Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 17071 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 10–71; FCC 11–31] 

Amendment of the Commission’s 

Rules Related to Retransmission 

Consent 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission (FCC) 

seeks comment on a series of proposals 

to streamline and clarify the 

Commission’s rules concerning or 

affecting retransmission consent 

negotiations. The Commission believes 

that these rule changes could allow the 

market-based negotiations contemplated 

by the statute to proceed more 

smoothly, provide greater certainty to 

the negotiating parties, and help protect 

consumers. 

DATES: Submit comments on or before 

May 27, 2011, and submit reply 

comments on or before June 27, 2011. 

See SUPPLEMENTARY INFORMATION section 

for additional comment dates. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 10–71, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although the Commission continues to 

experience delays in receiving U.S. 

Postal Service mail). All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• People With Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

In addition to filing comments with 

the Secretary, a copy of any comments 

on the Paperwork Reduction Act 

proposed information collection 

requirements contained herein should 

be submitted to the Federal 

Communications Commission via e-mail 

to PRA@fcc.gov and to Nicholas A. 

Fraser, Office of Management and 

Budget, via e-mail to 

nfraser@omb.eop.gov or via fax at 202– 

395–5167. For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Diana Sokolow, 

Diana.Sokolow@fcc.gov, of the Media 

Bureau, Policy Division, 202–418–2120. 

For additional information concerning 

the Paperwork Reduction Act 

information collection requirements 

contained in this document, send an 

e-mail to PRA@fcc.gov or contact Cathy 

Williams at 202–418–2918. To view or 

obtain a copy of this information 

collection request (ICR) submitted to 

OMB: (1) Go to this OMB/GSA Web 

page: http://www.reginfo.gov/public/do/ 

PRAMain, (2) look for the section of the 

Web page called ‘‘Currently Under 

Review,’’ (3) click on the downwardpointing arrow in the ‘‘Select Agency’’ 

box below the ‘‘Currently Under 

Review’’ heading, (4) select ‘‘Federal 

Communications Commission’’ from the 

list of agencies presented in the ‘‘Select 

Agency’’ box, (5) click the ‘‘Submit’’ 

button to the right of the ‘‘Select 

Agency’’ box, and (6) when the list of 

FCC ICRs currently under review 

appears, look for the OMB control 

number of the ICR as show in the 

Supplementary Information section 

below (3060–0649) and then click on 

the ICR Reference Number. A copy of 

the FCC submission to OMB will be 

displayed. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking (NPRM), MB 

Docket No. 10–71, FCC No. 11–31, 

adopted and released March 3, 2011. 

The full text of the NPRM is available 

for public inspection and copying 

during regular business hours in the 

FCC Reference Information Center, 

Portals II, 445 12th Street, SW., Room 

CY–A257, Washington, DC 20554. It 

also may be purchased from the 

Commission’s duplicating contractor at 

Portals II, 445 12th Street, SW., Room 

CY–B402, Washington, DC 20554; the 

contractor’s Web site, http:// 

www.bcpiweb.com; or by calling 800– 

378–3160, facsimile 202–488–5563, or 

e-mail FCC@BCPIWEB.com. Copies of 

the NPRM also may be obtained via the 

Commission’s Electronic Comment 

Filing System (ECFS) by entering the 

docket number, MB Docket No. 10–71. 

Additionally, the complete item is 

available on the Federal 

Communications Commission’s Web 

site at http://www.fcc.gov. 

This document contains proposed 

information collection requirements. 

The Commission, as part of its 

continuing effort to reduce paperwork 

burdens, invites the general public and 

the Office of Management and Budget 

(OMB) to comment on the information 

collection requirements contained in 

this document, as required by the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. Written comments 

on the Paperwork Reduction Act 

proposed information collection 

requirements must be submitted by the 

public, Office of Management and 

Budget (OMB), and other interested 

parties on or before May 27, 2011. 

Comments should address: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology; and (e) ways to 

further reduce the information 

collection burden on small business 

concerns with fewer than 25 employees. 

In addition, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we seek specific comment on 

how we might further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees. 

OMB Control Number: 3060–0649. 

Title: Sections 76.1601, Deletion or 

Repositioning of Broadcast Signals, 

76.1617 Initial Must-Carry Notice, 

76.1607 and 76.1708 Principal Headend. 

Form Number: Not applicable. 

Type of Review: Revision of a 

currently approved collection. 

Respondents: Businesses or other forprofit entities; Not-for-profit 

institutions. 

Number of Respondents and 

Responses: 3,380 respondents and 4,200 

responses. 

Estimated Time per Response: 0.5 to 

2 hours. 

Frequency of Response: On occasion 

reporting requirement; Third party 

disclosure requirement; Recordkeeping 

requirement. 

Total Annual Burden: 2,400 hours. 

Total Annual Costs: None. 

Obligation to Respond: Required to 

obtain or retain benefits. The statutory 

authority for this information collection 

is contained in Section 4(i) of the 

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17072 Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 

Communications Act of 1934, as 

amended. 

Nature and Extent of Confidentiality: 

No need for confidentiality required 

with this collection of information. 

Privacy Impact Assessment: No 

impact(s). 

Needs and Uses: 47 CFR 76.1601 

requires that effective April 2, 1993, a 

cable operator shall provide written 

notice to any broadcast television 

station at least 30 days prior to either 

deleting from carriage or repositioning 

that station. Such notification shall also 

be provided to subscribers of the cable 

system. 

47 CFR 76.1607 states that a cable 

operator shall provide written notice by 

certified mail to all stations carried on 

its system pursuant to the must-carry 

rules at least 60 days prior to any 

change in the designation of its 

principal headend. 

47 CFR 76.1617(a) states within 60 

days of activation of a cable system, a 

cable operator must notify all qualified 

NCE stations of its designated principal 

headend by certified mail. 

47 CFR 76.1617(b) states within 60 

days of activation of a cable system, a 

cable operator must notify all local 

commercial and NCE stations that may 

not be entitled to carriage because they 

either: 

(1) Fail to meet the standards for 

delivery of a good quality signal to the 

cable system’s principal headend, or 

(2) May cause an increased copyright 

liability to the cable system. 

47 CFR 76.1617(c) states within 60 

days of activation of a cable system, a 

cable operator must send by certified 

mail a copy of a list of all broadcast 

television stations carried by its system 

and their channel positions to all local 

commercial and noncommercial 

television stations, including those not 

designated as must-carry stations and 

those not carried on the system. 

47 CFR 76.1708(a) states that the 

operator of every cable television system 

shall maintain for public inspection the 

designation and location of its principal 

headend. If an operator changes the 

designation of its principal headend, 

that new designation must be included 

in its public file. 

The NPRM proposes to redesignate 47 

CFR 76.1601 as 47 CFR 76.1601(a), and 

to add a new 47 CFR 76.1601(b). If 

adopted, new 47 CFR 76.1601(b) would 

require broadcast television stations and 

multichannel video programming 

distributors (MVPDs) to notify affected 

subscribers of the potential deletion of 

a broadcaster’s signal a minimum of 30 

days in advance of a retransmission 

consent agreement’s expiration, unless a 

renewal or extension agreement has 

been executed, and regardless of 

whether the signal is ultimately deleted. 

All other remaining existing information 

collection requirements would stay as 

they are, and the various burden 

estimates would be revised to reflect 

new 47 CFR 76.1601(b). 

Synopsis of the Notice of Proposed 

Rulemaking 

I. Introduction 

1. In this Notice of Proposed 

Rulemaking (NPRM), we seek comment 

on a series of proposals to streamline 

and clarify our rules concerning or 

affecting retransmission consent 

negotiations. Our primary objective is to 

assess whether and how the 

Commission rules in this arena are 

ensuring that the market-based 

mechanisms Congress designed to 

govern retransmission consent 

negotiations are working effectively and, 

to the extent possible, minimize video 

programming service disruptions to 

consumers. 

2. The Communications Act of 1934, 

as amended (the Act), prohibits cable 

systems and other multichannel video 

programming distributors (MVPDs) from 

retransmitting a broadcast station’s 

signal without the station’s consent. 47 

U.S.C. 325(b)(1)(A). This consent is 

what is known as ‘‘retransmission 

consent.’’ The law requires broadcasters 

and MVPDs to negotiate for 

retransmission consent in good faith. 

See 47 U.S.C. 325(b)(3)(C)(ii) and (iii); 

47 CFR 76.65. Since Congress enacted 

the retransmission consent regime in 

1992, there have been significant 

changes in the video programming 

marketplace. One such change is the 

form of compensation sought by 

broadcasters. Historically, cable 

operators typically compensated 

broadcasters for consent to retransmit 

the broadcasters’ signals through inkind compensation, which might 

include, for example, carriage of 

additional channels of the broadcaster’s 

programming on the cable system or 

advertising time. See, e.g., General 

Motors Corp. and Hughes Electronics 

Corp., Transferors, and The News Corp. 

Ltd., Transferee, Memorandum Opinion 

and Order, 19 FCC Rcd 473, 503, para. 

56 (2004). Today, however, broadcasters 

are increasingly seeking and receiving 

monetary compensation from MVPDs in 

exchange for consent to the 

retransmission of their signals. Another 

important change concerns the rise of 

competitive video programming 

providers. In 1992, the only option for 

many local broadcast television stations 

seeking to reach MVPD customers in a 

particular Designated Market Area 

(DMA) was a single local cable provider. 

Today, in contrast, many consumers 

have additional options for receiving 

programming, including two national 

direct broadcast satellite (DBS) 

providers, telephone providers that offer 

video programming in some areas, and, 

to a degree, the Internet. One result of 

such changes in the marketplace is that 

disputes over retransmission consent 

have become more contentious and 

more public, and we recently have seen 

a rise in negotiation impasses that have 

affected millions of consumers. 

3. Accordingly, we have concluded 

that it is appropriate for us to reexamine 

our rules relating to retransmission 

consent. We consider below revisions to 

the retransmission consent and related 

rules that we believe could allow the 

market-based negotiations contemplated 

by the statute to proceed more 

smoothly, provide greater certainty to 

the negotiating parties, and help protect 

consumers. Accordingly, as discussed 

below, we seek comment on rule 

changes that would: 

• Provide more guidance under the 

good faith negotiation requirements to 

the negotiating parties by: 

Æ Specifying additional examples of 

per se violations in § 76.65(b)(1) of the 

Commission’s rules; and 

Æ Further clarifying the totality of the 

circumstances standard of § 76.65(b)(2) 

of the Commission’s rules; 

• Improve notice to consumers in 

advance of possible service disruptions 

by extending the coverage of our notice 

rules to non-cable MVPDs and 

broadcasters as well as cable operators, 

and specifying that, if a renewal or 

extension agreement has not been 

executed 30 days in advance of a 

retransmission consent agreement’s 

expiration, notice of potential deletion 

of a broadcaster’s signal must be given 

to consumers regardless of whether the 

signal is ultimately deleted; 

• Extend to non-cable MVPDs the 

prohibition now applicable to cable 

operators on deleting or repositioning a 

local commercial television station 

during ratings ‘‘sweeps’’ periods; and 

• Allow MVPDs to negotiate for 

alternative access to network 

programming by eliminating the 

Commission’s network non-duplication 

and syndicated exclusivity rules. 

We also seek comment on any other 

revisions or additions to our rules 

within the scope of our authority that 

would improve the retransmission 

consent negotiation process and help 

protect consumers from programming 

disruptions. The Commission does not 

have the power to force broadcasters to 

consent to MVPD carriage of their 

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Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 17073 

signals nor can the Commission order 

binding arbitration. See infra para. 18. 

See also Letter from Chairman Julius 

Genachowski, FCC, to The Honorable 

John F. Kerry, Chairman, Subcommittee 

on Communications, Technology, and 

the Internet, Committee on Commerce, 

Science, and Transportation, U.S. 

Senate, at 1 (Oct. 29, 2010) (‘‘[C]urrent 

law does not give the agency the tools 

necessary to prevent service 

disruptions.’’). 

II. Background 

A. Retransmission Consent 

4. The current regulatory scheme for 

carriage of broadcast television stations 

was established by the Cable Television 

Consumer Protection and Competition 

Act of 1992 (1992 Cable Act), Public 

Law 102–385, 106 Stat. 1460 (1992). In 

1992, unlike today, local broadcast 

television stations seeking to reach 

viewers in a particular DMA through an 

MVPD service often had only one 

option—namely, a single local cable 

provider. While broadcasters benefited 

from cable carriage, Congress recognized 

that broadcast programming ‘‘remains 

the most popular programming on cable 

systems, and a substantial portion of the 

benefits for which consumers pay cable 

systems is derived from carriage of the 

signals of network affiliates, 

independent television stations, and 

public television stations.’’ See 1992 

Cable Act sec. 2(a)(19). In adopting the 

retransmission consent provisions of the 

1992 Cable Act, Congress found that 

cable operators obtained great benefit 

from the local broadcast signals that 

they were able to carry without 

broadcaster consent or copyright 

liability, and that this benefit resulted in 

an effective subsidy to cable operators. 

See id. Accordingly, Congress adopted 

its retransmission consent provisions to 

allow broadcasters to negotiate to 

receive compensation for the value of 

their signals. Through the 1992 Cable 

Act, Congress modified the 

Communications Act, inter alia, to 

provide television stations with certain 

carriage rights on cable television 

systems in their local market. See 47 

U.S.C. 325, 534. 

5. Pursuant to the statutory provisions 

enacted in 1992, television broadcasters 

elect every three years whether to 

proceed under the retransmission 

consent requirements of section 325 of 

the Act, or the mandatory carriage (must 

carry) requirements of sections 338 and 

614 of the Act. See 47 U.S.C. 325(b), 

338, 534. Section 338 governs 

mandatory carriage on satellite, and 

Section 614 (codified at 47 U.S.C. 534) 

governs mandatory carriage of 

commercial television stations on cable. 

There are important differences between 

the retransmission consent and must 

carry regimes. Specifically, a 

broadcaster electing must carry status is 

guaranteed carriage on cable systems in 

its market, and the cable operator is 

generally prohibited from accepting or 

requesting compensation for carriage, 

whereas a broadcaster who elects 

carriage under the retransmission 

consent rules may insist on 

compensation. In order to reach MVPD 

customers, most broadcasters elected 

carriage under the must carry rules in 

the early years following enactment of 

the new regime. By 2009, only 37 

percent of stations relied on must carry. 

See Omnibus Broadband Initiative, 

Spectrum Analysis: Options for 

Broadcast Spectrum, OBI Technical 

Paper No. 3, at 8 (June 2010); see also 

id. at Exhibit C (showing decrease in 

must carry elections and increase in 

retransmission consent elections since 

2003); id. at n. 23. 

6. Since 2001, broadcasters have also 

had mandatory carriage rights on DBS 

systems. The Satellite Home Viewer 

Improvement Act of 1999 (SHVIA) gives 

satellite carriers a statutory copyright 

license to retransmit local broadcast 

stations to subscribers in the station’s 

market, also known as ‘‘local-into-local’’ 

service. SHVIA was enacted as Title I of 

the Intellectual Property and 

Communications Omnibus Reform Act 

of 1999 (IPACORA) (relating to 

copyright licensing and carriage of 

broadcast signals by satellite carriers, 

codified in scattered sections of 17 and 

47 U.S.C.), Public Law 106–113, 113 

Stat. 1501, Appendix I (1999). 

Generally, when a satellite carrier 

provides local-into-local service 

pursuant to the statutory copyright 

license, the satellite carrier is obligated 

to carry any qualified local television 

station in the particular DMA that has 

made a timely election for mandatory 

carriage, unless the station’s 

programming is duplicative of the 

programming of another station carried 

by the carrier in the DMA or the station 

does not provide a good quality signal 

to the carrier’s local receive facility. See 

47 U.S.C. 338. 

7. As an alternative to seeking 

mandatory carriage, a broadcaster may 

elect carriage under the retransmission 

consent rules, which allow for 

negotiations with cable operators and 

other MVPDs for carriage. A broadcaster 

electing retransmission consent may 

accept or request compensation for 

carriage in retransmission consent 

negotiations. The legislative history of 

section 325 indicates that Congress 

intended ‘‘to establish a marketplace for 

the disposition of the rights to 

retransmit broadcast signals; it is not the 

Committee’s intention in this bill to 

dictate the outcome of the ensuing 

marketplace negotiations.’’ S. Rep. No. 

92, 102nd Cong., 1st Sess. 1991, 

reprinted in 1992 U.S.C.C.A.N. 1133, 

1169. Under section 325(b)(1)(A) of the 

Act, if a broadcaster electing 

retransmission consent and an MVPD 

are unable to reach an agreement, or do 

not agree to the extension of an existing 

agreement prior to its expiration, then 

the MVPD may not retransmit the 

broadcasting station’s signal because the 

signal cannot be carried without the 

broadcast station’s consent. Section 

325(b)(1)(A) of the Act states, ‘‘No cable 

system or other multichannel video 

programming distributor shall 

retransmit the signal of a broadcasting 

station, or any part thereof, except—(A) 

with the express authority of the 

originating station. * * *’’ 47 U.S.C. 

325(b)(1). Pursuant to section 325(b)(2), 

there are five circumstances in which 

the retransmission restrictions do not 

apply. 

B. Good Faith Negotiations 

8. Initially, section 325 of the Act did 

not include any standards governing 

retransmission consent negotiations 

between broadcasters and MVPDs. That 

changed in 1999 when Congress 

adopted SHVIA, which contained 

provisions concerning the satellite 

industry, as well as television broadcast 

stations and terrestrial MVPDs. 

Specifically, Congress required 

broadcast television stations engaging in 

retransmission consent negotiations 

with any MVPD to negotiate in good 

faith. See 47 U.S.C. 325(b)(3)(C). SHVIA 

also prohibited broadcasters from 

entering into exclusive retransmission 

consent agreements. See 47 U.S.C. 

325(b)(3)(C). Congress required the 

Commission to revise its regulations so 

that they: 

* * * prohibit a television broadcast 

station that provides retransmission consent 

from * * * failing to negotiate in good faith, 

and it shall not be a failure to negotiate in 

good faith if the television broadcast station 

enters into retransmission consent 

agreements containing different terms and 

conditions, including price terms, with 

different multichannel video programming 

distributors if such different terms and 

conditions are based on competitive 

marketplace considerations. 

47 U.S.C. 325(b)(3)(C)(ii). The Joint 

Explanatory Statement of the Committee 

of Conference (Conference Report) did 

not explain or clarify the statutory 

language, instead merely stating that the 

regulations would: 

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17074 Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 

* * * prohibit a television broadcast 

station from * * * refusing to negotiate in 

good faith regarding retransmission consent 

agreements. A television station may 

generally offer different retransmission 

consent terms or conditions, including price 

terms, to different distributors. The 

[Commission] may determine that such 

different terms represent a failure to negotiate 

in good faith only if they are not based on 

competitive marketplace considerations. 

Conference Report at 13. This good faith 

negotiation obligation was later made 

reciprocal to MVPDs as well as 

broadcasters by the Satellite Home 

Viewer Extension and Reauthorization 

Act of 2004 (SHVERA), Public Law 

108–447, 118 Stat. 2809 (2004). 

9. In implementing the good faith 

negotiation requirement, the 

Commission concluded ‘‘that the statute 

does not intend to subject 

retransmission consent negotiation to 

detailed substantive oversight by the 

Commission. Instead, the order 

concludes that Congress intended that 

the Commission follow established 

precedent, particularly in the field of 

labor law, in implementing the good 

faith retransmission consent negotiation 

requirement.’’ Implementation of the 

Satellite Home Viewer Improvement Act 

of 1999; Retransmission Consent Issues: 

Good Faith Negotiation and Exclusivity, 

65 FR 15559, March 23, 2000 (Good 

Faith Order). Given the dearth of 

guidance in section 325 and its 

legislative history, the Commission 

drew guidance from analogous statutory 

standards, such as the good faith 

bargaining requirement of section 8(d) 

of the Taft-Hartley Act. Id. The 

Commission also looked to its own rules 

implementing the good faith negotiation 

requirement of section 251 of the Act, 

which largely relies on labor law 

precedent. Id. 

10. The Commission adopted a twopart framework to determine whether 

broadcasters and MVPDs negotiate 

retransmission consent in good faith. 

First, the Commission established a list 

of seven objective good faith negotiation 

standards, the violation of which is 

considered a per se breach of the good 

faith negotiation obligation. See 47 CFR 

76.65(b)(1). Second, even if the seven 

specific standards are met, the 

Commission may consider whether, 

based on the totality of the 

circumstances, a party failed to 

negotiate retransmission consent in 

good faith. See 47 CFR 76.65(b)(2). The 

Commission has stated that, where ‘‘a 

broadcaster is determined to have failed 

to negotiate in good faith, the 

Commission will instruct the parties to 

renegotiate the agreement in accordance 

with the Commission’s rules and section 

325(b)(3)(C).’’ Good Faith Order. While 

the Commission did not find any 

statutory authority to impose damages, 

it noted ‘‘that, as with all violations of 

the Communications Act or the 

Commission’s rules, the Commission 

has the authority to impose forfeitures 

for violations of section 325(b)(3)(C).’’ 

Id. In discussing remedies for a 

violation of the good faith negotiation 

requirement, the Commission did not 

reference continued carriage as a 

potential remedy, and stated that it 

could not adopt regulations permitting 

retransmission during good faith 

negotiation or while a good faith 

complaint is pending before the 

Commission, absent broadcaster consent 

to such retransmission. Id. 

11. The Commission concluded that 

Congress did not intend for it to sit in 

judgment of the terms of every executed 

retransmission consent agreement. Id. 

Rather, the Commission said, ‘‘[w]e 

believe that, by imposing the good faith 

obligation, Congress intended that the 

Commission develop and enforce a 

process that ensures that broadcasters 

and MVPDs meet to negotiate 

retransmission consent and that such 

negotiations are conducted in an 

atmosphere of honesty, purpose and 

clarity of process.’’ Id. In adopting the 

good faith negotiation rules, the 

Commission pointed to commenters’ 

arguments that intrusive Commission 

action was unnecessary because of the 

thousands of retransmission consent 

agreements that had been concluded 

successfully since the adoption of the 

1992 Cable Act. Id. 

12. There have been very few 

complaints filed alleging violations of 

the Commission’s good faith rules. For 

example, in 2001, the former Cable 

Services Bureau issued an order 

denying EchoStar Satellite Corporation’s 

retransmission consent complaint 

alleging that Young Broadcasting, Inc. et 

al. failed to negotiate in good faith. See 

EchoStar Satellite Corp. v. Young 

Broadcasting, Inc. et al., Memorandum 

Opinion and Order, 16 FCC Rcd 15070 

(CSB 2001). More recently, in 2007, the 

Media Bureau issued an order denying 

Mediacom Communications 

Corporation’s (Mediacom) 

retransmission consent complaint 

alleging that Sinclair Broadcast Group, 

Inc. (Sinclair) failed to negotiate in good 

faith. See Mediacom Communications 

Corp. v. Sinclair Broadcast Group, Inc., 

Memorandum Opinion and Order, 

22 FCC Rcd 47 (MB 2007). Although 

Mediacom filed an application for 

review of the Media Bureau’s order, 

Mediacom and Sinclair subsequently 

announced the completion of a 

retransmission consent agreement, and 

the Media Bureau thus granted 

Mediacom’s motion to dismiss the case 

with prejudice. See Mediacom 

Communications Corp. v. Sinclair 

Broadcast Group, Inc., Order, 22 FCC 

Rcd 11093 (MB 2007). Also in 2007, the 

Media Bureau ruled that a cable 

operator failed to negotiate in good faith 

under the totality of the circumstances, 

and ordered resumption of negotiations 

within 10 days and status updates every 

30 days. See Letter to Jorge L. 

Bauermeister, 22 FCC Rcd 4933 (MB 

2007); see also infra para. 33. Further, 

in 2009, the Media Bureau issued an 

order denying ATC Broadband LLC and 

Dixie Cable TV, Inc.’s retransmission 

consent complaint alleging that Gray 

Television Licensee, Inc. failed to 

negotiate in good faith. See ATC 

Broadband LLC and Dixie Cable TV, 

Inc. v. Gray Television Licensee, Inc., 

Memorandum Opinion and Order, 

24 FCC Rcd 1645 (MB 2009). Also in 

2009, Mediacom filed another 

retransmission consent complaint 

alleging that Sinclair failed to negotiate 

in good faith, but, following an agreedupon extension, the parties announced 

the completion of a retransmission 

consent agreement and the Media 

Bureau granted Mediacom’s motion to 

dismiss the case with prejudice. See 

Mediacom Communications Corp. v. 

Sinclair Broadcast Group, Inc., Order, 

25 FCC Rcd 257 (MB 2010). 

Accordingly, there is little Commission 

precedent regarding the good faith rules, 

and there has only been one finding that 

a party to a retransmission consent 

agreement negotiated in bad faith. 

C. Petition for Rulemaking 

13. In March 2010, 14 MVPDs and 

public interest groups filed a 

rulemaking petition arguing that the 

Commission’s retransmission consent 

regulations are outdated and are 

harming consumers. Time Warner Cable 

Inc. et al. Petition for Rulemaking to 

Amend the Commission’s Rules 

Governing Retransmission Consent, MB 

Docket No. 10–71, at 1 (filed Mar. 9, 

2010) (the Petition). The petitioners 

argued that changes in the marketplace, 

and the increasingly contentious nature 

of retransmission consent negotiations, 

justify revisions to the Commission’s 

rules governing retransmission consent. 

Specifically, the Petition stated that, in 

1992, Congress acted out of ‘‘concern 

that cable operators were functioning as 

monopolies and in turn threatened to 

undercut the public interest benefits 

associated with over-the-air 

broadcasting.’’ Petition at 2–3 (footnote 

omitted). The petitioners argued that 

broadcasters today ‘‘enjoy distribution 

options beyond the cable incumbent in 

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Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 17075 

nearly every [DMA].’’ Id. at 4. The 

Petition also contended that Congress 

expected broadcaster demands for 

compensation, if any, to be modest, 

because of the benefits that broadcasters 

derive from carriage. Id. The Petition 

argued that the recent shift of bargaining 

power to broadcasters has resulted in 

retransmission consent negotiations in 

which MVPDs must either agree to the 

significantly higher fees requested by 

broadcasters or lose access to 

programming. Id. at 5. 

14. On March 19, 2010, the Media 

Bureau released a Public Notice inviting 

public comment on the Petition. See 

Public Notice, Media Bureau Seeks 

Comment on a Petition for Rulemaking 

to Amend the Commission’s Rules 

Governing Retransmission Consent, DA 

10–474 (MB 2010) (the Public Notice). 

Following the grant of an extension, 

comments were due May 18, 2010, and 

reply comments were due June 3, 2010. 

See Petition for Rulemaking to Amend 

the Commission’s Rules Governing 

Retransmission Consent, Order, 25 FCC 

Rcd 3334 (MB 2010). While some 

commenters agree with the petitioners 

that the retransmission consent regime 

is in need of reform, others argue that 

the retransmission consent process is 

working as intended and that the shift 

in retransmission consent pricing 

represents a market correction reflecting 

the increased competition faced by 

incumbent cable operators. 

D. Consumer Impact 

15. In the past year, we have seen 

high profile retransmission consent 

disputes result in carriage impasses. 

When Cablevision Systems Corp. 

(Cablevision) and News Corp.’s 

agreement for two Fox-affiliated 

television stations and one MyNetwork 

TV-affiliated television station expired 

on October 15, 2010 and the parties did 

not reach an extension or renewal 

agreement, Cablevision was forced to 

discontinue carriage of the three stations 

until agreement was reached on October 

30, 2010. The carriage impasse resulted 

in affected Cablevision subscribers 

being unable to view on cable the 

baseball National League Championship 

Series, the first two games of the World 

Series, a number of NFL regular season 

games, and other regularly scheduled 

programs. Previously, on March 7, 2010, 

Walt Disney Co. (Disney) and 

Cablevision were unable to reach 

agreement on carriage of Disney’s ABC 

signal for nearly 21 hours after a 

previous agreement expired. As a result, 

the approximately 3.1 million 

households served by Cablevision were 

unable to view the first 14 minutes of 

the Academy Awards through their 

cable provider. Most recently, we are 

aware of losses of programming 

resulting from retransmission consent 

carriage impasses involving DISH 

Network and Chambers 

Communications Corp., Time Warner 

Cable and Smith Media LLC, DISH 

Network and Frontier Radio 

Management, DirecTV and Northwest 

Broadcasting, Mediacom and KOMU– 

TV, and Full Channel TV and 

Entravision. 

16. In addition, consumers have been 

concerned about other high profile 

retransmission consent negotiations that 

seemed close to an impasse. For 

example, a retransmission consent 

agreement with Time Warner Cable for 

News Corp.’s Fox television stations 

expired at midnight on December 31, 

2009. A statement from FCC Chairman 

Julius Genachowski at the time 

acknowledged that a failure to conclude 

a new agreement could harm 

consumers, noting that ‘‘[c]ompanies 

shouldn’t force cable-watching football 

fans to scramble for other means of TV 

delivery on New Year’s weekend.’’ See 

News Release, FCC Chairman Julius 

Genachowski Statement on 

Retransmission Disputes, (rel. Dec. 31, 

2009). Ultimately, Fox and Time Warner 

reached agreement without any carriage 

interruption, but consumers who were 

aware of the dispute were unsure if they 

would have continued access to Fox 

programming through their Time 

Warner subscription. We are concerned 

about the uncertainty that consumers 

have faced regarding their ability to 

continue receiving certain broadcast 

television stations during recent 

contentious retransmission consent 

negotiations. The early termination fees 

imposed by some MVPDs may cause 

consumers faced with a potential 

retransmission consent negotiating 

impasse to be unwilling or unable to 

consider switching to another MVPD to 

maintain access to a particular broadcast 

station. See infra para. 30. Accordingly, 

recognizing the consumer harm caused 

by retransmission consent negotiation 

impasses and near impasses, the 

Commission seeks comment on certain 

proposals to modify the rules governing 

retransmission consent. 

III. Discussion 

17. Our goal in this proceeding is to 

take appropriate action, within our 

existing authority, to protect consumers 

from the disruptive impact of the loss of 

broadcast programming carried on 

MVPD video services. Subscribers are 

the innocent bystanders adversely 

affected when broadcasters and MVPDs 

fail to reach an agreement to extend or 

renew their retransmission consent 

contracts. In light of the changing 

marketplace, our proposals in this 

NPRM are intended to update the good 

faith rules and remedies in order to 

better utilize the good faith requirement 

as a consumer protection tool. While 

one way to protect consumers’ interests 

might be for the Commission to order 

that a station continue to be carried 

notwithstanding the parties’ failure to 

reach an agreement, the statute does not 

authorize carriage without the station’s 

consent, as discussed below. Therefore, 

we have identified other measures that 

we could take to improve the process 

and decrease the occurrence of these 

disruptions. As detailed in this NPRM, 

we seek comment on these measures 

and on others that could be beneficial 

and constructive. Is there an impact on 

the basic service rate that consumers 

pay as a result of the retransmission 

consent fees or disputes? 

18. As a threshold matter, we note 

that the Petition proposed, among other 

suggestions, that the Commission adopt 

a mandatory arbitration mechanism for 

retransmission consent disputes, and 

provide for mandatory interim carriage 

while an MVPD negotiates in good faith 

or while dispute resolution proceedings 

are pending. Petition at 31–40. In 

response to the Public Notice seeking 

comment on the Petition, some 

commenters have agreed that the 

Commission should adopt mandatory 

dispute resolution procedures and/or 

interim carriage mechanisms. In 

contrast, other commenters have argued 

that the Commission should not, as a 

matter of policy, adopt mandatory 

dispute resolution procedures or interim 

carriage mechanisms, and/or that in any 

event the Commission lacks authority to 

adopt such procedures and 

mechanisms. We do not believe that the 

Commission has authority to adopt 

either interim carriage mechanisms or 

mandatory binding dispute resolution 

procedures applicable to retransmission 

consent negotiations. First, regarding 

interim carriage, examination of the Act 

and its legislative history has convinced 

us that the Commission lacks authority 

to order carriage in the absence of a 

broadcaster’s consent due to a 

retransmission consent dispute. Rather, 

section 325(b) of the Act expressly 

prohibits the retransmission of a 

broadcast signal without the 

broadcaster’s consent. 47 U.S.C. 

325(b)(1)(A) (‘‘No cable system or other 

multichannel video programming 

distributor shall retransmit the signal of 

a broadcasting station, or any part 

thereof, except—(A) with the express 

authority of the originating station’’). 

Furthermore, consistent with the 

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statutory language, the legislative 

history of section 325(b) states that the 

retransmission consent provisions were 

not intended ‘‘to dictate the outcome of 

the ensuing marketplace negotiations’’ 

and that broadcasters would retain the 

‘‘right to control retransmission and to 

be compensated for others’ use of their 

signals.’’ S.Rep.No. 92, 102nd Cong., 1st 

Sess. 1991, reprinted in 1992 

U.S.C.C.A.N. 1133, 1169. We thus 

interpret section 325(b) to prevent the 

Commission from ordering carriage over 

the objection of the broadcaster, even 

upon a finding of a violation of the good 

faith negotiation requirement. 

Consistent with this interpretation, the 

Commission previously found that it 

has ‘‘no latitude * * * to adopt 

regulations permitting retransmission 

during good faith negotiation or while a 

good faith or exclusivity complaint is 

pending before the Commission where 

the broadcaster has not consented to 

such retransmission.’’ Good Faith Order. 

Contrary to the suggestion of some 

commenters, section 4(i) of the Act does 

not authorize the Commission to act in 

a manner that is inconsistent with other 

provisions of the Act, and thus does not 

support Commission-ordered carriage in 

this context. Second, we believe that 

mandatory binding dispute resolution 

procedures would be inconsistent with 

both section 325 of the Act, in which 

Congress opted for retransmission 

consent negotiations to be handled by 

private parties subject to certain 

requirements, and with the 

Administrative Dispute Resolution Act 

(ADRA), which authorizes an agency to 

use arbitration ‘‘whenever all parties 

consent.’’ 5 U.S.C. 575(a)(1). 

19. In light of the statutory mandate 

in section 325 and the restrictions 

imposed by the ADRA, we do not 

believe that we have authority to require 

either interim carriage requirements or 

mandatory binding dispute resolution 

procedures. Parties may comment on 

that conclusion. We seek comment 

below on other ways the Commission 

can protect the public from, and 

decrease the frequency of, 

retransmission consent negotiation 

impasses within our existing statutory 

authority. 

A. Strengthening the Good Faith 

Negotiation Standards of § 76.65(b)(1) of 

the Commission’s Rules 

20. When the Commission originally 

adopted the good faith standards in 

2000, the circumstances were different 

from the conditions industry and 

consumers face today. At that time 

programming disruptions due to 

retransmission consent disputes were 

rare. The Commission’s approach then 

was to provide broad standards of what 

constitutes good faith negotiation but 

generally leave the negotiations to the 

parties. See, e.g., Good Faith Order 

(‘‘[T]he Commission concluded in the 

Broadcast Signal Carriage Order that 

Congress did not intend that the 

Commission should intrude in the 

negotiation of retransmission consent. 

We do not interpret the good faith 

requirement of SHVIA to alter this 

settled course and require that the 

Commission assume a substantive role 

in the negotiation of the terms and 

conditions of retransmission consent.’’). 

As the Commission stated, ‘‘The statute 

does not appear to contemplate an 

intrusive role for the Commission with 

regard to retransmission consent.’’ See 

id. Instead, the Commission stated that 

‘‘[w]e believe that, by imposing the good 

faith obligation, Congress intended that 

the Commission develop and enforce a 

process that ensures that broadcasters 

and MVPDs meet to negotiate 

retransmission consent and that such 

negotiations are conducted in an 

atmosphere of honesty, purpose and 

clarity of process.’’ See id. The good 

faith provision of SHVIA was 

specifically targeted at constraining 

unacceptable negotiating conduct on the 

part of broadcasters, but Congress 

subsequently recognized that it is 

necessary to constrain unacceptable 

retransmission consent negotiating 

conduct of MVPDs as well as 

broadcasters, and thus imposed a 

reciprocal bargaining obligation in 

SHVERA. See, e.g., Implementation of 

Section 207 of the Satellite Home 

Viewer Extension and Reauthorization 

Act of 2004; Reciprocal Bargaining 

Obligation, 70 FR 40216, July 13, 2005 

(SHVERA Reciprocal Bargaining Order) 

(‘‘Section 207 [of SHVERA] * * * 

amends [section 325(b)(3)(C) of the Act] 

to impose a reciprocal good faith 

retransmission consent bargaining 

obligation on [MVPDs]. This section 

alters the bargaining obligations created 

by [SHVIA] which imposed a good faith 

bargaining obligation only on 

broadcasters.’’) (footnote omitted). In 

recent times, the actual and threatened 

service disruptions resulting from 

increasingly contentious retransmission 

consent disputes present a growing 

inconvenience and source of confusion 

for consumers. We believe that these 

changes in circumstances support 

reevaluation of the good faith rules, 

particularly to ameliorate the impact of 

retransmission consent negotiations on 

innocent consumers. We note that 

recent letters from members of Congress 

have emphasized the effect of 

retransmission consent negotiations on 

consumers. 

21. As discussed above, in 

implementing the reciprocal good faith 

negotiation requirement of section 325 

of the Act, the Commission established 

a list of seven objective good faith 

negotiation standards. Violation of any 

of these standards by a broadcast station 

or MVPD is considered a per se breach 

of its obligation to negotiate in good 

faith. The record indicates that there is 

some uncertainty in the marketplace 

about whether certain conduct 

constitutes a failure to negotiate in good 

faith. Accordingly, we seek comment on 

augmenting our rules to include 

additional objective good faith 

negotiation standards, the violation of 

which would be considered a per se 

breach of § 76.65 of the Commission’s 

rules. We believe that additional per se 

good faith negotiation standards could 

increase certainty in the marketplace, 

thereby promoting the successful 

completion of retransmission consent 

negotiations and protecting consumers 

from impasses or near impasses. In 

addition, we seek comment on 

clarifying various aspects of our existing 

good faith rules. 

22. First, we seek comment on 

whether it should be a per se violation 

for a station to agree to give a network 

with which it is affiliated the right to 

approve a retransmission consent 

agreement with an MVPD or to comply 

with such an approval provision. In 

response to the Public Notice seeking 

comment on the Petition, certain 

commenters discussed network 

involvement in the retransmission 

consent process. Some commenters 

have argued that the Commission 

should consider preventing networks 

from dictating whether and by what 

terms an affiliated station may grant 

retransmission consent. Others have 

argued that provisions in networkaffiliate agreements do not interfere 

with the requirement that broadcasters 

negotiate retransmission consent in 

good faith. Interested parties have 

argued that, in recent retransmission 

consent negotiations, a network’s 

exercise of its contractual approval right 

has hindered the progress of the 

negotiations. The good faith rules 

currently require the Negotiating Entity 

to designate a representative with 

authority to make binding 

representations on retransmission 

consent and not unreasonably delay 

negotiations. 47 CFR 76.65(b)(1)(ii) and 

(iii). If a station has granted a network 

a veto power over any retransmission 

consent agreement with an MVPD, then 

it has arguably impaired its own ability 

to designate a representative who can 

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bind the station in negotiations, 

contrary to our rules. Do provisions in 

network affiliation agreements giving 

the network approval rights over the 

grant of retransmission consent by its 

affiliate represent a reasonable exercise 

by a network of its distribution rights in 

network programming? If so, in 

considering revisions to the good faith 

rules, how should the Commission 

balance the networks’ rights against the 

stations’ obligation to negotiate in good 

faith and the regulatory goal of 

protecting consumers from service 

disruptions? We seek comment on the 

appropriate parameters of network 

involvement in retransmission consent 

negotiations. We would also welcome 

comment and data regarding how 

frequently a network’s assertion of the 

right to review or approve an agreement 

affects negotiations. In our 

consideration of the role of the network 

in its affiliates’ retransmission consent 

negotiations, we do not intend to 

interfere with the flow of revenue 

between networks and their affiliates. 

We recognize the special value of 

broadcast network programming to local 

broadcast television stations and to 

MVPDs. Accordingly, we do not 

propose to prevent a network from 

contracting to receive a portion of its 

affiliates’ retransmission consent fees. 

Rather, we seek comment on the 

permissible scope of a network’s 

involvement in the negotiations or right 

to approve an agreement. If the 

Commission decides to prohibit stations 

from granting networks the right to 

approve their affiliates’ retransmission 

consent agreements, should we, on a 

going-forward basis, abrogate any 

provisions restricting an affiliate’s 

power to grant retransmission consent 

without network approval that appear in 

existing agreements? 

23. Second, we seek comment on 

whether it should be a per se violation 

for a station to grant another station or 

station group the right to negotiate or 

the power to approve its retransmission 

consent agreement when the stations are 

not commonly owned. Such consent 

might be reflected in local marketing 

agreements (LMAs), Joint Sales 

Agreements (JSAs), shared services 

agreements, or other similar agreements. 

Some commenters have noted problems 

that occur when one station or station 

group negotiates retransmission consent 

on behalf of a station or station group 

that is not commonly owned. The 

Commission believes that, when a 

station relinquishes its responsibility to 

negotiate retransmission consent, there 

may be delays to the negotiation 

process, and negotiations may become 

unnecessarily complicated if an MVPD 

is forced to negotiate with multiple 

parties with divergent interests, 

potentially including interests that 

extend beyond a single local market. 

The proposal on which we seek 

comment would effectively prohibit 

joint retransmission consent 

negotiations by stations that are not 

commonly owned. Should the 

Commission, on a going-forward basis, 

abrogate any such terms that appear in 

existing agreements? One commenter 

has argued that the negotiating 

arrangements about which others 

complain are rare, and that they are 

largely in small markets ‘‘where such 

sharing agreements may well be 

necessary for the stations to survive 

economically.’’ Accordingly, we seek 

comment on the prevalence of 

agreements that grant one station or 

station group the right to negotiate or 

approve the retransmission consent 

agreement of a station or station group 

that is not commonly owned; the impact 

of such arrangements on the negotiation 

process; and the potential harms and 

benefits of prohibiting such agreements. 

How should the Commission balance 

any asserted benefits of such sharing 

agreements against the goal of protecting 

consumers from service disruptions? 

24. Third, we seek comment on 

whether it should be a per se violation 

for a Negotiating Entity to refuse to put 

forth bona fide proposals on important 

issues. One commenter has stated that a 

refusal to make proposals as to key 

issues is a bad faith tactic in 

retransmission consent negotiations. 

How should we identify the category of 

issues about which a Negotiating Entity 

is required to put forth a bona fide 

proposal? How should we determine 

what constitutes a bona fide proposal, or 

whether a proposal is sufficiently 

unreasonable as to constitute bad faith? 

We note that the Commission has 

defined a bona fide request in the 

context of a programmer’s request for 

leased access on a system of a small 

cable operator. See 47 CFR 76.970(i)(3). 

25. Fourth, we seek comment on 

whether it should be a per se violation 

for a Negotiating Entity to refuse to 

agree to non-binding mediation when 

the parties reach an impasse within 30 

days of the expiration of their 

retransmission consent agreement. We 

seek comment on whether 30 days from 

the expiration of the retransmission 

consent agreement is the appropriate 

time frame within which to require nonbinding mediation. In previous 

retransmission consent disputes, the 

Commission has encouraged parties to 

engage in voluntary dispute resolution 

mechanisms as a means to reach 

agreement because a neutral third party 

may be able to facilitate agreement 

where the parties have otherwise failed. 

The Commission previously stated its 

belief ‘‘that voluntary mediation can 

play an important part in the facilitation 

of retransmission consent and [we] 

encourage parties involved in protracted 

retransmission consent negotiations to 

pursue mediation on a voluntary basis.’’ 

See Good Faith Order (also stating that 

the Commission would revisit the issue 

of mandatory retransmission consent 

mediation if its experience in enforcing 

the good faith provision indicates that it 

is necessary). If parties are unable to 

reach agreement on their own and the 

expiration of their existing agreement is 

imminent, should we consider it bad 

faith for them to refuse to participate in 

non-binding mediation? Would 

mediation advance the successful 

completion of retransmission consent 

negotiations, even if it is not binding on 

the parties? Although as noted above we 

do not believe we have authority to 

mandate binding arbitration, we believe 

that we have authority to require nonbinding mediation. Because the 

mediation would be non-binding, we 

believe that it would be consistent with 

the statutory prohibition on 

retransmission without the originating 

station’s express authority. Non-binding 

mediation would also be consistent with 

the ADRA, which prohibits compelled 

binding arbitration. See 5 U.S.C. 571 

through 584. We seek comment on our 

proposal to require non-binding 

mediation. If we require mediation, how 

should a mediator be selected, and how 

should the parties determine who is 

responsible for the costs of mediation? 

How would the ground rules of the 

mediation be determined? 

26. Fifth, we seek comment on what 

it means to ‘‘unreasonably’’ delay 

retransmission consent negotiations. 

Section 76.65(b)(1)(iii) of the 

Commission’s rules currently provides 

that ‘‘[r]efusal by a Negotiating Entity to 

meet and negotiate retransmission 

consent at reasonable times and 

locations, or acting in a manner that 

unreasonably delays retransmission 

consent negotiations,’’ constitutes a 

violation of the Negotiating Entity’s 

duty to negotiate retransmission consent 

in good faith. 47 CFR 76.65(b)(1)(iii). 

Commenters report that negotiations 

have been adversely affected by a 

party—either a broadcaster or an 

MVPD—delaying the commencement or 

progress of a negotiation as a tactic to 

gain advantage rather than out of 

necessity. We believe that delaying 

retransmission consent negotiations 

could predictably and intentionally lead 

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to the type of impasse and threat of 

disruption that inconveniences 

consumers. Accordingly, we seek 

comment on what standards we should 

consider in determining whether a 

Negotiating Entity has acted in a manner 

that ‘‘unreasonably’’ delays 

retransmission consent negotiations and 

thus violates the duty to negotiate in 

good faith. 

27. Sixth, we seek comment on 

whether a broadcaster’s request or 

requirement, as a condition of 

retransmission consent, that an MVPD 

not carry an out-of-market ‘‘significantly 

viewed’’ (SV) station violates 

§ 76.65(b)(1)(vi) of the Commission’s 

rules. Section 76.65(b)(1)(vi) of the 

Commission’s rules provides that 

‘‘[e]xecution by a Negotiating Entity of 

an agreement with any party, a term or 

condition of which, requires that such 

Negotiating Entity not enter into a 

retransmission consent agreement with 

any other television broadcast station or 

multichannel video programming 

distributor’’ is a violation of the 

Negotiating Entity’s duty to negotiate in 

good faith. See 47 CFR 76.65(b)(1)(vi). 

Despite the existence of this rule, in the 

Commission’s proceeding implementing 

section 203 of the Satellite Television 

Extension and Localism Act of 2010 

(STELA), DISH Network L.L.C. 

requested that the Commission adopt a 

rule to ‘‘clarify that tying retransmission 

consent to restrictions on SV station 

carriage’’ violates the requirement that 

parties negotiate retransmission consent 

in good faith. See Comments and 

Petition for Further Rulemaking of DISH 

Network L.L.C., MB Docket No. 10–148, 

at 9 (filed Aug. 17, 2010). DISH Network 

stated that some ‘‘local stations have tied 

the grant of their retransmission consent 

for local-into-local service to 

concessions from satellite carriers that 

the carriers will not introduce any SV 

stations of the same network.’’ Id. 

(footnote omitted). We note that the 

Commission previously interpreted 

§ 76.65(b)(1)(vi) of the Commission’s 

rules narrowly, as involving collusion 

between a broadcaster and an MVPD. 

See, e.g., Good Faith Order (‘‘For 

example, Broadcaster A is prohibited 

from agreeing with MVPD B that it will 

not reach retransmission consent with 

MVPD C.’’); SHVERA Reciprocal 

Bargaining Order (‘‘As is evidenced by 

the discussion in the Good Faith Order, 

that provision is intended to cover 

collusion between a broadcaster and an 

MVPD requiring non-carriage by another 

MVPD * * *.’’); see also ATC 

Broadband LLC and Dixie Cable TV, 

Inc. v. Gray Television Licensee, Inc., 24 

FCC Rcd at 1649, para. 7. We seek 

comment on whether to interpret this 

rule more expansively to preclude a 

broadcast station from executing an 

agreement prohibiting an MVPD from 

carrying an out-of-market SV station 

that might otherwise be available to 

consumers as a partial substitute for the 

in-market station’s programming, in the 

event of a retransmission consent 

negotiation impasse. Should we expand 

our prior interpretation of this rule to 

cover any additional scenarios? Have 

there been instances in which an MVPD 

would have carried an out-of-market SV 

station, but for a local broadcaster’s 

request or requirement to the contrary? 

Do the holders of the rights to certain 

programming, including but not limited 

to broadcast networks, impose 

geographic restrictions on the stations to 

which they license programming, such 

that an out-of-market SV station may be 

prohibited from consenting to carriage, 

in any event? We also invite comment 

on whether stations have threatened to 

delay or refuse to reach a retransmission 

agreement unless the MVPD commits to 

forego carriage of out-of-market SV 

stations without including such 

commitment in the executed agreement. 

Do such threats circumvent the rule as 

written by keeping the commitment out 

of the executed document? Should we 

revise the rule to prevent such 

circumvention? 

28. Finally, we seek comment on 

whether there are any additional actions 

or practices that should be deemed to 

constitute per se violations of a 

Negotiating Entity’s duty to negotiate 

retransmission consent agreements in 

good faith under § 76.65 of the 

Commission’s rules, or that we should 

otherwise prohibit in order to protect 

consumers. For example, if a 

broadcaster or MVPD repeatedly insists 

on month-to-month retransmission 

consent agreements or a new agreement 

term of less than one year, should that 

constitute a per se violation of the 

Negotiating Entity’s duty to negotiate 

retransmission consent in good faith? 

Month-to-month retransmission consent 

agreements are different from short-term 

extensions to existing retransmission 

consent agreements for the purpose of 

negotiating a mutually satisfactory longterm retransmission consent agreement, 

which the Commission encourages as a 

means of avoiding a loss of 

programming. In addition, how should 

the Commission view the required 

inclusion of a ‘‘most favored nation’’ 

(MFN) clause in a retransmission 

consent agreement? An MFN clause 

refers to an agreement that if Party A 

awards terms or conditions to a third 

party that are more favorable than those 

currently in place with Party B, then 

Party A must offer the more favorable 

terms or conditions to Party B. How 

often are MFN clauses included in 

retransmission consent agreements, 

what is their intended purpose, and 

what is their effect on retransmission 

consent negotiations? 

29. With respect to other practices the 

Commission should consider, one 

commenter stated, ‘‘Small and mid-size 

MVPDs could greatly enhance their 

ability to negotiate with broadcasters if 

they were permitted to pool their 

resources, appoint an agent, and 

negotiate as a group.’’ We seek comment 

on this proposal, including how to 

reconcile it with the proposal described 

above that would prevent a broadcast 

station from granting to another station 

or station group the right to negotiate or 

the power to approve its retransmission 

consent agreement when the stations are 

not commonly owned. In addition, we 

ask parties to comment on whether 

small and new entrant MVPDs are 

typically forced to accept retransmission 

consent terms that are less favorable 

than larger or more established MVPDs, 

and if so, whether this is fair. And, 

several commenters have suggested that 

the Commission should address the 

ability of broadcasters to condition 

retransmission consent on the purchase 

of other programming services, such as 

the programming of affiliated nonbroadcast networks. We note that a 

number of commenters see problems 

with such broadcaster requirements. Is 

this something that the Commission 

should consider in evaluating whether 

broadcasters have negotiated in good 

faith? 

30. Are there additional actions that 

should be listed as presumptive 

breaches of good faith but subject to 

arguments rebutting the presumption in 

special circumstances? Would the 

approach of rebuttable presumptions 

rather than per se violations offer 

beneficial flexibility or diminish the 

benefits of greater specificity in the good 

faith rule? We also invite comment on 

ways the Commission can strengthen 

the remedies available upon finding a 

violation of the good faith standards to 

encourage compliance with the rules. 

Are there additional penalties that the 

Commission can impose for failure to 

negotiate in good faith that would 

provide a meaningful incentive for 

compliance with the good faith 

standard, such as considering such 

failure in the context of license 

renewals, including, e.g., satellite and 

CARS licenses? See, e.g., 47 CFR 25.102, 

25.156, 25.160, 78.11 et seq.; 47 U.S.C. 

301, 308(b), 309. Finally, to what extent 

do MVPDs impose early termination 

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fees (ETFs) on their subscribers, and 

what effect, if any, do ETFs have on 

retransmission consent negotiations and 

on consumers’ ability to switch MVPDs 

in the event of a negotiation impasse? 

What actions, if any, could the 

Commission take to address any 

problems involving ETFs? 

B. Specification of the Totality of the 

Circumstances Standard of § 76.65(b)(2) 

of the Commission’s Rules 

31. We seek comment on revising the 

‘‘totality of the circumstances’’ standard 

for determining whether actions in the 

negotiating process are taken in good 

faith, in an effort to improve the 

standard’s utility and to better serve 

innocent consumers. As described in 

greater detail below, we invite comment 

on how the Commission can more 

effectively evaluate complaints that do 

not allege per se violations but involve 

behavior calculated to threaten 

disruption of consumer access as a 

negotiating tactic. We seek comment on 

particular behavior that the Commission 

should evaluate in the context of the 

‘‘totality of the circumstances’’ standard. 

32. Pursuant to § 76.65(b)(2) of the 

Commission’s rules, ‘‘a Negotiating 

Entity may demonstrate, based on the 

totality of the circumstances of a 

particular retransmission consent 

negotiation, that a television broadcast 

station or multichannel video 

programming distributor breached its 

duty to negotiate in good faith * * *.’’ 

47 CFR 76.65(b)(2). The Commission 

has stated, ‘‘[w]e do not intend the 

totality of the circumstances test to 

serve as a ‘back door’ inquiry into the 

substantive terms negotiated between 

the parties.’’ Good Faith Order. Rather, 

the totality of the circumstances test 

enables the Commission to consider a 

complaint alleging that, while a 

Negotiating Entity did not violate the 

per se objective standards, its proposals 

or actions were ‘‘sufficiently 

outrageous,’’ or included terms or 

conditions not based on competitive 

marketplace considerations, so as to 

violate the good faith negotiation 

requirement. See id. 

33. Some commenters have argued 

that the Commission should clarify or 

expand on the totality of the 

circumstances standard, including the 

related concept of competitive 

marketplace considerations, while 

others do not support changes to our 

rules governing retransmission consent. 

We seek comment on whether to 

provide more specificity for the 

meaning and scope of the ‘‘totality of the 

circumstances’’ standard of § 76.65(b)(2) 

of the Commission’s rules, in order to 

define more clearly the instances in 

which a Negotiating Entity may violate 

this standard. For example, the Media 

Bureau previously found a violation of 

the totality of the circumstances 

standard, in response to a petition filed 

by WLII/WSUR Licensee Partnership, 

G.P. against Choice Cable T.V. (Choice), 

regarding the parties’ negotiations for 

carriage of WLII–TV and its booster 

stations WSUR–TV and WORA–TV. See 

Letter to Jorge L. Bauermeister, 22 FCC 

Rcd 4933. While Choice stated that it 

halted negotiations because it began 

carrying WLII’s programming through 

arrangements with WORA, Choice failed 

to provide evidence of a valid 

retransmission consent agreement with 

WORA, and thus the Media Bureau 

found that Choice breached its duty to 

negotiate in good faith. See id. at 4933– 

34. Are there additional circumstances 

that the Commission should consider in 

evaluating the totality of the 

circumstances, or is the ‘‘totality of the 

circumstances’’ best left as a general 

provision to capture those actions and 

behaviors that we do not now foresee 

but that may impede productive and fair 

negotiations? We note that the 

Commission previously provided 

examples of bargaining proposals that 

are presumptively consistent and 

presumptively inconsistent with 

competitive marketplace considerations 

and the good faith negotiation 

requirement. See Good Faith Order. 

Should any of the potential additional 

per se violations proposed in Section 

III.A., above, instead be considered as 

part of the totality of the circumstances 

of a particular negotiation? Is it 

sufficient to retain the existing flexible 

standard, and look to precedent to 

provide specificity as warranted? We 

seek comment on particular ways in 

which we could provide more 

specificity in defining when conduct 

would breach the duty of good faith 

negotiation under the ‘‘totality of the 

circumstances.’’ 

C. Revision of the Notice Requirements 

34. Adequate advance notice of 

retransmission consent disputes for 

consumers can enable them to prepare 

for disruptions in their video service. 

However, such notice can be 

unnecessarily costly and disruptive 

when it creates a false alarm, i.e., 

concern about disruption that does not 

come to pass, and induces subscribers to 

switch MVPD providers in anticipation 

of a service disruption that never takes 

place. We seek comment on how best to 

balance useful advance notice against 

the potential for causing unnecessary 

anxiety to consumers. We invite 

comment on how best to revise our 

notice rules in light of these 

considerations, as well as the economic 

impact of notice requirements on both 

broadcasters and MVPDs. 

35. Our current notice requirements 

apply to cable operators only and are 

not violated by a failure to provide 

notice unless service is actually 

disrupted. Specifically, section 614(b)(9) 

of the Act requires a cable operator to 

notify a local commercial television 

station in writing at least 30 days before 

either deleting or repositioning that 

station. 47 U.S.C. 534(b)(9). Section 

76.1601 of the Commission’s rules 

further specifies that a cable operator 

must ‘‘provide written notice to any 

broadcast television station at least 30 

days prior to either deleting from 

carriage or repositioning that station. 

Such notification shall also be provided 

to subscribers of the cable system.’’ 47 

CFR 76.1601. (§§ 76.1602 and 76.1603 of 

the Commission’s rules contain 

additional requirements for notifying 

subscribers and cable franchise 

authorities. 47 CFR 76.1602, 76.1603.) 

Accordingly, under the current rule, if 

a cable operator fails to give notice 30 

days before the retransmission consent 

agreement’s expiration, and the 

agreement is ultimately renewed 

without the station being deleted, then 

the cable operator has not violated the 

rule. If, however, the station is 

ultimately deleted, and the cable 

operator has not given the required 30 

day notice, then the cable operator is in 

violation of § 76.1601 of the 

Commission’s rules. Of course, the cable 

operator does not know whether the 

negotiations will ultimately fail and it 

will be required to delete the broadcast 

signal until the agreement actually 

expires. We note that, notwithstanding 

the fact that the Commission may not 

have enforced the current notice 

requirements in all instances in which 

a station is deleted without notice, it 

reserves the right to do so in its 

discretion. See Heckler v. Chaney, 470 

U.S. 821, 831 (1985) (‘‘an agency’s 

decision not to prosecute or enforce, 

whether through civil or criminal 

process, is a decision generally 

committed to an agency’s absolute 

discretion’’). 

36. Some commenters have proposed 

that we not only clarify but also expand 

our existing notice requirements so that 

consumers will have sufficient time to 

determine their options and take 

appropriate action in the event that a 

broadcast signal is deleted from an 

MVPD’s service. Asserted benefits of 

enhanced notice include providing 

consumers with sufficient time to obtain 

access to particular broadcast signals by 

alternative means, and encouraging the 

successful completion of renewal 

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retransmission consent agreements more 

than 30 days before an existing 

agreement expires. In contrast, other 

commenters have argued that enhanced 

notice would have negative results such 

as unnecessarily alarming consumers 

and public officials, making 

negotiations increasingly contentious, 

providing broadcasters and rival MVPDs 

with more time to encourage customers 

to switch MVPDs, and causing 

customers who do switch to bear the 

associated costs unnecessarily if the 

negotiations are resolved without 

service disruption. We note that some 

cable operators have expressed their 

view that the existing notice 

requirements are not triggered by failed 

retransmission consent negotiations 

because the loss of the signal is not 

within the cable operators’ ‘‘control.’’ 

See 47 CFR 76.1603(b) (‘‘Notice must be 

given to subscribers a minimum of 

thirty (30) days in advance of such 

changes if the change is within the 

control of the cable operator.’’). We 

clarify that the notice requirements of 

§ 76.1601 of the Commission’s rules do 

not vary based on whether a change is 

within the cable operator’s control. Our 

focus in this NPRM is on § 76.1601 of 

the Commission’s rules, which requires 

notice when a cable operator deletes or 

repositions broadcast signals, rather 

than § 76.1603 of the Commission’s 

rules, which addresses customer service 

rules applicable to cable operators. 

Additionally, even if we were 

concerned with § 76.1603 of the 

Commission’s rules, we would consider 

retransmission consent negotiations to 

be within the control of both parties to 

the negotiations, and thus, failure to 

reach retransmission consent agreement 

would not be an excuse for failing to 

provide notice. 

37. We seek comment on whether we 

should revise our notice rules to require 

that notice of potential deletion of a 

broadcaster’s signal be given to 

consumers once a retransmission 

consent agreement is within 30 days of 

expiration, unless a renewal or 

extension has been executed, and 

regardless of whether the station’s signal 

is ultimately deleted. Under this 

approach, if parties have not reached a 

new agreement prior to 30 days from the 

agreement’s expiration, notice must be 

given to consumers. Would the 

requirement to provide such notice 

encourage the parties to conclude their 

negotiations more than 30 days before 

the expiration of the existing agreement, 

and thus help avoid the station 

deletions that deprive MVPD customers 

of local broadcast stations? Should we 

require notice to be given by any 

particular means? How should the 

Commission avoid imposing notice 

requirements that become so frequent 

that MVPD customers discount the 

notices? We have observed that the 

notices of impending impasses that 

generally have been provided by 

broadcasters and MVPDs alike are often 

little more than ad hominem attacks on 

the other party. We seek comment on 

what steps the Commission could take 

to ensure, to the extent possible, that 

required notifications provide useful 

information to consumers instead of 

merely serving as a further front in the 

retransmission consent war. For 

example, LIN objects to notices in 

which MVPDs ‘‘discount the possibility 

of a carriage interruption.’’ If the parties 

to a retransmission consent agreement 

begin giving notice, and subsequently 

agree to an extension pending further 

negotiations, should new notice be 

required of the extension agreement, 

and when should that notice be given? 

Where the parties enter into multiple 

extensions of their existing agreement, 

should notice be given of each 

extension? Would multiple notices be 

confusing to consumers? We also seek 

comment on extending the notice 

requirements with respect to deletions 

associated with retransmission consent 

disputes to non-cable MVPDs and 

broadcasters. What sources of authority 

does the Commission possess to support 

imposing notice requirements on noncable MVPDs and broadcasters? See, 

e.g., 47 U.S.C. 154(i), 301, 303(r), 303(v), 

307, 309, 335(a). Would the benefits of 

advance notice to subscribers, 

particularly in allowing customers to 

switch providers in order to avoid 

service disruptions and possibly 

reducing their likelihood, exceed the 

costs to subscribers, particularly in 

encouraging unnecessary switching of 

MVPDs when service disruptions do not 

occur? 

D. Application of the ‘‘Sweeps’’ 

Prohibition to Retransmission Consent 

Disputes 

38. We seek comment on whether we 

should extend the Commission’s 

‘‘sweeps’’ prohibition to non-cable 

MVPDs. Section 614(b)(9) of the Act 

states: 

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. 

47 U.S.C. 534(b)(9). Note 1 to § 76.1601 

of the Commission’s rules states: 

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. For this purpose, 

such periods are the four national four-week 

ratings periods—generally including 

February, May, July and November— 

commonly known as audience sweeps. 

47 CFR 76.1601, Note 1. Commenters 

have expressed differing views about 

the scope of this provision. 

39. We note that the record evidences 

some confusion about whether, despite 

the prohibition on deletion during the 

sweeps period, a broadcaster may 

require a cable operator to delete the 

broadcaster’s signal when the 

retransmission consent agreement 

expires during sweeps and the parties 

do not reach an extension or renewal 

agreement. The sweeps prohibition, 

found in section 614(b)(9) of the Act, 

states that ‘‘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.’’ 47 U.S.C. 534(b)(9). 

The provision is contained within 

Section 614 which imposes carriage 

obligations on cable operators. 47 U.S.C. 

534(a). Although the language of the 

statute is broadly worded, there is 

nothing in section 614(b)(9) to suggest 

that Congress intended to impose a 

reciprocal obligation on broadcasters 

during sweeps. To the contrary, the 

legislative history explains that ‘‘A cable 

operator may not drop or reposition any 

such station during a ‘sweeps’ period 

when ratings services measure local 

television audiences.’’ See S. Rep. No. 

92, 102nd Cong., 1st Sess. 1991, at 86, 

reprinted in 1992 U.S.C.C.A.N. 1133, 

1219. Moreover, this reading of the 

statute would eliminate any tension 

with the retransmission consent 

provisions, which provide that ‘‘No 

cable system or other multichannel 

video programming distributor shall 

retransmit the signal of a broadcasting 

station, or any part thereof, except with 

the express authority of the originating 

station.’’ 47 U.S.C. 325(b)(1)(A). 

Interpreting section 614(b)(9) to prohibit 

broadcasters from withholding 

retransmission consent during sweeps 

would run counter to section 

325(b)(1)(A)’s express limitation on 

broadcast carriage without a 

broadcaster’s consent. 47 U.S.C. 

534(b)(9), 325(b)(1)(A). While DirecTV 

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and DISH have stated that permitting 

broadcasters to withhold programming 

during sweeps would be contrary to 

precedent (citing Northland Cable TV, 

Inc., 23 FCC Rcd 7865 (MB 2008), which 

cites Time Warner Cable, 15 FCC Rcd 

7882 (CSB 2006)), we note that neither 

of those bureau-level decisions involved 

a retransmission consent agreement 

expiring during sweeps and the 

broadcaster requesting deletion of its 

own signal. In any event, to the extent 

that language in any prior cases could 

be read as precluding a broadcaster from 

requiring a cable operator to delete its 

signal during sweeps, staff-level 

decisions are not binding on the 

Commission. See Comcast Corp. v. FCC, 

526 F.3d 763, 769 (D.C. Cir. 2008). We 

seek comment on the above analysis. 

40. Likewise, it does not appear that 

section 335(a) grants the Commission 

authority to impose a sweeps limitation 

on broadcasters. Section 335(a) directs 

the Commission to ‘‘initiate a 

rulemaking proceeding to impose, on 

providers of direct broadcast satellite 

service, public interest or other 

requirements for providing video 

programming.’’ 47 U.S.C. 335(a). Thus, 

while section 335 would arguably grant 

the Commission authority to extend the 

sweeps rule to DBS providers, it does 

not appear to confer authority to extend 

the sweeps rule to broadcasters. We 

invite comment on this view. 

41. The sweeps prohibition generally 

prevents a cable operator from deleting 

a station during the sweeps period if the 

retransmission consent agreement 

expires during sweeps. We do not 

believe that the existing prohibition on 

deleting or repositioning a local 

commercial television station during 

sweeps periods applies to non-cable 

MVPDs, such as DBS, given that the 

provision appears within section 614, a 

section that focuses on the carriage 

obligations of cable operators. See 47 

U.S.C. 534(b)(9). We further note that 

the prohibition on deleting a local 

station during sweeps periods appears 

inextricably intertwined with the prior 

sentence expressly requiring a ‘‘cable 

operator’’ to provide at least 30 days 

notice to a local station prior to deletion 

of that station. Id. We see nothing in the 

legislative history of the statute to 

suggest that Congress intended section 

614(b)(9) to apply to non-cable MVPDs. 

Consistent with the statute, § 76.1601 of 

the Commission’s rules expressly 

applies to cable operators only. See 47 

CFR 76.1601. A different provision of 

the Act, section 338, governs satellite 

carriage of local broadcast stations, and 

it does not include a prohibition on 

deletion or repositioning during sweeps. 

See 47 U.S.C. 338. Accordingly, to 

achieve regulatory parity between cable 

systems and other MVPDs, we seek 

comment on whether we should extend 

the Commission’s ‘‘sweeps rule’’ to noncable MVPDs. Does the Commission 

have authority to extend the prohibition 

to DBS and other non-cable MVPDs, 

such as through sections 154(i), 303(r), 

303(v), and 335(a) of the Act? 47 U.S.C. 

154(i), 303(r), 303(v), 335(a). 

E. Elimination of the Network NonDuplication and Syndicated Exclusivity 

Rules 

42. We seek comment on the potential 

benefits and harms of eliminating the 

Commission’s rules concerning network 

non-duplication and syndicated 

programming exclusivity. See 47 CFR 

76.92 et seq., 76.101 et seq., 76.122, 

76.123. The network non-duplication 

rules permit a station with exclusive 

rights to network programming, as 

granted by the network, to assert those 

rights by using notification procedures 

in the Commission’s rules. See 47 CFR 

76.92 through 76.94. The rules, in turn, 

prohibit the cable system from carrying 

the network programming as broadcast 

by any other station within the 

‘‘geographic zone’’ to which the 

contractual rights and rules apply. See 

47 CFR 76.92. (The size of the 

geographic zone depends upon the size 

of the market in which the station is 

located. See 47 CFR 76.92(b).) Thus, a 

cable system negotiating retransmission 

consent with a local network affiliate 

may face greater pressure to reach 

agreement by virtue of the cable 

system’s inability to carry another 

affiliate of the same network if the 

retransmission consent negotiations fail. 

Similarly, under the syndicated 

exclusivity rules, a station may assert its 

contractual rights to exclusivity within 

a specified geographic zone to prevent 

a cable system from carrying the same 

syndicated programming aired by 

another station. See 47 CFR 76.101 et 

seq. These rules are collectively referred 

to as the ‘‘exclusivity rules.’’ They are 

grounded in the private contractual 

arrangements that exist between a 

station and the provider of network or 

syndicated programming. The 

Commission’s rules do not create these 

rights but rather provide a means for the 

parties to the exclusive contracts to 

enforce them through the Commission 

rather than through the courts. In fact, 

the Commission’s rules limit the 

circumstances in which the private 

contracts can be enforced by, for 

example, limiting the geographic area in 

which the exclusivity applies or 

exempting small cable systems and 

significantly viewed stations. See, e.g., 

47 CFR 76.92(b) and (f), 76.95(a); see 

also 47 CFR 76.93 (‘‘Television 

broadcast station licensees shall be 

entitled to exercise non-duplication 

rights * * * in accordance with the 

contractual provisions of the networkaffiliate agreement.’’). 

43. The Petition argued that the 

Commission’s rules provide 

broadcasters with a ‘‘one-sided level of 

protection’’ that is no longer justified, 

including through the network nonduplication and syndicated exclusivity 

rules. Petition at 12–15. Commenters 

also argued that the exclusivity rules 

provide broadcasters with artificially 

inflated bargaining leverage in 

retransmission consent negotiations. In 

addition, ACA filed a Petition for 

Rulemaking to Amend 47 CFR 76.64, 

76.93 and 76.103 on March 2, 2005 

(ACA’s 2005 Petition), asserting that 

competition and consumers are harmed 

when broadcasters use exclusivity and 

network affiliation agreements to extract 

‘‘supracompetitive prices’’ for 

retransmission consent from small cable 

companies. See Public Notice, Report 

No. 2696, RM–11203 (Mar. 17, 2005). 

We hereby incorporate in this 

proceeding by reference ACA’s 2005 

Petition, as well as the comments filed 

in response thereto. In contrast, other 

commenters have asserted that network 

non-duplication and syndicated 

exclusivity provisions are important to 

foster localism. Some commenters have 

also suggested that eliminating the 

Commission’s exclusivity rules may 

have little effect on retransmission 

consent negotiations, because private 

exclusive contracts between 

broadcasters and programming 

suppliers would remain in place. 

44. We seek comment on whether 

eliminating the Commission’s network 

non-duplication and syndicated 

exclusivity rules, without abrogating 

any private contractual provisions, 

would have a beneficial impact on 

retransmission consent negotiations. 

Would eliminating these rules help to 

minimize regulatory intrusion in the 

market, thus better enabling free market 

negotiations to set the terms for 

retransmission consent? The 

Commission previously stated in 

discussing its exclusivity rules, ‘‘By 

requiring MVPDs to black out 

duplicative programming carried on any 

distant signals they may import into a 

local market, the Commission’s network 

non-duplication and syndicated 

exclusivity rules provide a regulatory 

means for broadcasters to prevent 

MVPDs from undermining their 

contractually negotiated exclusivity 

rights.’’ See Retransmission Consent and 

Exclusivity Rules: Report to Congress 

Pursuant to Section 208 of the Satellite 

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Home Viewer Extension and 

Reauthorization Act of 2004, para. 17 

(Sept. 8, 2005), available at http:// 

hraunfoss.fcc.gov/edocs_public/ 

attachmatch/DOC–260936A1.pdf. Are 

these rules still necessary, or is any 

benefit of these rules outweighed by a 

negative impact on retransmission 

consent negotiations? Do these rules 

serve a useful purpose in today’s 

marketplace? Should exclusivity in this 

area be left entirely to the private 

marketplace, without providing any 

means of enforcement through the 

Commission? Would there be a 

beneficial impact to removing these 

rules if the contractual provisions that 

the rules enforce stay in place? Would 

the elimination of the network nonduplication and syndicated exclusivity 

rules have a negative impact on 

localism? We seek comment on the 

impact of our network non-duplication 

and syndicated exclusivity rules on the 

distribution of programming by 

television stations. Do these rules 

provide stations and networks with any 

rights that cannot be secured through a 

combination of network-affiliate 

contracts and retransmission consent? 

Under the existing exclusivity rules, the 

in-market television station has the right 

to assert network non-duplication and 

syndicated exclusivity protection based 

on its contractual relationship with the 

network, regardless of whether it is 

actually carried by the cable system. See 

Amendment of Parts 73 and 76 of the 

Commission’s Rules relating to program 

exclusivity in the cable and broadcast 

industries, Report and Order, 3 FCC Rcd 

5299, 5313–14, 5320, para. 92, 95, 122 

(1988). As an alternative to eliminating 

the network non-duplication rule 

completely as discussed above, we seek 

comment on revising the network nonduplication rule so that it does not 

apply to a television station that has not 

granted retransmission consent. Thus, a 

television station would only be 

permitted to assert network nonduplication protection if it is actually 

carried on the cable system. We seek 

comment on this proposal. 

45. We note that in SHVIA Congress 

extended the network non-duplication 

and syndicated exclusivity rules to DBS 

but only in extremely limited situations 

that are not equivalent to their 

application to cable systems. See 47 

U.S.C. 339(b)(1) (applying network nonduplication protection and syndicated 

exclusivity protection only to 

‘‘nationally distributed superstations,’’ 

which are defined so that they are 

limited to six stations); 47 U.S.C. 

339(d)(2). See also Implementation of 

the Satellite Home Viewer Improvement 

Act of 1999: Application of Network 

Nonduplication, Syndicated Exclusivity, 

and Sports Blackout Rules to Satellite 

Retransmissions of Broadcast Signals, 

65 FR 68082, November 14, 2000 

(SHVIA Exclusivity Rules Order). In 

contrast, the cable network nonduplication rules may apply to any 

station broadcasting network 

programming. See 47 CFR 76.92(a) and 

76.93 (subject to geographic limitations 

and exemptions based on the cable 

system’s size or a station’s ‘‘significantly 

viewed’’ status, §§ 76.92(f) and 76.95(a) 

of the Commission’s rules). See also 47 

CFR 76.101 and 76.106 (governing 

syndicated exclusivity). As specified in 

SHVIA, the Commission’s rules apply 

the exclusivity requirements only to 

‘‘nationally distributed superstations.’’ 

See SHVIA Exclusivity Rules Order. We 

do not propose to eliminate or revise 

these statutorily mandated rules. In 

SHVERA, Congress permitted DBS to 

carry out-of-market significantly viewed 

stations (currently, 17 U.S.C. 122(a)(2) 

and 47 U.S.C. 340) and applied the 

exclusivity rules insofar as local stations 

could challenge the significantly viewed 

status of the out-of-market station and 

thus prevent its carriage, just as in the 

cable context. See Implementation of 

the Satellite Home Viewer Extension 

and Reauthorization Act of 2004, 

Implementation of Section 340 of the 

Communications Act, 70 FR 76504, 

December 27, 2005 (SHVERA 

Significantly Viewed Report and Order). 

(SV status is an exception to the 

network non-duplication rules. 47 CFR 

76.92(f). SHVERA provided that if a 

station was to be carried out-of-market 

as a SV station, it would be subject to 

the rules allowing an in-market station 

to assert network non-duplication to 

prevent carriage of the SV station if it 

demonstrated that the SV status was no 

longer valid. See SHVERA Significantly 

Viewed Report and Order. Thus, for 

DBS, if a station is demonstrated to no 

longer be significantly viewed, it is not 

eligible for carriage as an out-of-market 

SV station. We do not propose to change 

this result.) We seek comment on 

whether and, if so, how, this limited 

application of the exclusivity rules 

would apply to DBS if we eliminate the 

rules as they apply to cable and whether 

eliminating rules as to cable systems 

would create undue disparities or 

unintended consequences for DBS. We 

also seek comment on whether new 

rules would be needed to permit local 

stations to challenge the significantly 

viewed status of an out-of-market 

station if the network non-duplication 

rules are revised or eliminated. 

F. Other Proposals 

46. We seek comment on whether 

there are other actions the Commission 

should take either to revise its existing 

rules or adopt new rules in order to 

protect consumers from harm as a result 

of impasses or threatened impasses in 

retransmission consent negotiations. 

Commenters advocating rule revisions 

or additions should address the 

Commission’s authority to adopt their 

proposals. 

IV. Conclusion 

47. In conclusion, in this NPRM, we 

seek comment on proposed changes to 

our rules to provide greater certainty to 

parties engaged in retransmission 

consent negotiations and to better 

protect consumers from the uncertainty 

and disruption that they may experience 

when such negotiations fail to yield an 

agreement. 

V. Procedural Matters 

A. Initial Regulatory Flexibility Act 

Analysis 

48. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA) the Commission has prepared this 

present Initial Regulatory Flexibility 

Analysis (IRFA) concerning the possible 

significant economic impact on small 

entities by the policies and rules 

proposed in this Notice of Proposed 

Rulemaking (NPRM). See 5 U.S.C. 603. 

The RFA, see 5 U.S.C. 601–612, has 

been amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), Public Law 104–121, 

Title II, 110 Stat. 857 (1996). Written 

public comments are requested on this 

IRFA. Comments must be identified as 

responses to the IRFA and must be filed 

in accordance with the same filing 

deadlines for comments on the NPRM. 

The Commission will send a copy of the 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA). See 5 

U.S.C. 603(a). In addition, the NPRM 

and IRFA (or summaries thereof) will be 

published in the Federal Register. See 

id. 

Need for, and Objectives of, the 

Proposed Rule Changes 

49. The NPRM seeks comment on a 

series of proposals to streamline and 

clarify the Commission’s rules 

concerning or affecting retransmission 

consent negotiations. The Commission’s 

primary objective is to assess whether 

and how the Commission rules in this 

arena are ensuring that the market-based 

mechanisms Congress designed to 

govern retransmission consent 

negotiations are working effectively and, 

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to the extent possible, minimize video 

programming service disruptions to 

consumers. 

50. Since Congress enacted the 

retransmission consent regime in 1992, 

there have been significant changes in 

the video programming marketplace. 

One such change is the form of 

compensation sought by broadcasters. 

Historically, cable operators typically 

compensated broadcasters for consent to 

retransmit the broadcasters’ signals 

through in-kind compensation, which 

might include, for example, carriage of 

additional channels of the broadcaster’s 

programming on the cable system or 

advertising time. See, e.g., General 

Motors Corp. and Hughes Electronics 

Corp., Transferors, and The News Corp. 

Ltd., Transferee, Memorandum Opinion 

and Order, 19 FCC Rcd 473, 503, para. 

56 (2004). Today, however, broadcasters 

are increasingly seeking and receiving 

monetary compensation from 

multichannel video programming 

distributors (MVPDs) in exchange for 

consent to the retransmission of their 

signals. Another important change 

concerns the rise of competitive video 

programming providers. In 1992, the 

only option for many local broadcast 

television stations seeking to reach 

MVPD customers in a particular 

Designated Market Area (DMA) was a 

single local cable provider. Today, in 

contrast, many consumers have 

additional options for receiving 

programming, including two national 

direct broadcast satellite (DBS) 

providers, telephone providers that offer 

video programming in some areas, and, 

to a degree, the Internet. One result of 

such changes in the marketplace is that 

disputes over retransmission consent 

have become more contentious and 

more public, and we recently have seen 

a rise in negotiation impasses that have 

affected millions of consumers. 

51. Accordingly, we have concluded 

that it is appropriate for us to reexamine 

our rules relating to retransmission 

consent. In the NPRM, we consider 

revisions to the retransmission consent 

and related rules that we believe could 

allow the market-based negotiations 

contemplated by the statute to proceed 

more smoothly, provide greater 

certainty to the negotiating parties, and 

help protect consumers. Accordingly, 

the NPRM seeks comment on rule 

changes that would: 

• Provide more guidance under the 

good faith negotiation requirements to 

the negotiating parties by: 

Æ Specifying additional examples of 

per se violations in § 76.65(b)(1) of the 

Commission’s rules; and 

Æ Further clarifying the totality of the 

circumstances standard of § 76.65(b)(2) 

of the Commission’s rules; 

• Improve notice to consumers in 

advance of possible service disruptions 

by extending the coverage of our notice 

rules to non-cable MVPDs and 

broadcasters as well as cable operators, 

and specifying that, if a renewal or 

extension agreement has not been 

executed 30 days in advance of a 

retransmission consent agreement’s 

expiration, notice of potential deletion 

of a broadcaster’s signal must be given 

to consumers regardless of whether the 

signal is ultimately deleted; 

• Extend to non-cable MVPDs the 

prohibition now applicable to cable 

operators on deleting or repositioning a 

local commercial television station 

during ratings ‘‘sweeps’’ periods; and 

• Allow MVPDs to negotiate for 

alternative access to network 

programming by eliminating the 

Commission’s network non-duplication 

and syndicated exclusivity rules. 

We also seek comment on any other 

revisions or additions to our rules 

within the scope of our authority that 

would improve the retransmission 

consent negotiation process and help 

protect consumers from programming 

disruptions. 

Legal Basis 

52. The proposed action is authorized 

pursuant to sections 4(i), 4(j), 301, 

303(r), 303(v), 307, 309, 325, 335, and 

614 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 154(j), 

301, 303(r), 303(v), 307, 309, 325, 335, 

and 534. 

Description and Estimate of the Number 

of Small Entities to Which the Proposed 

Rules Will Apply 

53. 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, if adopted. 5 U.S.C. 

603(b)(3). The RFA generally defines the 

term ‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’ 

‘‘small organization,’’ and ‘‘small 

governmental jurisdiction.’’ 5 U.S.C. 

601(6). In addition, the term ‘‘small 

business’’ has the same meaning as the 

term ‘‘small business concern’’ under the 

Small Business Act. 5 U.S.C. 601(3) 

(incorporating by reference the 

definition of ‘‘small business concern’’ 

in 15 U.S.C. 632). 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 Small 

Business Administration 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.’’ 5 U.S.C. 601(3). 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 SBA. 15 U.S.C. 632. 

Application of the statutory criteria of 

dominance in its field of operation and 

independence are sometimes difficult to 

apply in the context of broadcast 

television. Accordingly, the 

Commission’s statistical account of 

television stations may be overinclusive. Below, we provide a 

description of such small entities, as 

well as an estimate of the number of 

such small entities, where feasible. 

54. Wired Telecommunications 

Carriers. The 2007 North American 

Industry Classification System (NAICS) 

defines ‘‘Wired Telecommunications 

Carriers’’ as follows: ‘‘This industry 

comprises establishments primarily 

engaged in operating and/or providing 

access to transmission facilities and 

infrastructure that they own and/or 

lease for the transmission of voice, data, 

text, sound, and video using wired 

telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services; wired 

(cable) audio and video programming 

distribution; and wired broadband 

Internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

U.S. Census Bureau, 2007 NAICS 

Definitions, ‘‘517110 Wired 

Telecommunications Carriers’’; http:// 

www.census.gov/naics/2007/def/ 

ND517110.HTM#N517110. The SBA has 

developed a small business size 

standard for wireline firms within the 

broad economic census category, ‘‘Wired 

Telecommunications Carriers.’’ 13 CFR 

121.201 (NAICS code 517110). Under 

this category, the SBA deems a wireline 

business to be small if it has 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

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more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

55. Cable Television Distribution 

Services. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

Telecommunications Carriers; that 

category is defined above. The SBA has 

developed a small business size 

standard for this category, which is: All 

such firms having 1,500 or fewer 

employees. Census Bureau data for 

2007, which now supersede data from 

the 2002 Census, show that there were 

3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

56. Cable Companies and Systems. 

The Commission has also developed its 

own small business size standards, for 

the purpose of cable rate regulation. 

Under the Commission’s rules, a ‘‘small 

cable company’’ is one serving 400,000 

or fewer subscribers, nationwide. 47 

CFR 76.901(e). Industry data indicate 

that, of 1,076 cable operators 

nationwide, all but eleven are small 

under this size standard. In addition, 

under the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. 47 CFR 76.901(c). 

Industry data indicate that, of 7,208 

systems nationwide, 6,139 systems have 

under 10,000 subscribers, and an 

additional 379 systems have 10,000– 

19,999 subscribers. Thus, under this 

standard, most cable systems are small. 

57. Cable System Operators. The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1 percent of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000.’’ 47 

U.S.C. 543(m)(2); see 47 CFR 76.901(f) & 

nn. 1–3. The Commission has 

determined that an operator serving 

fewer than 677,000 subscribers shall be 

deemed a small operator, if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. 47 CFR 76.901(f); see FCC 

Announces New Subscriber Count for 

the Definition of Small Cable Operator, 

Public Notice, 16 FCC Rcd 2225 (Cable 

Services Bureau 2001). Industry data 

indicate that, of 1,076 cable operators 

nationwide, all but ten are small under 

this size standard. We note that the 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million, and therefore we 

are unable to estimate more accurately 

the number of cable system operators 

that would qualify as small under this 

size standard. 

58. Direct Broadcast Satellite (DBS) 

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic ‘‘dish’’ 

antenna at the subscriber’s location. 

DBS, by exception, is now included in 

the SBA’s broad economic census 

category, ‘‘Wired Telecommunications 

Carriers’’ (see 13 CFR 121.201, NAICS 

code 517110 (2007)), which was 

developed for small wireline firms. 

Under this category, the SBA deems a 

wireline business to be small if it has 

1,500 or fewer employees. 13 CFR 

121.201, NAICS code 517110 (2007). 

Census Bureau data for 2007, which 

now supersede data from the 2002 

Census, show that there were 3,188 

firms in this category that operated for 

the entire year. Of this total, 3,144 had 

employment of 999 or fewer, and 44 

firms had had employment of 1,000 

employees or more. Thus under this 

category and the associated small 

business size standard, the majority of 

these firms can be considered small. See 

http://factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. Currently, only two entities 

provide DBS service, which requires a 

great investment of capital for operation: 

DIRECTV and EchoStar 

Communications Corporation (EchoStar) 

(marketed as the DISH Network). Each 

currently offers subscription services. 

DIRECTV and EchoStar each report 

annual revenues that are in excess of the 

threshold for a small business. Because 

DBS service requires significant capital, 

we believe it is unlikely that a small 

entity as defined by the SBA would 

have the financial wherewithal to 

become a DBS service provider. 

59. Satellite Master Antenna 

Television (SMATV) Systems, also 

known as Private Cable Operators 

(PCOs). SMATV systems or PCOs are 

video distribution facilities that use 

closed transmission paths without using 

any public right-of-way. They acquire 

video programming and distribute it via 

terrestrial wiring in urban and suburban 

multiple dwelling units such as 

apartments and condominiums, and 

commercial multiple tenant units such 

as hotels and office buildings. SMATV 

systems or PCOs are now included in 

the SBA’s broad economic census 

category, ‘‘Wired Telecommunications 

Carriers,’’ (see 13 CFR 121.201, NAICS 

code 517110 (2007)) which was 

developed for small wireline firms. 

Under this category, the SBA deems a 

wireline business to be small if it has 

1,500 or fewer employees. 13 CFR 

121.201, NAICS code 517110 (2007). 

Census Bureau data for 2007, which 

now supersede data from the 2002 

Census, show that there were 3,188 

firms in this category that operated for 

the entire year. Of this total, 3,144 had 

employment of 999 or fewer, and 44 

firms had had employment of 1,000 

employees or more. Thus under this 

category and the associated small 

business size standard, the majority of 

these firms can be considered small. See 

http://factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

60. Home Satellite Dish (HSD) 

Service. HSD or the large dish segment 

of the satellite industry is the original 

satellite-to-home service offered to 

consumers, and involves the home 

reception of signals transmitted by 

satellites operating generally in the Cband frequency. Unlike DBS, which 

uses small dishes, HSD antennas are 

between four and eight feet in diameter 

and can receive a wide range of 

unscrambled (free) programming and 

scrambled programming purchased from 

program packagers that are licensed to 

facilitate subscribers’ receipt of video 

programming. Because HSD provides 

subscription services, HSD falls within 

the SBA-recognized definition of Wired 

Telecommunications Carriers. 13 CFR 

121.201, NAICS code 517110 (2007). 

The SBA has developed a small 

business size standard for this category, 

which is: all such firms having 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

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fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

61. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). In connection with the 1996 

BRS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of no more than 

$40 million in the previous three 

calendar years. 47 CFR 21.961(b)(1). The 

BRS auctions resulted in 67 successful 

bidders obtaining licensing 

opportunities for 493 Basic Trading 

Areas (BTAs). Of the 67 auction 

winners, 61 met the definition of a small 

business. BRS also includes licensees of 

stations authorized prior to the auction. 

At this time, we estimate that of the 61 

small business BRS auction winners, 48 

remain small business licensees. In 

addition to the 48 small businesses that 

hold BTA authorizations, there are 

approximately 392 incumbent BRS 

licensees that are considered small 

entities. 47 U.S.C. 309(j). Hundreds of 

stations were licensed to incumbent 

MDS licensees prior to implementation 

of section 309(j) of the Communications 

Act of 1934, 47 U.S.C. 309(j). For these 

pre-auction licenses, the applicable 

standard is SBA’s small business size 

standard of 1500 or fewer employees. 

After adding the number of small 

business auction licensees to the 

number of incumbent licensees not 

already counted, we find that there are 

currently approximately 440 BRS 

licensees that are defined as small 

businesses under either the SBA or the 

Commission’s rules. In 2009, the 

Commission conducted Auction 86, the 

sale of 78 licenses in the BRS areas. The 

Commission offered three levels of 

bidding credits: (i) A bidder with 

attributed average annual gross revenues 

that exceed $15 million and do not 

exceed $40 million for the preceding 

three years (small business) will receive 

a 15 percent discount on its winning 

bid; (ii) a bidder with attributed average 

annual gross revenues that exceed $3 

million and do not exceed $15 million 

for the preceding three years (very small 

business) will receive a 25 percent 

discount on its winning bid; and (iii) a 

bidder with attributed average annual 

gross revenues that do not exceed $3 

million for the preceding three years 

(entrepreneur) will receive a 35 percent 

discount on its winning bid. Auction 86 

concluded in 2009 with the sale of 61 

licenses. Of the ten winning bidders, 

two bidders that claimed small business 

status won 4 licenses; one bidder that 

claimed very small business status won 

three licenses; and two bidders that 

claimed entrepreneur status won six 

licenses. 

62. In addition, the SBA’s Cable 

Television Distribution Services small 

business size standard is applicable to 

EBS. There are presently 2,032 EBS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions are included in 

this analysis as small entities. The term 

‘‘small entity’’ within SBREFA applies to 

small organizations (nonprofits) and to 

small governmental jurisdictions (cities, 

counties, towns, townships, villages, 

school districts, and special districts 

with populations of less than 50,000). 5 

U.S.C. 601(4) through (6). We do not 

collect annual revenue data on EBS 

licensees. Thus, we estimate that at least 

1,932 licensees are small businesses. 

Since 2007, Cable Television 

Distribution Services have been defined 

within the broad economic census 

category of Wired Telecommunications 

Carriers; that category is defined as 

follows: ‘‘This industry comprises 

establishments primarily engaged in 

operating and/or providing access to 

transmission facilities and infrastructure 

that they own and/or lease for the 

transmission of voice, data, text, sound, 

and video using wired 

telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ U.S. Census Bureau, 2007 

NAICS Definitions, ‘‘517110 Wired 

Telecommunications Carriers,’’ (partial 

definition), http://www.census.gov/ 

naics/2007/def/ 

ND517110.HTM#N517110. The SBA has 

developed a small business size 

standard for this category, which is: All 

such firms having 1,500 or fewer 

employees. Census Bureau data for 

2007, which now supersede data from 

the 2002 Census, show that there were 

3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

63. Fixed Microwave Services. 

Microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. They 

also include the Local Multipoint 

Distribution Service (LMDS), the Digital 

Electronic Message Service (DEMS), and 

the 24 GHz Service, where licensees can 

choose between common carrier and 

non-common carrier status. See 47 CFR 

101.533 and 101.1017. At present, there 

are approximately 31,428 common 

carrier fixed licensees and 79,732 

private operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services. There are 

approximately 120 LMDS licensees, 

three DEMS licensees, and three 24 GHz 

licensees. The Commission has not yet 

defined a small business with respect to 

microwave services. For purposes of the 

IRFA, we will use the SBA’s definition 

applicable to Wireless 

Telecommunications Carriers (except 

satellite)—i.e., an entity with no more 

than 1,500 persons. 13 CFR 121.201, 

NAICS code 517210. Under the present 

and prior categories, the SBA has 

deemed a wireless business to be small 

if it has 1,500 or fewer employees. 13 

CFR 121.201, NAICS code 517210 (2007 

NAICS). The now-superseded, pre-2007 

CFR citations were 13 CFR 121.201, 

NAICS codes 517211 and 517212 

(referring to the 2002 NAICS). For the 

category of Wireless 

Telecommunications Carriers (except 

Satellite), Census data for 2007, which 

supersede data contained in the 2002 

Census, show that there were 1,383 

firms that operated that year. U.S. 

Census Bureau, 2007 Economic Census, 

Sector 51, 2007 NAICS code 517210 (rel. 

Oct. 20, 2009), http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&-geo_id=&- 

fds_name=EC0700A1&-_skip=700&- 

ds_name=EC0751SSSZ5&-_lang=en. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. We note 

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that the number of firms does not 

necessarily track the number of 

licensees. We estimate that virtually all 

of the Fixed Microwave licensees 

(excluding broadcast auxiliary 

licensees) would qualify as small 

entities under the SBA definition. 

64. Open Video Systems. The open 

video system (OVS) framework was 

established in 1996, and is one of four 

statutorily recognized options for the 

provision of video programming 

services by local exchange carriers. 47 

U.S.C. 571(a)(3) through (4). The OVS 

framework provides opportunities for 

the distribution of video programming 

other than through cable systems. 

Because OVS operators provide 

subscription services, OVS falls within 

the SBA small business size standard 

covering cable services, which is ‘‘Wired 

Telecommunications Carriers.’’ U.S. 

Census Bureau, 2007 NAICS 

Definitions, ‘‘517110 Wired 

Telecommunications Carriers’’; http:// 

www.census.gov/naics/2007/def/ 

ND517110.HTM#N517110. The SBA has 

developed a small business size 

standard for this category, which is: All 

such firms having 1,500 or fewer 

employees. Census Bureau data for 

2007, which now supersede data from 

the 2002 Census, show that there were 

3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. In addition, we note that the 

Commission has certified some OVS 

operators, with some now providing 

service. A list of OVS certifications may 

be found at http://www.fcc.gov/mb/ovs/ 

csovscer.html. Broadband service 

providers (BSPs) are currently the only 

significant holders of OVS certifications 

or local OVS franchises. The 

Commission does not have financial or 

employment information regarding the 

entities authorized to provide OVS, 

some of which may not yet be 

operational. Thus, at least some of the 

OVS operators may qualify as small 

entities. 

65. Cable and Other Subscription 

Programming. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating studios 

and facilities for the broadcasting of 

programs on a subscription or fee basis. 

* * * These establishments produce 

programming in their own facilities or 

acquire programming from external 

sources. The programming material is 

usually delivered to a third party, such 

as cable systems or direct-to-home 

satellite systems, for transmission to 

viewers.’’ U.S. Census Bureau, 2007 

NAICS Definitions, ‘‘515210 Cable and 

Other Subscription Programming’’; 

http://www.census.gov/naics/2007/def/ 

ND515210.HTM#N515210. To gauge 

small business prevalence in the Cable 

and Other Subscription Programming 

industries, the Commission relies on 

data currently available from the U.S. 

Census for the year 2007. According to 

that source, which supersedes data from 

the 2002 Census, there were 396 firms 

that in 2007 were engaged in production 

of Cable and Other Subscription 

Programming. Of these, 386 operated 

with less than 1,000 employees, and 10 

operated with more than 1,000 

employees. However, as to the latter 10 

there is no data available that shows 

how many operated with more than 

1,500 employees. Thus, under this 

category and associated small business 

size standard, the majority of firms can 

be considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

66. Small Incumbent Local Exchange 

Carriers. We have included small 

incumbent local exchange carriers in 

this present RFA analysis. A ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ 15 

U.S.C. 632. The SBA’s Office of 

Advocacy contends that, for RFA 

purposes, small incumbent local 

exchange carriers are not dominant in 

their field of operation because any such 

dominance is not ‘‘national’’ in scope. 

We have therefore included small 

incumbent local exchange carriers in 

this RFA analysis, although we 

emphasize that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

67. Incumbent Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a small 

business size standard specifically for 

incumbent local exchange services. The 

appropriate size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

13 CFR 121.201 (2007 NAICS code 

517110). Census Bureau data for 2007, 

which now supersede data from the 

2002 Census, show that there were 

3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. 

68. Competitive Local Exchange 

Carriers, Competitive Access Providers 

(CAPs), ‘‘Shared-Tenant Service 

Providers,’’ and ‘‘Other Local Service 

Providers.’’ Neither the Commission nor 

the SBA has developed a small business 

size standard specifically for these 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. 13 CFR 121.201 (2007 

NAICS code 517110). Census Bureau 

data for 2007, which now supersede 

data from the 2002 Census, show that 

there were 3,188 firms in this category 

that operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these firms can be 

considered small. See http:// 

factfinder.census.gov/servlet/ 

IBQTable?_bm=y&- 

fds_name=EC0700A1&-geo_id=&- 

_skip=600&-ds_name=EC0751SSSZ5&- 

_lang=en. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities. 

69. Television Broadcasting. The SBA 

defines a television broadcasting station 

as a small business if such station has 

no more than $14.0 million in annual 

receipts. See 13 CFR 121.201, NAICS 

Code 515120 (2007). Business concerns 

included in this industry are those 

‘‘primarily engaged in broadcasting 

images together with sound.’’ Id. The 

Commission has estimated the number 

of licensed commercial television 

stations to be 1,392. See News Release, 

‘‘Broadcast Station Totals as of 

December 31, 2009,’’ 2010 WL 676084 

(F.C.C.) (dated Feb. 26, 2010) (Broadcast 

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Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 17087 

Station Totals); also available at http:// 

hraunfoss.fcc.gov/edocs_public/ 

attachmatch/DOC–296538A1.pdf. 

According to Commission staff review 

of the BIA/Kelsey, MAPro Television 

Database (BIA) as of April 7, 2010, about 

1,015 of an estimated 1,380 commercial 

television stations (or about 74 percent) 

have revenues of $14 million or less 

and, thus, qualify as small entities 

under the SBA definition. The 

Commission has estimated the number 

of licensed noncommercial educational 

(NCE) television stations to be 390. See 

Broadcast Station Totals, supra. We 

note, however, that, in assessing 

whether a business concern qualifies as 

small under the above definition, 

business (control) affiliations must be 

included. Our estimate, therefore, likely 

overstates the number of small entities 

that might be affected by our action, 

because the revenue figure on which it 

is based does not include or aggregate 

revenues from affiliated companies. The 

Commission does not compile and 

otherwise does not have access to 

information on the revenue of NCE 

stations that would permit it to 

determine how many such stations 

would qualify as small entities. 

70. In addition, 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 estimate 

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. Also, as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

71. Certain proposed rule changes 

discussed in the NPRM would affect 

reporting, recordkeeping or other 

compliance requirements. Specifically, 

a potential rule change would (1) revise 

the Commission’s notice rules to specify 

that, if a renewal or extension agreement 

has not been executed 30 days in 

advance of a retransmission consent 

agreement’s expiration, notice of 

potential deletion of a broadcaster’s 

signal must be given to consumers 

regardless of whether the signal is 

ultimately deleted; and (2) extend the 

coverage of this notice rule to non-cable 

MVPDs and broadcasters. 

Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

72. 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 

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. 5 U.S.C. 603(c)(1) 

through (c)(4). 

73. As discussed in the NPRM, our 

goal in this proceeding is to take 

appropriate action, within our existing 

authority, to protect consumers from the 

disruptive impact of the loss of 

broadcast programming carried on 

MVPD video services. The specific 

changes on which we seek comment are 

intended to allow the market-based 

negotiations contemplated by the statute 

to proceed more smoothly, provide 

greater certainty to the negotiating 

parties, and help protect consumers. 

The improved successful completion of 

retransmission consent negotiations 

would benefit both broadcasters and 

MVPDs, including those that are smaller 

entities, as well as MVPD subscribers. 

Thus, the proposed rules would benefit 

smaller entities as well as larger entities. 

For this reason, an analysis of 

alternatives to the proposed rules is 

unnecessary. Further, we note that in its 

discussion of whether there are any 

additional actions or practices that 

should be deemed to constitute per se 

violations of a negotiating entity’s duty 

to negotiate retransmission consent 

agreements in good faith, the 

Commission specifically references a 

proposal to permit small and mid-size 

MVPDs to ‘‘pool their resources, appoint 

an agent, and negotiate as a group.’’ 

Such a proposal would provide 

particular benefit to small entities. The 

NPRM further considers the impact of 

retransmission consent on small entities 

by asking whether small and new 

entrant MVPDs are typically forced to 

accept retransmission consent terms 

that are less favorable than larger or 

more established MVPDs, and if so, 

whether this is fair. 

74. We invite comment on whether 

there are any alternatives we should 

consider to our proposed modifications 

to rules that apply to or affect 

retransmission consent negotiations that 

would minimize any adverse impact on 

small businesses, but which maintain 

the benefits of our proposals. 

Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

75. None. 

B. Ex Parte Rules 

76. Permit-But-Disclose. This 

proceeding will be treated as a ‘‘permitbut-disclose’’ proceeding subject to the 

‘‘permit-but-disclose’’ requirements 

under § 1.1206(b) of the Commission’s 

rules. See 47 CFR 1.1206(b); see also id. 

§§ 1.1202 and 1.1203 of the 

Commission’s rules. Ex parte 

presentations are permissible if 

disclosed in accordance with 

Commission rules, except during the 

Sunshine Agenda period when 

presentations, ex parte or otherwise, are 

generally prohibited. Persons making 

oral ex parte presentations are reminded 

that a memorandum summarizing a 

presentation must contain a summary of 

the substance of the presentation and 

not merely a listing of the subjects 

discussed. More than a one- or twosentence description of the views and 

arguments presented is generally 

required. See id. § 1.1206(b)(2) of the 

Commission’s rules. Additional rules 

pertaining to oral and written 

presentations are set forth in § 1.1206(b) 

of the Commission’s rules. 

C. Filing Requirements 

77. Comments and Replies. Pursuant 

to §§ 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415 and 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated in the DATES 

section of this document. To the extent 

any filings in response to this NPRM 

relate to issues pending in MB Docket 

No. 07–198, where the Commission 

sought comment on the issue of tying of 

an MVPD’s rights to carry broadcast 

stations with carriage of other owned or 

affiliated broadcast stations in the same 

or a distant market or one or more 

affiliated non-broadcast networks, they 

must also be filed in MB Docket No. 07– 

198. Comments may be filed using: (1) 

The Commission’s Electronic Comment 

Filing System (ECFS), (2) the Federal 

Government’s eRulemaking Portal, or (3) 

by filing paper copies. See Electronic 

Filing of Documents in Rulemaking 

Proceedings, 63 FR 24121, May 1, 1998. 

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17088 Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

Æ All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St., SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. The filing hours 

are 8 a.m. to 7 p.m. 

Æ Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

Æ U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

78. Availability of Documents. 

Comments, reply comments, and ex 

parte submissions will be available for 

public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street, SW., CY– 

A257, Washington, DC 20554. These 

documents will also be available via 

ECFS. Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. 

79. Accessibility Information. To 

request information in accessible 

formats (computer diskettes, large print, 

audio recording, and Braille), send an email to fcc504@fcc.gov or call the FCC’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). This document can 

also be downloaded in Word and 

Portable Document Format (PDF) at: 

http://www.fcc.gov. 

80. Additional Information. For 

additional information on this 

proceeding, contact Diana Sokolow, 

Diana.Sokolow@fcc.gov, of the Media 

Bureau, Policy Division, (202) 418– 

2120. 

VI. Ordering Clauses 

81. Accordingly, it is ordered that 

pursuant to the authority contained in 

sections 4(i), 4(j), 301, 303(r), 303(v), 

307, 309, 325, 335, and 614 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 154(j), 301, 

303(r), 303(v), 307, 309, 325, 335, and 

534, this Notice of Proposed 

Rulemaking is adopted. 

82. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 76 

Administrative practice and 

procedure, Cable television, Equal 

employment opportunity, Political 

candidates, and Reporting and 

recordkeeping requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 76 as follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

1. The authority citation for part 76 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 302a, 303, 303a, 307, 308, 309, 312, 

315, 317, 325, 339, 340, 341, 503, 521, 522, 

531, 532, 534, 535, 536, 537, 543, 544, 544a, 

545, 548, 549, 552, 554, 556, 558, 560, 561, 

571, 572, 573. 

2. Amend § 76.65 by revising 

paragraph (b)(1)(iv) and by adding 

paragraphs (b)(1)(viii) through (x) to 

read as follows: 

§ 76.65 Good faith and exclusive 

retransmission consent complaints. 

* * * * * 

(b) * * * 

(1) * * * 

(iv) Refusal by a Negotiating Entity to 

put forth more than a single, unilateral 

proposal, or to provide a bona fide 

proposal on an important issue; 

* * * * * 

(viii) Agreement by a broadcast 

television station Negotiating Entity to 

provide a network with which it is 

affiliated the right to approve the 

station’s retransmission consent 

agreement with an MVPD; 

(ix) Agreement by a broadcast 

television station Negotiating Entity to 

grant another station or station group 

the right to negotiate or the power to 

approve its retransmission consent 

agreement when the stations are not 

commonly owned; and 

(x) Refusal by a Negotiating Entity to 

agree to non-binding mediation when 

the parties reach an impasse within 30 

days of the expiration of their 

retransmission consent agreement. 

* * * * * 

3. Revise § 76.1601 to read as follows: 

§ 76.1601 Deletion or repositioning of 

broadcast signals. 

(a) Effective April 2, 1993, a cable 

operator shall provide written notice to 

any broadcast television station at least 

30 days prior to either deleting from 

carriage or repositioning that station. 

Such notification shall also be provided 

to subscribers of the cable system. 

Note 1 to § 76.1601(a): 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. 

For this purpose, such periods are the four 

national four-week ratings periods—generally 

including February, May, July and 

November—commonly known as audience 

sweeps. 

(b) Broadcast television stations and 

multichannel video programming 

distributors shall notify affected 

subscribers of the potential deletion of 

a broadcaster’s signal a minimum of 30 

days in advance of a retransmission 

consent agreement’s expiration, unless a 

renewal or extension agreement has 

been executed. 

[FR Doc. 2011–7250 Filed 3–25–11; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 680 

[Docket No. 0910301387–91390–01] 

RIN 0648–AY33 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Crab Rationalization 

Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

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