**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | * | CS Docket No. 00-2           |
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**REPORT AND ORDER**

**Adopted: October 27, 2000 Released: November 2, 2000**

By the Commission:

I. Introduction 1

II\. BACKGROUND [3](#background)

III\. Summary of Decision 5

IV\. STATUTORY INTERPRETATION AND DEFINITIONAL ISSUES 8

V. Section 339(b)(1)(A): Application of Network Non-duplication,
Syndicated

Exclusivity, and Sports Blackout to Retransmission of Nationally

Distributed Superstations 16

A. Separate Satellite Rules **20**

B. Zone of Protection **24**

C. Use of Zip Codes to Determine the Location of Affected Households
**27**

D. Terms of Contractual Agreements **33**

E. Notification Requirements **39**

F. Substitute Programming **45**

G. Transition period **48**

H. Small System Exception and C-Band Carriers **51**

I. Exceptions Preventing One Local Station from Blacking Out Another
**56**

J. Overlapping Specified Zones **58**

K. NCE Must-Carry Exception **59**

VI\. Section 339(b)(1)(A) and (B): Application of Sports Blackout to

Retransmission of nationally distributed superstations and Network

stations 60

A. Technical and Economic Effects of Sports Blackout on Satellite
Carriers **62**

B. Notification **65**

C. Use of Zip Codes to Determine the Location of Households Subject to
Sports Blackout **70**

D. Exception for Small Community Units, as Applied to Satellite Carriers
**71**

E. Other Provisions of Sports Blackout Rule for Satellite Carriers
**74**

VII\. other issues 76

A. Digital Signals **76**

B. NFL Proposal to Expand Exclusivity Rules to Apply to Unitary Program
Packages **80**

C. Two Network Affiliates in One DMA **83**

D. Technical Revisions to the Rules: §76.5(gg) **84**

E. Other Technical Corrections **87**

VIII\. PROCEDURAL MATTERS 90

IX\. ORDERING CLAUSES 93

Appendix A: Commenters

Appendix B: RULES

Appendix C: Final regulatory flexibility ACT analysis

# Introduction

1.  In this Report and Order ("Order"), we adopt network
    non-duplication, syndicated exclusivity, and sports blackout rules
    for satellite carriers. These rules implement provisions of the
    Satellite Home Viewer Improvement Act of 1999 ("SHVIA"),[^1] which
    provides statutory copyright licenses for satellite carriers to
    provide additional local and national broadcast programming to
    subscribers. In enacting the SHVIA, Congress sought to create parity
    between satellite carriers and cable operators with regard to the
    retransmission of broadcast programming and to expand the
    availability of such programming to consumers. Prior to enactment of
    the SHVIA, the copyright laws made it virtually impossible for
    satellite subscribers to receive television broadcast programming by
    satellite. In adopting these rules, the Commission implements the
    statutory requirements and seeks to facilitate competition in the
    multichannel video programming distribution marketplace.

2.  Section 1008 of the SHVIA creates a new Section 339 of the
    Communications Act of 1934, as amended ("Communications Act")
    entitled "Carriage of Distant Television Stations by Satellite
    Carriers."[^2] Section 339(b) directs the Commission to apply the
    network non-duplication, syndicated exclusivity, and sports blackout
    rules, previously applicable only to cable television systems, to
    satellite carriers' retransmission of nationally distributed
    superstations to satellite subscribers.[^3] Congress also requires
    the Commission to apply the cable sports blackout rule to satellite
    carriers' retransmission of network stations, but only "to the
    extent technically feasible and not economically prohibitive."[^4]
    The Commission released a Notice of Proposed Rulemaking ("*Notice*")
    on January 7, 2000, seeking comment on how best to apply these rules
    to satellite carriers.[^5] The Commission received 22 comments and
    14 reply comments to the *Notice*.[^6]

# BACKGROUND

3.  The network non-duplication, syndicated exclusivity, and sports
    blackout rules (collectively referred to herein as "the exclusivity
    rules"), as applied in the cable context, generally protect
    exclusive contractual rights that have been negotiated between
    program providers and broadcasters or other rights holders. These
    exclusive contractual rights are potentially threatened by cable
    systems that are capable of importing duplicative programming from
    distant sources beyond the control of the contracting parties. The
    cable exclusivity rules provide that specific programs must be
    deleted from distant television broadcast signals delivered to cable
    subscribers if the programs are subject to exclusive rights pursuant
    to contracts with local stations. Additionally, pursuant to the
    sports blackout rule, sporting events carried on distant stations
    must be deleted when carriage would violate sporting teams' or
    leagues' arrangements to protect gate receipts in the local
    market.[^7]

4.  Section 339(b)(1)(A) of the Communications Act, as amended by the
    SHVIA, requires the Commission "to apply network non-duplication
    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."[^8] 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." [^9]
    The SHVIA requires that the Commission implement these new rules so
    that they will be "as similar as possible" to the rules applicable
    to cable operators.[^10]

# Summary of Decision

5.  In implementing these sections of the SHVIA, the Commission attempts
    to be faithful to the clear Congressional intent to place satellite
    carriers on an equal footing with cable operators, while taking into
    consideration that the operational structures of these two
    Multichannel Video Programming Distributors ("MVPD"s) are very
    different. In the context of the SHVIA, which is fundamentally part
    of the copyright laws, we are cognizant also of the important
    protection that the exclusivity rules provide to broadcasters and
    copyright holders. The SHVIA facilitates satellite carriage of
    additional broadcast stations through the use of a statutory
    copyright license. By applying the cable exclusivity rules to
    satellite carriers, Congress sought to keep the competitive
    marketplace in balance by protecting the broadcasters' private
    contractual arrangements and ensuring that satellite carriers have
    regulatory obligations that are as similar as possible to cable
    operators.[^11] The statutory language unambiguously directs us to
    apply all three of the cable exclusivity rules to satellite carriers
    with respect to retransmission of nationally distributed
    superstations. The SHVIA further requires that only the sports
    blackout rule be applied to satellite carriers' retransmission of
    network stations and limits application of the cable rule in this
    context "to the extent technically feasible and not economically
    prohibitive."[^12] Congressional intent, as expressed in the Joint
    Explanatory Statement, places a heavy burden on showing that rules
    similar to the cable rules would be "economically prohibitive" for
    satellite carriers.[^13]

6.  In general, under the new statutory provisions, the network
    non-duplication and syndicated exclusivity rules apply when a
    satellite carrier retransmits a nationally distributed superstation
    to a household within a local broadcaster's zone of protection,[^14]
    and the nationally distributed superstation carries a program to
    which the local station has exclusive rights.[^15] In addition, the
    sports blackout rules will apply when a subject sporting event will
    not be aired live by any local television station, and a satellite
    carrier retransmits a nationally distributed superstation or a
    distant network station carrying that sporting event to a household
    within the zone of protection of the holder of exclusive
    distribution rights to the event. In all of these cases, the
    television broadcast station or other rights holder may require the
    satellite carrier to blackout these particular programs for the
    satellite subscriber households within the protected zone.

7.  In the *Notice* we sought comments on how we could follow the
    Congressional mandate to apply the cable exclusivity rules as
    closely as possible to satellite carriers while taking account of
    the differences between the two industries. In general, the comments
    did not provide specific data on cost or technical difficulties in
    applying the exclusivity rules to satellite carriers and leave us
    with the conclusion that, in most cases, these rules can be applied
    directly to satellite carriers. There is a general consensus,
    however, that the "community units" used for identification of cable
    systems are inapplicable in the satellite context. We decide here to
    use zip codes in lieu of community units to define the various zones
    of protection afforded under the satellite exclusivity rules adopted
    today. In large part, the notification provisions of the cable
    exclusivity rules can be applied in the satellite context, except
    with respect to the sports blackout requirements, for which we have
    the statutory flexibility and record to support slightly different
    requirements. In a further effort to provide comparable treatment
    for the cable and satellite rules, we adapt the exceptions to the
    cable exclusivity rules for small systems to the satellite context.
    We also require that the contractual language granting exclusive
    rights in a market clearly apply to satellite carriage, and we
    provide a period of time for satellite carriers to phase-in
    implementation of the new rules. Finally, we decline to take the
    steps advocated by the National Football League to go beyond the
    statutory requirements to delete non-duplicating sports programming
    that is part of a sports program "unitary" package because it would
    unnecessarily and unjustifiably further limit the ability of
    consumers to view the programming of their choice.

# STATUTORY INTERPRETATION AND DEFINITIONAL ISSUES 

8.  Section 339(b)(1), as created by the SHVIA, applies to "satellite
    carriers." Section 339(d)(4) defines "satellite carrier" by
    reference to the Copyright Act definition as

    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.[^16]

    Contrary to the arguments of several commenters, there is nothing in
    the SHVIA or the legislative history that suggests that satellite
    carriers operating in the C-Band were intended to be exempted from
    the requirements of Section 339(b)(1).[^17] To the extent C-Band
    satellite carriers can be subject to exceptions from any of the
    exclusivity rules we adopt today, they are specifically described
    below. In the absence of specific language distinguishing C-Band
    satellite carriers, references to "satellite carriers" in this Order
    refer to all satellite carriers that meet the definition in the
    SHVIA.

9.  Section 339(b)(1)(A) of the Communications Act requires the
    Commission to apply network non-duplication protection, syndicated
    exclusivity protection, and sports blackout protection to the
    retransmission of the signals of nationally distributed
    superstations by satellite carriers to subscribers.[^18] 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;[^19]
>
> \(B\) on May 1, 1991, was retransmitted by a satellite carrier and was
> not a network station[^20] 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.[^21]

10. In the *Notice*, we stated 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).[^22] We also stated
    that since no other station could meet these criteria in the future
    due to the date-specific conditions set forth in the definition, the
    foregoing constitutes a finite list of the nationally distributed
    superstations covered by the statute.[^23] Commenters directly
    addressing this issue generally agree with our conclusion that this
    list of nationally distributed superstations is complete and
    finite.[^24]

11. 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.[^25] The
    amended copyright provision provides that the retransmission of
    nationally distributed superstations to subscribers who do not
    reside in "unserved households"[^26] shall not violate the
    compulsory copyright license. Thus, we conclude that as a result of
    Section 1005(b), there is no geographic restriction on the
    retransmission of "nationally distributed superstations" pursuant to
    the compulsory copyright license.[^27]

12. In addition, the SHVIA amended the retransmission consent section of
    the Communications Act, which generally prohibits MVPDs from
    retransmitting the signals of a broadcaster absent the broadcaster's
    written authorization.[^28] The SHVIA allows a satellite carrier to
    retransmit the signal of a superstation outside the station's local
    market without the station's consent 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 non-duplication, syndicated
    exclusivity, and sports black out rules.[^29] 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,[^30] and there are no
    additional stations that are included or excluded by operation of
    this third criterion. As discussed in the *Notice*, we conclude
    that, pursuant to these new statutory mandates in the SHVIA,
    satellite carriers are permitted to retransmit the signals of the
    nationally distributed superstations covered by Section 339(b)(1)(A)
    outside the station's local market to both served and unserved
    households without the station's consent and without geographic
    restriction.[^31] In a similar but not identical provision, the
    SHVIA permits a cable operator or other MVPD (other than a satellite
    carrier) to retransmit a television broadcast station outside of its
    local market without its consent, provided the MVPD obtains the
    signal from a satellite, and the station was a superstation on May
    1, 1991 and was retransmitted by a satellite carrier under the
    Section 119 statutory license as of July 1, 1998.[^32]

13. In addition to applying the existing cable exclusivity rules to
    nationally distributed superstations, Section 339(b)(1)(B) requires
    the Commission to apply sports blackout protection to the
    retransmission of the signals of network stations by satellite
    carriers to subscribers "to the extent technically feasible and not
    economically prohibitive." [^33] By its terms, Section 339(b)(1)(B)
    applies only to "network stations," which are television broadcast
    stations owned or operated by, or affiliated with, the television
    networks.[^34] Affiliates of these networks are the only entities
    that meet the definition of a television network station contained
    in the Copyright Act[^35] and are the only stations covered by
    Section 339(b)(1)(B). In the cable context, the Commission's sports
    blackout rule applies to any television broadcast station and is not
    limited to network stations.[^36] Consistent with the provisions of
    the statute, we confine the application of the satellite sports
    blackout rule to retransmission of network stations. The SHVIA
    statutory license for satellite carriers applies only to
    retransmission of distant network stations.[^37] Thus it is
    consistent for the sports blackout provisions to be similarly
    limited pursuant to Section 339(b)(1)(B).

14. In the *Notice* we observed that the title of new Section 339,
    "Carriage of Distant Television Stations by Satellite Carriers,"
    indicates 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.[^38]
    The cable exclusivity rules were originally created and apply today
    to address cable importation of distant stations.[^39] We conclude,
    and most commenters agree, that it was Congress' intent to apply the
    sports blackout rules to retransmission of distant network stations
    and not to local network stations.[^40] We note, too, that the
    statutory copyright license for satellite carriage of distant
    network stations relies upon the definition of "network station" in
    the copyright provisions.[^41]

15. We also sought comment in the *Notice* on whether stations based in
    foreign countries are affected by the SHVIA provisions requiring
    application of the cable exclusivity and sports blackout rules to
    satellite retransmissions.[^42] Certain commenters addressing this
    issue argue that while the blackout protection afforded by the rules
    should apply to a foreign station's programming carried by a U.S.
    satellite carrier, a foreign station cannot invoke these protections
    against satellite importation of programming into its home
    market.[^43] Grupo Televisa, on the other hand, argues that the
    rules should apply in favor of non-U.S. licensed border stations
    serving U.S. markets and affiliated with U.S. networks, citing the
    inclusion of such stations in the compulsory license of Section 1002
    of the SHVIA.[^44] We agree with MPAA and NHL that foreign stations
    are beyond our jurisdiction and therefore unable to invoke the
    protection of the exclusivity and sports blackout rules. With
    respect to retransmission of a foreign station's programming into
    U.S. markets by a U.S. licensed satellite carrier, we conclude that
    the satellite rules will apply as they do with respect to the
    exclusivity rules governing cable systems.[^45]

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

16. Section 339(b)(1)(A) requires the Commission to apply network
    non-duplication protection, syndicated exclusivity protection, and
    sports blackout protection to the retransmission of signals of
    nationally distributed superstations by satellite carriers.[^46] In
    this section, we address the application of the network
    non-duplication and syndicated exclusivity rules to nationally
    distributed superstations together because these two rules are
    similar in significant respects.[^47]

17. The Commission's cable television network non-duplication rule
    allows a television broadcast station that has purchased exclusive
    rights to network programming within a specified area[^48] to
    protect its exclusivity against carriage of duplicating programming
    on local cable systems.[^49] The rule allows 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.[^50] A station may assert its exclusivity rights
    regardless of whether its signal is carried by the cable system in
    question. Under the cable network non-duplication rule, a television
    station is entitled to assert its exclusivity rights against a cable
    system serving any "cable community unit" within the station's
    "specified zone" that is carrying duplicative programming for which
    the local station has obtained exclusive distribution rights.[^51] 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").[^52] 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.[^53]

18. 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.[^54] This rule is similar in operation to the network
    non-duplication rule, but it applies to exclusive contracts for
    syndicated programming, rather than for network programming.[^55]

19. As with network non-duplication, 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.[^56] 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.[^57] 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 non-duplication rules, for syndicated programming to be
    protected, the programming covered by the contract must be the same
    as the distant programming. We note that under both of these cable
    rules, it is not necessary that the broadcast station or rights
    holder asserting protection actually be carried on the cable system
    in question, nor is it required that the rights holder asserting its
    rights actually display the programming for which it asserts
    protection.[^58] These cable rules protect contractual rights and
    apply even if the programming is not shown at all or if the
    subscribers subject to the deletion do not have another source to
    receive the programming.[^59]

## Separate Satellite Rules

20. Initially, we sought comment on whether we should incorporate the
    rules we adopt to implement Section 339(b)(1)(A) into the existing
    Commission rules, or whether we should adopt separate rules for
    satellite carriers.[^60] Commenters generally recommend that the
    Commission adopt separate rules for satellite carriers patterned
    after the cable exclusivity rules.[^61] We concur that, even though
    Congress specifically cited the existing rule sections in the
    statute, it will be less confusing and simpler to implement a
    separate set of rules in the satellite context. We agree with
    DirecTV that new rules will be easier to understand and comply with
    if they are contained in a parallel, but distinct, section, which
    will allow the differences between the rules applicable to the
    satellite and cable industries to be highlighted.[^62] This will
    enable the Commission to maintain consistency in its rules, while
    adopting the minor adjustments that are necessary to properly apply
    the rules to satellite carriers (e.g., application only to
    nationally distributed superstations).[^63] In this regard, we do
    not agree with WB that the direct references to the corresponding
    cable rules indicate that Congress intended the rules to be
    identical.[^64] The statutory language directs us to develop rules
    that apply the exclusivity protections in the satellite context, not
    merely to add the words "satellite carriers" in the existing cable
    rules.[^65] While we are establishing a separate rule section for
    the exclusivity rules that apply to satellite carriers, these rules
    will not be substantially different from the equivalent cable rules.

21. Some satellite industry commenters argue that we must take into
    account the distinctive characteristics of satellite services and
    the associated issues of technical feasibility and the cost of
    compliance.[^66] EchoStar contends that the rules for satellite
    carriers should be significantly different from the cable rules due
    to the characteristics of satellite services and the onerous burdens
    of compliance.[^67] Echostar raises a variety of technical and
    administrative issues, such as the need to develop a database to
    determine affected subscribers and the addition of "untold layers of
    complexity to its authorization/unscrambling procedures" to delete
    different programs in different areas of the country if we merely
    apply the cable exclusivity rules to satellite without change.[^68]
    EchoStar asserts that unless appropriately mitigated, the rules
    could lead to the cessation of satellite carriage of superstations,
    which would contravene the legislative goal of parity between cable
    and satellite operators.[^69] EchoStar also argues that if Congress
    intended for the Commission to automatically employ the cable rules
    in the satellite context it would not have directed the Commission
    to conduct a rulemaking.[^70] Alternatively, in support of a
    separate rule section, DirecTV asserts that, given the technological
    differences between cable and satellites, in certain situations it
    does not make sense, or is simply not technologically feasible, to
    merely "lift" the cable rules.[^71]

22. We reject the arguments that the satellite exclusivity rules should
    be substantially different from the cable rules due to technical
    considerations and the burdens of compliance.[^72] Congress directed
    the Commission to make the rules "as similar as possible" to the
    cable rules and to protect the contractual exclusivity rights
    purchased by broadcasters and sold by program rights holders. [^73]
    The statute specifically cites the existing network non-duplication
    and syndicated exclusivity rules as guidance.[^74] In particular,
    the statute does not provide for any exemption from these rules
    based on technical feasibility or economic hardship as it does for
    the application of the sports blackout rules to network
    stations.[^75] We believe, however, that in considering the
    application of these rules to satellite carriers we must consider
    several modifications that reflect the practical differences between
    the two industries and the different delivery systems they employ,
    as detailed herein.[^76]

23. Some broadcasters argue that for there to be parity between cable
    and satellite providers, the Commission should extend the
    protections of network non-duplication to all distant network
    carriage to protect emerging networks and notes that the existing
    cable rules are not statutorily mandated.[^77] Because Congress
    provided for the application of the sports blackout rule to network
    stations, but not for the network non-duplication or syndicated
    exclusivity rules, we believe that extending the rules in this
    manner is beyond what Congress intended. We reject this proposal on
    the same basis that we reject the satellite industry's request to
    adopt significantly different rules for satellite carriers due to
    technical considerations.[^78]

## Zone of Protection

24. Under the network non-duplication rules, a commercial or
    noncommercial television station licensed to a major television
    market may assert exclusivity rights within its specified zone.[^79]
    That zone is generally the 35-mile area surrounding a broadcast
    television station's community of license.[^80] The zone of
    protection for stations licensed to smaller television markets
    extends an additional 20 miles ("secondary zone"), for a total of 55
    miles surrounding its community of license.[^81] Pursuant to the
    syndicated exclusivity rules, a local commercial television station
    is entitled to assert its exclusivity rights only within a 35-mile
    geographic zone.[^82] There is no extended zone of protection for
    smaller market stations. For both rules, a station licensed to a
    hyphenated television market, as defined in the rules, is entitled
    to assert exclusivity within 35 miles surrounding each named
    city.[^83] However, the zone of protection may not exceed the area
    agreed upon between the program supplier or network and the
    television station nor the area within which the station has
    acquired broadcast territorial exclusivity rights.[^84]

25. A majority of commenters support the adoption of the same zones of
    protection for broadcast stations in this context because they
    provide a definitive area within which exclusivity rights may be
    asserted.[^85] We agree. We also concur that, as with the cable
    rules, the zone of protection should be limited by the terms of the
    contractual agreement between the station and the program rights
    holder, with the applicable geographic zone set forth in the rules
    providing an outside limit on the permitted zone of protection.[^86]
    Several commenters mention, but reject, the use of other zones of
    protection, such as a station's grade B contour[^87] or a zone of
    protection coextensive with the boundaries of "local market" for
    retransmission consent purposes. [^88] As Tribune observes, since
    Congress did not mention a zone different from that of the cable
    rules, it appears appropriate to use the existing specified
    zone.[^89] We also believe that this conclusion is consistent with
    the congressional directive to make these rules as similar as
    possible to the cable rules. We further believe that implementation
    in the satellite context is feasible because existing methods
    (*e.g.*, the geocoding techniques used to determine served and
    unserved households) can be used to determine whether a household is
    located in a specified zone.[^90] Accordingly, local broadcast
    television stations will be entitled to assert exclusivity
    protection throughout the same zones of protection as those
    specified in the cable rules.

26. We reject EchoStar's proposal that a satellite carrier should not be
    required to comply with requests for exclusivity (either network or
    syndicated) unless the program deletion is requested by qualified
    broadcast stations whose geographic zones (not counting overlaps)
    cover a substantial majority of the nation.[^91] The "geographic
    zone" is limited to the 35/55 mile area around the reference point
    in the community of license. EchoStar argues that this requirement
    is needed in order to deal with the mosaic of diverse deletion
    requests for the same feed.[^92] EchoStar's proposal ignores the
    exclusivity rights of individual broadcasters and undermines
    regulatory objectives, contrary to congressional intent and, in our
    view, defeats the purpose of the statutory mandate to protect the
    exclusivity rights of local broadcast stations. [^93] Moreover,
    while EchoStar claims that it would have to develop a huge database
    to determine whether a subscriber is within the specified zone,[^94]
    we observe that satellite carriers already maintain such databases
    of subscribers for determining eligibility for local-into-local and
    network signals, for information on the particular services to which
    a household subscribes, and for billing purposes.[^95] In addition,
    even though satellite carriers use a nationwide or multi-state
    footprint to deliver programming, they provide signals on a
    household-by-household basis that enables them to deliver different
    programming to different households based upon which programming
    package the subscriber selects. Satellite carriers currently delete
    programming when it is required by contracts negotiated in the
    marketplace.[^96] Furthermore, as a practical matter, the
    programming deletions affect only five of the six nationally
    distributed superstations because WGN is "largely, if not completely
    syndex and nondupe-proof."[^97] With respect to network program
    deletions, we expect significant uniformity across markets where
    affiliates of WB or UPN assert their rights since each superstation
    is affiliated with one of these networks.[^98] With respect to
    syndicated programming, the superstations are large market stations,
    which typically acquire the most popular syndicated programming that
    is sold in the vast majority of markets, making EchoStar's fear of a
    crazy quilt pattern of deletions largely unfounded.[^99] Moreover,
    the statute unambiguously requires that we apply the exclusivity
    rules in these situations. Adopting EchoStar's proposal to limit
    application of the rules to the non-existent circumstance in which
    the broadcaster's geographic zone would cover most of the nation
    effectively eliminates the application of the exclusivity rules. The
    statutory language does not give us this choice.

## Use of Zip Codes to Determine the Location of Affected Households

27. The cable rules apply the exclusivity rules on a community unit
    basis within a station's zone of protection.[^100] Several
    commenters support the application of these rules on a community
    unit basis in order that they be as similar as possible to the cable
    rules and to eliminate the possible confusion to customers in the
    same neighborhood that would be caused by a program being blacked
    out if a household subscribed to cable, but not if it subscribed to
    a satellite service.[^101] In order to promote parity between cable
    operators and satellite carriers, they argue that it is important
    that the blackout areas for satellite carriers be as congruent as
    possible with the blackout areas for competing cable systems.[^102]
    They further state that requiring satellite carriers to black out
    programming on the same community unit basis as is applied to cable
    is the most easily applied, understood, and enforced approach for
    providers and residents.[^103] Other commenters claim that it is
    impossible or inappropriate to import the community unit concept
    from cable to satellite as cable systems have specific,
    municipally-granted franchises to serve discrete communities, the
    boundaries of which are difficult to determine and unnecessarily
    complex to apply.[^104] They propose that subscribers subject to the
    blackout rules be ascertained by means of their zip code, a method
    currently used by satellite carriers for other purposes.[^105] These
    commenters argue that since satellite providers do not have
    identifiers assigned to the communities they serve, as is the case
    for cable, a comparable method for determining the areas to which
    the zone of protection applies involves reliance on zip codes.[^106]
    This method, like the use of cable community units, is not a perfect
    means to achieve congruence between the zip code boundary and that
    of the specified zone, but it is a workable compromise using a
    fairly stable identifier.[^107] Moreover, in their reply comments,
    several proponents of the use of community units state that they
    would be willing to support a zip code approach as a reasonable
    alternative as long the rules would apply throughout the entire zip
    code.[^108]

28. We conclude that it is appropriate to use zip codes rather than
    community units in the satellite context.[^109] There is no readily
    applicable measure that will precisely match specified zones in
    either the cable or satellite context. However, zip codes are
    already used by satellite providers to determine the location of
    subscribers for other purposes and it would be more difficult to
    determine which satellite subscribers are located within a cable
    community unit, which is tied to the cable franchise process.[^110]
    As with the cable community unit concept, reliance on zip codes can
    often be overinclusive of the zone covered by the exclusivity rights
    to be protected.[^111] To closely align the rules for satellite
    carriers with the cable rules, we have been urged to require a
    satellite provider to provide protection in all relevant zip codes
    that fall, in whole or in part, within the zone of protection.[^112]
    We conclude, as described below, that if technology permits
    satellite carriers to more closely align their deletions to the
    precise areas of the protected zone, they may do so.

29. Satellite interests generally propose that the broadcaster or rights
    holder asserting its exclusivity rights provide the satellite
    carrier with an electronic file of the affected zip codes that
    corresponds to the specified zone.[^113] Alternatively, broadcasters
    contend that the satellite carriers already have zip code
    information that they use for other purposes and they should be
    responsible for determining which subscribers are located in the
    areas where the programming must be blacked out.[^114] Since
    exclusivity contracts vary in their coverage areas and it is the
    broadcast station or rights holder that has negotiated such
    contracts, we conclude that the party seeking exclusivity protection
    will be responsible for identifying the affected zip code areas
    along with the other information that must be provided to the
    satellite carrier.[^115] This approach is consistent with our
    existing cable rules that place the notification burdens on the
    party seeking to assert its exclusivity rights.[^116] We do not
    believe that this requirement places an undue burden on a
    broadcaster seeking exclusivity. In many cases, the contracts will
    provide for exclusivity up to the limits of the specified zone and
    the broadcaster will only have to determine the appropriate zip
    codes once to cover such contracts. Accordingly, we will require
    broadcast stations or rights holders to provide satellite carriers
    with the list of affected zip codes, although we will not mandate
    that it be in any specific format (e.g., an electronic file).[^117]
    We encourage satellite carriers and broadcasters to work together to
    effectuate the provisions of the statute, even though we place the
    onus of determining the affected zip codes on the party seeking
    exclusivity protection.[^118]

30. We believe that for purposes of complying with these and other
    provisions of the SHVIA, satellite operators must generally be aware
    of the actual physical location of a subscriber.[^119] Several
    commenters express concerns regarding the accurate location of a
    subscriber whose address is a post office box (e.g., a U.S. Post
    Office Box or a private post office box) or rural route number,
    stating that a non-street address makes it impossible to apply any
    rule that relies on a geographic location.[^120] Since accurate
    addresses are the linchpin of a system that relies on geographic
    location, they propose that satellite carriers be required to
    certify that they have no basis for believing that subscribers have
    provided inaccurate addresses for purposes of evading the
    rules.[^121] In opposition, DirecTV argues that there is no parallel
    provision in the cable rules to serve as a basis for imposing this
    additional obligation on satellite carriers.[^122]

31. On the basis of the record, there is general agreement that rural
    route numbers reasonably approximate the actual location of the
    subscriber and are acceptable because they are generally located
    close to the residential address where the subscriber receives the
    satellite programming.[^123] Accordingly, we will allow satellite
    carriers to use the zip codes associated with rural route numbers to
    determine the location of such subscribers. However, where a
    subscriber chooses to provide a post office box for a billing
    address, we will require that satellite carriers obtain a
    residential street address -- or simply a zip code \-- where the
    service is actually being received. [^124] Upon request, satellite
    carriers may verify the data provided by broadcasters and vice
    versa. We decline to adopt the reporting and auditing procedures
    proposed in the comments, as they would place an undue burden on
    broadcasters, satellite carriers and the Commission.

32. In addition, MPAA proposes that in instances in which the satellite
    carriers serve individual households that are within a zip code but
    outside the specified zone, such subscribers should be permitted to
    petition for a waiver so that their programming is not blacked
    out.[^125] It contends that, since the satellite rules apply on a
    household basis, this waiver process would serve the purposes of the
    statute (i.e., parity with cable and protection of rights holders)
    without unduly depriving satellite subscribers beyond the specified
    zone of programming. We acknowledge the cable rules require cable
    operators to provide exclusivity protection throughout community
    units, even if some of their subscribers in that unit are located
    outside the specified zone. This requirement is based on our
    understanding that it is not technically feasible for cable
    operators to black out programming to individual households. On the
    grounds of maintaining regulatory parity, NCTA advocates requiring
    satellite carriers to delete programming throughout zip code areas
    that in whole or part overlap the broadcaster's zone of
    protection.[^126] Notwithstanding our general interest in regulatory
    parity, we are reluctant to require satellite carriers to delete
    programming beyond the boundaries of the broadcaster's or rights
    holder's zone of protection if they have the technical capacity to
    accommodate such fine-tuning. Due to the unavoidable difference in
    coverage between the zip code areas and the community units, there
    are likely to be some differences between cable and satellite
    subscribers in terms of programming required to be deleted.[^127]
    Therefore, there is no reason to require deletions outside the
    protected zone on the grounds of parity. The satellite rules provide
    that satellite carriers must delete protected programming from
    subscribers within the zone of protection, but need not delete
    programming from subscribers who live in the part of a zip code area
    that extends beyond the zone of protection.

## Terms of Contractual Agreements

33. Pursuant to Section 76.93, television stations are entitled to
    exercise network non-duplication protection in accordance with their
    network agreements.[^128] The syndicated exclusivity rules allow
    television stations to exercise exclusivity rights in accordance
    with their syndicated program license agreement, consistent with the
    requirements to invoke protection specified in Section 76.159.[^129]
    Under Section 76.159, to be eligible for syndicated exclusivity
    protection, a station must have a contract or other written indicia
    that it holds syndication rights for the programming.[^130] Section
    76.159 requires that contracts contain special language for the
    licensee to invoke such protection.[^131]

34. We find that the current situation is analogous to that of 1988 when
    the Commission reinstated syndicated exclusivity rights, and the
    rule we adopt treats these new rights in the same manner as we did
    syndicated exclusivity contracts at that time.[^132] That is, we
    will give effect to new or existing contracts that unambiguously
    grant such rights against satellite carriage and permit existing
    contracts to be clarified or amended if they are ambiguous or did
    not anticipate a change in the law.[^133]

35. The cable rules do not prescribe specific language needed to invoke
    network non-duplication protection. Such exclusivity is provided in
    the contractual provisions of network-affiliate agreements that give
    individual stations the right to be the exclusive distributor of a
    network's programming in an area, generally within 35 miles of its
    city of license.[^134] Where a network-affiliation agreement does
    not provide for network non-duplication protection against satellite
    carriage of superstations because this right was unanticipated or
    the contract is ambiguous regarding such rights, parties will be
    given an opportunity to amend their agreements to include clear,
    specific language, as described below.

36. Some commenters contend that if the special language required by the
    cable syndicated exclusivity rules appears in a contract, it is
    applicable to satellite carriers. They contend that this language
    invokes the two essential elements for protection -- retransmission
    pursuant to the compulsory license and reference to the Commission's
    rules.[^135] They state that any station with exclusivity rights
    *vis-a-vis* cable should be considered to hold the same rights with
    respect to satellite carriers and that parties should not be
    required to renegotiate existing exclusivity contracts. We disagree.
    We cannot assume that the parties to these existing contracts
    negotiated for protection against satellite carriage when
    duplicating carriage by satellite was not covered by the
    Commission's exclusivity rules. We agree with other commenters who
    counter that the rules should only give effect to contracts that
    unambiguously grant exclusive rights *vis-à-vis* satellite
    carriers.[^136] They assert that existing contracts should not be
    enforceable against satellite carriers unless it is clear that the
    licensee or rights holder has negotiated for and received such
    rights. Until the SHVIA was enacted on November 29, 1999, there was
    no certainty of satellite exclusivity requirements. Arguably,
    parties could not have a reasonable expectation of exclusivity
    protection until the rules adopted by this Order take effect.
    Accordingly, we conclude that only those exclusive contracts that
    specifically cover satellite-delivered programming or are broad
    enough to encompass the delivery of duplicating programming by any
    delivery means (e.g., cable, satellite, wireless cable) entitle a
    station to assert exclusivity rights under these rules. Without such
    specificity, it is not clear whether the party granting the
    exhibition rights for the programming intended to convey network
    non-duplication or syndicated exclusivity rights to the broadcaster
    in the satellite context.

37. In reinstituting the syndicated exclusivity rules in 1988, the
    Commission allowed an opportunity for parties to amend their
    contracts to reflect the newly granted rights.[^137] Because
    government protection of both network non-duplication and syndicated
    exclusivity rights *vis a vis* satellite retransmission did not
    exist before November 29, 1999, consistent with this precedent we
    will provide a transition period of six months to allow parties to
    amend or clarify their network affiliation or syndicated exclusivity
    agreements to cover the exclusivity rights provided in Section
    339(b)(1)(A) and the rules we adopt today. We will require also that
    contracts entered into after release of this Order must include
    special words to invoke protection against duplication of
    programming imported under the satellite statutory copyright
    license.[^138] These special words shall apply to both the network
    non-duplication and syndicated exclusivity rules to ensure that, in
    either instance, the contracting parties contemplated protection
    from satellite carriage. Where existing contracts expressly provide
    for exclusivity against satellite carriage, albeit without using
    these special words, there is no need for renegotiation, nor for a
    six month period for parties to renegotiate. In these situations of
    remarkable prescience in the contract terms,[^139] the normal
    notification requirements will apply.[^140]

38. We will not require, as Echostar proposes, that the contracts be
    non-discriminatory or be exercised in a non-discriminatory
    fashion.[^141] We believe that such requirements are inconsistent
    with the rights of parties to negotiate the extent of exclusivity
    that they determine to be in their best interests and were not
    contemplated by the statute.[^142] Such requirements would also be
    inconsistent with the cable exclusivity rules.

## Notification Requirements

39. In order to exercise network non-duplication rights, a television
    station must notify each cable system operator of the protection
    sought.[^143] The syndicated exclusivity rules contain similar
    notification procedures with respect to broadcasters or distributors
    notifying cable systems of the exclusivity sought.[^144] In both
    cases, the notices must identify the party seeking non-duplication
    protection and the affected programming.[^145] Notices must be
    provided within 60 calendar days of the signing of the
    contract.[^146] Exclusivity protection begins on the date specified
    in the notice or the first day of the calendar week that begins 60
    days after the cable operator receives notice from the
    broadcaster.[^147] In addition, cable operators may rely on
    published information sources (e.g., newspapers) to determine which
    programs must be deleted or obtain the information from the station
    seeking protection or the station whose programming is to be
    deleted.[^148] Furthermore, the rules require that the party
    exercising its exclusivity rights must provide a copy of the
    relevant portions of its contract to the cable system, upon
    request.[^149]

40. A number of commenters observe that the current notification
    procedures have proven workable for the parties in the cable context
    and generally support the same notification requirements and time
    periods for satellite carriers.[^150] For example, DirecTV states
    that stations should be required to notify satellite carriers of any
    exclusivity rights in the same manner required under the cable
    rules.[^151] We agree and will model the satellite notification
    rules on the cable requirements. We apply the same 60-day notice
    requirement following the signing of a contract providing
    exclusivity and impose the same contract disclosure requirements for
    satellite carriers. As in the cable context, the satellite carrier
    will have sufficient lead time to act on the exclusivity
    request.[^152] Accordingly, exclusivity protection will beginning on
    the later of: (a) the date specified in the notice; or (b) the first
    day of the calendar week (Sunday-Saturday) that begins 60 days
    following the satellite carrier's receipt of the notice from the
    broadcaster or other rights holder. Using the same notification
    periods reduces the administrative burden on rights holders and
    stations and allows them to send a single set of notices to cable
    systems and satellite carriers, rather than forcing them to send one
    notice to cable systems at one time and a virtually identical notice
    to satellite carriers at another time.[^153] In this manner, we also
    minimize the possibility that protection would be lost inadvertently
    because of differing requirements.[^154] It is also consistent with
    the general goal of making the cable and satellite rules parallel as
    much as possible.

41. We will require that the notice asserting exclusivity rights contain
    the same identifying information about the programming to be deleted
    and the extent of the exclusivity (e.g., the dates on which
    exclusivity is to begin and end). As indicated above, the notice
    must identify the zip codes included in the zone of protection
    (i.e., the specified zone or other permitted area covered by the
    exclusivity contract).[^155] Satellite carriers may request a copy
    of the relevant contractual provisions, as cable operators may do,
    but it is not required in the notice.[^156] We adopt the suggestion
    that the notice should be served on satellite carriers with the
    carrier having the obligation to disseminate the information to
    their distributors,[^157] if necessary, since they are in the best
    position to know which distributors serve which areas.[^158] Several
    commenters suggest that satellite carriers be required to designate
    (*e.g.*, on their Web sites) the name, title, and address to whom
    the notices should be sent, with this information updated as
    necessary to avoid delay and miscommunications.[^159] While we
    recognize that such information might be useful, it should not be
    necessary to ensure the compliance with exclusivity requests. We
    have not required cable systems or operators to provide this
    information and see no reason to do so in the satellite context.
    Satellite carriers must promptly direct their mail to the
    appropriate staff. Notice received by the corporation is considered
    receipt of the notice for purposes of triggering the deletion
    requirements, so it will be in the best interests of satellite
    carriers to assure that broadcasters and rights holders have the
    necessary current information to reach the right person. We urge
    stations and rights holders to follow DirecTV's suggestion that
    exclusivity notices be addressed to the "Director of Programming
    Operations" or marked "Attention: Program Exclusivity Request" to
    assist satellite carriers in ensuring that the information is
    directed to the proper department.[^160]

42. The cable rules provide that to determine the scheduling of programs
    that must be deleted, cable operators may rely on newspapers and
    other published sources, the broadcaster seeking exclusivity
    protection, or the broadcast station subject to the requested
    deletion.[^161] Similarly, the provision we adopt allows satellite
    carriers to rely on such published sources, the broadcaster seeking
    protection, or the nationally distributed superstation. We received
    no comments on this provision and believe the cable model will work
    as well for satellite carriers.

43. Under the cable syndicated exclusivity rules, "distributors" of
    syndicated programming, who own the rights to the programming for
    purposes of syndication, are entitled to exercise exclusive rights
    for a period of one year from the initial broadcast syndication
    licensing of such programming, although not in areas in which the
    programming has already been licensed.[^162] This cable provision is
    intended to give holders of syndication rights a one year period in
    which to negotiate their agreements in each market. It originated
    with private consensus agreements among rights holders, broadcasters
    and cable operators in 1971.[^163] If the programming in question
    were shown in the market before the syndicator had an opportunity to
    negotiate for exclusivity, it would diminish the value of the
    program. In the *Notice*, we requested comment on whether to apply
    this provision in the satellite context, and whether the rights
    holder should notify the satellite carrier directly.[^164] MPAA
    contends that allowing rights holders to notify carriers directly,
    as holders of syndication rights can do with cable systems, gives
    holders a means to protect the value of their programs as well as
    providing parity in the operation of the rules in the cable and
    satellite contexts.[^165] DirecTV, however, argues that it is
    unnecessary to import this rule to the satellite context since the
    rules will apply to a discrete universe of superstations. [^166] We
    believe that it is appropriate to allow distributors to notify
    satellite carriers directly. [^167] We agree they are often the
    rights holders with the greatest need and incentive to protect their
    rights. In the satellite context, syndicated exclusivity protection
    is limited to the six nationally distributed superstations. Allowing
    the distributor that has the exclusive syndication rights a one year
    period to negotiate exclusive arrangements for each market has
    worked well in the cable context and should be applied here in the
    absence of a specific reason to treat satellite carriers differently
    in this regard.

44. We also acknowledge that, as with the cable rules, a broadcast
    station, syndicator, or other rights holder is entitled to assert
    exclusivity protection based upon contractual rights, as discussed
    above.[^168] It is not necessary that either the entity requesting
    protection or the program to be protected actually be carried by the
    satellite carrier. Thus we recognize that in some cases subscribers
    will not be able to receive the deleted programming from any
    television broadcast station carried by the satellite carrier.[^169]

## Substitute Programming

45. The cable syndicated exclusivity rules expressly allow a cable
    operator to substitute programming from another television station
    when programming is required to be deleted, provided carriage is
    consistent all with the exclusivity rules, such as sports
    blackout.[^170] Commenters addressing this issue generally support a
    provision to allow satellite carriers to offer substitute
    programming for the programming covered by exclusivity
    agreements.[^171] We agree that it is reasonable to permit
    substitute programming so that viewers need not be faced with a
    blank screen or a slide stating that contractual limitations require
    programming to be deleted.[^172]

46. Carriage of programming by satellite carriers is governed by a
    number of laws and regulations, including the Copyright Act, the
    Communications Act, and Commission rules, which differ from those
    applicable to cable programming. In reinstating the syndicated
    exclusivity rules in 1988, the Commission encouraged the
    substitution of programming in response to consumer demands that a
    distant program be available in place of the original programming
    that is deleted. At that time, we also noted that such substitution
    of programming was consistent with the compulsory license provisions
    of the Copyright Act and the syndicated exclusivity rules repealed
    in 1981.[^173] Unlike the cable compulsory license, however, the
    satellite statutory license does not include provisions for the
    substitution of programming.[^174] In considering permissible
    substitute programming under these rules, we observe that there are
    statutory provisions that impose a number of limits on the
    retransmission of signals by satellite carriers. Under these
    provisions, distant network station signals are limited to two per
    network per day and restricted to unserved households, local signals
    may be provided only in their own markets, and the satellite carrier
    must have retransmission consent for carriage of any local broadcast
    signal.[^175] To the extent that carriage of a program is
    permissible under these laws and regulations, and the satellite
    carrier has the authority to offer the programming, we believe that
    satellite carriers should be permitted to use substitute
    programming.[^176] In addition, commenters ask that we not limit
    substitute programming to broadcast programming.[^177] We see no
    reason to place such a limit on what is permissible and will allow
    non-broadcast programming to be used as a substitute, as long as its
    carriage is consistent with the applicable statutory and regulatory
    provisions, and it is clear to viewers that the substitute
    programming is not provided by the same broadcast station as the
    programming for which it is substituted.

47. We further note that the cable rules do not expressly provide for
    the substitution of programming when a program is deleted pursuant
    to network non-duplication protection. The absence of an express
    provision does not necessarily prevent the cable operator from
    substituting programming to which it has the rights. However, we
    recognize that if a cable operator were required to delete network
    programming from a station, and the network programming subject to
    deletion constitutes a high percentage of the station's programming,
    the cable operator would likely drop the entire station from
    carriage. When the Commission originally adopted the network
    non-duplication rules, there were only three commercial broadcast
    networks, and network programming constituted the majority of the
    programming distributed to viewers by each network affiliate. The
    superstations affected by these new rules are affiliated with
    emerging networks (i.e., WB, UPN).[^178] These networks distribute
    significantly fewer hours of programming to their affiliates each
    day and week than the older commercial networks. Thus, we believe
    that when, for satellite carriers, the non-duplication rules are
    applied only to nationally distributed superstations, it is likely
    that a smaller percentage of the programming will be subject to
    deletion. It is hoped that satellite carriers will continue to
    provide the nationally distributed superstations to their
    subscribers, and, thus, the question of substitution programming is
    relevant. To prevent the possibility of a blank screen and
    undesirable disruptions for consumers, we will specifically provide
    for substitution for non-duplication deletions with any programming
    that the satellite carrier is authorized to carry. Accordingly, we
    will adopt rules permitting the use of authorized substitute
    programming for any programs deleted to comply with network
    non-duplication or syndicated exclusivity protection, or sports
    blackout.[^179] We note that the copyright laws do not provide a
    statutory copyright license for substitute programming for satellite
    carriers as they do for cable operators.[^180] Therefore, unless the
    statutory provisions are changed, satellite carriers may only
    substitute programming for which they have copyright and
    retransmission consent, or otherwise have legal rights to carry.

## Transition period

48. When the Commission reinstated the syndicated exclusivity rules, it
    recognized that cable systems would need several months to implement
    the new regulatory requirements.[^181] Satellite industry commenters
    in this proceeding requested a similar transition period to
    implement these new rules.[^182] Echostar suggests that broadcasters
    and other rights holders should submit their deletion requests
    during the transition period, but satellite carriers' compliance
    would be tolled for one year.[^183] We agree that satellite carriers
    today, like cable operators in 1988, need time to phase-in
    compliance with these new exclusivity rules. We reject, however,
    proposals for a transition period one year in duration. The
    transition period for cable operators was necessary, in part, to
    allow time to develop and implement new equipment needed to perform
    the deletions required by the rule.[^184] In this proceeding, apart
    from the concerns raised by the C-Band carriers and discussed below,
    the satellite carriers have not asserted that they need time to
    develop new equipment. In addition, we do not believe that
    EchoStar's one-year proposal would serve its stated purpose of
    enabling satellite carriers to review deletion notices and plan a
    year in advance before the implementing the deletions. We believe
    rights holders would not bother to submit deletion requests knowing
    that they will not be acted upon for a year.

49. We will allow satellite carriers a reasonable period of time after
    the new satellite network non-duplication and syndicated exclusivity
    rules take effect to adjust to the new requirements, to review the
    contract language, to ensure that they have adequate equipment and
    personnel to implement the deletions, and to arrange for programming
    that can be used to substitute for deleted programming. Normally, as
    set forth above, exclusivity protection begins, at the earliest,
    within 60 days of notification. However, as described above,
    broadcasters will have up to six months from the effective date of
    this Order to renegotiate contracts, and they must notify satellite
    carriers of deletion requests within 60 days of signing the
    renegotiated contract.[^185] To provide time for satellite carriers
    to adjust to the new requirements, for notices provided before June
    1, 2001, satellite carriers will have 120 days before they are
    required to implement the necessary deletions. For notices provided
    to satellite carriers after June 1, 2001, the normal time
    requirements will apply.

50. Echostar also proposes, as an alternative or complement to the
    transition period, a "grandfathering" provision that would exempt
    from application of the network non-duplication and syndicated
    exclusivity rules all of EchoStar's 700,000 current superstation
    subscribers. [^186] We reject this proposal because there is nothing
    in the statute to support it, and it is contrary to the letter and
    the intent of the SHVIA provision requiring the Commission to apply
    the exclusivity rules to satellite carriers. This proposal is also
    inconsistent with the goal of placing comparable requirements on
    cable operators and satellite carriers. Cable subscribers' viewing
    options are currently subject to the cable exclusivity rules, which
    allow for the same deletions that affect satellite subscribers. In
    fact, cable subscribers are generally subject to a greater impact
    from deletions because the cable rules apply to deletions of
    programming carried on network stations and other broadcast
    stations, not only that programming carried on the specially defined
    six superstations. Adopting EchoStar's proposal would perpetuate the
    disparity between cable and satellite that Congress clearly sought
    to eliminate. Moreover, when the Commission implemented the network
    non-duplication rules and reinstituted the syndicated exclusivity
    rules with respect to cable operators, it did not provide for
    grandfathering of existing cable customers.[^187] As the Commission
    explained in those proceedings, the potential impact of the rules is
    ultimately determined by the negotiations among the parties for
    exclusivity rights and the decision whether or not to assert them in
    a given market.[^188] Protecting parties' rights to engage in
    contract negotiations with the knowledge that exclusive agreements
    would not be abrogated by importation of distant signals was
    fundamental to the Commission's purpose in creating the exclusivity
    rules in the cable context, and is relevant today to application of
    these rules to satellite carriers.

## Small System Exception and C-Band Carriers

51. Sections 76.95(a) and 76.156(b) (amended rule § 76.106(b)) provide
    that small cable systems serving fewer than 1,000 subscribers are
    exempt from the network non-duplication and syndicated exclusivity
    requirements, respectively. The Commission originally adopted these
    exceptions in the mid-1970s to balance the costs of compliance for
    small cable systems against the impact on broadcast stations. The
    Commission was concerned that the costs of equipment and manpower
    needed to comply with the cable exclusivity rules would have a
    substantial impact on such systems when viewed in relation to their
    gross revenues. In addition, the Commission concluded that the
    cumulative number of homes served by small systems nationwide
    constituted a very small percentage of the total number of
    television households and there would be no significant adverse
    economic impact on broadcasters.[^189] When the Commission
    reinstituted the syndicated exclusivity rules and modified the
    network non-duplication rules in 1988, it again exempted cable
    systems with fewer than 1,000 subscribers out of the same
    concern.[^190]

52. Some commenters representing the satellite industry seek similar
    exceptions that take into account the technical feasibility and cost
    of compliance for satellite carriers.[^191] While offering no
    specific proposal, EchoStar argues that the only way to ensure
    equivalent protections for satellite operators is to go back to the
    rationale for the exception.[^192] However, since the original
    rationale for the small system exception was based on the relative
    cost of compliance compared to such systems' gross revenues, and
    none of the commenters has provided cost data to justify such an
    exception, we are unable to conclude that a comparable situation
    exists in the satellite context.[^193] Satellite carriers are among
    the largest providers of television programming and are not
    comparable to the "Mom and Pop" cable operators for which the small
    system exception was designed.[^194] Each of the satellite carriers
    serves millions of subscribers nationally,[^195] is well-capitalized
    and capable of purchasing necessary equipment,[^196] is managed
    through centralized control centers,[^197] and already blacks out
    programming consistent with existing contracts and the programming
    packages selected by individual subscribers.[^198] We conclude that,
    with no specific evidence to the contrary, the costs of compliance
    with these rules, on a per subscriber basis and relative to total
    revenues, will be small given the large subscriber base of each DBS
    satellite carrier.

53. In contrast to DBS carriers, however, we note that C-Band satellite
    carriers, while still serving 1.3 million subscribers nationwide,
    are experiencing a steady decline in subscribers from a high in 1995
    of nearly 2.4 million.[^199] C-Band commenters contend that Congress
    intended to exempt them from application of the exclusivity rules.
    However, they offer only an isolated and ambiguous colloquy between
    two Senators in support of this assertion.[^200] C-Band commenters
    describe their subscribers as primarily rural and note that many
    live in areas that are not served by cable systems or are beyond the
    reach of over-the-air broadcasters.[^201] They contend that their
    centralized system of program delivery and authorization would make
    deletion and substitution of programming economically
    prohibitive.[^202] As these commenters note, in 1991 the Commission
    considered applying the syndicated exclusivity rules to C-Band
    retransmission of television broadcast programming.[^203] At that
    time, Congress had directed the Commission to apply the cable
    syndicated exclusivity rules to C-Band carriers if the Commission
    found it would be feasible for the C-Band carriers to comply. The
    Commission sought comment and concluded that the equipment needed
    for satellite carriers to implement exclusivity protection was not
    available and could not be developed and implemented before the
    expiration in 1994 of the interim compulsory copyright license under
    which C-Band carriers retransmitted broadcast programming.[^204]
    C-Band commenters contend that nothing has changed in their
    capability of deleting duplicating programming. They argue that
    network non-duplication requirements may apply to at least 93
    markets, 30 weekly programs, with different times for each
    program.[^205] They ask that we either exempt them from application
    of the cable exclusivity rules or defer application until after
    2004.[^206]

54. The circumstances today differ significantly from 1991 in that the
    provision in the SHVIA does not allow for consideration of
    feasibility. Congress could have provided an exemption for C-Band
    carriers from application of the exclusivity rules, but did
    not.[^207] Congress did provide a more generous copyright license to
    C-Band carriers, than to DBS carriers, to retransmit distant network
    stations to virtually all C-Band subscribers.[^208] As noted, the
    network non-duplication and syndicated exclusivity rules do not
    apply to satellite retransmission of network stations. Currently,
    C-Band carriers provide only four of the six nationally distributed
    superstations, [^209] one of which provides them with a satellite
    feed from which all duplicating programming has been deleted. [^210]
    Thus, the burden on C-Band carriers under the new network
    non-duplication and syndicated exclusivity rules is to delete
    programming from only three nationally distributed superstations.
    The information provided by the satellite commenters in this record
    describes serious technical and economic difficulties in
    accomplishing deletions and substituting replacement programming.
    However, it appears that these comments contemplate more widespread
    deletions and substitutions than the statute calls for and more than
    we impose here on either C-Band or DBS carriers.[^211]

55. Notwithstanding that we may not provide a blanket exemption for
    C-Band carriers, we have considered their proposal that we defer
    application of the rules until after 2004 or pending a further
    rulemaking proceeding. We determine to do neither. We note that the
    Commission deferred application of the syndicated exclusivity rules
    in 1991 due to the expectation of full copyright liability in
    1994.[^212] Now we are urged again, for the same reasons, to defer
    because the statutory copyright license is set to expire in 2004. We
    are not willing to defer application until 2004, and then find that
    the copyright license is again extended and we are faced again with
    the same issues and arguments. We believe that C-Band carriers will
    be able to implement these new regulations, in the limited
    circumstances in which they will apply to C-Band subscribers,[^213]
    using existing technology modified as necessary.[^214] We also
    believe that this proceeding has given all sides on this issue ample
    opportunity to present evidence and see no need for a further
    rulemaking. We do note, however, that we can apply to C-Band
    carriers an exception comparable to the cable exceptions for small
    systems. C-Band has persuasively argued that the demands of network
    non-duplication, syndicated exclusivity, and sports blackout,
    cumulatively, may exceed the capacity of their existing
    system.[^215] In this case, the C-Band carriers would have to
    develop a new system or substantially modify their existing system.
    We believe that this can be a costly burden, and that it is
    appropriate to provide an exception that recognizes the relatively
    small size of the C-Band carriers, as compared with the DBS
    carriers. Therefore, insofar as any C-Band carrier has fewer than
    1,000 subscribers within the zone of protection, as expressed by zip
    code areas within the zone,[^216] it is not required to delete
    programming subject to network non-duplication or syndicated
    exclusivity protection.[^217] We will consider, if presented to us,
    additional information on how best to tailor a small system
    exemption that would be meaningful for C-Band carriers without being
    significantly broader than the exemption for small cable systems.
    Finally, if Congress amends the SHVIA to expressly exempt C-Band
    carriers from application of any or all of the exclusivity rules
    (including sports blackout, discussed below), we can conduct a
    rulemaking proceeding to exempt C-Band from our rules accordingly.

## Exceptions Preventing One Local Station from Blacking Out Another

56. The cable rules contain a number of exceptions that prevent one
    local station from asserting exclusivity protection against another
    station that has been deemed "local."[^218] Often these situations
    arise because the rules contain several definitions of "local"
    station. These exceptions - for significantly viewed stations,
    stations whose Grade B includes the community unit to be blacked
    out, and overlapping specified zones - were adopted to ensure that
    cable subscribers receive the same programming that would be
    available to over-the-air viewers in their communities.[^219]
    Consideration of these exceptions in the context of satellite
    carriage is made more complicated because superstations could have
    dual identities. In the *Notice,*[^220] we sought comment on the
    treatment of superstations within their own markets. We noted that
    for must carry purposes, superstations are treated as local signals
    in their local markets (DMAs) and distant signals elsewhere.[^221]
    In its own market, a nationally-distributed superstation acts as any
    other local station and is treated as a local station within its
    local market.[^222] In the context of satellite retransmission of
    nationally distributed superstations, however, there is an important
    difference between a station carried as a superstation or carried as
    a local station. As described above, satellite carriers are not
    required to obtain retransmission consent to carry the
    superstations, but are required to obtain retransmission consent to
    carry a local station within its local market.[^223] The SHVIA, as
    it amended the retransmission consent provisions in the
    Communications Act, permits satellite carriers to retransmit the six
    stations that meet the definition of nationally distributed
    superstation without their consent provided they are transmitted
    outside their local markets.[^224] We believe that the presence or
    absence of a requirement for retransmission consent for nationally
    distributed superstations is key to Congress' determination to apply
    the cable exclusivity and sports blackout rules in this satellite
    context. Therefore, within their local markets, the nationally
    distributed superstations are not subject to deletions because they
    are carried as local stations. However, when a satellite carrier is
    retransmitting the station as a nationally distributed superstation,
    without its retransmission consent, it must be treated as a
    superstation, and the exclusivity and sports blackout rules will
    apply. Even in those instances in which the superstation's
    terrestrial over-the-air signal is significantly viewed, or the
    protected zone is within its Grade B contour, if the satellite
    retransmission is outside the station's local market, we will look
    to the manner of carriage to determine whether the station is
    treated as a superstation subject to deletions and blackouts, or as
    a local station that cannot be blacked out by another, overlapping
    local station. To the extent the exceptions for overlapping areas in
    the cable exclusivity rules are relevant in the satellite context,
    we will adopt them, as described below.

57. With respect to the "significantly viewed signal exception," a
    broadcast television station can be declared "significantly viewed"
    outside what is usually considered its local market on the basis of
    its over-the-air viewing in a community.[^225] Significantly viewed
    status confers local treatment on a station under a number of rules
    and is intended to ensure that cable subscribers have the same local
    broadcast service that is available to noncable subscribers in their
    communities. Section 76.92(f) provides that a community unit is not
    required to delete the duplicating network programming of a
    significantly viewed signal. Similarly, under Section 76.156
    (amended rule § 76.106), syndicated programming covered by an
    exclusivity agreement need not be deleted from a significantly
    viewed signal. A few comments note that a superstation could be
    significantly viewed in areas surrounding its city of license based
    on over-the-air viewing.[^226] DirecTV argues that this exception
    could only apply in a few cases in which the superstation is
    functioning as a local station and since local stations are not
    covered by this section of SHVIA, the significantly viewed exception
    should not be present in the satellite context.[^227] We believe
    that pursuant to the SHVIA, the local-into-local copyright license
    can only apply within the station's DMA. Thus, once carried outside
    the DMA, the station cannot be considered a "local" station.
    Therefore, we believe the significantly viewed and Grade B contour
    exceptions[^228] will rarely, if ever, be applicable in the
    satellite context.

## Overlapping Specified Zones

58. In a related matter, under the network non-duplication rules, if a
    cable community 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.[^229] The
    *Notice* stated that we did not believe that a similar situation
    could occur in the satellite context and sought comment on this
    issue.[^230] The one commenter addressing this issue contends this
    exception will not be triggered in the satellite context since
    superstations do not have specified zones outside their local
    markets and SHVIA only applies network non-duplication to nationally
    distributed superstations.[^231] As mentioned above, a nationally
    distributed superstation is a "local station" when carried by a
    satellite carrier within its local market. When carried as a local
    station, the network non-duplication and syndicated exclusivity
    rules do not apply to delete its programming. To the extent the
    overlapping zones situation could occur, it will be covered by the
    exception for significantly viewed or Grade B contour discussed
    above.

## NCE Must-Carry Exception

59. Under Section 76.92(g) of the rules, a cable community unit is not
    required to delete the duplicating network programming of any
    qualified noncommercial educational ("NCE") broadcast television
    station[^232] that is carried pursuant to the must carry
    rules.[^233] Congress mandated that this provision be added to the
    cable network non-duplication rules as part of the must carry
    requirements.[^234] Congress recognized that in some situations an
    NCE station could be considered "local" under the must-carry rules,
    which are based on a 50-mile zone around the station's community of
    license, and "distant" for purposes of the network non-duplication
    rules, which are based on a 35-mile specified zone.[^235] No
    commenters addressed this issue and we believe that this exception
    is not relevant in this context. The SHVIA provision applies only to
    a local station asserting exclusivity rights against one of six
    nationally distributed superstations, none of which is an NCE
    licensee.

# Section 339(b)(1)(A) and (B): Application of Sports Blackout to Retransmission of nationally distributed superstations and Network stations

60. In addition to requiring application of the network non-duplication
    and syndicated exclusivity rules, Section 339(b)(1)(A) also requires
    that we apply the sports blackout rule to retransmission of
    nationally distributed superstations, and Section 339(b)(1)(B)
    requires that we apply the sports blackout rule to satellite
    retransmission of network stations. 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. In the case of
    retransmission of network stations, we are instructed to apply the
    cable sports blackout rule only "to the extent technically feasible
    and not economically prohibitive.

61. 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.[^236] The purpose of the sports blackout rule is to ensure
    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 a distant station.[^237] The cable sports
    blackout rule is triggered when a subject sporting event will not be
    aired live by any local television station carried on a community
    unit cable system.[^238] Under the cable sports blackout rule, the
    holder of the rights to the event (*e.g.*, a sports team or league,
    rather than a broadcaster) has the power 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.[^239] As with the Commission's
    exclusivity rules, the sports blackout rule specifies notification
    procedures regarding the sports programming to be deleted.[^240]
    However, the time frame allowed for notification is significantly
    shorter in the case of the sports blackout rule than for network
    non-duplication and syndicated exclusivity. Notification for sports
    blackout can be given as little as 24 hours in advance.[^241] The
    sports blackout rule does not apply to any community unit with fewer
    than 1,000 subscribers.[^242] This exemption is based on the cost of
    the equipment needed to delete programming.[^243]

## Technical and Economic Effects of Sports Blackout on Satellite Carriers

62. With respect to retransmission of nationally distributed
    superstations, the SHVIA requires us to apply the sports blackout
    rule from the cable context to satellite carriers. With respect to
    retransmission of network stations, however, the SHVIA provides that
    the sports blackout rules should be applied only to the extent
    technically feasible and not economically prohibitive.[^244] The
    language limits the application of the sports blackout rules in this
    narrow circumstance but only if the technical and economic
    difficulties are serious and harmful to the satellite
    carriers.[^245] In the *Notice* we asked for specific information on
    the technical and economic problems that would be encountered by
    satellite carriers.[^246] We requested per subscriber cost data and
    asked whether the existing conditional access mechanisms would work
    for this purpose. We did not receive specific data or descriptions
    of how the requirement to black out sporting events on network
    stations would be unfeasible or economically prohibitive to the
    degree of posing a serious economic threat to the health of
    satellite carriers.

63. DirecTV argues that the Commission should invoke the
    technical/economic hardship exception of Section 339(b)(1)(B) and
    not apply any sports blackout requirements on satellite
    retransmission of network stations but does not explain why the
    methods it uses to perform the blackouts required by its contracts
    with sports leagues cannot be used to black out network
    stations.[^247] DirecTV does explain that the actual blackouts are
    "manually triggered" by a person who can watch and monitor only four
    events at a time. DirecTV states that additional personnel would be
    needed to monitor and trigger the additional events that will be
    covered by the sports blackout rule. It asserts there will be "vast
    numbers of subscribers" and "thousands of blackout requests"
    creating a "monumental, expensive, and time-consuming task."[^248]
    There are no specific costs provided. The Echostar comments offer
    even less specific information. Echostar provides no information
    about particular burdens that would be imposed by the requirement to
    black out sport events from network stations.[^249]

64. As the Network Affiliates point out, no commenting party explains
    why it would be infeasible to develop the technology to black out
    sports programming, if such technology is not already in use, nor
    does any commenter offer cost figures to demonstrate that the
    technology would be cost prohibitive.[^250] We agree with those
    commenters that observe that the statutory language and expressions
    of legislative intent place a high burden to justify not imposing
    the sports blackout requirements for satellite retransmission of
    network stations. Such burden cannot be satisfied by the vague
    assertions and undocumented conclusions offered in this record. In
    contrast, the record provides unrefuted information that the
    technology to implement the network station sports blackout exists.
    Indeed, the satellite carriers currently black out sports
    programming pursuant to geographic restrictions in their contracts
    with regional sports networks and sports leagues.[^251]
    Consequently, we find that the heavy burden is not met to justify
    not applying the sports blackout obligations to satellite carriers
    with respect to network stations.

## Notification

65. In one aspect of the sports blackout rules, however, the timing of
    notification, we find that the record supports some modification
    from the notification periods in the cable sports blackout rules.
    DirecTV and Echostar urge that we lengthen the notification periods
    with respect to sports blackouts.[^252] In this respect, DirecTV
    describes a blackout system that is notably more complex than that
    of a cable operator. The cable operator controls the programming at
    a headend, which facilitates blacking out a particular area of
    limited geographic size. The satellite carrier, in contrast, is
    controlling programming on a national basis:

    First the programmer must notify DirecTV and provide information
    about the program to be blacked out, as well as the areas (by zip
    code) affected. The information provided by the programmer must then
    be reformatted for DirecTV compatibility. Traffic department
    employees must then build the blackout by entering the data into the
    system and notify the scheduling department. The blackout is then
    scheduled and the data regarding the blackout is processed. The
    blackout is checked again for accuracy before it hits the air.
    Finally the actual blackout itself must be manually triggered, both
    in and out, by an employee who determines when the actual event
    begins and ends by watching an actual signal of the event.[^253]

    DirecTV also notes the difficulty of re-programming the time period
    that has been blacked out, especially with very short advance
    notice.[^254]

66. While the process generally described by DirecTV does not appear to
    present such a serious technical or economic burden as to excuse
    compliance with the sports blackout rules altogether, it does
    suggest that the challenge of implementing multiple, simultaneous
    blackouts and identifying and arranging substitute programming is
    greater for satellite carriers than for cable operators.[^255]

67. DirecTV correctly notes that the time frame allowed for notification
    for sports blackouts is significantly shorter than it is for either
    network non-duplication or syndicated exclusivity, and recognizes
    that rights holders may not always have the ability to provide more
    than 24 hours notice.[^256] The cable sports blackout rules require
    notice for regularly scheduled events to be received on the Monday
    preceding the calendar week during which the deletion is to be made,
    and, for events not regularly scheduled or revisions to previously
    submitted notices, within 24 hours after the time of the telecast is
    known and no later than 24 hours before the telecast is to
    occur.[^257] This timing was instituted in 1975 to address sports
    interests' concerns that playoffs and weather cancellations often
    afford little advance notice of scheduling changes.[^258] DirecTV
    explains that while it may be capable of deleting a sporting event
    on short notice, it cannot accomplish the reprogramming necessary in
    such a short period of time.[^259] DirecTV proposes a notification
    period of 60 days prior to the start of a season for sports with a
    specific season, 60 days prior to the event for nonseasonal but
    regularly scheduled events, 30 days for events not regularly
    scheduled, and 10 working days for revisions to previously submitted
    notices.[^260]

68. Commenters respond to DirecTV's proposal that, while they sometimes
    can provide notice as soon as a season's games are scheduled, the
    televising schedule may not be set until a later date.[^261] We
    agree that a 60 day advance notice may allow time for the games to
    be scheduled but not for the telecasts to be arranged. Often the
    televising schedule is not finally decided until a week before the
    beginning of the season.[^262] We find that the satellite carriers,
    although not providing sufficient data to warrant an exemption from
    the sports blackout requirements, have offered reasonable arguments
    in support of revising the notification periods in the satellite
    sports blackout rules to the extent possible without depriving the
    teams and leagues of their contractual rights by establishing time
    frames that afford no practical protection.

69. In light of the differences in the structure and operation of the
    satellite and cable industries, we are persuaded that some
    adjustment in the application of the sports blackout rules is
    justified and consistent with Congressional recognition of these
    differences. We find, however, that the lack of specific information
    in the record limits our ability to finely tailor the requirements
    while providing the protection the statute requires. Moreover, we
    take note that satellite carriers currently comply with
    contractually mandated blackouts, which require that they delete
    sporting events and provide subscribers with replacement
    programming. We believe it is appropriate to adjust the notification
    requirements for satellite carriers to ensure that the holders of
    rights to sporting events will provide the required notice as
    promptly as possible. The sports blackout rules for satellite
    carriers will, therefore, retain the same advance notice
    requirements for regularly scheduled events, including those events
    that have a specific season (notice must be received the Monday
    before the calendar week in which the deletion is to be made) but
    will also require that rights holders notify satellite carriers
    within forty-eight hours of the time the telecast is scheduled. We
    will not make the same requirement for events not regularly
    scheduled due to the last minute nature of such events. [^263] For
    these unscheduled events, as well as for last minute revisions to
    previously scheduled events, we must take into account the realities
    for the sports interests of last minute revisions, particularly due
    to weather. Therefore, we retain the 24 hour advance notice minimum
    to revise previously scheduled deletions.[^264] We hope that where
    satellite carriers have had adequate time to line up substitute
    programming, they will be able to shift the substitute programming
    into the revised time slot even with only 24 hours notice. Because
    this adjustment to the notification requirements reflects legitimate
    differences between satellite carriers and cable operators, we see
    no reason to limit this distinction to retransmission of network
    stations. For purposes of uniformity and clarity, the same
    notification requirements will apply to all sports blackout
    requirements imposed on satellite carriers, whether with respect to
    network stations or nationally distributed superstations.

## Use of Zip Codes to Determine the Location of Households Subject to Sports Blackout

70. As with the network non-duplication and syndicated exclusivity
    rules, most commenters agree that the sports blackout rule can best
    be applied to satellite carriers by reference to zip codes rather
    than community units.[^265] For the same reasons discussed in
    connection with network non-duplication and syndicated exclusivity,
    we agree that the zip codes that comprise the specified zones are
    appropriate for this purpose. As in the cable sports blackout rule,
    the holder of the broadcast rights, or its agent, shall be
    responsible for including the appropriate information identifying
    areas subject to deletion with its blackout notification to the
    satellite carrier.[^266] The notification must include a list of the
    appropriate zip codes.[^267]

## Exception for Small Community Units, as Applied to Satellite Carriers

71. DirecTV advocates excepting satellite carriers from the sports
    blackout requirement if the blackout would affect fewer than 5% of
    the television households in the relevant DMA, on a
    provider-by-provider basis.[^268] DirecTV asserts that this would
    have a *de minimis* impact on rights holders. The holders of rights
    to sporting events strongly disagree. The Commissioner of Baseball
    states that satellite subscribers generally constitute less than 5%
    of households in most DMAs and contends such an exception would
    eliminate sports blackouts in most cases.[^269] We agree that there
    should be exceptions to the blackout requirements imposed on
    satellite carriers that are analogous to the exceptions for cable
    systems. We do not agree that 5% of television households in a DMA
    (which would include cable subscribers as well as satellite
    subscribers) is analogous to the small community unit exception for
    cable systems.

72. The cable sports blackout rule does not apply "to any community unit
    having fewer than 1,000 subscribers."[^270] Much has been made by
    some commenters of the difference between the language of this small
    system exception and the small system exceptions for non-duplication
    and syndicated exclusivity, which specifically exempt cable systems
    with fewer than 1,000 subscribers.[^271] However, there appears to
    be no basis in past Commission Orders for emphasizing this
    difference in the rule language. The Commission's rationale for
    exempting either small systems or small community units is the cost
    of the equipment for the cable system, and the relatively *de
    minimis* effect on the protected rights holder of exempting such a
    small system.[^272] Because there is no specific cost information in
    the record in this proceeding, it is difficult for us to draw a
    direct connection from the Commission's concerns for small cable
    systems due to the cost of their blackout equipment to the satellite
    carriers who, by all reports, already possess the necessary
    equipment to perform the sports blackouts required by statute.[^273]

73. We believe that the same type of exception we apply to the satellite
    network non-duplication and syndicated exclusivity rules is
    warranted here. Our primary concern here is for the affected
    subscribers, as well as the expense imposed upon satellite carriers
    relative to the number of subscribers who will be blacked out. The
    Commission has found in previous considerations of the cable sports
    blackout rule that the effect of excepting up to 1,000 subscribers
    from a blackout requirement will have a *de minimis* effect on the
    gate receipts.[^274] Insofar as we are using zip codes in lieu of
    community units, we believe an exception based upon the number of
    satellite subscribers, per carrier, in the zip codes affected by a
    sports blackout request is analogous to the exception in the cable
    sports blackout rule for community units with fewer than 1,000
    subscribers. In this satellite context we find again that an
    exception for fewer than 1,000 subscribers per carrier, per zip code
    area comprising a protected zone, will not be so detrimental to the
    sports interests as to warrant the expense to satellite carriers and
    the loss of sports programming for viewers.[^275] We will reexamine
    this issue if, in the future, we receive information that the loss
    of 1,000 satellite subscribers is more costly to the sports
    interests than the comparable loss of 1,000 cable subscribers where
    the small system exception applies in the cable sports blackout
    rule.

## Other Provisions of Sports Blackout Rule for Satellite Carriers

74. Apart from the changes in the use of zip codes and in the
    notification requirements described above, we do not change the
    other provisions of the cable sports blackout rules in their
    application to satellite carriers. Based upon the general consensus
    in the comments, the same 35 mile zone of protection that applies to
    cable systems will apply to satellite carriers, and the same
    willingness to consider waivers for suburban stadiums applies to the
    satellite sports blackout rules as well as to the cable sports
    blackout rules.[^276] The rights holder will have the obligation of
    providing a list of the relevant zip codes to the satellite carrier
    with its deletion notice. If satellite carriers want to evaluate
    each subscriber's address and black out only those households within
    the 35 mile zone, the rules will not prevent them from doing
    so.[^277] For the same reasons cited in the network non-duplication
    and syndicated exclusivity rules, we will not require an electronic
    list of zip codes, nor will we require that satellite carriers
    designate a particular name or address for receipt of the
    notification. We do not have such a requirement for cable systems,
    which are far more numerous and varied, and we see no reason to
    require it from satellite carriers. As in the cable sports blackout
    rule, satellite carriers may substitute other programming during the
    time scheduled for a sporting event that must be blacked out.
    Satellite carriers may only use substitute programming for which
    they have copyrights, and, when required, retransmission consent.
    They may substitute a different distant network station provided
    they do not retransmit more than two network stations affiliated
    with the same network in a single day.[^278] Of course the
    substitute programming must also comply with the network
    non-duplication and syndicated exclusivity rules.

75. In addition, to afford satellite carriers an opportunity to adjust
    their schedules to these new regulatory requirements, we will
    require that sports rights holders provide 60 days advance notice
    for any sports blackout to occur on or before March 31, 2001.[^279]
    As of April 1, 2001, the regular notice requirements, including 24
    hour notice for changes in previously scheduled blackouts, will
    apply. Because satellite carriers are currently complying with
    contractually required sports blackouts, we do not believe it is
    necessary to provide the same length of time to phase-in the
    implementation of the sports blackout rules as we find warranted for
    the network non-duplication and syndicated exclusivity. We believe
    that this 60 day period will be adequate for satellite carriers to
    adjust to the additional sports blackout requests.[^280]

# other issues

## Digital Signals

76. In the *Notice*, we stated that 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.[^281] We noted that 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.[^282] In the
    *Notice*, we repeated our question of whether Congress intended to
    apply these rules to satellite retransmission of digital broadcast
    signals.[^283] We noted that the SHVIA may be read to apply to both
    analog and digital broadcast signals.[^284] An alternative
    interpretation we posited was 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.[^285] We sought 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.[^286]

77. The responses we received concerning this matter are aligned by
    industry. Echostar argues that there is no legislative authority for
    the extension of the exclusivity rules to digital signals.[^287] NAB
    argues that the SHVIA requires exclusivity and sports blackout
    protection to apply to both analog and digital signals.[^288] Other
    broadcast groups, such as Tribune, argue that Congress did not
    indicate an intent that digital signals should be excluded from the
    new exclusivity rules and therefore that there should be no
    distinction between analog and digital signals under the new
    rules.[^289] MPAA asserts that syndicated exclusivity should apply
    to both digital and analog signals, pointing out that Congress made
    exceptions for digital signals in certain instances but did not do
    so for syndicated exclusivity.[^290]

78. Because digital exclusivity issues are closely related to digital
    carriage issues, we believe that it would be premature to resolve
    the matters related to this issue at this time. Exclusivity
    requirements cannot be fully fashioned until both cable operators
    and satellite carriers know what their carriage responsibilities
    will be for digital broadcast television. The digital exclusivity
    issues should be decided either when the Commission issues a Report
    and Order in the Digital Must Carry proceeding or in another
    proceeding that discusses a satellite carrier's digital broadcast
    signal carriage responsibilities.[^291]

79. We do address one aspect of this issue here. We are disinclined, in
    the early stage of the DTV transition, to allow a broadcaster to use
    an exclusive contract that applies only to digital programming to
    prevent a cable system or satellite carrier from providing that
    programming in analog form to its subscribers. However, to the
    extent contractual rights protect a broadcaster's exclusivity for
    both the analog and digital versions of the same program, we see no
    reason to limit the effectiveness of the contract to protect only
    analog exclusivity. Therefore, contractual language that expressly
    applies to analog and digital format of the same program content
    will be effective to require deletion of both. That is, the rule
    will provide that neither satellite carriers nor cable operators
    will be permitted to carry the digital version of a program when the
    analog version is required to be deleted and the contract expressly
    provides exclusivity for both, any, or all formats.

## NFL Proposal to Expand Exclusivity Rules to Apply to Unitary Program Packages

80. The *Notice* sought comment on an additional issue concerning the
    distribution of sports programming that is related to, but not
    directly covered by, the SHVIA.[^292] 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 non-duplication 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. We sought 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.

81. The NFL asks the Commission to "complete the work that Congress
    began" by applying the network non-duplication and syndicated
    exclusivity rules to network stations as well as to nationally
    distributed superstations.[^293] The NFL admits that damage to
    stations' contractual rights is limited because only unserved and
    grandfathered households can receive such stations but argues that
    the numbers of viewers involved are significant nonetheless.[^294]
    The NFL further contends that the Commission should also recognize
    the unitary nature of the NFL or any other regional television plan
    and allow local affiliates to exercise network non-duplication
    protections to black out other games played at the same time but
    broadcast in other regions of the country[^295] (e.g., Redskins
    versus Cowboys could blackout Giants versus Packers). Similarly, the
    National Hockey League expresses concern that a satellite carrier
    that offers local-into-local service could have access to the four
    games that the NHL plans to regionalize on ABC this year and could
    thereby create a multi-game hockey package to compete unfairly with
    the "Center Ice" package on ABC.[^296] We note that in the case of
    local-into-local carriage, retransmission consent is required, and,
    presumably, the stations in question could contractually prevent
    this from occurring.

82. The advocates of this expanded application of network
    non-duplication have not described why such action would be in the
    public interest, although we are persuaded it could be in the
    Leagues' interest. The NFL and other sports interests advocating
    this change ask us to revise the existing cable rules to require
    deletion of programming that does not duplicate protected
    programming. As noted in the discussion of the network
    non-duplication 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. [^297] Here, the NFL asks
    us to reach a contrary result and decide that a different event
    between different teams "duplicates" the protected event. The NFL
    and others ask us to expand the scope of the new satellite
    exclusivity rules beyond what Congress mandated. In light of the
    SHVIA's restrictions on households that are eligible to receive
    distant network signals,[^298] it is not clear to what extent
    carriage of distant signals providing different games merits
    remedial action. The NFL asserts that allowing satellite carriers
    (and, presumably, cable systems as well) to import distant signals
    carrying different games would undermine the NFL's regional
    television plan. The NFL cautions that it might "be forced" to alter
    its distribution plan in unspecified ways that would be "less
    pro-consumer."[^299] However, we believe it would not be
    pro-consumer to take the action the sports interests request. There
    can be no doubt of the negative impact on viewers of losing access
    to more and more sports programming. The sports interests have not
    provided a compelling need for this additional protection, and other
    commenters have argued that it would deprive viewers
    unnecessarily.[^300] For the reasons given, we decline to expand the
    exclusivity rules to apply to regional or so-called unitary
    packages. If the program for which protection is sought is not, in
    fact, duplicated by the distant programming imported by the cable
    system or satellite carrier, then neither the network
    non-duplication nor syndicated exclusivity rules apply.

## Two Network Affiliates in One DMA

83. In the *Notice* we asked for comment on the possibility and
    ramifications of a "two-affiliates-in-one market scenario" with
    respect to the sports blackout rule.[^301] We described the
    possibility that, in areas in which there are two affiliates of the
    same network within the same DMA, a 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 both stations. Thus, in this circumstance, the sports blackout
    requirement of the SHVIA could, conceivably, apply to retransmission
    of local, rather than distant, network stations where the geographic
    area for purposes of the sports blackout zone surrounding one of the
    affiliates is smaller than the DMA. If one of the affiliates is not
    carrying the event, the sports blackout rule might be triggered. If
    the second affiliate is carrying the event, then the satellite
    carrier might be required to black out the event being transmitted
    by the second affiliate to subscribers within the 35 mile zone. We
    received scant response to this scenario.[^302] We believe these
    comments confirm that this situation is unlikely ever to occur
    because the contractual arrangements allow the rights holder to
    prohibit both affiliates from broadcasting the event in question.
    Therefore, we see no reason at this time to provide for this
    situation in the rules.

## Technical Revisions to the Rules: §76.5(gg)

84. The *Notice* identified several of the cable exclusivity rules that
    contain out-dated cross-references to other sections.[^303] We
    sought comment on how these editorial corrections should be made. In
    particular, we noted that the cable sports blackout rule (Section
    76.67, amended rule §76.111) contains a cross-reference to Section
    76.5(gg) to determine when the sports blackout rule is
    triggered.[^304] Section 76.5(gg) was eliminated for reasons
    unrelated to the operation of the sports blackout rule, and no
    replacement reference is provided.[^305] The *Notice* asked whether
    we should simply reinstate a standard based on the original criteria
    incorporated into former 76.5 (gg) or adopt a new standard.[^306]

85. Former Section 76.5 (gg) of the Commission's rules referred to the
    1972 must carry rules to determine whether a station was considered
    "local." The cable sports blackout rule is intended to be triggered
    only when no "local" television station carried by a cable system is
    broadcasting the subject sporting event for which protection is
    sought.[^307] In general, the 1972 must carry rules considered a
    television station "local" if the subject cable community served was
    located within the station's specified zone.[^308] In contrast, the
    current must carry rules consider a television station "local" if it
    is located in the same DMA as a cable community. The National Hockey
    League (NHL) maintains that any replacement for Section 76.5 (gg)
    should incorporate the 1972 must carry rules definition of a "local"
    television station's market area.[^309] We agree. The use of DMA's
    would unnecessarily undermine the application of the sports blackout
    rule because DMAs may encompass hundreds of miles.[^310] In such a
    DMA, stations carrying the event located hundreds of miles distant
    from the relevant protected zone would be considered "local." If
    considered "local," the holder of the rights to the event could not
    assert the sports blackout rule without blacking out such distant
    over-the-air carriage if the station had must carry rights.

86. For the limited purpose of the application of the sports blackout
    rule, the provisions of the former Section 76.5(gg) can be
    substantially shortened and consolidated. Because the purpose of the
    sports blackout rule is simply to ensure that the rights holders to
    local events can exercise their contractual exclusivity rights, it
    is unnecessary to re-instate the complex definition of "local" that
    was used for the 1972 must carry regime or the 1987 rate
    regulations. It is not our intention to change the operation of the
    cable sports blackout rule. This revision merely incorporates within
    the cable and satellite sports blackout rules the relevant concept
    from the former Section 76.5(gg).[^311]

## Other Technical Corrections

87. The *Notice* also included, in Appendix C, two other provisions that
    require minor, technical corrections.[^312] No comments were
    received regarding these provisions. In the absence of any
    objection, we make these modifications, as proposed, including an
    editorial change to the top 100 market list contained in the rules,
    and a correction to section 76.5 to reflect that the reference to
    76.5 (o) in 76.5(ii) should be 76.5 (m)**.**

88. In addition, we note that Section 73.658(m) contains a reference to
    the Arbitron list of smaller markets.[^313] As discussed in the
    Commission's recent Market Modification Order,[^314] Arbitron is no
    longer tracking television viewership. The Nielsen Research Company
    produces a similar list of markets, which is current.[^315] We will,
    therefore, revise this section of the rules to accomplish this
    updated cross-reference.

89. We are also taking this opportunity to delete several provisions
    from the cable exclusivity rules that have no further
    applicability.[^316] We find that notice and comment are unnecessary
    under Section 553(b) of the Administrative Procedure Act because the
    rules are outdated and have no further applicability.[^317]

# PROCEDURAL MATTERS

90. The SHVIA requires that these rules become effective within one year
    of enactment.[^318] The SHVIA was enacted on November 29, 1999. We
    find good cause exists under the Administrative Procedure Act
    (\"APA\") to have the rules adopted in this *Report and Order* take
    effect with fewer than 30 days advance publication in the Federal
    Register pursuant to section 553(d)(3) of the APA due to the
    statutory deadline.[^319] The Commission has acted expeditiously to
    adopt these complex rules, and they will be adopted and published in
    the Federal Register before the statutory deadline. We note that the
    rules contemplate a phase-in period to allow parties to implement
    the new requirements, and thus parties will have time to consider
    the effect of the rules before they commence implementation.

91. *Final Regulatory Flexibility Analysis.* As required by the
    Regulatory Flexibility Act ("RFA"), *see* 5 U.S.C. § 603, an Initial
    Regulatory Flexibility Analysis ("IRFA") was incorporated in the
    *Notice*. The Commission sought written public comments on the
    possible significant economic impact of the proposed policies and
    rules on small entities in the *Notice*, including comments on the
    IRFA. Pursuant to the RFA, *see* 5 U.S.C. § 604, a Final Regulatory
    Flexibility Analysis is contained in Appendix C.

92. *Final Paperwork Reduction Act of 1995 Analysis.* This Report and
    Order contains new or modified information collection(s) subject to
    the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The
    Commission is requesting Office of Management and Budget (\"OMB\")
    approval, under the emergency processing provisions of the 1995 Act
    (5 C.F.R. §1320.13), of the information collection requirements
    contained in this *Report and Order*.

# ORDERING CLAUSES

93. Accordingly, **IT IS ORDERED** that, pursuant authority found in
    Sections 4(i) 4(j), 303(r), and 339 of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303(r), and 339, the
    terms of this *Report and Order* and rules as set forth in Appendix
    B **ARE ADOPTED**. The amendments shall become effective November
    29, 2000, provided that this Report and Order (or a summary thereof)
    and the rules have been published in the Federal Register and OMB
    emergency approval of the information collections has been obtained
    on or before that date.

94. **IT IS FURTHER ORDERED** that the Consumer Information Bureau,
    Reference Information Center, **SHALL SEND** a copy of this Report
    and Order, including the Final Regulatory Flexibility Analysis, to
    the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission

Magalie Roman Salas

> Secretary

Appendix A: Commenters

**[Parties Filing Comments]{.underline}**

Association of Local Television Stations, Inc. ("ALTV").

Commissioner of Baseball.

DIRECTV, Inc. ("DirecTV").

Division 1-A Athletic Directors Association ("Athletic Directors").

EchoStar Satellite Corporation ("EchoStar").

Fox Entertainment Group ("Fox").

Grupo Televisa, S.A. ("Grupo Televisa").

Hudson, Eddie

McFatter, Russell A.

Motion Picture Association of America ("MPAA").

National Association of Broadcasters ("NAB").

National Basketball Association ("NBA").

National Cable Television Association ("NCTA").

National Football League ("NFL").

National Hockey League ("NHL").

Pyle, Scott

Satellite Broadcasting and Communications Association ("SBCA").

Stevens, Robert and Natalie.

Tribune Broadcasting Company ("Tribune").

TV Guide, Inc. and Affiliates ("TV Guide").

WIC Premium Television, Ltd. ("WIC").

####### [Parties Filing Reply Comments]{.underline} {#parties-filing-reply-comments .unnumbered}

ABC, CBS, Fox, and NBC Television Network Affiliate Associations
("Network Affiliates").

American Cable Association ("ACA").

Association of Local Television Stations, Inc. ("ALTV").

Commissioner of Baseball.

DIRECTV, Inc. ("DirecTV").

EchoStar Satellite Corporation ("EchoStar").

Motion Picture Association of America ("MPAA").

National Association of Broadcasters ("NAB").

National Basketball Association ("NBA").

National Cable Television Association ("NCTA").

National Football League ("NFL").

National Hockey League ("NHL").

Satellite Broadcasting and Communications Association ("SBCA").

TV Guide, Inc. and Affiliates ("TV Guide").

WB Television Network ("WB").

Appendix B: Rules

The title of the Subpart will be revised to include the Sports Blackout
Rule. The cable Network Non-Duplication Rules will not be renumbered or
amended, except to revise an incorrect cross-reference in Section 76.92
to Section 76.658(m), which should be 73.658(m).

The cable Sports Broadcasts Rule will be renamed the Sports Blackout
Rule, moved into Subpart F, and renumbered as 76.111. This rule will
also be revised to replace the reference to the former 76.5(gg)'s
definition of local market with a current definition by cross-reference
to the new Section 76.128, which applies to both cable and satellite
Sports Blackout rules.

The Syndicated Exclusivity Rules will be renumbered from 76.98-76.110.

The new satellite rules will follow the cable rules and be numbered
76.120-76.130.

**Rule Changes**

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

PART 76 \-- Multichannel Video and Cable Television Service.

1\. The authority citation for Part 76 is revised to read as follows:

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

1\. Part 76 of the Commission's Rules is amended to add the following:

**Subpart F -- Network Non-duplication Protection, Syndicated
Exclusivity and Sports Blackout Rules**

**§ 76.92 Cable network non‑duplication; extent of protection.**

\(a\) Upon receiving notification pursuant to § 76.94, a cable community
unit located in whole or in part within the geographic zone for a
network program, the network non‑duplication rights to which are held by
a commercial television station licensed by the Commission, shall not
carry that program as broadcast by any other television signal, except
as otherwise provided below.

\(b\) For purposes of this section, the order of nonduplication priority
of television signals carried by a community unit is as follows:

> \(1\) First, all television broadcast stations within whose specified
> zone the community of the community unit is located, in whole or in
> part;
>
> \(2\) Second, all smaller market television broadcast stations within
> whose secondary zone the community of the community unit is located,
> in whole or in part.

\(c\) For purposes of this section, all noncommercial educational
television broadcast stations licensed to a community located in whole
or in part within a major television market as specified in §76.51 shall
be treated in the same manner as a major market commercial television
broadcast station, and all noncommercial educational television
broadcast stations not licensed to a community located in whole or in
part within a major television market shall be treated in the same
manner as a smaller market television broadcast station.

\(d\) Any community unit operating in a community to which a 100‑watt or
higher power translator is located within the predicted Grade B signal
contour of the television broadcast station that the translator station
retransmits, and which translator is carried by the community unit
shall, upon request of such translator station licensee or permittee,
delete the duplicating network programming of any television broadcast
station whose reference point (See § 76.53) is more than 88.5 km (55
miles) from the community of the community unit.

\(e\) Any community unit which operates in a community located in whole
or in part within the secondary zone of a smaller market television
broadcast station is not required to delete the duplicating network
programming of any major market television broadcast station whose
reference point (See Section 76.53) is also within 88.5 km (55 miles) of
the community of the community unit.

\(f\) A community unit is not required to delete the duplicating network
programming of any television broadcast station which is significantly
viewed in the cable television community pursuant to § 76.54.

\(g\) A community unit is not required to delete the duplicating network
programming of any qualified NCE television broadcast station that is
carried in fulfillment of the cable television system\'s mandatory
signal carriage obligations, pursuant to § 76.56.

Note: With respect to network programming, the geographic zone within
which the television station is entitled to enforce network
non‑duplication protection and priority of shall be that geographic area
agreed upon between the network and the television station. In no event
shall such rights exceed the area within which the television station
may acquire broadcast territorial exclusivity rights as defined in §
73.658(m), except that small market television stations shall be
entitled to a secondary protection zone of 32.2 additional kilometers
(20 additional miles). To the extent rights are obtained for any
hyphenated market named in § 76.51, such rights shall not exceed those
permitted under § 7**3**.658(m) for each named community in that market.

§ 76.93 Parties entitled to network non‑duplication protection.

Television broadcast station licensees shall be entitled to exercise
non‑duplication rights pursuant to § 76.92 in accordance with the
contractual provisions of the network‑affiliate agreement.

**§ 76.94 Notification.**

\(a\) In order to exercise non‑duplication rights pursuant to § 76.92,
television stations shall notify each cable television system operator
of the non‑duplication sought in accordance with the requirements of
this Section. Except as otherwise provided in paragraph (b) of this
section, non‑duplication protection notices shall include the following
information:

> \(1\) The name and address of the party requesting non‑duplication
> protection and the television broadcast station holding the
> non‑duplication right;
>
> \(2\) The name of the program or series (including specific episodes
> where necessary) for which protection is sought; and
>
> \(3\) The dates on which protection is to begin and end.

\(b\) Broadcasters entering into contracts providing for network
non‑duplication protection shall notify affected cable systems within 60
calendar days of the signing of such a contract. In the event the
broadcaster is unable based on the information contained in the
contract, to furnish all the information required by paragraph (a) of
this section at that time, the broadcaster must provide modified notices
that contain the following information:

> \(1\) The name of the network (or networks) which has (or have)
> extended non‑ duplication protection to the broadcaster;
>
> \(2\) The time periods by time of day (local time) and by network (if
> more than one) for each day of the week that the broadcaster will be
> broadcasting programs from that network (or networks) and for which
> non‑duplication protection is requested; and
>
> \(3\) The duration and extent (e.g., simultaneous, same‑day,
> seven‑day, etc.) of the non‑duplication protection which has been
> agreed upon by the network (or networks) and the broadcaster.

\(c\) Except as otherwise provided in paragraph (d) of this section, a
broadcaster shall be entitled to non‑duplication protection beginning on
the later of:

> \(1\) The date specified in its notice (as described in paragraphs (a)
> or (b) of this section, whichever is applicable) to the cable
> television system; or
>
> \(2\) The first day of the calendar week (Sunday‑Saturday) that begins
> 60 days after the cable television system receives notice from the
> broadcaster.

\(d\) A broadcaster shall provide the following information to the cable
television system under the following circumstances:

> \(1\) In the event the protection specified in the notices described
> in paragraphs (a) or (b) of this section has been limited or ended
> prior to the time specified in the notice, or in the event a time
> period, as identified to the cable system in a notice pursuant to
> paragraph (b) of this section, for which a broadcaster has obtained
> protection is shifted to another time of day or another day (but not
> expanded), the broadcaster shall, as soon as possible, inform each
> cable television system operator that has previously received the
> notice of all changes from the original notice. Notice to be furnished
> \"as soon as possible\" under this subsection shall be furnished by
> telephone, telegraph, facsimile, overnight mail or other similar
> expedient means.
>
> \(2\) In the event the protection specified in the modified notices
> described in paragraph (b) of this section has been expanded, the
> broadcaster shall, at least 60 calendar days prior to broadcast of a
> protected program entitled to such expanded protection, notify each
> cable system operator that has previously received notice of all
> changes from the original notice.

\(e\) In determining which programs must be deleted from a television
signal, a cable television system operator may rely on information from
any of the following sources published or otherwise made available:

> \(1\) Newspapers or magazines of general circulation.
>
> \(2\) A television station whose programs may be subject to deletion.
> If a cable television system asks a television station for information
> about its program schedule, the television station shall answer the
> request:
>
> \(i\) Within ten business days following the television station\'s
> receipt of the request; or
>
> \(ii\) Sixty days before the program or programs mentioned in the
> request for information will be broadcast; whichever comes later.
>
> \(3\) The broadcaster requesting exclusivity.

\(f\) A broadcaster exercising exclusivity pursuant to § 76.92 shall
provide to the cable system, upon request, an exact copy of those
portions of the contracts, such portions to be signed by both the
network and the broadcaster, setting forth in full the provisions
pertinent to the duration, nature, and extent of the non‑duplication
terms concerning broadcast signal exhibition to which the parties have
agreed.

§ 76.95 Exceptions.

\(a\) The provisions of §§ 76.92‑76.94 shall not apply to a cable system
serving fewer than 1,000 subscribers. Within 60 days following the
provision of service to 1,000 subscribers, the operator of each such
system shall file a notice to that effect with the Commission, and serve
a copy of that notice on every television station that would be entitled
to exercise network non‑ duplication protection against it.

\(b\) Network non‑duplication protection need not be extended to a
higher priority station for one hour following the scheduled time of
completion of the broadcast of a live sports event by that station or by
a lower priority station against which a cable community unit would
otherwise be required to provide non‑duplication protection following
the scheduled time of completion.

**[Cable Syndicated Program Exclusivity Rules]{.underline}**

**§ 76.101 Cable syndicated program exclusivity: extent of protection.**

Upon receiving notification pursuant to § 76.105, a cable community unit
located in whole or in part within the geographic zone for a syndicated
program, the syndicated exclusivity rights to which are held by a
commercial television station licensed by the Commission, shall not
carry that program as broadcast by any other television signal, except
as otherwise provided below.

Note: With respect to each syndicated program, the geographic zone
within which the television station is entitled to enforce syndicated
exclusivity rights shall be that geographic area agreed upon between the
non‑network program supplier, producer or distributor and the television
station. In no event shall such zone exceed the area within which the
television station has acquired broadcast territorial exclusivity rights
as defined in § 73.658(m). To the extent rights are obtained for any
hyphenated market named in § 76.51, such rights shall not exceed those
permitted under § 73.658(m) for each named community in that market.

§ 76.103 Parties entitled to syndicated exclusivity.

\(a\) Television broadcast station licensees shall be entitled to
exercise exclusivity rights pursuant to § 76.101 in accordance with the
contractual provisions of their syndicated program license agreements,
consistent with § 76.109.

\(b\) Distributors of syndicated programming shall be entitled to
exercise exclusive rights pursuant to § 76.101 for a period of one year
from the initial broadcast syndication licensing of such programming
anywhere in the United States; provided, however, that distributors
shall not be entitled to exercise such rights in areas in which the
programming has already been licensed.

§ 76.105 Notification.

\(a\) In order to exercise exclusivity rights pursuant to § 76.101,
distributors or television stations shall notify each cable television
system operator of the exclusivity sought in accordance with the
requirements of this section. Syndicated program exclusivity notices
shall include the following information:

> \(1\) The name and address of the party requesting exclusivity and the
> television broadcast station or other party holding the exclusive
> right;
>
> \(2\) The name of the program or series (including specific episodes
> where necessary) for which exclusivity is sought;
>
> \(3\) The dates on which exclusivity is to begin and end.

\(b\) Broadcasters entering into contracts on or after August 18, 1988,
which contain syndicated exclusivity protection shall notify affected
cable systems within sixty calendar days of the signing of such a
contract. Broadcasters who have entered into contracts prior to August
18, 1988, and who comply with the requirements specified in § 76.109
shall notify affected cable systems on or before June 19, 1989. A
broadcaster shall be entitled to exclusivity protection beginning on the
later of:

> \(1\) The date specified in its notice to the cable television system;
> or
>
> \(2\) The first day of the calendar week (Sunday‑Saturday) that begins
> 60 days after the cable television system receives notice from the
> broadcaster;

\(c\) In determining which programs must be deleted from a television
broadcast signal, a cable television system operator may rely on
information from any of the following sources published or otherwise
made available.

> \(1\) Newspapers or magazines of general circulation;
>
> \(2\) A television station whose programs may be subject to deletion.
> If a cable television system asks a television station for information
> about its program schedule, the television station shall answer the
> request:
>
> \(i\) Within ten business days following the television station\'s
> receipt of the request; or
>
> \(ii\) Sixty days before the program or programs mentioned in the
> request for information will be broadcast; whichever comes later.
>
> \(3\) The distributor or television station requesting exclusivity.

\(d\) In the event the exclusivity specified in paragraph (a) of this
section has been limited or has ended prior to the time specified in the
notice, the distributor or broadcaster who has supplied the original
notice shall, as soon as possible, inform each cable television system
operator that has previously received the notice of all changes from the
original notice. In the event the original notice specified contingent
dates on which exclusivity is to begin and/or end, the distributor or
broadcaster shall, as soon as possible, notify the cable television
system operator of the occurrence of the relevant contingency. Notice to
be furnished \"as soon as possible\" under this subsection shall be
furnished by telephone, telegraph, facsimile, overnight mail or other
similar expedient means.

§ 76.106 Exceptions.

\(a\) Notwithstanding the requirements of §§ 76.101‑76.105, a broadcast
signal is not required to be deleted from a cable community unit when
that cable community unit falls, in whole or in part, within that
signal\'s grade B contour, or when the signal is significantly viewed
pursuant to § 76.54 in the cable community.

\(b\) The provisions of §§ 76.101‑76.105 shall not apply to a cable
system serving fewer than 1,000 subscribers. Within 60 days following
the provision of service to 1,000 subscribers, the operator of each such
system shall file a notice to that effect with the Commission, and serve
a copy of that notice on every television station that would be entitled
to exercise syndicated exclusivity protection against it.

§ 76.107 Exclusivity contracts.

A distributor or television station exercising exclusivity pursuant to §
76.101 shall provide to the cable system, upon request, an exact copy of
those portions of the exclusivity contracts, such portions to be signed
by both the distributor and the television station, setting forth in
full the provisions pertinent to the duration, nature, and extent of the
exclusivity terms concerning broadcast signal exhibition to which the
parties have agreed.

§ 76.108 Indemnification contracts.

No licensee shall enter into any contract to indemnify a cable system
for liability resulting from failure to delete programming in accordance
with the provisions of this subpart unless the licensee has a reasonable
basis for concluding that such program deletion is not required by this
subpart.

§ 76.109 Requirements for invocation of protection.

For a station licensee to be eligible to invoke the provisions of §
76.101, it must have a contract or other written indicia that it holds
syndicated exclusivity rights for the exhibition of the program in
question. Contracts entered on or after August 18, 1988, must contain
the following words: \"the licensee \[or substitute name\] shall, by the
terms of this contract, be entitled to invoke the protection against
duplication of programming imported under the Compulsory Copyright
License, as provided in § 76.101 of the FCC rules \[or \'as provided in
the FCC\'s syndicated exclusivity rules\'\].\" Contracts entered into
prior to August 18, 1988, must contain either the foregoing language or
a clear and specific reference to the licensee\'s authority to exercise
exclusivity rights as to the specific programming against cable
television broadcast signal carriage by the cable system in question
upon the contingency that the government reimposed syndicated
exclusivity protection. In the absence of such a specific reference in
contracts entered into prior to August 18, 1988, the provisions of these
rules may be invoked only if (a) the contract is amended to include the
specific language referenced above or (b) a specific written
acknowledgment is obtained from the party from whom the broadcast
exhibition rights were obtained that the existing contract was intended,
or should now be construed by agreement of the parties, to include such
rights. A general acknowledgment by a supplier of exhibition rights that
specific contract language was intended to convey rights under these
rules will be accepted with respect to all contracts containing that
specific language. Nothing in this Section shall be construed as a grant
of exclusive rights to a broadcaster where such rights are not agreed to
by the parties.

§ 76.110 Substitutions.

Whenever, pursuant to the requirements of the syndicated exclusivity
rules, a community unit is required to delete a television program on a
broadcast signal that is permitted to be carried under the Commission\'s
rules, such community unit may, consistent with these rules and the
sports blackout rules at 47 CFR 76.111, substitute a program from any
other television broadcast station. Programs substituted pursuant to
this section may be carried to their completion.

**[Cable Sports Blackout Rule.]{.underline}**

**§ 76.111 Cable sports blackout.**

\(a\) No community unit located in whole or in part within the specified
zone of a television broadcast station licensed to a community in which
a sports event is taking place, shall, on request of the holder of the
broadcast rights to that event, or its agent, carry the live television
broadcast of that event if the event is not available live on a
television broadcast station meeting the criteria specified in § 76.128.
For purposes of this section, if there is no television station licensed
to the community in which the sports event is taking place, the
applicable specified zone shall be that of the television station
licensed to the community with which the sports event or team is
identified, or, if the event or local team is not identified with any
particular community, the nearest community to which a television
station is licensed.

\(b\) Notification of the programming to be deleted pursuant to this
section shall include the following information:

> \(1\) As to programming to be deleted from television broadcast
> signals regularly carried by the community unit:
>
> \(i\) The name and address of the party requesting the program
> deletion;
>
> \(ii\) The date, time and expected duration of the sports event the
> television broadcast of which is to be deleted;
>
> \(iii\) The call letters of the television broadcast station(s) from
> which the deletion is to be made.
>
> \(2\) As to programming to be deleted from television broadcast
> signals not regularly carried by the community unit:
>
> \(i\) The name and address of the party requesting the program
> deletion;
>
> \(ii\) The date, time and expected duration of the sports event the
> television broadcast of which is to be deleted.

\(c\) Notifications given pursuant to this section must be received, as
to regularly scheduled events, no later than the Monday preceding the
calendar week (Sunday‑Saturday) during which the program deletion is to
be made. Notifications as to events not regularly scheduled and
revisions of notices previously submitted, must be received within
twenty‑four (24) hours after the time of the telecast to be deleted is
known, but in any event no later than twenty‑four (24) hours from the
time the subject telecast is to take place.

\(d\) Whenever, pursuant to this section, a community unit is required
to delete a television program on a signal regularly carried by the
community unit, such community unit may, consistent with the rules
contained in Subpart F of this part, substitute a program from any other
television broadcast station. A program substituted may be carried to
its completion, and the community unit need not return to its regularly
carried signal until it can do so without interrupting a program already
in progress.

\(e\) The provisions of this section shall not be deemed to require the
deletion of any portion of a television signal which a community unit
was lawfully carrying prior to March 31, 1972.

\(f\) The provisions of this section shall not apply to any community
unit having fewer than 1,000 subscribers.

**[Network Non-duplication Protection, Syndicated Exclusivity and Sports
Blackout Rules for Satellite Carriers]{.underline}**

**§76.120 Definitions**. For purposes of Sections 76.122-76.130, the
following definitions apply:

(a) **Satellite carrier.**‑‑ 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.

(b) **Nationally distributed superstation. -**‑ The term \'nationally
    distributed superstation\' means a television broadcast station,
    licensed by the Commission, that‑‑

\(1\) 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;

\(2\) on May 1, 1991, was retransmitted by a satellite carrier and was
not a network station at that time; and

\(3\) was, as of July 1, 1998, retransmitted by a satellite carrier
under the statutory license of Section 119 of title 17, United States
Code.

(c) **Television Network. \--**The term \'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.

(d) **Network station.** ‑‑The term \"network station\" means --

> \(1\) 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

\(2\) 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.

(e) **Zone of Protection. --** The term "zone of protection" means --

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(1) With respect to network non-duplication, the zone of protection
    within which the television station is entitled to enforce network
    non‑duplication protection shall be that geographic area agreed upon
    between the network and the television station. In no event shall
    such rights exceed the area within which the television station may
    acquire broadcast territorial exclusivity rights as defined in §
    73.658(m), except that small market television stations shall be
    entitled to a secondary protection zone of 32.2 additional
    kilometers (20 additional miles). To the extent rights are obtained
    for any hyphenated market named in § 76.51, such rights shall not
    exceed those permitted under §73.658(m) for each named community in
    that market.

(2) With respect to each syndicated program, the zone of protection
    within which the television station is entitled to enforce
    syndicated exclusivity rights shall be that geographic area agreed
    upon between the non‑network program supplier, producer or
    distributor and the television station. In no event shall such zone
    exceed the area within which the television station has acquired
    broadcast territorial exclusivity rights as defined in § 73.658(m).
    To the extent rights are obtained for any hyphenated market named in
    §76.51, such rights shall not exceed those permitted under §
    73.658(m) for each named community in that market.

(3) With respect to sports blackout, the zone of protection is the
    "specified zone" of a television broadcast station, as defined in §
    76.5(e). If there is no television station licensed to the community
    in which the sports event is taking place, the applicable specified
    zone shall be that of the television station licensed to the
    community with which the sports event or team is identified, or, if
    the event or local team is not identified with any particular
    community, the nearest community to which a television station is
    licensed.

**§76.122 Satellite network non‑duplication.**

(a) Upon receiving notification pursuant to (c), below, a satellite
    carrier shall not deliver, to subscribers within zip code areas
    located in whole or in part within the zone of protection of a
    commercial television station licensed by the Commission, a program
    carried on a nationally distributed superstation when the network
    non‑duplication rights to such program are held by the commercial
    television station providing notice, except as provided in (j), (k)
    or (l) of this Section.

(b) Television broadcast station licensees shall be entitled to exercise
    non‑duplication rights pursuant to § 76.122 in accordance with the
    contractual provisions of the network‑affiliate agreement, and as
    provided in § 76.124.

(c) In order to exercise non‑duplication rights pursuant to § 76.122,
    television stations shall notify each satellite carrier of the
    non‑duplication sought in accordance with the requirements of this
    Section. Non‑duplication protection notices shall include the
    following information:

> \(1\) The name and address of the party requesting non‑duplication
> protection and the television broadcast station holding the
> non‑duplication right;
>
> \(2\) The name of the program or series (including specific episodes
> where necessary) for which protection is sought;
>
> \(3\) The dates on which protection is to begin and end;
>
> \(4\) The name of the network (or networks) which has (or have)
> extended non‑duplication protection to the broadcaster;
>
> \(5\) The time periods by time of day (local time) and by network (if
> more than one) for each day of the week that the broadcaster will be
> broadcasting programs from that network (or networks) and for which
> non‑duplication protection is requested;
>
> \(6\) The duration and extent (e.g., simultaneous, same‑day,
> seven‑day, etc.) of the non‑duplication protection which has been
> agreed upon by the network (or networks) and the broadcaster; and
>
> \(7\) A list of the U.S. postal zip code(s) that encompass the zone of
> protection under these rules.

(d) Broadcasters entering into contracts providing for network
    non‑duplication protection shall notify affected satellite carriers
    within 60 calendar days of the signing of such a contract; provided,
    however, that for such contracts signed before November 29, 2000,
    the broadcaster may provide notice on or before January 31, 2001, or
    with respect to pre‑November 29, 2000 contracts that require
    amendment in order to invoke the provisions of these rules,
    notification may be given within sixty calendar days of the signing
    of such amendment.

(e) Except as otherwise provided in this Section, a broadcaster shall be
    entitled to non‑duplication protection beginning on the later of:

> \(1\) The date specified in its notice to the satellite carrier; or
>
> \(2\) The first day of the calendar week (Sunday‑Saturday) that begins
> 60 days after the satellite carrier receives notice from the
> broadcaster;
>
> Provided, however, that with respect to notifications given pursuant
> to this Section prior to June 1, 2001, a satellite carrier is not
> required to provide non-duplication protection until 120 days after
> the satellite carrier receives such notification.

(f) A broadcaster shall provide the following information to the
    satellite carrier under the following circumstances:

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(1) In the event the protection specified in the notices described in
    paragraph (c) of this Section has been limited or ended prior to the
    time specified in the notice, or in the event a time period, as
    identified to the satellite carrier in a notice pursuant to
    paragraph (c) of this Section, for which a broadcaster has obtained
    protection is shifted to another time of day or another day (but not
    expanded), the broadcaster shall, as soon as possible, inform each
    satellite carrier that has previously received the notice of all
    changes from the original notice. Notice to be furnished \"as soon
    as possible\" under this Subsection shall be furnished by telephone,
    telegraph, facsimile, e-mail, overnight mail or other similar
    expedient means.

(2) In the event the protection specified in the notices described in
    paragraph (c) of this Section has been expanded, the broadcaster
    shall, at least 60 calendar days prior to broadcast of a protected
    program entitled to such expanded protection, notify each satellite
    carrier that has previously received notice of all changes from the
    original notice.

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(g) In determining which programs must be deleted from a television
    signal, a satellite carrier may rely on information from newspapers
    or magazines of general circulation, the broadcaster requesting
    exclusivity protection, or the nationally distributed superstation.

(h) If a satellite carrier asks a nationally distributed superstation
    for information about its program schedule, the nationally
    distributed superstation shall answer the request:

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(i) Within ten business days following its receipt of the request; or

> \(ii\) Sixty days before the program or programs mentioned in the
> request for information will be broadcast, whichever comes later.

(i) A broadcaster exercising exclusivity pursuant to this Section shall
    provide to the satellite carrier, upon request, an exact copy of
    those portions of the contracts, such portions to be signed by both
    the network and the broadcaster, setting forth in full the
    provisions pertinent to the duration, nature, and extent of the
    non‑duplication terms concerning broadcast signal exhibition to
    which the parties have agreed.

(j) A satellite carrier is not required to delete the duplicating
    programming of any nationally distributed superstation that is
    carried by the satellite carrier as a local station with the
    station's retransmission consent pursuant to § 76.64

> \(i\) within the station's local market;
>
> \(ii\) if the station is "significantly viewed," pursuant to § 76.54,
> in zip code areas included within the zone of protection; or
>
> \(iii\) if the zone of protection falls, in whole or in part, within
> that signal\'s grade B contour.

(k) A satellite carrier is not required to delete the duplicating
    programming of any nationally distributed superstation from an
    individual subscriber who is located outside the zone of protection,
    notwithstanding that the subscriber lives within a zip code provided
    by the broadcaster pursuant to paragraph (c) of this Section.

(l) A satellite carrier is not required to delete programming if it has
    fewer than 1,000 subscribers within the relevant protected zone who
    subscribe to the nationally distributed superstation carrying the
    programming for which deletion is requested pursuant to
    paragraph (c) of this Section.

**[Satellite Syndicated Program Exclusivity Rules]{.underline}**

**§ 76.123 Satellite syndicated program exclusivity.**

> \(a\) Upon receiving notification pursuant to paragraph (d) of this
> Section, a satellite carrier shall not deliver, to subscribers located
> within zip code areas in whole or in part within the zone of
> protection of a commercial television station licensed by the
> Commission, a program carried on a nationally distributed superstation
> when the syndicated program exclusivity rights to such program are
> held by the commercial television station providing notice, except as
> provided in paragraphs (k), (l) and (m) of this Section.
>
> \(b\) Television broadcast station licensees shall be entitled to
> exercise exclusivity rights pursuant to this Section in accordance
> with the contractual provisions of their syndicated program license
> agreements, consistent with § 76.124.
>
> \(c\) Distributors of syndicated programming shall be entitled to
> exercise exclusive rights pursuant to this Section for a period of one
> year from the initial broadcast syndication licensing of such
> programming anywhere in the United States; provided, however, that
> distributors shall not be entitled to exercise such rights in areas in
> which the programming has already been licensed*.*
>
> \(d\) In order to exercise exclusivity rights pursuant to this
> Section, distributors of syndicated programming or television
> broadcast stations shall notify each satellite carrier of the
> exclusivity sought in accordance with the requirements of this
> paragraph. Syndicated program exclusivity notices shall include the
> following information:
>
> \(1\) The name and address of the party requesting exclusivity and the
> television broadcast station or other party holding the exclusive
> right;
>
> (2)The name of the program or series (including specific episodes
> where necessary) for which exclusivity is sought;
>
> (3)The dates on which exclusivity is to begin and end; and
>
> \(4\) A list of the U.S. postal zip code(s) that encompass the zone of
> protection under these rules.
>
> \(e\) A distributor or television station exercising exclusivity
> pursuant to this Section shall provide to the satellite carrier, upon
> request, an exact copy of those portions of the exclusivity contracts,
> such portions to be signed by both the distributor and the television
> station, setting forth in full the provisions pertinent to the
> duration, nature, and extent of the exclusivity terms concerning
> broadcast signal exhibition to which the parties have agreed.
>
> \(f\) Television broadcast stations or distributors entering into
> contracts on or after November 29, 2000, which contain syndicated
> exclusivity protection with respect to satellite retransmission of
> programming, shall notify affected satellite carriers within sixty
> calendar days of the signing of such a contract. Television broadcast
> stations or distributors who have entered into contracts prior to
> November 29, 2000, and who comply with the requirements specified in §
> 76.124 shall notify affected satellite carriers on or before January
> 31, 2001; provided, however, that with respect to pre‑November 29,
> 2000 contracts that require amendment in order to invoke the
> provisions of these rules, notification may be given within sixty
> calendar days of the signing of such amendment.
>
> \(g\) Except as otherwise provided in this Section, a television
> broadcast station shall be entitled to exclusivity protection
> beginning on the later of:

1.  \(1\) The date specified in its notice to the satellite carrier; or

    \(2\) The first day of the calendar week (Sunday‑Saturday) that
    begins 60 days after the satellite carrier receives notice from the
    broadcaster.

> Provided, however, that with respect to notifications given pursuant
> to this Section prior to June 1, 2001, a satellite carrier is not
> required to provide syndicated exclusivity protection until 120 days
> after the satellite carrier receives such notification.

(h) In determining which programs must be deleted from a television
    broadcast signal, a satellite carrier may rely on information from
    the distributor or television broadcast station requesting
    exclusivity; newspapers or magazines of general circulation; or the
    nationally distributed superstation whose programs may be subject to
    deletion.

(i) If a satellite carrier asks a nationally distributed superstation
    for information about its program schedule, the nationally
    distributed superstation shall answer the request:

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(1) Within ten business days following the its receipt of the request;
    or

(2) Sixty days before the program or programs mentioned in the request
    for information will be broadcast; whichever comes later.

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(j) In the event the exclusivity specified in paragraph (a) of this
    Section has been limited or has ended prior to the time specified in
    the notice, the distributor or broadcaster who has supplied the
    original notice shall, as soon as possible, inform each satellite
    carrier that has previously received the notice of all changes from
    the original notice. In the event the original notice specified
    contingent dates on which exclusivity is to begin and/or end, the
    distributor or broadcaster shall, as soon as possible, notify the
    satellite carrier of the occurrence of the relevant contingency.
    Notice to be furnished \"as soon as possible\" under this Subsection
    shall be furnished by telephone, telegraph, facsimile, e-mail,
    overnight mail or other similar expedient means.

(k) A satellite carrier is not required to delete the programming of any
    nationally distributed superstation that is carried by the satellite
    carrier as a local station with the station's retransmission consent
    pursuant to § 76.64

> \(i\) within the station's local market;
>
> \(ii\) if the station is "significantly viewed," pursuant to § 76.54,
> in zip code areas included within the zone of protection; or
>
> \(iii\) if the zone of protection falls, in whole or in part, within
> that signal\'s grade B contour.

(l) A satellite carrier is not required to delete the duplicating
    programming of any nationally distributed superstation from an
    individual subscriber who is located outside the zone of protection,
    notwithstanding that the subscriber lives within a zip code provided
    by the broadcaster pursuant to paragraph (d) of this Section.

(m) A satellite carrier is not required to delete programming if it has
    fewer than 1,000 subscribers within the relevant protected zone who
    subscribe to the nationally distributed superstation carrying the
    programming for which deletion is requested pursuant to
    paragraph (d) of this Section.

§ 76.124 Requirements for invocation of protection.

For a television broadcast station licensee or distributor of syndicated
programming to be eligible to invoke the provisions of §76.122 or §
76.123 of this Subpart, it must have a contract or other written indicia
that it holds network program non-duplication or syndicated exclusivity
rights for the exhibition of the program in question. Contracts entered
on or after November 29, 2000, must contain the following words: \"the
licensee \[or substitute name\] shall, by the terms of this contract, be
entitled to invoke the protection against duplication of programming
imported under the Statutory Copyright License, as provided in § 76.122
or § 76.123 of the FCC rules \[or \'as provided in the FCC\'s satellite
network non-duplication or syndicated exclusivity rules\'\].\" Contracts
entered into prior to November 29, 2000, must contain the foregoing
language plus a clear and specific reference to the licensee\'s
authority to exercise exclusivity rights as to the specific programming
against signal carriage by the satellite carrier in question, or by
satellite carriage in general in a protected, geographic or specified
zone. In the absence of such a specific reference in contracts entered
into prior to November 29, 2000, the provisions of these rules may be
invoked only if (a) the contract is amended to include the specific
language referenced above or (b) a specific written acknowledgment is
obtained from the party from whom the broadcast exhibition rights were
obtained that the existing contract was intended, or should now be
construed by agreement of the parties, to include such rights. A general
acknowledgment by a supplier of exhibition rights that specific contract
language was intended to convey rights under these rules will be
accepted with respect to all contracts containing that specific
language. Nothing in this Section shall be construed as a grant of
exclusive rights to a broadcaster where such rights are not agreed to by
the parties.

§ 76.125 Indemnification contracts.

No television broadcast station licensee shall enter into any contract
to indemnify a satellite carrier for liability resulting from failure to
delete programming in accordance with the provisions of this Subpart
unless the licensee has a reasonable basis for concluding that such
program deletion is not required by this Subpart.

**§ 76.127 Satellite sports blackout.**

> \(a\) Upon the request of the holder of the broadcast rights to a
> sports event, or its agent, no satellite carrier shall retransmit to
> subscribers within the area comprising the specified zone a
> "nationally distributed superstation" or "network station" carrying
> the live television broadcast of a sports event if the event is not
> available live on a television broadcast station meeting the criteria
> specified in § 76.128. For purposes of this section, if there is no
> television station licensed to the community in which the sports event
> is taking place, the applicable specified zone shall be that of the
> television station licensed to the community with which the sports
> event or team is identified, or, if the event or local team is not
> identified with any particular community, the nearest community to
> which a television station is licensed.
>
> \(b\) Notification of the programming to be deleted pursuant to this
> Section shall include the following information:

(1) The name and address of the party requesting the program deletion;

(2) The date, time and expected duration of the sports event the
    television broadcast of which is to be deleted;

(3) The call letters of the nationally distributed superstation or
    network station(s) from which the deletion is to be made;

(4) The U.S. postal zip codes that encompass the specified zone.

> \(c\) Notifications given pursuant to this Section must be received by
> the satellite carrier, as to regularly scheduled events, within
> forty-eight (48) hours after the time of the telecast to be deleted is
> known, and no later than the Monday preceding the calendar week
> (Sunday‑Saturday) during which the program deletion is to be made.
> Notifications as to events not regularly scheduled and revisions of
> notices previously submitted, must be received within twenty‑four (24)
> hours after the time of the telecast to be deleted is known, but in
> any event no later than twenty‑four (24) hours from the time the
> subject telecast is to take place.

(d) A satellite carrier is not required to delete a sports events from
    an individual subscriber who is located outside the specified zone,
    notwithstanding that the subscriber lives within a zip code provided
    by the holder of the broadcast rights pursuant to paragraph (b) of
    this Section.

(e) A satellite carrier is not required to delete a sports event if it
    has fewer than 1,000 subscribers within the relevant specified zone
    who subscribe to the nationally distributed superstation or network
    station carrying the sports event for which deletion is requested
    pursuant to paragraph (b) of this Section.

(f) Notwithstanding paragraph (c) of this Section, for sports events to
    be deleted on or before March 31, 2001, notification must be
    received by satellite carriers at least 60 full days prior to the
    day the telecast is to be deleted.

**§76.128 Application of sports blackout rules.**

The cable and satellite sports blackout rules (§§76.111 and 76.127) may
apply when the sports event is not available live on any of the
following television broadcast stations carried by a cable system or
other MVPD:

(i) Television broadcast stations within whose specified zone the
    community of the community unit or the community within which the
    sporting event is taking place is located, in whole or in part;

(ii) Television broadcast stations within whose Grade B contours the
     community of the community unit or the community within which the
     sporting event is taking place is located, in whole or in part;

(iii) Television broadcast stations licensed to other designated
      communities which are generally considered to be part of the same
      television market (Example: Burlington, Vt.‑Plattsburgh, N.Y. or
      Cincinnati, Ohio‑Newport, Ky., television markets);

(iv) Television broadcast stations that are significantly viewed,
     pursuant to §76.54, in the community unit or community within the
     specified zone.

§ 76.130 Substitutions.

Whenever, pursuant to the requirements of the network program
non-duplication, syndicated program exclusivity, or sports blackout
rules, a satellite carrier is required to delete a television program
from retransmission to satellite subscribers within a zip code area,
such satellite carrier may, consistent with this Subpart, substitute a
program from any other television broadcast station for which the
satellite carrier has obtained the necessary legal rights and
permissions, including but not limited to copyright and retransmission
consent. Programs substituted pursuant to this Section may be carried to
their completion.

# TECHNICAL CORRECTIONS TO COMMISSION RULES {#technical-corrections-to-commission-rules .unnumbered}

**§ 76.5(ii) Definitions.**

Existing Section 76.5(ii) references Section 76.5(o). The correct
reference is to Section 76.5(m).

Part 76, Subpart A

Amend 47 C.F.R. § 76.5(ii), as follows:

76.5(ii) A *syndicated program* is 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 as
defined in § 76.5(m).

**§ 76.51(a)(2), (a)(28) Major Television Markets.**

Section 76.51 lists the top 100 television markets in the United States.
The "Los Angeles-San Bernardino-Corona-Fontana-Riverside, Calif." market
is listed at Section 76.51(a)(2). In 1995, the Commission redesignated
the "Los Angeles-San Bernardino-Corona-Fontana-Riverside, Calif.,"
market as the "Los Angeles-San Bernardino-Corona-Riverside-Anaheim,
Calif." market.[^320] However, the published amendment to Section
76.51(a) intended to effectuate the foregoing change inadvertently
amended Section 76.51(a)(28), rather than Section 76.51(a)(2). As a
result, the redesignated "Los Angeles-San
Bernardino-Corona-Riverside-Anaheim, Calif." market is listed as Section
76.51(a)(28) and the "Los Angeles-San
Bernardino-Corona-Fontana-Riverside, Calif." market still is listed as
Section 76.51(a)(2). The "Tampa-St. Petersburg-Clearwater, Florida"
market, which was listed at Section 76.51(a)(28) at the time the
Commission adopted the *Los Angeles Redesignation Order*, was deleted
inadvertently from Section 76.51(a)(28) and currently is not listed
elsewhere in Section 76.51.

The correct reference in Section 76.51(a)(2) is to the "Los Angeles-San
Bernardino-Corona-Riverside-Anaheim, Calif." market. The correct
reference in Section 76.51(a)(28) is to the "Tampa-St.
Petersburg-Clearwater, Florida" market.

Part 76, Subpart D

Amend §76.51(a)(2), to read as follows:

\(2\) Los Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif.

Amend § 76.51(a)(28), to read as follows:

(28)Tampa-St. Petersburg-Clearwater, Florida.

**[Correction to § 73.658(m) to replace reference to Arbitron with
Nielsen]{.underline}**

Section 73.658(m), in the rules related to television broadcast
stations, describes the Commission's territorial exclusivity rules in
non-network arrangements. With respect to the list of television markets
smaller than the 100 markets listed in § 76.51, the rule currently
refers to the "ARB Television Market Analysis." This listing, formerly
produced by the Arbitron Ratings Company, has been supplanted by a list
currently produced by Nielsen Media Research. Therefore, the reference
in this rule section must be changed accordingly.

Part 73 of Title 47 of the Code of Federal Regulations reads as follows:

PART 73 \-- Radio Broadcast Services.

The authority citation for Part 73 reads as follows:

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

1\. Part 73 of the Commission's Rules is amended to add the following:

Subpart E

Amend 47 C.F.R. § 73.658(m)(1), as follows:

§ 73.658(m) *Territorial exclusivity in non-network arrangements.*

\(1\) No television station shall enter into any contract, arrangement,
or understanding, expressed or implied; with a non-network program
producer, distributor, or supplier, or other person; which prevents or
hinders another television station located in a community over 56.3
kilometers (35 miles) away, as determined by the reference points
contained in § 76.53 of this chapter, (if reference points for a
community are not listed in § 76.53, the location of the main post
office will be used) from broadcasting any program purchased by the
former station from such non-network program producer, distributor,
supplier, or other person, except that a television station may secure
exclusivity against a television station licensed to another designated
community in a hyphenated market specified in the market listing as
contained in § 76.51 of this chapter for those 100 markets listed, and
for markets not listed in § 76.51 of this chapter, the listing as
contained in the Nielsen Media Research DMA Rankings for the most recent
year at the time that the exclusivity contract, arrangement or
understanding is complete under practices of the industry. As used in
this paragraph, the term \"community\" is defined as the community
specified in the instrument of authorization as the location of the
station.

Appendix C: Final Regulatory Flexibility Act Analysis

#  {#section .unnumbered}

1.  As required by the Regulatory Flexibility Act ("RFA"),[^321] an
    Initial Regulatory Flexibility Analysis ("IRFA") was incorporated in
    the Notice of Proposed Rulemaking ("*Notice*") in CS Docket No.
    00-2, FCC 00-4. The Commission sought written public comments on the
    proposals in the *Notice*, including comment on the IRFA.[^322] This
    Final Regulatory Flexibility Analysis ("FRFA") conforms to the
    RFA.[^323]

2.  *Need for, and Objectives* *of this Report and Order.* Section
    339(b) of the Communications Act of 1934, as amended ("Act"), 47
    U.S.C. §339(b)(1), directed the Commission to "complete all actions
    necessary to prescribe regulations required by this section so that
    the regulations shall become effective within 1 year after"
    enactment of the Satellite Home Viewer Improvement Act of
    1999.[^324] The relevant provisions concern the application of the
    cable network non-duplication, syndicated program exclusivity, and
    sports blackout rules to satellite carriers' retransmission of
    nationally distributed superstations, and, with respect only to the
    cable sports blackout rules, to satellite retransmission of network
    stations.[^325]

3.  *Legal Basis.* The authority for the actions taken in this Report
    and Order is contained in Sections 1, 4(i) and (j), 303, and 339 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i)
    and (j), 303, and 339.

4.  *Summary of Significant Issues Raised by Public Comments in Response
    to the IRFA.* We did not receive any comments in direct response to
    the IRFA.

5.  *Description and Estimate of the Number of Small Entities to Which
    the Rules Will Apply*. The RFA directs the Commission to provide a
    description of and, where feasible, an estimate of the number of
    small entities that will be affected by the proposed rules.[^326]
    The RFA defines the term "small entity" as having the same meaning
    as the terms "small business," "small organization," and "small
    business concern" under Section 3 of the Small Business Act.[^327]
    Under the Small Business Act, a small business concern is one which:
    (1) is independently owned and operated; (2) is not dominant in its
    field of operation; and (3) satisfies any additional criteria
    established by the Small Business Administration ("SBA").[^328] The
    rules we adopt affect television station licensees and satellite
    carriers.

6.  *Television Stations.* The rules and policies will apply to
    television broadcasting licensees, and potential licensees of
    television service. The Small Business Administration defines a
    television broadcasting station that has no more than \$10.5 million
    in annual receipts as a small business.[^329] Television
    broadcasting stations consist of establishments primarily engaged in
    broadcasting visual programs by television to the public, except
    cable and other pay television services.[^330] Included in this
    industry are commercial, religious, educational, and other
    television stations.[^331] Also included are establishments
    primarily engaged in television broadcasting and which produce taped
    television program materials.[^332] Separate establishments
    primarily engaged in producing taped television program materials
    are classified under another SIC number.[^333]

7.  Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small
    business applies "unless an agency after consultation with the
    Office of Advocacy of the SBA and after opportunity for public
    comment, establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register."

8.  An element of the definition of "small business" is that the entity
    not be dominant in its field of operation. We are unable at this
    time to define or quantify the criteria that would establish whether
    a specific television station is dominant in its field of operation.
    Accordingly, the estimates that follow of small businesses to which
    rules may apply do not exclude any television station from the
    definition of a small business on this basis and are therefore
    over-inclusive to that extent. An additional element of the
    definition of "small business" is that the entity must be
    independently owned and operated. As discussed further below, we
    could not fully apply this criterion, and our estimates of small
    businesses to which rules may apply may be over-inclusive to this
    extent. The SBA's general size standards are developed taking into
    account these two statutory criteria. This does not preclude us from
    taking these factors into account in making our estimates of the
    numbers of small entities.

9.  There were 1,509 television stations operating in the nation in
    1992.[^334] That number has remained fairly constant as indicated by
    the approximately 1,616 operating television broadcasting stations
    in the nation as of September 1999.[^335] For 1992, the number of
    television stations that produced less than \$10.0 million in
    revenue was 1,155 establishments.[^336] Thus, the new rules will
    affect approximately 1,616 television stations; approximately 77%,
    or 1,230 of those stations are considered small businesses.[^337]
    These estimates may overstate the number of small entities since the
    revenue figures on which they are based do not include or aggregate
    revenues from non-television affiliated companies.

10. *Small Multiple Video Program Distributors ("MVPDs")*: SBA has
    developed a definition of small entities for cable and other pay
    television services, which includes all such companies generating
    \$11 million or less in annual receipts.[^338] This definition
    includes cable system operators, direct broadcast satellite
    services, multipoint distribution systems, satellite master antenna
    systems and subscription television services. According to the
    Census Bureau data from 1992, there were 1,758 total cable and other
    pay television services and 1,423 had less than \$11 million in
    revenue.[^339] We address below services individually to provide a
    more precise estimate of small entities.

11. *Direct Broadcast Satellite ("DBS")*: There are four licensees of
    DBS services under Part 100 of the Commission's Rules. Three of
    those licensees are currently operational. Two of the licensees
    which are operational have annual revenues which may be in excess of
    the threshold for a small business. The Commission, however, does
    not collect annual revenue data for DBS and, therefore, is unable to
    ascertain the number of small DBS licensees that could be impacted
    by these proposed rules. DBS service requires a great investment of
    capital for operation, and we acknowledge that there are entrants in
    this field that may not yet have generated \$11 million in annual
    receipts, and therefore may be categorized as a small business, if
    independently owned and operated.

12. *Home Satellite Delivery ("HSD")*: The market for HSD service is
    difficult to quantify. Indeed, the service itself bears little
    resemblance to other MVPDs. HSD owners have access to more than 265
    channels of programming placed on C‑band satellites by programmers
    for receipt and distribution by MVPDs, of which 115 channels are
    scrambled and approximately 150 are unscrambled.[^340] HSD owners
    can watch unscrambled channels without paying a subscription fee. To
    receive scrambled channels, however, an HSD owner must purchase an
    integrated receiver‑decoder from an equipment dealer and pay a
    subscription fee to an HSD programming package. Thus, HSD users
    include: (1) viewers who subscribe to a packaged programming
    service, which affords them access to most of the same programming
    provided to subscribers of other MVPDs; (2) viewers who receive only
    non‑subscription programming; and (3) viewers who receive satellite
    programming services illegally without subscribing. Because
    scrambled packages of programming are most specifically intended for
    retail consumers, these are the services most relevant to this
    discussion.[^341]

13. According to the most recently available information, there are
    approximately 30 program packagers nationwide offering packages of
    scrambled programming to retail consumers.[^342] These program
    packagers provide subscriptions to approximately 2,314,900
    subscribers nationwide.[^343] This is an average of about 77,163
    subscribers per program package. This is substantially smaller than
    the 400,000 subscribers used in the commission's definition of a
    small MSO. Furthermore, because this is an average, it is likely
    that some program packagers may be substantially smaller.

14. *Description of Projected Reporting, Recordkeeping and other
    Compliance Requirements.* This Report and Order establishes a series
    of rules implementing the Satellite Home Viewer Improvement Act
    of 1999. We have adopted a regulatory framework for substantive
    rules and procedures concerning network non-duplication, syndicated
    program exclusivity, and sports blackout that is substantially
    similar to, but separate from, these rules in the cable context.
    There are certain compliance requirements involving the satellite
    broadcast signal delivery process. Foremost is satellite carriers
    will have to delete certain programming from the retransmission of
    nationally distributed superstations to satellite subscribers within
    the protected zone of the television broadcast station or other
    rights holder asserting network non-duplication, syndicated program
    exclusivity or sports blackout rights. With respect to satellite
    retransmission of network stations, satellite carriers will be
    required to delete certain sports events from retransmission to
    satellite subscribers located within the rights holder's zone of
    protection. There will be costs relating to the time and effort
    involved in deleting these superstation signals and replacing the
    deleted programming.

15. In terms of recordkeeping, entities will likely have to keep a
    record of the deletion and blackout requests and entities may be
    required to maintain such information within their business
    environment.

16. *Steps Taken to Minimize Significant Impact on Small Entities, and
    Significant Alternatives Considered.* The RFA requires an agency to
    describe any significant alternatives that it has considered in
    reaching its proposed approach, which may include the following four
    alternatives: (1) the establishment of differing compliance or
    reporting requirements or timetables that take into account the
    resources available to small entities; (2) the clarification,
    consolidation, or simplification of compliance or reporting
    requirements under the rule for small entities; (3) the use of
    performance, rather than design, standards; and (4) an exemption
    from coverage of the rule, or any part thereof, for small entities.

17. As indicated above, the Report and Order implements certain aspects
    of the Satellite Home Viewer Improvement Act of 1999. Among other
    things, the new legislation requires the Commission to apply the
    network non-duplication rules, syndicated program exclusivity rules,
    and sports blackout rules to satellite carriers within one year of
    the November 29, 1999 effective date. This legislation applies to
    small entities and large entities equally. The cable rules that are
    to be applied to satellite carriers includes an exception for small
    cable systems, those with 1,000 or fewer subscribers. The new
    satellite rules have a similar exception for satellite carriers that
    have 1,000 or fewer subscribers within the zip codes areas that
    comprise the geographic zone protected by these rules.

18. *Federal Rules Which Duplicate, Overlap, or Conflict with the
    Commission's Proposals.* None.

[^1]: 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, 1501A‑526 to 1501A‑545 (Nov. 29,
    1999).

[^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).

[^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]: *See Implementation of the Satellite Home Viewer Improvement Act
    of 1999: Application of Network Non-duplication, Syndicated
    Exclusivity, and Sports Blackout Rules to Satellite
    Retransmissions,* Notice of Proposed Rulemaking, CS Docket No. 00-2,
    15 FCC Rcd 434 ( January 7, 2000) ("*Notice*").

[^6]: A list of commenters and reply commenters and the abbreviations by
    which they are identified herein is attached as Appendix A.

[^7]: The *Notice* described in detail the existing network
    non-duplication, syndicated exclusivity, and sports blackout rules
    as they apply to cable operators in order to clearly establish a
    common understanding of the rules and terminology. *See Notice* 15
    FCC Rcd at 440-447.

[^8]: 47 U.S.C. § 339(b)(1)(A).

[^9]: 47 U.S.C. § 339(b)(1)(B).

[^10]: 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).

[^11]: *Id.*

[^12]: 47 U.S.C. § 339(b)(1)(B).

[^13]: Joint Explanatory Statement at H11796 (The burden "would entail a
    very serious threat to the health of the carrier. Without that
    showing, the rules should be as similar as possible to that
    applicable to cable services.")

[^14]: The Commission's rules describe geographic areas that are
    protected by commercial contracts and through operation of the
    rules. *See* discussion *infra*, at notes 48, 51, 55.

[^15]: 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)).

[^16]: Copyright Act of 1947, *as amended*, 17 U.S.C. § 119(d)(6).

[^17]: *See* SBCA Comments at 4-5; TV Guide Comments at 7. C-Band
    satellite carriers are licensed under Part 25 of the Commission's
    rules. We do not agree that an isolated and ambiguous colloquy
    between two Senators overrides unambiguous statutory language. We
    recognize, however, that C-Band carriers operate differently from
    DBS carriers and that the number of C-Band subscribers is steadily
    decreasing. *See* discussion of Small Systems and C-Band, *infra.*

[^18]: 47 U.S.C. § 339(b)(1)(A).

[^19]: 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.\").

[^20]: 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).

[^21]: 47 U.S.C. § 339(d)(2).

[^22]: *Notice,* 15 FCC Rcd at 436. 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 is
    affiliated with WB but provides a different "syndex/nondupe proof"
    signal for uplink and carriage as a superstation. *See* ALTV
    Comments at 6. 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 as of that date.

[^23]: *Notice,* 15 FCC Rcd at 436.

[^24]: ALTV Comments at 6; DirecTV Comments at 5; MPAA Comments at 2;
    NAB Comments at 6. WB agrees with the characterization of the
    criteria but disagrees that the six enumerated stations constitute
    an exhaustive list. WB does not, however, propose what other
    stations, if any, should be included. WB Reply at 15, n.37. WB also
    asks the Commission to extend the non-duplication and syndicated
    exclusivity protection beyond the statutory language to apply as
    well to retransmission of any distant affiliate, not solely
    nationally distributed superstations. WB Reply at 14-19. For the
    reasons discussed herein, we decline to go beyond the statutory
    requirements at this time.

[^25]: Congress achieved this result by amending the Section 119
    compulsory copyright license in the Copyright Act. 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. *See* 17 U.S.C. § 119(a)(5)(E) (*as
    amended by* Section 1005(b) of the SHVIA).

[^26]: 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).

[^27]: The one commenter that directly addressed this issue supports
    this interpretation. DirecTV Comments at 6.

[^28]: *See* 47 U.S.C. § 325(b).

[^29]: 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 non-duplication, 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.

[^30]: *Compare* 47 U.S.C. § 325(b)(2)(B) *with* 47 U.S.C. § 339(d)(2).

[^31]: *Notice* 15 FCC Rcd at 438. *See also* WB Reply at 15 (agreeing
    with conclusion) and DirecTV Comments at 6.

[^32]: 47 U.S.C. § 325(b)(2)(D), as amended by § 1009 of the SHVIA.

[^33]: 47 U.S.C. § 339(b)(1)(B).

[^34]: *See* complete definition of "network station," *supra*, at n.
    20.

[^35]: *See* 17 U.S.C. § 119(d)(2).

[^36]: *Notice* 15 FCC Rcd at 439. 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).

[^37]: *See* 17 U.S.C. § 119(a)(2)(A) and (B).

[^38]: *But see* discussion, *infra*, 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.

[^39]: *See, e.g., Amendment of Subpart F of Part 76 of the Commission's
    Rules and Regulations with Respect to Network Program Exclusivity
    Protection by Cable Television Systems*, 52 FCC 2d 519, 520 (1975).

[^40]: *See* Echostar Comments at 10 and Reply at11; and general
    acknowledgment that 339(b)(1)(B) applies to distant network stations
    by NFL, Comments at 9 and 12; NHL, Comments at 16; and WB Comments
    at 7-8.

[^41]: *See* definition of Network Station, *supra* at n. 20, from 17
    U.S.C. § 119(d)(2), and "primary network station," to which the
    statutory copyright license applies. *See* 17 U.S.C. §§ 119(a)(2),
    (d)(3), and (d)(10)(A). We believe this license is limited to
    carriage of stations meeting these definitions, and is thus narrower
    than the statutory license for cable systems. *See* 17 U.S.C. §111.

[^42]: *Notice,* 15 FCC Rcd at 436.

[^43]: MPAA Comments at 2-3; NHL Comments at 8-9. The NHL questions
    whether Canadian stations can be carried by satellite carriers as
    distant stations under § 119 of the Copyright Act, noting that § 119
    is silent on this subject. *Id.* The NHL also asks if there is a
    legal basis to assert sports blackout protection against U.S.
    viewers of Canadian satellites. *Id.* at n. 20. These inquiries are
    fundamentally questions of copyright interpretation and beyond the
    scope of this proceeding.

[^44]: Grupo Televisa Comments at 3.

[^45]: *See* 47 C.F.R. § 76.5(b) (the definition of "television
    broadcast station" includes stations licensed by a foreign
    government but provides that such foreign station not entitled to
    assert program exclusivity). *See also* *Amendment of the
    Commission\'s Regulatory Policies to Allow Non-U.S. Licensed Space
    Stations to Provide Domestic Satellite Service in the United
    States*, IB Docket No. 96-111, *Report and Order*, 12 FCC Rcd 24094,
    24174 (paras. 187-88) (1997) (*DISCO II Order*), in which the
    Commission explained that it will license the earth stations that
    use a non-U.S. licensed satellite to provide service to subscribers
    in the United States, rather than re-license foreign satellite
    operators. The earth station operators providing service in the
    United States through these non-U.S. licensed satellites are
    \"satellite carriers\" as defined in the SHVIA because they are
    licensed under either Part 25 or Part 100 of the Commission\'s
    rules. *See also Satelites Mexicanos, S.A. de C.V. Petition for
    Declaratory Rulemaking, Order* (DA 00-1793, released October 3, 2000
    (IB)).

[^46]: *See* 47 C.F.R. §§ 76.92, 76.151 (amended rule § 76.101), and
    76.67 (amended rule § 76.111).

[^47]: The application of sports blackout to retransmission of
    nationally distributed superstations and to network stations is
    discussed separately, *infra*.

[^48]: 47 C.F.R. § 76.92. The "specified" or "protected" zone is the
    smaller of either the area protected by the terms of the contract or
    the 35 or 55 mile area designated by the rules. In the satellite
    rules, this area is generally termed the "zone of protection" or
    protected zone.

[^49]: "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."

[^50]: In addition to full power television stations, 100 watt
    translator stations are allowed to demand network non-duplication
    protection under certain circumstances. Translator stations are not
    entitled to syndicated exclusivity protection. *See* 47 C.F.R. §
    76.92(d). Due to differential carriage rights, we are not
    replicating this provision in the satellite non-duplication rules.
    *See* 47 U.S.C. § 338(h)(7) and § 325(b)(7)(B).

[^51]: 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). 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. *See* 47 C.F.R. § 76.92(a). The "specified zone" of a
    television broadcast station is the 35 mile area surrounding its
    community of license. *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.

[^52]: *See* 47 C.F.R. §§ 76.92, 76.151(amended rule §76.101) (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). *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).

[^53]: 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).

[^54]: 47 C.F.R. § 76.151 (amended rule §76.101). 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).

[^55]: In this rule, too, a local television station is entitled to
    assert its exclusivity rights within a specified zone of 35 miles
    surrounding the television station's city of license. Unlike the
    network non-duplication 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. *See* 47 C.F.R. § 76.151 (amended rule §76.101).

[^56]: *See* 47 C.F.R. § 76.151 (amended rule §76.101).

[^57]: *See* 47 C.F.R. § 76.151 (amended rule §76.101), note (note
    refers to "broadcast territorial exclusivity rights" as defined in
    47 C.F.R. § 73.658(m)). As with network non-duplication, the
    protected zone is the smaller of either the area of exclusivity
    provided in the contract or the 35 mile area surrounding the
    relevant reference point(s).

[^58]: *See, e.g., Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992: Broadcast Signal Carriage
    Issues*, 8 FCC Rcd 2965, 3006 (1993); and *Amendment of Parts 73 and
    76 of the Commission\'s Rules and Regulations Relating to Program
    Exclusivity in the Cable and Broadcast Industries, Memorandum
    Opinion and Order*, Gen. Docket No. 87‑24, ("*1989 Syndicated
    Exclusivity Reconsideration Order*") 4 FCC Rcd 2711, 2723 (1989).

[^59]: *Id.*

[^60]: *Notice,* 15 FCC Rcd at 439-40.

[^61]: *See e.g.*, NAB Comments at 2; DirecTV Comments at 7; Network
    Affiliates Reply Comments at 8; Tribune Comments at 7; MPAA Reply
    Comments at 1 (reversing its initial position to incorporate the
    satellite rules in the cable rule sections).

[^62]: DirecTV Comments at 7; ALTV Comments at 7; ALTV Reply Comments at
    1.

[^63]: ALTV Comments at 7; DirecTV Reply Comments at 2.

[^64]: WB Reply Comments at 7.

[^65]: *See* Joint Explanatory Statement at H11796 (instructing the
    Commission to "develop regulations to apply" the exclusivity rules
    and to make the rules as similar as possible to the cable rules).

[^66]: SBCA Comments at 2-4; EchoStar Comments at 2-8.

[^67]: EchoStar Comments at 4-5.

[^68]: *Id.* at 3-4.

[^69]: *Id.* at 8.

[^70]: *Id* at 5-6. However, we note that in order to apply the existing
    rules to satellite carriers, under the Administrative Procedure Act,
    we are required to conduct a rulemaking to amend the language of the
    rules. *See* 5 U.S.C. § 553. *See also* ALTV Reply Comments at 2-3
    (pointing out that Congress routinely delegates to the Commission
    the responsibility to adopt implementing rules through rulemaking
    (*e.g.*, mandatory carriage rules)).

[^71]: DirecTV Comments at 2, 4, 7-10.

[^72]: *Accord* ALTV Reply Comments at 4-6; NAB Reply Comments at 4-8;
    WB Reply Comments at 9-11. Such proposals would "gut the program
    exclusivity rules by creating exceptions that would make them
    useless to . . . broadcasters and copyright owners." NAB Reply
    Comments at 4.

[^73]: NCTA Comments at 2 citing *Notice,* 15 FCC at 438-39 (create
    parity between the regulation of satellite carriers and cable
    operator to ensure competition among MVPDs.) *See also* ACA Reply
    Comments at 3; WB Reply Comments at 8-9.

[^74]: *See* Joint Explanatory Statement at H11796. *See also* NCTA
    Comments at 2; NAB Reply Comments at 4-5.

[^75]: *See*, *e*.*g*., ALTV Comments at 2-3; NAB Comments at 4;WB Reply
    Comments at 9-11; ALTV Reply Comments at 5-6; NAB Reply Comments at
    2, 5-8 (noting that earlier versions of the bill included such
    qualifying language).

[^76]: For example, as EchoStar observes, the cable rules provide
    several limited exceptions (e.g., for small cable systems). EchoStar
    Comments at 11. In adopting similar rules for satellite carriers, we
    consider whether this and other exceptions to the rules are
    relevant.

[^77]: Network Affiliates Reply Comments at 5-8 (noting that the reasons
    the Commission gave in 1991 for not extending non-duplication
    protection and syndicated exclusivity to satellites are no longer
    applicable);WB Reply Comments at 15-19.

[^78]: At this time, we make no judgment on whether providing
    exclusivity against distant network stations would further
    competitive parity.

[^79]: 47 C.F.R. § 76.5(e).

[^80]: 47 C.F.R. § 76.53.

[^81]: 47 C.F.R. § 76.92. The "specified zone" is always 35 miles. In
    the Network Non-Duplication rules, the "secondary zone" can add an
    additional 20 miles. For purposes of all of the rules discussed in
    this Order, we refer generally to a "zone of protection" or
    "protected zone" to apply to the entire area protected by the rules'
    provisions.

[^82]: 47 C.F.R. § 76.151 (amended rule § 76.101).

[^83]: 47 C.F.R. § 76.51. 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. *See* 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.

[^84]: 47 C.F.R. § 73.658(m).

[^85]: ALTV Comments at 7; DirecTV Comments at 7-8; Tribune Comments at
    3; ACA Reply Comments at 7; Network Affiliates Reply Comments at 10;
    WB Reply Comments at 12-14.

[^86]: Generally, this zone is the 35-mile zone. For smaller market
    stations asserting network non-duplication rights, this area is a
    55-mile zone (specified zone plus secondary zone). *See also*
    DirecTV Comments at 8.

[^87]: ALTV Comments at 7.

[^88]: Tribune Comments at 3.

[^89]: *Id.*

[^90]: ALTV Comments at 7-8.

[^91]: EchoStar Comments at 9. We further reject EchoStar's proposal to
    establish a procedure to exempt satellite carriers on a case-by-case
    basis upon a showing of extraordinary hardship. *Id*. We believe
    that such a policy is contrary to the intent of the statute to
    protect the rights of local broadcast licensees. We also note that,
    in adopting exclusivity rules in 1988, we eliminated a similar
    waiver process. *Amendment of Parts 73 and 76 of the Commission's
    Rules Relating to Program Exclusivity in the Cable and Broadcast
    Industries* ("*1988* *Syndicated Exclusivity Order*"), 3 FCC Rcd
    5299, 5320 (1988). *See also* ALTV Reply Comments at 11-13; NAB
    Reply Comments at 4-5.

[^92]: EchoStar Comments at 9.

[^93]: DirecTV Comments at 8; NCTA Reply Comments at 3; NAB Reply
    Comments at 4-5.

[^94]: EchoStar Comments at 3.

[^95]: ALTV Reply Comments at 9-10; NAB Reply Comments at 6-7.

[^96]: ALTV Reply Comments at 9.

[^97]: *Id.* at 10.

[^98]: *Id*.

[^99]: *Id.*

[^100]: *See* 47 C.F.R. § 76.5(dd). Community units are political
    jurisdictions (i.e., a city, town, or county) or portions of
    political jurisdictions for which a local government body has
    granted a franchise to operate a cable system. These separate areas
    may or may not encompass an entire city or county.

[^101]: NCTA Comments at 4; Network Affiliates Reply Comments at 12; WB
    Reply Comments at 13-4.

[^102]: NCTA Comments at 3.

[^103]: NCTA Comments at 4; WB Reply Comments at 13; Network Affiliates
    Reply Comments at 12.

[^104]: DirecTV Comments at 8; MPAA Comments at 4.

[^105]: DirecTV Comments at 8-9 (for its contractually-required
    blackouts); MPAA Comments at 4 (for compliance with the reporting
    requirements of 17 U.S.C. § 122(b)(1)). DirecTV, recognizing that
    the exclusivity rules must be applied to satellite carriers, propose
    zip codes as a workable way to identify blackout areas, which is
    more suitable for satellite carriers than community units would be,
    and, therefore, less costly and difficult to implement. DirecTV
    Reply at 4-6.

[^106]: ACA Reply Comments at 7; WB Reply Comments at 14; Network
    Affiliates Reply Comments at 12-13; MPAA Comments at 4; MPAA Reply
    Comments at 2.

[^107]: MPAA Reply Comments at 2.

[^108]: NCTA Reply Comments at 2-3; WB Reply Comments 14; Network
    Affiliates Reply Comments at 12-13.

[^109]: We do not have specific information comparing the size or
    boundaries of community units with zip codes for a given area, but
    we note that there are approximately 38,000 five-digit zip codes in
    the United States, compared with nearly 33,000 community units,
    which suggests they should not generally be hugely dissimilar in
    size on average. *See* United States Postal Service City-State File,
    September, 2000. In most cases under the cable rules, the protected
    zone is comprised of several cable community units. Similarly in the
    satellite context, the zone of protection will be comprised of
    several zip codes areas.

[^110]: Satellite carriers are already required to report subscribers on
    a household basis identifying a street address, including county and
    zip code (*e.g.*, 17 U.S.C. § 122(b)(1), as amended by §1002(a) of
    SHVIA), making its use in this context administratively feasible.
    MPAA Comments at 4-5.

[^111]: ALTV Comments at 8, n.23; NCTA Comments at 3; DirecTV Reply
    Comments at 5; Network Affiliates Reply Comments at 12-13; NCTA
    Reply at 2-3; WB Reply at 14.

[^112]: ACA Reply Comments at 7; MPAA Comments at 5; NCTA Comments at
    2-3; NAB Reply Comments at 9.

[^113]: DirecTV Comments at 9.

[^114]: ALTV Reply Comments at 14-15; NAB Reply Comments at 9.

[^115]: See discussion of notification procedures, *infra*.

[^116]: *See*, *e*.*g*., 47 C.F.R. §§ 76.94(f) and 76.157. See *also
    Amendment of Part 74, Subpart K, of the Commission's Rules and
    Regulations Relative to Community Antenna Television Systems; and
    Inquiry into the Development 0f Communications Technology and
    Services to Formulate Regulatory Policy and Rulemaking and/or
    Legislative Proposals,* 36 FCC 2d 143, 184-85 (1972).

[^117]: DirecTV requested that zip codes be provided as an electronic
    file but did not explain why this is necessary or appropriate.
    DirecTV Comments at 9; DirecTV Reply at 6. We will not require an
    electronic file.

[^118]: DirecTV also requested the opportunity to verify that the zip
    codes provided by broadcasters are accurate in terms of their
    contractual exclusivity rights. DirecTV Comments at 10-11; Reply at
    6. As discussed below, satellite carriers, like cable operators,
    will have an opportunity to review the relevant contractual
    language. However, we see no reason to make special or separate
    provisions for satellite carriers to verify that the list of zip
    codes is accurate. If it comes to light that the list is inaccurate,
    the satellite carrier may object to the broadcaster or rights
    holder.

[^119]: The SHVIA depends upon obtaining a geographic location for the
    household to determine eligibility for distant signals. See 17
    U.S.C. § 119(d), definition of "unserved household."

[^120]: *Notice* at 30; NAB Comments at 2-4; Network Affiliates Reply
    Comments at 11; NAB Reply Comments at 10. *See also* WIC Comments at
    6.

[^121]: NAB Comments at 4; WIC Comments at 5-9 (proposing reporting and
    auditing procedures to prevent evasion of geographic restrictions);
    NAB Reply Comments at 10.

[^122]: DirecTV Reply Comments at 6, n. 16. In addition, the proposals
    to impose a number of restrictions on satellite carriers to "reduce
    if not obviate both the domestic and external grey marketing" of
    satellite programming, submitted by WIC in its comments at 5-9,
    should be rejected since they are beyond the scope of this
    proceeding. *Id.* n. 17. *See also* NAB Reply Comments at 10
    (supporting WIC's proposal).

[^123]: NAB Comments at 3-4; Network Affiliates Reply Comments at 11.

[^124]: NAB Comments at 3, Network Affiliates Reply Comments at 11.
    (Commenters observe that this problem must already be addressed in
    the context of determining whether a subscriber is an "unserved
    household").

[^125]: MPAA Comments at 5. NHL proposes similar waivers for the sports
    blackout rules. NHL Comments at 19.

[^126]: NCTA Reply at 2-3. *See also* WB Reply at 13-14.

[^127]: This difference is because the areas outside a protected zone --
    but within a zip code that is partially within the protected zone
    \-- will not be strictly equivalent to the analogous situation in
    the cable context in which a community unit is partially in and
    partially outside the protected zone. There may also be differences
    in deletions due to contractual arrangements that differ between
    exclusivity protection as it applies to cable or satellite carriage,
    as discussed, *infra.*

[^128]: 47 U.S.C. § 76.93.

[^129]: 47 C.F.R. § 76.153(a). To accommodate the new satellite rules in
    Subpart F, the syndicated exclusivity rules will be renumbered.
    Section 76.153 will be renumbered 76.103, and Section 76.159 will be
    renumbered Section 76.109. *See* Appendix B.

[^130]: 47 C.F.R. § 76.159 (amended rule § 76.109).

[^131]: Contracts entered into on or after August 18, 1988, must contain
    the following words: "the licensee \[or substitute name\] shall, by
    the terms of this contract, be entitled to invoke the protection
    against duplication of programming imported under the Compulsory
    Copyright License, as provided in § 76.151 of the FCC rules \[or 'as
    provided in the FCC's syndicated exclusivity rules'\]." Contracts
    entered into prior to this date must contain the special language or
    contain a clear and specific reference as to the licensee's
    authority to invoke exclusivity rights in the event syndicated
    exclusivity protection were to be reimposed. In the absence of such
    a specific reference to syndicated exclusivity rights, exclusivity
    rights may be invoked if the contract is amended or a written
    acknowledgement is obtained that indicates that the contract was
    intended to include such rights.

[^132]: "In order for a station licensee to be eligible to invoke syndex
    rights based on a preexisting contract, the contract must contain a
    clear and specific reference to the licensee's authority to exercise
    exclusivity rights as to the specific programming against cable
    carriage ...."*1989 Syndicated Exclusivity Reconsideration Order,* 4
    FCC Rcd 2711, 2727-28 (1989).

[^133]: Several commenters argue that the exclusivity rules should apply
    only when the broadcaster's contractual exclusivity rights clearly
    apply to satellite retransmission. *See, e.g.,* DirecTV Reply at 3
    and Tribune Comments at 6-7.

[^134]: 47 C.F.R. § 73.658.

[^135]: ALTV Comments at 8, NAB Reply Comments at 8-9; Network
    Affiliates Reply Comments at 10.

[^136]: DirecTV Comments at 9-11; Tribune Comments at 6-7; EchoStar
    Comments at 9-10; DirecTV Reply Comments at 7.

[^137]: *1989 Syndicated Exclusivity Reconsideration Order,* 4 FCC Rcd
    at 2727-28 (1989). *See also* Tribune Comments at 6-7.

[^138]: The special words in the satellite context are similar to those
    required to assert enforceable cable syndicated exclusivity: "the
    licensee \[or substitute name\] shall, by the terms of this
    contract, be entitled to invoke the protection against duplication
    of programming imported under the Statutory Copyright License, as
    provided in \[§76.101 and/or § 76.123\] of the FCC rules \[or 'as
    provided in the FCC's syndicated exclusivity rules for cable or
    satellite carriage'\]." Parties may use this statement to reference
    either or both the cable and satellite network non-duplication and
    syndicated exclusivity rules, depending upon whether their
    negotiated exclusivity covers protection against cable, satellite or
    both. Existing affiliate agreements and other contracts that apply
    to network program non-duplication only in the cable context need
    not be revised to be effective to provide non-duplication protection
    pursuant to Section 76.92. In addition, we refer to the copyright
    license as "statutory" rather than "compulsory" to conform with the
    terminology used in Section 119 of the Copyright Act, as amended by
    the SHVIA (17 U.S.C. §119(a)).

[^139]: The same debate was considered and conclusion reached in 1988.
    *1988* *Syndicated Exclusivity Order,* 3 FCC Rcd at 5316. (Decision
    to use the date the Order was adopted as the date after which
    parties were considered aware that syndicated exclusivity protection
    is provided by the Commission, or, "where a contract already
    existing on the effective date of this Order contains a clear and
    specific reference to the licensee's authority to exercise
    exclusivity rights as to the specific programming against cable
    television broadcast signal carriage...")*Id.*

[^140]: *See* discussion of Notification Requirements, *infra.* *See
    also* discussion of transition period, *infra* at Section V.G.

[^141]: EchoStar Comments at 10.

[^142]: *See* ALTV Reply Comments at 13-14.

[^143]: 47 C.F.R. § 76.94.

[^144]: 47 C.F.R § 76.155 (amended rule § 76.105).

[^145]: 47 C.F.R. §§ 76.94(a) and 76.155(a) (amended rule § 76.105(a)).

[^146]: 47 C.F.R. §§ 76.94(b) and 76.155(b) (amended rule § 76.105(b)).
    These provisions also provide for contracts signed before the
    effective date of the rules and for modifying notices under certain
    circumstances. *See also* 47 C.F.R. §§ 76.94(d) and 76.155(d)
    (amended rule § 76.105(d)) (notification that the exclusivity has
    been limited or ended prior to the time specified in the original
    notice). If the television broadcast station or rights holder does
    not provide notice within the required time of entering into the
    contract, then exclusivity protection cannot be asserted for the
    term of the contract. Although a broadcaster that misses the 60
    days-within-signing deadline may not assert non-duplication or
    syndicated exclusivity protection under that contract, the
    broadcaster may renegotiate the contract, after which the
    broadcaster would have 60 days in which to provide notice. *See 1989
    Syndicated Exclusivity Reconsideration Order,* 4 FCC Rcd at 2724
    (1989).

[^147]: 47 C.F.R. §§ 76.94(c) and 76.155(c) (amended rule § 76.105(c)).

[^148]: 47 C.F.R. §§ 76.94(e) and 76.155(e) (amended rule § 76.105(e)).

[^149]: 47 C.F.R. §§ 76.94(f) and 76.157 (amended rule § 76.107).

[^150]: *See*, *e*.*g*., DirecTV Comments at 9-11; ALTV Comments at 8;
    MPAA Comments at 3-4; DirecTV Reply Comments at 7; Network
    Affiliates Reply Comments at 9.

[^151]: DirecTV Comments at 9-11 (within 60 days of signing a contract
    affording exclusive rights and should be required to disclose the
    exact contractual terms). *See also* EchoStar Comments at 10.

[^152]: DirecTV Comments at 9-10. *But see* Echostar *ex parte*
    submission of October 11, 2000 at 2-3 (60 days notice inadequate for
    satellite carriers because Echostar bills new subscribers for 60
    days of programming in advance; advocates 90 day advance notice to
    alleviate internal billing problems).

[^153]: MPAA Comments at 4, NAB Reply Comments at 9.

[^154]: MPAA Comments at 4.

[^155]: *See* Section C, *supra*. *See also* DirecTV Comments at 10-11.

[^156]: *See* 47 C.F.R. § 76.94(f) and discussion, *infra.*

[^157]: Distributors include parties with exclusive territories for the
    sale and service of satellite systems, including those distributors
    that are authorized by the satellite carrier to authorize or
    de-authorize programming for subscribers (e.g., Pegasus
    Communications and the National Rural Telecommunications Cooperative
    ("NRTC")). None of the satellite commenters raised the issue of
    notification to distributors, and no distributor filed comments in
    this proceeding.

[^158]: NAB Comments at 7; MPAA Reply Comments at 2. We note that the
    satellite operators appear to agree with this procedure. *See*,
    *e*.*g*., DirecTV Comments at 9-11 (referring to satellite operators
    or carriers when discussing specific notice requirements).

[^159]: *See*, *e*.*g*., ALTV Comments at 8-9; NAB Comments at 7;
    Network Affiliates Reply Comments at 9-10.

[^160]: DirecTV Reply Comments at 7-8.

[^161]: *See* 47 C.F.R. §§ 76.94(e), 76.155(c) (amended rule §
    76.105(c)).

[^162]: 47 C.F.R. § 76.153(b) (amended rule § 76.103(b)).

[^163]: *1988 Syndicated Exclusivity Order*, 3 FCC Rcd at 5301 (1988).

[^164]: *Notice,* 15 FCC Rcd at 444.

[^165]: MPAA Comments at 3.

[^166]: DirecTV Comments at 11-12, n. 26; DirecTV Reply Comments at 8.

[^167]: *1988 Syndicated ExclusivityOrder*, 3 FCC Rcd at 5314 (1988).
    *See also* MPAA Comments at 3 (rights holders syndicate their
    programming on a market-by-market basis and distant importation
    reduces the value of the programming).

[^168]: *See, supra,* discussion in Section V.

[^169]: The Commission's network non-duplication and syndicated
    exclusivity rules protect contractual rights. The rights may apply
    even in situations in which the rights holder chooses not to display
    the protected programming or in which the cable system is not
    carrying the broadcast station asserting protection. *See, e.g.,* 47
    C.F.R. § 76.159 (amended rule § 76.109) (requiring that the station
    asserting syndicated exclusivity must have a contract according it
    exclusive rights, but there is no requirement that the station be
    carried or display the protected program). *See also* note 58,
    *supra.* We specifically recognize that in markets in which the
    satellite carrier chooses not to provide local-into-local carriage,
    a local station may assert network non-duplication or syndicated
    exclusivity protection for programming that subscribers in that
    market cannot receive via satellite because the station demanding
    protection is not carried on satellite. Viewers may be able to
    receive this programming, however, through use of over-the-air
    antennas or on cable.

[^170]: 47 C.F.R. § 76.161 (amended rule § 76.110). No comparable
    provision is included in the network non-duplication rules, but
    cable operators are free to substitute any programming -- broadcast
    or cable -- to which they have the legal rights. *See* Tribune
    Comments at 5-6.

[^171]: *See, e*.*g*., ALTV Comments at 9-10; NAB Comments at 7-9;
    Tribune Comments at 5-6; MPAA Reply at 2-3.

[^172]: DirecTV Comments at 3.

[^173]: *1988 Syndicated Exclusivity Order,* 3 FCC Rcd at 5311-12, 5317.

[^174]: ALTV Comments at 9. *Compare* 17 U.S.C. § 111(f) and 17 U.S.C. §
    119. *See also1988 Syndicated Exclusivity Order*, 3 FCC Rcd at 5317.

[^175]: 17 U.S.C.§ 119(a)(2)(B)(ii), 17 U.S.C.§ 122(a), 47 U.S.C.§
    325(b). *See also* ALTV Comments at 9; NAB Comments at 7-8.

[^176]: In the Commission's reinstatement of syndicated exclusivity in
    1988, the Commission noted that a cable operator against whom the
    exclusivity rules are invoked has three options: 1) blank out the
    screen; 2) negotiate with the broadcaster for the right to carry the
    signal notwithstanding the broadcaster's right to require deletion;
    3) "substitute any alternative programming to which it has rights,"
    which will, in turn, require that the cable operator obtain and
    promote the programming to its subscribers. *1988 Syndicated
    Exclusivity Order,* 3 FCC Rcd at 5315.

[^177]: ALTV Comments at 10; NAB Comments at 8-9; Tribune Comments at
    5-6 (asserting that section 76.151 is permissive and that broadcast
    programming is not the only type of programming that cable operators
    can use as a substitute for deleted programming).

[^178]: ALTV Comments at 6. We estimate that affiliates of the top three
    networks get more than 50% of their programming from the network,
    compared with affiliates of the two emerging networks which carry
    roughly 10% programming provided by the network.

[^179]: *See* Section 76.130 in Appendix B.

[^180]: *See, supra,* note 174.

[^181]: *See 1988 Syndicated Exclusivity Order,* 3 FCC Rcd at 5316-17
    (1988) (providing a one-year transition period for the reinstituted
    syndicated exclusivity rules due to the need for time to develop
    compliance methods and reduce service disruptions for subscribers,
    as well as to develop centralized switching and automatic deletion
    devices); *1989 Syndicated Exclusivity Reconsideration Order*, 4 FCC
    Rcd at 2721-22 (1989) (extending the one-year transition for an
    additional 5 months to allow more than six months beyond the
    required notification date for renegotiated contracts so that cable
    operators could be assured of at least 6 months between notification
    and implementation).

[^182]: TV Guide and SBCA *ex parte* submission of October 12, 2000; and
    Echostar *ex parte* submission of October 11, 2000 (minimum one year
    transition to develop alternative programming packages based on the
    number of deletion notices received and the geographic areas
    affected).

[^183]: *Id.*

[^184]: *1988 Syndicated Exclusivity Order*, 3 FCC Rcd at 5317; and
    *1989 Syndicated Exclusivity Reconsideration Order*, 4 FCC Rcd at
    2717-22.

[^185]: When no renegotiation is necessary because the existing contract
    clearly pertains to satellite as well as cable carriage,
    broadcasters must notify satellite carriers of their exclusivity
    protection and deletion requests within 60 days of the effective
    date of this Order. In these instances, satellite carriers will have
    120 days in which to implement deletion requests (e.g., if this
    Order is effective on November 29, 2000, a broadcaster could provide
    deletion notice on January 8, 2001, and the deletion would take
    effect on or after May 10, 2001).

[^186]: Echostar *ex parte* submission of October 11, 2000. This
    proposal was not raised in Echostar's comments.

[^187]: *See, e.g., 1988 Syndicated Exclusivity Order*, 3 FCC Rcd at
    5312 (acknowledging that there would be viewer disruption but
    concluding that the transition period would address these concerns)
    We note that when the cable sports blackout rule was implemented in
    1975, the Commission grandfathered "signals lawfully carried by
    cable systems prior to March 31, 1972," the date the rulemaking was
    initiated. *See Amendment of Part 76 of the Commission\'s Rules and
    Regulations Relative to Cable Television Systems and the Carriage of
    Sports Programs on Cable Television Systems,* 54 FCC 2d 265, 281
    (1975). *See also* 47 C.F.R. § 76.67(e) (amended rule §76.111(e)).
    The effect of this grandfathering provision was, however, minimal
    due to the small number of distant signals that were carried by
    cable systems in 1972. We also note that Echostar's grandfathering
    proposal is limited to the network non-duplication and syndicated
    exclusivity rules.

[^188]: *See, e.g., 1988 Syndicated Exclusivity Order*, 3 FCC Rcd at
    5311-12.

[^189]: *Amendment of Section 74.1103 of the Commission\'s Rules and
    Regulations as it Relates to CATV Systems With Fewer Than 500
    Subscribers, Report and Order,* Docket No. 18785, 46 FCC 2d 94
    (1994) (adopting an exception for systems with fewer than 500
    subscribers from the network non-duplication rules); *Amendment of
    Subpart F of Part 76 of the Commission\'s Rules and Regulations With
    Respect to Network Program Exclusivity Protection by Cable
    Television Systems; Amendment of Section 74.1103 of the
    Commission\'s Rules and Regulations as it Relates to CATV Systems
    With Fewer than 500 Subscribers,* First Report and Order, Docket No.
    19995, 52 FCC 2d 519 (1975) (modifying the small system exception
    for network non-duplication protection to increase the cut-off to
    1,000 subscribers); *Amendment of Part 76, Subpart F of the
    Commission\'s Rules and Regulations To Exempt Smaller Cable
    Television Systems and Smaller System Conglomerates From the
    Obligation of Providing Syndicated Program Exclusivity Protection;
    §§ 76.99 and 76.151 et. seq.,* Report and Order, Docket No. 20484,
    55 FCC 2d 529 (1975) (adding the exception for systems with fewer
    than 1,000 subscribers to the syndicated exclusivity rules).

[^190]: *1988 Syndicated Exclusivity Order*, 3 FCC Rcd at 5314, 5319.
    *See also 1989 Syndicated Exclusivity Reconsideration Order,* 4 FCC
    Rcd at 2728-29 (1989).

[^191]: SCBA Comments at 3; EchoStar Comment at 6. We note that DirecTV
    proposes a small system exception for the sports blackout rules
    only. DirecTV Comments at 17-18.

[^192]: EchoStar Comments at 6, n. 8; EchoStar Reply Comments at 6,
    n.12.

[^193]: *See, e.g.,* NBA Comments at 15 (When considering equipment
    costs for a satellite carrier, the situation is not analogous to
    that of a small cable system.).

[^194]: NAB Comments at 9; ALTV Reply Comments at 4; DirecTV Reply
    Comments at 11-12 (noting the difference between the sports blackout
    rule for which it proposes a small system exception and the network
    non-duplication and syndicated exclusivity rules); Network
    Affiliates Reply Comments at 13.

[^195]: As reported in the Commission's Sixth Annual Report to Congress,
    in terms of subscribers served, DirecTV was the third largest MVPD
    and EchoStar was the eighth largest. *See* Sixth Annual Report at
    Table C-3. *See also* ALTV Reply Comments at 4; and ACA Reply
    Comments at 6 (noting EchoStar's \$20 billion market capitalization
    and DirecTV's \$16 billion market capitalization).

[^196]: ALTV Reply Comments at 4.

[^197]: DirecTV Reply Comments at 2.

[^198]: WB Reply Comments at 11; NAB Reply Comments at 5-6.

[^199]: TV Guide and SBCA *ex parte* submission of October 13, 2000
    (number of C-Band subscribers has declined from 1.6 million in 1999
    to 1.3 million in the fourth quarter of 2000). *See also Annual
    Assessment of the Status of Competition in Markets for the Delivery
    of Video Programming,* Sixth Annual Report, 15 FCC Rcd 978 (2000)
    ("*Sixth Annual Competition Report*"); SBCA Comments at 3.

[^200]: SBCA Comments at 4-5; TV Guide Comments at 7-11.

[^201]: SBCA Comments at 3-4; TV Guide Comments at 4-5.

[^202]: *Id.* at 6-7, 9-16.

[^203]: *Imposing Syndicated Exclusivity Requirements on Satellite
    Delivery of Television Broadcast Signals to Home Satellite Earth
    Station Receivers, Report and Order ("1991 Satellite Syndex
    Order"*), 6 FCC Rcd 725 (1991). *See also* SBCA Comments at 8-9; TV
    Guide Comments at 9-10.

[^204]: *1991 Satellite Syndex Order,* 6 FCC Rcd at 725.

[^205]: TV Guide and SBCA *ex parte* submission of October 13, 2000 (93
    markets in which there is a WB or UPN affiliate that may demand
    network non-duplication protection; the impact of syndicated
    exclusivity may be even greater). *Id.*

[^206]: TV Guide Comments at 6; and SBCA Reply at 4 (alternatively
    proposing we issue a Further Notice of Proposed Rulemaking in this
    proceeding to seek additional comment on the application of the
    exclusivity rules to C-Band carriers).

[^207]: As some commenters have noted, Congress knows how to write an
    exemption and did provide for special treatment of C-Band carriers
    with respect to retransmission of distant network signals. NFL Reply
    at 7-8. Had Congress truly intended to exempt C-Band carriers from
    application of the cable exclusivity rules, it could have done so in
    November 1999 or by amending the SHVIA in the past ten months.

[^208]: *See* 17 U.S.C. § 119(a)(2)(B)(iii).

[^209]: TV Guide and SBCA *ex parte* submission of October 13, 2000
    (C-Band carries KTLA, WPIX, KWGN, and WGN). WOR-TV (New York) and
    WSBK-TV (Boston) are no longer available. SBCA Comments at n. 17 and
    SBCA *ex parte* submission of October 16, 2000.

[^210]: WGN, provides a "syndex/non-dup proof" feed to cable systems and
    satellite and, thus, no deletions or substitutions will be required
    for this most popular superstation. SBCA Comments at 9. SBCA argues
    that the other nationally distributed superstations are unlikely to
    develop such a feed because they have a much smaller subscriber base
    to support development of a separate programming feed. *Id.* at
    9-10.

[^211]: NAB contends that C-Band carriers can use their existing
    "Geolocs" system to delete programming if provided with zip codes.
    NAB does not dispute that C-Band carriers may be unable to
    substitute programming. NAB Reply at 6-7. C-Band carriers contend
    that Geolocs cannot accomplish the numerous simultaneous deletions
    that the network non-duplication and syndicated exclusivity rules
    may require. TV Guide and SBCA *ex parte* submission of October 13,
    2000.

[^212]: *1991 Satellite Syndex Order,* 6 FCC Rcd at 727.

[^213]: We note, in addition to the exception for "small" subscriber
    clusters described herein, that C-Band subscribers are largely in
    rural areas, away from the centers of cities and communities
    subjected to the exclusivity rules. We, therefore, expect that most
    C-Band subscribers live beyond the 35 or 55 mile zone of protection,
    and that deletion will not be required for these subscribers in
    remote locations beyond the range of the over-the-air broadcasters
    seeking protection.

[^214]: We note that SBCA describes C-Band's "Geolocs program" that
    works with zip codes to delete programming in specified areas. SBCA
    Comments at 14. It appears, however, that this Geolocs system is
    limited to blacking out programming in 32 areas per satellite, and
    may not be able to accommodate all the requested deletions
    simultaneously. TV Guide and SBCA *ex parte* submission of October
    13, 2000.

[^215]: C-Band carriers have an alternative to the Geolocs system, which
    uses the Access Control Center, but which requires deletions to
    begin well before the start of the program to be deleted, and
    continues for some time thereafter, thus depriving subscribers of
    more programming than necessary to comply with the exclusivity
    rules. TV Guide and SBCA *ex parte* submissions of February 16, and
    October 13, 2000.

[^216]: We note that according to the U.S. Postal Service, there are
    roughly 38,000 zip codes. This is roughly comparable to the 32,000
    cable community units. *See also* TV Guide and SBCA *ex parte*
    submission of October 13, 2000 (Showing, by example, that in 13 out
    of 26 cities, there are fewer than 1,000 subscribers to a
    C-Band-delivered nationally distributed superstation that may
    require deletions due to network non-duplication or syndicated
    exclusivity demands).

[^217]: *See* Sections 76.122(l), 76.123(m), and 76.127(e) in Appendix
    B. The language of these exceptions is not limited to C-Band
    carriers and may apply, as well, to any satellite carrier with a
    similarly small subscriber base, such as a new carrier in the
    future.

[^218]: These exceptions are often referred to as the "priorities" for
    deleting programming. *See, e.g.,* 47 C.F.R. §§76.92(b) and
    76.95(b); and *Amendment of Subpart F of Part 76 of the
    Commission\'s Rules and Regulations With Respect to Network Program
    Exclusivity Protection by Cable Television Systems, First Report and
    Order,* Docket No. 19995, 52 FCC 2d 519, 542-43 (1975).

[^219]: *See, e.g., Network Program Exclusivity, First Report and
    Order,* 38 FCC 2d 683, 720 (1965); *Network Program Exclusivity,
    Memorandum Opinion and Order Reconsidering Third Report and Order,*
    67 FCC 2d 1303, 1304 (1978).

[^220]: *Notice,* 15 FCC Rcd at 442-43, 449.

[^221]: Tribune Comments at 2. As we discussed in the *Notice* by way of
    analogy, in the context of mandatory cable carriage, we 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. *See 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.\"). *See
    also* NHL Comments at 22 (treat stations as local within their own
    DMA markets).

[^222]: Tribune Comments at 2-4; NAB Comments at 9.

[^223]: Compare 47 U.S.C. § 325(b)(2)(B) with § 325(b)(2)(E) and (b)(1).

[^224]: 47 U.S.C. § 325(b)(2)(B). *See also* Tribune Comments at 2-3
    (superstations are local stations within their local \[DMA\] market
    and retransmission consent is required); NAB Comments at 9 (treat
    superstations as local stations within their local markets).

[^225]: 47 C.F.R. § 76.54 (procedures for obtaining significantly viewed
    status) and 47 C.F.R. § 76.5(i) (required audience levels for
    significantly viewed status).

[^226]: MPAA Comments at 2, n. 2; DirecTV Comments at 12-13.

[^227]: *Id.*

[^228]: With respect to the Grade B contour exception to syndicated
    exclusivity, Section 76.156(a) (amended rule §76.106(a)) of the
    syndicated exclusivity rules provides that a broadcast signal is not
    required to be deleted by a cable operator when the cable community
    unit falls, in whole or in part, within that signal's Grade B
    contour. No comments were received on this issue in this proceeding.

[^229]: 47 C.F.R. § 76.92(b).

[^230]: *See Notice* at 15 FCC Rcd at 443.

[^231]: DirecTV Comments at 13.

[^232]: 47 C.F.R. § 76.55(a)-(b).

[^233]: 47 C.F.R. § 76.56.

[^234]: § 615(f) added to the Communications Act by Section 5 of the
    1992 Cable Act. *See also Implementation of the Cable Television
    Consumer & Competition Act of 1992, Broadcast Signal Carriage
    Issues,* Report and Order, 8 FCC Rcd 2965, 2969, n. 33 (1993).

[^235]: Cable Television Consumer Protection & Competition Act of 1992,
    Pub. L. No. 102-385, 106 Stat. 1460 (1992), House Report at 100.

[^236]: 47 C.F.R. § 76.67 (amended rule § 76.111).

[^237]: The Commission stated this would have the ultimate undesirable
    effect of making sporting events available to fewer viewers. *See
    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).

[^238]: 47 C.F.R. § 76.67 (amended rule § 76.111).

[^239]: 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. When sports facilities are
    located in suburban areas, the downtown reference points may be
    inappropriate for purposes of calculating the protected zone (e.g.,
    the New England Patriots play mid way between Boston and
    Providence). Therefore, the Commission has expressed its willingness
    to consider waivers "to substitute a zone of protection extending
    out 35 miles from the site of a sports event for the television
    station specified zone designated by the rule." *Amendment of Part
    76 of the Commission\'s Rules and Regulations Relative to Cable
    Television Systems and the Carriage of Sports Programs on Cable
    Television Systems, Reconsideration of Report and Order in Docket.
    No. 19417* ("*1975 Sports Blackout Reconsideration Order*"), 56 FCC
    2d 561, 567 (1975). *See also* NHL Comments at 19-20.

[^240]: *See* 47 C.F.R. §§ 76.67(b), (c) (amended rule § 76.111(b),
    (c)).

[^241]: 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, or when the
    schedule is revised, must be received within 24 hours after the time
    of the deleted telecast is known, but in no event less than 24 hours
    before the event will take place. 47 C.F.R. § 76.67(c) (amended rule
    § 76.111(c)).

[^242]: *See* 47 C.F.R. §§ 76.67(f) (amended rule § 76.111(f)).

[^243]: *Amendment of Part 76 of the Commission's Rules and Regulations
    with Respect to the Definition of a Cable Television System and the
    Creation of Classes of Cable Systems, First Report and Order,* 63
    FCC 2d 956 (1977) and *Second Report and Order,* 68 FCC 2d 18
    (1978).

[^244]: *See* 47 U.S.C. § 339(b)(1)(B).

[^245]: The legislative history requires a proof of a "very serious
    economic threat." Joint Statement, 145 Cong. Rec. H11793, H11796.

[^246]: *Notice*, 15 FCC Rcd at 447.

[^247]: *See e.g.,* NAB Reply at 5 (Quotes the DirecTV website as
    explaining to subscribers that they will be blacked out for
    individual games if they live in a zip code within a blackout area,
    citing hhtp://www.directv.com/sports/sportspages/0,1072,13,00.html
    (visited 2/28/00)).

[^248]: DirecTV Comments at 16. *See also* DirecTV Reply at 9 ("onerous
    technical and logistical burdens").

[^249]: Echostar Comments at 10 ("the Commission should not at this
    point impose any sports blackout rules on satellite carriers") and
    Reply at 5 ("current contractually required sports blackouts are
    broad-based enough to be manageable (as they do not demand the
    pin-point accuracy that would be required by rigid application of
    the syndex, network nondup and sports blackout rules) and thus
    cannot be viewed as proof that satellite carriers can comply with a
    far more cumbersome set of requirements.")

[^250]: Network Affiliates Reply at 3-4. *See also* NHL Comments at 18
    (satellite carriers must either have or develop mechanisms to delete
    programming from nationally distributed superstations because there
    is no flexibility in the application of Section 339(b)(1)(A), and,
    therefore, the only question is whether it is significantly more
    difficult or expensive to black out a network station or if the
    incremental cost of deleting sports programming from network
    stations renders it economically prohibitive).

[^251]: *See* NBA Comments at 5; NFL Comments at 8; NBA/NHL Reply at 3;
    and Network Affiliates Reply at 4.

[^252]: DirecTV Reply at 10-11; and Echostar Reply at 9-10.

[^253]: DirecTV Comments at 16 (one person can track up to four events
    simultaneously; for more blackouts, more personnel are required,
    which could be a "monumental, expensive, and time-consuming task").

[^254]: DirecTV Reply at 10.

[^255]: As noted above, the satellite carriers' options for substitute
    programming are significantly narrower and more complex than that
    available to cable operators due to differences in the copyright
    provisions between cable and satellite. *See, supra,* notes 41, 174
    and 175.

[^256]: DirecTV Reply at 10.

[^257]: 47 C.F.R. § 76.67(c) (amended rule § 76.111(c)).

[^258]: *1975 Sports Blackout Reconsideration Order*, 56 FCC 2d at 568.

[^259]: DirecTV Reply at 10.

[^260]: DirecTV Comments at 16-17 and Reply at 10-11 (seeming to suggest
    both 10 days and 30 days for events not regularly scheduled).
    Echostar concurs with DirecTV's recommendation. Echostar Comments at
    10, n. 12 and Reply at 10 (but proposing that there should be no
    blackout requirement for events not regularly scheduled nor where
    the schedule changes, requiring that the "sports rights holder
    should shoulder the consequences of any such changes or additions.")
    *Id.*

[^261]: The Baseball Commissioner and the NHL acknowledge that they
    serve their blackout notices at the beginning of their respective
    seasons. Baseball Commissioner Comments at 13 and NHL Comments at
    14.

[^262]: *See, e.g.,* NFL *ex parte* submission of September 22, 2000.

[^263]: The timing of notice requirements has been a frequent topic of
    Commission proceedings on the sports blackout rule. The current
    regime (requiring notice no later than the Monday preceding the
    calendar week during which the game would be deleted) was adopted in
    1975. The Commission recognized the distinction between notice for
    regularly scheduled games for a sports season versus events not
    regularly scheduled, such as playoffs, or revisions of previously
    submitted notices, as in the case of rainouts. *See 1975 Sports
    Blackout Reconsideration Order),* 56 FCC 2d at 568. The Commission
    observed that the notice could be given as far in advance as desired
    and concluded the notice provisions offered a reasonable compromise
    between the requests of the sports interests for 24 hours or less
    notice and the urgings of the cable operators for more than 24
    hours. *Id.*

[^264]: As in the cable sports blackout rules, the notice must be
    received within 24 hours of the time that the telecast to be deleted
    is known and in no event less than 24 hours before the deletion is
    to take place. 47 C.F.R. § 76.67(c) (amended rule § 76.111(c)).

[^265]: *See, e.g.,* Baseball Commissioner Comments at 13; DirecTV
    Comments at 14-15; NHL Comments at 19 ("community unit" was
    originally used because it was the entity capable of having a cable
    franchise).

[^266]: 47 C.F.R. § 76.67(b) (amended § 76.111(b)).

[^267]: *See* Section 76.127(b) in Appendix B.

[^268]: DirecTV Comments at 17-18 citing 47 CFR §76.67(f).

[^269]: Baseball Commissioner Comments at 5. *See also* NBA Comments at
    10, n. 6; and NBA/NHL Reply at 10 (5% of television households in
    the relevant DMA is too a high threshold (*e.g.* it would equal
    375,000 homes in the New York DMA)).

[^270]: 47 C.F.R. §76.67(f) (amended rule § 76.111(f)).

[^271]: DirecTV Comments at 17 and Reply at 11-12.

[^272]: *See, e.g., Amendment of Part 76 of the Commission's Rules and
    Regulations with Respect to the Definition of a Cable Television
    System and the Creation of Classes of Cable Systems, First Report
    and Order,* 63 FCC 2d 956, 985-86 (1977) and *Second Report and
    Order,* 68 FCC 2d 18, 33 (1978).

[^273]: In their comments, the C-Band satellite carriers provided
    detailed information about the technical and economic difficulties
    they would encounter to implement a sports blackout requirement. TV
    Guide Reply at 8 and SBCA Comments at 11-17. Subsequently, the NFL
    and NHL submitted information demonstrating that C-Band operators
    are fully capable of implementing blackouts of sporting events.
    NFL/NHL *ex parte* submission of June 14, 2000. In a subsequent *ex
    parte* submission, the C-Band carriers acknowledged that
    implementing sports blackout is technically feasible, although they
    maintain that network non-duplication and syndicated exclusivity
    continue to present serious problems, as discussed *supra*. TV Guide
    *ex parte* submission of June 16, 2000 at page 2.

[^274]: *See Amendment of Part 76 of the Commission's Rules and
    Regulations with Respect to the Definition of a Cable Television
    System and the Creation of Classes of Cable Systems, First Report
    and Order,* 63 FCC 2d 956, 985-86, n. 27 (1977) *See also* NHL
    Comments at 15 (59% of cable systems are "small" but this represents
    only 3% of subscribers).

[^275]: *See* Section 76.127(d) in Appendix B.

[^276]: *See, e.g.,* Baseball Commissioner Comments at 13; and DirecTV
    Comments at 14. *See also, supra* n. 239.

[^277]: *See, supra*, Section V.C.

[^278]: *See* 17 U.S.C. § 119(a)(2)(B)(i). *See also* NHL Comments at
    20.

[^279]: *See* Section 76.127(f) in Appendix B. For example, a satellite
    carrier would be required to black out a sporting event to be
    telecast on February 16, 2001, only if the carrier receives
    notification on or before December 18, 2000. DirecTV requested a
    phase-in period to adjust to the new sports blackout rules. DirecTV
    Comments at 19. NFL asserts no phase-in is needed because DirecTV
    and the other satellite carriers have been conducting sports
    blackouts pursuant to contractual arrangements for years. NFL Reply
    at 4. *See also* NBA/NHL Reply at 9 (a one year phase-in period is
    inconsistent with the statutory requirement for the rules to take
    effect within one year of enactment of the SHVIA). We believe the
    regulatory requirements differ from the freely negotiated
    arrangements and therefore warrant this short period of transition.

[^280]: *See* Baseball Commissioner Comments at 3-4 (satellite carriers
    already implement blackouts of baseball games); NBA Comments at 5
    (satellite carriers are already blacking out professional basketball
    games); Joint NBA/NHL Reply at 3 (satellite carriers comply with
    blackout requirements in regional sports network contracts); NFL
    Reply at 3-4 *But see* DirecTV Comments at 19 (phase-in sports
    blackout requirement over 12 months); and Echostar *ex parte*
    submission of October 12, 2000 at 2 (12 month phase-in for all
    exclusivity rules).

[^281]: *Notice,* 15 FCC Rcd at 450.

[^282]: *See In re Carriage of the Transmission of Digital Television
    Broadcast Stations*, Notice of Proposed Rulemaking, 13 FCC Rcd.
    15092 (1988).

[^283]: *Notice,* 15 FCC Rcd at 450.

[^284]: *Id*.

[^285]: 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.

[^286]: *Notice,* 15 FCC Rcd at 450.

[^287]: Echostar Reply at 11, 13-14.

[^288]: NAB comments at 6. *See also* ALTV Comments at 10.

[^289]: Tribune Comments at 7.

[^290]: MPAA Comments at 6. *See also* Baseball Commissioner Comments at
    13; NHL Comments at 23.

[^291]: We note that the NAB has commented that satellite digital
    broadcast signal carriage issues should not be decided until next
    year. See NAB Comments in CS Docket No. 00-96 at 21.

[^292]: *Notice,* 15 FCC Rcd at 449.

[^293]: NFL Comments at 11-12. *See also* Division 1-A Athletic
    Directors Comments at 3; NBA Comments at 2, n. 3; NHL Comments at
    21-22.

[^294]: NFL Comments at 12-13.

[^295]: *Id*.

[^296]: *Id.* at 21-22.

[^297]: *See Major League Baseball*, 6 FCC Rcd 5573 (1991).

[^298]: Retransmission of distant network stations is generally
    restricted to households that cannot receive local stations
    over-the-air. *See* 17 U.S.C. § 119(a)(2)(B) and (d)(10).

[^299]: NFL Comments at 14.

[^300]: The NFL, NHL, NBA and Division 1-A Athletic Directors
    Association support this proposal. *See supra* n. 293. DirecTV,
    EchoStar and Tribune reject the proposal as beyond the scope of the
    statute and this proceeding. Echostar Comments at 10 and Reply at
    11; DirecTV Reply at 13; Tribune at 4-5.

[^301]: *Notice*, 15 FCC Rcd at 447.

[^302]: NFL Comments at 7, n. 7 (NFL contractual rights provide for 75
    mile blackout zone around a city's exterior corporate limits); NHL
    Comments at 12-13 (sports contracts would always require blackouts
    of broadcast stations in the same market such that there would never
    be the situation we describe of one affiliate blacked out and the
    other affiliate of the same network allowed to carry the game).

[^303]: *See* *Notice*, 15 FCC Rcd at 450.

[^304]: 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." Section 76.5(gg) defined "basic cable service" for purposes
    of basic cable service rate regulation and incorporated the standard
    for carriage of broadcast television signals under the Commission's
    original 1972 must-carry rules. In Section 76.67, the Commission
    referenced Section 76.5(gg) and the body of broadcast television
    stations meeting its criteria in order to maintain the original
    scope of the sports broadcasts rule subsequent to the adoption of
    its interim must-carry rules in 1986. *See Amendment of Part 76 of
    the Commission's Rules and Regulations Concerning Carriage of
    Television Broadcast Signals by Cable Television Systems*,
    Reconsideration in MM Dkt. No. 85-349, 2 FCC Rcd. 3593 (1987).

[^305]: Following a successful challenge to the Commission's interim
    must carry rules, the Commission revised the Sports Blackout Rule to
    substitute rate regulation criteria for the former must carry
    provision. However, in 1993, the Commission revised the rate
    regulations and eliminated Section 76.5(gg) without replacing the
    reference for the sports blackout rules. *See Amendment of Part 76
    of the Commission\'s Rules and Regulations Concerning Carriage of
    Television Broadcast Signals By Cable Television Systems,* Report
    and Order in MM Docket No. 85‑349, 61 RR2d 792, 1 FCC Rcd 864
    (1986); *Amendment of Part 76 of the Commission\'s Rules and
    Regulations Concerning Carriage of Television Broadcast Signals By
    Cable Television Systems,* Reconsideration in MM Docket No. 85-349,
    62 RR2d 1251, 2 FCC Rcd 3593 (1987); and *Implementation of Sections
    of the Cable Television Consumer Protection and Competition Act of
    1992; Rate Regulation*, Report and Order and Further Notice of
    Proposed Rulemaking in MM Dkt. No. 92-266, 8 FCC Rcd. 5631 (1993).
    *See also*, NHL Comments at 24, n. 62.

[^306]: See *Notice,* 15 FCC Rcd at 450.

[^307]: *See, e.g., Amendment of Part 76 of the Commission\'s Rules and
    Regulations Relative to Cable Television Systems and the Carriage of
    Sports Programs on Cable Television Systems,* Reconsideration of
    Report and Order in Dkt. No. 19417, 56 FCC 2d 561 (1975)

[^308]: *See Notice*, 15 FCC Rcd at 445, n. 60, for a summary of when a
    station was considered local under former section 76.5(gg).

[^309]: NHL Comments at 23-24 (blackout protection should be triggered
    by the non-carriage of a game by the must carry stations in a
    specific market, not the DMA).

[^310]: *See, e.g.*, Nielsen Media Research, Denver, Colorado Designated
    Market Area.

[^311]: *See* new Section 76.128 in Appendix B, which applies to both
    cable and satellite sports blackout rules.

[^312]: Section 76.51 lists the top 100 television markets in the United
    States. The "Los Angeles-San Bernardino-Corona-Fontana-Riverside,
    Calif." market is listed at Section 76.51(a)(2). In 1995, the
    Commission redesignated the "Los Angeles-San
    Bernardino-Corona-Fontana-Riverside, Calif.," market as the "Los
    Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif." market.
    *See Cable Television Service; List of Major Television Markets*,
    Final Rule, MM Dkt. No. 93-304 (released August 31, 1995) (the "*Los
    Angeles Redesignation Order*"). However, the published amendment to
    Section 76.51(a) intended to effectuate the foregoing change
    inadvertently amended Section 76.51(a)(28), rather than Section
    76.51(a)(2). As a result, the redesignated "Los Angeles-San
    Bernardino-Corona-Riverside-Anaheim, Calif." market is listed as
    Section 76.51(a)(28) and the "Los Angeles-San
    Bernardino-Corona-Fontana-Riverside, Calif." market still is listed
    as Section 76.51(a)(2). The "Tampa-St. Petersburg-Clearwater,
    Florida" market, which was listed at Section 76.51(28) at the time
    the Commission adopted the *Los Angeles Redesignation Order*, was
    deleted inadvertently from Section 76.51(a)(28) and currently is not
    listed elsewhere in Section 76.51. The correct reference in Section
    76.51(a)(2) is to the "Los Angeles-San
    Bernardino-Corona-Riverside-Anaheim, Calif." market. The correct
    reference in Section 76.51(a)(28) is to the "Tampa-St.
    Petersburg-Clearwater, Florida" market. *See* corrected provisions
    in Appendix B.

[^313]: ^?^ 47 C.F.R. § 73.658(m)(1).

[^314]: *Definition of Markets for Purposes of the Cable Television
    Broadcast Signal Carriage Rules*, 14 FCC Rcd 8366, 8377 (1999).

[^315]: Nielsen Media Research DMA Rankings.

[^316]: *See* revisions to Sections 76.94 and 76.105 (formerly § 76.155)
    in Appendix B. Sections 76.97 and 76.163 have been eliminated in
    their entirety.

[^317]: 5 U.S.C. § 553(b).

[^318]: 47 U.S.C. § 339(b)(2).

[^319]: The APA generally requires publication in the Federal Register
    of substantive rules 30 days prior to their effective date but
    permits substantive rules to become effective with less than 30 days
    advance publication for good cause. 5 U.S.C. § 553(d)(1) and (3).
    *See also* 47 C.F.R. 427(b).

[^320]: *Cable Television Service; List of Major Television Markets*,
    Final Rule, MM Dkt. No. 93-304 (released August 31, 1995) (the "*Los
    Angeles Redesignation Order*").

[^321]: *See* 5 U.S.C. §603. The RFA, *see* 5 U.S.C. §601 *et. seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^322]: *Notice,* 15 FCC Rcd 434 at Appendix D.

[^323]: *See* 5 U.S.C. § 604.

[^324]: Satellite Home Viewer Improvement Act of 1999, Pub.L. No.
    106‑113, 113 Stat. 1501, 1501A‑526 to 1501A‑545 (Nov. 29, 1999).

[^325]: 47 U.S.C. §§ 339(b)(1)(A) and (B).

[^326]: 5 U.S.C. §604(b)(3).

[^327]: 5 U.S.C. §601(3)(incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632.) Pursuant to the RFA,
    the statutory definition of a small business applies, "unless an
    agency, after consultation with the Office of Advocacy of the SBA
    and after opportunity for public comment, establishes one or more
    definitions of such the term which are appropriate to the activities
    of the agency and publishes such definition(s) in the Federal
    Register. 5 U.S.C. § 601(3).

[^328]: 15 U.S.C. §632.

[^329]: 13 C.F.R. § 121.201, Standard Industrial Code (SIC) 4833 (1996).

[^330]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^331]: *Id*. *See* Executive Office of the President, Office of
    Management and Budget, Standard Industrial Classification Manual
    (1987), at 283, which describes \"Television Broadcasting Stations
    (SIC Code 4833)\" as:

    Establishments primarily engaged in broadcasting visual programs by
    television to the public, except cable and other pay television
    services. Included in this industry are commercial, religious,
    educational and other television stations. Also included here are
    establishments primarily engaged in television broadcasting and
    which produce taped television program materials.

[^332]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^333]: *Id*.; SIC 7812 (Motion Picture and Video Tape Production); SIC
    7922 (Theatrical Producers and Miscellaneous Theatrical Services
    (producers of live radio and television programs).

[^334]: FCC News Release No. 31327, Jan. 13, 1993; Economics and
    Statistics Administration, Bureau of Census, U.S. Department of
    Commerce, Appendix A-9.

[^335]: FCC News Release, Broadcast Station Totals as of September, 1999
    (released November, 1999).

[^336]: The amount of \$10 million was used to estimate the number of
    small business establishments because the relevant Census categories
    stopped at \$9,999,999 and began at \$10,000,000. No category for
    \$10.5 million existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^337]: We use the 77 percent figure of TV stations operating at less
    than \$10 million for 1992 and apply it to the 1999 total of 1,616
    TV stations to arrive at 1,230 stations categorized as small
    businesses.

[^338]: 13 C.F.R. §121.201 (SIC 4841).

[^339]: 1992 Economic Census Industry and Enterprise Receipts Size
    Report, Table 2D, SIC Code 4841 (Bureau of the Census data under
    contract to the Office of Advocacy of the SBA).

[^340]: Annual Assessment of the Status of Competition in Markets for
    the Delivery of Video Programming, Third Annual Report, CS Docket
    No. 96-133, 12 FCC Rcd 4358, 4385 (1996)("*Third Annual Report").*.

[^341]: *Third Annual Report,* 12 FCC Rcd at 4385.

[^342]: *Id.*

[^343]: *Id.*