[Congressional Record Volume 140, Number 115 (Tuesday, August 16, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                   SATELLITE HOME VIEWER ACT OF 1994

  Mr. BROOKS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 1103) to amend title 17, United States Code, with respect to 
secondary transmissions of superstations and network stations of 
private home viewing, and with respect to cable systems, as amended.
  The Clerk read as follows:

                               H.R. 1103

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Satellite Home Viewer Act of 
     1994''.

     SEC. 2. STATUTORY LICENSE FOR SATELLITE CARRIERS.

       Section 119 of title 17, United States Code, is amended as 
     follows:
       (1) Subsection (a)(2)(C) is amended--
       (A) by striking ``90 days after the effective date of the 
     Satellite Home Viewer Act of 1988, or'';
       (B) by striking ``whichever is later,'';
       (C) by inserting ``name and'' after ``identifying (by'' 
     each place it appears; and
       (D) by striking ``, on or after the effective date of the 
     Satellite Home Viewer Act of 1988,''.
       (2) Subsection (a)(5) is amended by adding at the end the 
     following:
       ``(D) Burden of proof.--In any action brought under this 
     paragraph, the satellite carrier shall have the burden of 
     proving that its secondary transmission of a primary 
     transmission by a network station is for private home viewing 
     to an unserved household.''.
       (3) Subsection (b)(1)(B) is amended--
       (A) in clause (i) by striking ``12 cents'' and inserting 
     ``17.5 cents per subscriber in the case of superstations not 
     subject to syndicated exclusivity under the regulations of 
     the Federal Communications Commission, and 14 cents per 
     subscriber in the case of superstations subject to such 
     syndicated exclusivity''; and
       (B) in clause (ii) by striking ``3'' and inserting ``6'';
       (4) Subsection (c) is amended--
       (A) in paragraph (1) by striking ``December 31, 1992,'';
       (B) in paragraph (2)--
       (i) in subparagraph (A) by striking ``July 1, 1991'' and 
     inserting ``January 1, 1996''; and
       (ii) in subparagraph (D) by striking ``December 31, 1994'' 
     and inserting ``December 31, 1999, or in accordance with the 
     terms of the agreement, whichever is later'';
       (C) in paragraph (3)--
       (i) in subparagraph (A) by striking ``December 31, 1991'' 
     and inserting ``July 1, 1996'';
       (ii) by amending subparagraph (D) to read as follows:
       ``(D) Establishment of fair market rates.--In determining 
     royalty fees under this paragraph, the Arbitration Panel 
     shall establish a rate, for the secondary transmission of 
     network stations and superstations, that reflects the fair 
     market value of such secondary transmissions. The Arbitration 
     Panel shall base its decision upon economic, competitive, and 
     programming information presented by the parties, and shall 
     take into account the competitive environment in which such 
     programming is distributed.'';
       (iii) in subparagraph (E) by striking ``60'' and inserting 
     ``180''; and
       (iv) in subparagraph (G) by striking ``, or until December 
     31, 1994''.
       (5) Subsection (a) is amended--
       (A) in paragraph (5)(C) by striking ``the Satellite Home 
     Viewer Act of 1988'' and inserting ``this section''; and
       (B) by adding at the end the following:
       ``(8) Transitional signal intensity measurement 
     procedures.--
       ``(A) In general.--Subject to subparagraph (C), upon a 
     challenge by a network station regarding whether a subscriber 
     is an unserved household within the predicted Grade B Contour 
     of the station, the satellite carrier shall, within 60 days 
     after the receipt of the challenge--
       ``(i) terminate service to that household of the signal 
     that is the subject of the challenge, and within 30 days 
     thereafter notify the network station that made the challenge 
     that service to that household has been terminated; or
       ``(ii) conduct a measurement of the signal intensity of the 
     subscriber's household to determine whether the household is 
     an unserved household.
       ``(B) Effect of measurement.--If the satellite carrier 
     conducts a signal intensity measurement under subparagraph 
     (A) and the measurement indicates that--
       ``(i) the household is not an unserved household, the 
     satellite carrier shall, within 60 days after the measurement 
     is conducted, terminate the service to that household of the 
     signal that is the subject of the challenge, and within 30 
     days thereafter notify the network station that made the 
     challenge that service to that household has been terminated; 
     or
       ``(ii) the household is an unserved household, the station 
     challenging the service shall reimburse the satellite carrier 
     for the costs of the signal measurement within 60 days after 
     receipt of the measurement results and a statement of the 
     costs of the measurement.
       ``(C) Limitation on measurements.--(i) Notwithstanding 
     subparagraph (A), a satellite carrier may not be required to 
     conduct signal intensity measurements during any calendar 
     year in excess of 5 percent of the number of subscribers 
     within the network station's local market that have 
     subscribed to the service as of the effective date of the 
     Satellite Home Viewer Act of 1994.
       ``(ii) If a network station challenges whether a subscriber 
     is an unserved household in excess of 5 percent of the 
     subscribers within the network's station local market within 
     a calendar year, subparagraph (A) shall not apply to 
     challenges in excess of such 5 percent, but the station may 
     conduct its own signal intensity measurement of the 
     subscriber's household. If such measurement indicates that 
     the household is not an unserved household, the carrier 
     shall, within 60 days after receipt of the measurement, 
     terminate service to the household of the signal that is the 
     subject of the challenge and within 30 days thereafter notify 
     the network station that made the challenge that service has 
     been terminated. The carrier shall also, within 60 days after 
     receipt of the measurement and a statement of the costs of 
     the measurement, reimburse the network station for the cost 
     it incurred in conducting the measurement.
       ``(D) Outside the predicted grade b contour.--(i) If a 
     network station challenges whether a subscriber is an 
     unserved household outside the predicted Grade B Contour of 
     the station, the station may conduct a measurement of the 
     signal intensity of the subscriber's household to determine 
     whether the household is an unserved household.
       ``(ii) If the network station conducts a signal intensity 
     measurement under clause (i) and the measurement indicates 
     that--
       ``(I) the household is not an unserved household, the 
     station shall forward the results to the satellite carrier 
     who shall, within 60 days after receipt of the measurement, 
     terminate the service to the household of the signal that is 
     the subject of the challenge, and shall reimburse the station 
     for the costs of the measurement within 60 days after receipt 
     of the measurement results and a statement of such costs; or
       ``(II) the household is an unserved household, the station 
     shall pay the costs of the measurement.
       ``(9) Loser pays for signal intensity measurement; recovery 
     of measurement costs in a civil action.--In any civil action 
     filed relating to the eligibility of subscribing households 
     as unserved households--
       ``(A) a network station challenging such eligibility shall 
     reimburse the satellite carrier for any signal intensity 
     measurement that is conducted by that carrier in response to 
     a challenge by the network station and that establishes the 
     household is an unserved household; and
       ``(B) a satellite carrier shall reimburse the network 
     station challenging such eligibility for any signal intensity 
     measurement that is conducted by that station and that 
     establishes the household is not an unserved household.
       ``(10) Inability to conduct measurement.--If a network 
     station makes a reasonable attempt to conduct a site 
     measurement of its signal at a subscriber's household and is 
     denied access for the purpose of conducting the measurement, 
     the satellite carrier shall within 60 days notice thereof, 
     terminate service of the station's network to that 
     household.''.
       (6) Subsection (d) is amended--
       (A) by amending paragraph (2) to read as follows:
       ``(2) Network station.--The term `network station' means--
       ``(A) a television broadcast station, including any 
     translator station or terrestrial satellite station that 
     rebroadcasts all or substantially all of the programming 
     broadcast by a network station, that is owned or operated by, 
     or affiliated with, one or more of the television networks in 
     the United States which offer an interconnected program 
     service on a regular basis for 15 or more hours per week to 
     at least 25 of its affiliated television licensees in 10 or 
     more States; or
       ``(B) a noncommercial educational broadcast station (as 
     defined in section 397 of the Communications Act of 1934).'';
       (B) in paragraph (6) by inserting ``and operates in the 
     Fixed-Satellite Service under part 25 of title 47 of the Code 
     of Federal Regulations or the Direct Broadcast Satellite 
     Service under part 100 of title 47 of the Code of Federal 
     Regulations'' after ``Commission''; and
       (C) by adding at the end the following:
       ``(11) Local market.--The term `local market' means the 
     area encompassed within a network station's predicted Grade B 
     contour as that contour is defined by the Federal 
     Communications Commission.''.

     SEC. 3. DEFINITIONS.

       (a) Cable System.--Section 111(f) of title 17, United 
     States Code, is amended in the paragraph relating to the 
     definition of ``cable system'' by inserting ``microwave,'' 
     after ``wires, cables,''.
       (b) Local Service Area.--Section 111(f) of title 17, United 
     States Code, is amended in the paragraph relating to the 
     definition of ``local service area of a primary transmitter'' 
     by inserting after ``April 15, 1976,'' the following: ``or 
     such station's television market as defined in section 
     76.55(e) of title 47, Code of Federal Regulations (as in 
     effect on September 18, 1993), or any modifications to such 
     television market made, on or after September 18, 1993, 
     pursuant to section 76.55(e) or 76.59 of title 47 of the Code 
     of Federal Regulations,''.

     SEC. 4. TERMINATION.

       (a) Expiration of Amendments.--Section 119 of title 17, 
     United States Code, as amended by section 2 of this Act, 
     ceases to be effective on December 31, 1999.
       (b) Conforming Amendment.--Section 207 of the Satellite 
     Home Viewer Act of 1988 (17 U.S.C. 119 note) is repealed.

     SEC. 5. EFFECTIVE DATE.

       (a) In General.--Except as provided in subsections (b) and 
     (d), this Act and the amendments made by this Act take effect 
     on the date of the enactment of this Act.
       (b) Burden of Proof Provisions.--The provisions of section 
     119(a)(5)(D) of title 17, United States Code (as added by 
     section 2(2) of this Act) relating to the burden of proof of 
     satellite carriers, shall take effect on January 1, 1997, 
     with respect to civil actions relating to the eligibility of 
     subscribers who subscribed to service as an unserved 
     household before the date of the enactment of this Act.
       (c) Transitional Signal Intensity Measurement Procedures.--
     The provisions of section 119(a)(8) of title 17, United 
     States Code (as added by section 2(5) of this Act), relating 
     to transitional signal intensity measurements, shall cease to 
     be effective on December 31, 1996.
       (d) Local Service Area of a Primary Transmitter.--The 
     amendment made by section 3(b), relating to the definition of 
     the local service area of a primary transmitter, shall take 
     effect on July 1, 1994.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas [Mr. Brooks] will be recognized for 20 minutes, and the gentleman 
from California [Mr. Moorhead] will be recognized for 20 minutes.
  The Chair recognizes the gentleman from Texas [Mr. Brooks].
  Mr. BROOKS. Mr. Speaker, I rise in support of H.R. 1103, the 
Satellite Home Viewers Act of 1994.
  1103 has several purposes. It extends until December 31, 1999, the 
compulsory license in section 119, Title 17, United State Code, which 
is now scheduled to expire at the end of this year. That license 
permits satellite carriers to deliver television programming to the 
public for private home viewing so long as they have complied with the 
conditions for the compulsory license.
  The bill also clarifies that wireless cable television systems are 
entitled to avail themselves of the section 111 compulsory license. 
And, it amends the definition of ``Local service area of a primary 
transmitter'' in section 111(F) to correct an anomaly in the Copyright 
Act that has resulted in newer television stations being treated as 
distant signals while older stations in the same geographic area are 
treated as local signals, and I want to commend the particularly fine 
work of this committee's subcommittee on Intellectual Property and 
Judicial Administration. The chairman of that subcommittee the 
gentleman from New Jersey [Mr. Hughes] has done an outstanding job, and 
I just want to say again that we deeply regret that he is retiring and 
we will no longer have the advantages of his fine service and his keen 
intellect. The gentleman from California [Mr. Moorhead], the ranking 
Republican, has worked tirelessly on this matter and deserves much 
credit as well. In addition subcommittee members, the gentleman from 
Oklahoma [Mr. Synar] and the gentleman from Virginia [Mr. Boucher], 
have played a very prominent role in developing a proper, workable 
policy in this area and will continue to do so, and I urge all Members 
to support passage of H.R. 1103.
  Mr. Speaker, I reserve the balance of my time.
  Mr. MOORHEAD. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. MOORHEAD asked and was given permission to revise and extend his 
remarks.)
  Mr. MOORHEAD. Mr. Speaker, I would like to commend our subcommittee 
chairman, the gentleman from New Jersey [Mr. Hughes] for his hard work 
and leadership in this area; also the gentleman from New York [Mr. 
Fish] has been instrumental in drafting and moving this legislation to 
the floor. Also, the chairman, the gentleman from Texas [Mr. Brooks] 
has been helpful.
  Although the main purpose of this legislation is a 5-year extension 
of the Satellite Home Viewer Act which this subcommittee processed in 
1988, this bill also contains a provision dealing with the definition 
of wireless cable which is very similar to a bill, H.R. 759, that the 
gentleman from Virginia [Mr. Boucher] and I introduced and which was 
part of the overall hearings on H.R. 1103. That bill was prompted by a 
1992 ruling by the Register of Copyrights that would strip the industry 
of its compulsory license which it has enjoyed for a number of years 
under section 111 of the Copyright Act.
  The bill before us today, provides that wireless and other cable-like 
systems will be made part of the compulsory license. I believe it is 
important to encourage these new technologies because they will become 
real competitors of cable TV in the marketplace. Competition is an 
important factor in keeping cable TV rates at a reasonable price. The 
consumer will be the ultimate benefactor of this increase in 
competition.
  In 1988 when we drafted the original Satellite Home Viewer Act we 
intended that after 6 years the industry involved would be able to move 
into voluntary private contracts for the licensing of copyrighted 
programming. Although the act has worked very well we are not yet to 
that point where the marketplace can take over, so we still need the 
regulation provided in H.R. 1103. However, I am pleased to see that 
during the next negotiations that the arbitrators will at least be able 
to consider the fair market value of this copyrighted programming; that 
is, if the parties have been unable to come to an agreement on their 
own. But I think we have come a long way--it is important legislation, 
and I urge a favorable vote on H.R. 1103.
  Mr. BROOKS. Mr. Speaker, I yield 4 minutes to the distinguished 
gentleman from New Jersey [Mr. Hughes] chairman of the Subcommittee on 
Intellectual Property and Judicial Administration.
  (Mr. HUGHES asked and was given permission to revise and extend his 
remarks.)
  Mr. HUGHES. Mr. Speaker, I rise in support of H.R. 1103, the 
Satellite Home Viewer Act of 1994. H.R. 1103 will extend the current 
compulsory license in section 119 of the Copyright Act until December 
31, 1999. This extension ensures that millions of Americans who cannot 
receive over-the-air television signals or cable will have access to 
network signals.
  At the same time, H.R. 1103 makes a number of improvements in the 
existing statute, including a voluntary system of testing households 
for unserved status, and establishment of fair market value as the 
benchmark by which arbitrators will set the midcourse rate adjustment. 
H.R. 1103 also requires that the names of subscribers be provided. In 
some cases, current contracts between satellite carriers and their 
distributors regard these names as proprietary to the distributor. For 
this reason, network stations should work with the carriers during an 
expected transition period while these contracts are being redone. I 
would like to take the balance of my time explaining this last 
provision.
  The section 119 compulsory license is a government set fee for the 
unconsented to use of copyrighted television programming: It is not a 
free market rate; it is, basically, a government-mandated subsidy by 
copyright owners for the benefit of satellite carriers. Having paid a 
subsidized rate, satellite carriers sell copyright owners' programming 
to consumers at whatever the market will bear.
  The difference between the compulsory license rate paid by satellite 
carriers to copyright owners, and the rate they charge consumers is eye 
opening: For the three network signals, satellite carriers pay 
copyright owners a total of $2.16 a year. One carrier charges consumers 
$50 a year for these same signals, a mark up of $47.84.
  I have heard concerns that H.R. 1103, by requiring the arbitrators to 
set a fair market rate in late 1996, will discourage satellite carriers 
from competing with cable. I don't agree. In most cases, there are no 
cable systems to compete with. Most rural Americans have a single 
source--the satellite carrier--and we've seen what satellite carriers 
charge in the absence of competition.
  As importantly, cable has invested heavily in satellite carriers. 
TCI, our largest cable company, owns an 80-percent share in one of the 
two satellite carriers delivering network signals, and a 23-percent 
interest in the other.
  This is not a dispute between copyright owners and rural dish owners. 
It is, instead, an understandable effort by cable companies and their 
satellite partners to hang on to a profitable government subsidy, a 
sibsidy they are receiving at the expense of copyright owners. If my 
colleagues are concerned about the prices home dish owners are being 
charged, and I believe there is reason for such concern, the source of 
that concern cannot be the meager $2.16 network copyright owners 
receive. One solution may be found in last Congress's Cable Act's price 
discrimination provisions. There may be others, and I will be pleased 
to explore any suggestions my colleagues may develop.

                              {time}  1220

  Mr. Speaker, this is a good bill. I do not think there is any great 
controversy, although we do have to resolve some differences in 
conference.
  Mr. Speaker, I want to commend the gentleman from Texas [Mr. Brooks], 
the distinguished chairman of the full committee, and his ranking 
Republican, the gentleman from New York [Mr. Fish]. I want to thank in 
particular the gentleman from California [Mr. Moorhead], who is my 
partner and colleague on the Subcommittee on Intellectual Property and 
Judicial Administration, for his work. I commend also the gentleman 
from Virginia [Mr. Boucher], as well as the gentleman from Oklahoma 
[Mr. Synar], who has worked very hard on this particular legislation.
  The staff has worked very hard on this and on other bills that are 
pending on the Senate side. I am referring to Hayden Gregory, the chief 
counsel, and his counterpart, Tom Mooney, on the Republican side, along 
with Bill Patry on the majority side, and Joe Wolfe on the minority 
side. I commend them for their work also.
  Mr. Speaker, it is a good bill, and I urge my colleagues to support 
it.
  Mr. MOORHEAD. Mr. Speaker, I reserve the balance of my time.
  Mr. BROOKS. Mr. Speaker, I yield 4 minutes to the distinguished 
gentleman from Virginia [Mr. Boucher], a member of the committee.
  (Mr. BOUCHER asked and was given permission to revise and extend his 
remarks.)
  Mr. BOUCHER. Mr. Speaker, I want to express my appreciation to the 
gentleman from Texas [Mr. Brooks], the distinguished chairman of our 
committee, for yielding this time to me, and also I wish to commend him 
for his leadership. I commend also the gentleman from New Jersey [Mr. 
Hughes] for his leadership in bringing the Home Satellite Viewer Act 
through the committee process and onto the House floor.
  In 1988 we enacted the initial version of this legislation for the 
very important purpose of assuring that owners of backyard satellite 
dishes could receive unscrambled signals from the major networks. In 
the 1980's networks were beginning to scramble their signals, and 
millions of backyard dish owners found that they could no longer 
receive the popular programming provided by CBS, ABC, and NBC, the 
major networks. The 1988 act was a response to the need of dish owners 
to receive that programming.
  At the same time, in 1988 we took into account the entirely 
legitimate concern of local broadcast stations that carried the 
networks that they not lose viewers due to dish owners subscribing to 
network signals over the satellite rather than picking up the signal 
over the air from local broadcast stations. In striking a balance 
between these competing interests, the 1988 act assured that dish 
owners could subscribe to satellite-delivered network signals but only 
if they could not receive that signal by some other means, namely, over 
the air from the local broadcast station or by means of cable TV.
  During the past 6 years millions of primarily rural viewers have 
benefited by receiving network-delivered satellite signals from the 
major networks. There has, however, been controversy, as local stations 
charged that many dish owners who subscribed to network-delivered 
signals could have received those same signals by means of a local 
broadcast from the local affiliate. Local stations argued that this 
practice deprived them of viewers and, therefore, deprived them of 
advertising revenues, and they pointed out that the problem could 
worsen as direct broadcast satellite services that transmit from a very 
high-powered satellite to very small 18-inch dishes become available 
nationwide and, therefore, expand the number of viewers who receive 
signals generally by means of satellite delivery.
  The bill that we consider today contains new provisions written with 
the assistance of the satellite carriers and the local network 
affiliates that will specify how to ascertain whether dish owners are 
eligible to receive satellite-delivered network signals. The 
controversy between local affiliates and the satellite networks had 
threatened the long-term viability of the satellite license and the 
ability of people who live beyond the reach of local stations to 
receive network signals.
  We have structured a workable agreement, and I want to thank the 
parties to it for approaching this reform legislation in such a 
constructive manner. I also want to express thanks to the gentleman 
from California [Mr. Moorhead] with whom I was pleased to introduce 
legislation at the start of this Congress to renew the 1988 license. It 
is always a pleasure to work with him. I also want to commend the 
gentleman from Oklahoma [Mr. Synar] for his very fine work on this 
measure.
  Mr. Speaker, I urge the adoption of H.R. 1103.
  Mr. SYNAR. Mr. Speaker, H.R. 1103, the Satellite Home Viewer Act is 
necessary legislation that will amend the copyright law to extend the 
satellite compulsory license. Compulsory licenses, first enacted for 
the nascent cable industry, and later for an infant satellite broadcast 
industry, allow the transmission of copyrighted television programming 
in return for a statutorily determined fee. The compulsory license 
mechanism has been essential for the development of the cable and 
satellite broadcast industry by facilitating the clearance of the 
thousands of copyrights related to television programming thereby 
ensuring access to that programming by cable system operators and 
satellite broadcasters.
  H.R. 1103, which extends the satellite compulsory license for a 
period of 5 years, will also reform the arbitration process used to 
arrive at the statutorily determined copyright royalty fee charged to 
satellite broadcasters for retransmitting copyrighted programming. 
Under the legislation, future adjustments of the royalty fees payable 
under section 119 of the Copyright Act for secondary transmissions by 
satellite carriers are to be determined by arbitration panels applying 
a fair market value standard.
  This concept, strongly favored by the chief sponsor of H.R. 1103, 
Congressman Hughes, is an attempt to embody a worthy policy goal--to 
direct the arbitration panel to come up with a royalty fee that 
replicates, as closely as possible, the price two private parties 
negotiating on their own behalf would agree to. Unfortunately, while it 
is an honest attempt, fair market value as contemplated in H.R. 1103, 
will not result in a fair outcome of the arbitration proceeding.
  I fear such an outcome because the arbitration panels are given very 
little guidance in H.R. 1103 as to what fair market value means. Aside 
from the business uncertainty this will foster, without any real 
direction in the statute itself, Panel members will necessarily have to 
look elsewhere to divine what fair market value is supposed to mean. 
Unfortunately, there is virtually no other place for the panels to look 
for the guidance they will need to set a fair royalty fee rate. They 
cannot look to current law because there is no concept of fair market 
value anywhere else in the copyright code. They cannot look to an 
already established private market to set the fee for broadcast signals 
because there is no existing private market to look to. And finally, 
the little guidance H.R. 1103 does offer discourages the arbitration 
panel from doing what they have always done in the past--take into 
account the royalty fees paid by the satellite industry's chief 
competitor--the cable industry.
  Which raises the other serious concern I have with the concept of 
fair market value. Because the compulsory license under which the cable 
industry operates does not look to fair market value to set the fees 
charged to cable for the retransmission of programming, I fear that 
fair market value will put satellite industry at a competitive 
disadvantage to cable by charging satellite carriers more in copyright 
fees for carrying the exact same programming carried by cable. The 
satellite industry directly competes with cable right now.
  Thirty to forty percent of all satellite dish households live in 
areas wired for cable. Already, satellite carriers pay higher copyright 
fees than cable for carrying the same exact programs carried by cable. 
If fair market value is enacted, I fear this gap will grow. For 
consumers who have a choice between satellite and cable, this will make 
satellite services a less attractive alternative to cable television, 
thus denying the benefits of effective video competition to consumers 
around the country.
  Fair market value becomes even more troublesome when one considers 
the potential impact on the infant Direct Broadcast Satellite [DBS] 
industry which is expected to directly compete with cable in urban and 
suburban America in the coming years. DBS, whose copyright royalty fees 
will also be determined under the proposed arbitration reforms of H.R. 
1103, could see its price of programming raised relative to the cost of 
programming for cable systems. This could immediately put this newborn 
industry at a competitive disadvantage to cable at a time when Congress 
is trying to encourage vigorous cable competition for the benefit of 
video consumers.
  For these reasons, the Senate, in its consideration of similar 
legislation, rejected the concept of fair market value. Others, 
including the Consumer Federation of America and the House Rural Caucus 
have ratified the Senate's position by opposing H.R. 1103's ill-defined 
notion of fair market value.
  It is my hope that if this bill reaches a House-Senate conference, 
the House will recede to the relevant Senate provisions and preserve 
the royalty fee arbitration process found in current law. While I agree 
with Mr. Hughes that Congress must move this process in a direction 
that more closely resembles the negotiations of private parties, I 
cannot support the concept of fair market value currently found in H.R. 
1103. It's lack of guidance for the Copyright Office's arbitration 
panels will ultimately hurt competition in the video programming 
distribution industry and that is bad public policy.
  For these reasons I urge my colleagues to vote against this 
legislation.
  Mr. MOORHEAD. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. BROOKS. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Traficant). The question is on the 
motion offered by the gentleman from Texas [Mr. Brooks] that the House 
suspend the rules and pass the bill, H.R. 1103, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.
  Mr. BROOKS. Mr. Speaker, I ask unanimous consent that the Committee 
on the Judiciary be discharged from further consideration of the Senate 
bill (S. 1485) to extend certain satellite carrier compulsory licenses, 
and for other purposes, and ask for its immediate consideration in the 
House.
  The Clerk read the title of the Senate bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  The Clerk read the Senate bill as follows:

                                S. 1485

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Satellite Compulsory License 
     Extension Act of 1994''.

     SEC. 2. STATUTORY LICENSE FOR SATELLITE CARRIERS.

       Section 119 of title 17, United States Code, is amended--
       (1) in subsection (a)(2)(C)--
       (A) by striking out ``90 days after the effective date of 
     the Satellite Home Viewer Act of 1988, or'';
       (B) by striking out ``whichever is later,'';
       (C) by inserting ``name and'' after ``identifying (by'' 
     each place it appears; and
       (D) by striking out ``, on or after the effective date of 
     the Satellite Home Viewer Act of 1988,'';
       (2) in subsection (a)(5)--
       (A) in subparagraph (C) by striking out ``the Satellite 
     Home Viewer Act of 1988'' and inserting in lieu thereof 
     ``this section''; and
       (B) by adding at the end thereof the following new 
     subparagraphs:
       ``(D) Burden of proof.--In any action brought under this 
     subsection, the satellite carrier shall have the burden of 
     proof (in the case of a primary transmission by a network 
     station) that a subscriber is an unserved household.
       ``(E) Signal intensity measurement; loser pays.--
       ``(i) Grade b contour.--(I) Within the Grade B Contour, 
     upon a challenge by a network affiliate regarding whether a 
     subscriber is an unserved household, the satellite carrier 
     shall--

       ``(aa) deauthorize service to that household; or
       ``(bb) conduct a measurement of the signal intensity of the 
     subscriber's household to determine whether the household is 
     unserved.

       ``(II) If the carrier conducts a signal intensity 
     measurement under subclause (I) and the measurement indicates 
     that--

       ``(aa) the household is not an unserved household, the 
     carrier shall immediately deauthorize the service to that 
     household; or
       ``(bb) the household is an unserved household, the 
     affiliate challenging the service shall reimburse the carrier 
     for the costs of the signal measurement, within 45 days after 
     receipt of the measurement results and a statement of the 
     costs.

       ``(III)(aa) Notwithstanding subclause (II), a carrier may 
     not be required to test in excess of 5 percent of the 
     subscribers that have subscribed to service before the 
     effective date of the Satellite Compulsory License Extension 
     Act of 1994, within any market during a calendar year.
       ``(bb) If a network affiliate challenges whether a 
     subscriber is an unserved household in excess of the 5 
     percent of the subscribers within any market, the affiliate 
     may conduct its own signal intensity measurement. If such 
     measurement indicates that the household is not an unserved 
     household, the carrier shall immediately deauthorize service 
     to that household and reimburse the affiliate, within 45 days 
     after receipt of the measurement and a statement of costs.
       ``(ii) Outside the grade b contour.--(I) Outside the Grade 
     B Contour, if a network affiliate challenges whether a 
     subscriber is an unserved household the affiliate shall 
     conduct a signal intensity measurement of the subscriber's 
     household to determine whether the household is unserved.
       ``(II) If the affiliate conducts a signal intensity 
     measurement under subclause (I) and the measurement indicates 
     that--

       ``(aa) the household is not an unserved household, the 
     affiliate shall forward the results to the carrier who shall 
     immediately deauthorize service to the household, and 
     reimburse the affiliate within 45 days after receipt of the 
     results and a statement of the costs; or
       ``(bb) the household is an unserved household, the 
     affiliate shall pay the costs of the measurement.

       ``(iii) Recovery of measurement costs in a civil action.--
     In any civil action filed relating to the eligibility of 
     subscribing households, a challenging affiliate shall 
     reimburse a carrier for any signal intensity measurement that 
     indicates the household is an unserved household.'';
       (3) in subsection (b)(1)(B)--
       (A) in clause (i) by striking out ``12 cents'' and 
     inserting in lieu thereof ``17.5 cents per subscriber in the 
     case of superstations not subject to syndicated exclusivity 
     under the regulations of the Federal Communications 
     Commission, and 14 cents per subscriber in the case of 
     superstations subject to such syndicated exclusivity''; and
       (B) in clause (ii) by striking out ``3'' and inserting in 
     lieu thereof ``6'';
       (4) in subsection (c)--
       (A) in the heading for paragraph (1) by striking out 
     ``Determination'' and inserting in lieu thereof 
     ``Adjustment'';
       (B) in paragraph (1)--
       (i) by striking out ``December 31, 1992, unless''; and
       (ii) by striking out ``After that date,'' and inserting in 
     lieu thereof ``All adjustments of'';
       (C) in paragraph (2)--
       (i) in subparagraph (A) by striking out ``July 1, 1991,'' 
     and inserting in lieu thereof ``January 1, 1996,''; and
       (ii) in subparagraph (D) by striking out ``until December 
     31, 1994'' and inserting in lieu thereof ``in accordance with 
     the terms of the agreement''; and
       (D) in paragraph (3)(A) by striking out ``December 31, 
     1991,'' and inserting in lieu thereof ``July 1, 1996,''; and
       (5) in subsection (d)--
       (A) by amending paragraph (2) to read as follows:
       ``(2) Network station.--The term `network station' means--
       ``(A) a television broadcast station, including any 
     translator station or terrestrial satellite station that 
     rebroadcasts all or substantially all of the programming 
     broadcast by a network station, that is owned or operated by, 
     or affiliated with, one or more of the television networks in 
     the United States which offer an interconnected program 
     service on a regular basis for 15 or more hours per week to 
     at least 25 of its affiliated television licensees in 10 or 
     more States; or
       ``(B) any noncommercial educational station, as defined in 
     section 111(f) of this title, that is a member of the public 
     broadcasting service.''; and
       (B) in paragraph (6) by inserting ``and operates in the 
     Fixed Satellite Service under part 25 of title 47 of the Code 
     of Federal Regulations or the Direct Broadcast Satellite 
     Service under part 100 of title 47 of the Code of Federal 
     Regulations,'' after ``Commission,''.

     SEC. 3. CABLE COMPULSORY LICENSE.

       Section 111(f) of title 17, United States Code, is 
     amended--
       (1) in the paragraph relating to the definition of ``cable 
     system'' by striking out ``wires, cables'' and inserting in 
     lieu thereof ``wires, microwave, cables''; and
       (2) in the paragraph relating to the definition of ``local 
     service area of a primary transmitter''--
       (A) by striking out ``comprises the area'' and inserting in 
     lieu thereof ``comprises either the area''; and
       (B) by inserting after ``April 15, 1976,'' the following: 
     ``or such station's television market as defined in section 
     76.55(e) of title 47, Code of Federal Regulations (as in 
     effect on September 18, 1993), or any subsequent 
     modifications to such television market made pursuant to 
     section 76.55(e) or 76.59 of title 47 of the Code of Federal 
     Regulations,''.

     SEC. 4. TERMINATION.

       (a) Expiration of Amendments.--Section 119 of title 17, 
     United States Code, as amended by section 2 of this Act, 
     ceases to be effective on December 31, 1999.
       (b) Technical and Conforming Amendment.--Section 207 of the 
     Satellite Home Viewer Act of 1988 (17 U.S.C. 119 note) is 
     repealed.

     SEC. 5. EFFECTIVE DATE.

       (a) In General.--Except as provided under subsection (b), 
     the provisions of this Act and amendments made by this Act 
     shall take effect on the date of the enactment of this Act.
       (b) Burden of Proof Provisions.--The provisions of section 
     119(a)(5)(D) of title 17, United States Code, (as added by 
     section 2(2)(B) of this Act) relating to the burden of proof 
     of satellite carriers, shall take effect on January 1, 1997, 
     with respect to civil actions relating to the eligibility of 
     subscribers who subscribed to service as an unserved 
     household before the date of the enactment of this Act.


                      motion offered by mr. brooks

  Mr. BROOKS. Mr. Speaker, I offer a motion.
  The Clerk read as follows:

       Mr. Brooks moves to strike all after the enacting clause of 
     the Senate bill, S. 1485, and insert in lieu thereof the 
     provisions of H.R. 1103, as passed by the House.

  The motion was agreed to.
  The Senate bill was ordered to be read a third time, was read the 
third time, and passed.
  The title of the Senate bill was amended so as to read: ``A bill to 
amend title 17, United States Code, with respect to secondary 
transmissions of superstations and network stations for private home 
viewing, and with respect to cable systems.''
  A motion to reconsider was laid on the table.
  A similar House bill (H.R. 1103) was laid on the table.


                  appointment of conferees on s. 1485

  Mr. BROOKS. Mr. Speaker, I offer a motion.
  The Clerk read as follows:

       Mr. Brooks moves that the House insist on its amendment to 
     the Senate bill, S. 1485, and requests a conference with the 
     Senate thereon.

  The motion was agreed to.
  The SPEAKER pro tempore. Without objection, the Chair appoints the 
following conferees on S. 1485: Messrs. Brooks, Hughes, Synar, Boucher, 
Frank of Massachusetts, Moorhead, Coble, and Fish.
  There was no objection.

                          ____________________