[Congressional Record Volume 150, Number 131 (Tuesday, November 16, 2004)]
[Extensions of Remarks]
[Pages E2002-E2004]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




H.R. 4518, THE SATELLITE HOME VIEWER EXTENSION AND REAUTHORIZATION ACT 
                                OF 2004

                                 ______
                                 

                            HON. JOE BARTON

                                of texas

                    in the house of representatives

                       Tuesday, November 16, 2004

  Mr. BARTON of Texas. Mr. Speaker, I would like to submit the 
following remarks for the Record.
  We have before us H.R. 4518, the ``Satellite Home Viewer Extension 
and Reauthorization Act of 2004'' (SHVERA). The bill will also be known 
as ``The W.J. `Billy' Tauzin Satellite Television Act of 2004,'' in 
honor of our former House Energy and Commerce Committee chairman. 
Naming this bill after Chairman Tauzin is only fitting, as he has done 
so much to foster the growth of satellite television, increase 
television service competition, and improve choices for consumers. 
Chairman Tauzin is currently recovering from a bout with cancer. My 
understanding is that he is doing so with his characteristic vigor and 
good humor, and is faring well. I am sure all join me in wishing him a 
speedy recovery.
  H.R. 4518 reauthorizes certain expiring communications and copyright 
act provisions that govern the retransmission of broadcast television 
signals by direct broadcast satellite (DBS) providers such as DirecTV 
and EchoStar. It also modernizes other provisions to enhance consumer 
choice, increase parity between satellite and cable operators, and 
further promote competition. Because the bill implicates both 
communications and copyright issues, the House Energy and Commerce 
Committee and the House Judiciary Committee have worked closely in 
drafting the legislation.
  Indeed, pursuant to a compromise between the House Energy and 
Commerce Committee and the House Judiciary Committee, H.R. 4518 has now 
been amended to combine its copyright provisions with the 
Communications Act provisions of H.R. 4501. H.R. 4501 resulted from an 
extensive examination of satellite television issues in the House 
Energy and Commerce Committee. The Subcommittee on Telecommunications 
and the Internet held an oversight hearing on March 10, 2004, and a 
legislative hearing on April 1, 2004. The Subcommittee then marked up 
legislation on April 28, 2004, and the full Committee marked up 
legislation on June 3, 2004. That legislation became H.R. 4501. The 
Committee filed a report on H.R. 4501 (H. Rept. 108-634) on July 22, 
2004.
  What follows is a section-by-section analysis of some of the 
Communications provisions in Title II of H.R. 4518, as amended, that 
have changed from the provisions that originated in H.R. 4501. Mr. 
Upton, Chairman of the House Energy and Commerce Subcommittee on 
Telecommunications and the Internet, also will address some of the 
changes.


               Section 202. Cable/satellite comparability

  Section 340(a) authorizes a satellite operator to retransmit an out-
of-market signal to a subscriber in a community if the signal is 
significantly viewed over the air in the community. A satellite 
operator may carry such a signal whether or not the station is 
affiliated with a network, as evidenced by section 340(a)'s reference 
to the carriage of ``the signal of any station located outside the 
local market'' that is significantly viewed, as opposed to any 
``network station'' (emphasis added). In the cable context, the FCC 
allows a cable operator to carry the digital signal of a broadcast 
station as significantly viewed once the FCC has ruled that the analog 
signal of the station is significantly viewed. In re Carriage of 
Digital Television Broadcast Signals, CS Docket No. 98-120, First 
Report and Order & Further Notice of Proposed Rulemaking, FCC 01-22, at 
para. 100. In implementing Section 340, the FCC should treat satellite 
operators in a comparable fashion to cable operators to the greatest 
extent possible with respect to carriage of significantly viewed 
stations, in terms of both current and future significantly viewed 
rulings.

  Section 340(a) also provides that a satellite operator may carry an 
unlimited number of significantly viewed signals, just as a cable 
operator may. Section 340(a) does so by explicitly stating that 
satellite operators may retransmit such signals ``[i]n addition to the 
broadcast signals that subscribers may receive under section 338 
[governing carriage of local signals] and 339 [governing carriage of 
distant signals].'' This clarification for significantly viewed signals 
is necessary because section 339 of the Communications Act (47 U.S.C. 
Sec. 339) prohibits a satellite carrier from providing a household with 
the signals of more than two distant affiliates of a particular network 
per day.
  Section 340(a)(1) provides that satellite operators are allowed to 
carry as significantly viewed any signal that the FCC has previously 
determined to be significantly viewed for purposes of cable carriage 
subject, however, to the FCC's network non-duplication and syndicated 
exclusivity rules. Satellite carriers are authorized upon enactment of 
SHVERA to carry such signals.

[[Page E2003]]

  Section 340(a)(2) provides that satellite operators may also carry as 
significantly viewed any signals that the FCC determines in the future 
to be significantly viewed, so long as the FCC applies the same 
criteria to determine whether a signal is significantly viewed for 
purposes of both cable and satellite carriage. The FCC may also make 
significantly viewed determinations in areas without cable service, 
again, so long as it uses the same criteria as it applies in 
determining whether a signal is significantly viewed for purposes of 
cable carriage. Because current regulations provide only for cable 
carriage of significantly viewed signals, the FCC now bases 
significantly-viewed determinations on cable communities. In areas of 
the country that do not have cable service, there is no cable 
community. Section 340(a)(2) is intended to allow satellite operators 
to carry a significantly viewed signal in a community where no cable 
franchise exists so long as the signal is significantly viewed in the 
community based on the same quantitative criteria as currently apply to 
cable operators. See 47 C.F.R. Sec. Sec. 76.5(i), 76.54. Section 
340(i)(3) authorizes the FCC to define what constitutes a satellite 
community for these purposes. Any signal the FCC determines to be 
significantly viewed for purposes of satellite carriage in an area 
where cable is not present would also be significantly viewed for cable 
carriage should a cable operator enter the community in the future. The 
FCC shall maintain a unified list of significantly viewed stations and 
communities, which will apply to both cable and satellite operators.
  Section 340(b)(1) provides that a satellite operator may retransmit a 
significantly viewed analog signal of a distant network station to a 
subscriber in a local market only if the subscriber also receives 
local-into-local service under section 338 of the Communications Act. 
Similarly, section 340(b)(2)(A) conditions retransmission to a 
subscriber of a significantly viewed digital signal of a distant 
network broadcast station on retransmission to that subscriber of a 
digital signal broadcast by a local affiliate of the same network.
  Section 340(b)(2)(B) prevents the satellite operator from 
retransmitting a local affiliate's digital signal in a less robust 
format than a significantly viewed digital signal of a distant 
affiliate of the same network, such as by down-converting the local 
affiliate's signal but not the distant affiliate's signal from high-
definition digital format to analog or standard definition digital 
format. Section 340(b)(2)(B)(i) requires carriage of the ``equivalent 
bandwidth'' to recognize, for example, that a local affiliate may be 
multicasting while a distant affiliate of the same network may be 
broadcasting in high-definition, and to ensure that the local 
affiliate's choice to multicast does not prevent the satellite operator 
from retransmitting a significantly viewed signal of a distant 
affiliate of the network that chooses to broadcast in high-definition. 
Section 340(b)(2)(B)(ii) requires carriage of the ``entire bandwidth'' 
to ensure that a satellite operator may still retransmit a distant 
significantly viewed digital signal of a network affiliate in a more 
robust format than a digital signal of a local broadcaster of the same 
network so long as the satellite operator is carrying the digital 
signal of the local affiliate in its original format. For example, if a 
local broadcaster chooses to transmit only a single, standard 
definition digital broadcast stream, the satellite operator may still 
retransmit multicast or high-definition streams from a distant 
affiliate of the same network if the satellite operator carries the 
local broadcaster's standard definition stream and meets the other 
conditions for the provision of significantly viewed signals. Section 
340(i)(4) directs the FCC to define ``equivalent bandwidth'' and 
``entire bandwidth'' by regulation. Section 340(b)(2)(B) is not 
intended to prevent a satellite operator from using compression 
technology; to require a satellite operator to use the identical 
bandwidth or bit rate as that used by the local or distant broadcaster 
whose signal it is retransmitting; or to require a satellite operator 
to use the identical bandwidth or bit rate for a local broadcaster as 
it does for a distant broadcaster. Nor is section 340(b)(2)(B) intended 
to affect a satellite operator's carry-one, carry-all obligations, or 
the definitions of ``program related'' and ``primary video.''

  The limitations of section 340(b)(1) and section 340(b)(2) 
specifically apply only to carriage of ``network stations.'' Non-
network broadcast stations by definition do not belong to a network. 
Thus, the limitations in section 340(b)(1) and section 340(b)(2) do not 
restrict a satellite operator's carriage of a significantly viewed 
signal of a non-network broadcast station.
  Section 340(b)(3) provides that the absence of an affiliate of a 
particular network in a local market does not prevent a satellite 
operator from retransmitting a significantly viewed signal of a distant 
broadcast station from that network. Many markets do not have a full 
complement of network affiliates. This provision allows a satellite 
provider to retransmit into such a market a distant significantly 
viewed analog signal of a network broadcast station even though the 
market does not have a local affiliate from the same network. 
Similarly, it allows a satellite operator to retransmit into a market a 
distant significantly viewed digital signal of a network broadcast 
station if the market does not have a local affiliate from the same 
network.
  Section 340(b)(4) allows a local network affiliate to waive the 
limitations in sections 340(b)(1) or 340(b)(2) as they apply to the 
retransmission, into the local affiliate's local market, of a 
significantly viewed signal of a distant station affiliated with the 
same network. The waiver can be as broad or as narrow as the affiliate 
wants. For example, a local affiliate can waive the application of 
sections 340(b)(1) or 340(b)(2) to one or more consumers in the local 
market, with respect to one or more specific distant affiliates of the 
same network, and with respect to one or more satellite operators. The 
broadcaster may do so as part of a negotiated agreement and for any 
reason, including common ownership among the stations. This is intended 
to be a private negotiation, not one over which the FCC or any other 
governmental body must preside; nor must any governmental body grant or 
approve the waiver. Whether to grant a waiver is a decision to be made 
solely based on the broadcaster's own business judgment, although a 
broadcaster may grant a waiver as part of an agreement made with a 
satellite operator or other parties. A broadcaster is also not required 
to execute any particular document as part of the waiver process, 
although parties who intend to rely on such a waiver or any attendant 
agreement will likely want to reduce the waiver and the agreement to 
writing, so that they have something to refer to should any dispute 
arise in the future. Such waivers are distinct from the waivers 
referred to in section 339(c)(2) of the Communications Act, although 
broadcasters are free to execute both types of waivers in tandem or 
with a single document. Unlike the section 339(c)(2) waivers, 
broadcasters must affirmatively grant section 340(b)(4) waivers; they 
shall not be deemed granted by the broadcaster just because the 
broadcaster has not responded to a request within a certain amount of 
time. Nor are section 340(b)(4) waivers or agreements subject to the 
section 325 good-faith negotiation requirement. Section 340(b)(4) will 
facilitate agreements that provide consumers with more viewing choices.

  Section 340(c)(1) gives the FCC 60 days from enactment of SHVERA to 
publish a consolidated list of the current stations and the communities 
in which they are significantly viewed, as well as to commence a 
rulemaking proceeding to implement new section 340. The FCC will have 
one year from enactment of SHVERA to complete the rulemaking.
  Section 340(c)(2) requires the FCC to make the significantly-viewed 
list publicly available in electronic form, and to update it within 10 
business days of any modifications. Ways it may do so include posting 
the list on the Internet or making an electronic file of the list 
available for download.
  Section 340(c)(3) makes clear that satellite operators may petition 
the FCC to add stations or communities to the significantly-viewed list 
as well as to have the network nonduplication or syndicated exclusivity 
rules applied in certain communities to stations on the list.
  Section 340(d)(1) makes clear that carriage in a local market of a 
distant significantly viewed signal is not mandatory. Cable operators 
are under no obligation to carry in a local market a distant 
significantly viewed signal, and satellite carriage of such a distant 
signal in a local market is to be similarly voluntary. Section 
340(d)(1) also makes clear that any right of a station to have its 
signal carried in a local market under the carry-one, carry-all 
provisions of section 338 is not affected by the significantly viewed 
status of the signal in another market.
  Section 340(d)(2) provides that the status of a distant signal as 
significantly viewed does not affect whether a satellite operator must 
get retransmission consent to carry that signal into a local market. 
Cable operators must obtain retransmission consent to carry distant 
significantly viewed signals into a local market and the same 
obligation shall apply to satellite operators. If the satellite 
operator is exempt from having to obtain retransmission consent for 
other reasons, however, then retransmission consent would not be 
necessary. For example, a satellite operator is exempt under section 
325(b) (47 U.S.C. Sec. 325(b)) from having to obtain retransmission 
consent when providing a distant signal of a network to an unserved 
subscriber who cannot receive an adequate over-the-air signal from an 
affiliate of the same network. The satellite operator would still be 
exempt from having to negotiate retransmission consent when providing a 
significantly viewed signal if it was providing it as a distant signal 
to an unserved consumer.

  Section 340(e) allows the FCC to apply its network non-duplication 
and syndicated exclusivity rules to ``remove'' stations from the 
significantly viewed list as applied to satellite operators in a 
similar manner as it currently does

[[Page E2004]]

with cable operators. Many, if not all, broadcast stations enter into 
contracts to be the sole providers of particular network or syndicated 
programming within a certain geographic radius. See 47 C.F.R. 
Sec. Sec. 76.93, 76.103. When broadcast stations do so, the FCC's 
network non-duplication and syndicated exclusivity rules generally 
require cable operators to black out the duplicative programming when 
they retransmit signals from distant stations into the protected areas. 
See 47 C.F.R. Sec. Sec. 76.92, 76.101. If the FCC determines that a 
distant signal is significantly viewed in a community, the FCC exempts 
the signal from the network non-duplication and syndicated exclusivity 
rules so that the cable operator can carry the distant signal, 
including the duplicative programming, into the local market. See 47 
C.F.R. Sec. Sec. 76.92(1), 76.106(a). If the signal ever loses 
viewership such that it no longer qualifies as significantly viewed, 
the FCC does not literally remove the signal from the significantly 
viewed list, but parties can petition the FCC to re-impose the blackout 
obligations.
  In the satellite context, however, the network non-duplication and 
syndicated exclusivity rules ordinarily apply only to retransmission of 
nationally distributed superstations. See 47 C.F.R. 76.120(b), 
Sec. Sec. 76.122, 76.123. They do not currently apply to retransmission 
of distant signals of network stations or non-network stations that are 
not superstations. Section 340(e)(1) is intended to give the FCC 
authority to apply the network non-duplication and syndicated 
exclusivity rules to distant signals of network or non-network stations 
in a way that replicates, where and when appropriate, the way the FCC 
``removes'' signals from the significantly viewed list for cable. 
Section 340(e)(2) makes clear that section 340(e)(1) does not authorize 
the FCC to apply the network non-duplication and syndicated exclusivity 
rules to other lawful retransmissions of distant signals of network or 
non-network stations, such as when a consumer is unserved over the air.

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