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 Federal  Communications  Commission  FCC  00-  417 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of:  )  ) 
 Implementation  of  the  Satellite  Home  )  Viewer  Improvement  Act  of  1999:  ) 
 )  Broadcast  Signal  Carriage  Issues  )  CS  Docket  No.  00-  96 
 )  Retransmission  Consent  Issues  )  CS  Docket  No.  99-  363 

 REPORT  AND  ORDER 
 Adopted:  November  29,  2000  Released:  November  30,  2000 

 By  the  Commission: 
 TABLE  OF  CONTENTS 
 Paragraph  I.  INTRODUCTION  1 

 II.  BACKGROUND  3 
 III.  EXECUTIVE  SUMMARY  9 
 IV.  SATELLITE  BROADCAST  SIGNAL  CARRIAGE  10 
 A.  Constitutional  Matters  10 
 B.  Commencing  Satellite  Broadcast  Signal  Carriage  14 
 1.  Election  Cycle  16 
 2.  Initiating  Carriage  25 
 C.  Market  Definitions  34 
 D.  Receive  Facilities  43 
 1.  Local  Receive  Facilities  45 
 2.  Alternative  Receive  Facilities  49 
 3.  Notification  55 
 4.  Process  59 
 5.  Good  Quality  Signal  Issues  62 
 E.  Duplicating  Signals  73 
 F.  Noncommercial  Educational  Television  Station  Carriage  Issues  84 
 G.  Channel  Positioning  91 
 H.  Content  to  be  Carried  102 
 I.  Material  Degradation  110 
 J.  Digital  Television  120 
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 K.  Compensation  for  Carriage  124 
 L.  Remedies  126 
 M.  Definitional  Issues  and  Other  Concerns  134 

 V.  PROCEDURAL  MATTERS  140 
 VI.  ORDERING  CLAUSES  142 
 Appendix  A:  Comments  and  Reply  Comments 
 Appendix  B:  Rules 
 Appendix  C:  Final  Regulatory  Flexibility  Act  Analysis 
 Appendix  D:  Television  Markets  with  Local-  Into-  Local  Service  from  DirecTV 
 Appendix  E:  Television  Markets  with  Local-  Into-  Local  Service  from  Echostar 
 Appendix  F:  Section  338  of  the  Communications  Act  of  1934,  as  amended 
 Appendix  G:  Section  614  of  the  Communications  Act  of  1934,  as  amended 
 Appendix  H:  Section  615  of  the  Communications  Act  of  1934,  as  amended 
 Appendix  I:  Section  122  of  the  Copyright  Act  of  1976,  as  amended 
 Appendix  J:  Nielsen  Media  Research  Designated  Market  Area  Ranking  2000-  2001 

 I.  INTRODUCTION 
 1.  Section  338  of  the  Communications  Act  of  1934  (  Act),  adopted  as  part  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999  (  SHVIA)  1  requires  satellite  carriers,  by  January  1,  2002,  to 
 carry  upon  request  all  local  television  broadcast  stations  signals  in  local  markets  in  which  the  satellite 
 carriers  carry  at  least  one  television  broadcast  station  signal,  subject  to  the  other  carriage  provisions 
 contained  in  the  Act.  Until  January  1,  2002,  satellite  carriers  are  granted  a  royalty-  free  copyright  license 
 to  retransmit  television  broadcast  signals  on  a  station-  by-  station  basis,  subject  to  obtaining  a  broadcasters 
 retransmission  consent.  This  transition  period  is  intended  to  provide  the  satellite  industry  with  time  to 
 begin  providing  local  television  signals  into  local  markets,  otherwise  known  as  local-  into-  local  satellite 
 service.  In  this  Report  and  Order,  we  adopt  rules  to  implement  the  provisions  contained  in  Section  338. 

 2.  In  a  separate  proceeding,  the  Commission  has  implemented  new  amendments  to  Section  325  of  the  Act  per  the  instructions  set  forth  in  the  SHVIA.  2  Good  faith  negotiation  regulations  and  the 
 prohibition  on  retransmission  consent  exclusivity  are  among  the  requirements  the  Commission  has 
 already  adopted.  3  However,  the  Commission  deferred  adopting  rules  concerning  the  satellite 
 retransmission  consent/  mandatory  carriage  election  cycle  until  we  considered  all  of  the  rules  necessary 
 for  a  local  broadcast  station  to  gain  carriage  on  a  satellite  carrier  under  both  Sections  325  and  338  of  the 
 Act.  Thus,  we  adopt  herein,  election  cycle  rules  and  related  policies  for  satellite  broadcast  signal  carriage. 

 1  Pub.  Law  106-  113,  113  Stat.  1501,  1501A-  526  to  1501A-  545  (Nov.  29,  1999).  See  Appendix  F.  The  Commission 
 adopted  the  Notice  of  Proposed  Rulemaking  to  implement  Section  338  on  May  31,  2000.  See  Implementation  of  the 
 Satellite  Home  Viewer  Improvement  Act  of  1999  Broadcast  Signal  Carriage  Issues,  Notice  of  Proposed 
 Rulemaking,  15  FCC  Rcd  12147  (2000)(  hereinafter,  Notice). 

 2  See  Implementation  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999  Retransmission  Consent  Issues, 
 Notice  of  Proposed  Rulemaking,  14  FCC  Rcd  21736  (1999);  Retransmission  Consent  Issues:  Good  Faith 
 Negotiation  and  Exclusivity,  First  Report  and  Order,  15  FCC  Rcd  5445  (2000). 

 3  See  47  C.  F.  R.  76.65. 
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 II.  BACKGROUND 
 3.  In  the  SHVIA,  Congress  amended  the  Communications  Act  and  Copyright  Act  to  permit  satellite  carriers  to  provide  the  signals  of  local  broadcast  stations  to  subscribers  residing  in  the 
 broadcasters  market.  Commencing  on  January  1,  2002,  satellite  carriers  that  provide  local-  into-  local 
 retransmission  of  broadcast  stations  pursuant  to  the  statutory  copyright  license  4  must  carry  upon  request 
 the  signals  of  all  television  broadcast  stations  within  that  local  market  .  .  .  5  The  SHVIA  requires  the 
 Commission  to  issue  rules  implementing  this  carriage  requirement  within  one  year  of  the  SHVIAs 
 enactment  on  November  29,  1999.  In  establishing  such  a  deadline,  Congress  implicitly  recognized  that 
 sufficient  time  was  needed  for  satellite  carriers  to  comply  with  the  carriage  requirements  prior  to  January 
 1,  2002.  Congress  has  indicated  that  the  satellite  carriage  requirements  should  be  comparable  to  the  cable 
 carriage  requirements,  noting  in  particular,  paragraphs  (3)  and  (4)  of  Section  614(  b)  and  paragraphs  (1) 
 and  (2)  of  Section  615(  g),  presently  found  in  Title  VI  of  the  Act.  6 

 4.  In  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992,  Broadcast  Signal  Carriage  Issues  (  Broadcast  Signal  Carriage  Order),  7  the  Commission 
 implemented  the  cable  broadcast  signal  carriage  provisions  of  the  Cable  Television  Consumer  Protection 
 and  Competition  Act  of  1992  (  1992  Cable  Act).  8  This  statute  amended  the  Act  to  provide  television 
 stations  with  certain  carriage  rights  on  local  market  cable  television  systems.  Sections  614  and  615  of  the 
 Act  contain  the  cable  television  must  carry  requirements  for  commercial  and  noncommercial  television 
 stations,  respectively.  9  Section  325  contains  retransmission  consent  requirements  pursuant  to  which  cable 
 operators  may  be  obligated  to  obtain  the  consent  of  commercial  broadcasters  before  retransmitting  their 
 signals.  Within  local  market  areas,  defined  by  Nielsen  Media  Researchs  Designated  Market  Areas 
 (  DMAs),  commercial  television  stations  may  elect  cable  carriage  under  either  the  retransmission 
 consent  or  mandatory  carriage  requirements.  Noncommercial  television  stations  have  a  right  to 
 mandatory  carriage  under  the  Act,  but  do  not  have  statutory  retransmission  consent  rights. 

 4  See  17  U.  S.  C.  122(  a)  (as  amended  by  1002  of  the  SHVIA).  Section  122  of  the  Copyright  Act  is  attached  as 
 Appendix  I  of  the  Report  and  Order. 
 5  47  U.  S.  C.  338(  a)(  1)  (as  amended  by  1008  of  the  SHVIA). 

 6  47  U.  S.  C.  338(  g).  The  legislative  history  states  that  the  procedural  provisions  applicable  to  Section  338 
 (concerning  costs,  avoidance  of  duplication,  channel  positioning,  compensation  for  carriage,  and  complaints  by 
 broadcast  stations)  generally  parallel  to  those  applicable  to  cable  systems.  See  Joint  Explanatory  Statement  of  the 
 Committee  of  Conference  on  H.  R.  1554,  106  th  Cong.  (  Conference  Report),  145  Cong.  Rec.  H11795  (daily  ed. 
 Nov.  9,  1999). 

 7  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992,  Broadcast  Signal 
 Carriage  Issues,  Report  and  Order,  8  FCC  Rcd  2965  (1993)(  Must  Carry  Order).  The  Commission  later  clarified 
 the  broadcast  signal  carriage  requirements.  See  Implementation  of  the  Cable  Television  Consumer  Protection  and 
 Competition  Act  of  1992,  Broadcast  Signal  Carriage  Issues,  Order,  8  FCC  Rcd  4142  (1993)  (  Clarification  Order). 

 8  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992,  Pub.  L.  No.  102-  385,  106  Stat.  1460  (1992). 

 9  47  U.  S.  C.    534  and  535;  47  C.  F.  R.  76.56.  The  Acts  cable  carriage  provisions  are  found  at  Appendices  G  and  H, 
 attached  to  this  Report  and  Order. 
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 5.  It  is  important  to  note  that  the  satellite  carriage  requirement  is  different  from  the  cable  carriage  requirement.  Under  Sections  614  and  615  of  the  Act,  television  stations  can  insist  on  carriage  on 
 a  cable  system  even  if  the  cable  operator  does  not  carry  any  local  signals.  Under  Section  338  of  the  Act, 
 the  Commission  cannot  require  satellite  carriers  to  carry  television  stations  in  markets  where  they  do  not 
 offer  local-  into-  local  service.  There  are  other  distinctions  between  cable  operators  and  satellite  carriers 
 that  must  be  noted  as  well.  For  example,  a  satellite  carrier  has  a  general  obligation  to  carry  all  television 
 stations  in  a  market,  if  it  carries  one  station  in  that  market  through  reliance  on  the  statutory  copyright 
 license,  without  a  specific  statutory  reference  to  a  channel  capacity  cap,  while  a  cable  system  with  more 
 than  12  usable  activated  channels  is  required  to  devote  no  more  than  one-  third  of  the  aggregate  number  of 
 usable  activated  channels  to  local  commercial  television  stations  that  may  elect  mandatory  carriage 
 rights.  10  Satellite  carriers  also  provide  video  programming  on  a  national  basis  through  a  space-  based 
 delivery  facility  while  cable  operators  provide  video  service  on  a  local  basis  through  a  terrestrial  delivery 
 facility. 

 6.  To  understand  the  circumstances  surrounding  the  implementation  of  Section  338,  it  is  also  necessary  to  discuss  current  satellite  delivery  of  television  broadcast  stations  and  how  subscribers 
 access  broadcast  programming.  We  focus  on  DBS  operators  because  they  are  currently  providing  local-into- 
 local  service.  First,  to  obtain  local  television  signals  for  local  distribution,  DBS  operators  receive  the 
 signals  over-  the-  air,  or  have  arrangements  with  local  stations  to  deliver  their  signals  by  other  means,  to  a 
 receive  facility  in  or  near  the  stations  television  market.  Presently,  a  local  exchange  carriers  facility  is 
 used  as  a  collection  point  for  local  television  station  signals.  11  Once  received,  the  satellite  carrier  converts 
 the  analog  television  broadcast  signals  into  digital  data  bitstreams.  The  digitized  television  signals  are 
 then  sent,  using  a  fiber  optic  line  or  other  means,  to  the  satellite  carriers  programming  facility,  or  group 
 of  facilities,  where  they  are  then  uplinked  to  the  appropriate  satellite.  These  satellites,  orbiting  around  the 
 equator  at  22,300  feet  at  various  locations  above  the  United  States,  contain  transponders  12  that  are  used  to 
 retransmit  local  television  station  signals  and  other  programming  to  subscribers  homes  in  a  certain 
 television  market.  13 

 7.  Satellite  television  subscribers  must  buy  or  rent  a  small  parabolic  "dish"  antenna,  which  is  mounted  on  or  near  the  home,  to  receive  the  satellite  delivered  signals.  Satellite  subscribers  must  also 
 purchase  or  rent  a  set  top  box  that  converts  the  incoming  digital  signal  to  an  analog  format  so  that 
 programming  is  viewable  on  the  television  receiver.  Subscribers  pay  a  subscription  fee  to  receive  both 
 local  television  station  signals  and  other  programming  services.  While  each  television  station  carried  by  a 
 satellite  carrier  occupies  transponder  capacity,  a  subscriber  cannot  purchase  and  view  packages  of  non- 

 10  47  U.  S.  C.  534(  b)(  1)(  B). 
 11  This  location  is  known  as  the  point  of  presence  (  POP). 
 12  A  transponder  is  that  portion  of  a  satellite  used  for  reception  and  retransmission  of  a  signal  or  signals  in  a  certain 
 bandwidth.  Each  satellite  located  at  one  of  the  three  prime  continental  United  States  (  CONUS)  orbital  slots  is 
 capable  of  broadcasting  on  32  frequencies.  Through  the  use  of  digital  compression  technology,  each  frequency  is 
 currently  capable  of  delivering  approximately  ten  distinct  channels  of  video  programming  to  a  subscribers  dish. 
 Thus,  each  prime  CONUS  orbital  slot  is  presently  capable  of  delivering  approximately  320  channels  of  traditional 
 video  programming.  See  Satellite  Broadcasting  and  Communications  Association,  et.  al.,  v.  FCC,  Complaint  for 
 Declaratory  and  Injunctive  Relief,  at  14  (filed  in  the  context  of  SBCAs  court  challenge  to  the  constitutionality  of 
 Section  338,  noted  in  more  detail  below). 

 13  DBS  operators  use  the  12  GHz  frequency  band  (12.2-  12.  7  GHz). 
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 local  television  station  signals.  Satellite  carriers  package  video  programming,  including  bundles  of  local 
 television  station  signals,  into  different  tiers  of  service.  Services  are  also  available  on  an  a  la  carte  basis 
 where  a  single  channel  or  program  is  sold  separately. 

 8.  Satellite  carriers  organize  programming  according  to  channel  neighborhoods  where  certain  genres  of  programming,  such  as  sports  or  music,  are  grouped  together.  Presently,  local-  into-  local 
 television  stations  carried  under  retransmission  consent  are  found  together  in  such  neighborhoods.  14  As  of 
 November  27,  2000,  DirecTV  offers  local-  into-  local  service  in  38  television  markets  whereas  Echostar 
 offers  such  service  in  34  television  markets.  15 

 III.  EXECUTIVE  SUMMARY 
 9.  This  Order  implements  carriage  rules  for  satellite  carriers  pursuant  to  Section  338.  The  decisions  are  summarized  as  follows: 

 x  Commencing  Carriage.  We  find  that  commercial  television  stations  must  make  an  election  between 
 retransmission  consent  and  mandatory  carriage  every  three  years  for  both  satellite  carriers  and  cable 
 operators.  The  first  satellite  election  cycle,  however,  will  be  for  four  years,  to  align  it  with  the  cable 
 election  cycle  beginning  in  2006.  Under  the  SHVIA,  a  television  station,  in  a  market  with  local-  into-local 
 service,  must  request  carriage.  We  find  that  for  the  first  cycle,  commercial  television  stations 
 must  request  carriage  by  making  an  election  by  July  1,  2001,  for  carriage  to  commence  on  January  1, 
 2002.  We  further  find  that  commercial  television  stations  must  request  carriage  by  making  an 
 election,  for  all  cycles  thereafter,  by  October  1  st  of  the  year  preceding  the  new  election  cycle. 
 Noncommercial  educational  television  stations  must  request  carriage  on  the  same  dates  as 
 commercial  television  stations,  even  though  they  are  not  subject  to  an  election  cycle.  We  establish 
 separate  timeframes  for  commencing  carriage  when  a  new  television  station  begins  service  or  when  a 
 satellite  carrier  commences  new  local-  into-  local  service. 

 x  Market  Determinations.  Under  the  SHVIA,  Nielsens  1999-  2000  publications  determine  market 
 areas  at  the  commencement  of  the  first  election  cycle.  We  find,  however,  that  a  satellite  carrier  may 
 use  future  Nielsen  publications  to  add  counties  to  markets  where  it  provides  local-  into-  local  service. 
 A  television  stations  local  market  for  satellite  carriage  purposes  is  generally  determined  by  the 
 location  of  its  city  of  license.  In  the  cases  where  the  stations  city  of  license  is  located  in  a  county 
 outside  the  local  market,  but  Nielsen  has  assigned  the  station  to  that  market,  it  may  assert  carriage 
 rights  in  the  market  to  which  it  was  assigned.  We  also  find  that  the  Commission  cannot  modify  a 
 television  market  under  Section  338  as  it  is  authorized  to  do  so  under  Section  614(  h)  in  the  cable 
 carriage  context. 

 x  Receive  Facilities.  The  SHVIA  establishes  the  local  receive  facility  as  the  point  in  a  market  where 
 a  carrier  collects  the  signals  of  local  television  stations  before  retransmitting  them  via  satellite.  The 
 local  receive  facility,  in  essence,  functions  like  a  cable  operators  principal  headend.  Under  the 

 14  Both  Echostar  and  DirecTV  are  carrying  the  local  ABC,  NBC,  CBS,  and  Fox  network  affiliates.  These  satellite 
 carriers  are  also  carrying  other  stations  in  certain  markets,  such  as  WPIX  in  New  York  and  KTLA  in  Los  Angeles. 
 15  Television  markets  with  local-  into-  local  satellite  service  currently  provided  by  DirecTV  and  Echostar  are  noted  in 
 Appendices  D  and  E.  See  http://  www.  dishnetwork.  com  (Echostar)  and  http://  www.  directv.  com  (DirecTV)  (as  of 
 November  27,  2000). 
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 SHVIA,  a  satellite  carrier  determines  the  location  of  the  local  receive  facility  in  each  market  it 
 provides  local-  into-  local  service.  We  interpret  the  SHVIA  to  permit  satellite  carriers  to  construct 
 another  facility,  one  that  may  be  outside  the  local  market,  if  50%  of  the  broadcasters  in  the  relevant 
 market  agree  to  the  location  of  such  a  facility.  It  should  also  be  noted  that  the  SHVIA  requires 
 television  stations  to  pay  for  the  costs  of  providing  a  good  quality  signal  to  any  receive  facility.  We 
 adopt  rules  for  defining  a  good  quality  television  station  signal  comparable  to  the  rules  established  in 
 the  cable  context.  Notably,  a  satellite  carrier  does  not  have  an  obligation  to  carry  a  television  signal 
 that  does  not  meet  the  Commissions  good  quality  signal  standard,  until  the  time  when  the  television 
 station  pays  to  cure  the  signal  strength  deficiency. 

 x  Duplicating  Signals.  Under  the  SHVIA,  a  satellite  carrier  is  not  required  to  carry  duplicative  signals 
 of  television  stations  in  the  same  market  unless  the  stations  at  issue  are  network  affiliates  licensed  to 
 communities  in  different  states.  We  adopt  a  duplication  definition  for  commercial  television  stations 
 that  mimic  the  definition  established  in  the  cable  carriage  context.  We  also  interpret  the  SHVIAs 
 duplication  provisions  to  mean  that  a  satellite  carrier  is  not  obligated  to  carry  two  of  the  same  network 
 affiliates,  even  if  their  signals  do  not  duplicate. 

 x  Noncommercial  Television  Stations.  We  find  that  a  satellite  carrier  must  carry  all  non-  duplicative 
 noncommercial  educational  television  stations  in  a  market  where  local-  into-  local  service  is  provided. 
 We  also  find  that  a  satellite  carrier  cannot  satisfy  its  public  interest  set  aside  obligations  through  the 
 carriage  of  noncommercial  television  stations. 

 x  Channel  Positioning.  We  implement  the  SHVIAs  requirement  that  a  satellite  carrier  must  carry  all 
 local  television  stations  in  a  contiguous  manner  on  its  channel  line-  up.  The  SHVIA  also  requires  the 
 Commission  to  establish  rules  prohibiting  non-  discriminatory  treatment  of  television  stations  carried 
 under  the  copyright  compulsory  license.  We  find  that  a  satellite  carrier  must  treat  television  stations 
 that  elect  mandatory  carriage  in  the  same  manner  on  its  electronic  program  guide  as  it  does  stations 
 that  elect  retransmission  consent.  We  also  find  that  a  satellite  carrier  must  offer  television  stations 
 that  elect  mandatory  carriage  to  subscribers  on  comparable  price  terms  as  it  offers  television  stations 
 that  elect  retransmission  consent. 

 x  Content  to  be  Carried.  The  SHVIA  requires  the  Commission  to  apply  the  cable  carriage  content 
 requirements  to  satellite  carriers.  Given  this  directive,  we  implement  rules  requiring  a  satellite  carrier 
 to  carry  the  primary  video  and  accompanying  audio  of  local  television  stations.  We  also  implement 
 rules  requiring  satellite  carriers  to  carry  all  program-  related  material  contained  in  a  television  stations 
 vertical  blanking  interval,  unless  carriage  of  such  data  is  technically  infeasible. 

 x  Material  Degradation.  The  SHVIA  requires  the  Commission  to  apply  the  material  degradation 
 principles  established  in  the  cable  carriage  context  to  satellite  carriers.  Given  this  directive,  we  find 
 that  a  satellite  carrier  must  provide  the  same  degree  of  picture  quality  to  television  stations  that  elect 
 mandatory  carriage  as  it  provides  to  television  stations  that  elect  retransmission  consent. 

 x  Compensation.  We  implement  the  SHVIAs  directive  prohibiting  satellite  carriers  from  requesting 
 compensation  in  return  for  carriage. 

 x  Digital  Television.  The  Notice  of  Proposed  Rulemaking  in  this  proceeding  raised  several  questions 
 regarding  the  carriage  of  digital  television  signals  by  satellite  carriers.  The  broadcasting  industry 
 generally  supported  satellite  digital  carriage  requirements  while  the  satellite  industry  opposed  any 
 digital  carriage  requirements.  We  refrain  from  addressing  the  merits  of  such  requirements  and  state 
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 that  the  satellite  digital  carriage  issues  will  be  addressed  at  the  same  time  the  Commission  considers 
 cable  digital  carriage  issues. 

 x  Remedies.  The  SHVIA  provides  the  United  States  District  Courts  with  exclusive  jurisdiction  to 
 remedy  a  satellite  carriers  failure  to  carry  a  local  television  station.  However,  the  SHVIA  also 
 provides  that  the  Commission  shall  order  the  satellite  carrier  to  take  appropriate  remedial  action  if  it 
 fails  to  meet  its  obligations  under  Section  338.  We  interpret  the  SHVIA  to  require  a  television  station 
 to  seek  remedies  for  non-  carriage  by  a  satellite  carrier  under  the  statute  in  the  court  system.  However, 
 a  television  station  that  seeks  remedial  action  and  a  carriage  order  under  our  rules  may  file  a 
 complaint  with  the  Commission.  We  also  interpret  the  SHVIA  to  allow  the  Commission  to  adjudicate 
 satellite  carriage  complaints  for  each  substantive  topic  enumerated  in  Section  338,  including  the 
 content-  to-  be-  carried  and  material  degradation  provisions. 

 IV.  SATELLITE  BROADCAST  SIGNAL  CARRIAGE 
 A.  Constitutional  Matters 

 10.  Questions  have  been  raised  relating  to  the  constitutionality  of  Section  338.  The  satellite  industry  argues  that  Section  338s  carriage  requirements  are  unconstitutional  for  several  reasons.  The 
 Satellite  Broadcasting  and  Communications  Association  (  SBCA)  submits  that  mandatory  carriage 
 violates  the  First  Amendment,  by  infringing  on  a  carriers  editorial  control  in  selecting  programming,  as 
 well  as  the  Takings  Clause  of  the  Fifth  Amendment,  by  depriving  the  carrier  of  valuable  spectrum  without 
 just  compensation.  16  SBCA  additionally  argues  that,  by  linking  a  statutory  copyright  license  to  a 
 requirement  to  engage  in  certain  speech,  Congress  has  exceeded  its  authority  under  the  Copyright  Clause 
 of  the  Constitution.  17  Echostar  agrees  and  also  asserts  that  Section  338  does  not  provide  the  Commission 
 with  any  ability  to  salvage  it  from  unconstitutionality,  nor  does  the  Act  give  the  Commission  any 
 opportunity  to  alleviate  the  statutory  burdens.  18 

 11.  The  National  Association  of  Broadcasters  (  NAB)  argues  that  the  Act  does  not  limit  a  satellite  carriers'  speech  in  any  way,  and  carriers  remain  free  to  offer  any  programming  for  which  they 
 acquire  the  necessary  rights  in  the  marketplace.  19  It  argues  that  the  compulsory  license  is  a  transfer  of 
 rights  from  copyright  owners  to  carriers,  not  a  restriction  of  any  kind.  According  to  NAB,  the  SHVIA 

 16  SBCA  Comments  at  10.  We  note  that  subsequent  to  the  issuance  of  the  Notice  in  this  proceeding,  SBCA,  DirecTV 
 and  Echostar  filed  a  civil  complaint  on  September  20,  2000,  in  the  United  States  District  Court  for  the  Eastern 
 District  of  Virginia,  Alexandria  Division,  claiming  that  Section  338  is  unconstitutional.  The  Commission,  the  United 
 States  Copyright  Office,  and  the  United  States  of  America  were  named  as  defendants.  Similar  to  their  comments 
 filed  in  this  proceeding,  the  satellite  industry  argues  that  Section  338  violates  the  Free  Speech  and  Free  Press  clauses 
 of  the  First  Amendment,  the  Takings  and  Due  Process  clauses  of  the  Fifth  Amendment,  as  well  as  the  Copyright 
 clause  of  the  Constitution.  We  note  that  the  U.  S.  District  Court  for  the  Southern  District  of  Florida  has  found  that 
 the  SHVIA  is  constitutional  under  the  First  Amendment.  See  CBS  v.  Echostar,  Case  No.  98-  2651-  CIV-  NESBITT, 
 Order  Granting  Motion  for  Preliminary  Injunction  (S.  D.  Fla.,  Sept.  29,  2000)(  In  effect,  Echostar  seeks  to  make 
 commercial  use  of  the  copyrighted  works  of  others.  There  is  no  first  amendment  right  to  do  so.  )  citing  United 
 Video,  Inc.  v.  FCC,  890  F.  2d  1173,  1191  (D.  C.  Cir.  1989). 

 17  SBCA  Comments  at  3. 

 18  Echostar  Comments  at  ii. 
 19  NAB  Reply  Comments  at  vii. 
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 gives  satellite  carriers  a  royalty-  free  statutory  license  to  override  the  normal  rights  of  copyright  owners  by 
 retransmitting  copyrighted  programming,  under  specified  circumstances.  20  Paxson  states  that  the  Supreme 
 Court  has  concluded  that  the  cable  carriage  requirements  satisfy  the  intermediate  scrutiny  test  under 
 OBrien  because  they  advance  the  important  government  interests  of  preserving  the  benefits  of  free  over-the- 
 air  broadcasting  and  promoting  the  widespread  dissemination  of  information  from  a  multiplicity  of 
 sources.  21  According  to  Paxson,  the  same  government  interests  are  protected  and  promoted  through 
 comparable  carriage  requirements  on  the  satellite  industry.  22 

 12.  In  the  legislative  history  accompanying  this  section,  Congress  noted  its  belief  that  the  carriage  requirements  are  constitutional  under  the  First  Amendment: 

 The  conferees  believe  that  the  must  carry  provisions  of  this  Act  neither  implicate  nor  violate  the 
 First  Amendment.  Rather  than  requiring  carriage  of  stations  in  the  manner  of  cables  mandated 
 duty,  this  Act  allows  a  satellite  carrier  to  choose  whether  to  incur  the  must  carry  obligation  in  a 
 particular  market  in  exchange  for  the  benefits  of  the  local  statutory  license.  It  does  not  deprive 
 any  programmers  of  potential  access  to  carriage  by  satellite  carriers.  Satellite  carriers  remain  free 
 to  carry  any  programming  for  which  they  are  able  to  acquire  the  property  rights.  The  provisions 
 of  this  Act  allow  carriers  an  easier  and  more  inexpensive  way  to  obtain  the  right  to  use  the 
 property  of  copyright  holders  when  they  retransmit  signals  from  all  of  a  markets  broadcast 
 stations  to  subscribers  in  that  market.  The  choice  whether  to  retransmit  those  signals  is  made  by 
 carriers,  not  by  the  Congress.  The  proposed  licenses  are  a  matter  of  legislative  grace,  in  the 
 nature  of  subsidies  to  satellite  carriers,  and  reviewable  under  the  rational  basis  standard.  23 

 The  Conferees  also  noted  that  they  were  confident  that  the  proposed  license  provisions  would  pass 
 constitutional  muster  even  if  subjected  to  the  OBrien  standard  [intermediate  First  Amendment  scrutiny] 
 applied  to  the  cable  mandatory  carriage  requirement.  24 

 13.  We  observe  that  Congress  enacted  Section  338  to  preserve  free  over-  the-  air  broadcasting,  promote  a  multiplicity  of  voices,  and  promote  fair  competition  between  video  providers.  The  SHVIA  furthers 
 these  important  government  interests  by  establishing  provisions  ensuring  that  satellite  carriers  treat  all  local 
 television  stations  seeking  carriage  in  a  fair  manner.  The  goals,  and  the  means  to  further  them,  are  similar  to 
 those  Congress  enacted  in  1992  when  it  promulgated  the  cable  carriage  provisions  in  the  1992  Cable  Act.  25 
 With  regard  to  the  arguments  raised  by  SBCA,  we  find  that  the  claims  it  raises,  excepting  the  Copyright 
 Clause  claim,  are  similar  to  those  the  cable  industry  raised  against  the  constitutionality  of  Sections  614  and 

 20  Id.  at  3. 
 21  Paxson  Reply  Comments  at  1-  2. 
 22  Id. 
 23  See  Conference  Report  at  H11795. 
 24  Id. 

 25  Congress  established  cable  carriage  requirements  in  Sections  614  and  615  of  the  Act  to:  (1)  preserve  the  benefits 
 of  free,  over-  the-  air  local  broadcast  television;  (2)  promote  the  widespread  dissemination  of  information  from  a 
 multiplicity  of  sources;  and  (3)  promote  fair  competition  in  the  market  for  television  programming.  Turner 
 Broadcasting  System,  Inc.  v.  FCC,  114  S.  Ct.  2445,  2469  (1994)(  Turner  I). 
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 615  of  the  Act  in  1992.  In  the  Turner  cases,  the  Supreme  Court  found  that  the  Acts  cable  carriage  provisions 
 were  constitutional.  26  In  this  matter,  we  defer  to  Congresss  determination  that  Section  338  is  lawful.  27  Thus, 
 notwithstanding  the  satellite  industrys  court  challenge,  our  task  in  this  proceeding  is  to  implement  the 
 statutory  directives  set  forth  in  the  SHVIA. 

 B.  Commencing  Satellite  Broadcast  Signal  Carriage 
 14.  Satellite  carriers  have  had  the  right  to  retransmit  local  television  stations  without  first  obtaining  retransmission  consent,  and  without  a  mandatory  carriage  obligation,  for  a  six  month  period 
 from  November  29,  1999  to  May  28,  2000.  Beginning  on  May  29,  2000  and  continuing  until 
 December  31,  2001,  satellite  carriers  may  carry  local  television  stations  on  a  station-  by-  station  basis  if  a 
 retransmission  consent  agreement  has  been  reached.  As  of  January  1,  2002,  satellite  carriers  will  have  an 
 obligation  to  carry  all  local  television  stations  seeking  carriage  in  any  market  in  which  they  provide  local-into- 
 local  service.  28  This  requirement  is  not  absolute  as  satellite  carriers  generally  need  not  carry 
 duplicative  television  stations  in  the  same  market.  29  In  addition,  a  television  station  in  a  market  where 
 local-  into-  local  service  is  provided  must  submit  a  request  to  the  satellite  carrier  to  gain  carriage.  30 
 Commercial  television  stations  must  make  an  election  between  retransmission  consent  and  mandatory 
 carriage  when  requesting  carriage.  31  Noncommercial  television  stations  do  not  have  to  make  an  election 
 because  they  do  not  have  retransmission  consent  rights.  However,  a  noncommercial  television  station  and 
 a  satellite  carrier  may  enter  into  a  voluntary  carriage  agreement  apart  from  the  requirements  contained  in 
 the  Act. 

 15.  We  find  that  Section  338  provides  a  satellite  carrier  with  two  options  for  carrying  local  television  broadcast  signals.  If  a  satellite  carrier  provides  its  subscribers  with  the  signals  of  local 
 television  stations  through  reliance  on  the  statutory  copyright  license,  they  will  have  the  obligation  to 
 carry  all  of  the  commercial  television  signals  in  that  particular  market  that  request  carriage.  32  If  a  satellite 

 26  Id.;  Turner  Broadcasting  System,  Inc.  v.  FCC,  117  S.  Ct.  1174  (1997)(  Turner  II).  We  note  that  the  Court  found 
 that  the  cable  carriage  provisions  were  constitutional  under  the  First  Amendment.  However,  the  Court  did  not 
 consider  whether  these  same  provisions  were  constitutional  under  the  Fifth  Amendments  Takings  and  Due  Process 
 clauses. 

 27  See  Johnson  v.  Robinson,  415  U.  S.  361,  368  (1974)(  administrative  agencies  should  presume  that  implementing 
 statutes  are  constitutional  and  refrain  from  questioning  their  legality). 
 28  47  U.  S.  C.  338(  a)(  1).  It  is  important  to  note  that  any  television  broadcast  station  provided  by  a  satellite  carrier 
 within  that  stations  local  market  under  the  statutory  copyright  license  in  Section  122(  a)  is  treated  as  a  local  station 
 for  purposes  of  Section  325  (retransmission  consent)  and  338  (mandatory  carriage).  The  satellite  carriage  of  a 
 superstation  in  its  local  market  would  likely  trigger  the  Section  338  obligations.  The  term  superstation  means  a 
 television  broadcast  station,  other  than  a  network  station,  licensed  by  the  Federal  Communications  Commission  that 
 is  secondarily  transmitted  by  a  satellite  carrier.  17  U.  S.  C.  119(  d)(  9)(  A). 

 29  Id.  at  338(  c)(  1)  and  (2). 

 30  Id.  at  338(  a)(  1). 
 31  47  U.  S.  C.  325(  b)(  3)(  C)(  1). 
 32  This  requirement  is  subject  to  the  other  limiting  provisions  in  Section  338,  such  as  the  one  concerning  duplicative 
 programming. 
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 carrier  provides  local  television  signals  pursuant  to  private  copyright  arrangements,  the  Section  338 
 carriage  obligations  do  not  apply.  In  this  context,  we  note  that  a  retransmission  consent  agreement,  in 
 most  instances,  is  not  analogous  to  a  private  copyright  arrangement.  Retransmission  consent  permits  an 
 MVPD  to  retransmit  a  stations  signal,  but  it  does  not  generally  grant  copyright  clearance  for  the  program 
 content  carried  by  that  station.  To  obtain  private  clearances  for  material  carried  by  a  particular  station,  the 
 copyright  holders  of  each  of  the  programs,  advertisements,  and  music  aired  by  that  station  must  consent  to 
 the  retransmission.  In  some  cases,  however,  a  television  station  may  have  permission  from  the  copyright 
 holders  to  provide  clearances  on  their  behalf.  We  therefore  conclude  that  unless  the  retransmission 
 contract  clearly  provides  for  all  copyright  clearances,  a  carrier  retransmitting  television  stations  electing 
 retransmission  consent  would  be  subject  to  the  compulsory  license  and  be  required  to  carry  all  other  local 
 market  television  stations  under  the  provisions  set  forth  in  Section  338. 

 1.  Election  Cycle 
 16.  In  Implementation  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999  Retransmission  Consent  Issues,  Report  and  Order,  the  Commission  promulgated  good  faith  and  anti-exclusivity 
 requirements  per  the  provisions  amending  Section  325  of  the  Act.  33  Retransmission  consent  and 
 mandatory  carriage  election  cycle  requirements  for  satellite  carriers  were  discussed  in  the  Notice  in  that 
 docket.  The  Retransmission  Consent  Notice  requested  comment  on  whether  the  Commission  should  employ 
 the  same  rules  and  procedures  the  Commission  adopted  in  response  to  the  1992  Cable  Act  or  adopt  a 
 different  election  cycle  with  different  procedures  to  implement  Section  325(  b)(  3)(  C)(  i).  34  The  Notice  in  this 
 proceeding  sought  comment  on  how  the  carriage  provisions  of  Section  338  would  work  with  the  revised 
 Section  325  provisions  regarding  retransmission  consent.  35  Because  the  issues  of  retransmission  consent 
 and  mandatory  carriage  are  intertwined,  we  believe  that  a  coherent  election  regime  is  best  effectuated  by 
 consolidating  the  election  cycle  record  from  that  proceeding  with  the  instant  proceeding  and  determining 
 the  unresolved  issues  here. 

 17.  The  SHVIA  amended  Section  325  to  provide  that  no  cable  system  or  other  multichannel  video  program  distributor  shall  transmit  the  signal  of  a  broadcasting  station,  or  any  part  thereof,  except:  (A) 
 with  the  express  authority  of  the  originating  station;  (B)  pursuant  to  Section  614,  in  the  case  of  a  station 
 electing  to  assert  the  right  to  carriage  by  a  cable  operator;  36  or  (C)  pursuant  to  Section  338,  in  the  case  of  a 
 station  electing  to  assert  the  right  to  carriage  by  a  satellite  carrier.  37  The  SHVIA  also  amended  Section 
 325(  b)  by  adding  new  paragraph  (3)(  C)(  i),  which  directs  the  Commission  to  adopt  regulations  which  shall 
 establish  election  time  periods  that  correspond  with  those  regulations  adopted  under  subparagraph  (B)  of 
 this  paragraph.  38 

 33  See  Implementation  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999  Retransmission  Consent  Issues 
 Notice  of  Proposed  Rulemaking,  14  FCC  Rcd  21736  (1999);  First  Report  and  Order,  15  FCC  Rcd  5445  (2000). 
 34  Retransmission  Consent  Notice,  14  FCC  Rcd  at  21741-  42. 

 35  Notice,  15  FCC  Rcd  at  12152-  53. 
 36  47  U.  S.  C.  325(  b)(  1)(  B). 
 37  47  U.  S.  C.  325(  b)(  1)(  C). 
 38  47  U.  S.  C.  325(  b)(  3)(  C).  Subparagraph  (B)  of  existing  Section  325(  b)(  3)  provides  that:  the  regulations  required  by 
 subparagraph  (A)  shall  require  that  television  stations,  within  one  year  after  the  date  of  enactment  of  the  Cable 
 Television  Consumer  Protection  and  Competition  Act  of  1992  and  every  three  years  thereafter,  make  an  election 
 (continued) 
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 18.  Section  325(  b)(  3)(  C)(  i)  instructs  the  Commission  to  establish  regulations  and  procedures  governing  the  election  process  for  retransmission  consent  and  mandatory  carriage  that  correspond,  as 
 much  as  possible,  with  existing  Section  325(  b)(  3)(  B)  of  the  Act.  We  find  that  the  length  of  the  first 
 election  cycle  shall  be  for  a  four-  year  period  commencing  on  January  1,  2002  and  ending  December  31, 
 2005.  We  believe  that  a  four-  year  timeframe  is  necessary  to  align  the  election  cycles  among  satellite 
 carriers  and  cable  operators  so  that  local  television  stations  would  be  making  retransmission 
 consent/  mandatory  carriage  elections  for  cable  and  for  satellite  on  the  same  cycle.  39  This  conclusion  is 
 also  consistent  with  many  commenters  that  advocated  a  synchronized  cycle. 

 19.  ALTV,  for  example,  proposed  an  alternative  that  would  ultimately  synchronize  the  cable  and  satellite  cycles,  but  by  beginning  with  a  one-  year  cycle,  followed  by  a  three  year  cycle.  40  We  find 
 that  a  four-  year  cycle  is  less  burdensome  for  both  broadcasters  and  satellite  carriers.  We  note  that  certain 
 broadcast  interests  argue  against  parallel  election  cycles  because  it  would  be  overly  burdensome  to 
 simultaneously  negotiate  carriage  among  cable  operators  and  satellite  carriers.  41  We  do  not  believe  that 
 the  need  to  negotiate  with  the  limited  number  of  satellite  carriers  will  place  an  undue  burden  on 
 broadcasters.  We  also  believe  that  simultaneous  election  cycles  most  effectively  equalizes  the  obligation 
 for  satellite  carriers  and  cable  operators  negotiating  retransmission  consent. 

 20.  Echostar  and  DirecTV  also  favor  synchronizing  the  cable  and  satellite  cycles  but  note  that  regulations  developed  for  the  cable  industry  would  not  sufficiently  take  into  account  the  distinctive 
 aspects  of  retransmission  consent/  mandatory  carriage  elections  for  the  satellite  industry.  42  EchoStar  urges 
 the  Commission  to  give  satellite  carriers  at  least  six  months  between  new  retransmission  consent/  carriage 
 election  dates  and  their  respective  effective  dates.  43  We  agree  that  a  satellite  carrier  needs  ample  time  to 
 commence  carriage  prior  to  the  first  election  cycle  because  of  the  logistics  of  adding  hundreds  of  local 
 television  stations  to  its  channel  line-  up.  We  therefore  provide  satellite  carriers  with  six  months,  from 

 (.  continued  from  previous  page) 
 between  the  right  to  grant  retransmission  consent  under  this  subsection  and  the  right  to  signal  carriage  under  section 
 614.  If  there  is  more  than  one  cable  system  that  serves  the  same  geographic  area,  a  stations  election  shall  apply  to  all 
 such  cable  systems.  47  U.  S.  C.    325(  b)(  3)(  B).  The  regulations  are  codified  in  Section  76.  64  of  the  Commissions 
 rules.  See  47  C.  F.  R.    76.  64(  f)(  l). 

 39  For  example,  the  next  cable  election  must  be  made  by  October  1,  2002  and  will  take  effect  on  January  1,  2003. 
 The  subsequent  cable  election  must  be  made  by  October  1,  2005,  to  take  effect  on  January  1,  2006,  which  will  allow 
 for  synchronization  between  cable  operators  and  satellite  carriers  on  this  particular  date. 

 40  ALTV  Retransmission  Consent  Comments  at  3.  NAB  agrees  that  an  election  procedure  similar  to  that  applicable 
 in  the  cable  context  should  be  adopted.  NAB  Comments  at  3.  Other  broadcasters  agree  that  the  first  election  cycle 
 should  commence  on  January  1,  2002  but  offer  differing  views  on  the  length  of  the  initial  election  period.  See 
 Network  Affiliates  Retransmission  Consent  Reply  Comments  at  5-  6;  Network  Affiliates  Comments  at  4;  ALTV 
 Comments  at  38. 

 41  Network  Affiliates  Retransmission  Consent  Reply  Comments  at  3-  5.  See  also  LTVS  Retransmission  Consent 
 Comments  at  2. 
 42  EchoStar  Retransmission  Consent  Reply  Comments  at  2-  4;  DirecTV  Retransmission  Consent  Comments  at  2. 

 43  EchoStar  Retransmission  Consent  Reply  Comments  at  2;  DirecTV  Retransmission  Consent  Comments  at  2. 
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 July  1,  2001  to  December  31,  2001,  to  complete  the  carriage  process.  44  The  election  cycle  and 
 notification  timeframes  established  for  the  first  cycle,  as  described  more  fully  below,  are  designed  to 
 accommodate  the  initial  implementation  of  Section  338.  After  satellite  carriers  commence  carriage  on 
 January  1,  2002,  the  rationales  for  extended  timeframes  no  longer  apply.  Thus,  the  second  election  cycle, 
 and  all  cycles  thereafter,  shall  be  for  a  period  of  three  years  (e.  g.  January  1,  2006  through  December  31, 
 2008). 

 21.  In  terms  of  procedure  and  timing  for  the  second  election  cycle  and  all  subsequent  cycles,  commercial  television  broadcast  stations  should  make  their  election  by  October  1  st  for  the  election  cycle 
 beginning  the  following  January  1st.  Satellite  carriers  shall  have  90  days  prior  to  the  new  election  cycle, 
 beginning  October  1  st  and  ending  December  31  st  ,  to  negotiate  retransmission  consent  agreements.  These 
 are  the  same  timeframes  as  those  established  under  the  cable  election  rules.  45  If  a  satellite  carrier  begins 
 providing  local-  into-  local  service  in  a  new  market  during  an  election  cycle,  the  carrier  and  the  commercial 
 television  stations  in  that  market  have  90  days  to  complete  their  retransmission  consent  discussions.  In 
 this  situation,  the  election  cycle  starts  at  the  date  a  satellite  carrier  begins  local-  into-  local  service  and  ends 
 on  the  date  the  cycle  ends  under  our  rules. 

 22.  Under  the  SHVIA,  satellite  carriers  taking  advantage  of  the  compulsory  copyright  license  for  local  signals  are  required  to  carry  television  broadcast  stations  upon  request.  46  We  note  that  cable 
 carriage  under  the  Act  is  an  immediate  right  that  vests  without  request.  That  is  why  we  initially  adopted  a 
 default  rule  in  the  cable  context.  47  We  find,  however,  that  there  can  be  no  default  mandatory  carriage 
 requirement  under  Section  338  because  a  commercial  television  station  must  expressly  request  carriage. 
 Rather,  if  a  commercial  television  station  does  not  make  an  election,  it  defaults  to  retransmission  consent. 
 In  this  context,  we  also  recognize  that  carriers  need  some  measure  of  control  in  configuring  their  satellite 
 systems  to  meet  their  statutory  obligations.  Therefore,  if  an  existing  television  station  fails  to  request 
 carriage  by  the  established  deadlines,  it  is  not  entitled  to  mandatory  carriage  under  338  for  the  duration  of 
 the  election  cycle.  This  policy  does  not  apply  to  new  television  stations  to  which  different  substantive  and 
 procedural  rules  apply. 

 23.  Consistent  Retransmission  Consent/  Carriage  Elections.  Section  76.64(  g)  requires  that  broadcasters  make  consistent  retransmission  consent/  must  carry  elections  between  cable  operators  where 
 franchise  areas  of  cable  systems  overlap.  48  While  the  SHVIA  does  not  expressly  require  such  action  in 
 the  satellite  context,  in  the  Retransmission  Consent  Notice  we  requested  comments  on  whether 
 broadcasters  should  be  subject  to  a  consistent  election  requirement  between  satellite  carrier  and  cable 
 operators.  49  Broadcast  industry  commenters  argue  that  the  SHVIA  does  not  require  Commission 

 44  See  the  Initiating  Carriage  sub-  section,  infra. 
 45  See  47  C.  F.  R.  76.  64. 
 46  47  U.  S.  C.  338(  a)(  1). 
 47  Must  Carry  Order,  8  FCC  Rcd  at  3002. 
 48  47  C.  F.  R.    76.  64(  g);  47  U.  S.  C.    325(  b)(  3)(  requiring  that  if  there  is  more  than  one  cable  system  that  serves  the 
 same  geographic  area,  a  stations  election  shall  apply  to  all  such  cable  systems). 
 49  Retransmission  Consent  Notice,  14  FCC  Rcd  at  21741-  42. 
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 expansion  of  the  consistent  election  requirements  to  satellite  carriers  as  well  as  cable  systems.  50  DirecTV, 
 on  the  other  hand,  argues  that  a  consistent  election  rule  should  be  adopted  to  prevent  broadcasters  from 
 unfairly  disadvantaging  one  MVPD  competitor  over  another.  51  We  find  that  Section  325,  amended  by  the 
 SHVIA,  makes  no  reference  to  expanding  the  consistent  election  requirement  to  the  satellite  context, 
 notwithstanding  the  fact  that  the  obligation  was  imposed  in  the  cable  context.  Absent  express  statutory 
 language  to  the  contrary,  we  believe  that  a  consistent  election  requirement  between  a  cable  operator  and  a 
 satellite  carrier  should  not  be  imposed. 

 24.  While  the  absence  of  statutory  language  guides  our  determination,  we  also  note  that  the  service  area  differences  between  satellite  carriers  and  cable  operators  also  counsels  against  implementing 
 such  a  rule.  Television  broadcast  stations  elect  retransmission  consent  or  mandatory  carriage  on  a 
 system-  by-  system  basis  under  the  cable  carriage  requirements.  There  are  many  cable  systems  in  a 
 television  market.  Sometimes,  a  television  broadcast  station  may  choose  retransmission  consent  on  one 
 cable  system,  but  select  mandatory  carriage  for  a  system  in  an  adjacent  area.  A  satellite  carriers  service 
 area  for  local-  into-  local  purposes,  on  the  other  hand,  encompasses  television  market  areas  that  are 
 substantially  broader  in  scope.  When  a  television  station  is  carried  by  a  satellite  carrier,  it  is  either  a 
 retransmission  consent  station  or  a  mandatory  carriage  station  in  the  local  market  area.  Given  these  facts, 
 it  is  difficult  to  require  consistency  between  the  two  MVPDs  without  also  requiring  a  station  to  make  a 
 uniform  election  for  all  local  market  cable  systems  in  order  to  match  the  election  choice  the  station  made 
 with  regard  to  the  satellite  carrier. 

 2.  Initiating  Carriage 
 25.  In  the  Notice,  we  discussed  the  framework  and  procedural  rules  that  should  be  established  for  implementing  Section  338.  52  We  sought  comment  regarding  the  meaning  of  the  phrase  carry  upon 
 request  and  noted  that  in  the  cable  context,  the  Commission  initially  required  the  cable  operator  to 
 contact  all  local  broadcast  television  stations,  in  writing,  on  matters  relating  to  their  carriage  rights.  53  We 
 asked  commenters  whether  we  should  adopt  a  similar  rule  requiring  satellite  carriers  to  notify  all  local 
 broadcasters,  in  writing,  of  their  carriage  rights  once  any  local  station  in  a  particular  market  is  being 
 carried.  54  The  Notice  also  pointed  out  that  broadcast  television  stations  requesting  mandatory  carriage  as 
 part  of  the  election  process  must  make  such  carriage  requests  in  writing.  55  The  Commission  sought 
 comment  on  whether  similar  provisions  should  be  adopted  in  the  satellite  carriage  context.  56 

 50  NAB  Retransmission  Consent  Reply  Comments  at  2-  3;  ALTV  Retransmission  Consent  Comments  at  5-  6; 
 Network  Affiliates  Retransmission  Consent  Comments  at  2;  NAB  Reply  Comments  at  12. 
 51  DirecTV  Retransmission  Consent  Reply  Comments  at  3;  BellSouth  Reply  Comments  at  3. 

 52  Notice,  15  FCC  Rcd  at  12152-  53. 
 53  Id.;  47  C.  F.  R.    76.  58. 
 54  Notice,  15  FCC  Rcd  at  12153. 
 55  Id. 
 56  Id. 
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 26.  ALTV  and  others  assert  that  a  local  television  station  that  elects  mandatory  carriage  under  Section  338  should  be  considered  to  have  requested  carriage  as  well.  ALTV  argues  that  the 
 additional  requirement  of  a  formal  carriage  request  is  unnecessary  where  a  local  television  station  already 
 has  notified  a  satellite  carrier  of  its  choice  between  retransmission  consent  and  mandatory  carriage.  57  We 
 agree  with  ALTV.  An  election  made  by  the  television  broadcast  station  shall  be  treated  as  the  request  for 
 carriage.  The  procedural  policy  we  adopt  here  is  necessary  to  reduce  the  paperwork  lag  time  that  would 
 impede  satellite  carriers  from  complying  with  its  Section  338  obligations  by  January  1,  2002. 

 27.  Commenters  propose  different  approaches  to  the  carriage  obligations  of  satellite  carriers  and  the  responsibilities  of  television  broadcast  stations  when  local-  into-  local  service  is  provided  in  a 
 television  market.  Broadcasters  generally  argue  that  because  a  satellite  carriers  carriage  obligations  are 
 triggered  only  when  the  carrier  decides  to  avail  itself  of  the  local-  into-  local  statutory  copyright  license,  it 
 is  appropriate  for  the  carrier  to  notify  local  stations,  in  writing,  if  it  decides  to  rely  on  such  a  license.  58 
 NAB  asserts  that  imposing  an  affirmative  notification  requirement  on  satellite  carriers  will  help  prevent 
 disputes  about  whether  parties  understood  the  others  intentions.  59  Conversely,  DirecTV  asserts  that 
 Section  338  places  an  affirmative  burden  on  television  broadcast  stations  to  request  carriage  on  the 
 satellite  carriers  system.  EchoStar  similarly  contends  that  broadcasters  should  be  required  to  contact 
 satellite  carriers  in  the  first  instance,  in  writing,  to  request  mandatory  carriage  because  broadcasters  have 
 actual  notice  of  the  satellite  carriers  providing  local-  into-  local  service  in  their  market.  60 

 28.  We  find  that  television  stations  have  the  burden  of  initiating  satellite  carriage.  DirecTV  and  Echostar  are  the  only  satellite  carriers  currently  operating  and  providing  local-  into-  local  service.  It  is 
 reasonable  to  conclude  that  a  television  station  has  actual  notice  of  the  local  presence  of  these  carriers 
 since  satellite  subscribers  already  have  access  to  certain  local  television  stations  and  a  satellite  carriers 
 programming  activities  are  well  publicized.  61 

 29.  We  also  find  that  a  television  broadcast  station  must  notify  a  satellite  carrier,  by  July  1,  2001,  of  its  carriage  intentions  if  it  is  located  in  a  market  where  local-  into-  local  service  is  provided. 

 57  ALTV  Comments  at  37. 
 58  Network  Affiliates  Comments  at  5-  6;  NAB  Comments  at  2;  ALTV  Comments  at  40;  CTN  Comments  at  3;  LTVS 
 Comments  at  6-  7;  and  AAPTS  Comments  at  11. 
 59  NAB  Comments  at  2. 

 60  Echostar  Comments  at  12. 
 61  See  http://  www.  dishnetwork.  com/  software/  third_  level_  content/  locals/  index.  asp  (for  Echostar)  and 
 http://  www.  directv.  com/  howtoget/  howtogetpages/  0,1076,224,00.html  (for  DirecTV).  We  note  that  there  are  485  full 
 power  television  stations  (379  commercial  and  106  noncommercial)  in  the  top  35  television  markets  as  ranked  by 
 Nielse  Media  Research.  See  Appendix  J.  These  are  substantially  the  same  markets  where  DirecTV  and  Echostar 
 currently  provide  local-  into-  local  service.  We  note,  however,  that  Echostar  is  not  providing  local-  into-  local  service 
 in:  Market  #24  Baltimore,  Market  #27  Hartford-  New  Haven,  Market  #33  Milwaukee,  and  Market  #34 
 Columbus,  Ohio.  It  is  providing  local-  into-  local  service  in  Market  #36  Salt  Lake  City,  Market  #37  San  Antonio 
 and  Market  #50  Albuquerque-  Santa  Fe.  DirecTV  is  not  providing  local-  into-  local  service  in:  Market  #27 
 Hartford-  New  Haven.  It  is  providing  local-  into-  local  service  in  Market  #36  Salt  Lake  City,  Market  #37  San 
 Antonio,  Market  #39  Birmingham  (Anniston,  Tuscaloosa),  Market  #40  Memphis,  TN,  and  Market  #47-  - 
 Greensboro-  High  Point-  W.  Salem.  It  plans  to  provide  local-  into-  local  service  in  Market  #34  Columbus,  Ohio, 
 Market  #43  West  Palm  Beach-  Ft.  Pierce,  and  Market  #58  Austin. 
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 Commercial  television  stations  are  required  to  choose  between  retransmission  consent  and  mandatory 
 carriage  on  this  date.  NCE  stations  must  simply  request  carriage.  We  believe  that  a  six  month  timeframe 
 provides  satellite  carriers  with  sufficient  time  to  plan  for  receive  facility  accommodations  and  channel 
 line-  up  changes  before  January  1,  2002.  To  facilitate  the  carriage  process,  we  also  find  that  a  satellite 
 carrier  must  respond  to  a  television  stations  carriage  request  by  August  1,  2001,  and  state  whether  it 
 accepts  or  denies  the  carriage  request.  If  the  satellite  carrier  denies  the  request,  it  must  state  the  reasons 
 why.  In  this  context,  some  valid  reasons  for  not  commencing  carriage  of  a  television  station  are:  (1)  poor 
 quality  television  signal;  (2)  substantial  duplication;  (3)  non-  local  station  requesting  carriage;  and  (4)  the 
 satellite  carrier  is  offering  local-  into-  local  service  via  private  copyright  agreements.  If  the  television 
 stations  request  for  carriage  is  rejected,  it  may  file  a  complaint  pursuant  to  the  rules  established  in  the 
 Remedies  section,  below. 

 30.  With  regard  to  the  notification  procedure,  the  request  made  by  the  television  station  must  be  in  writing  and  sent  to  the  satellite  carriers  principal  place  of  business,  as  listed  on  the  carriers  website 
 or  official  correspondence.  The  notification  must  be  sent  by  certified  mail,  return  receipt  requested.  A 
 stations  written  notification  should  include  the  name  of  the  appropriate  station  contact  person  as  well  as 
 the  stations:  (i)  call  sign;  (ii)  address  for  purposes  of  receiving  official  correspondence;  (iii)  community 
 of  license;  (iv)  DMA  assignment  and  (v)  affirmative  carriage  election.  These  notification  elements  are 
 necessary  to  ensure  that  a  satellite  carrier  has  the  base  information  it  needs  to  commence  the  carriage  of 
 local  television  stations. 

 31.  New  Local-  Into-  Local  Service.  In  the  Notice,  we  requested  comment  on  whether  separate  procedures  should  be  established  for  new  satellite  carriers  and  whether  such  rules  should  be 
 similar  to  those  established  for  cable  carriage.  62  Broadcast  commenters  favor  notification  requirements  for 
 new  market  entrants.  63  While  generally  objecting  to  a  notification  burden  being  placed  on  satellite 
 carriers,  DirecTV  submits  that  if  one  is  adopted,  the  requirement  should  only  apply  to  markets  in  which  a 
 satellite  carrier  commences  service  after  January  1,  2002.  64  We  find  that  a  new  satellite  carrier  must  notify 
 all  local  television  stations  in  a  given  market  when  it  plans  to  provide  local  service.  Similarly,  an  existing 
 satellite  carrier  must  provide  notice  when  it  provides  local-  into-  local  service  in  a  new  market.  We  note 
 that  requiring  carriers  to  provide  notice  in  these  circumstances  is  less  burdensome  because  there  are  far 
 fewer  television  stations  to  contend  with,  at  the  same  time,  than  in  markets  with  existing  local-  into-  local 
 service.  We  also  believe  that  advance  notice  in  these  situations  ensures  a  level  competitive  playing  field 
 in  two  respects:  (1)  all  local  television  stations  will  know,  at  the  same  time,  when  local-  into-  local  service 
 will  be  provided  in  a  market  and  (2)  all  local  television  stations  will  be  able  to  exercise  their  carriage 
 rights  at  the  same  time.  65 

 32.  We  therefore  adopt  procedural  provisions  that  substantially  replicate  the  existing  requirements  for  new  cable  systems  under  Section  76.64.  However,  we  craft  the  rules  in  a  slightly 
 different  manner  recognizing  that  satellite  carriers  provide  a  national  service.  The  carriage  procedures 
 also  provide  carriers  with  adequate  preparation  time  while  not  unduly  delaying  the  provision  of  full  local- 

 62  Notice,  15  FCC  Rcd  at  12153. 

 63  NAB  Comments  at  2;  ALTV  Comments  at  41. 
 64  DirecTV  Comments  at  11. 
 65  We  note  that  this  result  would  have  an  adverse  economic  impact  on  smaller  television  stations  in  the  market  that 
 are  competing  against  larger  stations  for  satellite  subscriber  viewership  and  advertising  revenue. 
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 into-  local  service  in  a  market.  We  adopt  the  following  guidelines  for  both  new  satellite  carriers  and 
 carriers  that  offer  new  local-  into-  local  service  for  the  first  time  on  or  after  July  1,  2001.  First,  satellite 
 carriers  shall  notify  local  television  stations,  in  writing,  at  least  60  days  before  the  date  it  intends  to 
 provide  new  satellite  service  or  intends  to  enter  into  a  new  market.  At  the  same  time,  the  satellite  carrier 
 should  provide  the  location  of  the  local  receive  facility  in  that  particular  market.  66  A  local  television 
 station  then  must  provide  its  election,  in  writing,  no  more  than  30  days  after  receipt  of  the  satellite 
 carriers  notice.  67  If  a  satellite  carrier  finds  that  the  television  station  meets  the  criteria  for  carriage  under 
 Section  338  and  our  rules,  it  shall  then  have  90  days  after  the  election  letter  was  received  to  negotiate 
 carriage,  resolve  local  receive  facility  issues,  reconfigure  its  system  and  channel  line-  up,  notify 
 subscribers  of  the  change  in  service,  and  commence  carriage  of  the  local  television  station.  68  If  the 
 satellite  carrier  finds  that  the  station  is  not  qualified  for  carriage  for  any  of  the  reasons  stated  above,  it 
 shall  notify  the  local  station  in  writing  of  the  reason  for  such  refusal  within  30  days  of  the  receipt  of  the 
 stations  election.  The  television  station  may  either  accept  the  satellite  carriers  conclusion  or  file  a 
 carriage  complaint. 

 33.  New  Television  Stations.  Section  338  requires  carriage  of  all  local  stations  in  local  markets  regardless  of  when  such  stations  begin  broadcasting.  Given  this  statutory  directive,  we  find  that 
 new  television  broadcast  stations  licensed  and  providing  over-  the-  air  service  have  carriage  rights  under 
 the  SHVIA.  69  Those  stations  licensed  to  provide  over-  the-  air  service  for  the  first  time  on  or  after  July  1, 
 2001  will  be  considered  new  television  broadcast  stations  for  satellite  carriage  purposes.  We  believe  it 
 appropriate  to  require  a  new  television  station  to  make  its  initial  election  between  60  days  before 
 commencing  broadcast  and  30  days  after  commencing  broadcast.  This  requirement  is  similar  to  the  cable 
 rules  regarding  new  television  stations.  70  If  the  station  meets  all  of  the  requirements  under  Section  338 
 and  our  rules,  the  satellite  carriers  shall  commence  carriage  within  90  days  of  receiving  a  carriage  request 
 from  the  television  broadcast  station  or  whenever  the  new  television  station  provides  over-  the-  air 
 service.  71  If  the  satellite  carrier  believes  that  the  station  is  not  qualified,  it  must  notify  the  station  of  such 
 a  determination  with  30  days  of  receiving  the  election  notice.  An  aggrieved  television  station  may  then 
 file  a  complaint  for  non-  carriage  in  the  appropriate  forum  under  the  guidelines  established  in  Section  338. 

 66  We  note  that  a  satellite  carriers  notice  of  intent  should  be  viewed  as  conditional  in  nature  as  it  may  decide  not  to 
 enter  into  a  market  based  on  costs  or  other  considerations.  However,  once  it  begins  providing  local-  into-  local  service 
 by  offering  any  local  television  station  to  its  subscribers,  not  carried  under  a  private  copyright  arrangement,  it  must 
 fulfill  its  carriage  obligations  under  Section  338. 

 67  A  television  stations  notification  letter  should  contain  the  same  elements  enumerated  in  paragraph  30,  above. 

 68  See  Appendix  B. 
 69  Our  finding  here  applies  to  new  analog  television  station  licensees.  The  rights  of  digital  television  stations  will  be 
 decided  at  a  later  time  in  a  separate  proceeding. 
 70  See  47  C.  F.  R.  76.64(  f). 

 71  We  note  that  the  same  rationales  for  giving  a  satellite  carrier  90  days  to  commence  carriage  in  paragraph  32  above, 
 apply  in  this  circumstance. 
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 C.  Market  Definitions 
 34.  Section  338(  h)(  3)  defines  the  term,  local  market,  as  having  the  meaning  it  has  under  Section  122(  j)  of  title  17,  United  States  Code.  72  Section  122(  j)(  2)(  A)  defines  the  term,  local  market,  in 
 the  case  of  both  commercial  and  noncommercial  television  broadcast  stations,  to  mean  the  designated 
 market  area  in  which  a  station  is  located,  and-(  i)  in  the  case  of  a  commercial  television  broadcast  station, 
 all  commercial  television  broadcast  stations  licensed  to  a  community  within  the  same  designated  market 
 area  are  within  the  same  local  market;  and  (ii)  in  the  case  of  a  noncommercial  educational  television 
 broadcast  station,  the  market  includes  any  station  that  is  licensed  to  a  community  within  the  same 
 designated  market  area  as  the  noncommercial  educational  television  broadcast  station.  73  In  addition  to 
 the  area  described  in  subparagraph  (A),  a  stations  local  market  includes  the  county  in  which  the  stations 
 community  of  license  is  located.  74  Section  122(  j)(  2)(  C)  defines  the  term,  designated  market  area  to  mean 
 the  market  area,  as  determined  by  Nielsen  Media  Research  and  published  in  the  1999-  2000  Nielsen 
 Station  Index  Directory  and  Nielsen  Station  Index  United  States  Television  Household  Estimates  or  any 
 successor  publication.  75 

 35.  We  did  not  receive  comments  interpreting  these  provisions.  DirecTV,  however,  did  suggest  that  the  Commission  adopt  a  rule  expressly  allowing  satellite  carriers,  at  their  discretion,  to  limit  a 
 television  stations  carriage  coverage  area  to  its  predicted  Grade  B  service  contour  within  its  DMA.  76 
 ALTV  and  NAB  respond  that  DirecTVs  proposal  is  antithetical  to  the  language  and  purpose  of  the 
 SHVIA.  77  NAB  asserts  that  the  geographic  scope  of  the  mandatory  carriage  obligation  is  precisely  the 
 same  as  the  scope  of  the  compulsory  license  granted  by  Congress  --  namely,  the  local  market,  which 
 generally  means  the  DMA.  78 

 36.  We  find  that  the  term  local  market,  as  it  is  used  for  satellite  carriage  purposes,  includes  all  counties  within  a  market,  as  well  as  the  home  county  of  the  television  station  if  that  county  is  not 
 physically  located  in  the  DMA.  We  believe  that  the  satellite  compulsory  license  includes  not  only 
 television  stations  licensed  to  a  local  market,  but  also  extends  to  stations  licensed  in  one  market  but 
 assigned  79  by  Nielsen  to  another  market.  For  example,  a  television  station  licensed  to  a  community  in 

 72  47  U.  S.  C.  338(  h)(  3). 
 73  17  U.  S.  C.  122(  j)(  2)(  A). 
 74  17  U.  S.  C.  122(  j)(  2)(  B). 
 75  17  U.  S.  C.  122(  j)(  2)(  C). 
 76  DirecTV  Comments  at  23  (Section  122(  j)(  2)  does  not  specify  that  a  broadcasters  carriage  rights  extend 
 throughout  the  DMA  in  which  the  broadcaster  is  located.) 
 77  ALTV  Reply  Comments  at  19;  NAB  Reply  Comments  at  14. 

 78  Id. 
 79  Nielsen  has  established  a  system  to  determine  which  stations  are  considered  local  for  ratings  reporting  purposes. 
 This  is  the  market-  of-  origin  assignment  process  and  involves  several  statistical  calculations  based  upon 
 viewership  and  other  factors.  A  television  station  is  generally  designated  as  local  in  the  DMA  in  which  its 
 community  of  license  is  located.  See  1997-  1998  NSI  Reference  Supplement  at  47.  However,  a  station  may  petition 
 Nielsen  to  change  its  market-  of-  origin  assignment  if  both  its  transmitter  and  the  majority  of  its  Grade  B  service 
 contour  are  located  in  a  different  DMA  than  the  DMA  in  which  the  stations  community  of  license  is  located.  Such 
 (continued) 
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 Jefferson  County,  Missouri,  which  is  in  the  Paducah  DMA,  but  assigned  by  Nielsen  to  the  St.  Louis 
 DMA,  would  be  considered  within  the  St.  Louis  market  under  Section  338.  In  this  case,  Jefferson  County 
 is  the  home  county,  and  such  a  county  should  be  treated  as  part  of  the  St.  Louis  DMA  for  satellite  carriage 
 purposes.  Moreover,  since  this  station  is  licensed  to  a  community  in  the  Paducah  market,  it  may  assert  its 
 carriage  rights  in  that  market  as  well,  if  satellite  carriers  decide  to  provide  local-  into-  local  service  there.  If 
 there  happens  to  be  another  television  station  licensed  to  a  community  in  Jefferson  County,  that  station 
 will  also  be  considered  in  the  St.  Louis  DMA  and  eligible  to  assert  its  right  to  carriage  against  a  satellite 
 carrier.  In  addition,  if  a  station  is  licensed  to  a  community  that  is  inside  one  DMA,  but  is  assigned  to 
 another  DMA  by  Nielsen,  the  station  could  assert  its  right  to  carriage  in  the  market  where  its  community 
 of  license  is  located.  For  example,  KNTV  is  licensed  to  San  Jose,  CA,  which  is  in  the  San  Francisco 
 DMA,  but  is  assigned  by  Nielsen  to  the  Salinas-  Monterey  DMA.  In  this  case,  KNTV  can  assert  its 
 carriage  rights  in  the  San  Francisco  DMA  because  that  is  where  its  community  of  license  is  located.  These 
 interpretations  are  consistent  with  the  SHVIAs  goals  of  preserving  over-  the-  air  broadcasting  and 
 providing  satellite  subscribers  with  a  full  complement  of  local  station  signals. 

 37.  Timing  of  Revisions  to  Market  Definitions.  We  sought  comment  on  when  to  change  the  reference  to  the  1999-  2000  Nielsen  publications  to  reflect  changes  in  market  structure  and  market 
 conditions.  We  noted,  in  the  cable  context,  that  the  rules  account  for  a  market  update  every  three  years.  80 
 We  asked  whether  the  rules  we  implement  under  this  section  should  be  updated  on  a  triennial  basis  or  at 
 another  interval.  We  also  noted  that  cable  operators  are  required  to  use  the  1997-  98  Nielsen  publications 
 to  determine  local  markets  for  broadcast  signal  carriage  purposes  up  until  January  1,  2003,  81  yet  satellite 
 carriers  are  obliged  to  use  the  1999-  2000  Nielsen  publications  for  carriage  purposes.  We  asked  whether 
 satellite  carriers  and  cable  operators  should  be  required  to  use  the  same  annual  Nielsen  market 
 publications  so  that  both  may  rely  on  the  same  market  definition. 

 38.  Our  goals  here  are  threefold.  We  intend  to:  (1)  implement  the  language  of  Section  338;  (2)  establish  comparable  timelines  and  requirements  for  satellite  carriers  and  cable  operators;  and  (3) 
 reduce  procedural  and  administrative  burdens.  BellSouth  argues  for  an  extended  period  between  updates 
 to  allow  for  satellite  carriers  difficulties  in  accessing  and  tuning  the  satellite  equipment  used  to  transport 
 television  signals.  82  ALTV  and  NCTA  argue  that  the  Commission  should  adopt  rules  allowing  for  the  use 
 of  the  same  Nielsen  data  by  cable  systems  and  satellite  carriers  as  quickly  as  practicable.  83  NAB  asserts 

 (.  continued  from  previous  page) 
 a  petition  must  include  relevant  information  on  which  the  petitioning  station  bases  its  request  for  a  change  in 
 market-  of-  origin  including,  but  not  limited  to:  (1)  community  of  license;  (2)  present  transmitter  location;  (3)  signal 
 coverage  (including  FCC  coverage  maps),  audience  data  from  previous  measurements,  and/  or  competitive 
 considerations.  Nielsen  reserves  the  right  to  use  its  best  judgement  based  upon  the  information  available  to  it  in 
 considering  whether  the  change  sought  by  the  petition  reflects  the  reality  of  the  market  affected.  The  stations 
 assignment  is  then  made  available  in  Nielsens  Directory  of  Stations  publication.  See  Definitions  of  Markets  for  Purposes  of  the  Cable  Television  Broadcast  Signal  Carriage  Rules, 
 14  FCC  Rcd  8366  (1999). 

 80  Notice,  15  FCC  Rcd  at  12155;  47  C.  F.  R.  76.  55(  e)(  2). 

 81  Notice,  15  FCC  Rcd  at  12155.  47  C.  F.  R.  76.55(  e)(  2)(  i). 
 82  BellSouth  Comments  at  13  (Commission  has  the  discretion  to  choose  the  Nielsen  1999-  2000  DMA  definition  or 
 any  subsequently  published  definition). 
 83  ALTV  Comments  at  44;  NCTA  Comments  at  5. 
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 that  the  1999-  2000  lists  are  the  correct  ones  for  the  Commission  to  use  to  determine  markets  for  the  first 
 election  cycle  commencing  in  January  1,  2002.  84 

 39.  We  will  require  satellite  carriers  to  use  Nielsens  1999-  2000  DMA  market  assignments  to  initially  determine  their  carriage  obligations.  Satellite  carriers  and  television  broadcast  stations  have  been 
 on  notice  since  November  29,  1999,  that  the  1999-  2000  Nielsen  publications  will  be  used  for  Section  338 
 purposes.  To  avoid  overburdening  satellite  carriers,  we  will  not  require  market  boundaries  to  be  updated 
 on  an  annual  basis.  However,  we  do  believe  that  television  markets  should  be  updated  triennially,  for  each 
 election  cycle,  to  better  reflect  new  market  conditions  and  viewership  patterns.  85  Satellite  carriers  may, 
 nevertheless,  voluntarily  adjust  markets  based  upon  county  additions  found  in  annual  editions  of  Nielsen 
 DMA  market  assignment  publications.  On  this  point,  we  agree  with  DirecTV  when  it  states  that  Section 
 122(  j)(  2)  allows  a  local  market  originally  defined  in  the  1999-  2000  Nielsen  market  assignment  to  be 
 expanded  in  accordance  with  later  issues  of  the  relevant  Nielsen  publications.  86  Satellite  carriers  may  add 
 counties  to  the  markets  in  which  they  now  provide  local-  into-  local  service  by  referring  to  the  Nielsen 
 2000-  2001  DMA  market  assignments  and  future  assignments.  By  adopting  this  approach,  a  satellite 
 carrier  is  able  to  serve  new  communities  on  the  basis  of  each  yearly  Nielsen  DMA  market  change,  if  that 
 is  what  is  desirable  87  Counties  that  are  removed  from  a  market  in  subsequent  Nielsen  publications  should 
 remain  in  the  market  for  satellite  carriage  purposes  so  that  satellite  subscribers  will  not  lose  local-  into-local 
 service.  88  This  policy  fulfills  the  SHVIAs  goal  of  furthering  the  availability  of  local-  into-  local 
 service  and  providing  effective  competition  to  incumbent  cable  systems. 

 40.  Market  Modifications.  In  the  Notice,  we  pointed  out  that  a  statutory  device  exists  to  expand  or  contract  the  size  of  a  local  television  market  for  cable  carriage  purposes  and  sought  opinion  on 
 whether  the  Commission  has  the  authority  to  implement  a  market  modification  mechanism  for  satellite 
 carriage  purposes.  89  Certain  broadcast  commenters  assert  that  implementing  a  market  modification 
 mechanism  is  necessary  to  promote  Congress  goal  of  protecting  free  television  service,  placing  satellite 

 84  NAB  Comments  at  4-  5. 
 85  For  the  second  retransmission  consent/  mandatory  carriage  election  commencing  on  January  1,  2006,  for  which 
 elections  must  be  made  by  October  1,  2005,  the  Nielsen  publications  from  2003-  2004  should  be  used.  This 
 requirement  is  consistent  with  the  market  update  rule  developed  for  cable  carriage  purposes.  See  47  C.  F.  R. 
 76.55(  e)(  2)(  ii). 

 86  DirecTV  Comments  at  15. 

 87  Id.  at  18. 
 88  We  note  that  this  approach  is  intended  to  ensure  that  if  Nielsen  moved  a  county  out  of  a  DMA  in  which  there  is 
 satellite  local-  into-  local  service  into  a  DMA  in  which  there  is  no  satellite  local-  into-  local  service,  the  satellite 
 subscribers  in  that  county  will  not  lose  access  to  local  stations  via  satellite.  If  Nielsen  moves  a  county  from  one 
 DMA  that  has  local-  into-  local  satellite  service,  a  satellite  carrier  may  consider  the  county  to  be  in  both  DMAs  and 
 provide  local-  into-  local  service  from  both  DMAs  to  subscribers  in  that  county. 

 89  Notice,  15  FCC  Rcd  at  12155.  Pursuant  to  Section  614(  h)(  1)(  C),  at  the  request  of  either  a  broadcaster  or  a  cable 
 operator,  the  Commission  may,  with  respect  to  a  particular  commercial  television  broadcast  station,  include 
 additional  communities  within  its  television  market  or  exclude  communities  from  such  station's  television  market. 
 The  Commission's  inclusion  of  additional  communities  within  a  station's  market  imposes  new  carriage  requirements 
 on  cable  operators  subject  to  the  modification  request,  while  the  grant  to  exclude  communities  from  a  station's 
 market  relieves  a  cable  operator  from  its  obligation  to  carry  a  certain  station's  television  signal. 
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 and  cable  on  equal  terms,  and  preserve  localism  by  ensuring  that  satellite  carriage  markets  actually  reflect 
 what  is  truly  local.  90  However,  BellSouth  and  DirecTV  state  that  the  Commission  has  no  authority  to  add 
 communities  to  a  broadcasters  television  market.  They  believe  that  Section  122(  j)  limits  a  stations 
 satellite  carriage  rights  to  the  DMA  that  includes  its  community  of  license.  91  DirecTV  argues,  however, 
 that  the  Commission  can  and  should  adopt  market  modification  procedures  that  allow  a  satellite  carrier  to 
 remove  a  station  from  the  market  if  it  can  demonstrate  that  the  station  does  not  serve  the  relevant 
 market.  92  Paxson,  in  contrast,  argues  that  had  Congress  intended  to  grant  the  Commission  market 
 modification  authority,  it  would  have  explicitly  done  so  in  the  statute  just  as  it  did  in  the  cable  context.  93 

 41.  We  find  that  the  Act  does  not  permit  the  Commission  to  change  the  shape  of  a  television  market.  While  we  recognize  the  concerns  raised  above,  we  note  that  the  satellite  compulsory  license  is 
 coterminous  with  the  market  in  which  the  satellite  carrier  provides  local-  into-  local  service.  Without 
 express  language  in  the  Copyright  Act  or  the  Communications  Act,  any  attempt  to  establish  a  market 
 addition  policy  under  our  public  interest  authority  would  be  moot  because  a  satellite  carrier  cannot 
 retransmit  a  local  television  station  under  Section  338  into  another  market  without  subjecting  itself  to 
 copyright  liability  under  Section  122  of  the  Copyright  Act.  In  addition,  there  is  no  explicit  provision 
 providing  the  Commission  with  the  authority  to  modify  markets  in  the  manner  permitted  under  Section 
 614(  h).  Therefore,  we  cannot  establish  a  market  modification  policy  on  our  own  motion.  We  note  that  the 
 Senate  version  of  the  SHVIA  had,  at  one  point  in  time,  a  market  modification  provision.  94  This  subsection 
 was  not  adopted  by  Congress.  Thus,  any  attempt  by  the  Commission  to  implement  a  market  modification 
 regime  would  run  counter  to  the  express  intent  of  Congress. 

 42.  Coverage.  Satellite  carriers  are  currently  developing  spot  beam  technology  where  programming  can  be  delivered  to  a  discrete  geographical  location  using  a  specialized  satellite.  95  Spot 
 beam  satellites  have  the  potential  to  increase  satellite  system  channel  capacity  through  the  re-  use  of 
 transponders.  96  DirecTV  argues  that  satellite  carriers  should  be  permitted  to  use  spot  beams,  when  they 
 are  in  operation,  for  local-  into-  local  service  even  if  the  beam  does  not  cover  the  entire  market.  97  We  will 

 90  WFMD  Comments  at  5;  KNTV  Comments  at  7;  and  WDBJ  Comments  at  1. 

 91  BellSouth  Comments  at  12;  DirecTV  Comments  at  15. 
 92  DirecTV  Comments  at  21. 
 93  Paxson  Comments  at  7. 

 94  See  Senate  amendments  to  H.  R.  1554  (May  20,  1999)(  Section  338.  Carriage  of  Local  Television  Stations  by 
 Satellite  Carrier.  .  .  .The  mandatory  carriage  provisions  of  section  614  and  615  of  this  Act  will  apply  in  a  local 
 market  no  later  than  January  1,  2002,  to  satellite  carriers  retransmitting  any  television  broadcast  station  in  that  local 
 market  pursuant  to  the  compulsory  license  provided  by  section  122  of  title  17,  United  States  Code. 

 95  Id.  The  coverage  area  or  footprint  of  satellite  systems  can  vary:  (1)  global  beam  where  1/  3  of  the  earth  is 
 covered  by  a  satellite;  (2)  regional  beam  where  a  couple  of  continents  are  covered  by  a  satellite;  (3)  CONUS 
 coverage  which  is  the  satellite  footprint  over  the  continental  United  States;  and  (4)  spot  beam  as  described  above. 

 96  In  the  Notice,  we  also  had  questions  concerning  the  phrase  similar  technologies  to  meet  their  carriage 
 obligations  as  it  is  found  in  the  legislative  history  surrounding  material  degradation.  We  asked  what  was  meant  by 
 the  term  similar  technologies.  We  specifically  sought  comment  on  whether  the  phrase  encompasses  satellite  spot 
 beams.  Notice,  15  FCC  Rcd  at  12167. 

 97  DirecTV  Comments  at  23. 
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 permit  carriers  to  use  spot  beam  satellites  in  such  a  manner.  We  first  observe  that  Section  338  does  not 
 require  a  satellite  carrier  to  serve  each  and  every  county  in  a  television  market.  Rather,  it  requires  that  in 
 the  areas  it  does  provide  local-  into-  local  service,  it  must  carry  all  local  television  stations  subject  to 
 carriage  under  the  statute.  In  this  context,  we  recognize  that  there  are  some  markets,  such  as  the  Denver 
 DMA  encompassing  counties  in  four  states,  that  are  geographically  expansive.  A  spot  beam  may  not  be 
 able  to  cover  the  entire  DMA  in  these  instances,  and  to  make  the  satellite  carrier  reconfigure  its  spot  beam 
 may  deprive  it  of  capacity  to  serve  additional  markets  with  local-  into-  local  coverage. 

 D.  Receive  Facilities 
 43.  Section  338(  b)(  1)  states  that,  A  television  broadcast  station  asserting  its  right  to  carriage  under  subsection  (a)  shall  be  required  to  bear  the  costs  associated  with  delivering  a  good  quality  signal  to 
 the  designated  local  receive  facility  of  the  satellite  carrier  or  to  another  facility  that  is  acceptable  to  at 
 least  one-  half  the  stations  asserting  the  right  to  carriage  in  the  local  market.  98  Section  338(  h)(  2),  in  turn, 
 defines  the  term  local  receive  facility  as  the  reception  point  in  each  local  market  which  a  satellite 
 carrier  designates  for  delivery  of  the  signal  of  the  station  for  purposes  of  retransmission.  99  The  Notice 
 sought  comment  on  the  term  local  receive  facility  and  on  the  parameters  under  which  a  satellite  carrier 
 may  construct  and  designate  a  local  receive  facility.  100  We  noted  that  the  statutory  language  could  be  read 
 to  permit  the  satellite  carrier  to  establish  a  regional  receive  facility  that  would  receive  broadcast  signals 
 from  other  markets  provided  50%  of  the  relevant  broadcasters  agreed  to  the  location.  101  We  also  asked 
 questions  concerning  the  procedures  by  which  a  satellite  carrier  must  inform  local  market  television 
 stations  of  the  location  of  the  receive  facility,  and  whether  there  should  be  Commission  procedures  to 
 resolve  a  broadcasters  complaint  if  it  disputes  the  receive  location  selected  by  the  majority  of 
 broadcasters. 

 44.  DirecTV  agreed  with  the  preliminary  statement  in  the  Notice  that  the  most  economically  feasible  means  [of  delivery  of  multiple  local  broadcast  signals]  is  to  aggregate  signals  in  each  local 
 market  at  one  point  and  deliver  them  over  the  facilities  of  an  interstate  telecommunications  carrier  to  the 
 uplink  site(  s)  and  co-  locate  at  such  a  carriers  switching  center.  102  DirecTV  provided  comments 
 detailing  the  process  needed  to  establish  a  local  receive  facility,  a  process  they  have  used  to  create  27 
 local  receive  sites  to  provide  service  to  27  local-  into-  local  markets  served  since  the  SHVIA  was  enacted 
 at  the  end  of  November,  1999.  103  According  to  DirecTV,  the  parameters  for  construction  and  designation 
 of  a  local  receive  facility  include:  1)  access  to  multiple  long  distance  common  carriers  for  DS-  3  or  other 
 high-  speed  digital  fiber  circuits;  2)  access  to  at  least  one  local  common  carrier  that  can  provide  TV1 
 quality  digital  fiber  circuits  to  most,  if  not  all,  television  broadcast  stations  [in  the  DMA],  and/  or  local 
 DS-  3  circuits,  microwave,  and  broadband  analog  service  as  local  conditions  may  require;  3)  access  to 

 98  47  U.  S.  C.  338(  b)(  1). 
 99  47  U.  S.  C.  338(  h)(  2). 
 100  Notice,  15  FCC  Rcd  at  12157. 
 101  Id.  For  example,  a  regional  receive  facility  could  serve  stations  throughout  New  England,  which  is  comprised  of 
 several  DMAs. 
 102  See  DirecTV  Comments  at  25  and  Notice,  15  FCC  Rcd  at  12157.  See  also  Echostar  Comments  at  13-  14. 

 103  DirecTV  Comments  at  25-  26. 
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 multiple  long  distance  carriers  that  can  provide  a  wide  area  data  network  up  to  256kb/  s  as  well  as  dial  up 
 voice  service  must  also  be  available;  4)  access  to  building  rooftop  with  connecting  conduits  to  support, 
 where  needed,  good  quality  over-  the-  air  television  reception,  microwave  links,  and  satellite  reception;  5) 
 access  to  a  suitable  area  with  connecting  conduits  to  support  a  satellite  downlink  antenna;  and  6)  access  to 
 a  suitable  area  to  install  equipment  to  support  all  local  collection,  compression,  monitoring,  and 
 transmission  equipment.  This  area  must  be  securable  against  unauthorized  access  and  have  stable  power 
 source  and  HVAC.  DirecTV  also  states  that  local  receive  facilities  must  be  planned  twelve  months  in 
 advance.  104 

 1.  Local  Receive  Facilities 

 45.  In  the  definition  of  local  receive  facility  in  Section  338(  h)(  2),  the  satellite  carrier  is  the  entity  authorized  to  designate  the  placement  of  a  local  receive  facility.  105  If  the  satellite  carrier  designates 
 a  local  receive  facility,  the  television  broadcast  stations  are  required  by  the  statute  to  bear  the  costs  of 
 delivering  a  good  quality  signal  to  the  designated  local  receive  facility  of  the  satellite  carrier.  106  We  find 
 that  the  statute  expressly  provides  that  the  satellite  carrier  has  the  right  to  determine  the  location  of  the 
 local  receive  facility.  We  disagree  with  the  proposals  offered  by  AAPTS  and  Network  Affiliates  to 
 require  a  satellite  carrier  to  locate  a  receive  facility  either  within  the  Grade  B  contour  or  not  more  than  50 
 miles  from  the  community  of  license  of  each  of  the  local  stations  in  a  market.  107  We  recognize  that  in 
 some  of  the  larger  DMAs  in  the  western  United  States,  some  broadcast  stations  may  be  required  to 
 provide  their  signals  over  hundreds  of  miles  if  the  receive  facility  is  located  beyond  a  local  commercial  or 
 non-  commercial  television  stations  Grade  B  signal.  108  We  believe  this  is  the  reason  Congress  provided 
 for  an  alternative  receive  facility,  as  discussed  below.  But,  we  do  not  believe  it  would  be  consistent  with 
 statutory  language,  which  requires  the  broadcast  station  to  bear  the  cost  of  delivering  a  good  quality 
 signal,  to  require  satellite  carriers  to  bear  the  cost  of  erecting  additional  facilities  to  receive  signals  from 
 stations  that  are  more  than  50  miles  away  from  a  designated  receive  point.  109 

 104  To  establish  a  receive  facility,  a  satellite  carrier  must:  (1)  select  a  location  for  the  receive  facility  and  negotiate  a 
 lease;  (2)  order  and  install  encoding  and  other  equipment;  (3)  hire  support,  maintenance  and  monitoring  staff;  (4) 
 make  arrangements  with  local  television  stations  to  obtain  a  signal  of  sufficient  quality;  (5)  allow  television  stations 
 to  negotiate  fiber  agreements  with  telephone  carriers  and  install  local  fiber  links;  (6)  install,  as  needed,  over-  the-  air 
 antennas  and  noise  reduction  equipment;  (7)  negotiate  a  long-  haul  fiber  agreement  and  install  a  long  haul  fiber  link; 
 (8)  order  and  install  equipment  for  broadcast/  uplink  centers;  and  (9)  test  each  link  in  the  system.  DirecTV 
 Comments  at  26-  27. 

 105  47  U.  S.  C.  338(  h)(  2).  See,  e.  g.,  DirecTV  Comments  at  25;  BellSouth  Comments  at  16. 

 106  47  U.  S.  C.  338(  b)(  1). 
 107  Network  Affiliates  Comments  at  10;  AAPTS  Comments  at  13. 
 108  AAPTS  Comments  at  13  (a  television  station  might  have  to  relay  the  signal  over  microwave  or  fiber  at  a  cost  of 
 $30  to  $60  per  mile  per  month  in  order  for  a  local  station  to  deliver  a  good  quality  signal  to  the  receive  facility). 
 109  See,  e.  g.,  BellSouth  Reply  Comments  at  14  (Requirement  to  place  a  local  receive  facility  within  a  certain  radius 
 of  all  stations  or  within  their  Grade  B  contours  is  inconsistent  with  definition  of  local  receive  facility  as  the 
 reception  point  in  each  local  market  which  the  satellite  carrier  designates). 
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 46.  With  respect  to  the  costs  of  erecting  and  maintaining  the  receive  facility  itself,  we  note  that  in  the  cable  context,  the  cable  operator  pays  the  costs  for  signal  processing  at  its  principal  headend.  110 
 Given  that  the  satellite  carriers  local  receive  facility  functions  like  a  headend,  and  is  under  the  carriers 
 control,  we  believe  that  the  satellite  carrier  has  the  sole  responsibility  to  pay  for  the  costs  of  building  and 
 maintaining  such  a  facility.  We  also  find  that  the  satellite  carrier  should  pay  for  the  costs  of  constructing 
 and  maintaining  an  alternative  receive  facility,  as  discussed  below.  This  is  appropriate  particularly  if  the 
 alternative  facility  is  regional,  and  the  satellite  carrier  benefits  from  having  fewer  facilities  to  build  and 
 maintain. 

 47.  We  note  that  DirecTV  and  Echostar  have  already  built  facilities  in  a  number  of  television  markets  where  they  now  provide  local-  into-  local  service.  111  While  DirecTV  states  that  twelve  months  is 
 the  minimum  amount  of  time  necessary  to  establish  a  receive  facility,  we  believe  that  the  satellite  carriers 
 that  are  currently  providing  local-  into-  local  service  should  not  experience  any  difficulties  in  carrying  local 
 television  stations  by  January  1,  2002  due  to  buildout  issues.  112  In  the  future,  satellite  carriers  that  enter 
 new  markets  with  local-  into-  local  service  should  be  able  to  fulfill  their  carriage  obligations  because 
 Section  338  does  not  impose  carriage  obligations  until  the  satellite  carrier  retransmits  at  least  one  local 
 television  station,  which  would  necessitate  that  the  carrier  have  a  receive  facility  in  place  or  under 
 development  before  the  carriage  requirement  is  triggered. 

 48.  We  also  find,  as  AAPTS  and  others  suggest,  that  a  satellite  carrier  should  designate  the  same  receive  facility  for  both  retransmission  consent  and  mandatory  carriage  television  stations  so  as  to 
 avoid  any  opportunity  to  assign  less  convenient  facilities  to  those  stations  seeking  mandatory  carriage.  113 
 2.  Alternative  Receive  Facility 
 49.  The  definition  of  local  receive  facility  in  Section  338(  h)(  2)  strongly  suggests  that  Congress  intended  to  permit  carriers  to  designate  a  single  point  for  all  local-  into-  local  stations  to  be 
 received,  processed  and  retransmitted.  However,  the  second  clause  of  Section  338(  b)(  1)  provides  that, 
 with  respect  to  the  costs  of  delivering  a  good  quality  signal,  there  may  be  another  facility  that  is 
 acceptable  to  at  least  one-  half  the  stations  to  which  the  television  broadcast  station  delivers  a  good 
 quality  signal.  The  Notice  considered  this  other  facility  as  a  facility  outside  the  local  DMA,  perhaps  a 
 facility  serving  a  regional  area.  Some  commenters  agreed  that  this  is  the  likely  meaning  of  this  clause.  114 
 We  note,  however,  that  this  is  not  the  only  possible  meaning  of  another  facility.  As  DirecTV  suggests, 
 the  other  facility  could  be  an  alternative  facility,  not  necessarily  a  non-  local  or  regional  facility.  115  Most 

 110  See  Must  Carry  Order,  8  FCC  Rcd  at  2988. 
 111  At  the  time  it  filed  comments,  DirecTV  stated  it  has  27  facilities  for  27  markets.  DirecTV  Comments  at  26. 
 112  Neither  DirecTV  nor  Echostar  stated  in  the  record  that  the  receive  facilities  they  are  using  for  local-  into-  local  now 
 cannot  be  used  to  retransmit  all  of  the  local  television  stations  in  those  markets. 
 113  NAB  also  asserts  that  both  retransmission  consent  and  mandatory  carriage  television  stations  should  use  the  same 
 local  receive  facility.  NAB  Comments  at  10. 

 114  Notice,  15  FCC  Rcd  at  12157.  See,  e.  g.  Network  Affiliates  Comments  at  8-  10;  Echostar  Comments  at  13-  14;  and 
 BellSouth  Reply  at  14. 
 115  DirecTV  Comments  at  28-  30;  LTVS  Comments  at  15. 
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 of  the  comments  on  this  subject  assumed  that  the  other  facility  would  be  a  non-  local,  regional  facility 
 established  by  a  satellite  carrier  and  that  is  acceptable  to  at  least  one-  half  of  the  stations  asserting  the  right 
 to  carriage.  116  We  focus  here  on  this  interpretation  and  the  necessary  rules  to  implement  it,  but  we  do  not 
 foreclose  the  possibility  that  the  creation  of  an  alternative  site,  whether  local  or  non-  local,  can  also  be 
 consistent  with  the  statutory  language.  An  alternative  local  receive  facility  would  be  one  selected  after  the 
 satellite  carrier  has  chosen  its  first  designated  local  receive  facility. 

 50.  AAPTS  states  that  the  consent  of  at  least  one  local  NCE  station  eligible  for  carriage  in  the  market  should  be  required  before  an  alternate  facility  is  chosen.  117  Broadcast  groups  generally  assert  that 
 non-  local  receive  sites  should  not  be  selected  unless  the  majority  of  stations  in  each  affected  market  agree 
 to  the  location  of  the  facility.  118  Echostar  argues  that  it  is  significantly  more  burdensome  for  satellite 
 carriers  to  seek  the  agreement  of  a  majority  of  stations  in  each  locality  than  the  majority  of  stations  in  a 
 particular  region.  119  ALTV  states  that  a  non-  local  receive  facility  may  be  established  if  half  the  local 
 stations  electing  mandatory  carriage,  rather  than  retransmission  consent,  agree  to  the  alternate  site.  120 

 51.  Under  our  reading  of  the  phrase  that  is  acceptable  to  at  least  one-  half  the  stations  asserting  the  right  to  carriage  in  the  local  market,  we  find  that  an  alternative  receive  facility  may  be 
 established  if  50%  or  more  of  those  stations  in  a  particular  market  consent  to  such  a  site.  As  the  statute 
 uses  the  term  local,  we  find  that  the  calculation  should  be  based  on  the  majority  of  stations  entitled  to 
 carriage  in  each  affected  market,  not  the  aggregate  number  of  stations  in  all  affected  markets.  121  Since  the 
 right  to  carriage  under  Section  338  extends,  at  least  initially,  to  all  local  television  broadcasters,  the 
 calculation  includes  all  stations,  whether  they  elect  mandatory  carriage  or  retransmission  consent.  We 
 disagree,  in  part,  with  ALTV,  which  asserts  that  a  non-  local  receive  facility  may  be  established  if  half  the 
 local  stations  electing  mandatory  carriage,  rather  than  retransmission  consent,  agree  to  the  alternate 
 site.  122  Just  as  we  decide  that  a  satellite  carrier  should  include  both  retransmission  consent  and  mandatory 
 carriage  local  stations  on  the  same  designated  local  receive  facility,  we  do  not  distinguish  between 
 retransmission  consent  and  mandatory  carriage  in  the  determination  of  an  acceptable  alternative  receive 
 facility.  We  note,  however,  that  if  a  satellite  carrier  has  both  a  designated  local  receive  facility  and  a  non-local 
 or  regional  receive  facility  and  can  accommodate  local  stations  for  retransmission  into  their  local 
 markets  at  either  one,  the  television  station  may  choose  whether  to  deliver  its  good  quality  signal  to  one 
 or  the  other,  and  must  notify  the  satellite  carrier  to  which  one  of  the  facilities  it  will  deliver  its  signal. 

 116  LTVS  Comments  at  15;  ALTV  Comments  at  32. 
 117  AAPTS  Comments  at  14. 
 118  ALTV  Comments  at  33;  Network  Affiliates  Comments  at  10;  NAB  Comments  at  11. 
 119  Echostar  Comments  at  6. 
 120  ALTV  Comments  at  32. 
 121  For  example,  if  DirecTV  were  to  establish  an  alternative  receive  facility  in  Howard  County,  MD,  (which  is  in  the 
 Baltimore  DMA)  that  would  serve  the  Washington,  D.  C.,  Philadelphia,  and  Baltimore  television  markets,  50%  or 
 more  of  the  stations  in  Washington,  D.  C.  and  50%  or  more  of  stations  in  Philadelphia  would  have  to  agree  to  the  site 
 location.  A  satellite  carrier  cannot  combine  the  number  of  Washington,  D.  C.  and  Philadelphia  stations  to  reach  the 
 50%  threshold. 

 122  ALTV  Comments  at  32. 
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 Each  local  television  broadcast  station  requesting  carriage  must  bear  the  cost  of  delivering  its  good 
 quality  signal  to  the  receive  facility. 

 52.  All  stations  asserting  a  right  to  carriage,  either  through  retransmission  consent  or  mandatory  carriage,  may  participate  in  the  consideration  of  whether  an  alternative  receive  facility  is 
 acceptable.  We  note  that  television  stations  that  substantially  duplicate  other  local  television  stations  may 
 not  ultimately  be  carried,  but  should,  nevertheless,  be  counted  in  the  50%  of  stations  that  must  find  the 
 alternative  facility  acceptable.  For  example,  if  there  are  20  stations  in  a  local  market  that  may  request 
 carriage,  but  only  16  that  must  ultimately  be  carried,  the  satellite  carrier  must  notify  all  20  stations  of  a 
 proposed  alternative  receive  site,  and  at  least  10  must  find  the  alternative  site  acceptable.  123 

 53.  As  several  commenters  observed,  a  satellite  carriers  local  receive  facility  is  the  equivalent  of  a  cable  systems  headend.  124  We  do  not  believe  that  the  statute  requires,  nor  that  any  party 
 contemplates,  that  television  stations  can  unilaterally  select  a  site  and  force  a  satellite  carrier  to  construct 
 a  facility  or  move  its  receive  facility  there.  125  NAB  asserts  that  the  Act  contemplates  negotiations  in  which 
 a  carrier  attempts  to  persuade  more  than  half  of  the  stations  eligible  for  carriage  to  agree  to  deliver  a  good 
 quality  signal  to  a  particular  location  outside  the  local  market.  126  We  agree  with  NAB  on  this  point.  If  the 
 satellite  carrier  designates  one  local  receive  facility,  50%  or  more  of  the  local  stations  may  not  demand  or 
 require  that  the  satellite  carrier  provide  an  alternative  receive  facility.  127  We  find  that  Congress  intended 
 that  the  satellite  carrier  be  part  of  the  negotiation  process  concerning  the  establishment  of  an  alternative 
 receive  facility.  Given  the  costs  and  steps  involved  in  creating  a  receive  facility,  the  satellite  carrier  is  to 
 play  a  central  role  in  such  discussions.  Indeed,  we  expect  that  in  most  cases,  the  satellite  carrier  will  be 
 the  initiating  party  seeking  to  use  a  non-  local  or  regional  receive  facility  other  than  its  designated  local 
 receive  facility  and  to  obtain  the  consent  of  at  least  50%  of  the  stations  asserting  the  right  to  carriage. 

 54.  As  noted  above,  the  statute  assigns  costs  to  the  broadcaster  when  providing  the  satellite  carrier  with  a  good  quality  signal  to  either  a  local  or  alternative  facility.  We  agree,  therefore,  with 
 BellSouth  that  a  satellite  carrier  is  not  obligated  to  carry  a  television  broadcast  station  that  refuses  to  pay 
 for  the  costs  of  providing  a  good  quality  signal.  128  For  similar  reasons,  we  disagree  with  Network 
 Affiliates  proposal  that  if  the  carrier  uses  an  alternative  facility,  which  at  least  half  of  the  local  stations 
 find  acceptable,  then  the  satellite  carrier  should  pay  the  incremental  costs  of  delivering  each  broadcasters 

 123  New  television  stations  that  sign  on-  the-  air  during  the  middle  of  an  election  cycle,  must  deliver  their  signal  to  an 
 existing  local  or  non-  local  receive  facility  and  need  not  be  counted  in  the  50%  coalition  until  the  next  election  cycle 
 commences. 

 124  See,  e.  g.,  Network  Affiliates  Comments  at  8;  ALTV  Comments  at  24;  and  AAPTS  Comments  at  12. 

 125  See,  e.  g.,  NAB  Comments  at  21-  22;  DirecTV  Comments  at  29;  and  note  25,  supra. 
 126  NAB  Comments  at  21-  22. 
 127  We  believe  such  a  result  would  be  comparable  to  a  television  broadcast  station  requiring  a  cable  operator  to  move 
 its  headend  or  create  a  new  headend  to  accommodate  its  signal. 
 128  BellSouth  Comments  at  19  (Television  stations  in  the  losing  minority  of  a  vote  to  allow  a  non-  local  receive 
 facility  may  be  denied  carriage  by  the  satellite  provider  unless  such  stations  bear  the  costs  to  deliver  a  good  quality 
 signal  to  the  out-  of-  market  reception  point). 
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 signal  if  the  alternative  facility  is  more  than  50  miles  from  the  reference  point  of  the  stations  community 
 of  license.  129 

 3.  Notification 
 55.  We  conclude  that  a  satellite  carrier  should  provide  local  television  stations  with  information  on  the  location  of  an  existing  local  receive  facility,  or  where  it  plans  to  build  a  local  or 
 alternative  receive  facility,  before  the  station  makes  its  election.  Advance  notice  of  the  receive  point 
 location  is  necessary  because  television  stations  must  make  arrangements  for  delivering  good  quality 
 signals  to  the  receive  site.  Advance  notice  is  also  desirable  to  enable  the  satellite  carrier  to  negotiate  with 
 all  the  local  television  stations  concerning  alternative  receive  facilities.  In  the  event  a  satellite  carrier 
 must  select  which  duplicating  station  or  NCE  station  to  carry  from  among  several  that  request  carriage, 
 nothing  in  the  statute  or  our  rules  prevents  the  satellite  carrier  from  taking  into  consideration  which 
 stations  that  find  the  satellite  carriers  proposed  alternative  receive  facility  acceptable.  As  described 
 above,  we  consider  this  to  be  a  fair  subject  for  negotiation  amongst  the  affected  parties. 

 56.  We  disagree  with  DirecTVs  argument  that  satellite  carriers  not  be  required  to  inform  local  broadcast  television  stations  of  the  location  of  the  receive  facility  until  after  such  stations  have 
 notified  the  carrier,  in  writing,  that  they  wish  to  be  carried  pursuant  to  Section  338,  and  it  has  been 
 established  that  they  are  otherwise  eligible  for  such  carriage.  130  We  see  no  reason  to  keep  the  location  of 
 existing  designated  local  receive  facilities  or  planned  sites  a  secret.  We  agree  with  the  suggestion  of  other 
 commenters  that  the  satellite  carrier  should  designate  the  local  receive  facility  in  its  carriage  agreements 
 with  local  television  stations  or,  in  the  mandatory  carriage  situation,  provide  notice  to  the  affected  stations 
 as  to  the  location  of  the  local  receive  facility.  131 

 57.  Satellite  carriers  must  be  afforded  a  reasonable  period  of  time  to  finalize  arrangements  for  the  location  of  the  local  receive  facility  in  order  to  meet  the  January  1,  2002  deadline.  Any  delays  by 
 local  television  stations  will  work  against  a  satellite  carrier  meeting  its  carriage  obligations  in  a  timely 
 manner,  which  ultimately  works  against  the  television  stations  and  viewers,  as  well.  Therefore,  when  a 
 satellite  carrier  has  a  designated  local  receive  facility  to  which  local  stations  seeking  carriage  must  deliver 
 a  good  quality  signal,  the  carrier  must  make  the  location  of  this  facility  known  by  June  1,  2001  for  the 
 first  election  cycle,  and  at  least  120  days  prior  to  the  commencement  of  all  election  cycles  thereafter.  132 
 The  means  by  which  television  stations  are  notified  is  left  to  the  discretion  of  the  satellite  carrier. 

 58.  BellSouth  suggests  that  a  carrier  should  give  local  television  stations  90  days  notice  before  it  moves  a  local  receive  facility  in  order  to  protect  the  legitimate  interests  of  television  stations  and 
 to  avoid  service  disruption  to  subscribers.  133  We  agree,  in  principal,  with  BellSouths  proposal. 
 129  Network  Affiliates  Comments  at  10  (Arguing  that  satellite  carriers  are  the  primary  beneficiaries  of  regional 
 receive  facilities  and  should  bear  the  costs). 
 130  DirecTV  Comments  at  28. 

 131  See,  e.  g.,  LTVS  Comments  at  15. 
 132  We  reject,  as  unnecessary,  DirecTVs  argument  that  any  agreement  among  television  broadcast  stations  may  only 
 be  made  twelve  months  prior  to  the  election  cycle  to  allow  satellite  carriers  to  plan  ahead  and  to  prevent 
 broadcasters  from  garnering  votes  for  an  alternate  facility  throughout  the  entire  period.  DirecTV  Comments  at  29. 

 133  BellSouth  Comments  at  18. 
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 Generally,  a  satellite  carrier  may  relocate  the  designated  local  receive  facility  every  three  years  coinciding 
 with  the  election  cycle.  We  believe  that  satellite  carriers  should  have  the  flexibility  to  change  their 
 designated  local  receive  facility  or  alternative  facility,  and  will  require  60  days  advance  notice  to  all  local 
 stations.  We  are  concerned,  however,  that  the  relocation  of  a  local  receive  facility  may  make  it  more 
 difficult  for  some  television  stations  to  pay  the  costs  of  delivering  a  good  quality  signal.  Therefore,  if  a 
 satellite  carrier  decides  to  relocate  the  designated  local  receive  facility  during  an  election  cycle,  it  should 
 pay  the  television  stations  costs  to  deliver  a  good  quality  signal  to  the  new  location.  With  respect  to 
 moving  the  alternative  facility,  the  new  location  must  be  acceptable  to  at  least  half  of  the  local  stations 
 entitled  to  carriage  in  the  local  market.  Obtaining  such  agreement  may  require  more  than  60  days  notice, 
 and  the  satellite  carrier  may  find  it  necessary  to  plan  for  a  new  alternative  facility  with  additional  advance 
 notice.  A  satellite  carrier  may  not  require  local  stations  to  deliver  their  signals  to  a  new  alternative 
 facility  unless  and  until  at  least  50%  of  the  stations  agree  to  the  new  facility. 

 4.  Process 
 59.  The  Notice  requested  comment  on  the  process  by  which  broadcast  television  stations  agree  to  the  establishment  and  location  of  an  alternative  receive  facility.  134  NAB  urges  the  Commission 
 to  establish  a  complaint  process  whereby  stations  in  the  minority  of  a  determination  of  an  acceptable 
 alternative  receive  facility  can  protest  if  they  believe  the  designation  of  a  non-  local  receive  facility  site 
 would  undermine  or  evade  the  mandatory  carriage  requirements.  135  BellSouth  disagrees  with  this 
 suggestion  because  under  Section  338(  b)(  1),  the  stations  vote  decides  the  issue,  and  there  is  no  statutory 
 basis  for  Commission  action  to  review  or  reverse  this  process.  136  AAPTS  responds  by  stating  the 
 Commission  has  the  authority  to  create  remedial  processes  that  are  not  expressly  mandated  by  statute.  137 

 60.  We  decline  to  establish  a  special  complaint  standard  or  process  for  disputes  concerning  alternative  receive  facility  disputes.  To  the  extent  a  television  broadcast  station  believes  its  right  to 
 carriage  has  been  denied  because  fewer  than  50%  of  the  relevant  stations  agreed  to  an  alternative  site, 
 such  claims  may  be  raised  in  a  mandatory  carriage  complaint.  If  there  is  no  dispute  that  50%  or  more  of 
 the  local  stations  that  could  assert  mandatory  carriage  have  agreed  to  an  alternative  site,  then  we  see  no 
 issue  that  would  require  our  intervention. 

 61.  We  find  that  the  negotiations  and  arrangements  among  local  television  broadcast  stations  and  satellite  carriers  with  respect  to  agreeing  upon  an  alternative  local  receive  facility  are  generally 

 134  Notice,  15  FCC  Rcd  at  12157. 
 135  NAB  Comments  at  12. 
 136  BellSouth  Reply  Comments  at  16  (Congress  considered  and  rejected  language  that  would  have  prohibited  a 
 satellite  carrier  from  designating  a  receive  site  to  undermine  or  evade  the  carriage  requirements  .  citing  H.  R. 
 1027,  the  last  sentence  to  what  was  enacted  as  Section  338(  h)(  2),  defining  local  receive  facility.  H.  R.  Rep.  No.  86, 
 106  th  Cong.,  1  st  Sess.,  at  7  (April  12,  1999).  Resurrecting  that  standard  in  rules,  after  Congress  consciously  rejected 
 that  standard,  would  violate  Congressional  intent).  See  also  DirecTV  Comments  at  30  (Commission  should  not 
 adopt  remedies  and  procedures  that  have  no  basis  in  the  statute). 

 137  AAPTS  Comments  at  19  (satellite  carriers  object  to  such  a  process  because  they  fear  it  will  result  in  the  creation 
 of  additional  and  expensive  receive  facilities). 
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 intended  to  be  a  voluntary  process.  We  also  decline  to  adopt  a  good  faith  test  to  be  used  in  the  context  of 
 receive  point  negotiations.  138 

 5.  Good  Quality  Signal 
 62.  Standard.  In  the  Notice,  we  inquired  about  the  good  quality  signal  mandate  in  Section  338.  Under  the  current  cable  carriage  regime,  television  broadcast  stations  must  deliver  either  a  signal  level 
 of  -45dBm  for  UHF  signals  or  -49dBm  for  VHF  signals  at  the  input  terminals  of  the  signal  processing 
 equipment,  to  be  considered  eligible  for  carriage.  139  We  sought  comment  on  whether  the  signal  quality 
 parameters  under  Section  614  and  the  Commissions  cable  regulations  are  appropriate  in  the  satellite 
 carriage  context.  140 

 63.  DirecTV  states  that  the  Commission  should  define  good  quality  signal  as  one  that  will  facilitate  efficient  MPEG  compression  of  all  channels.  DirecTV  proposes  that  the  signal  must  meet  the 
 requirements  of  GR-  338  CORE,  TV1  for  <20  route  miles.  141  It  states  that  the  <  20  route  miles 
 specification  contains  essential  elements  that  are  necessary  for  the  digital  video  compression  equipment 
 used  in  DBS  systems.  142  DirecTV  also  argues  that  the  Commission  should  require  a  television  broadcast 
 station  to  contract  with  a  local  telecommunications  common  carrier  to  lease  a  dedicated  TV1-  quality  fiber 
 circuit  from  the  broadcast  station  to  the  satellite  carriers  local  receive  facility.  143  We  decline  to  adopt 
 DirecTVs  good  quality  signal  proposals  for  several  reasons.  First,  we  believe  that  the  TV1  standard  is 
 too  rigid  a  construct.  Specifically,  a  signal-  to-  noise  ratio  of  +67  dB  cannot  be  easily  implemented  by  most 
 television  broadcast  stations.  144  Broadcasters  do  not  have  to  meet  such  exacting  ratios  and  levels  when 
 delivering  signals  to  a  cable  operators  headend  to  qualify  for  carriage.  Moreover,  as  NAB  points  out, 
 satellite  carriers,  such  as  Echostar,  have  been  retransmitting  local  television  signals  that  they  have 
 received  over-  the-  air  without  much  concern  about  signal  quality.  145  We  also  note  that  it  would  be 
 prohibitively  expensive  for  a  small  television  station  to  lease  a  dedicated  TV1  circuit  from  a 

 138  We  note  that  Section  338  does  not  contain  a  good  faith  clause  similar  to  the  one  contained  in  the  amendments 
 to  Section  325.  See  47  U.  S.  C.  325(  b)(  3)(  C)(  ii).  We  also  reject  as  unnecessary  BellSouths  request  for  rules 
 prohibiting  local  television  stations  from  unreasonably  withholding  consent  to  a  regional  receive  facility  location. 
 BellSouth  Comments  at  17.  See  ALTV  Comments  at  8;  NAB  Reply  Comments  at  2-  3  (arguing  that  BellSouths 
 good  faith  request  exceeds  the  scope  of  Section  338  and  that  Congress  gave  television  stations  the  absolute  right  to 
 refuse  to  agree  to  a  non-  local  receive  facility). 

 139  47  U.  S.  C.  534(  h)(  1)(  B)(  iii);  47  C.  F.  R.  76.55(  c)(  3). 

 140  Notice,  15  FCC  Rcd  at  12157. 
 141  DirecTV  remarks  that  an  equally  acceptable  standard  is  ANSI/  EIA/  TIA-  250-  C,  known  as  the  Short  Haul. 
 DirecTV  Comments  at  32. 
 142  We  note  that  the  short  haul  standard  specifies  a  signal-  to-  noise  ratio  of  +67dB,  not  67dB  as  stated  by  DirecTV. 

 143  Id. 
 144  AAPTS  comments  that  this  is  a  standard  that  a  broadcaster  could  achieve  only  by  using  fiber-  optic  capacity  all 
 the  way  from  the  station  to  the  receive  facility.  AAPTS  Reply  Comments  at  16. 
 145  NAB  Reply  Comments  at  20. 
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 telecommunications  carrier.  It  is  not  our  intention  to  impose  inordinate  costs  on  small  television  stations 
 that  would  prevent  them  from  being  carried  by  a  satellite  carrier. 

 64.  We  decide  to  apply  the  current  good  quality  signal  standards  applicable  in  the  cable  context  to  satellite  carriers,  as  suggested  by  ALTV.  146  The  standards  that  have  been  applied  to  cable 
 operators  have  functioned  well  since  the  inception  of  the  statutory  cable  carriage  requirements  seven 
 years  ago.  No  evidence  has  been  presented  suggesting  the  cable  signal  quality  standard  will  not  prove 
 equally  satisfactory  in  the  satellite  context.  We  believe  that  the  application  of  the  current  good  quality 
 signal  standards  will  provide  parties  with  a  workable,  tested  standard. 

 65.  Christian  Television  Network  (  CTN)  argues  that  the  good  quality  signal  standard  should  not  be  premised  on  off-  air  signal  strength,  but  should  turn  on  the  quality  of  the  picture  delivered 
 by  any  means.  147  AAPTS  also  states  local  stations  that  cannot  provide  a  good  quality  signal  to  the  local 
 receive  facility  over-  the-  air  should  be  permitted  to  deliver  the  signal  in  another  way.  148  We  agree  with 
 these  commenters  that  television  stations  may  use  any  delivery  method  to  improve  the  quality  of  their 
 signals  to  the  satellite  carrier.  A  television  station  may  use  microwave  transmissions,  fiber  optic  cable,  or 
 telephone  lines  as  long  as  they  pay  for  the  costs  of  such  delivery  mechanisms.  Such  alternative  delivery 
 methods  are  sanctioned  under  the  cable  carriage  rules  and  should  be  applicable  in  the  satellite  carriage 
 context. 

 66.  Carriage  of  Television  Stations  With  Disputed  Signal  Quality.  In  the  Notice,  we  recognized  that  a  broadcaster  not  providing  a  good  quality  signal  to  a  cable  system  headend  is  not 
 qualified  for  carriage.  149  In  this  situation,  a  cable  system  is  under  no  obligation  to  carry  such  a  signal,  but 
 the  broadcaster  has  an  opportunity  to  provide  equipment  necessary  to  improve  its  signal  to  the  requisite 
 level  and  gain  carriage  rights.  150  We  sought  comment  on  whether  Congress  intended  the  same  result  for 
 broadcasters  that  do  not  provide  a  good  quality  signal  to  the  local  satellite  receive  facility. 

 67.  ALTV,  AAPTS,  and  Network  Affiliates  agree  that  a  satellite  carrier  may  insist  that  a  station  cover  the  costs  of  delivering  a  good  quality  signal;  they  argue,  however,  that  a  satellite  carrier 
 cannot  refuse  to  carry  a  television  station  just  because  its  signal  is  less  than  adequate.  151  NAB  comments 
 that  satellite  carriers  operating  under  Section  338,  unlike  cable  systems  operating  under  Sections  614  and 
 615,  do  not  have  the  option  of  holding  a  stations  carriage  hostage  during  a  dispute  about  a  good  quality 
 signal.  152  It  posits  that  even  if  the  Commission  had  the  power  to  allow  carriers  to  do  so,  it  should  decline 
 that  invitation,  since  a  litigious  satellite  carrier  could,  as  a  practical  matter,  unilaterally  postpone  the 

 146  ALTV  Comments  at  iii. 
 147  CTN  Comments  at  7. 
 148  AAPTS  Comments  at  16. 
 149  Notice,  15  FCC  Rcd  at  12157. 
 150  Broadcast  Signal  Carriage  Order,  8  FCC  Rcd  at  2991.  A  broadcast  station  may  use  microwave  facilities,  fiber-optics, 
 or  even  a  translator  station  to  improve  the  quality  of  its  signal,  and  therefore  be  qualified  for  carriage.  Id. 
 151  ALTV  Comments  at  iii;  AAPTS  Comments  at  15;  and  Network  Affiliates  Comments  at  12. 

 152  NAB  Comments  at  7. 
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 effective  date  of  the  Section  338  requirements  for  long  periods  by  dragging  out  Commission  and  court 
 enforcement  proceedings.  153  Conversely,  DirecTV  and  LTVS  assert  that  a  satellite  carrier  may  refuse  to 
 carry  a  station  that  fails  to  provide  a  good  quality  signal  to  the  local  receive  facility.  154  LTVS  adds  that 
 the  satellite  carrier  should  first  notify  the  broadcast  station  of  the  deficient  signal,  including  measurements 
 and  relevant  data,  and  then  discontinue  carriage  if  the  broadcaster  fails  to  improve  the  signal  quality.  155 

 68.  We  disagree  with  the  broadcast  groups  on  this  issue.  We  first  observe  that  the  statute  does  not  affirmatively  instruct  satellite  carriers  to  carry  television  stations  that  do  not  provide  a  good 
 quality  signal.  Rather,  Section  338  only  provides  that  a  television  station  is  responsible  for  the  costs  of 
 delivering  a  good  quality  signal.  Given  the  absence  of  a  statutory  directive,  we  must  interpret  Section  338 
 in  a  manner  that  is  both  reasonable  and  consistent  with  current  law.  We  also  find  that  it  would  be 
 contrary  to  the  public  interest  to  require  satellite  carriers  to  carry  television  stations  that  provide  a  poor 
 quality  signal.  The  principle  reason  underlying  this  decision  is  that  satellite  subscribers  would  not  benefit 
 from  receiving  a  television  signal  that  is  of  poor  quality.  In  this  instance,  we  believe  that  satellite 
 subscribers  would  rather  subscribe  to  cable  or  receive  the  signals  over-  the-  air  rather  than  pay  for 
 inadequate  television  signals  retransmitted  by  a  satellite  carrier.  Moreover,  cable  operators  are  not 
 required  to  carry  poor  quality  signals  under  Sections  614  and  615  of  the  Act.  Noting  the  SHVIAs 
 directive  in  establishing  comparable  carriage  requirements  between  satellite  carriers  and  cable  operators, 
 we  should  not  require  the  carriage  of  poor  quality  signals  under  Section  338.  We  note  that  our  findings 
 here  do  not  relieve  the  satellite  carrier  of  its  obligations  to  carry  television  signals  where  it  provides  local-into- 
 local  service.  Rather,  the  satellite  carrier  does  not  have  an  obligation  to  carry  television  stations  until 
 they  voluntarily  pay  and  provide  a  good  quality  signal. 

 69.  Good  Signal  Quality  Measurement  and  Testing.  With  respect  to  the  manner  of  testing  for  a  good  quality  signal,  we  note  that  the  Commission  has  adopted  a  method  for  measuring  signal 
 strength  in  the  cable  carriage  context.  Generally,  if  a  test  measuring  signal  strength  results  in  an  initial 
 reading  of  less  than  -51  dBm  for  a  UHF  station,  at  least  four  readings  must  be  taken  over  a  two-  hour 
 period.  If  the  initial  readings  are  between  -51  dBm  and  -45  dBm,  inclusive,  readings  must  be  taken  over  a 
 24-  hour  period  with  measurements  not  more  than  four  hours  apart  to  establish  reliable  test  results.  For  a 
 VHF  station,  if  the  initial  readings  are  less  than  -55  dBm,  at  least  four  readings  must  be  taken  over  a 
 two-  hour  period.  Where  the  initial  readings  are  between  -55  dBm  and  -49  dBm,  inclusive,  readings 
 should  be  taken  over  a  24-  hour  period,  with  measurements  no  more  than  four  hours  apart  to  establish 
 reliable  test  results.  156  The  Commission  stated  that  cable  operators  are  further  expected  to  employ  sound 
 engineering  measurement  practices  when  testing  signal  strength.  157  We  sought  comment  on  whether  we 
 should  require  the  same  signal  testing  practices  for  measuring  a  broadcasters  signal  strength  in  the 
 satellite  context. 

 153  Id. 

 154  DirecTV  Comments  at  28;  LTVS  Comments  at  16. 
 155  LTVS  Comments  at  17. 
 156  See  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992:  Broadcast  Signal 
 Carriage  Issues,  Memorandum  Opinion  and  Order,  9  FCC  Rcd  6723-  24  (1994)  (  Must  Carry  Reconsideration) 
 157  Id.  For  example,  we  have  required  the:  (1)  specific  make  and  model  numbers  of  the  equipment  used,  as  well  as  its 
 age  and  most  recent  date(  s)  of  calibration;  (2)  description(  s)  of  the  characteristics  of  the  equipment  used,  such  as 
 antenna  ranges  and  radiation  patterns;  (3)  height  of  the  antenna  above  ground  level  and  whether  the  antenna  was 
 properly  oriented;  and  (4)  weather  conditions  and  time  of  day  when  the  tests  were  done.  Id. 
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 70.  LTVS  states  that  the  signal  testing  practices  used  in  the  cable  context  should  apply  in  the  satellite  context.  158  NAB  proposes  adding  additional  safeguards  to  the  signal  testing  process,  such  as 
 permitting  local  stations  to  observe  measurement  procedures  and  requiring  use  of  independent  engineers 
 to  conduct  tests.  159  NAB  also  advocates  that  the  good  quality  signal  requirements  for  satellite  carriers 
 should  incorporate  the  various  findings  in  Commission  rulings  in  the  cable  context,  such  as  the 
 requirement  that  an  operator  use  actual  field  measurements,  rather  than  computer  predictions,  to  measure 
 a  television  stations  signal.  160  BellSouth  argues  that  NAB  provides  no  support  for  imposing  more 
 stringent  requirements  on  satellite  carriers  than  on  cable  systems.  161  BellSouth  also  argues  that  like  cable 
 systems,  satellite  carriers  should  cooperate  in  testing  the  signal  quality  delivered  by  television  stations  to 
 the  satellite  carriers  local  receive  facility.  162 

 71.  We  believe  that  the  signal  testing  practices  in  the  cable  carriage  context  should  be  generally  applied  in  the  satellite  carriage  context.  The  Commission  developed  its  engineering  standards 
 through  experience  in  adjudicating  signal  quality  disputes  between  cable  operators  and  television 
 broadcast  stations.  In  this  instance,  commenters  have  not  provided  any  arguments  or  data  suggesting  that 
 the  cable  practices  and  engineering  standards  would  be  unsuited  for  satellite  carriers.  As  for  NABs  call 
 for  additional  safeguards,  we  find  that  such  engineering  and  procedural  processes  should  not  be 
 implemented  as  regulatory  requirements.  Instead,  the  parties  should  look  to  precedent  as  useful  guidance. 
 With  regard  to  testing  fees,  we  believe  that  the  television  broadcast  station  should  pay  for  signal  tests.  163 

 72.  At  the  same  time,  however,  we  note  that  the  satellite  carriers  local  receive  facility  may  not  have  a  tower  with  broadcast  station  reception  equipment  mounted  onto  it  like  that  is  found  at  a  cable 
 systems  principal  headend.  It  has  been  standard  practice  among  cable  operators  and  broadcasters  to  test 
 a  television  stations  signal  strength  at  the  tower  site.  To  remedy  this  situation,  we  strongly  recommend 
 that  satellite  carriers  and  broadcasters  follow  the  testing  procedures  for  field  strength  measurements  found 
 in  Section  73.686(  b)(  2)  of  the  Commissions  rules,  in  addition  to  following  the  good  engineering 
 practices  established  in  the  cable  context.  164  These  rules,  we  believe,  will  serve  as  an  adequate  proxy  for 
 conducting  signal  measurements  in  lieu  of  an  actual  tower. 

 158  LTVS  Comments  at  17. 
 159  NAB  Comments  at  14-  15.  DirecTV  agrees  that  an  independent  engineer  may  be  consulted  to  determine  signal 
 quality.  DirecTV  Reply  Comments  at  19. 
 160  Id. 

 161  BellSouth  Reply  Comments  at  17. 
 162  BellSouth  Comments  at  18. 
 163  Under  Section  338,  the  station  bears  the  responsibility  to  provide  a  good  quality  signal.  Attendant  to  this  burden  is 
 its  obligation  to  prove  to  the  satellite  carrier  that  the  signal  is  of  good  quality. 
 164  47  C.  F.  R.  73.  686(  b)(  2).  The  rule,  in  part,  requires  that  at  each  measuring  location,  the  following  procedures 
 shall  be  employed:  (1)  The  instrument  calibration  is  checked;  (2)  The  antenna  is  elevated  to  a  height  of  30  feet;  (3) 
 The  receiving  antenna  is  rotated  to  determine  if  the  strongest  signal  is  arriving  from  the  direction  of  the  transmitter; 
 and  (4)  The  antenna  is  oriented  so  that  the  sector  of  its  response  pattern  over  which  maximum  gain  is  realized  is  in 
 the  direction  of  the  transmitter. 
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 E.  Duplicating  Signals 
 73.  Definition.  Section  338(  c)(  1)  states  that: 
 Notwithstanding  subsection  (a),  a  satellite  carrier  shall  not  be  required  to  carry  upon  request  the 
 signal  of  any  local  commercial  television  broadcast  station  that  substantially  duplicates  the  signal 
 of  another  local  commercial  television  broadcast  station  which  is  secondarily  transmitted  by  the 
 satellite  carrier  within  the  same  local  market.  .  .  .  165 

 In  the  Notice,  we  asked  several  definitional  questions  concerning  this  phrase. 
 74.  Section  614(  b)(  5)  provides  that  a  cable  operator  is  not  required  to  carry  the  signal  of  any  local  commercial  television  station  that  substantially  duplicates  the  signal  of  another  local  commercial 
 television  station  which  is  carried  on  its  cable  system,  or  to  carry  the  signals  of  more  than  one  local 
 commercial  television  station  affiliated  with  a  particular  broadcast  network.  166  The  Commission  decided 
 that,  based  on  the  legislative  history  of  this  section,  two  stations  "substantially  duplicate"  each  other  "if 
 they  simultaneously  broadcast  identical  programming  for  more  than  50  percent  of  the  broadcast  week."  167 
 For  purposes  of  this  definition,  identical  programming  means  the  identical  episode  of  the  same  program 
 series.  168  Section  615(  e)  provides  that  cable  operator  with  cable  system  capacity  of  more  than  36  usable 
 activated  channels,  and  carrying  the  signals  of  three  qualified  NCE  stations,  is  not  required  to  carry  the 
 signals  of  additional  stations  the  programming  of  which  substantially  duplicates  the  programming 
 broadcast  by  another  qualified  NCE  station  requesting  carriage.  169  The  1992  Cable  Act  states  that 
 substantial  duplication  was  to  be  defined  by  the  Commission  in  a  manner  that  promotes  access  to 
 distinctive  noncommercial  educational  television  services.  170  The  Commission  concluded  that  an  NCE 
 station  does  not  substantially  duplicate  the  programming  of  another  NCE  station  if  at  least  50  percent  of 
 its  typical  weekly  programming  is  distinct  from  programming  on  the  other  station  either  during  prime 
 time  or  during  hours  other  than  prime  time.  171  We  sought  comment  on  whether  the  Commission  should 
 apply  the  cable  carriage  duplication  definitions  to  satellite  carriers  under  Section  338. 

 75.  DirecTV  proposes  that  the  definition  of  substantial  duplication,  as  employed  in  Section  338(  c),  should  include  identical  programming,  whether  broadcast  simultaneously  or  not,  of  either  50 
 percent  or  more  of  a  television  broadcast  stations  total  weekly  programming,  or  50  percent  or  more  of  its 

 165  47  U.  S.  C.  338(  c)(  1). 
 166  47  U.  S.  C.  534(  b)(  5). 
 167  Must  Carry  Order,  8  FCC  Rcd  at  2980-  81.  The  Commission  has  stated,  in  the  cable  carriage  context,  that 
 programs  in  foreign  languages  (e.  g.,  MacNeil/  Lehrer  in  Spanish)  are  not  duplicative  of  the  same  programs  broadcast 
 in  English,  because  they  target  different  audiences.  Id.  at  2971. 

 168  Id. 

 169  47  U.  S.  C.  535(  e). 
 170  Id. 
 171  Must  Carry  Order,  8  FCC  Rcd  at  2970. 
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 prime-  time  programming.  172  Network  Affiliates  argue  that  substantial  duplication  should  be  found  only 
 where  there  is  an  overlap  in  the  Grade  B  contours  of  the  stations  in  question.  According  to  Network 
 Affiliates,  where  there  is  no  Grade  B  overlap  between  the  stations,  the  stations  signals  should  not  be 
 deemed  to  substantially  duplicate  each  other  and  should  be  entitled  to  carriage.  173  We  do  not  find  that 
 these  commenters  have  presented  persuasive  evidence  as  to  why  the  cable  standard  is  not  suited  for 
 satellite  carriers.  Their  proposals  are  also  contrary  to  the  purpose  of  the  Act.  DirecTVs  proposal  would 
 winnow  away  a  television  stations  right  to  carriage  and  would  unduly  expand  the  substantial  duplication 
 exception  beyond  what  was  intended  by  Congress.  If  the  Network  Affiliates  suggestion  were  adopted, 
 we  believe  that  the  statutory  duplication  provision  would  be  eviscerated,  as  there  would  be  no  station  in  a 
 particular  market  that  would  duplicate  another. 

 76.  Accordingly,  we  will  apply  the  duplication  standards  for  commercial  television  stations,  174  set  forth  in  the  cable  operator  context,  to  satellite  broadcast  signal  carriage  as  suggested  by 
 ALTV,  NCTA,  and  LTVS.  175  That  is,  two  commercial  television  stations  substantially  duplicate  each 
 other  if  they  simultaneously  broadcast  identical  programming  for  more  than  50  percent  of  the  broadcast 
 week.  The  cable  duplication  provisions  for  commercial  television  stations  have  been  in  effect  for  the  last 
 seven  years,  without  much  controversy,  and  there  is  no  reason  to  believe  that  they  will  be  difficult  to 
 implement  in  the  satellite  carriage  context. 

 77.  We  note,  however,  that  due  to  the  fundamental  operational  differences  between  cable  systems  and  satellite  service,  a  satellite  carrier  may  choose  which  duplicating  signal  it  is  not  required  to 
 carry.  This  policy  differs  from  the  cable  duplication  rules  where  an  operator  must  carry  the  station  that  is 
 closest  to  its  principal  headend.  Since  there  are  no  headends  in  the  satellite  carriage  context,  that  are 
 relevant  to  the  question  of  which  stations  in  a  particular  market  to  carry,  comparable  rules  in  this  specific 
 instance  should  not  be  implemented.  Absent  an  analogous  headend  standard  or  statutory  guidance,  we 
 believe  the  public  interest  is  best  served  by  permitting  satellite  carriers  to  determine  which  stations  to 
 offer  their  subscribers. 

 78.  DirecTV  argues  that,  in  addition  to  its  ability  to  deny  carriage  of  duplicative  stations  in  the  first  instance,  a  satellite  carrier  should  be  permitted  to  remove  a  television  broadcast  station  from  its 
 line-  up  if  it  begins  to  substantially  duplicate  its  programming  after  carriage  of  the  station  has 
 commenced.  176  We  agree  with  DirecTV  on  this  point.  If  the  substantial  duplication  criteria  are  satisfied, 
 a  satellite  carrier  is  permitted  to  drop  that  television  station  from  its  channel  line-  up.  If  this  situation 
 arises,  however,  we  require  the  satellite  carrier  to  notify  the  station,  and  its  subscribers,  in  a  timely 
 manner  prior  to  its  removal  from  the  relevant  local-  into-  local  channel  line-  up.  By  the  same  token,  we 

 172  DirecTV  Comments  at  35. 
 173  Network  Affiliates  Comments  at  13-  14. 
 174  In  the  cable  carriage  context,  the  Commission  treated  the  duplication  provisions  of  Sections  615(  b)(  2)  and  Section 
 614(  b)(  5)  separately.  The  Commission  noted  that  the  two  provisions  were  intended  to  accommodate  different 
 situations  and  were  addressed  separately  in  the  statute  and  its  legislative  history.  8  FCC  Rcd  at  2980.  We  believe 
 that  our  separate  duplication  postulates  for  commercial  and  NCE  stations  in  the  cable  context  should  also  be  applied 
 in  the  satellite  context. 

 175  ALTV  Comments  at  44;  NCTA  Comments  at  6;  and  LTVS  Comments  at  20. 

 176  DirecTV  Comments  at  37. 
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 also  find  that  a  satellite  carrier  must  begin  carrying  a  television  station  that  stops  duplicating  another  local 
 television  station.  When  this  circumstance  presents  itself,  the  station  shall  use  the  same  procedures  to 
 establish  carriage  as  permitted  for  new  television  stations  under  Section  76.66. 

 79.  We  sought  comment  on  the  phrase,  affiliated  with  a  particular  television  network.  In  this  situation,  we  asked  what  definition  of  television  network  applies  because  that  term  is  not 
 specifically  defined  in  Section  338.  177  We  asked  whether  we  should  implement  the  definition  of  television 
 network  found  in  Section  339  of  the  Act,  the  SHVIAs  distant  signal  carriage  provision,  for  the  purposes 
 of  administering  the  Section  338  duplication  provision.  178  BellSouth,  NCTA,  and  LTVS  all  agree  that  the 
 definition  in  Section  339(  d)  is  acceptable.  179  Given  the  parties  assent  to  the  inclusion  of  the  Section  339 
 definition,  and  the  lack  of  opposition,  we  adopt  this  definition  for  the  purpose  of  the  substantial 
 duplication  analysis. 

 80.  We  now  turn  to  the  second  part  of  Section  338(  c)(  1):  Notwithstanding  subsection  (a),  a  satellite  carrier  shall  not  be  required  to  carry  upon  request  the  signal  of  any  local  commercial  television 
 broadcast  station  that  substantially  duplicates  the  signal  of  another  local  commercial  television  broadcast 
 station  which  is  secondarily  transmitted  by  the  satellite  carrier  within  the  same  local  market  or  to  carry 
 upon  request  the  signals  of  more  than  one  local  commercial  television  broadcast  station  in  a  single  local 
 market  that  is  affiliated  with  a  particular  television  network  unless  such  stations  are  licensed  to 
 communities  in  different  states.  (emphasis  added).  We  find  that  this  part  of  the  provision  dictates  three 
 results.  First,  satellite  carriers  are  not  obligated  to  carry  more  than  one  network  affiliate  in  a  television 
 market  when  both  affiliates  are  licensed  to  communities  in  the  same  state,  even  if  the  affiliates  do  not 
 substantially  duplicate  their  programming.  This  is  analogous  to  the  cable  rule  stating  that  a  cable  system 
 need  only  carry  the  network  affiliate  closest  to  the  principal  headend.  180  In  this  context,  a  satellite  carrier 
 may  select  which  network  affiliate  it  wants  to  carry.  Second,  a  satellite  carrier  must  carry  network 
 affiliated  television  stations  licensed  to  different  states,  but  located  in  the  same  market,  even  if  they  meet 
 the  definition  of  substantial  duplication  under  the  Commissions  rules.  An  example  of  this  situation  is 
 WMUR  and  WCVB.  Both  are  ABC  network  affiliates,  but  the  former  is  licensed  to  Manchester,  New 
 Hampshire,  while  the  latter  is  licensed  to  Boston,  Massachusetts.  181  Under  Section  338(  c)(  1),  the  satellite 
 carrier  would  be  obligated  to  carry  both.  Third,  if  two  television  stations  located  in  different  states  (but 
 within  the  same  local  market)  duplicate  each  other,  but  are  not  network  affiliates,  the  satellite  carrier 
 only  has  to  carry  one.  For  example,  if  there  are  two  Home  Shopping  Network  station  affiliates  in  the 
 same  market,  but  located  in  different  states,  the  satellite  carrier  need  not  carry  both  because  the  Home 
 Shopping  Network  is  not  a  television  network  under  our  definitional  rule.  182 

 177  Notice,  15  FCC  Rcd  at  12159. 
 178  Id.  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.  This  is  known  as  the  15-  25-  10  rule.  47  U.  S.  C.  339(  d)(  5). 

 179  BellSouth  Comments  at  21;  NCTA  Comments  at  6;  and  LTVS  Comments  at  20. 

 180  See  47  C.  F.  R.  76.56(  b)(  5). 
 181  We  note  that  Hearst-  Argyle  is  the  licensee  for  both  WMUR  and  WCVB. 
 182  If  a  network  no  longer  meets  the  15-  25-  10  rule,  or  a  new  network  meets  that  rule,  it  is  incumbent  upon  the  station 
 to  make  this  fact  known  to  the  satellite  carrier.  The  satellite  carrier  can  either  accept  or  reject  the  stations 
 determination.  A  station  may  file  a  complaint  with  the  Commission  if  it  is  in  a  disagreement  with  the  satellite 
 (continued) 
34
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 81.  Different  States  Examples.  In  the  Notice,  we  inquired  about  the  application  of  the  statutory  phrase,  communities  in  different  states.  183  Congress  stated  that  this  phrase  addresses  unique 
 and  limited  cases,  including  such  station  pairs  as  WMUR  (Manchester,  New  Hampshire)  and  WCVB 
 (Boston,  Massachusetts)  in  the  Boston  DMA  (both  ABC  affiliates),  cited  above,  as  well  as  WPTZ  184 
 (Plattsburg,  New  York)  and  WNNE  (White  River  Junction,  Vermont)  185  in  the  Burlington-  Plattsburgh 
 DMA  (both  NBC  affiliates),  in  which  mandatory  carriage  of  both  duplicating  local  stations  upon  request 
 assures  that  satellite  subscribers  will  not  be  precluded  from  receiving  the  network  affiliate  that  is  licensed 
 to  a  community  in  the  state  in  which  they  reside.  186  We  asked  whether  there  were  other  similar  situations 
 that  must  be  addressed  and  accounted  for.  187 

 82.  According  to  DirecTV,  Congress  sought  to  create  only  a  very  narrow  exception  to  the  general  rule  that  satellite  carriers  shall  not  be  required  to  carry  duplicative  signals    one  that  applies  in 
 unique  and  limited  cases.  188  DirecTV  argues  that  the  Commission  must  implement  this  provision  in  the 
 limited  manner  that  Congress  intended--  in  no  case  should  the  Commission  infer  additional  authority  to 
 address  similar  situations.  189  We  infer  no  such  additional  authority.  NAB  asserts  that  there  is  no 
 conflict  between  the  Act  and  the  Conference  Report  on  this  issue:  the  Act  reaches  any  instance  in  which 
 two  affiliates  of  the  same  network  are  licensed  to  different  states  but  within  the  same  local  market.  190 
 According  to  NAB,  while  these  instances  are  no  doubt  unique  and  limited,  as  the  Conference  Report 
 indicates,  the  Act  is  not  restricted  to  the  particular  examples  mentioned  in  the  Conference  Report.  191  We 
 agree  with  NAB.  The  reference  in  the  legislative  history,  cited  above,  merely  states  known  examples.  It 
 cannot  be  read  to  limit  the  phrases  application  to  only  the  noted  examples. 

 83.  National  Programming.  DirecTV  argues  that  it  would  make  no  sense  for  the  Commission  to  mandate  carriage  of  local  affiliates  if  they  substantially  duplicate  the  programming 

 (.  continued  from  previous  page) 
 carrier. 

 183  Notice,  15  FCC  Rcd  at  12159. 

 184  We  note  that  WNNE  is  a  satellite  of  WPTZ. 
 185  We  note  that  Hartford,  VT  is  the  stations  city  of  license.  White  River  Junction  is  where  the  stations  studio  is 
 located. 
 186  Conference  Report  at  H11795. 

 187  Quorum  of  Maryland  License  provided  the  only  other  example  of  a  situation  meeting  the  duplication  exception  in 
 Section  338.  It  states  that  WHAG-  TV  (NBC,  Hagerstown,  MD)  and  WRC-  TV  (NBC,  Washington,  D.  C.)  are  located 
 in  different  states,  and  thus  the  exception  should  apply.  However,  WHAG-  TV  only  wants  carriage  in  the  upper 
 northwest  part  of  the  Washington,  D.  C.-  Hagerstown,  MD  DMA.  Quorum  of  Maryland  License  Comments  at  2-  3. 

 188  DirecTV  Comments  at  38. 

 189  Id. 
 190  NAB  Reply  Comments  at  26,  citing  47  U.  S.  C.    338(  c)(  1). 
 191  Id. 
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 Federal  Communications  Commission  FCC  00-  417 
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 provided  by  the  same  channel  that  is  carried  nationally.  192  NAB  argues  that  the  term  another  local 
 commercial  television  broadcast  station  in  Section  338s  duplication  provision  cannot  be  read  to  mean  a 
 non-  local  TV  station  or  non-  broadcast  satellite  channel.  193  We  disagree  with  DirecTVs  position  here.  The 
 relevant  statutory  provision  is  specifically  an  intra-  market  exemption,  directly  referring  to  situations 
 where  local  television  stations  duplicate  each  other.  Congress  did  not  intend  for  national  programming 
 to  be  considered  in  the  duplication  analysis,  otherwise  it  would  have  so  stated.  If  we  were  to  adopt 
 DirecTVs  position,  local  television  stations  that  carry  Univision  or  Telemundo  Spanish  language 
 programming,  for  example,  would  not  have  to  be  carried  by  satellite  carriers  because  their  national  feeds 
 are  already  carried.  In  so  doing,  we  would  obviate  the  statutes  focus  on  localism. 

 F.  Noncommercial  Educational  Television  Station  Carriage  Issues. 
 84.  Section  338(  c)(  2)  states  that:  The  Commission  shall  prescribe  regulations  limiting  the  carriage  requirements  under  subsection  (a)  of  satellite  carriers  with  respect  to  the  carriage  of  multiple 
 local  noncommercial  television  broadcast  stations.  To  the  extent  possible,  such  regulation  shall  provide 
 the  same  degree  of  carriage  by  satellite  carriers  of  such  multiple  stations  as  is  provided  by  cable  systems 
 under  Section  615.  194  Section  615(  l)(  1),  in  turn,  provides  that  a  local  noncommercial  educational 
 television  ("  NCE")  station  qualifies  for  cable  carriage  rights  if  it  is  licensed  by  the  Commission  as  an 
 NCE  station  and  if  it  is  owned  and  operated  by  a  public  agency,  nonprofit  foundation,  or  corporation  or 
 association  that  is  eligible  to  receive  a  community  service  grant  from  the  Corporation  for  Public 
 Broadcasting.  195  For  purposes  of  cable  carriage,  an  NCE  station  is  considered  local  if  its  community  of 
 license  is  within  50  miles  of,  or  the  station  places  a  Grade  B  contour  over,  the  principal  headend  of  the 
 cable  system.  196  Cable  systems  are  required  to  carry  local  noncommercial  educational  television  stations 
 under  a  statutory  provision  based  on  a  cable  system's  number  of  usable  activated  channels.  197  As  part  of  our 
 inquiry  regarding  Section  338s  duplication  provision,  we  sought  comment  on  the  scope  of  a  satellite 
 carriers  obligations  with  regard  to  noncommercial  educational  television  stations.  198  We  also  asked 
 whether  we  should  adopt  procedural  rules  for  the  carriage  of  NCE  television  stations  to  mirror  the  cable 
 carriage  requirements.  199 

 192  DirecTV  Comments  at  36. 

 193  NAB  Reply  Comments  at  25. 
 194  47  U.  S.  C.  338(  c)(  2). 
 195  47  U.  S.  C.  535(  l)(  1).  An  NCE  station  is  also  considered  qualified  if  it  is  owned  and  operated  by  a  municipality 
 and  transmits  predominantly  noncommercial  programs  for  educational  purposes.  47  C.  F.  R.  76.55(  a). 
 196  47  U.  S.  C.  535(  l)(  2). 

 197  Cable  systems  with:  (1)  12  or  fewer  usable  activated  channels  are  required  to  carry  the  signal  of  one  qualified 
 local  noncommercial  educational  station;  (2)  13-  36  usable  activated  channels  are  required  to  carry  no  more  than 
 three  qualified  local  noncommercial  educational  stations;  and  (3)  more  than  36  usable  activated  channels  shall  carry 
 at  least  three  qualified  local  noncommercial  educational  stations.  See  47  U.  S.  C.  535(  b)  and  (e);  47  C.  F.  R. 
 76.56(  a). 

 198  Notice,  15  FCC  Rcd  at  12160-  61. 
 199  Notice,  15  FCC  Rcd  at  12153.  See  47  C.  F.  R.  76.56  (signal  carriage  obligations)  and  47  C.  F.  R.  76.  61(  b) 
 (regarding  the  carriage  of  noncommercial  televisions). 
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 Federal  Communications  Commission  FCC  00-  417 
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 85.  AAPTS  argues  that  the  duplication  provision  is  the  only  limitation  on  local  NCE  station  carriage  contemplated  by  SHVIA.  AAPTS  argues  that  Congress  intended  for  eligible  local  NCE  stations 
 to  be  carried  whenever  a  satellite  carrier  system  is  providing  local-  into-  local  service  in  a  particular 
 market.  200  On  the  opposite  side,  DirecTV  and  Echostar  assert  that  the  Commission  should  limit  satellite 
 carriage  of  NCE  stations  in  a  manner  consistent  with  a  carriers  technical  limitations  and  other  factors  that 
 differentiate  the  satellite  industry  from  the  cable  industry.  201  For  example,  EchoStar  argues  that  no  more 
 than  2%  of  a  satellite  carriers  total  channel  capacity  (i.  e.,  6  channels  nationwide  for  a  system  of  300 
 channels)  should  be  devoted  to  local  noncommercial  station  carriage.  202  DirecTV  submits  that  satellite 
 carriers  should  only  be  required  to  carry  a  number  of  NCE  stations  that  would  bring  the  total  number  of 
 NCE  channels  (defined  to  include  national  educational  channels)  available  in  a  local  market  to  a 
 maximum  of  four  percent  of  the  local  required  channels  offered  by  the  satellite  carrier  in  the  market.  203 
 According  to  DirecTV,  none  of  these  channels  should  substantially  duplicate  programming  that  is  offered 
 on  another  channel  already  carried  in  the  market.  204 

 86.  We  find  that  the  NCE  carriage  formulations  proposed  by  DirecTV  and  Echostar  would  deprive  satellite  subscribers  of  access  to  local  noncommercial  television  stations  in  those  markets  where 
 local-  into-  local  service  is  offered.  While  we  recognize  that  satellite  carriers  provide  a  national  service, 
 their  proposals  would  vitiate  the  intent  of  Congress  in  promoting  carriage  of  local  NCE  stations.  Instead, 
 we  agree  with  AAPTS  that  the  duplication  provision  is  the  only  limitation  on  NCE  carriage  contemplated 
 by  Congress  when  it  promulgated  Section  338.  Therefore,  a  satellite  carrier  must  carry  all  non-  duplicative 
 NCE  stations  in  markets  where  they  provide  local-  into-  service.  Section  338  instructs  the  Commission  to 
 implement  NCE  station  carriage  requirements  providing  the  same  degree  of  carriage  by  satellite  carriers 
 as  is  required  by  cable  systems  under  Section  615  of  the  Act.  205  Cable  systems  with  more  than  36 
 channels  are  required  to  carry  all  non-  duplicative  NCE  stations.  206  Given  that  satellite  carriers  have  more 
 than  36  channels,  we  hold  that  satellite  carriers  NCE  station  carriage  obligations  should  be  comparable  to 
 the  requirements  imposed  on  cable  operators.  207 

 200  AAPTS  Comments  at  9. 

 201  DirecTV  Comments  at  34;  EchoStar  Comments  at  5. 
 202  Echostar  Comments  at  iv,  5. 
 203  DirecTV  Comments  at  39. 
 204  NCTA  and  AAPTS  argue  that  the  formulations  proposed  by  EchoStar  and  DirecTV  would  lead  to  satellite  NCE 
 carriage  requirements  that  do  not  remotely  resemble  those  imposed  on  the  cable  industry  in  terms  of  the  nature  of 
 the  signal  (national  versus  local)  and  in  the  number  of  stations  carried.  NCTA  Comments  at  10;  AAPTS  Reply 
 Comments  at  3. 

 205  47  U.  S.  C.  338(  c)(  2). 

 206  47  U.  S.  C.  535(  e). 
 207  The  Commission  has  held  that  Section  615  requires  cable  operators  with  more  than  36  channels  to  carry 
 additional  qualified  NCE  stations  where  there  are  more  than  three  such  stations  available.  See  Must  Carry 
 Reconsideration,  9  FCC  Rcd  at  6723-  24.  For  example,  Cox  Communications  in  Fairfax  County,  VA,  has  to  carry 
 NCE  stations  WMPT,  WETA,  WHUT  and  WNVC  because  it  has  more  than  36  channels  and  each  of  these  stations 
 are  either  within  50  miles  of  the  operators  principal  headend  or  the  stations  place  Grade  B  Contours  over  the 
 headend. 
37
 Federal  Communications  Commission  FCC  00-  417 
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 87.  At  the  same  time,  we  recognize  that  Section  338  requires  the  Commission  to  limit  the  carriage  of  multiple  NCE  stations  in  markets  where  local-  into-  local  service  is  provided.  It  is  important  to 
 note  that  this  instruction  was  embedded  in  the  NCE  duplication  provision  of  Section  338.  208  Against  this 
 backdrop,  we  adopt  a  limitation  principle  based  upon  duplicative  programming.  209  Using  the  NCE  station 
 duplication  definition  found  in  the  cable  context  as  a  general  model,  we  have  developed  a  two  step 
 approach  in  defining  substantial  duplication  in  this  context.  First,  a  noncommercial  television  station 
 substantially  duplicates  the  programming  of  another  noncommercial  station  if  it  simultaneously 
 broadcasts  the  same  programming  as  another  noncommercial  station  for  more  than  for  more  than  50 
 percent  of  prime  time,  as  defined  by  76.5(  n),  and  more  than  50  percent  outside  of  prime  time  over  a 
 three  month  period.  After  three  noncommercial  television  stations  are  carried,  210  the  test  of  duplication 
 shall  be  whether  more  than  50  percent  of  prime  time  programming  and  more  than  50  percent  outside  of 
 prime  time  programming  is  duplicative  on  a  non-  simultaneous  basis.  211  As  for  the  timeframe  of  when  to 
 measure  duplication,  we  find  that  the  amount  of  duplicative  prime-  time  weekly  programming  broadcast 
 should  be  examined  over  the  course  of  three  month  period.  The  end  of  the  three  month  period  must  fall 
 within  30  days  prior  to  the  date  the  satellite  carrier  notifies  the  NCE  station  that  it  is  denying  or 
 discontinuing  carriage  based  on  substantial  duplication.  The  amount  of  duplicative  weekly  programming 
 broadcast  outside  of  prime  time  will  be  measured  over  the  same  period.  Only  if  the  station  duplicates 
 more  than  50  percent  of  the  other  stations  weekly  programming  in  both  of  these  respects  can  it  be  denied 
 carriage.  We  believe  this  approach  is  a  reasonable  means  of  achieving  the  statutory  goal  of  implementing 
 an  NCE  carriage  obligation  for  satellite  carriers  that  parallels  the  existing  cable  carriage  requirement,  and 
 takes  into  account,  to  the  extent  possible,  the  other  relevant  technical  and  legal  constraints.  In  reaching 
 this  balance,  we  note  in  particular  that,  unlike  satellite  carriers,  cable  operators  are  generally  required  to 
 carry  up  to  three  local  noncommercial  educational  stations  regardless  of  the  duplication  involved.  212 
 However,  unlike  satellite  carriers,  cable  operators  need  not  carry  all  NCE  stations  licensed  to 
 communities  in  an  expansive  DMA,  but  need  only  carry  those  NCE  stations  within  50  miles  of  the  cable 
 system  principal  headend  or  which  place  a  Grade  B  service  contour  over  the  principal  headend.  213  The 
 rule  adopted  attempts  to  balance  these  differences  in  a  practical  way  using  the  avoidance  of  duplication 
 mechanism  identified  in  Section  338(  c)  of  the  SHVIA.  214 

 208  See  47  U.  S.  C.  338(  c)(  2). 
 209  Given  the  differences  between  commercial  and  noncommercial  television  stations  in  the  statutory  language,  we 
 are  able  to  develop  different  definitions  of  substantial  duplication. 
 210  We  note  that  11  of  the  top  35  markets  contain  more  than  3  NCE  stations.  They  are:  (1)  New  York  (7  NCEs);  (2) 
 Los  Angeles  (4  NCEs);  (3)  Philadelphia  (5  NCEs);  (4)  San  Francisco-  Oakland-  San  Jose  (5  NCEs);  (5)  Boston  (4 
 NCEs);  (6)  Washington,  D.  C.  (6  NCEs);  (7)  Minneapolis-  St.  Paul  (5  NCEs);  (8)  Indianapolis  (4  NCEs);  (9) 
 Charlotte  (4  NCEs);  (10)  Cincinnati  (4  NCEs)  ;  and  (11)  Greenville-  Spartanburg  (4  NCEs). 

 211  Like  our  conclusion  in  the  cable  context,  we  consider  the  programming  broadcast  in  prime  time  distinct  from  the 
 programming  broadcast  at  other  times  because  prime  time  often  is  intended  for  different  purposes  and  attracts 
 different  viewers.  See  Must  Carry  Order,  8  FCC  Rcd  at  2971 

 212  47  U.  S.  C.  615(  e). 

 213  Compare  47  U.  S.  C.  615(  l)(  2)  with  47  U.  S.  C.  338(  h)(  3). 
 214  The  Acts  NCE  cable  carriage  provision  instructs  that  duplication  shall  be  defined  by  the  Commission  in  a 
 manner  that  promotes  access  to  distinctive  noncommercial  educational  television  service.  47  U.  S.  C.  535(  e). 
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 Federal  Communications  Commission  FCC  00-  417 
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 88.  Public  Interest  Set-  Aside.  DirecTV  and  BellSouth  have  suggested  that  local  NCE  station  carriage  should  be  capped  by  the  4%  set-  aside  requirement  pursuant  to  Section  335  of  the  1992 
 Cable  Act  and  the  Commissions  rules.  215  AAPTS  urges  the  Commission  to  reject  the  DBS  industrys 
 attempt  to  use  the  national  public  interest  set-  aside  requirement  to  limit  NCE  carriage  obligations. 
 According  to  AAPTS,  the  satellite  carriers  attempt  to  cap  their  carriage  requirements  through  their  public 
 interest  obligations  confuses  two  separate  statutory  schemes:  (1)  the  DBS  set-  aside  for  national, 
 noncommercial  educational  programming,  designed  primarily  to  satisfy  DBS  public  interest  obligations; 
 and  (2)  the  satellite  carriage  obligations,  triggered  only  when  a  satellite  carrier  offers  local  channels  to  its 
 subscribers  pursuant  to  the  compulsory  license.  216 

 89.  We  will  not  permit  satellite  carriers  to  include  NCE  stations,  carried  under  Section  338,  in  the  calculation  of  the  4%  set-  aside.  We  agree  with  AAPTS  that  the  carriage  requirements  of  the  SHVIA 
 have  different  purposes  from  the  set-  aside  requirements  contained  in  the  satellite  public  interest 
 provisions.  The  Section  338  provisions  further  the  goals  of  localism  and  nondiscriminatory  treatment  of 
 local  television  stations  while  Section  335  furthers  the  goal  of  program  diversity.  In  this  regard,  we  are 
 concerned  that  if  a  satellite  carrier  were  permitted  to  satisfy  the  public  interest  set-  aside  with  NCE 
 stations,  programming  diversity  would  be  diminished  because  all  programming  currently  carried  to  satisfy 
 the  set-  aside  will  likely  be  dropped  in  lieu  of  NCE  station  carriage.  217  Section  335  would  also  be  rendered 
 a  nullity  if  NCE  stations,  carried  under  a  different  statutory  section,  were  allowed  to  satisfy  the  set-  aside 
 obligations.  Moreover,  public  interest  set-  aside  programming  must  be  made  available  to  all  subscribers  of 
 a  satellite  carrier  without  additional  charge.  218  This  is  a  condition  that  cannot  be  met  through  the  carriage 
 of  NCE  stations  under  the  SHVIA  because  the  compulsory  license  prohibits  satellite  carriers  from 
 offering  a  local  NCE  station  signal  to  subscribers  in  a  non-  local  market.  In  this  context,  it  is  also 
 important  to  note  that  cable  operators  have  carriage  obligations  under  Title  VI  that  are  mutually  exclusive. 
 For  example,  cable  operators  have  an  obligation  to  establish  public,  educational,  and  government  access 
 (  PEG)  channels  under  Section  611  of  the  Act  and  pursuant  to  a  local  franchising  agreement.  We  note 
 that  in  this  context,  a  cable  operator  cannot  unilaterally  satisfy  its  PEG  requirements  by  carrying  NCE 
 stations  under  Section  615. 

 90.  PBS  Feed.  KQED  requests  the  Commission  to  clarify  that  satellite  carriers  may  not  avoid  their  local  NCE  station  carriage  obligations  simply  by  carrying  the  national  PBS  satellite  feed.  219 
 According  to  KQED,  the  national  PBS  feed  was  intended  as  an  interim  measure  to  facilitate  the  satellite 
 industrys  ability  to  offer  public  television  service  to  their  subscribers  while  the  industry  organized  to 
 comply  with  Section  338.  On  this  point,  we  note  that  the  statutory  copyright  license  for  the  PBS  feed 

 215  DirecTV  Comments  at  39-  40;  BellSouth  Comments  at  24.  47  U.  S.  C.  335;  47  C.  F.  R.  100.5(  c);  see  also 
 Implementation  of  Section  25  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992;  Direct  Broadcast  Satellite  Public  Interest  Obligations,  Report  and  Order,  13  FCC  Rcd  23254  (1998)(  Direct  Broadcast 

 Satellite  Public  Interest  Obligations  Order). 
 216  AAPTS  Comments  at  10. 

 217  47  U.  S.  C.  335;  Direct  Broadcast  Satellite  Public  Interest  Obligations  Order,  13  FCC  Rcd  at  23385. 
 218  Id.  at  23285. 
 219  KQED  Comments  at  3;  Detroit  Television  Reply  Comments  at  1. 
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 Federal  Communications  Commission  FCC  00-  417 
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 expires  on  January  1,  2002.  220  This  expiration  date  coincides  with  the  onset  of  the  Section  338  obligations 
 for  satellite  carriers.  The  SHVIA  purposefully  instituted  a  phase-  out  and  phase-  in  with  regard  to  the  two 
 compulsory  license  provisions  so  that  satellite  subscribers,  in  markets  with  local-  into-  local  service,  would 
 have  continuous  access  to  public  broadcasting  programming. 

 G.  Channel  Positioning 
 91.  Placement.  Section  338(  d)  of  the  Communications  Act  states  that: 
 No  satellite  carrier  shall  be  required  to  provide  the  signal  of  a  local  television  broadcast  station  to 
 subscribers  in  that  stations  local  market  on  any  particular  channel  number  or  to  provide  the 
 signals  in  any  particular  order,  except  that  the  satellite  carrier  shall  retransmit  the  signal  of  the 
 local  television  broadcast  stations  to  subscribers  in  the  stations  local  market  on  contiguous 
 channels  and  provide  access  to  such  stations  signals  at  a  nondiscriminatory  price  and  in  a 
 nondiscriminatory  manner  on  any  navigational  device,  on-  screen  program  guide,  or  menu.  221 

 The  Conference  Report  notes  that  the  obligation  to  carry  local  stations  on  contiguous  channels  is  to  ensure 
 that  satellite  carriers  position  local  stations  in  a  way  that  is  convenient  and  practically  accessible  for 
 consumers.  222  We  stated  in  the  Notice  that  the  statutory  directive  for  channel  positioning  confirms  that 
 satellite  carriers  are  required  to  present  local  broadcast  channels  to  satellite  subscribers  in  an  uninterrupted 
 series.  223  We  sought  comment,  however,  on  whether  broadcast  signals  carried  under  retransmission  consent 
 must  be  contiguous  with  the  television  stations  carried  under  Section  338  or  whether  they  may  be  presented 
 to  satellite  subscribers  in  a  non-  contiguous  manner.  224 

 92.  ALTV  submits  that  the  signals  of  all  local  television  stations,  including  retransmission  consent  stations,  must  be  provided  on  contiguous  channels.  225  AAPTS  argues  that  local  broadcast  signals 
 are  to  be  grouped  together  regardless  of  their  regulatory  status  because  such  grouping  makes  all  local 
 signals  more  easily  accessible  to  viewers.  226  NAB  suggests  that  all  stations  should  appear  on  channel 

 220  17  U.  S.  C.  119(  a). 
 221  47  U.  S.  C.  338(  f)(  1).  The  satellite  carriage  channel  positioning  obligation  is  different  from  the  requirement  imposed 
 on  cable  operators.  Under  Section  614(  b)(  6)  commercial  television  stations  may  choose  among  four  channel 
 positioning  options  vis-  -  vis  cable  operators:  (1)  the  channel  number  on  which  the  station  broadcasts  over-  the-  air;  (2) 
 the  channel  on  which  the  station  was  carried  on  July  19,  1985;  (3)  the  channel  on  which  it  was  carried  on  January  1, 
 1992;  and  (4)  any  other  channel  number  as  is  mutually  agreed  upon  by  the  station  and  the  cable  operator.  47  U.  S.  C. 
 534(  b)(  6);  47  C.  F.  R.  76.57(  a).  Noncommercial  television  stations  have  three  channel  positioning  options  under 
 Section  615(  g)(  5):  (1)  the  channel  number  on  which  the  station  is  broadcast  over-  the-  air;  (2)  the  channel  on  which  the 
 station  was  carried  on  July  19,  1985;  and  (3)  any  other  channel  number  as  is  mutually  agreed  upon  by  the  station  and 
 the  cable  operator.  47  U.  S.  C.  535(  g)(  5);  47  C.  F.  R.  76.  57(  b). 

 222  Conference  Report  at  H11795. 

 223  Notice,  15  FCC  Rcd  at  12161. 
 224  Id. 
 225  ALTV  Comments  at  iii. 
 226  AAPTS  Comments  at  26-  27. 
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 numbers  that  are  in  the  order  in  which  the  stations  appear  to  the  over-  the-  air  receiver.  227  BellSouth  argues 
 against  requiring  contiguous  channel  location  for  retransmission  consent  stations.  228  It  also  asserts  that 
 Section  338(  d)  is  explicit  that  a  satellite  carrier  cannot  be  required  to  provide  carry  mandatory  carriage 
 stations  in  any  particular  order.  229 

 93.  DirecTV  urges  the  Commission  to  interpret  the  term  contiguous  as  allowing  satellite  carriers  to  form  channel  neighborhoods  of  local  television  broadcast  stations  which  consist  of 
 contiguous  channels,  but  some  of  which  remain  vacant.  230  ALTV  believes  that  this  proposal  is  consistent 
 with  the  contiguous  channel  requirement  provided  that  all  local  stations  signals  are  carried  in  an 
 uninterrupted  series  with  no  intervening  channels  of  programming.  231  NAB  does  not  object  to  DirecTVs 
 neighborhood  proposal,  provided  that:  (1)  the  neighborhood  includes  all  the  local  television  stations, 
 including  retransmission  consent  television  stations;  (2)  the  television  stations  are  listed  in  the  same  order 
 as  their  over-  the-  air  channel  numbers,  and  (3)  the  neighborhood  includes  only  local  TV  stations.  232 

 94.  Based  on  the  language  of  the  statute,  we  find  that  the  channel  placement  provision  encompasses  all  local  television  stations.  Therefore,  a  satellite  carrier  is  obligated  to  carry  both 
 retransmission  consent  stations  and  mandatory  carriage  stations  in  a  block  on  the  satellite  carriers 
 channel  line-  up.  We  find  that  DirecTVs  neighborhood  proposal  is  consistent  with  the  statutory  language 
 as  long  as  the  local  channel  block  is  not  interrupted  by  non-  local  programming.  233  We  do  not  believe, 
 however,  that  the  statute  requires  a  satellite  carrier  to  place  local  television  stations  in  any  particular 
 order.  Such  restrictive  language  is  not  found  in  Section  338(  d). 

 95.  Nondiscriminatory  Program  Guide  Treatment.  In  the  Notice,  we  sought  comment  on  the  phrase,  provide  access  to  such  stations  signals.  .  .  .  in  a  nondiscriminatory  manner  on  any 
 navigational  device,  on-  screen  program  guide,  or  menu.  234  We  specifically  sought  comment  on  what 
 rules  the  Commission  should  develop  to  ensure  that  television  stations  are  accessible  to  satellite 
 subscribers  on  nondiscriminatory  terms.  We  asked  whether  there  were  any  existing  Commission  rules  that 
 we  may  use  as  a  model  to  develop  regulations  for  this  particular  situation.  We  also  sought  comment  on 
 whether  Congress  meant  that  electronic  program  guide  information  concerning  required  television  station 

 227  NAB  Comments  at  15,  n.  13. 
 228  BellSouth  Comments  at  24. 
 229  Id. 
 230  DirecTV  Comments  at  40.  For  example,  channels  970-  985  on  DirecTVs  channel  line-  up  would  be  the  channel 
 neighborhood  for  the  Washington,  D.  C.  (Hagerstown)  market  stations.  However,  channels  979  and  981  may  not  be 
 programmed  and  remain  dark. 

 231  ALTV  Reply  Comments  at  i. 

 232  NAB  Reply  Comments  at  27. 
 233  The  term  contiguous  in  this  context  refers  to  the  tuning  of  channels  and  easy  accessibility  on  the  satellite 
 carriers  channel  line-  up.  The  term  does  not  refer  to  frequency  continuity. 
 234  Notice,  15  FCC  Rcd  at  12162  citing  47  U.  S.  C.  338(  d). 
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 signals  should  be  presented  to  subscribers  in  the  same  fashion  as  other  programming  services  provided  by 
 the  satellite  carrier.  235 

 96.  AAPTS  urges  the  Commission  to  adopt  nondiscrimination  rules  that  parallel  the  open  video  system  (  OVS)  requirements.  It  argues  that  such  rules  should  ensure  that  all  television  broadcast 
 stations,  including  NCE  stations,  are  represented  in  a  nondiscriminatory  fashion  on  the  electronic  program 
 guide,  menu,  and/  or  navigation  device  provided  by  the  satellite  carrier.  236  NAB  provides  a  list  of 
 suggestions  regarding  how  satellite  carriers  should  treat  television  stations  to  achieve  the  statutes 
 objectives.  237  One  of  those  examples  is  to  bar  satellite  carriers  from  requiring  viewers  to  take  extra  steps 
 (e.  g.,  mouse  or  remote  control  clicks)  to  obtain  access  to  particular  local  stations,  or  from  placing  carry 
 one,  carry  all  stations  on  different  screens.  238  We  find  that  the  broadcasters  suggestions  are  too 
 restrictive  to  be  implemented.  The  open  video  system  model,  as  BellSouth  points  out,  is  a  statutory 
 creation  with  unique  requirements  and  characteristics  not  meant  to  be  transferred  to  other  contexts.  239 
 The  open  video  system  requirements  address  access  to  a  video  delivery  platform  where  two-  thirds  of 
 system  capacity  must  be  made  available  at  a  nondiscriminatory  price  to  outside  programmers.  240  The  OVS 
 provisions  do  not  directly  address  concerns  involved  here,  such  as  nondiscriminatory  treatment  on  an 
 electronic  program  guide.  We  also  find  that  NABs  proposals  involve  too  much  detail  to  be  implemented 
 as  rules.  We  do  not  believe  that  Congress  meant  to  bar  satellite  carriers  from  requiring  viewers  to  take 
 extra  steps  to  reach  a  local  television  station  on  an  electronic  program  guide,  when  it  promulgated  the 
 SHVIA. 

 97.  In  this  context,  we  hold  that  a  satellite  carrier  should  treat  all  local  television  stations  on  EPGs  in  the  same  manner.  Program  guide  presentation  and  information  about  a  local  independent 
 television  station,  or  an  NCE  station,  should  be  similar  to  that  given  to  a  local  network  affiliate  carried 
 under  retransmission  consent.  This  requirement  is  similar  to  the  statutes  treatment  of  television  station 
 picture  quality  under  the  material  degradation  provisions,  discussed  below. 

 98.  Nondiscriminatory  Price.  In  the  Notice,  we  inquired  about  the  statutory  phrase,  provide  access  to  such  stations  signals  at  a  nondiscriminatory  price,  and  asked  whether  Congress 
 meant  that  television  station  signals  carried  pursuant  to  mandatory  carriage  requests  may  cost  no  more  per 
 channel  to  subscribers  than  packages  of  retransmission  consent  television  station  signals  or  other  satellite 

 235  Id. 
 236  AAPTS  Comments  at  29-  30.  AAPTS  states  that  representation  in  a  nondiscriminatory  fashion  means  that  the 
 NCE  station  logo,  for  example,  should  be  given  the  same  prominence  and  placement  as  that  of  the  most  favored 
 channel.  AAPTS  also  asserts  that  the  method,  by  which  the  NCE  station  is  selected,  whether  by  channel  number  or 
 interaction  with  a  program  guide,  should  be  comparable  to  the  method  used  to  select  the  most-  favored  channel.  Id. 

 237  NAB  Comments  at  16,  quoting  47  U.  S.  C.    338(  d). 

 238  Id.  at  17. 
 239  BellSouth  states  that  those  rules  implement  an  explicitly  different  statutory/  regulatory  model  for  the  delivery  of 
 video  services,  and  are  uniquely  designed  to  implement  that  model  and  the  combination  of  open  video  platform  and 
 cable  regulatory  elements  contained  within  it.  BellSouth  Reply  Comments  at  31. 

 240  47  U.  S.  C.  1503(  c). 
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 service  packages.  241  In  response  to  this  inquiry,  ALTV  and  NAB  assert  that  all  local  signals  should  be 
 included  in  a  single  package.  242  AAPTS  asserts  that  NCE  mandatory  carriage  television  stations  should  be 
 offered  as  part  of  the  existing  local  broadcast  signal  package  without  any  additional  cost  to  the 
 subscriber.  243  BellSouth  argues  that  a  satellite  carrier  has  the  right  to  place  local  television  signals  on  a 
 pay  tier,  an  enhanced  service  tier,  or  any  other  tier  of  service,  as  long  as  all  local  television  stations  are  on 
 this  tier  and  the  viewing  of  no  one  station  costs  the  viewer  more  than  the  viewing  of  any  other  station  in 
 the  DMA.  244  Echostar  comments  that  one  of  the  crucial  differences  between  cable  and  satellite  carriers  is 
 that  the  latter  do  not  have  obligations  as  to  the  tier  in  which  local  signals  are  to  be  offered.  It  states  that 
 channel  placement  requirements  of  Section  338  cannot  be  used  as  a  lever  to  impose  such  obligations  on 
 satellite  carriers.  245 

 99.  We  do  not  believe  that  the  statute  requires  satellite  carriers  to  sell  all  local  television  stations  as  one  package  to  subscribers.  As  Echostar  points  out,  Congress  did  not  intend  to  establish  a 
 basic  service  tier-  type  requirement  for  satellite  carriers  when  it  implemented  Section  338.  Nor  did 
 Congress  explicitly  prohibit  the  sale  of  local  television  station  signals  on  an  a  la  carte  basis.  Rather, 
 Section  338s  anti-  discrimination  language  prohibits  satellite  carriers  from  implementing  pricing  schemes 
 that  effectively  deter  subscribers  from  purchasing  some,  but  not  all,  local  television  station  signals.  Thus, 
 we  find  that  a  satellite  carrier  must  offer  local  television  signals,  as  a  package  or  a  la  carte,  at  comparable 
 rates. 

 100.  ALTV  and  NAB  asks  the  Commission  to  rule  that  no  new  equipment  should  be  required  to  access  some,  but  not  all  of  the  local  signals  in  a  market.  According  to  ALTV,  such  a  pronouncement  is 
 necessary  to  prevent  discriminatory  treatment  of  mandatory  carriage  television  stations.  246  NAB  also 
 suggests  that  satellite  carriers  should  be  barred  from  placing  mandatory  carriage  television  stations  on  any 
 satellite  that  would  require  a  subscriber  to  purchase  another  dish  to  receive  such  signals.  BellSouth 
 agrees  in  principle  noting  that  the  channel  placement  provisions  of  Section  338  were  designed  to  ensure 
 that  dominant  stations  in  a  DMA  receive  no  better  carriage  treatment  than  other  stations.  247  On  the  other 
 hand,  Echostar  comments  that  one  of  the  obligations  advocated  by  the  NAB    that  the  local  stations  be 
 available  from  the  same  orbital  location    is  tantamount  to  a  provision  that  had  been  included  in  draft 
 legislation  prior  to  the  passage  of  SHVIA.  248  Echostar  states  that  such  provision,  which  was  dropped 
 from  the  final  version  of  Section  338,  would  have  barred  satellite  carriers  from  transmitting  local  stations 
 in  a  manner  that  would  require  additional  reception  equipment.  Echostar  argues  that  the  Commission 

 241  Notice,  15  FCC  Rcd  at  12162. 
 242  ALTV  Comments  at  16;  NAB  Comments  at  17. 
 243  AAPTS  Comments  at  29. 
 244  BellSouth  notes  that  it  is  not  endorsing  the  concept  that  station  signals  cannot  be  sold  on  an  a  la  carte  basis. 
 BellSouth  Reply  Comments  at  28. 
 245  Echostar  Comments  at  iii. 

 246  NAB  Comments  at  17-  18.  ALTV  Comments  at  20-  21. 
 247  BellSouth  Reply  Comments  at  27,  citing  Conf.  Rep.  at  S14711. 
 248  Echostar  Reply  Comments  at  iv. 
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 cannot  implement  a  rule  similar  to  this  provision  when  Congress  decided  not  to  include  such  a 
 requirement  in  the  SHVIA.  249 

 101.  We  find  that  the  language  of  Section  338(  d)  covers  the  additional  equipment  concerns  raised  by  the  parties  and  bars  satellite  carriers  from  requiring  subscribers  to  purchase  additional 
 equipment  when  television  stations  from  one  market  are  segregated  and  carried  on  separate  satellites. 
 However,  we  are  not  prohibiting  a  satellite  carrier  from  requiring  a  subscriber  to  pay  for  an  additional 
 dish  in  order  to  receive  all  television  stations  from  a  single  market.  For  example,  DirecTV  may  require  an 
 additional  dish  to  receive  all  television  stations  from  the  Baltimore  market,  but  it  may  not  require 
 subscribers  to  purchase  the  same  to  receive  some  Baltimore  stations  where  the  others  are  available  using 
 existing  equipment. 

 H.  Content  To  Be  Carried 
 102.  Programming  in  the  Vertical  Blanking  Interval.  Section  338(  g)  states  that,  The  regulations  prescribed  [under  Section  338]  shall  include  requirements  on  satellite  carriers  that  are 
 comparable  to  the  requirements  on  cable  operators  under  Sections  614(  b)(  3).  .  .  .and  615(  g)(  1).  250 
 Section  614(  b)(  3)  states  that: 

 A  cable  operator  shall  carry  in  its  entirety,  on  the  cable  system  of  that  operator,  the  primary  video, 
 accompanying  audio,  and  line  21  closed  caption  transmission  of  each  of  the  local  commercial 
 television  stations  carried  on  the  cable  system  and,  to  the  extent  technically  feasible,  program-related 
 material  carried  in  the  vertical  blanking  interval  [  VBI]  or  on  subcarriers. 
 Retransmission  of  other  nonprogram-  related  material  (including  teletext  and  other  subscription 
 and  advertiser  supported  information  services)  shall  be  at  the  discretion  of  the  cable  operator. 
 Where  appropriate  and  feasible,  operators  may  delete  signal  enhancements,  such  as  ghost 
 canceling,  from  the  broadcast  signal  and  employ  such  enhancements  at  the  system  headend  or 
 headends.  251 

 Section  615(  g)(  1),  which  is  the  noncommercial  equivalent  of  the  commercial  television  station  provision 
 in  Section  614(  b)(  3),  states  that: 

 A  cable  operator  shall  retransmit  in  its  entirety  the  primary  video,  accompanying  audio,  and  line 
 21  closed  caption  transmission  of  each  qualified  local  noncommercial  educational  television 
 station  whose  signal  is  carried  on  the  cable  system,  and,  to  the  extent  technically  feasible, 
 program-  related  material  carried  in  the  vertical  blanking  interval,  or  on  subcarriers,  that  may  be 
 necessary  for  receipt  of  programming  by  handicapped  persons  or  educational  or  language 
 purposes.  Retransmission  of  other  material  in  the  vertical  blanking  interval  or  on  subcarriers 
 shall  be  within  the  discretion  of  the  cable  operator.  252 

 249  Id. 
 250  47  U.  S.  C.  338(  g). 
 251  47  U.  S.  C.  534(  b)(  3). 
 252  47  U.  S.  C.  535(  g)(  1). 
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 We  sought  comment  on  the  applicability  of  these  two  similar  cable  requirements  in  the  satellite  carriage 
 context,  especially  in  light  of  the  term  comparable  contained  in  Section  338(  g),  above.  253  We  note  that 
 the  VBI  contained  in  a  television  broadcasts  signal  is  composed  of  many  lines  of  information.  Our 
 concern  here  is  with  those  lines  of  the  VBI  where  certain  types  of  data,  such  as  closed  captioning 
 information,  are  found.  254  We  also  note  that  a  satellite  carrier  does  not  retransmit  VBI  information  as  it  is 
 received.  Rather,  it  converts  the  data  from  an  analog  to  a  digital  form  and  carries  such  data  as  a  digital 
 stream  to  the  subscribers  home.  255  The  set-  top  box  then  converts  the  digital  stream  and  makes  the  data 
 available  for  subscriber  use. 

 103.  Several  commenters  argue  that  the  Commission  should  apply  the  applicable  cable  provisions  to  satellite  carriers.  256  NAB  comments  that  satellite  carriers  should  carry  whatever  information 
 the  broadcaster  may  have  embedded  in  its  analog  VBI.  257  BellSouth,  however,  seeks  to  limit  the  content-to- 
 be-  carried  requirements  for  satellite  carriers  to  only  closed  captioning  information  until  the  technical 
 feasibility  of  other  applications  can  be  tested  and  agreed  to  on  a  case-  by-  case  basis.  258  We  will  apply  the 
 current  cable  content-  to-  be-  carried  requirements  to  satellite  carriers.  We  are  not  persuaded  that  satellite 
 carriers  are  unable  to  carry  the  relevant  data  currently  contained  in  the  VBI.  Nor  has  any  satellite  carrier 
 proffered  a  credible  argument  as  to  why  we  should  treat  them  differently  from  cable  operators  in  this 
 context.  We  therefore  require  satellite  carriers  to  carry  the  same  program-  related  vertical  blanking 
 information  as  cable  operators,  including  but  not  limited  to,  closed  captioning,  259  Nielsen  rating  codes,  V-chip 
 information  and  for  NCE  stations,  material  necessary  for  the  receipt  of  programs  by  people  with 
 disabilities  as  well  as  education  and  language-  related  material.  We  believe  our  decisions  here  will  further 
 the  goals  of  the  SHVIA  and  are  consistent  with  the  cable  television  requirements. 

 104.  Program-  Related.  In  the  Broadcast  Signal  Carriage  Order,  the  Commission  decided  that  the  factors  enumerated  in  WGN  Continental  Broadcasting,  Co.  v.  United  Video  Inc.  ("  WGN")  260 

 253  Notice,  15  FCC  Rcd  at  12162-  63. 
 254  Line  21,  for  example,  has  several  fields  that  can  be  used  for  a  variety  of  data  purposes. 
 255  See,  e.  g.,  BellSouth  Comments  at  24.  (All  direct-  to-  home  satellite  providers  use  digital  modulation,  and  for  that 
 reason,  there  is  no  VBI  in  the  digital  bitstream.  VBI  information  must  be  stripped  from  the  analog  signal  and  re-created 
 as  a  bitstream.) 

 256  See  ALTV  Comments  at  iv;  NCTA  Comments  at  6;  LTVS  Comments  at  24;  Paxson  Comments  at  6. 

 257  NAB  Comments  at  18-  19. 
 258  BellSouth  Comments  at  25. 
 259  We  did  not  receive  any  comments  stating  that  a  satellite  carrier  cannot  carry  closed  captioning  information. 
 260  WGN,  693  F.  2d  622  (7th  Cir.  1982).  The  WGN  court  set  out  three  factors  for  making  a  copyright  determination. 
 First,  the  broadcaster  must  intend  for  the  information  in  the  VBI  to  be  seen  by  the  same  viewers  who  are  watching 
 the  video  signal.  Second,  the  VBI  information  must  be  available  during  the  same  interval  of  time  as  the  video 
 signal.  Third,  the  VBI  information  must  be  an  integral  part  of  the  program.  The  court  in  WGN  held  that  if  the 
 information  in  the  VBI  is  intended  to  be  seen  by  the  viewers  who  are  watching  the  video  signal,  during  the  same 
 interval  of  time  as  the  video  signal,  and  as  an  integral  part  of  the  program  on  the  video  signal,  then  the  VBI  and  the 
 video  signal  are  one  copyrighted  expression  and  must  both  be  carried  if  one  is  to  be  carried.  WGN,  693  F.  2d  at  626. 
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 provide  useful  guidance  for  what  constitutes  program-  related  material.  261  The  WGN  case  addressed  the 
 extent  to  which  the  copyright  on  a  television  program  also  included  program  material  in  the  VBI  of  the 
 signal.  Under  the  cable  carriage  rules,  all  program-  related  broadcast  material  must  be  carried.  We  sought 
 comment  on  whether  the  WGN  program-  related  analysis  applies  in  the  context  of  satellite  broadcast  signal 
 carriage.  Very  few  parties  provided  comments  on  this  issue.  Of  those  who  did,  there  were  no  negative 
 arguments  made.  BellSouth,  for  example,  has  no  objection  to  use  of  the  WGN  criteria  to  determine  what 
 content  is  program  related  and  must  be  carried.  Given  the  dearth  of  opposition  to  the  WGN  factors  and 
 our  cable  program-  related  decisions,  we  hereby  incorporate  all  Commission  policies  and  references 
 regarding  the  term  program-  related  into  the  satellite  carriage  context.  This  measure,  again,  serves  to 
 align  the  carriage  requirements  imposed  both  on  cable  operators  and  satellite  carriers.  Moreover,  since 
 the  WGN  case  centered  on  copyright  law,  and  the  SHVIA  and  Section  338  are  also  copyright-  based,  we 
 believe  that  adopting  such  a  policy  for  satellite  carriers  is  reasonable  and  appropriate. 

 105.  In  the  Notice,  we  recognized  that  the  Commission  has  not  specifically  defined  primary  video  in  the  rules  and  has  instead  relied  on  the  language  of  Section  614(  b)(  3)(  B)  to  clarify  the  scope  of 
 the  term  for  purposes  of  cable  broadcast  signal  carriage.  262  In  view  of  this  history,  we  sought  comment  on 
 whether  a  specific  definition  of  primary  video  is  required  for  satellite  carriers  to  fulfill  the  requirements 
 contained  in  Section  338.  Network  Affiliates  state  that  a  specific  definition  of  primary  video  need  not  be 
 adopted  for  the  satellite  carriage  rules.  263  Network  Affiliates  assert  that  the  term  has  proved  self-explanatory 
 and  non-  controversial  as  applied  to  cable  carriage  of  analog  signals  and  should  be  equally  so 
 in  the  satellite  context.  264  AAPTS  asserts  that  the  Commission  has  not  further  defined  primary  video  for 
 the  cable  carriage  rules,  and  in  the  seven  years  that  the  rules  have  been  in  effect,  this  lack  of  definition  has 
 not  been  a  problem.  265  We  agree  that  the  primary  video  concept  has  worked  in  the  cable  carriage  context. 
 We  therefore  incorporate  the  cable  version  of  primary  video  into  the  satellite  broadcast  signal  carriage 
 rules.  Given  these  indicia,  and  the  fact  that  implementing  the  cable  definition  will  further  the 
 Congressional  goal  of  comparability,  we  believe  our  finding  serves  the  public  interest.  We  note  that  the 
 Act  also  mandates  that,  in  addition  to  primary  video,  accompanying  audio  must  be  carried.  266  Therefore, 
 satellite  carriers  are  required  to  carry  the  secondary  audio  programming  (  SAP)  material  that 
 accompanies  many  broadcast  television  programs. 

 261  Must  Carry  Order,  8  FCC  Rcd  at  2986.  The  Commission  declined  to  further  define  "program-  related,"  apart  from 
 the  WGN  analysis,  noting  that  carriage  of  information  in  the  VBI  was  rapidly  evolving.  Close  captioning 
 information,  and  television  ratings  data  are  some  examples  of  the  material  carried  in  the  vertical  blanking  interval. 
 Id. 

 262  Notice  at    31.  See  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992 
 Broadcast  Signal  Carriage  Issues,  Notice  of  Proposed  Rulemaking,  7  FCC  Rcd  8055,  8062  (1992)  (Section 
 614(  b)(  3)(  B)  provides  that  the  cable  operator  shall  carry  the  entirety  of  the  program  schedule  of  any  television 
 station  included  on  its  system  unless  carriage  of  specific  programming  is  prohibited,  and  other  programming  is 
 authorized  to  be  substituted,  pursuant  to  Section  76.  67  (regarding  sports  broadcasts)  or  Subpart  F  of  Part  76  of  the 
 Commissions  rules  (regarding  nonduplication  protection  and  syndicated  exclusivity)). 

 263  Network  Affiliates  Comments  at  19. 

 264  Id. 
 265  AAPTS  Comments  at  23. 
 266  See  47  U.  S.  C.  534(  b)(  3);  47  U.  S.  C.  535(  g)(  1). 
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 106.  Technical  Feasibility.  With  regard  to  the  "technical  feasibility"  of  the  carriage  of  program-  related  material  in  the  VBI  or  on  subcarriers,  the  Commission  stated  in  the  Broadcast  Signal 
 Carriage  Order  that  such  carriage  should  be  considered  "technically  feasible"  if  it  does  not  require  the 
 cable  operator  to  incur  additional  expenses  and  to  change  or  add  equipment  in  order  to  carry  such 
 mat  erial.  267  The  Commission  noted  that  it  would  consider  signal  carriage  to  be  "technically  feasible"  if 
 only  nominal  costs,  additions  or  changes  of  equipment  are  necessary.  268  We  sought  comment  on  whether 
 the  consideration  of  technical  feasibility  should  be  different  in  the  context  of  satellite  broadcast  signal 
 carriage.  269 

 107.  AAPTS  states  that  there  is  no  technical  impediment  to  the  carriage  of  VBI  material  over  satellite;  it  is  simply  a  question  of  capacity.  270  LTVS  asserts  that  it  is  technically  possible  for  a  satellite 
 carrier  to  carry  closed  captioning  information,  audience  measurement  and/  or  ratings  data,  and  SAP 
 audio.  271  While  BellSouth  does  not  dispute  that  satellite  carriers  can  and  do  carry,  without  significant 
 expense,  the  program-  related  material  which  television  stations  currently  deliver  through  the  VBI,  it 
 argues  that  requiring  carriage  of  different,  additional  or  future  VBI-  carried  information  may  be  expensive 
 and  may  impose  significant  spectrum  capacity  burdens.  272  DirecTV  asserts  that  billions  of  dollars  of 
 additional  investment  would  be  required  to  retrofit  its  satellite  system  so  that  it  could  carry  additional 
 material  on  the  VBI  and  allow  consumers  to  view  the  additional  material.  273  AAPTS  asserts  that,  given 
 the  widely  divergent  viewpoints  on  this  issue  within  the  satellite  industry,  the  Commission  cannot  accept 
 DirecTVs  contention  that  it  is  not  technically  feasible  for  carriers  to  retransmit  program-  related  material 
 in  the  VBI.  274  AAPTS  further  asserts  that  DirecTVs  satellite  systems  are  already  being  designed  to 
 deliver  data  and  that  even  the  first  DBS  receivers  had  both  a  wide-  band  and  a  low-  speed  data  port.  275 

 108.  Based  on  the  arguments  presented,  we  find  that  it  is  technically  feasible  for  satellite  carriers  to  carry  the  current  program-  related  material  contained  in  a  television  stations  VBI.  DirecTV  has 
 not  provided  detailed  evidence  to  support  its  claim  that  it  will  incur  financial  hardship  if  it  were  required 
 to  carry  such  program  content.  We  also  find  it  significant  that  LTVS,  a  future  satellite  carrier,  admits  that 
 it  would  have  no  difficulty  in  carrying  VBI  information.  With  regard  to  BellSouths  argument,  there 
 could  be  new  kinds  of  program-  related  data  in  the  VBI  that  would  cause  the  satellite  carrier  to  incur 

 267  Must  Carry  Order,  8  FCC  Rcd  at  2986. 
 268  Id. 
 269  Notice,  15  FCC  Rcd  at  12163. 
 270  AAPTS  Comments  at  24. 
 271  LTVS  Comments  at  26. 
 272  Id. 
 273  DirecTV  Comments  at  41.  DirecTV  states  that  the  encoding  and  processing  equipment  used  to  transmit 
 programming  from  the  uplink  facility  to  the  appropriate  transponder  would  have  to  be  modified,  and  the  receivers 
 used  by  customers  who  subscribe  to  its  service  programming  would  have  to  be  replaced  in  order  to  support  the 
 additional  functions. 

 274  AAPTS  Reply  Comments  at  21. 

 275  Id. 
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 inordinate  expenses  and  to  change  or  add  a  substantial  amount  of  equipment.  We  will  address  such  issues 
 on  a  case-  by-  case  basis  in  the  future. 

 109.  In  this  context,  DirecTV  and  LTVS  also  urge  the  Commission  to  recognize  that  satellite  systems  must  be  designed  and  constructed  far  in  advance  of  the  date  for  commencement  of  service.  276 
 They  state  that  once  the  systems  are  deployed  in  orbit,  few  changes  can  be  made  without  necessitating  the 
 complete  replacement  of  the  satellite  systems  at  issue.  277  While  we  understand  the  challenges  involved  in 
 constructing,  designing,  and  launching  new  satellites,  the  arguments  expressed  by  the  satellite  carriers 
 are  unrelated  to  our  discussion  here.  The  underlying  concern  of  the  carriers  is  that  the  carriage  of  VBI 
 information  requires  channel  capacity.  On  this  point,  Congress  was  cognizant  of  channel  capacity 
 concerns  when  the  SHVIA  was  being  drafted,  yet  it  still  instructed  the  Commission  to  apply  the  cable 
 content-  to-  be  carried  requirements  to  satellite  carriers.  We  cannot  relieve  satellite  carriers  of  the  carriage 
 obligations  Congress  imposed  in  the  SHVIA  in  this  instance. 

 I.  Material  Degradation 
 110.  Picture  Quality.  Section  338(  g)  states  that,  The  regulations  prescribed  [by  the  Commission  under  Section  338]  shall  include  requirements  on  satellite  carriers  that  are  comparable  to  the 
 requirements  on  cable  operators  under  sections  614(  b)(  4).  .  .  .and  615(  g)(  2).  278  Section  614(  b)(  4)(  A) 
 states  that, 

 The  signals  of  local  commercial  television  stations  that  a  cable  operator  carries  shall  be  carried 
 without  material  degradation.  The  Commission  shall  adopt  carriage  standards  to  ensure  that,  to 
 the  extent  technically  feasible,  the  quality  of  signal  processing  and  carriage  provided  by  a  cable 
 system  for  the  carriage  of  local  commercial  television  stations  will  be  no  less  than  that  provided 
 by  the  system  for  carriage  of  any  other  type  of  signal.  279 

 Section  615(  g)(  2),  which  is  the  noncommercial  equivalent  of  the  commercial  television  station  provision 
 in  Section  614(  b)(  4),  states  that, 

 A  cable  operator  shall  provide  each  qualified  local  noncommercial  educational  television  station 
 whose  signal  is  carried  in  accordance  with  this  section  with  bandwidth  and  technical  capacity 
 equivalent  to  that  provided  to  commercial  television  broadcast  stations  carried  on  the  cable 
 system  and  shall  carry  the  signal  of  each  qualified  local  noncommercial  educational  television 
 station  without  material  degradation.  280 

 111.  When  implementing  the  material  degradation  provision  for  cable  carriage,  the  Commission  relied  on  the  technical  standards  as  updated  in  the  Cable  Television  Technical  and 

 276  DirecTV  Comments  at  5;  LTVS  Comments  at  4. 
 277  DirecTV  Comments  at  5;  LTVS  Comments  at  4. 
 278  47  U.  S.  C.  338(  g). 
 279  47  U.  S.  C.  534(  b)(  4). 
 280  47  U.  S.  C.  535(  g)(  2). 
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 Operational  Requirements  Report  and  Order,  in  defining  the  scope  of  the  requirement.  281  The  Cable 
 Technical  Report  and  Order  specifically  addressed  the  issue  of  preventing  material  degradation  of  local 
 television  signals  carried  on  cable  systems  by  adopting  a  number  of  technical  standards  and  providing  that 
 cable  operators  must  make  reasonable  efforts  and  use  good  engineering  practices  and  proper  equipment  to 
 guard  against  unnecessary  degradation  in  the  signal  received  and  delivered  to  the  cable  subscriber.  282  The 
 Commission  stated  that  the  standards  adopted  in  the  Cable  Technical  Report  and  Order  were  sufficient  to 
 satisfy  the  material  degradation  requirements  contained  in  the  1992  Cable  Act.  283  In  declining  to  adopt 
 regulations  in  addition  to  those  found  in  the  Cable  Technical  Report  and  Order,  the  Commission  stated 
 that  further  rules  may  have  the  unwarranted  effect  of  impeding  technological  advances  and 
 experimentation  in  the  cable  industry.  284  Standards  specific  to  digital  transmission  were  not  adopted.  We 
 sought  comment  on  whether  reliance  on  Commission  precedent  in  the  cable  carriage  context  regarding 
 material  degradation  was  appropriate  and  whether  technical  standards  mirroring  those  in  the  cable 
 television  field  would  be  warranted.  285  We  also  asked  whether  there  were  certain  compression  ratios  or 
 encoding  techniques  that  should  be  prohibited  because  their  use  would  result  in  material  degradation.  286 

 112.  Commenters  have  proposed  a  variety  of  ways  to  determine  picture  quality  standards.  LTVS  argues  that  the  definition  of  material  degradation  should  include  any  instance  where  a  television 
 broadcast  station  freezes,  tiles,  or  looks  dirty  due  to  a  satellite  carriers  choice  of  encoding  and 
 compression  techniques.  287  AAPTS  advocates  a  rule  requiring  satellite  carriers  to  maintain  local  television 
 stations  at  a  TASO  Grade  2  level  to  avoid  material  degradation  of  these  signals.  288  DirecTV  urges  the 
 Commission  to  refrain  from  setting  standards  for  material  degradation  until  two  industry  committees 
 devoted  to  video  picture  quality,  IEEE  G-  2.1.6  and  ITU  VQEG,  complete  their  work.  289  HBO  argues  that 
 because  of  the  rapid  changes  in  digital  technology,  there  is  significant  danger  that  any  standards  adopted 
 today  would  quickly  be  obsolete,  or  worse,  would  prevent  beneficial  changes  in  transmission  parameters 

 281  See  7  FCC  Rcd  at  8063  citing  Cable  Television  Technical  and  Operational  Requirements  Report  and  Order,  7 
 FCC  Rcd  2021  (1992)  (  Cable  Technical  Report  and  Order)  and  Cable  Television  Technical  and  Operational 
 Requirements  Memorandum  Opinion  and  Order,  7  FCC  Rcd  8676  (1992)  (  Cable  Technical  Reconsideration). 

 282  Must  Carry  Order,  8  FCC  Rcd  at  2990. 

 283  See  id. 
 284  Id. 
 285  Notice,  15  FCC  Rcd  at  12165. 
 286  Id. 
 287  LTVS  Comments  at  27. 
 288  AAPTS  Comments  at  25-  26.  In  response,  BellSouth  argues  that  the  snow  and  interference  effects  that  would  be 
 measured,  subjectively,  to  determine  the  TASO  quality  of  a  signal  simply  do  not  exist  in  a  digital  environment; 
 instead,  the  digital  picture  malformations  (at  least  in  presently  employed  technology)  are  in  the  nature  of  total 
 picture  loss,  block  errors,  tiling  and  other  artifacts  that  do  not  occur  in  an  analog  picture  and  thus  cannot  be  used  to 
 assign  a  TASO  grade  to  a  digital  picture.  BellSouth  Reply  Comments  at  34. 

 289  DirecTV  Comments  at  45. 
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 as  technology  improves.  290  We  decline  to  adopt  specific  picture  quality  standards  at  this  time.  As  we 
 stated  in  the  Notice,  analog  degradation  standards  for  the  cable  industry  were  developed  over  the  course 
 of  several  years  and  evolved  as  technology  changed  and  improved.  291  The  Commission  has  not  had  a 
 significant  opportunity  to  evaluate  satellite  delivery  of  broadcast  signals.  We  agree  with  DirecTV  that  it 
 would  be  premature  for  the  Commission  to  adopt  specific  picture  quality  standards  at  this  time. 

 113.  The  Conference  Report  noted  that  because  of  constraints  on  the  use  of  satellite  spectrum,  satellite  carriers  may  initially  be  limited  in  their  ability  to  deliver  must  carry  signals  into  multiple 
 markets.  292  According  to  the  Conference  Report:  New  compression  technologies,  such  as  video 
 streaming,  may  help  overcome  these  barriers,  and  if  deployed,  could  enable  satellite  carriers  to  deliver 
 must  carry  signals  into  many  more  markets  than  they  could  otherwise.  293  The  Commission  was  urged, 
 pursuant  to  its  obligations  under  Section  338,  or  in  any  other  related  proceedings,  to  not  prohibit  satellite 
 carriers  from  using  reasonable  compression,  reformatting,  or  similar  technologies  to  meet  their  carriage 
 obligations,  consistent  with  existing  authority.  294 

 114.  ALTV  argues  that  those  technical  means  of  enhancing  capacity,  but  degrading  picture  quality,  should  be  prohibited.  ALTV  argues  that  the  Conference  Report  language  on  signal  processing 
 techniques  should  not  be  read  to  eviscerate  the  material  degradation  prohibition.  295  AAPTS  argues  that  the 
 compression  techniques  a  satellite  carrier  employs  should  not  degrade  a  local  broadcast  signal  such  that, 
 to  the  average  viewer,  the  signal  appears  materially  inferior  to  what  the  viewer  might  receive  over  the  air. 
 BellSouth  argues  that  the  Commission  should  decline  to  adopt  signal  quality  standards  that  would 
 contravene  Congresss  mandate  to  not  prohibit  satellite  carriers  from  using  reasonable  compression, 
 reformatting,  or  similar  technologies  to  meet  their  carriage  obligations.  296  DirecTV  argues  against 
 prohibiting  any  encoding  techniques,  compression  ratios  or  the  use  of  similar  technologies  that  would 
 impede  technical  innovation  that  Congress  specifically  sought  to  foster.  297 

 115.  At  the  outset,  we  note  that  our  concerns  here  revolve  around  the  satellite  carriers  treatment  of  the  broadcast  signal  on  the  equipment  it  controls  or  authorizes.  Thus,  our  focus  does  not 
 involve  picture  quality  issues  that  may  arise  because  of  the  type  of  television  receiver  used  since  the 
 satellite  carrier  has  little  control  over  the  use  of  these  devices.  We  also  note  that  the  satellite  carrier  should 
 not  be  responsible  for  a  poor  quality  picture  delivered  to  the  local  receive  facility.  Rather,  the  broadcast 
 station  is  responsible  for  ensuring  that  its  signal  is  delivered  in  good  quality.  298  Moreover,  our  analysis  of 

 290  HBO  Comments  at  3. 

 291  Notice,  15  FCC  Rcd  at  12167. 
 292  Conference  Report  at  H11795. 
 293  Id. 
 294  Id. 
 295  ALTV  Comments  at  35. 
 296  BellSouth  Comments  at  26. 
 297  DirecTV  Comments  at  44. 
 298  See  the  Good  Quality  Signal  Issues  sub-  section,  supra. 
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 material  degradation  recognizes  that  dish  placement  on  or  near  the  subscribers  premises  can  affect  the 
 quality  of  the  picture  received,  but  that  the  satellite  carrier  cannot  control  how  and  where  dishes  are 
 installed.  299 

 116.  It  is  important  to  note  the  technical  steps  in  the  digital  conversion  process  affecting  the  material  degradation  analysis.  300  In  satellite  digital  television  systems,  such  as  those  implemented  by 
 DirecTV  and  Echostar,  there  are  four  layers  of  the  system  where  video  quality  may  be  affected.  301  The 
 first  layer,  known  as  the  picture  layer,  is  where  decisions  are  made  regarding  the  use  of  progressive  or 
 interlace  scanning  techniques  as  well  as  whether  the  picture  will  be  produced  in  a  standard  definition  or 
 high  definition  format.  The  choices  made  in  this  layer  will  not  likely  affect  the  quality  of  retransmitted 
 analog  broadcasts.  302  In  the  second  layer,  the  compression  layer,  decisions  are  made  regarding  the  types 
 of  compression  techniques  used.  The  relevant  digital  standard,  MPEG-  2,  supports  a  wide  range  of 
 compression  ratios  and  data  rates.  At  this  layer,  the  satellite  carrier  attempts  to  maximize  the  number  of 
 channels  carried  on  each  transponder  and  there  is  an  effort  to  place  a  limit  on  the  maximum  data  rate  of 
 each  channel.  Limiting  the  data  rate  may  cause  the  picture  quality  to  degrade,  especially  when  certain 
 video  scenes  involve  rapid  motion  images  or  there  is  a  greater  degree  of  camera  panning  and  zooming. 
 The  third  layer  is  known  as  the  transport  layer  and  this  is  where  the  data  are  structured  and  organized  into 
 data  packets.  Since  most  digital  video  systems  use  the  MPEG  packet  structure,  there  is  little  likelihood 
 that  any  type  of  degradation  would  occur  at  this  level.  The  final  layer  is  the  transmission  layer  and  this  is 
 where  data  are  modulated  on  to  a  carrier  for  transmission.  Satellite  carriers  use  quadrature  phase-  shift 
 keying  or  QPSK  --  as  the  principal  format  when  transmitting  video  programming.  303  The  use  of  high 
 efficiency  modulation  techniques,  such  as  the  cable  industrys  QAM  304  standard,  permit  greater  data  rate 
 throughput.  QPSK,  however,  is  a  lower  order  modulation  and  requires  satellite  carriers  to  limit  the  data 
 rate  or  increase  channel  bandwidth.  The  chances  for  degradation  to  occur  at  this  level  are  tied  to  the 
 limiting  data  rate  technique  in  the  compression  layer. 

 299  For  example,  if  the  dish  is  not  properly  situated  or  is  obfuscated  by  foliage,  the  satellite  carrier  cannot  be  held 
 responsible  for  the  resulting  degradation  of  picture  quality.  We  also  note  that  satellite  signal  degradation  varies 
 from  location  to  location  due  to  atmospheric  differences.  For  example,  satellite  signal  outages  due  to  rain  fade  are 
 more  common  in  Miami,  Florida,  than  in  Cheyenne,  Wyoming. 

 300  This  discussion  was  previously  mentioned  in  the  Notice  in  this  proceeding.  See  Notice,  15  FCC  Rcd  at  12165- 
 67. 
 301  We  note  that  all  digital  video  systems,  including  DBS,  are  based  on  MPEG  standards  for  the  compression  of 
 moving  video  images. 
 302  Picture  quality  questions  in  this  layer  may  arise  in  the  future  when  satellite  carriers  decide  to  retransmit  digital 
 broadcast  signals. 
 303  This  is  also  a  different  digital  format  from  the  vestigial  sideband  modulation  (  VSB)  system  that  broadcasters 
 are  currently  using  to  deliver  over-  the-  air  digital  signals  to  viewers. 
 304  QAM  is  the  acronym  for  quadrature  amplitude  modulation. 
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 117.  We  specifically  note  that  degradation  may  result  when  the  satellite  carrier  encodes  an  analog  broadcast  signal  and  readies  it  for  digital  retransmission.  During  the  encoding  process,  certain 
 artifacts  may  be  introduced  into  the  original  material  that  would  have  an  effect  on  picture  quality.  The 
 most  dominant  artifact  is  quantization  305  noise  in  the  picture.  This  effect  is  often  visible  on  edges  of 
 subjects  and  textured  areas  of  the  image.  It  is  caused  when  there  is  a  high  amount  of  picture  detail  along 
 with  a  high  degree  of  picture  activity  and  levels  of  quantization  are  restricted  due  to  data  rate  reduction. 
 Random  noise  can  also  be  introduced  into  the  source  video.  This  can  result  in  activity  or  busyness  in 
 detail  areas  of  the  picture  and  tiling  or  flicker  in  other  areas  of  the  picture.  Such  effects  are  caused  by  the 
 encoder  attempting  to  encode  random  noise.  During  the  encoding  process  of  rapidly  moving  images, 
 certain  data  reduction  techniques  can  result  in  another  artifact  known  as  dirty  window,  where  noise 
 appears  stationary  while  images  behind  it  are  moving. 

 118.  To  satisfy  the  material  degradation  principles  in  the  Act,  we  will  adopt  a  simple  comparability  rule.  That  is,  a  satellite  carrier  should  treat  all  local  television  stations  in  the  same  manner 
 with  regard  to  picture  quality.  The  signal  processing,  compression  and  encoding  techniques  a  satellite 
 carrier  uses  to  carry  retransmission  consent  stations  should  also  be  used  for  mandatory  carriage  stations. 
 This  rule  comports  with  the  non-  discriminatory  thrust  of  Section  338  and  the  SHVIA.  As  long  as  all  local 
 television  stations  are  treated  equally,  and  the  degradation  resulting  from  processing  these  stations  does 
 not  exceed  the  level  for  the  lowest  quality  non-  broadcast  video  service  provided  by  the  carrier,  we  will 
 refrain  from  prohibiting  compression  methods.  We  recognize  that  compression  technology  is  rapidly 
 evolving  and  we  do  not  want  to  impede  innovation  by  proscribing  certain  techniques.  We  also  believe 
 that  new  compression  methods  may  benefit  subscribers  as  satellite  carriers  could  offer  more  services, 
 particularly  those  involving  broadband  applications. 

 119.  Measurement.  In  the  Notice,  we  sought  suggestions  for  measurement  standards  that  may  be  used  to  address  broadcast  signal  degradation  by  satellite  carriers.  306  We  found  it  necessary  to  request  such 
 information  because  the  Commission  has  had  relatively  little  experience  in  evaluating  quality  in  the  context 
 of  the  analog  to  digital  to  analog  conversion  of  the  type  involved  in  satellite  broadcast  signal  carriage.  307 
 LTVS  states  that  subjective  criteria  should  be  used  to  measure  broadcast  signal  degradation  and  suggests 
 that  the  Commission  consider  the  International  Telecommunications  Unions  recommendations  for 
 broadcast  video  evaluation.  308  NAB,  however,  proposes  the  use  of  three  objective  criteria  --  (a)  carrier-  to-noise 
 (C/  N)  ratio,  (b)  bit  error  rates  (BER),  and  (c)  bit  rate  allocation  for  each  channel  --  that  collectively 
 provide  a  method  for  checking  whether  a  satellite  carrier  is  materially  degrading  a  local  stations  signal 
 in  comparison  to  other  channels.  309  We  decline  to  adopt,  as  a  rule,  any  one  specific  technique  for 

 305  Quantization  is  part  of  the  process  by  which  analog  signals  are  encoded  into  digital  form.  Specifically,  it  is  the 
 classification  step  that  determines  the  number  of  bits  to  be  used  in  the  conversion  process. 
 306  Notice,  15  FCC  Rcd  at  12167. 

 307  In  this  context,  we  note  that  the  broadcast  signal  is  converted  back  to  analog  at  the  satellite  set-  top  box  so  that  the 
 picture  can  be  displayed  on  the  analog  television  receiver. 
 308  LTVS  specifically  notes  two  proposed  international  standards:  (1)  ITU-  R  500-  10  (  methodology  for  the 
 subjective  assessment  of  the  quality  of  television  pictures)  and  (2)  ITU-  R  1129-  2  (  subjective  assessment  of 
 standard  definition  digital  television)  LTVS  Comments  at  28. 

 309  NAB  Comments  at  19.  BellSouth  asserts  that  the  adoption  of  NABs  criteria  would  restrain  technological 
 innovation  beneficial  to  local-  into-  local  station  carriage  and  improvements  in  signal  quality.  BellSouth  Reply 
 Comments  at  35. 
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 measuring  degradation.  Both  LTVS  and  NAB  present  worthy  proposals,  but  they  are  untested  in  the  field 
 of  satellite  broadcast  signal  carriage.  The  more  reasonable  approach  here  is  to  develop  a  uniform 
 measurement  technique  over  time.  After  some  experience  with  satellite  broadcast  signal  carriage, 
 broadcasters  and  satellite  carriers  will  be  able  to  apply  such  a  technique  for  analog-  to-  digital  degradation 
 measurements.  310  At  some  future  point,  the  Commission  will  be  in  a  better  position  to  scrutinize  the 
 techniques  used  and  establish  standards,  if  necessary. 

 J.  Digital  Television 
 120.  Section  338(  g)  states:  The  regulations  prescribed  [by  the  Commission  under  Section  338]  shall  include  requirements  on  satellite  carriers  that  are  comparable  to  the  requirements  on  cable 
 operators  under  sections  614(  b)(  4)  .  .  .  .  311  Section  614(  b)(  4)(  B)  of  the  Act  provides:  At  such  time  as 
 the  Commission  prescribes  modifications  of  the  standards  for  television  broadcast  signals,  the 
 Commission  shall  initiate  a  proceeding  to  establish  any  changes  in  the  signal  carriage  requirements  of 
 cable  television  systems  necessary  to  ensure  cable  carriage  of  such  broadcast  signals  of  local  commercial 
 television  stations  which  have  been  changed  to  conform  with  such  modified  standards.  312  The 
 Conference  Report  stated:  by  directing  the  FCC  to  promulgate  these  must  carry  rules  [found  in  Section 
 338],  the  conferees  do  not  take  any  position  regarding  the  application  of  must-  carry  rules  to  carriage  of 
 digital  television  signals  by  either  cable  or  satellite  systems.  313 

 121.  The  Commission  has  adopted  rules  establishing  a  transitional  process  for  the  conversion  from  an  analog  to  a  digital  form  of  broadcast  transmission.  314  The  rules  allow  each  existing  analog 
 television  licensee  or  each  eligible  permittee  to  construct  and  operate  digital  facilities  using  6  MHz  of 
 spectrum,  in  addition  to  the  6  MHz  of  spectrum  used  to  continue  analog  broadcasting  until  the  end  of  the 
 transition.  The  broadcast  station  will  transmit  a  signal  consistent  with  the  standards  adopted  in  Advanced 
 Television  Systems  and  Their  Impact  Upon  the  Existing  Television  Broadcast  Service,  Fourth  Report  and 
 Order,  giving  it  the  flexibility  to  broadcast  in  a  high  definition  mode,  in  a  multiple  program  standard 
 definition  mode,  in  a  datacasting  mode,  or  a  mixture  of  all  three,  provided  that  the  licensee  provides  at 
 least  one  over-  the-  air  video  program  stream  to  consumers.  315  During  the  transition  period,  both  the  analog 
 and  digital  television  signals  will  be  broadcast.  At  the  end  of  the  transition  which  is  scheduled  for  2006, 

 310  We  also  note  that  as  broadcasters  transition  to  digital  television,  the  question  of  measuring  degradation  changes. 
 This  issue  was  raised  in  the  Commissions  pending  Digital  Must  Carry  rulemaking  in  the  cable  context.  See  Digital 
 Broadcast  Signal  Carriage  Issues,  13  FCC  Rcd  15092,  15122  (1998)  (  DTV  Must  Carry  Notice) 

 311  47  U.  S.  C.  338(  g). 

 312  47  U.  S.  C.  534(  b)(  4)(  B). 
 313  Conference  Report  at  H11795. 
 314  47  C.  F.  R.    73.  622-  624.  The  rules  governing  the  transition  from  analog  to  digital  broadcasting  are  found  in 
 Advanced  Television  Systems  and  Their  Impact  Upon  the  Existing  Television  Broadcast  Service,  Fifth  Report  and 
 Order,  12  FCC  Rcd  12809  (1997).  (  DTV  Fifth  Report  and  Order).  The  DTV  Fifth  Report  and  Order  set  forth  a 
 phased-  in  implementation  schedule  for  the  introduction  of  digital  broadcast  television.  Construction  requirements 
 vary  depending  on  the  size  of  the  television  market  and  other  factors.  DTV  Fifth  Report  and  Order,  12  FCC  Rcd  at 
 12840-  41;  Memorandum  Opinion  and  Order  on  Reconsideration  of  the  Fifth  Report  and  Order,  13  FCC  Rcd  6860 
 (1998);  Second  Memorandum  Opinion  and  Order  on  Reconsideration  of  the  Fifth  and  Sixth  Report  and  Orders,  14 
 FCC  Rcd  1348  (1998). 

 315  See  11  FCC  Rcd  17771  (1996). 
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 with  certain  statutory  exceptions,  the  station  is  to  cease  broadcasting  an  analog  signal  and  will  return  to 
 the  government  6  MHz  of  spectrum.  316 

 122.  The  Commission  commenced  a  proceeding  to  determine  the  carriage  obligations  cable  operators  should  have  with  regard  to  a  broadcast  stations  digital  television  signal  during  the  transition 
 period  to  digital  television.  317  We  sought  comment  in  that  proceeding  on  how  to  accomplish  the 
 Congressional  goals  reflected  in  Section  614,  Section  615,  and  Section  325  of  the  Act  in  light  of  the 
 significant  changes  to  the  relevant  industries  resulting  from  the  conversion  to  digital  operations.  The 
 thrust  of  the  proceeding  was  to  examine  the  timing  and  scope  of  digital  broadcast  signal  carriage 
 obligations  for  cable  operators.  When  this  proceeding  was  initiated,  there  was  no  satellite  broadcast  signal 
 carriage  requirement,  and  satellite  carriers  did  not  comment  on  the  issues  addressed  in  that  proceeding. 
 We  therefore  sought  comment  on  whether  satellite  carriers  should  be  required  to  carry  digital  broadcast 
 television  signals  in  addition  to  analog  broadcast  signals  up  until  the  time  that  television  stations  return 
 their  analog  spectrum  to  the  government.  318 

 123.  We  believe  that  our  goal  of  initiating  a  discussion  on  a  satellite  carriers  digital  broadcast  signal  carriage  obligations  has  been  achieved.  As  expected,  broadcast  commenters  support  the  imposition 
 of  a  digital  broadcast  signal  carriage  rule  under  Section  338  319  and  satellite  carriers  oppose  a  digital 
 broadcast  signal  carriage  requirement.  320  We  note  that  these  comments  generally  reflect  the  positions 
 taken  by  the  broadcast  and  cable  industries  in  response  to  the  questions  raised  in  the  Digital  Must  Carry 
 Notice.  321  We  will  consider  the  digital  carriage  obligations  of  both  cable  operators  and  satellite  carriers  in 
 tandem  within  the  context  of  the  rulemaking  for  cable  operators,  and  will  consider  the  comments  filed  on 
 this  issue  in  that  proceeding.  322  In  any  instance,  we  note  that  Echostar  argues  that  the  Commission  cannot 
 impose  digital  carriage  obligations  on  satellite  because  there  are  no  current  rules  in  effect  for  the  cable 
 industry.  323  We  find  that  the  Commission  must  be  able  to  issue  rules  for  satellite  digital  broadcast  signal 

 316  The  2006  date  is  subject  to  certain  exceptions  related  to  consumer  acceptance  of  digital  technology  and  other 
 market-  based  conditions  as  provided  for  in  the  1997  Balanced  Budget  Act.  47  U.  S.  C.  309(  j)(  14)(  B)  (Balanced 
 Budget  Act  language  concerning  the  reversion  of  the  analog  television  spectrum  to  the  government).  See  also  DTV 
 Fourth  Report  and  Order,  11  FCC  Rcd  17771  (1996);  DTV  Fifth  Report  and  Order,  12  FCC  Rcd  12809  (1997); 
 DTV  Sixth  Report  and  Order,  12  FCC  Rcd  14588  (1997). 

 317  See  Digital  Must  Carry  Notice,  13  FCC  Rcd  15092  et.  seq. 

 318  Notice,  15  FCC  Rcd  at  12169. 
 319  See,  e.  g.,  ALTV  Comments  at  v  and  50. 
 320  See,  e.  g.,  DirecTV  Comments  at  46. 
 321  We  note  that  the  satellite  carriers  also  raise  the  novel  argument  that  a  dual  carriage  policy  will  significantly 
 impede  the  Congressional  goal  of  offering  local-  into-  local  service  into  as  many  television  markets  as  possible.  See 
 SBCA  Comments  at  11;  DirecTV  Comments  at  46-  47. 

 322  We  note  that  the  Commission  has  held,  in  the  cable  carriage  context,  that  digital  television  signals  ultimately  will 
 have  carriage  rights.  See  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands,  and  Revisions  to  Part  27  of  the 
 Commissions  Rules,  Memorandum  Opinion  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  FCC  00-  224 
 (released  June  30,  2000)  at    65. 

 323  Id. 
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 carriage  that  are  comparable  to  those  for  cable  operators.  The  Congressional  goal  of  comparable 
 requirements  was  not  frozen  in  time  on  November  29,  1999.  Rather,  we  are  authorized  to  implement 
 changes  or  additions  in  the  satellite  carriage  rules  whenever  we  adopt  changes  in  the  cable  carriage  rules, 
 including  digital  carriage  requirements. 

 K.  Compensation  for  Carriage 
 124.  Section  338(  e)  states: 
 A  satellite  carrier  shall  not  accept  or  request  monetary  payment  or  other  valuable  consideration  in 
 exchange  either  for  carriage  of  local  television  broadcast  stations  in  fulfillment  of  the 
 requirements  of  this  section  or  for  channel  positioning  rights  provided  to  such  stations  under  this 
 section,  except  that  any  such  station  may  be  required  to  bear  the  costs  associated  with  delivering  a 
 good  quality  signal  to  the  local  receive  facility  of  the  satellite  carrier.  324 

 We  noted  that  this  provision  largely  parallels  provisions  applicable  to  cable  operators  that  are  found  in 
 Sections  614(  b)(  10)  and  615(  i)  of  the  Act  that  are  implemented  in  Section  76.60  of  the  Commissions 
 rules.  In  the  cable  context,  commercial  broadcasters  elect  either  must  carry  or  retransmission  consent  to 
 obtain  carriage  of  their  signals.  If  mandatory  carriage  is  selected,  there  are  no  specific  terms  for  carriage 
 that  must  be  requested,  other  than  choosing  the  relevant  channel  positioning  options  available  to 
 broadcasters  under  the  Act.  If  retransmission  consent  is  selected,  the  operator  may  receive  compensation 
 from  the  broadcaster  in  exchange  for  carriage.  We  assumed  the  same  general  policy  was  intended  for 
 satellite  carriers  and  that  a  broadcaster  seeking  carriage  rather  than  requesting  carriage  in  fulfillment  of 
 the  requirements  of  [Section  338]  would  simply  negotiate  carriage  provisions,  including  payment  terms, 
 in  the  context  of  a  retransmission  consent  negotiation.  We  sought  comment  on  this  interpretation.  325  We 
 also  sought  comment  on  the  policy  underlying  this  provision  and  its  purpose  in  the  statutory  scheme. 

 125.  Network  Affiliates  agree  that  the  compensation  rules  applicable  to  satellite  carriers  pursuant  to  Section  338(  e)  of  the  Act  should  parallel  the  provisions  applicable  to  cable  operators.  326 
 LTVS  comments  that  there  is  no  reason  why  the  parties  cannot  themselves  reach  agreement  on  reasonable 
 compensation  for  carriage  in  a  retransmission  consent  agreement.  327  In  the  context  of  mandatory  carriage, 
 LTVS  asserts  that  satellite  carriers  cannot  charge  local  television  stations  for  carriage  of  their  signals.  We 
 find  that  the  current  compensation  rules  applicable  to  cable  operators  should  likewise  apply  to  satellite 
 carriers.  That  is,  a  station  must  bear  the  costs  associated  with  delivering  a  good  quality  signal  and  a 
 satellite  carrier  may  accept  payments  from  stations  pursuant  to  a  retransmission  consent  agreement.  No 
 one  commented  that  there  should  be  different  rules  between  the  industries  nor  can  we  find  any  valid 
 reason  to  impose  different  rules.  We  therefore  implement  the  language  of  Section  338  as  presented  in  the 
 statute. 

 L.  Remedies 

 324  47  U.  S.  C.  338(  e).  Sections  614(  b)(  10)  and  615(  i)  impose  substantially  similar  requirements  on  cable  operators. 
 325  Notice,  15  FCC  Rcd  at  12169. 
 326  Network  Affiliates  Comments  at  22. 
 327  LTVS  Comments  at  30. 
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 126.  Section  338(  a)(  2)  states  that  the  remedies  for  any  failure  to  meet  the  obligations  under  subsection  (a)  (carriage  obligations)  shall  be  available  exclusively  under  Section  501(  f)  of  title  17,  United 
 States  Code.  328  New  section  501(  f)(  1)  states, 
 With  respect  to  any  secondary  transmission  that  is  made  by  a  satellite  carrier  of  a  performance  or 
 display  of  a  work  embodied  in  a  primary  transmission  and  is  actionable  as  an  act  of  infringement 
 under  section  122,  a  television  broadcast  station  holding  a  copyright  or  other  license  to  transmit 
 or  perform  the  same  version  of  that  work  shall,  for  purposes  of  subsection  (b)  of  this  section,  be 
 treated  as  a  legal  or  beneficial  owner  if  such  secondary  transmission  occurs  within  the  local 
 market  of  that  station.  329 

 New  section  501(  f)(  2)  further  provides  that:  A  television  broadcast  station  may  file  a  civil  action  against 
 any  satellite  carrier  that  has  refused  to  carry  television  broadcast  signals,  as  required  under  section 
 122(  a)(  2),  to  enforce  that  television  broadcast  stations  rights  under  section  338(  a)  of  the  Communications 
 Act  of  1934.  330 

 127.  Section  338(  f)(  1)  states, 
 Whenever  a  local  television  broadcast  station  believes  that  a  satellite  carrier  has  failed  to  meet  its 
 obligations  under  subsections  (b)  through  (e)  of  this  section  [(  b)  good  signal  required,  (c) 
 duplication  not  required,  (d)  channel  positioning,  and  (e)  compensation  for  carriage],  such  station 
 shall  notify  the  carrier,  in  writing,  of  the  alleged  failure  and  identify  its  reasons  for  believing  that 
 the  satellite  carrier  failed  to  comply  with  such  obligations.  The  satellite  carrier  shall,  within  30 
 days  after  such  written  notification,  respond  in  writing  to  such  notification  and  comply  with  such 
 obligations  or  state  its  reasons  for  believing  that  it  is  in  compliance  with  such  obligations.  A  local 
 television  broadcast  station  that  disputes  a  response  by  a  satellite  carrier  that  it  is  in  compliance 
 with  such  obligations  may  obtain  review  of  such  denial  or  response  by  filing  a  complaint  with  the 
 Commission.  Such  complaint  shall  allege  the  manner  in  which  such  satellite  carrier  has  failed  to 
 meet  its  obligations  and  the  basis  for  such  allegations.  331 

 In  addition,  Section  338(  f)(  2)  states:  The  Commission  shall  afford  the  satellite  carrier  against  which  a 
 complaint  is  filed  under  paragraph  (1)  an  opportunity  to  present  data  and  arguments  to  establish  that  there 
 has  been  no  failure  to  meet  its  obligations  under  this  section.  332  Section  338(  f)(  3)  then  states  that:  Within 
 120  days  after  the  date  a  complaint  is  filed  under  paragraph  (1),  the  Commission  shall  determine  whether 
 the  satellite  carrier  has  met  its  obligations  under  subsections  (b)  through  (e).  If  the  Commission 
 determines  that  the  satellite  carrier  has  failed  to  meet  such  obligations,  the  Commission  shall  order  the 
 satellite  carrier  to  take  appropriate  remedial  action.  If  the  Commission  determines  that  the  satellite  carrier 
 has  fully  met  the  requirements  of  such  subsections,  the  Commission  shall  dismiss  the  complaint.  At  the 

 328  47  U.  S.  C.  338(  a)(  2). 
 329  17  U.  S.  C.  501(  f)(  1)(  as  amended  by  Section  1002  of  the  SHVIA). 
 330  17  U.  S.  C.  501(  f)(  2). 
 331  47  U.  S.  C.  338(  f)(  1).  The  remedial  provisions  of  the  SHVIA  are  substantially  similar  to  provisions  applicable  to 
 cable  operators  set  forth  in  Section  614(  d)(  1)-(  3)  of  the  1992  Cable  Act. 

 332  47  U.  S.  C.  338(  f)(  2). 
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 outset,  we  find  that  the  procedural  provisions  contained  in  Section  338(  f)(  1-  3),  concerning  the  steps 
 required  to  file  a  carriage  complaint,  are  plain  on  their  face.  We  adopt  the  statutory  procedures  without 
 change.  With  regard  to  the  substantive  issues  raised  in  the  Notice,  we  address  each  one  in  turn  below. 

 128.  In  the  Notice,  the  Commission  discussed  the  parameters  of  its  enforcement  authority  regarding  the  carriage  obligation  rules  under  SHVIA.  333  We  sought  to  reconcile  forum  disputes  that  may 
 arise  if  a  satellite  carrier  fails  to  carry  a  local  television  station  that  has  requested  carriage  in  a  market  in 
 which  it  provides  local-  into-  local  service.  In  addition,  we  sought  to  determine  whether  disputes 
 concerning  the  non-  carriage  of  broadcast  station  signals  by  satellite  carriers  because  of  signal  quality 
 problems  should  be  within  the  domain  of  the  courts,  the  Commission,  or  shared  by  the  different 
 jurisdictions.  334  ALTV  states  that  the  outright  failure  to  carry  a  station  entitled  to  carriage  under  Section 
 338  should  be  grounds  for  an  infringement  of  copyright  suit  in  federal  court.  335  DirecTV  asserts  that  the 
 remedy  available  to  a  broadcaster  in  the  event  of  a  compulsory  carriage  dispute  is  to  file  a  civil  action 
 against  the  satellite  carrier  that  has  refused  carriage  and  that  the  Commission  does  not  have  jurisdiction  to 
 remedy  non-  carriage  of  broadcast  station  signals  by  satellite  carriers.  336  On  the  one  hand,  the  statute 
 provides  that  the  remedies  for  any  failure  to  meet  the  carriage  obligations  of  Section  338(  a)  shall  be 
 available  exclusively  under  Section  501(  f)  of  the  Copyright  Act,  which  directs  complainants  to  an 
 appropriate  United  States  District  Court.  On  the  other  hand,  Sections  338(  b)    (e)  clearly  contemplate 
 the  Commission  making  determinations  that,  in  appropriate  circumstances,  require  carriage.  We  find  that 
 if  a  television  station  is  not  being  carried  and  seeks  damages  and  other  specific  forms  of  monetary  or 
 injunctive  relief  under  either  Section  338(  a)  of  the  Act  or  Section  501(  f)  of  the  Copyright  Act,  then  the 
 United  States  District  Court  is  the  exclusive  forum  for  adjudicating  the  complaint.  If  the  television  station 
 seeks  a  finding  on  the  facts  and  a  resulting  determination  of  whether  it  is  entitled  to  carriage  pursuant  to 
 Section  76.66  of  our  rules,  then  it  may  file  a  complaint  with  the  Commission.  In  arriving  at  this 
 determination,  we  do  not  believe  that  Congress  intended  to  deprive  the  Commission  of  the  right  to 
 enforce  the  regulations  the  statute  specifically  directs  us  to  adopt  under  Section  338. 

 129.  We  find  that  the  Commission  should  have  primary  jurisdiction  over  issues  concerning:  (1)  good  quality  signal;  (2)  substantial  duplication;  (3)  channel  positioning;  and  (4)  compensation  matters. 
 We  adopt  this  position  to  ensure  the  rapid  and  timely  implementation  of  Section  338.  The  Commission 
 has  the  technical  expertise  to  review  and  address  such  matters.  The  institutional  knowledge  the 
 Commission  has  developed  in  adjudicating  cable-  broadcast  disputes  will  be  helpful  in  processing  satellite 
 carriage  cases  in  an  efficient  manner. 

 130.  In  response  to  questions  we  raised  in  the  Notice,  several  commenters  addressed  the  issue  of  whether  broadcasters  should  be  permitted  to  file  complaints  with  the  Commission  against  a  satellite 
 carrier  for  non-  compliance  with  the  content-  to-  be-  carried  and  material  degradation  provisions  of  the 
 SHVIA,  specifically  referenced  in  Section  338(  g).  A  number  of  broadcast  commenting  parties  assert  that 
 the  Commissions  jurisdiction  should  be  extended  to  allow  consideration  and  resolution  of  complaints 
 relating  to  content-  to-  be-  carried  and  material  degradation  issues.  337  Network  Affiliates  and  LTVS,  for 

 333  Notice,  15  FCC  Rcd  at  12170. 

 334  Id.  at  12171. 
 335  ALTV  Comments  at  46. 
 336  DirecTV  Comments  at  49. 
 337  LTVS  Comments  at  32;  NAB  Comments  at  22;  ALTV  Comments  at  47;  AAPTS  Comments  at  38;  Network 
 (continued) 
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 example,  state  that  such  disputes  rest  squarely  within  the  Commissions  expertise  and  excluding  such 
 disputes  from  the  complaint  procedures  would  be  inconsistent  with  Section  338(  g),  which  requires  the 
 Commission  to  implement  regulations  regarding  material  degradation  and  content-  to-  be-  carried  in  the 
 satellite  context  that  mirror  those  in  the  cable  context.  338  DirecTV  however,  argues  that  Section  338(  f) 
 does  not  provide  for  broadcaster  complaints  against  a  satellite  carrier  for  non-  compliance  with  provisions 
 concerning  content-  to-  be-  carried  or  material  degradation.  339  Consistent  with  the  general  authority  invested 
 in  the  Commission  to  implement  Section  338,  340  we  will  adjudicate  complaints  concerning  the  material 
 degradation  and  content-  to-  be-  carried  provisions  under  the  same  procedural  framework  established  for 
 the  other  satellite  carriage  provisions  of  the  Act.  For  the  reasons  outlined  in  the  above  paragraph,  we  will 
 also  assert  primary  jurisdiction  over  these  matters. 

 131.  We  adopt  a  date  certain  for  when  a  complaint  must  be  filed  with  the  Commission.  Consistent  with  the  procedural  rule  for  cable  carriage  complaints,  341  we  will  not  consider  a  complaint 
 brought  by  a  television  station  if  it  is  filed  later  than  60  days  after  a  satellite  carrier  denies  the  stations 
 carriage  request.  In  this  context,  the  denial  can  be  in  the  affirmative,  as  in  a  rejection  letter,  or  by  silence, 
 where  a  carrier  does  not  respond  to  a  carriage  request  within  30  days  of  its  receipt.  We  implement  this 
 requirement,  pursuant  to  Section  338(  f)  of  the  Act,  to  facilitate  the  carriage  process  and  ensure  that 
 television  broadcast  stations  do  not  delay  in  enforcing  their  rights  to  the  detriment  of  the  satellite 
 carrier.  342 

 132.  Other  Actions.  In  the  Notice,  we  requested  comment  on  additional  enforcement  actions  the  Commission  may  impose.  343  Some  broadcasters  have  stated  that  the  Commission  should  take  into 
 account  any  failure  to  comply  with  the  local  carriage  requirements  when  considering  license  renewals  for 
 satellite  carriers.  344  We  find  that  this  issue  is  a  matter  better  suited  for  discussion  in  the  context  of  a 
 satellite  licensing  proceeding,  not  within  the  confines  of  a  rulemaking  implementing  the  SHVIAs 
 carriage  requirements.  We  therefore  decline  to  rule  on  the  merits  of  the  broadcasters  suggestion  at  this 
 time. 

 (.  continued  from  previous  page) 
 Affiliates  Comments  at  27. 

 338  Network  Affiliates  Comments  at  27;  LTVS  Comments  at  32.  The  complaint  and  special  relief  procedures  in  the 
 cable  rules  allow  broadcasters  with  material  degradation  or  content  carriage  disputes  to  bring  their  disputes  before 
 the  Commission.  See  47  C.  F.  R.    76.  7  and  76.61. 

 339  DirecTV  Comments  at  50. 

 340  See  47  U.  S.  C.  338(  g). 
 341  See  47  C.  F.  R.  76.61(  a)(  5). 
 342  47  U.  S.  C.  338(  f)(  1)-(  3).  These  statutory  provisions  discuss  the  satellite  carriage  complaint  process  and  the 
 remedial  actions  the  Commission  may  take. 
 343  Notice,  15  FCC  Rcd  at  12171. 

 344  Network  Affiliates  Comments  at  28. 
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 133.  ALTV  proposes  that  the  Commission  require  satellite  carriers  to  file  semi-  annual  reports  detailing  their  efforts  to  achieve  compliance  with  Section  338  by  January  1,  2002.  345  We  find  that  the 
 statute  does  not  mandate  such  a  requirement.  Nevertheless,  carriage  compliance  information  will  be 
 useful  in  updating  Congress  on  the  implementation  of  the  SHVIA.  We  therefore  plan  to  ask  questions 
 concerning  the  implementation  of  Section  338  in  the  Commissions  Notice  of  Inquiry,  preceding  the 
 Annual  Competition  Report  to  be  issued  in  2002.  346 

 M.  Definitional  Issues  and  Other  Concerns. 
 134.  Section  338  contains  several  definitions  that  provide  the  framework  for  satellite  broadcast  signal  carriage.  While  these  definitions  are  generally  self-  effectuating,  such  as  the  meaning  of  satellite 
 carrier,  secondary  transmission,  and  subscriber,  we  asked  commenters  to  further  clarify  the  meaning 
 of  other  terms  found  in  Section  338.  347  We  received  a  number  of  viewpoints  on  the  carriage  status  of 
 certain  types  of  stations.  We  also  received  comments  from  other  parties  on  the  general  application  of 
 Section  338.  We  address  each  concern  separately,  below. 

 135.  Distributor.  Section  338(  h)(  1)  of  the  Communications  Act  defines  the  term  distributor  as  an  entity  which  contracts  to  distribute  secondary  transmissions  from  a  satellite  carrier  and,  either  as  a 
 single  channel  or  in  a  package  with  other  programming,  provides  the  secondary  transmission  either 
 directly  to  individual  subscribers  or  indirectly  through  other  program  distribution  entities."  348  In  the 
 Notice,  we  stated  that  the  term  distributor  is  not  found  in  any  other  provision  of  Section  338,  other  than 
 the  definitional  subsection.  349  Given  this  omission,  we  sought  comment  on  the  definition  of  distributor 
 and  its  relevance  in  this  context.  Local  TV  on  Satellite,  Inc.  (  LTVS)  argues  that  the  use  of  term 
 distributor  has  no  relevance  to  Section  338  and  has  no  bearing  on  the  implementation  of  the  mandatory 
 carriage  provisions.  350  We  agree.  This  particular  provision  appears  to  have  no  connection  with  the 
 carriage  requirements  in  Section  338.  Therefore,  it  requires  no  implementation. 

 136.  Class  A  Television  Stations.  Section  338(  h)(  7)  defines  the  term  television  broadcast  station  as  having  the  meaning  given  such  term  in  Section  325(  b)(  7).  351  Section  325(  b)(  7)  defines 
 television  broadcast  station,  as  an  over-  the-  air  commercial  or  noncommercial  television  broadcast 
 station  licensed  by  the  Commission  under  subpart  E  of  part  73  of  title  47,  Code  of  Federal  Regulations, 
 except  that  such  term  does  not  include  a  low-  power  or  translator  station.  352  Paging  Associates, 

 345  ALTV  Comments  at  50. 

 346  See  47  U.  S.  C.  548(  g)  (  The  Commission  shall,  beginning  not  later  than  18  months  after  promulgation  of  the 
 regulations  required  by  subsection  (c)  [concerning  program  access],  annually  report  to  Congress  on  the  status  of 
 competition  in  the  market  for  the  delivery  of  video  programming.) 

 347  Notice,  15  FCC  Rcd  at  12154. 

 348  47  U.  S.  C.  338(  h)(  1). 
 349  Notice,  15  FCC  Rcd  at  12154. 
 350  LTVS  Comments  at  12. 
 351  47  U.  S.  C.  338(  h)(  7). 
 352  47  U.  S.  C.  325(  b)(  7)(  B). 
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 nevertheless  raises  the  question  of  whether  low  power  stations  that  receive  Class  A  status  from  the 
 Commission,  pursuant  to  the  Community  Broadcasters  Protection  Act  of  1999  (  CBPA),  may  assert 
 carriage  rights  under  Section  338.  353  Paging  Associates  states  that  Class  A  licensees  are  on  equal  footing 
 with  full-  service  television  licensees  as  prescribed  by  the  CBPA.  354  We  disagree.  Low  power  television 
 stations  that  receive  Class  A  status  pursuant  to  the  CBPA  are  still  low  power  stations  for  mandatory 
 carriage  purposes.  355  Class  A  stations  do  not  gain  the  same  rights  to  carriage  as  their  full  power 
 counterparts  simply  by  receiving  such  status.  The  principal  intent  of  the  CBPA  was  to  protect  low  power 
 television  stations  from  digital  television  (  DTV)  interference.  The  CBPA  did  not  create  a  new  class  of 
 television  stations  eligible  for  full-  fledged  carriage  rights  on  cable  systems  or  satellite  carriers.  Given  the 
 burdens  a  Class  A  carriage  requirement  would  impose,  we  believe  that  Congress  would  have  specifically 
 noted  in  Section  338  that  satellite  carriers  were  required  to  carry  these  stations  if  they  provide  local-  into-local 
 service  in  a  market. 

 137.  Satellite  Television  Stations.  In  the  Notice,  we  asked  whether  satellite  carriers  must  carry  terrestrial  broadcast  satellite  television  stations,  as  cable  operators  are  required  to  do.  356  Satellite 
 stations,  by  definition,  replicate  substantially  all  of  the  programming  of  another  full  power  television 
 station  in  a  market  and  also  broadcast  a  minimum  amount  of  original  programming.  357  LTVS  and  NAB 
 assert  that  regulations  should  be  developed  to  require  satellite  carriers  to  carry  such  stations  if  they  carry 
 other  local  market  television  stations,  unless  they  substantially  duplicate  another  station  in  the  local 
 market.  358  DirecTV,  however,  argues  that  the  compulsory  carriage  of  satellite  television  stations  will 
 unduly  burden  satellite  carriers  systems  and  limit  the  amount  of  capacity  available.  359  The  Commission 
 has  long  held  that  cable  operators  must  carry  satellite  television  stations  because  they  are  full  power 
 television  stations  with  an  assignment  in  the  Table  of  Allotments  under  Part  73  of  the  rules.  Congress  was 
 cognizant  of  this  carriage  policy  at  the  time  the  SHVIA  was  enacted,  but  did  not  expressly  exclude  such 
 stations  from  the  definition  of  television  broadcast  station  in  the  SHVIA.  Therefore,  a  satellite  television 
 station,  being  a  full  power  television  station,  may  request  carriage  like  other  local  full  power  television 
 stations,  but  is  subject  to  the  duplications  provisions,  stated  above. 

 138.  MMDS  Operators.  Fifth  Avenue  Channel  Corporation  raises  the  concern  that  the  carriage  obligations  under  Section  338  may  be  construed  to  apply  to  multichannel  multipoint  distribution 

 353  Paging  Associates  Reply  Comments  at  1-  2. 
 354  Community  Broadcasters  Protection  Act  of  1999,  P.  L.  No.  106-  113,  113  Stat.  Appendix  1  at  p.  1501A-  594- 
 1501A-  598  (1999)  (codified  at  47  U.  S.  C.  336(  f)). 
 355  The  Commission  has  already  determined  that  cable  operators  are  under  no  obligation  to  treat  Class  A  television 

 stations  like  full  power  television  stations  for  the  purpose  of  mandatory  carriage.  See  Establishment  of  a  Class  A 
 Television  Service,  Report  and  Order,  MM  Docket  No.  00-  10,  15  FCC  Rcd  6355,  n.  61  (2000)  (  Nothing  in  this 
 Report  and  Order  is  intended  to  affect  a  Class  A  LPTV  stations  eligibility  to  qualify  for  mandatory  carriage  under 
 47  U.  S.  C.  534.) 

 356  Notice,  15  FCC  Rcd  at  12154.  Broadcast  Signal  Carriage  Order,  8  FCC  Rcd  at  2973. 

 357  See  generally,  47  C.  F.  R.  73.3555  at  note  5. 
 358  LTVS  Comments  at  11;  NAB  Comments  at  4. 
 359  DirecTV  Comments  at  12. 
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 service  providers  (  MMDS  or  wireless  cable).  360  We  find  that  the  provision  does  not  apply  to  such 
 entities.  MMDS  operators  generally  receive  television  broadcast  signals  either  off-  the-  air  or  by  a  direct 
 feed  from  the  broadcast  station.  They  do  not  use  the  facilities  of  a  satellite  or  satellite  service  to  distribute 
 those  television  station  signals.  Thus,  an  MMDS  operator  who  contracts  to  distribute  the  signal  of  a  local 
 television  station  directly  from  the  station  is  not  a  satellite  carrier  as  that  term  is  defined  in  the  Act. 

 139.  Rural  Service.  The  National  Rural  Telecommunications  Cooperative  (  NRTC)  argues  that  satellite  carriers  will  not  provide  local-  into-  local  service  in  lower  population,  lower-  profit  markets  if 
 they  are  required  to  carry  all  television  stations  in  larger  markets.  361  It  states  that  there  is  not  enough 
 satellite  capacity  available,  nor  is  there  a  large  enough  subscriber  base  in  less  populated  markets,  to 
 introduce  local-  into-  local  service.  362  We  recognize  that  one  of  the  SHVIAs  principal  mandates  is  to 
 permit  satellite  carriers  to  provide  local-  into-  local  service  wherever  and  whenever  possible.  We  also 
 understand  that  satellite  carriers,  like  cable  operators,  have  limited  capacity  to  add  additional  channels  of 
 programming.  Congress,  however,  was  aware  of  these  concerns  when  it  promulgated  Section  338.  Thus, 
 while  we  find  that  the  provision  of  dependable  television  service  to  rural  areas  is  an  important  policy  goal, 
 the  Section  338  requirements  must  be  followed  and  implemented. 

 V.  PROCEDURAL  MATTERS 

 140.  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  into 
 both  the  Notice  and  the  Retransmission  Consent  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  and  the  Retransmission  Consent  Notice,  including  comments  on  the  IRFAs.  Pursuant  to  the 
 RFA,  see  5  U.  S.  C.  604,  a  Final  Regulatory  Flexibility  Analysis  is  contained  in  Appendix  C. 

 141.  Paperwork  Reduction  Act  of  1995  Analysis.  This  Report  &  Order  contains  new  or  modified  information  collection(  s)  subject  to  the  Paperwork  Reduction  Act  of  1995  (  PRA),  Public  Law 
 104-  13.  It  will  be  submitted  to  the  Office  of  Management  and  Budget  (  OMB)  for  review  under  Section 
 3507(  d)  of  the  PRA.  OMB,  the  general  public,  and  other  Federal  agencies  are  invited  to  comment  on  the 
 new  or  modified  information  collection(  s)  contained  in  this  proceeding. 

 VI.  ORDERING  CLAUSES 
 142.  Accordingly,  IT  IS  ORDERED  that,  pursuant  authority  found  in  Sections  4(  i)  4(  j),  303(  r),  325,  338,  614,  and  615  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i), 
 154(  j),  303(  r),  325,  338,  534,  and  535,  the  Commissions  rules  ARE  HEREBY  AMENDED  as  set  forth 
 in  Appendix  B. 

 143.  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. 

 360  Fifth  Avenue  Channel  Corporation  Comments  at  3. 
 361  NRTC  Comments  at  5. 
 362  Id. 
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 144.  IT  IS  FURTHER  ORDERED  that  the  rules  adopted  in  this  Report  and  Order  SHALL  TAKE  EFFECT  upon  publication  in  the  Federal  Register. 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas 
 Secretary 
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 Appendix  A 
 COMMENTS  FILED  IN  CS  00-  96 
 Association  of  Local  Television  Stations  ("  ALTV") 
 Association  of  America's  Public  Television  Stations,  the  Public  Broadcasting  System,  and  the 
 Corporation  for  Public  Broadcasting  ("  AAPTS") 
 BellSouth  Corp.  and  BellSouth  Entertainment  ("  BellSouth") 
 Christian  Television  Network  (  CTN) 
 Community  Television  of  Southern  California,  KQED,  Inc.  &  North  Texas  Public  Broadcasting,  Inc. 
 (  KQED) 
 Detroit  Educational  Television  Foundation  (  DETF) 
 DirecTV 
 Echostar  Satellite  Corporation  (  Echostar) 
 Gray  Communications,  et.  al. 
 Home  Box  Office  (  HBO) 
 J.  E.  Schmidt 
 Joint  Comments  of  the  ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations  (  Network 
 Affiliates) 
 KNTV  License,  Inc.  (  KNTV) 
 Local  TV  on  Satellite,  LLC  (  LTVS) 
 Mid-  State  Television,  Inc.  (  WMFD) 
 National  Association  of  Broadcasters  (  NAB) 
 National  Cable  Television  Association  (  NCTA) 
 National  Rural  Telecommunications  Cooperative  (  NRTC) 
 Paxson  Communications  Corporation  (  Paxson) 
 Quorum  of  Maryland  License  (  WHAG) 
 Satellite  Broadcasting  and  Communications  Association  (  SBCA) 
 SJL  of  California,  L.  P.  (  KSBY) 
 WDBJ  Television,  Inc.  (  WDBJ) 
 Wisdom  Media  Group 
 5  th  Avenue  Channel  Corporation 

 REPLY  COMMENTS  FILED  IN  CS  00-  96 
 American  Cable  Association  (  ACA) 
 Association  of  America's  Public  Television  Stations,  the  Public  Broadcasting  System,  and  the 
 Corporation  for  Public  Broadcasting 
 Association  of  Local  Television  Stations 
 BellSouth  Corp.  and  BellSouth  Entertainment 
 Detroit  Educational  Television  Foundation 
 DirecTV 
 Echostar  Satellite  Corporation 
 Joint  Comments  of  the  ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations 
 Local  TV  on  Satellite,  LLC 
 Mid-  State  Television,  Inc. 
 National  Association  of  Broadcasters 
 National  Cable  Television  Association 
 Paging  Associates 
 Paxson  Communications  Corporation 
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 COMMENTS  FILED  IN  CS  99-  363 
 ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations  (  Network  Affiliates). 
 American  Cable  Association 
 Association  of  Local  Television  Stations,  Inc. 
 BellSouth  Corporation,  BellSouth  Interactive  Media  Services,  Inc.  and  BellSouth  Wireless  Cable,  Inc. 
 CBS  Corporation  (  CBS) 
 DirecTV,  Inc. 
 EchoStar  Satellite  Corporation 
 Fox  Television  Stations,  Inc.  (  Fox) 
 LEXCOM  Cable 
 Local  TV  on  Satellite,  LLC 
 National  Association  of  Broadcasters 
 National  Broadcasting  Company,  Inc.  (  NBC). 
 National  Cable  Television  Association 
 Satellite  Broadcasting  and  Communications  Association 
 U  S  West,  Inc.  (  U  S  West) 
 Walt  Disney  Company  (  Disney) 
 Wireless  Communications  Association  International,  Inc.  (  WCA) 

 REPLY  COMMENTS  FILED  IN  CS  99-  363 
 American  Cable  Association 
 ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations 
 Association  of  Local  Television  Stations,  Inc. 
 BellSouth  Corporation,  BellSouth  Interactive  Media  Services,  Inc.  and  BellSouth  Wireless  Cable,  Inc. 
 DIRECTV,  Inc. 
 EchoStar  Satellite  Corporation 
 Fisher  Broadcasting  Inc.  (  Fisher) 
 Hearst-  Argyle  Television,  Inc.  (  Hearst) 
 Lin  Television  Corporation  (  Lin) 
 Local  TV  on  Satellite,  LLC 
 National  Association  of  Broadcasters 
 National  Broadcasting  Company,  Inc. 
 National  Cable  Television  Association 
 RCN  Telecom  Services,  Inc.  (  RCN). 
 Satellite  Broadcasting  and  Communications  Association 
 Seren  Innovations,  Inc.  (  Seren) 
 The  Post  Company  (  Post) 
 Time  Warner  Cable  (  Time  Warner) 
 U  S  West,  Inc. 
 Walt  Disney  Company 
 Young  Broadcasting,  Inc.  (  Young). 
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 Appendix  B 
 Part  76  of  Title  47  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 Part  76    Multichannel  Video  and  Cable  Television  Service 
 1.  The  authority  citation  for  Part  76  reads  as  follows: 
 AUTHORITY:  47  U.  S.  C.    151,  152,  153,  154,  301,  302,  303,  303a,  307,  308,  309,  312,  315,  317,  325, 
 338,  339,  503,  521,  522,  531,  532,  533,  534,  535,  536,  537,  543,  544,  544a,  545,  548,  549,  552,  554,  556, 
 558,  560,  561,  571,  572,  573. 

 2.  Section  76.66  is  added  to  Subpart  D  to  read  as  follows: 
   76.66  Satellite  Broadcast  Signal  Carriage 
 (a)  Definitions. 
 (1)  Satellite  carrier.  A  satellite  carrier  is  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  a  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. 

 (2)  Secondary  transmission.  A  secondary  transmission  is  the  further  transmitting  of  a  primary 
 transmission  simultaneously  with  the  primary  transmission. 

 (3)  Subscriber.  A  subscriber  is  a  person  who  receives  a  secondary  transmission  service  from  a  satellite 
 carrier  and  pays  a  fee  for  the  service,  directly  or  indirectly,  to  the  satellite  carrier  or  to  a  distributor. 

 (4)  Television  broadcast  station.  A  television  broadcast  station  is  an  over-  the-  air  commercial  or 
 noncommercial  television  broadcast  station  licensed  by  the  Commission  under  subpart  E  of  part  73  of  title 
 47,  Code  of  Federal  Regulations,  except  that  such  term  does  not  include  a  low-  power  or  translator  television 
 station. 

 (5)  Television  network.  For  purposes  of  this  section,  a  television  network  is  an  entity  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. 

 (6)  Local-  into-  local  television  service.  A  satellite  carrier  is  providing  local-  into-  local  service  when  it 
 retransmits  a  local  television  station  signal  back  into  the  local  market  of  that  television  station  for  reception 
 by  subscribers. 

 (b)  Signal  carriage  obligations. 
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 (1)  Each  satellite  carrier  providing,  under  section  122  of  title  17,  United  States  Code,  secondary 
 transmissions  to  subscribers  located  within  the  local  market  of  a  television  broadcast  station  of  a  primary 
 transmission  made  by  that  station,  shall  carry  upon  request  the  signals  of  all  television  broadcast  stations 
 located  within  that  local  market,  subject  to  section  325(  b)  of  title  47,  United  States  Code,  and  other 
 paragraphs  in  this  section. 

 (2)  No  satellite  carrier  shall  be  required  to  carry  local  television  broadcast  stations,  pursuant  to  this  section, 
 until  January  1,  2002. 

 (c)  Election  cycle.  In  television  markets  where  a  satellite  carrier  is  providing  local-  into-  local  service,  a 
 commercial  television  broadcast  station  may  elect  either  retransmission  consent,  pursuant  to  section  325  of 
 title  47  United  States  Code,  or  mandatory  carriage,  pursuant  to  section  338,  title  47  United  States  Code. 

 (1)  The  first  retransmission  consent-  mandatory  carriage  election  cycle  shall  be  for  a  four-  year  period 
 commencing  on  January  1,  2002  and  ending  December  31,  2005. 

 (2)  The  second  retransmission  consent-  mandatory  carriage  election  cycle,  and  all  cycles  thereafter,  shall  be 
 for  a  period  of  three  years  (e.  g.  the  second  election  cycle  commences  on  January  1,  2006  and  ends  at 
 midnight  on  December  31,  2008). 

 (3)  A  commercial  television  station  must  notify  a  satellite  carrier,  by  July  1,  2001,  of  its  retransmission 
 consent-  mandatory  carriage  election  for  the  first  election  cycle  commencing  January  1,  2002. 

 (4)  Except  as  provided  in  paragraphs  76.  66(  d)(  2)  and  (3),  local  commercial  television  broadcast  stations 
 shall  make  their  retransmission  consent-  mandatory  carriage  election  by  October  1  st  of  the  year  preceding  the 
 new  cycle  for  all  election  cycles  after  the  first  election  cycle. 

 (5)  A  noncommercial  television  station  must  request  carriage  by  July  1,  2001  for  the  first  election  cycle  and 
 must  renew  its  carriage  request  at  the  same  time  a  commercial  television  station  must  make  its 
 retransmission  consent-  mandatory  carriage  election  for  all  subsequent  cycles. 

 (d)  Carriage  procedures. 
 (1)  Carriage  requests. 
 (i)  A  retransmission  consent-  mandatory  carriage  election  made  by  a  television  broadcast  station  shall  be 
 treated  as  a  request  for  carriage  for  purposes  of  this  section. 

 (ii)  A  carriage  request  made  by  a  television  station  must  be  in  writing  and  sent  to  the  satellite  carriers 
 principal  place  of  business,  by  certified  mail,  return  receipt  requested. 

 (iii)  A  television  stations  written  notification  shall  include  the:  (1)  stations  call  sign;  (2)  name  of  the 
 appropriate  station  contact  person;  (3)  stations  address  for  purposes  of  receiving  official  correspondence; 
 (4)  stations  community  of  license;  (5)  stations  DMA  assignment;  and  (6)  for  commercial  television 
 stations,  its  election  of  mandatory  carriage  or  retransmission  consent. 

 (iv)  Within  30  days  of  receiving  a  television  stations  carriage  request,  a  satellite  carrier  shall  notify  in 
 writing:  1)  those  local  television  stations  it  will  not  carry,  along  with  the  reasons  for  such  a  decision;  and 
 2)  those  local  television  stations  it  intends  to  carry. 
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 (v)  A  satellite  carrier  is  not  required  to  carry  a  television  station,  for  the  duration  of  the  election  cycle,  if 
 the  station  fails  to  assert  its  carriage  rights  by  the  deadlines  established  in  this  section. 

 (2)  New  local-  into-  local  service. 
 (i)  A  new  satellite  carrier  or  a  satellite  carrier  providing  local  service  in  a  market  for  the  first  time  on  or 
 after  July  1,  2001,  must  notify  local  television  stations  of  its  intent  to  provide  local-  into-  local  service  at 
 least  60  days  before  it  intends  to  provide  service  or  decides  to  enter  into  a  new  television  market.  This 
 notification  shall  include  information  on  the  location  of  the  satellite  carriers  designated  local  receive 
 facility  in  that  particular  market. 

 (ii)  A  local  television  station  shall  make  its  request  for  carriage,  in  writing,  no  more  than  30  days  after 
 receipt  of  the  satellite  carriers  notice. 

 (iii)  A  satellite  carrier  shall  have  90  days,  from  the  receipt  of  a  request  for  carriage,  to  commence  carriage 
 of  a  local  television  station. 

 (iv)  A  satellite  carrier  shall  notify  a  local  television  station  in  writing  of  its  reasons  for  refusing  carriage 
 within  30  days  of  the  stations  carriage  request. 

 (3)  New  television  stations. 
 (i)  A  television  station  providing  over-  the-  air  service  in  a  market  for  the  first  time  on  or  after  July  1,  2001, 
 shall  be  considered  a  new  television  station  for  satellite  carriage  purposes. 

 (ii)  A  new  television  station  shall  make  its  request  for  carriage  between  60  days  prior  to  commencing 
 broadcasting  and  30  days  after  commencing  broadcasting. 

 (iii)  A  satellite  carrier  shall  commence  carriage  within  90  days  of  receiving  the  request  for  carriage  from 
 the  television  broadcast  station  or  whenever  the  new  television  station  provides  over-  the-  air  service. 

 (iv)  A  satellite  carrier  shall  notify  a  new  television  station  in  writing  of  its  reasons  for  refusing  carriage 
 within  30  days  of  the  stations  carriage  request. 

 (e)  Market  definitions. 
 (1)  A  local  market,  in  the  case  of  both  commercial  and  noncommercial  television  broadcast  stations,  is 
 the  designated  market  area  in  which  a  station  is  located,  and  (i)  in  the  case  of  a  commercial  television 
 broadcast  station,  all  commercial  television  broadcast  stations  licensed  to  a  community  within  the  same 
 designated  market  area  within  the  same  local  market;  and  (ii)  in  the  case  of  a  noncommercial  educational 
 television  broadcast  station,  the  market  includes  any  station  that  is  licensed  to  a  community  within  the 
 same  designated  market  area  as  the  noncommercial  educational  television  broadcast  station. 

 (2)  A  designated  market  area  is  the  market  area,  as  determined  by  Nielsen  Media  Research  and  published 
 in  the  1999-  2000  Nielsen  Station  Index  Directory  and  Nielsen  Station  Index  United  States  Television 
 Household  Estimates  or  any  successor  publication. 

 (3)  A  satellite  carrier  shall  use  the  1999-  2000  Nielsen  Station  Index  Directory  and  Nielsen  Station  Index 
 United  States  Television  Household  Estimates  to  define  television  markets  for  the  first  retransmission 
 consent-  mandatory  carriage  election  cycle  commencing  on  January  1,  2002  and  ending  on  December  31, 
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 2005.  The  2003-  2004  Nielsen  Station  Index  Directory  and  Nielsen  Station  Index  United  States  Television 
 Household  Estimates  shall  be  used  for  the  second  retransmission  consent-  mandatory  carriage  election  cycle 
 commencing  January  1,  2006  and  ending  December  31,  2008,  and  so  forth  for  each  triennial  election 
 pursuant  to  this  section.  Provided,  however,  that  a  county  deleted  from  a  market  by  Nielsen  need  not  be 
 subtracted  from  a  market  in  which  a  satellite  carrier  provides  local-  into-  local  service,  if  that  county  is 
 assigned  to  that  market  in  the  1999-  2000  Nielsen  Station  Index  Directory  or  any  subsequent  issue  of  that 
 publication. 

 (4)  A  local  market  includes  all  counties  to  which  stations  assigned  to  that  market  are  licensed. 
 (f)  Receive  facilities. 
 (1)  A  local  receive  facility  is  the  reception  point  in  each  local  market  which  a  satellite  carrier  designates 
 for  delivery  of  the  signal  of  the  station  for  purposes  of  retransmission. 

 (2)  A  satellite  carrier  may  establish  another  receive  facility  to  serve  a  market  if  the  location  of  such  a 
 facility  is  acceptable  to  at  least  one-  half  the  stations  with  carriage  rights  in  that  market. 

 (3)  Except  as  provided  in  76.66(  d)(  2),  a  satellite  carrier  providing  local-  into-  local  service  must  notify 
 local  television  stations  of  the  location  of  the  receive  facility  by  June  1,  2001  for  the  first  election  cycle 
 and  at  least  120  days  prior  to  the  commencement  of  all  election  cycles  thereafter. 

 (4)  A  satellite  carrier  may  relocate  its  local  receive  facility  at  the  commencement  of  each  election  cycle. 
 A  satellite  carrier  is  also  permitted  to  relocate  its  local  receive  facility  during  the  course  of  an  election 
 cycle,  if  it  bears  the  signal  delivery  costs  of  the  television  stations  affected  by  such  a  move.  A  satellite 
 carrier  relocating  its  local  receive  facility  must  provide  60  days  notice  to  all  local  television  stations 
 carried  in  the  affected  television  market. 

 (g)  Good  quality  signal. 
 (1)  A  television  station  asserting  its  right  to  carriage  shall  be  required  to  bear  the  costs  associated  with 
 delivering  a  good  quality  signal  to  the  designated  local  receive  facility  of  the  satellite  carrier  or  to  another 
 facility  that  is  acceptable  to  at  least  one-  half  the  stations  asserting  the  right  to  carriage  in  the  local  market. 

 (2)  To  be  considered  a  good  quality  signal  for  satellite  carriage  purposes,  a  television  station  shall  deliver 
 to  the  local  receive  facility  of  a  satellite  carrier  either  a  signal  level  of  -45dBm  for  UHF  signals  or 
 -49dBm  for  VHF  signals  at  the  input  terminals  of  the  signal  processing  equipment. 

 (3)  A  satellite  carrier  is  not  required  to  carry  a  television  station  that  does  not  agree  to  be  responsible  for 
 the  costs  of  delivering  a  good  quality  signal  to  the  receive  facility. 

 (h)  Duplicating  signals. 
 (1)  A  satellite  carrier  shall  not  be  required  to  carry  upon  request  the  signal  of  any  local  television 
 broadcast  station  that  substantially  duplicates  the  signal  of  another  local  television  broadcast  station 
 which  is  secondarily  transmitted  by  the  satellite  carrier  within  the  same  local  market,  or  the  signals  of 
 more  than  one  local  commercial  television  broadcast  station  in  a  single  local  market  that  is  affiliated  with 
 a  particular  television  network  unless  such  stations  are  licensed  to  communities  in  different  States. 

 (2)  A  satellite  carrier  may  select  which  duplicating  signal  in  a  market  it  shall  carry. 
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 (3)  A  satellite  carrier  may  select  which  network  affiliate  in  a  market  it  shall  carry. 
 (4)  A  satellite  carrier  is  permitted  to  drop  a  local  television  station  whenever  that  station  meets  the 
 substantial  duplication  criteria  set  forth  in  this  paragraph.  A  satellite  carrier  must  add  a  television  station 
 to  its  channel  line-  up  if  such  station  no  longer  duplicates  the  programming  of  another  local  television 
 station. 

 (5)  A  satellite  carrier  shall  provide  notice  to  its  subscribers,  and  to  the  affected  television  station, 
 whenever  it  adds  or  deletes  a  stations  signal  in  a  particular  local  market  pursuant  to  this  paragraph. 

 (6)  A  commercial  television  station  substantially  duplicates  the  programming  of  another  commercial 
 television  station  if  it  simultaneously  broadcasts  the  identical  programming  of  another  station  for  more 
 than  50  percent  of  the  broadcast  week. 

 (7)  A  noncommercial  television  station  substantially  duplicates  the  programming  of  another 
 noncommercial  station  if  it  simultaneously  broadcasts  the  same  programming  as  another  noncommercial 
 station  for  more  than  for  more  than  50  percent  of  prime  time,  as  defined  by  76.5(  n),  and  more  than  50 
 percent  outside  of  prime  time  over  a  three  month  period,  Provided,  however,  that  after  three 
 noncommercial  television  stations  are  carried,  the  test  of  duplication  shall  be  whether  more  than  50 
 percent  of  prime  time  programming  and  more  than  50  percent  outside  of  prime  time  programming  is 
 duplicative  on  a  non-  simultaneous  basis. 

 (i)  Channel  positioning. 
 (1)  No  satellite  carrier  shall  be  required  to  provide  the  signal  of  a  local  television  broadcast  station  to 
 subscribers  in  that  station's  local  market  on  any  particular  channel  number  or  to  provide  the  signals  in  any 
 particular  order,  except  that  the  satellite  carrier  shall  retransmit  the  signal  of  the  local  television  broadcast 
 stations  to  subscribers  in  the  stations'  local  market  on  contiguous  channels. 

 (2)  The  television  stations  subject  to  this  paragraph  include  those  carried  under  retransmission  consent. 
 (3)  All  local  television  stations  carried  under  mandatory  carriage  in  a  particular  television  market  must  be 
 offered  to  subscribers  at  rates  comparable  to  local  television  stations  carried  under  retransmission  consent  in 
 that  same  market. 

 (4)  Within  a  market,  no  satellite  carrier  shall  provide  local-  into-  local  service  in  a  manner  that  requires 
 subscribers  to  obtain  additional  equipment  at  their  own  expense  or  for  an  additional  carrier  charge  in  order 
 to  obtain  one  or  more  local  television  broadcast  signals  if  such  equipment  is  not  required  for  the  receipt  of 
 other  local  television  broadcast  signals. 

 (5)  All  television  stations  carried  under  mandatory  carriage,  in  a  particular  market,  shall  be  presented  to 
 subscribers  in  the  same  manner  as  television  stations  that  elected  retransmission  consent,  in  that  same 
 market,  on  any  navigational  device,  on-  screen  program  guide,  or  menu  provided  by  the  satellite  carrier. 

 (j)  Manner  of  carriage. 
 (1)  Each  television  station  carried  by  a  satellite  carrier,  pursuant  to  this  section,  shall  include  in  its  entirety 
 the  primary  video,  accompanying  audio,  and  closed  captioning  data  contained  in  line  21  of  the  vertical 
 blanking  interval  and,  to  the  extent  technically  feasible,  program-  related  material  carried  in  the  vertical 
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 blanking  interval  or  on  subcarriers.  For  noncommercial  educational  television  stations,  a  satellite  carrier 
 must  also  carry  any  program-  related  material  that  may  be  necessary  for  receipt  of  programming  by  persons 
 with  disabilities  or  for  educational  or  language  purposes.  Secondary  audio  programming  must  also  be 
 carried.  Where  appropriate  and  feasible,  satellite  carriers  may  delete  signal  enhancements,  such  as 
 ghost-  canceling,  from  the  broadcast  signal  and  employ  such  enhancements  at  the  local  receive  facility. 

 (2)  A  satellite  carrier,  at  its  discretion,  may  carry  any  ancillary  service  transmission  on  the  vertical  blanking 
 interval  or  the  aural  baseband  of  any  television  broadcast  signal,  including,  but  not  limited  to,  multichannel 
 television  sound  and  teletext. 

 (k)  Material  degradation.  Each  local  television  station  whose  signal  is  carried  under  mandatory  carriage 
 shall,  to  the  extent  technically  feasible  and  consistent  with  good  engineering  practice,  be  provided  with 
 the  same  quality  of  signal  processing  provided  to  television  stations  electing  retransmission  consent.  A 
 satellite  carrier  is  permitted  to  use  reasonable  digital  compression  techniques  in  the  carriage  of  local 
 television  stations. 

 (l)  Compensation  for  carriage. 
 (1)  A  satellite  carrier  shall  not  accept  or  request  monetary  payment  or  other  valuable  consideration  in 
 exchange  either  for  carriage  of  local  television  broadcast  stations  in  fulfillment  of  the  mandatory  carriage 
 requirements  of  this  section  or  for  channel  positioning  rights  provided  to  such  stations  under  this  section, 
 except  that  any  such  station  may  be  required  to  bear  the  costs  associated  with  delivering  a  good  quality 
 signal  to  the  receive  facility  of  the  satellite  carrier. 

 (2)  A  satellite  carrier  may  accept  payments  from  a  station  pursuant  to  a  retransmission  consent  agreement. 
 (m)  Remedies. 
 (1)  Whenever  a  local  television  broadcast  station  believes  that  a  satellite  carrier  has  failed  to  meet  its 
 obligations  under  this  section,  such  station  shall  notify  the  carrier,  in  writing,  of  the  alleged  failure  and 
 identify  its  reasons  for  believing  that  the  satellite  carrier  failed  to  comply  with  such  obligations. 

 (2)  The  satellite  carrier  shall,  within  30  days  after  such  written  notification,  respond  in  writing  to  such 
 notification  and  comply  with  such  obligations  or  state  its  reasons  for  believing  that  it  is  in  compliance 
 with  such  obligations. 

 (3)  A  local  television  broadcast  station  that  disputes  a  response  by  a  satellite  carrier  that  it  is  in 
 compliance  with  such  obligations  may  obtain  review  of  such  denial  or  response  by  filing  a  complaint  with 
 the  Commission,  in  accordance  with  76.7  of  title  47,  Code  of  Federal  Regulations.  Such  complaint  shall 
 allege  the  manner  in  which  such  satellite  carrier  has  failed  to  meet  its  obligations  and  the  basis  for  such 
 allegations. 

 (4)  The  satellite  carrier  against  which  a  complaint  is  filed  is  permitted  to  present  data  and  arguments  to 
 establish  that  there  has  been  no  failure  to  meet  its  obligations  under  this  section. 

 (5)  The  Commission  shall  determine  whether  the  satellite  carrier  has  met  its  obligations  under  this  section.  If 
 the  Commission  determines  that  the  satellite  carrier  has  failed  to  meet  such  obligations,  the  Commission 
 shall  order  the  satellite  carrier  to  take  appropriate  remedial  action.  If  the  Commission  determines  that  the 
 satellite  carrier  has  fully  met  the  requirements  of  this  section,  it  shall  dismiss  the  complaint. 
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 (6)  The  Commission  will  not  accept  any  complaint  filed  later  than  60  days  after  a  satellite  carrier,  either 
 implicitly  or  explicitly,  denies  a  television  stations  carriage  request. 
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 Appendix  C 
 Final  Regulatory  Flexibility  Act  Analysis 
 1.  As  required  by  the  Regulatory  Flexibility  Act  ("  RFA"),  363  an  Initial  Regulatory 
 Flexibility  Analysis  ("  IRFA")  was  incorporated  in  the  Notice  of  Proposed  Rulemaking  in  CS  Docket  No. 
 00-  96,  FCC  00-  195  (  Notice)  and  in  the  Notice  of  Proposed  Rulemaking  in  CS  Docket  No.  99-  363,  FCC 
 99-  406  (  Retransmission  Consent  Notice).  The  Commission  sought  written  public  comments  on  the 
 proposals  in  both  Notices,  including  comment  on  the  IRFAs.  364  No  specific  comments  were  received  on 
 the  IRFAs.  This  Final  Regulatory  Flexibility  Analysis  (  FRFA)  conforms  to  the  RFA.  365 

 2.  Need  for,  and  Objectives  of,  this  Report  and  Order.  Section  338(  g)  of  the 
 Communications  Act  of  1934,  as  amended  (  Act),  47  U.  S.  C.  338(  g),  directed  the  Commission,  within 
 one  year  of  enactment  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999,  366  to  issue  regulations 
 implementing  this  section  following  a  rulemaking  proceeding.  The  relevant  provisions  concern  the 
 carriage  of  all  local  television  broadcast  station  signals  by  satellite  carriers  commencing  on  January  1, 
 2002.  Section  325(  b)(  3)(  C)  of  the  Act,  47  U.  S.  C.    325(  b)(  3)(  C),  also  directs  the  Commission  to 
 complete  all  actions  necessary  to  prescribe  election  cycle  regulations  within  one  year  of  enactment  of  the 
 Satellite  Home  Viewer  Improvement  Act  of  1999.  367 

 3.  Summary  of  Significant  Issues  Raised  by  Public  Comments  in  Response  to  the 
 IRFAs.  We  did  not  receive  any  comments  in  direct  response  to  the  IRFA  in  CS  Docket  00-  96.  The 
 American  Cable  Association  commented  on  the  IRFA  in  CS  Docket  No.  99-  363,  but  those  comments 
 were  directed  at  the  SHVIAs  good  faith  and  exclusivity  provisions,  and  did  not  concern  the  election 
 cycle  addressed  herein. 

 4.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Rules  Will  Apply.  The  RFA  directs  agencies  to  provide  a  description  of,  and  where  feasible,  an  estimate  of  the 
 number  of  small  entities  that  may  be  affected  by  the  proposed  rules.  368  The  RFA  defines  the  term  "small 
 entity"  as  having  the  same  meaning  as  the  terms  "small  business,"  "small  organization,"  and  small 

 363  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). 

 364  See  Implementation  of  the  Satellite  Home  Viewer  Improvement  Act  of  1999  Broadcast  Signal  Carriage  Issues, 
 Notice  of  Proposed  Rulemaking,  15  FCC  Rcd  12147  (2000).  Implementation  of  the  Satellite  Home  Viewer 
 Improvement  Act  of  1999  Retransmission  Consent  Issues,  Notice  of  Proposed  Rulemaking,  14  FCC  Rcd  21736 
 (1999).  The  IRFAs  are  found  at  Appendix  A  in  the  respective  Notices. 

 365  See  5  U.  S.  C.    604. 

 366  Act  of  Nov.  29,  1999,  Pub.  Law  106-  113,  1000(  9),  113  Stat.  1501,  Appendix  A. 
 367  Id. 
 368  5  U.  S.  C.  603(  b)(  3). 
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 governmental  jurisdiction.  369  In  addition,  the  term  "small  business"  has  the  same  meaning  as  the  term 
 small  business  concern  under  Section  3  of  the  Small  Business  Act.  370  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").  371  The  rules  we  adopt  affect  television  station  licensees  and  satellite  carriers. 

 5.  Television  Stations:  The  rules  and  policies  will  apply  to  television  broadcasting  licensees, 
 and  potential  licensees  of  television  service.  The  SBA  defines  a  television  broadcasting  station  that  has  no 
 more  than  $10.5  million  in  annual  receipts  as  a  small  business.  372  Television  broadcasting  stations  consist  of 
 establishments  primarily  engaged  in  broadcasting  visual  programs  by  television  to  the  public,  except  cable 
 and  other  pay  television  services.  373  Included  in  this  industry  are  commercial,  religious,  educational,  and 
 other  television  stations.  374  Also  included  are  establishments  primarily  engaged  in  television  broadcasting 
 and  which  produce  taped  television  program  materials.  375  Separate  establishments  primarily  engaged  in 
 producing  taped  television  program  materials  are  classified  under  another  SIC  number.  376 

 6.  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." 

 7.  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 

 369  5  U.  S.  C.  601(  6). 

 370  5  U.  S.  C.  601(  3)(  incorporating  by  reference  the  definition  of  small  business  concern  in  15  U.  S.  C.  632.) 

 371  15  U.  S.  C.  632. 
 372  13  C.  F.  R.  121.  201,  Standard  Industrial  Code  (SIC)  4833  (1996). 
 373  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). 

 374  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. 

 375  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). 

 376  Id.;  SIC  7812  (Motion  Picture  and  Video  Tape  Production);  SIC  7922  (Theatrical  Producers  and  Miscellaneous 
 Theatrical  Services)  (producers  of  live  radio  and  television  programs). 
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 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. 

 8.  There  were  1,509  television  stations  operating  in  the  nation  in  1992.  377  That  number  has 
 remained  fairly  constant  as  indicated  by  the  approximately  1,  616  operating  television  broadcasting  stations 
 in  the  nation  as  of  September  1999.  378  For  1992,  the  number  of  television  stations  that  produced  less  than 
 $10.  0  million  in  revenue  was  1,155  establishments.  379  Thus,  the  new  rules  will  affect  approximately  1,616 
 television  stations;  approximately  77%,  or  1,230  of  those  stations  are  considered  small  businesses.  380  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. 

 9.  Small  Multichannel  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.  381  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.  382  We  address 
 below  services  individually  to  provide  a  more  precise  estimate  of  small  entities. 

 10.  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. 

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

 378  FCC  News  Release,  Broadcast  Station  Totals  as  of  September,  1999  (released  November,  1999). 

 379  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. 

 380  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. 

 381  13  C.  F.  R.  121.  201  (SIC  4841). 

 382  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). 
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 11.  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.  383  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.  384 

 12.  According  to  the  most  recently  available  information,  there  are  approximately  30 
 program  packagers  nationwide  offering  packages  of  scrambled  programming  to  retail  consumers.  385 
 These  program  packagers  provide  subscriptions  to  approximately  2,314,900  subscribers  nationwide.  386 
 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  possible  that  some  program  packagers  may  be  smaller. 

 13.  Description  of  Projected  Reporting,  Recordkeeping  and  other  Compliance 
 Requirements.  In  order  to  implement  the  Satellite  Home  Viewer  Improvement  Act  of  1999,  the 
 Commission  will  add  new  rules.  We  have  adopted  a  regulatory  framework  for  substantive  rules  and 
 procedures  concerning  satellite  broadcast  signal  carriage  similar  to,  but  separate  from,  the  broadcast 
 signal  carriage  rules  for  cable  operators.  There  are  certain  compliance  requirements  involving  the  satellite 
 broadcast  signal  carriage  process.  Foremost  is  that  satellite  carriers  will  have  to  carry  all  local  television 
 stations  in  a  given  market,  subject  to  certain  limited  exceptions,  if  it  decides  to  carry  at  least  one  signal  in 
 a  market.  There  will  be  costs  relating  to  the  time  and  effort  involved  in  carrying  these  local  broadcast 
 signals. 

 14.  In  terms  of  recordkeeping,  entities  will  likely  have  to  keep  a  record  of  their  election 
 status  and  entities  may  be  required  to  maintain  such  information  within  their  business  environment  and 
 may  also  have  to  file  such  information  with  the  Commission.  These  records  are  uncomplicated  and  are 
 inexpensive  to  produce  and  maintain. 

 15.  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,  among 
 others:  (1)  the  establishment  of  differing  compliance  or  reporting  requirements  or  timetables  that  take  into 

 383  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). 
 384  Third  Annual  Report,  12  FCC  Rcd  at  4385. 

 385  Id. 
 386  Id. 
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 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.  387 

 16.  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  satellite 
 carriers  to  carry  all  local  television  broadcast  stations  in  a  market,  if  it  carries  any  local  market  television 
 stations,  by  January  1,  2002.  This  document  also  discusses  implementing  regulations  relating  to  the 
 scope  and  substance  of  local  broadcast  signal  carriage  by  satellite  carriers,  including  the  establishment  of 
 an  election  cycle  process  for  broadcasters  vis-  -  vis  satellite  carriers.  The  rules  adopted  were  required  by 
 Congress.  Where  there  was  discretion  to  consider  alternatives,  as  in  the  case  of  notification  requirements 
 to  commence  carriage,  the  Commission  chose  to  place  the  notice  burden  on  broadcast  stations  rather  than 
 satellite  carriers.  In  making  this  decision,  the  Commission  recognized  that  there  are  only  two  affected 
 satellite  carriers  while  there  are  almost  500  television  stations  at  issue.  This  legislation  applies  to  small 
 entities  and  large  entities  equally. 

 17.  Report  to  Congress:  The  Commission  will  send  a  copy  of  the  Report  and  Order, 
 including  this  FRFA,  in  a  report  to  be  sent  to  Congress  pursuant  to  the  Congressional  Review  Act.  388  In 
 addition,  the  Commission  will  send  a  copy  of  the  Report  and  Order,  including  the  FRFA,  to  the  Chief 
 Counsel  for  Advocacy  of  the  SBA.  A  copy  of  the  Report  and  Order  and  FRFA  (or  summaries  thereof) 
 will  as  be  published  in  the  Federal  Register.  389 

 387  5  U.  S.  C.  603(  c) 
 388  See  5  U.  S.  C.  801(  a)(  1)(  A). 
 389  See  5  U.  S.  C.  604(  b). 
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 Appendix  D 
 Television  Markets  with  Local-  Into-  Local  Service  from  DirecTV  (38  total  markets) 

 Atlanta,  GA 
 Baltimore,  MD* 
 Birmingham,  AL* 
 Boston,  MA 
 Charlotte,  NC 
 Chicago,  IL 
 Cincinnati,  OH 
 Cleveland,  OH 
 Dallas/  Ft.  Worth,  TX 
 Denver,  CO 
 Detroit,  MI 
 Greensboro,  NC* 
 Greenville,  SC* 
 Houston,  TX 
 Indianapolis,  IN 
 Kansas  City,  MO* 
 Los  Angeles,  CA 
 Memphis,  TN* 
 Miami/  Ft.  Lauderdale,  FL 
 Milwaukee,  WI 
 Minneapolis/  St.  Paul,  MN 
 Nashville,  TN 
 New  York,  NY 
 Orlando/  Daytona,  FL 
 Philadelphia,  PA 
 Phoenix,  AZ 
 Pittsburgh,  PA* 
 Portland,  OR 
 Raleigh-  Durham,  NC* 
 Sacramento/  Stockton,  CA 
 St.  Louis,  MO 
 Salt  Lake  City,  UT 
 San  Antonio,  TX* 
 San  Diego,  CA* 
 San  Francisco/  Oakland/  San  Jose,  CA 
 Seattle/  Tacoma,  WA 
 Tampa/  St.  Petersburg,  FL 
 Washington,  D.  C. 

 *  indicates  that  special  equipment  is  required  to  receive  local  television  stations  on  satellite 
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 Appendix  E 
 Television  Markets  with  Local-  Into-  Local  Service  from  Echostar  (34  total  markets) 

 Albuquerque-  Santa  Fe 
 Atlanta,  GA 
 Boston,  MA 
 Charlotte,  NC 
 Chicago,  IL 
 Cincinnati,  OH 
 Cleveland,  OH 
 Dallas/  Ft.  Worth,  TX 
 Denver,  CO 
 Detroit,  MI 
 Greenville,  NC 
 Houston,  TX 
 Indianapolis,  IN 
 Kansas  City,  MO 
 Los  Angeles,  CA 
 Miami/  Ft.  Lauderdale,  FL 
 Minneapolis/  St.  Paul,  MN 
 Nashville,  TN 
 New  York,  NY 
 Orlando,  FL 
 Philadelphia,  PA 
 Phoenix,  AZ 
 Pittsburgh,  PA 
 Portland,  OR 
 Raleigh/  Durham,  NC 
 Sacramento/  Stockton,  CA 
 Salt  Lake  City,  UT 
 San  Antonio,  TX 
 San  Diego,  CA 
 San  Francisco/  Oakland/  San  Jose,  CA 
 Seattle/  Tacoma,  WA 
 St.  Louis,  MO 
 Tampa/  St.  Petersburg  (Sarasota),  FL 
 Washington,  D.  C. 
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 Appendix  F 
 Section  338  of  the  Communications  Act  of  1934,  as  amended  Carriage  of  Local  Television  Signals  by  Satellite  Carriers. 

 (a)  Carriage  obligations.-  -( 
 1)  In  general.--  Subject  to  the  limitations  of  paragraph  (2),  each  satellite  carrier  providing,  under  section 
 122  of  title  17,  United  States  Code,  secondary  transmissions  to  subscribers  located  within  the  local  market 
 of  a  television  broadcast  station  of  a  primary  transmission  made  by  that  station  shall  carry  upon  request 
 the  signals  of  all  television  broadcast  stations  located  within  that  local  market,  subject  to  section  325(  b). 

 (2)  Remedies  for  failure  to  carry.--  The  remedies  for  any  failure  to  meet  the 
 obligations  under  this  subsection  shall  be  available  exclusively  under  section  501(  f)  of  title  17,  United 
 States  Code. 

 (3)  Effective  date.--  No  satellite  carrier  shall  be  required  to  carry  local  television  broadcast  stations  under 
 paragraph  (1)  until  January  1,  2002. 

 (b)  Good  signal  required.-  -( 
 1)  Costs.--  A  television  broadcast  station  asserting  its  right  to  carriage  under  subsection  (a)  shall  be 
 required  to  bear  the  costs  associated  with  delivering  a  good  quality  signal  to  the  designated  local  receive 
 facility  of  the  satellite  carrier  or  to  another  facility  that  is  acceptable  to  at  least  one-  half  the  stations 
 asserting  the  right  to  carriage  in  the  local  market. 

 (2)  Regulations.--  The  regulations  issued  under  subsection  (g)  shall  set  forth  the  obligations  necessary  to 
 carry  out  this  subsection. 

 (c)  Duplication  not  required.-  -( 
 1)  Commercial  stations.--  Notwithstanding  subsection  (a),  a  satellite  carrier  shall  not  be  required  to  carry 
 upon  request  the  signal  of  any  local  commercial  television  broadcast  station  that  substantially  duplicates 
 the  signal  of  another  local  commercial  television  broadcast  station  which  is  secondarily  transmitted  by  the 
 satellite  carrier  within  the  same  local  market,  or  to  carry  upon  request  the  signals  of  more  than  one  local 
 commercial  television  broadcast  station  in  a  single  local  market  that  is  affiliated  with 
 a  particular  television  network  unless  such  stations  are  licensed  to  communities  in  different  States. 

 (2)  Noncommercial  stations.--  The  Commission  shall  prescribe  regulations  limiting  the  carriage 
 requirements  under  subsection  (a)  of  satellite  carriers  with  respect  to  the  carriage  of  multiple  local 
 noncommercial  television  broadcast  stations.  To  the  extent  possible,  such  regulations  shall  provide  the 
 same  degree  of  carriage  by  satellite  carriers  of  such  multiple  stations  as  is  provided  by  cable  systems 
 under  section  615. 

 (d)  Channel  positioning.--  No  satellite  carrier  shall  be  required  to  provide  the  signal  of  a  local  television 
 broadcast  station  to  subscribers  in  that  station's  local  market  on  any  particular  channel  number  or  to 
 provide  the  signals  in  any  particular  order,  except  that  the  satellite  carrier  shall  retransmit  the  signal  of  the 
 local  television  broadcast  stations  to  subscribers  in  the  stations'  local  market  on  contiguous  channels  and 
 provide  access  to  such  station's  signals  at  a  nondiscriminatory  price  and  in  a  nondiscriminatory  manner  on 
 any  navigational  device,  on-  screen  program  guide,  or  menu. 
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 (e)  Compensation  for  carriage.--  A  satellite  carrier  shall  not  accept  or  request  monetary  payment  or  other 
 valuable  consideration  in  exchange  either  for  carriage  of  local  television  broadcast  stations  in  fulfillment 
 of  the  requirements  of  this  section  or  for  channel  positioning  rights  provided  to  such  stations  under  this 
 section,  except  that  any  such  station  may  be  required  to  bear  the  costs  associated  with  delivering  a  good 
 quality  signal  to  the  local  receive  facility  of  the  satellite  carrier. 

 (f)  Remedies.-  -( 
 1)  Complaints  by  broadcast  stations.--  Whenever  a  local  television  broadcast  station  believes  that  a 
 satellite  carrier  has  failed  to  meet  its  obligations  under  subsections  (b)  through  (e)  of  this  section,  such 
 station  shall  notify  the  carrier,  in  writing,  of  the  alleged  failure  and  identify  its  reasons  for  believing  that 
 the  satellite  carrier  failed  to  comply  with  such  obligations.  The  satellite  carrier  shall,  within  30  days  after 
 such  written  notification,  respond  in  writing  to  such  notification  and  comply  with  such  obligations  or  state 
 its  reasons  for  believing  that  it  is  in  compliance  with  such  obligations.  A  local  television  broadcast  station 
 that  disputes  a  response  by  a  satellite  carrier  that  it  is  in  compliance  with  such  obligations  may  obtain 
 review  of  such  denial  or  response  by  filing  a  complaint  with  the  Commission.  Such  complaint  shall  allege 
 the  manner  in  which  such  satellite  carrier  has  failed  to  meet  its  obligations  and  the  basis  for  such 
 allegations. 

 (2)  Opportunity  to  respond.--  The  Commission  shall  afford  the  satellite  carrier  against  which  a  complaint 
 is  filed  under  paragraph  (1)  an  opportunity  to  present  data  and  arguments  to  establish  that  there  has  been 
 no  failure  to  meet  its  obligations  under  this  section. 

 (3)  Remedial  actions;  dismissal.--  Within  120  days  after  the  date  a  complaint  is  filed  under  paragraph  (1), 
 the  Commission  shall  determine  whether  the  satellite  carrier  has  met  its  obligations  under  subsections  (b) 
 through  (e).  If  the  Commission  determines  that  the  satellite  carrier  has  failed  to  meet  such  obligations,  the 
 Commission  shall  order  the  satellite  carrier  to  take  appropriate  remedial  action.  If  the  Commission 
 determines  that  the  satellite  carrier  has  fully  met  the  requirements  of  such  subsections,  the  Commission 
 shall  dismiss  the  complaint. 

 (g)  Regulations  by  commission.--  Within  1  year  after  the  date  of  the  enactment  of  this  section,  the 
 Commission  shall  issue  regulations  implementing  this  section  following  a  rulemaking  proceeding.  The 
 regulations  prescribed  under  this  section  shall  include  requirements  on  satellite  carriers  that  are 
 comparable  to  the  requirements  on  cable  operators  under  sections  614(  b)(  3)  and  (4)  and  615(  g)(  1)  and  (2). 

 (h)  Definitions.--  As  used  in  this  section: 
 (1)  Distributor.--  The  term  'distributor'  means  an  entity  which  contracts  to  distribute  secondary 
 transmissions  from  a  satellite  carrier  and,  either  as  a  single  channel  or  in  a  package  with  other 
 programming,  provides  the  secondary  transmission  either  directly  to  individual  subscribers  or  indirectly 
 through  other  program  distribution  entities. 

 (2)  Local  receive  facility.--  The  term  'local  receive  facility'  means  the  reception  point  in  each  local  market 
 which  a  satellite  carrier  designates  for  delivery  of  the  signal  of  the  station  for  purposes  of  retransmission. 

 (3)  Local  market.--  The  term  'local  market'  has  the  meaning  given  that  term  under  section  122(  j)  of  title 
 17,  United  States  Code. 
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 (4)  Satellite  carrier.--  The  term  'satellite  carrier'  has  the  meaning  given  such  term  under  section  119(  d)  of 
 title  17,  United  States  Code. 

 (5)  Secondary  transmission.--  The  term  'secondary  transmission'  has  the  meaning  given  such  term  in 
 section  119(  d)  of  title  17,  United  States  Code. 

 (6)  Subscriber.--  The  term  'subscriber'  has  the  meaning  given  that  term  under  section  122(  j)  of  title  17, 
 United  States  Code. 

 (7)  Television  broadcast  station.--  The  term  'television  broadcast  station'  has  the  meaning  given  such  term 
 in  section  325(  b)(  7). 
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 Appendix  G 
 Section  614  of  the  Communications  Act  Carriage  of  Local  Commercial  Television  Signals  by  Cable  Operators 

 (a)  Carriage  obligations 
 Each  cable  operator  shall  carry,  on  the  cable  system  of  that  operator,  the  signals  of  local  commercial 
 television  stations  and  qualified  low  power  stations  as  provided  by  this  section.  Carriage  of  additional 
 broadcast  television  signals  on  such  system  shall  be  at  the  discretion  of  such  operator,  subject  to  section 
 325(  b)  of  this  title. 

 (b)  Signals  required 
 (1)  In  general 
 (A)  A  cable  operator  of  a  cable  system  with  12  or  fewer  usable  activated  channels  shall  carry  the  signals 
 of  at  least  three  local  commercial  television  stations,  except  that  if  such  a  system  has  300  or  fewer 
 subscribers,  it  shall  not  be  subject  to  any  requirements  under  this  section  so  long  as  such  system  does  not 
 delete  from  carriage  by  that  system  any  signal  of  a  broadcast  television  station. 

 (B)  A  cable  operator  of  a  cable  system  with  more  than  12  usable  activated  channels  shall  carry  the  signals 
 of  local  commercial  television  stations,  up  to  one-  third  of  the  aggregate  number  of  usable  activated 
 channels  of  such  system. 

 (2)  Selection  of  signals 
 Whenever  the  number  of  local  commercial  television  stations  exceeds  the  maximum  number  of  signals  a 
 cable  system  is  required  to  carry  under  paragraph  (1),  the  cable  operator  shall  have  discretion  in  selecting 
 which  such  stations  shall  be  carried  on  its  cable  system,  except  that-  -( 

 A)  under  no  circumstances  shall  a  cable  operator  carry  a  qualified  low  power  station  in  lieu  of  a  local 
 commercial  television  station;  and 

 (B)  if  the  cable  operator  elects  to  carry  an  affiliate  of  a  broadcast  network  (as  such  term  is  defined  by  the 
 Commission  by  regulation),  such  cable  operator  shall  carry  the  affiliate  of  such  broadcast  network  whose 
 city  of  license  reference  point,  as  defined  in  section  76.53  of  title  47,  Code  of  Federal  Regulations  (in 
 effect  on  January  1,  1991),  or  any  successor  regulation  thereto,  is  closest  to  the  principal  headend  of  the 
 cable  system. 

 (3)  Content  to  be  carried 
 (A)  A  cable  operator  shall  carry  in  its  entirety,  on  the  cable  system  of  that  operator,  the  primary  video, 
 accompanying  audio,  and  line  21  closed  caption  transmission  of  each  of  the  local  commercial  television 
 stations  carried  on  the  cable  system  and,  to  the  extent  technically  feasible,  program-  related  material 
 carried  in  the  vertical  blanking  interval  or  on  subcarriers.  Retransmission  of  other  material  in  the  vertical 
 blanking  internal  or  other  nonprogram-  related  material  (including  teletext  and  other  subscription  and 
 advertiser-  supported  information  services)  shall  be  at  the  discretion  of  the  cable  operator.  Where 
 appropriate  and  feasible,  operators  may  delete  signal  enhancements,  such  as  ghost-  canceling,  from  the 
 broadcast  signal  and  employ  such  enhancements  at  the  system  headend  or  headends. 
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 (B)  The  cable  operator  shall  carry  the  entirety  of  the  program  schedule  of  any  television  station  carried  on 
 the  cable  system  unless  carriage  of  specific  programming  is  prohibited,  and  other  programming 
 authorized  to  be  substituted,  under  section  76.67  or  subpart  F  of  part  76  of  title  47,  Code  of  Federal 
 Regulations  (as  in  effect  on  January  1,  1991),  or  any  successor  regulations  thereto. 

 (4)  Signal  quality 
 (A)  Nondegradation;  technical  specifications 
 The  signals  of  local  commercial  television  stations  that  a  cable  operator  carries  shall  be  carried  without 
 material  degradation.  The  Commission  shall  adopt  carriage  standards  to  ensure  that,  to  the  extent 
 technically  feasible,  the  quality  of  signal  processing  and  carriage  provided  by  a  cable  system  for  the 
 carriage  of  local  commercial  television  stations  will  be  no  less  than  that  provided  by  the  system  for 
 carriage  of  any  other  type  of  signal. 

 (B)  Advanced  television 
 At  such  time  as  the  Commission  prescribes  modifications  of  the  standards  for  television  broadcast  signals, 
 the  Commission  shall  initiate  a  proceeding  to  establish  any  changes  in  the  signal  carriage  requirements  of 
 cable  television  systems  necessary  to  ensure  cable  carriage  of  such  broadcast  signals  of  local  commercial 
 television  stations  which  have  been  changed  to  conform  with  such  modified  standards. 

 (5)  Duplication  not  required 
 Notwithstanding  paragraph  (1),  a  cable  operator  shall  not  be  required  to  carry  the  signal  of  any  local 
 commercial  television  station  that  substantially  duplicates  the  signal  of  another  local  commercial 
 television  station  which  is  carried  on  its  cable  system,  or  to  carry  the  signals  of  more  than  one  local 
 commercial  television  station  affiliated  with  a  particular  broadcast  network  (as  such  term  is  defined  by 
 regulation).  If  a  cable  operator  elects  to  carry  on  its  cable  system  a  signal  which  substantially  duplicates 
 the  signal  of  another  local  commercial  television  station  carried  on  the  cable  system,  or  to  carry  on  its 
 system  the  signals  of  more  than  one  local  commercial  television  station  affiliated  with  a  particular 
 broadcast  network,  all  such  signals  shall  be  counted  toward  the  number  of  signals  the  operator  is  required 
 to  carry  under  paragraph  (1). 

 (6)  Channel  positioning 
 Each  signal  carried  in  fulfillment  of  the  carriage  obligations  of  a  cable  operator  under  this  section  shall  be 
 carried  on  the  cable  system  channel  number  on  which  the  local  commercial  television  station  is  broadcast 
 over  the  air,  or  on  the  channel  on  which  it  was  carried  on  July  19,  1985,  or  on  the  channel  on  which  it  was 
 carried  on  January  1,  1992,  at  the  election  of  the  station,  or  on  such  other  channel  number  as  is  mutually 
 agreed  upon  by  the  station  and  the  cable  operator.  Any  dispute  regarding  the  positioning  of  a  local 
 commercial  television  station  shall  be  resolved  by  the  Commission. 

 (7)  Signal  availability 
 Signals  carried  in  fulfillment  of  the  requirements  of  this  section  shall  be  provided  to  every  subscriber  of  a 
 cable  system.  Such  signals  shall  be  viewable  via  cable  on  all  television  receivers  of  a  subscriber  which 
 are  connected  to  a  cable  system  by  a  cable  operator  or  for  which  a  cable  operator  provides  a  connection. 
 If  a  cable  operator  authorizes  subscribers  to  install  additional  receiver  connections,  but  does  not  provide 
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 the  subscriber  with  such  connections,  or  with  the  equipment  and  materials  for  such  connections,  the 
 operator  shall  notify  such  subscribers  of  all  broadcast  stations  carried  on  the  cable  system  which  cannot 
 be  viewed  via  cable  without  a  converter  box  and  shall  offer  to  sell  or  lease  such  a  converter  box  to  such 
 subscribers  at  rates  in  accordance  with  section  543(  b)(  3)  of  this  title. 

 (8)  Identification  of  signals  carried 
 A  cable  operator  shall  identify,  upon  request  by  any  person,  the  signals  carried  on  its  system  in  fulfillment 
 of  the  requirements  of  this  section. 

 (9)  Notification 
 A  cable  operator  shall  provide  written  notice  to  a  local  commercial  television  station  at  least  30  days  prior 
 to  either  deleting  from  carriage  or  repositioning  that  station.  No  deletion  or  repositioning  of  a  local 
 commercial  television  station  shall  occur  during  a  period  in  which  major  television  ratings  services 
 measure  the  size  of  audiences  of  local  television  stations.  The  notification  provisions  of  this  paragraph 
 shall  not  be  used  to  undermine  or  evade  the  channel  positioning  or  carriage  requirements  imposed  upon 
 cable  operators  under  this  section. 

 (10)  Compensation  for  carriage 
 A  cable  operator  shall  not  accept  or  request  monetary  payment  or  other  valuable  consideration  in 
 exchange  either  for  carriage  of  local  commercial  television  stations  in  fulfillment  of  the  requirements  of 
 this  section  or  for  the  channel  positioning  rights  provided  to  such  stations  under  this  section,  except  that-  -( 

 A)  any  such  station  may  be  required  to  bear  the  costs  associated  with  delivering  a  good  quality  signal  or 
 a  baseband  video  signal  to  the  principal  headend  of  the  cable  system; 

 (B)  a  cable  operator  may  accept  payments  from  stations  which  would  be  considered  distant  signals  under 
 section  111  of  Title  17  as  indemnification  for  any  increased  copyright  liability  resulting  from  carriage  of 
 such  signal;  and 

 (C)  a  cable  operator  may  continue  to  accept  monetary  payment  or  other  valuable  consideration  in 
 exchange  for  carriage  or  channel  positioning  of  the  signal  of  any  local  commercial  television  station 
 carried  in  fulfillment  of  the  requirements  of  this  section,  through,  but  not  beyond,  the  date  of  expiration  of 
 an  agreement  thereon  between  a  cable  operator  and  a  local  commercial  television  station  entered  into 
 prior  to  June  26,  1990. 

 (c)  Low  power  station  carriage  obligation 
 (1)  Requirement 
 If  there  are  not  sufficient  signals  of  full  power  local  commercial  television  stations  to  fill  the  channels  set 
 aside  under  subsection  (b)  of  this  section-  -( 

 A)  a  cable  operator  of  a  cable  system  with  a  capacity  of  35  or  fewer  usable  activated  channels  shall  be 
 required  to  carry  one  qualified  low  power  station;  and 

 (B)  a  cable  operator  of  a  cable  system  with  a  capacity  of  more  than  35  usable  activated  channels  shall  be 
 required  to  carry  two  qualified  low  power  stations. 
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 (2)  Use  of  public,  educational,  or  governmental  channels 
 A  cable  operator  required  to  carry  more  than  one  signal  of  a  qualified  low  power  station  under  this 
 subsection  may  do  so,  subject  to  approval  by  the  franchising  authority  pursuant  to  section  531  of  this  title, 
 by  placing  such  additional  station  on  public,  educational,  or  governmental  channels  not  in  use  for  their 
 designated  purposes. 

 (d)  Remedies 
 (1)  Complaints  by  broadcast  stations 
 Whenever  a  local  commercial  television  station  believes  that  a  cable  operator  has  failed  to  meet  its 
 obligations  under  this  section,  such  station  shall  notify  the  operator,  in  writing,  of  the  alleged  failure  and 
 identify  its  reasons  for  believing  that  the  cable  operator  is  obligated  to  carry  the  signal  of  such  station  or 
 has  otherwise  failed  to  comply  with  the  channel  positioning  or  repositioning  or  other  requirements  of  this 
 section.  The  cable  operator  shall,  within  30  days  of  such  written  notification,  respond  in  writing  to  such 
 notification  and  either  commence  to  carry  the  signal  of  such  station  in  accordance  with  the  terms 
 requested  or  state  its  reasons  for  believing  that  it  is  not  obligated  to  carry  such  signal  or  is  in  compliance 
 with  the  channel  positioning  and  repositioning  and  other  requirements  of  this  section.  A  local  commercial 
 television  station  that  is  denied  carriage  or  channel  positioning  or  repositioning  in  accordance  with  this 
 section  by  a  cable  operator  may  obtain  review  of  such  denial  by  filing  a  complaint  with  the  Commission. 
 Such  complaint  shall  allege  the  manner  in  which  such  cable  operator  has  failed  to  meet  its  obligations  and 
 the  basis  for  such  allegations. 

 (2)  Opportunity  to  respond 
 The  Commission  shall  afford  such  cable  operator  an  opportunity  to  present  data  and  arguments  to 
 establish  that  there  has  been  no  failure  to  meet  its  obligations  under  this  section. 

 (3)  Remedial  actions;  dismissal 
 Within  120  days  after  the  date  a  complaint  is  filed,  the  Commission  shall  determine  whether  the  cable 
 operator  has  met  its  obligations  under  this  section.  If  the  Commission  determines  that  the  cable  operator 
 has  failed  to  meet  such  obligations,  the  Commission  shall  order  the  cable  operator  to  reposition  the 
 complaining  station  or,  in  the  case  of  an  obligation  to  carry  a  station,  to  commence  carriage  of  the  station 
 and  to  continue  such  carriage  for  at  least  12  months.  If  the  Commission  determines  that  the  cable 
 operator  has  fully  met  the  requirements  of  this  section,  it  shall  dismiss  the  complaint. 

 (e)  Input  selector  switch  rules  abolished 
 No  cable  operator  shall  be  required-  -( 
 1)  to  provide  or  make  available  any  input  selector  switch  as  defined  in  section  76.5(  mm)  of  title  47,  Code 
 of  Federal  Regulations,  or  any  comparable  device;  or 

 (2)  to  provide  information  to  subscribers  about  input  selector  switches  or  comparable  devices. 
 (f)  Regulations  by  Commission 
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 Within  180  days  after  October  5,  1992,  the  Commission  shall,  following  a  rulemaking  proceeding,  issue 
 regulations  implementing  the  requirements  imposed  by  this  section.  Such  implementing  regulations  shall 
 include  necessary  revisions  to  update  section  76.51  of  title  47  of  the  Code  of  Federal  Regulations. 

 (g)  Sales  presentations  and  program  length  commercials 
 (1)  Carriage  pending  proceeding 
 Pending  the  outcome  of  the  proceeding  under  paragraph  (2),  nothing  in  this  chapter  shall  require  a  cable 
 operator  to  carry  on  any  tier,  or  prohibit  a  cable  operator  from  carrying  on  any  tier,  the  signal  of  any 
 commercial  television  station  or  video  programming  service  that  is  predominantly  utilized  for  the 
 transmission  of  sales  presentations  or  program  length  commercials. 

 (2)  Proceeding  concerning  certain  stations 
 Within  270  days  after  October  5,  1992,  the  Commission,  notwithstanding  prior  proceedings  to  determine 
 whether  broadcast  television  stations  that  are  predominantly  utilized  for  the  transmission  of  sales 
 presentations  or  program  length  commercials  are  serving  the  public  interest,  convenience,  and  necessity, 
 shall  complete  a  proceeding  in  accordance  with  this  paragraph  to  determine  whether  broadcast  television 
 stations  that  are  predominantly  utilized  for  the  transmission  of  sales  presentations  or  program  length 
 commercials  are  serving  the  public  interest,  convenience,  and  necessity.  In  conducting  such  proceeding, 
 the  Commission  shall  provide  appropriate  notice  and  opportunity  for  public  comment.  The  Commission 
 shall  consider  the  viewing  of  such  stations,  the  level  of  competing  demands  for  the  spectrum  allocated  to 
 such  stations,  and  the  role  of  such  stations  in  providing  competition  to  nonbroadcast  services  offering 
 similar  programming.  In  the  event  that  the  Commission  concludes  that  one  or  more  of  such  stations  are 
 serving  the  public  interest,  convenience,  and  necessity,  the  Commission  shall  qualify  such  stations  as 
 local  commercial  television  stations  for  purposes  of  subsection  (a)  of  this  section.  In  the  event  that  the 
 Commission  concludes  that  one  or  more  of  such  stations  are  not  serving  the  public  interest,  convenience, 
 and  necessity,  the  Commission  shall  allow  the  licensees  of  such  stations  a  reasonable  period  within 
 which  to  provide  different  programming,  and  shall  not  deny  such  stations  a  renewal  expectancy  solely 
 because  their  programming  consisted  predominantly  of  sales  presentations  or  program  length 
 commercials. 

 (h)  Definitions 
 (1)  Local  commercial  television  station 
 (A)  In  general 
 For  purposes  of  this  section,  the  term  "local  commercial  television  station"  means  any  full  power 
 television  broadcast  station,  other  than  a  qualified  noncommercial  educational  television  station  within 
 the  meaning  of  section  535(  l)(  1)  of  this  title,  licensed  and  operating  on  a  channel  regularly  assigned  to  its 
 community  by  the  Commission  that,  with  respect  to  a  particular  cable  system,  is  within  the  same 
 television  market  as  the  cable  system. 

 (B)  Exclusions 
 The  term  "local  commercial  television  station"  shall  not  include-  -( 
 i)  low  power  television  stations,  television  translator  stations,  and  passive  repeaters  which  operate 
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 pursuant  to  part  74  of  title  47,  Code  of  Federal  Regulations,  or  any  successor  regulations  thereto; 
 (ii)  a  television  broadcast  station  that  would  be  considered  a  distant  signal  under  section  111  of  Title  17  if 
 such  station  does  not  agree  to  indemnify  the  cable  operator  for  any  increased  copyright  liability  resulting 
 from  carriage  on  the  cable  system;  or 

 (iii)  a  television  broadcast  station  that  does  not  deliver  to  the  principal  headend  of  a  cable  system  either  a 
 signal  level  of  -45dBm  for  UHF  signals  or  -49dBm  for  VHF  signals  at  the  input  terminals  of  the  signal 
 processing  equipment,  if  such  station  does  not  agree  to  be  responsible  for  the  costs  of  delivering  to  the 
 cable  system  a  signal  of  good  quality  or  a  baseband  video  signal. 

 (C)  Market  determinations 
 (i)  For  purposes  of  this  section,  a  broadcasting  station's  market  shall  be  determined  by  the  Commission  by 
 regulation  or  order  using,  where  available,  commercial  publications  which  delineate  television  markets 
 based  on  viewing  patterns,  except  that,  following  a  written  request,  the  Commission  may,  with  respect  to 
 a  particular  television  broadcast  station,  include  additional  communities  within  its  television  market  or 
 exclude  communities  from  such  station's  television  market  to  better  effectuate  the  purposes  of  this 
 section.  In  considering  such  requests,  the  Commission  may  determine  that  particular  communities  are 
 part  of  more  than  one  television  market. 

 (ii)  In  considering  requests  filed  pursuant  to  clause  (i),  the  Commission  shall  afford  particular  attention  to 
 the  value  of  localism  by  taking  into  account  such  factors  as-  -( 

 I)  whether  the  station,  or  other  stations  located  in  the  same  area,  have  been  historically  carried  on  the 
 cable  system  or  systems  within  such  community; 

 (II)  whether  the  television  station  provides  coverage  or  other  local  service  to  such  community; 
 (III)  whether  any  other  television  station  that  is  eligible  to  be  carried  by  a  cable  system  in  such 
 community  in  fulfillment  of  the  requirements  of  this  section  provides  news  coverage  of  issues  of  concern 
 to  such  community  or  provides  carriage  or  coverage  of  sporting  and  other  events  of  interest  to  the 
 community;  and 

 (IV)  evidence  of  viewing  patterns  in  cable  and  noncable  households  within  the  areas  served  by  the  cable 
 system  or  systems  in  such  community. 

 (iii)  A  cable  operator  shall  not  delete  from  carriage  the  signal  of  a  commercial  television  station  during 
 the  pendency  of  any  proceeding  pursuant  to  this  subparagraph. 

 (iv)  Within  120  days  after  the  date  on  which  a  request  is  filed  under  this  subparagraph  (or  120  days  after 
 February  8,  1996,  if  later),  the  Commission  shall  grant  or  deny  the  request. 

 (2)  Qualified  low  power  station 
 The  term  "qualified  low  power  station"  means  any  television  broadcast  station  conforming  to  the  rules 
 established  for  Low  Power  Television  Stations  contained  in  part  74  of  title  47,  Code  of  Federal 
 Regulations,  only  if-- 
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 (A)  such  station  broadcasts  for  at  least  the  minimum  number  of  hours  of  operation  required  by  the 
 Commission  for  television  broadcast  stations  under  part  73  of  title  47,  Code  of  Federal  Regulations; 

 (B)  such  station  meets  all  obligations  and  requirements  applicable  to  television  broadcast  stations  under 
 part  73  of  title  47,  Code  of  Federal  Regulations,  with  respect  to  the  broadcast  of  nonentertainment 
 programming;  programming  and  rates  involving  political  candidates,  election  issues,  controversial  issues 
 of  public  importance,  editorials,  and  personal  attacks;  programming  for  children;  and  equal  employment 
 opportunity;  and  the  Commission  determines  that  the  provision  of  such  programming  by  such  station 
 would  address  local  news  and  informational  needs  which  are  not  being  adequately  served  by  full  power 
 television  broadcast  stations  because  of  the  geographic  distance  of  such  full  power  stations  from  the  low 
 power  station's  community  of  license; 

 (C)  such  station  complies  with  interference  regulations  consistent  with  its  secondary  status  pursuant  to 
 part  74  of  title  47,  Code  of  Federal  Regulations; 

 (D)  such  station  is  located  no  more  than  35  miles  from  the  cable  system's  headend,  and  delivers  to  the 
 principal  headend  of  the  cable  system  an  over-  the-  air  signal  of  good  quality,  as  determined  by  the 
 Commission; 

 (E)  the  community  of  license  of  such  station  and  the  franchise  area  of  the  cable  system  are  both  located 
 outside  of  the  largest  160  Metropolitan  Statistical  Areas,  ranked  by  population,  as  determined  by  the 
 Office  of  Management  and  Budget  on  June  30,  1990,  and  the  population  of  such  community  of  license  on 
 such  date  did  not  exceed  35,000;  and 

 (F)  there  is  no  full  power  television  broadcast  station  licensed  to  any  community  within  the  county  or 
 other  political  subdivision  (of  a  State)  served  by  the  cable  system. 

 Nothing  in  this  paragraph  shall  be  construed  to  change  the  secondary  status  of  any  low  power  station  as 
 provided  in  part  74  of  title  47,  Code  of  Federal  Regulations,  as  in  effect  on  October  5,  1992. 
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 Appendix  H 
 Section  615  of  the  Communications  Act  Carriage  of  Noncommercial  Educational  Television  Signals  by  Cable  Operators 

 (a)  Carriage  obligations 
 In  addition  to  the  carriage  requirements  set  forth  in  section  534  of  this  title,  each  cable  operator  of  a  cable 
 system  shall  carry  the  signals  of  qualified  noncommercial  educational  television  stations  in  accordance 
 with  the  provisions  of  this  section. 

 (b)  Requirements  to  carry  qualified  stations 
 (1)  General  requirement  to  carry  each  qualified  station 
 Subject  to  paragraphs  (2)  and  (3)  and  subsection  (e)  of  this  section,  each  cable  operator  shall  carry,  on  the 
 cable  system  of  that  cable  operator,  any  qualified  local  noncommercial  educational  television  station 
 requesting  carriage. 

 (2)  Systems  with  12  or  fewer  channels 
 (A)  Notwithstanding  paragraph  (1),  a  cable  operator  of  a  cable  system  with  12  or  fewer  usable  activated 
 channels  shall  be  required  to  carry  the  signal  of  one  qualified  local  noncommercial  educational  television 
 station;  except  that  a  cable  operator  of  such  a  system  shall  comply  with  subsection  (c)  of  this  section  and 
 may,  in  its  discretion,  carry  the  signals  of  other  qualified  noncommercial  educational  television  stations. 

 (B)  In  the  case  of  a  cable  system  described  in  subparagraph  (A)  which  operates  beyond  the  presence  of 
 any  qualified  local  noncommercial  educational  television  station-  -( 

 i)  the  cable  operator  shall  import  and  carry  on  that  system  the  signal  of  one  qualified  noncommercial 
 educational  television  station; 

 (ii)  the  selection  for  carriage  of  such  a  signal  shall  be  at  the  election  of  the  cable  operator;  and 
 (iii)  in  order  to  satisfy  the  requirements  for  carriage  specified  in  this  subsection,  the  cable  operator  of  the 
 system  shall  not  be  required  to  remove  any  other  programming  service  actually  provided  to  subscribers  on 
 March  29,  1990;  except  that  such  cable  operator  shall  use  the  first  channel  available  to  satisfy  the 
 requirements  of  this  subparagraph. 

 (3)  Systems  with  13  to  36  channels 
 (A)  Subject  to  subsection  (c)  of  this  section,  a  cable  operator  of  a  cable  system  with  13  to  36  usable 
 activated  channels-  -( 

 i)  shall  carry  the  signal  of  at  least  one  qualified  local  noncommercial  educational  television  station  but 
 shall  not  be  required  to  carry  the  signals  of  more  than  three  such  stations,  and 

 (ii)  may,  in  its  discretion,  carry  additional  such  stations. 
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 (B)  In  the  case  of  a  cable  system  described  in  this  paragraph  which  operates  beyond  the  presence  of  any 
 qualified  local  noncommercial  educational  television  station,  the  cable  operator  shall  import  and  carry  on 
 that  system  the  signal  of  at  least  one  qualified  noncommercial  educational  television  station  to  comply 
 with  subparagraph  (A)(  i). 

 (C)  The  cable  operator  of  a  cable  system  described  in  this  paragraph  which  carries  the  signal  of  a 
 qualified  local  noncommercial  educational  station  affiliated  with  a  State  public  television  network  shall 
 not  be  required  to  carry  the  signal  of  any  additional  qualified  local  noncommercial  educational  television 
 stations  affiliated  with  the  same  network  if  the  programming  of  such  additional  stations  is  substantially 
 duplicated  by  the  programming  of  the  qualified  local  noncommercial  educational  television  station 
 receiving  carriage. 

 (D)  A  cable  operator  of  a  system  described  in  this  paragraph  which  increases  the  usable  activated  channel 
 capacity  of  the  system  to  more  than  36  channels  on  or  after  March  29,  1990,  shall,  in  accordance  with  the 
 other  provisions  of  this  section,  carry  the  signal  of  each  qualified  local  noncommercial  educational 
 television  station  requesting  carriage,  subject  to  subsection  (e)  of  this  section. 

 (c)  Continued  carriage  of  existing  stations 
 Notwithstanding  any  other  provision  of  this  section,  all  cable  operators  shall  continue  to  provide  carriage 
 to  all  qualified  local  noncommercial  educational  television  stations  whose  signals  were  carried  on  their 
 systems  as  of  March  29,  1990.  The  requirements  of  this  subsection  may  be  waived  with  respect  to  a 
 particular  cable  operator  and  a  particular  such  station,  upon  the  written  consent  of  the  cable  operator  and 
 the  station. 

 (d)  Placement  of  additional  signals 
 A  cable  operator  required  to  add  the  signals  of  qualified  local  noncommercial  educational  television 
 stations  to  a  cable  system  under  this  section  may  do  so,  subject  to  approval  by  the  franchising  authority 
 pursuant  to  section  531  of  this  title,  by  placing  such  additional  stations  on  public,  educational,  or 
 governmental  channels  not  in  use  for  their  designated  purposes. 

 (e)  Systems  with  more  than  36  channels 
 A  cable  operator  of  a  cable  system  with  a  capacity  of  more  than  36  usable  activated  channels  which  is 
 required  to  carry  the  signals  of  three  qualified  local  noncommercial  educational  television  stations  shall 
 not  be  required  to  carry  the  signals  of  additional  such  stations  the  programming  of  which  substantially 
 duplicates  the  programming  broadcast  by  another  qualified  local  noncommercial  educational  television 
 station  requesting  carriage.  Substantial  duplication  shall  be  defined  by  the  Commission  in  a  manner  that 
 promotes  access  to  distinctive  noncommercial  educational  television  services. 

 (f)  Waiver  of  nonduplication  rights 
 A  qualified  local  noncommercial  educational  television  station  whose  signal  is  carried  by  a  cable  operator 
 shall  not  assert  any  network  nonduplication  rights  it  may  have  pursuant  to  section  76.92  of  title  47,  Code 
 of  Federal  Regulations,  to  require  the  deletion  of  programs  aired  on  other  qualified  local  noncommercial 
 educational  television  stations  whose  signals  are  carried  by  that  cable  operator. 

 (g)  Conditions  of  carriage 
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 (1)  Content  to  be  carried 
 A  cable  operator  shall  retransmit  in  its  entirety  the  primary  video,  accompanying  audio,  and  line  21  closed 
 caption  transmission  of  each  qualified  local  noncommercial  educational  television  station  whose  signal  is 
 carried  on  the  cable  system,  and,  to  the  extent  technically  feasible,  program-  related  material  carried  in  the 
 vertical  blanking  interval,  or  on  subcarriers,  that  may  be  necessary  for  receipt  of  programming  by 
 handicapped  persons  or  for  educational  or  language  purposes.  Retransmission  of  other  material  in  the 
 vertical  blanking  interval  or  on  subcarriers  shall  be  within  the  discretion  of  the  cable  operator. 

 (2)  Bandwidth  and  technical  quality 
 A  cable  operator  shall  provide  each  qualified  local  noncommercial  educational  television  station  whose 
 signal  is  carried  in  accordance  with  this  section  with  bandwidth  and  technical  capacity  equivalent  to  that 
 provided  to  commercial  television  broadcast  stations  carried  on  the  cable  system  and  shall  carry  the  signal 
 of  each  qualified  local  noncommercial  educational  television  station  without  material  degradation. 

 (3)  Changes  in  carriage 
 The  signal  of  a  qualified  local  noncommercial  educational  television  station  shall  not  be  repositioned  by  a 
 cable  operator  unless  the  cable  operator,  at  least  30  days  in  advance  of  such  repositioning,  has  provided 
 written  notice  to  the  station  and  all  subscribers  of  the  cable  system.  For  purposes  of  this  paragraph, 
 repositioning  includes  (A)  assignment  of  a  qualified  local  noncommercial  educational  television  station  to 
 a  cable  system  channel  number  different  from  the  cable  system  channel  number  to  which  the  station  was 
 assigned  as  of  March  29,  1990,  and  (B)  deletion  of  the  station  from  the  cable  system.  The  notification 
 provisions  of  this  paragraph  shall  not  be  used  to  undermine  or  evade  the  channel  positioning  or  carriage 
 requirements  imposed  upon  cable  operators  under  this  section. 

 (4)  Good  quality  signal  required 
 Notwithstanding  the  other  provisions  of  this  section,  a  cable  operator  shall  not  be  required  to  carry  the 
 signal  of  any  qualified  local  noncommercial  educational  television  station  which  does  not  deliver  to  the 
 cable  system's  principal  headend  a  signal  of  good  quality  or  a  baseband  video  signal,  as  may  be  defined 
 by  the  Commission. 

 (5)  Channel  positioning 
 Each  signal  carried  in  fulfillment  of  the  carriage  obligations  of  a  cable  operator  under  this  section  shall  be 
 carried  on  the  cable  system  channel  number  on  which  the  qualified  local  noncommercial  educational 
 television  station  is  broadcast  over  the  air,  or  on  the  channel  on  which  it  was  carried  on  July  19,  1985,  at 
 the  election  of  the  station,  or  on  such  other  channel  number  as  is  mutually  agreed  upon  by  the  station  and 
 the  cable  operator.  Any  dispute  regarding  the  positioning  of  a  qualified  local  noncommercial  educational 
 television  station  shall  be  resolved  by  the  Commission. 

 (h)  Availability  of  signals 
 Signals  carried  in  fulfillment  of  the  carriage  obligations  of  a  cable  operator  under  this  section  shall  be 
 available  to  every  subscriber  as  part  of  the  cable  system's  lowest  priced  service  tier  that  includes  the 
 retransmission  of  local  commercial  television  broadcast  signals. 

 (i)  Payment  for  carriage  prohibited 
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 (1)  In  general 
 A  cable  operator  shall  not  accept  monetary  payment  or  other  valuable  consideration  in  exchange  for 
 carriage  of  the  signal  of  any  qualified  local  noncommercial  educational  television  station  carried  in 
 fulfillment  of  the  requirements  of  this  section,  except  that  such  a  station  may  be  required  to  bear  the  cost 
 associated  with  delivering  a  good  quality  signal  or  a  baseband  video  signal  to  the  principal  headend  of  the 
 cable  system. 

 (2)  Distant  signal  exception 
 Notwithstanding  the  provisions  of  this  section,  a  cable  operator  shall  not  be  required  to  add  the  signal  of  a 
 qualified  local  noncommercial  educational  television  station  not  already  carried  under  the  provision  of 
 subsection  (c)  of  this  section,  where  such  signal  would  be  considered  a  distant  signal  for  copyright 
 purposes  unless  such  station  indemnifies  the  cable  operator  for  any  increased  copyright  costs  resulting 
 from  carriage  of  such  signal. 

 (j)  Remedies 
 (1)  Complaint 
 Whenever  a  qualified  local  noncommercial  educational  television  station  believes  that  a  cable  operator  of 
 a  cable  system  has  failed  to  comply  with  the  signal  carriage  requirements  of  this  section,  the  station  may 
 file  a  complaint  with  the  Commission.  Such  complaint  shall  allege  the  manner  in  which  such  cable 
 operator  has  failed  to  comply  with  such  requirements  and  state  the  basis  for  such  allegations. 

 (2)  Opportunity  to  respond 
 The  Commission  shall  afford  such  cable  operator  an  opportunity  to  present  data,  views,  and  arguments  to 
 establish  that  the  cable  operator  has  complied  with  the  signal  carriage  requirements  of  this  section. 

 (3)  Remedial  actions;  dismissal 
 Within  120  days  after  the  date  a  complaint  is  filed  under  this  subsection,  the  Commission  shall  determine 
 whether  the  cable  operator  has  complied  with  the  requirements  of  this  section.  If  the  Commission 
 determines  that  the  cable  operator  has  failed  to  comply  with  such  requirements,  the  Commission  shall 
 state  with  particularity  the  basis  for  such  findings  and  order  the  cable  operator  to  take  such  remedial 
 action  as  is  necessary  to  meet  such  requirements.  If  the  Commission  determines  that  the  cable  operator 
 has  fully  complied  with  such  requirements,  the  Commission  shall  dismiss  the  complaint. 

 (k)  Identification  of  signals 
 A  cable  operator  shall  identify,  upon  request  by  any  person,  those  signals  carried  in  fulfillment  of  the 
 requirements  of  this  section. 

 (l)  Definitions 
 For  purposes  of  this  section-  -( 
 1)  Qualified  noncommercial  educational  television  station 
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 The  term  "qualified  noncommercial  educational  television  station"  means  any  television  broadcast  station 
 which-  -( 

 A)(  i)  under  the  rules  and  regulations  of  the  Commission  in  effect  on  March  29,  1990,  is  licensed  by  the 
 Commission  as  a  noncommercial  educational  television  broadcast  station  and  which  is  owned  and 
 operated  by  a  public  agency,  nonprofit  foundation,  corporation,  or  association;  and 

 (ii)  has  as  its  licensee  an  entity  which  is  eligible  to  receive  a  community  service  grant,  or  any  successor 
 grant  thereto,  from  the  Corporation  for  Public  Broadcasting,  or  any  successor  organization  thereto,  on  the 
 basis  of  the  formula  set  forth  in  section  396(  k)(  6)(  B)  of  this  title;  or 

 (B)  is  owned  and  operated  by  a  municipality  and  transmits  predominantly  noncommercial  programs  for 
 educational  purposes. 

 Such  term  includes  (I)  the  translator  of  any  noncommercial  educational  television  station  with  five  watts 
 or  higher  power  serving  the  franchise  area,  (II)  a  full-  service  station  or  translator  if  such  station  or 
 translator  is  licensed  to  a  channel  reserved  for  noncommercial  educational  use  pursuant  to  section  73.606 
 of  title  47,  Code  of  Federal  Regulations,  or  any  successor  regulations  thereto,  and  (III)  such  stations  and 
 translators  operating  on  channels  not  so  reserved  as  the  Commission  determines  are  qualified  as 
 noncommercial  educational  stations. 

 (2)  Qualified  local  noncommercial  educational  television  station 
 The  term  "qualified  local  noncommercial  educational  television  station"  means  a  qualified 
 noncommercial  educational  television  station-  -( 

 A)  which  is  licensed  to  a  principal  community  whose  reference  point,  as  defined  in  section  76.  53  of  title 
 47,  Code  of  Federal  Regulations  (as  in  effect  on  March  29,  1990),  or  any  successor  regulations  thereto,  is 
 within  50  miles  of  the  principal  headend  of  the  cable  system;  or 

 (B)  whose  Grade  B  service  contour,  as  defined  in  section  73.683(  a)  of  such  title  (as  in  effect  on  March  29, 
 1990),  or  any  successor  regulations  thereto,  encompasses  the  principal  headend  of  the  cable  system. 
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 Appendix  I 
 Section  122  of  the  Copyright  Act,  as  Amended  Limitations  on  exclusive  rights;  secondary  transmissions  by  satellite  carriers  within  local  markets 

 (a)  Secondary  transmissions  of  television  broadcast  stations  by  satellite  carriers.--  A  secondary 
 transmission  of  a  performance  or  display  of  a  work  embodied  in  a  primary  transmission  of  a  television 
 broadcast  station  into  the  station's  local  market  shall  be  subject  to  statutory  licensing  under  this  section 
 if-  - 

 (1)  the  secondary  transmission  is  made  by  a  satellite  carrier  to  the  public; 
 (2)  with  regard  to  secondary  transmissions,  the  satellite  carrier  is  in  compliance  with  the  rules, 
 regulations,  or  authorizations  of  the  Federal  Communications  Commission  governing  the  carriage  of 
 television  broadcast  station  signals;  and 

 (3)  the  satellite  carrier  makes  a  direct  or  indirect  charge  for  the  secondary  transmission  to-  -( 
 A)  each  subscriber  receiving  the  secondary  transmission;  or 
 (B)  a  distributor  that  has  contracted  with  the  satellite  carrier  for  direct  or  indirect  delivery  of  the 
 secondary  transmission  to  the  public. 

 (b)  Reporting  requirements.-  -( 
 1)  Initial  lists.--  A  satellite  carrier  that  makes  secondary  transmissions  of  a  primary  transmission  made  by 
 a  network  station  under  subsection  (a)  shall,  within  90  days  after  commencing  such  secondary 
 transmissions,  submit  to  the  network  that  owns  or  is  affiliated  with  the  network  station  a  list  identifying 
 (by  name  in  alphabetical  order  and  street  address,  including  county  and  zip  code)  all  subscribers  to  which 
 the  satellite  carrier  makes  secondary  transmissions  of  that  primary  transmission  under  subsection  (a). 

 (2)  Subsequent  lists.--  After  the  list  is  submitted  under  paragraph  (1),  the  satellite  carrier  shall,  on  the  15th 
 of  each  month,  submit  to  the  network  a  list  identifying  (by  name  in  alphabetical  order  and  street  address, 
 including  county  and  zip  code)  any  subscribers  who  have  been  added  or  dropped  as  subscribers  since  the 
 last  submission  under  this  subsection. 

 (3)  Use  of  subscriber  information.--  Subscriber  information  submitted  by  a  satellite  carrier  under  this 
 subsection  may  be  used  only  for  the  purposes  of  monitoring  compliance  by  the  satellite  carrier  with  this 
 section. 

 (4)  Requirements  of  networks.--  The  submission  requirements  of  this  subsection  shall  apply  to  a  satellite 
 carrier  only  if  the  network  to  which  the  submissions  are  to  be  made  places  on  file  with  the  Register  of 
 Copyrights  a  document  identifying  the  name  and  address  of  the  person  to  whom  such  submissions  are  to 
 be  made.  The  Register  of  Copyrights  shall  maintain  for  public  inspection  a  file  of  all  such  documents. 

 (c)  No  royalty  fee  required.--  A  satellite  carrier  whose  secondary  transmissions  are  subject  to  statutory 
 licensing  under  subsection  (a)  shall  have  no  royalty  obligation  for  such  secondary  transmissions. 

 (d)  Noncompliance  with  reporting  and  regulatory  requirements.--  Notwithstanding  subsection  (a),  the 
 willful  or  repeated  secondary  transmission  to  the  public  by  a  satellite  carrier  into  the  local  market  of  a 
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 television  broadcast  station  of  a  primary  transmission  embodying  a  performance  or  display  of  a  work 
 made  by  that  television  broadcast  station  is  actionable  as  an  act  of  infringement  under  section  501,  and  is 
 fully  subject  to  the  remedies  provided  under  sections  502  through  506  and  509,  if  the  satellite  carrier  has 
 not  complied  with  the  reporting  requirements  of  subsection  (b)  or  with  the  rules,  regulations,  and 
 authorizations  of  the  Federal  Communications  Commission  concerning  the  carriage  of  television 
 broadcast  signals. 

 (e)  Willful  alterations.--  Notwithstanding  subsection  (a),  the  secondary  transmission  to  the  public  by  a 
 satellite  carrier  into  the  local  market  of  a  television  broadcast  station  of  a  performance  or  display  of  a 
 work  embodied  in  a  primary  transmission  made  by  that  television  broadcast  station  is  actionable  as  an  act 
 of  infringement  under  section  501,  and  is  fully  subject  to  the  remedies  provided  by  sections  502  through 
 506  and  sections  509  and  510,  if  the  content  of  the  particular  program  in  which  the  performance  or 
 display  is  embodied,  or  any  commercial  advertising  or  station  announcement  transmitted  by  the  primary 
 transmitter  during,  or  immediately  before  or  after,  the  transmission  of  such  program,  is  in  any  way 
 willfully  altered  by  the  satellite  carrier  through  changes,  deletions,  or  additions,  or  is  combined  with 
 programming  from  any  other  broadcast  signal. 

 (f)  Violation  of  territorial  restrictions  on  statutory  license  for  television  broadcast  stations.-  - 
 (1)  Individual  violations.--  The  willful  or  repeated  secondary  transmission  to  the  public  by  a  satellite 
 carrier  of  a  primary  transmission  embodying  a  performance  or  display  of  a  work  made  by  a  television 
 broadcast  station  to  a  subscriber  who  does  not  reside  in  that  station's  local  market,  and  is  not  subject  to 
 statutory  licensing  under  section  119  or  a  private  licensing  agreement,  is  actionable  as  an  act  of 
 infringement  under  section  501  and  is  fully  subject  to  the  remedies  provided  by  sections  502  through  506 
 and  509,  except  that-  -( 

 A)  no  damages  shall  be  awarded  for  such  act  of  infringement  if  the  satellite  carrier  took  corrective  action 
 by  promptly  withdrawing  service  from  the  ineligible  subscriber;  and 

 (B)  any  statutory  damages  shall  not  exceed  $5  for  such  subscriber  for  each  month  during  which  the 
 violation  occurred. 

 (2)  Pattern  of  violations.--  If  a  satellite  carrier  engages  in  a  willful  or  repeated  pattern  or  practice  of 
 secondarily  transmitting  to  the  public  a  primary  transmission  embodying  a  performance  or  display  of  a 
 work  made  by  a  television  broadcast  station  to  subscribers  who  do  not  reside  in  that  station's  local  market, 
 and  are  not  subject  to  statutory  licensing  under  section  119  or  a  private  licensing  agreement,  then  in 
 addition  to  the  remedies  under  paragraph  (1)-  -( 

 A)  if  the  pattern  or  practice  has  been  carried  out  on  a  substantially  nationwide  basis,  the  court-  -( 
 i)  shall  order  a  permanent  injunction  barring  the  secondary  transmission  by  the  satellite  carrier  of  the 
 primary  transmissions  of  that  television  broadcast  station  (and  if  such  television  broadcast  station  is  a 
 network  station,  all  other  television  broadcast  stations  affiliated  with  such  network);  and 

 (ii)  may  order  statutory  damages  not  exceeding  $250,000  for  each  6-  month  period  during  which  the 
 pattern  or  practice  was  carried  out;  and 

 (B)  if  the  pattern  or  practice  has  been  carried  out  on  a  local  or  regional  basis  with  respect  to  more  than 
 one  television  broadcast  station,  the  court-- 
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 (i)  shall  order  a  permanent  injunction  barring  the  secondary  transmission  in  that  locality  or  region  by  the 
 satellite  carrier  of  the  primary  transmissions  of  any  television  broadcast  station;  and 

 (ii)  may  order  statutory  damages  not  exceeding  $250,000  for  each  6-  month  period  during  which  the 
 pattern  or  practice  was  carried  out. 

 (g)  Burden  of  proof.--  In  any  action  brought  under  subsection  (f),  the  satellite  carrier  shall  have  the  burden 
 of  proving  that  its  secondary  transmission  of  a  primary  transmission  by  a  television  broadcast  station  is 
 made  only  to  subscribers  located  within  that  station's  local  market  or  subscribers  being  served  in 
 compliance  with  section  119  or  a  private  licensing  agreement. 

 (h)  Geographic  limitations  on  secondary  transmissions.--  The  statutory  license  created  by  this  section  shall 
 apply  to  secondary  transmissions  to  locations  in  the  United  States. 

 (i)  Exclusivity  with  respect  to  secondary  transmissions  of  broadcast  stations  by  satellite  to  members  of  the 
 public.--  No  provision  of  section  111  or  any  other  law  (other  than  this  section  and  section  119)  shall  be 
 construed  to  contain  any  authorization,  exemption,  or  license  through  which  secondary  transmissions  by 
 satellite  carriers  of  programming  contained  in  a  primary  transmission  made  by  a  television  broadcast 
 station  may  be  made  without  obtaining  the  consent  of  the  copyright  owner. 

 (j)  Definitions.--  In  this  section-  -( 
 1)  Distributor.--  The  term  "distributor"  means  an  entity  which  contracts  to  distribute  secondary 
 transmissions  from  a  satellite  carrier  and,  either  as  a  single  channel  or  in  a  package  with  other 
 programming,  provides  the  secondary  transmission  either  directly  to  individual  subscribers  or  indirectly 
 through  other  program  distribution  entities. 

 (2)  Local  market.-  -( 
 A)  In  general.--  The  term  "local  market",  in  the  case  of  both  commercial  and  noncommercial  television 
 broadcast  stations,  means  the  designated  market  area  in  which  a  station  is  located,  and-  -( 

 i)  in  the  case  of  a  commercial  television  broadcast  station,  all  commercial  television  broadcast  stations 
 licensed  to  a  community  within  the  same  designated  market  area  are  within  the  same  local  market;  and 

 (ii)  in  the  case  of  a  noncommercial  educational  television  broadcast  station,  the  market  includes  any 
 station  that  is  licensed  to  a  community  within  the  same  designated  market  area  as  the  noncommercial 
 educational  television  broadcast  station. 

 (B)  County  of  license.--  In  addition  to  the  area  described  in  subparagraph  (A),  a  station's  local  market 
 includes  the  county  in  which  the  station's  community  of  license  is  located. 

 (C)  Designated  market  area.--  For  purposes  of  subparagraph  (A),  the  term  "designated  market  area" 
 means  a  designated  market  area,  as  determined  by  Nielsen  Media  Research  and  published  in  the 
 1999-  2000  Nielsen  Station  Index  Directory  and  Nielsen  Station  Index  United  States  Television 
 Household  Estimates  or  any  successor  publication. 

 (3)  Network  station;  satellite  carrier;  secondary  transmission.--  The  terms  "network  station",  "satellite 
 carrier",  and  "secondary  transmission"  have  the  meanings  given  such  terms  under  section  119(  d). 
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 (4)  Subscriber.--  The  term  "subscriber"  means  a  person  who  receives  a  secondary  transmission  service 
 from  a  satellite  carrier  and  pays  a  fee  for  the  service,  directly  or  indirectly,  to  the  satellite  carrier  or  to  a 
 distributor. 

 (5)  Television  broadcast  station.--  The  term  "television  broadcast  station"-  -( 
 A)  means  an  over-  the-  air,  commercial  or  noncommercial  television  broadcast  station  licensed  by  the 
 Federal  Communications  Commission  under  subpart  E  of  part  73  of  title  47,  Code  of  Federal 
 Regulations,  except  that  such  term  does  not  include  a  low-  power  or  translator  television  station;  and 

 (B)  includes  a  television  broadcast  station  licensed  by  an  appropriate  governmental  authority  of  Canada  or 
 Mexico  if  the  station  broadcasts  primarily  in  the  English  language  and  is  a  network  station  as  defined  in 
 section  119(  d)(  2)(  A). 
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 Appendix  J 
 Nielsen  Media  Research  Designated  Market  Area  Ranking  for  2000-  2001 

 1  New  York 
 2  Los  Angeles 
 3  Chicago 
 4  Philadelphia 
 5  San  Francisco-  Oakland-  San  Jose 
 6  Boston  (Manchester) 
 7  Dallas-  Ft.  Worth 
 8  Washington,  DC  (Hagerstown) 
 9  Detroit 
 10  Atlanta 
 11  Houston 
 12  Seattle-  Tacoma 
 13  Minneapolis-  St.  Paul 
 14  Tampa-  St.  Petersburg  (Sarasota) 
 15  Cleveland 
 16  Miami-  Ft.  Lauderdale 
 17  Phoenix 
 18  Denver 
 19  Sacramento-  Stockton-  Modesto 
 20  Pittsburgh 
 21  Orlando-  Daytona  Beach-  Melbourne 
 22  St.  Louis 
 23  Portland,  OR 
 24  Baltimore 
 25  San  Diego 
 26  Indianapolis 
 27  Hartford-  New  Haven 
 28  Charlotte 
 29  Raleigh-  Durham  (Fayettevlle) 
 30  Kansas  City 
 31  Nashville 
 32  Cincinnati 
 33  Milwaukee 
 34  Columbus,  OH 
 35  Greenville-  Spartanburg 
 36  Salt  Lake  City 
 37  San  Antonio 
 38  Grand  Rapids-  Kalamazoo 
 39  Birmingham  (Anniston,  Tuscaloosa) 
 40  Memphis 
 41  Norfolk-  Portsmouth-  Newport  News 
 42  New  Orleans 
 43  West  Palm  Beach-  Ft.  Pierce 
 44  Buffalo 
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 45  Oklahoma  City 
 46  Harrisburg-  Lancaster 
 47  Greensboro-  High  Point 
 48  Louisville 
 49  Providence-  New  Bedford 
 50  Albuquerque-  Santa  Fe 
 51  Las  Vegas 
 52  Wilkes  Barre-  Scranton 
 53  Jacksonville,  Brunswick 
 54  Fresno-  Visalia 
 55  Dayton 
 56  Albany-  Schenectady-  Troy 
 57  Little  Rock-  Pine  Bluff 
 58  Austin 
 59  Tulsa 
 60  Richmond-  Petersburg 
 61  Charleston-  Huntington 
 62  Mobile-  Pensacola 
 63  Knoxville 
 64  Flint-  Saginaw-  Bay  City 
 65  Wichita-  Hutchinson  Plus 
 66  Lexington 
 67  Toledo 
 68  Roanoke-  Lynchburg 
 69  Green  Bay-  Appleton 
 70  Des  Moines-  Ames 
 71  Tucson  (Sierra  Vista) 
 72  Honolulu 
 73  Paducah 
 74  Rochester,  NY 
 75  Omaha 
 76  Shreveport 
 77  Spokane 
 78  Springfield,  MO 
 79  Portland-  Auburn 
 80  Syracuse 
 81  Ft.  Myers-  Naples 
 82  Huntsville-  Decatur  (Florence) 
 83  Champaign  &  Springfield-  Decatur 
 84  Madison 
 85  Columbia,  SC 
 86  Chattanooga 
 87  South  Bend-  Elkhart 
 88  Jackson,  MS 
 89  Cedar  Rapids 
 90  Davenport 
 91  Burlington-  Plattsburgh 
 92  Colorado  Springs-  Pueblo 
 93  Tri-  Cities,  TN-  VA 
 94  Waco-  Temple-  Bryan 
 95  Johnstown-  Altoona 
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 96  Baton  Rouge 
 97  Evansville 
 98  El  Paso 
 99  Youngstown 
 100  Savannah 
 101  Lincoln  &  Hastings-  Kearny  Plus 
 102  Harlingen 
 103  Charleston,  SC 
 104  Ft.  Wayne 
 105  Springfield-  Holyoke 
 106  Greenville-  New  Bern 
 107  Lansing 
 108  Tyler-  Longview 
 109  Reno 
 110  Tallahassee-  Thomasville 
 111  Sioux  Falls  (Mitchell) 
 112  Peoria-  Bloomington 
 113  Augusta 
 114  Florence-  Myrtle  Beach 
 115  Ft.  Smith 
 116  Montgomery  (Selma) 
 117  Santa  Barbara 
 118  Monterey-  Salinas 
 119  Traverse  City-  Cadillac 
 120  Fargo-  Valley  City 
 121  Macon 
 122  Eugene 
 123  Boise 
 124  Lafayette,  LA 
 125  Yakima-  Pasco 
 126  La  Crosse-  Eau  Claire 
 127  Amarillo 
 128  Columbus,  GA 
 129  Corpus  Christi 
 130  Bakersfield 
 131  Columbus-  Tupelo-  West  Point 
 132  Duluth-  Superior 
 133  Chico-  Redding 
 134  Monroe-  El  Dorado 
 135  Rockford 
 136  Wausau-  Rhinelander 
 137  Beaumont-  Port  Arthur 
 138  Topeka 
 139  Terre  Haute 
 140  Wheeling-  Steubenville 
 141  Medford-  Klamath  Falls 
 142  Erie 
 143  Columbia-  Jefferson  City 
 144  Sioux  City 
 145  Joplin-  Pittsburg 
 146  Wichita  Falls  &  Lawton 
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 147  Lubbock 
 148  Wilmington 
 149  Bluefield-  Beckley-  Oak  Hill 
 150  Albany,  GA 
 151  Odessa-  Midland 
 152  Minot-  Bismarck-  Dickinson 
 153  Rochester-  Mason  City-  Austin 
 154  Anchorage 
 155  Bangor 
 156  Binghamton 
 157  Biloxi-  Gulfport 
 158  Panama  City 
 159  Palm  Springs 
 160  Abilene-  Sweetwater 
 161  Sherman,  TX-  Ada,  OK 
 162  Salisbury 
 163  Quincy-  Hannibal-  Keokuk 
 164  Idaho  Falls-  Pocatello 
 165  Clarksburg-  Weston 
 166  Gainesville 
 167  Hattiesburg-  Laurel 
 168  Utica 
 169  Billings 
 170  Missoula 
 171  Elmira 
 172  Dothan 
 173  Lake  Charles 
 174  Yuma-  El  Centro 
 175  Rapid  City 
 176  Watertown 
 177  Marquette 
 178  Alexandria,  LA 
 179  Harrisonburg 
 180  Jonesboro 
 181  Bowling  Green 
 182  Greenwood-  Greenville 
 183  Meridian 
 184  Jackson,  TN 
 185  Parkersburg 
 186  Grand  Junction-  Montrose 
 187  Great  Falls 
 188  Twin  Falls 
 189  Laredo 
 190  Butte-  Bozeman,  MT 
 191  Eureka 
 192  St.  Joseph 
 193  Charlottesville 
 194  Lafayette,  IN 
 195  Mankato 
 196  San  Angelo 
 197  Casper-  Riverton 
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 198  Cheyenne,  WY-  Scottsbluff, 
 199  Ottumwa-  Kirksville 
 200  Bend,  OR 
 201  Lima 
 202  Zanesville 
 203  Fairbanks 
 204  Victoria 
 205  Presque  Isle 
 206  Juneau,  AK 
 207  Helena 
 208  Alpena 
 209  North  Platte 
 210  Glendive 
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