[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45659-45669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18527]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 25, 73, and 76
[MB Docket Nos. 17-317, 17-105; FCC 19-69]
Electronic Delivery of MVPD Communications; Modernization of
Media Regulation Initiative
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
modernizes the carriage election notice rules by permitting
broadcasters to post their carriage elections online and send notices
to covered multichannel video programming distributors (MVPDs) by email
only when first electing carriage or changing their carriage election
status from must carry to retransmission consent or vice versa.
Additionally, all parties will be required to post their contact
information online on Commission databases.
DATES:
Effective date: This rule is effective October 29, 2019.
Compliance date: Compliance will not be required for Sec. Sec.
25.701, 73.3526, 73.3527, 76.64, and 76.66(d) until the Commission
publishes a document in the Federal Register announcing the compliance
date.
FOR FURTHER INFORMATION CONTACT: Lyle Elder, [email protected], 202-
418-2120, or Varsha Mangal, [email protected], 202-418-0073.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (Order), FCC 19-69, in MB Docket Nos. 17-317, 17-105, adopted
on July 10, 2019, and released on July 11, 2019. The complete text of
this document is available electronically via the search function on
the FCC's Electronic Document Management System (EDOCS) web page at
https://apps.fcc.gov/edocs_public/ (https://apps.fcc.gov/edocs_public/
). The complete document is available for inspection and copying in the
FCC Reference Information Center, 445 12th Street SW, Room CY-A257,
Washington, DC 20554 (for hours of operation, see https://www.fcc.gov/general/fcc-reference-information-center). To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to [email protected] (mail
to: [email protected]) or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. Introduction. In this Report and Order, we modernize the
Commission's carriage election notice rules by permitting broadcasters
to post their carriage elections online, and to send notices to covered
multichannel video programming distributors (MVPDs) by email only when
changing their carriage election status. This approach will replace our
current regulatory framework, under which a broadcast station typically
must send a paper notice via certified mail to covered MVPDs every
three years, regardless of whether its carriage election changes or
not. For the purposes of this Order, a covered MVPD is a cable
operator, Direct Broadcast Satellite (DBS) provider, or any other MVPD
for which broadcasters currently elect or request carriage and which
uses the online public file and/or Cable Operations and Licensing
System (COALS). To make our new approach workable, we also will require
covered MVPDs to upload email and phone contact information to either
the COALS database or to the online public inspection file. In
addition, in the Further Notice of Proposed Rulemaking published
elsewhere in this issue of the Federal Register, we seek comment on
whether and how the modernized framework described in this Order should
be extended to certain broadcasters and covered MVPDs that do not use
the Commission databases referenced in this Order. Through this
proceeding, the Commission continues its efforts to modernize
regulations and reduce unnecessary requirements that can impede
competition and innovation in the media marketplace.
2. Background. The Commission has long contemplated the potential
for an incubator program to provide new sources of capital and support
to entities that may otherwise lack access to financing or operational
experience. In concept, an incubator program seeks to provide an
established broadcaster with an inducement in the form of an ownership
rule waiver or similar benefit to invest the time, money, and resources
needed to facilitate broadcast station ownership by new and diverse
entrants. An incubator program contemplates that, in exchange for a
defined benefit, an established company could assist a new owner by
providing ``management or technical assistance, loan guarantees, direct
financial assistance through loans or equity investments, training, or
business planning assistance.''
3. Under the Communications Act of 1934, as amended (the Act), full
power television broadcast stations, and certain low power stations and
translator stations, are entitled to mandatory carriage of their signal
(also known as ``must carry'') on any cable system located within their
local market, also known as their designated market area (DMA). Full
power stations
[[Page 45660]]
also have carriage rights on any DBS provider providing local service
into the market. Each satellite carrier providing secondary
transmissions to subscribers located within the local market of a
television broadcast station of a primary transmission made by that
station shall carry upon request the signals of all other television
broadcast stations located within that local market. This type of
carriage is commonly known as ``carry one, carry all.'' Carry one,
carry all refers to the fact that DBS providers are not required to
carry any local broadcast stations in a market, but must carry all
stations with carriage rights upon request if any local station is
carried (with certain narrow exceptions). The DBS must-carry/
retransmission consent regime otherwise functions in a manner very
similar to the cable regime. But no low power station shall be entitled
to insist on carriage under this section on DBS providers. If a
broadcast station asserts its must-carry rights, the MVPD may not
accept or request any compensation whatsoever from the broadcaster in
exchange for carriage of its signal. Alternatively, commercial
broadcast stations with carriage rights may elect ``retransmission
consent.'' The terms of retransmission consent frequently include,
among other negotiated terms, compensation from the MVPD to the
broadcaster in exchange for the right to carry the station's signal. If
the broadcaster and MVPD cannot reach a retransmission consent
agreement, however, the MVPD is prohibited from carrying the
broadcaster's signal. Thus, commercial broadcasters are presented with
a carriage choice--elect mandatory carriage and forego compensation
while assuring carriage, or elect retransmission consent and forego
assured carriage while retaining the possibility of compensation for
carriage. Noncommercial educational stations (NCEs) are entitled to
must carry, but not to elect retransmission consent. Any requests NCE
stations make, including those made at the outset of their or a cable
system's operation, must be included in their public file ``for the
duration of any period to which the request applies. When the
Commission implemented the statutory provisions establishing the must-
carry/retransmission consent regime, it adopted a requirement that each
commercial television broadcast station provide notice to every cable
operator every three years electing either mandatory carriage or
retransmission consent. Carriage elections by commercial television
stations must be made by October 1 every three years, for the three-
year period beginning the following January. A similar triennial notice
requirement, applying to both commercial and noncommercial television
broadcast stations, later was adopted as part of the carry one, carry
all regime for DBS providers. Failure by a broadcaster to provide
timely notice of its chosen election results in a default election of
must carry with respect to cable operators, but a default of
retransmission consent with respect to DBS providers.
4. Currently, the rules direct each commercial television broadcast
station to send a triennial carriage election notice, via certified
mail, to each cable system or DBS provider serving its market, and each
NCE station to send such notices to DBS providers. As discussed herein,
NCE stations are not required to make triennial cable carriage
elections. In addition, the rules generally also require stations to
place triennial carriage election statements in their online inspection
files, but as explained in the Further Notice of Proposed Rulemaking,
neither qualified low power television stations nor TV translator
stations are required under our rules to maintain public inspection
files. The notice must state whether the station has elected mandatory
carriage or retransmission consent. The rules applicable to DBS
provider notices also require that the certified mail letter be
``return receipt requested.''
5. In response to the initial Public Notice in the Media
Modernization proceeding, a number of commenters expressed concerns
about, and proposed changes to, the carriage election notification
process. Specifically, ABC Television Affiliates Association, CBS
Television Network Affiliates Association, and FBC Television
Affiliates Association said the current ``requirement burdens
television stations because there is no central repository for the
information necessary'' to send election notices. Many of these
commenters proposed that broadcasters should be able to satisfy their
carriage election requirement by sending an email to an MVPD or simply
uploading the carriage election into their public file. But the
American Cable Association argued that continued reliance on certified
mail is essential and AT&T proposed allowing notice to be sent via any
express mail service, rather than only by certified mail, return
receipt requested. Although some commenters in the Media Modernization
docket proposed even broader changes to the must-carry/retransmission
consent system, in this proceeding we are focused exclusively on the
way broadcasters communicate carriage elections and requests. In
response to these concerns, the Commission adopted a Notice of Proposed
Rulemaking (NPRM) (83 FR 2119, Jan. 16, 2018) and opened this docket in
December 2017. The NPRM sought comment on alternative means of
notifying covered MVPDs about broadcaster carriage elections that would
``satisfy the needs of broadcasters and MVPDs.'' The instant item
adopts changes to Sec. Sec. 76.64(h) and 76.66(d), as proposed in the
NPRM, as well as conforming edits to other related rules. Almost every
commenter responding to the NPRM maintained that there are flaws in the
current election notification system. For example, NAB estimates that
station groups are spending more than $1,000 per station, per carriage
election cycle, on carriage elections, between searching for MVPD
contact information, outside law firm expenses, and certified mail
costs. Despite this time and expense, broadcasters claim that they are
often still not certain whether they have correctly identified and
verified cable operators' contact information, and ``send duplicative
notices to avoid the severe consequences of making a defective
retransmission consent election.'' To avoid the significant legal and
financial consequences that arise from the failure to make timely
elections, and to reduce the costs and resources incurred while making
the election, some commenters suggested ways to modernize the carriage
election process. For example, ION supported ``a simple requirement
that stations post their elections in their online public inspection
files.'' APTS proposed that the ``obligation to re-file satellite
carriage requests every three years for NCE-TVs should be eliminated.''
NCTA proposed that broadcasters submit their carriage election
notification via email to a single point of contact for each operator.
DISH, though favoring the status quo, proposed the creation of a
Commission-hosted website through which broadcasters can elect
carriage, a proposal endorsed by AT&T. AT&T itself proposed to ``permit
broadcasters to use express delivery mail with tracking instead of
certified mail.'' With the exception of the DBS providers, commenters
generally now support the Joint Proposal, which synthesizes various
aspects of this wide array of proposals.
6. On December 7, 2018, the National Association of Broadcasters
(NAB) and NCTA--the internet and Television Association (NCTA) jointly
submitted a proposal setting forth a recommendation of how to modernize
the election
[[Page 45661]]
notification process (Joint Proposal) for commercial broadcasters and
cable operators. Specifically, the Joint Proposal seeks to ``alleviate
the burdens associated with the current notification process'' by
revising our rules as necessary so that
a commercial broadcast TV station would be required to send notice
of its must carry or retransmission consent election to a cable
operator only if the station changed its election status from its
previous election. In those cases, the broadcaster would send its
notice to an email address listed in the cable operator's online
public file or in the FCC's Cable Operations and Licensing System
(COALS) database, for cable operators that do not have an online
public file.
While the proposal's terms are limited to commercial broadcast
stations and cable operators, the types of entities that are members of
NAB and NCTA, NAB ``believes these rules should apply uniformly to all
MVPDs.'' NAB also has stated that ``There is no reason to limit the
proposal's application to only commercial broadcasters, and no one in
the record has suggested doing so. The FCC should allow noncommercial
broadcasters to benefit from a modernized notice regime, including by
no longer requiring them to `elect' mandatory carriage every three
years for satellite providers.'' The Joint Proposal suggests that this
change be in effect for the 2021-2023 carriage election cycle. The next
carriage election deadline is October 1, 2020. Broadcasters would
``continue to include copies of their election statements in their
online public files.''
7. In order to make this process work, NAB and NCTA propose that a
broadcaster email a notice to a cable operator whenever changing its
election with respect to one or more of that operator's systems. Each
such change notice must ``identify [the broadcast] station call
sign(s), the DMA and the specific change being made in election
status,'' and include an email address and phone number ``in case cable
operators have additional questions.'' This email address and phone
number must also be on the ``first page of each of [a broadcaster's]
stations' public files,'' and must be updated if they change. If an
operator has multiple systems within a DMA, the notice must identify
them individually only if the broadcaster ``changes its election for
some systems . . . but not all.'' If a broadcaster is unable to deliver
a ``change of election'' notice to a listed email address due to a
problem with the email address or the operator's ability to receive the
email, and is unable to contact the operator using a provided phone
number, then the notice will still be considered to have been properly
delivered if it is timely placed in the broadcaster's public file and
emailed to the Commission.
8. NAB and NCTA suggest that each cable operator ``provide a
general carriage elections email address, where broadcasters will send
their election notices'' and a phone number to be used only ``in the
event of questions as to whether'' a notice was received. They propose
that this contact information would be on the ``first page'' of each
cable system's public file, ``or in the FCC's Cable Operations and
Licensing System (COALS) database, for cable operators that do not have
an online public file.'' The proposal contemplates that the contact
information must be kept current by the cable operator, and should
always be ``up-to-date within 60 days of the next carriage election
deadline.'' In addition, cable operators would be required to
``generate a response to the broadcaster's notification email so that
the broadcaster knows its election notice was received,'' but this
response would ``not be considered the cable operator's affirmation
that the broadcast station fully satisfied its notice obligation.''
9. The Joint Proposal suggests updates to the Commission's online
file and COALS databases to implement these proposed changes. Finally,
it proposes the creation of a Commission ``email address that
broadcasters will [carbon copy] when sending election notices to cable
operators.'' The Joint Proposal specifically does not propose to change
the current default election provisions, and recommends maintaining the
status quo with respect to any situation not expressly contemplated in
the proposal.
10. The Media Bureau issued a document seeking comment on the Joint
Proposal (84 FR 4039, Feb. 14, 2019). Specifically, it asked whether,
and to what extent, the Commission should adopt the recommendations set
forth in the proposal. Commenters generally support the substance of
the Joint Proposal, although DISH and AT&T oppose its application to
DBS providers and claim that they have a greater need for triennial
notices than other covered MVPDs.
11. Discussion. We adopt the Joint Proposal and expand upon it in
two significant ways. Specifically, although the Joint Proposal relates
to commercial broadcasters and cable operators, we also will apply
certain elements of the rules implementing the proposal to NCE
stations. We will also apply the new rules to DBS providers. Thus, our
new framework will be relevant to all broadcasters with mandatory
carriage rights, and all MVPDs responsible for that carriage, except in
those narrow cases we separately address in the Further Notice of
Proposed Rulemaking published elsewhere in this issue of the Federal
Register. In the Further Notice of Proposed Rulemaking, we seek comment
on whether and how to apply these new rules to broadcast stations and
covered MVPDs that do not have access to the online public file and/or
COALS. We conclude that it will serve the public interest and enhance
administrative efficiency to have a unified approach for carriage
election notices.
12. Almost all commenters support the Joint Proposal, and we find
that it addresses many of the concerns raised throughout this
proceeding by broadcasters and MVPDs alike. For example, ION and the
Affiliates and Networks urge us to ``adopt the proposal without''
revision. Meredith states that the proposal ``reduces the opportunity
for `gotcha' gamesmanship'' and it supports ``this common sense, easily
applied, Twenty First Century proposal.'' But as noted above and
discussed further below, DISH and AT&T, the two existing DBS providers,
object to being subject to the Joint Proposal. In addition, AT&T
suggests that we change the election deadline and the timeline for MVPD
responses. As emphasized above, in this proceeding we are focused
exclusively on the way broadcasters communicate carriage elections and
requests. We did not seek comment on, and we do not make, any other
changes to the carriage election process or the responsibilities and
rights of the parties involved. The ``unanswered questions'' identified
by DISH/AT&T, such as the question of which carriage election controls
if a broadcaster files multiple requests or sends multiple notices, are
not specific to this proceeding. That is, issues such as these would be
handled just as they always have been. For example, our precedent
generally holds that in the case where a broadcaster files multiple
inconsistent carriage election notices, the first valid election is
binding. ACA also proposed revisions to our rules ``with respect to
notices that cable operators are required to deliver to broadcast
stations.'' After filing comments, but before filing ex partes, the
American Cable Association changed its name to ACA Connects--America's
Communications Association. Although they are outside the scope of this
proceeding, the Commission separately is seeking comment on the
proposals raised by ACA, and related efforts to ``extend[] the benefits
of electronic delivery'' to MVPD notices.
[[Page 45662]]
Pine Belt Communications (Pine Belt) asks us to ``review the extreme
increases in broadcast retransmission rates.'' This subject is beyond
the scope of this proceeding and is therefore not addressed in this
Order. Under our new approach, broadcasters will make their carriage
elections by placing them into their online public files, and they will
be required to provide a separate electronic notice of those elections
to relevant MVPDs only when and if they change their election from the
previous election period. This includes not only stations that are
already being carried on the MVPD, but also stations announcing their
intent to be carried by new systems or a new provider under Sec. Sec.
76.64(k) and 76.66(d)(2) of our rules, or new broadcast television
stations electing carriage under Sec. 76.64(f)(4) or Sec.
76.66(d)(3)(ii). NCE stations that are currently being carried will
place only a one-time DBS carriage request in their public file. Thus,
only a limited number of notices will need to be sent to MVPDs and
these will be sent via email instead of via paper mail. In addition, we
require broadcasters and DBS providers to upload to their online public
files both an email address and a phone number for purposes of carriage
related inquiries, and we require cable operators to upload the same
information in COALS. This contact information must be uploaded no
later than July 31, 2020 and must be kept up-to-date thereafter.
Application of Joint Proposal to Broadcasters
13. Commercial Television Stations. We largely adopt the election
notification framework suggested in the Joint Proposal with respect to
commercial broadcasters. The first component of our new framework for
commercial broadcast TV stations is that they will upload a single
triennial carriage election statement to their online public files, a
streamlining of their current obligation to post and retain separate
election statements for each MVPD by which they are carried. This
filing will constitute the formal carriage election of the station that
is required by the statute. Thus, a failure to timely upload the
statement will result in a default election, as well as a violation of
the broadcast public file rule. To the extent a commercial broadcaster
makes different elections with respect to different MVPDs, the election
statement included in the public file must reflect those differences.
If a station makes a uniform election, a blanket election statement for
the relevant DMA will suffice. For example, its statement could be as
simple as ``[INSERT CALL SIGN] elects [must-carry/retransmission
consent] on all MVPDs in the [INSERT DMA NAME] Designated Market Area
for the 2021-2023 carriage cycle.'' If the station is making different
elections with respect to different MVPDs, however, its statement must
reflect those differences. Furthermore, any change notices sent to
MVPDs must be attached to this election statement. Election statements
must be uploaded to a station's public file by the triennial deadline
currently specified in our rules.
14. The second component of our new approach is that, if a
commercial broadcaster changes its carriage election for a specific
covered MVPD, an election change notice must be sent to that MVPD's
carriage election-specific email address and attached to the station's
election statement in its public file by the carriage election
deadline. Such change notices must include, with respect to each
station covered by the notice: The station's call sign, the station's
community of license, the DMA where the station is located, the
specific change being made in election status, and an email address and
phone number for carriage-related questions. This contact information
must be the same carriage-related contact information posted in the
online public file at the time the election notice is sent. Consistent
with the Joint Proposal, if the notice is sent to a cable operator, the
broadcaster ``would need to identify specific cable systems for which a
carriage election applies [only] if the broadcaster changes its
election for some systems of the cable operator but not all.'' In
addition, the broadcaster must carbon copy [email protected] when
sending its carriage elections to MVPDs. A single notice may cover all
of a broadcaster's stations, as well as all of a cable operator's
systems or all of a DBS provider's served DMAs. Copies of a change
notice must be included in the public file of every station affected by
that change notice. In this regard, the record in this proceeding
suggests that election status changes are the exception rather than the
rule, since approximately 15% of its must-carry stations change
election status or ownership and/or network affiliation from cycle to
cycle.
15. If a broadcaster does not receive a response verifying receipt
of its change notice, or gets an indication that the message was not
delivered, it must contact the MVPD via the provided phone number to
confirm that the notice was received or arrange for it to be
redelivered. The verification email from the MVPD is meant to confirm
receipt of the email in a manner similar to a return receipt when
sending certified mail. As under the current rules, it is the
responsibility of the broadcaster who is sending the notice to ensure
that the notice is timely sent and contains all of the required,
accurate, information. If the email is timely and properly sent to the
MVPD's listed address, but the broadcaster receives no verification and
is unable to reach anyone at the provided phone number, the notice
still will be considered to have been properly delivered if it was
properly copied to the Commission's election notice mailbox and is
timely placed in the broadcaster's public file. Similarly, if an MVPD
does not maintain a required COALS account or public file, or fails to
provide any carriage contact information at all, a broadcaster's
election change notice still will be considered to have been properly
delivered if it is timely sent to the Commission's election notice
mailbox and is timely placed in the broadcaster's public file.
16. NCE Stations. Although the Joint Proposal applies only to
commercial broadcast stations, we also apply certain elements of it to
NCE stations, as suggested by Public Broadcasting. Because NCE
stations, unlike commercial stations, cannot elect retransmission
consent, we find it appropriate to apply different notice requirements
to NCE stations to ensure that they are not unduly burdened. Our
current rules require NCE stations to send written election notices to
DBS providers every three years, even though these stations only may
request mandatory carriage, and are not permitted to ``elect''
retransmission consent on any MVPD. Public Broadcasting states that
``once an NCE-TV station requests mandatory carriage from a cable
operator, the carriage request continues, absent a change in
circumstances. Thus, there is no requirement that NCE-TV stations
`reelect' mandatory carriage on cable for every three-year cycle.'' The
record provides no justification for modifying this process. Nor do any
commenters suggest that we do so. We agree with Public Broadcasting
(and NAB) that ``re-notify[ing] satellite carriers'' every three years
of their request for carriage via ``the antiquated method of certified
mail'' is unnecessary. NAB agrees ``[t]here is no reason to limit the
proposal's application to only commercial broadcasters,'' and that we
``should allow noncommercial broadcasters to benefit from a modernized
notice regime.'' As Public Broadcasting also notes, the current
``outdated'' notice requirements have
[[Page 45663]]
recently resulted in ``[h]undreds of thousands of members of the
public'' losing access to some ``noncommercial educational public
television service'' in the Minority Television Project case. In that
case, the Media Bureau denied a must carry complaint because the
broadcaster failed to follow the current election notice rules.
Minority Television Project, Inc., is the licensee of independent non-
commercial television station KMTP-TV, San Francisco, California
(KMTP). KMTP sent a letter to DISH Network L.L.C. (DISH), electing
mandatory carriage on DISH throughout the San Francisco-San Jose-
Oakland DMA for the 2018-2020 election cycle. The Bureau stated that
the ``letter included all of the information that is required by
[s]ection 76.66(d)(1) of the Commission's rules,'' and was timely
mailed. It was sent, however, via the United States Postal Service's
Priority Express Mail service. Because Sec. 76.66(d)(1)(ii) of our
rules required that it be sent through the United States Postal Service
as first-class certified mail, return receipt requested, the Bureau
determined that KMTP did not comply with the rules and that KMTP is
thus not entitled to carriage on DISH anywhere in their market during
the current three -year election cycle.
17. Just like commercial stations seeking mandatory satellite
carriage, NCE stations are required pursuant to section 338 of the Act
to ``request'' carriage from DBS providers. DBS providers must
retransmit eligible stations only ``upon request.'' DISH/AT&T assert
that ``[t]his is [ ] the reason why noncommercial educational stations
must file carriage election letters every election cycle with DBS
providers, but not with cable systems.'' We disagree, because the
statute does not require that NCEs repeatedly re-notify DBS providers
about their carriage request. We find, instead, that by uploading and
retaining a carriage request in their online public files, an NCE
station will have satisfied the statutory requirement in section 338(a)
to ``request'' carriage. Although we recognize that the SHVIA Order
required NCE broadcasters to make requests anew every three years, we
find no bar in the statute to permitting NCE broadcasters to make a
single notification to DBS providers. Although DISH/AT&T claim that
``there is a real and practical need'' for every broadcast station
asserting its must-carry rights (including NCE stations) to send a
triennial election notice to DBS providers, we do not agree for the
reasons discussed below. DISH/AT&T argue that this need arises because
DBS providers have a more limited ability than cable operators to
gather information about mandatory carriage stations and need the
triennial notices in order to find out about stations' content,
ownership, and tower location. We note, however, that none of this
information is required to be provided in triennial carriage election
notices. As the Commission found when first implementing the DBS
carriage rules, however, ``carriers need some measure of control in
configuring their satellite systems to meet their statutory
obligations,'' and as a result both commercial and NCE stations were
required to make carriage requests by consistent deadlines. This need
for ``some measure of control'' persists. Therefore, we will require
each NCE station to make a request for DBS carriage via the placement
of a carriage statement into its public file no later than the next
carriage election deadline of October 1, 2020. New requests for
carriage by NCE stations must be sent to an MVPD's ``carriage election-
specific'' email address and retained in the station's public file
``for the duration of any period to which the request applies.'' When
the new request is from an existing NCE station that is not being
carried by an existing MVPD, the NCE must email a copy of its request
by the next carriage election deadline, and must be carried by the MVPD
beginning with the next carriage cycle. Each such statement must list
the station's call sign, the station's community of license, and the
DMA where the station is located and for which is it requesting
carriage. For example, such a request statement could be as simple as
``[INSERT CALL SIGN] requests carriage on DBS providers serving the
[INSERT DMA NAME] Designated Market Area.'' The statement must be
retained in the NCE station's public file. These requirements will
constitute new obligations for NCE stations. NCE stations are required
to place requests for mandatory carriage on a cable system in their
public files, but there is no triennial carriage election requirement
for NCE stations with respect to cable systems. However, because we are
relieving NCE stations of repeated triennial notice obligations,
including the obligation to send carriage requests via certified mail
to DBS providers, this limited application of the Joint Proposal
framework to these stations will result in a significant and meaningful
reduction in their overall regulatory burdens.
18. Broadcaster Contact Information. All broadcasters subject to
our new rules must provide an email address and phone number in their
public files for carriage-related questions no later than July 31,
2020, approximately 60 days prior to the 2020 carriage election
deadline, and maintain up-to-date contact information at all times
thereafter. This email address and phone number need not be dedicated
exclusively to carriage issues, so long as the individuals answering
them are prepared to address carriage issues. The Commission will
ensure that this information appears on the first page of the station's
online public file. This proposed requirement has been roundly endorsed
by the broadcasters themselves, and no commenter opposes it. As ION
compellingly argues, ``creating better, more certain lines of
communication between broadcasters and cable operators concerning
election issues will inevitably lead to a more cooperative process.''
ION PN Comments at 1. The Affiliates and Networks are ``particularly
pleased'' with this reciprocal contact information requirement,
cheering the ``spirit of cooperation'' it embodies. DISH/AT&T
``estimate that during the three-year election period they may each
contact about a quarter of their must-carry stations regarding
technical and/or programming related issues,'' and it is ``thus
essential that DBS providers have updated information for these
stations,'' provided via the triennial election notices. A centralized
electronic repository of contact information that is readily accessible
through the Commission's online public file should make it at least as
easy, if not easier than it is today, for an MVPD to find a specific
phone number or email address. We agree with the suggestion in the
Joint Proposal that both an email address and a phone number should be
provided for each station, so that there is an alternative means of
communication if the other one fails. Broadcasters will be required to
respond as soon as is reasonably possible to carriage questions from
MVPDs.
19. Application of Joint Proposal to MVPDs. Under our new rules,
each covered MVPD will be required to provide a designated carriage
election email address, where broadcasters will send election change
notices, and a phone number for broadcasters to use in the event of
questions as to whether the MVPD received the station's election
notice. We anticipate, but do not mandate, that the email address will
be dedicated exclusively to election change notices, but the
individuals answering emails and phone calls to the designated contacts
must be prepared to address
[[Page 45664]]
carriage issues. Covered MVPDs will be required to respond as soon as
is reasonably possible to carriage questions from broadcasters. Each
covered MVPD must have a single email address and phone number for
carriage issues, regardless of the number of systems operated or
markets served. All cable operators will provide this contact
information via COALS, and the Commission will ensure that the
information provided in COALS is automatically transferred to the
online files of cable operators that also have an online public file,
while the DBS providers will input the information directly into their
online public files. Cable systems with fewer than 1,000 subscribers
are not required to maintain an online public file. As with
broadcasters, the Commission will ensure that this information appears
on the first page of the MVPD's online public file. Covered MVPDs must
provide their contact information by July 31, 2020, and maintain up-to-
date contact information at all times thereafter. MVPDs are responsible
for the accuracy and availability of this contact information, and
broadcasters may rely on its accuracy at any time. Because covered
MVPDs are already required to provide some contact information to the
public, this additional carriage contact obligation, and the
requirement to keep this information up to date, should pose virtually
no burden on covered MVPDs.
20. As suggested in the Joint Proposal, we also will require
covered MVPDs to verify receipt of an emailed election change notice,
via email sent back to the originating address, as soon as is
reasonably possible. This will not constitute a statement that ``the
broadcast station fully satisfied its notice obligation,'' but rather
simply will indicate that the notice email was received. In other
words, the verification email is meant to confirm receipt of the email
in a manner similar to a return receipt when sending certified mail. As
under the current rules, it is the responsibility of the broadcaster
who is sending the notice to ensure that the notice is timely sent and
contains all of the required, accurate, information. Although we
anticipate that these verification emails will be generated
automatically in most cases, we require only that they be sent
expeditiously. A timely and correct notice of a change in election that
is sent to the email address provided by the MVPD, carbon copied to
[email protected], and placed in the station's public file, must
be honored by the MVPD.
21. Though the Joint Proposal related to cable election notices, we
are extending the rules to DBS providers as well. We are persuaded by
NAB that having different sets of rules for cable and DBS ``will only
confuse the carriage election process and make it more difficult for
broadcasters to ensure they have provided proper notice to all relevant
MVPDs.'' We disagree with DISH/AT&T that there are compelling reasons
not to apply this updated process to them. They claim that ``no party
has explained--or even attempted to explain--how mailing, at most, two
letters once every three years . . . is burdensome.'' DISH/AT&T observe
that we ``need not have identical carriage election'' notice procedures
for DBS and cable, and that, ``for example, the carriage election
defaults are different.'' Even granting that mailing these triennial
letters imposes only a minimal burden on mandatory carriage stations,
the fact that they do not send these letters to cable operators shows
that it is an unnecessary burden. Indeed, the different carriage
election defaults emphasized by DISH/AT&T increase the importance of
modernizing the process for cable and DBS in a consistent way. As some
small independent and noncommercial stations have learned, simply
``mailing a letter'' to a DBS provider is not, in fact, enough to
ensure carriage under the current rules because carriage rights have
been denied based on violations of the current mailing requirement. We
believe that adopting a simplified and uniform election notification
process will decrease the possibility that broadcasters, particularly
small broadcasters, will fail to qualify for carriage based on
technical noncompliance with our rules.
22. We also disagree that DBS providers have a greater need for the
triennial notices than their cable counterparts and therefore that the
methodology in the Joint Proposal should not apply to them. DISH/AT&T
note that ``stations may change content, ownership, and sometimes
locations'' between elections, and claim that unlike the cable
operators that ``have a local or, at least, a regional presence and are
thus more aware of and familiar with these station changes . . . DBS
providers may never have any contact with'' stations that do not
actively negotiate carriage agreements. According to DISH/AT&T, they
therefore have a greater need for ``triennial election notices [from
mandatory carriage stations specifically] to update records and
determine carriage obligations for the next three years,'' because
sometimes the changes mean the station is ``not always eligible for
continued carriage.'' AT&T also ``estimates that approximately 15% of
its must-carry stations change election status or ownership and/or
network affiliation from cycle to cycle.'' However, broadcasters are
not required to provide either ``ownership'' or ``network affiliation''
information in carriage election notices. Therefore, the number of
stations that change election status is only a subset of the 15% of
stations that AT&T references in its filing. Moreover, because the
evidence in this proceeding shows that only a minority of stations
elect must carry, there likely would be a very small number of stations
that would change either to or from must-carry status in any given
election cycle. Information about content, ownership, and tower
location, however, is not required to be provided to the DBS providers
by broadcasters in triennial election notices. If broadcasters are
voluntarily supplying this information to the providers today, nothing
in our new rules will prohibit their continuing to do so in the future.
23. We note that our updated election notification process
specifically addresses a significant concern raised by DISH earlier in
this proceeding. The NPRM asked whether the Commission should revise
our rules such that broadcasters would be required to place election
notices in the public file instead of mailing them. DISH contended in
response that this would be ``unworkable for MVPDs'' unless notices
were also sent directly to them, because MVPDs would have to ``search
hundreds of public files for new election requests.'' Our revised rules
ameliorate that potential problem by ensuring that notice of any new or
changed carriage request is sent via email directly to any affected
MVPD. By eliminating the ``clutter'' of hundreds of election notices
that simply reaffirm an existing election, these rules will aid DBS
providers in recognizing and focusing on stations whose election status
has changed.
24. Indeed, the fact that election change notices will be emailed
directly to MVPDs significantly undercuts the DBS providers' contention
that the new rules will impose a large administrative burden. DISH/AT&T
note that they each carry more than 1,300 broadcast stations nationwide
and maintain that it ``is not feasible for DISH and DIRECTV to manage
that number of carriage election notifications through emails and phone
calls.'' Under our new rules, however, the DBS providers will have to
manage notices from only the small fraction of stations changing their
carriage election status in any given cycle. Although
[[Page 45665]]
DISH and AT&T have claimed throughout this proceeding that email ``does
not provide the necessary level of certainty for the carriage election
process,'' other commenters disagree. Nexstar notes that given ``the
pervasive use of the internet and email communications . . . email
distribution is not a big ask or an unreliable delivery method.''
Furthermore, although DISH accurately notes that email messages can
introduce new complexities and challenges, such as navigating through
spam filters that might prevent notices from being received, we note
that it alleviates others, like the danger of physical mail being lost
within a mailroom. Moreover, as the Joint Proposal suggests, we are
requiring that both broadcasters and MVPDs also post phone numbers, so
there will always be an alternative means for stations and MVPDs to
contact each other and resolve carriage issues.
25. Commission Responsibilities. As suggested in the Joint
Proposal, the Commission must do its part to implement this new
carriage election process. Specifically, we will update COALS,
providing fields for cable operators to enter their carriage election
notice email address and phone numbers. The information entered will be
displayed on the first page of COALS, and we will also transfer this
information as necessary so that, for operators with an online public
file, the contact information appears on the front pages of those
public files. We also will update the online public file so that
broadcasters and DBS providers can enter this information directly into
their public files, where again it will be displayed on the first page.
26. In addition, the Commission will create an ``election notice
verification'' email inbox that broadcasters must carbon copy when
notifying an MVPD of a changed election, located at
[email protected]. Like the MVPD email address, this Commission
address will provide a verification response to assure broadcasters
that the email has been received. In the case of a dispute between a
broadcaster and MVPD about an election change notice, the Commission
will make available a copy of any email that was received in the inbox.
DISH/AT&T propose that, every three years, ``the Commission [] publish
a list of all broadcaster carriage election [change] notices that it
receive[s] via its [email protected] email inbox.'' The DBS
providers contend that ``the Commission publishing this list shortly
after October 1'' will ``ensure that MVPDs are aware of all elections
the Commission considers valid.'' The process we adopt today places
minimal burden on DBS providers. We reject DISH/AT&T's proposal; it
introduces significant and unnecessary administrative complexity given
that any relevant emails sent to [email protected] will be
provided to the parties in the event of a dispute.
27. Timing. We adopt the Joint Proposal suggestion that ``this new
framework tak[e] effect in the 2020 election'' for the 2021-2023
carriage election cycle. Therefore, broadcasters must upload their
carriage elections into their public files and email required
notifications to covered MVPDs by October 1, 2020. This suggestion
received widespread support in the record. ION and the Affiliates and
Networks urge us to ``adopt the proposal'' without change. Meredith
``hopes it can be put into place for the 2020 election.'' Nexstar
endorses the idea that ``all 2017 carriage elections would carry
forward'' beginning with the 2020 election. Though smaller cable
operators say that they should be exempt from the new rules until 2023,
we conclude that it will be feasible for the cable operators, including
small operators, to comply in a timely way with the limited
requirements imposed on covered MVPDs under our new rules.
28. ACA, with Pine Belt's support, ``opposes the proposal's
timeline as unrealistic for those small providers that would rely on
COALS to make their contact information available online to
broadcasters.'' \1\ ACA notes that it is not opposing the Joint
Proposal, ``despite the fact that doing so means imposing new
requirements on its members,'' and observes that it would be
``irresponsible'' and ``cause significant confusion'' to begin
educating its members about a regulatory change that has not yet been
adopted and a recordkeeping obligation that ``cannot even be met until
the FCC has updated COALS.'' ACA ``does not believe that the Commission
will be able to implement the proposal quickly enough to give these
operators sufficient time to meet their new obligations.'' They cite
the need to publish this Report and Order, seek and receive approval
from the Office of Management and Budget under the Paperwork Reduction
Act, and make technical updates to Commission databases, claiming that
these efforts will ``leav[e] small cable operators with just a few
months at most to update their information in COALS.'' Accordingly, ACA
proposes an exception to the electronic notice aspect of these rules
for small cable operators. Under ACA's proposal, if a ``broadcaster
cannot identify an email address for an operator with a system serving
fewer than 1,000 subscribers in its market, or if it does not receive
an email from such an operator confirming receipt of its notice, the
broadcaster must send the notice to that system operator via certified
mail.'' NAB replies that ``it is absurd to think that businesses, even
smaller ones, would not be able to add an email address and phone
number to a single electronic file within a few months,'' and that
``nothing prohibits ACA from starting immediately to alert its members
about upcoming regulatory changes.'' It also expresses concern that the
ACA proposal ``would significantly complicate the 2020 election
cycle.'' ACA, in turn, stated, ``[a]llowing broadcasters to do what
they have been doing for nearly two decades cannot possibly be
considered complicated.''
---------------------------------------------------------------------------
\1\ After filing comments, but before filing ex partes, the
American Cable Association changed its name to ACA Connects--
America's Communications Association.
---------------------------------------------------------------------------
29. Although we recognize ACA's concerns, we find that the burdens
of our new rules will be minimal for small cable operators and that it
will not take any entity a great amount of time to come into
compliance. We note that, although this is a new obligation, small
cable operators are familiar with COALS, which they are already
required to keep up-to-date. There should be ample time for
broadcasters and MVPDs to prepare for the new process and update their
existing database entries with a single email address and phone number.
We therefore adopt the Joint Proposal's suggested timing and plan to
update our databases so that broadcasters and MVPDs will be able to add
their carriage election contact information no later than July 31,
2020, in their public files or COALS, as appropriate. The Commission
will announce the completion of these system updates via public notice.
Procedural Matters
30. Paperwork Reduction Act Analysis. This Order contains
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. The requirements 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 will be invited to comment on the information collection
requirements contained in this proceeding. The Commission will publish
a separate document in the Federal Register at a later date seeking
these comments. In addition, we note that, pursuant to the Small
Business
[[Page 45666]]
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), the Commission previously sought specific comment on how it
might further reduce the information collection burden for small
business concerns with fewer than 25 employees. We have described
impacts that might affect small businesses, which includes most
businesses with fewer than 25 employees, in the Final Regulatory
Flexibility Act Analysis.
Final Regulatory Flexibility Analysis
31. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking (NPRM) (83 FR 2119,
Jan. 16, 2018) in this proceeding. The Commission sought written public
comments on proposals in the NPRM, including comment on the IRFA. The
Commission received no comments on the IRFA. The present Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
32. Need for, and Objectives of, the Report and Order. In this
Report and Order, we modernize our rules requiring broadcasters to
submit their triennial carriage election notification via certified
mail. First, to provide notice, commercial broadcasters will upload an
election notice to their public files every election cycle, and
noncommercial educational stations must upload to their public files no
later than October 1, 2020 their notice to DBS operators requesting
carriage. Additionally, commercial broadcasters will now email MVPDs a
carriage election notification only if they are changing their election
from the previous cycle or if they are submitting their election for
the first time. Second, MVPDs must respond to the broadcasters as soon
as reasonably possible, acknowledging receipt of the notification.
Third, both broadcasters and MVPDs must maintain an up-to-date phone
number and email address on the Commission's public database. We
conclude that these requirements will relieve burdens and
inefficiencies endured by broadcasters and MVPDs caused by the cost and
time required to comply with these rules. Through this proceeding, we
continue our efforts to modernize our regulations and reduce
unnecessary requirements that can impede competition and innovation in
the media marketplace.
33. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. No comments were filed in direct response to the
IRFA.
34. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply. The RFA directs agencies to
provide a description of, and where feasible, an estimate of the number
of small entities that may be affected by the proposed rules, if
adopted. 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 SBA. Below, we provide a
description of such small entities, as well as an estimate of the
number of such small entities, where feasible.
35. Cable Companies and Systems (Rate Regulation Standard). The
Commission has developed is own small business size standards for the
purpose of cable rate regulation. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers
nationwide. Industry data indicate that all but nine of the 4,600 cable
operators active nationwide are small under the 400,000 subscriber size
standard. In addition, under the Commission's rate regulation rules, a
``small system'' is a cable system serving 15,000 or fewer subscribers.
Of the 4,600 active cable systems nationwide, we estimate that
approximately 3,900 percent have 15,000 or fewer subscribers, and 700
have more than 15,000 subscribers. Thus, under this standard as well,
we estimate that most cable systems are small entities.
36. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than
one percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in
the aggregate exceed $250,000,000.'' There are approximately 52,403,705
cable video subscribers in the United States today. Accordingly, an
operator serving fewer than 524,037 subscribers shall be deemed a small
operator if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate. Based on available data, we find that all but nine incumbent
cable operators are small entities under this size standard. We note
that the Commission neither requests nor collects information on
whether cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million. The Commission does receive such
information on a case-by-case basis if a cable operator appeals a local
franchise authority's finding that the operator does not qualify as a
small cable operator pursuant to Sec. 76.901(f) of the Commission's
rules. Although it seems certain that some of these cable systems
operators are affiliated with entities whose gross annual revenues
exceed $250 million, we are unable at this time to estimate with
greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.
37. Open Video Services. Open Video Service (OVS) systems provide
subscription services. The open video system framework was established
in 1996, and is one of four statutorily recognized options for the
provision of video programming services by local exchange carriers. The
OVS framework provides opportunities for the distribution of video
programming other than through cable systems. Because OVS operators
provide subscription services, OVS falls within the SBA small business
size standard covering cable services, which is ``Wired
Telecommunications Carriers.'' The SBA has developed a small business
size standard for this category, which is: All such firms having 1,500
or fewer employees. To gauge small business prevalence for the OVS
service, the Commission relies on data currently available from the
U.S. Census for the year 2012. According to that source, there were
3,117 firms that in 2012 were Wired Telecommunications Carriers. Of
these, 3,059 operated with less than 1,000 employees. Based on this
data, the majority of these firms can be considered small. In addition,
we note that the Commission has certified some OVS operators, with some
now providing service. Broadband service providers (``BSPs'') are
currently the only significant holders of OVS certifications or local
OVS franchises. The Commission does not have financial or employment
information regarding the entities authorized to provide OVS, some of
which may not yet be operational. Thus, at least some of the OVS
operators may qualify as small entities. The Commission further notes
that it has certified approximately 45 OVS operators to serve 116
areas, and some of these are currently providing service. Affiliates of
Residential Communications Network, Inc. (RCN) received approval to
operate OVS systems in New York City, Boston,
[[Page 45667]]
Washington, DC, and other areas. RCN has sufficient revenues to assure
that they do not qualify as a small business entity. Little financial
information is available for the other entities that are authorized to
provide OVS and are not yet operational. Given that some entities
authorized to provide OVS service have not yet begun to generate
revenues, the Commission concludes that up to 44 OVS operators (those
remaining) might qualify as small businesses that may be affected by
the rules and policies adopted herein.
38. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are now included in the SBA's broad economic census
category, ``Wired Telecommunications Carriers,'' which was developed
for small wireline firms. Under this category, the SBA deems a wireline
business to be small if it has 1,500 or fewer employees. Census data
for 2012 indicate that in that year there were 3,117 firms operating
businesses as wired telecommunications carriers. Of that 3,117, 3,059
operated with 999 or fewer employees. Based on this data, we estimate
that a majority of operators of SMATV/PCO companies were small under
the applicable SBA size standard.
39. Direct Broadcast Satellite (DBS) Service. DBS Service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic dish antenna at
the subscriber's location. DBS is now included in SBA's economic census
category ``Wired Telecommunications Carriers.'' The Wired
Telecommunications Carriers industry comprises establishments primarily
engaged in operating and/or providing access to transmission facilities
and infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or combination of technologies. Establishments in this industry use the
wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution; and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry. The SBA determines that a wireline business is small if
it has fewer than 1500 employees. Census data for 2012 indicate that
3,117 wireline companies were operational during that year. Of that
number, 3,083 operated with fewer than 1,000 employees. Based on that
data, we conclude that the majority of wireline firms are small under
the applicable standard. However, currently only two entities provide
DBS service, which requires a great deal of capital for operation:
DIRECTV (owned by AT&T) and DISH Network. DIRECTV and DISH Network each
report annual revenues that are in excess of the threshold for a small
business. Accordingly, we must conclude that internally developed FCC
data are persuasive that in general DBS service is provided only by
large firms.
40. Television Broadcasting. This Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $38.5 million or less in annual receipts. The 2012
Economic Census reports that 751 firms in this category operated in
that year. Of this number, 656 had annual receipts of $25 million or
less, 25 had annual receipts between $25 million and $49,999,999, and
70 had annual receipts of $50 million or more. Based on this data we
therefore estimate that the majority of commercial television
broadcasters are small entities under the applicable SBA size standard.
41. The Commission has estimated the number of licensed commercial
television stations to be 1,384. Of this total, 1,264 stations had
revenues of $38.5 million or less, according to Commission staff review
of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on
February 24, 2017, and therefore these licensees qualify as small
entities under the SBA definition. In addition, the Commission has
estimated the number of licensed noncommercial educational (NCE)
television stations to be 394. The Commission, however, does not
compile and otherwise does not have access to information on the
revenue of NCE stations that would permit it to determine how many such
stations would qualify as small entities.
42. We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
another element of the definition of ``small business'' requires that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific television broadcast station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which rules may apply does not exclude any television station from the
definition of a small business on this basis and is therefore possibly
over-inclusive.
43. There are also 417 Class A stations. Given the nature of these
services, including their limited ability to cover the same size
geographic areas as full power stations thus restricting their ability
to generate similar levels of revenue, we will presume that these
licensees qualify as small entities under the SBA definition. In
addition, there are 1,968 LPTV stations and 3,776 TV translator
stations. Given the nature of these services as secondary and in some
cases purely a ``fill-in'' service, we will presume that all of these
entities qualify as small entities under the above SBA small business
size standard.
44. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements. The Commission anticipates that the rule
changes adopted in this Report and Order will lead to an overall
immediate, long-term reduction in reporting, recordkeeping, and other
compliance requirements for all broadcasters and MVPDs, including small
entities. Specifically, commercial broadcasters will no longer need to
produce and mail several letters to MVPDs, many of which are
duplicative to ensure that they are received by the MVPD. Likewise,
noncommercial broadcasters will be relieved of the burden of mailing
their election notices to DBS providers every three years and will only
have to upload a one-time notice of their carriage request to their
public files. Although MVPDs now have the obligation of
[[Page 45668]]
maintaining an up-to-date phone number and email on Commission-hosted
databases, this is a de minimis burden. Alternatively, this burden is
outweighed by the reduction of letters and duplicative notices that
MVPDs previously had to review.
45. Steps Taken to Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered. The RFA requires an
agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.''
46. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rule. None.
Ordering Clauses
47. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 4(j), 325, 338, 614, 615, and 653 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
325, 338, 534, 535, and 573, this Report and Order is adopted and will
become effective 60 days after publication in the Federal Register.
48. It is further ordered that parts 25, 73, and 76 of the
Commission's rules are amended as set forth in the Final Rules of this
Report and Order. These rules contain new or modified information
collection requirements that require approval by the Office of
Management and Budget under the Paperwork Reduction Act and compliance
with these amended rules will be required after the Commission
publishes a document in the Federal Register announcing such approval
and the relevant compliance date.
49. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Initial and Final
Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of
the Small Business Administration.
50. It is further ordered that the Commission shall send a copy of
this Report and Order in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects
47 CFR Part 25
Communications common carriers, Communications equipment, Equal
employment opportunity, Radio, Reporting and recordkeeping
requirements, Satellites, Securities.
47 CFR Part 73
Civil defense, Communications equipment, Defense communications,
Education, Equal employment opportunity, Foreign relations, Mexico,
Political candidates, Radio, Reporting and recordkeeping requirements,
Television.
47 CFR Part 76
Administrative practice and procedure, Cable television, Equal
employment opportunity, Political candidates, Reporting and
recordkeeping requirements.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 25, 73, and 76 as
follows:
PART 25--SATELLITE COMMUNICATIONS
0
1. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319,
332, 605, and 721, unless otherwise noted.
0
2. Amend Sec. 25.701 by adding paragraph (f)(6)(i)(D) to read as
follows:
Sec. 25.701 Other DBS Public interest obligations.
* * * * *
(f) * * *
(6) * * *
(i) * * *
(D) Each satellite carrier shall, no later than July 31, 2020,
provide an up-to-date email address for carriage election notice
submissions and an up-to-date phone number for carriage-related
questions. Each satellite carrier is responsible for the continuing
accuracy and completeness of the information furnished. It must respond
to questions from broadcasters as soon as is reasonably possible.
* * * * *
PART 73--RADIO BROADCAST SERVICES
0
3. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
4. Amend Sec. 73.3526 by revising paragraph (e)(15) to read as
follows:
Sec. 73.3526 Local public inspection file of commercial stations.
* * * * *
(e) * * *
(15) Must-carry or retransmission consent election. Statements of a
commercial television or Class A television station's election with
respect to either must-carry or re-transmission consent, as defined in
Sec. Sec. 76.64 and 76.1608 of this chapter. These records shall be
retained for the duration of the three year election period to which
the statement applies. Commercial television stations shall, no later
than July 31, 2020, provide an up-to-date email address and phone
number for carriage-related questions and respond as soon as is
reasonably possible to messages or calls from multichannel video
programming distributors (MVPDs). Each commercial television station is
responsible for the continuing accuracy and completeness of the
information furnished.
* * * * *
0
5. Amend Sec. 73.3527 by revising paragraph (e)(12) to read as
follows:
Sec. 73.3527 Local public inspection file of noncommercial
educational stations.
* * * * *
(e) * * *
(12) Must-carry requests. Noncommercial television stations shall,
no later than July 31, 2020, provide an up-to-date email address and
phone number for carriage-related questions and respond as soon as is
reasonably possible to messages or calls from multichannel video
programming distributors (MVPDs). Each noncommercial television station
is responsible for the continuing accuracy and completeness of the
information furnished. Any such station requesting mandatory carriage
pursuant to part 76 of this chapter shall place a copy of such request
in its public file and shall retain both the request and relevant
correspondence for the duration of any period to which the request
applies.
* * * * *
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
6. The authority citation for part 76 continues to read as follows:
[[Page 45669]]
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
7. Amend Sec. 76.64 by revising paragraph (h) to read as follows:
Sec. 76.64 Retransmission consent.
* * * * *
(h)(1) On or before each must-carry/retransmission consent election
deadline, each television broadcast station shall place a copy of its
election statement, and copies of any election change notices applying
to the upcoming carriage cycle, in the station's public file.
(2) Each cable operator shall, no later than July 31, 2020, provide
an up-to-date email address for carriage election notice submissions
with respect to its systems and an up-to-date phone number for
carriage-related questions. Each cable operator is responsible for the
continuing accuracy and completeness of the information furnished. It
must respond to questions from broadcasters as soon as is reasonably
possible.
(3) A station shall send a notice of its election to a cable
operator only if changing its election with respect to one or more of
that operator's systems. Such notice shall be sent to the email address
provided by the cable system and carbon copied to
[email protected]. A notice must include, with respect to each
station referenced in the notice, the:
(i) Call sign;
(ii) Community of license;
(iii) DMA where the station is located;
(iv) Specific change being made in election status;
(v) Email address for carriage-related questions;
(vi) Phone number for carriage-related questions;
(vii) Name of the appropriate station contact person; and,
(viii) If the station changes its election for some systems of the
cable operator but not all, the specific cable systems for which a
carriage election applies.
(4) Cable operators must respond via email as soon as is reasonably
possible, acknowledging receipt of a television station's election
notice.
* * * * *
0
8. Amend Sec. 76.66 by removing and reserving paragraph (c)(5) and
revising paragraphs (d)(1) and (d)(3)(ii) to read as follows:
Sec. 76.66 Satellite broadcast signal carriage.
* * * * *
(d) * * *
(1) Carriage requests. (i) An election for mandatory carriage made
by a television broadcast station shall be treated as a request for
carriage. For purposes of this paragraph (d), the term election request
includes an election of retransmission consent or mandatory carriage.
(ii) Each satellite carrier shall, no later than July 31, 2020,
provide an up-to-date email address for carriage election notice
submissions and an up-to-date phone number for carriage-related
questions. Each satellite carrier is responsible for the continuing
accuracy and completeness of the information furnished. It must respond
to questions from broadcasters as soon as is reasonably possible.
(iii) A station shall send a notice of its election to a satellite
carrier only if changing its election with respect to one or more of
the markets served by that carrier. Such notice shall be sent to the
email address provided by the satellite carrier and carbon copied to
[email protected].
(iv) A television station's written notification shall include with
respect to each station referenced in the notice, the:
(A) Call sign;
(B) Community of license;
(C) DMA where the station is located;
(D) Specific change being made in election status;
(E) Email address for carriage-related questions;
(F) Phone number for carriage-related questions; and
(G) Name of the appropriate station contact person.
(v) A satellite carrier must respond via email as soon as is
reasonably possible, acknowledging receipt of a television station's
election notice.
(vi) Within 30 days of receiving a television station's carriage
request, a satellite carrier shall notify in writing:
(A) Those local television stations it will not carry, along with
the reasons for such a decision; and
(B) Those local television stations it intends to carry.
(vii) A satellite carrier is not required to carry a television
station, for the duration of the election cycle, if the station fails
to assert its carriage rights by the deadlines established in this
section.
* * * * *
(3) * * *
(ii) A new television station shall make its election request, in
writing, sent to the satellite carrier's email address provided by the
satellite carrier and carbon copied to [email protected], between
60 days prior to commencing broadcasting and 30 days after commencing
broadcasting. This written notification shall include the information
required by paragraph (d)(1)(iv) of this section.
* * * * *
[FR Doc. 2019-18527 Filed 8-29-19; 8:45 am]
BILLING CODE 6712-01-P