[Federal Register Volume 70, Number 16 (Wednesday, January 26, 2005)]
[Proposed Rules]
[Pages 3656-3658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1435]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 258

[Docket No. 2004-9 CARP SRA]


Rate Adjustment for the Satellite Carrier Compulsory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is submitting 
for public comment a proposed settlement of royalty rates for analog 
television broadcast stations retransmitted by satellite carriers under 
statutory license.

DATES: Comments and Notices of Intent to Participate must be submitted 
no later than February 25, 2005.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of a comment and a Notice of Intent to Participate should be 
brought to Room LM-401 of the James Madison Memorial Building between 
8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: 
Copyright Office General Counsel/CARP, U.S. Copyright Office, James 
Madison Memorial Building, Room LM-401, 101 Independence Avenue, S.E., 
Washington, DC 20559-6000. If delivered by a commercial courier, an 
original and five copies of a comment and a Notice of Intent to 
Participate must be delivered to the Congressional Courier Acceptance 
Site located at 2nd and D Streets, N.E., between 8:30 a.m. and 4 p.m. 
The envelope should be addressed as follows: Copyright Office General 
Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 
Independence Avenue, S.E., Washington, DC. If sent by mail (including 
overnight delivery using U.S. Postal Service Express Mail), an original 
and five copies of a comment and a Notice of Intent to Participate 
should be addressed to: Copyright Arbitration Royalty Panel (CARP), 
P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Comments 
and Notices of Intent to Participate may not be delivered by means of 
overnight delivery services such as Federal Express, United Parcel 
Service, etc., due to delays in processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William J. Roberts, Jr., Senior Attorney, Copyright Arbitration Royalty 
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024-
0977. Telephone: (202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION: On December 8, 2004, the President signed 
the Satellite Home Viewer Extension and Reauthorization Act 
(``SHVERA''), a part of the Consolidated Appropriations Act of 2005, 
Pub. L. 108-447. SHVERA extends for an additional five years the 
statutory license for satellite carriers retransmitting over-the-air 
television broadcast stations to their subscribers, 17 U.S.C. 119, as 
well as makes a number of amendments to the license. One of the 
amendments to section 119 sets forth a process for adjusting the 
royalty fees paid by satellite carriers for retransmitting analog 
television network and superstations. 17 U.S.C. 119(c)(1). The law 
directs the Librarian of Congress to publish notice in the Federal 
Register requesting satellite carriers, distributors and copyright 
owners to submit to the Copyright Office any voluntary agreements they 
have negotiated as to the adjustment of the rates for analog stations. 
The Library published such a notice on

[[Page 3657]]

December 30, 2004, and, pursuant to the statute, requested that any 
agreements be submitted no later than January 10, 2005. 69 FR 78482 
(December 30, 2004).
    The Office has received one agreement, submitted jointly by the 
satellite carriers DirecTV, Inc. and EchoStar Satellite L.L.C., the 
copyright owners of motion pictures and syndicated television series 
represented by the Motion Picture Association of America, and the 
copyright owners of sports programming represented by the Office of the 
Commissioner of Baseball. Section 119(c)(1)(D)(ii)(II) requires the 
Library to ``provide public notice of the royalty fees from the 
voluntary agreement and afford parties an opportunity to state that 
they object to those fees.'' 17 U.S.C. 119(c)(1)(D)(ii)(II). This 
Notice of Proposed Rulemaking (``NPRM'') fulfills the requirement.
    The law further provides that the Librarian shall adopt the rates 
contained in the voluntary agreement as applicable to all satellite 
carriers, distributors and copyright owners ``unless a party with an 
intent to participate'' in a royalty rate adjustment proceeding before 
a Copyright Arbitration Royalty Panel (``CARP'') and a ``significant 
interest in the outcome'' of the CARP proceeding files an objection. 
Consequently, any party that objects to the rates proposed in this NPRM 
must submit the following on or before February 25, 2005:
    1. A notice of objection to the rates identifying the rate or rates 
to which the objection applies and the reasons for the objection;
    2. A statement setting forth in detail why the objector has a 
significant interest in the royalty rates to be adopted; and
    3. A separate Notice of Intent to Participate in the CARP 
proceeding to adjust the rates. The CARP proceeding will commence on 
May 1, 2005. See 17 U.S.C. 119(c)(1)(F).
    Only parties objecting to the royalty rates should submit the 
above-described documents.
    A copy of the voluntary agreement can be viewed at http://www.copyright.gov/carp/sat_rate_agreement.pdf. The Library is not 
proposing for adoption the additional terms set forth in the agreement 
as the statute only provides for adoption of royalty rates. See 17 
U.S.C. 119(c)(1)(D)(ii)(III).

Proposed Regulations

    For the reasons set forth above, the Copyright Office proposes to 
amend 37 CFR chapter II as follows:

PART 258--ADJUSTMENT OF ROYALTY FEE FOR SECONDARY TRANSMISSIONS BY 
SATELLITE CARRIERS

    1. The authority citation for part 258 is amended to read as 
follows:

    Authority: 17 U.S.C. 119, 702, 802.

    2. Section 258.2 is revised to read as follows:


Sec.  258.2  Definitions.

    (a) Commercial establishment. The term ``commercial establishment'' 
means an establishment used for commercial purposes, such as bars, 
restaurants, private offices, fitness clubs, oil rigs, retail stores, 
banks and financial institutions, supermarkets, auto and boat 
dealerships, and other establishments with common business areas; 
provided that the term ``commercial establishment'' shall not include a 
multi-unit permanent or temporary dwelling where private home viewing 
occurs, such as hotels, dormitories, hospitals, apartments, 
condominiums and prisons, all of which shall be subject to the rates 
applicable to private home viewing.
    (b) Syndex-proof signal. A satellite retransmission of a broadcast 
signal shall be deemed ``syndex proof'' for purposes of Sec.  258.3(b) 
if, during any semi-annual reporting period, the retransmission does 
not include any program which, if delivered by any cable system in the 
United States, would be subject to the syndicated exclusivity rules of 
the Federal Communications Commission.
    (c) Per subscriber per month. The term ``per subscriber per month'' 
means each subscriber subscribing to the station in question, or to a 
package including such station, on the last day of a given month.
    3. Section 258.3 is amended by adding new paragraphs (d) through 
(h) to read as follows:


Sec.  258.3  Royalty fee for secondary transmission of broadcast 
stations by satellite carriers.

    * * * * *
    (d) Commencing January 1, 2005, the royalty rate for secondary 
transmission of broadcast stations by satellite carriers shall be as 
follows:
    (1) For private home viewing-
    (i) 20 cents per subscriber per month for distant superstations.
    (ii) 17 cents per subscriber per month for distant network 
stations.
    (2) For viewing in commercial establishments, 40 cents per 
subscriber per month for distant superstations.
    (e) Commencing January 1, 2006, the royalty rate for secondary 
transmission of broadcast stations by satellite carriers shall be as 
follows:
    (1) For private home viewing-
    (i) 21.5 cents per subscriber per month for distant superstations.
    (ii) 20 cents per subscriber per month for distant network 
stations.
    (2) For viewing in commercial establishments, 43 cents per 
subscriber per month for distant superstations.
    (f) Commencing January 1, 2007, the royalty rate for secondary 
transmission of broadcast stations by satellite carriers shall be as 
follows:
    (1) For private home viewing-
    (i) 23 cents per subscriber per month for distant superstations.
    (ii) 23 cents per subscriber per month for distant network 
stations.
    (2) For viewing in commercial establishments, 46 cents per 
subscriber per month for distant superstations.
    (g) Commencing January 1, 2008, the royalty rate for secondary 
transmission of broadcast stations by satellite carriers shall be as 
follows:
    (1) For private home viewing-
    (i) The 2007 rate per subscriber per month for distant 
superstations adjusted for the amount of inflation as measured by the 
change in the Consumer Price Index for all Urban Consumers from January 
2007 to January 2008.
    (ii) The 2007 rate per subscriber per month for distant network 
stations adjusted for the amount of inflation as measured by the change 
in the Consumer Price Index for all Urban Consumers from January 2007 
to January 2008.
    (2) For viewing in commercial establishments, the 2007 rate per 
subscriber per month for viewing distant superstations in commercial 
establishments adjusted for the amount of inflation as measured by the 
change in the Consumer Price Index for all Urban Consumers from January 
2007 to January 2008.
    (h) Commencing January 1, 2009, the royalty rate for secondary 
transmission of broadcast stations by satellite carriers shall be as 
follows:
    (1) For private home viewing-
    (i) The 2008 rate per subscriber per month for distant 
superstations adjusted for the amount of inflation as measured by the 
change in the Consumer Price Index for all Urban Consumers from January 
2008 to January 2009.
    (ii) The 2008 rate per subscriber per month for distant network 
stations adjusted for the amount of inflation as measured by the change 
in the Consumer Price Index for all Urban Consumers from January 2008 
to January 2009.
    (2) For viewing in commercial establishments, the 2008 rate per

[[Page 3658]]

subscriber per month for viewing distant superstations in commercial 
establishments adjusted for the amount of inflation as measured by the 
change in the Consumer Price Index for all Urban Consumers from January 
2008 to January 2009.

    Dated: January 21, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-1435 Filed 1-25-05; 8:45 am]
BILLING CODE 1410-33-S