**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER**

**Adopted: March 28, 2005 Released: March 30, 2005**

By the Commission:

# I. INTRODUCTION

1.  In this Order, we adopt rules in compliance with requirements in the
    Satellite Home Viewer Extension and Reauthorization Act of 2004
    ("SHVERA").[^1] Specifically, Section 202 of the SHVERA requires the
    Commission to implement new section 340(h) of the Communications Act
    of 1934, as amended ("Communications Act" or "Act"); Section 205
    amends Section 338(h)(2) of the Act by instructing the Commission to
    amend rule section 76.66(d)(2); and Section 209 requires the
    Commission to exempt satellite carriers from complying with the
    testing requirements in Section 339(c)(4)(A) of the Act.[^2] We are
    amending the rules without providing prior public notice and comment
    because these amendments merely implement provisions of the SHVERA
    that direct the Commission to revise its rules as specified in the
    legislation. The Commission\'s action involves no discretion.
    Accordingly, we find that notice and comment would serve no purpose
    and thus are unnecessary, and this action falls within the \"good
    cause\" exception of the Administrative Procedure Act (\"APA\").[^3]

2.  In December 2004, Congress passed and the President signed the
    SHVERA, which amends the 1988 copyright laws[^4] and the
    Communications Act of 1934[^5] to further aid competition in the
    multichannel video programming distribution market and provide more
    video programming options for satellite subscribers. The SHVERA is
    the third statute that addresses satellite carriage of television
    broadcast stations.

3.  In 1988, Congress passed the Satellite Home Viewer Act ("1988
    SHVA"),[^6] which established a statutory copyright license for
    satellite carriers to offer broadcast programming to subscribers who
    could not receive the signal of a broadcast station over the air
    ("unserved households"). The 1988 SHVA statutory copyright license
    did not distinguish between signals from local stations and signals
    from distant stations.[^7] In the 1999 Satellite Home Viewer
    Improvement Act ("SHVIA"),[^8] Congress expanded on the 1988 SHVA by
    amending both the 1988 copyright laws[^9] and the Communications
    Act[^10] to permit satellite carriers to retransmit local broadcast
    television signals directly to their subscribers without requiring
    that they live in "unserved households."

4.  The SHVIA provided satellite carriers with a statutory copyright
    license to facilitate the retransmission of local broadcast
    programming, or "local-into-local" service, to subscribers. A
    satellite carrier provides "local-into-local" service when it
    retransmits a local television signal back into the local market of
    that television station for reception by subscribers. Generally, a
    television station's "local market" is the Designated Market Area
    ("DMA") in which it is located.[^11] Each satellite carrier
    providing local-into-local service pursuant to the statutory
    copyright license is generally obligated to carry any qualified
    local television station in the particular DMA that has made a
    timely election for mandatory carriage, unless the station's
    programming is duplicative of the programming of another station
    carried by the carrier in the DMA or the station does not provide a
    good quality signal to the carrier's local receive facility.[^12]
    This is commonly referred to as the "carry one, carry all"
    requirement.[^13]

5.  The 2004 SHVERA gives satellite carriers the additional option to
    carry Commission-determined "significantly viewed" out-of-market
    signals to subscribers.[^14] The SHVERA requires the Commission to
    undertake several proceedings to implement new rules, revise
    existing rules, and conduct studies.[^15] This proceeding addresses
    three separate requirements of the SHVERA. We are addressing them in
    one item because they do not involve discretionary action by the
    Commission and, therefore, notice and comment procedures are
    unnecessary under the "good cause" exception to the APA.[^16] First,
    Section 202 of the SHVERA requires the Commission to implement the
    new Section 340(h), which prescribes rules for carriage elections on
    a county basis, unified retransmission consent negotiations, and
    notifications by satellite carriers to local broadcasters concerning
    carriage of significantly viewed signals.[^17]

6.  We also adopt two additional procedural rule changes mandated by
    Sections 205 and 209 of the SHVERA. Section 205 amends Section 338
    of the Communications Act to add subsection 338(h),[^18] which
    requires the Commission to revise its rules for satellite carriers'
    notices to station licensees when the carrier is going to initiate
    new local service. Section 209 of the SHVERA amends Section
    339(c)(4) of the Communications Act to require the Commission to
    exempt satellite carriers from the signal testing requirements
    mandated by this section when local-into-local service is
    available.[^19]

**II. DISCUSSION: RULE REVISIONS**

**A. Section 202: Implementation of Section 340(h)**

7.  On February 4, 2005, the Commission adopted a Notice of Proposed
    Rulemaking ("NPRM") to propose rules implementing the new Section
    340 of the Communications Act, which provides for satellite carriage
    of "significantly viewed" out-of-market signals.[^20] The instant
    proceeding implements rule revisions required by Section 340(h) that
    are related to the new significantly viewed carriage options.[^21]
    The SHVERA established a separate and more rapid timeframe for the
    Commission to implement the rule revisions required by Section
    340(h) than for the other significantly viewed rules. These
    provisions, in contrast to the rules required by Section 340(a)-(g),
    prescribe special notification requirements relating to the carriage
    election process. Pursuant to Section 325 of the Communications Act,
    stations elect between mandatory carriage and carriage pursuant to
    retransmission consent every three years.[^22] In general, when a
    station elects one or the other carriage option, the election
    pertains to carriage throughout the DMA.[^23] The rules required by
    Section 340(h) apply to satellite carriers that carry or intend to
    carry significantly viewed out-of-market signals, and they provide
    television stations with different carriage election options in
    counties and markets in which the satellite carrier is offering
    significantly viewed signals. The SHVERA requires that the rules be
    revised no later than October 30, 2005.[^24] However, as a practical
    matter, to allow for the 60 day notice that is required before the
    upcoming carriage election cycle, the revisions should be in place
    by August 1, 2005.[^25] These revisions simply reflect changes
    mandated by the SHVERA, so that notice and comment procedures are
    not required.[^26]

8.  Section 340(h)(1) provides that a television broadcast station may
    elect either retransmission consent or mandatory carriage separately
    for each county within the station's local market in which a
    satellite carrier provides local-into-local service if the satellite
    carrier has notified the station that it is carrying or intends to
    carry another affiliate of the same television network during the
    relevant election period in the station's local market.[^27] As a
    result of this rule revision, local stations will, for example, be
    able to elect mandatory carriage when the satellite carrier is
    offering or reserving the option to offer a significantly viewed
    signal affiliated with the same network in that county or a
    community in that county, and to elect carriage pursuant to
    retransmission consent in counties in which out-of-market affiliates
    of the same network will not be carried.[^28]

9.  Section 340(h)(2) requires that a television broadcast station
    making county-by-county elections under Section 340(h)(1) conduct a
    unified negotiation for the entire portion of its local market for
    which retransmission consent is elected.[^29] As a result of this
    revision, the broadcaster must inform the satellite carrier of all
    elections at once to allow satellite carriers to know where
    retransmission consent negotiations will be necessary and to conduct
    all such negotiations in a unified fashion with respect to any and
    all counties in the market in which retransmission consent is
    elected.[^30] The House Commerce Committee Report explained that the
    term "unified" does not set a particular time limit on the
    negotiations or require that they take place in one sitting, but is
    intended to require the broadcaster to "lay all its elections on the
    table at once so that the satellite operator can see the entire
    picture in anticipation of any retransmission consent negotiations
    that may be necessary in the communities where the broadcaster does
    not elect carry-one, carry all."[^31]

10. We revise Section 76.66 of the Commission's rules to implement
    Section 340(h)(3)(A), which provides that satellite carriage of a
    significantly viewed station is subject to the satellite carrier
    notifying any station affiliated with the same network as the
    significantly viewed station that the carrier may retransmit the
    significantly viewed station to subscribers in specified communities
    in that station\'s local market during the next election cycle, as
    required by Section 340(h)(1) and (2).[^32] With respect to markets
    in which local-into-local service was provided as of the date of
    SHVERA's enactment (December 8, 2004), the notification is to be at
    least 60 days before the carriage election date.[^33] With respect
    to markets in which local-into-local service is offered after
    December 8, 2004, the notification is to be provided at least 60
    days before the carrier introduces local-into-local service and at
    least 60 days before the next election cycle.[^34] Section
    340(h)(3)(A)(iii) provides that, commencing with the 2005 election
    cycle, a satellite carrier may only retransmit a signal during the
    election cycle if proper notice was given or it was retransmitting
    the signal into the local market as of the date notifications were
    due.[^35]

11. We also revise Section 76.66 to implement Section 340(h)(3)(B),
    which requires us to provide that if a satellite carrier notifies a
    station, pursuant to the new rules required by Section 340(h)(3)(A),
    that it reserves the right to retransmit an affiliate of the same
    network during the next election cycle, the station may choose
    either retransmission consent or mandatory carriage for any portion
    of the three year election cycle that is not covered by an existing
    retransmission consent agreement. [^36]

**B. Section 205: Implementation of Section 338(h)(2)(A)**

12. Section 205 of the SHVERA amends 47 U.S.C. § 338 to add subsection
    338(h)(2)(A), which requires us to revise Section 76.66(d)(2) of the
    Commission's rules, concerning satellite carrier notification to
    television broadcast stations in new local-into-local markets,
    within 180 days of SHVERA's enactment.[^37] Subsection 338(h)(2)(B)
    sets forth the contents of the required notice from satellite
    carriers to local stations when the carrier is about to commence
    service in a new local-into-local market.

13. The revised rule must require that the carrier's notice be sent to
    each station in a local market in which the carrier proposes to
    commence local-into-local service not later than 60 days before the
    local-into-local service will begin. The notice is required to
    include: (i) the carrier\'s intention to launch local-into-local
    service; (ii) the identity of the local market; (iii) the location
    of the carrier\'s proposed local receive facility for that local
    market; (iv) the station's right to elect mandatory carriage or
    grant retransmission consent; (v) that the station has 30 days from
    the date it receives the notice to make the election; and (vi) that
    failure to make such election will result in the loss of the right
    to demand carriage under this section for the remainder of the
    three-year carriage cycle.[^38] The purpose is to ensure that
    notices clearly indicate to local broadcasters the rights and
    responsibilities they have under the carry-one, carry-all provisions
    of the Communications Act and Commission regulations.[^39] Section
    338(h)(2)(C) further requires that the satellite carrier transmit
    the notice required by Section 338(h)(2)(B) via certified mail to
    the television station licensee's address listed in the Commission's
    consolidated database.[^40] The revised rule section implements each
    of the required provisions.[^41]

**C. Section 209: Implementation of Section 339(c)(4)(D)**

14. Section 209 of the SHVERA creates new Section 339(c)(4)(D) of the
    Communications Act.[^42] It requires the Commission to exempt
    satellite carriers from the signal testing requirements of Section
    339(c)(4)(A) when the request comes from a satellite subscriber in a
    market in which local-into-local service is offered.[^43] Signal
    testing was required by the SHVIA so that subscribers could attempt
    to demonstrate that they could not receive a signal of Grade B
    intensity or better and thereby qualify for a distant network
    signal.[^44] This requirement is revised by Section 204 of the
    SHVERA, which provides that where local-into-local service is
    offered, subscribers are not eligible to receive distant analog
    signals unless they were getting distant analog signals as of
    December 8, 2004.[^45] Consequently, there is no need for a signal
    strength test to measure whether the analog signal can be received
    at households in markets in which there is local-into-local service
    or such service is introduced before a subscriber seeks distant
    analog signals of network stations. Section 209, accordingly,
    requires the Commission to exempt satellite carriers from complying
    with the testing requirements in Section 339(c)(4)(A) of the
    Act.[^46] The rule implementing this requirement will be added to
    part 73 of the Commission's rules as part of the rules that codify
    the measurements and independent testing required by the SHVIA.[^47]

**III. PROCEDURAL MATTERS**

15. This document contains new information collection requirements
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. It will be submitted to the Office of Management and Budget
    (OMB) for review under Section 3507(d) of the PRA. OMB, the general
    public, and other Federal agencies are invited to comment on the new
    information collection requirements contained in this proceeding. In
    addition, we note that pursuant to the Small Business Paperwork
    Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. §
    3506(c)(4), we have not previously sought specific comment on how
    the Commission might "further reduce the information collection
    burden for small business concerns with fewer than 25 employees."
    However, this information collection does not affect businesses with
    fewer than 25 employees.  Accordingly, there is no impact pursuant
    to the Small Business Paperwork Relief Act of 2002.

16. Comments on the information collection requirements contained herein
    should be submitted to Cathy Williams, Federal Communications
    Commission, 445 12th St, S.W., Room 1-C823, Washington, D.C., 20554,
    or via the Internet to
    [Cathy.Williams@fcc.gov](mailto:Cindy.Williams@fcc.gov); and also to
    Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th
    Street, N.W., Washington, D.C. 20503, or via Internet to
    Kristy_L.\_LaLonde@omb.eop.gov, or via fax at 202-395-5167.

17. *Further Information.* For additional information concerning the PRA
    information collection requirements contained in this Order, contact
    Cathy Williams at 202-418-2918, or via the Internet to
    [Cathy.Williams@fcc.gov](mailto:Cindy.Williams@fcc.gov).

18. The Commission will send a copy of this Order in a report to be sent
    to Congress and the General Accountability Office pursuant to the
    Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A).

**IV. ORDERING CLAUSES**

19. Accordingly, IT IS ORDERED that pursuant to Section 202 of the
    Satellite Home Viewer Extension and Reauthorization Act of 2004,
    codified as Section 340(h) of the Communications Act of 1934, as
    amended, 47 U.S.C. § 340(h), Part 76.66(d)(5), IS ADDED, as set
    forth in the Rules Appendix. Rule Section 76.66(d)(5) contains a
    collection requirement under the PRA and is not effective until
    approved by OMB. The FCC will publish a document in the Federal
    Register announcing the effective date for this section.

20. IT IS FURTHER ORDERED that pursuant to Section 205 of the Satellite
    Home Viewer Extension and Reauthorization Act of 2004, codified as
    Section 338(h) of the Communications Act of 1934, as amended, 47
    U.S.C. § 338(h), Part 76.66(d)(2), IS AMENDED, as set forth in the
    Rules Appendix. Rule Section 47 C.F.R. § 76.66(d)(2) contains a
    collection requirement under the PRA and is not effective until
    approved by OMB. The FCC will publish a document in the Federal
    Register announcing the effective date for this section.

21. IT IS FURTHER ORDERED that pursuant to Section 209 of the Satellite
    Home Viewer Extension and Reauthorization Act of 2004, codified as
    Section 339(c)(4)(D) of the Communications Act of 1934, as amended,
    47 U.S.C. § 339(c)(4)(D), Section 73.683(f), IS ADDED, as set forth
    in the Rules Appendix. Rule Section 47 C.F.R. § 73.683(f) shall
    become effective 30 days after publication in the Federal Register.

22. For additional information regarding this proceeding, contact Eloise
    Gore, Media Bureau, (202) 418-7200 or via the Internet at
    <eloise.gore@fcc.gov>.

FEDERAL COMMUNICATONS COMMISSON

Marlene H. Dortch

Secretary

**APPENDIX**

[Rule Amendments]{.underline}

**Part 73 of Title 47 of the Code of Federal Regulations is amended to
read as follows:**

PART 73 -- Radio Broadcast Services

1.  The authority citation for Part 73 is amended to read as follows:

AUTHORITY: 47 U.S.C. 154, 303, 334, 336 and **339**.

2.  Part 73 of the Commission's Rules is amended to read as follows:

Subpart E -- Television Broadcast Stations.

\* \* \* \* \*

3\. Section 73.683 is amended to read as follows:

**§ 73.683 Field strength contours and presumptive determination of
filed strength at individual locations.**

**\* \* \* \* \***

**(f) A satellite carrier is exempt from the verification requirements
of 47 U.S.C. 339(c)(4)(A) with respect to a test requested by a
satellite subscriber to whom the retransmission of the signals of local
broadcast stations is available under 47 U.S.C. 338 from such carrier.
The definitions of satellite carrier, subscriber, and local-into-local
television service contained in 47 C.F.R. 76.66(a) apply to this
paragraph.**

4\. Part 76 of Title 47 of the Code of Federal Regulations is amended to
read as follows:

PART 76 -- Multichannel Video and Cable Television Service

> 5\. The authority citation for Part 76 is amended to add the
> following:

AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308,
309, 312, 315, 325, 339, **[340]{.underline}**, 503, 521, 522, 531, 532,
534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558,
560, 561, 571, 572, 573.

> 6\. Part 76 of the Commission's Rules is amended as follows:

Subpart D -- Carriage of Television Broadcast Signals

7\. Section 76.1 is amended to add the following:

**§ 76.1 Purpose.**

\* \* \* \* \* **The rules and regulations in this part also describe
broadcast carriage requirements for cable operators and satellite
carriers.**

8\. Section 76.66 is amended as follows:

**\* \* \* \* \***

(d)(2) *[New local-into-local service]{.underline}*. (i) A new satellite
carrier or a satellite carrier providing local service in a market for
the first time after July 1, 2001, **shall inform each television
broadcast station licensee within any local market in which a satellite
carrier proposes to commence carriage of signals of stations from that
market, not later than 60 days prior to the commencement of such
carriage:**

**(A) of the carrier\'s intention to launch local-into-local service
under section 338 of title 47, United States Code, in a local market,
the identity of that local market, and the location of the carrier\'s
proposed local receive facility for that local market;**

**(B) of the right of such licensee to elect carriage under this section
or grant retransmission consent under section 325(b) of title 47, United
States Code;**

**(C) that such licensee has 30 days from the date of the receipt of
such notice to make such election; and**

**(D) that failure to make such election will result in the loss of the
right to demand carriage under section 338 for the remainder of the
3-year cycle of carriage under section 325.**

**(ii) Satellite carriers shall transmit the notices required by
paragraph (d)(2)(i) of this section via certified mail to the address
for such television station licensee listed in the consolidated database
system maintained by the Commission.**

**\* \* \* \* \***

(d)(5) *Elections in Markets in which Significantly Viewed Signals are
Carried*. (i) Beginning with the election cycle described in paragraph
(c)(2) of this section, the retransmission of significantly viewed
signals pursuant to section 340 of title 47, United States Code, by a
satellite carrier that provides local-into-local service is subject to
providing the notifications to stations in the market pursuant to
paragraphs (A) and (B) below, unless the satellite carrier was
retransmitting such signals as of the date these notifications were due.
The definition of significantly viewed signals contained in section
76.54 of this part applies to this paragraph.

\(A\) In any local market in which a satellite carrier provided
local-into-local service on December 8, 2004, at least 60 days prior to
any date on which a station must make an election under paragraph (c) of
this section, the notification must identify each affiliate of the same
television network that the carrier reserves the right to retransmit
into that station's local market pursuant to section 340 during the next
election cycle and, for each such affiliate, the communities into which
the satellite carrier reserves the right to make such retransmissions;

\(B\) In any local market in which a satellite carrier commences
local-into-local service after December 8, 2004, at least 60 days prior
to the commencement of service in that market, and thereafter at least
60 days prior to any date on which the station must thereafter make an
election under paragraph (c) or (d)(2) of this section, the notification
must identify each affiliate of the same television network that the
carrier reserves the right to retransmit into that station's local
market pursuant to section 340 during the next election cycle.

(ii)A television broadcast station located in a market in which a
satellite carrier provides local-into-local television service may
elect, with respect to the carrier, either retransmission consent or
mandatory carriage separately for each county within the station's local
market if the satellite carrier provided notice to the station, pursuant
to paragraph (d)(5)(i) of this section, that it intends to carry another
affiliate of the same network pursuant to section 340 during the
relevant election cycle, or was carrying an affiliate of the same
network pursuant to section 340 in the station's local market on the
date notification was due.

\(iii\) A television broadcast station that elects mandatory carriage
for one or more counties in its market and elects retransmission consent
for one or more other counties in its market pursuant to paragraph
(d)(5)(ii) of this section shall conduct a unified negotiation for the
entire portion of its local market for which retransmission consent is
elected.

\(iv\) A television broadcast station that receives a notification from
a satellite carrier pursuant to paragraph (d)(5)(i) of this section with
respect to an upcoming election cycle may choose either retransmission
consent or mandatory carriage for any portion of the 3-year election
cycle that is not covered by an existing retransmission consent
agreement.

\* \* \* \* \*

[^1]: The SHVERA was enacted on December 8, 2004 as part of the
    Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, § 202,
    118 Stat. 2809, 3393 (2004) (to be codified in scattered sections of
    17 and 47 U.S.C.).

[^2]: 47 U.S.C. § 340(h) (*as amended by* Section 202 of the SHVERA); 47
    U.S.C. § 338(h) (*as amended by* Section 205 of the SHVERA); 47
    U.S.C. § 339 (c)(4)(D) (*as amended by* Section 209 of the SHVERA).

[^3]: *See* 5 U.S.C. § 553(b)(B). *See, e.g., Metzenbaum v. Federal
    Energy Regulatory Commission*, 675 F.2d 1282, 1291 (DC Cir. 1982)
    (agency order, issued pursuant to congressional waiver of certain
    provisions of federal law that would otherwise have governed
    construction and operation of Alaskan natural gas pipeline, was
    appropriately issued without notice and comment as a
    nondiscretionary ministerial action);* *In the Matter of
    Implementation of Section 505 of the Telecommunications Act of 1996
    (Scrambling of Sexually Explicit Adult Video Service Programming, 11
    FCC Rcd 5386, 5387 (1996); In the Matter of Implementation of
    Sections 204(A) and 204(C) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures), 11 FCC Rcd 6363, 6364
    (1996); In the Matter of Implementation of Sections 202(A) and
    202(B)(1) of the Telecommunications Act of 1996 (Broadcast Radio
    Ownership), 11 FCC Rcd 12368, 12371 (1996); In the Matter of
    Implementation of Sections 202(c)(1) and 202(e) of the
    Telecommunications Act of 1996 (National Broadcast Television
    Ownership and Dual Network Operations), 11 FCC Rcd 12374, 12377
    (1996).

[^4]: *See* 17 U.S.C. §§ 119 and 122.

[^5]: *See* 47 U.S.C. §§ 325, 338, 339, and 340.

[^6]: The Satellite Home Viewer Act of 1988, Pub. L. No. 100-667, 102
    Stat. 3935, Title II (1988) (codified at 17 U.S.C. §§ 111, 119). The
    1988 SHVA was enacted on November 16, 1988, as an amendment to the
    copyright laws.

[^7]: *See* 17 U.S.C. § 119(a).

[^8]: The Satellite Home Viewer Improvement Act of 1999, Pub. L. No
    106-113, 113 Stat. 1501 (1999) (codified in scattered sections of 17
    and 47 U.S.C.). The SHVIA was enacted on November 29, 1999, as Title
    I of the Intellectual Property and Communications Omnibus Reform Act
    of 1999 ("IPACORA") (relating to copyright licensing and carriage of
    broadcast signals by satellite carriers).

[^9]: *See* 17 U.S.C. §§ 119 and 122.

[^10]: *See* 47 U.S.C. §§ 325, 338 and 339.

[^11]: DMAs, which describe each television market in terms of a unique
    geographic area, are established by Nielsen Media Research based on
    measured viewing patterns. *See* 17 U.S.C. § 122(j)(2).

[^12]: *See* 47 U.S.C. § 338.

[^13]: Section 338 of the Communications Act, adopted as part of the
    1999 SHVIA, requires satellite carriers, by January 1, 2002, "to
    carry upon request all local television broadcast stations' signals
    in local markets in which the satellite carriers carry at least one
    television broadcast station signal," subject to the other carriage
    provisions contained in the Act. 47 U.S.C. § 338.

[^14]: Section 102 of the SHVERA extends the statutory copyright license
    contained in 17 U.S.C. § 119(a) to apply to "significantly viewed"
    out-of-market signals. 17 U.S.C. § 119(a)(3)(A). *See also*
    Implementation of the Satellite Home Viewer Extension and
    Reauthorization Act of 2004, Implementation of Section 340 of the
    Communications Act, MB Docket No. 05-49 ("SHVERA NPRM"), FCC 05-24,
    2005 WL 289026 ¶ 7 (rel. Feb. 7, 2005).

[^15]: This proceeding to implement Sections 202, 205, and 209 of the
    SHVERA is one of a number of Commission proceedings that will be
    required to implement the SHVERA. The other proceedings will be
    undertaken and largely completed in 2005. *See* SHVERA NPRM;
    Sections 202, 204, 205, 207, 208, 209 and 210 of the SHVERA; s*ee
    also* Public Notice, "Media Bureau Seeks Comment For Inquiry
    Required By the SHVERA on Rules Affecting Competition In the
    Television Marketplace," MB Docket No. 05-28, DA 05-169 (rel. Jan.
    25, 2005); and Implementation of Section 207 of the Satellite Home
    Viewer Extension and Reauthorization Act of 2004, Reciprocal
    Bargaining Obligations, MB Docket No. 05-89, FCC 05-49 (rel. Mar. 7.
    2005).

[^16]: *See* 5 U.S.C. § 553(b)(B) and *supra* n. 3.

[^17]: *See* 47 U.S.C. § 340(h) (*as amended* by Section 202 of the
    SHVERA). Section 102 of the SHVERA amends 17 U.S.C. § 119(a) to
    create new subsection (a)(3), entitled "secondary transmissions of
    significantly viewed signals." 17 U.S.C. § 119(a)(3). Section 202 of
    the SHVERA amends the Communications Act to create a new Section
    340, entitled "Significantly Viewed Signals Permitted To Be
    Carried." 47 U.S.C. § 340.

[^18]: *See* 47 U.S.C. § 338(h) (*as amended* *by* Section 205 of the
    SHVERA).

[^19]: *See* 47 U.S.C. § 339(c)(4)(D) (*as amended by* Section 209 of
    the SHVERA).

[^20]: SHVERA NPRM, MB Docket No. 05-49, FCC 05-24, 2005 WL 289026 (rel.
    Feb. 7, 2005).

[^21]: *Id.* at 2, n. 4.

[^22]: *See* 47 U.S.C. § 325(b)(3).

[^23]: *Id.* *See also* 47 C.F.R. § 76.66(c) and (d).

[^24]: 47 U.S.C. § 340(h)(1).

[^25]: 47 U.S.C. § 325(b)(3)(C). *See* 47 C.F.R. § 76.66(c)(3). *See
    also* 76.66(c)(4) ("Except as provided for in paragraphs 76.66(d)(2)
    and (3), local commercial television broadcast stations shall make
    their retransmission consent-mandatory carriage election by October
    1^st^ of the year preceding the new cycle for all election cycles
    after the first election cycle.") The second election cycle
    commences January 1, 2006 for a three year period. 47 C.F.R. §
    76.66(c)(2).

[^26]: *See supra* n. 3 (citing prior rules that were adopted without
    notice and comment because the Commission had no discretion).

[^27]: *See* 47 U.S.C. § 340(h)(1), which states that "the Commission
    shall, no later than October 30, 2005, revise section 76.66 of its
    regulations (47 CFR 76.66), concerning satellite broadcast signal
    carriage, to permit (at the next cycle of elections under section
    325) a television broadcast station that is located in a local
    market into which a satellite carrier retransmits a television
    broadcast station pursuant to section 338, to elect, with respect to
    such satellite carrier, between retransmission consent pursuant to
    such section 325 and mandatory carriage pursuant to section 338
    separately for each county within such station's local market, if --
    (A) the satellite carrier has notified the station, pursuant to
    paragraph \[340(h)\](3), that it intends to carry another affiliate
    of the same network pursuant to this section during the relevant
    election period in the station's local market; or (B) on the date
    notification under paragraph \[340(h)\](3) was due, the satellite
    carrier was retransmitting into the station's local market pursuant
    to this section an affiliate of the same television network."

[^28]: *See* 47 U.S.C. § 340(h)(1). Where this new provision is
    inapplicable, carriage elections are effective on a market-wide
    basis. *See* House Commerce Committee Report dated July 22, 2004,
    accompanying House Bill, H.R. 4501, 108^th^ Cong. (2004), H.R. Rep.
    No. 108-634, at 16 (2004) ("*House Commerce Committee Report*").
    There was no final Report issued to accompany the bill as it was
    enacted. *See* House Bill, H.R. 4818, 108^th^ Cong. (2004)
    (enacted). Therefore, we look to the House Commerce Committee Report
    accompanying the House Bill, H.R. 4501, for the relevant legislative
    history for Section 202 of the SHVERA. Although certain changes were
    made to H.R. 4501 before it was enacted, the House Commerce
    Committee Report language remains relevant with respect to those
    provisions that were unchanged. *See also* The Honorable Fred Upton,
    Chairman, House Subcommittee on Telecommunications and the Internet,
    "Floor Statement" (dated Oct. 6, 2004) to H.R. 4518 (The Satellite
    Home Viewer Extension and Reauthorization Act of 2004) ("*Upton
    Floor Statement*") at 2.

[^29]: *See* 47 U.S.C. § 340(h)(2), which states that "in revising its
    regulations as required by paragraph \[340(h)\](1), the Commission
    shall provide that any such station shall conduct a unified
    negotiation for the entire portion of its local market for which
    retransmission consent is elected."

[^30]: *See* 47 U.S.C. § 340(h)(2).

[^31]: The Commerce Committee Report states that the section is intended
    to ease the administrative burden on the satellite operator by
    requiring a unified negotiation between the satellite operator and
    broadcaster. *House Commerce Committee Report* at 16. *See also
    Upton Floor Statement* at 2-3.

[^32]: *See* 47 U.S.C. § 340(h)(3)(A). *See* Section
    76.66(d)(5)(i)-(iii) in the Appendix.

[^33]: *See* 47 U.S.C. § 340(h)(3)(A)(i), which provides that "a
    satellite carrier's retransmission of television broadcast stations
    pursuant to this section shall be subject to the following
    limitations: (i) In any local market in which the satellite carrier
    provides service pursuant to section 338 on the date of enactment of
    the \[SHVERA\], the carrier may notify a television broadcast
    station in that market, at least 60 days prior to any date on which
    the station must thereafter make an election under Section 76.66 of
    the Commission's regulations (47 CFR 76.66), of (I) each affiliate
    of the same television network that the carrier reserves the right
    to retransmit into that station's local market pursuant to this
    section during the next election cycle under such section of such
    regulations; and (II) for each such affiliate, the communities into
    which the satellite carrier reserves the right to make such
    retransmissions." *See also* 47 C.F.R. § 76.66(c)(2) and (d)(2).

[^34]: *See* 47 U.S.C. § 340(h)(3)(A)(ii), which provides that "in any
    local market in which the satellite carrier commences service
    pursuant to section 338 after the date of enactment of the
    \[SHVERA\], the carrier may notify a station in that market, at
    least 60 days prior to the introduction of such service in that
    market, and thereafter at least 60 days prior to any date on which
    the station must thereafter make an election under section 76.66 of
    the Commission's regulations (47 CFR 76.66), of each affiliate of
    the same television network that the carrier reserves the right to
    retransmit into that station's local market during the next election
    cycle under such section of such regulations."

[^35]: *See* 47 U.S.C. § 340(h)(3)(A)(iii), which provides that
    "beginning with the 2005 election cycle, a satellite carrier may
    only retransmit pursuant to this section during the pertinent
    election period a signal \-- (I) as to which it has provided the
    notifications set forth in clauses (i) and (ii); or (II) that it was
    retransmitting into the local market under this section as of the
    date such notifications were due." The "2005 election cycle" refers
    to the second retransmission consent-mandatory carriage election for
    the second election cycle for satellite carriers, which commences on
    January 1, 2006 and ends on December 31, 2008. *See* 47 C.F.R. §
    76.66(c)(2). The election for the 2005 election cycle must be made
    by October 1, 2005 because all elections other than the first
    election must be made by October 1^st^ of the year preceding the new
    cycle. *See* 47 C.F.R. § 76.66(c)(4).

[^36]: *See* 47 U.S.C. § 340(h)(3)(B), which provides that "if a
    satellite carrier notifies a television broadcast station that it
    reserves the right to retransmit an affiliate of the same television
    network during the next election cycle pursuant to this section, the
    station may choose between retransmission consent and mandatory
    carriage for any portion of the 3-year election cycle that is not
    covered by an existing retransmission consent agreement." *See*
    Section 76.66(d)(5)(iv) in the Appendix.

[^37]: *See* 47 U.S.C. § 338(h)(2)(A) (*as amended by* Section 205 of
    the SHVERA), which provides that "within 180 days after the date of
    enactment of the \[SHVERA\], the Commission shall revise the
    regulations under this section relating to notice to broadcast
    station licensees to comply with the requirements of this
    paragraph." *See also* 47 C.F.R. § 76.66(d)(3). The SHVERA was
    enacted on December 8, 2004, and 180 days from December 8 is June 6,
    2005.

[^38]: *See* 47 U.S.C. § 338(h)(2)(B) (*as amended by* Section 209 of
    the SHVERA), which provides that "the notice required by such
    regulations shall inform each television broadcast station licensee
    within any local market in which a satellite carrier proposes to
    commence carriage of signals of stations from that market, not later
    than 60 days prior to the commencement of such carriage\--(i) of the
    carrier's intention to launch local-into-local service under this
    section in a local market, the identity of that local market, and
    the location of the carrier's proposed local receive facility for
    that local market; (ii) of the right of such licensee to elect
    carriage under this section or grant retransmission consent under
    section 325(b); (iii) that such licensee has 30 days from the date
    of the receipt of such notice to make such election; and (iv) that
    failure to make such election will result in the loss of the right
    to demand carriage under this section for the remainder of the
    3-year cycle of carriage under section 325."

[^39]: *House Commerce Committee Report* at 18-19.

[^40]: *See* 47 U.S.C. § 338(h)(2)(C) (*as amended by* Section 209 of
    the SHVERA), which provides that "such regulations shall require
    that each satellite carrier shall transmit the notices required by
    such regulation via certified mail to the address for such
    television station licensee listed in the consolidated database
    system maintained by the Commission."

[^41]: *See* Section 76.66(d)(2) in the Appendix.

[^42]: *See* 47 U.S.C. § 339(c)(4)(D) (*as amended by* Section 209 of
    the SHVERA).

[^43]: *See* *id.*, which provides that "section 339(c)(4) of the
    Communications Act of 1934 is amended by inserting after
    subparagraph (C) the following new subparagraph (D), Reduction of
    Verification Burdens, which provides that "within one year after the
    date of enactment of the \[SHVERA\], the Commission shall by rule
    exempt from the verification requirements of subparagraph (A) any
    request for a test made by a subscriber to a satellite carrier to
    whom the retransmission of the signals of local broadcast stations
    is available under section 338 from such carrier."

[^44]: *See* 47 U.S.C. § 339(c)(4) (*as amended by* Section 1008 of the
    SHVIA (1999)).

[^45]: *See* 47 U.S.C. § 339(a)(2)(A) and (B) (*as amended by* Section
    204 of the SHVERA).

[^46]: There are no existing rules for satellite carriers to conduct
    tests. The requirement was created by the SHVIA and is in the
    Communications Act.

[^47]: *See* Section 73.683(f) in the Appendix. *See also* 47 C.F.R. §
    73.683(d) and (e) and 47 U.S.C. § 339(c)(A)(3) and (4)(B), as
    enacted by Section 1008 of the SHVIA.