[Federal Register Volume 67, Number 152 (Wednesday, August 7, 2002)]
[Rules and Regulations]
[Pages 51110-51115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19888]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 100

[IB Docket No. 98-21; FCC 02-110]


Policy and Rules for the Direct Broadcast Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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[[Page 51111]]

SUMMARY: In this document the Federal Communications Commission has 
adopted a Report and Order that modifies direct broadcast satellite 
(DBS) regulation to more closely reflect the regulation of other 
satellite services, and moves the rules for DBS, located in part 100, 
to part 25 (Satellite Communications) and eliminates part 100 of the 
Commission's rules. The Report and Order streamlines the regulation of 
this rapidly growing and changing service and helps promote fair and 
increased competition in the multi-channel video programming 
distribution (``MVPD'') market. These rules also promote efficient and 
expeditious use of spectrum and orbital resources while preserving 
maximum flexibility for DBS operators. The current rules in part 100, 
for the most part, were adopted almost 20 years ago when DBS was 
envisioned to be essentially a broadcast-type service. Since that time, 
the service has instead grown into a robust and successful segment of 
the satellite industry with programming services provided on a 
subscription basis. The service rules are revised to comport with the 
way that DBS actually operates.

DATES: Effective September 6, 2002.

FOR FURTHER INFORMATION CONTACT: For more information regarding the 
Report and Order, contact Selina Y. Khan, Attorney Advisor, Satellite 
Division, International Bureau, telephone (202) 418-7282 or via the 
Internet at [email protected]. For additional information concerning the 
information collections 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 Report 
and Order (R&O), IB Docket 98-21, FCC 02-110, adopted April 8, 2002 and 
released June 13, 2002. The complete text of this Report and Order is 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Portals II, 445 12th Street, SW, 
Room CY-A257, Washington, DC. This document may also be purchased from 
the Commission's duplicating contractor, Qualex International, Portals 
II, 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone 
(202)863-2893, facsimile (202)863-2898 or via email [email protected]. 
It is also available on the Commission's website at http://www.fcc.gov.

Paperwork Reduction Act

    1. This Report and Order contains new information collections. The 
Federal Communications Commission, as part of its continuing effort to 
reduce paperwork burden, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection(s) 
contained in this Report and Order, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. This Report and Order has 
been submitted to OMB for review under the emergency clearance 
provisions of the PRA. Public and agency comments are due September 6, 
2002. Emergency clearance is requested no later than September 6, 2002.
    2. The Commission, under the normal provisions of the PRA, invites 
the general public, and other Federal agencies to comment on the 
information collections contained in this proceeding prior to 
submitting it to OMB for review. Public and agency comments are due 
September 6, 2002.
    3. Comments should address: (a) Whether the 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 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 or other forms of information technology.
    OMB Control Number: 3060-0683.
    Title: Direct Broadcast Satellite Service.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit entities.
    Number of Respondents: 6.
    Estimated Time Per Response: 1.5-20 hours.
    Frequency of Response: On occasion.
    Total Annual Burden: 300 hours.
    Total Annual Costs: $50,000.
    Needs and Uses: The information collected will be used by the 
Federal Communications Commission as part of the application and 
licensing process for DBS entities. Specifically, applicants for the 
DBS service will be required to file their applications to conform to 
the newly-adopted service rules. Without the newly adopted rules, 
future DBS applicants do not have rules in effect to file under.

Summary of the Report and Order

    4. The Federal Communications Commission has adopted a Report and 
Order that revises its rules and policies governing the Direct 
Broadcast Satellite (``DBS'') service. The Report and Order modifies 
DBS regulation to more closely reflect the regulation of other 
satellite services, moves the rules for DBS to part 25 and eliminates 
part 100.
    5. The revisions will simplify the procedures applicable to DBS, 
eliminate unnecessary filing requirements, and harmonize the DBS 
licensing process with that of other satellite services. For example, 
the Report and Order eliminates the DBS-specific foreign ownership 
limits of Sec. 100.11 of the Commission's rules and apply the statutory 
foreign ownership provision of section 310(b) of the Communications 
Act. The Commission also clarifies our geographic service rules to 
enhance the delivery of DBS service to the States of Alaska and Hawaii. 
The Report and Order updates and clarifies DBS technical rules, and 
clarify due diligence rules for DBS providers. In addition, the 
Commission moves the service-specific DBS auction rules to part 25 and 
defers to the Commission's general competitive bidding rules. Further, 
the Commission declines adopting any specific DBS ownership 
restrictions, but will continue to analyze DBS/DBS ownership issues in 
the context of assignment and transfer applications on a case-by-case 
basis.
    6. In this Report and Order the Commission retains some DBS 
specific rules that reflect distinctions between DBS and other 
satellite services. Specifically, the Report and Order preserves 
certain specific part 100 rules (i.e. license terms, due diligence and 
geographic service requirements, competitive bidding, and technical 
requirements) in part 25 because DBS is a unique satellite service in 
some respects.
    7. In this Report and Order the Commission eliminated Sec. 100.11 
of the Commission's rules. In first proposing rules in 1981, the 
Commission stated that it was seeking to apply an ``open and flexible 
approach'' to DBS to ``allow the business judgments of individual 
applicants to shape the character of the service offered.'' The 
Commission stated that it intended to impose on DBS ``only those 
regulatory requirements that [were] expressly mandated by the 
Communications Act'' to afford the DBS service maximum regulatory 
freedom to develop. In the Report and Order, the Commission stated that 
although Sec. 100.11, by its literal terms, extends to all DBS 
providers, subscription as well as broadcast and common carrier, there 
is no indication, that the Commission, in 1982 when it adopted the 
rule, meant to impose foreign ownership restrictions on DBS providers 
that are not subject to the foreign ownership restrictions in section 
310(b).
    8. The Commission declined to impose specific foreign ownership

[[Page 51112]]

limitations on DTH-FSS licensees providing subscription service in 
addition to the statutory limitations in section 310(a) and (b) of the 
Act. The Commission stated that there are no additional foreign 
ownership rules for MVPD services provided to subscribers by means of 
cable or DTH satellite systems, other than those required by statute. 
The Commission found that adopting foreign ownership rules for DTH-FSS 
licensees providing subscription services would affect the 
competitiveness of DBS, DTH and of the MVPD markets, which would be 
inconsistent with the Commission's efforts to increase competition in 
the MVPD market. Moreover, the Commission has traditionally taken a 
deregulatory approach to DTH-FSS and have refrained from imposing 
unnecessary regulations. In addition, the Commission will apply the 
requirements set forth in DISCO II in deciding questions of access to 
the U.S. market by non-U.S. lice DBS providers will remain subject to 
the relevant statutory requirements of section 310 of the Act.'' Thus, 
all DBS providers will be subject to section 310(a) of the 
Communications Act and to the relevant sections of Section 310(b) of 
the Act.
    9. The Commission recognizes the importance of establishing DBS as 
a competitor to cable in the multi-channel video programming 
distribution market in the States of Hawaii and Alaska. In this Report 
and Order, the Commission clarifies its geographic service rules to 
enhance the delivery of DBS service to the States of Alaska and Hawaii. 
Under current rules, DBS licensees must serve Alaska and Hawaii if 
technically feasible. In this Report and Order, the Commission 
recognizes that it is possible to provide service to Hawaii and also to 
significant portions of Alaska from the 101 deg. W.L orbit location in 
addition to the 110 deg. W.L. and 119 deg. W.L. orbit locations. 
Furthermore, the Commission concludes that it is not technically 
feasible to serve either Alaska or Hawaii from the 61.5 deg. W.L. orbit 
location. In this Report and Order, the Commission clarifies that DBS 
operators must offer packages of services in Alaska and Hawaii that are 
reasonably comparable to what they offer in the contiguous 48 states. 
In an effort to balance requirements to provide service to all 50 
states, and in order to avoid dictating system design or business 
plans, the Commission declines to specifically define what constitutes 
full or comparable service although we expect that DBS operators will 
offer the same level of service to customers throughout all 50 states. 
Specifically, the Commission clarifies that it will consider a DBS 
provider to be in compliance with this requirement, contained in 
Sec. 100.53 of the Commission's rules, only if it offers packages of 
services in Alaska and Hawaii that are reasonably comparable to what 
the provider offers in the contiguous 48 states.
    10. The Commission does not adopt any specific DBS/cable cross-
ownership restrictions. The Commission also deferred this issue to the 
Cable Ownership Further Notice of Proposed Rulemaking in 66 FR 51905, 
October 11, 2001. The Commission will analyze DBS/DBS ownership issues 
in the context of assignment and transfer applications on a case-by-
case basis.
    11. In December of 2002, the Commission decided to seek further 
comment on non-conforming uses of DBS spectrum because it appeared that 
there are a number of orbit locations, particularly those covering only 
the western part of the U.S., that are not being used to provide DBS 
service. Under current rules, a DBS licensee, after the first five 
years, must provide DBS service at least fifty percent of the time. In 
this Report and Order the Commission concludes that it will allow non-
conforming use for all orbital locations, including the western orbital 
locations, for downlink services that meet the technical requirements 
for interference protection. The Report and Order allows DBS licensees 
are free to provide non-conforming services on as many transponders on 
any of their satellites for as large a fraction of the time as they 
wish subject to the Commission's other requirements for DBS.

Final Regulatory Flexibility Analysis

    12. The Regulatory Flexibility Act of 1980, as amended (``RFA''), 
requires that a regulatory flexibility analysis be prepared for notice 
and comment rule making proceedings, unless the agency certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (``SBA'').
    13. As required by the RFA, an Initial Regulatory Flexibility 
Analysis (``IRFA'') was incorporated in the Notice of Proposed 
Rulemaking (``NPRM'') in IB Docket No. 98-21, 63 FR 11202, March 6, 
1998. The Commission sought written public comments on the proposals in 
the NPRM including comments on the IRFA. There were no comments, which 
discussed or addressed the IRFA; nor were there comments on the effect 
of the proposed rules on small businesses. Nonetheless, the Commission 
considered the potential significant economic impact of the proposed 
rules on small entities.
    14. The Report and Order streamlines and harmonizes the 
Commission's direct broadcast satellite (``DBS'') service rules with 
other regulations governing satellite communications. Our objective is 
to consolidate, where possible, the DBS services rules with the rules 
for other satellite services and eliminate separate, DBS-specific rules 
in part 100 of the Commission's rules. Because DBS provides 
subscription services, DBS falls within the SBA-recognized definitions 
of ``Cable Networks'' and ``Cable and Other Program Distribution.'' 
These definitions provide that small entities are ones with $11.0 
million or less in annual receipts. Small businesses, i.e. ones with 
less than $11.0 million in annual receipts, do not have the financial 
ability to become DBS licensees because of the high implementation 
costs associated with satellite services. Because this is an 
established service, with limited spectrum and orbital resources for 
assignment, we estimate that no more than 15 entities will be 
Commission licensees providing these services. In addition, because of 
the high implementation costs and the limited spectrum resources we 
believe that none of the 15 licensees will be small entities. We expect 
that no small entities will be impacted by this rulemaking. Therefore, 
we certify that the requirements of the Report and Order will not have 
a significant economic impact on a substantial number of small 
entities.
    15. The Commission will send a copy of the Report and Order, 
including a copy of this Final Regulatory Flexibility Certification, in 
a report to Congress pursuant to the Congressional Review Act. In 
addition, the Report and Order and this final certification will be 
sent to the Chief Counsel for Advocacy of the SBA, and will be 
published in the Federal Register.

Ordering Clauses

    16. Pursuant to sections 4(i), 7(a), 11, 303(c), 303(f), 303(g), 
and 303(r) of the

[[Page 51113]]

Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 161, 
303(c), 303(f), 303(g), 303(r), that the Report and Order is adopted. 
Part 25 of the Commission's rules is amended as specified in the rule 
change, effective September 6, 2002.
    17. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, Shall send a copy of this Report and 
Order, including the Final Regulatory Flexibility Certification, in a 
report to Congress pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A); and shall also send a copy of this Report and 
Order, including the Final Regulatory Flexibility Certification, to the 
Chief Counsel for Advocacy of the Small Business Administration. See 5 
U.S.C. 605(b).

List of Subjects in 47 CFR Parts 25 and 100

    Satellites.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rule Changes

    For the reasons discussed in the preamble, under the authority of 
47 U.S.C. 154(i) and 303 the Federal Communications Commission amends 
47 CFR chapter I as follows:

PART 25--SATELLITE COMMUNICATIONS

    1. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 
301, 302, 303, 307, 309, and 332 of the Communications Act, as 
amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, 
unless otherwise noted.


    2. Section 25.109 is amended by removing paragraph (b) and by 
redesignating paragraph (c) as paragraph (b).

    3. Section 25.111 is amended by adding paragraph (c) to read as 
follows:


Sec. 25.111  Additional information.

* * * * *
    (c) In the Direct Broadcast Satellite service, applicants and 
licensees shall also provide the Commission with all information it 
requires in order to modify the Appendix 30 Broadcasting-Satellite 
Service (``BSS'') Plans and associated Appendix 30A feeder-link Plans, 
if the system uses technical characteristics differing from those 
specified in the Appendix 30 BSS Plans, the Appendix 30A feederlink 
Plans, Annex 5 to Appendix 30 or Annex 3 to Appendix 30A. For such 
systems, no protection from interference caused by radio stations 
authorized by other Administrations is guaranteed until the agreement 
of all affected Administrations is obtained and the frequency 
assignment becomes a part of the appropriate Region 2 BSS and feeder-
link Plans. Authorizations for which coordination is not completed and/
or for which the necessary agreements under Appendices 30 and 30A have 
not been obtained may be subject to additional terms and conditions as 
required to effect coordination or obtain the agreement of other 
Administrations. Applicants and licensees shall also provide the 
Commission with the necessary Appendix 4 information required by the 
ITU Radiocommunication Bureau to advance publish, coordinate and notify 
the frequencies to be used for tracking, telemetry and control 
functions of DBS systems.

    4. Section 25.114 is amended revising paragraphs (c)(13) and 
(c)(14), and adding paragraph (c)(22) to read as follows:


Sec. 25.114  Applications for space station authorizations.

* * * * *
    (c) * * *
    (13) Space station license applicants subject to this section other 
than Direct Broadcast Satellite applicants shall provide detailed 
information demonstrating the financial qualifications of the applicant 
to construct and launch the proposed satellites. Applications shall 
provide the financial information required by Secs. 25.140 (b) through 
(e), 25.142(a)(4), or 25.143(b)(3), as appropriate;
    (14) A clear and detailed statement of whether the space station is 
to be operated on a common carrier basis, or whether non-common carrier 
transactions are proposed. If non-common carrier transactions are 
proposed, describe the nature of the transactions and specify the 
number of transponders to be offered on a non-common carrier basis. In 
addition, satellite applications in the Direct Broadcast Satellite 
service must provide a clear and detailed statement of whether the 
space station is to be operated on a broadcast or non-broadcast basis.
* * * * *
    (22) For satellite applications in the Direct Broadcast Satellite 
service, if the proposed system's technical characteristics differ from 
those specified in the Appendix 30 BSS Plans, the Appendix 30A feeder 
link Plans, Annex 5 to Appendix 30 or Annex 3 to Appendix 30A, each 
applicant shall provide:
    (i) The information requested in Appendix 4 of the ITU's Radio 
Regulations. Further, applicants shall provide sufficient technical 
showing that the proposed system could operate satisfactorily if all 
assignments in the BSS and feeder link Plans were implemented; and
    (ii) Analyses of the proposed system with respect to the limits in 
Annex 1 to Appendices 30 and 30A.
* * * * *

    5. Section 25.121 is amended by revising paragraph (a) to read as 
follows:


Sec. 25.121  License term and renewals.

    (a) License Term. Except for licenses for DBS facilities, licenses 
for facilities governed by this part will be issued for a period of 15 
years. Licenses for DBS space stations licensed as broadcast facilities 
will be issued for a period of 8 years. Licenses for DBS space stations 
not licensed as broadcast facilities will be issued for a period of 10 
years.
* * * * *

    6. Add Sec. 25.148 to read as follows:


Sec. 25.148  Licensing provisions for the Direct Broadcast Satellite 
Service.

    (a) License terms. License terms for DBS facilities are specified 
in Sec. 25.121(a).
    (b) Due diligence. (1) All persons granted DBS authorizations shall 
proceed with due diligence in constructing DBS systems. Permittees 
shall be required to complete contracting for construction of the 
satellite station(s) within one year of the grant of the authorization. 
The satellite stations shall also be required to be in operation within 
six years of the authorization grant.
    (2) In addition to the requirements stated in paragraph (b)(1) of 
this section, all persons who receive new or additional DBS 
authorizations after January 19, 1996 shall complete construction of 
the first satellite in their respective DBS systems within four years 
of grant of the authorization. All satellite stations in such a DBS 
system shall be in operation within six years of the grant of the 
authorization.
    (3) DBS licensees shall be required to proceed consistent with all 
applicable due diligence obligations, unless otherwise determined by 
the Commission upon proper showing in any particular case. Transfer of 
control of the authorization shall not be considered to justify 
extension of these deadlines.
    (c) Geographic service requirements. Those entities acquiring DBS 
authorizations after January 19, 1996, or

[[Page 51114]]

who after January 19, 1996 modify a previous DBS authorization to 
launch a replacement satellite, must provide DBS service to Alaska and 
Hawaii where such service is technically feasible from the authorized 
orbital location. This requirement does not apply to DBS satellites 
authorized to operate at the 61.5 deg. W.L. orbital location. DBS 
applicants seeking to operate from locations other than 61.5 deg. W.L. 
who do not provide service to Alaska and Hawaii, must provide technical 
analyses to the Commission demonstrating that such service is not 
feasible as a technical matter, or that while technically feasible such 
services would require so many compromises in satellite design and 
operation as to make it economically unreasonable.
    (d) DBS subject to competitive bidding. Mutually exclusive initial 
applications to provide DBS are subject to competitive bidding 
procedures. The general competitive bidding procedures set forth in 
part 1, subpart Q of this chapter will apply unless otherwise provided 
in this part.
    (e) DBS long form application. Winning bidders are subject to the 
provisions of Sec. 1.2107 of this chapter except that in lieu of a FCC 
Form 601 each winning bidder shall submit the long-form satellite 
service application (FCC Form 312) within thirty (30) days after being 
notified by Public Notice that it is the winning bidder. Each winning 
bidder will also be required to submit by the same deadline the 
information described in Sec. 25.215 (Technical) and Sec. 25.601 (EEO), 
and in paragraph (f) of this section. Each winner also will be required 
to file, by the same deadline, a signed statement describing its 
efforts to date and future plans to come into compliance with any 
applicable spectrum limitations, if it is not already in compliance. 
Such information shall be submitted pursuant to the procedures set 
forth in Sec. 25.114 and any associated Public Notices.
    (f) Technical qualifications. DBS operations must be in accordance 
with the sharing criteria and technical characteristics contained in 
Appendices 30 and 30A of the ITU's Radio Regulations. Operation of 
systems using differing technical characteristics may be permitted, 
with adequate technical showing, and if a request has been made to the 
ITU to modify the appropriate Plans to include the system's technical 
parameters.

    7. Section 25.201 is amended by adding the following definition in 
alphabetical order to read as follows:


Sec. 25.201  Definitions.

* * * * *
    Direct Broadcast Satellite Service. A radiocommunication service in 
which signals transmitted or retransmitted by space stations, using 
frequencies specified in Sec. 25.202(a)(7), are intended for direct 
reception by the general public. For the purposes of this definition, 
the term direct reception shall encompass both individual reception and 
community reception.
* * * * *

    8. Section 25.202 is amended by revising footnote 9 in paragraph 
(a)(1) and by adding paragraph (a)(7) to read as follows:


Sec. 25.202  Frequencies, frequency tolerance and emission limitations.

    (a) * * *
* * * * *
    \9\ The use of the band 17.3-17.8 GHz by the Fixed-Satellite 
Service (Earth-to-space) is limited to feeder links for the Direct 
Broadcast Satellite Service, and the sub-band 17.7-17.8 GHz is 
shared co-equally with terrestrial fixed services.
* * * * *
    (7) The following frequencies are available for use by the Direct 
Broadcast Satellite service:
12.2-12.7   GHz: Space-to-Earth.
* * * * *

    9. Add Sec. 25.215 to read as follows:


Sec. 25.215  Technical requirements for space stations in the Direct 
Broadcast Satellite Service.

    In addition to Sec. 25.148(f), space station antennas operating in 
the Direct Broadcast Satellite Service must be designed to provide a 
cross-polarization isolation such that the ratio of the on-axis co-
polar gain to the cross-polar gain of the antenna in the assigned 
frequency band shall be at least 30 dB within its primary coverage 
area.

    10. Section 25.601 is revised to read as follows:


Sec. 25.601  Equal employment opportunity requirement.

    Notwithstanding other EEO provisions within these rules, an entity 
that uses an owned or leased fixed-satellite service or direct 
broadcast satellite service facility (operating under this part) to 
provide video programming directly to the public on a subscription 
basis must comply with the equal employment opportunity requirements 
set forth in part 76, subpart E, of this chapter, if such entity 
exercises control (as defined in part 76, subpart E, of this chapter) 
over the video programming it distributes. Notwithstanding other EEO 
provisions within these rules, a licensee or permittee of a direct 
broadcast satellite station operating as a broadcaster must comply with 
the equal employment opportunity requirements set forth in part 73.

    10a. Add subpart J to part 25 to read as follows:

Subpart J--Public Interest Obligations


Sec. 25.701  Public interest obligations.

    (a) DBS providers are subject to the public interest obligations 
set forth in paragraphs (b) and (c) of this section. For purposes of 
this rule, DBS providers are any of the following:
    (1) Entities licensed to operate satellites in the 12.2-12.7 GHz 
DBS frequency bands; or
    (2) Entities licensed to operate satellites in the Ku-band fixed 
satellite service and that sell or lease capacity to a video 
programming distributor that offers service directly to consumers 
providing a sufficient number of channels so that four percent of the 
total applicable programming channels yields a set-aside of at least 
one channel of non-commercial programming pursuant to paragraph (c) of 
this section, or
    (3) Non-U.S. licensed satellite operators in the Ku-band that offer 
video programming directly to consumers in the United States pursuant 
to an earth station license issued under part 25 of this title and that 
offer a sufficient number of channels to consumers so that four percent 
of the total applicable programming channels yields a set-aside of one 
channel of non-commercial programming pursuant to paragraph (c) of this 
section,
    (b) Political broadcasting requirements--(1) Reasonable access. DBS 
providers must comply with Section 312(a)(7) of the Communications Act 
of 1934, as amended, by allowing reasonable access to, or permitting 
purchase of reasonable amounts of time for, the use of their facilities 
by a legally qualified candidate for federal elective office on behalf 
of his or her candidacy.
    (2) Use of facilities. DBS providers must comply with Section 315 
of the Communications Act of 1934, as amended, by providing equal 
opportunities to legally qualified candidates.
    (c) Carriage obligation for noncommercial programming--(1) 
Reservation requirement. DBS providers shall reserve four percent of 
their channel capacity exclusively for use by qualified programmers for 
noncommercial programming of an educational or informational nature. 
Channel capacity shall be determined annually by calculating, based on 
measurements taken on a quarterly basis, the average number of channels

[[Page 51115]]

available for video programming on all satellites licensed to the 
provider during the previous year. DBS providers may use this reserved 
capacity for any purpose until such time as it is used for 
noncommercial educational or informational programming.
    (2) Qualified programmer. For purposes of these rules, a qualified 
programmer is:
    (i) A noncommercial educational broadcast station as defined in 
section 397(6) of the Communications Act of 1934, as amended,
    (ii) A public telecommunications entity as defined in section 
397(12) of the Communications Act of 1934, as amended,
    (iii) An accredited nonprofit educational institution or a 
governmental organization engaged in the formal education of enrolled 
students (A publicly supported educational institution must be 
accredited by the appropriate state department of education; a 
privately controlled educational institution must be accredited by the 
appropriate state department of education or the recognized regional 
and national accrediting organizations), or
    (iv) A nonprofit organization whose purposes are educational and 
include providing educational and instructional television material to 
such accredited institutions and governmental organizations.
    (v) Other noncommercial entities with an educational mission.
    (3) Editorial control. (i) A DBS operator will be required to make 
capacity available only to qualified programmers and may select among 
such programmers when demand exceeds the capacity of their reserved 
channels.
    (ii) A DBS operator may not require the programmers it selects to 
include particular programming on its channels.
    (iii) A DBS operator may not alter or censor the content of the 
programming provided by the qualified programmer using the channels 
reserved pursuant to this section.
    (4) Non-commercial channel limitation. A DBS operator cannot 
initially select a qualified programmer to fill more than one of its 
reserved channels except that, after all qualified entities that have 
sought access have been offered access on at least one channel, a 
provider may allocate additional channels to qualified programmers 
without having to make additional efforts to secure other qualified 
programmers.
    (5) Rates, terms and conditions. (i) In making the required 
reserved capacity available, DBS providers cannot charge rates that 
exceed costs that are directly related to making the capacity available 
to qualified programmers. Direct costs include only the cost of 
transmitting the signal to the uplink facility and uplinking the signal 
to the satellite.
    (ii) Rates for capacity reserved under paragraph (a) of this 
section shall not exceed 50 percent of the direct costs as defined in 
this section.
    (iii) Nothing in this section shall be construed to prohibit DBS 
providers from negotiating rates with qualified programmers that are 
less than 50 percent of direct costs or from paying qualified 
programmers for the use of their programming.
    (iv) DBS providers shall reserve discrete channels and offer these 
to qualifying programmers at consistent times to fulfill the 
reservation requirement described in these rules.
    (6) Public file. (i) Each DBS provider shall keep and permit public 
inspection of a complete and orderly record of:
    (A) Quarterly measurements of channel capacity and yearly average 
calculations on which it bases its four percent reservation, as well as 
its response to any capacity changes;
    (B) A record of entities to whom noncommercial capacity is being 
provided, the amount of capacity being provided to each entity, the 
conditions under which it is being provided and the rates, if any, 
being paid by the entity;
    (C) A record of entities that have requested capacity, disposition 
of those requests and reasons for the disposition; and
    (D) A record of all requests for political advertising time and the 
disposition of those requests.
    (ii) All records required by this paragraph shall be placed in a 
file available to the public as soon as possible and shall be retained 
for a period of two years.
    (7) Effective date. DBS providers are required to make channel 
capacity available pursuant to this section upon the effective date. 
Programming provided pursuant to this rule must be available to the 
public no later than six months after the effective date.

PART 100--[REMOVED]

    11. Remove part 100.

[FR Doc. 02-19888 Filed 8-6-02; 8:45 am]
BILLING CODE 6712-01-P