**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

)

Implementation of the Satellite Home Viewer ) CS Docket No. 00-2

Improvement Act of 1999: )

)

Application of Network Nonduplication, )

Syndicated Exclusivity, and Sports Blackout )

Rules To Satellite Retransmissions )

**NOTICE OF PROPOSED RULEMAKING**

##### Adopted: January 5, 2000 Released: January 7, 2000

**Comment Date: February 7, 2000**

**Reply Comment Date: February 28, 2000**

By the Commission:

######## Introduction

1.  In this Notice of Proposed Rulemaking ("*Notice*"), we seek comment
    on our implementation of certain aspects of the Satellite Home
    Viewer Improvement Act of 1999 ("SHVIA"), which was enacted on
    November 29, 1999.[^1] This act authorizes satellite carriers to add
    more local and national broadcast programming to their offerings,
    and to make that programming available to some subscribers who
    previously have been prohibited from receiving broadcast programming
    via satellite. The legislation generally seeks to place satellite
    carriers on an equal footing with cable operators with respect to
    the availability of broadcast programming. By this *Notice* we seek
    comment on the adoption of implementing regulations that apply
    network nonduplication, syndicated program exclusivity, and sports
    blackout requirements to satellite carriers.

2.  Section 1008 of the SHVIA creates a new Section 339 of the
    Communications Act of 1934 ("Communications Act") entitled "Carriage
    of Distant Television Stations by Satellite Carriers." [^2] Section
    339(b) directs the Commission to apply these three rules (*i.e.*,
    network nonduplication, syndicated exclusivity, and sports
    blackout), previously applicable only to cable television systems,
    to satellite carriers' retransmission of nationally distributed
    superstations to subscribers.[^3] The Commission must also apply the
    cable sports blackout rule to satellite carriers' retransmission of
    network stations to subscribers, but only "to the extent technically
    feasible and not economically prohibitive."[^4] This proceeding will
    consider how best to apply these rules to satellite carriers
    consistent with the statutory requirements and the Commission's goal
    of facilitating competition in the multichannel video programming
    distribution marketplace.

3.  The complexity of both the statutory provisions and the existing
    cable rules that we are charged with applying in this new context
    requires that we include an explanation of the existing network
    nonduplication, syndicated exclusivity, and sports blackout rules as
    they apply to cable operators. We seek here to minimize the
    likelihood of confusion in the future by assuring that we begin with
    a common understanding of the rules and terminology. These rules
    have been in existence for 25 years, and the nuances attendant to
    enforcement and compliance require some explication to provide a
    solid foundation from which to build a new set of rules to apply to
    satellite carriers. This is particularly important given that
    Congress has asked us to implement these new rules so that they will
    be "as similar as possible" to the rules applicable to cable
    operators.[^5] Our goal throughout this proceeding is to develop
    regulations that will be as clear and easy to follow as possible.
    Our purpose in laying out the cable rules here is so that the newly
    covered satellite carriers and other parties will have an
    understanding of the existing rules for the preparation of their
    comments in this proceeding. Likewise, it is important to describe
    in some detail the interpretation of the statute upon which we will
    base our rulemaking. We seek comment on these explanations and
    interpretations.

# **II. Statutory Provisions AND INTERPRETATIONS**

4.  The first statutory provision discussed below, Section 339(b)(1)(A),
    requires application of three cable rules, network nonduplication,
    syndicated exclusivity, and sports blackout, to satellite
    retransmission of nationally distributed superstations. The second
    statutory provision, Section 339(b)(1)(B), applies one of these
    cable rules, sports blackout, to satellite retransmission of network
    stations.[^6] As discussed below, one important distinction between
    these provisions is that nationally distributed superstations may be
    retransmitted to both served and unserved households, but network
    stations may only be retransmitted to unserved households.

5.  The Commission rules in question here, as applied in the cable
    context, generally protect exclusive contractual rights that have
    been negotiated between broadcasters and program providers or other
    rights holders. These exclusive contractual rights are potentially
    threatened by cable systems that are capable of retransmitting
    programming from distant sources beyond the control of the
    contracting parties. The Commission's network nonduplication,
    syndicated exclusivity and sports blackout rules provide that
    specific programs must be deleted from distant signals delivered to
    cable subscribers if the programs are subject to exclusive contracts
    to local stations or, in the context of sporting events, if carriage
    from distant stations would violate sports blackout arrangements to
    protect gate receipts in the local market. To determine how best to
    apply these cable rules in the satellite context, it is first
    necessary to understand the underlying statutory scheme. To that
    end, we first discuss the relevant provisions of the SHVIA statute
    and our interpretations of these provisions.

## A. Section 339(b)(1)(A): Application of Network Nonduplication, Syndicated Exclusivity, and Sports Blackout to Retransmission of Nationally Distributed Superstations

6.  Section 339(b)(1)(A) of the Communications Act requires the
    Commission "to apply network nonduplication protection (47 CFR
    76.92), syndicated exclusivity protection (47 CFR 76.151), and
    sports blackout protection (47 CFR 76.67) to the retransmission of
    the signals of nationally distributed superstations by satellite
    carriers to subscribers."[^7] For these purposes, a "nationally
    distributed superstation" is a term that is defined as a television
    broadcast station, licensed by the Commission, that meets the
    following three criteria:

> \(A\) is not owned or operated by or affiliated with a television
> network that, as of January 1, 1995, offered interconnected program
> service on a regular basis for 15 or more hours per week to at least
> 25 affiliated television licensees in 10 or more States;[^8]
>
> \(B\) on May 1, 1991, was retransmitted by a satellite carrier and was
> not a network station[^9] at that time; and
>
> \(C\) was, as of July 1, 1998, retransmitted by a satellite carrier
> under the statutory license of section 119 of title 17, United States
> Code.[^10]

It appears that the television broadcast stations that meet the
foregoing criteria are limited to KTLA-TV (Los Angeles), WPIX-TV (New
York), KWGN-TV (Denver), WSBK-TV (Boston), WWOR-TV (New York) and
WGN**-**TV (Chicago).[^11] We do not believe that any other station
could meet these criteria in the future due to the date-specific
conditions set forth in the definition. We believe this is, therefore, a
finite list of the nationally distributed superstations covered by the
statute, but we invite comment on this issue. We also note that the
statutory definitions of network station, television network, and
television broadcast station generally contemplate entities within the
United States. We seek comment on the relevance of this issue in this
proceeding. Are stations based in foreign countries affected by the
SHVIA provisions requiring application of the cable exclusivity and
sports blackout rules to satellite retransmissions?

7.  A nationally distributed superstation is a type of "superstation,"
    which is defined in the Copyright Act of 1947, *as amended*
    ("Copyright Act"), as "a television broadcast station, other than a
    network station, licensed by the Federal Communications Commission
    that is secondarily transmitted by a satellite carrier."[^12] By
    creating this special category known as nationally distributed
    superstations, Congress permits satellite carriers to retransmit
    these superstations to subscribers regardless of whether they are
    "served" or "unserved" pursuant to the Copyright Act. Congress
    achieved this result by amending the Section 119 compulsory
    copyright license in the Copyright Act.[^13] The amended copyright
    provision provides that the retransmission of nationally distributed
    superstations to subscribers who do not reside in "unserved
    households"[^14] shall not violate the compulsory copyright
    license.[^15] While Section 1005(b) of the SHVIA does not refer to
    nationally distributed superstations expressly, the criteria for its
    application are identical to those contained in the definition of a
    nationally distributed superstation. Thus, we believe that based on
    Section 1005(b), there is no geographic restriction on the
    retransmission of "nationally distributed superstations" pursuant to
    the compulsory copyright license.

8.  In addition to amending the Copyright Act, Section 1009 of the SHVIA
    amends the retransmission consent section of the Communications Act,
    which generally prohibits multichannel video programming
    distributors from retransmitting the signals of a broadcaster absent
    the broadcaster's written authorization.[^16] The SHVIA exemption
    allows a satellite carrier to retransmit the signal of a
    superstation in the absence of written consent from the superstation
    if: (i) the station was a superstation on May 1, 1991, and (ii) the
    station was retransmitted by the satellite carrier as of July 1,
    1998, provided the satellite carrier complies with the Commission's
    nonduplication, syndicated exclusivity, and sports black out
    rules.[^17] This provision differs slightly from the definition of a
    nationally distributed superstation in that it does not specify that
    the superstation must not be affiliated with a network that existed
    as such as of January 1, 1995. At this time, this distinction is
    without practical significance because the six television stations
    cited above meet the relevant criteria of either definition,[^18]
    and there are no additional stations that are included or excluded
    by operation of this third criterion. Taking all these provisions
    together, we believe that, pursuant to these new statutory
    provisions in the Copyright Act and the Communications Act,
    satellite carriers are permitted to retransmit the signals of the
    nationally distributed superstations covered by Section 339(b)(1)(A)
    to both served and unserved households without the station's consent
    and without geographic restriction.[^19]

9.  We believe that Congress' purpose in applying the network
    nonduplication, syndicated exclusivity, and sports blackout rules to
    these satellite retransmissions reflects a balance between providing
    access to national programming carried by the superstation and a
    recognition that, in the absence of retransmission consent
    requirements, broadcasters and rights holders will have no
    opportunity to protect their contractual rights. We also believe
    Congress is seeking to create parity between the regulations
    covering satellite carriers and cable operators. We seek comment on
    this interpretation of the operation and underlying intent of the
    statutory requirements.

## B. Section 339(b)(1)(B): Application of the Sports Blackout Rule to Retransmission of Network Stations

10. In addition to applying the existing cable rules to nationally
    distributed superstations, Section 339(b)(1)(B) requires the
    Commission to "apply sports blackout protection (47 CFR 76.67) to
    the retransmission of the signals of network stations by satellite
    carriers to subscribers" "to the extent technically feasible and not
    economically prohibitive." [^20] By its terms, Section 339(b)(1)(B)
    applies only to "network stations," which are, generally, television
    broadcast stations owned or operated by, or affiliated with, one or
    more of the television networks.[^21] Affiliates of these networks
    are the only entities that meet the definition of a television
    network station contained in the Copyright Act[^22] and are the only
    stations covered by Section 339(b)(1)(B). We note that in the cable
    context, the Commission's sports blackout rule applies to any
    television broadcast station and is not limited to network stations.
    We seek comment on whether the cable rules are indeed broader in
    scope than Section 339(b)(1)(B).[^23]

11. We also observe that the title of new Section 339, "Carriage of
    Distant Television Stations by Satellite Carriers," suggests that
    this section is intended to apply to satellite retransmission of
    *distant* network stations, notwithstanding that the text of Section
    339(b)(1) does not specifically so state.[^24] We seek comment on
    this interpretation, which is relevant to determining which
    satellite retransmissions are covered by this section of the
    statute.

##### III. IMPLEMENTATION OF THE STATUTORY REQUIREMENT 

### 

12. In general, under the new statutory provisions, the network
    nonduplication, syndicated exclusivity, and sports blackout rules
    will apply when a satellite carrier retransmits a nationally
    distributed superstation to a household within a local broadcaster's
    zone of protection,[^25] and the nationally distributed superstation
    carries a program to which the local station has exclusive
    rights.[^26] In these cases, the television broadcast station
    holding exclusive rights may require the satellite carrier to
    blackout these particular programs for the satellite subscriber
    households within the protected zone. We seek comment generally on
    the appropriate manner in which to implement the provisions of
    Section 339(b)(1) of the Communications Act. In particular, we seek
    comment on whether the amended provisions should be incorporated
    into existing Sections 76.67, 76.92, and 76.151 of the Commission's
    rules, or whether we should adopt new separate rules for satellite
    carriers.

###### **a. Network Nonduplication Rule**

13. The Commission's cable television network nonduplication rule[^27]
    allows a television broadcast station that has purchased exclusive
    rights to network programming within a specified area to protect its
    exclusivity on local cable systems.[^28] The rules allow a local
    television broadcast station to demand that a local cable system\'s
    duplicate carriage of the same program from an otherwise distant
    station be blacked out.[^29] A station may assert its exclusivity
    rights regardless of whether its signal is carried by the cable
    system in question. These rules are not statutorily mandated. They
    arose from the Commission's recognition in the 1970s and 1980s that
    protection of exclusive contractual rights is necessary both to
    protect local broadcasters from the importation of non-local
    stations by cable systems and to provide appropriate protections and
    incentives to program producers and distributors to provide the
    programming desired by viewers.[^30]

14. Under the network nonduplication rule, a television station is
    entitled to assert its exclusivity rights against a cable system
    serving any "cable community unit" within its "specified zone" that
    is carrying duplicative programming for which the local station has
    obtained exclusive distribution rights.[^31] The rule applies on a
    community unit basis by requiring the cable system for a particular
    community unit to black out a specific program based on the
    priorities established in the rule.[^32] The "specified zone" of a
    television broadcast station is the 35 mile area surrounding its
    community of license.[^33] The zone of exclusivity protection for
    television stations licensed to smaller television markets extends
    an additional 20 miles, for a total 55 miles surrounding a smaller
    television station\'s community of license.[^34] We seek comment on
    whether Congress intended to retain the same geographic zones for
    satellite carriers as those used in the cable context.

15. While the Commission's rules allow television stations to assert
    their nonduplication rights within the above territorial limits, a
    television station's rights within these areas are limited by the
    terms of the contractual agreement between the station and the
    holder of the rights to the program ("rights holder").[^35] Thus, if
    the rights holder grants the television station a zone of
    protection[^36] of ten miles, then that station would be precluded
    from exercising its nonduplication rights against any cable system
    located more than ten miles from that station\'s city of
    license.[^37] In addition, for local programming to be protected,
    the local programming must be the same as the distant programming
    that is being imported into a local station's market.[^38]

16. In order to exercise nonduplication protection, a television
    broadcast station must notify cable operators of the rights they
    have obtained within 60 days of the signing of a contract affording
    exclusive rights.[^39] In adopting these rules, the Commission
    recognized that affected cable operators would need sufficient time
    to negotiate for the lifting of the requested protection or to
    arrange for alternative sources of programming to fill the void left
    when a station exercised its rights. In this regard, television
    stations have been required to disclose the exact contractual terms
    under which they have been granted exclusivity protection.[^40] We
    seek comment on how the notification process described in the
    network nonduplication rule can be applied to satellite carriers and
    on whether the 60 day period and the other notification periods used
    in the cable context are appropriate for satellite carriers.

17. There are several exceptions to application of the network
    nonduplication rule. First, the network nonduplication rule is
    inapplicable to any non-commercial educational ("NCE") station
    programming carried in fulfillment of a cable system\'s mandatory
    carriage rules.[^41] Second, because of the cost of the equipment
    necessary to carry out deletions, the Commission exempted cable
    systems having fewer than 1,000 subscribers.[^42]

18. The rule also does not apply if the distant station\'s signal is
    "significantly viewed" in a relevant cable system community.[^43]
    The concept of significant viewing is directly related to whether an
    otherwise distant station\'s broadcast signal is viewable
    over-the-air in a cable community unit. The significantly viewed
    exception to the exclusivity rules is meant to insure that any
    programming that is available terrestrially in a community from an
    over-the-air station will not be blacked out on a community\'s cable
    system.[^44] We seek comment on the relevance in the satellite
    context of the exception for significantly viewed stations. Are
    there situations in which a nationally distributed superstation from
    an adjacent market could be significantly viewed within the relevant
    specified zone based on terrestrial transmission? We believe a
    nationally distributed superstation could only qualify as
    significantly viewed based on terrestrial broadcast reception
    over-the-air in the areas surrounding its city of license, [^45]
    thus limiting the relevance of this exception to those circumstances
    in which the superstation is actually functioning as a local
    station, and therefore, arguably, not covered by the terms of
    Section 339(b)(1)(A).

19. Under the cable network nonduplication rules, if the cable community
    unit is located in one or more overlapping specified zones, neither
    station can blackout the other station's duplicating programming
    because both stations have equal priorities.[^46] We do not believe
    a similar situation could occur in the satellite carrier context
    because superstations, as such, do not have specified zones outside
    of the markets from which they originate,[^47] and, under the new
    statutory requirement, network nonduplication applies only to the
    retransmission of nationally distributed superstations and not to
    retransmission of network stations. We seek comment on this issue.

##### B. Syndicated Program Exclusivity Rule

20. The Commission's syndicated program exclusivity rule allows local
    stations to protect their exclusive distribution rights for
    syndicated programming on local cable systems in a local
    market.[^48] This rule is similar in operation to the network
    nonduplication rule, but it applies to exclusive contracts for
    syndicated programming, rather than for network programming. In this
    rule, too, a local television station is entitled to assert its
    exclusivity rights within a specified zone of 35 miles surrounding a
    television station's city of license. Unlike the network
    nonduplication rule, however, the maximum zone of protection allowed
    under the rules is 35 miles surrounding a television station\'s city
    of license in a non-hyphenated television market and 35 miles
    surrounding each named city in any size hyphenated market; the zone
    of protection is not greater in smaller markets.

21. As with network nonduplication, the syndicated exclusivity rule
    applies on a community unit basis by requiring the cable system for
    a particular community unit to black out a specific program based on
    the priorities established in the rule.[^49] In addition, the
    geographic limits for exclusivity under the Commission's rules are
    limited by the terms of the contractual agreement between the
    station and the holder of the rights to the program.[^50] Thus, if
    the rights holder grants the television station a zone of protection
    of ten miles, then that station would be precluded from exercising
    its exclusivity rights against any cable system located more than
    ten miles from that station\'s city of license. In addition, as with
    the network nonduplication rules, for syndicated programming to be
    protected, the programming covered by the contract must be the same
    as the distant programming.

22. To exercise syndicated exclusivity protection under the cable rule,
    a television broadcast station must notify cable operators of the
    rights they have obtained within 60 days of the signing of a
    contract affording exclusivity rights,[^51] and must disclose the
    exact contractual terms under which they have been granted
    exclusivity protection.[^52] In addition to the television broadcast
    station, distributors of syndicated programming are also allowed to
    seek protection for a period of one year from the initial licensing
    of such programming anywhere in the United States, except where the
    relevant programming has already been licensed.[^53] We seek comment
    on whether the rights holder should, in the satellite context,
    notify the satellite carrier directly.[^54] We also seek comment on
    whether the 60 day period and the other notification periods used in
    the cable context for both network nonduplication and syndicated
    exclusivity are appropriate for satellite carriers.

23. The exceptions to application of the syndicated program exclusivity
    rule are similar to those that apply to the network nonduplication
    rule. Cable systems with fewer than 1,000 subscribers are exempted,
    again because of the cost of the equipment necessary to carry out
    deletions.[^55] This rule also does not apply if the distant
    station\'s signal is "significantly viewed" in a relevant cable
    system community. In addition, the syndicated programming of an
    otherwise distant station need not be blacked out if that station\'s
    grade B signal encompasses the relevant cable community.[^56] There
    is no exception to the syndicated exclusivity rules for NCE station
    programming carried pursuant to mandatory carriage because the
    syndicated exclusivity rule applies only to commercial
    stations.[^57]

####### 

##### C. Sports Blackout Rule

24. The Commission\'s sports broadcasts rule ("sports blackout rule") is
    designed to allow the holder of the exclusive distribution rights to
    local programming, in this case sporting events, to control, through
    contractual agreements, the display of that event on local cable
    systems.[^58] Unlike the other cable rules we are required to apply
    to satellite carriers, only the sports blackout rule applies to
    retransmission of both nationally distributed superstations and
    network stations. The purpose of the sports blackout rule is to
    insure the continued general availability of sports programming to
    the public. The Commission adopted this rule based on a concern that
    sports teams would refuse to sell the rights to their local games to
    television stations serving distant markets due to their fear of
    losing gate receipts if the local cable system imported the local
    sporting event carried on the distant station. The Commission stated
    this would have the ultimate undesirable effect of making sporting
    events available to fewer viewers.[^59] When a subject sporting
    event will not be aired live by any local television station carried
    on a community unit cable system, [^60] the sports blackout rule
    allows the rights holder to the event to demand that the local cable
    system blackout the distant importation of the subject sporting
    event. The zone of protection afforded by the sports blackout rule
    is generally 35 miles surrounding the reference point of the
    broadcast station's community of license in which the live sporting
    event is taking place.[^61] As with the Commission's exclusivity
    rules, the sports blackout rule specifies notification procedures
    regarding the sports programming to be deleted.[^62] However, the
    time frame allowed for notification is significantly shorter in the
    case of the sports blackout rule, and can be as little as 24 hours
    in contrast to 60 days for the other rules.[^63] We seek comment on
    whether the same timing should apply for both cable operators and
    satellite carriers.

25. As with the network nonduplication and syndicated exclusivity rules,
    the sports blackout rule does not apply to cable systems with fewer
    than 1,000 subscribers.[^64] This exemption is based on the cost of
    the equipment needed to delete programming. We seek comment on
    whether there is an analogous situation for satellite carriers. Will
    there be situations in which there may be no more than 1,000
    subscribers in an area subject to program blackout, and, if so, is
    there a significant cost to blacking out this limited number of
    subscribers? We seek specific information from satellite carriers on
    the likelihood of the occurrence of this situation. We seek comment
    on these questions with respect to the network nonduplication and
    syndicated exclusivity rules, as well as the sports blackout rule.
    We particularly seek specific information from satellite carriers on
    the comparative costs per subscriber of deleting programming where
    more than or less than 1,000 subscriber households are affected.

26. As noted, the sports blackout rule for cable systems applies only in
    a limited 35 mile geographic area surrounding the relevant broadcast
    station's community reference point and only when no local
    television station is carrying the event. Typically this area
    contains households that can receive a signal of Grade B intensity
    or better. Because the Section 119 compulsory copyright license only
    allows the retransmission of distant network stations to unserved
    households, *i.e.* those that cannot receive a signal of Grade B
    intensity, and because the existing sports blackout zone is
    typically limited to an area containing only served households, we
    expect that there would be few occasions where a subscriber residing
    within a sports blackout zone would be eligible to receive protected
    programming *via* distant network retransmissions made pursuant to
    the Section 119 compulsory copyright license.[^65] Thus, there may
    be very few occasions where, as a practical matter, the sports
    blackout rule could be invoked for a satellite retransmission of
    network stations.[^66] It may, however, present technical and
    economic challenges to the satellite carrier to take the actions
    necessary to blackout out the sports broadcast in these
    comparatively few situations. We seek comment on this issue.

27. The SHVIA's directive to apply the network nonduplication,
    syndicated exclusivity, and sports blackout rules to satellite
    retransmission of nationally distributed superstations appears to
    apply without any limitation based upon a satellite carrier's
    technical ability to comply. The SHVIA, however, limits application
    of the sports blackout rule to retransmission of network stations
    "to the extent technically feasible and not economically
    prohibitive."[^67] The legislative history suggests that a "very
    serious economic threat to the health of the carrier" is necessary
    to justify deviating from the cable rules.[^68] We seek comment
    concerning the circumstances in which the sports blackout rule
    should apply in the satellite context, on whether the 35 mile zone
    is appropriate in the satellite context, and, particularly, on the
    technical and economic consequences related to satellite carriers'
    compliance with the rule.

28. We note that satellite carriers routinely provide pay-per-view
    events and descramble programming by use of "conditional access"
    mechanisms. With regard to the question of technical and economic
    effects on the satellite carrier, we ask whether conditional access
    mechanisms can be used to blackout sports programming on network
    stations. If the satellite provider can identify the households
    required to be blacked out for a specific sporting event, would
    conditional access provide the means to initiate the blackout? How
    much lead time would a satellite carrier need if conditional access
    can meet this requirement? What would the cost be per subscriber to
    implement sports blackout, as compared to the other exclusivity
    rules discussed above, using conditional access? Commenters are
    asked to address consideration of both the economic and technical
    considerations facing satellite carriers.

29. Under the new Section 122 of the Copyright Act, a satellite carrier
    may retransmit the signal of a network station to all subscribers
    within that station's local market, which is defined as its
    Designated Market Area ("DMA").[^69] It is possible that in areas in
    which there are two affiliates of the same network within the same
    DMA, a "served" subscriber would be eligible to receive both network
    stations based on the satellite carrier's "local-into-local" license
    because the subscriber resides in the DMA of the second station. The
    geographic area for purposes of the sports blackout zone surrounding
    one of the affiliates is most often smaller than the DMA. If one of
    the affiliates is not carrying the event, the sports blackout rule
    can be triggered. If the second affiliate is carrying the event,
    then the satellite carrier might be required to blackout the event
    being transmitted by the second affiliate to subscribers within the
    35 mile zone. Alternatively, this situation may never occur if, as a
    practical matter, the contractual arrangements allow the rights
    holder to prohibit both affiliates from broadcasting the event in
    question. We seek comment on whether the two-affiliates-in-one
    market scenario is likely to occur, and whether the rules should
    treat this situation differently from the retransmission of a
    distant network station.

##### IV. Additional Discussion and request for comment

30. We also seek comment, generally, on how to apply the terms of the
    three existing cable rules to satellite carriers. As discussed
    above, the cable rules refer to "community units," which correspond
    to separate and discrete communities or municipal entities that
    comprise cable systems.[^70] In the cable context, all cable
    subscribers who are in a community unit that lies in whole or in
    part within the specified zone experience program deletions if the
    program is covered by one of these rules. There are, however, no
    boundaries for satellite service that readily and necessarily
    correspond to the cable community unit. Is it necessary to
    administer these rules in the satellite context using the same
    community unit concept that applies in the cable context?[^71] Or,
    is it more appropriate to consider each household served by the
    satellite carrier and determine if it is within a broadcaster's
    specified zone for protection under the rules? In either case, the
    satellite carrier must be able to determine the location of each
    subscriber in relation to the relevant zone of protection for each
    local broadcast television station. How can a satellite carrier
    accurately locate a subscriber whose address is a post office box or
    rural route number? Is it appropriate to use the subscriber's zip
    code for this purpose? We seek comment on which approach best serves
    the purposes of the statute while not unnecessarily depriving
    satellite subscribers who are beyond the specified zone -- but
    within a community unit that lies partially within the specified
    zone -- of programming. We also seek comment on how the use of DMA
    in the SHVIA to define the local market[^72] applies to
    determination of the specified zone for purposes of the
    nonduplication, syndicated exclusivity and sports blackout rules in
    the satellite context.

31. The syndicated exclusivity and sports blackout rules make specific
    provision for what type of programming a cable system may substitute
    for programming deleted pursuant to these rules. For example, when a
    program is blacked out based on syndicated rights, a cable operator
    may substitute a program from any other television broadcast station
    and carry that program.[^73] We seek comment on what types of
    programming and methods of substitution are appropriate for
    satellite carriers. What role do retransmission consent
    requirements, as well as copyright licensing requirements, play in
    determination of substitute programming?

32. Congress apparently chose not to extend application of the network
    nonduplication and syndicated exclusivity rules to retransmission of
    television broadcast stations other than nationally distributed
    superstations. We believe that the statutory requirements,
    nevertheless, will protect all contractual arrangements because the
    satellite carrier either needs the retransmission consent of the
    independent station or voluntarily complies with the exclusivity and
    sports blackout rules.[^74] We believe, therefore, that the
    interests of rights holders and local broadcasters are protected,
    but we seek comment on this issue.

33. It has been suggested that the Commission consider certain
    additional issues concerning the distribution of sports programming
    that are related to, but not directly covered by, the SHVIA. The
    National Football League sells packages of programming to networks
    on a national basis, but different games are broadcast locally on a
    regional basis, often in two-game packages. To the extent that
    broadcasts of games are carried into local markets on distant
    broadcast signals via satellite, the network nonduplication and
    other rules involved in this proceeding appear to offer neither the
    stations nor the leagues involved any protection beyond the rights
    to the particular games that local stations are authorized to
    broadcast. [^75] In light of the SHVIA's restrictions on households
    that are eligible to receive distant network signals,[^76] it is not
    clear to what extent carriage of distant signals providing different
    games merits remedial action. We seek comment on the question of how
    the patterns of sports carriage involved are addressed by the new
    law, and whether they can and should be addressed in the regulations
    the Commission is required to adopt pursuant to it.

34. We note, too, that WPIX, KTLA, and KWGN are WB affiliates and WSBK
    and WWOR are UPN affiliates; thus all are both "network stations" as
    well as "nationally distributed superstations," pursuant to the
    definitions in the SHVIA.[^77] Should the exclusivity rules apply to
    blackout programming on a local station if that station is also a
    nationally distributed superstation or should the station be treated
    only as a local station within its local market, notwithstanding
    that it is a nationally distributed superstation outside its market?
    We note by way of analogy that, in the context of mandatory cable
    carriage, we have concluded that local commercial stations do not
    become superstations until such time as they are retransmitted via
    satellite outside their market, an activity unrelated to their
    status as local commercial broadcast stations within their
    market.[^78] We seek comment on the applicability of that conclusion
    in the satellite context.

35. In addition, if we decide that it is necessary for the satellite
    carrier rules for sports blackout protection for network stations to
    differ from sports blackout protection for nationally distributed
    superstations due to technical feasibility and economic
    prohibitions, we seek comment on whether the sports blackout
    protection for these stations should apply to them as superstations,
    rather than as network stations.

36. Section 339(b)(1) and the relevant part of the *Joint Explanatory
    Statement* are silent regarding application of the exclusivity and
    sports blackout rules to the retransmission of digital broadcast
    signals. In the pending proceeding considering cable mandatory
    carriage of digital signals, we requested comment on how these cable
    rules would function for cable carriage of digital signals.[^79]
    Similarly here, we question whether Congress intended to apply these
    rules to satellite retransmission of digital broadcast signals. We
    note that the SHVIA can be read as applying to both analog and
    digital broadcast signals. An alternative interpretation is that
    Congress was only concerned about the carriage of analog signals
    given that elsewhere in the statute Congress expressly mentioned
    digital signals and, presumably, could have done so in this context
    as well.[^80] We seek comment on whether and how the exclusivity
    rules could apply to satellite carriage of digital broadcast
    signals, and whether there is a meaningful distinction between
    analog and digital carriage issues for satellite carriers in this
    context.

37. As a final matter, we note that several sections of the existing
    cable rules contain outdated cross-references to other sections of
    the rules. We will take this opportunity to correct these
    references. These proposed revisions are listed in Appendix C. We
    welcome comment on these and any other such corrections that are
    needed. For example, Section 76.67 contains a reference to Section
    76.5(gg) for purposes of identifying the broadcast television
    stations that trigger the rule's application. Section 76.5(gg) has
    been eliminated. We seek comment on whether we should reinstate a
    standard based upon the original criteria incorporated into Section
    76.5(gg) or adopt a new standard. In addition, we welcome comment on
    changes to the application of the rules in the cable context to the
    extent necessary or desirable for harmonizing the regulatory
    requirements among the affected parties.

######## Administrative Matters

> **A. Initial Regulatory Flexibility Act Statement and Paperwork
> Reduction Act Statement**

38. The initial regulatory flexibility analysis is attached to this
    order as Appendix D. This *Notice* contains either a proposed or
    modified information collection. As part of its continuing effort to
    reduce paperwork burdens, we invite the general public and the
    Office of Management and Budget (OMB) to take this opportunity to
    comment on the information collections contained in this *Notice*,
    as required by the Paperwork Reduction Act of 1995, Public Law
    104-13. Public and agency comments are due at the same time as other
    comments on this *Notice*; OMB comments are due 60 days from date of
    publication of this *Notice* in the Federal Register. 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; and (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.

**B. *Ex Parte* Rules**

39. This proceeding will be treated as a \"permit‑but‑disclose\"
    proceeding subject to the \"permit‑but‑disclose\" requirements under
    Section 1.1206(b) of the rules. 47 C.F.R. 1.1206(b), as revised. *Ex
    parte* presentations are permissible if disclosed in accordance with
    Commission rules, except during the Sunshine Agenda period when
    presentations, *ex parte* or otherwise, are generally prohibited.
    Persons making oral *ex parte* presentations are reminded that a
    memorandum summarizing a presentation must contain a summary of the
    substance of the presentation and not merely a listing of the
    subjects discussed. More than a one or two sentence description of
    the views and arguments presented is generally required. *See* 47
    C.F.R. 1.1206(b)(2), as revised. Additional rules pertaining to oral
    and written presentations are set forth in Section 1.1206(b).

######## C. Filing of Comments and Reply Comments {#c.-filing-of-comments-and-reply-comments .unnumbered}

40. Pursuant to applicable procedures set forth in Sections 1.415 and
    1.419 of the Commission\'s Rules, 47 C.F.R. §§ 1.415 and 1.419,
    interested parties may file comments in response to this *Notice* on
    or before February 7, 2000 and reply comments on or before February
    28, 2000. Comments may be filed using the Commission\'s Electronic
    Comment Filing System (\"ECFS\") or by filing paper copies.[^81]
    Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc/e-file/ecfs.html\>. Generally,
    only one copy of an electronic submission must be filed. If multiple
    docket or rulemaking numbers appear in the caption of this
    proceeding, however, commenters must transmit one electronic copy of
    the comments to each docket or rulemaking number referenced in the
    caption. In completing the transmittal screen, commenters should
    include their full name, Postal service mailing address, and the
    applicable docket or rulemaking number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions
    for e-mail comments, commenters should send an e-mail to
    ecfs@fcc.gov, and should include the following words in the body of
    the message, \"get form\<your e-mail address.\" A sample form and
    directions will be sent in reply.

41. Parties who choose to file by paper must file an original and four
    copies of each filing. If participants want each Commissioner to
    receive a personal copy of their comments, an original plus nine
    copies must be filed. If more than one docket or rulemaking number
    appears in the caption of this proceeding commenters must submit two
    additional copies for each additional docket or rulemaking number.
    All filings must be sent to the Commission\'s Secretary, Magalie
    Roman Salas, Office of the Secretary, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554. The Cable
    Services Bureau contact for this proceeding is Eloise Gore at (202)
    418-7200, TTY (202) 418-7172, or at egore@fcc.gov.

42. Parties who choose to file by paper should also submit their
    comments on diskette. Parties should submit diskettes to Eloise
    Gore, Cable Services Bureau, 445 12th Street N.W., Room 4-A802,
    Washington, D.C. 20554. Such a submission should be on a 3.5-inch
    diskette formatted in an IBM compatible form using MS DOS 5.0 and
    Microsoft Word, or compatible software. The diskette should be
    accompanied by a cover letter and should be submitted in \"read
    only\" mode. The diskette should be clearly labeled with the
    party\'s name, proceeding (including the lead docket number in this
    case \[CS Docket No. 00-2\]), type of pleading (comments or reply
    comments), date of submission, and the name of the electronic file
    on the diskette. The label should also include the following phrase
    \"Disk Copy - Not an Original.\" Each diskette should contain only
    one party\'s pleadings, referable in a single electronic file. In
    addition, commenters must send diskette copies to the Commission\'s
    copy contractor, International Transcription Service, 1231 20th
    Street, N.W., Washington, D.C. 20036.

43. Written comments by the public on the proposed and/or modified
    information collections are due **\[February 7, 2000\].** Written
    comments must be submitted by the Office of Management and Budget
    (OMB) on the proposed and/or modified information collections on or
    before **\[60 days after date of publication in the Federal
    Register.\]** In addition to filing comments with the Secretary, a
    copy of any comments on the information collection(s) contained
    herein should be submitted to Judy Boley, Federal Communications
    Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554,
    or via the Internet to jboley@fcc.gov and to Virginia Huth, OMB Desk
    Officer, 10236 NEOB, 725 - 17th Street, N.W., Washington, DC 20503
    or via the Internet to vhuth@omb.eop.gov.

######## ORDERING CLAUSES

44. Accordingly, **IT IS ORDERED** that pursuant to Section 1008 of the
    Satellite Home Viewer Act of 1999, Section 339(b)(1) of the
    Communications Act of 1934, as amended, **NOTICE IS HEREBY GIVEN**
    of the proposals described in this Notice of Proposed Rulemaking.

45. **IT IS FURTHER ORDERED** that the Commission's Consumer Information
    Bureau, Reference Information Center 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.[^82]

**Federal Communications Commission**

Magalie Roman Salas

> Secretary

[^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 is the
    second in a series of Notices and Orders that the Commission will
    issue to implement the SHVIA. The statutory provisions most relevant
    to this proceeding are attached hereto as Appendix A. The most
    relevant cable regulations discussed herein are attached as Appendix
    B.

[^2]: *See* 47 U.S.C. § 339 (*as enacted by* § 1008 of the SHVIA).
    Section 339(d)(4) defines "satellite carrier" by reference to the
    definition in the Copyright Act of 1947, *as amended*, 17 U.S.C. §
    119(d): "The term 'satellite carrier' means an entity that uses the
    facilities of a satellite or satellite service licensed by the
    Federal Communications Commission and operates in the
    Fixed‑Satellite Service under part 25 of title 47 of the Code of
    Federal Regulations or the Direct Broadcast Satellite Service under
    part 100 of title 47 of the Code of Federal Regulations, to
    establish and operate a channel of communications for
    point‑to‑multipoint distribution of television station signals, and
    that owns or leases a capacity or service on a satellite in order to
    provide such point‑ to‑multipoint distribution, except to the extent
    that such entity provides such distribution pursuant to tariff under
    the Communications Act of 1934, other than for private home
    viewing." 17 U.S.C. §119(d)(6).

[^3]: 47 U.S.C. § 339(b)(1)(A).

[^4]: *See* § 1008 of the SHVIA and 47 U.S.C. § 339(b)(1)(B).

[^5]: *Joint Explanatory Statement of the Committee of Conference on
    H.R. 1554*, 106^th^ Cong. ("*Joint Explanatory Statement*"), 145
    Cong. Rec. H11793, H11796 (daily ed. Nov. 9, 1999).

[^6]: The network nonduplication and syndicated exclusivity rules are
    not applied to satellite retransmission of network stations that are
    not also nationally distributed superstations. As discussed,
    *infra*, at n. 11, five of the six nationally distributed
    superstations are also network stations.

[^7]: 47 U.S.C. § 339(b)(1)(A).

[^8]: This criterion tracks the definition of "television network"
    contained in Section 339. *See* 47 U.S.C. § 339(d)(5) (Television
    network means "a television network in the United States which
    offers an interconnected program service on a regular basis for 15
    or more hours per week to at least 25 affiliated broadcast stations
    in 10 or more States.\").

[^9]: A \"network station\" is "(A) a television broadcast station,
    including any translator station or terrestrial satellite station
    that rebroadcasts all or substantially all of the programming
    broadcast by a network station, that is owned or operated by, or
    affiliated with, one or more of the television networks in the
    United States which offer an interconnected program service on a
    regular basis for 15 or more hours per week to at least 25 of its
    affiliated television licensees in 10 or more States" or "(B) a
    noncommercial educational broadcast station (as defined in section
    397 of the Communications Act of 1934)" except that the term does
    not include "the signal of the Alaska Rural Communications Service,
    or any successor entity to that service.\" 17 U.S.C. § 119(d)(2)
    (*as amended by* § 1008(b) of the SHVIA).

[^10]: 47 U.S.C. § 339(d)(2).

[^11]: Memorandum of December 20, 1999 from William J. Roberts Jr., U.S.
    Copyright Office, listing superstations based upon the Library of
    Congress' Statement of Accounts. KTLA, WPIX and KWGN are all now
    affiliates of the Warner Brothers Network ("WB"). In addition, WSBK
    and WWOR currently are affiliated with the UPN Network. (WGN
    formerly was affiliated with WB but is no longer so affiliated.) We
    note that WB and UPN did not qualify as "television networks" as of
    January 1, 1995, the operative date referenced in Section
    339(d)(2)(A) because they did not satisfy each of the statutory
    criteria.

[^12]: 17 U.S.C. § 119(d)(9)(A) (*as amended by* § 1006(c) of the
    SHVIA). The Public Broadcasting Service satellite feed also is
    included in this definition. *Id.* at § 119(d)(9)(B); s*ee also* 17
    U.S.C. § 119(d)(12) (*as enacted by* § 1006(c)(2) of the SHVIA)
    (definition of "Public Broadcasting Service satellite feed" ).

[^13]: *See* § 1005(b) of the SHVIA.

[^14]: An unserved household is defined in part as one that cannot
    receive over-the-air a signal of Grade B intensity for a primary
    television network station. 17 U.S.C. § 119(d)(10) (*as amended by*
    § 1008(b) of the SHVIA).

[^15]: *See* 17 U.S.C. § 119(a)(5)(E) (*as amended by* Section 1005(b)
    of the SHVIA).

[^16]: *See* 47 U.S.C. § 325(b).

[^17]: Section 1009 of the SHVIA amends Section 325(b) of the
    Communications Act to insert a new paragraph (b)(2)(B) which
    provides that the retransmission consent requirements shall not
    apply "to retransmission of the signal of a television broadcast
    station outside the station\'s local market by a satellite carrier
    directly to its subscribers, if (i) such station was a superstation
    on May 1, 1991; (ii) as of July 1, 1998, such station was
    retransmitted by a satellite carrier under the statutory license of
    section 119 of title 17, United States Code; and (iii) the satellite
    carrier complies with any network nonduplication, syndicated
    exclusivity, and sports blackout rules adopted by the Commission
    under section 339(b) of this Act." 47 U.S.C. § 325(b)(2)(B) (*as
    enacted by* Section 1005(b) of the SHVIA.

[^18]: *Compare* 47 U.S.C. § 325(b)(2)(B) *with* 47 U.S.C. § 339(d)(2).

[^19]: The *Joint Explanatory Statement* clarifies that the purpose of
    this provision is "to allow certain longstanding superstations to
    continue to be delivered to satellite customers without regard to
    the 'unserved household' limitation, even if the station now
    technically qualifies as a 'network station' under the
    15-hour-per-week definition in the Act." The conferees note further
    that "this exception will cease to apply if such a station in the
    future becomes affiliated with one of the four networks (ABC, CBS,
    Fox, and NBC) that qualified as networks as of January 1, 1995."
    *Joint Explanatory Statement* at H11794.

[^20]: 47 U.S.C. § 339(b)(1)(B).

[^21]: *See* complete definition of "network station," *supra*, at n. 9.

[^22]: *See* 17 U.S.C. § 119(d)(2).

[^23]: The Commission's cable rules define a television broadcast
    station in relevant part as "any television broadcast station
    operating on a channel regularly assigned to its community." 47
    C.F.R. § 76.5(b).

[^24]: *But see* discussion, *infra*, at ¶ 29, of circumstances in which
    there are two affiliates of the same network in the same market and
    a served household could receive both affiliates, thus potentially
    triggering the sports blackout rule notwithstanding that no distant
    or out of market station is involved.

[^25]: The Commission's rules describe geographic areas that are
    protected by commercial contracts and through operation of the
    rules. *See* discussion *infra*, at n. 33, 34.

[^26]: The program may fall under either the definition of network
    program (delivered simultaneously to more than one broadcast
    station, see 47 C.F.R. § 76.5(m)) or the definition of syndicated
    program (sold, licensed, distributed or sold to licensees in more
    than one market, see 47 C.F.R. § 76.5(ii)).

[^27]: 47 C.F.R. § 76.92.

[^28]: "Network program" is something of a misnomer in terms of common
    usage as it appears to suggest a program provided by a recognized
    network. In fact, it is defined as \"any program delivered
    simultaneously to more than one broadcast station regional or
    national, commercial or noncommercial.\" 47 C.F.R. § 76.5(m). It is
    not necessary that the program be delivered by a "television
    network."

[^29]: In addition to full power television stations, 100 watt
    translator stations are allowed to demand network nonduplication
    protection under certain circumstances. Translator stations are not
    entitled to syndicated exclusivity protection. *See* 47 C.F.R. §
    76.92(d).

[^30]: *In re Amendment of Parts 73 and 76 of the Commission's Rules
    Related to Program Exclusivity in the Cable and Broadcast
    Industries*, Report and Order, 3 FCC Rcd. 5299, 5308 (1988)
    ("*Program Exclusivity Order*"), *recon. denied in pertinent part*,
    4 FCC Rcd. 2711 (1989). For a complete history of the Commission\'s
    network nonduplication and syndicated program exclusivity rules see
    4 FCC Rcd. at 2712-2715.

[^31]: Cable systems are comprised of one or more "community units" that
    correspond to separate and discrete communities or municipal
    entities. 47 C.F.R. § 76.5(dd).

[^32]: *See* 47 C.F.R. § 76.92(a).

[^33]: *See* 47 C.F.R. § 76.5(e). The 35 mile specified zone, as well as
    all other mileage zones used in applying the exclusivity rules, is
    measured from the relevant station's "reference point" in its
    community of license. The rules provide a list of the reference
    points to identify television market boundaries used for this
    purpose. *See* 47 C.F.R. § 76.53.

[^34]: In addition, television stations licensed to hyphenated markets
    are entitled to assert their exclusivity rights throughout a subject
    hyphenated market. In larger hyphenated television markets, stations
    are entitled to request protection against distant programming
    within 35 miles around each named community in the relevant larger
    hyphenated market. For example, a station licensed to Oakland,
    California, which is in the San Francisco-Oakland-San Jose,
    California larger television market, would be entitled to assert its
    network nonduplication rights against all cable systems located
    within 35 miles of each of the three named cities in this market.
    With respect to network nonduplication, a television station
    licensed to a smaller hyphenated television market would be entitled
    to a 55 mile zone of network nonduplication protection around each
    named city in that smaller television market. See the note to 47
    C.F.R. § 76.92, which refers to 47 C.F.R. §73.658(m), to determine
    the extent of exclusivity protection television stations licensed to
    hyphenated television markets may assert. Section 73.658(m) sets out
    the extent of exclusivity protection a station may demand in a
    hyphenated market. For a list of the top 100 television markets in
    the United States and the hyphenated markets contained therein, see
    47 C.F.R. § 76.51.

[^35]: *See* 47 C.F.R. §§ 76.92, 76.151 (notes to both sections refer to
    "broadcast territorial exclusivity rights" as defined in 47 C.F.R. §
    73.658(m)). We note that in a pending proceeding the Commission has
    proposed the deletion of Section 73.658(m). *In re Amendment of
    Parts 73 and 76 of the Commission\'s Rules Relating to Program
    Exclusivity in the Cable and Broadcast Industries, Further Notice of
    Proposed Rule Making*, 3 FCC Rcd. 617 (1988). We believe the rules
    in question could continue to function even if the Commission
    ultimately deletes Section 73.658(m).

[^36]: A "zone of protection" is the zone granted by the rights holder,
    whereas the "specified zone" is the area covered by the Commission's
    rules.

[^37]: This distinction between the area protected by the rule and the
    area protected by contract arises more frequently in the context of
    hyphenated markets in which the local station's exclusivity contract
    applies to only one of the hyphenated cities in the market. Thus,
    notwithstanding that the Commission's rule would provide exclusivity
    protection for 35 miles around each of the hyphenated cities, the
    station in this example receives protection for no more than 35
    miles around one city.

[^38]: The use of different camera crews and announcers during the
    production of an imported program may result in the distant program
    not being considered the same. *See In re Major League Baseball*, 6
    FCC Rcd. 5573 (1991).

[^39]: *See* 47 C.F.R. § 76.94 (generally 60 calendar days for network
    non-duplication) and § 76.155 (syndicated exclusivity procedures
    vary with specific circumstances).

[^40]: Only television broadcast stations are permitted to assert
    protection in accordance with their contractual rights. *See* 47
    C.F.R. § 76.93. For a full explanation of the notification rules see
    *In re Amendment of Parts 73 and 76 of the Commission's Rules
    relating to program exclusivity in the cable and broadcast
    industries*, Report and Order, 3 FCC Rcd 5299, 5315 (1988).

[^41]: 47 C.F.R. §§ 76.92(g), 76.56; s*ee also* 47 C.F.R. § 73.621
    (general description of noncommercial educational stations).

[^42]: *See* 47 C.F.R. §§ 76.95(a), 76.156(b); s*ee also Program
    Exclusivity Order,* 3 FCC Rcd. at 5314 (1988).

[^43]: In addition, a cable operator need not black out the syndicated
    programming of an otherwise distant station if that station\'s grade
    B signal encompasses the relevant cable community. *See* 47 C.F.R. §
    76.156(a).

[^44]: *In re Network Program Exclusivity Nonduplication Rules for Cable
    Television,* First Report and Order, 52 FCC 2d 519, 535 (1975). To
    establish over-the-air viewership, the Commission\'s rules provide
    for an empirical study to be conducted to determine whether a
    subject station\'s signal is available to viewers over-the-air in
    the relevant cable system's community unit. *See* 47 C.F.R. § 76.54.
    Such studies are conducted by parties seeking to be declared
    significantly viewed through a Commission declaratory ruling and
    consist of an audience survey of over-the-air viewership. If a
    subject station\'s signal meets certain statistically relevant
    viewership levels in this population, that signal is afforded
    significantly viewed status. *See* 47 C.F.R. § 76.5(i); s*ee also
    1999 Cable and TV Station Coverage Atlas,* Warren Publishing Inc.,
    at 87-155 ("Significantly Viewed Television Stations,
    County-by-County Listing Derived from Study by American Research
    Bureau Originally Revised May 1972;" includes stations granted
    significantly viewed status by the Commission through March 1999).

[^45]: That is, a superstation might be significantly viewed in areas
    surrounding its city of license based upon its over-the-air
    broadcast signal from the station transmitter rather than by
    satellite.

[^46]: *See* 47 C.F.R. §§ 76.92(b), (e). The syndicated program
    exclusivity rules do not contain priorities.

[^47]: *But see* discussion, *infra ¶* 34, considering superstations in
    their capacity as local stations.

[^48]: 47 C.F.R. § 76.151. A syndicated program is defined as \"any
    program sold, licensed, distributed or offered to television station
    licensees in more than one market within the United States other
    than as network programming . . . .\" 47 C.F.R. §76.5(ii).

[^49]: *See* 47 C.F.R. § 76.151.

[^50]: *See* 47 C.F.R. § 76.151, note (note refers to "broadcast
    territorial exclusivity rights" as defined in 47 C.F.R. §
    73.658(m)).

[^51]: *See* 47 C.F.R. § 76.94 (generally 60 calendar days for network
    non-duplication) and § 76.155 (syndicated exclusivity procedures
    vary with specific circumstances).

[^52]: For a full explanation of the notification rules see *In re
    Amendment of Parts 73 and 76 of the Commission's Rules relating to
    program exclusivity in the cable and broadcast industries*, Report
    and Order, 3 FCC Rcd. 5299, 5315 (1988).

[^53]: *See* 47 CFR §§ 76.93, 76.153.

[^54]: *See* 47 C.F.R. §§ 76.153, 76.155 (either television broadcast
    licensee or syndicated program distributor may exercise syndicated
    exclusivity rights under certain circumstances and notify cable
    system accordingly).

[^55]: *See* 47 C.F.R. § 76.156(b); s*ee also Program Exclusivity
    Order,* 3 FCC Rcd. at 5314 (1988).

[^56]: 47 C.F.R. § 76.156(a).

[^57]: *See* 47 C.F.R. § 76.92(c) (applying network nonduplication to
    noncommercial stations and note no comparable provision in Section
    76.151 for the syndicated exclusivity rules).

[^58]: 47 C.F.R. § 76.67.

[^59]: *See In re Amendment of Part 76 of the Commission's Rules and
    Regulations Relative to Cable Television Systems and the Carriage of
    Sports Programs,* Report and Order, 54 FCC 2d 265, 281 (1975).

[^60]: Section 76.67(a) applies "if the event is not available live on a
    television broadcast signal carried by the community unit meeting
    the criteria specified in §§76.5(gg)(1) through 76.5(gg)(3) of this
    part." 47 C.F.R. §76.5(a). The former Section 76.5(gg) defined
    "basic cable service" for purposes of basic cable service rate
    regulation and incorporated the standard for mandatory carriage
    under the Commission's original 1972 must-carry rules. In summary,
    for purposes of rate regulation of the basic tier at that time,
    Section 76.5(gg) provided that the basic tier for cable systems
    serving communities located outside all major and smaller television
    markets included television broadcast stations within whose Grade B
    contours the community of the community unit was located; for
    communities in smaller television markets, the basic tier included
    television broadcast stations within whose specified zone the
    community of the community unit is located, commercial television
    broadcast stations licensed to communities in other smaller
    television markets within whose Grade B contours the community of
    the community unit is located, and television broadcast stations
    licensed to communities that are generally considered to be part of
    the same smaller television market; and for communities in major
    television markets, the basic tier included television broadcast
    stations within whose specified zone the community of the community
    unit is located and television broadcast stations licensed to other
    designated communities of the same major television market; as well
    as, in all size markets, commercial television broadcast stations
    that were significantly viewed in the community of the community
    unit.

[^61]: For a full explanation of the relevant zone of protection for the
    application of the sports blackout rule see 47 C.F.R. § 76.5(e). The
    35 mile zone of protection is measured from a television station\'s
    reference point based upon the list of reference points in 47 C.F.R.
    § 76.53. The same reference point applies to all stations licensed
    to the same community regardless of where their transmitter or
    studios are located.

[^62]: *See* 47 C.F.R. §§ 76.67(b), (c).

[^63]: Notifications for regularly scheduled events subject to the
    sports blackout rule must be received no later than the Monday
    preceding the calendar week during which the deletion is to be made.
    Notifications for events not regularly scheduled must be received
    within 24 hours of the time the telecast to be deleted is known, but
    in no event less than 24 hours from the time the event will take
    place. 47 C.F.R. § 76.67(c).

[^64]: *See* 47 C.F.R. §§ 76.67(f), 76.95(a), 76.156(b).

[^65]: We acknowledge that some "served" households that can receive a
    signal of Grade B intensity will be eligible for retransmission of
    distant network signals until December 31, 2004 pursuant to the
    Moratorium on Copyright Liability provisions of the Satellite Home
    Viewer Improvement Act, 17 U.S.C. § 119(e) (*as amended by* § 1005
    of the SHVIA).

[^66]: Note that this argument focuses on the sports blackout rule as it
    applies to network stations and not to retransmission of nationally
    distributed superstations. Because satellite carriers may retransmit
    nationally distributed superstations to both served and unserved
    households, we believe there will be more households affected by
    sports blackout of nationally distributed superstations than by
    sports blackout of network stations.

[^67]: 47 U.S.C. § 339(b)(1)(B) (*as amended by* § 1008 of the SHVIA).

[^68]: *Joint Explanatory Statement* at H11796. Specifically, the
    conferees wrote: "These regulations under subparagraph (B) are to be
    imposed 'to the extent technically feasible and not economically
    prohibitive' with respect to the affected parties. The burden of
    showing that conforming to rules similar to cable would be
    'economically prohibitive' is a heavy one. It would entail a very
    serious economic threat to the health of the carrier. Without that
    showing, the rules should be as similar as possible to that
    applicable to cable services." *Id.*

[^69]: *See* 17 U.S.C. §§ 122(a), (j)(2).

[^70]: *See* 47 C.F.R. § 76.5(dd).

[^71]: "Community unit" refers to "a separate and distinct community or
    municipal entity (including unincorporated communities within
    unincorporated areas and including single discrete unincorporated
    areas)." 47 C.F.R. § 76.5(dd).

[^72]: *See* 17 U.S.C. § 122(j)(2) (*as amended by* § 1002 of the
    SHVIA).

[^73]: 47 C.F.R. §§ 76.161, 76.67(d). The sports blackout rule also
    allows cable operators to substitute programming when a sporting
    event is being deleted.

[^74]: *See* 47 U.S.C. § 325(b)(2)(B)(iii) and discussion, *supra*, at ¶
    8.

[^75]: As noted in the discussion of the network nonduplication rules,
    *supra*, the Commission has determined in the cable context that the
    use of different camera crews and announcers for a sporting event
    results in the distant program not being considered the same as the
    local program. *See Major League Baseball*, 6 FCC Rcd 5573 (1991).

[^76]: Retransmission of distant network stations is generally
    restricted to households that cannot receive local stations
    over-the-air. *See* discussion *infra* at ¶¶ 7 and 26.

[^77]: *See* 47 U.S.C. § 339(d)(2) (*as amended by* § 1008(a) of the
    SHVIA) and 17 U.S.C. § 119(d)(2) (*as amended by* § 1008(b) of the
    SHVIA) and discussion of definitions of "nationally distributed
    superstation" and "network station," *supra*, at ¶ 6 and n. 9
    respectively.

[^78]: *See In re Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992 Broadcast Signal Carriage
    Issues*, ("*Must Carry Reconsideration Order*"), 9 FCC Rcd. 6723,
    6742 (1994) (\"Congress intended for all local commercial broadcast
    stations to have the option to assert either must-carry or
    retransmission consent within their individual market. These local
    commercial stations do not become superstations until such time as
    they are retransmitted via satellite outside their market, an
    activity unrelated to their status as local commercial broadcast
    stations within their market. Therefore, such local commercial
    stations retain the right to elect between must-carry and
    retransmission consent within their market.\").

[^79]: *See In re Carriage of the Transmission of Digital Television
    Broadcast Stations*, Notice of Proposed Rulemaking, 13 FCC Rcd.
    15092 (1988).

[^80]: Section 339(c) requires the Commission to conduct an inquiry into
    alternative standards for determining subscriber eligibility to
    receive distant signals and specifies that the Commission should
    recommend standards for analog and, separately, for digital signals.
    In addition, in the *Joint Explanatory Statement*, the conferees
    state, with reference to must carry requirements for satellite
    carriers, that they take no position regarding the application of
    must-carry rules to carriage of digital television signals by either
    cable or satellite systems. *Joint Explanatory Statement* at H11795.

[^81]: *See* *In re* *Electronic Filing of Documents in Rulemaking
    Proceedings*, 13 FCC Rcd. 11322 (1998) (amending Parts 0 and 1 of
    the Commission's rules to allow electronic filing of comments and
    other pleadings).

[^82]: *See* 5 U.S.C. § 603(2).