasting has ``breached its obligation to 
negotiate in good faith terms for EchoStar's local retransmission'' of 
Young's ABC and NBC affiliates. In a decision in that proceeding, the 
Commission found that:

        ``EchoStar failed in its duty of candor to the Commission. 
        EchoStar began publicly disclosing on March 19, 2001, portions 
        of the documents for which it sought confidentiality in their 
        entirey, yet failed to apprise the Commission of this fact for 
        23 days until it filed its request for modification.''

    EchoStar Satellite Corp. v. Young Broadcasting, Inc., 16 FCC Red. 
15070 (Cable Services Bureau 2001).
    The Commission also found that EchoStar's conduct ``constituted an 
abuse of the Commission's processes.'' Id.
    8. In March 1999, the United States District Court for the District 
of Colorado (Nottingham, J.) granted a request by broadcaster parties 
to transfer to Florida a lawsuit that EchoStar had filed in Colorado, 
finding that EchoStar had engaged in ``flagrant forum-shopping.'' 
Hearing Transcript, EchoStar Communications Corp. v. CBS Broadcasting 
Inc., No. 98-2285 at 21 (D. Colo. Mar. 24, 1999).

    The Chairman. Thank you.
    Mr. Hartenstein?

         STATEMENT OF EDDY HARTENSTEIN, VICE CHAIRMAN, 
                       THE DIRECTV GROUP

    Mr. Hartenstein. Chairman McCain and Members of this 
Committee, my name's Eddy Hartenstein. I'm the Vice Chairman of 
the DIRECTV Group. And it's my great honor and pleasure to be 
here today, and I thank you for allowing me to testify on 
behalf of DIRECTV regarding the SHVIA reauthorization. The 
Members of this Committee, even if you didn't vote for it, 
deserve a great deal of credit for creating interest in, and 
ultimately creating competition in, the subscription television 
industry.
    SHVIA, which you helped enact, extended a compulsory 
copyright license to the retransmission of local television 
signals within each station's local market, known as local-
into-local. This, combined with improved technology, has 
allowed satellite operators to offer a programming service much 
more comparable to that offered by cable, unleashing, for the 
first time, real competition in the subscription television 
market.
    In particular, the ability to offer local-into-local 
service has enabled satellite operators such as ourselves to 
offer a full slate of quality programming comparable to cable 
offerings. With this morning's successful launch, just about an 
hour ago, of our DIRECTV 7S spot-beam satellite, we will soon 
be able to provide local-into-local service in just over a 
hundred DMAs nationwide. And we also have pending, before the 
FCC, other proposals that'll give us the capacity to reach 130 
DMAs by the end of this year, and maybe even as soon as this 
summer. At that point in time, just a few months away, we'll be 
offering local broadcast channels in markets serving 92 percent 
of American television households.
    The results have been nothing short of astounding. When 
SHVIA was enacted in 1999, the DBS industry, as a whole, had 10 
million customers. In the last 5 years, that number has more 
than doubled, reaching, collectively, between DIRECTV and 
EchoStar, 22 million subscribers, of which DIRECTV serves over 
12 million. The increased competition to cable is, in the large 
part, due to our ability to retransmit local-into-local 
signals. In other words, SHVIA has been an extraordinary 
success, and we hope Congress will build on its success through 
this opportunity.
    We know it's difficult and a complex issue, and we also 
know that this is a very busy legislative session, and this 
country has a lot of other issues that are extremely important. 
Congress does not have a lot of time to act, and with this 
realization in mind, we've been meeting with representatives of 
the broadcast industry to see if we could reach a common ground 
in some of the issues associated with SHVIA reauthorization.
    The discussions are ongoing, but we have been able to find 
some common ground, at least conceptually, on several basic 
issues.
    Number one, legislation should extend satellite operators' 
ability to import distance signals for at least 5 years, if not 
permanently. Legislation should allow, subject to some 
limitations, satellite operators to offer the same out-of-
market significantly viewed stations that cable operators 
already offer today.
    Next, legislation should extend for 5 years existing 
retransmission consent exemption for distance network signals. 
Legislation should extend for 5 years the existing statutory 
provision prohibiting television stations from entering into 
the exclusive rate transmission consent agreements. The 
legislation should extend the good faith negotiating 
requirement to distributors and broadcasters, alike.
    Next, legislation should provide a mechanism for 
grandfathered distant signal subscribers to choose between 
distant and local signals. Legislation should also gradually 
implement a no-distance-where-local concept, whereby satellite 
operators cannot offer new subscribers distance signals where 
local-into-local signals are available. In doing so, however, 
legislation must ensure that existing subscribers with both 
distant and local-into-local service get to keep both.
    Finally, legislation should clarify that ``carry one, carry 
all'' means that satellite operators cannot split local analog 
or local digital signals, respectively, in one market between 
two dishes.
    Now, do these principles reflect everything DIRECTV would 
want from SHVIA reauthorization? Well, no, of course not. We 
still think, for example, that Congress should authorize a 
distance signal compulsory license on a permanent basis so that 
we don't find ourselves, once again, discussing these very same 
issues in another 5 years.
    All in all, we think that these principles represent a 
reasonable compromise between the two parties and two entities 
and two industries that entered these discussions with very 
different points of view. We think these principles represent a 
modest improvement over current law. Yet I must point out that, 
although the issue is outside the Committee's jurisdiction, any 
SHVIA reauthorization that includes a satellite-specific 
royalty fee hike would not--I repeat, not--represent an 
improvement over current law.
    Others sitting at this table have their own ideas and will 
doubtless submit their own proposals, if they haven't already 
done so. That's as it should be. That's this great American 
process. Their ideas, like ours, must stand or fall on their 
own merits. DIRECTV looks forward to working through these 
issues with the Committee to craft the best possible 
legislation to continue SHVIA's pro-competitive legacy.
    In conclusion, I would like to thank you for all that 
Congress has done to nurture the satellite television industry 
as a vibrant competitor in the subscription television market. 
And with your help, we'll continue to provide the highest 
quality, best priced, competitive service to consumers across 
America.
    I'm happy to take your questions later. Thank you.
    [The prepared statement of Mr. Hartenstein follows:]

        Prepared Statement of Eddy Hartenstein, Vice Chairman, 
                           The DIRECTV Group
    Chairman McCain, Senator Hollings, and members of the Committee, my 
name is Eddy Hartenstein and I am the Vice Chairman of The DIRECTV 
Group, Inc. It is my great honor and pleasure to be here today and I 
thank you for allowing me to testify on behalf of DIRECTV regarding the 
reauthorization of the Satellite Home Viewer Improvement Act 
(``SHVIA'').
    This is a return visit for me, as I testified in front of this 
Committee in 1999 when Congress was deliberating SHVIA. I am pleased to 
return to report on the progress that the Direct Broadcast Satellite 
(``DBS'') industry has made as a competitor to cable since that time.
    The members of this Committee deserve a great deal of credit for 
their role in creating competition in the subscription television 
industry. SHVIA, which you helped enact, extended a compulsory 
copyright license to the retransmission of local television signals 
within each station's local market (known as ``local-into-local''). 
This, combined with improved technology such as high power DBS 
satellites, digital signal compression and small receive dishes, has 
allowed satellite operators to offer a programming service more 
comparable to that offered by cable, unleashing for the first time real 
competition in the subscription television market.
    In particular, the ability to offer local-into-local service has 
enabled satellite operators to offer a full slate of quality 
programming comparable to cable offerings. With this morning's 
successful launch of our DIRECTV 7S spot beam satellite we will soon 
provide local-into-local service in just over 100 DMAs nationwide. We 
also have pending before the FCC other proposals that will give us the 
capacity to reach 130 DMAs by the end of this year--and maybe even as 
soon as this summer. At that time we will be offering local broadcast 
channels in markets serving 92 percent of American television 
households. In coming years, we plan to continue rolling out local-
into-local service in as many markets as we possibly can.
    The results have been nothing short of astounding. When SHVIA was 
enacted in 1999, the DBS industry had 10 million subscribers. In the 
last five years, that number has more than doubled, reaching 22 million 
subscribers, of which DIRECTV serves over 12 million. The result is 
that, while cable still has about 66 million subscribers, DBS has 
played at least some small part in limiting cable price increases and 
forcing cable companies to provide better customer service, improved 
content, and digital services. We believe that none of this would have 
been possible without more robust DBS competition, and that DBS 
competition in turn would not have been possible without SHVIA.
    In other words, SHVIA has been an extraordinary success. And we 
hope Congress will build on its success.
    But we know that SHVIA is a difficult and complex issue, and we 
also know that, in this busy legislative session, Congress does not 
have a lot of time to act. With this realization in mind, we have been 
meeting with representatives of the broadcast industry over the last 
month or so to see if we could reach common ground on some of the 
issues associated with SHVIA reauthorization. We thought that, if we 
could reconcile our differences on these issues, the end result would 
likely represent sound and reasonable public policy.
    These discussions are still ongoing. But we have been able to find 
some common ground, at least conceptually, on several basic SHVIA 
issues. Among these issues are the following:

   Legislation should extend satellite operators' ability to 
        import distant signals for five years.

   Legislation should allow, subject to some limitations, 
        satellite operators to offer the same out-of-market 
        ``significantly viewed'' stations that cable operators already 
        offer.

   Legislation should extend for five years the existing 
        satellite carrier retransmission consent exemption for distant 
        signal stations.

   Legislation should extend for five years the existing 
        statutory provision prohibiting television stations from 
        entering into exclusive retransmission consent agreements.

   Legislation should extend the good faith negotiating 
        requirement to all multichannel video providers.

   Legislation should provide some sort of mechanism for 
        ``grandfathered'' distant signal subscribers (also known as 
        ``Grade B Doughnut'' subscribers) to choose between distant and 
        local-into-local signals.

   Legislation should gradually implement a ``no-distant-where-
        local'' concept, whereby satellite operators cannot offer new 
        subscribers distant signals where local-into-local signals are 
        available. In doing so, however, legislation must ensure that 
        existing subscribers with both distant and local-into-local 
        service get to keep both.

   Finally, legislation should clarify that ``carry one carry 
        all'' means that satellite carriers may not ``split'' local 
        analog or local digital signals, respectively, in one market 
        between two dishes.

    Do these principles reflect everything DIRECTV would want from 
SHVIA reauthorization? Of course not. We still think, for example, that 
Congress should reauthorize the distant signal compulsory license on a 
permanent basis, so that we don't find ourselves once again discussing 
these same issues in five years. But all in all, we think that these 
principles represent a reasonable compromise between two parties that 
entered these discussions with very different points of view. We think 
these principles represent a modest improvement over current law. Yet I 
must point out that--although the issue is outside of this Committee's 
jurisdiction--any SHVIA reauthorization that includes a satellite-
specific royalty fee hike would not represent an improvement over 
current law.
    Others, perhaps including some at this table, have their own ideas, 
and will doubtless submit their own proposals if they have not already 
done so. That is as it should be. Their ideas--like ours--must stand or 
fall on their own merits. DIRECTV looks forward to working through 
these issues with the Committee to craft the best possible legislation 
to continue SHVIA's pro-competitive legacy.
Conclusion
    In conclusion, Chairman McCain and members of the Committee, I 
would like to thank you for all that Congress has done to nurture the 
satellite television industry as a vibrant competitor in the 
subscription television market. With your help, we will continue to 
provide the highest quality, best-priced competitive service to 
consumers.
    I am happy to take your questions.

    Senator Sununu [presiding]. Thank you.
    And Ms. De Leon?

          STATEMENT OF ARACELI DeLEON, VICE PRESIDENT

 AND GENERAL MANAGER OF STATIONS KDRX-TV, PHOENIX AND KHRR-TV, 
                        TUCSON, ARIZONA

    Ms. DeLeon. Thank you. Good morning.
    Good morning to Chairman McCain and the Members of the 
Senate Commerce Committee. My name is Araceli DeLeon, and I'm 
the General Manager of Telemundo Phoenix and Telemundo Tucson 
Channel 40, which also includes Digital Channel 42. It's an 
honor and a privilege to appear before you today to address an 
issue of vital importance to Telemundo's Spanish language 
broadcasters generally and our Nation's growing Hispanic 
population.
    It is critical that Congress ensures that DBS providers do 
not discriminate against Spanish language broadcasters and 
their predominantly Spanish-speaking audiences by requiring 
these viewers to use a second dish, which most English language 
broadcast programming is primarily on a primary dish. This 
discriminatory practice is a direct threat to media diversity. 
It undermines our ability to serve the rapid-growing Spanish 
language population, and it has no place in our communications 
laws or in our society.
    The two-dish policy used by EchoStar/DISH Network in many 
markets violates SHVIA's nondiscrimination principle and it's 
``carry one, carry all'' rule, which provides all broadcasters 
in a market with equal access to potential viewers served by 
satellite carriers. The purpose of ``carry one, carry all'' is 
to prevent satellite carriers from carrying only the most 
popular local stations, and depriving other less-popular 
stations with access to potential viewers in their service 
areas. This policy preserves free television and promotes 
diverse sources of news and information. Telemundo's local 
broadcast stations are the very type of stations that Congress 
sought to protect with the ``carry one, carry all.'' A 
discriminatory two-dish policy circumvents the ``carry one, 
carry all.''
    The real victims in this discriminatory practice are the 
Spanish-speaking viewers. This community is paying hard-earned 
dollars to have access to Spanish language news and 
programming, and they should not be burdened with confusing 
sales practices forcing them to take additional steps, to pay 
additional charges, just to get local news and programming in 
their native language. Indeed, consumers generally are not even 
notified or informed at the time of purchase or installation 
that they need a second dish in order to receive Telemundo.
    We are working hard to make Telemundo the premier outlet 
for Spanish language programming, local news, and information 
in the Tucson and Phoenix communities. For many viewers, 
Telemundo and other Spanish language broadcasters urge their 
ability to participate fully and receive critical information 
concerning quality-of-life issues and their respective 
communities. From health information to elections, and 
education to employment opportunity, it is critical to the 
entire community that everyone has an understandable source of 
news and information about their local community. Satellite 
carriage is essential to fulfilling that mission.
    Last week, the House Energy and Commerce Committee's 
Subcommittee on Telecommunications and the Internet approved 
SHVIA reorganization legislation that will eliminate the two-
dish discriminatory practices. That legislation requires 
satellite carriers offering local-into-local service in the 
market to all local broadcast stations in that market available 
to subscribers on one receive dish. The DBS providers would be 
free to use another dish, if necessary, to accommodate capacity 
limits, but it would no longer be permitted to discriminate 
against Spanish language, religious, or public local 
broadcasters, or the Spanish-speaking community. Telemundo 
respectfully urges this Committee to adopt similar language in 
its SHVIA reauthorization.
    Thank you.
    [The prepared statement of Ms. DeLeon follows:]

   Prepared Statement of Araceli DeLeon, Vice President and General 
   Manager of Stations KDRX-TV, Phoenix, and KHRR-TV, Tucson, Arizona
    Chairman McCain, Senator Hollings, and Members of the Senate 
Commerce Committee. My name is Araceli DeLeon, and I am Vice President 
and General Manager of Station KDRX TV (Telemundo Channel 48) in 
Phoenix, and KHRR-TV (Telemundo Channel 40) in Tucson. It is an honor 
and a privilege to appear before you today to address an issue of vital 
importance to Telemundo, Spanish language broadcasters generally, and 
our Nation's growing Hispanic population: the need to ensure that DBS 
providers do not discriminate against Spanish language broadcasters and 
their predominantly Spanish-speaking audiences by requiring these 
viewers to use a second dish, reserved for ``less popular'' 
programming, all too often translated to include local Spanish language 
broadcast programming. This discriminatory practice is a direct threat 
to media diversity and to the imperative of serving the rapidly growing 
Spanish-speaking population, especially in states such as my home state 
of Arizona. It has no place under our communications laws or in our 
society. Unfortunately, this is not just a theoretical concern; it is a 
real problem that I have encountered personally.
    In providing local-into-local service under the Satellite Home 
Viewer Improvement Act (``SHVIA''), EchoStar has adopted a ``two-dish'' 
policy for local television stations in many Designated Market Areas 
(``DMAs''). Under EchoStar's two-dish plan, subscribers who want to 
view all local television stations in a DMA must obtain and install two 
receive dishes. To date, most subscribers have installed only the 
single main dish, which is the dish that receives signals from 
EchoStar's continental United States (``CONUS'') satellites. The CONUS 
satellites carry all local English language commercial broadcast 
network affiliates (ABC, CBS, NBC, Fox, UPN and WB) in the Station's 
DMA, as well as other EchoStar non-broadcast programming, including 
basic cable programming networks, premium services such as HBO and 
sports packages, and pay per view and adult content services. In 
contrast, EchoStar carries local television stations that EchoStar 
deems ``less popular'' on secondary ``wing'' satellites.\1\ Relatively 
few subscribers have the capability to receive signals from the 
``wing'' satellites, because subscribers who wish to receive these 
signals must first obtain a second receive dish. EchoStar's practice of 
requiring subscribers to obtain a second dish to receive local Spanish 
language programming that they already pay to receive discriminates 
against local Spanish language broadcasters and Spanish-speaking 
subscribers in violation of SHVIA's nondiscriminatory principles, as 
well as the ``carry one, carry all'' requirement.
---------------------------------------------------------------------------
    \1\ Declaratory Ruling, 17 FCC Red 6069, citing ``EchoStar Subs 
Will Need Dish for Some New Local Stations,'' Satellite Business News, 
Fax Update, Vol. 7, No. 139 (Dec. 17, 2001) (quoting an EchoStar 
executive who stated, ``If the customer wants the less popular 
channels, they will need a second dish'').
---------------------------------------------------------------------------
    The 2000 Census revealed that 12.4 percent of the U.S. population 
is Hispanic, an increase of almost 60 percent from 1990.\2\ The Census 
Bureau estimates that by 2020, the U.S. Hispanic population will grow 
to represent 17.8 percent of the U.S. population, and by 2050 Hispanics 
will account for 24.4 percent of our Nation's population.\3\ As our 
Nation's Hispanic population continues to grow, local Spanish language 
television is becoming an increasingly important source of news and 
information nationally.
---------------------------------------------------------------------------
    \2\ U.S. Census Bureau, ``The Hispanic Population,'' Issued May 
2001, U.S. Department of Commerce, Economics and Statistics 
Administration.
    \3\ U.S. Census Bureau, 2004, ``U.S. Interim Projections by Age, 
Sex, Race, and Hispanic Origin,'' http://www.census.gov/ipc/www/
usinterimproj/ (rel. March 18, 2004).
---------------------------------------------------------------------------
    Telemundo is responding to this growing need. Telemundo was 
launched in 1987 as a national Spanish language broadcast network, 
providing original programming and vitally important local news to 
Spanish-speaking viewers across the United States. Telemundo's owned 
and operated stations currently serve 59 percent of all Hispanic 
households in the United States, and provide 150 hours of local news 
weekly to our local communities.
    In Arizona, I manage both the Phoenix and Tucson Telemundo 
Stations. Our stations are relatively new, and we are working hard to 
make them premier outlets for Spanish language programming, news, and 
information in the Tucson and Phoenix communities. I am pleased to tell 
you we have had great success to date. Not only do our Tucson and 
Phoenix Telemundo stations provide daily local news programming, but we 
also provide a strong commitment to public service in the form of 
public service announcements, and we continue to increase our 
participation in our local communities by supporting important 
community activities and initiatives. For instance, in Phoenix, 
Telemundo 48 continues to sponsor the Summer Safety Campaign, where, 
working with Phoenix Fire Fighters, we are combating summer-time 
increases in incidents of drowning by promoting awareness among our 
Hispanic viewers of the dangers posed by swimming pools for children 
during the summer. We give our viewers weekly tips in order to keep 
this problem from becoming even more widespread. In Tucson, Telemundo 
40 partners with the Tucson Police Officer's Association to increase 
awareness about missing children, and to educate parents about the 
steps they can take to help protect their children by fingerprinting 
them and taking their picture. Both stations participate in numerous 
community and cultural events throughout the year.
    As a network formed in 1987, Telemundo is still young, but growing, 
just like the U.S. Hispanic population. Our ratings continue to grow, 
our popularity continues to grow, and we are proud of the work we have 
done to improve and increase Telemundo's reach within the Hispanic 
community. EchoStar's ``popularity'' practices, however, utterly ignore 
Telemundo's growth and increasing popularity and undermine Telemundo's 
efforts to serve Spanish-speakers by effectively closing off satellite 
subscribers to our programming.
    Until just last week, EchoStar had placed almost all of Telemundo's 
Stations, including our Tucson station, on wing satellites, along with 
virtually every other Spanish language station in that station's DMA. 
EchoStar has just switched several Telemundo stations from its second 
dish to its primary dish.\4\ Unquestionably, this is a welcome 
development for which we commend EchoStar. However, this is far too 
important a matter to be left to the discretion of a DBS provider. 
Congress must ensure that DBS operators provide nondiscriminatory 
treatment to all local broadcast stations carried as part of their 
local-into-local service.
---------------------------------------------------------------------------
    \4\ San Antonio, Los Angeles, Dallas, Albuquerque, Tucson and 
Phoenix (KPHZ-TV Ch. 11, Holbrook, AZ, is the Telemundo station carried 
by EchoStar for the Phoenix DMA) will be received by EchoStar 
subscribers through their primary dish effective April 21, 2004.
---------------------------------------------------------------------------
    SHVIA requires satellite carriers to carry local broadcast signals 
in a nondiscriminatory manner.\5\ The essence of Telemundo's concern 
with EchoStar's two-dish policy, ostensibly based on EchoStar's 
assessment of a station's popularity, is that it has an unlawful 
discriminatory effect on Spanish language stations and Spanish-speaking 
subscribers. As the Federal Communications Commission itself has 
recognized,\6\ in SHVIA, Congress prohibited satellite carriers from 
requiring subscribers to obtain a second dish to receive some local 
signals if such a requirement would have a discriminatory effect on 
local broadcasters.\7\
---------------------------------------------------------------------------
    \5\ 47. U.S.C. 338(d) (requiring satellite carriers to provide 
subscribers' access to local signals in a nondiscriminatory manner).
    \6\ In the Matter of Implementation of the Satellite Home Viewer 
Improvement Act of 1999, Order on Reconsideration, 16 FCC Red 16544, 
16566 (2001).
    \7\ 47. U.S.C. 338(d).
---------------------------------------------------------------------------
    The issue is whether the de facto segregation of local television 
stations on the basis of language is a prohibited ``discriminatory 
effect.'' The answer is obvious. EchoStar's satellite-assignment policy 
has a disparate adverse effect on Spanish-speaking stations and 
Spanish-speaking subscribers, because it results all too frequently in 
the placement of Spanish language stations on satellites that require 
separate receive dishes, while all English language ABC, CBS, NBC, Fox, 
UPN and WB affiliates remain accessible to all subscribers via their 
single main satellite dish. Spanish-speaking subscribers, who are 
overwhelmingly Hispanic, are required to obtain and install a second 
dish to receive local Spanish language television programming. This 
policy has a discriminatory effect because all subscribers in a market 
have the reception equipment necessary to access the ``more popular'' 
English language network affiliates, but only those subscribers that 
request and install an additional dish are able to access Spanish 
language broadcast stations, such as Telemundo's Stations. The 
discriminatory effect is particularly pernicious because it affects a 
group-Spanish-speaking subscribers-more likely to encounter language 
barriers while navigating EchoStar's obscure and cumbersome process of 
arranging for the installation of a second dish.
    Putting aside for the moment the discriminatory effect of 
EchoStar's two-dish policy on Spanish-speaking subscribers, the more 
general notion that it is permissible to discriminate between local 
television stations on the basis of popularity is also inconsistent 
with the very purpose of SHVIA. SHVIA includes what is referred to as 
the ``carry one, carry all'' rule,\8\ which requires a satellite 
carrier carrying one station in a market to carry all stations in that 
market. The purpose of the ``carry one, carry all'' rule is to prevent 
satellite carriers from carrying only the most popular local stations, 
and depriving other less popular stations with access to potential 
viewers in their service areas.\9\ By adopting the ``carry one, carry 
all'' rule, Congress intended to ``preserve free television for those 
not served by satellite or cable systems and to promote widespread 
dissemination of information from a multiplicity of sources.'' \10\ 
Congress determined that without such a rule (1) satellite carriers 
would continue to deny carriage to significant numbers of independent 
stations in markets where they choose to offer local-into-local 
service, and (2) non-carried stations in those markets would be harmed 
by losing access to parts of their potential audiences.\11\ Telemundo's 
complaint against EchoStar's two-dish policy thus goes to the essence 
of the ``carry one, carry all'' rule. Telemundo's stations, which 
broadcast Spanish language news, information, and entertainment 
programming for a largely Spanish-speaking audience, are the very type 
of broadcast stations that Congress intended to preserve and to promote 
with SHVIA. EchoStar's two-dish policy, however, intentionally and 
pervasively deprives the stations of access to parts of their potential 
local audiences. It harms consumers because subscribers who do not have 
a second dish are unable to receive the programming of all local 
broadcast stations, and subscribers who wish to receive all such local 
stations must go through the trouble of contacting EchoStar to order 
the second dish with the attendant burdens and confusion that entails.
---------------------------------------------------------------------------
    \8\ 47 U.S.C. Sec. 338(a)(1).
    \9\ See Joint Explanatory Statement of the Committee of Conference 
on HR. 1554, 106th Cong., H.R. Conf. Rep. No. 106-464, at 102 (1999).
    \10\ Id. at 101.
    \11\ Id. at 102.
---------------------------------------------------------------------------
    Congress, in adopting SHVIA's ``carry one, carry all'' rule, 
recognized that subscribers might as a practical matter not be willing 
to endure the burden of installing the requisite additional equipment 
to receive local channels if not carried by satellite carriers: 
``Although the conferees expect that subscribers who receive no 
broadcast signals at all from their satellite service may install 
antennas or subscribe to cable service in addition to satellite 
service, the Conference Committee is less sanguine that subscribers who 
receive network signals and hundreds of other programming choices from 
their satellite carrier will undertake such trouble and expense to 
obtain over-the-air signals from independent broadcast stations.'' \12\ 
By analogy, it is overly optimistic to expect that subscribers will 
obtain second dishes if they can receive all local English language 
network signals and hundreds of other programming choices using the 
main dish alone.
---------------------------------------------------------------------------
    \12\ Id. at 102 (1999).
---------------------------------------------------------------------------
    In enacting SHVIA, Congress intended to ensure that satellite 
carriers provide all local stations in a market without discrimination. 
Requiring subscribers to install additional equipment to receive local 
Spanish language stations but not local English language stations 
constitutes illegal discrimination against alternative media and this 
country's growing Hispanic population. Such discrimination is 
unacceptable, and has no place in a carriage scheme carried out by a 
company utilizing the public's spectrum.
    Telemundo is striving to provide Spanish language programming to 
our nation, and to Spanish-speakers eager for the additional content, 
news, and information that a unique service like Telemundo and local 
Spanish language broadcasting generally can provide. EchoStar is 
frustrating our efforts by closing off large swaths of the satellite 
subscriber base to our signal in a discriminatory manner. Last week the 
House Energy and Commerce Committee's Subcommittee on 
Telecommunications and the Internet approved SHVIA reauthorization 
legislation that will eliminate this discriminatory practice. That 
legislation, the Satellite Home Viewer Extension and Reauthorization 
Act of 2004 (``SHVERA''), requires satellite carriers offering local-
into-local service in a market to make all local broadcast stations in 
that market available to subscribers through one receive dish. EchoStar 
would be free to use another dish if essential to accommodate capacity 
constraints, but it will no longer be permitted to discriminate against 
some local broadcasters, including local Spanish language broadcasters.
    Telemundo respectfully urges this Committee to advance the same 
one-dish policy for local broadcast signals in Senate SHVIA 
reauthorization legislation.
    Thank you, and I look forward to answering any questions you may 
have.

    Senator Sununu. Thank you very much, Ms. DeLeon.
    Ms. Sohn, welcome.

             STATEMENT OF GIGI B. SOHN, PRESIDENT, 
                        PUBLIC KNOWLEDGE

    Ms. Sohn. Chairman McCain and distinguished Members of the 
Committee, my name is Gigi Sohn. I'm the President and Co-
Founder of Public Knowledge, a nonprofit organization that 
seeks to ensure that citizens have access to a robust public 
domain, an open Internet, and flexible digital technology. I 
have more than a decade of experience working on digital 
television policy issues.
    I want to thank the Committee for inviting me to give a 
public-interest perspective on the reauthorization of the 
Satellite Home Viewer Improvement Act, or SHVIA.
    Public Knowledge has two core interests in SHVIA, which has 
benefited consumers by allowing the satellite TV industry to 
become a competitive alternative to cable. Our foremost 
interest is that SHVIA remains a bill that addresses only the 
carriage of local-broadcaster network signals by satellite 
providers. We are concerned that, because SHVIA must pass by 
year's end, it may become a vehicle for other intellectual-
property-related legislation. Some of these bills would make 
radical changes to copyright and trademark laws, some are more 
benign, and some Public Knowledge even supports. These bills 
should be debated separately on their merits, and not simply 
attached to SHVIA.
    The bill that we are most concerned about is H.R. 4077, the 
Piracy Deterrence and Education Act of 2004. This bill would 
lower the legal standard for criminal copyright infringement, 
making felons out of people who accidentally make copyrighted 
works available over computer networks. It would also require 
Internet service providers to share personal information about 
their customers with the government and the content industries. 
A coalition of ISPs, Web-based e-mail providers, software 
providers, tech companies, and public-interest groups oppose 
this measure. We urge the Committee to reject any and all 
attempts to turn SHVIA into a Trojan horse for those who would 
like to change copyright and trademark law.
    Public Knowledge's second interest in SHVIA is its 
potential to speed the transition to digital television, which 
actually started in 1986 when the FCC, at the behest of 
broadcasters, set aside unused broadcast spectrum for what was 
then known as analog high-definition television. Much has 
changed in 18 years, not the least of which has been the 
explosion of new wireless telephone and broadband technologies, 
none of which will realize their full potential without access 
to the extra spectrum that broadcasters are holding.
    If you haven't seen The New York Times today, there's a 
whole separate section on the explosion of wireless technology, 
called ``Wireless Living.'' I would commend you all to read it.
    Now, perhaps more than at any other point over the past two 
decades, completing the digital television transition is 
vitally important to the economic and social well-being of this 
country. Reclaimed spectrum could help to vastly improve 
current licensed and unlicensed wireless services, including, 
one, permitting interoperability among local and national 
public safety and law enforcement personnel, and enabling those 
end-users to send and receive video, pictures, data, and phone 
calls. Imagine if the FBI could send, via broadband networks, 
mug shots and fingerprints to local law enforcement officials 
or public safety officials; two, filling in cell phone dead 
zones where signals routinely get dropped; and, three, 
providing wireless last mile Internet connections that can 
compete with DSL and cable modem services. These more powerful 
and lower cost connections would improve Internet access for 
healthcare agencies, schools, and people in underserved areas, 
such as rural and poor communities.
    Improvements in these services will undoubtedly speed 
broadband deployment in the U.S., which lags far behind 
countries like South Korea and Japan. Moreover, and equally as 
important, the reclamation of the spectrum will permit great 
future innovation, the creation of new technologies and 
services, that will redound to the public's benefit.
    In the absence of a hard deadline for the transition to 
DTV, this country is caught in a vicious cycle. Viewers don't 
buy digital television sets because there is little compelling 
digital programming, and broadcasters don't provide digital 
programming because viewers lack the equipment. The only way to 
break this cycle is to ensure that viewers have access to 
programming that would encourage them to buy digital 
televisions. But the ability for them to do so is hampered by 
the fact that many broadcasters are not operating digital 
stations at their full transmission power.
    One way that Congress can help to ensure that viewers have 
access to digital television programming is to permit satellite 
TV companies to provide distant digital TV signals to those 
viewers who cannot receive additional television signals from 
their local broadcaster. Congress can do this simply by 
broadening SHVIA's definition of ``unserved households'' to 
include those viewers.
    There are no good reasons why Congress should not adopt 
this digital wide areas plan. To the extent that the ability to 
view distant digital television signals gets viewers hooked on 
the technology, the public interest is served. To the extent 
that the importation of digital signals propels local 
broadcasters to complete the transition and broadcast their 
digital signals in full power, the public interest is served. 
To the extent that these two actions together lead to the 
completion of the digital television transition, which then 
frees up valuable ``beachfront'' spectrum for critical public 
uses, the public interest is served. But it is not in the 
public interest for Congress to shield broadcasters from 
competition, and, thereby, extend the digital television 
transition, when there are so many important economic and 
social reasons to complete it at or near the 2006 deadline.
    I want to, again, thank this Committee and Chairman McCain 
for giving me the honor of appearing before you today.
    [The prepared statement of Ms. Sohn follows:]

    Prepared Statement of Gigi B. Sohn, President, Public Knowledge
    Chairman McCain, Senator Hollings and distinguished members of the 
Committee, my name is Gigi B. Sohn. I am the President and Co-Founder 
of Public Knowledge, a nearly three-year old nonprofit public interest 
organization that seeks to ensure that citizens have access to a robust 
public domain, an open Internet and flexible digital technology. 
Previously, I worked on digital television issues for nearly a decade 
as the Executive Director of the Media Access Project and as a member 
of the Advisory Committee on Public Interest Obligations of Digital 
Television Broadcasters. I want to thank the Committee for inviting me 
to give a public interest perspective on the reauthorization of the 
Satellite Home Viewer Improvement Act (SHVIA).
    Public Knowledge has two core interests in SHVIA. Our first and 
foremost interest is that SHVIA remains a bill that addresses only the 
carriage of local broadcast and network signals by satellite providers. 
As discussed below, we are concerned that because SHVIA must pass by 
September 30, 2004, it may become a vehicle for other intellectual 
property-related legislation, some of which proposes radical changes to 
copyright law.
    Public Knowledge's second interest in SHVIA involves its potential 
to speed the transition to digital television. As discussed in detail 
below, it is both in the public interest and in the interest of many 
communications industries, including the wireless, telecommunications, 
cable and broadcast industries, to complete the transition to digital 
television as close to the FCC's original December 31, 2006 deadline as 
possible. Completion of the transition and the subsequent return of the 
spectrum now used for analog television service will permit an 
explosion in new wireless broadband, public safety and cellular 
telephone services that will benefit the public in a myriad of ways. 
One way to encourage greater adoption of digital television by 
consumers would be to permit satellite providers to import distant 
digital network television signals into markets where viewers cannot 
receive such a signal locally. This ``digital white areas'' plan will 
allow satellite customers to see the benefits of digital television and 
hopefully encourage them to purchase the equipment they need to make 
the switch.
I. SHVIA Should Remain A ``Clean'' Bill
    As this Committee knows, the current SHVIA expires on September 30 
of this year. SHVIA and its predecessor, the Satellite Home Viewer Act 
of 1988, have been key drivers in ensuring that satellite TV providers 
can compete with cable TV providers. Indeed, in just ten years since 
the inception of direct broadcast satellite service (DBS), viewership 
has grown to almost 20.4 million households representing nearly 22 
percent of the multichannel video provider (MVPD) market.\1\ This 
competition has benefited the public with lower prices and more 
programming when they choose an MVPD.
---------------------------------------------------------------------------
    \1\ See Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, MB Docket No. 03-172 
(released January 28, 2004).
---------------------------------------------------------------------------
    It is for this core reason that Congress should reauthorize SHVIA 
without delay. But in doing so, it should be wary of attempts to turn 
this proposed law into something that it is not and should not be: a 
vehicle for other copyright and trademark legislation. Some of these 
bills would make radical changes to copyright and trademark law, some 
are more benign, and some Public Knowledge supports. In any event, 
these copyright and trademark bills should be debated separately on 
their merits, and not simply attached to SHVIA.
    As of today, there are no fewer than four copyright and trademark-
related bills pending in the Senate and nine pending in the House that 
Public Knowledge believes their sponsors may wish to attach to SHVIA. 
The bill that we are most concerned about is H.R. 4077, ``The Piracy 
Deterrence and Education Act of 2004.'' Among other things, this bill 
would lower the legal standard for criminal copyright infringement from 
one of ``willfulness'' to one of ``reckless disregard,'' making felons 
out of people who accidentally make copyrighted works available over 
computer networks. H.R. 4077 would also require Internet Service 
Providers to share personal information about their customers with the 
government and the content industries, in contravention to the D.C. 
Circuit's recent ruling in Recording Industry Association of America v. 
Verizon Internet Services, 351 F.3d 1229 (C.A.D.C. 2003). A coalition 
of Internet Service Providers, web-based e-mail providers, software 
providers, tech companies and public interest groups oppose this 
measure.
    Thus, we urge the Committee to reject any and all attempts to turn 
SHVIA into a Trojan Horse for those who would like to change copyright 
and trademark law. SHVIA should be kept to its intended purpose--as a 
means by which satellite TV providers are permitted to carry local and 
network television signals under certain conditions.
II. Rapid Completion of the Transition to Digital Television is in the 
        Public Interest
    Whenever the beginning of the transition to digital television is 
discussed in this country, three government actions are inevitably 
mentioned: (1) passage of the Telecommunications Act of 1996, which 
required the FCC to give broadcasters an extra six Mhz block of 
broadcast spectrum ``if the Commission determines to issue additional 
licenses'' for digital television services;\2\ (2) the FCC's 1997 Fifth 
Report and Order, which set out the schedule for the digital television 
transition, including the December 31, 2006 deadline for the return of 
the ``analog'' spectrum,\3\ and (3) passage of the Balanced Budget Act 
of 1997, which permits broadcasters to keep their extra channel until, 
among other things, no less than 85 percent of household's in a 
broadcaster's market are: (a) capable of receiving digital television 
broadcasts using either a digital television set or an analog set 
equipped with a digital-to-analog set-top box or (b) able to receive at 
least one digital programming channel of each broadcaster in a market 
from an MVPD.
---------------------------------------------------------------------------
    \2\ 47 USC Sec. 336(a)(1).
    \3\ Advanced Television Systems and Their Impact on the Existing 
Television Broadcast Service, 12 FCCRcd 12809 (1997).
---------------------------------------------------------------------------
    If we view the digital television transition in this light--as a 
mere seven year process imposed by the government on an unwilling 
broadcast industry, then there might be a colorable argument to be made 
that the transition is moving apace and that broadcasters should be 
commended for their diligence in promoting digital television 
irregardless of the costs.
    Unfortunately, that vision is revisionist history. As journalist 
and author Joel Brinkley recounted in his book ``Defining Vision: How 
Broadcasters Lured the Government into Inciting a Revolution in 
Television,'' the transition to what we know now as digital television 
actually started a full decade before the 1996 Act was passed, and as 
the book's title indicates, was promoted by the broadcast industry 
itself. In 1986, as the FCC was on the brink of giving the spectrum to 
the ``land mobile'' industry for use in two-way radios, the National 
Association of Broadcasters embarked on a campaign to convince the 
government to let it keep the spectrum because each broadcaster needed 
two channels to broadcast in analog high definition television. The NAB 
argued that ignoring their request would allow the Japanese, who had 
just started broadcasting in analog high definition, to beat out U.S. 
industry again, as it had several times in the 1970s and 1980s. The NAB 
was victorious and the FCC took billions of dollars of unused 
``beachfront'' spectrum off the market, where it has lain largely 
underutilized for eighteen years.
    Much has changed during that time. Analog high definition 
television gave way to digital television, but the extra spectrum was 
still needed to ensure that viewers did not lose broadcast television 
during the transition. Cable and satellite television both grew 
tremendously during that time (indeed, DBS services did not exist until 
1993), so much so that almost 90 percent of households subscribe to an 
MVPD. And perhaps most important, new wireless telephone and broadband 
technologies have proliferated to such an extent that the extra 
spectrum that broadcasters are holding is preventing these industries 
from realizing their full potential.\4\
---------------------------------------------------------------------------
    \4\ Demand for wireless services has grown from $30 billion in 1997 
to $78 billion in 2002. See Statement of Reed E. Hundt before the 
United States Senate Committee on Commerce, Science and Transportation, 
April 28, 2004 at 3.
---------------------------------------------------------------------------
    So now, perhaps more than any other point over the past two 
decades, completing the transition to digital television is vitally 
important for the economic and social well being of this country. While 
some have derided calls to speed the transition to digital television 
as a mere spectrum reclamation project, reclaiming that spectrum has 
undeniable and very palpable public interest benefits.\5\ These 
benefits include the ability to vastly improve current licensed and 
unlicensed wireless telephone and wireless broadband services, 
including:
---------------------------------------------------------------------------
    \5\ Statement of Reed E. Hundt, supra at 7-18.

   permitting interoperability among local and national public 
        safety and law enforcement personnel and enabling end users to 
---------------------------------------------------------------------------
        send and receive video, pictures, data and phone calls;

   filling in cellphone ``dead zones'' where signals routinely 
        get dropped; and

   providing wireless ``last mile'' Internet connections that 
        can compete with copper-based DSL and coax-based cable modem 
        services. These more powerful and lower cost connections would 
        improve Internet access for health care agencies, schools and 
        people in underserved areas such as rural and poor 
        communities;\6\
---------------------------------------------------------------------------
    \6\ Perhaps the biggest barrier to providing pervasive wireless 
broadband service in many areas, and in particular rural areas is that 
because of the quality of the spectrum now used to provide those 
services, signals cannot easily pass through trees, houses and bad 
weather. Using high-quality broadcast spectrum would vastly ameliorate, 
if not eliminate, that problem.

    Improvements in these services will undoubtedly speed broadband 
deployment in the U.S., which lags behind far countries like South 
Korea and Japan. Moreover, and equally as important, the reclamation of 
this prime spectrum will permit great future innovation--the creation 
of new technologies and services that will redound to the public's 
benefit. But for now, as it has been for nearly two decades, this 
public ``beachfront'' is occupied by just one industry.
    What can be done to move the transition to its completion so that 
the public can benefit from these new uses of spectrum? One way is to 
repeal the 85 percent cap and reinstate the December 31, 2006 deadline. 
Another way, as some FCC staff have proposed, is to interpret the 85 
percent threshold to include all MVPD households regardless of whether 
those households are receiving a real digital television signal or a 
digital television signal that is down-converted to analog. These 
proposals may be controversial for broadcasters, but would ensure that 
the transition would be completed close to or at the deadline.
    In the absence of those two solutions, the 85 percent threshold 
will be met only if people are educated about, and can see the benefits 
of, digital television. The consumer electronics industry has done a 
fine job educating retail sales staff and the public about digital 
television, and as a result, sales have increased enormously over the 
past several years. By contrast, there is little evidence that the vast 
majority of broadcasters have used the power of their local stations to 
embark on a similar campaign. Confusion about digital television is 
rampant. A recent Consumer Electronics Association study showed that 
nearly a quarter of digital television consumers are confused about 
some aspect of the purchase--and these are the people that wanted to 
buy a digital television set! \7\
---------------------------------------------------------------------------
    \7\ Sean Wargo, Director, Industry Analysis, Consumer Electronics 
Association, ``HDTV Summit: A Market in Control,'' presented at the 
Consumer Electronics Association's Ninth Annual HDTV Summit, March 30, 
2004.
---------------------------------------------------------------------------
    The ability to actually see digital television is in part hampered 
by the fact that many broadcast stations are not operating at full 
transmission power. There may be sound technological or other reasons 
why this not the case, but these do not argue for Congress to stand 
idly by while these problems eventually get resolved. As discussed in 
the next section, there is a small fix that Congress can make that will 
ensure that millions of viewers without access to digital television 
can see and enjoy it.
III. Congress Should Permit Satellite Providers to Carry Distant 
        Digital Network Signals in Areas Where Viewers Cannot Receive 
        Them
    In the absence of a hard deadline for the transition, this country 
is caught in a vicious cycle--viewers don't buy digital television sets 
because there is little compelling digital programming and broadcasters 
don't provide digital programming because viewers don't have the 
equipment. The only way to break this cycle is to ensure that viewers 
do have access to the kind of programming that would encourage them to 
buy digital television sets.\8\
---------------------------------------------------------------------------
    \8\ As the New York Times reported on Sunday, analog format 
television shows, which are predominant on local television stations, 
appear distorted and out of focus on flat-panel high definition 
television sets. The report went on to say that ``[b]ased on that 
factor alone, diving into the flat-panel market now would seem grossly 
unwise, like buying a great-looking car with shoddy brakes, or trading 
in an 18-inch, all-meat hero sandwich for something smaller in a pita 
with a side salad.'' Matt Richtel, ``See the Big Picture? Don't Forget 
to Examine the Fine Print,'' NY Times, May 2, 2004.
---------------------------------------------------------------------------
    One way that Congress can help ensure that viewers have access to 
digital television programming is to permit satellite TV companies to 
provide distant digital TV signals to those viewers who cannot receive 
a digital television signal from their local broadcaster. Congress can 
do this simply by broadening SHVIA's definition of ``unserved 
household'' to include those viewers. This ``digital white area'' 
proposal would not only encourage the purchase of digital television 
sets, but would provide local broadcasters an incentive to provide a 
full power digital signal.
    Predictably, the broadcast industry is opposed to this plan. Their 
arguments can be grouped into three categories: (1) the change is not 
necessary because most of the country's television viewers do receive 
digital television signals; (2) importation of distant signals would 
harm localism; and (3) EchoStar, the main proponent of the plan, is a 
bad actor whose intention is to provide distant signals in 
perpetuity.\9\
---------------------------------------------------------------------------
    \9\ See March 22, 2004 Letter of Marsha McBride, Executive Vice 
President--Legal & Regulatory Affairs, National Association of 
Broadcasters to Hon. Michael K. Powell.
---------------------------------------------------------------------------
    As to the first argument, if we assume that the broadcasters' 
numbers for what percentage of television viewers are served by digital 
signals are correct, then one must ask, ``where is the harm?'' The 
broadcasters claim that on-air digital television facilities are 
serving 92.7 percent of population served by corresponding analog 
stations.\10\ If that is indeed the case, then it is curious why they 
are so bitterly opposed to a plan that would, by their own estimation, 
affect not even eight percent of television households.
---------------------------------------------------------------------------
    \10\ McBride Letter, supra at 4.
---------------------------------------------------------------------------
    The broadcasters' second argument is equally suspect, and is just 
one of the many times that broadcasters have hidden under the cloak of 
``localism'' to stave off competition. To the extent that local 
broadcasters provide excellent local news, weather, public affairs and 
other programming, importation of a signal from New York or Los Angeles 
cannot begin to compete with their programming. And if importation of a 
distant digital network signal compels a local broadcaster to 
transition to digital faster, shouldn't such a policy be applauded?
    As to the third argument, Public Knowledge believes that it is up 
to Congress and the FCC to set guidelines to ensure that bad actors are 
prevented from providing distant digital signals in perpetuity. The 
fact that some satellite providers have in the past ran afoul of the 
law does not diminish the positive effect that permitting digital white 
areas could have on the transition to digital television.
    In short, there are no good reasons why Congress should not permit 
satellite providers to import distant digital TV signals to those 
households who cannot receive them. To the extent that the ability to 
view distant digital television signals gets viewers hooked on the 
technology, the public interest is served. To the extent that the 
importation of distant signals propels local broadcasters to complete 
the transition and broadcast their digital stations in full power, the 
public interest is served. To the extent that these two actions lead to 
the completion of the digital television transition, which then frees 
up valuable ``beachfront'' spectrum for critical public uses, the 
public interest is served. But it is not in the public interest for 
Congress to shield broadcasters from competition and thereby extend the 
digital television transition when there are so many important economic 
and social reasons to complete it at or near the 2006 deadline.
Conclusion
    I want to again thank the Committee for permitting me to present a 
public interest perspective on SHVIA. That perspective is 
uncomplicated. First, it is in the public interest for Congress to 
ensure that the reauthorization of SHVIA remains a vehicle for 
permitting satellite television providers to carry local and network 
broadcast signals under certain circumstances, and not also for non-
germane intellectual property matters. Second, it is in the public 
interest for Congress to accelerate the transition to digital 
television by broadening the definition of ``unserved households'' to 
permit the importation of distant digital network signals to those 
viewers who cannot receive such digital signals from their local 
broadcasters. The sooner the digital television transition is 
concluded, the sooner the American public can benefit from better and 
new wireless broadband and telecommunications services that have been 
unavailable because of the spectrum that has been tied up for nearly 
two decades.

    Senator Sununu. Thank you, Ms. Sohn.
    We'll begin the questioning with Senator Lautenberg.

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thanks very much, Mr. Chairman.
    I would just take a minute to set the stage for my 
interest, and that is that in our state of New Jersey we have 
very little activity by the satellite companies that get 
through to the subscribers. We have, in the more than 560 
little towns and municipalities in New Jersey--and that the 
cable and satellite providers have effective competition in 
only 53 of those 562 towns. And it doesn't represent a picture 
that tells me that there's real choice for the subscribers.
    And, Mr. Chairman, I would just ask that my full statement 
be recorded as if read.
    Senator Sununu. Without objection.
    Senator Lautenberg. Thank you.
    [The prepared statement of Senator Lautenberg follows:]

            Prepared Statement of Hon. Frank R. Lautenberg, 
                      U.S. Senator from New Jersey
    Mr. Chairman:

    Thank you for holding this hearing on the Satellite Home Viewer 
Improvement Act (SHVIA) and our continuing effort to promote regulatory 
parity between cable and satellite.
    I supported the Satellite Home Viewer Improvement Act in 1999 
because I believed then, as I believe now, that regulatory parity and 
competition between cable and satellite is necessary to ensure that 
consumers will get more options, better rates and service when they buy 
multi-channel video services.
    According to the FCC, franchised cable operators control about 75 
percent of the multi-channel video program distributor (MVPD) market. 
Direct Broadcast Satellite (DBS) providers account for 22 percent of 
subscribers-and the number is growing.
    While recent data reveal that DBS service is winning the battle for 
new subscribers, effective competition currently exists in very few 
markets.
    In my home state of New Jersey, for example, the FCC has determined 
that there is ``effective competition'' between traditional cable and 
satellite providers in just 53 of 562 towns and municipalities.
    ``Effective competition'' means that satellite has a penetration 
rate of as little as 15 percent of the market.
    The numbers for New Jersey are disappointing because GAO has found 
that competition from satellite providers leads to lower rates and 
improved quality and service for all subscribers.
    Since 1999, when satellite operators acquired the legal right to 
broadcast the signal of local broadcast stations, satellite emerged as 
a real competitor to cable.
    In areas where subscribers can receive local broadcast stations 
from DirecTV and EchoStar, the satellite penetration rate is 
approximately 40 percent higher than it is in areas where subscribers 
cannot receive local broadcast stations from DBS operators.
    We need to do everything we can to promote more head-to-head 
competition between cable and satellite providers. That's clearly in 
the public interest. I look forward to hearing from our witnesses today 
about the best way to foster that competition.
    Thank you, Mr. Chairman.

    Senator Lautenberg. What's been the experience of--any of 
you--in the state of New Jersey? Why is it, do you think, that 
there are so few options for the subscriber in the number of 
communities where the satellite is available?
    Mr. Hartenstein. I'll take a stab, Senator Lautenberg. As 
far as I know, there is--you used a term, ``effective 
competition''--the FCC has a definition for that, which means 
when satellite has, I believe, achieved some 15 percent of the 
homes passed. Now, nationwide, with some 100-plus million 
television households collectively as an industry, we are just 
coming up to, as I said before, about 22 million. That's not 
the same everywhere. So where we might not have met the FCC, if 
you will, ``artificial test'' of effective competition by that 
percentage, I think we, from DIRECTV's perspective, are very 
much alive and are hoping to, as our results that I think both 
of our companies are going to be announcing--us later today, 
and Mr. Ergen later this week--announce that we are still 
growing nationwide.
    I'd be happy to sit down with you or your staff and talk 
about specific cities, specific towns, what we are doing. We 
are, more and more, realizing that to be an effective 
competitor, we do need to provide local service, first by the 
local stations and next by local service with our 
representatives, both installation and service, on a local 
basis. We're doing everything we can to promote that and to 
promote a whole-house solution for every television set in 
every home.
    Senator Lautenberg. Mr. Ergen?
    Mr. Ergen. Senator, if I may add, your comments I get from 
every Senator and every staff that I have talked to over the 
last 7 years on satellite issues, which is, How do we bring 
more and provide more competition? For example, more local 
cities. And, on the one hand everybody wants local cities, and 
our company has gone out and done more local cities, almost by 
double, than anybody else in our industry; at the same time, 
broadcasters then say, ``Well, you can't do it on two dishes,'' 
even though that's the law that we all agreed to 5 years ago. 
So it never seems to be enough.
    The SHVIA law allows broadcasters from markets outside of 
New Jersey to have restrictions on what we can do, as satellite 
companies, in the state of New Jersey's so-called DMAs, and we 
think that should be eliminated and fine-tuned in this 
legislation.
    High-definition television, your customers in New Jersey 
want high-definition television today. The fact of the matter 
is, is that the broadcasters in New Jersey aren't broadcasting 
high enough power to broadcast over the entire state of New 
Jersey. But our company today can broadcast every square inch, 
high-definition television in New Jersey.
    I was very disappointed to hear the Senator from Montana 
talk about Montana, with 40 percent of the people in that great 
state of Montana have satellite television today, it's a great 
geographic area, and we broadcast to every square inch high-
definition television. Local broadcasters may broadcast in low 
power, or they may not broadcast at all, and so customers are 
being denied that service. So it's no wonder we can't provide 
effective competition to cable.
    Senator Lautenberg. So to kind of sum it up for me, is it 
because of restrictions that you find that are beyond your 
control. Mr. Hartenstein, did I understand you to kind of 
rhetorically say that, ``Well, there are things that we--more 
things that we should offer''? Was I correct in describing what 
you said?
    Mr. Hartenstein. Yes. In the next, roughly, three to 4 
months, we hope to double the number of designated market 
areas, DMAs, that we will be serving local-into-local, going 
from where we are today, at about 64 markets, to about 130 
hopefully by the end of this summer. We still need some action 
from the FCC. And we took a big step this morning with the 
launch of our eighth satellite, our second spot-beam satellite, 
which should now be operational and online in about 30 days. 
Beyond that, that will take us to about 130 markets.
    And, as everybody has indicated, there are some 210 
markets. We have made a promise to deliver local channels to 
all 210 markets by the end of 2008, and, if possible, by 2006. 
We intend to live up to that, not just because we promised the 
FCC we would do that, but because it makes competitive good 
sense for us as a business.
    Senator Lautenberg. So the subscribers across the country 
can look forward to the result of keen competition--that is 
better pricing. Does that represent a point of view that you 
have?
    Mr. Hartenstein. We think we deliver a better product, 
superior performance, and, we think, at a better value, more 
economic for consumers.
    Senator Lautenberg. Is better value the same as better 
price?
    [Laughter.]
    Mr. Hartenstein. Yes, I believe so. Yes. If you look at 
what we deliver, yes, sir.
    Senator Lautenberg. Thank you very much.
    Thanks, Mr. Chairman.
    Senator Sununu. Senator Lott?

                 STATEMENT OF HON. TRENT LOTT, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Lott. Thank you, Senator Sununu. And you're doing 
an excellent job presiding over this hearing.
    [Laughter.]
    Senator Lott. Thank you to the panel for being here this 
morning. Your part of this technology revolution is just 
breathtaking, the things that are occurring, the access, and 
the choices we have, so we appreciate you being here and giving 
us your thoughts on how you're doing and how we can be helpful 
to you in providing good quality competition in this tremendous 
area.
    I'm looking forward to the day when I only have to pay one 
bill to one company after selecting between competing companies 
for my television service, my utility bill, my telephone bill, 
Internet, long distance, the whole package, one company. It 
sure would save me a lot of time. I'm getting dang tired of 
paying all these bills. And, of course, I know it's all going 
to be digital and high quality and all of that.
    I was very interested, Mr. Hartenstein, that you said that 
your intent is to have local-to-local service by 2008 or 
perhaps even 2006. Now, that would be really well received by 
people in Mississippi. You only have two areas that get the 
local-to-local in my state: Jackson, Mississippi, the Columbus/
West Point area. You're not on the Gulf Coast, but you're 
continuing to work in that direction. Is the technology there 
to do that?
    Mr. Hartenstein. Senator, yes, the technology is there. We 
are just in the process of getting it launched and utilizing 
the spectrum that we have within our resources. That means more 
satellites, and that's exactly what we intend to do.
    In about three more months, we will hit our tenth 
anniversary of the first DIRECTV system, the first DBS system, 
18-inch system, sold, and that, indeed, happened in Jackson, 
Mississippi. And we just brought local----
    Senator Lott. Oh, we were first in that area. Good, we like 
to make note of any area that we're first.
    [Laughter.]
    Mr. Hartenstein. Yes, one of your good constituents, the 
Maloney family, was, indeed, there with us as we launched. And 
we intend to bring local channels to such DMAs as Biloxi and 
others in the time-frame that I outlined, yes, sir.
    Senator Lott. I discussed that with you, too, Mr. Ergen, 
about the hope that we could have that service on the Gulf 
Coast. But it's bigger than just my own state. I mean, we're 
hoping we can have this service all over the country. I know 
you want that and you're working on that. How are you doing?
    Mr. Ergen. Well, good. First I want to mention that we were 
first to switch a DIRECTV customer over to the DISH Network----
--
    [Laughter.]
    Mr. Ergen.--in the state of Mississippi.
    But we've had a lot of discussions, as you know----
    Senator Lott. Sure.
    Mr. Ergen.--and you have been a great champion of providing 
competition for video in the state of Mississippi and all 
across the country. And, again, your comment--I'll just repeat 
my previous comment--every single Senator or Congressman asked 
us to deliver their local channels and provide competition in 
HD in their local areas. There's only so much spectrum to do 
that. And, of course, with technology, enough time, and enough 
money, I think we can accomplish great things.
    Senator Lott. You all seem to be making plenty of that, 
so----
    Mr. Ergen. There's FCC. There's FCC.
    [Laughter.]
    Mr. Ergen. We're spending a lot of money. More than we're 
making, I can tell you that.
    Senator Lott. Good.
    Mr. Ergen. But the FCC needs to provide us more spectrum. 
And, again, the two-dish solution, I want to point out to this 
Committee, as you know, was a compromise. While we fought 
vehemently against must-carry, the compromise that the 
broadcasters agreed to, even the broadcaster on this panel, 
was, if we have to do must-carry, that we could do it on two 
dishes. They want to change those rules now. That rollback 
would--we do Jackson, Mississippi. We have plans to put Biloxi, 
Mississippi, up later this year. Without a two-dish solution, 
we wouldn't be able to put up Biloxi. So there's a compromise 
we have to make--and this Committee needs to look at that--as 
to whether you want more cities with more competition or 
whether you want to eliminate a two-dish solution for 
consumers, that we all agreed to 5 years ago.
    We don't want to be on two dishes, because we're not as 
effective of a competitor as we can. But we don't discriminate 
against anybody with two dishes. It's free to all those 
customers. All those Spanish-speaking customers, not one of 
them has to pay for it. I am not aware of any single household 
in the United States today who wants two-dish who cannot get it 
from us for free.
    Senator Lott. What are you saying now? You have two dishes, 
but you only have to pay for one? Did you say that?
    Mr. Ergen. That's right. There is actually no extra charge 
for two dishes, and we have over two million customers today 
that have two dishes, for a variety of reasons. And, of course, 
local is one of those. So we don't discriminate. It is the law. 
It was the law that broadcasters agreed to. They want to change 
that now, and somehow think we're doing something that we're 
not supposed to be doing. And it's a compromise. And I 
personally think that if given enough time and money--we very 
much want to be on a single dish, and it's just really a 
question of working with broadcasters to find a transition plan 
that we can--so we're able to do that.
    Senator Lott. Ms. DeLeon, you've already commented on this, 
but----
    Ms. DeLeon. Yes.
    Senator Lott.--would you like to sum up what your----
    Ms. DeLeon. Just to add and to clarify----
    Senator Lott.--response was and further response to what he 
just said.
    Ms. DeLeon. Yes. I just want to clarify that the problem, I 
suppose, that I have as a Spanish language broadcaster is that 
most Spanish language, if not all Spanish language, are on the 
second dish. And I have a--from a personal experience with my 
parents, who live in San Antonio, Texas, when they called to 
get satellite service, they were not told that they needed a 
second satellite dish to get Spanish language, and it wasn't 
until they come out and install it, and you realize that you 
don't get the Spanish language networks, that you then have to 
go back and ask for someone else to come out and install that 
second dish. So it makes it complicated, you know, not knowing 
at the beginning that you need two dishes, and then having to 
request to get the second one installed. And it's--in some 
cases, it's hard enough to have one dish installed, let alone a 
second one.
    Senator Lott. But it is for free, huh?
    Ms. DeLeon. Well, if--you know, I have been told--I mean, 
I've heard different stories. I've had people call the station, 
who say that they were asked to pay another $5 or another $10 
for installation. I mean, I don't know that personally, but 
I've heard that. Once it has been installed, and if you get it 
installed under a certain--whether it's a promotion or 
something that's happening, and then they have to come back and 
install the second one, but there may be a small charge.
    Senator Lott. Let me, if I could, move along, because my 
time's about to run out.
    Mr. Yager, obviously your association has some problem with 
this distant digital usage by the dishes here. I apologize for 
missing your statement. Could you, sort of, sum up----
    Mr. Yager. Well----
    Senator Lott.--your concerns there?
    Mr. Yager. We believe strongly, Senator, in localism as the 
foundation for the broadcast system in this country. It has 
worked, and worked very well----
    Senator Lott. I agree, but your networks apparently don't 
agree with that.
    Mr. Yager. Well, strangely enough, I think the networks do 
agree with that, because their local stations are an extremely 
important part of----
    Senator Lott. I hope they know that.
    Mr. Yager.--their corporations. But we believe that that 
localism is fundamental. Anytime you bring in a distant signal 
into a local market that diminishes the value or the viewing of 
your local station, it affects the advertising rates you can 
charge for your station. Now, how does that impact the public? 
It impacts the public in the resources you have to devote to 
local news, local public service, local sports, anything you 
might do in terms of community involvement.
    We are not a subscription-based service. Free, over-the-air 
broadcasting is just that--free, local. We don't get a monthly 
subscriber fee from anyone. You don't write us a check each 
month, Senator. We provide that service based upon one single 
source of revenue, and that is advertising. Anytime that our 
audience is diluted or diminished, it affects the rates we can 
charge our advertisers. It also affects the effectiveness of 
the local advertiser in his market, or our markets, to reach 
the right population, and the population that would either buy 
their service or their products.
    Senator Lott. Mr. Chairman, if you would give me just one 
more question, I----
    Senator Sununu. Is there objection?
    [Laughter.]
    Senator Lott. Well, thank you very much.
    Mr. Ergen, in your testimony, which I did not get to hear 
when you presented it, you talked about this carriage of 
broadcast stations or significantly viewed stations. Would you 
sum up what you're saying there and how we need to treat this 
area, in your opinion, in the bill?
    Mr. Ergen. Before I get to that, let me just respond to Mr. 
Yager. We're not asking to broadcast HDTV where the local 
broadcaster is broadcasting it. We'd love for the local--the 
problem is that most Americans today--I'd dare say if you'd go 
back to your home state of Mississippi, or any of the staff 
here goes back to their home state, and you tried to get HDTV 
from the local broadcaster today, I'd dare say you can't do it. 
In America, we're trying to lead the technological revolution. 
Right? And since we can do that today via satellite through 
every square inch of the United States, in every hometown, 
those HD signals, we think that, at least for a transition 
period, we need to be able to do that. And, of course, that 
does speed up the digital transition, which frees up the 
spectrum to help us. We're a country that is not in the top ten 
for Internet connections anymore, and we're going to go fall 
behind technologically, productivity, and everything else if 
we're not able to free up that spectrum and use it for more 
productive uses.
    So on the significantly viewed areas what happens is, and 
sometimes Washington is a great example, where you have 
Washington and Baltimore, cities very close together, and a 
cable company can broadcast, in some cases, both to Baltimore 
and to Washington network stations, where satellite's 
restricted to just one station. And so in a market where more 
than one local broadcaster of a network is widely viewed, and 
Washington is an example, then we would like to technically be 
allowed to do that to put us on a more level playing field.
    Senator Lott. And the law does not now allow you to do 
that?
    Mr. Ergen. The law allows cable to do it, but not 
satellite, today.
    Senator Lott. Thank you, Mr. Chairman.
    [The prapred statement of Senator Lott follows:]

  Prepared Statement of Hon. Trent Lott, U.S. Senator from Mississippi
    Mr. Chairman, thank you for holding this hearing today so that the 
Committee can begin the essential process of considering the 
reauthorization of the Satellite Home Viewers Improvement Act of 1999--
or SHVIA. That was an important piece of legislation which required 
quite a bit of hard work in order to guarantee that the Nation had 
updated and fair guidelines for the provision of Direct Broadcast 
Satellite (DBS) services. I learned many years ago that Americans have 
increasingly come to rely on competitive options for television 
viewing, and that the government should be very cautious when 
legislating and regulating in this area.
    Mississippi is primarily a rural state, and the deployment of 
Direct Broadcast Satellite services has been a welcome development for 
television viewers in my home state. Currently, approximately 300,000 
homes in Mississippi subscribe to Direct Broadcast Satellite services, 
which is one of the highest DBS penetration rates in the country. For 
many of these viewers, they have no other option for receiving a full 
compliment of television channels, and the deployment of ``local-into 
local'' satellite signals is another positive step in the right 
direction. Unfortunately, ``local-into-local'' is not yet available in 
most Mississippi markets, so I am eager for the Direct Broadcast 
Satellite providers to offer this service to all markets in the state. 
DBS has provided a competitor to cable in many communities in my State, 
and I believe the multichannel video market is healthier as a result.
    As we look at reauthorizing the Satellite Home Viewers Improvement 
Act of 1999, Congress should be prudent and make certain that any such 
new legislation is fair to everyone. We should take great care that any 
changes or revisions to this law do not cause unwarranted disruptions 
to American television viewers, but we must also be sure that any new 
legislation is fair to the various industries which are affected by the 
law--including copyright holders, broadcasters, and the Direct 
Broadcast Satellite companies.
    I am hopeful that this issue will not become sidetracked by 
partisanship, because Congress has historically been able to find 
common ground in this area. As we approach the end of the year and the 
expiration of provisions in the Satellite Home Viewers Improvement Act 
of 1999, I also encourage my colleagues to focus on working across 
Committee jurisdictional lines and in a bicameral fashion to find the 
legislative approach that would best benefit the American public.
    I am looking forward to hearing the testimony of the witnesses 
today as the Committee gathers the information needed to address this 
reauthorization. Thank you again, Mr. Chairman, for holding this 
hearing.

    Senator Sununu. Thank you, Senator Lott. You're a shining 
light in this Committee.
    [Laughter.]
    Senator Lott. Well, there are only two of us.
    [Laughter.]
    Senator Sununu. I need all the help I can get.
    Mr. Yager, did you want to respond to that last point?
    Mr. Yager. Well, if I may, the significantly viewed status 
that cable was afforded in 1972, and that was because there 
were many markets that had stations on the air early, let me 
give you an example of Charlotte, North Carolina. They had a 
station that was on the air in 1947. I happened to run stations 
in Columbia, South Carolina, for a number of years. Charlotte 
was considered significantly viewed in Columbia, South 
Columbia, in 1971. Today, that would not be the case.
    We believe there's a compromise that can be reached in 
significantly viewed for satellite, but it is a very slippery 
slope that you don't destroy local television stations, the 
audiences they've developed, as you try to apply a 1972 rule to 
satellite in 2004. We're willing to discuss it, we're willing 
to talk about it, but we think we have to take it very 
judiciously.
    Senator Sununu. Thank you, Mr. Yager.
    There are some industries that would probably think 
applying 30-year-old rules to be advanced compared to some of 
the rules that we're applying that were in more like 60 or 70 
years ago.
    Mr. Ergen, Ms. DeLeon described the process of getting the 
second dish installed for some of her viewers that didn't sound 
very simple or streamlined or maybe common sense to me. Is the 
process that she described a reasonable reflection of the way 
EchoStar operates?
    Mr. Ergen. No, I don't believe it is. First of all, it is 
free. There is no $5 charge. There is no charge for 
installation of a second dish, either at the time of 
installation or later. If, by chance, a customer is unaware, 
for some reason, they need a second dare, if her parents didn't 
know they needed the second dish, even after the system's 
installed, our on-screen guide--and this was a recommendation 
by the FCC that we voluntary have put into action--every one of 
our channels on the guide is contiguous. And if you keypunch to 
a Telemundo channel in a certain city--and, by the way, we 
carry her stations on one dish today in the state of Arizona 
and Tucson and Phoenix--and we carry the vast majority of 
Telemundo stations on one dish--but if you're in a city where 
we don't, and you punch on Telemundo, a screen will come that 
says, you know, ``To get a free--you'll need a dish for this 
signal. It's free. Call 1-800 DISH Network, and we'll come out 
and put it in for you.'' So nothing could be farther from the 
truth. And, again, this is the law.
    And we want to be on one dish. We're not in disagreement 
with anybody on this panel from the broadcasts, and it's in our 
best interest. If cable doesn't have a dish, if DIRECTV's on a 
single dish, then we're disadvantaged in the marketplace, and 
the marketplace is going to force us to go a single dish. On 
the other hand, we have to make a decision, do we do 60 
markets, and put everything on a single dish, or we do 119 
markets and, for a period, have things on two-dish while we 
work toward those things? And the vast majority of channels 
that are on two-dish have no local programming, no local news, 
no local weather. Things like home shopping, who don't do 
anything for the local community, and were already broadcasting 
their station on a nationwide basis. The signal is not 
indifferent from a local broadcast to the national broadcast. 
So it's very misunderstood that some of the broadcasters want 
to point to without giving you all of the facts.
    Senator Sununu. Other than the issue or the question of 
whether there's local content, how do you decide what goes on 
the second dish?
    Mr. Ergen. It typically is that, where you have local 
content. So if a Telemundo station does not have----
    Senator Sununu. Well, but the majority of stations, the 
majority of channels that you provide don't have local content, 
correct?
    Mr. Ergen. The majority probably do have some local 
content, whether it be a PBS station that has local input, or 
whether it be local news, weather, or sports. But we have only 
about 15 percent of our channels are on a wing. It's typically 
a home shopping channel, a religious channel, where we carry, 
for example, Trinity Broadcasting under a nationwide license 
for nationwide, but local signal is exactly the same. Those 
would be ones that would go. Sometimes it's a technical reason, 
where we just don't physically have the capacity from a 
particular spot beam of a satellite. We pioneered that 
technology, so it's not like a spot beam suddenly can get 
bigger and bigger and bigger, and more and more channels. It's 
pretty fixed in the number of channels that it can do.
    It's simply a balance between, Would you rather us do more 
local markets, or would you rather do us on a single dish? 
That's a decision for this Committee to make. You made that 
decision in 1999. We honored our agreement to every single 
Congressman and Senator. We have 48 states today. Within 2 
weeks, we'll be in all 50 states with local-to-local, the first 
company to do that. We did that because we promised people that 
we'd do it, with the legislation of 1999.
    Now the broadcasters want to change the rules. Now they 
want to change the rules. And if you want to change the rules, 
going forward, I think that makes sense. We don't have a 
problem with that. But to retroactively change a rule, it would 
be like if you went to the car companies and said, ``Well, you 
know, your gas mileage is 15 miles a gallon, and we want it to 
be 17 miles a gallon. You've got to go back and give people 
free cars for the cars you sold last year, or 2 years ago, or 3 
years ago, under the old rules. We're going to change the rules 
now. You've got to replace all those cars.'' We're not capable 
of doing that without massive disruption to our customers.
    Long term, I think we can do it, and I think we're happy 
to. I'm glad to hear Mr. Yager talk about compromise on the 
widely viewed. By the same token, I think it's the kind of 
thing that we can have dialogue with both DIRECTV and the 
broadcasters as to how we might make a transition to two-dish 
that'll work for everybody.
    Senator Sununu. I want to give Ms.----
    Mr. Ergen. One dish. Excuse me. Not two dish.
    Senator Sununu. I want to give Ms. DeLeon a chance to 
respond, although I do want to clarify--while EchoStar provides 
local-into-local into New Hampshire, not all of New Hampshire 
gets their local station because----
    Senator Sununu. I'm surprised you get it at all. That's 
really----
    Senator Sununu.--because of the issue with the definition 
of DMAs that I described. I know you've been very helpful, and 
your staff, in trying to deal with this issue. But this is the 
kind of thing that drives consumers crazy, is when they see the 
president of EchoStar saying, you know, ``48 states have got 
local-into-local,'' and one of your customers is in Northern 
New Hampshire, and they're going, ``I've been calling 
EchoStar,'' or, ``I've been calling Senator Sununu,'' or, 
``I've been calling the local broadcaster about this for a year 
or for 2 years, and now he's on--I see him on C-SPAN saying 
that''----
    Mr. Ergen. Well, let me make----
    Senator Sununu.--``that the problem's''----
    Mr. Ergen.--let me--let me make the point.
    Senator Sununu.--``been solved.''
    Mr. Ergen. Let me make the point. This is not the president 
of EchoStar who doesn't want to deliver the local channels 
throughout the country.
    Senator Sununu. I understand that.
    Mr. Ergen. This is the law that was passed in 1999. For 
example, if we would enact the DMA rule, as cable companies 
enacted, if we enacted widely viewed, if we would enact high-
definition legislation to be proposed, then your customers 
would, in fact, be able to get----
    Senator Sununu. And I'm simply trying----
    Mr. Ergen. You know, I feel for customers. But we need 
waivers from broadcasters who don't give the waivers. I guess I 
would say it's time we put satellite home viewer--put the 
satellite home viewer back in the Act. Today, it's--today it is 
not----
    Senator Sununu. I recognize that.
    Mr. Ergen.--a home viewer Act.
    Senator Sununu. That's the point in the clarification that 
was I was precisely trying to make so that your switchboard 
doesn't light or up our local broadcaster's switchboard doesn't 
light up or my switchboard doesn't light up. Simply because you 
are able to offer local-into-local under the current law 
doesn't mean all viewers are served with the benefit of that 
technology.
    Ms. DeLeon, you had wanted to----
    Ms. DeLeon. Yes, what I wanted to say is that, yes, 
EchoStar did put the Telemundo full-powered stations on the 
primary dish, but that happened just recently. That was within 
the last two to 3 weeks that we saw that change.
    And also, regarding the changing of the law, we don't want 
to change the law. It is, you know, ``carry one, carry all.'' 
We are just asking to be all on the primary dish so that we can 
be seen and we're next to the other general market stations in 
English language/Spanish combined. So that's really what we're 
asking for.
    Senator Sununu. Mr. Yager, let me ask you this question, 
and I think you had wanted to add something there. In your 
testimony, you talked about 1400 stations providing digital 
broadcasts covering 99 percent of the country, 92 percent of 
the population with those digital broadcasts. But, at the same 
time, you said that you don't want the legislation to be 
modified at all to allow any white area definition if there is 
no digital broadcast being received by consumers. Now, it would 
seem to me that if 92 percent of the population, or 99 percent 
of the country, is being covered, then allowing that digital 
white space to be defined should make no difference.
    Mr. Yager. I would agree with you, Senator, if we were not 
in the middle of the digital transition. We are not complete 
with the digital transition, from broadcasting's point of view. 
And what do I mean by that? We still have zoning problems. We 
still have certain tower-siting problems to get certain 
stations up in digital. We still have tremendous interference 
problems to work out with Canada and Mexico. We still have a 
number of stations that have until 2005 to elect their final 
power.
    If we let this camel get its nose under the tent in terms 
of bringing distant signals into areas that are served and plan 
to be served by local stations, we are going to have the same 
kind of mess on our hands that we had in 1999, when Congress 
first dealt with the distant signal problem. What we're saying 
is that the digital white-area problem is a problem that 
doesn't exist at this point as broadcasters fully build out 
their digital stations.
    And let me respond to one thing, if I might, that Mr. Ergen 
said, that broadcasters don't grant waivers. Broadcasters, to 
date, have granted over seven million distant signal waivers.
    Senator Sununu. Am I misreading your testimony when I state 
that only 8 percent of the population isn't served by digital, 
and, therefore----
    Mr. Yager. They're not being----
    Senator Sununu.--only 8 percent would----
    Mr. Yager. Only 8 percent are not being replicated with the 
analog signal, to the extent that their analog signal reaches 
them under the Grade B contour standard----
    Senator Sununu. So it was----
    Mr. Yager. That's correct.
    Senator Sununu. So only 8 percent would be affected by the 
creation of a digital white space for the----
    Mr. Yager. Today that would be the case. My bet is----
    Senator Sununu. But it would----
    Mr. Yager. Excuse me.
    Senator Sununu. Then it would be even less in the future.
    Mr. Yager. Yes, I would think so.
    Senator Sununu. Mr. Ergen?
    Mr. Ergen. Yes, I think your point is exactly on point, 
Senator. I don't believe, for a minute, that the broadcasters 
are delivering an HD signal to 92 percent of the country today. 
I read my mail, too. My customers can call me and send me--and 
we get more requests, particularly in states like Montana and 
places out west, where people just don't have access to a 
digital signal. And I think that we can--they're 2 years 
behind. And there are some valid reasons. I think that some of 
the interference issues on the borders are valid reasons. But 
those are not valid reasons in Denver, Colorado. Those are not 
valid reasons in Grand Junction, Colorado. Those are not valid 
reasons in Biloxi, Mississippi. And I think that you need a 
little carrot and stick, and I think it would be great 
government policy to--if these customers are economic, if they 
value those advertising dollars, then they will build their 
towers. And if they build their towers, we wouldn't have the 
right to bring a distant signal in. But if they refuse to build 
those towers, if they drag their feet building those towers, 
should we deprive the American public, who's watching this 
broadcast today--should we refuse to give them an HD signal 
when we have the technical ability to do it? I say it's time to 
get them the signal.
    Senator Sununu. Would you commit to cutting off those 
customers from their distant digital signals as soon as the 
local digital signal is available?
    Mr. Ergen. I think that that is a plan that can be 
endorsed, so that we can get--we can get this digital 
revolution going and make sure the consumers are able to get a 
choice.
    Senator Sununu. And you think that's a plan that could be 
endorsed. Is that a yes?
    [Laughter.]
    Mr. Ergen. Well, you'd have to see the details of that. And 
I think that we--we didn't have a good transition in 1999, so I 
think that--I think that is something that we'd have to work 
with broadcasters on. But I believe that, yes, that you can--
you can keep the integrity of local broadcasting and have some 
kind of transition plan so that customers can get it today, and 
you can get the digital spectrum back, as government policy.
    Senator Sununu. Senator Lott?
    Senator Lott. Mr. Chairman, with your permission, I'd like 
to ask that my whole statement be made a part of the record 
after the conclusion of the----
    Senator Sununu. Without objection.
    Senator Lott.--statements by the witnesses.
    Second, I want to urge the two satellite folks here, 
remember your installers and their rights and needs, too, as 
you go forward. And I think you know, Mr. Ergen, why I say 
that.
    And then last, but not least, Senator Sununu, you don't 
have to carry those Boston stations in New Hampshire, do you, 
on the satellite?
    Senator Sununu. Yes.
    Senator Lott. You do? That's a shame.
    [Laughter.]
    Senator Lott. Are you working on resolving that problem?
    [No response.]
    Senator Lott. I yield the floor.
    [Laughter.]
    Senator Lott. Thank you all very much.
    Senator Sununu. Very expensive to advertise in Boston.
    The last question is a technical question. I had, at one 
point, a technical background. I guess I still have the 
technical background, but the longer I serve in public officer, 
the grayer some of that education gets. But on the issue of 
unserved households, whatever technical education I have seems 
absolutely useless. I start reading about Grade B intensity in 
the ILLR model, and I'll sit down with a broadcaster and talk 
about this issue of how you define technically when a household 
is served and when it isn't, and I finish the conversation 
thinking, ``I think I understand this whole Grade B contour 
model thing.'' And then I'll sit down with someone who's 
affiliated with one of the DBS providers, a satellite provider, 
and have the same conversation, and get a completely different 
answer.
    So I just want to give Mr. Yager and Mr. Ergen--I think you 
mentioned it in your testimony--so I'll kick it to you, give 
you each a short time, just a couple of minutes, to try to 
summarize your side of the unserved household technical 
argument.
    Mr. Ergen. Well, thank you. If you want to further confuse 
yourself, talk to consumers.
    [Laughter.]
    Mr. Ergen. Right?
    Senator Sununu. Well----
    Mr. Ergen. Because I can't--I helped write the law, and I 
can't----
    Senator Sununu.--in a way, it's not confusing to consumers, 
because----
    Mr. Ergen. They just don't get it.
    Senator Sununu. Yes, well, they know for--they know, with 
absolute certainty, whether they're served or not served. 
There's no question in their mind. So----
    Mr. Ergen. Well, the confusion to them is that they aren't 
served many times because of interference and things that SHVIA 
doesn't take into consideration in ILLR, and then they wonder 
why--they call us, they call you--and they wonder why they 
can't get this signal.
    Now, on digital, that's solved. So our digital plan to 
broadcast digital in is very easy because digital, as you know, 
is--you either get the signal or you don't. There's no 
ghosting, there's no drop-off----
    Senator Sununu. But I don't want to talk about digital, at 
least at the moment; I want to talk about the current 
definitions--whether you think the current definition is 
accurate and whether you think it's fairly applied.
    Mr. Ergen. OK. There's no question that it's not accurate. 
It was in the 1950s that the model was predicted, when there 
were very few broadcast stations. Now that we've got broadcast 
stations in buildings and things that have--and trees that have 
grown up over the last 40 years, 50 years, there's quite a bit 
of interference and ghosting that the model does not take into 
consideration. So I think would be very imperative that the 
legislation have the FCC go back and update ILLR to be--rather 
than a predictive model, to be an accurate model.
    Senator Sununu. Mr. Yager?
    Mr. Yager. Senator, it's a great question. But really you 
can't change physics. ILLR is based on physics. A Grade B 
intensity signal is based on predicted contours of the 
television station signal at a certain height at a certain 
power. Now, we can talk about all of these other elements that 
you want, but that's what it's based on, and the physics aren't 
going to change. They were the same in 1953 as they are in 
2004.
    Let me say that I believe this Committee directed the FCC 
twice to review the ILLR techniques. The FCC came back in 2000 
and said it was a good standard, it met the tests. It came back 
in 2002 and said it was the standard--the best standard they 
could come up with.
    Senator Sununu. Mr. Hartenstein, is the FCC being 
unreasonable in reaffirming the validity of the standard?
    Mr. Hartenstein. I haven't sat down and reviewed what 
they've looked at. We've chosen to, you know, accept the 
standard, move on with it, try to make amends, and try to level 
the playing field as best we can, through opportunities such as 
this hearing today, on all issues regarding the satellite 
business and how we, at DIRECTV, see it. Like any model, it's 
never perfect, but it is what it is, and we try to make do with 
what we can.
    It is--I will echo Mr. Ergen's comments--it is often very 
confusing to customers that live out in the far reaches of some 
of the states to understand why something is not allowed to 
them when they, in fact, have trouble seeing it. But, on the 
other hand, you know, in an imperfect world, we'll work with 
what we have.
    Senator Sununu. I want to thank all the panelists very 
much. I appreciate your patience and your testimony.
    The hearing is adjourned.
    [Whereupon, at 10:45 a.m., the hearing was adjourned.]

                            A P P E N D I X

                                                    August 19, 2003
David R. Goodfriend,
Director, Legal and Business Affairs,
EchoStar Satellite Corporation,
Littleton, CO.

Dear Mr. Goodfriend:

    I am in receipt of your letter dated June 18, 2003, wherein you 
seek assistance in completing Form SC, the Statement of Account for 
Secondary Transmissions by Satellite Carriers for Private Home Viewing. 
Form SC is used by satellite carriers making royalty payments under the 
statutory license set forth in 17 U.S.C. Sec. 119 for the 
retransmission of distant broadcast signals. The circumstances of your 
request for guidance, as you present them, are as follows.
    You state that EchoStar has entered into a private agreement to 
carry the digital high-definition (HDTV) signals of over-the-air CBS 
television network stations. Under the agreement, EchoStar ``may 
distribute the CBS HDTV programming to any subscriber residing in (a) a 
market served by a CBS [owned and operated] station (i.e., CBS granted 
us a waiver for such distribution); (b) a market served by a CBS 
affiliate which has granted EchoStar a waiver; and (c) an 'unserved' 
area.'' Letter at 1. You note that Form SC requires reporting the 
number of subscribers who receive distant over-the-air network 
television stations but does not distinguish between receipt of an 
analog over-the-air signal and a digital over-the-air signal. Your 
inquiry to us is whether EchoStar should report carriage on Form SC of 
the distant subscribers who receive the digital CBS over-the-air 
signals. You conclude that, as a matter of law, the section 119 
statutory license covers the retransmission of distant digital over-
the-air signals as well as distant analog over-the-air signals.
    The statutory license set forth in section 119, with respect to 
network stations, applies to ``secondary transmissions of a performance 
or display of a work embodied in a primary transmission made by a 
network station. . . .'' 17 U.S.C. Sec. 119(a)(2)(A). A ``primary 
transmission'' is defined as a ``transmission made to the public by the 
transmitting facility whose signals are being received and further 
transmitted by the secondary transmission service, regardless of where 
or when the performance or display was first transmitted.'' 17 U.S.C. 
Sec. 119(d)(4), quoting 17 U.S.C. Sec. 111(). No mention is 
made of the character or type of signal that makes up the primary 
transmission, i.e., whether it can be analog, digital, or both. Section 
119 requires that a television station retransmitted by a satellite 
carrier must be licensed by the Federal Communications Commission. It 
is our understanding that the Commission does permit over-the-air 
television stations that it licenses to transmit a digital as well as 
an analog signal.\1\ Because section 119, by its terms, does not 
distinguish between analog or digital over the-air television signals, 
it appears that the license applies to secondary transmissions of both, 
provided, of course, that all other terms and conditions of the license 
are satisfied. Thus, in completing Form SC, it is correct to include 
all distant subscribers receiving digital CBS over-the-air signals, 
plus the distant subscribers of the analog CBS over-the-air signals 
that EchoStar is retransmitting.
---------------------------------------------------------------------------
    \1\ There is apparently at least one Florida broadcast station that 
transmits in digital only.
---------------------------------------------------------------------------
    In support of your argument that section 119 applies to carriage of 
digital as well as analog over-the-air network stations, you assert a 
distinction between the digital network of CBS stations and the analog 
network of CBS stations. You submit that EchoStar may provide distant 
digital network signals to subscribers who reside in unserved 
households and then offer an interpretation of the definition of an 
``unserved household'' that distinguishes between receipt of digital 
versus analog network signals. We do not agree with your approach. 
First, the ``unserved household'' provision of section 119 has nothing 
to do with whether the statutory license applies to digital as well as 
analog over-the-air television signals. Consequently, there is no 
reason to address, let alone interpret, that provision of the law. 
Second, for the reasons stated above, section 119 does not distinguish 
between retransmission of a digital or analog distant signal of an 
over-the-air television station. There is, therefore, no such thing as 
a digital network of CBS stations and a separate analog network of CBS 
stations for purposes of the section 119 license.
            Sincerely,
                                    William J. Roberts, Jr.
                                                   Senior Attorney.
                                 ______
                                 
                                  Economic Policy Institute
                                        Washington, DC, May 4, 2004

                 FCC Policies Stymie Telecom Industry 
      Ill-advised policies contributed to the loss of 380,000 jobs

    Outdated rules in the Telecommunications Act of 1996 strangle the 
established local wired phone companies and have contributed to the 
loss of 380,000 jobs across the entire economy, or as much as 15 
percent of the total jobs lost in the last recession. Stephen Pociask 
lays out the facts in A Failure to Communicate: Reforming Public Policy 
in the Telecommunications Industry, released today by the Economic 
Policy Institute.
    ``Reforming and updating current policies will promote job growth 
and revitalization of the telecom industry,'' said Jeff Keefe, EPI 
telecommunications project director.
    The Telecommunications Act of 1996 was intended to promote 
investment and innovation, thus lowering prices to consumers and 
encouraging investment in local wired phone networks. In reality, it 
pits the established local wired telephone companies, like Verizon, 
Bell South, SBC and Qwest, against other phone companies, including 
AT&T and WorldCom, in ways that discourage investment in building and 
stymie technological advances.
    The FCC set rules under the Act that obligate established local 
wired phone companies to make their telephone facilities available to 
other companies at prices substantially below the actual cost of 
building and maintaining those facilities. According to A Failure to 
Communicate, the established telephone companies are not receiving 
enough return on their investment to continue building and maintaining 
their wired facilities.
    Although other companies poured into the market initially, the 
bargain wholesale rates competitors pay are so low that there is no 
incentive to build new and more advanced networks. As a result, both 
the established local wired phone companies and other companies have 
cut their capital spending significantly.
    The obvious competition to the wired phone industry is from 
intermodal companies, i.e., competitors using wireless cell phones and 
cable networks capable of providing voice, data, and video services. 
The outdated FCC rules did not anticipate that these intermodal 
competitors would come to define the market.
    Established local wired phone companies lost nearly 193,000 jobs 
between January 2000 and November 2003 (See Figure 1 attached). Many 
jobs were lost due to the collapse of the Internet bubble in 2000. 
However, a significant number of jobs were lost when phone companies 
failed to invest in new and upgraded lines to meet the demands of the 
broadband market. That market is now dominated by the cable industry. 
``Established local wired phone companies were caught in a regulatory 
time warp that discouraged growth and innovation,'' said Stephen 
Pociask, president of TeleNomic Research.
Hardest hit states
    The job loss in this industry is geographically widespread and 
affects other industries. All states where data were available lost 
telecom jobs. The hardest hit states were Texas and California, with 
the loss of 26,700 and 20,200 wired telecommunications jobs, 
respectively, between August 2001 and August 2003. New Jersey, 
Colorado, Virginia, Massachusetts, and Maryland also suffered losses of 
over 20 percent of their telecom services jobs. (NJ lost 24.30 percent, 
CO lost 26.30 percent, VA lost 23 percent, MA lost 22.90 percent, and 
MD lost 20.60 percent. See Table 1 below for more state listings.) 
Employment levels in films that make telephone equipment fell 56 
percent since December 2000, for a loss of another 57,000 jobs 
nationwide.
    Lowering consumer prices is another goal the Act has failed to 
achieve. A Failure to Communicate shows that local telephone prices 
have increased by nine percent since 1996, compared to the seven years 
prior to the Act, when prices fell by 13 percent.
Policy recommendations
    A Failure to Communicate recommends raising the prices that 
established telecom companies can charge to market challengers. When it 
is no longer cheaper to rent than to build new and efficient 
facilities, challengers will be driven to invest in new technology, 
thereby creating more jobs.
    Cable, cell phones, and Internet services also compete in the race 
to transport electronic voice, data, and video. Cell phones, in 
particular, are making a serious impact on the established wired phone 
companies. As the soaring number of cell phone subscribers cuts into 
the demand for wired phone lines, regulations need to keep pace. The 
study recommends that the FCC look beyond the wired phone technology 
and include cable, cell phone, and Internet services when defining the 
marketplace.
    Stephen Pociask is president of TeleNomic Research, a consulting 
firm specializing in public policy analysis for information technology 
industries. He is affiliated with the New Millennium Research Council 
and previously served as chief economist and executive vice president 
for Joel Popkin and Co.
    The Economic Policy Institute is a non-profit, non-partisan 
economic think tank founded in 1986. The Institute is located on the 
web at http://www.epinet.org.

            Table 1.--Telecommunications services employment
             August 2001 and August 2003 [thousands of jobs]
------------------------------------------------------------------------
                               200l       2003     Difference   % change
------------------------------------------------------------------------
Texas                           125.3       98.6        -26.7    -21.30%
California                      142.6      122.4        -20.2     -14.20
New York                         79.2       64.1        -15.l     -19.10
New Jersey                       55.6       42.1        -13.5     -24.30
Florida                          79.5       66.6        -12.9     -16.20
Colorado                         46.0       33.9        -12.1     -26.30
Georgia                          66.9       55.0        -11.9     -17.80
Virginia                         47.4       36.5        -10.9     -23.00
Massachusetts                    28.8       22.2         -6.6     -22.90
Missouri                         32.5       26.2         -6.3     -19.40
Washington                       31.2       25.3         -5.9     -18.90
Maryland                         25.7       20.4         -5.3     -20.60
Illinois                         50.7       46.2         -4.5      -8.90
Ohio                             37.5       33.2         -4.3     -11.50
Pennsylvania                     47.3       43.3         -4.0      -8.50
Michigan                         26.8       23.5         -3.3     -12.30
Minnesota                        17.6       14.9         -2.7     -15.30
Oklahoma                         17.5       14.8         -2.7     -15.40
Alabama                          17.9       15.4         -2.5     -14.00
Arizona                          21.6       19.2         -2.4     -11.10
Connecticut                      16.1       13.8         -2.3     -14.30
North Carolina                   28.8       26.8         -2.0      -6.90
Indiana                          16.7       14.9         -1.8     -10.80
Oregon                           10.7        9.2         -1.5     -14.00
Kansas                           31.0       29.6         -1.4      -4.50
Tennessee                        18.2       16.8         -1.4      -7.70
Nevada                            8.6        7.3         -1.3     -15.10
Utah                              6.5        5.4         -1.1     -16.90
New Mexico                        8.8        7.9         -0.9     -10.20
Mississippi                       9.2        8.4         -0.8      -8.70
West Virginia                     6.5        6.0         -0.5      -7.70
Hawaii                            4.9        4.5         -0.4      -8.20
Kentucky                         10.3        9.9         -0.4      -3.90
South Carolina                   13.6       13.2         -0.4      -2.90
Louisiana                        13.9       13.6         -0.3      -2.20
Arkansas                          8.9        8.7         -0.2      -2.20
Alaska                            4.5        4.3         -0.2      -4.40
Idaho                             3.3        3.2         -0.1      -3.00
------------------------------------------------------------------------
U.S. Total                    1,293.0    1,129.1       -163.9    -12.70%
------------------------------------------------------------------------
Note: Telecommunications services data were not available for Delaware,
  Washington D.C., Iowa, Maine, Montana, Nebraska, New Hampshire, North
  Dakota, Rhode Island, South Dakota, Vermont, Wisconsin, and Wyoming.
  Data are not seasonally adjusted. These data include wired and
  wireless telecommunications. U.S. totals are from Bureau of Labor
  Statistics industry employment data; therefore, column totals do not
  sum to the U.S. totals shown in the last row.

  [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
  
    Note: Telecommunications figures are not seasonally adjusted and 
exclude the strike affecting August 2000.
    Source: Bureau of Labor Statistics, detailed reports at www.bls.gov

                                  [all]