[Federal Register Volume 74, Number 250 (Thursday, December 31, 2009)]
[Rules and Regulations]
[Pages 69285-69286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31095]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[FCC 09-113]


Implementation of Section 1003(b) of the Department of Defense 
Appropriations Act, 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document establishes a new sunset date for certain 
Commission's rules applicable to retransmission consent in accordance 
with Section 1003(b) of the Department of Defense Appropriations Act, 
2010, Public Law No. 111-118.

DATES: Effective December 31, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact David Konczal, [email protected], of the Media 
Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Order, FCC 09-113, 
adopted and released on December 28, 2009. The full text of this 
document is available for public inspection and copying during regular 
business hours in the FCC Reference Center, Federal Communications 
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This 
document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/
). (Documents will be available electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text may be purchased from the 
Commission's copy contractor, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554. To request this document in accessible formats 
(computer diskettes, large print, audio recording, and Braille), send 
an e-mail to [email protected] or call the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Summary of the Order

I. Introduction

    1. In this Order, we amend Sec. Sec.  76.64(l) and 76.65(f) of the 
Commission's rules in accordance with Section 1003(b) of the Department 
of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 
1003(b) (2009), which was enacted on December 19, 2009. Section 
325(b)(3)(C)(ii) of the Communications Act of 1934, as amended (the 
``Act''), required the Commission to adopt regulations that, until 
January 1, 2010, prohibit a television broadcast station that provides 
retransmission consent from engaging in exclusive contracts for 
carriage or failing to negotiate in good faith. 47 U.S.C. 
325(b)(3)(C)(ii). Section 325(b)(3)(C)(iii) required the Commission to 
adopt regulations that, until January 1, 2010, prohibit a multichannel 
video programming distributor from failing to negotiate in good faith 
for retransmission consent. 47 U.S.C. 325(b)(3)(C)(iii). The Commission 
has previously adopted rules to implement these provisions, including 
Sec. Sec.  76.64(l) and 76.65(f) to reflect the sunset date of January 
1, 2010. See 47 CFR 76.64(l) (``Exclusive retransmission consent 
agreements are prohibited. No television broadcast station shall make 
or negotiate any agreement with one multichannel video programming 
distributor for carriage to the exclusion of other multichannel video 
programming distributors. This paragraph shall terminate at midnight on 
December 31, 2009.''); 47 CFR 76.65(f) (``Termination of rules. This 
section shall terminate at midnight on December 31, 2009.'').
    2. In Section 1003(b) of the Department of Defense Appropriations 
Act, 2010, Congress amended Sections 325(b)(3)(C)(ii) and (iii) to 
replace the previous sunset date of January 1, 2010 with a new sunset 
date of March 1, 2010. See Department of Defense Appropriations Act, 
2010, Public Law No. 111-118, Sec. 1003(b). Accordingly, we are 
amending our rules to reflect the

[[Page 69286]]

new sunset date, provided that if Congress further extends this date, 
the rules remain in effect until the statutory authorization expires. 
We are amending these rules without providing prior public notice and 
comment because prior notice and comment would be impracticable in this 
case. See 5 U.S.C. 553(b)(3)(B). Section 1003(b) of the Department of 
Defense Appropriations Act, 2010 was enacted on December 19, 2009, less 
than two weeks before the sunset date of January 1, 2010. This provides 
the Commission with an insufficient amount of time to publish a Notice 
of Proposed Rulemaking in the Federal Register, to allow time for 
meaningful comment, and to consider those comments before taking the 
necessary actions prior to the sunset date of January 1, 2010. See 
Petry v. Block, 737 F.2d 1193, 1201 (D.C. Circ. 1984) (holding that the 
``extremely limited time given by Congress'' established ``good cause'' 
for not seeking prior notice and comment). Moreover, our action here is 
largely ministerial, because it simply implements a new sunset date 
established by Congress. See 5 U.S.C. 553(b)(3)(B). See, e.g., 
Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 
(DC Cir. 1982) (agency order, issued pursuant to congressional waiver 
of certain provisions of federal law that would otherwise have governed 
construction and operation of Alaskan natural gas pipeline, was 
appropriately issued without notice and comment as a nondiscretionary 
ministerial action); Implementation of Section 505 of the 
Telecommunications Act of 1996 (Scrambling of Sexually Explicit Adult 
Video Service Programming), 11 FCC Rcd 5386, 5387 (1996); 
Implementation of Sections 204(A) and 204(C) of the Telecommunications 
Act of 1996 (Broadcast License Renewal Procedures), 11 FCC Rcd 6363, 
6364 (1996); Implementation of Sections 202(A) and 202(B)(1) of the 
Telecommunications Act of 1996 (Broadcast Radio Ownership), 11 FCC Rcd 
12368, 12371 (1996); Implementation of Sections 202(c)(1) and 202(e) of 
the Telecommunications Act of 1996 (National Broadcast Television 
Ownership and Dual Network Operations), 11 FCC Rcd 12374, 12377 (1996). 
Accordingly, we find that this action falls within the ``good cause'' 
exception to the notice and comment requirements of the Administrative 
Procedure Act (``APA''). Because we have found good cause for not 
seeking prior notice and comment, the Regulatory Flexibility Act and 
the Congressional Review Act do not apply to our action here. See 5 
U.S.C. 603(a); 5 U.S.C. 808. For similar reasons, we find good cause to 
make these amendments to our rules effective upon publication in the 
Federal Register. Because the legislation establishing the new sunset 
date was enacted less than two weeks prior to the previous sunset date 
of January 1, 2010, we are unable to provide for a 30-day period before 
the new sunset date in these rules takes effect. See 5 U.S.C. 553(d)(3) 
(``The required publication or service of a substantive rule shall be 
made not less than 30 days before its effective date, except * * * as 
otherwise provided by the agency for good cause found and published 
with the rule.''); see also 47 CFR 1.427(b).

II. Procedural Matters

    3. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

III. Ordering Clauses

    4. It is ordered that pursuant to the authority found in Section 
325 of the Communications Act of 1934, as amended, 47 U.S.C. 325, and 
Section 1003(b) of the Department of Defense Appropriations Act, 2010, 
Public Law No. 111-118, Sec. 1003(b) (2009), Sec. Sec.  76.64(l) and 
76.65(f) of the Commission's rules are hereby amended as set forth in 
the rule changes below and are effective December 31, 2009.

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

Rule Changes

0
For the reasons stated in the preamble, the Federal Communications 
Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 503, 521, 
522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.


0
2. Section 76.64 is amended by revising the last sentence of paragraph 
(l) to read as follows:


Sec.  76.64  Retransmission consent.

* * * * *
    (l) * * * This paragraph shall terminate at midnight on February 
28, 2010, provided that if Congress further extends this date, the 
rules remain in effect until the statutory authorization expires.
* * * * *

0
3. Section 76.65 is amended by revising paragraph (f) to read as 
follows:


Sec.  76.65   Good faith and exclusive retransmission consent 
complaints.

* * * * *
    (f) Termination of rules. This section shall terminate at midnight 
on February 28, 2010, provided that if Congress further extends this 
date, the rules remain in effect until the statutory authorization 
expires.

[FR Doc. E9-31095 Filed 12-30-09; 8:45 am]
BILLING CODE 6712-01-P