72968 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

limits of city/town or the reservation, 

station, established area where 

stationed’’ and adding ‘‘The location 

where the employee regularly performs 

his or her duties or an invitational 

traveler’s home or regular place of 

business. If the employee’s work 

involves recurring travel or varies on a 

recurring basis, the location where the 

work activities of the employee’s 

position of record are based is 

considered the employee’s official 

station’’ in its place. 

Appendix E to Chapter 301 [Amended] 

■ 21. Amend Appendix E to Chapter 

301, under the heading ‘‘Food and 

Drink’’, in the first bulleted entry, by 

removing the words ‘‘official duty 

stations’’ and adding the words ‘‘official 

stations’’ in its place. 

PART 302–1—GENERAL RULES 

■ 22. The authority citation for 41 CFR 

part 302–1 continues to read as follows: 

Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a). 

§ 302–1.1 [Amended] 

■ 23. Amend § 302–1.1(a) by removing 

the words ‘‘official duty station’’ and 

adding the words ‘‘official station’’ in its 

place. 

PART 302–2—EMPLOYEES 

ELIGIBILITY REQUIREMENTS 

■ 24. The authority citation for 41 CFR 

part 302–2 continues to read as follows: 

Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a). 

§ 302–2.2 [Amended] 

■ 25. Amend § 302–2.2 by removing the 

words ‘‘official duty station’’ and adding 

the words ‘‘official station’’ in its place 

wherever it appears in the section 

heading and the text. 

§ 302–2.6 [Amended] 

■ 26. Amend § 302–2.6 by removing 

from the section heading the words 

‘‘official duty station’’ and adding the 

words ‘‘official station’’ in its place. 

PART 302–3—RELOCATION 

ALLOWANCE BY SPECIFIC TYPE 

■ 27. The authority citation for 41 CFR 

part 302–3 continues to read as follows: 

Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a). 

§ 302–3.312 [Amended] 

■ 28. Amend § 302–3.312 by removing 

from the section heading the words 

‘‘official duty station’’ and adding the 

words ‘‘official station’’ in its place. 

PART 302–7—TRANSPORTATION AND 

TEMPORARY STORAGE OF 

HOUSEHOLD GOODS AND 

PROFESSIONAL BOOKS, PAPERS, 

AND EQUIPMENT (PBP&E) 

■ 29. The authority citation for 41 CFR 

part 302–7 continues to read as follows: 

Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); 

E.O 11609, 36 FR 13747, 3 CFR, 1971–1973 

Comp. p. 586. 

§ 302–7.1 [Amended] 

■ 30. Amend § 302–7.1— 

■ a. In paragraph (a) by removing the 

words ‘‘official duty stations’’ and 

adding the words ‘‘official stations’’ in 

its place. 

■ b. In paragraph (b) by removing the 

words ‘‘official duty station’’ and adding 

the words ‘‘official station’’ in its place. 

PART 302–11—ALLOWANCES FOR 

EXPENSES INCURRED IN 

CONNECTION WITH RESIDENCE 

TRANSACTIONS 

■ 31. The authority citation for 41 CFR 

part 302–11 continues to read as 

follows: 

Authority: 5 U.S.C. 5738 and 20 U.S.C. 

905(c). 

§ 302–11.1 [Amended] 

■ 32. Amend § 302–11.1(a) by removing 

the words ‘‘official duty station’’ and 

adding the words ‘‘official station’’ in its 

place wherever it appears. 

PART 303–70—AGENCY 

REQUIREMENTS FOR PAYMENT OF 

EXPENSES CONNECTED WITH THE 

DEATH OF CERTAIN EMPLOYEES 

■ 33. The authority citation for 41 CFR 

part 303–70 continues to read as 

follows: 

Authority: 5 U.S.C. 5721–5738; 5741– 

5742; E.O. 11609, 3 CFR, 1971–1975 Comp., 

p. 586. 

§ 303–70.300 [Amended] 

■ 34. Amend § 303–70.300 by removing 

the words ‘‘official duty station’’ and 

adding the words ‘‘official station’’ in its 

place. 

[FR Doc. 2010–29730 Filed 11–26–10; 8:45 am] 

BILLING CODE 6820–14–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 10–148; FCC 10–193] 

Implementation of Section 203 of the 

Satellite Television Extension and 

Localism Act of 2010 (STELA); 

Amendments to Section 340 of the 

Communications Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission modifies its satellite 

television ‘‘significantly viewed’’ rules to 

implement Section 203 of the Satellite 

Television Extension and Localism Act 

of 2010 (STELA). Section 203 of the 

STELA amends Section 340 of the 

Communications Act, which gives 

satellite carriers the authority to offer 

out-of-market but ‘‘significantly viewed’’ 

broadcast television network stations as 

part of their local service to subscribers. 

The STELA requires the Commission to 

promulgate final rules in this 

proceeding on or before November 24, 

2010. 

DATES: Effective December 29, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Evan Baranoff, Evan.Baranoff@fcc.gov, 

of the Media Bureau, Policy Division, 

(202) 418–2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order and Order on 

Reconsideration (Order), FCC 10–193, 

adopted on Nov. 22, 2010, and released 

on Nov. 23, 2010. The full text of this 

document is available electronically via 

ECFS at http://fjallfoss.fcc.gov/ecfs/ or 

may be downloaded at http:// 

hraunfoss.fcc.gov/edocs-public/ 

attachmatch/FCC–10–130.pdf. 

(Documents will be available 

electronically in ASCII, Word 97, 

and/or Adobe Acrobat.) This document 

is also available for public inspection 

and copying during regular business 

hours in the FCC Reference Center, 

Federal Communications Commission, 

445 12th Street, SW., CY–A257, 

Washington, DC 20554. The complete 

text may be purchased from the 

Commission’s copy contractor, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554. Alternative 

formats are available for people with 

disabilities (Braille, large print, 

electronic files, audio format), by 

sending an e-mail to fcc504@fcc.gov or 

calling the Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 72969 

1The Satellite Television Extension and Localism 

Act of 2010 (STELA) sec. 203, Public Law 111–175, 

124 Stat. 1218, 1245 (2010) (sec. 203 codified as 

amended at 47 U.S.C. 340, other STELA 

amendments codified in scattered sections of 17 

and 47 U.S.C.). The STELA was enacted on May 27, 

2010 (S. 3333, 111th Cong.). This proceeding to 

implement STELA sec. 203 (titled ‘‘Significantly 

Viewed Stations’’), 124 Stat. at 1245, and the related 

statutory copyright license provisions in STELA 

sec. 103 (titled ‘‘Modifications to Statutory License 

for Satellite Carriers in Local Markets’’), 124 Stat. at 

1227–28, is one of a number of Commission 

proceedings that are required to implement the 

STELA. 

2 47 U.S.C. 340. We note that the nature of SV 

carriage under Section 340 is permissive (and not 

mandatory), meaning a satellite carrier may choose 

to carry an SV station. The statute also requires that 

the SV station grant consent in order for its signal 

to be carried. Id. 340(d). 

3STELA–Significantly Viewed NPRM, FCC 10– 

130, 75 FR 44198, July 28, 2010 (NPRM). 

4We identify the list of commenters and reply 

commenters to this docket in Appendix. We also 

received ex parte submissions in this docket. All of 

the filings made in this docket are available to the 

public both online via the Commission’s Electronic 

Comment Filing System (‘‘ECFS’’) at http:// 

www.fcc.gov/cgb/ecfs/ and during regular business 

hours in the FCC Reference Center, Federal 

Communications Commission, 445 12th Street, 

SW., CY–A257, Washington, DC 20554. 

5The STELA requires the Commission to 

implement the amendments within 270 days after 

the date of the enactment. STELA sec. 203(b). The 

STELA establishes February 27, 2010 as its effective 

date or ‘‘date of enactment,’’ even though the law 

was enacted by Presidential signature on May 27, 

2010. STELA sec. 307. Congress passed four shortterm extensions of the distant signal statutory 

copyright license (December 19, 2009, March 2, 

March 25 and April 15, 2010) before passing STELA 

to reauthorize the compulsory license for distant 

signal carriage for five years. STELA sec. 107(a). 

6SHVERA Significantly Viewed Report and 

Order, FCC 05–187, 70 FR 76504, December 27, 

2005. See DIRECTV and EchoStar Satellite L.L.C. 

(now Dish) Joint Petition for Reconsideration in MB 

Docket No. 05–49 (filed Jan. 26, 2006) (‘‘2006 

DIRECTV–EchoStar Joint Petition’’). 

7To qualify for significantly viewed status (i.e., 

for placement on the significantly viewed list or 

‘‘SV List,’’ see note 10, infra), an SV station can be 

either a ‘‘network’’ station or an ‘‘independent’’ 

station, with network stations requiring a higher 

share of viewing hours. 47 CFR 76.5(i)(1) and (2). 

The Commission’s rules define network station as 

one of the ‘‘three major national television 

networks’’ (i.e., ABC, CBS or NBC). 47 CFR 76.5(j) 

and (k). Parties may demonstrate that stations are 

significantly viewed either on a community basis or 

on a county-wide basis. 47 CFR 76.54(b), (d). 

8See 17 U.S.C. 122(j)(2)(A) (defining ‘‘local 

market’’). 

9See 47 CFR 76.5, 76.7, 76.54. A TV station, cable 

operator or satellite carrier that wishes to have a 

station designated significantly viewed must file a 

petition pursuant to the pleading requirements in 

47 CFR 76.7(a)(1) and use the method described in 

47 CFR 76.54 to demonstrate that the station is 

significantly viewed as defined in 47 CFR 76.5(i). 

10The significantly viewed list or ‘‘SV List’’ 

identifies the list of stations the Commission has 

determined to be significantly viewed in specified 

counties and communities. The list applies to both 

cable and satellite providers. The Commission 

updates this list as necessary upon the appropriate 

demonstrations by stations or cable or satellite 

providers. A station, satellite carrier or cable 

operator may petition the Commission, either to 

add eligible stations or communities pursuant to 47 

CFR 76.54, or to restrict carriage of eligible stations 

through application of the Commission’s network 

non-duplication or syndicated exclusivity rules in 

47 CFR 76.122(a), (j) and 76.123(a), (k). Generally, 

a station’s SV status is only challenged when 

another station seeks to exercise its rights under the 

network non-duplication or syndicated program 

exclusivity rules, and the SV station asserts its SV 

status, which is an exception to both requirements. 

See 47 CFR 76.92(f) (SV exception in cable network 

non-duplication rules); 47 CFR 76.106(a) (SV 

exception in cable syndicated program exclusivity 

rules); 47 CFR 76.122(j) (SV exception in satellite 

network non-duplication rules); and 47 CFR 

76.123(k) (SV exception to satellite syndicated 

program exclusivity rules). If a station’s SV status 

is challenged, and it is demonstrated that the 

station is no longer significantly viewed in a 

particular community or county, the station’s listing 

is modified to indicate that it is subject to 

programming deletions in those communities or 

counties. See SHVERA Significantly Viewed Report 

and Order at para. 14. The current SV List is 

available on the Media Bureau’s Web site at 

http://www.fcc.gov/mb/. 

11See 47 CFR 76.5(dd) (defining cable 

‘‘community unit’’) and 76.5(gg) (defining a ‘‘satellite 

community’’). 

12For copyright purposes, significantly viewed 

status means that cable and satellite providers may 

carry the out-of-market but SV station with the 

reduced copyright payment obligations applicable 

to local (in-market) stations. See 17 U.S.C. 111(a), 

(c), (d), and (f), as amended by STELA sec. 104 

(relating to cable statutory copyright license) and 

122(a)(2), as amended by STELA sec. 103 (relating 

to satellite statutory copyright license). 

13 17 U.S.C. 122(j)(2)(C) (defining DMA as ‘‘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’’). 

14See Cable Television Report and Order, FCC 

72–108 at para. 83, 37 FR 3252, February 3, 1972 

(adopting the concept of ‘‘significantly viewed’’ 

signals to differentiate between otherwise out-ofmarket television stations ‘‘that have sufficient 

audience to be considered local and those that do 

not’’). 

15Section 202 of the Satellite Home Viewer 

Extension and Reauthorization Act of 2004 

(SHVERA) created Section 340 of the 

Communications Act, which authorized satellite 

carriage of Commission-determined SV stations. See 

SHVERA sec. 202, Public Law 108–447, 118 Stat 

2809, 3393 (2004) (codified in 47 U.S.C. 340). See 

also SHVERA Significantly Viewed Report and 

Order. 

16See 47 U.S.C. 340(b) and 47 CFR 76.54(g) and 

(h). See also infra para. 8 (for background). 

17 47 U.S.C. 340(b)(1) and (2). See SHVERA 

Significantly Viewed Report and Order at para. 94. 

The Copyright Act’s definitions of ‘‘network station’’ 

and ‘‘non-network station’’ will apply for purposes 

of determining subscriber eligibility to receive an 

SV network station. See 47 U.S.C. 339(d) and 47 

U.S.C 122(j)(4), as amended, applying the 

definitions of such terms in 47 U.S.C 119(d)(2) and 

(9). Unlike the definition in the Commission’s rules, 

which specifically include only ABC, CBS and NBC 

(see supra note 7), the Copyright Act definition of 

‘‘network station’’ may include other stations. See 

SHVERA Significantly Viewed Report and Order at 

paras. 35–36 and n. 102. 

418–0530 (voice), (202) 418–0432 

(TTY). 

Summary of the Report and Order and 

Order on Reconsideration 

I. Introduction 

1. With this Report and Order 

(‘‘R&O’’), we modify our satellite 

television ‘‘significantly viewed’’ rules to 

implement Section 203 of the Satellite 

Television Extension and Localism Act 

of 2010 (STELA).1 Section 203 of the 

STELA amends Section 340 of the 

Communications Act of 1934 

(‘‘Communications Act’’ or ‘‘Act’’), which 

gives satellite carriers the authority to 

offer out-of-market but ‘‘significantly 

viewed’’ broadcast television stations as 

part of their local service to 

subscribers.2 We initiated this 

proceeding on July 23, 2010 by issuing 

a Notice of Proposed Rulemaking 

(‘‘NPRM’’).3 We received 20 comments 

and reply comments (from 17 parties) in 

response to our NPRM.4 With this R&O, 

we satisfy the STELA’s mandate that the 

Commission promulgate final rules in 

this proceeding on or before November 

24, 2010.5 In addition, in this Order on 

Reconsideration, we dispose of the 

pending petition for reconsideration of 

the 2005 SHVERA Significantly Viewed 

Report and Order.6

2. Significantly viewed (‘‘SV’’) stations 

are television broadcast stations that the 

Commission has determined have 

sufficient over-the-air (i.e., non-cable or 

non-satellite) viewing 7 to be considered 

local for certain purposes and so are not 

constrained by the boundary of the 

stations’ local market or Designated 

Market Area (‘‘DMA’’).8 The individual 

TV station, or cable operator or satellite 

carrier that seeks to carry the station, 

may petition the Commission to obtain 

‘‘significantly viewed’’ status for the 

station,9 and placement on the SV 

List.10 The designation of ‘‘significantly 

viewed’’ status allows a station assigned 

to one market to be treated as a ‘‘local’’ 

station with respect to a particular cable 

or satellite community 11 in another 

market, and, thus, enables it to be 

carried by cable or satellite in that 

community in the other market.12 In 

general, SV status applies to only some 

communities or counties in a DMA and 

does not apply throughout an entire 

DMA. In contrast, the ‘‘local’’ station 

designation based on Nielsen’s 

assignment to a particular DMA applies 

to the entire market.13 Whereas cable 

operators have had carriage rights for SV 

stations since 1972,14 satellite carriers 

have had such authority only since 

200415 and may only retransmit SV 

network stations to ‘‘eligible’’ satellite 

subscribers.16 These satellite subscriber 

eligibility restrictions are intended to 

prevent satellite carriers from favoring 

an SV network station over the inmarket (local) station affiliated with the 

same network.17

3. Section 203 of the STELA changes 

the restrictions on subscriber eligibility 

to receive SV network stations from 

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72970 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

18 47 U.S.C. 340(b)(1) and (2). 

19See 17 U.S.C. 119 and 122. 17 U.S.C. 119 

contains the statutory copyright license for satellite 

carriage of ‘‘distant’’ network stations (limited to 

‘‘unserved households’’) and 17 U.S.C. 122 contains 

the statutory copyright license for satellite carriage 

of ‘‘local’’ stations (generally defined as stations and 

subscribers in the same DMA but which now also 

includes SV stations, which are treated as ‘‘local’’ for 

copyright royalty purposes, even though such 

stations are not in the same DMA as the subscribers 

and are not entitled to mandatory carriage). The 

STELA also amended 17 U.S.C. 111, the statutory 

copyright license for cable carriage of broadcast 

stations. 

20See 47 U.S.C. 325, 338, 339 and 340. 

21See House Judiciary Committee Report dated 

Oct. 28, 2009, accompanying House Bill, H.R. 3570, 

111th Cong. (2009), H.R. Rep. No. 111–319, at 4 

(‘‘H.R. 3570 Report’’). See also House Energy and 

Commerce Committee Report dated Dec. 12, 2009, 

accompanying House Bill, H.R. 2994, 111th Cong. 

(2009), H.R. Rep. No. 111–349, at 16 (‘‘H.R. 2994 

Report’’); and Senate Judiciary Committee Report 

dated Nov. 10, 2009, accompanying Senate Bill, S. 

1670, 111th Cong. (2009), H.R. Rep. No. 111–98, at 

5 (‘‘S. 1670 Report’’). There was no final Report 

issued to accompany the final version of the STELA 

bill (S. 3333) as it was enacted. See Senate Bill, S. 

3333, 111th Cong. (2010) (enacted). Therefore, for 

the relevant legislative history, we look to the 

Reports accompanying the various predecessor bills 

(e.g., H.R. 3570, H.R. 2994, and S. 1670). These 

Reports reflect Congressional intent with respect to 

the SV provisions, which were enacted as drafted 

in the House and Senate bills. (see STELA secs. 203, 

103). Finally, also relevant are certain remarks 

made in floor statements in passing the bill (S. 

3333). See ‘‘House of Representatives Proceedings 

and Debates of the 111st Congress, Second Session,’’ 

156 Cong. Rec. H3317, H3328–3330 (daily ed. May 

12, 2010) (statements of Reps. Conyers and Smith) 

(‘‘House Floor Debate’’) and ‘‘Senate Proceedings 

and Debates of the 111st Congress, Second Session,’’ 

156 Cong. Rec. S3435 (daily ed. May 7, 2010) 

(statement of Sen. Leahy) (‘‘Senate Floor Debate’’). 

We also find relevant certain remarks made in floor 

statements in passing the House Bill, H.R. 3570. See 

Chairmen Waxman’s and Boucher’s Floor 

Statements on the Satellite Home Viewer 

Reauthorization Act of 2009, 155 Cong. Rec. 

H13428, H13441–13442 (Dec. 2, 2009) (‘‘H.R. 3570 

Waxman and/or Boucher Floor Statement(s)’’). 

22See H.R. 3570 Report at 5 and H.R. 2994 Report 

at 16. As of the June 12, 2009 statutory DTV 

transition deadline, all full-power television 

stations stopped broadcasting in analog and are 

broadcasting only digital signals. 47 U.S.C. 

309(j)(14)(A). 

23STELA sec. 103 (moving the SV signal statutory 

copyright license from 17 U.S.C. 119(a)(3) to 17 

U.S.C. 122 (a)(2)). In doing so, Congress now 

defines SV signals as another type of local signal, 

rather than as an exception to distant signals. The 

move also means that the SV signal license does not 

expire on December 31, 2014, when the distant 

signal license will expire. STELA sec. 107(a). 

24The Satellite Home Viewer Act of 1988 

(SHVA), Public Law 100–667, 102 Stat. 3935, Title 

II (1988) (codified at 17 U.S.C. 111, 119). The 1988 

SHVA was enacted on November 16, 1988, as an 

amendment to the copyright laws. The 1988 SHVA 

gave satellite carriers a statutory copyright license 

to offer distant signals to ‘‘unserved’’ households. 17 

U.S.C. 119(a). 

25See id. 119(a)(1) (2009). The STELA sec. 102(g) 

replaces the term ‘‘superstation’’ with the term ‘‘nonnetwork station.’’ This change in wording has no 

substantive impact on our rules. A non-network 

station (previously superstation) is defined as a 

television station, other than a network station, 

licensed by the Commission that is retransmitted by 

a satellite carrier. As the term would suggest, nonnetwork stations are still not considered ‘‘network 

stations’’ for copyright purposes. See id. 119(d)(9); 

see also supra notes 7 and 17. 

26The Satellite Home Viewer Improvement Act of 

1999 (SHVIA), Public Law 106–113, 113 Stat. 1501 

(1999). The SHVIA was enacted on November 29, 

1999, as Title I of the Intellectual Property and 

Communications Omnibus Reform Act of 1999 

(IPACORA) (relating to copyright licensing and 

carriage of broadcast signals by satellite carriers). In 

the SHVIA, Congress amended both the copyright 

laws, 17 U.S.C. 119 and 122, and the 

Communications Act, 47 U.S.C. 325, 338 and 339. 

satellite carriers.18 To implement the 

STELA, we revise our satellite 

subscriber eligibility rules as follows: 

• We find that the local service 

requirement in amended Section 

340(b)(1) requires only that a satellite 

subscriber receive local-into-local 

satellite service as a precondition for 

that subscriber to receive SV stations. 

We find that the statute no longer 

requires a satellite subscriber to receive 

the specific local network station as a 

precondition for that subscriber to 

receive an SV station affiliated with the 

same network. 

• We find that amended Section 

340(b)(2) no longer requires that a 

satellite carrier offer ‘‘equivalent 

bandwidth’’ to the local and SV network 

station pair and instead imposes an ‘‘HD 

format’’ requirement. We find that the 

HD format requirement in amended 

Section 340(b)(2) requires that, in order 

to carry an SV station in high definition 

(HD) format, a satellite carrier must 

carry the local station affiliated with the 

same network in HD whenever such 

format is available from the local 

station. 

Æ The HD format requirement 

applies only where a satellite carrier 

retransmits to a subscriber the SV 

station in HD format. This requirement 

does not restrict a satellite carrier from 

retransmitting to a subscriber the SV 

station in standard definition (SD) 

format. 

Æ For purposes of the HD format 

requirement, the corresponding local 

(in-market) station will be considered 

‘‘available’’ to the satellite carrier when 

the station: (1) Elects mandatory 

carriage or grants retransmission 

consent; (2) provides a good quality 

signal to the satellite carrier as required 

by Section 76.66(g) of the rules; and (3) 

is otherwise in compliance with the 

‘‘good faith negotiation’’ and carriage 

provisions set forth in Sections 76.65 

and 76.66 of the rules. However, the HD 

signal of the corresponding local station 

will be deemed ‘‘available’’ despite 

failure to reach agreement on the terms 

of retransmission if the satellite carrier 

is not in compliance with Section 76.65. 

Æ The HD format requirement 

requires satellite carriage of a secondary 

HD stream of a local station’s multicast 

signal if that stream is affiliated with the 

same network as an SV station 

retransmitted in HD to satellite 

subscribers in the local market. 

• We modify the Commission’s 2005 

interpretation of the Section 340(b)(3) 

exception, which is unchanged by the 

STELA, and find that, in the context of 

the newly revised statute, this exception 

permits a satellite carrier to offer an SV 

network station to a subscriber when 

there is no local affiliate of the same 

network present in the local market, 

even if the subscriber does not receive 

local-into-local service. 

II. Background 

4. In May 2010, Congress passed and 

the President signed the STELA, which 

amends the 1988 copyright laws 19 and 

the Communications Act of 1934 20 to 

‘‘modernize, improve and simplify the 

compulsory copyright licenses 

governing the retransmission of distant 

and local television signals by cable and 

satellite television operators.’’ 21

Congress intended for the STELA to 

increase competition between cable and 

satellite providers, increase service to 

satellite subscribers, and update the law 

to reflect the completion of the digital 

television (DTV) transition.22 Notably, 

the STELA reauthorizes the statutory 

copyright license for satellite carriage of 

SV stations and moves that license from 

the distant signal statutory copyright 

license provisions to the local signal 

statutory copyright license provisions.23

5. The STELA is the fourth in a series 

of statutes that address satellite carriage 

of television broadcast stations. In the 

1988 Satellite Home Viewer Act (‘‘1988 

SHVA’’), Congress established a 

statutory copyright license to enable 

satellite carriers to offer subscribers who 

could not receive the over-the-air signal 

of a broadcast station access to 

broadcast programming via satellite.24

The 1988 SHVA was intended to protect 

the role of local broadcasters in 

providing over-the-air television by 

limiting satellite delivery of network 

broadcast programming to subscribers 

who were ‘‘unserved’’ by over-the-air 

signals. The 1988 SHVA also permitted 

satellite carriers to offer distant 

‘‘superstations’’ to subscribers.25

6. In the 1999 Satellite Home Viewer 

Improvement Act (‘‘SHVIA’’), Congress 

expanded satellite carriers’ ability to 

retransmit local broadcast television 

signals directly to subscribers.26 A key 

element of the SHVIA was the grant to 

satellite carriers of a statutory copyright 

license to retransmit local broadcast 

programming, or ‘‘local-into-local’’ 

service, to subscribers. A satellite carrier 

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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 72971 

27 47 CFR 76.66(a)(6). 28See 17 U.S.C. 122(j)(2)(A); 47 U.S.C. 340(i)(1). 

DMAs, which describe each television market in 

terms of a unique geographic area, are established 

by Nielsen Media Research based on measured 

viewing patterns. See 17 U.S.C. 122(j)(2)(A) through 

(C). 

29See 47 U.S.C. 338. 30See SHVIA Signal Carriage Order, 66 FR 7410, 

January 23, 2001; OET SHVIA Report, FCC 00–416 

(rel. Nov. 29, 2000); SHVIA Satellite Exclusivity 

Order, 65 FR 68082, November 14, 2000; SHVIA 

Retransmission Consent Enforcement Order; 65 FR 

10718, February 29, 2000; SHVIA Good Faith 

Retransmission Consent Order, 65 FR 15559, March 

23, 2000. 

31The Satellite Home Viewer Extension and 

Reauthorization Act of 2004 (SHVERA), Public Law 

108–447, 118 Stat 2809 (2004) (codified in scattered 

sections of 17 and 47 U.S.C.). The SHVERA was 

enacted on December 8, 2004 as title IX of the 

‘‘Consolidated Appropriations Act, 2005.’’ The 

SHVERA contained additional mandates requiring 

Commission action, but not relevant to this 

proceeding. See SHVERA Reciprocal Bargaining 

Order, 70 FR 40216, July 13, 2005 (imposing a 

reciprocal good faith retransmission consent 

bargaining obligation on multichannel video 

programming distributors); SHVERA Section 210 

Order, 70 FR 51658, August 31, 2005 (requiring 

satellite carriers to carry local TV broadcast stations 

in Alaska and Hawaii); SHVERA Procedural Rules 

Order, 70 FR 21669, April 27, 2005 (adopting 

procedural rules concerning satellite carriers’ 

notifications to TV broadcast stations and 

obligations to conduct signal testing); 

Retransmission Consent and Exclusivity Rules: 

Report to Congress Pursuant to Section 208 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004, dated Sept. 8, 2005, 

available at http://www.fcc.gov/mb/policy/ 

shvera.html (Report analyzing comments received 

in MB Docket No. 05–28 and addressing impact of 

certain rules and statutory provisions on 

competition in the television marketplace). 

32 In the SHVERA, Congress again amended both 

the Communications Act, 47 U.S.C. 325, 338, 339 

and 340, and the copyright laws, 17 U.S.C. 119 and 

122. In creating a statutory copyright license for 

satellite carriers to offer significantly viewed 

stations to subscribers, Congress distinguished 

between out-of-market stations that had significant 

over-the-air viewership in another market (i.e., 

significantly viewed stations) and truly ‘‘distant’’ 

stations. 

33See SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17280–1, para. 2. In 1972, the 

Commission adopted the concept of ‘‘significantly 

viewed’’ stations for cable television to differentiate 

between out-of-market television stations ‘‘that have 

sufficient audience to be considered local and those 

that do not.’’ 1972 Cable R&O, 36 FCC 2d at 174, 

para. 83. The Commission concluded at that time 

that it would not be reasonable if choices on cable 

were more limited than choices over-the-air, and 

gave cable carriage rights to stations in communities 

where they had significant over-the-air (non-cable) 

viewing. Id. 

34See supra note 10 (for background on SV List). 

35See 47 CFR 76.5(ee) (revised), 76.5(gg) (added), 

76.54(a) through (c) (revised), 76.54(e) through (k) 

(added), 76.122(a) and (j) (revised), and 76.123(a) 

and (k) (revised). 

36See 47 U.S.C. 340(a). As mandated by the 

SHVERA, the Commission required satellite carriers 

or broadcast stations seeking SV status for satellite 

carriage to follow the same petition process now in 

place for cable carriage. See 47 CFR 76.5, 76.7 and 

76.54(a) through (d). 

37 47 U.S.C. 340(b) (2004). The eligibility 

requirements also addressed the different carriage 

requirements that apply to cable (i.e., ‘‘must carry’’ 

for all cable systems) as compared with satellite 

(i.e., ‘‘carry one, carry all’’). In the cable context, 

where mandatory carriage rules apply as opposed 

to satellite’s carry one, carry all requirements, it was 

not necessary to include subscriber eligibility 

requirements, as it was presumed that all cable 

subscribers receive local broadcast stations as part 

of their cable package. 

38The Commission found that ‘‘subscriber receipt 

of ‘local-into-local’ service [was] unambiguously 

required by the statute.’’ SHVERA Significantly 

Viewed Report and Order at para. 68. 

39 Id. at para. 76 (discussing digital service 

limitations). The SHVERA’s language differed with 

respect to the analog and digital service limitations. 

In 2004, television stations were transitioning from 

analog to digital service and most stations were 

broadcasting both analog and digital signals. 

Consequently, the SHVERA specified that certain 

provisions applied to analog signals and other, 

often different, provisions applied to digital signals. 

See 47 U.S.C. 340(b)(1) (analog service limitations) 

and 47 U.S.C. 340 (b)(2)(A) (digital service 

limitations) (2004). The Commission noted that, 

‘‘[u]nlike the ambiguity in its sister analog provision 

[of 47 U.S.C. 340(b)(1) (2004)], Section 340(b)(2)(A) 

of the Act, 47 U.S.C. 340(b)(2)(A) (2004), is clear in 

requiring a subscriber to receive ‘‘the digital signal 

of a network station in the subscriber’s local market 

that is affiliated with the same television network.’’ 

Id. See also id. at 17305, para. 70 (discussing analog 

service limitations). 

40 47 U.S.C. 340(b)(2)(B) (2004) (‘‘With respect to 

a signal that originates as a digital signal of a 

network station, this section shall apply only if— 

* * * (B) either—(i) the retransmission of the local 

network station occupies at least the equivalent 

bandwidth as the digital signal retransmitted 

pursuant to this section; or (ii) the retransmission 

of the local network station is comprised of the 

entire bandwidth of the digital signal broadcast by 

such local network station.’’). Congress sought to 

prevent satellite carriers from offering the local 

network station’s digital signal ‘‘in a less robust 

format’’ than the significantly viewed affiliate 

station’s digital signal). SHVERA Significantly 

Viewed Report and Order, 20 FCC Rcd at 17314, 

para. 94. 

provides ‘‘local-into-local’’ service when 

it retransmits a local television signal 

back into the local market of that 

television station for reception by 

subscribers.27 Generally, a television 

station’s ‘‘local market’’ is the DMA in 

which it is located.28 Each satellite 

carrier providing local-into-local service 

pursuant to the statutory copyright 

license is generally obligated to carry 

any qualified local television station in 

the particular DMA that requests 

carriage and complies with Commission 

rules, unless the station’s programming 

is duplicative of the programming of 

another station carried by the carrier in 

the DMA or the station does not provide 

a good quality signal to the carrier’s 

local receive facility.29 This is 

commonly referred to as the ‘‘carry one, 

carry all’’ requirement. The Commission 

implemented the SHVIA by adopting 

rules for satellite carriers with regard to 

carriage of broadcast signals, 

retransmission consent, and program 

exclusivity that generally paralleled the 

requirements for cable service.30

7. In the 2004 Satellite Home Viewer 

Extension and Reauthorization Act 

(SHVERA), Congress established the 

framework for satellite carriage of 

‘‘significantly viewed’’ stations.31

Specifically, the SHVERA expanded the 

statutory copyright license to allow 

satellite carriers to retransmit an out-ofmarket network station as part of their 

local service to subscribers where the 

Commission determined that distant 

station to be ‘‘significantly viewed’’ 

(based on over-the-air viewing).32 In 

providing this authority to satellite 

carriers, Congress sought to create parity 

with cable operators, who had already 

had such authority to offer SV stations 

to subscribers for more than 38 years.33

The Commission implemented the 

SHVERA’s significantly viewed 

provisions by publishing a list of SV 

stations 34 and adopting rules in the 

satellite context for stations to attain 

eligibility for significantly viewed status 

and for subscribers to receive SV 

stations from satellite carriers.35 The 

SHVERA mandated that the 

Commission apply the same station 

eligibility requirements (i.e., rules and 

procedures for parties to show that a 

station qualifies for significantly viewed 

status) to satellite carriers that already 

applied to cable operators.36 However, 

to prevent a satellite carrier from 

favoring SV stations over traditional 

local market stations, the SHVERA also 

imposed subscriber eligibility 

requirements that applied only to 

satellite carriers.37

8. The SHVERA limited subscribers’ 

eligibility to receive SV digital 

television stations from satellite carriers 

in two key ways. First, the SHVERA 

allowed a satellite carrier to offer SV 

stations only to subscribers that 

received the carrier’s ‘‘local-into-local’’ 

service (the ‘‘local service’’ 

requirement).38 The Commission 

interpreted this local service 

requirement to further require that the 

subscriber receive the local station 

affiliated with a particular network (as 

part of the carrier’s ‘‘local-into-local’’ 

service) in order for that subscriber to 

also receive an SV station affiliated with 

the same network (the ‘‘same network 

affiliate’’ requirement).39 Second, the 

SHVERA allowed a satellite carrier to 

offer an SV digital station to a subscriber 

only if the carrier also provided to that 

subscriber the local station affiliated 

with the same network in a format that 

used either (1) an ‘‘equivalent’’ amount 

of bandwidth for the local and SV 

network station pair, or (2) the ‘‘entire’’ 

bandwidth of the local station (the 

‘‘equivalent or entire bandwidth’’ 

requirement).40 The Commission 

interpreted this provision to require an 

objective comparison of each station’s 

use of its bandwidth in terms of 

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41See SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17315, para. 96. 

42 Dish requested the Commission to undertake a 

rulemaking to revise the retransmission consent 

rules as they apply to carriage of SV stations. See 

Dish Comments (Petition) at 9. 

43 47 U.S.C. 340(b) (2010), as amended by the 

STELA sec. 203(a). See also 17 U.S.C. 122(a)(2), as 

amended by STELA sec. 103(b). 

44See H.R. 3570 Report at 4. 

45STELA sec. 203(a) (amendments to be codified 

at 47 U.S.C. 340(b)(1) and (2)). We note that the 

subscriber eligibility limitations in 47 U.S.C. 

340(b)(1) and (2), which are amended by the STELA 

sec. 203, do not apply to cable subscribers. We do 

not substantively amend our significantly viewed 

rules and procedures that satellite carriers share 

with cable operators. See 47 CFR 76.54(a) through 

(d). Furthermore, we note that the STELA sec. 203 

does not amend the significantly viewed provisions 

in the Communications Act governing the eligibility 

of a television broadcast station to qualify for 

‘‘significantly viewed’’ status. See 47 U.S.C. 340(a), 

(c) through (g). We do not make any substantive 

(non-‘‘housecleaning’’) changes to our rules and 

procedures implementing the significantly viewed 

station eligibility requirements. See 47 CFR 76.54(a) 

through (f), (j) and (k). See infra Section III.F. 

(discussing housecleaning changes). 

46Section 340(b)(1) as amended retains the 

reference to ‘‘a’’ signal carried pursuant to Section 

338 and the explanatory heading referring to 

‘‘subscribers taking local-into-local service.’’ 

Congress removed from this section the phrase ‘‘that 

originates as an analog signal of a local network 

station’’ following the word ‘‘signal.’’ See DIRECTV 

Reply at 5. 

47See STELA–Significantly Viewed NPRM, supra 

note 3, at paras. 2, 11. 

48See, e.g., 2004 House Commerce Committee 

Report dated July 22, 2004, accompanying House 

Bill, H.R. 4501, 108th Cong. (2004), H.R. Rep. No. 

108–634, at 1 and 9 (2004) (‘‘2004 House Commerce 

Committee Report’’) (noting purpose of the SHVERA 

included ‘‘increasing regulatory parity by extending 

to satellite carriers the same type of authority cable 

operators already have to carry ‘significantly 

viewed’ signals into a market’’). See also, e.g., House 

of Representatives Floor Debate on the Satellite 

Home Viewer Extension and Reauthorization Act of 

2004, House Bill H.R. 4518, 150 Cong. Rec. H8210, 

H8217–8219 (dated Oct. 6, 2004) (‘‘H.R. 4518 Floor 

Debate’’). In a statement in the floor debate, Rep. Joe 

Barton (Chairman, House Energy and Commerce 

Committee) stated: ‘‘The bill [H.R. 4518] would 

extend to satellite operators the authority to carry 

such significantly viewed signals on comparable 

terms as cable operators.’’ Id. at H8219. See also The 

Honorable Joe Barton, Chairman, House Energy and 

Commerce Committee, ‘‘Floor Statement’’ on the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004, House Bill H.R. 4518, 

(dated Oct. 6, 2004) (‘‘Barton Floor Statement’’) (‘‘In 

implementing Section 340, the [Commission] 

should treat satellite operators in a comparable 

fashion to cable operators to the greatest extent 

possible with respect to carriage of significantly 

viewed stations, in terms of both current and future 

significantly viewed rulings.’’) 

49See 2004 House Commerce Committee Report 

at 12 (noting that former ‘‘Section 340(b)(2)(B) 

prevents the satellite operator from retransmitting a 

local affiliate’s digital signal in a less robust format 

than a significantly viewed digital signal of a 

distant affiliate of the same network, such as by 

down-converting the local affiliate’s signal but not 

the distant affiliate’s signal from high-definition 

digital format to analog or standard definition 

digital format’’). 

50See DIRECTV Comments at 2 (noting that it has 

‘‘offered only a handful’’ of SV stations since 

satellite carriage of such stations was authorized by 

SHVERA) and Dish Reply at 5 (noting that ‘‘when 

permitted to do so, Dish offered SV stations in 

certain counties of only seven DMAs’’). 

51 DIRECTV Comments at 1–2 and Dish Reply at 

5 (noting that ‘‘the SV program that Congress 

spearheaded has not succeeded’’). 

megabits per second (mbps) or bit rate.41

The SHVERA provided for two 

exceptions to the local service 

limitations, contained in 47 U.S.C. 

340(b)(3) and (b)(4). Section 340(b)(3) 

allows satellite carriage of an SV 

network station to a subscriber when 

there is no local station affiliated with 

the same television network as the SV 

station present in the local market. 

Section 340(b)(4) allows a satellite 

carrier to negotiate privately with the 

local network station to obtain a waiver 

of the subscriber eligibility restrictions 

in Sections 340(b)(1) and 340(b)(2). 

III. Discussion 

9. We adopt rules in this R&O to 

implement the STELA’s amendments to 

Section 340(b) of the Communications 

Act. Our discussion below addresses the 

two substantive changes to Section 

340(b)(1) and (b)(2), as well as how 

these amended provisions will work 

with the existing statutory exceptions in 

Section 340(b)(3) and (b)(4). We decline 

to address here the merits of Dish’s 

petition for further rulemaking filed 

with its comments, as those issues are 

beyond the scope of this proceeding.42

Finally, we adopt some non-substantive, 

‘‘housecleaning’’ rule changes. 

10. The STELA amended Section 

340(b) to read as follows: 43

(1) Service Limited to Subscribers 

Taking Local-Into-Local Service.—This 

section shall apply only to 

retransmissions to subscribers of a 

satellite carrier who receive 

retransmissions of a signal from that 

satellite carrier pursuant to section 338. 

(2) Service Limitations.—A satellite 

carrier may retransmit to a subscriber in 

high definition format the signal of a 

station determined by the Commission 

to be significantly viewed under 

subsection (a) only if such carrier also 

retransmits in high definition format the 

signal of a station located in the local 

market of such subscriber and affiliated 

with the same network whenever such 

format is available from such station. 

(3) The limitations in paragraphs (1) 

and (2) shall not prohibit a 

retransmission under this section to a 

subscriber located in a local market in 

which there are no network stations 

affiliated with the same television 

network as the station whose signal is 

being retransmitted pursuant to this 

section. 

(4) Paragraphs (1) and (2) shall not 

prohibit a retransmission of a network 

station to a subscriber if and to the 

extent that the network station in the 

local market in which the subscriber is 

located, and that is affiliated with the 

same television network, has privately 

negotiated and affirmatively granted a 

waiver from the requirements of 

paragraph (1) and (2) to such satellite 

carrier with respect to retransmission of 

the significantly viewed station to such 

subscriber. 

11. These amendments simplify the 

significantly viewed provisions in 

Section 340(b) of the Communications 

Act to make it easier for satellite carriers 

to offer SV stations to subscribers.44

Specifically, the STELA made two key 

changes to Section 340(b).45 First, the 

STELA eliminated the language in 

Section 340(b)(2)(A) that had required 

that subscribers receive the same local 

network affiliate and, instead, retains 

only the language requiring that the 

subscriber receive local-into-local 

satellite service in order to be eligible to 

receive SV stations.46 Second, the 

STELA replaces the ‘‘equivalent or 

entire bandwidth’’ requirement 

applicable to digital service, which was 

previously contained in Section 

340(b)(2)(B), with an ‘‘HD format’’ 

requirement. The STELA did not amend 

the statutory exceptions in Sections 

340(b)(3) and (b)(4) to the subscriber 

eligibility restrictions in Sections 

340(b)(1) and (2). 

A. The STELA Directs the Commission 

To Create a Workable Framework That 

Will Enable Satellite Carriers To Offer 

Both the SV and Local Stations to 

Consumers 

12. We find that, in the STELA, 

Congress intended that the Commission 

create a workable framework for the 

satellite carriage of SV stations.47

Congress intended the 2004 SHVERA to 

promote parity with cable,48 while 

protecting localism by preventing 

satellite carriers from favoring an SV 

network station over the local in-market 

station affiliated with the same TV 

network.49 However, very few SV 

stations made their way into the living 

rooms of satellite TV consumers.50 The 

Satellite Carriers attribute this to the 

Commission’s ‘‘restrictive’’ 

interpretation of Section 340(b) in the 

2005 SHVERA Significantly Viewed 

Report and Order,51 which they 

maintain made satellite carriage of SV 

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52 DIRECTV and Dish ex parte (dated Sept. 22, 

2010) Significantly Viewed Talking Points 

Appendix at 1 (‘‘DIRECTV and Dish Sept. 22 SV 

Talking Points’’) (expressing concern that the 

Commission might adopt rules for SV carriage ‘‘that 

make it impractical to offer such stations’’). 

53H.R. 2994 Report at 16. The use of the word 

‘‘including’’ implies that Congress’ dissatisfaction 

with the Commission’s prior implementation of 

Section 340 was not limited to the ‘‘equivalent 

bandwidth’’ requirement. 

54See 47 U.S.C. 340(b)(2)(A) and (B). See infra 

Sections III.B. and III.C. 

55Broadcaster Associations Comments at 4 

(arguing STELA’s statutory changes only ‘‘address a 

technical implementation concern’’ with the 

‘‘equivalent or entire bandwidth’’ requirement). 

56See H.R. 3570 Report at 4 (noting STELA’s 

general intent to ‘‘increase competition and service 

to satellite and cable consumers’’). 

57See e.g., H.R. 2994 Report at 15 (noting that 

‘‘the ‘significantly viewed’ provision was adopted in 

SHVERA to create parity with cable operators’’) and 

also H.R. 3570 Report at 10. See SHVERA 

Significantly Viewed Report and Order, 20 FCC Rcd 

at 17306–7, paras. 71–2 (noting statutory intent ‘‘to 

protect localism’’ by citing to the 2004 House 

Commerce Committee Report). 

58See S. 1670 Report at 5 (noting ‘‘The [STELA] 

moves locally-oriented provisions out of the distant 

signal license and places them into the permanent 

local license. These provisions include significantly 

viewed, special exception, and low-power stations. 

Shifting these provisions into the local license will 

ensure that the distant signal license is focused 

purely on providing truly distant signals to 

consumers unserved by their local broadcasters.’’). 

This makes sense given STELA’s intent to create 

parity with cable, which characterizes SV signals as 

those with ‘‘sufficient audience to be considered 

local.’’ See 1972 Cable R&O, 36 FCC 2d at 174, para. 

83. But see H.R. 3570 Report at 10 (stating ‘‘Since 

significantly viewed signals are by definition a 

subset of distant signals, SHVERA included this 

provision in Section 119, the distant signal license. 

However, since significantly viewed signals do not 

incur royalties, the Committee believes it should be 

moved to Section 122, which governs all other 

royalty-free satellite transmissions under the 

compulsory license. The bill accordingly 

incorporates the significantly viewed provision, 

previously in Section 119(a)(3), into Section 

122(a).’’). The Broadcaster Associations argue that 

this statement means STELA considers SV signals 

to be distant by definition. See Broadcaster 

Associations Reply at 18. We disagree that these 

Congressional characterizations are necessarily at 

odds. The context of the H.R. 3570 Report referred 

to SHVERA’s treatment of SV signals. In contrast, 

STELA intended to treat SV signals like ‘‘all other 

royalty-free satellite transmissions,’’ i.e., like local 

signals. The change in license and treatment is also 

consistent with the statutory copyright license for 

cable retransmission of SV signals, which also treats 

them, for royalty purposes, as local signals. See 17 

U.S.C. 111(a), (c), (d), and (f), as amended by 

STELA sec. 104. 

59See S. 1670 Report at 4. See also DIRECTV 

Reply at 1, n.4; Dish Reply at 6. 

60See, e.g., H.R. 4518 Floor Debate (on SHVERA 

bill), supra note 48, at H8223 (in which Rep. 

Conyers states that the SHVERA bill [H.R. 4518] 

‘‘address[ed] the desires of consumers in that it 

permits the satellite companies to retransmit a 

significantly viewed local signal to a customer’’); Id. 

at H8217 (in which Rep. Sensenbrenner states that 

the SHVERA bill, H.R. 4518, ‘‘changes both the 

copyright and communications acts to ensure, first, 

that consumers will have greater choice in 

programming; second, that satellite providers will 

have greater freedom to deliver the content 

consumers desire’’); and Id. at H8219 (in which Rep. 

Barton states that ‘‘[b]y extending the expiring 

provisions, increasing parity, and promoting further 

competition, this legislation [H.R. 4518] will 

continue to enhance service to consumers.’’) 

61See, e.g., H.R. 3570 Waxman Floor Statement 

(on STELA bill), supra note 21, at H13441 (calling 

the bill [H.R. 3570] ‘‘an important step forward for 

consumers,’’ Chairman Waxman notes, among other 

things, that the ‘‘bill makes changes to the existing 

rules on ‘significantly viewed’ signals in an effort 

to promote competition between satellite and cable 

companies’’); and H.R. 4518 Floor Debate (on 2004 

SHVERA bill), supra note 48, at H8223 (in which 

Rep. Dingell states that the bill [H.R. 4518] will not 

only ‘‘increase regulatory parity between cable and 

satellite providers’’ but that such ‘‘increased parity 

should help spur greater competition between cable 

and satellite providers and ultimately benefit 

consumers in the form of lower prices and better 

service’’). Contrary to the Broadcaster Associations’ 

argument, there is nothing in the record to suggest 

that cable carriage of SV stations has harmed 

localism over more than 30 years. See NAB ex parte 

(dated Oct. 7, 2010) Significantly Viewed Talking 

Points Appendix at 3 (‘‘NAB Oct. 7 SV Talking 

Points’’) (claiming the Satellite Carriers ignore 

STELA’s goal to protect localism). 

62As discussed above in supra para. 1, the 

purpose of Section 340 is to give satellite carriers 

the authority to offer SV stations as part of their 

local service to their subscribers. 

63See DIRECTV and Dish ex parte (dated Sept. 

20, 2010) Significantly Viewed Talking Points 

Appendix at 1 (‘‘DIRECTV and Dish Sept. 20 SV 

Talking Points’’). 

64STELA-Significantly Viewed NPRM, supra 

note 3, at para. 14. 

stations impractical or technically 

infeasible.52

13. Congress seemed to agree. As 

stated in one House Report: 

The Commission’s implementation of 

section 340, including its interpretation 

of the ‘‘equivalent bandwidth’’ 

requirement, has generally served to 

discourage satellite carriers from using 

section 340 to provide significantly 

viewed signals to qualified 

households.53

To achieve more widespread carriage 

of SV stations, the STELA amends 

Sections 340(b). As discussed below, 

Congress eliminated both the former 

Section 340(b)(2)(A), which required 

that digital local service subscribers 

receive the same network affiliate, and 

the former Section 340(b)(2)(B), which 

contained the ‘‘equivalent or entire 

bandwidth’’ requirement.54 Based on 

these changes to the statutory text, 

Congress intended more than merely to 

fix a technical implementation issue 

with the equivalent bandwidth 

requirement, as the Broadcaster 

Associations contend,55 but rather 

sought to simplify the law and increase 

service to satellite subscribers by 

encouraging SV carriage.56 In 

reauthorizing the SHVERA and mostly 

retaining its framework for the carriage 

of SV stations, the STELA also retains 

the key goals of its predecessor statute 

–to foster localism and promote parity 

between cable and satellite service.57

14. The STELA’s relocation of the 

statutory copyright license for SV 

stations into the ‘‘local’’ license 

provisions of the Copyright Act 

indicates that Congress considered the 

SV compulsory license to be more like 

the local license than like the distant 

signal license, recognizing that the SV 

station is ‘‘local’’ to the community in 

which it is significantly viewed.58 SV 

stations have SV status because they 

have been viewed over-the-air by a 

sufficient number of households in the 

community in the relevant market. The 

Senate Report notes that the SV 

provision ‘‘relates to the ability to 

receive locally-oriented 

programming.’’ 59 Furthermore, satellite 

TV consumers deserve access to the 

same locally-oriented programming— 

including SV stations—as their cablesubscribing neighbors.60 Moreover, 

providing satellite carriers parity with 

cable was a core goal of the SHVERA in 

2004 and it remains one today in the 

STELA.61 Therefore, our 

implementation of the statutory changes 

to Section 340(b) focuses on enabling 

satellite TV consumers to receive both 

the local in-market and SV stations from 

their carriers, as is the plain intent of 

Section 340.62 To achieve this objective, 

our interpretation of the statute reflects 

the practical realities of satellite local 

carriage, in accordance with Congress’s 

intent to remove barriers to SV 

carriage.63

15. In the STELA, Congress directs us 

to implement Section 340 in a practical 

way that will better enable satellite 

carriers to offer SV stations to their 

subscribers. We find that carriage of 

both the SV and local in-market stations 

will best foster localism and promote 

parity with cable, and so, in 

implementing the law we must balance 

protection of local in-market stations 

against the cost of making SV carriage 

technically infeasible or impractical. 

B. The STELA Eliminates the 

Requirement To Receive a Local Station 

Affiliated With the Same Network as the 

SV Station and Requires Instead That 

Subscribers Receive Local-Into-Local 

Service 

16. We adopt our proposal to 

eliminate the requirement that a 

subscriber receive the local station 

affiliated with a specific network in 

order for that subscriber to also receive 

an SV station affiliated with the same 

network, and require instead that the 

subscriber receive local-into-local 

satellite service.64 We clarify, however, 

that a satellite carrier must comply with 

Section 76.65 of our rules, which 

codifies the requirement for good faith 

in retransmission consent negotiations, 

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65Broadcaster Associations Comments at 7 and 

Reply at 6; DIRECTV Comments at 3 and Reply at 

3; Dish Comments at 4 and Reply at 7. 

66 47 U.S.C. 340(b)(1) and (b)(2)(A) (2004). 

Congress intended for these provisions to protect 

localism ‘‘by helping ensure that the satellite 

operator cannot retransmit into a market a 

significantly viewed digital signal of a network 

broadcast station from a distant market without also 

retransmitting into the market a digital signal of any 

local affiliate from the same network.’’ SHVERA 

Significantly Viewed Report and Order, 20 FCC Rcd 

at 17306–7, paras. 71–2. 

67 47 U.S.C. 340(b)(1) (2004), as enacted in 2004, 

stated: ‘‘With respect to a signal that originates as 

an analog signal of a network station, this section 

shall apply only to retransmissions to subscribers 

of a satellite carrier who receive retransmissions of 

a signal that originates as an analog signal of a local 

network station from that satellite carrier pursuant 

to section 338.’’ 

68 47 U.S.C. 338. See also supra para. 6 

(discussing the ‘‘carry one, carry all’’ requirement). 

69 47 U.S.C. 340(b)(2)(A) (2004), as enacted in 

2004, stated: ‘‘With respect to a signal that 

originates as a digital signal of a network station, 

this section shall apply only if—(A) the subscriber 

receives from the satellite carrier pursuant to 

section 338 the retransmission of the digital signal 

of a network station in the subscriber’s local market 

that is affiliated with the same television network. 

***’’ 

70SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17304–8, paras. 68, 70–73. 

71See id. at 17304, para. 67. 

72 Id. at 17305 and 17308, paras. 70 and 76. In the 

2006 DIRECTV-EchoStar Joint Petition, the Satellite 

Carriers challenged the Commission’s interpretation 

of the analog service limitation provision in 47 

U.S.C. 340(b)(1). With the end of analog full-power 

broadcasting, this issue is now moot. See infra 

Section III.G. (discussing Order on 

Reconsideration). 

73See SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17307, para. 72. We note that 

the Commission also stated that its interpretation of 

Section 340(b)(1) was necessary to give meaning to 

the statutory exceptions in Sections 340(b)(3) and 

(4); see supra para. 10 (for statutory text). As 

discussed, infra, in paras. 46–47 and note 167, we 

find the statutory exceptions remain meaningful to, 

and are consistent with, our interpretation of 

Section 340(b)(1) as amended by STELA. 

74 47 CFR 76.54(g) states: ‘‘(g) Signals of analog or 

digital significantly viewed television broadcast 

stations may not be retransmitted by satellite 

carriers to subscribers who do not receive localinto-local service, including a station affiliated with 

the same network as the significantly viewed 

station, pursuant to § 76.66 of this chapter; except 

that a satellite carrier may retransmit a significantly 

viewed signal of a television broadcast station to a 

subscriber who receives local-into-local service but 

does not receive a local station affiliated with the 

same network as the significantly viewed station, if: 

(1) There is no station affiliated with the same 

television network as the station whose signal is 

significantly viewed; or (2) The station affiliated 

with the same television network as the station 

whose signal is significantly viewed has granted a 

waiver in accordance with 47 U.S.C. 340(b)(4).’’ 

75STELA-Significantly Viewed NPRM, supra 

note 3, at para. 14. 

76 47 U.S.C. 340(b)(1) (referring to retransmissions 

‘‘pursuant to 47 U.S.C. 338’’). Each satellite carrier 

providing a local station pursuant to the statutory 

copyright license is generally obligated to carry any 

qualified local television station in the same DMA 

that has requested carriage. 47 U.S.C. 338. 

77 In STELA, Congress eliminated most references 

distinguishing the treatment of ‘‘analog’’ versus 

‘‘digital’’ signals or stations in light of the 

completion of the digital television transition for 

full power stations. In Section 340, Congress 

eliminated the text of the digital provision (former 

section 340(b)(2)(A), which had said: ‘‘With respect 

to a signal that originates as a digital signal of a 

network station, this section shall apply only if— 

(A) the subscriber receives from the satellite carrier 

pursuant to section 338 of this title the 

retransmission of the digital signal of a network 

station in the subscriber’s local market that is 

affiliated with the same television network; and’’ 

(B) the retransmission complies with either the 

(i) equivalent or (ii) entire bandwidth requirement.’’ 

(Emphasis added.) 

78 17 U.S.C. 122(a)(2)(A) (providing a statutory 

copyright license to support satellite carriage of SV 

stations provided the subscriber is receiving 

stations pursuant to the statutory copyright license 

for local stations). See 17 U.S.C. 122(a)(1). 

79We note that SV stations are treated as ‘‘local’’ 

for copyright purposes in 17 U.S.C. 111 (the cable 

copyright license). See supra note 58. 

in order for it to carry an SV station. In 

the record, the Satellite Carriers support 

our proposal, while the Broadcaster 

Associations oppose it.65

17. In the 2004 SHVERA, Congress 

authorized satellite carriers to offer SV 

stations to subscribers, but crafted 

Sections 340(b)(1) and 340(b)(2)(A) of 

the Act to protect localism by requiring 

that these subscribers also receive the 

local network affiliate (called the ‘‘local 

service’’ requirement).66 These two 

provisions, however, contained different 

language. Whereas the analog local 

service requirement in Section 

340(b)(1) 67 required only that the 

subscriber receive local service 

‘‘pursuant to Section 338’’—referring to 

the ‘‘carry one, carry all’’ carriage 

requirements that pertain to local 

stations,68 the digital local service 

requirement in Section 340(b)(2)(A) 69

contained additional language that 

expressly required the subscriber to 

receive the local digital station that was 

‘‘affiliated with the same television 

network’’ as the SV station (hereinafter 

referred to as the ‘‘same network 

affiliate’’ language). Thus, while each of 

these provisions explicitly required a 

subscriber to at least receive the satellite 

carrier’s local-into-local service before 

that subscriber could receive an SV 

station, it was unclear (when 

considering the two provisions together) 

whether Section 340(b)(1) also required 

a subscriber to receive the specific local 

analog network station before that 

subscriber could receive the SV station 

affiliated with the same network.70 For 

example, it was unclear how the statute 

applied where there was a local network 

analog station, but such station failed to 

request local carriage, refused to grant 

retransmission consent, or was 

otherwise ineligible for local carriage.71

18. In the 2005 SHVERA Significantly 

Viewed Report and Order, the 

Commission interpreted former Sections 

340(b)(1) and 340(b)(2)(A) to require 

that the subscriber receive the specific 

local station that is affiliated with the 

same network as the SV station, whether 

the station’s signal was analog or 

digital.72 Although former Section 

340(b)(1) lacked the express ‘‘same 

network affiliate’’ language as that 

contained in its digital counterpart, the 

Commission interpreted the two 

provisions together and read the ‘‘same 

network affiliate’’ requirement into 

former Section 340(b)(1), based largely 

on the concept that Congress intended 

the two provisions to achieve similar 

ends.73 Accordingly, the Commission 

adopted Section 76.54(g) of the rules, 

based on the ‘‘same network affiliate’’ 

language in former Section 

340(b)(2)(A).74

19. As we tentatively concluded in 

the NPRM, new Section 340(b)(1) 

requires only that the subscriber receive 

local-into-local satellite service and no 

longer requires carriage of the local 

affiliate of the same network.75 New 

Section 340(b)(1) applies ‘‘only to 

retransmissions to subscribers of a 

satellite carrier who receive 

retransmissions of a signal from that 

satellite carrier pursuant to Section 

338.’’ 76 By providing simply that a 

subscriber must receive ‘‘a’’ signal from 

the satellite carrier pursuant to Section 

338 before receiving a SV signal, the 

statute removes any precondition that a 

subscriber receive ‘‘the’’ local affiliate of 

the same network as the SV station. In 

drafting new Section 340(b)(1) for the 

STELA, Congress eliminated the ‘‘same 

network affiliate’’ language that 

appeared in the provision enacted as 

part of the SHVERA in 2004.77 Our 

interpretation that the new Section 

340(b)(1) requires only that the 

subscriber receive local-into-local 

service is also consistent with the 

provision’s heading: ‘‘Service Limited 

To Subscribers Taking Local-Into-Local 

Service,’’ as well as with the statutory 

copyright license for SV stations, which 

allows a satellite carrier to retransmit 

SV stations to subscribers that receive 

signals pursuant to the statutory 

copyright license for local signals but 

says nothing about the subscriber 

having to receive the signal of the local 

affiliate of the same network.78

20. Based on the language of the 

amended text, Congress’ purposes of 

facilitating SV carriage and achieving 

closer parity between cable and satellite 

providers, and the shift of the SV 

copyright license from the distant 

license to the local license,79 we 

conclude that the best interpretation of 

new Section 340(b)(1) is that the 

subscriber need only receive a local 

station pursuant to Section 338 in order 

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80This conclusion affirms our tentative 

conclusion in the NPRM at paras. 14–17. See also 

DIRECTV Comments at 3–4 and Reply at 3–8; Dish 

Comments at 2 and Reply at 7. 

81Broadcaster Associations Comments at 8 

(arguing that the ‘‘prior Section 340(b)(1) never 

contained the ‘same network affiliate’ requirement’’ 

and, therefore, ‘‘the same interpretation and the 

same result must apply here.’’). 

82See Broadcaster Associations Comments at 8. 

See also SHVERA Significantly Viewed Report and 

Order at paras. 71–3. 

83See 47 U.S.C. 340(b)(2)(A). 

84See SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17306–7, paras. 71–2. 

85See Broadcaster Associations Comments at 9. 

86 Id. at 8–11 (arguing ‘‘the only substantive 

change to the provision is the removal of references 

to ‘analog signal’’’). 

87 Id. at 12 (arguing that ‘‘Congress’s failure to 

expressly amend the statute to alter that 

interpretation * * * is tantamount to a legislative 

re-enactment of that interpretation.’’). 

88See DIRECTV Reply at 5–6; Dish Reply at 7– 

8. 

89Broadcaster Associations Comments at 12. 

90See NPRM at para. 16 See NPRM at ¶ 16 

(quoting Russello v. United States, 464 U.S. 16, 23 

(1983) (‘‘[Where] Congress includes particular 

language in one section of a statute but omits it in 

another section of the same Act, it is generally 

presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.’’). 

91 Dish Reply at 10. 

92Broadcaster Associations Comments at 8 

(claiming ‘‘[t]hat requirement appeared in prior 

Section 340(b)(2), and that very same requirement 

still appears in new Section 340(b)(2).’’). 

93Broadcaster Associations Reply at 9–10 

(‘‘Congress maintained the ‘same network affiliate’ 

language in three of the four subparagraphs’’). 

94 Dish Reply at 9. 

95See, e.g., Duncan v. Walker, 533 U.S. 167, 173 

(2001) (quoting Bates v. U.S., 522 U.S. 23, 29–30 

(1997)) (‘‘where Congress includes particular 

language in one section of a statute but omits it in 

another section of the same Act, it is generally 

presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion’’). 

See also supra note 90. 

96See Broadcaster Associations Reply at 14. The 

Commission recognized in the SHVERA 

Significantly Viewed Report and Order that ‘‘the 

legislative history repeatedly reflects Congressional 

concern that the amendments permitting carriage of 

out-of-market significantly viewed signals not 

detract from localism.’’ See SHVERA Significantly 

Viewed Report and Order, 20 FCC Rcd at 17306– 

7, paras. 71–2 (noting statutory intent ‘‘to protect 

localism’’ by citing to the 2004 House Commerce 

Committee Report). 

97See DIRECTV and Dish Sept. 20 SV Talking 

Points. 

98See, e.g., Opposition of the Broadcaster 

Associations in MB Docket No. 10–71 (dated May 

18, 2010) at vii and 43, n. 148 (citing Bernstein 

Research, Cable and Satellite: Asymmetrical 

‘‘Retrans’’ Leverage Favors Cable over Satellite and 

Telcos (Mar. 21, 2006) (finding that ‘‘negotiating 

impasses that cause interruptions in access to 

broadcast signals are extremely rare’’). 

to be eligible to receive SV stations, and 

that it need not receive the network 

affiliate affiliated with the same network 

as the SV station.80 The Broadcaster 

Associations disagree with the NPRM’s 

interpretation of new Section 340(b)(1) 

and argue that the Commission should 

retain the interpretation it applied to the 

SHVERA, notwithstanding the change 

in the statutory language as enacted in 

the STELA.81 They note that, in 

implementing the SHVERA in 2005, the 

Commission interpreted the former 

analog local service provision in former 

Section 340(b)(1) and the former digital 

local service provision in former Section 

340(b)(2)(A) to require that a satellite 

subscriber must receive the local 

affiliate of a specific network in order to 

be eligible to receive the SV station 

affiliated with the same network.82 The 

SHVERA, in contrast to the STELA, 

included language expressly requiring 

receipt of the ‘‘same network affiliate’’ in 

the provision applying to eligibility for 

a digital SV station.83 The Commission, 

relying on the language in the former 

digital provision, applied the 

requirement to subscriber eligibility for 

both analog and digital SV stations.84

The Broadcaster Associations contend 

that we should retain the former 

interpretation and apply it to the new 

STELA provision despite the removal of 

the old language.85 They argue that 

nothing has materially changed with 

respect to the local service requirement, 

other than the completion of the DTV 

transition and, therefore, that the 

Commission’s prior interpretation of 

Section 340(b)(1) should not change.86

They argue that Congress ‘‘re-enacted’’ 

the Commission’s 2005 interpretation of 

former Section 340(b)(1) because it did 

not substantively change that provision, 

thereby giving its ‘‘implicit approval’’ of 

that interpretation.87 We reject these 

arguments as they ignore that the 

STELA does, in fact, materially change 

the SHVERA’s local service 

requirements.88

21. The Broadcaster Associations 

assert that we must presume that 

Congress was aware of the 

Commission’s prior interpretation of the 

local service provision.89 By the same 

reasoning, however, we must also 

presume that Congress was aware of the 

basis for that interpretation: Namely, the 

‘‘same network affiliate’’ language in the 

former digital local service requirement 

in former Section 340(b)(2)(A). Congress 

intentionally removed that requirement 

when it chose to strike that language in 

favor of the former analog local service 

limitation language. As we said in the 

NPRM, Congress chose to discard the 

‘‘same network affiliate’’ language in the 

former digital local service requirement 

in Section 340(b)(2)(A), which the 

Commission had relied upon for its 

more restrictive interpretation of the 

former analog local service requirement 

in Section 340(b)(1).90 As Dish notes: 

‘‘Congress’ eraser is no less dispositive 

than its pen.’’ 91 Moreover, our 

interpretation is consistent with 

Congress’ intent to facilitate carriage 

and availability of SV stations for more 

satellite subscribers, and, thereby, to 

achieve closer parity with cable carriage 

of SV stations. 

22. The Broadcaster Associations also 

argue that because both the former and 

new Section 340(b)(2) contain the ‘‘same 

network affiliate’’ language, the need to 

reconcile these two provisions 

remains.92 Moreover, they argue that 

because three out of four of the Section 

340(b) provisions contain the ‘‘same 

network affiliate’’ language, we should 

read that language into the one that does 

not: The new local service 

requirement.93 We reject both claims. 

New Section 340(b)(2) is a different 

requirement from the other provisions 

of Section 340(b), and addresses only 

when a satellite carrier may provide the 

HD signal of an SV station.94 Moreover, 

contrary to the Broadcaster 

Associations’ assertion, we find that 

Congress’s inclusion of the ‘‘same 

network affiliate’’ language in three out 

of four of the Section 340(b) provisions 

and not in the amended digital local 

service provision indicates that such 

exclusion was intentional.95

23. We recognize that there may be 

tension in some circumstances between 

the goals of protecting localism, on the 

one hand, and achieving closer parity 

between pay television providers and 

increasing SV carriage, on the other. 

Specifically, our interpretation below of 

the STELA’s amendments to Sections 

340(b)(1) and (b)(2) makes it possible for 

a satellite carrier to carry an SV network 

station, even in HD format, without also 

carrying the corresponding local inmarket affiliate if that local station has 

not granted retransmission consent. The 

Broadcaster Associations argue that this 

undermines local service.96 However, 

because SV status generally applies to 

only some areas in a DMA and not 

throughout an entire DMA, we find it 

unlikely that an SV station could 

permanently substitute for a local inmarket station, even in the provision of 

network programming to the market.97

Moreover, because most viewers want to 

watch their local stations, we do not 

think that carriage of only SV stations 

would satisfy most subscribers for an 

extended time. Furthermore, as the 

Broadcaster Associations have noted in 

a different proceeding, retransmission 

consent impasses resulting in loss of a 

local station are relatively rare 98 and, 

when they do occur, they are usually 

short-lived. Although the Broadcaster 

Associations do provide a few examples 

of markets where they have concerns 

that satellite carriers could rely on 

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99See NAB ex parte (dated Oct. 22, 2010) at 1, 

3–6 (‘‘NAB Oct. 22 ex parte’’) (suggesting local 

stations in four DMAs—Dayton, OH; Hartford-New 

Haven, CT; Lansing, MI; and Sherman, TX-Ada, 

OK—are at risk of being overshadowed by a SV 

station from an adjacent, larger market). In its ex 

parte, NAB provided staff with tables ‘‘reflecting the 

extent to which out-of-market duplicating network 

stations are ‘significantly viewed’ in several local 

markets.’’ Id. 

100See 47 CFR 76.65 (requiring broadcasters and 

MVPDs to negotiate in good faith). 

101See Appendix B final rule 47 CFR 76.54(g)(1). 

102 47 U.S.C. 340(b)(2)(B) (2004). The law reflects 

Congress’ intent to prevent a satellite carrier from 

offering the local digital station ‘‘in a less robust 

format’’ than the SV digital station). SHVERA 

Significantly Viewed Report and Order, 20 FCC Rcd 

at 17314, para. 94. 

103 47 CFR 76.54(h) states: ‘‘Signals of 

significantly viewed network stations that originate 

as digital signals may not be retransmitted to 

subscribers unless the satellite carrier retransmits 

the digital signal of the local network station, which 

is affiliated with the same television network as the 

network station whose signal is significantly 

viewed, in either (1) at least the equivalent 

bandwidth of the significantly viewed station or (2) 

the entire bandwidth of the digital signal broadcast 

by such local station.’’ 

104See supra para. 13 (quoting H.R. 2994 Report 

at 16). See also Testimony of Bob Gabrielli, Senior 

Vice President, Broadcasting Operations and 

Distribution, DIRECTV, Inc., before the U.S. House 

of Representatives Subcommittee on 

Communications, Technology and the Internet, 

Hearing on Reauthorization of the of the Satellite 

Home Viewer Extension and Reauthorization Act, at 

9 (Feb. 24, 2009) (‘‘Gabrielli Testimony’’) (asserting 

that it is ‘‘infeasible’’ for DIRECTV to ‘‘carry local 

stations in the same format as SV stations every 

moment of the day’’). 

105 In the 2006 DIRECTV–EchoStar Joint Petition, 

the Satellite Carriers challenged the Commission’s 

interpretation of the ‘‘equivalent bandwidth’’ 

requirement. Because the STELA eliminates this 

requirement, this issue is now moot. See infra 

Section III.G. (discussing Order on 

Reconsideration). 

106 47 U.S.C. 340(b)(2) (2010), as amended by the 

STELA sec. 203(a). 

107H.R. 2994 Report at 16 (noting that the 

Commission’s implementation of Section 340, 

including its interpretation of the ‘‘equivalent 

bandwidth’’ requirement, has generally served to 

discourage satellite carriers from using Section 340 

to provide significantly viewed signals to qualified 

households). See also Gabrielli Testimony at 9 

(‘‘Fixing the ‘Significantly Viewed Rules’ will 

Rescue Congress’s Good Idea from the FCC’s 

Implementation Mistakes’’). 

108See H.R. 3570 Report at 4–5. 

109H.R. 2994 Report at 16. 

110See Appendix B final rule 47 CFR 76.54(g)(2). 

We renumber former Section 76.54(h) as 76.54(g)(2). 

111 Id. 

112NPRM at para. 12. We clarify that this 

requirement is separate from the local service 

requirement in Section 340(b)(1), which imposes 

restrictions on the satellite carriage of an SV station, 

regardless of format. 

113Broadcaster Associations Comments at 14; 

DIRECTV Comments at 4 and Reply at 8; Dish 

Comments at 2. 

114Broadcaster Associations Comments at 14–15. 

115See supra para. 16. See also DIRECTV Reply 

at 8. 

carriage of an SV station to the 

exclusion of the local in-market station, 

the record does not reflect instances in 

which an SV station has supplanted an 

in-market station in the cable or satellite 

context.99 Therefore, we will monitor 

how the rules adopted in this order are 

working to determine if there are 

abuses, unintended consequences, or 

misuse of the rules that might lead to 

violations of the good faith requirements 

associated with retransmission consent 

negotiations.100 Now that we have 

established a practical framework for 

satellite carriage of SV stations, we 

expect Satellite Carriers to offer SV 

stations to consumers wherever 

possible. However, if our 

implementation of Section 340(b) 

results in satellite carriers using SV 

stations to supplant, rather than 

supplement, their carriage of local inmarket stations, we will reexamine our 

rules and our statutory analysis here in 

light of Congress’ goals. In light of our 

conclusion that the new language in the 

STELA no longer requires subscriber 

receipt of a specific local station, we 

revise Section 76.54(g).101 The amended 

rule requires that a subscriber receive 

the satellite carrier’s local-into-local 

service as a precondition for the 

subscriber to receive SV stations. 

C. The STELA Eliminates the 

‘‘Equivalent or Entire Bandwidth’’ 

Requirement and Replaces it with an 

‘‘HD Format’’ Requirement 

24. We adopt our proposal to 

eliminate the ‘‘equivalent or entire 

bandwidth’’ requirement and to provide, 

in its place, that a satellite carrier may 

retransmit the HD signal of an SV 

station to a subscriber only if such 

carrier also retransmits the HD signal of 

the local station affiliated with the same 

network whenever that signal is 

available in HD format. Both the 

Broadcaster Associations and Satellite 

Carriers agree with this conclusion. The 

commenters disagree, however, how to 

interpret and implement the new ‘‘HD 

format’’ requirement. 

25. In the 2004 SHVERA, Congress 

enacted the ‘‘equivalent or entire’’ 

bandwidth requirement to prevent a 

satellite carrier from using technological 

means to discriminate against a local 

network station in favor of the SV 

network affiliate.102 The Commission 

codified these requirements in Section 

76.54(h) of the rules, which tracks the 

language of SHVERA.103 In 

implementing that provision, the 

Commission strictly interpreted the 

statutory requirement for ‘‘equivalent 

bandwidth.’’ As a result, satellite 

carriers have been required to ensure 

equality between the satellite 

bandwidth allocated to carriage of the 

local station and the SV stations on 

virtually a minute-by-minute basis, 

making carriage of SV stations so 

burdensome that they are rarely 

carried.104

26. The STELA eliminated the 

‘‘equivalent or entire bandwidth’’ 

requirement from the statute,105 and 

replaced it with ‘‘HD format.’’ 106 In 

doing so, Congress intended to facilitate 

satellite carriage of SV stations, which 

Congress thought was thwarted by the 

Commission’s implementation of the 

predecessor provision.107 The legislative 

history also shows that Congress wanted 

to simplify the law and increase service 

to satellite consumers.108 Congress’ 

principal concern was simply to clarify 

that a satellite carrier may provide an 

SV station in HD format as long as the 

carrier also carries the corresponding 

local network affiliate in HD format if it 

is available in HD format.109

27. Accordingly, we revise Section 

76.54(h) to eliminate the ‘‘equivalent or 

entire bandwidth’’ requirement and to 

provide that a satellite carrier may 

retransmit the HD signal of an SV 

station to a subscriber only if such 

carrier also retransmits the HD signal of 

the local station affiliated with the same 

network whenever that signal is 

available in HD format.110 This part of 

the rule tracks the amended statutory 

language.111 In addition, as discussed 

below, we adopt additional rules to 

interpret and implement the new ‘‘HD 

format’’ requirement. 

1. ‘‘HD Format’’ Requirement Applies 

Only Where a Satellite Carrier 

Retransmits the SV Station in HD 

Format 

28. We adopt our tentative conclusion 

in the NPRM that the ‘‘HD format’’ 

requirement in Section 340(b)(2) applies 

only where a satellite carrier retransmits 

the SV station in HD format and does 

not restrict satellite carriage of the SV 

station in SD format.112 The Satellite 

Carriers support this conclusion, while 

the Broadcaster Associations oppose 

it.113

29. The Broadcaster Associations 

object to the additional language in our 

proposed Section 76.54(g)(2) clarifying 

that the ‘‘HD format’’ requirement does 

not apply to satellite carriage of an SV 

station in SD format.114 They argue that 

the statute requires satellite carriage of 

a local station in SD format if the 

satellite carrier retransmits the SV 

station in SD format. We disagree. As 

discussed above, the amended local 

service requirement in Section 340(b)(1) 

now requires only that a satellite 

subscriber receive the satellite carrier’s 

local-into-local service as a precondition 

for the subscriber to receive SV 

stations.115 Moreover, the express 

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116See Appendix B final rule 47 CFR 

76.54(g)(2)(i). 117See Appendix B final rule 47 CFR 

76.54(g)(2)(ii). NPRM at para. 12 (citing, e.g., Local 

Broadcast Signal Carriage First Report and Order, 

66 FR 16533, March 26, 2001 (discussing several 

formats that are considered ‘‘high definition’’); Local 

Broadcast Signal Carriage Second Report and 

Order, 73 FR 24502, May 5, 2008. See also, e.g., 

Newton’s Telecom Dictionary definition of HDTV at 

389 (20th ed. 2004) and the Commission’s ‘‘DTV 

Shopping Guide’’ for consumers at http:// 

www.dtv.gov/shopgde.html). 

118See 47 CFR 76.65 and 76.66. These rules 

govern, inter alia, requirements to negotiate in good 

faith, procedures for requesting carriage, carriage of 

stations that substantially duplicate, and other 

matters related to satellite carriage of local stations. 

119See Dish Comments at 7 and DIRECTV and 

Dish Sept. 22 SV Talking Points at 3. 

120Broadcaster Associations Reply at 14–16. 

121See 47 U.S.C. 340(b)(2) (2010), as amended by 

the STELA sec. 203(a). 

122The STELA amendments to the 

Communications Act use the word ‘‘available’’ with 

respect to a signal in three different contexts: (1) In 

Section 340 with respect to an HD signal; (2) in 

Section 339 in reference to whether the satellite 

carrier is retransmitting the local station to a 

subscriber as part of the local-into-local service 

package, see 47 U.S.C. 339(a)(2)(A)(i)(I), (2)(B)(i)(I) 

and (II), (2)(C)(i) and (ii), (2)(D)(iii), (2)(E), and 

(2)(H); and (3) ‘‘availability’’ in Section 342 with 

respect to a satellite carrier’s ‘‘good quality signal,’’ 

see 47 U.S.C. 342(e)(2)(A)(i). As discussed, infra, 

only Section 339 offers a definition of ‘‘available’’ 

but expressly limits this definition: ‘‘for purposes of 

this paragraph,’’ that is, to Section 339(a). 

123 Dish Comments at 7–8. 

124 Id. at 8. 

125Broadcaster Associations Reply at 12. 

126 Id. at 15. 

127Section 339(a)(2)(H) of the Act defines the 

term ‘‘available’’ in this limited context (i.e., ‘‘no 

distant where local’’): 

(H) Available defined. For purposes of this 

paragraph, a satellite carrier makes available a local 

signal to a subscriber or person if the satellite 

carrier offers that local signal to other subscribers 

who reside in the same zip code as that subscriber 

or person. 

47 U.S.C. 339(a)(2)(H). See also Broadcaster 

Associations Reply at 14–15 (citing 47 U.S.C. 

339(a)(2)(C)(i)). 

128The Broadcaster Associations also argue that, 

in the qualified satellite carrier certification context 

in Section 342 of the Act, the ‘‘availability level of 

a satellite signal’’ ‘‘means that the satellite carrier is 

retransmitting the satellite signal in a manner to 

satisfy the ‘good quality satellite signal’ 

requirements.’’ Broadcaster Associations Reply at 15 

(citing 47 U.S.C. 342(e)(2)(A)(i)). 

129 Id. at 15. 

130For example, the definition in Section 339 

does not shed light on whether the term ‘‘available’’ 

takes into account practical considerations or 

whether it is sufficient for a signal simply to be 

theoretically available. 

131 47 U.S.C. 342 (describing the process and 

grounds for the Commission to issue a ‘‘qualified 

carrier’’ certification pursuant to 17 U.S.C. 119(g)). 

language of the HD format requirement 

in Section 340(b)(2) applies only when 

a satellite carrier transmits an SV station 

in HD format. Therefore, in order for a 

satellite carrier to retransmit to a 

subscriber an SV station in SD format, 

the statute does not require satellite 

carriage of the local station affiliated 

with the same network in SD format. 

30. Accordingly, we adopt our 

tentative conclusion that Section 

340(b)(2) only limits satellite carriage of 

an SV station in HD format and does not 

apply if the satellite carrier only carries 

the SV station in SD format, and we 

adopt this requirement in new Section 

76.54(g)(2).116 We also adopt our 

proposal that, for purposes of this 

provision, ‘‘HD format’’ refers to a 

picture quality resolution of 720p, 

1080i, or higher.117 We received no 

opposition to this proposal. 

2. ‘‘HD Format’’ Requirement Applies 

When a Local Station Makes Itself 

Technically and Legally ‘‘Available’’ to 

Satellite Carrier 

31. We conclude that, for a local (inmarket) station to be ‘‘available’’ for 

purposes of the ‘‘HD format’’ 

requirement in Section 340(b)(2), the 

local station must: (1) Timely request 

carriage (i.e., elect mandatory carriage or 

grant retransmission consent); (2) 

provide a good quality HD signal to the 

satellite carrier’s local receive facility 

(LRF) in accordance with Section 

76.66(g) of the Commission’s rules; and 

(3) otherwise comply with Sections 

76.65 and 76.66.118 We believe that the 

statute’s use of the term ‘‘available,’’ 

instead of ‘‘broadcast’’ or ‘‘transmitted,’’ 

signifies that Congress did not intend a 

narrow technical meaning and affords 

us discretion to create a workable 

framework for satellite carriage of SV 

stations. Our conclusion is supported by 

Dish and DIRECTV,119 while the 

Broadcaster Associations oppose it.120

32. The STELA establishes the new 

‘‘HD format’’ requirement in Section 

340(b)(2) to permit a satellite carrier to 

retransmit an SV network station in HD 

‘‘only if such carrier also retransmits in 

high definition format the signal of a 

station located in the local market of 

such subscriber and affiliated with the 

same network whenever such format is 

available from such station.’’ 121 In the 

NPRM, we sought comment on the 

significance of this language. We also 

sought comment on whether satellite 

carriers would face any technical 

problems in complying with our 

proposed rules. 

33. The STELA does not define the 

term ‘‘available’’ for purposes of Section 

340.122 The legislative history likewise 

does not explain the meaning of the 

term. The Satellite Carriers and 

Broadcaster Associations offer 

competing interpretations as to what 

‘‘available’’ should mean in this context. 

Dish argues that we should interpret 

this language to mean that, ‘‘if the local 

station has not elected must carry and 

has not signed a retransmission consent 

agreement, or fails to provide a good 

quality signal in accordance with 

[Section] 76.66(g), then the signal 

should be deemed not available for 

purposes of the [‘‘HD format’’ 

requirement], and the satellite carrier 

should be able to supply the SV station 

in HD.’’ 123 Dish argues that this 

interpretation is necessary to prevent a 

local station from depriving satellite 

subscribers of both the local and the SV 

station in the event of an impasse in 

retransmission negotiations, which they 

assert would be ‘‘a result directly at odds 

with Congress’ express intent to make 

SV stations more available to satellite 

subscribers.’’ 124 The Broadcaster 

Associations oppose Dish’s proposal, 

asserting that the Satellite Carriers’ 

interpretations of the new ‘‘HD format’’ 

requirement ‘‘are motivated by a desire 

to affect retransmission consent 

negotiations.’’ 125

34. The Broadcaster Associations 

argue that the term ‘‘available’’ should 

mean ‘‘whenever the television station is 

transmitting or broadcasting the 

relevant channel in HD format.’’ 126

They argue that this interpretation is 

most consistent with other parts of the 

statute, such as Sections 339 127 and 

342 128 of the Act.129 We disagree. The 

Sections cited by the Broadcaster 

Associations pertain to a different use of 

the term ‘‘available’’ in different contexts 

and are expressly limited to those 

contexts. Moreover, even if we were to 

rely on the definition of ‘‘available’’ in 

Section 339 or the reference to 

‘‘availability’’ in Section 342, the term 

‘‘available’’ in the context of SV carriage 

would remain ambiguous. Section 339 

relates to whether a satellite carrier’s 

local-into-local package is ‘‘available’’ to 

a subscriber. If so, the subscriber is not 

eligible for distant signals (i.e., ‘‘no 

distant, where local’’). In the context of 

HD signal availability in Section 340, 

ascribing this meaning to the term 

‘‘available’’ could support either the 

Satellite Carriers’ interpretation that the 

HD signal is not available if the local 

station does not grant consent for 

retransmission or the Broadcaster 

Associations’ interpretation that the HD 

signal is available if broadcast.130

Similarly, Section 342 refers to the 

‘‘availability level’’ of a satellite signal as 

a means of defining ‘‘good quality 

satellite signal’’ for purposes of a 

satellite carrier’s eligibility for 

certification as a ‘‘qualified carrier.’’ 131

We do not see the relevance of satellite 

signal coverage in the context of Section 

342 to the interpretation of Section 340. 

Moreover, here again, even by strained 

analogy, signal availability could mean 

the physical presence of the signal, as 

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72978 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

132 DIRECTV and Dish Sept. 22 SV Talking Points 

at 1. ‘‘Every broadcast station that has an HD feed 

and is carried by a satellite carrier makes the HD 

feed ‘available’ to the satellite carrier—even if the 

satellite carrier does not retransmit the HD format 

of that station to its subscribers. This is because, as 

a technical matter, the satellite carrier offers [SD] 

service in such situations by taking the HD signal 

and downrezzing it to [SD]. Thus, the HD signal is 

‘available to the satellite carrier,’ but the satellite 

carrier does not ‘retransmit to a subscriber in [HD] 

format the signal of [such] station’—exactly the 

situation in which Congress meant to restrict the 

format of [SV] importation. So, if a satellite carrier 

offered an entire market in SD format only, it could 

not import a [SV] station in HD format because the 

HD format of the in-market station is ‘available to’ 

it.’’ ‘‘Downrezzing’’ refers to reducing the resolution 

from high definition to standard definition. 

133See DIRECTV and Dish Sept. 20 SV Talking 

Points. 

134See id. at 4. 

135 DIRECTV Comments 4–5; Reply at 12. 

136See 47 U.S.C. 338(b). 137See 47 U.S.C. 325(b). 138See, e.g., Natural Resources Defense Council v. 

EPA, 571 F.3d 1245 (DC Cir. 2009) (term 

‘‘reasonably available’’ is ambiguous where statute 

did not specify how to define the term, so agency 

is permitted to reasonably interpret statute); State 

of Hawaii ex rel. Atty. Gen. v. FEMA, 294 F.3d 1152, 

1161–1162 (9th Cir. 2002) (observing that ‘‘[a]s the 

dictionary definitions of the word reveal, the term 

‘available’ is ambiguous in the current context. 

* * * Under the first definition, ‘available’ takes 

into account practical considerations * * *; under 

the second definition, the term suggests instead a 

more abstract or theoretical concept without regard 

for cost, risk or uncertainty’’). We note that the court 

finds ambiguous the definition from the dictionary 

on which the Broadcaster Associations rely on as 

being clear. Broadcaster Associations Reply at 15 

(citing to American Heritage Dictionary of the 

English Language at 127 (3d ed. 1996) (defining 

available as ‘‘1. Present and ready for use; at hand; 

accessible * * * 2. Capable of being gotten; 

obtainable’’). 

139See Chevron U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984) (where 

statute’s plain terms do not directly address precise 

question at issue and statute is ambiguous on the 

point, courts are required to defer to the 

implementing agency’s reasonable construction); 

see also National Cable and Telecommunications 

Ass’n v. Brand X Internet Services, 545 U.S. 967, 

980 (2005) (ambiguities in statutes within an 

agency’s jurisdiction to administer are delegations 

of authority to the agency to fill the statutory gap 

in a reasonable fashion); Verizon Comm’ns Inc. v. 

FCC, 535 U.S. 467, 539 (2002) (under Chevron 

doctrine, courts generally defer to agency’s 

reasonable interpretation of an ambiguous provision 

in its enabling statute). 

140See supra para. 15. 

141See, e.g., Broadcaster Associations Comments 

at iv. 

142See, e.g., NAB ex parte (dated Oct. 7, 2010) 

Significantly Viewed Talking Points Appendix at 3 

(‘‘NAB Oct. 7 SV Talking Points’’). 

143 DIRECTV and Dish Sept. 22 SV Talking Points 

at 1. But see NAB Oct. 22 ex parte at 1, 3–6 (the 

Broadcaster Associations disagree, and contend that 

there are some small markets in which there is 

substantial ‘‘overshadowing’’ by a SV station from 

an adjacent, larger market (e.g., Dayton, OH; 

Hartford-New Haven, CT; Lansing, MI; and 

Sherman, TX–Ada, OK DMAs)). Neither side 

quantifies the prevalence of (or potential for) 

overshadowing. We agree that overshadowing is a 

concern, but the potential for overshadowing 

already exists in the cable context, and there is no 

evidence that overshadowing is currently a problem 

in the cable context or would be more prevalent in 

the satellite context. 

144See supra para. 23. 

145 DIRECTV and Dish Sept. 20 SV Talking Points 

at 2 (‘‘explaining that under the Broadcaster 

Associations’ interpretation, ‘‘in the event of a 

retrans dispute, the satellite carrier must downrez 

or black out the SV station’’). 

the Broadcaster Associations argue, or 

the ability to receive and use the signal, 

as the satellite carriers contend. 

35. In contrast to the Broadcaster 

Associations’ attempt to import uses of 

the word from other contexts, the 

Satellite Carriers describe the 

circumstances in which the HD format 

requirement is intended to apply: When 

the satellite carrier receives a station’s 

HD signal and the permission to 

retransmit it but chooses not to 

retransmit the HD version and instead 

converts the HD signal to a standard 

definition (‘‘SD’’) signal.132 We believe 

that this interpretation is most 

consistent with common usage of the 

term ‘‘available.’’ In contrast, we think it 

strains the common meaning of the term 

to consider ‘‘available’’ a signal that the 

satellite carrier is legally barred from 

carrying. 

36. The Satellite Carriers also address 

the practical impact of defining the term 

‘‘available’’ as suggested by the 

Broadcaster Associations. They explain 

that they offer local service in some 

markets only in HD.133 Therefore, an SV 

station originating from such a market 

would have one HD feed covering both 

the station’s local market and SV area 

and there would be no technical way for 

the satellite carrier to down-convert the 

HD feed signal to SD only in the SV 

area. Moreover, a satellite carrier would 

likely not have the capacity on its spot 

beam to add a duplicative, SD version 

of the station.134 Therefore, if a local 

station withholds retransmission 

consent, the Satellite Carriers would 

have to either down-convert the SV 

station from HD to SD in its own local 

market or not carry it as an SV station, 

frustrating the intent of the statute.135

37. The question then is whether an 

HD signal is ‘‘available’’ for purposes of 

the statute any time a broadcaster is 

transmitting an HD signal, or whether 

the term ‘‘available’’ takes into account 

practical and legal considerations, such 

as whether the broadcaster is delivering 

a ‘‘good quality signal’’ to the satellite 

carrier 136 and the satellite carrier is 

legally permitted to carry it (i.e., the 

broadcaster has elected mandatory 

carriage or granted retransmission 

consent).137 We believe the term is 

ambiguous 138 and thus should be 

defined in a manner that best effectuates 

the text, history and purposes of the 

statute.139 As discussed above, we 

believe the overriding goal of the 

legislative changes made in Section 340 

is to facilitate satellite carriage of SV 

stations and remove the obstacles to 

carriage created by our interpretation of 

SHVERA.140 With this goal in mind, we 

find that the term ‘‘available’’ within the 

context of Section 340(b)(2) is best 

interpreted by taking into account 

whether the satellite carrier has the legal 

authority to transmit the local 

broadcaster’s signal and has been 

provided a ‘‘good quality’’ signal, and we 

believe that this interpretation is most 

consistent with common usage of the 

term. 

38. We agree with the Broadcaster 

Associations that our rules must protect 

localism,141 but disagree that we must 

protect the in-market station at the cost 

of making satellite carriage of the SV 

station impractical.142 The Broadcaster 

Associations’ argument fails to take into 

account that the SV station is generally 

not significantly viewed throughout an 

entire market. Indeed, the Satellite 

Carriers contend that stations that are 

significantly viewed outside of their 

own markets are generally significantly 

viewed only in small portions of 

neighboring markets, making it unlikely 

that satellite carriers could use SV 

stations to replace local stations in other 

markets.143 As noted above, we also find 

it unlikely that an SV station could 

permanently substitute for a local inmarket station to the satisfaction of 

subscribers throughout the market.144

39. We are persuaded that, if we were 

to adopt the Broadcaster Associations’ 

interpretation that a station’s HD signal 

is ‘‘available’’ even when it has not 

granted retransmission consent or is not 

providing a ‘‘good quality’’ signal, the 

satellite carrier in many cases will have 

to downconvert the SV station or not 

carry the SV station at all due to limited 

satellite capacity,145 and Congressional 

intent will, again, be thwarted. If, on the 

other hand, we were to conclude that a 

station’s HD signal is not ‘‘available’’ 

unless the carrier has the legal right to 

carry the station and a ‘‘good quality’’ 

signal is being provided, the satellite 

carrier will be able to carry an SV 

station and, in the overwhelming 

majority of cases, will continue to have 

the incentive to reach a retransmission 

consent agreement with the local 

station. Thus, this interpretation will 

likely result in carriage of both the SV 

and local stations. We acknowledge that 

this interpretation may affect 

retransmission consent negotiations in 

some situations by giving a satellite 

carrier the opportunity to provide 

network programming to some 

subscribers through the SV station. This 

interpretation may also affect the local 

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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 72979 

146 DIRECTV and Dish Sept. 22 SV Talking Points 

at 1 (‘‘Treating satellite carriers like cable operators 

with respect to significantly viewed service would 

not give satellite carriers undue leverage in 

retransmission consent negotiations’’). 

147 DIRECTV Reply at 3, 11; DIRECTV Comments 

at 5. DIRECTV agreed with Dish’s proposal in their 

joint ex parte presentations. See, e.g., DIRECTV and 

Dish Sept. 20 SV Talking Points. This interpretation 

of ‘‘available’’ applies only with respect to the SV 

provisions in STELA and not to other provisions in 

STELA, including Section 339 (47 U.S.C. 339). 

148See Appendix B final rule 47 CFR 76.54(g)(2). 

149See 47 CFR 76.65(a). 

150See Appendix B final rule 47 CFR 

76.54(g)(2)(iii). 

151A station may be affiliated with more than one 

network. 

152See Broadcaster Associations Comments at 16 

and Dish Reply at 11. The Broadcaster Associations 

contend that case-by-case multicast determinations 

would be discriminatory and would violate the 

STELA. Broadcaster Associations Comments at 16. 

153 DIRECTV at 5; Broadcaster Associations Reply 

at 10. For example, a local station may be affiliated 

with two different networks and broadcast 

programming from both networks using its digital 

signal capacity to air two or more signal streams 

simultaneously. If the local station makes an HD 

signal affiliated with a network available to the 

satellite carrier, and that carrier wishes to carry the 

HD signal of an SV station affiliated with the same 

network, Section 340(b)(2) requires carriage of the 

local station’s HD signal, as discussed, infra. We 

conclude that it is irrelevant whether the local 

affiliate’s broadcast of the HD signal is aired on a 

primary or secondary multicast stream, as long as 

the HD signal is available to the satellite carrier. 

154 Dish Comments at 6; Broadcaster Associations 

Comments at 16. 

155 47 CFR 76.66(b). Dish Reply at 12–13. Satellite 

carriers are required to carry multicast streams only 

in Alaska and Hawaii. See 47 CFR 76.66(b)(2). 

156See Appendix B final rule 47 CFR 76.54(g)(2). 

157 DIRECTV Comments at 4–5. DIRECTV 

explains that, from its perspective, ‘‘a new multicast 

network affiliate can appear as quickly as a 

mushroom on the lawn after a rainy night.’’ 

DIRECTV Reply at 12 (explaining ‘‘the moment a 

new multicast network affiliate appeared, DIRECTV 

would either have to carry it in HD or drop an SV 

station affiliated with the same network that it had 

been carrying’’). 

158See 47 CFR 76.66(d)(3)(iii) (providing 90 days 

for the satellite carrier to commence carriage of a 

new station). See also 47 CFR 76.66(d)(2)(iv) 

(requiring satellite carriage within 90 days of 

receiving a mandatory carriage request in a new 

local-into-local market or upon commencing localinto-local service). 

station’s leverage in negotiations 

because in certain areas of the DMA it 

would no longer be the only source of 

programming from that network to some 

satellite subscribers. We conclude, 

however, that this is the best 

interpretation of the statutory language 

because it ensures that the overall intent 

of the statutory provisions to promote 

SV carriage is carried out.146

40. Therefore, we find that Section 

340(b)(2) is best interpreted to enable 

satellite TV consumers to receive both 

the SV and in-market stations as part of 

their carrier’s local service package.147

Accordingly, we amend Section 

76.54(g)(2).148 We note, however, that 

our interpretation here assumes that 

both parties are negotiating in good faith 

in compliance with our rules.149 If the 

local station is willing to grant consent 

and make its HD signal available, but 

the satellite carrier is not negotiating for 

retransmission consent in good faith, as 

required by Section 76.65, then the local 

station’s HD signal will be deemed 

available. The amended Section 

76.54(g)(2) includes this condition.150

3. ‘‘HD Format’’ Requirement Applies to 

a Local Station’s HD Multicast Signal 

41. We find that the ‘‘HD format’’ 

requirement is best interpreted to 

require carriage of any HD signal of a 

local station affiliated with the same 

network as the SV station, regardless of 

whether the local station broadcasts the 

HD signal as a primary or as a secondary 

multicast stream.151 The Broadcaster 

Associations and Dish debate whether 

the statute’s use of the term ‘‘signal’’ 

includes a multicast stream, with the 

Broadcaster Associations arguing it does 

and Dish arguing it does not. 

42. In the NPRM, we sought comment 

on how the ‘‘HD format’’ requirement in 

Section 340(b)(2) should apply in the 

event a satellite carrier wants to 

retransmit an SV network affiliate in HD 

and there is an in-market (local) station 

that is broadcasting multiple streams of 

programming (‘‘multicasting’’) and more 

than one of the streams is in HD format 

and affiliated with a network. We asked 

whether the satellite carrier is required 

to carry the secondary stream in HD in 

order to be permitted to retransmit an 

SV station affiliated with the same 

network in HD, notwithstanding that the 

in-market station’s primary stream is 

affiliated with a different network. In 

other words, would a satellite carrier be 

required to carry more than one HD 

programming stream of an in-market 

station if the in-market station is 

multicasting HD streams that are 

affiliated with different networks in 

order for the satellite carrier to carry an 

SV station affiliated with each network 

in HD? We also considered whether we 

could address this situation on a caseby-case basis. In their comments, both 

the Broadcaster Associations and the 

Satellite Carriers seek a Commission 

decision on the multicast question.152

43. We conclude that the statute’s use 

of the term ‘‘signal’’ in this context does 

not differentiate between streams that 

are primary or secondary.153 For 

purposes of carriage of SV signals in 

HD, the question is whether there is an 

in-market station affiliated with the 

same network as the SV station that 

makes its HD signal available to the 

satellite carrier. If so, the satellite carrier 

may not carry the SV station in HD 

format unless it carries the local station 

affiliated with the same network in HD 

format. Dish argues that Section 

340(b)(2) does not expressly use the 

term ‘‘multicast stream,’’ but, as noted by 

the Broadcaster Associations, this 

section also does not expressly use the 

term ‘‘primary stream.’’ 154 Dish notes 

that, for purposes of the broadcast 

carriage requirements, a satellite carrier 

is generally only required to carry the 

stream that a station deems its ‘‘primary’’ 

stream if the station elects mandatory 

carriage.155 That carriage requirement, 

however, is not determinative of which 

signal a satellite carrier is required to 

carry in order to carry a particular SV 

station in HD format under Section 

340(b)(2). As stated above, when an SV 

station is carried in HD, we interpret 

Section 340(b)(2) as requiring carriage of 

any available HD signal of a local station 

affiliated with the same network as the 

SV station. We amend Section 

76.54(g)(2) accordingly.156

44. Though appearing to acknowledge 

that the ‘‘HD format’’ requirement 

applies to multicast channels, DIRECTV 

expresses concern that applying the HD 

format requirement to multicast streams 

would make carriage of SV stations 

technically problematic because of what 

it calls the ‘‘mushroom’’ problem; that is, 

‘‘if a new, [HD] network affiliate 

suddenly appeared on the multicast 

stream of an existing station, [DIRECTV] 

would have to drop or downrez the [SV] 

station until [DIRECTV] could negotiate 

carriage and make room for the ‘new’ 

local station.’’ 157 We believe our 

definition of ‘‘available’’ in the HD 

format requirement may alleviate this 

‘‘mushroom’’ problem in many cases 

because a new HD multicast stream 

would not be available to the satellite 

carrier until the station grants 

retransmission consent for that stream. 

Additionally, if the new HD multicast 

stream is a new station, our existing 

satellite carriage rules already recognize 

that satellite carriers may face technical 

issues associated with commencing 

carriage of new broadcast signals in a 

local market.158 We recognize, however, 

that a satellite carrier may nonetheless 

face a ‘‘mushroom’’ problem where a 

new HD multicast stream is introduced 

by an existing station in the local market 

and such station has previously granted 

carriage consent. Furthermore, the 

satellite carrier may not be able to 

accommodate the new HD multicast 

stream in the market on its spot beam. 

Therefore, to minimize consumer 

disruption, we recognize that satellite 

carriers may need additional time to 

come into compliance with the HD 

format rule without having to drop an 

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72980 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

159We recognize that the HD format rule may 

require a satellite carrier to drop an existing SV 

station if it is not able to accommodate the new HD 

signal in the market on its spot beam. In such cases, 

the satellite carrier will be afforded a reasonable 

amount of time to inform its subscribers that it will 

be dropping the SV station. 

160See 47 CFR 76.66(d)(3)(iii) and 47 CFR 

76.54(e) (requiring satellite carriers that intend to 

carry SV stations to provide written 60 days notice 

to all TV stations assigned to the same local 

market). 

161 47 U.S.C. 340(b)(3) and (4). We note that the 

STELA § 103 does amend the waiver provision in 

the corresponding satellite statutory copyright 

license in 17 U.S.C. 122(a)(2) to eliminate the now 

out-dated ‘‘sunset’’ provision and replace the term 

‘‘superstation’’ with ‘‘non-network station,’’ 

consistent with other references in the statute (see 

supra note 25). 

162 Id. at 340(b)(3). See supra para. 10 (for 

statutory text). 

163 Id. at 340(b)(4). See supra para. 10 (for 

statutory text). 

164 See NAB ex parte (dated Nov. 18, 2010) at 

4–5 (‘‘NAB Nov. 18 ex parte’’). 

165Broadcaster Associations Comments at 10–11; 

NAB Nov. 18 ex parte at 4–5 (citing SHVERA 

Significantly Viewed Report and Order, 20 FCC Rcd 

at 17305–17306, paras. 70–71). 

166The Satellite Carriers support changing the 

interpretation to comport with the literal language 

of 47 U.S.C. 340(b)(1) and (b)(3). DIRECTV 

Comments at 4 and Reply at 8; Dish Comments at 

2. 

167NAB Nov. 18 ex parte at 6. 

168See National Cable and Telecommunications 

Association v. Brand X Internet Services, 545 U.S. 

967, 980–981 (2005). 169Compare SHVERA Significantly Viewed 

Report and Order, 20 FCC Rcd at 17305, para. 70 

(‘‘Subscriber receipt of ‘local-into-local’ service is 

unambiguously required by the statute’’) with id. 

(‘‘Subscriber receipt of a specific local network 

affiliate * *ensp;* is the best reading of 47 U.S.C. 

340(b)(1) in the overall context of Section 340’’). 

170SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17309, para. 80. 

171For example, the statutory exceptions in 47 

U.S.C. 340(b)(3) and (4) would still apply where 

local-into-local service is not available to a 

subscriber for technical reasons (such as the spot 

beam does not cover the entire DMA or its reception 

is blocked for an individual subscriber by terrain or 

foliage) or if local-into-local service is not yet 

offered by the satellite carrier to a subscriber’s 

market. See STELA–Significantly Viewed NPRM, 

supra note 3, at para. 18. 

existing SV station while they make the 

technical adjustments necessary to carry 

a new HD format network stream.159 We 

will consider special circumstances on 

a case-by-case basis, considering when 

the satellite carrier was informed of the 

introduction of a multicast stream 

containing HD signals in relation to the 

existing HD carriage of an SV station 

affiliated with the same network, as well 

as the carrier’s compliance with its 

notice requirements with respect to 

carriage of SV signals.160

D. Statutory Exceptions to the 

Subscriber Eligibility Limitations 

45. While the STELA revises the 

subscriber eligibility limitations on 

receipt of SV service in Sections 

340(b)(1) and 340(b)(2), it does not 

amend the statutory exceptions to those 

limitations in Sections 340(b)(3) and 

340(b)(4).161 As noted above, the 

Section 340(b)(3) exception permits a 

satellite carrier to offer an SV network 

station to a subscriber when there is no 

local network affiliate present in the 

local market,162 and the Section 

340(b)(4) exception permits a satellite 

carrier to privately negotiate with the 

local network station to obtain a waiver 

of the eligibility restrictions.163 The 

Broadcaster Associations argue that if 

Section 340(b)(1) were construed simply 

to require receipt of some local-intolocal service, rather than local-into-local 

carriage of the local affiliate of the same 

network as the SV station, that reading 

would render superfluous the 

exceptions to Section 340(b)(1) 

contained in Sections 340(b)(3) and 

(b)(4).164 To support their argument, the 

Broadcaster Associations rely on the 

Commission’s 2005 decision that the 

‘‘best reading’’ of the SHVERA version of 

Section 340(b)(1) required receipt of the 

local affiliate of the same network 

because, under any other reading, ‘‘there 

would be no need’’ for the Section 

340(b)(3) or (b)(4) exceptions to Section 

340(b)(1).165 We reject the Broadcaster 

Associations’ argument and find that 

our 2005 interpretation was not 

necessary to give effect to the Section 

340(b)(3) and (b)(4) exceptions.166

Giving effect to the most natural reading 

of Section 340(b)(1)—which lacks the 

‘‘same network affiliate’’ language found 

elsewhere in Section 340 and simply 

requires receipt of some local-into-local 

service as a condition of retransmitting 

SV stations—does not render either 

Section 340(b)(3) or Section 340(b)(4) 

superfluous. For example, in a situation 

where a satellite carrier does not offer a 

local-into-local package and thus 

Section 340(b)(1) would otherwise 

prohibit retransmission of any SV 

network station, Section 340(b)(3) 

would allow retransmission of an SV 

station to subscribers where there is no 

local station affiliated with the same 

television network as the SV station in 

the market (e.g., an SV station that is an 

ABC affiliate could be retransmitted if 

there is no local ABC affiliate). 

Likewise, if a subscriber does not 

receive the local-into-local package, 

thereby failing to meet the requirements 

of Section 340(b)(1), retransmission of 

an SV station to that subscriber would 

nonetheless be permissible under 

Section (b)(4) if the local station 

affiliated with the same network as the 

SV station grants a waiver from the 

requirements of Section 340(b)(1) (e.g., 

the local ABC affiliate permits the 

satellite carrier to retransmit an SV 

station that is an ABC affiliate). These 

examples show that the exceptions of 

(b)(3) and (b)(4) have meaning even 

when we read (b)(1) simply to require 

receipt of some local-into-local service 

as a condition of retransmitting SV 

stations. Further, we reject the 

Broadcaster Associations’ argument that 

because Congress did not amend 

Sections 340(b)(3) and (b)(4) when it 

adopted the STELA in 2010, the 

Commission may not depart from its 

2005 interpretation of Section 

340(b)(1).167 This argument ignores that 

an agency is free within the limits of 

reasoned interpretation to change course 

so long as it adequately justifies the 

change.168 In 2005, the Commission 

construed what it found to be an 

ambiguous provision in Section 

340(b)(1) by adopting a reading that the 

Commission believed would best 

harmonize Section 340(b)(1) with 

Sections 340(b)(2), (b)(3) and (b)(4).169

Given the modifications to Sections 

340(b)(1) and (b)(2) enacted in STELA 

and Congress’s intent to ease carriage of 

SV stations, nothing in that legislation 

suggests that Congress intended to lock 

in the Commission’s 2005 interpretation 

of Section 340(b)(1) or restrict the 

Commission’s discretion to interpret the 

revised eligibility requirements. As 

explained above, we now conclude that 

our earlier reading was not in fact 

necessary to harmonize the various 

provisions of Section 340(b). Moreover, 

our reading of Section 340(b)(1) here 

better serves the STELA’s goals of 

improving service options for satellite 

subscribers by allowing SV carriage in 

additional situations. 

46. In the 2005 SHVERA Significantly 

Viewed Report and Order, the 

Commission interpreted the Section 

340(b)(3) exception to allow a satellite 

carrier to retransmit an SV station to a 

subscriber when there is no local 

affiliate of the same network present in 

that market, provided that the 

subscriber subscribes to and receives the 

carrier’s local-into-local service.170

Under our new interpretation of the 

subscriber eligibility limitations in 

Section 340(b)(1) and (2), the Section 

340(b)(3) exception permits a subscriber 

to receive an SV network affiliate, even 

if he or she does not subscribe to localinto-local service, if there is no affiliate 

of that network in his or her local 

market.171 In other words, Section 

340(b)(3) operates as an exception to 

any limitations on subscriber eligibility 

to receive a SV station if there is no 

affiliate of the same network as the SV 

station in the local market. Because it 

gives effect to the language of Section 

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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 72981 

172See 17 U.S.C. 122(a)(2)(B). 

173As a practical matter, we also agree with the 

Satellite Carriers that there would be no aggrieved 

party by this interpretation. DIRECTV Reply at 9 

(noting that ‘‘if the same-network broadcaster grants 

a waiver, it has determined that it would benefit 

from the delivery of the neighboring station* * *. 

If there is no such broadcaster, there is nobody to 

be harmed even in theory.’’). Our interpretation, 

however, is limited to the provisions of the 

Communications Act. We do not intend to render 

any opinion with respect to a party’s rights under 

the Copyright Act. See 17 U.S.C. 122(a)(2)(B). 

174See Appendix B final rule 47 CFR 76.54(g)(3) 

and (g)(4). We renumber Sections 76.54(g)(1) and 

(g)(2) as Sections 76.54(g)(3) and (g)(4), as well as 

make some other non-substantive changes to these 

rules. 

175See Broadcaster Associations Reply at 17 and 

23. 

176See Dish Comments (Petition) at 9. 

177 Id. at 9. Section 76.65 of our rules requires TV 

stations and satellite carriers ‘‘to negotiate in good 

faith the terms and conditions of retransmission 

consent.’’ 47 CFR 76.65(a). For example, Dish argues 

that it is not good faith if a local station conditions 

the grant of its retransmission consent in its local 

market on a concession from the satellite carrier 

that it will not carry an SV station affiliated with 

the same network in the local market. Id. 

178See Broadcaster Associations Reply at 17. 

179 Id. at 11. Dish seeks changes to Sections 

76.5(i) (definition of ‘‘significantly viewed’’) and 

76.54 (rules for demonstrating a station qualifies for 

‘‘significantly viewed’’ status). 47 CFR 76.5(i) and 

76.54. Several government representatives and 

citizens from southwest Colorado filed comments in 

support of Dish’s proposals and any other ways for 

viewers in the counties of La Plata and Montezuma, 

CO, to receive in-state programming (such as from 

the Denver, CO DMA). See Appendix. The counties 

of La Plata and Montezuma, CO are assigned to the 

Albuquerque-Santa Fe, NM DMA. 

180Section 304 of the STELA requires the 

Commission to produce a ‘‘Report on In-State 

Broadcast Programming,’’ due to Congress in August 

2011, to address the concerns, such as those voiced 

by the southwest Colorado group, that in some 

DMAs, some subscribers are not able to receive 

stations licensed to communities in their state via 

satellite. STELA sec. 304. 

181See Broadcaster Associations Reply at 24. 

182 17 U.S.C. 122(a)(2), as amended by STELA 

(which retained the SHVERA’s requirement in the 

statutory copyright license for SV stations 

(previously 17 U.S.C. 119(a)(3)) that the 

Commission use the same rules established for 

cable operators that were in effect as of April 15, 

1976. 

183See Appendix B final rule change to 47 CFR 

76.5(i). 

184SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17292–3, para. 32. 

185 Id. (citing to 1972 Cable R&O, 36 FCC 2d_at 

175–6, paras. 83–6). 

186See Appendix B final rule change to 47 CFR 

76.54(c). 

187SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17292, para. 31. (The digital 

NLSC is defined in 47 CFR 73.622(e).) 

340(b)(3), as well as the amended 

language of the statute’s subscriber 

eligibility limitations, and will serve the 

STELA’s overarching goal of fostering 

SV carriage while protecting localism, 

we conclude that our new interpretation 

represents the best reading of Section 

340(b)(3) in the context of the statute as 

a whole. 

47. In this respect, we modify the 

Commission’s 2005 interpretation of 

Section 340 and decline to adopt our 

tentative conclusion in the NPRM that 

the statutory exceptions should 

continue to apply as before. Section 

340(b)(3) allows a satellite subscriber to 

receive an SV station notwithstanding 

the restrictions imposed by Sections 

340(b)(1) and (b)(2) if there are no 

network stations affiliated with the 

same network as the SV station. Thus, 

even if the subscriber does not subscribe 

to local-into-local service, as would 

otherwise be required by Section 

340(b)(1), the subscriber can receive an 

SV station if there is no local station 

affiliated with the same network as that 

SV station. We recognize that the 

compulsory copyright license, now in 

17 U.S.C. 122(a)(2), limits SV service to 

markets in which local-into-local 

service is offered. However, we disagree 

that this requires us to read a 

requirement into the Communications 

Act that is not there. The compulsory 

copyright license in 17 U.S.C. 122(a)(2) 

permits waivers and automatically 

grants them if the in-market station 

affiliated with the same network as the 

out-of-market SV station does not 

respond to the satellite carrier’s waiver 

request.172 As a practical matter, if there 

is no affiliate in the market, then there 

is no affiliate who can respond to a 

waiver request or grant a waiver under 

Section 122(a)(2). Thus, the satellite 

carrier could ultimately offer the SV 

station because the waiver request 

would, inevitably, go unanswered.173

Accordingly, we interpret the Section 

340(b)(3) in accordance with its express 

language. We find it unnecessary to 

change the text of the rule that 

corresponds to the Section 340(b)(3) 

exception because the rule uses the 

statutory language and is consistent 

with the interpretation adopted here.174

E. Dish Petition for Further Rulemaking 

48. We decline to consider here Dish’s 

petition for further rulemaking (filed 

with its comments in this docket) as it 

is not within the scope of this 

proceeding.175 The Dish petition seeks 

two changes to the Commission’s 

rules.176 First, Dish asks the 

Commission to adopt a rule ‘‘that tying 

retransmission consent to restrictions on 

SV station carriage’’ violates the 

requirement that parties negotiate 

retransmission consent in good faith.177

Dish’s first proposal to change the 

retransmission consent rules could have 

been filed in our open proceeding on 

retransmission consent issues in MB 

Docket No. 10–71.178 Second, Dish 

seeks to amend the Commission’s rules 

for determining when a station qualifies 

for ‘‘significantly viewed’’ status in order 

to address the ‘‘orphan county’’ problem, 

which refers to the situation in which a 

county in one State is assigned to a 

neighboring State’s DMA and there are 

few, if any, stations assigned to that 

DMA which are licensed to 

communities located in the State in 

which the county is located.179 This 

proposal is better addressed in our 

proceeding to implement Section 304 of 

the STELA.180 We also note, as the 

Broadcaster Associations point out,181

that any changes to the Commission’s 

existing rules for determining 

significantly viewed status would be 

inconsistent with the statute’s 

requirement that we use the same rules 

for making significantly viewed 

determinations that were in effect for 

cable operators as of April 15, 1976.182

F. Housecleaning Rule Changes 

49. In this section, we make nonsubstantive changes to update our 

significantly viewed rules. In the NPRM, 

we sought comment on these rule 

changes. The Broadcaster Associations 

and Satellite Carriers support these 

changes. Accordingly, we adopt the 

NPRM’s proposed housecleaning rule 

changes. 

50. Section 76.5(i). We amend Section 

76.5(i) of the rules to replace its 

references to the term ‘‘non-cable’’ with 

the term ‘‘over-the-air.’’ 183 In the 2005 

SHVERA Significantly Viewed Report 

and Order, the Commission made this 

change to Section 76.54 to reflect the 

rule’s true meaning, that being to 

indicate over-the-air viewing.184 The 

Commission explained that, in the 1972 

Order, the concept of significant 

viewing was adopted to apply to overthe-air households, which at the time 

essentially meant households without 

cable (i.e., non-cable households).185

Thus, amending Section 76.5(i) to 

change ‘‘non-cable’’ to ‘‘over-the-air’’ 

reflects the true intent of the rule as it 

was in 1976, and is more consistent 

with the STELA’s intent to establish 

parity between cable and satellite. 

51. Section 76.54(c). We amend 

Section 76.54(c) of the rules to strike the 

outdated reference to the analog Grade 

B contour.186 In the 2004 SHVERA 

Significantly Viewed Report and Order, 

the Commission revised this rule to add 

the appropriate service contour relevant 

for a station’s digital signal—that being 

the noise limited service contour 

(‘‘NLSC’’).187 With the completion of the 

transition, we now can eliminate the 

reference to the Grade B contour. 

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72982 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

188 2006 DIRECTV–EchoStar Joint Petition, at 

supra note 6. 

189 2006 DIRECTV–EchoStar Joint Petition at 9. 

The petition does not challenge the Commission’s 

interpretation that the digital requirement in former 

Section 340(b)(2)(A) contains the ‘‘same network 

affiliate’’ requirement, essentially conceding the 

plain meaning of that provision. 

190See supra notes 66 and 68 (for former statutory 

text). 

191See supra Section III.B. (for discussion of new 

Section 340(b)(1)). 

192 2006 DIRECTV–EchoStar Joint Petition at 2. 

193See supra notes 66 and 68 (for former statutory 

text). 

194See supra Section III.C. (for discussion of new 

Section 340(b)(2)). See also supra note 40 (for 

former statutory text). 

195See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 

et. seq., has been amended by the Contract With 

America Advancement Act of 1996, Public Law 

104–121, 110 Stat. 847 (1996) (CWAAA). Title II of 

the CWAAA is the Small Business Regulatory 

Enforcement Fairness Act of 1996 (SBREFA). 

196STELA–Significantly Viewed NPRM, supra 

note 3, at app. B. 

197 Id. 

198See 5 U.S.C. 604. 

199The Satellite Television Extension and 

Localism Act of 2010 (STELA) sec. 203, Public Law 

111–175, 124 Stat 1218, 1245 (2010) (sec. 203 

codified as amended at 47 U.S.C. 340, other STELA 

amendments codified in scattered sections of 17 

and 47 U.S.C.). 

200 47 U.S.C. 340. 201 Id. at 340(d). 

G. Order on Reconsideration Dismisses 

Pending Petition as Moot 

52. In this Order on Reconsideration, 

we dismiss as moot the petition for 

reconsideration filed jointly by 

DIRECTV and Dish of the Commission’s 

SHVERA Significantly Viewed Report 

and Order.188 The petition seeks 

reconsideration of two decisions in the 

SHVERA Significantly Viewed Report 

and Order. 

53. First, the petition challenges the 

Commission’s interpretation that the 

analog ‘‘local service’’ requirement in 

former Section 340(b)(1) also contains 

the ‘‘same network affiliate’’ 

requirement.189 The STELA eliminates 

former Sections 340(b)(1) and 

(b)(2)(A).190 The R&O accompanying 

this Order on Reconsideration revises 

the satellite television significantly 

viewed rules to eliminate the analog 

local service requirement, as well as the 

digital ‘‘same network affiliate’’ 

requirement.191 Accordingly, this issue 

is moot. 

54. Second, the petition challenges 

the Commission’s interpretation of the 

digital service ‘‘equivalent bandwidth’’ 

requirement in former Section 

340(b)(2)(B).192 The STELA eliminates 

the ‘‘equivalent bandwidth’’ requirement 

in former Section 340(b)(2)(B) 193 and, in 

the R&O accompanying this Order, we 

revise the satellite television 

significantly viewed rules to eliminate 

this requirement.194 Accordingly, this 

issue is also moot and we dismiss the 

petition. 

IV. Conclusion 

55. In this R&O, we implement the 

STELA amendments to the SV 

provisions that apply to satellite 

carriers. We have been mindful that 

Congress amended the SV provisions to 

create a more workable framework to 

facilitate satellite carriage of SV stations 

and thereby provide satellite subscribers 

with greater choice of programming and 

to improve parity and competition 

between satellite and cable carriage of 

broadcast stations. We have also 

considered the importance of localism 

and balanced access to SV stations with 

the benefits of continued carriage of 

local stations. The rules adopted by this 

Order will advance these goals for the 

benefit of consumers and the 

competitive market for video 

distribution. 

V. Procedural Matters 

A. Final Regulatory Flexibility Act 

Analysis 

56. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’) 195 the Commission has 

prepared this present Final Regulatory 

Flexibility Analysis (‘‘FRFA’’) relating to 

this Report and Order. As required by 

the RFA, an Initial Regulatory 

Flexibility Analysis (‘‘IRFA’’) was 

incorporated in the Notice of Proposed 

Rulemaking (‘‘NPRM’’) to this 

proceeding.196 The Commission sought 

written public comment on the 

proposals in the NPRM, including 

comment on the IRFA.197 The 

Commission received no comments on 

the IRFA. This present FRFA conforms 

to the RFA.198

1. Need for, and Objectives of, the Final 

Rule Changes 

57. This document adopts changes to 

the Commission’s satellite television 

‘‘significantly viewed’’ rules to 

implement Section 203 of the Satellite 

Television Extension and Localism Act 

of 2010 (STELA).199 We initiated this 

proceeding on July 23, 2010 by issuing 

a Notice of Proposed Rulemaking 

(NPRM). With this R&O, we satisfy the 

STELA’s mandate that the Commission 

adopt final rules in this proceeding on 

or before November 24, 2010. 

58. Section 203 of the STELA amends 

Section 340 of the Communications Act, 

which gives satellite carriers the 

authority to offer out-of-market but 

‘‘significantly viewed’’ broadcast 

television stations as part of their local 

service to subscribers.200 The 

designation of ‘‘significantly viewed’’ 

status allows a station assigned to one 

DMA to be treated as a ‘‘local’’ station 

with respect to a particular cable or 

satellite community in another DMA, 

and, thus, enables cable or satellite 

carriage into said community in that 

other DMA. Whereas cable operators 

have had carriage rights for 

‘‘significantly viewed’’ (‘‘SV’’) stations 

since 1972, satellite carriers have had 

such authority only since the 2004 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004 (SHVERA) 

and may only retransmit SV network 

stations to ‘‘eligible’’ satellite 

subscribers. The satellite subscriber 

eligibility rules impose conditions on 

when satellite carriers may retransmit 

SV stations to subscribers. These 

conditions are intended to prevent 

satellite carriers from favoring an SV 

network station over the in-market 

(local) station affiliated with the same 

network. We note that the nature of SV 

carriage under Section 340 is permissive 

(and not mandatory), meaning the 

statute applies when a satellite carrier 

chooses to carry an SV station and has 

obtained retransmission consent from 

such SV station.201

59. Section 203 of the STELA changes 

the restrictions on subscriber eligibility 

to receive SV network stations from 

satellite carriers. To implement the 

STELA, we revise our satellite 

subscriber eligibility rules as follows: 

• We find that the local service 

requirement in amended Section 

340(b)(1) requires only that a satellite 

subscriber receive local-into-local 

satellite service as a precondition for 

that subscriber to receive SV stations. 

We find that the statute no longer 

requires a satellite subscriber to receive 

the specific local network station as a 

precondition for that subscriber to 

receive an SV station affiliated with the 

same network. 

• We find that amended Section 

340(b)(2) no longer requires that a 

satellite carrier offer ‘‘equivalent 

bandwidth’’ to the local and SV network 

station pair and instead imposes an ‘‘HD 

format’’ requirement. We find that the 

HD format requirement in amended 

Section 340(b)(2) requires that, in order 

to carry an SV station in high definition 

(HD) format, a satellite carrier must 

carry the local station affiliated with the 

same network in HD whenever such 

format is available from the local 

station. 

Æ The HD format requirement applies 

only where a satellite carrier retransmits 

to a subscriber the SV station in HD 

format. This requirement does not 

restrict a satellite carrier from 

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202 5 U.S.C. 603(b)(3). 

203 5 U.S.C. 601(6). 

204 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in 15 U.S.C. 

632). Pursuant to 5 U.S.C. 601(3), the statutory 

definition of a small business applies ‘‘unless an 

agency, after consultation with the Office of 

Advocacy of the Small Business Administration 

and after opportunity for public comment, 

establishes one or more definitions of such term 

which are appropriate to the activities of the agency 

and publishes such definition(s) in the Federal 

Register.’’ 5 U.S.C. 601(3). 

205 15 U.S.C. 632. Application of the statutory 

criteria of dominance in its field of operation and 

independence are sometimes difficult to apply in 

the context of broadcast television. Accordingly, the 

Commission’s statistical account of television 

stations may be over-inclusive. 

206The Communications Act defines the term 

‘‘satellite carrier’’ by reference to the definition in 

the copyright laws in title 17. See 47 U.S.C. 

340(i)(1) and 338(k)(3); 17 U.S.C. 119(d)(6). Part 100 

of the Commission’s rules was eliminated in 2002 

and now both FSS and DBS satellite facilities are 

licensed under Part 25 of the rules. Policies and 

Rules for the Direct Broadcast Satellite Service, 67 

FR 51110, August 7, 2002; 47 CFR 25.148. 

207See, e.g., DIRECTV 5 Blanket Earth Station 

License, DA 04–2526, August 12, 2004. 

208SHVERA Significantly Viewed Report and 

Order, 20 FCC Rcd at 17302–3, paras. 59–60. 

209See 13 CFR 121.201, NAICS code 517110 

(2007). The 2007 North American Industry 

Classification System (‘‘NAICS’’) defines the 

category of ‘‘Wired Telecommunications Carriers’’ as 

follows: ‘‘This industry comprises establishments 

primarily engaged in operating and/or providing 

access to transmission facilities and infrastructure 

that they own and/or lease for the transmission of 

voice, data, text, sound, and video using wired 

telecommunications networks. Transmission 

facilities may be based on a single technology or a 

combination of technologies. Establishments in this 

industry use the wired telecommunications 

network facilities that they operate to provide a 

variety of services, such as wired telephony 

services, including VoIP services; wired (cable) 

audio and video programming distribution; and 

wired broadband Internet services. By exception, 

establishments providing satellite television 

distribution services using facilities and 

infrastructure that they operate are included in this 

industry.’’ (Emphasis added to text relevant to 

satellite services.) U.S. Census Bureau, 2007 NAICS 

Definitions, ‘‘517110 Wired Telecommunications 

Carriers’’; http://www.census.gov/naics/2007/def/ 

ND517110.HTM. 

210 13 CFR 121.201, NAICS code 517110 (2007). 

211 13 CFR 121.201, NAICS code 517510 (2002). 

212See Thirteenth Annual Cable/MVPD 

Competition Report, 74 FR 11102, March 16, 2009. 

We note that, in 2007, EchoStar purchased the 

licenses of Dominion Video Satellite, Inc. 

(‘‘Dominion’’) (marketed as Sky Angel). See Public 

Notice, ‘‘Policy Branch Information; Actions 

Taken,’’ Report No. SAT–00474, 22 FCC Rcd 17776 

(IB 2007). 

213As of June 2006, DIRECTV is the largest DBS 

operator and the second largest MVPD, serving an 

estimated 16.20% of MVPD subscribers nationwide. 

See id. at 687, Table B–3. 

214As of June 2006, DISH Network is the second 

largest DBS operator and the third largest MVPD, 

serving an estimated 13.01% of MVPD subscribers 

nationwide. Id. As of June 2006, Dominion served 

fewer than 500,000 subscribers, which may now be 

receiving ‘‘Sky Angel’’ service from DISH Network. 

See id. at 581, para. 76. 

retransmitting to a subscriber the SV 

station in standard definition (SD) 

format. 

Æ For purposes of the HD format 

requirement, the corresponding local 

(in-market) station will be considered 

‘‘available’’ to the satellite carrier when 

the station: (1) Elects mandatory 

carriage or grants retransmission 

consent; (2) provides a good quality 

signal to the satellite carrier as required 

by Section 76.66(g) of the rules; and (3) 

is otherwise in compliance with the 

‘‘good faith negotiation’’ and carriage 

provisions set forth in Sections 76.65 

and 76.66 of the rules. However, the HD 

signal of the corresponding local station 

will be deemed ‘‘available’’ despite 

failure to reach agreement on the terms 

of retransmission if the satellite carrier 

is not in compliance with Section 76.65. 

Æ The HD format requirement requires 

satellite carriage of a secondary HD 

stream of a local station’s multicast 

signal if that stream is affiliated with the 

same network as an SV station 

retransmitted in HD to satellite 

subscribers in the local market. 

• We modify the Commission’s 2005 

interpretation of the Section 340(b)(3) 

exception, which is unchanged by the 

STELA, and find that, in the context of 

the newly revised statute, this exception 

permits a satellite carrier to offer an SV 

network station to a subscriber when 

there is no local affiliate of the same 

network present in the local market, 

even if the subscriber does not receive 

local-into-local service. 

2. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

60. There were no comments filed 

that specifically addressed the rules and 

policies proposed in the IRFA. 

3. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

61. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules, if adopted.202 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 203 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.204 A 

small business concern is one which: (1) 

Is independently owned and operated; 

(2) is not dominant in its field of 

operation; and (3) satisfies any 

additional criteria established by the 

Small Business Administration 

(‘‘SBA’’).205 Below, we provide a 

description of such small entities, as 

well as an estimate of the number of 

such small entities, where feasible. 

62. Satellite Carriers. The term 

‘‘satellite carrier’’ means an entity that 

uses the facilities of a satellite or 

satellite service licensed under Part 25 

of the Commission’s rules to operate in 

the Direct Broadcast Satellite (DBS) 

service or Fixed-Satellite Service (FSS) 

frequencies.206 As a general practice 

(not mandated by any regulation), DBS 

licensees usually own and operate their 

own satellite facilities as well as 

package the programming they offer to 

their subscribers. In contrast, satellite 

carriers using FSS facilities often lease 

capacity from another entity that is 

licensed to operate the satellite used to 

provide service to subscribers. These 

entities package their own programming 

and may or may not be Commission 

licensees themselves. In addition, a 

third situation may include an entity 

using a non-U.S. licensed satellite to 

provide programming to subscribers in 

the United States pursuant to a blanket 

earth station license.207 In the SHVERA 

Significantly Viewed Report and Order, 

the Commission concluded that the 

definition of ‘‘satellite carrier’’ includes 

all three of these types of entities.208

63. Direct Broadcast Satellite (‘‘DBS’’) 

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic ‘‘dish’’ 

antenna at the subscriber’s location. 

DBS, by exception, is now included in 

the SBA’s broad economic census 

category, ‘‘Wired Telecommunications 

Carriers,’’ 209 which was developed for 

small wireline firms. Under this 

category, the SBA deems a wireline 

business to be small if it has 1,500 or 

fewer employees.210 However, the data 

we have available as a basis for 

estimating the number of such small 

entities were gathered under a 

superseded SBA small business size 

standard formerly titled ‘‘Cable and 

Other Program Distribution.’’ The 

definition of Cable and Other Program 

Distribution provided that a small entity 

was one with $12.5 million or less in 

annual receipts.211 Currently, only two 

entities provide DBS service, which 

requires a great investment of capital for 

operation: DIRECTV and EchoStar 

Communications Corporation 

(‘‘EchoStar’’) (marketed as the DISH 

Network).212 Each currently offer 

subscription services. DIRECTV 213 and 

EchoStar 214 each report annual 

revenues that are in excess of the 

threshold for a small business. Because 

DBS service requires significant capital, 

we believe it is unlikely that a small 

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72984 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

215See 47 CFR 2.1(c). 

216See 13 CFR 121.201, NAICS code 517110 

(2007). 

217 13 CFR 121.201, NAICS code 517110 (2007). 

218 13 CFR 121.201, NAICS code 517510 (2002). 

219 See 13 CFR 121.201, NAICS Code 515120 

(2007). 

220 Id. This category description continues, 

‘‘These establishments operate television 

broadcasting studios and facilities for the 

programming and transmission of programs to the 

public. These establishments also produce or 

transmit visual programming to affiliated broadcast 

television stations, which in turn broadcast the 

programs to the public on a predetermined 

schedule. Programming may originate in their own 

studios, from an affiliated network, or from external 

sources.’’ Separate census categories pertain to 

businesses primarily engaged in producing 

programming. See Motion Picture and Video 

Production, NAICS code 512110; Motion Picture 

and Video Distribution, NAICS Code 512120; 

Teleproduction and Other Post-Production 

Services, NAICS Code 512191; and Other Motion 

Picture and Video Industries, NAICS Code 512199. 

221See News Release, ‘‘Broadcast Station Totals as 

of December 31, 2009,’’ 2010 WL 676084 (F.C.C.) 

(dated Feb. 26, 2010) (‘‘Broadcast Station Totals’’); 

also available at http://hraunfoss.fcc.gov/ 

edocs_public/attachmatch/DOC-296538A1.pdf. 

222We recognize that this total differs slightly 

from that contained in Broadcast Station Totals, 

supra, note 33; however, we are using BIA’s 

estimate for purposes of this revenue comparison. 

223See Broadcast Station Totals, supra, note 33. 

224 ‘‘[Business concerns] are affiliates of each 

other when one concern controls or has the power 

to control the other or a third party or parties 

controls or has to power to control both.’’ 13 CFR 

121.103(a)(1). 

225See 13 CFR 121.201, NAICS code 517110 

(2007). 226Although SMATV systems often use DBS 

video programming as part of their service package 

to subscribers, they are not included in Section 

340’s definition of ‘‘satellite carrier.’’ See 47 U.S.C. 

340(i)(1) and 338(k)(3); 17 U.S.C. 119(d)(6). 227 13 CFR 121.201, NAICS code 517110 (2007). 

228 13 CFR 121.201, NAICS code 517510 (2002). 

229See Eleventh Annual Cable/MVPD 

Competition Report, FCC 05–13 (rel. Feb. 4, 2005). 

230See Thirteenth Annual Cable/MVPD 

Competition Report. 

231 Id. 

entity as defined by the SBA would 

have the financial wherewithal to 

become a DBS service provider. We seek 

comments that have data on the annual 

revenues and number of employees of 

DBS service providers. 

64. Fixed-Satellite Service (‘‘FSS’’). 

The FSS is a radiocommunication 

service between earth stations at a 

specified fixed point or between any 

fixed point within specified areas and 

one or more satellites.215 The FSS, 

which utilizes many earth stations that 

communicate with one or more space 

stations, may be used to provide 

subscription video service. FSS, by 

exception, is now included in the SBA’s 

broad economic census category, ‘‘Wired 

Telecommunications Carriers,’’ 216

which was developed for small wireline 

firms. Under this category, the SBA 

deems a wireline business to be small if 

it has 1,500 or fewer employees.217

However, the data we have available as 

a basis for estimating the number of 

such small entities were gathered under 

a superseded SBA small business size 

standard formerly titled ‘‘Cable and 

Other Program Distribution.’’ The 

definition of Cable and Other Program 

Distribution provided that a small entity 

was one with $12.5 million or less in 

annual receipts.218 Although a number 

of entities are licensed in the FSS, not 

all such licensees use FSS frequencies 

to provide subscription services. The 

two DBS licensees (EchoStar and 

DIRECTV) have indicated interest in 

using FSS frequencies to broadcast 

signals to subscribers. It is possible that 

other entities could similarly use FSS 

frequencies, although we are not aware 

of any entities that might do so. 

65. Television Broadcasting. The SBA 

defines a television broadcasting station 

as a small business if such station has 

no more than $14.0 million in annual 

receipts.219 Business concerns included 

in this industry are those ‘‘primarily 

engaged in broadcasting images together 

with sound.’’ 220 The Commission has 

estimated the number of licensed 

commercial television stations to be 

1,392.221 According to Commission staff 

review of the BIA/Kelsey, MAPro 

Television Database (‘‘BIA’’) as of April 

7, 2010, about 1,015 of an estimated 

1,380 commercial television stations 222

(or about 74 percent) have revenues of 

$14 million or less and, thus, qualify as 

small entities under the SBA definition. 

The Commission has estimated the 

number of licensed noncommercial 

educational (NCE) television stations to 

be 390.223 We note, however, that, in 

assessing whether a business concern 

qualifies as small under the above 

definition, business (control) 

affiliations 224 must be included. Our 

estimate, therefore, likely overstates the 

number of small entities that might be 

affected by our action, because the 

revenue figure on which it is based does 

not include or aggregate revenues from 

affiliated companies. The Commission 

does not compile and otherwise does 

not have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

66. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. Accordingly, the estimate 

of small businesses to which rules may 

apply do not exclude any television 

station from the definition of a small 

business on this basis and are therefore 

over-inclusive to that extent. Also, as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

67. Satellite Master Antenna 

Television (SMATV) Systems, also 

known as Private Cable Operators 

(PCOs). SMATV systems or PCOs are 

video distribution facilities that use 

closed transmission paths without using 

any public right-of-way. They acquire 

video programming and distribute it via 

terrestrial wiring in urban and suburban 

multiple dwelling units such as 

apartments and condominiums, and 

commercial multiple tenant units such 

as hotels and office buildings. SMATV 

systems or PCOs are now included in 

the SBA’s broad economic census 

category, ‘‘Wired Telecommunications 

Carriers,’’ 225 which was developed for 

small wireline firms.226 Under this 

category, the SBA deems a wireline 

business to be small if it has 1,500 or 

fewer employees.227 However, the data 

we have available as a basis for 

estimating the number of such small 

entities were gathered under a 

superseded SBA small business size 

standard formerly titled ‘‘Cable and 

Other Program Distribution.’’ The 

definition of Cable and Other Program 

Distribution provided that a small entity 

was one with $12.5 million or less in 

annual receipts.228 As of June 2004, 

there were approximately 135 members 

in the Independent Multi-Family 

Communications Council (IMCC), the 

trade association that represents 

PCOs.229 The IMCC indicates that, as of 

June 2006, PCOs serve about 1 to 2 

percent of the multichannel video 

programming distributors (MVPD) 

marketplace.230 Individual PCOs often 

serve approximately 3,000–4,000 

subscribers, but the larger operations 

serve as many as 15,000–55,000 

subscribers. In total, as of June 2006, 

PCOs serve approximately 900,000 

subscribers.231 Because these operators 

are not rate regulated, they are not 

required to file financial data with the 

Commission. Furthermore, we are not 

aware of any privately published 

financial information regarding these 

operators. Based on the estimated 

number of operators and the estimated 

number of units served by the largest 10 

PCOs, we believe that a substantial 

number of PCOs may have been 

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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 72985 

232 13 CFR 121.201, NAICS code 517510 (2002). 

233 5 U.S.C. 603(c)(1) through (c)(4). 

234See H.R. 3570 Report at 4–5; H.R. 2994 Report 

at 16. 

235Our proposed rules are based on, and largely 

track, the amended language of the statute. 

236For example, small broadcast stations will 

benefit from the opportunity to be delivered as an 

SV station to more viewers. 

237See 47 U.S.C. 340(d). 

238See 5 U.S.C. 605(b). 

239See supra section VIII.A.3. 

240 See 5 U.S.C. 801(a)(1)(A). 

241See id. 604(b). 

242The Paperwork Reduction Act of 1995 

(‘‘PRA’’), Public Law 104–13, 109 Stat 163 (1995) 

(codified in Chapter 35 of title 44 U.S.C.). 

243The Commission does not modify the existing 

information collections that relate to the 

Commission’s significantly viewed rules and 

procedures. See OMB Control Nos. 3060–0311 (47 

CFR 76.54), 3060–0960 (47 CFR 76.122, 76.123, 

76.124, 76.127), and 3060–0888 (47 CFR 76.7). The 

Commission will maintain these collections. 

244The Small Business Paperwork Relief Act of 

2002 (‘‘SBPRA’’), Public Law 107–198, 116 Stat 729 

(2002) (codified in Chapter 35 of title 44 U.S.C.); see 

44 U.S.C. 3506(c)(4). 

245See 5 U.S.C. 801(a)(1)(A). 

categorized as small entities under the 

now superseded SBA small business 

size standard for Cable and Other 

Program Distribution.232

4. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

68. The final rules do not impose any 

new reporting, recordkeeping or other 

compliance requirements. 

5. Steps Taken to Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

69. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.233

70. In the NPRM, we invited comment 

on whether there were any alternatives 

we should consider to our proposed 

implementation of the statutory 

amendments to Section 340(b) that 

would minimize any adverse impact on 

small businesses, but which are 

consistent with the statute and its goals 

and also maintain the benefits of our 

proposals. We explained that STELA’s 

amendments to Section 340(b) intend to 

facilitate satellite carriage of SV stations, 

with the expectation that this will 

increase satellite TV service to 

consumers and promote regulatory 

parity between cable and satellite 

service.234 We tentatively concluded 

that our proposed rule changes 

implement the statute in the way that is 

most consistent with the plain language 

of the statute.235 We also noted that the 

plain language of the statute did not 

appear to give us discretion to treat 

small entities differently from larger 

ones, but sought comment on this 

question. We received no comments to 

the IRFA in the NPRM. We, therefore, 

affirm our conclusions in the NPRM’s 

IRFA. 

71. We find in the R&O that Congress 

amended the SV provisions to create a 

more workable framework to facilitate 

satellite carriage of SV stations and, 

thus, improve parity and competition 

between satellite and cable. Satellite 

carriers, and the SV stations which they 

would carry,236 will certainly benefit 

from the opportunity for increased TV 

service afforded by the STELA’s changes 

to the SV program. Furthermore, 

consumers of satellite TV service will 

benefit from greater choice of 

programming. We find that any adverse 

impact to these entities is unlikely 

because SV carriage under Section 340 

is permissive (and not mandatory); that 

is, the satellite carrier chooses to carry 

an SV station and the SV station must 

grant its consent to be carried.237

72. While we have included this 

complete FRFA, we note that we could 

have certified that this rulemaking will 

not have a ‘‘significant economic impact 

on a substantial number of small 

entities.’’ 238 The rules impose 

compliance requirements only on the 

two DBS service providers, neither of 

which qualify as a small entity.239

6. Report to Congress 

73. The Commission will send a copy 

of this R&O, including this FRFA, in a 

report to be sent to Congress pursuant 

to the Congressional Review Act.240 In 

addition, the Commission will send a 

copy of the R&O, including the FRFA, 

to the Chief Counsel for Advocacy of the 

SBA. A copy of the R&O and FRFA (or 

summaries thereof) will also be 

published in the Federal Register.241

B. Final Paperwork Reduction Act of 

1995 Analysis 

74. This Report and Order has been 

analyzed with respect to the Paperwork 

Reduction Act of 1995 (‘‘PRA’’),242 and 

does not contain any new or modified 

information collection requirements.243

In addition, therefore, it does not 

contain any new or modified 

‘‘information collection burden for small 

business concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 

2002.244

C. Congressional Review Act 

75. The Commission will send a copy 

of this Report and Order in a report to 

be sent to Congress and the Government 

Accountability Office, pursuant to the 

Congressional Review Act.245

D. Additional Information 

76. For more information on this 

Report and Order, please contact Evan 

Baranoff, Evan.Baranoff@fcc.gov, of the 

Media Bureau, Policy Division, (202) 

418–2120. 

VI. Ordering Clauses 

77. Accordingly, it is ordered that 

pursuant to Section 203 of the Satellite 

Television Extension and Localism Act 

of 2010 (STELA), and Sections 1, 4(i) 

and (j), and 340 of the Communications 

Act of 1934, as amended, 47 U.S.C. 151, 

154(i) and (j), and 340, this Report and 

Order IS adopted, and the Commission’s 

rules are hereby amended as set forth in 

the final rule changes appendix 

(Appendix B) attached to this Report 

and Order. 

78. It is also ordered that, pursuant to 

the authority contained in Sections 

203(b) and 307 of the STELA, STELA 

secs. 203(b) and 307, the rules adopted 

in this Report and Order are adopted 

and will be effective 30 days after date 

of publication in the Federal Register. 

79. It is also ordered that, pursuant to 

Sections 1, 4(i) and (j), and 340 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i) and (j), 

and 340; and Section 1.429 of our rules, 

47 CFR 1.429, the petition for 

reconsideration in MB Docket No. 05–49 

which was filed jointly by DIRECTV and 

Dish (formerly Echostar) is dismissed as 

moot. 

80. It is further ordered that, pursuant 

to the Congressional Review Act, 5 

U.S.C. 801(a)(1)(A), the Commission will 

send a copy of this Report and Order in 

a report to Congress and the General 

Accounting Office. 

81. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, will send a copy of 

this Report and Order, including the 

Final Regulatory Flexibility Analysis, to 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

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72986 Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations 

List of Subjects in 47 CFR Part 76 

Satellite television. 

Marlene H. Dortch, 

Secretary, Federal Communications 

Commission. 

Final Rules 

■ For the reasons discussed in the 

preamble, the FCC amends 47 CFR part 

76 as follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 1. The authority citation for part 76 

continues to read as follows: 

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

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

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

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

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

571, 572, 573. 

■ 2. Amend § 76.5(i) by removing the 

words ‘‘other than cable television’’ and 

adding in their place the words ‘‘overthe-air’’ and in the Note following 

paragraph (i) remove the word 

‘‘noncable’’ each place it appears and 

add in its place the words ‘‘over-the-air’’. 

■ 3. Amend § 76.54 by revising the first 

sentence in paragraph (c), revising 

paragraph (g), removing and reserving 

paragraph (h), and revising paragraph 

(i), to read as follows: 

§ 76.54 Significantly viewed signals; 

method to be followed for special 

showings. 

* * * * * 

(c) Notice of a survey to be made 

pursuant to paragraph (b) of this section 

shall be served on all licensees or 

permittees of television broadcast 

stations within whose predicted noise 

limited service contour, as defined in 

§ 73.622(e) of this chapter, the cable or 

satellite community or communities are 

located, in whole or in part, and on all 

other system community units, 

franchisees, and franchise applicants in 

the cable community or communities at 

least (30) days prior to the initial survey 

period. * * * 

* * * * * 

(g) Limitations on satellite subscriber 

eligibility. A satellite carrier may 

retransmit a significantly viewed 

network station to a subscriber, 

provided the conditions in paragraphs 

(g)(1) and (g)(2) of this section are 

satisfied or one of the two exceptions to 

these conditions provided in paragraphs 

(g)(3) and (g)(4) of this section apply. 

(1) Local service requirement. A 

satellite carrier may retransmit to a 

subscriber the signal of a significantly 

viewed station if: 

(i) Such subscriber receives local-intolocal service pursuant to § 76.66; and 

(ii) Such satellite carrier is in 

compliance with § 76.65 with respect to 

the stations located in the local market 

into which the significantly viewed 

station will be retransmitted. 

(2) HD format requirement. Subject to 

the conditions in paragraphs (g)(2)(i) 

through (iv) of this section, a satellite 

carrier may retransmit to a subscriber in 

high definition (HD) format the signal of 

a significantly viewed station only if 

such carrier also retransmits in HD 

format the signal of a station located in 

the local market of such subscriber and 

affiliated with the same network 

whenever such format is available from 

such station, including when the HD 

signal is broadcast on a multicast 

stream. 

(i) The requirement in paragraph 

(g)(2) of this section applies only where 

a satellite carrier retransmits to a 

subscriber the significantly viewed 

station in HD format, and does not 

restrict a satellite carrier from 

retransmitting to a subscriber a 

significantly viewed station in standard 

definition (SD) format. 

(ii) For purposes of paragraph (g)(2) of 

this section, the term ‘‘HD format’’ refers 

to a picture quality resolution of 720p, 

1080i, or higher. 

(iii) For purposes of paragraph (g)(2) 

of this section, the local station’s HD 

signal will be considered ‘‘available’’ to 

the satellite carrier when the station: 

(A) Elects mandatory carriage or 

grants retransmission consent; 

(B) Provides a good quality HD signal 

to the satellite carrier’s local receive 

facility (LRF); and 

(C) Complies with the requirements of 

§§ 76.65 and 76.66. 

(iv) Notwithstanding the provisions of 

paragraph (g)(2)(iii) of this section, if the 

local station is willing to grant 

retransmission consent and make its HD 

signal available to the satellite carrier, 

but the satellite carrier does not 

negotiate with the local station in good 

faith, as required by § 76.65, then the 

local station’s HD signal will be deemed 

‘‘available’’ for purposes of paragraph 

(g)(2) of this section. 

(3) Exception if no network affiliate in 

local market. The limitations in 

paragraphs (g)(1) and (g)(2) of this 

section will not prohibit a satellite 

carrier from retransmitting a 

significantly viewed network station to 

a subscriber located in a local market in 

which there are no network stations 

affiliated with the same television 

network as the significantly viewed 

station. 

(4) Exception if waiver granted by 

local station. The limitations in 

paragraphs (g)(1) and (g)(2) of this 

section will not apply if, and to the 

extent that, the local network station 

affiliated with the same television 

network as the significantly viewed 

station has granted a waiver in 

accordance with 47 U.S.C. 340(b)(4). 

* * * * * 

(i) For purposes of paragraph (g) of 

this section, television network and 

network station are as defined in 47 

U.S.C. 339(d). 

* * * * * 

Note: The following Appendix will not be 

included in the Code of Federal Regulations. 

Appendix: List of Commenters 

Comments: 

1. Atkinson, Ronald; resident of Durango, 

Colorado 

2. Brown, Marilyn T.; League of Women 

Voters of La Plata County 

3. Bruen, Elizabeth; resident of Durango, 

Colorado 

4. Calahan, Michael; Citizens For Colorado 

TV Access 

5. City of Durango; City Manager 

6. DIRECTV, Inc. (‘‘DIRECTV’’) 

7. DISH Network L.L.C. (‘‘Dish’’) 

8. Dulson, Laurie; resident of southwest 

Colorado 

9. Flatten, Ann; resident of La Plata County, 

Colorado 

10. La Plata County, Colorado; Board of 

County Commissioners 

11. National Association of Broadcasters 

(‘‘NAB’’) and the ABC, CBS, FBC (Fox), 

and NBC Television Affiliates 

Associations (joint comments) (jointly, 

the ‘‘Broadcaster Associations’’) 

12. Necchik, Elayne and John; residents of 

Durango, Colorado 

13. Roberts, Ellen; Colorado State 

Representative, House District 59 

14. Salazar, John T.; U.S. House 

Representative, 3rd District of Colorado 

15. Schafer, Marie L.; resident of southwest 

Colorado 

16. Staby, Paul and Carolyn; residents of 

Durango, Colorado 

17. Whitehead, Bruce T.; Colorado State 

Senator, Senate District 6 

Reply Comments: 

1. Broadcaster Associations 

2. DIRECTV 

3. Dish 

[FR Doc. 2010–29968 Filed 11–23–10; 4:15 pm] 

BILLING CODE 6712–01–P 

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