[Federal Register Volume 65, Number 40 (Tuesday, February 29, 2000)]
[Rules and Regulations]
[Pages 10718-10721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4729]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 00-22]


Implementation of the Satellite Home Viewer Improvement Act of 
1999; Enforcement Procedures for Retransmission Consent Violations

AGENCY: Federal Communications Commission.

ACTION: Final rule; procedures.

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SUMMARY: This document adopts procedural rules to implement certain 
aspects of the Satellite Home Viewer Improvement Act of 1999, which was 
enacted on November 29, 1999. Among other things, the act authorizes 
satellite carriers to add more local and national broadcast programming 
to their offerings and seeks to place satellite carriers on an equal 
footing with cable operators with respect to availability of broadcast 
programming. This document discusses specifically the implementation of 
regulations that would apply enforcement procedures for retransmission 
consent violations.

DATES: Effective May 30, 2000, except for Sec. 1.6010 which contains 
information collection requirements that are not effective until 
approved by the Office of Management and Budget. The Commission will 
publish a document in the Federal Register announcing the effective 
date of Sec. 1.6010. Written comments by the public on the new and/or 
modified information collections are due May 1, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW, 
Washington, DC 20554. In addition to filing comments with the 
Secretary, a copy of any comments on the information collections 
contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW, Washington 
DC 20554, or via the Internet at [email protected].

FOR FURTHER INFORMATION CONTACT: Eloise Gore at (202) 418-7200 or via 
the Internet at [email protected]. For additional information concerning 
the information collection(s) contained in this document, contact Judy 
Boley at (202) 418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
(``Order''), FCC 00-22, adopted January 27, 2000; released January 28, 
2000. The full text of the Commission's Order is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room CY-A257) at its headquarters, 445 12th Street, 
SW, Washington, D.C. 20554, or may be purchased from the Commission's 
copy contractor, International Transcription Service, Inc., (202) 857-
3800, 1231 20th Street, NW, Washington, D.C. 20036, or may be reviewed 
via Internet at http://www.fcc.gov/csb/.

Synopsis of the Order

I. Introduction

    1. In this order, we adopt procedural rules to implement new 
Section 325(e) of the Communications Act of 1934, as amended, added by 
Section 1009 of the Satellite Home Viewer Improvement Act (``SHVIA''). 
Section 325(e) provides the procedures by which the Commission shall 
process complaints by television broadcast stations alleging that a 
satellite carrier has retransmitted local television signals without 
the stations' consent in violation of Section 325(b)(1) of the Act, as 
amended by the SHVIA.

II. Background

    2. Section 1009 of SHVIA amends Section 325(b)(1) of the 
Communications Act to provide, inter alia, that satellite carriers may 
not retransmit the signal of a broadcast station, or any part thereof, 
except: (1) With the express authority of the originating station; or 
(2) if the station has asserted must carry rights under Section 338. 
Section 1009 further provides that, pursuant to Section 325(b)(2), 
retransmission consent is not required for satellite retransmission of 
noncommercial stations; certain superstations under specified 
circumstances; and, until December 31, 2004, network stations 
retransmitted outside the station's local market to ``unserved'' 
households. In addition, for six months following enactment of the 
SHVIA, retransmission consent is not required for satellite 
retransmission of a local station within the station's local market. 
After the conclusion of this six month period, satellite carriers will 
be required to obtain retransmission consent to carry these local-into-
local retransmissions.
    3. Section 1009 also adds a new paragraph (e) to Section 325 of the 
Communications Act. New paragraph 325(e) creates a set of expedited

[[Page 10719]]

enforcement procedures for the alleged retransmission of a television 
broadcast station in its own local market without the station's consent 
in violation of Section 325(b)(1). The new provision requires that a 
final Commission decision be issued in response to such complaints 
within 45 days. The statute sets out explicit procedures for these 
complaints, which will take effect on May 30, 2000. The expedited 
enforcement provision contains a sunset date which precludes the filing 
of any complaint with the Commission under this section after December 
31, 2001.

III. Discussion

    4. These procedural rules track the statutory requirements and 
incorporate two additional provisions designed to facilitate 
enforcement of the statutory requirements. Section 325(e) of the 
statute specifies that the procedures apply to a complaint by a 
television broadcast station alleging retransmission of its signal ``to 
any person in the local market of such station'' * * * ``after the 
expiration of the 6-month period.'' Section 325(e)(1)(A) through (F) of 
the statute further requires that the station provide its name, address 
and call letters; the name and address of the satellite carrier; the 
dates on which the retransmission allegedly occurred; the street 
address of at least one person in the local market to whom the 
retransmission was allegedly made; a statement that the retransmission 
was not authorized; and the name and address of the station's legal 
counsel. Section 325(e)(2) of the statute provides that the satellite 
carrier is deemed to have designated the Secretary of the Commission as 
its agent for service of process and allows the station to serve the 
satellite carrier with the complaint by filing with the Commission and 
serving a copy on the satellite carrier by specified means. Section 
325(e)(3) of the statute requires the satellite carrier to file an 
answer with the Commission within five business days. Section 325(e)(4) 
of the statute enumerates the exclusive defenses that are available to 
a satellite carrier: (1) That the satellite carrier did not retransmit 
the station to any person in the local market during the specified 
time; (2) that the station had expressly authorized retransmission in 
writing; (3) that the retransmission was made after January 1, 2002 and 
the station had elected to assert a right to carriage; and (4) the 
station being retransmitted is a noncommercial station. Section 325(e) 
(5) and (6) of the statute provides that the retransmission of a 
particular station on a particular day to one or more persons 
constitutes a separate violation and places the burden of proof on the 
station to establish that the satellite carrier retransmitted the 
station to at least one person on the day alleged. Section 325(e)(5) 
and (6) of the statute further provides that the satellite carrier has 
the burden of proof with respect to defenses 2, 3, and 4, as 
enumerated, above. Section 325(e)(8) of the statute requires the 
Commission to determine whether the satellite carrier in question has 
retransmitted the station to at least one person in the station's local 
market and has not proven one of the defenses. If the Commission so 
determines, it must make a finding and issue a cease and desist order 
within 45 days after the filing of the complaint.
    5. The first additional provision incorporated in the rules 
requires each satellite carrier to provide the Commission's Secretary 
with current identifying information about its chief executive officer. 
This provision will facilitate service of complaints on satellite 
carriers in an expeditious manner within the statutorily mandated 
timeframe. The second additional provision requires that, to facilitate 
Commission oversight of remedial measures, satellite carriers found to 
have violated the statute must file a report regarding their remedial 
efforts to come into compliance. This latter provision is needed to 
enable the Commission to quickly determine that the satellite carrier 
is complying and may therefore resume authorized retransmissions.
    6. The local retransmission consent complaints filed under Section 
325(e) will be handled by the Cable Services Bureau.

IV. Paperwork Reduction Act

    7. This Order contains new information collections subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be 
submitted to the Office of Management and Budget (OMB) for review under 
Section 3507(d) of the PRA. OMB, the general public, and other Federal 
agencies are invited to comment on the new or modified information 
collections contained in this proceeding. Comments should address: (a) 
Whether the new or modified collection of information is necessary for 
the proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) the accuracy 
of the Commission's burden of estimates; (c) ways to enhance the 
quality, utility, and clarity of the information collected; and (d) 
ways to minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques and 
other forms of information technology. Written comments by the public 
on the new information collections are due May 1, 2000. In addition to 
filing comments with the Office of the Secretary, commenters should 
submit a copy of any comments on the information collections contained 
herein to Judy Boley, Federal Communications Commission, Room 1-C804, 
445 12th Street, SW, Washington, DC 20554, or via the Internet at 
[email protected].
    OMB Control Number: 3060-xxxx.
    Title: Implementation of the Satellite Home Viewer Improvement Act 
of 1999; Enforcement Procedures for Retransmission Consent Violations.
    Type of Review: New collection or revision of existing collection.
    Respondents: Business or other for-profit entities.
    Number of Respondents: Satellite carriers--xxxx.
    Estimated Time Per Response: xxxx hours.
    Total Annual Burden: xxxx.
    Total Annual Costs: xxxx.
    Needs and Uses: Congress directed the Commission to adopt 
regulations that enforce procedures for retransmission consent 
violations to satellite carriers pursuant to the changes outlined in 
the Satellite Home Viewer Improvement Act of 1999. The availability of 
such information will serve the purpose of informing the public of the 
method of broadcast signal carriage.

V. Ordering Clause

    8. Accordingly, pursuant to Section 1009 of the Satellite Home 
Viewer Improvement Act of 1999, codified as Section 325(e) of the 
Communications Act of 1934, as amended, 47 U.S.C. 325(e), part 1.6000, 
et seq., IS ADDED, as set forth in the Rules Appendix. The rules will 
become effective May 30, 2000, except for 47 CFR 1.6010, which contain 
information collection requirements that are not effective until 
approved by the Office of Management and Budget. Notice and comment is 
not required by the Administrative Procedure Act because the rules are 
procedural. 5 U.S.C. 553(b)(A). In any event, because of the 60-day 
statutory deadline and the ministerial nature of the rules implementing 
the statutory requirements, we find for good cause that notice and 
comment is impracticable under 5 U.S.C. 553(b)(B).


[[Page 10720]]


Federal Communications Commission.
Magalie Roman Salas,
Secretary.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Federal Communications 
Commission, Reporting and recordkeeping requirements, Television.

Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations is amended to 
read as follows:

PART 1--PRACTICE AND PROCEDURE.

    1. The authority citation for part 1 is revised to read as follows:

    Authority: 47 U.S.C. 325(e).

    2. Subpart U of part 1 is added to read as follows:

Subpart U--Implementation of Section 325(e) of the Communications 
Act: Procedures Governing Complaints Filed by Television Broadcast 
Stations Against Satellite Carriers for Retransmission Without 
Consent

1.6000  Purpose.
1.6001  Retransmission consent complaint procedures.
1.6002  Form and content.
1.6003  Service requirements.
1.6004  Answers.
1.6005  Exclusive defenses.
1.6006  Counting of violations.
1.6007  Burden of proof.
1.6008  Determinations.
1.6009  Relief.
1.6010  Reporting of remedial measures.
1.6011  Effective date.
1.6012  Sunset provisions.


Sec. 1.6000  Purpose.

    The purpose of part 1, Subpart U, is to implement Section 325(e) of 
the Communications Act of 1934, as amended, 47 U.S.C. 325(e), et seq., 
as added by section 1009 of the Satellite Home Viewer Improvement Act 
of 1999, Public Law 106-113, section 1000(9), 113 Stat. 1501, Appendix 
I (1999). The procedures set forth in this subpart supersede 47 U.S.C. 
312.


Sec. 1.6001  Retransmission consent complaint procedures.

    By whom. If a television broadcast station believes that a 
satellite carrier has retransmitted its broadcast station's signal to 
any person in the local market of such station in violation of 47 
U.S.C. 325 (b)(1), the station may file a complaint with the Commission 
under this section.


Sec. 1.6002  Form and content.

    (a) The following format shall be used for complaints of this type:

Before the Federal Communications Commission

Washington, D.C. 20554

In the Matter of Complainant,
v.
Defendant
File No. (to be inserted by the staff)

Complaint

To: The Commission.
The complainant (here insert the name, address, and call letters of 
the complaining television broadcast station) avers that: On (here 
insert the dates upon which the alleged transmission occurred), 
retransmission of the broadcast television station's signal was made 
by (insert here name and address of the satellite carrier) to (here 
insert the street address of at least one person in the local market 
of the station to whom the alleged retransmission was made). The 
complainant avers that (here insert a statement that the 
retransmission was not expressly authorized by the television 
broadcast station), and requests that the appropriate relief be 
granted by the Commission, as provided by the pertinent provisions 
of the Communications Act of 1934, as amended, and the Commission's 
Rules.
Date:
(here insert the name and address of counsel for the complaining 
station).

    (b) A complaint lacking any of the foregoing information shall be 
dismissed by the FCC without prejudice to the complaining station.
    (c) Additional information may be provided, and, where applicable, 
should conform to the requirements set forth in Secs. 1.48 through 1.52 
of the Commission's rules.


Sec. 1.6003  Service requirements.

    (a) General. Pursuant to 47 U.S.C. 325(e), for purposes of any 
proceeding under this subsection, any satellite carrier that 
retransmits the signal of any broadcast station shall be deemed to 
designate the Secretary of the Commission as its agent for service of 
process.
    (b) Specific. (1) A television broadcast station shall serve a 
satellite carrier with a complaint concerning an alleged violation of 
47 U.S.C. 325(b)(1) by filing the original and two copies of the 
complaint on the Secretary of the Commission and serving a copy of the 
complaint by means of two commonly used overnight delivery services, 
each addressed to the chief executive officer of the satellite carrier 
at its principal place of business and each marked ``URGENT LITIGATION 
MATTER'' on the outer packaging. Service shall be deemed complete one 
business day after a copy of the complaint is provided to the delivery 
services for overnight delivery. On receipt of a complaint filed by a 
television broadcast station under this subsection, the Secretary of 
the Commission shall send the original complaint by United States mail, 
postage prepaid, receipt requested, addressed to the chief executive 
officer of the satellite carrier at its principal place of business.
    (2) Satellite carriers shall provide the name, address, and 
telephone number (including area code) of their chief executive 
officers to the Secretary of the Commission, no later than April 15, 
2000. Satellite carriers shall update this information, as necessary, 
in the event that the identity or the address of their respective chief 
executive officers changes. These updates shall be made by United 
States mail within seven (7) days of such changes. Complaints sent to 
the last known address shall be deemed served if the satellite carrier 
fails to notify the Secretary of the Commission in accordance with this 
provision.


Sec. 1.6004  Answers.

    Within five (5) business days after the date of service, without 
regard to Sec. 1.4 of this part, the satellite carrier shall file its 
answer with the Commission, and shall contemporaneously serve the 
answer upon counsel designated in the complaint, at the address listed 
for such counsel in the complaint. Service of the answer shall be made 
by use of one commonly used overnight delivery service and by the 
United States mail.


Sec. 1.6005  Exclusive defenses.

    (a) The defenses listed in paragraphs (a)(1) through (a)(4) of this 
section, are the only defenses available to a satellite carrier against 
which a complaint under this section is filed.
    (1) The satellite carrier did not retransmit the television 
broadcast station's signal to any person in the ``local market'' of the 
television broadcast station, as that term is defined in 17 U.S.C. 
122(j) (Designated Market Area as determined by Nielsen Media Research 
and county containing the station's community of license), during the 
time period specified in the complaint;
    (2) The television broadcast station had, in a writing signed by an 
officer of the television broadcast station, expressly authorized the 
retransmission of the station by the satellite carrier to each person 
in the ``local market'' of the television broadcast station, as that 
term is defined in 17 U.S.C. 122(j), to which the satellite carrier 
made such retransmissions for the entire time period during which it is 
alleged that a

[[Page 10721]]

violation of 47 U.S.C. 325 (b)(1) has occurred;
    (3) The retransmission was made after January 1, 2002, and the 
television broadcast station had elected to assert the right to 
carriage under 47 U.S.C. 338 as against the satellite carrier for the 
relevant period; or
    (4) The television broadcast station whose signal is being 
retransmitted is a noncommercial television broadcast station.
    (b) [Reserved]


Sec. 1.6006  Counting of violations.

    Each day of retransmission without consent of a particular 
television broadcast station to one or more persons in the local market 
of the station shall be considered a separate violation of 47 U.S.C. 
325(b)(1).


Sec. 1.6007  Burden of proof.

    With respect to each alleged violation, the burden of proof shall 
be on a television broadcast station to establish that the satellite 
carrier retransmitted the station to at least one person in the local 
market of the station on the day in question. The burden of proof shall 
be on the satellite carrier with respect to all defenses other than the 
defense under Sec. 1.6005(a)(1).


Sec. 1.6008  Determinations.

    (a) In General. Within forty five (45) days after the filing of a 
complaint, the Commission shall issue a final determination in any 
proceeding brought under this subsection. The Commission's final 
determination shall specify the number of violations committed by the 
satellite carrier. The Commission shall hear witnesses only if it 
clearly appears, based on the written filings by the parties, that 
there is a genuine dispute about material facts. Except as provided in 
the preceding sentence, the Commission may issue a final ruling based 
on the written filings by the parties.
    (b) Discovery. The Commission may direct the parties to exchange 
pertinent documents, and if necessary, to take prehearing depositions, 
on such schedule as the Commission may approve, but only if the 
Commission first determines that such discovery is necessary to resolve 
a genuine dispute about material facts, consistent with the obligation 
to make a final determination within forty five (45) days. In this 
connection, the Commission may utilize the discovery or other 
evidentiary procedures set forth in Secs. 1.311 through 1.364 of the 
Commission's rules.


Sec. 1.6009  Relief.

    If the Commission determines that a satellite carrier has 
retransmitted the television broadcast station to at least one person 
in the local market of such station and has failed to meet its burden 
of proving one of the defenses under Sec. 1.6005 (a)(2) through (a)(4) 
with respect to such retransmission, the Commission shall:
    (a) Make a finding that the satellite carrier violated 47 U.S.C. 
325(b)(1) with respect to that station; and
    (b) Issue an order, within forty-five (45) days after the filing of 
the complaint, containing--
    (1) A cease-and-desist order directing the satellite carrier 
immediately to stop making any further retransmissions of the 
television broadcast station to any person within the local market of 
such station until such time as the Commission determines that the 
satellite carrier is in compliance with 47 U.S.C. 325(b)(1) with 
respect to such station;
    (2) If the satellite carrier is found to have violated 47 U.S.C. 
325(b)(1) with respect to more than two television broadcast stations, 
a cease-and-desist order directing the satellite carrier to stop making 
any further retransmission of any television broadcast station to any 
person within the local market of the stations identified in the cease-
and-desist order, until such time as the Commission, after giving 
notice to the station, determines that the satellite carrier is in 
compliance with 47 U.S.C. 325(b)(1) with respect to such stations; and
    (3) An award to the complainant of that complainant's costs and 
reasonable attorney's fees. Such award shall be made only after the 
complainant submits appropriate documentation in support of its 
request.
    (c) Any cease-and-desist order issued hereunder shall include a 
statement of findings and the grounds therefor, shall specify the 
effective date of the order, and shall be served by the Commission upon 
the satellite carrier to which such order is directed.


Sec. 1.6010  Reporting of remedial measures.

    Any satellite carrier found to have violated Section 47 U.S.C. 
325(b)(1) shall, upon receipt of the cease-and-desist order, 
immediately take all necessary steps to comply with the statute. Within 
two (2) days of receipt of the cease-and-desist order, the satellite 
carrier shall notify the Secretary of the Commission of steps taken to 
comply with the statute by written submission. The submission certified 
by the satellite carrier's chief executive officer shall also contain a 
copy of the pertinent cease-and-desist order, and shall be delivered to 
the Secretary of the Commission by means of one commonly used overnight 
delivery service, in addition to a copy delivered by United States 
mail.


Sec. 1.6011  Effective date.

    The rules in section 1.6000 through section 1.6009 shall become 
effective May 30, 2000. Section 1.6010 contains information collection 
requirements that are not effective until approved by the Office of 
Management and Budget. The effective date for this section will be 
announced by the Commission in the Federal Register.


Sec. 1.6012  Sunset provisions.

    No complaint may be filed under this rule section after December 
31, 2001. This rule subpart shall continue to apply to any complaint 
filed on or before such date. See 47 U.S.C. 325 (e)(12).
[FR Doc. 00-4729 Filed 2-28-00; 8:45 am]
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