Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of : )

)

Implementation of the Satellite Home Viewer )

Improvement Act of 1999 )

)

Enforcement Procedures for Retransmission )

Consent Violations )

# ORDER

##  Adopted: January 27, 2000 Released: January 28, 2000

By the Commission:

### I. INTRODUCTION

1\. In this order, we adopt procedural rules to implement new Section
325(e) of the Communications Act of 1934, as amended, added by Section
1009 of the Satellite Home Viewer Improvement Act ("SHVIA").[^1] Section
325(e) provides the procedures by which the Commission shall process
complaints by television broadcast stations alleging that a satellite
carrier has retransmitted local television signals without the stations'
consent in violation of Section 325(b)(1) of the Act, as amended by the
SHVIA.

### II. BACKGROUND

2\. Section 1009 of SHVIA amends Section 325(b)(1) of the Communications
Act to provide, [inter]{.underline} [alia]{.underline}, that satellite
carriers may not retransmit the signal of a broadcast station, or any
part thereof, except: (1) with the express authority of the originating
station; or (2) if the station has asserted must carry rights under
Section 338. Section 1009 further provides that, pursuant to Section
325(b)(2), retransmission consent is not required for satellite
retransmission of noncommercial stations; certain superstations under
specified circumstances; and, until December 31, 2004, network stations
retransmitted outside the station's local market to "unserved"
households.[^2] In addition, for six months following enactment of the
SHVIA, retransmission consent is not required for satellite
retransmission of a local station within the station's local market.[^3]
After the conclusion of this six month period,[^4] satellite carriers
will be required to obtain retransmission consent to carry these
local-into-local retransmissions.

3\. Section 1009 also adds a new subsection (e) to Section 325 of the
Communications Act. New subsection 325(e) creates a set of expedited
enforcement procedures for the alleged retransmission of a television
broadcast station in its own local market without the station's consent
in violation of Section 325 (b)(1). The new provision requires that a
final Commission decision be issued in response to such complaints
within 45 days. The statute sets out explicit procedures for these
complaints, which will take effect on May 29, 2000.[^5] The expedited
enforcement provision contains a sunset date which precludes the filing
of any complaint with the Commission under this section after December
31, 2001.

### III. DISCUSSION

III. 

4\. These procedural rules track the statutory requirements and
incorporate two additional provisions designed to facilitate enforcement
of the statutory requirements. The statute specifies that the procedures
apply to a complaint by a television broadcast station alleging
retransmission of its signal "to any person in the local market of such
station" . . . "after the expiration of the 6-month period."[^6] The
statute further requires that the station provide its name, address and
call letters; the name and address of the satellite carrier; the dates
on which the retransmission allegedly occurred; the street address of at
least one person in the local market to whom the retransmission was
allegedly made; a statement that the retransmission was not authorized;
and the name and address of the station's legal counsel.[^7] The statute
provides that the satellite carrier is deemed to have designated the
Secretary of the Commission as its agent for service of process and
allows the station to serve the satellite carrier with the complaint by
filing with the Commission and serving a copy on the satellite carrier
by specified means.[^8] The statute requires the satellite carrier to
file an answer with the Commission within five business days.[^9] The
statute enumerates the exclusive defenses that are available to a
satellite carrier: 1) that the satellite carrier did not retransmit the
station to any person in the local market during the specified time; 2)
that the station had expressly authorized retransmission in writing; 3)
that the retransmission was made after January 1, 2002 and the station
had elected to assert a right to carriage; and 4) the station being
retransmitted is a noncommercial station.[^10] The statute provides that
the retransmission of a particular station on a particular day to one or
more persons constitutes a separate violation and places the burden of
proof on the station to establish that the satellite carrier
retransmitted the station to at least one person on the day
alleged.[^11] The statute further provides that the satellite carrier
has the burden of proof with respect to defenses 2, 3, and 4, as
enumerated, above.[^12] The statute requires the Commission to determine
whether the satellite carrier in question has retransmitted the station
to at least one person in the station's local market and has not proven
one of the defenses. If the Commission so determines, it must make a
finding and issue a cease and desist order within 45 days after the
filing of the complaint.[^13]

5.  The first additional provision incorporated in the rules requires
    each satellite carrier to provide the Commission\'s Secretary with
    current identifying information about its chief executive officer.
    This provision will facilitate service of complaints on satellite
    carriers in an expeditious manner within the statutorily mandated
    timeframe. The second additional provision requires that, to
    facilitate Commission oversight of remedial measures, satellite
    carriers found to have violated the statute must file a report
    regarding their remedial efforts to come into compliance. This
    latter provision is needed to enable the Commission to quickly
    determine that the satellite carrier is complying and may therefore
    resume authorized retransmissions.

6\. The local retransmission consent complaints filed under Section
325(e) will be handled by the Cable Services Bureau.

> **IV. PAPERWORK REDUCTION ACT**

7\. This Order contains new information collections 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 or modified information
collections contained in this proceeding. Comments should address: (a)
whether the new or modified 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; and (d) ways to
minimize the burden of the collection of information on the respondents,
including the use of automated collection techniques and other forms of
information technology. Written comments by the public on the new
information collections are due 60 days after date of publication in the
Federal Register. In addition to filing comments with the Office of the
Secretary, commenters should submit a copy of any comments on the
information collections contained herein to Judy Boley, Federal
Communications Commission, Room 1-C804, 445 12^th^ Street, SW,
Washington, DC 20554, or via the Internet at jboley@fcc.gov.

### V. ORDERING CLAUSE

8\. Accordingly, IT IS ORDERED that pursuant to Section 1009 of the
Satellite Home Viewer Improvement Act of 1999, codified as Section
325(e) of the Communications Act of 1934, as amended, 47 U.S.C. Section
325(e), Part 1.6000, [et seq]{.underline}., IS ADDED, as set forth in
the Rules Appendix. The rules will become effective May 30, 2000, except
for 47 C.F.R. Section 1.6010, which contain information collection
requirements that are not effective until approved by the Office of
Management and Budget.[^14] Notice and comment is not required by the
Administrative Procedure Act because the rules are procedural. 5 U.S.C.
Section 553(b)(A). In any event, because of the 60-day statutory
deadline and the ministerial nature of the rules implementing the
statutory requirements, we find for good cause that notice and comment
is impracticable under 5 U.S.C. Section 553 (b)(B).

9\. For additional information regarding this proceeding, contact Eloise
Gore, Cable Services Bureau, (202) 418-7200 or via the Internet at
egore@fcc.gov.

####  FEDERAL COMMUNICATIONS COMMISSION

.

Magalie Roman Salas

Secretary

RULES APPENDIX

Rule Changes

Part 1 of Title 47 of the Code of Federal Regulations is amended to read
as follows:

PART 1 \-- Practice and Procedure.

1.  The authority citation for Part 1 is amended to add the following:

AUTHORITY: 47 U.S.C. § 325(e).

2\. Part 1 of the Commission's Rules is amended to add the following:

**Subpart U -- Implementation of Section 325(e) of the Communications
Act: Procedures Governing Complaints Filed by Television Broadcast
Stations Against Satellite Carriers for Retransmission Without
Consent.**

**§ 1.6000 [Purpose]{.underline}.**

The purpose of Part 1, Subpart U, is to implement Section 325(e) of the
Communications Act of 1934, as amended, 47 U.S.C. § 325(e),
[et]{.underline} [seq.]{.underline}, as added by Section 1009 of the
Satellite Home Viewer Improvement Act of 1999, Public Law No. 106-113, §
1000(9), 113 Stat. 1501, Appendix I (1999). The procedures set forth in
this subpart supersede 47 U.S.C. § 312.

**§ 1.6001 [Retransmission Consent Complaint Procedures.]{.underline}**

[By Whom]{.underline}. If a television broadcast station believes that a
satellite carrier has retransmitted its broadcast station's signal to
any person in the local market of such station in violation of 47 U.S.C.
§ 325 (b)(1), the station may file a complaint with the Commission under
this rule subpart.

**§ 1.6002 [Form and Content]{.underline}.**

\(a\) The following format shall be used for complaints of this type:

Before the Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Complainant,

v\.

Defendant

File No. (to be inserted by the staff)

# Complaint

To: The Commission.

The complainant (here insert the name, address, and call letters of the
complaining television broadcast station) avers that: on (here insert
the dates upon which the alleged transmission occurred), retransmission
of the broadcast television station's signal was made by (insert here
name and address of the satellite carrier) to (here insert the street
address of at least one person in the local market of the station to
whom the alleged retransmission was made). The complainant avers that
(here insert a statement that the retransmission was not expressly
authorized by the television broadcast station), and requests that the
appropriate relief be granted by the Commission, as provided by the
pertinent provisions of the Communications Act of 1934, as amended, and
the Commission's Rules.

Date:

(here insert the name and address of counsel for the complaining
station).

\(b\) A complaint lacking any of the foregoing information shall be
dismissed by the FCC without prejudice to the complaining station.

\(c\) Additional information may be provided, and, where applicable,
should conform to the requirements set forth in §§ 1.48 through 1.52 of
the Commission's Rules.

**§ 1.6003 [Service Requirements.]{.underline}**

\(a\) [General]{.underline}. Pursuant to 47 U.S.C. § 325(e), for
purposes of any proceeding under this subsection, any satellite carrier
that retransmits the signal of any broadcast station shall be deemed to
designate the Secretary of the Commission as its agent for service of
process.

\(b\) [Specific]{.underline}. (1) A television broadcast station shall
serve a satellite carrier with a complaint concerning an alleged
violation of 47 U.S.C. § 325(b)(1) by filing the original and two copies
of the complaint on the Secretary of the Commission and serving a copy
of the complaint by means of two commonly used overnight delivery
services, each addressed to the chief executive officer of the satellite
carrier at its principal place of business and each marked "URGENT
LITIGATION MATTER" on the outer packaging. Service shall be deemed
complete one business day after a copy of the complaint is provided to
the delivery services for overnight delivery. On receipt of a complaint
filed by a television broadcast station under this subsection, the
Secretary of the Commission shall send the original complaint by United
States mail, postage prepaid, receipt requested, addressed to the chief
executive officer of the satellite carrier at its principal place of
business.

\(2\) Satellite carriers shall provide the name, address, and telephone
number (including area code) of their chief executive officers to the
Secretary of the Commission, no later than April 15, 2000. Satellite
carriers shall update this information, as necessary, in the event that
the identity or the address of their respective chief executive officers
changes. These updates shall be made by United States mail within seven
(7) days of such changes. Complaints sent to the last known address
shall be deemed served if the satellite carrier fails to notify the
Secretary of the Commission in accordance with this provision.

**§ 1.6004 [Answers]{.underline}.**

Within five (5) business days after the date of service, without regard
to § 1.4 of this part, the satellite carrier shall file its answer with
the Commission, and shall contemporaneously serve the answer upon
counsel designated in the complaint, at the address listed for such
counsel in the complaint. Service of the answer shall be made by use of
one commonly used overnight delivery service and by the United States
mail.

**§ 1.6005 [Exclusive Defenses]{.underline}.**

\(a\) The defenses listed below, in subsections (1)-(4) of this
paragraph, are the only defenses available to a satellite carrier
against which a complaint under this section is filed.

\(1\) The satellite carrier did not retransmit the television broadcast
station's signal to any person in the "local market" of the television
broadcast station, as that term is defined in 17 U.S.C. § 122(j)
(Designated Market Area as determined by Nielsen Media Research and
county containing the station's community of license), during the time
period specified in the complaint;

\(2\) the television broadcast station had, in a writing signed by an
officer of the television broadcast station, expressly authorized the
retransmission of the station by the satellite carrier to each person in
the "local market" of the television broadcast station, as that term is
defined in 17 U.S.C. § 122(j), to which the satellite carrier made such
retransmissions for the entire time period during which it is alleged
that a violation of 47 U.S.C. § 325 (b)(1) has occurred;

\(3\) the retransmission was made after January 1, 2002, and the
television broadcast station had elected to assert the right to carriage
under 47 U.S.C. § 338 as against the satellite carrier for the relevant
period; or

\(4\) the television broadcast station whose signal is being
retransmitted is a noncommercial television broadcast station.

**§ 1.6006 [Counting of Violations]{.underline}.**

Each day of retransmission without consent of a particular television
broadcast station to one or more persons in the local market of the
station shall be considered a separate violation of 47 U.S.C. § 325
(b)(1).

**§ 1.6007 [Burden of Proof]{.underline}.**

With respect to each alleged violation, the burden of proof shall be on
a television broadcast station to establish that the satellite carrier
retransmitted the station to at least one person in the local market of
the station on the day in question. The burden of proof shall be on the
satellite carrier with respect to all defenses other than the defense
under § 1.6005(a)(1).

**§ 1.6008 [Determinations]{.underline}.**

\(a\) [In General]{.underline}. Within forty five (45) days after the
filing of a complaint, the Commission shall issue a final determination
in any proceeding brought under this subsection. The Commission's final
determination shall specify the number of violations committed by the
satellite carrier. The Commission shall hear witnesses only if it
clearly appears, based on the written filings by the parties, that there
is a genuine dispute about material facts. Except as provided in the
preceding sentence, the Commission may issue a final ruling based on the
written filings by the parties.

\(b\) [Discovery]{.underline}. The Commission may direct the parties to
exchange pertinent documents, and if necessary, to take prehearing
depositions, on such schedule as the Commission may approve, but only if
the Commission first determines that such discovery is necessary to
resolve a genuine dispute about material facts, consistent with the
obligation to make a final determination within forty five (45) days. In
this connection, the Commission may utilize the discovery or other
evidentiary procedures set forth in Sections 1.311 through 1.364 of the
Commission's Rules.

**§ 1.6009 [Relief]{.underline}.**

If the Commission determines that a satellite carrier has retransmitted
the television broadcast station to at least one person in the local
market of such station and has failed to meet its burden of proving one
of the defenses under § 1.6005 (a)(2)-(4) with respect to such
retransmission, the Commission shall:

\(a\) make a finding that the satellite carrier violated 47 U.S.C. §
325(b)(1) with respect to that station; and

\(b\) issue an order, within forty-five (45) days after the filing of
the complaint, containing---

\(1\) a cease-and-desist order directing the satellite carrier
immediately to stop making any further retransmissions of the television
broadcast station to any person within the local market of such station
until such time as the Commission determines that the satellite carrier
is in compliance with 47 U.S.C. § 325(b)(1) with respect to such
station;

\(2\) If the satellite carrier is found to have violated 47 U.S.C. §
325(b)(1) with respect to more than two television broadcast stations, a
cease-and-desist order directing the satellite carrier to stop making
any further retransmission of any television broadcast station to any
person within the local market of the stations identified in the
cease-and-desist order, until such time as the Commission, after giving
notice to the station, determines that the satellite carrier is in
compliance with 47 U.S.C. § 325(b)(1) with respect to such stations; and

\(3\) An award to the complainant of that complainant's costs and
reasonable attorney's fees. Such award shall be made only after the
complainant submits appropriate documentation in support of its request.

\(c\) Any cease-and-desist order issued hereunder shall include a
statement of findings and the grounds therefor, shall specify the
effective date of the order, and shall be served by the Commission upon
the satellite carrier to which such order is directed.

**§ 1.6010 [Reporting of Remedial Measures]{.underline}.**

Any satellite carrier found to have violated Section 47 U.S.C. §
325(b)(1) shall, upon receipt of the cease-and-desist order, immediately
take all necessary steps to comply with the statute. Within two (2) days
of receipt of the cease-and-desist order, the satellite carrier shall
notify the Secretary of the Commission of steps taken to comply with the
statute by written submission. The submission certified by the satellite
carrier's chief executive officer shall also contain a copy of the
pertinent cease-and-desist order, and shall be delivered to the
Secretary of the Commission by means of one commonly used overnight
delivery service, in addition to a copy delivered by United States mail.

**§ 1.6011 [Effective Date.]{.underline}**

The rules in § 1.6000 through § 1.6009 shall become effective May 30,
2000**.** Section 1.6010 contains information collection requirements
that are not effective until approved by the Office of Management and
Budget. (The effective date for this section will be announced by the
Commission in the Federal Register.)

**§1.6012 [Sunset Provisions]{.underline}.**

No complaint may be filed under this rule section after December 31,
2001. This rule subpart shall continue to apply to any complaint filed
on or before such date.

[See]{.underline} 47 U.S.C. §325 (e)(12).

[^1]: The SHVIA was enacted 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, codified in scattered sections of 17 and 47 U.S.C.), Pub.
    L. No. 106-113, 113 Stat. 1501, Appendix I (1999). This Order is the
    fourth in a series of Notices and Orders that the Commission will
    issue to implement the SHVIA.

[^2]: *See* 47 U.S.C. § 325(b)(2) (*as amended by* Section 1009 of the
    SHVIA). *See also* 17 U.S.C. § 119(d)(10) (definition of "unserved"
    household) and §122(j)(2) (definition of local market).

[^3]: 47 U.S.C. § 325(b)(2)(E) (*as amended by* § 1009 of the SHVIA).
    This is the "local-into-local" provision of the SHVIA.

[^4]: The SHVIA was enacted on November 29, 1999. The six-month period
    concludes on May 29, 2000. The procedural rules implemented by this
    Order will be used to process a complaint that a satellite carrier
    has retransmitted the signal of a broadcast station into that
    station's local market without the station's consent.

[^5]: Section 325(b)(2)(E) provides that satellite carriers may
    retransmit television broadcast stations to subscribers within the
    station's local market without the station's consent "during the
    6-month period beginning on the date of enactment" of the SHVIA. 47
    U.S.C. § 325(b)(2)(E) (*as amended by* Section 1009 of the SHVIA).
    The SHVIA was enacted on November 29, 1999. Therefore, these
    procedural rules cannot take effect until retransmission consent is
    required, as of May 29, 2000.

[^6]: *See* 47 U.S.C. § 325(e).

[^7]: 47 U.S.C. § 325(e)(1)(A)-(F).

[^8]: 47 U.S.C. § 325(e)(2). This subsection prescribes the number of
    copies and manner of service, as well as requirements for the
    Commission to send the original complaint to the satellite carrier.

[^9]: 47 U.S.C. § 325(e)(3).

[^10]: *See* 47 U.S.C. § 325(e)(4).

[^11]: 47 U.S.C. § 325(e)(5) and (6).

[^12]: *Id.*

[^13]: *See* 47 U.S.C. § 325(e)(8) (specific findings required,
    including award of costs and reasonable attorney's fees).

[^14]: The FCC will publish a document in the Federal Register
    announcing the effective date for that section.