[Federal Register Volume 69, Number 82 (Wednesday, April 28, 2004)]
[Rules and Regulations]
[Pages 23155-23160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9170]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[MM Docket No. 93-25; FCC 04-44]
RIN 3060-AF39


Implementation of the Cable Television Consumer Protection and 
Competition Act of 1992; Direct Broadcast Satellite Public Interest 
Obligations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document vacates the first Order on Reconsideration 
adopted in this proceeding on April 9, 2003 and adopts in its place a 
second Order on Reconsideration and accompanying rules. The second 
Order differs from the Order on Reconsideration adopted April 9, 2003 
with respect to Political Broadcasting Requirements and Guidelines 
Concerning Commercialization of Children's Programming. The second 
Order considers Petitions for Reconsideration and other pleadings filed 
in response to a 1998 Order adopting public interest obligations for 
DBS providers.

EFFECTIVE DATE: Effective May 28, 2004 except for Sec. Sec.  
25.701(d)(1)(i), 25.701(d)(1)(ii), 75.701(d)(2), 75.701(d)(3), 
25.701(e)(3), 25.701 (f)(6)(i), and 25.701(f)(6)(ii) which contains 
information collection requirements that have not been approved by OMB. 
The Federal Communications Commission will publish a document in the 
Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Rosalee Chiara, Policy Division, Media 
Bureau, (202) 418-0754.

SUPPLEMENTARY INFORMATION: This is a summary of the Second Order on 
Reconsideration of First Report and Order (``2nd Order'') in MM Docket 
Nos. 93-25, FCC 04-44 adopted March 3, 2004 and released March 25, 
2004. The full text of this decision 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 
20554, and may be purchased from the Commission's copy 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 e-mail [email protected] or may be viewed via Internet at 
http://www.fcc.gov/mb/.

[[Page 23156]]

Synopsis of Second Order on Reconsideration of First Report and Order

I. Introduction

    1. The Commission vacates the Order adopted in this proceeding on 
April 9, 2003, and adopts in its place this Sua Sponte Order and 
accompanying rules. The order reached results that differ from the 
Order with respect to two sections: The Political Broadcasting 
Requirements and Guidelines Concerning Commercialization of Children's 
Programming.

II. Background

    2. In 1992, Congress directed the Commission to initiate a 
rulemaking to impose certain public interest obligations on DBS 
providers. In 1998, the Commission adopted the First Report and Order 
(``1st R&O''), 64 FR 5951, February 8, 1999, which implements these 
statutory obligations. Nine petitions for reconsideration and related 
pleadings were filed in response to the 1st R&O. The petitioners raise 
concerns regarding whether the Commission has correctly determined what 
entities are defined as DBS providers, whether it has properly 
implemented the Commission's political broadcasting requirements for 
DBS providers, and whether it has adequately addressed the issue of 
localism. Petitioners also assert that the Commission should have 
applied certain additional obligations to DBS providers, should have 
taken steps to protect children from harm associated with over-
commercialization, should have prohibited DBS providers from meeting 
their public service obligation with existing programming, and 
challenge the Commission's determination to limit access to capacity 
reserved for educational and informational programming to one channel 
per national educational programming supplier.

III. Discussion

A. Definition of Providers of DBS Service

    3. The Commission affirms its initial conclusion that the DBS 
public interest obligations should apply to DBS providers formerly 
licensed under part 100 of the Commission's rules, fixed satellite 
service licensees offering at least 25 channels of programming in the 
Ku band, and entities using non-U.S. licensed satellites to provide DBS 
service to subscribers in the United States.

B. Political Broadcasting Requirements

    4. The Commission adopts specific, detailed rules on how DBS 
providers should comply with the political broadcasting requirements of 
sections 312(a)(7) and 315 of the Communications Act. These rules are 
the same as those applied to cable and broadcast with slight 
modifications to account for unique characteristics of DBS service.

C. Opportunities for Localism

    5. The Commission finds that because of the passage of the 
Satellite Home Viewer Improvement Act, DBS providers are devoting a 
portion of their system channel capacity to locally originated 
broadcast station programming and that it would not serve the public 
interest to require additional requirements to ``further the principle 
of localism'' at this time.

D. Additional Obligations

    6. The Commission affirmed its decision not to impose certain 
additional obligations on DBS providers.

E. Guidelines Concerning Commercialization of Children's Programming

    7. On reconsideration, the Commission determined that, given the 
growth of the DBS industry and the technological advances of the 
service, it is now appropriate to require DBS providers to comply with 
advertising limits on children's programming that are applicable to 
cable operators.

F. Programming on Reserved Capacity

    8. The Commission affirmed its decision to allow DBS providers to 
fulfill their 4% reservation requirement with programming carried 
before the rules went into effect.

G. Noncommercial Channel Limitation

    9. The Commission affirmed its decision to limit access to the 
reserved capacity on each DBS system to one channel per qualified 
program supplier as long as demand for such capacity exceeds the 
available supply.

IV. Conclusion

    10. The Commission grants in part and denies in part the petitions 
for reconsideration.

V. Paperwork Reduction Act

    11. This Report and Order (``R&O'') contains modified 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 the 
proceeding.
    12. Written comments by the public on the modified information 
collections are due June 28, 2004. Written comments must be submitted 
by the public, Office of Management and Budget (OMB), and other 
interested parties on the modified information collections on or before 
June 28, 2004. In addition to filing comments with the Secretary, a 
copy of any Paperwork Reduction Act comments on the information 
collections contained herein should be submitted to Judith B. Herman, 
Federal Communications Commission, Room 1-C804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected] 
and to Kim A. Johnson, OMB Desk Officer, Room 10236 NEOB, 725 17th 
Street, NW., Washington, DC 20503 or via the Internet to 
[email protected] or by fax to 202-395-5167.

VI. Final Regulatory Flexibility Act Certification

    13. The Regulatory Flexibility Act of 1980, as amended (RFA), see 5 
U.S.C. 601-612 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).
    14. The Order mandates that DBS providers maintain political files 
that contain, at a minimum, (i) a record of all requests for DBS 
origination time, the disposition of those requests, and the charges 
made, if any, if the request is granted. The ``disposition'' includes 
the schedule of time purchased, when spots actually aired, the rates 
charged, and the classes of time purchased; and (ii) a record of the 
free time provided if free time is provided for use by or on behalf of 
candidates. DBS providers must also maintain records sufficient to

[[Page 23157]]

verify compliance with the rules establishing commercial limits for 
children's programming. 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 $12.5 million or less in annual 
receipts. Small businesses, i.e., ones with less than $12.5 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 high implementation costs and 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 
Order on Reconsideration will not have a significant economic impact on 
a substantial number of small entities.
    15. We note that the American Cable Association (``ACA'') (formerly 
the Small Cable Business Association) filed a Petition for 
Reconsideration of the 1st R&O's Final Regulatory Flexibility Analysis, 
claiming generally that the Commission failed to properly take into 
account the harm that would be caused to small cable operators by the 
lack of rules requiring DBS providers to carry all local broadcast 
programming. The Order finds that although the Final Regulatory 
Flexibility Analysis issued in conjunction with the 1st R&O was 
adequate, in any event the intervening adoption of broadcast signal 
carriage rules for DBS, similar to those imposed on cable systems, has 
alleviated the concerns articulated by ACA.
    16. We certify that the rules in this Order will not have a 
significant economic impact on a substantial number of small entities.

Ordering Clause

    17. The petitions for reconsideration filed by the American Cable 
Association (including its petition for reconsideration of the Final 
Regulatory Flexibility Act analysis), America's Public Television 
Stations and the Public Broadcasting Service, GE American 
Communications, Inc., Loral Space and Communications Ltd., PanAmSat 
Corporation, and Time Warner Cable are denied and the petitions for 
reconsideration filed by the Denver Area Educational Telecommunications 
Consortium, et al., and the Center for Media Education, et al., are 
granted in part and denied in part.
    18. Pursuant to the authority contained in sections 4, 301, 302, 
303, 307, 309, 312, 315, 332, and 335 of the Communications Act, as 
amended, 47 U.S.C. 154, 301, 303, 307, 309, 312, 315, 332, and 335, 
that revised CFR 25.701 shall become effective thirty (30) days after 
publication of the text or summary thereof in the Federal Register, 
except for Sec. Sec.  25.701(d)(1)(i), 25.701(d)(1)(ii), 75.701(d)(2), 
75.701(d)(3), 25.701(e)(3), 25.701 (f)(6)(i), and 25.701(f)(6)(ii) 
which involve Paperwork Reduction Act burdens, which shall become 
effective immediately upon announcement in the Federal Register of OMB 
approval.
    19. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Order, 
including the Final Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    List of Subjects in 47 CFR Part 25 Satellites.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 25 as follows:

PART 25--SATELLITE COMMUNICATIONS

0
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. 154, 301, 302, 303, 307, 309, and 332, unless 
otherwise noted.


0
2. Section 25.701 is revised to read as follows:


Sec.  25.701  Public interest obligations.

    (a) DBS providers are subject to the public interest obligations 
set forth in paragraphs (b), (c), (d), (e) and (f) of this section. As 
used in this section, DBS providers are any of the following:
    (1) Entities licensed to operate satellites in the 12.2 to 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 (e) 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 (e) of this 
section.
    (b) Political broadcasting requirements --
    (1) Legally qualified candidates for public office for purposes of 
this section are as defined in Sec.  73.1940 of this chapter.
    (2) DBS origination programming is defined as programming 
(exclusive of broadcast signals) carried on a DBS facility over one or 
more channels and subject to the exclusive control of the DBS provider.
    (3) Reasonable access. (i) 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.
    (ii) Weekend access. For purposes of providing reasonable access, 
DBS providers shall make facilities available for use by federal 
candidates on the weekend before the election if the DBS provider has 
provided similar access to commercial advertisers during the year 
preceding the relevant election period. DBS providers shall not 
discriminate between candidates with regard to weekend access.
    (4) Use of facilities; equal opportunities. DBS providers must 
comply with section 315 of the Communications Act of 1934, as amended, 
by providing equal opportunities to legally qualified candidates for 
DBS origination programming.
    (i) General requirements. Except as otherwise indicated in Sec.  
25.701(b)(3), no DBS provider is required to permit the use of its 
facilities by any legally qualified candidate for public office, but if 
a DBS provider shall permit any such candidate to use its facilities, 
it shall afford equal opportunities to all other candidates for that 
office to use such facilities. Such DBS provider shall have no power of 
censorship over the

[[Page 23158]]

material broadcast by any such candidate. Appearance by a legally 
qualified candidate on any:
    (A) Bona fide newscast;
    (B) Bona fide news interview;
    (C) Bona fide news documentary (if the appearance of the candidate 
is incidental to the presentation of the subject or subjects covered by 
the news documentary); or
    (D) On the spot coverage of bona fide news events (including, but 
not limited to political conventions and activities incidental thereto) 
shall not be deemed to be use of a DBS provider's facility. (Section 
315(a) of the Communications Act.)
    (ii) Uses. As used in this section and Sec.  25.701(c), the term 
``use'' means a candidate appearance (including by voice or picture) 
that is not exempt under paragraphs (b)(3)(i)(A) through (b)(3)(i)(D) 
of this section.
    (iii) Timing of request. A request for equal opportunities must be 
submitted to the DBS provider within 1 week of the day on which the 
first prior use giving rise to the right of equal opportunities 
occurred: Provided, however, That where the person was not a candidate 
at the time of such first prior use, he or she shall submit his or her 
request within 1 week of the first subsequent use after he or she has 
become a legally qualified candidate for the office in question.
    (iv) Burden of proof. A candidate requesting equal opportunities of 
the DBS provider or complaining of noncompliance to the Commission 
shall have the burden of proving that he or she and his or her opponent 
are legally qualified candidates for the same public office.
    (v) Discrimination between candidates. In making time available to 
candidates for public office, no DBS provider shall make any 
discrimination between candidates in practices, regulations, 
facilities, or services for or in connection with the service rendered 
pursuant to this part, or make or give any preference to any candidate 
for public office or subject any such candidate to any prejudice or 
disadvantage; nor shall any DBS provider make any contract or other 
agreement that shall have the effect of permitting any legally 
qualified candidate for any public office to use DBS origination 
programming to the exclusion of other legally qualified candidates for 
the same public office.
    (c) Candidate rates.
    (1) Charges for use of DBS facilities. The charges, if any, made 
for the use of any DBS facility by any person who is a legally 
qualified candidate for any public office in connection with his or her 
campaign for nomination for election, or election, to such office shall 
not exceed:
    (i) During the 45 days preceding the date of a primary or primary 
runoff election and during the 60 days preceding the date of a general 
or special election in which such person is a candidate, the lowest 
unit charge of the DBS provider for the same class and amount of time 
for the same period.
    (A) A candidate shall be charged no more per unit than the DBS 
provider charges its most favored commercial advertisers for the same 
classes and amounts of time for the same periods. Any facility 
practices offered to commercial advertisers that enhance the value of 
advertising spots must be disclosed and made available to candidates 
upon equal terms. Such practices include but are not limited to any 
discount privileges that affect the value of advertising, such as bonus 
spots, time sensitive make goods, preemption priorities, or any other 
factors that enhance the value of the announcement.
    (B) The Commission recognizes non preemptible, preemptible with 
notice, immediately preemptible and run of schedule as distinct classes 
of time.
    (C) DBS providers may establish and define their own reasonable 
classes of immediately preemptible time so long as the differences 
between such classes are based on one or more demonstrable benefits 
associated with each class and are not based solely upon price or 
identity of the advertiser. Such demonstrable benefits include, but are 
not limited to, varying levels of preemption protection, scheduling 
flexibility, or associated privileges, such as guaranteed time 
sensitive make goods. DBS providers may not use class distinctions to 
defeat the purpose of the lowest unit charge requirement. All classes 
must be fully disclosed and made available to candidates.
    (D) DBS providers may establish reasonable classes of preemptible 
with notice time so long as they clearly define all such classes, fully 
disclose them and make them available to candidates.
    (E) DBS providers may treat non preemptible and fixed position as 
distinct classes of time provided that they articulate clearly the 
differences between such classes, fully disclose them, and make them 
available to candidates.
    (F) DBS providers shall not establish a separate, premium priced 
class of time sold only to candidates. DBS providers may sell higher 
priced non preemptible or fixed time to candidates if such a class of 
time is made available on a bona fide basis to both candidates and 
commercial advertisers, and provided such class is not functionally 
equivalent to any lower priced class of time sold to commercial 
advertisers.
    (G) [Reserved]
    (H) Lowest unit charge may be calculated on a weekly basis with 
respect to time that is sold on a weekly basis, such as rotations 
through particular programs or dayparts. DBS providers electing to 
calculate the lowest unit charge by such a method must include in that 
calculation all rates for all announcements scheduled in the rotation, 
including announcements aired under long term advertising contracts. 
DBS providers may implement rate increases during election periods only 
to the extent that such increases constitute ``ordinary business 
practices,'' such as seasonal program changes or changes in audience 
ratings.
    (I) DBS providers shall review their advertising records 
periodically throughout the election period to determine whether 
compliance with this section requires that candidates receive rebates 
or credits. Where necessary, DBS providers shall issue such rebates or 
credits promptly.
    (J) Unit rates charged as part of any package, whether individually 
negotiated or generally available to all advertisers, must be included 
in the lowest unit charge calculation for the same class and length of 
time in the same time period. A candidate cannot be required to 
purchase advertising in every program or daypart in a package as a 
condition for obtaining package unit rates.
    (K) DBS providers are not required to include non cash promotional 
merchandising incentives in lowest unit charge calculations; provided, 
however, that all such incentives must be offered to candidates as part 
of any purchases permitted by the system. Bonus spots, however, must be 
included in the calculation of the lowest unit charge calculation.
    (L) Make goods, defined as the rescheduling of preempted 
advertising, shall be provided to candidates prior to election day if a 
DBS provider has provided a time sensitive make good during the year 
preceding the pre election periods, respectively set forth in paragraph 
(c)(1)(i) of this section, to any commercial advertiser who purchased 
time in the same class.
    (M) DBS providers must disclose and make available to candidates 
any make good policies provided to commercial advertisers. If a DBS 
provider places a make good for any commercial advertiser or other 
candidate in a more

[[Page 23159]]

valuable program or daypart, the value of such make good must be 
included in the calculation of the lowest unit charge for that program 
or daypart.
    (ii) At any time other than the respective periods set forth in 
paragraph (c)(1)(i) of this section, DBS providers may charge legally 
qualified candidates for public office no more than the charges made 
for comparable use of the facility by commercial advertisers. The 
rates, if any, charged all such candidates for the same office shall be 
uniform and shall not be rebated by any means, direct or indirect. A 
candidate shall be charged no more than the rate the DBS provider would 
charge for comparable commercial advertising. All discount privileges 
otherwise offered by a DBS provider to commercial advertisers must be 
disclosed and made available upon equal terms to all candidates for 
public office.
    (2) If a DBS provider permits a candidate to use its facilities, it 
shall make all discount privileges offered to commercial advertisers, 
including the lowest unit charges for each class and length of time in 
the same time period and all corresponding discount privileges, 
available on equal terms to all candidates. This duty includes an 
affirmative duty to disclose to candidates information about rates, 
terms, conditions and all value enhancing discount privileges offered 
to commercial advertisers, as provided herein. DBS providers may use 
reasonable discretion in making the disclosure; provided, however, that 
the disclosure includes, at a minimum, the following information:
    (i) A description and definition of each class of time available to 
commercial advertisers sufficiently complete enough to allow candidates 
to identify and understand what specific attributes differentiate each 
class;
    (ii) A description of the lowest unit charge and related privileges 
(such as priorities against preemption and make goods prior to specific 
deadlines) for each class of time offered to commercial advertisers;
    (iii) A description of the DBS provider's method of selling 
preemptible time based upon advertiser demand, commonly known as the 
``current selling level,'' with the stipulation that candidates will be 
able to purchase at these demand generated rates in the same manner as 
commercial advertisers;
    (iv) An approximation of the likelihood of preemption for each kind 
of preemptible time; and
    (v) An explanation of the DBS provider's sales practices, if any, 
that are based on audience delivery, with the stipulation that 
candidates will be able to purchase this kind of time, if available to 
commercial advertisers.
    (3) Once disclosure is made, DBS providers shall negotiate in good 
faith to actually sell time to candidates in accordance with the 
disclosure.
    (d) Political file. Each DBS provider shall keep and permit public 
inspection of a complete and orderly political file and shall 
prominently disclose the physical location of the file, and the 
telephonic and electronic means to access the file.
    (1) The political file shall contain, at a minimum:
    (i) A record of all requests for DBS origination time, the 
disposition of those requests, and the charges made, if any, if the 
request is granted. The ``disposition'' includes the schedule of time 
purchased, when spots actually aired, the rates charged, and the 
classes of time purchased; and
    (ii) A record of the free time provided if free time is provided 
for use by or on behalf of candidates.
    (2) DBS providers shall place all records required by this section 
in a file available to the public as soon as possible and shall be 
retained for a period of four years until December 31, 2006, and 
thereafter for a period of two years.
    (3) DBS providers shall make available, by fax, e-mail, or by mail 
upon telephone request, photocopies of documents in their political 
files and shall assist callers by answering questions about the 
contents of their political files. Provided, however, that if a 
requester prefers access by mail, the DBS provider shall pay for 
postage but may require individuals requesting documents to pay for 
photocopying. To the extent that a DBS provider places its political 
file on its Web site, it may refer the public to the Web site in lieu 
of mailing photocopies. Any material required by this section to be 
maintained in the political file must be made available to the public 
by either mailing or Web site access or both.
    (e) Commercial limits in children's programs. (1) No DBS provider 
shall air more than 10.5 minutes of commercial matter per hour during 
children's programming on weekends, or more that 12 minutes of 
commercial matter per hour on week days.
    (2) This rule shall not apply to programs aired on a broadcast 
television channel which the DBS provider passively carries, or to 
channels over which the DBS provider may not exercise editorial 
control, pursuant to 47 U.S.C. 335(b)(3).
    (3) DBS providers airing children's programming must maintain 
records sufficient to verify compliance with this rule and make such 
records available to the public. Such records must be maintained for a 
period sufficient to cover the limitations period specified in 47 
U.S.C. 503(b)(6)(B).

    Note 1 to paragraph (e): Commercial matter means airtime sold 
for purposes of selling a product or service.


    Note 2 to paragraph (e): For purposes of this section, 
children's programming refers to programs originally produced and 
broadcast primarily for an audience of children 12 years old and 
younger.

    (f) 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 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

[[Page 23160]]

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) In addition to the political file requirements 
in Sec.  25.701(d), 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.
    (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.

[FR Doc. 04-9170 Filed 4-27-04; 8:45 am]
BILLING CODE 6712-01-P