[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Proposed Rules]
[Pages 5184-5199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01505]
[[Page 5184]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 23-427; FCC 23-115; FR ID 197786]
Reporting Requirements for Commercial Television Broadcast
Station Blackouts
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
proposes a reporting framework for TV station blackouts occurring on
video service platforms offered by cable operators, satellite TV
providers, and other multichannel video programming distributors
(MVPDs). The proposed rule would require notification to the Commission
when broadcast programming is disrupted for over 24 hours as a result
of an inability to obtain a broadcast station's consent to retransmit
its signal. The proposed reporting framework would require MVPDs to
publicly report to the Commission the beginning and end of any
qualifying blackout of a commercial broadcast television station, or
stations, and disclose either publicly or confidentially the number of
subscribers affected by the blackout. Timely notification of these
blackouts via a Commission-hosted reporting portal would ensure that
the Commission and the public receive prompt and accurate information
about critical MVPD service disruptions involving broadcast stations
when they occur.
DATES: Comments are due on or before February 26, 2024. Reply comments
are due on or before March 26, 2024. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before March 26, 2024.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated in this document.
Comments and reply comments may be filed using the Commission's
Electronic Comment Filing System (ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). You may submit
comments, identified by MB Docket No. 23-427, by any of the following
methods:
Electronic Filers: Comments may be filed electronically by
accessing ECFS at: http://www.fcc.gov/ecfs/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. Paper filings can be sent
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission via email to [email protected] and to Cathy
Williams, FCC, via email to Cathy [email protected].
FOR FURTHER INFORMATION CONTACT: Brooke Olaussen of the Media Bureau,
Policy Division at [email protected], (202) 418-1060. For
additional information concerning the Paperwork Reduction Act proposed
information collection requirements contained in this document, send an
email to [email protected] or contact Cathy Williams at
[email protected]">Cathy.[email protected], (202) 418-2991.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 23-115, adopted on December 19, 2023
and released on December 21, 2023. The full text of this document is
available electronically via the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-23-115A1.pdf. To request materials
in accessible formats for people with disabilities (e.g., Braille,
large print, electronic files, audio format), send an email to
[email protected] or call the Commission's Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Comments should address: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and (e)
ways to further reduce the information collection burden on small
business concerns with fewer than 25 employees.
Synopsis
I. Introduction
1. This Notice of Proposed Rulemaking (NPRM) proposes to amend the
Commission's rules to require notification to the Commission when a
blackout of a broadcast television station, or stations, occurs on a
video programming service offered by a multichannel video programming
distributor (MVPD) for 24 hours or more due to a breakdown in
retransmission consent negotiations between broadcasters and MVPDs. The
proposed reporting framework would require public notice to the
Commission of the beginning and resolution of any blackout and
submission of information about the number of subscribers affected
(which we propose may be designated as confidential). By requiring
timely notification of broadcast station blackouts in a centralized,
Commission-hosted database, these proposed reporting requirements would
ensure that the Commission and public receive prompt and accurate
information about critical MVPD service disruptions involving broadcast
stations when they occur.
II. Background
2. The Communications Act of 1934, as amended (the Act), requires
that cable operators, satellite TV providers, and other MVPDs obtain a
broadcast TV station's consent to lawfully retransmit the signal of a
broadcast station to subscribers.\1\ Commercial stations may either
give consent by demanding carriage (must carry) or seek to negotiate
for compensation in exchange for carriage (retransmission consent), and
may switch between these choices every three years.\2\ If a former
``must carry''
[[Page 5185]]
station elects retransmission consent but is unable to reach agreement
for carriage, or the parties to an existing retransmission consent
agreement do not extend, renew, or revise that agreement prior to its
expiration, the MVPD loses the right to carry the signal. The result is
a ``blackout'' of that existing broadcast programming on the MVPD
platform.\3\ When these broadcast station blackouts occur, the MVPD's
subscribers typically lose access through their MVPD service to the
station's entire signal, including both the national and local
programming provided by the broadcaster.\4\ Thus, if the blacked-out
broadcast station was owned by or affiliated with a national broadcast
network--such as ABC, CBS, FOX, NBC, The CW, Telemundo, or Univision--
subscribers would be unable to access through their MVPD service that
broadcaster's network programming as well as the local news, traffic,
weather, and emergency information programming provided by their local
station.
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\1\ 47 U.S.C. 325.
\2\ Id. Section 325(b)(3)(B).
\3\ Federal Communications Commission, Retransmission Consent,
https://www.fcc.gov/media/policy/retransmission-consent (last
updated Sept. 27, 2021).
\4\ Although some MVPD subscribers may be able to view the
blacked out local broadcast signals using over-the-air antennas or
other equipment, not all live in locations that can receive over-
the-air signals, and further not all would have the equipment
necessary to do so. FCC, DTV Reception Maps, https://www.fcc.gov/media/engineering/dtvmaps (last visited Sept. 28, 2023) (showing
over-the-air signal availability and noting that ``[a]ctual signal
strength may vary based on a variety of factors, including, but not
limited to, building construction, neighboring buildings and trees,
weather, and specific reception hardware,'' and that ``signal
strength may be significantly lower in extremely hilly areas'').
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3. Over the past decade, data indicates that the number of
blackouts resulting from unsuccessful retransmission consent
negotiations has increased dramatically. For the first 20 years of the
retransmission consent regime, S&P Capital IQ reports that there were a
total of 81 failed retransmission consent negotiations that resulted in
blackouts of 447 broadcast TV stations in 365 markets, with two thirds
of the impasses occurring just in the last three years of that period,
from 2011 to 2014.\5\ This increase in the number of blackouts has
persisted for over a decade, and the impact of each individual blackout
has increased as more stations are taken off the air for longer periods
of time. In 2019 alone, just 18 retransmission consent impasses
resulted in 272 station blackouts that spanned 205 markets and affected
26.5 million subscribers.\6\ According to S&P Capital IQ, these
blackouts ``on average remained in effect for 171 days--higher than the
98-day average in 2018, 33 days in 2017 and 52 days in 2016.'' \7\ Some
MVPD subscribers in over half of television markets continue to
experience blackouts every year.\8\
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\5\ Atif Zubair, History of Retrans Deals and Signal Blackouts,
1993-2014 YTD, Market Intelligence, S&P Capital IQ Pro (Feb. 25,
2014) (reporting data from ``publicly announced retrans agreements
between broadcasters and multichannel operators'' from 1993 through
Feb. 25, 2014); id. (``Blackouts in our database show that signal
disruptions have become more frequent during the past three years
since 2011, contributing 54 of the total 81 blackouts in our
database.'').
\6\ Atif Zubair, Retrans Roundup 2019, Market Intelligence, S&P
Capital IQ Pro (Jan. 21, 2020) (reporting ``2019 publicized
broadcast signal disruptions'' data as of Dec. 31, 2019 in Excel
format accessible via link to ``retrans agreement and signal
disruptions databases'' embedded in article).
\7\ Id.
\8\ Peter Leitzinger, Retrans Roundup 2021, Market Intelligence,
S&P Capital IQ Pro (Jan. 28, 2022) (reporting 2020 and 2021
``publicized broadcast signal disruptions'' data in Excel format
accessible via link to ``retrans agreement and signal disruptions
databases'' embedded in article); Peter Leitzinger, Retrans Roundup
2022, Market Intelligence, S&P Capital IQ Pro (Feb. 7, 2023)
(reporting ``2022 publicized broadcast signal disruptions'' data as
of Jan. 15, 2023 in Excel format accessible via link to ``retrans
agreement and signal disruptions databases'' embedded in article).
By MVPDs' own count, between 2010 and 2019 there have been more than
1,250 broadcast station blackouts since 2010. Eun-A Park, Rob
Frieden, Krishna Jayakar, Blackouts in Retransmission Consent
Negotiations: Empirical Analysis of Factors Predicting their
Frequency and Duration, TPRC48: The 48th Research Conference on
Communication, Information, and internet Policy (December 17, 2020)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749577.
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4. Members of Congress have expressed concern about the impact of
broadcast station blackouts. After a March 2022 FCC oversight hearing,
Rep. Clarke of New York noted that ``[o]ver the last two years, there
were an estimated 460 blackouts associated with retransmission consent
impasses, resulting in consumers losing access to their favorite shows.
Unfortunately, these blackouts may be used as leverage during
retransmission negotiations by broadcasters at the expense of consumer
access to television programming.'' \9\ In addition, during high-
profile retransmission consent disputes, the Commission often receives
letters from members of Congress urging the Commission to take action
to prevent or end a broadcast station blackout.\10\
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\9\ Subcommittee on Communications and Technology Hearing on
Connecting America: Oversight of the FCC, 117th Cong., at 7 (Mar.
31, 2022), https://docs.house.gov/meetings/IF/IF16/20220331/114545/HHRG-117-IF16-Wstate-RosenworcelJ-20220331-SD001.pdf (Subcommittee
question posed in statement of the Honorable Jessica Rosenworcel,
Chairwoman, FCC).
\10\ See, e.g., Letter from Rep. David Cicilline et al., U.S.
House of Representatives, to Jessica Rosenworcel, Chairwoman, FCC
(Oct. 25, 2022), https://docs.fcc.gov/public/attachments/DOC-389144A2.pdf (``While we take no position as to the merits of this
dispute, we believe that Rhode Islanders should not be caught in the
middle and as a consequence be left without access to local news and
programming. We encourage the Federal Communications Commission to
do everything in its power to help bring the parties together so
that negotiations can continue in good faith.'').
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5. Added as part of the Cable Television Consumer Protection and
Competition Act of 1992 (1992 Cable Act), section 325 of the Act
prohibits broadcast television stations and MVPDs from ``failing to
negotiate [retransmission consent] in good faith,'' \11\ and the
Commission's rules provide a framework for determining whether those
negotiations are in fact conducted in good faith.\12\ If a broadcast
station or MVPD believes the other party has not acted in good faith,
it may file a good faith complaint with the Commission either before or
after a carriage agreement is signed.\13\
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\11\ 47 U.S.C. 325(b)(3)(C). In 1999, Congress enacted the
Satellite Home Viewer Improvement Act (SHVIA), which required
television stations to negotiate retransmission consent with MVPDs
in good faith and included the ``competitive marketplace
considerations'' provision. Public Law 106-113, 113 Stat. 1501
(1999). Although SHVIA imposed the good faith negotiation obligation
only on broadcasters, in 2004 Congress made the good faith
negotiation obligation reciprocal between broadcasters and MVPDs.
Public Law 108-447, 118 Stat. 2809 (2004) (referred to as the
Satellite Home Viewer Extension and Reauthorization Act (SHVERA)).
\12\ 47 CFR 76.65(b).
\13\ Id. Sec. Sec. 76.65(c), 76.65(e).
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6. Congress has not, however, authorized the Commission to require
that parties resolve retransmission consent disputes with carriage
agreements, or to force carriage in the absence of an agreement.\14\
While section 325 of the Act grants the Commission authority to
establish regulations governing retransmission consent negotiations,
the Commission has repeatedly determined that this authority does not
extend to requiring carriage of a broadcast station during a
retransmission dispute.\15\ Given this
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limitation, the Commission's good faith rules focus on ``develop[ing]
and enforce[ing] a process'' conducive to negotiation rather than
``sit[ting] in judgment of the terms of every retransmission consent
agreement[.]'' \16\ Nevertheless, broadcast station blackouts have
remained a cause for concern. In a 2011 action proposing amendments to
the Commission's good faith rules, the Commission observed that ``[i]n
recent times, the actual and threatened service disruptions resulting
from increasingly contentious retransmission consent disputes present a
growing inconvenience and source of confusion for consumers.'' \17\
Since the Commission made that observation, the number of
retransmission consent impasses has continued to increase, causing
service disruptions for consumers.\18\
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\14\ See, e.g., Letter from Jessica Rosenworcel, Chairwoman,
FCC, to Rep. David Cicilline et al., U.S. House of Representatives
(Nov. 1, 2022), https://docs.fcc.gov/public/attachments/DOC-389144A1.pdf (responding to a letter from members of Congress urging
FCC action after failed carriage negotiations between Nexstar and
Verizon resulted in a blackout and emphasizing that ``it is
important to understand that the Commission's authority in this area
is limited, as under Section 325 we cannot order or otherwise
require carriage of a broadcast station during a dispute.'').
\15\ Amendment of the Commission's Rules Related to
Retransmission Consent, MB Docket No. 10-71, Notice of Proposed
Rulemaking, 26 FCC Rcd 2718, 2720, para. 3 (2011) (2011 Retrans
Consent NPRM) (``The Commission does not have the power to force
broadcasters to consent to MVPD carriage of their signals nor can
the Commission order binding arbitration.''); id. at 2728, para. 18
(``[R]egarding interim carriage, examination of the Act and its
legislative history has convinced us that the Commission lacks
authority to order carriage in the absence of a broadcaster's
consent due to a retransmission consent dispute. . . . We thus
interpret section 325(b) to prevent the Commission from ordering
carriage over the objection of the broadcaster, even upon a finding
of a violation of the good faith negotiation requirement.'');
Implementation of the Satellite Home Viewer Improvement Act of 1999,
Retransmission Consent Issues: Good Faith Negotiation and
Exclusivity, CS Docket No. 99-363, First Report and Order, 15 FCC
Rcd 5445, 5471, para. 60 (2000) (Good Faith Order) (``[W]e see no
latitude for the Commission to adopt regulations permitting
retransmission during good faith negotiation or while a good faith
or exclusivity complaint is pending before the Commission where the
broadcaster has not consented to such retransmission.'').
\16\ Good Faith Order, 15 FCC Rcd at 5454-55, paras. 23-24.
\17\ 2011 Retrans Consent NPRM, 26 FCC Rcd at 2729, para. 20.
\18\ Supra para. 3.
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7. In addition to establishing the retransmission consent regime,
the 1992 Cable Act also bolstered the Commission's customer service
authority over cable and satellite TV providers. Pursuant to sections
632(b) and 335(a), the Commission may adopt customer service
requirements for cable operators and public interest regulations for
DBS providers.\19\ Section 632(b) of the Act directs the Commission to
``establish standards by which cable operators may fulfill their
customer service requirements'' and specifies a set of minimum customer
service areas that the adopted standards must cover.\20\ In 1993, the
Commission implemented this mandate in Sec. 76.309 of its rules,
adopting a single set of customer service requirements for cable
operators in the areas Congress specified.\21\ While at that time the
Commission declined to adopt additional standards in areas not
specified in the statute, it reserved the right to revise and
supplement the standards.\22\
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\19\ 47 U.S.C. 552(b), 335(a).
\20\ 47 U.S.C. 552(b).
\21\ 47 CFR 76.309(c)(1) (addressing cable system office hours
and telephone availability), 76.309(c)(2) (addressing installations,
outages, and service calls), 76.309(c)(3) (addressing communications
between cable operators and cable subscribers); Implementation of
Section 8 of the Cable Television Consumer Protection and
Competition Act of 1992 Consumer Protection and Customer Service, MM
Docket No. 92-263, Report and Order, 8 FCC Rcd 2892, 2901, para. 34
(1993) (Cable Operator Customer Service R&O) (``[W]e are adopting a
single set of federal customer service standards which deal with the
specific areas set out in section 632(b).'').
\22\ Cable Operator Customer Service R&O, 8 FCC Rcd at 2907,
para. 69.
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8. Similarly, section 335(a) authorizes the Commission to impose
``public interest or other requirements for providing video
programming'' on DBS providers.\23\ The statute directs the Commission
to impose certain minimum obligations on DBS providers, including
complying with the political programming requirements of sections
312(a)(7) and 315 of the Act.\24\ It also directs the Commission to
examine opportunities that may serve the principle of localism in the
Act.\25\ As with section 632, when implementing section 335 of the Act,
the Commission declined to impose any additional public interest
obligations on DBS providers beyond the minimum protections specified
in the statute.\26\ The Commission explained that DBS service ``is
still a relatively young industry and we decline to impose any
additional obligations on the DBS industry before we see how DBS serves
the public.'' \27\
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\23\ 47 U.S.C. 335(a).
\24\ Id.
\25\ Id.
\26\ Implementation of Section 25 of the Cable Television
Consumer Protection and Competition Act of 1992, MM Docket No. 93-
25, Report and Order, 13 FCC Rcd 23254, 23279-80, para. 64 (1998).
\27\ Id. at 23280, para. 64.
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9. Currently, neither broadcast stations nor MVPDs are under any
obligation to report to the Commission MVPD service disruptions
involving broadcast programming. Neither the Commission nor the public
has a systematic method for learning of significant MVPD service
disruptions involving broadcast programming.\28\ When a party to a
retransmission consent negotiation files a complaint with the
Commission alleging a violation of the Commission's good faith
negotiation rules, the complaint process requires the parties to
provide the Commission with relevant details about the blackout and
each party's assertions as to why the negotiation reached an impasse.
Since the adoption of the good faith negotiation rules in 2000, there
have been relatively few complaints alleging violations of the
Commission's good faith negotiation rules despite an escalation in the
number of stalled or failed retransmission consent negotiations
resulting in blackouts.\29\ The Commission usually learns of broadcast
station blackouts on MVPD platforms through reports of disputes in the
media or informal communication with staff. This ad hoc process does
not provide the Commission, Congress, or the public \30\ with timely or
specific information regarding service disruptions.\31\ Accordingly, we
initiate this rulemaking.
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\28\ While, as required by our rules, MVPDs notify subscribers
when specific broadcast station channels are blacked out, we are not
aware of any systematic method used by MVPDs or broadcasters to
notify the general public of broadcast station blackouts. Infra note
31.
\29\ Id. See 2011 Retrans Consent NPRM, 26 FCC Rcd at 2724,
para. 12 (noting at the time that ``[t]here have been very few
complaints filed alleging violations of the Commission's good faith
rules''); DirecTV, LLC; AT&T Services, Inc., Complainants, v.
Deerfield Media, Inc. et al., MB Docket No. 19-168, Memorandum
Opinion and Order and Notice of Apparent Liability for Forfeiture,
35 FCC Rcd 10695, 10699, para. 8 (2020) (noting that the Deerfield
good faith complaint ``is only the second good faith complaint that
was not withdrawn, dismissed, or denied since the rules were
established and the first one that the Commission has had the
opportunity to consider'').
\30\ Section 76.1603 provides that cable operators must notify
their subscribers ``as soon as possible'' when service changes occur
due to failed retransmission consent or program carriage
negotiations. 47 CFR 76.1603(b).
\31\ While S&P Capital IQ Pro's retransmission database is a
helpful resource, it provides limited visibility into the
retransmission consent marketplace on an ongoing basis. The database
is typically published only in yearly intervals, excludes
independent and class A TV stations, and only lists publicized
blackouts. Therefore, we do not believe data collected by S&P is a
suitable substitute for complete or timely information on service
disruptions. Supra note 8.
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III. Discussion
10. In the discussion below, we propose to require that MVPDs
report retransmission consent blackouts within 48 hours and notify the
Commission within two business days of its resolution. We discuss the
specific aspects of the proposed reporting obligations and our proposed
rule, and we address the Commission's authority to adopt the proposed
requirements. We request comment on all aspects of the proposal,
including the proposed rule as set forth below in Appendix A.
A. Overview and Policy Considerations
11. Given the data discussed above, we are concerned about the
increasing number and duration of broadcast station blackouts on MVPD
platforms across the country and the Commission's lack of ready access
to basic information about such service disruptions. Given that many
broadcast
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station blackouts on MVPD platforms occur without either party filing a
complaint with the Commission, we cannot rely on good faith complaints
to inform us when a deal impasse has resulted in a blackout, nor can we
consider such complaints an accurate sampling of significant service
disruptions. In addition, members of Congress regularly ask the
Commission for information on broadcast station blackouts when they
occur. Often the Commission does not have access to this important
information through a consistent, reliable, and systematic means. To
close this information gap, we tentatively conclude that obtaining
blackout information from MVPDs would be the most effective method for
the Commission to gain important and timely information about broadcast
station blackouts occurring across the country and better fulfill our
statutory obligation involving the retransmission consent negotiation
process.\32\
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\32\ 47 U.S.C. 325(b)(3)(A).
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12. Access to a centralized source of information about where and
when broadcast station blackouts occur would be beneficial not only to
the Commission, but also to consumers. To make informed decisions
regarding video service, consumers must have access to easily
available, accurate, and timely information about such services. While
cable subscribers receive notice from their cable operator when an
individual broadcast station blackout affects their own channel lineup
and video service,\33\ on a broader scale, consumers generally do not
have access to a consolidated source of information about broadcast
station blackouts occurring in aggregate. Such information would
increase transparency about the frequency and duration of blackouts and
help consumers understand the extent to which blackouts might be a
problem not just in their own locality but in other areas of the
country as well. For example, having aggregate data about blackouts may
be a useful metric for consumers looking for a new MVPD service
provider. For consumers that place a premium on continuity of service,
having access to this data may enable them to investigate which MVPD
service providers--as well as broadcast affiliates--have a stronger
history of blackouts.
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\33\ 47 CFR 76.1603(b).
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13. Entities Responsible for Reporting. We seek comment on
requiring affected MVPDs that stop carrying broadcast signals pursuant
to expired retransmission consent agreements, including cable operators
and DBS providers (Reporting Entities),\34\ to comply with the proposed
blackout reporting requirements, as more fully discussed below. While
both MVPDs and broadcasters are subject to the requirements of section
325 of the Act and the Commission's good faith rules, it is the
responsibility of the MVPD, rather than the broadcaster, to stop
retransmitting the broadcast station's signal, and thereby remove the
programming that is subject to blackout from their MVPD platforms upon
the expiration of a carriage agreement.\35\ Thus, as a practical
matter, it is the MVPD who has the most ready access to and first-hand
knowledge of when and where a broadcast station blackout occurs and
which subscribers are affected, thereby ensuring that the Commission
would receive the most complete, accurate, and up-to-date information.
Further, as it is the MVPD subscribers who are directly impacted by
these blackouts, we believe it makes the most sense for MVPDs to be
responsible for reporting blackout information through the reporting
portal. As a result, we tentatively conclude it would be least
burdensome on MVPDs to report this information promptly and accurately
to the Commission.
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\34\ See 47 CFR 76.64(d) (``A multichannel video program
distributor is an entity such as, but not limited to, a cable
operator, a BRS/EBS provider, a direct broadcast satellite service,
a television receive-only satellite program distributor, or a
satellite master antenna television system operator, that makes
available for purchase, by subscribers or customers, multiple
channels of video programming.''); infra Appendix A--Proposed Rules,
Sec. 76.68(c)(1).
\35\ 47 U.S.C. 325(a).
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14. We therefore propose requiring MVPDs to notify the Commission
of any blackouts of a broadcast station or stations that occur on their
systems due to a loss of retransmission consent, and we seek comment on
this proposal. Under this proposal, MVPDs would report incidents during
which broadcast programming is disrupted for over 24 hours as a result
of an inability to obtain a broadcast station's consent to retransmit
its signal. We seek comment on these understandings and this proposal.
For example, are there circumstances in which the broadcaster, rather
than the MVPD, removes the broadcast station(s) from the MVPD's
platform?
15. Alternatively, we seek comment on whether we should impose the
reporting obligation solely on broadcasters or impose a joint blackout
reporting requirement on both MVPDs and broadcasters. Would adopting a
broadcaster-only reporting requirement or imposing a joint reporting
obligation on both MVPDs and broadcasters provide additional benefits
to the public? Do broadcasters have access to different, additional, or
more timely information about blackouts that would be beneficial for
the public to see in real-time? If reporting obligations were the same
for both parties, would the Commission need to address or attempt to
resolve conflicting reports? Instead of requiring broadcasters to
report blackouts, should we rely instead on broadcasters voluntarily
providing additional information to supplement blackout notices
submitted by MVPDs they believe contain inaccurate or incomplete
information?
16. Reporting Framework. As discussed in more detail below, we
propose requiring MVPDs to notify the Commission of both the start and
conclusion of a broadcast station blackout. The initial notification
would provide basic blackout information, both public and confidential,
to the Commission within 48 hours of the start of a reportable
broadcast station blackout (Initial Blackout Notification). The final
notification, submitted no later than two business days after the end
of the reportable broadcast station blackout, would publicly identify
the date retransmission resumed (Final Blackout Notification). We
propose that this information be collected through an online reporting
portal designed, hosted, and administered by the Commission.\36\ Under
our proposal, we will delegate to the Media Bureau the authority to
issue a public notice giving Reporting Entities notice of the specific
reporting procedures to submit blackout information via the reporting
portal and identifying the date on which the reporting requirement
would become effective. Public blackout information collected through
the portal would then be available on the Commission's website. We seek
comment generally on this proposal and on the specifics below. In
addition, to the extent we adopt a reporting requirement for
broadcasters, we seek comment on whether this same reporting framework
should be applied to broadcasters or whether a different approach is
appropriate for broadcasters.
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\36\ Supra paras. 23, 27.
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17. To streamline reporting, we propose creating an online
reporting portal, modeled after the Commission's Network Outage
Reporting System (NORS).\37\ The proposed data to be reported would be
filed with the
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Commission via this web-based system. As with NORS, this system would
use an electronic template to promote the ease of reporting and
encryption technology to ensure the security of the information fields.
The proposed blackout information to be reported would be available to
the public, except for more sensitive information regarding
subscribers, which Reporting Entities may designate as confidential. We
have aimed to tailor the proposed requirements so that they impose a
minimal burden on Reporting Entities while still ensuring that the
Commission and the public have access to critical information on
service disruptions.\38\ We seek comment on this approach.
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\37\ Federal Communications Commission, Network Outage Reporting
System (NORS), https://www.fcc.gov/network-outage-reporting-system-nors (last updated Mar. 25, 2022).
\38\ Infra para. 28.
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18. We tentatively conclude that the timely provision and
compilation of blackout information would allow the Commission and the
public to systematically track and analyze information on broadcast
station blackouts on MVPD platforms across the country. The
availability of this information would also help the Commission
determine the frequency and duration of blackouts nationwide and
identify any statistically meaningful trends across blackouts. Without
such reporting, the Commission will continue to have limited visibility
into broadcast station blackouts.\39\ In the long run, this impairs the
Commission's ability to oversee the retransmission consent negotiation
process as intended by Congress. The prompt provision of blackout
information will allow the Commission to more effectively discharge its
statutory responsibilities by better monitoring breakdowns in
retransmission consent negotiations.\40\ We seek comment on this
analysis.
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\39\ Supra note 31.
\40\ We note that these reporting requirements would be separate
from our good faith complaint procedure and are not intended to
replace or inform the good faith complaint process.
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B. Proposed Reporting Requirements
19. We seek comment on the specific proposals that follow for
implementing the proposed reporting requirements. In particular, we
seek comment on whether reporting obligations should be mandatory or
voluntary; the definition of a broadcast station blackout; the
threshold for reporting a broadcast station blackout; how to submit the
proposed filings; what information should be disclosed about broadcast
station blackouts; what the costs and benefits of our proposed rule
might be; and whether better alternatives exist, including a more
streamlined rule for small entities.
20. Mandatory Reporting. We propose that blackout reporting be a
mandatory obligation. Mandatory reporting would permit the Commission
and the public to obtain a comprehensive, timely view of broadcast
station blackouts occurring on MVPD platforms nationwide. This
information would be beneficial to the Commission's efforts to keep
abreast of the impact these blackouts have on viewers, local
broadcasting, and MVPD service. In contrast, voluntary reporting would
likely create substantial gaps in data that would significantly impair
such efforts, as has been the Commission's experience in the past with
voluntary reporting.\41\ Considering these factors, we tentatively
conclude that voluntary reporting would not sufficiently serve the
information collection purposes of this reporting initiative. We seek
comment on this tentative conclusion. Are there other regulatory
alternatives the Commission should consider?
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\41\ See Proposed Extension of Part 4 of the Commission's Rules
Regarding Outage Reporting to Interconnected Voice Over Internet
Protocol Service Providers and Broadband Internet Service Providers,
PS Docket No. 11-82, Notice of Proposed Rulemaking, 26 FCC Rcd 7166,
7189-90, para. 57 (2011) (summarizing the Commission's unsuccessful
attempt at voluntary outage reporting prior to the adoption of NORS
and the part 4 rules: ``previous provider participation in voluntary
network-outage reporting was `spotty,' the `quality of information
obtained was very poor,' and there was `no persuasive evidence in
the record that . . . all covered communications providers would
voluntarily file accurate and complete outage reports for the
foreseeable future or that mandatory reporting is not essential to
the development, refinement, and validation of best practices.'
Hence, mandatory reporting was adopted to ensure timely, accurate
reporting.'') (quoting New Part 4 of the Commission's Rules
Concerning Disruptions to Communications, ET Docket No. 04-35,
Report and Order and Further Notice of Proposed Rulemaking, 19 FCC
Rcd 16830, 16851-52, paras. 37-39 (2004)).
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21. Definition of Broadcast Station Blackout. For the purposes of
this reporting rule, we propose defining a ``Broadcast Station
Blackout'' as ``any time an MVPD ceases retransmission of a commercial
television broadcast station's signal due to a lapse of the broadcast
station's consent for such retransmission.'' \42\ With this definition,
we seek to encompass all blackouts occurring as a result of a
retransmission consent dispute, and thus, in the context of blackout
reporting, include all commercial full power, class A, and low power
television (LPTV) broadcast stations within the definition of a
``commercial television broadcast station.'' \43\ We tentatively
conclude it is appropriate to include class A and LPTV stations within
the definition of ``commercial television broadcast station'' here
because these stations, like full power stations, are subject to the
requirements of section 325 of the Act and the Commission's good faith
rules.\44\ We seek comment on this analysis and our proposed
definition. Have there been or could there be instances in which, due
to a retransmission consent dispute, MVPDs are required to cease
retransmitting only some programming streams of a broadcast station and
not others (for example, only the primary stream, but not the
multichannel streams)? \45\ If so, does the proposed definition
adequately cover these scenarios? Are there any reasons why Broadcast
Station Blackouts involving class A and LPTV stations should not be
subject to the proposed reporting requirements?
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\42\ Infra Appendix A, Sec. 76.68(c)(2).
\43\ Id. Sec. 76.68(c)(3).
\44\ 47 U.S.C. 325(a) (``. . . nor shall any broadcasting
station rebroadcast the program or any part thereof of another
broadcasting station without the express authority of the
originating station.'') (emphasis added). Compare 47 U.S.C.
325(b)(2)(A) (``This subsection shall not apply . . . to
retransmission of the signal of a noncommercial television broadcast
station.'').
\45\ 47 CFR 76.64(j) (allowing retransmission agreements to
``specify the extent of the consent being granted, whether for the
entire signal or any portion of the signal'').
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22. Reporting Threshold. We propose requiring Reporting Entities to
report all Broadcast Station Blackouts that last for over 24 hours. We
tentatively conclude this reporting threshold will provide a sufficient
level of information to build a more precise and complete picture of
the state of blackouts that have a significant impact on consumers.
Collecting information on all blackouts lasting over 24 hours will
allow the Commission and the public to gain a better understanding of
the frequency and duration of blackouts occurring in the retransmission
consent marketplace. Blackouts lasting over 24 hours are more likely to
cause consumer harm, whereas blackouts of shorter duration are more
likely to have a lesser impact on viewers, and thus we propose that we
should not impose reporting requirements on blackouts lasting less than
24 hours. We therefore tentatively conclude this threshold
appropriately balances the burdens of Reporting Entities and the
information needs of the Commission and consumers. We seek comment on
the proposed reporting threshold and whether there should be any
additional reporting thresholds. For example, should we also require
reporting for blackouts based on a metric other than duration of the
service disruption? If so, what metrics should be used to determine
what would qualify as a reportable event? Do commenters believe the
proposed reporting threshold is appropriate, or should reporting
obligations be triggered
[[Page 5189]]
by blackouts of longer or shorter duration? If proposing another
reporting threshold, commenters should explain why they think it is
more appropriate.
23. Reporting Process. Under our proposed rule, Reporting Entities
would submit two notifications: an Initial Blackout Notification
shortly after the beginning of a reportable Broadcast Station Blackout
and a Final Blackout Notification after resumption of carriage. All
information would be submitted to the Commission within a designated
online reporting portal in accordance with procedures further specified
in a Bureau-issued public notice following adoption of these proposed
reporting requirements.\46\ We seek comment on this proposed rule and
the details discussed below.
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\46\ Infra Appendix A, Sec. 76.68(a); infra para. 27.
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24. Initial Blackout Notification. We propose that, in the event of
a Broadcast Station Blackout lasting over 24 hours, after that
threshold is met, the Reporting Entity must submit an Initial Blackout
Notification as soon as practicable, but no later than 48 hours after
the initial interruption to the broadcast station programming.\47\ The
following information would be reported in the Notification and
available to the public: the name of the Reporting Entity; the station
or stations no longer being retransmitted, including network
affiliation(s), if any, of each affected primary and multicast stream;
the name of the broadcast station group, if any, that owns the
station(s); the Designated Market Areas in which affected subscribers
reside; and the date and time of the initial interruption to
programming.\48\ Additionally, Reporting Entities would report the
number of subscribers affected.\49\ Critically, subscriber information
is one of the key metrics by which a blackout's impact can be measured.
We recognize that market-by-market subscriber data can be particularly
sensitive and is information not routinely made public by MVPDs.
Therefore we propose giving Reporting Entities the option to submit the
subscriber data provided confidentially.\50\ Reporting Entities would
be able to opt for confidential treatment of the subscriber data
provided by designating the data as confidential within the portal,
rather than filing a separate request with the Commission.\51\ We
encourage Reporting Entities to submit an Initial Blackout Notification
as soon as practicable, but do not believe that this proposed reporting
obligation would require more than 24 hours to complete after a
blackout becomes reportable. We tentatively conclude that the 48-hour
reporting window reasonably balances the benefit of receiving prompt
notice of a blackout with the burden of reporting by giving Reporting
Entities a sufficient amount of time to gather and submit the proposed
information.
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\47\ Infra Appendix A, Sec. 76.68(a)(1).
\48\ Id. Sec. 76.68(a)-(b).
\49\ Id. Sec. 76.68(a)(1)(vi).
\50\ Id. Sec. 76.68(b).
\51\ 47 CFR 0.459(a)(4) (``The Commission may use abbreviated
means for indicating that the submitter of a record seeks
confidential treatment, such as a checkbox enabling the submitter to
indicate that the record is confidential. However, upon receipt of a
request for inspection of such records pursuant to Sec. 0.461, the
submitter will be notified of such request pursuant to Sec.
0.461(d)(3) and will be requested to justify the confidential
treatment of the record, as set forth in paragraph (b) of this
section''). Reporting Entities seeking confidential treatment of any
other data requested pursuant to paragraphs (a)(1)(i) through (v) of
the proposed rule must submit a request that the data be treated as
confidential with the submission of the Initial Blackout
Notification, along with their reasons for withholding the
information from the public, pursuant to 47 CFR 0.459. Infra
Appendix A, Sec. 76.68(b).
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25. We invite comment on this proposed information collection, the
48-hour reporting window, the public treatment of the non-subscriber
data, and the confidential treatment of the subscriber data. Would it
be beneficial to require entities to provide any additional information
as part of the Initial Blackout Notification? Would it be beneficial to
also have Reporting Entities identify the specific areas (for example,
counties or cable communities) affected within the DMAs identified? If
so, should entities report such information publicly or confidentially?
Would any of the proposed disclosures be difficult for a Reporting
Entity to provide within the proposed reporting window, and if so, why?
Do commenters believe that the proposed 48-hour reporting window is
sufficient, or do they believe a reporting window of longer or shorter
duration would be more appropriate? If proposing another reporting
window, commenters should explain why they think that time period is
more appropriate. Is there any non-subscriber information disclosed in
the Initial Blackout Notification for which Reporting Entities should
be able to opt for confidential treatment by designating the data as
confidential within the portal, rather than filing a separate request
with the Commission? If so, why? Conversely, is there any reason why
the subscriber information provided should not be given such
confidential treatment?
26. Final Blackout Notification. No later than two business days
after the resumption of carriage to subscribers, we propose that
Reporting Entities submit a Final Blackout Notification, which would
update the initial blackout notice provided.\52\ The information in
this Final Blackout Notification would be available to the public and
would report the date on which retransmission resumed for each station
included in the Initial Blackout Notification.\53\ As an update to the
Initial Blackout Notification, we envision that Reporting Entities will
be able to easily update the information in the reporting portal for
each station as it resumes retransmission. We request comment on this
proposed Notification, including the information disclosures required,
the proposed two-business-day reporting window, and the public
treatment of the disclosures. In the event of a partial end to a
reported blackout involving multiple stations (that is, the parties
have resolved the retransmission consent dispute with respect to some
of the blacked out stations, but not others), should reporting entities
be required, as proposed, to timely report the resumption of carriage
for each resumed station until all stations included in the Initial
Blackout Notification have been accounted for? Or should Reporting
Entities only be required to submit a report once the dispute has been
resolved for all stations included in the initial notification (with
different carriage resumption dates for different stations listed as
appropriate)? Is there any other information we should request as part
of this final notice? Would any of the proposed disclosures be
difficult for a Reporting Entity to provide within the proposed
reporting window? Are there any reasons why the final Notification
should not be publicly available, and if so, why? Is there a point at
which the Commission should consider a blackout to be permanent, or
should we consider blackouts to be ongoing until a final notification
is filed regardless of their duration?
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\52\ Infra Appendix A, Sec. 76.68(a)(2).
\53\ Id.
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27. Submissions. We propose providing an online reporting portal
through which entities would be able to submit blackout notices to the
Commission. We envision these notices would be made through a
standardized form in the portal, fillable by the Reporting Entity, with
fields for the various data categories. As noted above, the Bureau
would announce specific instructions via public notice. We tentatively
conclude that this approach to collecting data ensures that the
Commission learns of reportable broadcast station blackouts in a timely
manner and, at the same time,
[[Page 5190]]
minimizes the amount of time and effort required to comply with the
reporting requirements. We seek comment on how best to share the
information collected from the Initial and Final Blackout Notifications
with the public. For example, in addition to publicly posting the non-
confidential portions of the blackout notices, should the web portal
include a public-facing, searchable database of the information
collected from the blackout notices? Or would it suffice for the
Commission to publicly post the blackout notices by date of submission?
28. Costs and Benefits. We tentatively conclude this process is
reasonable in light of the significant benefits to the Commission,
Congress, and the public from having timely access to important and
accurate information on service disruptions. As detailed above, we
anticipate that the availability of this blackout information will have
tangible benefits for the Commission and the public.\54\ Moreover, we
tentatively conclude that Reporting Entities already collect this
information in the ordinary course of business for their internal use.
Thus, we expect the only burden associated with the proposed reporting
requirements would be the time required to complete the two
notifications. We anticipate that electronic submission through the
reporting portal will minimize the amount of time and effort that will
be required to complete the proposed reporting obligations.\55\ As a
result, we expect that complying with our proposed reporting
requirements would create a minimal administrative burden, and that, on
balance, the benefits to the public resulting from compiling and
analyzing this blackout information would outweigh any potential
burden. We seek comment on the reasonableness of the proposed reporting
process, and we request comment on relevant types of blackout
information already being collected by cable operators, DBS providers,
other MVPDs, and broadcast stations so that we can best align our
metrics with what is already available to them. We invite comment on
the burdens that might be imposed by the adoption of the proposed
reporting requirements, and in particular welcome comments quantifying
that burden and recommendations to mitigate it. Would collecting and
reporting as proposed be more burdensome for small entities? \56\ If
so, why and to what degree? In addition, we seek comment on the
benefits and drawbacks of treating the non-subscriber information
disclosures in the Initial and Final Blackout Notification as public
information. Is there any alternative reporting approach that would
maximize the potential benefits and accomplish the proceeding's
objectives in a less costly, less burdensome, and/or more effective
manner? Should there be an additional or alternative reporting
threshold for small entities? If so, what should that reporting
threshold be and why is it necessary? Alternatively, is the burden of
reporting outweighed by the benefits gained from the ability to better
monitor and study reported blackouts?
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\54\ Supra paras. 12, 18.
\55\ Supra para. 27.
\56\ Infra Appendix B, paras. 5-25.
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29. Digital Equity and Inclusion. The Commission, as part of its
continuing effort to advance digital equity for all,\57\ including
people of color, persons with disabilities, persons who live in rural
or Tribal areas, and others who are or have been historically
underserved, marginalized, or adversely affected by persistent poverty
or inequality, invites comment on any equity-related considerations
\58\ and benefits (if any) that may be associated with the proposals
and issues discussed herein. Specifically, we seek comment on how our
proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
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\57\ Section 1 of the Communications Act of 1934 as amended
provides that the FCC ``regulat[es] interstate and foreign commerce
in communication by wire and radio so as to make [such service]
available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' 47 U.S.C. 151.
\58\ The term ``equity'' is used here consistent with Executive
Order 13985 as the consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such
treatment, such as Black, Latino, and Indigenous and Native American
persons, Asian Americans and Pacific Islanders and other persons of
color; members of religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons with disabilities;
persons who live in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality. See Exec. Order No.
13985, 86 FR 7009, Executive Order on Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government
(Jan. 20, 2021).
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C. Legal Authority
30. We tentatively conclude the Commission has ample authority to
adopt the proposed blackout reporting requirements. Section
325(b)(3)(A) of the Act grants the Commission broad authority to
``establish regulations to govern the exercise by television broadcast
stations of the right to grant retransmission consent.'' \59\ The
Commission has previously concluded that ``this provision grants the
Commission authority to adopt rules governing retransmission consent
negotiations[.]'' \60\ Separately and in addition, section 325(b)(3)(C)
mandates that broadcasters and MVPDs negotiate retransmission consent
in good faith.\61\ The Commission has express statutory authority to
adopt rules implementing this requirement.\62\ In past actions it has
recognized that ``by imposing a good faith obligation, Congress
intended that the Commission develop and enforce a process'' conducive
to good faith negotiations \63\ rather than ``dictate the outcome'' of
such negotiations.\64\ We tentatively conclude the proposed blackout
reporting requirements fall squarely within the Commission's oversight
authority under both section 325(b)(3)(A) and section 325(b)(3)(C).
Specifically, we tentatively find that timely notification about a
blackout and access to accurate information about the surrounding
circumstances is critical to carrying out our statutory mission.
Reporting blackout information is the most efficient means for the
Commission to obtain critical information needed to monitor ongoing
blackout situations that could result in the filing of a retransmission
consent complaint. Indeed, we expect that access to timely reporting
information could result in tangible improvements to the retransmission
consent negotiation process by allowing Commission intervention to get
negotiations back on track if necessary, consistent with statutory
requirements. In that way, protracted blackouts may be avoided. Thus,
we tentatively find that requiring notification to the Commission when
broadcast programming has gone dark on subscribers' MVPD service
because of failed retransmission consent negotiations will allow the
Commission to better govern the retransmission consent negotiation
process as envisioned under the Communications Act.
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\59\ 47 U.S.C. 325(b)(3)(A).
\60\ Amendment of the Commission's Rules Related to
Retransmission Consent, MB Docket No. 10-71, Report and Order and
Further Notice of Proposed Rulemaking, 29 FCC Rcd 3351, 3371, para.
30 (2014).
\61\ 47 U.S.C. 325(b)(3)(C).
\62\ Id.
\63\ Good Faith Order, 15 FCC Rcd at 5455, para. 24.
\64\ 2011 Retrans Consent NPRM, 26 FCC Rcd at 2721, para. 7
(quoting S. Rep. No. 92, 102nd Cong., 1st Sess. 1991, reprinted in
1992 U.S.C.C.A.N. 1133, 1169); Good Faith Order, 15 FCC Rcd at 5454-
55, para. 23.
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31. The Commission also has broad information collection authority
under section 403 of the Act, which grants the
[[Page 5191]]
Commission discretion to require disclosures on matters, like
retransmission consent, that fall within the Commission's
jurisdiction.\65\ We tentatively find that a retransmission consent-
related blackout that lasts more than 24 hours warrants further inquiry
by the Commission about the circumstances surrounding that blackout, to
ensure that all parties are fulfilling their statutory obligation to
negotiate in good faith. In addition, the Act grants the Commission
broad authority to take the steps necessary to implement its mandates,
and thus provides concurrent authority for the proposed blackout
reporting rules. Sections 4(i) and 303 generally authorize the
Commission to take any actions ``as may be necessary'' to ensure that
the Commission can properly govern the retransmission consent
negotiation process and thereby ensure that broadcasters and MVPDs
fulfill their statutory obligation to negotiate retransmission consent
in good faith.\66\
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\65\ 47 U.S.C. 403 (``The Commission shall have full authority
and power at any time to institute an inquiry, on its own motion, in
any case and as to any matter or thing concerning which complaint is
authorized to be made, to or before the Commission by any provision
of this chapter, or concerning which any question may arise under
any provisions of this chapter, or relating to the enforcement of
any of the provisions of this chapter.''); Stahlman v. FCC, 126 F.2d
124, 127 (D.C. Cir. 1942) (``[F]ull authority and power is given to
the Commission with or without complaint to institute an inquiry
concerning questions arising under the provisions of the Act or
relating to its enforcement. This . . . includes authority to obtain
the information necessary to discharge its proper functions, which
would embrace an investigation aimed at the prevention or disclosure
of practices contrary to public interest.'') (citing 47 U.S.C. 403);
Barrier Communications Corp., Notice of Apparent Liability for
Forfeiture, 35 FCC Rcd 10186, 10189, para. 8 (2020) (``Section 403
of the Communications Act . . . grants the Commission broad
authority to conduct investigations and to compel entities to
provide information and documents sought during investigations.'');
In re: James A. Kay, Jr., WT Docket No. 94-147, Memorandum Opinion
and Order, 13 FCC Rcd 16369, 16372, para. 10 (1998) (``[U]nder 47
U.S.C. 403, the Commission enjoys wide discretion to initiate
investigations with or without a complaint and has a responsibility
to investigate where there is reason to believe that a licensee is
violating the Commission's rules or policies.''). See also 47 CFR
1.1 (``The Commission may on its own motion or petition of any
interested party hold such proceedings as it may deem necessary from
time to time . . . for the purpose of obtaining information
necessary or helpful in the determination of its policies, the
carrying out of its duties or the formulation or amendment of its
rules and regulations.'').
\66\ See 47 U.S.C. 154(i) (authorizing the Commission to
``perform any and all acts, make such rules and regulations, and
issue such orders, not inconsistent with this Act, as may be
necessary in the execution of its functions''); 47 U.S.C. 303(r)
(the Commission shall ``[m]ake such rules and regulations and
prescribe such restrictions and conditions, not inconsistent with
law, as may be necessary to carry out the provisions of this Act'');
47 U.S.C. 325(b)(3)(A) (the Commission shall ``establish regulations
to govern the exercise by television broadcast stations of the right
to grant retransmission consent under this subsection . . .'').
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32. We also tentatively conclude that there is statutory support
for the proposed reporting requirement in sections 632(b) and 335(a) of
the Act.\67\ Under section 632(b), the Commission can adopt customer
service requirements for cable operators.\68\ And, pursuant to section
335(a), the Commission has authority to impose on DBS providers public
interest requirements for ``providing video programming,'' which we
tentatively conclude includes reports on video programming
blackouts.\69\ In addition, we tentatively conclude that informing the
Commission and the public about the availability of broadcast signals
both serves the public interest and helps consumers make informed
choices concerning video programming services. Blackout reporting will
give the public greater visibility into the breadth and impact of
blackouts arising from negotiation disputes and provide a reliable
source of information about the entities most frequently involved in
blackouts. We tentatively conclude that the proposed reporting
requirements are customer service and public interest requirements that
squarely fall within our authority under sections 632(b) and 335(a). As
the Commission recently explained, ``Consumer access to clear, easy-to-
understand, and accurate information is central to a well-functioning
marketplace that encourages competition, innovation, low prices, and
high-quality services. The same information empowers consumers to
choose services that best meet their needs and matches their budgets
and ensures that they are not surprised by unexpected charges or
service quality that falls short of their expectations.'' \70\ These
are some of the same goals that the proposed reporting requirements
intend to accomplish. We seek comment on our authority to adopt
blackout reporting requirements for cable operators and DBS providers
under these provisions.
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\67\ 47 U.S.C. 552(b), 335(a).
\68\ Id. Section 552(b) (``The Commission shall . . . establish
standards by which cable operators may fulfill their customer
service requirements.'').
\69\ Id. Section 335(a) (``The Commission shall . . . initiate a
rulemaking proceeding to impose, on providers of direct broadcast
satellite service, public interest or other requirements for
providing video programming.''). Although section 335(a) requires
that the Commission adopt certain statutory political broadcasting
requirements for DBS providers, the statute is clear that this list
is not exhaustive. 47 U.S.C. 335(a) (``Any regulations prescribed
pursuant to such rulemaking shall, at a minimum, apply the access to
broadcast time requirement of section 312(a)(7) and the use of
facilities requirements of section 315 to providers of direct
broadcast satellite service . . .'') (emphasis added).
\70\ Empowering Broadband Consumers Through Transparency, CG
Docket No. 22-2, 2022 WL 17100958, Report and Order and Further
Notice of Proposed Rulemaking, FCC 22-86, at *1, para. 1 (Nov. 17,
2022).
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33. To the extent we adopt blackout reporting requirements for
broadcasters, we tentatively conclude that our authority under Title
III allows us to adopt such requirements to serve the public interest
objectives stated above. Title III endows the Commission with
``expansive powers'' and a ``comprehensive mandate to `encourage the
larger and more effective use of radio in the public interest.' '' \71\
This mandate is reinforced by section 307(b), which directs the
Commission to ``provide a fair, efficient, and equitable distribution''
of service throughout the country.\72\ Section 303 of the Act grants
the Commission authority to establish operational obligations for
licensees that further the goals and requirements of the Act if such
obligations are necessary for the ``public convenience, interest, or
necessity'' and are not inconsistent with other provisions of law.\73\
In addition, sections 307 and 316 of the Act allow the Commission to
authorize the issuance of licenses or adopt new conditions on existing
licenses if such actions will promote public interest, convenience, and
necessity.\74\ Here, we tentatively conclude that the proposed
reporting requirements would serve the public interest by informing the
public about the availability of local broadcast signals on MVPD
platforms and by providing the Commission and the public a systematic
way to track broadcast station blackouts occurring on MVPD platforms.
While some MVPD subscribers could replace the blacked out local
broadcast signals with the broadcaster's own over-the-air transmission,
not all subscribers would be able to do so because they either lack the
necessary equipment or live in locations where they are unable to
sufficiently receive the over-the-air
[[Page 5192]]
transmission.\75\ Therefore, over-the-air transmission of local
broadcast signals may not be a reasonable substitute for the
retransmission of local broadcast programming on MVPD platforms. We
tentatively conclude that the proposed blackout reporting requirements
would ``encourage the larger and more effective use of radio in the
public interest'' and promote the fair, efficient, and equitable
distribution'' of service throughout the country by informing the
Commission and the public about the disruption of local broadcast
signal carriage on MVPD platforms. Therefore, we tentatively conclude
that it serves the public interest for the Commission and the public to
have a centralized database to be able to systematically monitor
obstacles to signal and programming availability. We seek comment on
these and other potentially relevant sources of authority.
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\71\ Cellco Partnership v. FCC, 700 F.3d 534, 541-42 (D.C. Cir.
2012) (quoting NBC v. United States, 319 U.S. 190, 219 (1943) and 47
U.S.C. 303(g) (``The Commission from time to time, as public
convenience, interest, or necessity requires, shall . . . (g) study
new uses for radio, provide for experimental uses of frequencies,
and generally encourage the larger and more effective use of radio
in the public interest[.]'')).
\72\ 47 U.S.C. 307(b); United States v. Southwestern Cable Co.,
392 U.S. 157, 173-74 (1968) (``Congress has imposed upon the
Commission the `obligation of providing a widely dispersed radio and
television service, with a fair, efficient, and equitable
distribution' of service among the `several States and communities.'
'') (quoting S. Rep. No. 923, 86th Cong., 1st Sess. and 47 U.S.C.
307(b)).
\73\ 47 U.S.C. 303.
\74\ Id. Sections 307, 316; Cellco Partnership, 700 F.3d at 543.
\75\ Supra note 4.
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IV. Initial Regulatory Flexibility Analysis
34. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\76\ the Federal Communications Commission (Commission)
has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the
possible significant economic impact on a substantial number of small
entities by the policies proposed in the NPRM. Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the NPRM.
The Commission will send a copy of the NPRM, including this IRFA, to
the Chief Counsel for Advocacy of the Small Business Administration
(SBA).\77\ In addition, the NPRM and the IRFA (or summaries thereof)
will be published in the Federal Register.\78\
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\76\ 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, was amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
Public Law 104-121, Title II, 110 Stat. 857 (1996).
\77\ 5 U.S.C. 603(a).
\78\ Id.
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A. Need for, and Objectives of, the Proposed Rules
35. In the NPRM, the Commission considers and seeks comment on a
proposal to impose reporting requirements for broadcast television
station blackouts that occur as result of a retransmission consent
dispute. Over the past decade, S&P Capital IQ data indicates that the
number of blackouts resulting from unsuccessful retransmission consent
negotiations has increased dramatically, causing service disruptions
for consumers. The Commission usually learns of broadcast station
blackouts through reports of disputes in the media or informal
communication with staff, which does not allow the Commission or the
public access to timely information on these service disruptions. Under
this proposal, cable operators, satellite TV providers, and other
multichannel video programming distributors (MVPDs) would be required
to notify the Commission when a broadcast station blackout lasting over
24 hours occurs on their system. The proposed reporting framework would
require public notice to the Commission of the beginning and resolution
of any blackout and submission of confidential information about its
scope. We tentatively conclude that this proposed rule would ensure
that the Commission receives prompt and accurate information about
critical broadcast service disruptions when they occur. The
availability of this information would also help the Commission
determine the extent of blackouts nationwide, identify recurring
problems, determine whether actions can be taken to help prevent future
blackouts from occurring, and identify any statistically meaningful
trends across blackouts.
B. Legal Basis
36. The proposed action is authorized pursuant to sections 1, 4(i),
4(j), 301, 303(b), 303(g), 303(j), 303(r), 303(v), 307, 309, 316, 325,
335(a), 403, and 632 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 154(j), 301, 303(b), 303(g), 303(j), 303(r),
303(v), 307, 309, 316, 325, 335(a), 403, and 552.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
37. 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.\79\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \80\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\81\ 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.\82\
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\79\ 5 U.S.C. 603(b)(3).
\80\ Id. Section 601(6).
\81\ Id. Section 601(3) (adopting by reference the definition of
``small business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.''
\82\ 15 U.S.C. 632(a)(1).
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38. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as 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 communications networks.\83\ Transmission
facilities may be based on a single technology or a 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.\84\ By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.\85\
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.\86\
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\83\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\84\ Id.
\85\ Id.
\86\ Fixed Local Service Providers include the following types
of providers: Incumbent Local Exchange Carriers (ILECs), Competitive
Access Providers (CAPs) and Competitive Local Exchange Carriers
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, and Other Local Service Providers.
Local Resellers fall into another U.S. Census Bureau industry group
and therefore data for these providers is not included in this
industry.
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[[Page 5193]]
39. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small.\87\ U.S. Census Bureau data for 2017 show that
there were 3,054 firms that operated in this industry for the entire
year.\88\ Of this number, 2,964 firms operated with fewer than 250
employees.\89\ Additionally, based on Commission data in the 2022
Universal Service Monitoring Report, as of December 31, 2021, there
were 4,590 providers that reported they were engaged in the provision
of fixed local services.\90\ Of these providers, the Commission
estimates that 4,146 providers have 1,500 or fewer employees.\91\
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
---------------------------------------------------------------------------
\87\ See 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\88\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\89\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\90\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf.
\91\ Id.
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40. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard 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.\92\
Based on industry data, there are about 420 cable companies in the
U.S.\93\ Of these, only seven have more than 400,000 subscribers.\94\
In addition, under the Commission's rules, a ``small system'' is a
cable system serving 15,000 or fewer subscribers.\95\ Based on industry
data, there are about 4,139 cable systems (headends) in the U.S.\96\ Of
these, about 639 have more than 15,000 subscribers.\97\ Accordingly,
the Commission estimates that the majority of cable companies and cable
systems are small.
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\92\ 47 CFR 76.901(d).
\93\ S&P Global Market Intelligence, S&P Capital IQ Pro, U.S.
MediaCensus, Operator Subscribers by Geography (last visited May 26,
2022).
\94\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top
Cable MSOs 12/21Q (last visited May 26, 2022); S&P Global Market
Intelligence, Multichannel Video Subscriptions, Top 10 (April 2022).
\95\ 47 CFR 76.901(c).
\96\ S&P Global Market Intelligence, S&P Capital IQ Pro, U.S.
MediaCensus, Operator Subscribers by Geography (last visited May 26,
2022).
\97\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top
Cable MSOs 12/21Q (last visited May 26, 2022).
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41. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' 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.'' \98\ For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 677,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator based on the cable
subscriber count established in a 2001 Public Notice.\99\ Based on
industry data, only six cable system operators have more than 677,000
subscribers.\100\ Accordingly, the Commission estimates that the
majority of cable system operators are small under this size standard.
We note however, that the Commission neither requests nor collects
information on whether cable system operators are affiliated with
entities whose gross annual revenues exceed $250 million.\101\
Therefore, 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.
---------------------------------------------------------------------------
\98\ 47 U.S.C. 543(m)(2).
\99\ FCC Announces New Subscriber Count for the Definition of
Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (CSB 2001)
(2001 Subscriber Count PN). In this Public Notice, the Commission
determined that there were approximately 67.7 million cable
subscribers in the United States at that time using the most
reliable source publicly available. Id. We recognize that the number
of cable subscribers changed since then and that the Commission has
recently estimated the number of cable subscribers to traditional
and telco cable operators to be approximately 58.1 million. See
Communications Marketplace Report, GN Docket No. 20-60, 2020
Communications Marketplace Report, 36 FCC Rcd 2945, 3049, para. 156
(2020) (2020 Communications Marketplace Report). However, because
the Commission has not issued a public notice subsequent to the 2001
Subscriber Count PN, the Commission still relies on the subscriber
count threshold established by the 2001 Subscriber Count PN for
purposes of this rule. See 47 CFR 76.901(e)(1).
\100\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top
Cable MSOs 12/21Q (last visited May 26, 2022); S&P Global Market
Intelligence, Multichannel Video Subscriptions, Top 10 (April 2022).
\101\ 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(e) of the Commission's rules. See 47 CFR
76.910(b).
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42. 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 included in the Wired
Telecommunications Carriers industry which 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.\102\ Transmission facilities may be based
on a single technology or combination of technologies.\103\
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.\104\ By exception, establishments providing
satellite television distribution services using facilities and
infrastructure that they operate are included in this industry.\105\
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\102\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\103\ Id.
\104\ Id. Included in this industry are: broadband internet
service providers (e.g., cable, DSL); local telephone carriers
(wired); cable television distribution services; long-distance
telephone carriers (wired); closed-circuit television (CCTV)
services; VoIP service providers, using own operated wired
telecommunications infrastructure; direct-to-home satellite system
(DTH) services; telecommunications carriers (wired); satellite
television distribution systems; and multichannel multipoint
distribution services (MMDS).
\105\ Id.
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43. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small.\106\ U.S. Census Bureau data for 2017 show that
3,054 firms operated in this industry for the entire year.\107\ Of this
number, 2,964 firms operated with fewer than 250 employees.\108\ Based
on this data, the majority of firms in this industry can be considered
small under the SBA small business size standard. According to
Commission data however, only two entities provide DBS service, DIRECTV
[[Page 5194]]
(owned by AT&T) and DISH Network, which require a great deal of capital
for operation.\109\ DIRECTV and DISH Network both exceed the SBA size
standard for classification as a small business. Therefore, we must
conclude based on internally developed Commission data, in general DBS
service is provided only by large firms.
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\106\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\107\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\108\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\109\ Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, Eighteenth Report,
Table III.A.5, 32 FCC Rcd 568, 595 (Jan. 17, 2017).
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44. 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 included in the Wired Telecommunications Carriers'
industry which includes wireline telecommunications businesses.\110\
The SBA small business size standard for Wired Telecommunications
Carriers classifies firms having 1,500 or fewer employees as
small.\111\ U.S. Census Bureau data for 2017 show that there were 3,054
firms in this industry that operated for the entire year.\112\ Of this
total, 2,964 firms operated with fewer than 250 employees.\113\ Thus
under the SBA size standard, the majority of firms in this industry can
be considered small.
---------------------------------------------------------------------------
\110\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\111\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\112\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\113\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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45. Home Satellite Dish (HSD) Service. HSD or the large dish
segment of the satellite industry is the original satellite-to-home
service offered to consumers and involves the home reception of signals
transmitted by satellites operating generally in the C-band frequency.
Unlike DBS, which uses small dishes, HSD antennas are between four and
eight feet in diameter and can receive a wide range of unscrambled
(free) programming and scrambled programming purchased from program
packagers that are licensed to facilitate subscribers' receipt of video
programming. Because HSD provides subscription services, HSD falls
within the industry category of Wired Telecommunications Carriers.\114\
The SBA small business size standard for Wired Telecommunications
Carriers classifies firms having 1,500 or fewer employees as
small.\115\ U.S. Census Bureau data for 2017 show that there were 3,054
firms that operated for the entire year.\116\ Of this total, 2,964
firms operated with fewer than 250 employees.\117\ Thus, under the SBA
size standard, the majority of firms in this industry can be considered
small.
---------------------------------------------------------------------------
\114\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\115\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\116\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\117\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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46. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers \118\ is the closest industry with an SBA
small business size standard.\119\ The SBA small business size standard
for Wired Telecommunications Carriers classifies firms having 1,500 or
fewer employees as small.\120\ U.S. Census Bureau data for 2017 show
that there were 3,054 firms in this industry that operated for the
entire year.\121\ Of this number, 2,964 firms operated with fewer than
250 employees.\122\ Additionally, based on Commission data in the 2022
Universal Service Monitoring Report, as of December 31, 2021, there
were 1,212 providers that reported they were incumbent local exchange
service providers.\123\ Of these providers, the Commission estimates
that 916 providers have 1,500 or fewer employees.\124\ Consequently,
using the SBA's small business size standard, the Commission estimates
that the majority of incumbent local exchange carriers can be
considered small entities.
---------------------------------------------------------------------------
\118\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\119\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\120\ Id.
\121\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\122\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\123\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf.
\124\ Id.
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47. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers.\125\ Wired Telecommunications Carriers
\126\ is the closest industry with a SBA small business size standard.
The SBA small business size standard for Wired Telecommunications
Carriers classifies firms having 1,500 or fewer employees as
small.\127\ U.S. Census Bureau data for 2017 show that there were 3,054
firms that operated in this industry for the entire year.\128\ Of this
number, 2,964 firms operated with fewer than 250 employees.\129\
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 3,378 providers
that reported they were competitive local exchange service
providers.\130\ Of these providers, the Commission estimates that 3,230
providers have 1,500 or fewer employees.\131\ Consequently, using the
SBA's small business size standard,
[[Page 5195]]
most of these providers can be considered small entities.
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\125\ Competitive Local Exchange Service Providers include the
following types of providers: Competitive Access Providers (CAPs)
and Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs,
Interconnected VOIP Providers, Non-Interconnected VOIP Providers,
Shared-Tenant Service Providers, Audio Bridge Service Providers,
Local Resellers, and Other Local Service Providers.
\126\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\127\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\128\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\129\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\130\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf.
\131\ Id.
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48. Competitive Access Providers (CAPs). Neither the Commission nor
the SBA have developed a definition of small entities specifically
applicable to CAPs. The closest applicable industry with a SBA small
business size standard is Wired Telecommunications Carriers.\132\ Under
the SBA small business size standard a Wired Telecommunications Carrier
is a small entity if it employs 1,500 employees or less.\133\ U.S.
Census Bureau data for 2017 show that there were 3,054 firms in this
industry that operated for the entire year.\134\ Of that number, 2,964
firms operated with fewer than 250 employees.\135\ Additionally, based
on Commission data in the 2022 Universal Service Monitoring Report, as
of December 31, 2021, there were 659 CAPs and competitive local
exchange carriers (CLECs), and 69 cable/coax CLECs that reported they
were engaged in the provision of competitive local exchange
services.\136\ Of these providers, the Commission estimates that 633
providers have 1,500 or fewer employees.\137\ Consequently, using the
SBA's small business size standard, most of these providers can be
considered small entities.
---------------------------------------------------------------------------
\132\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\133\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\134\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\135\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\136\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf.
\137\ Id.
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49. Open Video Systems. The open video system (OVS) 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. OVS operators
provide subscription services and therefore fall within the SBA small
business size standard for the cable services industry, which is
``Wired Telecommunications Carriers.'' \138\ The SBA small business
size standard for this industry classifies firms having 1,500 or fewer
employees as small.\139\ U.S. Census Bureau data for 2017 show that
there were 3,054 firms in this industry that operated for the entire
year.\140\ Of this total, 2,964 firms operated with fewer than 250
employees.\141\ Thus, under the SBA size standard the majority of firms
in this industry can be considered small. Additionally, we note that
the Commission has certified some OVS operators who are now providing
service and 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 for the
entities authorized to provide OVS however, the Commission believes
some of the OVS operators may qualify as small entities.
---------------------------------------------------------------------------
\138\ U.S. Census Bureau, 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\139\ 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\140\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\141\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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50. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' \142\ transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).\143\
Wireless cable operators that use spectrum in the BRS often
supplemented with leased channels from the EBS, provide a competitive
alternative to wired cable and other multichannel video programming
distributors. Wireless cable programming to subscribers resembles cable
television, but instead of coaxial cable, wireless cable uses microwave
channels.\144\
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\142\ The use of the term ``wireless cable'' does not imply that
it constitutes cable television for statutory or regulatory
purposes.
\143\ 47 CFR 27.4; see also Amendment of Parts 21 and 74 of the
Commission's Rules with Regard to Filing Procedures in the
Multipoint Distribution Service and in the Instructional Television
Fixed Service and Implementation of Section 309(j) of the
Communications Act--Competitive Bidding, Report and Order, 10 FCC
Rcd 9589, 9593, para. 7 (1995).
\144\ Generally, a wireless cable system may be described as a
microwave station transmitting on a combination of BRS and EBS
channels to numerous receivers with antennas, such as single-family
residences, apartment complexes, hotels, educational institutions,
business entities and governmental offices. The range of the
transmission depends upon the transmitter power, the type of
receiving antenna and the existence of a line-of-sight path between
the transmitter or signal booster and the receiving antenna.
---------------------------------------------------------------------------
51. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with a SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite).\145\ The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees.\146\ U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year.\147\ Of
this number, 2,837 firms employed fewer than 250 employees.\148\ Thus
under the SBA size standard, the Commission estimates that a majority
of licensees in this industry can be considered small.
---------------------------------------------------------------------------
\145\ U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
\146\ 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\147\ U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\148\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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52. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS licenses.\149\ The Commission's
small business size standards with respect to BRS involves eligibility
for bidding credits and installment payments in the auction of licenses
for these services. For the auction of BRS licenses, the Commission
adopted criteria for three groups of small businesses. A very small
business is an entity that, together with its affiliates and
controlling interests, has average annual gross revenues exceed $3
million and did not exceed $15 million for the preceding three years, a
small business is an entity that, together with its affiliates and
controlling interests, has
[[Page 5196]]
average gross revenues exceed $15 million and did not exceed $40
million for the preceding three years, and an entrepreneur is an entity
that, together with its affiliates and controlling interests, has
average gross revenues not exceeding $3 million for the preceding three
years.\150\ Of the ten winning bidders for BRS licenses, two bidders
claiming the small business status won four licenses, one bidder
claiming the very small business status won three licenses and two
bidders claiming entrepreneur status won six licenses.\151\ One of the
winning bidders claiming a small business status classification in the
BRS license auction has an active license as of December 2021.\152\
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\149\ Based on a FCC Universal Licensing System search on
December 10, 2021, https://wireless2.fcc.gov/UlsApp/UlsSearch/searchAdvanced.jsp. Search parameters: Service Group = All, ``Match
only the following radio service(s)'', Radio Service = BR, ED;
Authorization Type = All; Status = Active. We note that the number
of active licenses does not equate to the number of licensees. A
licensee can have one or more licenses.
\150\ 47 CFR 27.1218(a).
\151\ Federal Communications Commission, Economics and
Analytics, Auctions, Auction 86: Broadband Radio Service, Summary,
Reports, All Bidders, https://www.fcc.gov/sites/default/files/wireless/auctions/86/charts/86bidder.xls.
\152\ Based on a FCC Universal Licensing System search on
December 10, 2021, https://wireless2.fcc.gov/UlsApp/UlsSearch/searchAdvanced.jsp. Search parameters: Service Group = All, ``Match
only the following radio service(s)'', Radio Service = BR;
Authorization Type = All; Status = Active. We note that the number
of active licenses does not equate to the number of licensees. A
licensee can have one or more licenses.
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53. The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5)
years.\153\ In frequency bands where licenses were subject to auction,
the Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
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\153\ 47 CFR 27.1219(a).
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54. Fixed Microwave Services. Fixed microwave services include
common carrier,\154\ private-operational fixed,\155\ and broadcast
auxiliary radio services.\156\ They also include the Upper Microwave
Flexible Use Service (UMFUS),\157\ Millimeter Wave Service (70/80/90
GHz),\158\ Local Multipoint Distribution Service (LMDS),\159\ the
Digital Electronic Message Service (DEMS),\160\ 24 GHz Service,\161\
Multiple Address Systems (MAS),\162\ and Multichannel Video
Distribution and Data Service (MVDDS),\163\ where in some bands
licensees can choose between common carrier and non-common carrier
status.\164\ Wireless Telecommunications Carriers (except Satellite)
\165\ is the closest industry with a SBA small business size standard
applicable to these services. The SBA small size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees.\166\ U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year.\167\ Of
this number, 2,837 firms employed fewer than 250 employees.\168\ Thus
under the SBA size standard, the Commission estimates that a majority
of fixed microwave service licensees can be considered small.
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\154\ 47 CFR part 101, subparts C and I.
\155\ Id. Subparts C and H.
\156\ Auxiliary Microwave Service is governed by Part 74 of
Title 47 of the Commission's Rules. See 47 CFR part 74. Available to
licensees of broadcast stations and to broadcast and cable network
entities, broadcast auxiliary microwave stations are used for
relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\157\ 47 CFR part 30.
\158\ 47 CFR part 101, subpart Q.
\159\ Id. Subpart L.
\160\ Id. Subpart G.
\161\ Id.
\162\ Id. Subpart O.
\163\ Id. Subpart P.
\164\ 47 CFR 101.533, 101.1017.
\165\ U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
\166\ 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\167\ U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\168\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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55. The Commission's small business size standards with respect to
fixed microwave services involve eligibility for bidding credits and
installment payments in the auction of licenses for the various
frequency bands included in fixed microwave services. When bidding
credits are adopted for the auction of licenses in fixed microwave
services frequency bands, such credits may be available to several
types of small businesses based average gross revenues (small, very
small and entrepreneur) pursuant to the competitive bidding rules
adopted in conjunction with the requirements for the auction and/or as
identified in Part 101 of the Commission's rules for the specific fixed
microwave services frequency bands.\169\
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\169\ 47 CFR 101.538(a)(1)-(3), 101.1112(b)-(d), 101.1319(a)(1)-
(2), and 101.1429(a)(1)-(3).
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56. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
57. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' \170\ These establishments operate television broadcast
studios and facilities for the programming and transmission of programs
to the public.\171\ 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 small business
size standard for this industry classifies businesses having $41.5
million or less in annual receipts as small.\172\ 2017 U.S. Census
Bureau data indicate that 744 firms in this industry operated for the
entire year.\173\ Of that number, 657 firms
[[Page 5197]]
had revenue of less than $25,000,000.\174\ Based on this data we
estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
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\170\ See U.S. Census Bureau, 2017 NAICS Definition, ``515120
Television Broadcasting,'' https://www.census.gov/naics/?input=515120&year=2017&details=515120.
\171\ Id.
\172\ 13 CFR 121.201, NAICS Code 515120 (as of 10/1/22 NAICS
Code 516120).
\173\ U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code
515120, https://data.census.gov/cedsci/table?y=2017&n=515120&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
\174\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard. We also note that according to the U.S. Census Bureau
glossary, the terms receipts and revenues are used interchangeably,
see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
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58. As of June 30, 2023, there were 1,375 licensed commercial
television stations.\175\ Of this total, 1,256 stations (or 91.3%) had
revenues of $41.5 million or less in 2022, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) on July 17, 2023, and therefore these licensees qualify
as small entities under the SBA definition. In addition, the Commission
estimates as of June 30, 2023, there were 383 licensed noncommercial
educational (NCE) television stations, 381 Class A TV stations, 1,902
LPTV stations and 3,123 TV translator stations.\176\ The Commission,
however, does not compile and otherwise does not have access to
financial information for these television broadcast stations that
would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of these television station licensees, we
presume that all of these entities qualify as small entities under the
above SBA small business size standard.
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\175\ Broadcast Station Totals as of June 30, 2023, Public
Notice, DA 23-582 (rel. July 14, 2023) (July 2023 Broadcast Station
Totals PN), https://docs.fcc.gov/public/attachments/DA-23-582A1.pdf.
\176\ Id.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
59. The proposed rule would require all MVPDs carrying broadcast
programming pursuant to retransmission consent agreements, including
cable operators and DBS providers (Reporting MVPDs or, more broadly,
Reporting Entities),\177\ to notify the Commission of both the start
and conclusion of a broadcast station blackout lasting over 24 hours.
The initial notification would provide basic blackout information, both
public and confidential, to the Commission within 48 hours of the start
of a reportable broadcast station blackout (Initial Blackout
Notification). The final notification, submitted no later than two
business days after the end of the reportable broadcast station
blackout, would publicly identify the date retransmission resumed
(Final Blackout Notification). We propose that this information be
collected through an online reporting portal designed, hosted, and
administered by the Commission. Reporting Entities would be given
notice of the specific reporting procedures by public notice before
being required to submit blackout information via the reporting portal.
Public blackout information collected through the portal would then be
available on the Commission's website.\178\
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\177\ 47 CFR 76.64(d) (``A multichannel video program
distributor is an entity such as, but not limited to, a cable
operator, a BRS/EBS provider, a direct broadcast satellite service,
a television receive-only satellite program distributor, or a
satellite master antenna television system operator, that makes
available for purchase, by subscribers or customers, multiple
channels of video programming.''); infra Appendix A--Proposed Rules,
Sec. 76.68(c)(1).
\178\ Supra NPRM, Appendix A--Proposed Rules.
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60. To streamline reporting, the NPRM proposes creating an online
reporting portal, modeled after the Commission's Network Outage
Reporting System (NORS), which Reporting Entities would use to report
broadcast station blackouts occurring on MVPD platforms.\179\ The
proposed data to be reported would be filed with the Commission via
this web-based system. As with the Commission's Network Outage
Reporting System (NORS), this system would use an electronic template
to promote the ease of reporting and encryption technology to ensure
the security of the information fields. The proposed blackout
information to be reported would be available to the public, except for
more sensitive information regarding subscribers, which Reporting
Entities may designate as confidential.
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\179\ Federal Communications Commission, Network Outage
Reporting System (NORS), https://www.fcc.gov/network-outage-reporting-system-nors (last updated Mar. 25, 2022).
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61. The NPRM aims to tailor the proposed requirements so that they
impose a minimal burden on small and other Reporting Entities while
still ensuring that the Commission and the public have access to
critical data on service disruptions. It is likely that small and other
Reporting Entities already collect this information in the ordinary
course of business for their internal use. As such, the operational
cost of implementation associated with the proposed reporting
requirements for small entities would be the time required to complete
the two notifications. We anticipate that electronic submission through
the reporting portal will minimize the amount of time and effort that
will be required to complete the proposed reporting obligations.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities and Significant Alternatives Considered
62. The RFA requires an agency to describe any significant,
specifically small business, 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 such small
entities.'' \180\
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\180\ 5 U.S.C. 603(c)(1)-(4).
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63. The NPRM considers certain alternatives that may impact small
entities. One such alternative discussed is whether mandatory blackout
reporting is necessary and if voluntary reporting could support the
Commission's efforts to stay informed on the frequency and impact of
broadcast station blackouts. The NPRM concludes that based on
experience with voluntary reporting in other contexts, this would
likely create substantial gaps in data that would significantly impair
the Commission's efforts and therefore not sufficiently serve the
information collection purposes of this reporting initiative. The NPRM
also considers the timeliness of the Final Blackout Notification
reporting the resumption of carriage when multiple stations are
involved in a blackout and whether Reporting Entities must report the
partial end of a blackout as carriage for each station resumes, or
report only after the dispute has been resolved for all the stations
included in the Initial Blackout Notification.
64. We anticipate that complying with the proposed reporting
requirements will create a minimal administrative burden on small
entities and that, on balance, the benefits of compiling this
information on service disruptions would outweigh any potential burden.
We expect that Reporting Entities will have ready access to the basic
blackout information that is proposed to be
[[Page 5198]]
included in the required notices--when and where the blackout occurred
and what subscribers were affected. As a result, we believe that, in
the normal course of operations, the only potential burden associated
with the reporting requirements contained in this NPRM will be the time
required to complete the Initial and Final Notifications. We also
anticipate that electronic submission should minimize the amount of
time and effort that will be required to comply with the rule proposed
in this NPRM. In addition, we do not anticipate that it will be costly
or time consuming for Reporting Entities to fill out and submit the
proposed notifications, each of which is quite brief. Given this
reporting framework, we expect that the economic impact on small
entities is not likely to be significant, and therefore believe that
the proposed process is reasonable in light of the benefits to the
Commission, Congress, and the public from having timely access to
important and accurate information on service disruptions.
65. The NPRM seeks comment on the types of burdens small entities
will face in complying with the proposed requirements and invites
commenters to quantify that burden and recommend how to mitigate
it.\181\ To assist in the Commission's evaluation of the economic
impact on small entities, as a result of actions that have been
proposed in the NPRM, and to better explore options and alternatives,
the Commission has sought comment from the parties. In particular, the
Commission seeks comment on whether any of the burdens associated with
the reporting requirements described above can be minimized for small
entities. Entities, especially small businesses and small entities, are
encouraged to quantify the costs and benefits of the proposed reporting
requirements. The Commission expects to more fully consider the
economic impact and alternatives for small entities following the
review of comments filed in response to the NPRM.
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\181\ NPRM at para. 28.
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F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
66. None.
V. Procedural Matters
67. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA),\182\ requires that an agency prepare a
regulatory flexibility analysis for notice and comment rulemakings,
unless the agency certifies that ``the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities.'' \183\ Accordingly, we have prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible/potential impact of
the rule and policy changes contained in this NPRM. The IRFA is
attached as Appendix B. Written public comments are requested on the
IRFA. Comments must have a separate and distinct heading designating
them as responses to the IRFA and must be filed by the deadlines for
comments on the first page of this document.
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\182\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, was amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
\183\ Id. Section 605(b).
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68. Initial Paperwork Reduction Act Analysis. This document
contains proposed new information collection requirements. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and the Office of Management and
Budget to comment on the information collection requirements contained
in this document, as required by the Paperwork Reduction Act of
1995.\184\ In addition, pursuant to the Small Business Paperwork Relief
Act of 2002, we seek specific comment on how we might further reduce
the information collection burden for small business concerns with
fewer than 25 employees.\185\
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\184\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44 of the
U.S. Code).
\185\ The Small Business Paperwork Relief Act of 2002 (SBPRA),
Public Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of
title 44 of the U.S. Code). See 44 U.S.C. 3506(c)(4).
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69. Providing Accountability Through Transparency Act. The
Providing Accountability Through Transparency Act requires each agency,
in providing notice of a rulemaking, to post online a brief plain-
language summary of the proposed rule.\186\ Accordingly, the Commission
will publish the required summary of this Notice of Proposed Rulemaking
on: https://www.fcc.gov/proposed-rulemakings.
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\186\ 5 U.S.C. 553(b)(4). The Providing Accountability Through
Transparency Act, Public Law 118-9 (2023), amended section 553(b) of
the Administrative Procedure Act.
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70. Ex Parte Rules--Permit-But-Disclose. This proceeding shall be
treated as a ``permit-but-disclose'' proceeding in accordance with the
Commission's ex parte rules.\187\ Persons making ex parte presentations
must file a copy of any written presentation or a memorandum
summarizing any oral presentation within two business days after the
presentation (unless a different deadline applicable to the Sunshine
period applies). Persons making oral ex parte presentations are
reminded that memoranda summarizing the presentation must (1) list all
persons attending or otherwise participating in the meeting at which
the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
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\187\ 47 CFR 1.1200 et seq.
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IV. Ordering Clauses
71. It is ordered, pursuant to the authority found in sections 1,
4(i), 4(j), 301, 303(b), 303(g), 303(j), 303(r), 303(v), 307, 309, 316,
325, 335(a), 403, and 632 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303(b), 303(g), 303(j),
303(r), 303(v), 307, 309, 316, 325, 335(a), 403, and 552, that this
Notice of Proposed Rulemaking IS HEREBY ADOPTED.
72. It is further ordered that the Commission's Office of the
Secretary SHALL SEND a copy of this Notice of Proposed Rulemaking,
including the Initial Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 76
Television.
[[Page 5199]]
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rule
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISON 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, 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
2. Add Sec. 76.68 to Subpart D to read as follows:
Sec. 76.68 Reporting Requirements for Commercial Television
Broadcast Station Blackouts.
(a) Information Required. All information must be submitted to the
Commission electronically in accordance with procedures specified by
the Media Bureau by public notice.
(1) In the event of a Broadcast Station Blackout lasting over 24
hours, the Reporting Entity shall, within 48 hours of the initial
interruption to programming, submit an Initial Blackout Notification.
This Notification will be available to the public and shall identify:
(i) The name of the Reporting Entity;
(ii) The commercial television broadcast station or stations no
longer being retransmitted, including network affiliation(s), if any,
of each affected primary and multicast stream;
(iii) The name of the broadcast station group, if any, that owns
the commercial television broadcast station(s)
(iv) The Designated Market Area(s) in which affected subscribers
reside;
(v) The date and time of the initial interruption to programming;
and
(vi) The number of subscribers affected.
(2) No later than 2 business days after the resumption of carriage
to subscribers, the Reporting Entity shall submit a Final Blackout
Notification. This Notification will be available to the public and
shall state, with respect to each station identified in the Initial
Blackout Notification, that retransmission has resumed and include the
date on which retransmission resumed.
(b) Confidential Treatment. Reporting Entities may request that
subscriber data submitted pursuant to paragraph (a)(1)(vi) of this
section be treated as confidential and be withheld from public
inspection by so indicating on the notice at the time that they submit
such data. Reporting Entities seeking confidential treatment of any
other data requested pursuant to paragraphs (a)(1)(i) through (v) of
this section must submit a request that the data be treated as
confidential with the submission of the Initial Blackout Notification,
along with their reasons for withholding the information from the
public, pursuant to Sec. 0.459 of this chapter.
(c) Definitions.
(1) Reporting Entity. The entity reporting a Broadcast Station
Blackout.
(2) Broadcast Station Blackout. Any time an MVPD ceases
retransmission of a commercial television broadcast station's signal
due to a lapse of the broadcast station's consent for such
retransmission.
(3) Commercial Television Broadcast Station. For the purposes of
this section, a ``commercial television broadcast station'' includes
all commercial full power, class A, and low power television broadcast
stations.
[FR Doc. 2024-01505 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P