[Congressional Record Volume 140, Number 142 (Tuesday, October 4, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 4, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           SATELLITE HOME VIEWER ACT--MESSAGE FROM THE HOUSE

  Mr. FORD. Mr. President, I ask that the Chair lay before the Senate a 
message from the House of Representatives on a bill (S. 2406) to amend 
title 17, United States Code, relating to the definition of a local 
service area of a primary transmitter, and for other purposes.
  The PRESIDING OFFICER laid before the Senate the following message 
from the House of Representatives:

       Resolved, That the bill from the Senate (S. 2406) entitled 
     ``An Act to amend title 17, United States Code, relating to 
     the definition of a local service area of a primary 
     transmitter, and for other purposes'', do pass with the 
     following amendment:

  Strike out all after the enacting clause and insert:

     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 ``July 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''; and
       (C) in paragraph (3)--
       (i) in subparagraph (A) by striking ``December 31, 1991'' 
     and inserting ``January 1, 1997'';
       (ii) by amending subparagraph (D) to read as follows:
       ``(D) Establishment of royalty fees.--In determining 
     royalty fees under this paragraph, the Copyright Arbitration 
     Panel shall establish fees for the retransmission of network 
     stations and superstations that most clearly represent the 
     fair market value of secondary transmissions. In determining 
     the fair market value, the Panel shall base its decision on 
     economic, competitive, and programming information presented 
     by the parties, including--
       ``(i) the competitive environment in which such programming 
     is distributed, the cost for similar signals in similar 
     private and compulsory license marketplaces, and any special 
     features and conditions of the retransmission marketplace;
       ``(ii) the economic impact of such fees on copyright owners 
     and satellite carriers; and
       ``(iii) the impact on the continued availability of 
     secondary transmissions to the public.'';
       (iii) in subparagraph (E) by striking ``60'' and inserting 
     ``180''; and
       (iv) in subparagraph (G)--

       (I) by striking ``, or until December 31, 1994''; and
       (II) by inserting ``or July 1, 1997, whichever is later'' 
     after ``section 802(g)''.

       (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 after giving reasonable notice to the 
     network station of the satellite carrier's intent to conduct 
     the measurement.
       ``(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 after giving reasonable notice to the 
     satellite carrier of the network station's intent to conduct 
     the measurement. 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 after giving 
     reasonable notice to the satellite carrier of the network 
     station's intent to conduct the measurement.
       ``(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, 
     within 60 days after receipt of the measurement results and a 
     statement of such costs, 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, within 60 days after 
     receipt of the measurement results and a statement of such 
     costs, 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, 
     and is otherwise unable to conduct a 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. LIMITATION.

       The amendments made by this section apply only to section 
     119 of title 17, United States Code.

     SEC. 6. 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.
  Mr. LEAHY. Mr. President, when I spoke on March 3, 1994, I announced 
my cosponsorship of the Satellite Home Viewer Act extension legislation 
and urged timely action on this important legislation. I have returned 
to the floor since then to mark the progress of this bill and upon 
Senate passage in May, to urge our House colleagues to take prompt 
action, as well.
  After some delay and difficult negotiations, I am delighted that 
today we can take the last step on the legislative road to enactment of 
the provisions needed to continue home viewer access to satellite 
reception of television. Thousands of families in Vermont and millions 
of households nationwide can now rest assured that their home satellite 
dishes are not about to go dark.
  Mountains and long distances can interfere with over-the-air 
reception of television broadcast and cable television is not a viable 
alternative in many settings. Fortunately, satellite technology has 
helped extend access to information and entertainment to those living 
in rural areas. I am proud to have played a role in developing and 
passing the Satellite Home Viewer Act in 1988 that made possible the 
emergence of home satellite viewing.
  The extension of the Satellite Home Viewer Act is necessary because 
there still exists no effective method to clear rights and reach 
agreements between satellite carriers and copyright holders. I 
encourage the relevant industries to proceed without delay to develop 
rights clearance mechanisms.
  By means of the bill we pass into law today, we are extending the 
statutory copyright license for home satellite viewers without 
interruption and without an increase in copyright royalty rates for 
2\1/2\ years. By means of this legislation we also make possible the 
accelerated development of microwave and other technologies. It is my 
purpose to encourage increased accessibility for viewers, greater 
variety of programming for them, continuing development of alternative 
technologies, and to create competitive situations, such as between 
cable and satellite, to better serve the public.
  As we begin our journey to an information superhighway, we should be 
careful to extend to those in unserved and underserved areas, in remote 
locations and rural communities, the greatest possible opportunity to 
participate in the harvest of new services and features that are now 
nurturing.
  I thank my friend, the senior Senator from Arizona [Mr. DeConcini], 
for the diligence and persistence he demonstrated in working to ensure 
that this legislation would be enacted timely and commend all those in 
the satellite industry and competing concerns who worked so assiduously 
and constructively to reconcile their positions. In this way we allow 
satellite home viewing to continue without interruption of service and 
avoid congressional gridlock being responsible for pulling the plug on 
home satellite viewers.
  Mr. BROWN. Mr. President, I rise today in support of S. 2406 as 
amended. This important piece of legislation will guarantee satellite 
dish owners who cannot receive network signals from a local station the 
ability to continue to receive them through satellite delivery.
  I also want to take this opportunity to commend my colleagues in the 
House on their amendment limiting the mandatory arbitration law, as 
amended by the fair market value language of this bill, to section 119 
of title 17, the Statutory License for Satellite Carriers. By limiting 
this mandatory arbitration/fair market value language to the satellite 
industry, this limitation amendment recognizes the ability broadcasters 
already have to negotiate for fair market value compensation under 
other provisions of Federal law with the cable industry. Broadcasters 
now have the opportunity to negotiate with the satellite industry for 
fair market value as defined in this section of law and to also 
negotiate with the cable industry for retransmission consent as defined 
in other statutory law.
  This bill resolves the issues surrounding compensation for 
broadcasters in the cable and satellite marketplaces and creates 
balance. I want to thank the Chairman of the subcommittee, Senator 
DeConcini, and the ranking member, Senator Hatch, for their hard work 
on this bill. I urge my colleagues to support this measure.
  Mr. DeCONCINI. Mr. President, I rise today in support of S. 2406. S. 
2406 contains a compromise between the House and Senate on the 
Satellite Home Viewer Act of 1994, S. 1485 and H.R. 1103. I introduced 
S. 1485 on September 22, 1993 along with my colleague Senator Hatch. S. 
1485 was cosponsored by Senators Leahy, Heflin, Jeffords, Gregg, 
Moseley-Braun, Thurmond, Craig, Pressler, Kerrey, and Burns.
  This legislation extends the compulsory copyright license under 
section 119 of the copyright until December 31, 1999. I am pleased that 
because of the compromise reached on this bill, satellite carriers may 
continue to serve their viewers with no disruption of service.
  In passing S. 1485, the Senate rejected the inclusion of ``fair 
market value'' as the goal to be met, by the arbitrators, with respect 
to rate making for the satellite carriers. The fact that the Senate 
agrees with the House on this compromise legislation is due to the 
criteria that defines fair market value in the bill. I have long 
opposed the imposition of royalty fees based simply on the mechanical 
application of some conceptual fair market value formula.
  I am delighted that the House and Senate have agreed to clarify the 
concept of fair market value so that the arbitration panel will 
consider the cost of similar signals in similar private and compulsory 
marketplaces, for example, the cable market. Copyright license parity 
with cable is the central feature of the fair market standard 
articulated in this legislation. The inclusion of specific guidance to 
the arbitration panel to take into consideration the competitive 
environment in which satellite programming is distributed is essential 
to ensure that satellite carriers are not required to pay higher 
royalty fees than cable operators.

  Satellite carriers today already are required to pay royalty fees 
that are in excess of the fees that cable operators are required to pay 
for the same signals.
  Therefore, it is appropriate that when the arbitration panel 
considers the fair market value of the fees, it will take into account 
the impact of those fees on satellite carriers and on the continued 
availability of secondary transmissions to the public. Satellite 
carries must be afforded the opportunity to continue delivering 
diverse, affordable video programming to satellite consumers.
  The compulsory license mechanism has facilitated the clearance of 
thousands of copyrights related to the distribution of television 
programming by the cable and satellite broadcasting industries. This 
approach has enabled consumers to obtain broad access to programming 
they otherwise may be unable to receive.
  I am confident that the arbitration panel will take steps to ensure 
that the royalty fees paid by satellite carriers are on par with those 
paid by cable operators. The guiding criteria for the arbitration panel 
to establish fair market value in this legislation will accomplish that 
objective.
  Mr. FORD. Mr. President, I ask unanimous consent that the Senate 
concur in the House amendment and that the motion to reconsider be laid 
upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the Senate concurred in the House amendment.

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