U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–010 

" ! SENATE 108TH CONGRESS

2d Session 

REPORT

2004

108–427 

Calendar No. 815 

SATELLITE HOME VIEWER EXTENSION AND 

RURAL CONSUMER ACCESS TO DIGITAL 

TELEVISION ACT OF 2004 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2644 

DECEMBER 7, 2004.—Ordered to be printed 


congress.#13
(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK LAUTENBERG, New Jersey 

JEANNE BUMPUS, Staff Director and General Counsel 

ROB FREEMAN, Deputy Staff Director 

SAMUEL WHITEHORN, Democratic Staff Director and Chief Counsel 

MARGARET SPRING, Democratic Senior Counsel 

Calendar No. 815 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–427 

SATELLITE HOME VIEWER EXTENSION AND RURAL CONSUMER ACCESS TO DIGITAL TELEVISION ACT OF 2004 

DECEMBER 7, 2004.—Ordered to be printed 

Mr. MCCAIN, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2644] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2644) to amend the Communications 

Act of 1934 with respect to the carriage of direct broadcast satellite 

television signals by satellite carriers to consumers in rural areas, 

and for other purposes, having considered the same, reports favorably thereon with an amendment (in the nature of a substitute) 

and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

The purpose of S. 2644 the ‘‘Satellite Home Viewer Extension 

and Rural Consumer Access to Digital Television Act of 2004’’ is to 

ensure that rural consumers continue to have access to the same 

quality of broadcast television signals, including access to high definition, digital signals, as those enjoyed by urban consumers. 

BACKGROUND AND NEED

Direct Broadcast Satellite (DBS), which first became commercially available in the early 1990s, has become the most significant 

national competitor to cable with almost 22 percent of the multichannel video program distribution (MVPD) market. In 1988, Congress enacted the Satellite Home Viewer Act (SHVA), which first 

allowed home viewers to receive broadcast television through the 

use of satellite dishes. In 1999, Congress expanded and extended 

SHVA by enacting the Satellite Home Viewer Improvement Act 

(SHVIA). The goal of SHVIA was to place satellite carriers on an 

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equal footing with cable operators to provide local broadcast programming to consumers, and thus give consumers more choices in 

selecting a MVPD. SHVIA offers consumers greater access to both 

local and distant broadcast signals, by allowing DBS companies to 

retransmit local broadcast signals into the same local market and 

to import distant broadcast signals for subscribers unable to receive a local broadcast signal. The principal provisions of SHVIA 

that allow the lawful importation of distant network signals are set 

to expire at the end of 2004. This bill is necessary to maintain 

these provisions, including the continued availability of distant 

broadcast signals to rural consumers. 

LEGISLATIVE HISTORY

On May 4, 2004, the Senate Commerce, Science, and Transportation Committee held a hearing on the reauthorization of the Satellite Home Viewers Improvement Act of 1999. Senators Ensign 

and McCain introduced S. 2644 on July 13, 2004. The Senate Commerce, Science, and Transportation Committee held an executive 

session on July 22, 2004 at which S. 2644 was considered. The bill 

was approved by voice vote and was ordered reported with amendments. The only amendment was an amendment in the nature of 

a substitute offered by Senators Ensign and McCain. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 2644—Satellite Home Viewer Extension and Rural Consumer Access to Digital Television Act of 2004 

Summary: S. 2644 would amend current law relating to satellite 

retransmission of television broadcasting. CBO estimates that enacting only the provisions of S. 2644 would not affect direct spending or revenues. If the authority to collect and distribute copyright 

royalties for satellite retransmission were extended by subsequent 

legislation, CBO estimates that enacting the bill (together with 

that extension) would affect direct spending and revenues, but by 

an insignificant amount. Implementing the bill would not have a 

significant effect on spending subject to appropriation. 

S. 2644 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would not affect 

the budgets of state, local, or tribal governments. 

S. 2644 would impose private-sector mandates as defined in 

UMRA on satellite companies and television network stations. CBO 

estimates that the aggregate cost of those mandates would not exceed the annual threshold for private-sector mandates established 

by UMRA ($120 million in 2004, adjusted annually for inflation). 

Estimated cost to the Federal Government: Under current law, 

the use of certain copyrighted material by the public is governed 

by the terms of a compulsory license. Users of copyrighted material 

do not need specific permission from owners to use material with 

a compulsory license but must pay royalties and abide by certain 

conditions when using the material. The federal Copyright Office 

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collects royalties from users of material subject to compulsory licenses and then later distributes the royalties to owners of copyrighted works using guidelines agreed upon in private negotiations 

between users and owners of copyrighted work. Receipts of royalties from users of copyrighted material are recorded in the budget 

as federal revenues, and the distributions to copyright owners are 

recorded as federal spending. 

S. 2644 would extend current law to allow satellite companies to 

use copyrighted material without specific permission from copyright owners but would not extend the requirement for satellite 

companies to pay royalties in exchange for the use of such material. Under current law, the requirement to pay royalties will expire on December 31, 2004. Several provisions in S. 2644 would 

make changes affecting royalties collected and distributed for satellite transmissions; however, without extending the requirement 

for satellite companies to pay royalties for use of copyrighted material, those changes would have no effect on the budget after December 31, 2004. 

As a result, CBO estimates that enacting S. 2644 by itself would 

have no effect on revenues or direct spending from enactment 

through 2014. If the Congress extends royalty requirements for satellite retransmission of broadcast signals at the rate effective under 

current law, CBO estimates that enacting the bill (together with 

that extension) would have an insignificant effect on direct spending and revenues. 

Basis of estimate: Under section 4, satellite subscribers who live 

in a ‘‘digital white area’’ (i.e., persons who cannot receive a local 

digital signal from broadcasters) could choose to receive digital signals for digital programming. As a result, some subscribers who do 

not receive a distant signal under current law would receive the 

signal under section 4 of the bill. Because satellite companies currently pay royalties for retransmitting distant signals, enacting section 4 would increase both revenues from royalty collections and 

payments to copyright owners. 

Neither the satellite industry nor the Federal Communications 

Commission has information regarding the number of satellite subscribers who are located in digital white areas as defined under 

section 4. For this estimate, CBO assumes that satellite subscribers in digital white areas would generally overlap with satellite subscribers in analog white areas. Under that assumption, 

any increase in copyright royalties from new digital transmissions 

would be offset by a decrease in copyright royalties from analog 

transmissions as satellite subscribers switch from analog to digital. 

Thus, CBO estimates that enacting section 4 would not have a significant effect on revenues or direct spending, even if the requirement to pay royalties were extended. 

S. 2644 would not make a number of other changes to current 

law regarding satellite subscribers’ eligibility to receive distant signals. CBO estimates that enacting those provisions would not have 

a significant effect on revenues or direct spending if the requirement to pay royalties were extended. 

Estimated impact on state, local, and tribal governments: S. 2644 

contains no intergovernmental mandates as defined in UMRA and 

would not affect the budgets of state, local, or tribal governments. 

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Estimated impact on the private sector: S. 2644 would impose 

private-sector mandates as defined in UMRA on satellite companies and television network stations. Specifically, the bill would impose mandates on satellite companies by requiring them to: • Reallocate their retransmission of local television channels 

to a single dish, • Retransmit a distant digital signal only if they retransmit 

a local analog signal in that same market and notify those customers that are receiving a distant digital signal when they 

are no longer eligible to receive those distant signals, • Notify subscribers of their privacy rights, • Provide the television network stations with a list of subscribers when those subscribers would no longer be eligible to 

receive a distant digital signal, and • Announce the sponsor of commercial or political advertising that originates with the satellite company. 

The bill also would require that the television network stations 

notify a satellite company when a household would no longer be eligible to receive a distant digital signal. 

CBO estimates that the aggregate cost of those mandates would 

not exceed the annual threshold for private-sector mandates established by UMRA ($120 million in 2004, adjusted annually for inflation). 

Carriage of local stations on a single dish 

Section 3 would require satellite companies to reallocate their retransmission of local television channels so that satellite subscribers could receive all of the local channels with only one satellite antenna (or satellite dish) and associated equipment. Local 

channels are those channels that can be received over the air with 

a conventional antenna and television set. The bill would provide 

an exception to this requirement in the case of local digital channels. It would allow satellite carriers to retransmit local digital 

channels to subscribers by means of a separate dish, if they transmit all local digital channels to the same dish. 

In many television markets, some subscribers to satellite service 

require two dishes to receive all the local channels. Many subscribers in those markets do not have a second dish and so do not 

receive some local channels. Satellite companies estimate that currently only 15 percent to 20 percent of subscribers nationally have 

two dishes, but that proportion of subscribers varies by market. 

The bill would require carriers to meet the retransmission requirements of section 3 within 18 months of enactment. Given that 

time frame, affected companies could comply with the mandate in 

one of two ways. First, satellite carriers could exit the market for 

retransmission of local channels. CBO expects that satellite companies would not abandon local service entirely because the affected 

companies would risk losing valuable customers to rival satellite 

companies and cable providers. Second, carriers could reallocate 

their satellite transmissions so that, in each market, subscribers 

received all their local channels from a single satellite. In some 

markets, receiving those local channels would require that the companies provide a second dish to subscribers. The largest cost facing 

affected companies would be the cost of installing those additional 

dishes. CBO estimates that providing additional dishes could cost 

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the companies about $150 per customer, including equipment, installation, and notification of customers. 

Service to as many as two million subscribers could be subject to 

the reallocation requirements under the current configuration of 

local television channels on the satellites. Thus, under the current 

configuration of channels on the satellites, as many as two million 

additional dishes would have to be installed. Engineering studies, 

however, suggest that reallocation of local channels on the satellites could reduce the number of subscribers needing the second 

dish to 350,000 to 400,000. Such reallocation of local channels 

would most likely occur in the smaller markets served by the carriers. 

Based on those figures, CBO estimates that satellite companies 

could spend $50 million to $60 million to comply with that mandate. The number of subscribers affected might be reduced further 

by technical changes available to satellite companies. CBO has not 

accounted for such technical changes in its estimate. 

Transmission of a distant digital signal in a local market 

Section 4 would require that a satellite company retransmit a 

distant digital signal only if that company is also transmitting a 

local analog signal and not a local digital signal in that same market. The satellite company also would be required to notify those 

customers that are receiving a distant digital signal when they are 

no longer eligible to receive those distant signals. According to information from industry representatives, satellite companies currently retransmit a distant digital signal only in markets where 

they also retransmit a local analog signal. The number of those 

households that receive those signals is very small. Therefore, CBO 

estimates that the satellite companies would incur minimal cost to 

comply with those requirements. 

Privacy rights of satellite subscribers 

Section 7 would extend the current privacy rights of cable subscribers to satellite subscribers. That section would require satellite 

companies to provide a separate, written notice that would inform 

the subscriber of the personally identifiable information that the 

satellite company collects and how it is to be used; the nature, frequency, and purpose of any disclosures; the time and place at 

which the subscriber may access the information; and the time 

frame during which the company would maintain that information. 

That section also would prohibit satellite companies from collecting 

and disclosing program selection or personally identifiable information on any subscriber without prior consent from the subscriber. 

In addition, satellite companies would be required to provide a subscriber access to all personally identifiable information that it collected. When that information is no longer necessary and a request 

for access is not pending, the company would have to destroy such 

information. Information from representatives of the satellite companies indicates that they currently comply with many of those requirements. CBO estimates that the incremental cost to provide a 

written notice of the subscribers’ privacy rights could be about $20 

million. 

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Notices to satellite companies and television network stations regarding a digital signal 

Within two years after the enactment of S. 2644, the bill would 

require that the FCC determine what households would be considered ‘‘unserved households’’ for a distant digital signal. A television 

network station would be required to notify the satellite company 

when it files a license application with the FCC that would result 

in any household ceasing to be an unserved digital household. 

When the satellite company receives that notification, it would 

have to send a list identifying each subscriber that would no longer 

be an unserved digital household and, therefore, would no longer 

be allowed to receive a distant digital signal. The satellite company 

also would be required to send a comprehensive list to television 

network stations that provide a digital signal to the satellite company’s subscribers. Based on information from the representatives 

of the satellite companies, CBO estimates that the cost to comply 

with those notification requirements would be minimal. 

Sponsorship identification requirement 

Section 8 would extend the sponsorship identification rules that 

currently apply to cable operators of satellite companies. As a result, a satellite company would be required to announce a sponsor 

of any commercial or political advertising that originates with a 

satellite company. According to representatives of the satellite companies, they only retransmit programming and do not add any advertising to those programs. Therefore, CBO estimates that the satellite companies would incur no costs to comply with this requirement. 

Previous CBO estimates: On July 8, 2004, CBO transmitted a 

cost estimate for H.R. 4501, the Satellite Home Viewer Extension 

and Reauthorization Act of 2004, as ordered reported by the House 

Committee on Energy and Commerce on June 3, 2004. Both bills 

contain provisions that would make changes to satellite retransmission of distant and local signals, but S. 2644 would affect a 

smaller number of subscribers. The cost estimates for the bills reflect this difference. 

On July 22, 2004, CBO transmitted a cost estimate for H.R. 

4518, the Satellite Home Viewer Extension Act of 2004, as ordered 

reported by the House Committee on the Judiciary on July 7, 2004. 

While H.R. 4518 would extend copyright royalty fees, S. 2644 

would not. Both bills contain provisions that would make changes 

to satellite retransmission of distant and local signals, but S. 2644 

would affect a smaller number of subscribers. The cost estimates 

for the bills reflect those differences. 

On July 22, 2004, CBO transmitted a cost estimate for S. 2013, 

the Satellite Home Viewer Extension Act of 2004, as ordered reported by the Senate Committee on the Judiciary on June 17, 2004. 

While S. 2013 would extend copyright royalty fees, S. 2644 would 

not. The cost estimates for the bills reflect this difference. 

Both S. 2644 and H.R. 4501 would require that satellite companies retransmit local television channels to a single dish and to notify customers of their privacy rights. H.R. 4518 and S. 2013 would 

require a satellite company to submit a list to television network 

stations of their subscribers that are receiving signals of ‘‘significantly viewed’’ stations. The total direct costs of mandates conVerDate Aug 04 2004 02:31 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR427.XXX SR427
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tained in each of the bills would fall below the annual threshold 

for private-sector mandates established in UMRA. 

Estimate prepared by: Federal Costs: Melissa E. Zimmerman. 

Impact on State, Local, and Tribal Governments: Sarah Puro. Impact on the Private Sector: Jean Talarico. 

Estimate approved by: Robert A. Sunshine, Assistant Director for 

Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 2644 would reauthorize particular elements of the Satellite 

Home Viewer Improvement Act of 1999. The number of persons 

covered by this legislation should be consistent with current levels 

of individuals affected. The legislation would impose new regulatory obligations on DBS carriers including a new prohibition on 

the use of two satellite dishes to retransmit the signals of local 

broadcasters into local markets, new restrictions on the use of subscribers’ account information, and new obligations with respect to 

the identification of sponsors of certain advertising. The bill would 

also impose new good-faith bargaining obligations on both direct 

broadcast satellite carriers and cable operators vis-a-vis local 

broadcasters. 

ECONOMIC IMPACT

The legislation would impose new limitations on the ability of 

DBS carriers to retransmit the signals of local broadcasters into a 

local market over more than one receiving antenna. The section 

would permit EchoStar, the only satellite provider currently using 

more than one antenna to receive all of the broadcast stations in 

particular local markets, to continue this practice for 18 months. At 

the end of this transition period, the new limitation may have an 

adverse effect on EchoStar and consumers may then be required to 

purchase a second satellite dish to receive local broadcast television 

retransmissions. 

PRIVACY

S. 2644 is not expected to have an adverse effect on the personal 

privacy of any individuals that will be impacted by this legislation. 

Section 7 of the bill would enhance personal privacy by setting 

forth requirements for the protection of subscribers’ account information. 

PAPERWORK

The legislation should have minimal impact on current paperwork levels. 

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SECTION-BY-SECTION ANALYSIS

Section 1. Short title; table of contents 

This section provides that the act may be cited as ‘‘The Satellite 

Home Viewer Extension and Rural Consumer Access to Digital Television Act of 2004,’’ and sets forth the table of contents of the bill. 

Section 2. Extension of retransmission consent exception 

This section would extend until December 31, 2009, the retransmission consent exception provided in section 325 of the Communications Act of 1934. This section allows DBS companies to retransmit the signals of network stations directly to certain subscribers without requiring the satellite carrier to obtain the consent 

of the network station. This provision is set to expire December 31, 

2004. 

Section 3. Carriage of local stations on a single dish 

This section amends section 338 of the Communications Act by 

mandating that a satellite carrier choosing to offer the local stations of a particular market provide such stations to subscribers 

through the use of a single reception antenna and associated equipment (i.e., a single satellite dish). The DBS carrier may carry local 

stations on a separate dish from the rest of its programming channels (CNN, ESPN, etc.), and may also elect to carry analog signals 

of the local broadcasters on a separate dish from digital signals of 

the local broadcasters. Satellite carriers would have 18 months 

from enactment to comply with the new requirement. This section 

responds to the concerns about discriminatory treatment made by 

local broadcasters, particularly religious and foreign-language 

broadcasters, by banning the division of local broadcast stations between two satellite dishes. 

A significant beneficiary of DBS providers’ use of two-dishes has 

been consumers in medium- sized markets who have been able to 

receive their local stations via satellite earlier than would have 

been possible if carriage on one-dish was mandated. While ultimately sympathizing with those broadcasters who have been placed 

on a separate satellite dish, this bill would attempt to minimize the 

disruption to consumers in the medium-sized markets by providing 

an 18 month transition period for a satellite carrier to deliver all 

broadcasters to one-dish. 

Section 4. Carriage of distant digital signals; unserved digital customers 

This section would ensure that consumers in rural and other 

areas who are unable to receive a local broadcaster’s digital signal 

could enjoy high definition (HD) digital content carried by the 

broadcast networks. Consumers could be confident that if they purchased expensive high definition television sets, they could enjoy 

high profile HD events available on broadcast channels, such as the 

Super Bowl, the World Series, the Oscars, and other programming. 

This section would direct the FCC to develop a method for identifying unserved digital households within two years. The FCC 

would establish a process similar to the predictive model used 

today to determine when a household is ‘‘unserved’’ with respect to 

analog signal reception. Thus, the Commission would (1) determine 

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the appropriate signal standard for determining eligibility for distant digital signals; (2) develop a predictive model for presumptively determining the ability of individual locations to receive digital signals in accordance with the signal standard; and (3) establish waiver and objective verification standards. The bill would also 

preserve the existing eligibility of certain households who are unable to receive an analog signal to receive distant digital signals 

until the FCC completes this process. However, satellite carriers 

could only import distant digital signals into markets where they 

were already offering the local analog signals. 

The bill is not intended to be punitive toward any broadcaster. 

It is primarily focused on ensuring consumers have access to digital 

HD broadcast programming. As a concession to broadcasters, therefore, the bill would make clear that, even after the Commission establishes a permanent predictive model, if a broadcaster demonstrates that its signal would reach a particular household but for 

circumstances that lie beyond its control, that household would not 

be eligible to receive a distant digital signal. 

Broadcasters have expressed significant concern that a satellite 

carrier that is permitted to provide a distant digital signal will 

never terminate that signal even after the broadcaster is able to 

reach the household. In response to this concern, this section would 

require that satellite companies terminate distant digital signals 

whenever a change in circumstances occurs that would result in an 

‘‘unserved household’’ becoming a ‘‘served household’’ for that network affiliate. Moreover, satellite carriers would be required to give 

any potential subscribers clear, conspicuous, and prior notice that 

the distant digital service will be terminated within 120 days after 

the date the subscriber becomes ineligible for the service (because 

the household is now able to receive the broadcaster’s over-the-air 

digital signal). Satellite carriers would also be required to provide 

broadcasters with a list of subscribers receiving distant digital signals whose service would be terminated as a result of such a 

change. 

Failure to provide networks with a ‘‘complete’’ list of subscribers 

receiving service under the rule provided in this section, and failure to cease distant digital transmissions within 120 days of the 

date when a subscriber becomes ineligible, would subject satellite 

carriers to extremely severe enforcement penalties for each household out of compliance. Each household at issue would be considered a separate violation, and each day would be a separate violation. For example, if a satellite carrier illegally provided a distant 

digital signal to fifty households in a local market, the company 

would be eligible for a fine of $550,000 dollars a day ($11,000 × 50 

households). 

Section 5. Bargaining obligations 

This section would extend and expand the good faith bargaining 

obligation from the current January 1, 2006 sunset to January 1, 

2010. Currently, the good faith obligation is only imposed on broadcasters. This bill will impose the obligation on not only broadcasters, but also DBS providers and cable companies. 

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Section 6. Reduction of required tests 

This section would modify section 339 of the Communications 

Act, which designates whether broadcasters or satellite companies 

must pay for a signal strength test requested by a consumer in a 

household that disagrees with a determination by the Commission’s 

predictive model that it should be able to receive an over-the-air 

analog signal. The section would preclude subscribers who are capable of receiving local signals via satellite, as well as subscribers 

who are predicted to receive a signal of an intensity better than 

whatever standard is in effect (currently Grade B intensity) from 

the network at issue, from demanding a signal strength test under 

section 339(c)(4) of that Act. Such subscribers may, however, request a test at their own expense. 

Section 7. Privacy rights of satellite subscribers 

This section would modify section 631 of the Communications 

Act, which sets forth requirements for protection of cable subscriber account information, by making it applicable to satellite operators. 

Section 8. Sponsorship identification rules for DBS 

This section would direct the FCC to apply section 317 of the 

Communications Act to DBS providers. This provision of the Act 

deals with sponsorship identification, and provides that any matter 

broadcast in exchange for payment must be accompanied by an announcement that the matter was paid for or sponsored by the paying entity. Section 317 currently applies to cable operators and 

broadcasters. 

Section 9. Certain vessels and aircraft 

This section would include aircraft and ‘‘recreational vessels’’ 

(i.e., certain types of boats) within the definition of unserved households, thereby making such entities eligible for distant signals. 

Section 10. Carriage of local television signals by certain satellite 

carriers 

This section would allow a satellite carrier to offer a broadcaster’s signal, if the broadcaster was the only network signal in 

that State prior to January 1, 1995, to other viewers in that State 

as long as the community is not contained in the top 50 broadcast 

television markets. Additionally, a DBS provider would be able to 

provide to viewers in a State that contains a top 50 market any 

network and superstation signals that were licensed as of January 

1, 1995 in the same market, if the market does not encompass all 

the counties in a State and if the market is not a top 50 market. 

Section 11. Carriage of television stations to certain subscribers 

This section would allow a DBS carrier to retransmit any stations that are located in an eligible county within a State where 

a MVPD was transmitting the same stations to subscribers in the 

county on January 1, 2004. These stations would be considered 

‘‘significantly viewed.’’ Additionally, this section would allow a DBS 

carrier to retransmit up to two stations located in the State in 

which the county is located if the MVPD is authorized to carry less 

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than three. The section also defines which counties are eligible for 

these stations. 

Section 12. Retransmission of signals into adjacent local market in 

certain markets 

This section would prevent a satellite carrier from carrying the 

signal of a television station into an adjacent local market where 

such market is comprised of only a portion of a county, other than 

to unserved households in such county. 

Section 13. Satellite carriage of Alaska television stations in areas 

of Alaska outside any DMA 

This section would require all satellite carriers offering MVPD 

service in the United States to over 5 million subscribers to retransmit the analog and digital signals of each local Alaska broadcast station within 2 years and to retransmit stations in at least 

one Alaska market to other areas of the State that are not within 

a Designated Market Area (DMA). This section would also prohibit 

the importation of distant digital signals into Alaska pursuant to 

the distant signal copyright license once local Alaska stations are 

made available by the satellite operator to Alaska subscribers pursuant to the local-into-local copyright license. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): 

TITLE 17. COPYRIGHTS 

CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT

§ 119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for 

private home viewing 

(a) SECONDARY TRANSMISSIONS BY SATELLITE CARRIERS.— 

(1) SUPERSTATIONS AND PBS SATELLITE FEED.—Subject to the 

provisions of paragraphs (3), (4), and (6) of this subsection and 

section 114(d), secondary transmissions of a performance or 

display of a work embodied in a primary transmission made by 

a superstation or by the Public Broadcasting Service satellite 

feed shall be subject to statutory licensing under this section 

if the secondary transmission is made by a satellite carrier to 

the public for private home viewing, with regard to secondary 

transmissions the satellite carrier is in compliance with the 

rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television 

broadcast station signals, and the carrier makes a direct or indirect charge for each retransmission service to each household 

receiving the secondary transmission or to a distributor that 

has contracted with the carrier for direct or indirect delivery 

of the secondary transmission to the public for private home 

viewing. In the case of the Public Broadcasting Service satellite 

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feed, the statutory license shall be effective until January 1, 

2002. 

(2) NETWORK STATIONS.— (A) IN GENERAL.—Subject to the provisions of subparagraphs (B) and (C) of this paragraph and paragraphs (3), 

(4), (5), and (6) of this subsection and section 114(d), secondary transmissions of a performance or display of a 

work embodied in a primary transmission made by a network station shall be subject to statutory licensing under 

this section if the secondary transmission is made by a satellite carrier to the public for private home viewing, with 

regard to secondary transmissions the satellite carrier is in 

compliance with the rules, regulations, or authorizations of 

the Federal Communications Commission governing the 

carriage of television broadcast station signals, and the 

carrier makes a direct or indirect charge for such retransmission service to each subscriber receiving the secondary 

transmission. 

(B) SECONDARY TRANSMISSIONS TO UNSERVED HOUSEHOLDS.— 

(i) IN GENERAL.—The statutory license provided for 

in subparagraph (A) shall be limited to secondary 

transmissions of the signals of no more than two network stations in a single day for each television network to persons who reside in unserved households. 

(ii) ACCURATE DETERMINATIONS OF ELIGIBILITY.— (I) ACCURATE PREDICTIVE MODEL.—In determining presumptively whether a person resides in 

an unserved household under subsection 

ø(d)(10)(A),¿ (d)(10), a court shall rely on the Individual Location Longley-Rice model set forth by 

the Federal Communications Commission in Docket No. 98-201, as that model may be amended by 

the Commission over time under section 

ø339(c)(3)¿ 339 of the Communications Act of 

1934 to increase the accuracy of that model. 

(II) ACCURATE MEASUREMENTS.—For purposes of 

site measurements to determine whether a person 

resides in an unserved household under subsection ø(d)(10)(A),¿ (d)(10), a court shall rely on 

section ø339(c)(4)¿ 339 of the Communications Act 

of 1934. 

(iii) C-BAND EXEMPTION TO UNSERVED HOUSEHOLDS.— 

(I) IN GENERAL.—The limitations of clause (i) 

shall not apply to any secondary transmissions by 

C-band services of network stations that a subscriber to C-band service received before any termination of such secondary transmissions before 

October 31, 1999. 

(II) DEFINITION.—In this clause the term ‘‘Cband service’’ means a service that is licensed by 

the Federal Communications Commission and operates in the Fixed Satellite Service under part 25 

of title 47 of the Code of Federal Regulations. 

13 

(C) SUBMISSION OF SUBSCRIBER LISTS TO NETWORKS.—A 

satellite carrier that makes secondary transmissions of a 

primary transmission made by a network station pursuant 

to subparagraph (A) shall, 90 days after commencing such 

secondary transmissions, submit to the network that owns 

or is affiliated with the network station a list identifying 

(by name and street address, including county and zip 

code) all subscribers to which the satellite carrier makes 

secondary transmissions of that primary transmission. 

Thereafter, on the 15th of each month, the satellite carrier 

shall submit to the network a list identifying (by name and 

street address, including county and zip code) any persons 

who have been added or dropped as such subscribers since 

the last submission under this subparagraph. Such subscriber information submitted by a satellite carrier may be 

used only for purposes of monitoring compliance by the 

satellite carrier with this subsection. The submission requirements of this subparagraph shall apply to a satellite 

carrier only if the network to whom the submissions are 

to be made places on file with the Register of Copyrights 

a document identifying the name and address of the person to whom such submissions are to be made. The Register shall maintain for public inspection a file of all such 

documents. 

(3) NONCOMPLIANCE WITH REPORTING AND PAYMENT REQUIRE- MENTS.—Notwithstanding the provisions of paragraphs (1) and 

(2), the willful or repeated secondary transmission to the public 

by a satellite carrier of a primary transmission made by a 

superstation or a network station and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies 

provided by sections 502 through 506 and 509, where the satellite carrier has not deposited the statement of account and 

royalty fee required by subsection (b), or has failed to make the 

submissions to networks required by paragraph (2)(C). 

(4) WILLFUL ALTERATIONS.—Notwithstanding the provisions 

of paragraphs (1) and (2), the secondary transmission to the 

public by a satellite carrier of a performance or display of a 

work embodied in a primary transmission made by a superstation or a network station is actionable as an act of infringement under section 501, and is fully subject to the remedies 

provided by sections 502 through 506 and sections 509 and 

510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary 

transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the 

satellite carrier through changes, deletions, or additions, or is 

combined with programming from any other broadcast signal. 

(5) VIOLATION OF TERRITORIAL RESTRICTIONS ON STATUTORY

LICENSE FOR NETWORK STATIONS.— (A) INDIVIDUAL VIOLATIONS.—The willful or repeated secondary transmission by a satellite carrier of a primary 

transmission made by a network station and embodying a 

performance or display of a work to a subscriber who does 

14 

not reside in an unserved household is actionable as an act 

of infringement under section 501 and is fully subject to 

the remedies provided by sections 502 through 506 and 

509, except that— 

(i) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action 

by promptly withdrawing service from the ineligible 

subscriber, and 

(ii) any statutory damages shall not exceed $5 for 

such subscriber for each month during which the violation occurred. 

(B) PATTERN OF VIOLATIONS.—If a satellite carrier engages in a willful or repeated pattern or practice of delivering a primary transmission made by a network station 

and embodying a performance or display of a work to subscribers who do not reside in unserved households, then in 

addition to the remedies set forth in subparagraph (A)— 

(i) if the pattern or practice has been carried out on 

a substantially nationwide basis, the court shall order 

a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network, and the 

court may order statutory damages of not to exceed 

$250,000 for each 6-month period during which the 

pattern or practice was carried out; and 

(ii) if the pattern or practice has been carried out on 

a local or regional basis, the court shall order a permanent injunction barring the secondary transmission, 

for private home viewing in that locality or region, by 

the satellite carrier of the primary transmissions of 

any primary network station affiliated with the same 

network, and the court may order statutory damages 

of not to exceed $250,000 for each 6-month period during which the pattern or practice was carried out. 

(C) PREVIOUS SUBSCRIBERS EXCLUDED.—Subparagraphs 

(A) and (B) do not apply to secondary transmissions by a 

satellite carrier to persons who subscribed to receive such 

secondary transmissions from the satellite carrier or a distributor before November 16, 1988. 

(D) BURDEN OF PROOF.—In any action brought under 

this paragraph, the satellite carrier shall have the burden 

of proving that its secondary transmission of a primary 

transmission by a network station is for private home 

viewing to an unserved household. 

(E) EXCEPTION.—The secondary transmission by a satellite carrier of a performance or display of a work embodied in a primary transmission made by a network station to subscribers who do not reside in unserved households shall not be an act of infringement if— 

(i) the station on May 1, 1991, was retransmitted by 

a satellite carrier and was not on that date owned or 

operated by or affiliated with a television network that 

offered interconnected program service on a regular 

15 

basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more States; 

(ii) as of July 1, 1998, such station was retransmitted by a satellite carrier under the statutory license of this section; and 

(iii) the station is not owned or operated by or affiliated with a television network that, as of January 1, 

1995, offered interconnected program service on a regular basis for 15 or more hours per week to at least 

25 affiliated television licensees in 10 or more States. 

(6) DISCRIMINATION BY A SATELLITE CARRIER.—Notwithstanding the provisions of paragraph (1), the willful or repeated secondary transmission to the public by a satellite carrier of a performance or display of a work embodied in a primary transmission made by a superstation or a network station is actionable as an act of infringement under section 501, 

and is fully subject to the remedies provided by sections 502 

through 506 and 509, if the satellite carrier unlawfully discriminates against a distributor. 

(7) GEOGRAPHIC LIMITATION ON SECONDARY TRANSMISSIONS.— 

The statutory license created by this section shall apply only 

to secondary transmissions to households located in the United 

States. 

(8) TRANSITIONAL SIGNAL INTENSITY MEASUREMENT PROCE- DURES.— 

(A) IN GENERAL.—Subject to subparagraph (C), upon a 

challenge by a network station regarding whether a subscriber is an unserved household within the predicted 

Grade B Contour of the station, the satellite carrier shall, 

within 60 days after the receipt of the challenge— 

(i) terminate service to that household of the signal 

that is the subject of the challenge, and within 30 days 

thereafter notify the network station that made the 

challenge that service to that household has been terminated; or 

(ii) conduct a measurement of the signal intensity of 

the subscriber’s household to determine whether the 

household is an unserved household after giving reasonable notice to the network station of the satellite 

carrier’s intent to conduct the measurement. 

(B) EFFECT OF MEASUREMENT.—If the satellite carrier 

conducts a signal intensity measurement under subparagraph (A) and the measurement indicates that— 

(i) the household is not an unserved household, the 

satellite carrier shall, within 60 days after the measurement is conducted, terminate the service to that 

household of the signal that is the subject of the challenge, and within 30 days thereafter notify the network station that made the challenge that service to 

that household has been terminated; or 

(ii) the household is an unserved household, the station challenging the service shall reimburse the satellite carrier for the costs of the signal measurement 

within 60 days after receipt of the measurement results and a statement of the costs of the measurement. 

16 

(C) LIMITATION ON MEASUREMENTS.— (i) Notwithstanding subparagraph (A), a satellite 

carrier may not be required to conduct signal intensity 

measurements during any calendar year in excess of 5 

percent of the number of subscribers within the network station’s local market that have subscribed to 

the service as of the effective date of the Satellite 

Home Viewer Act of 1994. 

(ii) If a network station challenges whether a subscriber is an unserved household in excess of 5 percent 

of the subscribers within the network station’s local 

market within a calendar year, subparagraph (A) shall 

not apply to challenges in excess of such 5 percent, but 

the station may conduct its own signal intensity measurement of the subscriber’s household after giving reasonable notice to the satellite carrier of the network 

station’s intent to conduct the measurement. If such 

measurement indicates that the household is not an 

unserved household, the carrier shall, within 60 days 

after receipt of the measurement, terminate service to 

the household of the signal that is the subject of the 

challenge and within 30 days thereafter notify the network station that made the challenge that service has 

been terminated. The carrier shall also, within 60 

days after receipt of the measurement and a statement of the costs of the measurement, reimburse the 

network station for the cost it incurred in conducting 

the measurement. 

(D) OUTSIDE THE PREDICTED GRADE B CONTOUR.— 

(i) If a network station challenges whether a subscriber is an unserved household outside the predicted 

Grade B Contour of the station, the station may conduct a measurement of the signal intensity of the subscriber’s household to determine whether the household is an unserved household after giving reasonable 

notice to the satellite carrier of the network station’s 

intent to conduct the measurement. 

(ii) If the network station conducts a signal intensity 

measurement under clause (i) and the measurement 

indicates that— 

(I) the household is not an unserved household, 

the station shall forward the results to the satellite carrier who shall, within 60 days after receipt of the measurement, terminate the service to 

the household of the signal that is the subject of 

the challenge, and shall reimburse the station for 

the costs of the measurement within 60 days after 

receipt of the measurement results and a statement of such costs; or 

(II) the household is an unserved household, the 

station shall pay the costs of the measurement. 

(9) LOSER PAYS FOR SIGNAL INTENSITY MEASUREMENT; RECOV- ERY OF MEASUREMENT COSTS IN A CIVIL ACTION.—In any civil 

action filed relating to the eligibility of subscribing households 

as unserved households— 

17 

(A) a network station challenging such eligibility shall, 

within 60 days after receipt of the measurement results 

and a statement of such costs, reimburse the satellite carrier for any signal intensity measurement that is conducted by that carrier in response to a challenge by the 

network station and that establishes the household is an 

unserved household; and 

(B) a satellite carrier shall, within 60 days after receipt 

of the measurement results and a statement of such costs, 

reimburse the network station challenging such eligibility 

for any signal intensity measurement that is conducted by 

that station and that establishes the household is not an 

unserved household. 

(10) INABILITY TO CONDUCT MEASUREMENT.—If a network 

station makes a reasonable attempt to conduct a site measurement of its signal at a subscriber’s household and is denied access for the purpose of conducting the measurement, and is 

otherwise unable to conduct a measurement, the satellite carrier shall within 60 days notice thereof, terminate service of 

the station’s network to that household. 

(11) SERVICE TO øRECREATIONAL VEHICLES AND COMMERCIAL

TRUCKS.—¿ RECREATIONAL VEHICLES, VESSELS, AIRCRAFT, AND

COMMERCIAL TRUCKS.— (A) EXEMPTION.— (i) IN GENERAL.—For purposes of this subsection, 

and subject to clauses (ii) and (iii), the term ‘‘unserved 

household’’ shall include— 

(I) recreational vehicles as defined in regulations of the Secretary of Housing and Urban Development under section 3282.8 of title 24 of the 

Code of Federal Regulations; øand¿ 

(II) commercial trucks that qualify as commercial motor vehicles under regulations of the Secretary of Transportation under section 383.5 of 

title 49 of the Code of Federal øRegulations.¿ Regulations; 

(III) recreational vessels as defined in section 

2101(25) of title 46, United States Code, documented in accordance with section 12101 of title 46 

or State law; and 

(IV) aircraft registered under section 44103 of 

title 49. 

(ii) LIMITATION.—Clause (i) shall apply only to a recreational øvehicle or¿ vehicle, vessel, aircraft, or commercial truck if any satellite carrier that proposes to 

make a secondary transmission of a network station to 

the operator of such a recreational øvehicle or¿ vehicle, vessel, aircraft, or commercial truck complies with 

the documentation requirements under subparagraphs 

(B) and (C). 

(iii) EXCLUSION.—For purposes of this subparagraph, 

the terms ‘‘recreational øvehicle’’¿ vehicle, recreational 

vessel, aircraft’’ and ‘‘commercial truck’’ shall not include any fixed dwelling, whether a mobile home or 

otherwise. 

18 

(B) DOCUMENTATION REQUIREMENTS.—A recreational 

øvehicle¿ vehicle, recreational vessel, aircraft, or commercial truck shall be deemed to be an unserved household beginning 10 days after the relevant satellite carrier provides 

to the network that owns or is affiliated with the network 

station that will be secondarily transmitted to the recreational øvehicle¿ vehicle, recreational vessel, aircraft, or 

commercial truck the following documents: 

(i) DECLARATION.—A signed declaration by the operator of the recreational øvehicle¿ vehicle, recreational 

vessel, aircraft, or commercial truck that the satellite 

dish is permanently attached to the recreational øvehicle¿ vehicle, recreational vessel, aircraft, or commercial truck, and will not be used to receive satellite programming at any fixed dwelling. 

(ii) REGISTRATION.—In the case of a recreational vehicle, a copy of the current State vehicle registration 

for the recreational vehicle. 

(iii) REGISTRATION AND LICENSE.—In the case of a 

commercial truck, a copy of— 

(I) the current State vehicle registration for the 

truck; and 

(II) a copy of a valid, current commercial driver’s license, as defined in regulations of the Secretary of Transportation under section 383 of title 

49 of the Code of Federal Regulations, issued to 

the operator. 

(C) UPDATED DOCUMENTATION REQUIREMENTS.—If a satellite carrier wishes to continue to make secondary transmissions to a recreational øvehicle or¿ vehicle, recreational 

vessel, aircraft, or commercial truck for more than a 2-year 

period, that carrier shall provide each network, upon request, with updated documentation in the form described 

under subparagraph (B) during the 90 days before expiration of that 2-year period. 

(12) STATUTORY LICENSE CONTINGENT ON COMPLIANCE WITH

FCC RULES AND REMEDIAL STEPS.—Notwithstanding any other 

provision of this section, the willful or repeated secondary 

transmission to the public by a satellite carrier of a primary 

transmission embodying a performance or display of a work 

made by a broadcast station licensed by the Federal Communications Commission is actionable as an act of infringement 

under section 501, and is fully subject to the remedies provided 

by sections 502 through 506 and 509, if, at the time of such 

transmission, the satellite carrier is not in compliance with the 

rules, regulations, and authorizations of the Federal Communications Commission concerning the carriage of television 

broadcast station signals. 

(13) NO IMPORTATION OF DISTANT SIGNALS INTO CERTAIN

MARKETS.—Notwithstanding any other provision of this title, 

the statutory license in this subsection and subsection (b) shall 

not apply to any secondary transmission of a television station 

located outside of the State of Alaska to any subscriber in that 

State to whom secondary transmissions of television stations loVerDate Aug 04 2004 02:31 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00020 Fmt 6659 Sfmt 6603 E:\HR\OC\SR427.XXX SR427
19 

cated in that State are made available by the satellite carrier 

pursuant to section 122. 

(b) STATUTORY LICENSE FOR SECONDARY TRANSMISSIONS FOR PRIVATE HOME VIEWING.— 

(1) DEPOSITS WITH THE REGISTER OF COPYRIGHTS.—A satellite 

carrier whose secondary transmissions are subject to statutory 

licensing under subsection (a) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall prescribe by regulation— 

(A) a statement of account, covering the preceding 6- 

month period, specifying the names and locations of all 

superstations and network stations whose signals were retransmitted, at any time during that period, to subscribers 

for private home viewing as described in subsections (a)(1) 

and (a)(2), the total number of subscribers that received 

such retransmissions, and such other data as the Register 

of Copyrights may from time to time prescribe by regulation; and 

(B) a royalty fee for that 6-month period, computed by— 

(i) multiplying the total number of subscribers receiving each secondary transmission of a superstation 

during each calendar month by 17.5 cents per subscriber in the case of superstations that as retransmitted by the satellite carrier include any program 

which, if delivered by any cable system in the United 

States, would be subject to the syndicated exclusivity 

rules of the Federal Communications Commission, and 

14 cents per subscriber in the case of superstations 

that are syndex-proof as defined in section 258.2 of 

title 37, Code of Federal Regulations; 

(ii) multiplying the number of subscribers receiving 

each secondary transmission of a network station or 

the Public Broadcasting Service satellite feed during 

each calendar month by 6 cents; and 

(iii) adding together the totals computed under 

clauses (i) and (ii). 

(2) INVESTMENT OF FEES.—The Register of Copyrights shall 

receive all fees deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under 

this section (other than the costs deducted under paragraph 

(4)), shall deposit the balance in the Treasury of the United 

States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be 

invested in interest-bearing securities of the United States for 

later distribution with interest by the Librarian of Congress as 

provided by this title. 

(3) PERSONS TO WHOM FEES ARE DISTRIBUTED.—The royalty 

fees deposited under paragraph (2) shall, in accordance with 

the procedures provided by paragraph (4), be distributed to 

those copyright owners whose works were included in a secondary transmission for private home viewing made by a satellite carrier during the applicable 6-month accounting period 

and who file a claim with the Librarian of Congress under 

paragraph (4). 

20 

(4) PROCEDURES FOR DISTRIBUTION.—The royalty fees deposited under paragraph (2) shall be distributed in accordance 

with the following procedures: 

(A) FILING OF CLAIMS FOR FEES.—During the month of 

July in each year, each person claiming to be entitled to 

statutory license fees for secondary transmissions for private home viewing shall file a claim with the Librarian of 

Congress, in accordance with requirements that the Librarian of Congress shall prescribe by regulation. For purposes of this paragraph, any claimants may agree among 

themselves as to the proportionate division of statutory license fees among them, may lump their claims together 

and file them jointly or as a single claim, or may designate 

a common agent to receive payment on their behalf. 

(B) DETERMINATION OF CONTROVERSY; DISTRIBUTIONS.— 

After the first day of August of each year, the Librarian 

of Congress shall determine whether there exists a controversy concerning the distribution of royalty fees. If the 

Librarian of Congress determines that no such controversy 

exists, the Librarian of Congress shall, after deducting reasonable administrative costs under this paragraph, distribute such fees to the copyright owners entitled to receive them, or to their designated agents. If the Librarian 

of Congress finds the existence of a controversy, the Librarian of Congress shall, pursuant to chapter 8 of this 

title, convene a copyright arbitration royalty panel to determine the distribution of royalty fees. 

(C) WITHHOLDING OF FEES DURING CONTROVERSY.—During the pendency of any proceeding under this subsection, 

the Librarian of Congress shall withhold from distribution 

an amount sufficient to satisfy all claims with respect to 

which a controversy exists, but shall have discretion to 

proceed to distribute any amounts that are not in controversy. 

(c) ADJUSTMENT OF ROYALTY FEES.— (1) APPLICABILITY AND DETERMINATION OF ROYALTY FEES.— The rate of the royalty fee payable under subsection (b)(1)(B) 

shall be effective unless a royalty fee is established under 

paragraph (2) or (3) of this subsection. 

(2) FEE SET BY VOLUNTARY NEGOTIATION.— 

(A) NOTICE OF INITIATION OF PROCEEDINGS.—On or before July 1, 1996, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose 

of determining the royalty fee to be paid by satellite carriers under subsection (b)(1)(B). 

(B) NEGOTIATIONS.—Satellite carriers, distributors, and 

copyright owners entitled to royalty fees under this section 

shall negotiate in good faith in an effort to reach a voluntary agreement or voluntary agreements for the payment of royalty fees. Any such satellite carriers, distributors, and copyright owners may at any time negotiate and 

agree to the royalty fee, and may designate common 

agents to negotiate, agree to, or pay such fees. If the parties fail to identify common agents, the Librarian of ConVerDate Aug 04 2004 02:31 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6601 E:\HR\OC\SR427.XXX SR427
21 

gress shall do so, after requesting recommendations from 

the parties to the negotiation proceeding. The parties to 

each negotiation proceeding shall bear the entire cost 

thereof. 

(C) AGREEMENTS BINDING ON PARTIES; FILING OF AGREE- MENTS.—Voluntary agreements negotiated at any time in 

accordance with this paragraph shall be binding upon all 

satellite carriers, distributors, and copyright owners that 

are parties thereto. Copies of such agreements shall be 

filed with the Copyright Office within 30 days after execution in accordance with regulations that the Register of 

Copyrights shall prescribe. 

(D) PERIOD AGREEMENT IS IN EFFECT.—The obligation to 

pay the royalty fees established under a voluntary agreement which has been filed with the Copyright Office in accordance with this paragraph shall become effective on the 

date specified in the agreement, and shall remain in effect 

until December 31, 1999, or in accordance with the terms 

of the agreement, whichever is later. 

(3) FEE SET BY COMPULSORY ARBITRATION.— 

(A) NOTICE OF INITIATION OF PROCEEDINGS.—On or before January 1, 1997, the Librarian of Congress shall 

cause notice to be published in the Federal Register of the 

initiation of arbitration proceedings for the purpose of determining a reasonable royalty fee to be paid under subsection (b)(1)(B) by satellite carriers who are not parties to 

a voluntary agreement filed with the Copyright Office in 

accordance with paragraph (2). Such arbitration proceeding shall be conducted under chapter 8. 

(B) ESTABLISHMENT OF ROYALTY FEES.—In determining 

royalty fees under this paragraph, the copyright arbitration royalty panel appointed under chapter 8 shall establish fees for the retransmission of network stations and 

superstations that most clearly represent the fair market 

value of secondary transmissions. In determining the fair 

market value, the panel shall base its decision on economic, competitive, and programming information presented by the parties, including— 

(i) the competitive environment in which such programming is distributed, the cost of similar signals in 

similar private and compulsory license marketplaces, 

and any special features and conditions of the retransmission marketplace; 

(ii) the economic impact of such fees on copyright 

owners and satellite carriers; and 

(iii) the impact on the continued availability of secondary transmissions to the public. 

(C) PERIOD DURING WHICH DECISION OF ARBITRATION

PANEL OR ORDER OF LIBRARIAN EFFECTIVE.—The obligation 

to pay the royalty fee established under a determination 

which— 

(i) is made by a copyright arbitration royalty panel 

in an arbitration proceeding under this paragraph and 

is adopted by the Librarian of Congress under section 

802(f), or 

22 

(ii) is established by the Librarian of Congress 

under section 802(f), shall become effective as provided 

in section 802(g) or July 1, 1997, whichever is later. 

(D) PERSONS SUBJECT TO ROYALTY FEE.—The royalty fee 

referred to in subparagraph (C) shall be binding on all satellite carriers, distributors, and copyright owners, who are 

not party to a voluntary agreement filed with the Copyright Office under paragraph (2). 

(4) REDUCTION.— (A) SUPERSTATION.—The rate of the royalty fee in effect 

on January 1, 1998, payable in each case under subsection 

(b)(1)(B)(i) shall be reduced by 30 percent. 

(B) NETWORK AND PUBLIC BROADCASTING SATELLITE

FEED.—The rate of the royalty fee in effect on January 1, 

1998, payable under subsection (b)(1)(B)(ii) shall be reduced by 45 percent. 

(5) PUBLIC BROADCASTING SERVICE AS AGENT.—For purposes 

of section 802, with respect to royalty fees paid by satellite carriers for retransmitting the Public Broadcasting Service satellite feed, the Public Broadcasting Service shall be the agent 

for all public television copyright claimants and all Public 

Broadcasting Service member stations. 

(d) DEFINITIONS.—As used in this section— 

(1) DISTRIBUTOR.—The term ‘‘distributor’’ means an entity 

which contracts to distribute secondary transmissions from a 

satellite carrier and, either as a single channel or in a package 

with other programming, provides the secondary transmission 

either directly to individual subscribers for private home viewing or indirectly through other program distribution entities. 

(2) NETWORK STATION.—The term ‘‘network station’’ means— 

(A) a television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast 

by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the 

United States which offer an interconnected program service on a regular basis for 15 or more hours per week to at 

least 25 of its affiliated television licensees in 10 or more 

States; or 

(B) a noncommercial educational broadcast station (as 

defined in section 397 of the Communications Act of 1934); 

except that the term does not include the signal of the 

Alaska Rural Communications Service, or any successor 

entity to that service. 

(3) PRIMARY NETWORK STATION.—The term ‘‘primary network 

station’’ means a network station that broadcasts or rebroadcasts the basic programming service of a particular national 

network. 

(4) PRIMARY TRANSMISSION.—The term ‘‘primary transmission’’ has the meaning given that term in section 111(f) of 

this title. 

(5) PRIVATE HOME VIEWING.—The term ‘‘private home viewing’’ means the viewing, for private use in a household by 

means of satellite reception equipment which is operated by an 

individual in that household and which serves only such houseVerDate Aug 04 2004 02:31 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\SR427.XXX SR427
23 

hold, of a secondary transmission delivered by a satellite carrier of a primary transmission of a television station licensed 

by the Federal Communications Commission. 

(6) SATELLITE CARRIER.—The term ‘‘satellite carrier’’ means 

an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and 

operates in the Fixed-Satellite Service under part 25 of title 47 

of the Code of Federal Regulations or the Direct Broadcast Satellite Service under part 100 of title 47 of the Code of Federal 

Regulations, to establish and operate a channel of communications for point-to-multipoint distribution of television station 

signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, 

except to the extent that such entity provides such distribution 

pursuant to tariff under the Communications Act of 1934, 

other than for private home viewing. 

(7) SECONDARY TRANSMISSION.—The term ‘‘secondary transmission’’ has the meaning given that term in section 111(f) of 

this title. 

(8) SUBSCRIBER.—The term ‘‘subscriber’’ means an individual 

who receives a secondary transmission service for private home 

viewing by means of a secondary transmission from a satellite 

carrier and pays a fee for the service, directly or indirectly, to 

the satellite carrier or to a distributor. 

(9) SUPERSTATION.—The term ‘‘superstation’’— 

(A) means a television broadcast station, other than a 

network station, licensed by the Federal Communications 

Commission that is secondarily transmitted by a satellite 

carrier; and 

(B) except for purposes of computing the royalty fee, includes the Public Broadcasting Service satellite feed. 

ø(10) UNSERVED HOUSEHOLD.—The term ‘‘unserved household’’, with respect to a particular television network, means a 

household that— 

ø(A) cannot receive, through the use of a conventional, 

stationary, outdoor rooftop receiving antenna, an over-theair signal of a primary network station affiliated with that 

network of Grade B intensity as defined by the Federal 

Communications Commission under section 73.683(a) of 

title 47 of the Code of Federal Regulations, as in effect on 

January 1, 1999; 

ø(B) is subject to a waiver granted under regulations established under section 339(c)(2) of the Communications 

Act of 1934; 

ø(C) is a subscriber to whom subsection (e) applies; 

ø(D) is a subscriber to whom subsection (a)(11) applies; 

or 

ø(E) is a subscriber to whom the exemption under subsection (a)(2)(B)(iii) applies.¿ 

(10) UNSERVED HOUSEHOLD.— 

(A) IN GENERAL.—The term ‘‘unserved household’’, with 

respect to a particular television network, means an 

unserved analog household or an unserved digital household. 

24 

(B) UNSERVED ANALOG HOUSEHOLD.—In this paragraph, 

the term ‘‘unserved analog household’’ means, with respect 

to an analog signal, a household that— 

(i) cannot receive, through the use of a conventional, 

stationary, outdoor rooftop receiving antenna, an overthe-air signal of a primary network station affiliated 

with that network of Grade B intensity as defined by 

the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999; 

(ii) is subject to a waiver granted under regulations 

established under section 339(c)(2) of the Communications Act of 1934; 

(iii) is a subscriber to whom subsection (e) applies; 

(iv) is a subscriber to whom subsection (a)(11) applies; or 

(v) is a subscriber to whom the exemption under subsection (a)(2)(B)(iii) applies. 

(C) UNSERVED DIGITAL HOUSEHOLD.—In this paragraph, 

the term ‘‘unserved digital household’’ means, with respect 

to a digital signal, a household that is eligible to receive 

distant digital signals pursuant to section 339(d) of the 

Communications Act of 1934 (47 U.S.C. 339(d)). 

(11) LOCAL MARKET.—The term ‘‘local market’’ has the meaning given such term under section 122(j). 

(12) PUBLIC BROADCASTING SERVICE SATELLITE FEED.—The 

term ‘‘Public Broadcasting Service satellite feed’’ means the national satellite feed distributed and designated for purposes of 

this section by the Public Broadcasting Service consisting of 

educational and informational programming intended for private home viewing, to which the Public Broadcasting Service 

holds national terrestrial broadcast rights. 

(e) MORATORIUM ON COPYRIGHT LIABILITY.—Until December 31, 

2004, a subscriber who does not receive a signal of Grade A intensity (as defined in the regulations of the Federal Communications 

Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999, or predicted by 

the Federal Communications Commission using the Individual Location Longley-Rice methodology described by the Federal Communications Commission in Docket No. 98-201) of a local network television broadcast station shall remain eligible to receive signals of 

network stations affiliated with the same network, if that subscriber had satellite service of such network signal terminated after 

July 11, 1998, and before October 31, 1999, as required by this section, or received such service on October 31, 1999. 

§ 122. Limitations on exclusive rights: Secondary transmissions by satellite carriers within local markets 

(a) SECONDARY TRANSMISSIONS OF TELEVISION BROADCAST STA- TIONS BY SATELLITE CARRIERS.—A secondary transmission of a performance or display of a work embodied in a primary transmission 

of a television broadcast station into the station’s local market shall 

be subject to statutory licensing under this section if— 

(1) the secondary transmission is made by a satellite carrier 

to the public; 

25 

(2) with regard to secondary transmissions, the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing 

the carriage of television broadcast station signals; and 

(3) the satellite carrier makes a direct or indirect charge for 

the secondary transmission to— 

(A) each subscriber receiving the secondary transmission; or 

(B) a distributor that has contracted with the satellite 

carrier for direct or indirect delivery of the secondary 

transmission to the public. 

(b) REPORTING REQUIREMENTS.—(1) INITIAL LISTS.—A satellite 

carrier that makes secondary transmissions of a primary transmission made by a network station under subsection (a) shall, 

within 90 days after commencing such secondary transmissions, 

submit to the network that owns or is affiliated with the network 

station a list identifying (by name in alphabetical order and street 

address, including county and zip code) all subscribers to which the 

satellite carrier makes secondary transmissions of that primary 

transmission under subsection (a). 

(2) SUBSEQUENT LISTS.—After the list is submitted under paragraph (1), the satellite carrier shall, on the 15th of each month, 

submit to the network a list identifying (by name in alphabetical 

order and street address, including county and zip code) any subscribers who have been added or dropped as subscribers since the 

last submission under this subsection. 

(3) USE OF SUBSCRIBER INFORMATION.—Subscriber information 

submitted by a satellite carrier under this subsection may be used 

only for the purposes of monitoring compliance by the satellite carrier with this section. 

(4) REQUIREMENTS OF NETWORKS.—The submission requirements 

of this subsection shall apply to a satellite carrier only if the network to which the submissions are to be made places on file with 

the Register of Copyrights a document identifying the name and 

address of the person to whom such submissions are to be made. 

The Register of Copyrights shall maintain for public inspection a 

file of all such documents. 

(c) NO ROYALTY FEE REQUIRED.—A satellite carrier whose secondary transmissions are subject to statutory licensing under subsection (a) shall have no royalty obligation for such secondary 

transmissions. 

(d) NONCOMPLIANCE WITH REPORTING AND REGULATORY REQUIREMENTS.—Notwithstanding subsection (a), the willful or repeated 

secondary transmission to the public by a satellite carrier into the 

local market of a television broadcast station of a primary transmission embodying a performance or display of a work made by 

that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided under sections 502 through 506 and 509, if the satellite carrier has not complied with the reporting requirements of subsection 

(b) or with the rules, regulations, and authorizations of the Federal 

Communications Commission concerning the carriage of television 

broadcast signals. 

(e) WILLFUL ALTERATIONS.—Notwithstanding subsection (a), the 

secondary transmission to the public by a satellite carrier into the 

26 

local market of a television broadcast station of a performance or 

display of a work embodied in a primary transmission made by 

that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the 

content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in 

any way willfully altered by the satellite carrier through changes, 

deletions, or additions, or is combined with programming from any 

other broadcast signal. 

(f) VIOLATION OF TERRITORIAL RESTRICTIONS ON STATUTORY LICENSE FOR TELEVISION BROADCAST STATIONS.— 

(1) INDIVIDUAL VIOLATIONS.—The willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission embodying a performance or display of a 

work made by a television broadcast station to a subscriber 

who does not reside in that station’s local market, and is not 

subject to statutory licensing under section 119 or a private licensing agreement, is actionable as an act of infringement 

under section 501 and is fully subject to the remedies provided 

by sections 502 through 506 and 509, except that— 

(A) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action by 

promptly withdrawing service from the ineligible subscriber; and 

(B) any statutory damages shall not exceed $5 for such 

subscriber for each month during which the violation occurred. 

(2) PATTERN OF VIOLATIONS.—If a satellite carrier engages in 

a willful or repeated pattern or practice of secondarily transmitting to the public a primary transmission embodying a performance or display of a work made by a television broadcast 

station to subscribers who do not reside in that station’s local 

market, and are not subject to statutory licensing under section 119 or a private licensing agreement, then in addition to 

the remedies under paragraph (1)— 

(A) if the pattern or practice has been carried out on a 

substantially nationwide basis, the court— 

(i) shall order a permanent injunction barring the 

secondary transmission by the satellite carrier of the 

primary transmissions of that television broadcast station (and if such television broadcast station is a network station, all other television broadcast stations affiliated with such network); and 

(ii) may order statutory damages not exceeding $ 

250,000 for each 6-month period during which the pattern or practice was carried out; and 

(B) if the pattern or practice has been carried out on a 

local or regional basis with respect to more than one television broadcast station, the court— 

(i) shall order a permanent injunction barring the 

secondary transmission in that locality or region by 

27 

the satellite carrier of the primary transmissions of 

any television broadcast station; and (ii) may order statutory damages not exceeding $ 

250,000 for each 6-month period during which the pattern or practice was carried out. 

(g) BURDEN OF PROOF.—In any action brought under subsection 

(f), the satellite carrier shall have the burden of proving that its 

secondary transmission of a primary transmission by a television 

broadcast station is made only to subscribers located within that 

station’s local market or subscribers being served in compliance 

with section 119 or a private licensing agreement. 

(h) GEOGRAPHIC LIMITATIONS ON SECONDARY TRANSMISSIONS.— 

The statutory license created by this section shall apply to secondary transmissions to locations in the United States. 

(i) EXCLUSIVITY WITH RESPECT TO SECONDARY TRANSMISSIONS OF

BROADCAST STATIONS BY SATELLITE TO MEMBERS OF THE PUBLIC.— 

No provision of section 111 or any other law (other than this section and section 119) shall be construed to contain any authorization, exemption, or license through which secondary transmissions 

by satellite carriers of programming contained in a primary transmission made by a television broadcast station may be made without obtaining the consent of the copyright owner. 

(j) DEFINITIONS.—In this section— 

(1) DISTRIBUTOR.—The term ‘‘distributor’’ means an entity 

which contracts to distribute secondary transmissions from a 

satellite carrier and, either as a single channel or in a package 

with other programming, provides the secondary transmission 

either directly to individual subscribers or indirectly through 

other program distribution entities. 

(2) LOCAL MARKET.—(A) IN GENERAL.—The term ‘‘local market’’, in the case of both commercial and noncommercial television broadcast stations, means the designated market area in 

which a station is located, and— 

(i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed 

to a community within the same designated market area 

are within the same local market; and 

(ii) in the case of a noncommercial educational television 

broadcast station, the market includes any station that is 

licensed to a community within the same designated market area as the noncommercial educational television 

broadcast station. 

(B) COUNTY OF LICENSE.—In addition to the area described 

in subparagraph (A), a station’s local market includes the 

county in which the station’s community of license is located. 

(C) DESIGNATED MARKET AREA.—For purposes of subparagraph (A), the term ‘‘designated market area’’ means a designated market area, as determined by Nielsen Media Research and published in the 1999-2000 Nielsen Station Index 

Directory and Nielsen Station Index United States Television 

Household Estimates or any successor publication. 

(D) CERTAIN STATES.—If a satellite carrier elects, under section 338(a)(3)(A) or (B) of the Communications Act of 1934 (47 

U.S.C. 338(a)(3)(A) or (B)), to carry the signal of a network station or superstation then, in addition to the area described in 

28 

subparagraph (A) of this paragraph, the local market of that 

station includes, solely for the purposes of the secondary transmission of that signal by the satellite carrier, all households 

within the geographic borders of the State in which that station 

is licensed. 

(E) CERTAIN AREAS OUTSIDE OF ANY DESIGNATED MARKET

AREA.—Any census area, borough, or other area in the State of 

Alaska that is outside of a designated market area, as determined by Nielsen Media Research, shall be deemed to be part 

of one of the local markets in the State of Alaska. A satellite 

carrier may determine which local market in the State of Alaska will be deemed to be the relevant local market in connection 

with each subscriber in such census area, borough, or other 

area. 

(3) NETWORK STATION; SATELLITE CARRIER; SECONDARY

TRANSMISSION.—The terms ‘‘network station’’, ‘‘satellite carrier’’, and ‘‘secondary transmission’’ have the meanings given 

such terms under section 119(d). 

(4) SUBSCRIBER.—The term ‘‘subscriber’’ means a person who 

receives a secondary transmission service from a satellite carrier and pays a fee for the service, directly or indirectly, to the 

satellite carrier or to a distributor. 

(5) TELEVISION BROADCAST STATION.—The term ‘‘television 

broadcast station’’— 

(A) means an over-the-air, commercial or noncommercial 

television broadcast station licensed by the Federal Communications Commission under subpart E of part 73 of 

title 47, Code of Federal Regulations, except that such 

term does not include a low-power or translator television 

station; and 

(B) includes a television broadcast station licensed by an 

appropriate governmental authority of Canada or Mexico if 

the station broadcasts primarily in the English language 

and is a network station as defined in section 119(d)(2)(A). 

* * * * * * * 

COMMUNICATIONS ACT OF 1934 

TITLE III—PROVISIONS RELATING TO RADIO

PART I. GENERAL PROVISIONS

SEC. 325. FALSE DISTRESS SIGNALS; REBROADCASTING; STUDIOS OF 

FOREIGN STATIONS. 

[47 U.S.C. 325]

(a) No person within the jursidiction of the United States shall 

knowingly utter or transmit, or cause to be uttered or transmitted, 

any false or fraudulent signals of distress, or communication relating thereto, nor shall any broadcasting station rebroadcast the program or any part thereof of another broadcasting station without 

the express authority of the originating station. 

(b)(1) 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; 

29 

(B) under section 614, in the case of a station electing, in accordance with this subsection, to assert the right to carriage 

under such section; or 

(C) under section 338, in the case of a station electing, in accordance with this subsection, to assert the right to carriage 

under such section. 

(2) This subsection shall not apply— 

(A) to retransmission of the signal of a noncommercial television broadcast station; 

(B) to retransmission of the signal of a television broadcast 

station outside the station’s local market by a satellite carrier 

directly to its subscribers, if— 

(i) such station was a superstation on May 1, 1991; 

(ii) as of July 1, 1998, such station was retransmitted by 

a satellite carrier under the statutory license of section 

119 of title 17, United States Code; and 

(iii) the satellite carrier complies with any network nonduplication, syndicated exclusivity, and sports blackout 

rules adopted by the Commission under section 339(b) of 

this Act; 

(C) until øDecember 31, 2004,¿ December 31, 2009, to retransmission of the signals of network stations directly to a 

home satellite antenna, if the subscriber receiving the signal— 

(i) is located in an area outside the local market of such 

stations; and 

(ii) resides in an unserved household; 

(D) to retransmission by a cable operator or other multichannel video provider, other than a satellite carrier, of the 

signal of a television broadcast station outside the station’s 

local market if such signal was obtained from a satellite carrier 

and— 

(i) the originating station was a superstation on May 1, 

1991; and 

(ii) as of July 1, 1998, such station was retransmitted by 

a satellite carrier under the statutory license of section 

119 of title 17, United States Code; or 

(E) during the 6-month period beginning on the date of the 

enactment of the Satellite Home Viewer Improvement Act of 

1999, to the retransmission of the signal of a television broadcast station within the station’s local market by a satellite carrier directly to its subscribers under the statutory license of 

section 122 of title 17, United States Code. 

For purposes of this paragraph, the terms ‘‘satellite carrier’’ and 

‘‘superstation’’ have the meanings given those terms, respectively, 

in section 119(d) of title 17, United States Code, as in effect on the 

date of the enactment of the Cable Television Consumer Protection 

and Competition Act of 1992, the term ‘‘unserved household’’ has 

the meaning given that term under section 119(d) of such title, and 

the term ‘‘local market’’ has the meaning given that term in section 

122( j) of such title. 

(3)(A) Within 45 days after the date of enactment of the Cable 

Television Consumer Protection and Competition Act of 1992, the 

Commission shall commence a rulemaking proceeding to establish 

regulations to govern the exercise by television broadcast stations 

of the right to grant retransmission consent under this subsection 

30 

and of the right to signal carriage under section 614, and such 

other regulations as are necessary to administer the limitations 

contained in paragraph (2). The Commission shall consider in such 

proceeding the impact that the grant of retransmission consent by 

television stations may have on the rates for the basic service tier 

and shall ensure that the regulations prescribed under this subsection do not conflict with the Commission’s obligation under section 623(b)(1) to ensure that the rates for the basic service tier are 

reasonable. Such rulemaking proceeding shall be completed within 

180 days after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992. 

(B) The regulations required by subparagraph (A) shall require 

that television stations, within one year after the date of enactment 

of the Cable Television Consumer Protection and Competition Act 

of 1992 and every three years thereafter, make an election between 

the right to grant retransmission consent under this subsection and 

the right to signal carriage under section 614. If there is more than 

one cable system which services the same geographic area, a station’s election shall apply to all such cable systems. 

(C) øWithin 45 days after the date of the enactment of the Satellite Home Viewer Improvement Act of 1999, the¿ The Commission shall commence a rulemaking proceeding to revise the regulations governing the exercise by television broadcast stations of the 

right to grant retransmission consent under this subsection, and 

such other regulations as are necessary to administer the limitations contained in paragraph (2). øThe Commission shall complete 

all actions necessary to prescribe such regulations within 1 year 

after such date of enactment.¿ Such regulations shall— 

(i) establish election time periods that correspond with those 

regulations adopted under subparagraph (B) of this paragraph; 

øand¿ 

(ii) until øJanuary 1, 2006,¿ January 1, 2010, prohibit a television broadcast station that provides retransmission consent 

from engaging in exclusive contracts for carriage or 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 øconsiderations.¿ considerations; and 

(iii) until January 1, 2010, prohibit a multichannel video 

programming distributor from failing to negotiate in good faith 

for retransmission consent under this section, and it shall not 

be a failure to negotiate in good faith if the distributor enters 

into retransmission consent agreements containing different 

terms and conditions, including price terms, with different 

broadcast stations if such different terms and conditions are 

based on competitive marketplace considerations. 

(4) If an originating television station elects under paragraph 

(3)(B) to exercise its right to grant retransmission consent under 

this subsection with respect to a cable system, the provisions of section 614 shall not apply to the carriage of the signal of such station 

by such cable system. If an originating television station elects 

under paragraph (3)(C) to exercise its right to grant retransmission 

31 

1Margin so in law. 

consent under this subsection with respect to a satellite carrier, 

section 338 shall not apply to the carriage of the signal of such station by such satellite carrier. 

(5) The exercise by a television broadcast station of the right to 

grant retransmission consent under this subsection shall not interfere with or supersede the rights under section 338, 614, or 615 of 

any station electing to assert the right to signal carriage under 

that section. 

(6) Nothing in this section shall be construed as modifying the 

compulsory copyright license established in section 111 of title 17, 

United States Code, or as affecting existing or future video programming licensing agreements between broadcasting stations and 

video programmers. 

(7) 1 For purposes of this subsection, the term— 

(A) ‘‘network station’’ has the meaning given such term 

under section 119(d) of title 17, United States Code; and 

(B) ‘‘television broadcast station’’ means an over-the-air 

commercial or noncommercial television broadcast station 

licensed by the Commission under subpart E of part 73 of 

title 47, Code of Federal Regulations, except that such 

term does not include a low-power or translator television 

station. 

(c) No person shall be permitted to locate, use, or maintain a 

radio broadcast studio or other place or apparatus from which or 

whereby sound waves are converted into electrical energy, or mechanical or physical reproduction of sound waves produced, and 

caused to be transmitted or delivered to a radio station in a foreign 

country for the purpose of being broadcast from any radio station 

there having a power output of sufficient intensity and/or being so 

located geographically that its emissions may be received consistently in the United States, without first obtaining a permit from 

the Commission upon proper application therefor. 

(d) Such application shall contain such information as the Commission may by regulation prescribe, and the granting or refusal 

thereof shall be subject to the requirements of section 309 hereof 

with respect to applications for station licenses or renewal or modification thereof, and the license or permission so granted shall be 

revocable for false statements in the application so required or 

when the Commission, after hearings, shall find its continuation no 

longer in the public interest. 

(e) ENFORCEMENT PROCEEDINGS AGAINST SATELLITE CARRIERS

CONCERNING RETRANSMISSIONS OF TELEVISION BROADCAST STATIONS IN THE RESPECTIVE LOCAL MARKETS OF SUCH CARRIERS.— 

(1) COMPLAINTS BY TELEVISION BROADCAST STATIONS.—If 

after the expiration of the 6-month period described under subsection (b)(2)(E) a television broadcast station believes that a 

satellite carrier has retransmitted its signal to any person in 

the local market of such station in violation of subsection 

(b)(1), the station may file with the Commission a complaint 

providing— 

(A) the name, address, and call letters of the station; 

(B) the name and address of the satellite carrier; 

32 

(C) the dates on which the alleged retransmission occurred; 

(D) the street address of at least one person in the local 

market of the station to whom the alleged retransmission 

was made; 

(E) a statement that the retransmission was not expressly authorized by the television broadcast station; and 

(F) the name and address of counsel for the station. 

(2) SERVICE OF COMPLAINTS ON SATELLITE CARRIERS.—For 

purposes of any proceeding under this subsection, any satellite 

carrier that retransmits the signal of any broadcast station 

shall be deemed to designate the Secretary of the Commission 

as its agent for service of process. A television broadcast station may serve a satellite carrier with a complaint concerning 

an alleged violation of subsection (b)(1) through retransmission 

of a station within the local market of such station by filing the 

original and two copies of the complaint with the Secretary of 

the Commission and serving a copy of the complaint on the 

satellite carrier by means of two commonly used overnight delivery services, each addressed to the chief executive officer of 

the satellite carrier at its principal place of business, and each 

marked ‘‘URGENT LITIGATION MATTER’’ on the outer packaging. Service shall be deemed complete one business day after 

a copy of the complaint is provided to the delivery services for 

overnight delivery. On receipt of a complaint filed by a television broadcast station under this subsection, the Secretary of 

the Commission shall send the original complaint by United 

States mail, postage prepaid, receipt requested, addressed to 

the chief executive officer of the satellite carrier at its principal 

place of business. 

(3) ANSWERS BY SATELLITE CARRIERS.—Within five business 

days after the date of service, the satellite carrier shall file an 

answer with the Commission and shall serve the answer by a 

commonly used overnight delivery service and by United 

States mail, on the counsel designated in the complaint at the 

address listed for such counsel in the complaint. 

(4) DEFENSES.— (A) EXCLUSIVE DEFENSES.—The defenses under this 

paragraph are the exclusive defenses available to a satellite carrier against which a complaint under this subsection is filed. 

(B) DEFENSES.—The defenses referred to under subparagraph (A) are the defenses that— 

(i) the satellite carrier did not retransmit the television broadcast station to any person in the local 

market of the station during the time period specified 

in the complaint; 

(ii) the television broadcast station had, in a writing 

signed by an officer of the television broadcast station, 

expressly authorized the retransmission of the station 

by the satellite carrier to each person in the local market of the television broadcast station to which the 

satellite carrier made such retransmissions for the entire time period during which it is alleged that a violation of subsection (b)(1) has occurred; 

33 

(iii) the retransmission was made after January 1, 

2002, and the television broadcast station had elected 

to assert the right to carriage under section 338 as 

against the satellite carrier for the relevant period; or 

(iv) the station being retransmitted is a noncommercial television broadcast station. 

(5) COUNTING OF VIOLATIONS.—The retransmission without 

consent of a particular television broadcast station on a particular day to one or more persons in the local market of the 

station shall be considered a separate violation of subsection 

(b)(1). 

(6) BURDEN OF PROOF.—With respect to each alleged violation, the burden of proof shall be on a television broadcast station to establish that the satellite carrier retransmitted the 

station to at least one person in the local market of the station 

on the day in question. The burden of proof shall be on the satellite carrier with respect to all defenses other than the defense 

under paragraph (4)(B)(i). 

(7) PROCEDURES.— 

(A) REGULATIONS.—Within 60 days after the date of the 

enactment of the Satellite Home Viewer Improvement Act 

of 1999, the Commission shall issue procedural regulations 

implementing this subsection which shall supersede procedures under section 312. 

(B) DETERMINATIONS.— 

(i) IN GENERAL.—Within 45 days after the filing of 

a complaint, the Commission shall issue a final determination in any proceeding brought under this subsection. The Commission’s final determination shall 

specify the number of violations committed by the satellite carrier. The Commission shall hear witnesses 

only if it clearly appears, based on written filings by 

the parties, that there is a genuine dispute about material facts. Except as provided in the preceding sentence, the Commission may issue a final ruling based 

on written filings by the parties. 

(ii) DISCOVERY.—The Commission may direct the 

parties to exchange pertinent documents, and if necessary to take prehearing depositions, on such schedule as the Commission may approve, but only if the 

Commission first determines that such discovery is 

necessary to resolve a genuine dispute about material 

facts, consistent with the obligation to make a final 

determination within 45 days. 

(8) RELIEF.—If the Commission determines that a satellite 

carrier has retransmitted the television broadcast station to at 

least one person in the local market of such station and has 

failed to meet its burden of proving one of the defenses under 

paragraph (4) with respect to such retransmission, the Commission shall be required to— 

(A) make a finding that the satellite carrier violated subsection (b)(1) with respect to that station; and 

(B) issue an order, within 45 days after the filing of the 

complaint, containing— 

34 

(i) a cease-and-desist order directing the satellite 

carrier immediately to stop making any further retransmissions of the television broadcast station to 

any person within the local market of such station 

until such time as the Commission determines that 

the satellite carrier is in compliance with subsection 

(b)(1) with respect to such station; 

(ii) if the satellite carrier is found to have violated 

subsection (b)(1) with respect to more than two television broadcast stations, a cease-and-desist order directing the satellite carrier to stop making any further 

retransmission of any television broadcast station to 

any person within the local market of such station, 

until such time as the Commission, after giving notice 

to the station, that the satellite carrier is in compliance with subsection (b)(1) with respect to such stations; and 

(iii) an award to the complainant of that complainant’s costs and reasonable attorney’s fees. 

(9) COURT PROCEEDINGS ON ENFORCEMENT OF COMMISSION

ORDER.— 

(A) IN GENERAL.—On entry by the Commission of a final 

order granting relief under this subsection— 

(i) a television broadcast station may apply within 

30 days after such entry to the United States District 

Court for the Eastern District of Virginia for a final 

judgment enforcing all relief granted by the Commission; and 

(ii) the satellite carrier may apply within 30 days 

after such entry to the United States District Court for 

the Eastern District of Virginia for a judgment reversing the Commission’s order. 

(B) APPEAL.—The procedure for an appeal under this 

paragraph by the satellite carrier shall supersede any 

other appeal rights under Federal or State law. A United 

States district court shall be deemed to have personal jurisdiction over the satellite carrier if the carrier, or a company under common control with the satellite carrier, has 

delivered television programming by satellite to more than 

30 customers in that district during the preceding 4-year 

period. If the United States District Court for the Eastern 

District of Virginia does not have personal jurisdiction over 

the satellite carrier, an enforcement action or appeal shall 

be brought in the United States District Court for the District of Columbia, which may find personal jurisdiction 

based on the satellite carrier’s ownership of licenses issued 

by the Commission. An application by a television broadcast station for an order enforcing any cease-and-desist relief granted by the Commission shall be resolved on a 

highly expedited schedule. No discovery may be conducted 

by the parties in any such proceeding. The district court 

shall enforce the Commission order unless the Commission 

record reflects manifest error and an abuse of discretion by 

the Commission. 

35 

(10) CIVIL ACTION FOR STATUTORY DAMAGES.—Within 6 

months after issuance of an order by the Commission under 

this subsection, a television broadcast station may file a civil 

action in any United States district court that has personal jurisdiction over the satellite carrier for an award of statutory 

damages for any violation that the Commission has determined 

to have been committed by a satellite carrier under this subsection. Such action shall not be subject to transfer under section 1404(a) of title 28, United States Code. On finding that 

the satellite carrier has committed one or more violations of 

subsection (b), the District Court shall be required to award 

the television broadcast station statutory damages of $25,000 

per violation, in accordance with paragraph (5), and the costs 

and attorney’s fees incurred by the station. Such statutory 

damages shall be awarded only if the television broadcast station has filed a binding stipulation with the court that such 

station will donate the full amount in excess of $1,000 of any 

statutory damage award to the United States Treasury for 

public purposes. Notwithstanding any other provision of law, a 

station shall incur no tax liability of any kind with respect to 

any amounts so donated. Discovery may be conducted by the 

parties in any proceeding under this paragraph only if and to 

the extent necessary to resolve a genuinely disputed issue of 

fact concerning one of the defenses under paragraph (4). In any 

such action, the defenses under paragraph (4) shall be exclusive, and the burden of proof shall be on the satellite carrier 

with respect to all defenses other than the defense under paragraph (4)(B)(i). A judgment under this paragraph may be enforced in any manner permissible under Federal or State law. 

(11) APPEALS.— 

(A) IN GENERAL.—The nonprevailing party before a 

United States district court may appeal a decision under 

this subsection to the United States Court of Appeals with 

jurisdiction over that district court. The Court of Appeals 

shall not issue any stay of the effectiveness of any decision 

granting relief against a satellite carrier unless the carrier 

presents clear and convincing evidence that it is highly 

likely to prevail on appeal and only after posting a bond 

for the full amount of any monetary award assessed 

against it and for such further amount as the Court of Appeals may believe appropriate. 

(B) APPEAL.—If the Commission denies relief in response 

to a complaint filed by a television broadcast station under 

this subsection, the television broadcast station filing the 

complaint may file an appeal with the United States Court 

of Appeals for the District of Columbia Circuit. 

(12) SUNSET.—No complaint or civil action may be filed 

under this subsection after December 31, 2001. This subsection 

shall continue to apply to any complaint or civil action filed on 

or before such date. 

* * * * * * * 

36 

SEC. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE 

CARRIERS. 

[47 U.S.C. 338]

(a) CARRIAGE OBLIGATIONS.— 

(1) IN GENERAL.—Subject to the limitations of paragraph 

ø(2),¿ (2) and except as provided by paragraph (3), each satellite carrier providing, under section 122 of title 17, United 

States Code, secondary transmissions to subscribers located 

within the local market of a television broadcast station of a 

primary transmission made by that station shall carry upon request the signals of all television broadcast stations located 

within that local market, subject to section 325(b). 

(2) REMEDIES FOR FAILURE TO CARRY.—The remedies for any 

failure to meet the obligations øunder this subsection¿ under 

paragraph (1) shall be available exclusively under section 

501(f ) of title 17, United States Code. 

ø(3) EFFECTIVE DATE.—No satellite carrier shall be required 

to carry local television broadcast stations under paragraph (1) 

until January 1, 2002.¿ 

(3) CERTAIN BROADCAST AREAS.— 

(A) SINGLE NETWORK STATION STATES.—A satellite carrier may elect to carry also the signal of a commercial television broadcast station that was the only network station 

(as defined in section 339(d)(3)) in that State as of January 

1, 1995, for secondary transmission to subscribers in any 

community in that State that is not within 1 of the first 50 

major television markets listed in section 76.51(a) of the 

Commission’s regulations (47 C.F.R. 76.51(a)), as such regulations were in effect on January 1, 1995, if the satellite 

carrier is retransmitting the signal of the station pursuant 

to paragraph (1) of this subsection or section 325(b) of this 

Act. 

(B) MULTIPLE NETWORK STATION STATES.—A satellite 

carrier may elect to carry also the signals of any network 

station (as defined in section 339(d)(3)) or superstation (as 

defined in section 325(b)(2)) in a State in which— 

(i) all network stations and superstations licensed by 

the Commission as of January 1, 1995, were assigned 

to the same local market, and 

(ii) that local market does not encompass all counties 

of that State, 

for secondary transmission to subscribers in that State who 

reside in one of the first 50 major television markets listed 

in section 76.51(a) of the Commission’s regulations (47 

C.F.R. 76.51(a)), as such regulations were in effect on January 1, 1995, if the satellite carrier is retransmitting the 

signals pursuant to paragraph (1) of this subsection or section 325(b) of this Act. 

(4) CARRIAGE OF SIGNALS OF LOCAL STATIONS IN CERTAIN

MARKETS.—A satellite carrier that offers multichannel video 

programming distribution service in the United States to more 

than 5,000,000 subscribers shall, within 2 years after the date 

of enactment of the Satellite Home Viewer Extension and Rural 

Consumer Access to Digital Television Act of 2004, retransmit 

37 

the analog and digital signals of each television broadcast station located in any local market within a State that is not part 

of the contiguous United States and that contains more than 

one television market. The retransmissions of such stations 

shall be made available to substantially all of the satellite carrier’s subscribers in each station’s local market, and the retransmissions of the stations in at least one market in the state 

shall be made available to substantially all of the satellite carrier’s subscribers in areas of the State that are not within a designated market area. The cost to subscribers of such retransmissions shall not exceed the cost of retransmissions of local television stations in other States. Within 1 year after the date of 

enactment of that Act, the Commission shall promulgate regulations concerning elections by television stations in such State 

between mandatory carriage pursuant to this section and retransmission consent pursuant to section 325(b), which shall 

take into account the schedule on which local television stations 

are made available to viewers in such State. 

(b) GOOD SIGNAL REQUIRED.— 

(1) COSTS.—A television broadcast station asserting its right 

to carriage under subsection (a) shall be required to bear the 

costs associated with delivering a good quality signal to the 

designated local receive facility of the satellite carrier or to another facility that is acceptable to at least one-half the stations 

asserting the right to carriage in the local market. 

(2) REGULATIONS.—The regulations issued under subsection 

(g) shall set forth the obligations necessary to carry out this 

subsection. 

(c) DUPLICATION NOT REQUIRED.— 

(1) COMMERCIAL STATIONS.—Notwithstanding subsection (a), 

a satellite carrier shall not be required to carry upon request 

the signal of any local commercial television broadcast station 

that substantially duplicates the signal of another local commercial television broadcast station which is secondarily transmitted by the satellite carrier within the same local market, or 

to carry upon request the signals of more than one local commercial television broadcast station in a single local market 

that is affiliated with a particular television network unless 

such stations are licensed to communities in different States. 

(2) NONCOMMERCIAL STATIONS.—The Commission shall prescribe regulations limiting the carriage requirements under 

subsection (a) of satellite carriers with respect to the carriage 

of multiple local noncommercial television broadcast stations. 

To the extent possible, such regulations shall provide the same 

degree of carriage by satellite carriers of such multiple stations 

as is provided by cable systems under section 615. 

(d) CHANNEL POSITIONING.—No satellite carrier shall be required 

to provide the signal of a local television broadcast station to subscribers in that station’s local market on any particular channel 

number or to provide the signals in any particular order, except 

that the satellite carrier shall retransmit the signal of the local television broadcast stations to subscribers in the stations’ local market on contiguous channels and provide access to such station’s signals at a nondiscriminatory price and in a nondiscriminatory manner on any navigational device, on-screen program guide, or menu. 

38 

(e) COMPENSATION FOR CARRIAGE.—A satellite carrier shall not 

accept or request monetary payment or other valuable consideration in exchange either for carriage of local television broadcast 

stations in fulfillment of the requirements of this section or for 

channel positioning rights provided to such stations under this section, except that any such station may be required to bear the costs 

associated with delivering a good quality signal to the local receive 

facility of the satellite carrier. 

(f) REMEDIES.— (1) COMPLAINTS BY BROADCAST STATIONS.—Whenever a local 

television broadcast station believes that a satellite carrier has 

failed to meet its obligations under subsections (b) through (e) 

of this section, such station shall notify the carrier, in writing, 

of the alleged failure and identify its reasons for believing that 

the satellite carrier failed to comply with such obligations. The 

satellite carrier shall, within 30 days after such written notification, respond in writing to such notification and comply with 

such obligations or state its reasons for believing that it is in 

compliance with such obligations. A local television broadcast 

station that disputes a response by a satellite carrier that it is 

in compliance with such obligations may obtain review of such 

denial or response by filing a complaint with the Commission. 

Such complaint shall allege the manner in which such satellite 

carrier has failed to meet its obligations and the basis for such 

allegations. 

(2) OPPORTUNITY TO RESPOND.—The Commission shall afford 

the satellite carrier against which a complaint is filed under 

paragraph (1) an opportunity to present data and arguments 

to establish that there has been no failure to meet its obligations under this section. 

(3) REMEDIAL ACTIONS; DISMISSAL.—Within 120 days after 

the date a complaint is filed under paragraph (1), the Commission shall determine whether the satellite carrier has met its 

obligations under subsections (b) through (e). If the Commission determines that the satellite carrier has failed to meet 

such obligations, the Commission shall order the satellite carrier to take appropriate remedial action. If the Commission determines that the satellite carrier has fully met the requirements of such subsections, the Commission shall dismiss the 

complaint. 

(g) CARRIAGE OF LOCAL STATIONS ON A SINGLE DISH.— 

(1) GENERAL RULE.—A satellite carrier that retransmits the 

signals of local television broadcast stations in a local market 

shall retransmit the signals of all local television broadcast stations retransmitted by that carrier to subscribers in that market 

by means of a single reception antenna and associated equipment. 

(2) EXCEPTION FOR DIGITAL TELEVISION SERVICE.—Notwithstanding paragraph (1), if the carrier retransmits signals in the 

digital television service, the carrier shall retransmit the digital 

television service signals of all the local television broadcast 

stations retransmitted by that carrier to subscribers in that 

market by means of a single reception antenna and associated 

equipment, but the antenna and associated equipment may be 

separate from the single reception antenna and associated 

39 

equipment used for signals that are not in the digital television 

service. 

(3) 18-MONTH TRANSITION PERIOD FOR EXISTING 2-DISH MARKETS.—In the case of a satellite carrier that, as of July 1, 2004, 

is retransmitting local television broadcast signals to subscribers in local markets by means of more than a single reception antenna and associated equipment, the requirements of 

paragraphs (1) and (2) shall first apply to that carrier in those 

local markets 18 months after the date of enactment of the Satellite Home Viewer Extension and Rural Consumer Access to 

Digital Television Act of 2004. 

(4) ENFORCEMENT.—If a satellite carrier fails to comply with 

the requirements of this subsection— 

(A) the failure to comply shall be punishable under titles IV 

and V of this Act; 

(B) each market with respect to which the satellite carrier 

fails to comply shall be considered to be a separate violation; and 

(C) each day of a continuing violation shall be considered 

to be a separate violation. 

ø(g)¿ (h) REGULATIONS BY COMMISSION.—Within 1 year after the 

date of the enactment of this section, the Commission shall issue 

regulations implementing this section following a rulemaking proceeding. The regulations prescribed under this section shall include 

requirements on satellite carriers that are comparable to the requirements on cable operators under sections 614(b)(3) and (4) and 

615(g)(1) and (2). 

ø(h)¿ (i) DEFINITIONS.—As used in this section: 

(1) DISTRIBUTOR.—The term ‘‘distributor’’ means an entity 

which contracts to distribute secondary transmissions from a 

satellite carrier and, either as a single channel or in a package 

with other programming, provides the secondary transmission 

either directly to individual subscribers or indirectly through 

other program distribution entities. 

(2) LOCAL RECEIVE FACILITY.—The term ‘‘local receive facility’’ means the reception point in each local market which a 

satellite carrier designates for delivery of the signal of the station for purposes of retransmission. 

(3) LOCAL MARKET.—The term ‘‘local market’’ has the meaning given that term under section 122( j) of title 17, United 

States Code. 

(4) SATELLITE CARRIER.—The term ‘‘satellite carrier’’ has the 

meaning given such term under section 119(d) of title 17, 

United States Code. 

(5) SECONDARY TRANSMISSION.—The term ‘‘secondary transmission’’ has the meaning given such term in section 119(d) of 

title 17, United States Code. 

(6) SUBSCRIBER.—The term ‘‘subscriber’’ has the meaning 

given that term under section 122( j) of title 17, United States 

Code. 

(7) TELEVISION BROADCAST STATION.—The term ‘‘television 

broadcast station’’ has the meaning given such term in section 

325(b)(7). 

40 

SEC. 339. CARRIAGE OF DISTANT TELEVISION STATIONS BY SATELLITE CARRIERS. 

[47 U.S.C. 339]

(a) PROVISIONS RELATING TO CARRIAGE OF DISTANT SIGNALS.— 

ø(1) CARRIAGE PERMITTED.— 

ø(A) IN GENERAL.—Subject to section 119 of title 17, 

United States Code, any satellite carrier shall be permitted to provide the signals of no more than two network 

stations in a single day for each television network to any 

household not located within the local markets of those 

network stations. 

ø(B) ADDITIONAL SERVICE.—In addition to signals provided under subparagraph (A), any satellite carrier may 

also provide service under the statutory license of section 

122 of title 17, United States Code, to the local market 

within which such household is located. The service provided under section 122 of such title may be in addition to 

the two signals provided under section 119 of such title.¿ 

(1) CARRIAGE PERMITTED.— 

(A) ANALOG SIGNALS.— 

(i) IN GENERAL.—Subject to section 119 of title 17, 

United States Code, a satellite carrier may provide the 

analog signals of no more than 2 network stations in 

a single day for each television network to any household not located within the local markets of those network stations. 

(ii) ADDITIONAL SERVICE.—To the extent consistent 

with sections 119 and 122 of title 17, United States 

Code, a satellite carrier may also provide service under 

the statutory license of those sections to the local market within which such household is located in addition 

to the signals provided under clause (i). 

(B) DIGITAL SIGNALS.—To the extent consistent with section 119 of title 17, United States Code, a satellite carrier 

may provide the digital signals of no more than 2 network 

stations in a single day for each television network to any 

household not located within the local markets of those network stations. Nothing in this subparagraph creates a statutory license under section 119(a) or (b) of title 17, United 

States Code. 

(2) PENALTY FOR VIOLATION.—Any satellite carrier that 

knowingly and willfully provides the signals of television stations to subscribers in violation of this subsection shall be liable for a forfeiture penalty under section 503 in the amount of 

$50,000 for each violation or each day of a continuing violation. 

(b) EXTENSION OF NETWORK NONDUPLICATION, SYNDICATED EXCLUSIVITY, AND SPORTS BLACKOUT TO SATELLITE RETRANSMISSION.— 

(1) EXTENSION OF PROTECTIONS.—Within 45 days after the 

date of the enactment of the Satellite Home Viewer Improvement Act of 1999, the Commission shall commence a single 

rulemaking proceeding to establish regulations that— 

(A) apply network nonduplication protection (47 CFR 

76.92) syndicated exclusivity protection (47 CFR 76.151), 

41 

and sports blackout protection (47 CFR 76.67) to the retransmission of the signals of nationally distributed superstations by satellite carriers to subscribers; and 

(B) to the extent technically feasible and not economically prohibitive, apply sports blackout protection (47 CFR 

76.67) to the retransmission of the signals of network stations by satellite carriers to subscribers. 

(2) DEADLINE FOR ACTION.—The Commission shall complete 

all actions necessary to prescribe regulations required by this 

section so that the regulations shall become effective within 1 

year after such date of enactment. 

(c) ELIGIBILITY FOR RETRANSMISSION OF DISTANT ANALOG SIGNALS.— 

(1) SIGNAL STANDARD FOR SATELLITE CARRIER PURPOSES.— 

For the purposes of identifying an unserved household under 

section 119(d)(10) of title 17, United States Code, within 1 year 

after the date of the enactment of the Satellite Home Viewer 

Improvement Act of 1999, the Commission shall conclude an 

inquiry to evaluate all possible standards and factors for determining eligibility for retransmissions of the signals of network 

stations, and, if appropriate— 

(A) recommend modifications to the Grade B intensity 

standard for analog signals set forth in section 73.683(a) of 

its regulations (47 CFR 73.683(a)), or recommend alternative standards or factors for purposes of determining 

such eligibility; and 

(B) make a further recommendation relating to an appropriate standard for digital signals. 

(2) WAIVERS.—A subscriber who is denied the retransmission 

of a signal of a network station under section 119 of title 17, 

United States Code, may request a waiver from such denial by 

submitting a request, through such subscriber’s satellite carrier, to the network station asserting that the retransmission 

is prohibited. The network station shall accept or reject a subscriber’s request for a waiver within 30 days after receipt of 

the request. The subscriber shall be permitted to receive such 

retransmission under section 119(d)(10)(B) of title 17, United 

States Code, if such station agrees to the waiver request and 

files with the satellite carrier a written waiver with respect to 

that subscriber allowing the subscriber to receive such retransmission. If a television network station fails to accept or reject 

a subscriber’s request for a waiver within the 30-day period 

after receipt of the request, that station shall be deemed to 

agree to the waiver request and have filed such written waiver. 

(3) ESTABLISHMENT OF IMPROVED PREDICTIVE MODEL REQUIRED.—Within 180 days after the date of the enactment of 

the Satellite Home Viewer Improvement Act of 1999, the Commission shall take all actions necessary, including any reconsideration, to develop and prescribe by rule a point-to-point 

predictive model for reliably and presumptively determining 

the ability of individual locations to receive signals in accordance with the signal intensity standard in effect under section 

119(d)(10)(A) of title 17, United States Code. In prescribing 

such model, the Commission shall rely on the Individual Location Longley-Rice model set forth by the Federal CommunicaVerDate Aug 04 2004 02:31 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00043 Fmt 6659 Sfmt 6601 E:\HR\OC\SR427.XXX SR427
42 

tions Commission in Docket No. 98–201 and ensure that such 

model takes into account terrain, building structures, and 

other land cover variations. The Commission shall establish 

procedures for the continued refinement in the application of 

the model by the use of additional data as it becomes available. 

(4) OBJECTIVE VERIFICATION.— (A) IN GENERAL.—If a subscriber’s request for a waiver 

under paragraph (2) is rejected and the subscriber submits 

to the subscriber’s satellite carrier a request for a test 

verifying the subscriber’s inability to receive a signal that 

meets the signal intensity standard in effect under section 

119(d)(10)(A) of title 17, United States Code, the satellite 

carrier and the network station or stations asserting that 

the retransmission is prohibited with respect to that subscriber shall select a qualified and independent person to 

conduct a test in accordance with section 73.686(d) of its 

regulations (47 CFR 73.686(d)), or any successor regulation. Such test shall be conducted within 30 days after the 

date the subscriber submits a request for the test. If the 

written findings and conclusions of a test conducted in accordance with such section (or any successor regulation) 

demonstrate that the subscriber does not receive a signal 

that meets or exceeds the signal intensity standard in effect under section 119(d)(10)(A) of title 17, United States 

Code, the subscriber shall not be denied the retransmission of a signal of a network station under section 119 

of title 17, United States Code. 

(B) DESIGNATION OF TESTER AND ALLOCATION OF

COSTS.—If the satellite carrier and the network station or 

stations asserting that the retransmission is prohibited are 

unable to agree on such a person to conduct the test, the 

person shall be designated by an independent and neutral 

entity designated by the Commission by rule. Unless the 

satellite carrier and the network station or stations otherwise agree, the costs of conducting the test under this 

paragraph shall be borne by the satellite carrier, if the station’s signal meets or exceeds the signal intensity standard 

in effect under section 119(d)(10)(A) of title 17, United 

States Code, or by the network station, if its signal fails 

to meet or exceed such standard. 

(C) AVOIDANCE OF UNDUE BURDEN.— Commission regulations prescribed under this paragraph shall seek to avoid 

any undue burden on any party. 

(D) REDUCTION OF VERIFICATION BURDENS.—Within one 

year after the date of enactment of the Satellite Home Viewer Extension and Rural Consumer Access to Digital Television Act of 2004, the Commission shall by rule exempt 

from the verification requirements of subparagraph (A) any 

request for a test made by a subscriber to a satellite carrier— 

(i) to whom the retransmission of the signals of local 

broadcast stations is available under section 122 of 

title 17, United States Code, from such carrier; or 

(ii) for whom the predictive model required by paragraph (3) predicts a signal intensity that exceeds the 

43 

signal intensity standard in effect under section 

119(d)(11)(A) of such title by such number of decibels 

as the Commission specifies in such rule. 

(E) EXCEPTION.—Notwithstanding any provision of this 

Act, this section does not prohibit a subscriber who is predicted to receive a signal that meets or exceeds such signal 

intensity standard from conducting a signal strength test at 

the subscriber’s own expense for the purpose of determining 

their eligibility for distant signals under this section. 

(5) DEFINITION.—Notwithstanding subsection ø(d)(4),¿ (e)(4), 

for purposes of paragraphs (2) and (4) of this subsection, the 

term ‘‘satellite carrier’’ includes a distributor (as defined in section 119(d)(1) of title 17, United States Code), but only if the 

satellite distributor’s relationship with the subscriber includes 

billing, collection, service activation, and service deactivation. 

(d) ELIGIBILITY FOR RETRANSMISSION OF DISTANT DIGITAL SIGNALS.— 

(1) IN GENERAL.—For purposes of identifying an unserved 

digital household under section 119(d)(10) of title 17, United 

States Code, within 2 years after the date of enactment of the 

Satellite Home Viewer Extension and Rural Consumer Access to 

Digital Television Act of 2004, the Commission shall conclude 

a proceeding— 

(A) to determine the appropriate signal standard for determining eligibility for retransmissions of the digital signals of network stations; 

(B) to develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining 

the ability of individual locations to receive digital signals 

in accordance with the signal standard determined under 

subparagraph (A), and in prescribing that model, the Commission shall— 

(i) ensure that it takes into account terrain, building 

structures, and other land cover variations; 

(ii) establish procedures for the continued refinement 

in the application of the model by the use of additional 

data as it becomes available; and 

(iii) provide that any network station that would be 

expected to serve a household but is not serving that 

household due to noneconomic circumstances beyond 

its control will be deemed to be serving such a household; and 

(C) to establish appropriate waiver and objective 

verification procedures, similar to the procedures under 

paragraphs (2) and (4) of subsection (c), to apply to 

unserved digital household determinations made pursuant 

to the model. 

(2) PRESERVATION OF EXISTING ELIGIBILITY.—Until the Commission completes the proceeding required by paragraph (1), an 

unserved household for purposes of section 119(d)(10) of title 17, 

United States Code, with respect to the digital signals of a particular network, is a household that is eligible to receive retransmission of analog signals pursuant to subsection (c) of this 

section and section 119(a) of title 17, United States Code. 

44 

(3) LOCAL-TO-LOCAL MARKET REQUIREMENT.—For purposes of 

applying the rule prescribed by the Commission under paragraph (1) only, a satellite carrier may not retransmit the digital 

signals of a network station in any local market in which it 

does not provide secondary transmission to subscribers located 

within that local market of the analog signals of television 

broadcast stations located within that local market under section 338(a)(1) of this Act. 

(4) NOTICES.— (A) BY CARRIER TO CUSTOMERS TO WHOM DIGITAL SIGNAL

WILL BE PROVIDED.—A satellite carrier providing a distant 

digital signal pursuant to this section shall notify its customers in a clear and conspicuous manner before offering 

the distant digital signal that it will cease providing that 

digital signal within 120 days after the date on which it is 

notified that the household ceases to be an unserved household with respect to digital signals. 

(B) BY NETWORK STATION TO SATELLITE CARRIER.—Within not more than 48 hours after filing with the Commission 

any license application that will result in any household 

ceasing to be an unserved digital household, a network station shall notify all satellite carriers of the filing. 

(C) BY SATELLITE CARRIERS TO NETWORK STATIONS.— (i) RESPONSE TO STATION NOTICE.—Within 60 days 

after receiving notification under subparagraph (B) 

from a network station, a satellite carrier shall transmit a list identifying (by name and street address, including county and zip code) all subscribers to which 

the satellite carrier provides a distant digital signal in 

the local market of the network station whose service 

will be terminated under paragraph (5). 

(ii) COMPLETION OF COMMISSION PROCEEDING.— 

Within 120 days after the Commission completes the 

proceeding required by paragraph (1), each satellite 

carrier shall transmit a comprehensive list to the network stations that, as a result of the proceeding, are 

providing a digital signal to the satellite carrier’s subscribers, containing the information required by clause 

(i). 

(D) LIST USED ONLY FOR COMPLIANCE.—It is unlawful for 

any person to use a list provided under this paragraph, or 

information derived from such a list, for any purpose other 

than compliance with the requirements of this section. 

(5) TERMINATION OF CARRIAGE TO HOUSEHOLDS THAT LOSE

UNSERVED STATUS.—Within 120 days after the date on which a 

satellite carrier receives notice under paragraph (4)(B), it shall 

cease providing the distant digital signal to subscribers in 

households, determined on the basis of the notice, that will 

cease to be unserved households with respect to digital signals. 

Within 120 days after the date on which the Commission completes the proceeding required by paragraph (1) (or on such date 

as the Commission in that proceeding may otherwise specify), 

a satellite carrier shall cease providing distant digital signals 

to households required as a result of the Commission’s action. 

(6) ENFORCEMENT.— 

45 

(A) IN GENERAL.—Compliance with this section shall be 

enforced under titles IV and V of this Act. 

(B) SPECIAL RULE FOR SATELLITE CARRIER LIST REQUIREMENT.—If a satellite carrier fails to provide a complete list 

of subscribers in accordance with the requirements of paragraph (4)(C)(i), then each household with respect to which 

such failure occurs shall constitute a separate violation. 

(C) SPECIAL RULE FOR TERMINATIONS.—If a satellite carrier providing a distant digital signal pursuant to this section fails to comply with the requirements of paragraph (5), 

then— 

(i) each household with respect to which the satellite 

carrier fails to comply shall be considered to be a separate violation for purposes of section 503(b) of this Act; 

and 

(ii) each day of a continuing violation shall be considered to be a separate violation. 

(7) APPLICATION OF SECTION 338.—Nothing in this subsection 

affects the obligations of a satellite carrier under section 338(a) 

of this Act. 

ø(d)¿ (e) DEFINITIONS.—For the purposes of this section: 

(1) LOCAL MARKET.—The term ‘‘local market’’ has the meaning given that term under section 122( j) of title 17, United 

States Code. 

(2) NATIONALLY DISTRIBUTED SUPERSTATION.—The term ‘‘nationally distributed superstation’’ means a television broadcast 

station, licensed by the Commission, that— 

(A) is not owned or operated by or affiliated with a television network that, as of January 1, 1995, offered interconnected program service on a regular basis for 15 or 

more hours per week to at least 25 affiliated television licensees in 10 or more States; 

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

(C) was, as of July 1, 1998, retransmitted by a satellite 

carrier under the statutory license of section 119 of title 

17, United States Code. 

(3) NETWORK STATION.—The term ‘‘network station’’ has the 

meaning given such term under section 119(d) of title 17, 

United States Code. 

(4) SATELLITE CARRIER.—The term ‘‘satellite carrier’’ has the 

meaning given such term under section 119(d) of title 17, 

United States Code. 

(5) TELEVISION NETWORK.—The term ‘‘television network’’ 

means a television network in the United States which offers 

an interconnected program service on a regular basis for 15 or 

more hours per week to at least 25 affiliated broadcast stations 

in 10 or more States. 

SEC. 340. CARRIAGE OF TELEVISION SIGNALS TO CERTAIN SUBSCRIBERS. 

(a) IN GENERAL.—A multichannel video programming distributor 

may elect to retransmit, to subscribers in an eligible county— 

(1) any television broadcast stations that are located in the 

State in which the county is located and that any multichannel 

46 

video programming distributor was retransmitting to subscribers in the county on January 1, 2004; or 

(2) up to 2 television broadcast stations located in the State 

in which the county is located, if the number of television 

broadcast stations that the multichannel video programming 

distributor is authorized to carry under paragraph (1) is less 

than 3. 

(b) DEEMED SIGNIFICANTLY VIEWED.—Any station described in 

subsection (a) is deemed to be significantly viewed in the eligible 

county within the meaning of section 76.54 of the Commission’s regulations (47 C.F.R. 76.54). 

(c) DEFINITION OF ELIGIBLE COUNTY.—For purposes of this subsection, the term ‘‘eligible county’’ means any 1 of 4 counties that— 

(1) are in a single State; 

(2) on January 1, 2004, were in local markets principally 

comprised of counties in another State; and 

(3) had a combined total of 41,340 television households according to the U.S. Television Household Estimates by Nielsen 

Media Research for 2003–2004. 

(d) LIMITATION.—Carriage of a station under this section shall be 

at the option of the multichannel video programming distributor. 

* * * * * * * 

TITLE VI—CABLE COMMUNICATIONS

PART IV. MISCELLANEOUS PROVISIONS

SEC. 631. PROTECTION OF SUBSCRIBER PRIVACY. 

[47 U.S.C. 551]

(a)(1) At the time of entering into an agreement to provide any 

cable service or other service to a subscriber and at least once a 

year thereafter, a cable operator shall provide notice in the form 

of a separate, written statement to such subscriber which clearly 

and conspicuously informs the subscriber of— 

(A) the nature of personally identifiable information collected 

or to be collected with respect to the subscriber and the nature 

of the use of such information; 

(B) the nature, frequency, and purpose of any disclosure 

which may be made of such information, including an identification of the types of persons to whom the disclosure may be 

made; 

(C) the period during which such information will be maintained by the cable operator; 

(D) the times and place at which the subscriber may have access to such information in accordance with subsection (d); and 

(E) the limitations provided by this section with respect to 

the collection and disclosure of information by a cable operator 

and the right of the subscriber under subsections (f) and (h) to 

enforce such limitations. 

In the case of subscribers who have entered into such an agreement before the effective date of this section, such notice shall be 

provided within 180 days of such date and at least once a year 

thereafter. 

(2) For purposes of this section, other than subsection (h)— 

47 

(A) the term ‘‘personally identifiable information’’ does not 

include any record of aggregate data which does not identify 

particular persons; 

(B) the term ‘‘other service’’ includes any wire or radio communications service provided using any of the facilities of a 

cable operator that are used in the provision of cable service; 

and 

(C) the term ‘‘cable operator’’ includes, in addition to persons 

within the definition of cable operator in section 602, any person who (i) is owned or controlled by, or under common ownership or control with, a cable operator, and (ii) provides any 

wire or radio communications service. 

(b)(1) Except as provided in paragraph (2), a cable operator shall 

not use the cable system to collect personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned. 

(2) A cable operator may use the cable system to collect such information in order to— 

(A) obtain information necessary to render a cable service or 

other service provided by the cable operator to the subscriber; 

or 

(B) detect unauthorized reception of cable communications. 

(c)(1) Except as provided in paragraph (2), a cable operator shall 

not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to 

prevent unauthorized access to such information by a person other 

than the subscriber or cable operator. 

(2) A cable operator may disclose such information if the disclosure is— 

(A) necessary to render, or conduct a legitimate business activity related to, a cable service or other service provided by 

the cable operator to the subscriber; 

(B) subject to subsection (h), made pursuant to a court order 

authorizing such disclosure, if the subscriber is notified of such 

order by the person to whom the order is directed; 

(C) a disclosure of the names and addresses of subscribers to 

any cable service or other service, if— 

(i) the cable operator has provided the subscriber the opportunity to prohibit or limit such disclosure, and 

(ii) the disclosure does not reveal, directly or indirectly, 

the— 

(I) extent of any viewing or other use by the subscriber of a cable service or other service provided by 

the cable operator, or 

(II) the nature of any transaction made by the subscriber over the cable system of the cable operator; or 

(D) to a government entity as authorized under chapters 119, 

121, or 206 of title 18, United States Code, except that such 

disclosure shall not include records revealing cable subscriber 

selection of video programming from a cable operator. 

(d) A cable subscriber shall be provided access to all personally 

identifiable information regarding that subscriber which is collected and maintained by a cable operator. Such information shall 

be made available to the subscriber at reasonable times and at a 

48 

convenient place designated by such cable operator. A cable subscriber shall be provided reasonable opportunity to correct any 

error in such information. 

(e) A cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for 

which it was collected and there are no pending requests or orders 

for access to such information under subsection (d) or pursuant to 

a court order. 

(f)(1) Any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States 

district court. 

(2) The court may award— 

(A) actual damages but not less than liquidated damages 

computed at the rate of $100 a day for each day of violation 

or $1,000, whichever is higher; 

(B) punitive damages; and 

(C) reasonable attorneys’ fees and other litigation costs reasonably incurred. 

(3) The remedy provided by this section shall be in addition to 

any other lawful remedy available to a cable subscriber. 

(g) Nothing in this title shall be construed to prohibit any State 

or any franchising authority from enacting or enforcing laws consistent with this section for the protection of subscriber privacy. 

(h) Except as provided in subsection (c)(2)(D), a governmental entity may obtain personally identifiable information concerning a 

cable subscriber pursuant to a court order only if, in the court proceeding relevant to such court order— 

(1) such entity offers clear and convincing evidence that the 

subject of the information is reasonably suspected of engaging 

in criminal activity and that the information sought would be 

material evidence in the case; and 

(2) the subject of the information is afforded the opportunity 

to appear and contest such entity’s claim. 

(i) APPLICATION TO DBS PROVIDERS.— 

(1) IN GENERAL.—The provisions of this section shall apply to 

satellite carriers in the same way and to the same extent as they 

apply to cable operators. 

(2) SPECIAL RULE.—For the purpose of applying the last sentence of subsection (a)(1) to a satellite carrier, the phrase ‘‘the 

date of enactment of the Satellite Home Viewer Extension and 

Rural Consumer Access to Digital Television Act of 2004,’’ shall 

be substituted for the phrase ‘‘the effective date of this section,’’. 

(3) SATELLITE CARRIER.—In this subsection, the term ‘‘satellite carrier’’ means any person using the facilities of a satellite 

or satellite service licensed by the Federal Communications 

Commission and operating in the Fixed-Satellite Service, or the 

Direct Broadcast Satellite Service, under part 25 of title 47 of 

the Code of Federal Regulations to establish and operate a 

channel of communications for distribution of signals, and owning or leasing a capacity or service on a satellite in order to provide such distribution. 

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