40564 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

nonattainment area. Due to technical

flaws EPA published a document in the

Federal Register announcing these

budgets inadequate on December 16,

1999 (64 FR 70332 and 64 FR 70348).

However, on February 15, 2000, EPA

received the document entitled

‘‘Addenda to the Ozone Attainment

Demonstrations for the Southwest

Connecticut Severe Ozone

Nonattainment Area and Greater

Connecticut Serious Ozone

Nonattainment area.’’ This document

included the revised transportation

conformity budgets for 2007 shown

below in Table 3:

TABLE 3.—2007 BUDGETS

Nonattainment area VOC

(tpsd)

NOX

(tpsd)

Severe area .............. 9.7 23.7

Serious area ............. 30.0 79.6

Since these budgets are more

restrictive, cover a time frame longer

than the post-1996 ROP plans, and are

based on the attainment plan, the 2007

budgets take precedence over the 1999

budgets. Furthermore, EPA New

England published a document in the

Federal Register announcing that these

budgets are adequate for use in

transportation conformity

determinations on June 16, 2000 (65 FR

37778). Therefore, the 2007 budgets

supersede the 1999 budgets. As a result,

all new and revised State Transportation

Improvement Programs that require a

conformity determination must conform

to these 2007 budgets, not the 1999

budgets contained in the post-1996 rate

of progress plan.

EPA’s review of this material

indicates that Connecticut has met the

ROP requirements of the Act, and

therefore EPA is proposing to approve

the Connecticut post-1996 ROP plans

that were submitted as revisions to the

State’s SIP on December 31, 1997 and

January 7, 1998. EPA also proposes

approval of minor revisions to the

State’s 1990 base year inventory. EPA is

soliciting public comments on the

issues discussed in this document or on

other relevant matters. These comments

will be considered before taking final

action. Interested parties may

participate in the Federal rulemaking

procedure by submitting written

comments to the EPA Regional office

listed in the ADDRESSES section of this

document.

II. Proposed Action

EPA is proposing to approve the rateof-progress SIP revision and minor

revisions to the 1990 base year

inventory submitted by Connecticut on

December 31, 1997 and January 7, 1998

as a revision to the SIP.

EPA is soliciting public comments on

the issues discussed in this proposal or

on other relevant matters. These

comments will be considered before

EPA takes final action. Interested parties

may participate in the Federal

rulemaking procedure by submitting

written comments to the EPA Regional

office listed in the ADDRESSES section of

this action.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

implementation plan. Each request for

revision to the State implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. This

action merely approves state law as

meeting federal requirements and

imposes no additional requirements

beyond those imposed by state law.

Accordingly, the Administrator certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Because this rule approves preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (Public Law 104–4).

For the same reason, this rule also does

not significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This rule will

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’ issued under the

executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone Environmental

protection.

Authority: 42 U.S.C. 7401 et seq.

Dated: June 20, 2000.

Mindy S. Lubber,

Regional Administrator, EPA, New England.

[FR Doc. 00–16629 Filed 6–29–00; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 00–96; FCC 00–195]

Implementation of the Satellite Home

Viewer Improvement Act of 1999:

Broadcast Signal Carriage Issues

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40565

SUMMARY: This document proposes to

implement certain aspects of the

Satellite Home Viewer Improvement Act

of 1999, which was enacted on

November 29, 1999. Among other

things, the act authorizes satellite

carriers to add more local and national

broadcast programming to their

offerings and seeks to place satellite

carriers on an equal footing with cable

operators with respect to availability of

broadcast programming. This document

discusses specifically the

implementation of regulations regarding

the carriage of local television stations

in markets where satellite carriers offer

local television service to its

subscribers.

DATES: Comments due July 7, 2000;

reply comments are due July 28, 2000.

Written comments by the public on the

proposed information collections are

due July 31, 2000. Written comments

must be submitted by the Office of

Management and Budget (OMB) on the

proposed information collection(s) on or

before August 29, 2000.

ADDRESSES: Federal Communications

Commission, 445 12th Street, SW.,

Washington, DC 20554. In addition to

filing comments with the Secretary, a

copy of any comments on the

information collections contained

herein should be submitted to Judy

Boley, Federal Communications

Commission, 445 12th Street, SW.,

Washington, DC 20554, or via the

Internet to jboley@fcc.gov, and to

Edward Springer, OMB Desk Officer,

10236 NEOB, 725—17th Street, NW.,

Washington, DC 20503 or via the

Internet to

Edward.Springer@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Ben

Golant at (202) 418–7111 or via internet

at bgolant@fcc.gov. For additional

information concerning the information

collection(s) contained in this

document, contact Judy Boley at 202–

418–0214, or via the Internet at

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rulemaking (‘‘NPRM’’), FCC

00–195, adopted May 31, 2000; released

June 9, 2000. The full text of the

Commission’s NPRM is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room CY–A257) at its

headquarters, 445 12th Street, SW.,

Washington, DC 20554, or may be

purchased from the Commission’s copy

contractor, International Transcription

Service, Inc., (202) 857–3800, 1231 20th

Street, NW., Washington, DC 20036, or

may be reviewed via internet at http://

www.fcc.gov/csb/

Synopsis of the Notice of Proposed

Rulemaking

I. Introduction

1. Section 338(a)(1) of the

Communications Act, adopted as part of

the Satellite Home Viewer Improvement

Act of 1999 (‘‘SHVIA’’), provides that

after December 31, 2001: each satellite

carrier providing [television broadcast

signals under the compulsory copyright

licensing system] to subscribers located

within the local market of a television

broadcast station of a primary

transmission made by that station shall

carry upon request the signals of all

television broadcast stations located

within that local market, subject to

section 325(b) [retransmission consent

requirement].

2. In this NPRM, we seek comment on

the appropriate rules to implement this

requirement. The SHVIA authorizes

satellite carriers to offer more local and

national broadcast programming to their

viewers and makes that programming

available to subscribers who previously

have been prohibited from receiving

broadcast programming via satellite

under the compulsory licensing

provisions of the copyright law. The

SHVIA generally seeks to place satellite

carriers on an equal footing with cable

operators regarding the provisions of

local broadcast programming, and thus

give consumers more competitive

options in selecting a multichannel

video program distributor (‘‘MVPD’’). It

is the clear intent of both Congress and

the Commission to provide satellite

subscribers with local television service

in as many markets as possible.

3. Among other things, this new

legislation requires satellite carriers, by

January 1, 2002, to carry upon request

all local broadcast stations’ signals in

local markets in which the satellite

carriers carry at least one broadcast

station signal licensed to the subject

television market pursuant to section

122 of title 17, United States Code. The

SHVIA conference report added the

cross-reference to section 122 to the

House provision to indicate the

relationship between the benefits of the

statutory license and the carriage

requirements imposed by this Act. Until

January 1, 2002, satellite carriers are

granted a royalty-free copyright license

to retransmit broadcast signals on a

station-by-station basis, subject to

obtaining a broadcaster’s retransmission

consent. This transition period is

intended to provide the satellite

industry with time to begin providing

local signals into local markets—‘‘localinto-local’’ satellite service. The

applicable statutory provisions, noted in

greater detail below, are found in

section 1008 of the SHVIA and codified

at section 338 of the Communications

Act of 1934, as amended (the

‘‘Communications Act’’ or ‘‘Act’’).

II. Background

4. In 1988, Congress passed the

Satellite Home Viewer Act (‘‘1988

SHVA’’) in order to provide households

in unserved areas of the country with

access to broadcast programming via

satellite. The 1988 SHVA also reflected

Congress’ intent to maintain the role of

local broadcasters in providing free,

over-the-air television. As an

amendment to the Copyright Act, the

1988 SHVA accommodated the

broadcasters’ interests by only allowing

satellite carriers to provide broadcast

programming to those satellite

subscribers who were unable to obtain

broadcast network programming overthe-air. Since 1988, subscribership to

direct-to-home satellite service has

increased markedly.

5. In the SHVIA, Congress amended

the law so as to permit satellite carriers

to provide the signals of local broadcast

stations to subscribers residing in the

broadcaster’s market. After December

31, 2001, satellite carriers that provide

local-into-local retransmission of

broadcast stations pursuant to the

statutory copyright license must ‘‘carry

upon request the signals of all television

broadcast stations within that local

market * * *.’’ The SHVIA requires the

Commission to issue rules

implementing this carriage requirement

within one year of the SHVIA’s

enactment on November 29, 1999.

Congress has indicated that these

requirements should be comparable to

those for cable systems, specifically

noting paragraphs (3) and (4) of section

614(b) and paragraphs (1) and (2) of

section 615(g), presently found in the

mandatory broadcast signal carriage

provisions in Title VI of the Act.

6. In Implementation of the Cable

Television Consumer Protection and

Competition Act of 1992, Broadcast

Signal Carriage Issues (‘‘Broadcast

Signal Carriage Order’’), the

Commission implemented the broadcast

signal carriage provisions of the Cable

Television Consumer Protection and

Competition Act of 1992 (‘‘1992 Cable

Act’’). This statute the Communications

Act to provide television stations with

certain carriage rights on local market

cable television systems. Sections 614

and 615 of the Act contain the cable

television ‘‘must carry’’ requirements for

commercial and noncommercial

television stations, respectively. Section

40566 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

325 contains retransmission consent

requirements pursuant to which cable

operators may be obligated to obtain the

consent of commercial broadcasters

before retransmitting their signals.

Within local market areas, commercial

television stations may elect cable

carriage under either the retransmission

consent or mandatory carriage

requirements. Noncommercial

television stations may only opt for

must carry under the Act, but may

nevertheless agree to be carried on a

voluntary basis.

7. There are important distinctions

between cable operators and satellite

carriers that are implicated in

attempting to harmonize section 338

with sections 614 and 615. The first

significant difference is that satellite

carriers have uplink facilities that are

used to receive, package, and retransmit

video programming. In contrast, cable

operators receive, process, and

distribute video programming from a

local facility called a headend. This

distinction is important because many

cable carriage rules, such as the carriage

requirement for local noncommercial

television stations, rely upon the

location of the cable operator’s principal

headend, a facility not used by satellite

carriers. Second, satellite carriers have

no legal obligation to have a basic

service tier. Thus, they are under no

obligation to place broadcast signals on

such a tier of service as cable operators

are required to do under the Act. Rather,

section 338(d) requires satellite carriers

to position local broadcast station

signals on contiguous channels. Third, a

satellite carrier has a general obligation

to carry all television stations in a

market, if it carriers one station in that

market through reliance on the statutory

license, without reference to a channel

capacity cap. In contrast, a cable system

with more than 12 usable activated

channels is required to devote no more

than one-third of the aggregate number

of usable activated channels to local

commercial television stations that may

elect mandatory carriage rights. A cable

system is also obligated to carry a

certain number of qualified

noncommercial educational television

stations above the one-third cap. Fourth,

satellite carriers provide a national

service and need not have a franchise

from local or state authorities to serve

subscribers with any type of television

signal nor do they have local access

channel requirements. Cable operators,

on the other hand, serve local franchise

areas under franchise agreements with

either local, county, or state authorities.

Local franchise authorities often impose

technical and system build-out

requirements, as well as public,

educational, and government access

channel requirements, on cable

operators. Finally, we note that 82% of

all multichannel video programming

distributor subscribers receive their

video programming from a local

franchised cable operator, while the

satellite industry represents less than

15% of all MVPD subscribers. We will

take into account these differences

between the two industries in order to

sensibly implement the requirements of

section 338.

8. Direct broadcast satellite (‘‘DBS’’)

operators use satellites to transmit video

programming to subscribers, who must

buy or rent a small parabolic ‘‘dish’’

antenna and pay a subscription fee to

receive the programming service. To

obtain local television signals for local

distribution, DBS companies may

receive the signals over-the-air or have

voluntary arrangements with local

stations to deliver their signals via fiberoptic cables to a local

telecommunications carrier’s facilities.

At a certain point designated by the

satellite carrier, all of the broadcast

signals are digitally encoded and

multiplexed together. The packet of

digitized television signals are then

sent, using a high capacity (DS3) line, to

the satellite carriers’ programming

facility, or group of facilities, where

they are uplinked to the appropriate

satellite and then retransmitted back to

subscribers’ dishes in the relevant

stations’ market of origin.

9. The home satellite dish industry,

also known as HSD or C-Band, is

another type of satellite carrier subject

to the SHVIA and its related provisions.

C-Band subscribers use a much larger

dish, some seven to ten feet in diameter,

to receive video programming than that

equipment used for reception by DBS

subscribers. C-Band subscribers are

often located in rural areas that are

unserved by cable operators.

III. Satellite Broadcast Signal Carriage

A. Carriage Obligations and Definitions

10. The SHVIA has accorded satellite

carriers the right to retransmit local

television stations without first

obtaining retransmission consent, and

without a mandatory carriage obligation,

for a six month period from November

29, 1999 to May 28, 2000. Beginning on

May 29, 2000 and continuing until

December 31, 2001, carriage of

broadcast television stations by satellite

carriers is a station-by-station basis

pursuant to retransmission consent

agreement between the station and the

satellite carrier. On January 1, 2002,

pursuant to section 338(a)(1) of the Act:

Subject to the limitations of paragraph

(2) [remedies for failure to carry], each

satellite carrier providing, under section

122 of title 17, United States Code,

secondary transmissions to subscribers

located within the local market of a

television broadcast station of a primary

transmission made by that station shall

carry upon request the signals of all

television broadcast stations located

within that located market, subject to

section 325(b). This provision gives

satellite carriers a choice. If satellite

carriers provide their subscribers with

the signals of local television stations

through reliance on the statutory

copyrights license, they will have the

obligations to carry all of the television

signals in that particular market that

request carriage. If satellite carriers

provide local television signals pursuant

to private copyright arrangements, the

section 338 carriage obligations do not

apply.

11. In order to effectuate section 338,

it is necessary to determine what

constitutes a request for carriage, adopt

procedural guidelines regarding the

manner in which a broadcaster

communicates its request for carriage,

and set out guidelines for the satellite

carrier to commence carriage. In this

context, we seek comment on the

meaning of the phrase ‘‘carry upon

request.’’ In the cable context, the

Commission initially required the cable

operator to contact all local broadcast

television stations, in writing, on

matters relating to their carriage rights.

We ask whether we should establish a

similar requirement, so that satellite

carriers must notify all local broadcast

television stations, in writing, of their

carriage rights once any local station in

a particular market is being carried. We

note that broadcast television stations

requesting carriage must do so in

writing—cable marriage of local

broadcast television stations requesting

mandatory carriage then commences on

a specified date when the request is part

of the periodic election process. We ask

whether we should adopt similar

procedural rules in the satellite carriage

context. We also ask whether we should

adopt separate procedural rules for the

carriage of noncommercial educational

television stations to mirror the cable

carriage requirements. In addition, we

ask whether the Commission should

establish separate procedures to cover

new broadcast stations that may

commence operation in a market or for

new satellite carriers similar to those

established for cable carriage. Finally,

we seek comment on how the section

338 mandate will work with the revised

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40567

section 325 provision regarding satellite

carriers and retransmission consent.

12. Section 338 contains several

definitions that provide the framework

for the satellite broadcast signal carriage

paradigm. While these definitions are

generally self effectuating, such as the

meaning of ‘‘satellite carrier,’’

‘‘secondary transmission,’’ and

‘‘subscriber,’’ two provision require

further explication to understand the

scope of the satellite carriage obligation.

These two provisions are as follows:

Television Broadcast Station. Section

338(h)(7) defines the term, television

broadcast station, as having the meaning

given such term in section 325(b)(7).

Section 325(b)(7) defines television

broadcast station, as an over-the-air

commercial or noncommercial

television broadcast station licensed by

the Commission under subpart E of part

73 of title 47, Code of Federal

Regulations, except that such term does

not include a low-power or translator

station. We seek comment on the scope

of the definition. We first note that,

unlike cable operators, satellite carriers

have no obligation to carry low power

television stations in any instance. We

also note that, unlike cable operators,

satellite carriers are not required to

carry noncommercial educational

translator stations with five watts or

higher power. We seek comment on

these apparent differences and what

impact they have on a satellite carrier’s

carriage responsibilities under section

338. A question also remains about

whether satellite carriers must carry

‘‘satellite television stations’’ as cable

operators are required to do. We believe

that since television stations are not

specifically excluded by section

338(h)(7), satellite carriers have an

obligation to carry these entities if they

carry other local market television

stations. We seek comment on this

interpretation. Finally, we ask if there

are any other significant differences

between the satellite carriage and cable

carriage definitional requirements that

affect this proceeding.

Distributor. Section 338(h)(1) of the

Communications Act defines the term,

distributor, as an ‘‘entity which

contracts to distribute secondary

transmissions from a satellite carrier

and, either as a single channel or in a

package with other programming,

provides the secondary transmission

either directly to individual subscribers

or indirectly through other program

distribution entities.’’ We note that the

term distributor is not found in any

other provision of section 338, other

than the definitional subsection. Given

this omission, which may or may not

have been purposeful, we seek comment

on the definition of distributor and its

relevance in this context.

B. Market Definitions

13. Section 338(h)(3) defines the term,

local market, as having the meaning it

has under section 122(j) of title 17,

United States Code. Section 122(j)(2)(A)

defines the term, local market, in the

case of both commercial and

noncommercial television broadcast

stations, to mean the designated market

area in which a station is located, and

(i) in the case of a commercial television

broadcast station, all commercial

television broadcast stations licensed to

a community within the same

designated market area within the same

local market; and (ii) in the case of a

noncommercial educational television

broadcast station, the market includes

any station that is licensed to a

community within the same designated

market area as the noncommercial

educational television broadcast station.

In addition to the area described in

subparagraph (A), a station’s local

market includes the county in which the

station’s community of license is

located. Section 122(j)(2)(C) defines the

term, designated market area to mean

the market area as determined by

Nielsen Media Research and published

in the 1999–2000 Nielsen Station Index

Directory and Nielsen Station Index

United States Television Household

Estimates or any successor publication.

14. At the outset, we inquire as to

why subsections (i) and (ii) were added

to the overall section. It appears that

they clarify that the local market

includes a geographic area and all

broadcast stations licensed or located

within that designated area. We seek

comment on this view of subsections (i)

and (ii). We also seek comment on when

to change the reference to the 1999–

2000 Nielsen publications to reflect

changes in market structure and market

conditions. We note, in the cable

context, that the rules account for a

market update every three years. We ask

whether the rules we implement under

this section should be updated on a

triennial basis, at another interval (e.g.,

every year, every five years, etc.) or not

at all. We also note that the cable

industry is required to use the 1997–98

Nielsen publications to determine local

markets for broadcast signal carriage

purposes up until January 1, 2003, yet

satellite carriers are obliged to use the

1999–2000 Nielsen publications for

carriage purposes. We ask whether

satellite carriers and cable operators

should be required to use the same

annual Nielsen market publications so

that both may rely on the same market

definition, and thus have virtually the

same carriage obligations.

15. It is important to note that a

regulatory mechanism exists to expand

or contract the size of a local television

market for cable broadcast signal

carriage purposes. Pursuant to section

614(h)(1)(C), at the request of either a

broadcaster or a cable operator, the

Commission may, with respect to a

particular commercial television

broadcast station, include additional

communities within its television

market or exclude communities from

such station’s television market to better

effectuate the purposes of the Act’s

mandatory carriage provisions. In

considering market modification

requests, the Act provides that the

Commission shall afford particular

attention, ‘‘to the value of localism’’ by

taking into account such factors as (1)

whether the station, or other stations

located in the same are, have been

historically carried on the cable system

or systems within such community; (2)

whether the television station provides

coverage or other local service to such

community; (3) whether any other

television station that is eligible to be

carried by a cable system in such

community in fulfillment of the

requirements of this section provides

news coverage of issues of concern to

such community or provides carriage or

coverage of sporting and other events of

interest to the community; and (4)

evidence of viewing patterns in cable

and non-cable households within the

areas served by the cable system or

systems in such community. The

Commission’s inclusion of additional

communities within a station’s market

imposes new carriage requirements on

cable operators subject to the

modification request while the grant to

exclude communities from a station’s

market relieves a cable operator from its

obligation to carry a certain station’s

television signal.

16. No such statutory mechanism

exists for satellite broadcast signal

carriage purposes in section 338. As a

result, different carriage patterns may

emerge between cable operators and

satellite carriers in certain markets

because a cable operator may be

carrying stations that have expanded

their market area while not carrying

others because those stations were

deleted from the relevant market area.

We seek comment on whether the

Commission has the authority to

implement a market modification

mechanism similar to section 614(h) in

order to provide satellite carriers and

broadcast stations the ability to modify

markets for satellite carriage purposes. If

so, should we use the same procedural

40568 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

and evidentiary standards used for cable

market modifications? Alternatively,

should the Commission’s previously

granted market modifications be

applicable to satellite carriers in the

affected market areas? We seek

comment on whether Commission

action in this area may further the

Congressional goal of harmonizing the

carriage obligations between cable

operators and satellite carriers.

C. Broadcast Station Delivery of a Good

Quality Signal

17. Section 338(b)(1) states that, ‘‘A

television broadcast station asserting is

right to carriage under subsection (a)

shall be required to bear the costs

associated with delivering a good

quality signal to the designated local

receive facility of the satellite carrier or

to another facility that is acceptable to

at least one-half the stations asserting

the right to carriage in the local market.’’

A host of novel technical and

definitional questions arise under this

particular provision.

18. We first seek comment on the term

‘‘local receive facility.’’ Section

338(h)(2) defines the term local receive

facility as ‘‘the reception point in each

local market which a satellite carrier

designates for delivery of the signal of

the station for purposes of

retransmission.’’ There are a variety of

possible technical configurations that a

satellite carrier might use the receive,

uplink, and distribute local market

broadcast signals. Direct broadcast

satellite operators, such as DirectTV and

Echostar, generally appear to have one

central uplink facility in the center of

the country that relays content from the

ground to the satellites involved.

Broadcast signals from broadcast

markets across the country need to be

delivered to this facility. This could be

accomplished using either a satellite or

a terrestrial relay. It appears likely that

the most economically feasible means

would be to aggregate the signals in

each local market at one point and

deliver them over the facilities of an

interstate telecommunications carrier to

the uplink site(s). If this is correct, the

‘‘local receive facility’’ would be colocated at suitable carrier’s switching

center or ‘‘point-of-presence.’’ We seek

comment on whether such a facility

should be considered the ‘‘local receive

facility’’ for purpose of section 338. We

note that local receive facilities could

also resemble, in a technical sense, a

cable operator’s headend, because that

is where signals are received and

processed. We seek comment on the

parameters under which a satellite

carrier may construct and designate

such a facility. Aside from the above

stated options, we also seek comment

on other reception points a satellite

carrier can consider to satisfy the

provision’s requirements. Finally, we

seek comment on the procedures by

which a satellite carrier must inform

local market television stations of the

location of the receive facility.

19. In addition, we seek comment on

the meaning of the statutory phrase, ‘‘to

another facility that is acceptable to at

least one-half the stations asserting the

right to carriage in the local market.’’

We read the statute to mean that a

satellite carrier may establish a regional

receive facility as long as one-half of

broadcasters agree to that location. For

example, a satellite carrier may establish

a receive facility for all of New England,

which encompasses several DMAs, as

long as 50% of the relevant broadcasters

agree on the location. We seek comment

on this interpretation. We also inquire

about the process by which broadcast

television stations agree to the

establishment and location of another

facility. What did Congress intend when

it included the term ‘‘acceptable?’’ What

happens with those broadcast stations

that do not agree to the location of the

other facility? Who should pay to

transmit the broadcast signals to such a

facility? May the stations in the

minority file a complaint with the

Commission concerning the location of

such a facility?

20. We also inquire about what

constitutes a ‘‘good quality signal’’ as

the term is used in section 338. Under

the current cable carriage regime,

television broadcast stations must

deliver either a signal level of ¥45dBm

for UHF signals or ¥49dBm for VHF

signals at the input terminals of the

signal processing equipment, to be

considered eligible for carriage. We note

that a broadcaster that does not provide

a good quality signal to a cable system

headend is not qualified for carriage. In

this situation, a cable system is under

no obligation to carry such a signal, but

the broadcaster has an opportunity to

provide equipment necessary to

improve its signal to the requisite level

and gain carriage rights. We seek

comment on whether Congress intended

the same result for broadcasters that do

not provide a good quality signal to the

local satellite receive facility. We also

seek comment on whether the signal

quality parameters under section 614

and the Commission’s cable regulations

are appropriate in the satellite carriage

context.

21. With respect to the manner of

testing for a good quality signal, we note

that the Commission has adopted a

method for measuring signal strength in

the cable carriage context. Generally, if

a test measuring signal strength results

in an initial reading of less than ¥51

dBm for a UHF station, at least four

readings must be taken over a two-hour

period. If the initial readings are

between ¥51 dBm and ¥ dBm,

inclusive, readings must be taken over

a 24-hour period with measurements

not more than four hours apart to

establish reliable test results. For a VHF

station, if the initial readings are less

than ¥55 dBm, at least four readings

must be taken over a two-hour period.

Where the initial readings are between

¥55 dBm and ¥49 dBm, inclusive,

readings should be taken over a 24-hour

period, with measurements no more

than four hours apart to establish

reliable test results. The Commission

stated that cable operators are further

expected to employ sound engineering

measurement practices; thus, signal

strength surveys should, at a minimum,

include the following: (1) Specific make

and model number of the equipment

used, as well as its age and most recent

date(s) of calibration; (2) description(s)

of the characteristics of the equipment

used, such as antenna ranges and

radiation patterns; (3) height of the

antenna above ground level and

whether the antenna was properly

oriented; and (4) weather conditions

and time of day when the test were

done. We seek comment on whether we

should require the same signal testing

practices for measuring a broadcaster’s

signal strength in the satellite context.

22. We also seek comment on the cost

of delivering a good quality signal.

Under the mandatory cable carriage

provisions of section 614, television

stations are ‘‘required to bear the costs

associated with delivering a good

quality signal or a baseband video signal

to the principal headend of the cable

system.’’ The Commission has stated

that such costs may be for ‘‘improved

antennas, increased tower height,

microwave relay equipment,

amplification equipment and tests that

may be needed to determine whether

the station’s signal complies with the

signal strength requirements, especially

if the cable system’s over-the-air

reception equipment is already in place

and is otherwise operating properly.’’

We seek comment on which of these

cost elements in the cable context are

applicable in the satellite context. Are

there any additional costs, in a section

338 setting, that are not mentioned

above?

D. Duplicating Signals

23. Section 338(c)(1) states that:

Notwithstanding subsection (a), a

satellite carrier shall not be required to

carry upon request the signal of any

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40569

local commercial television broadcast

station that substantially duplicates the

signal of another local commercial

television broadcast station which is

secondarily transmitted by the satellite

carrier within the same local market, or

to carry upon request the signals of

more than one local commercial

television broadcast station in a single

local market that is affiliated with a

particular television network unless

such stations are licensed to

communities in different states.

24. Section 614(b)(5) similarly

provides that a cable operator is not

required to carry the signal of any local

commercial television station that

substantially duplicates the signal of

another local commercial television

station which is carried on its cable

system, or to carry the signals of more

than one local commercial television

station affiliated with a particular

broadcast network. The Commission has

decided that, based on the legislative

history of this section, two stations

‘‘substantially duplicate’’ each other ‘‘if

they simultaneously broadcast identical

programming for more than 50 percent

of the broadcast week.’’ For purposes of

this definition, identical programming

means the identical episode of the same

program series. The Commission noted

that its interpretation was consistent

with the 1992 Cable Act’s legislative

history that indicates that this phrase

refers to the ‘‘simultaneous transmission

of identical programming on two

stations’’ and which ‘‘constitutes a

majority of the programming on each

station.’’ We seek comment on whether

we should apply the Commission’s

determination of what constitutes

‘‘substantial duplication’’ under Title VI

to this section of the SHVIA.

25. We seek comment on the phrase,

‘‘affiliated with a particular television

network.’’ In this situation, we ask what

definition of ‘‘television network’’

applies under this provision because

that term is not specifically defined in

section 338. We note that section 339(d)

includes a definition of television

network for purposes of satellite

carriage of distant signals: ‘‘The term

‘television network’ means a television

network in the United States which

offers an interconnected program

service on a regular basis for 15 or more

hours per week to at least 25 affiliated

broadcast stations in 10 or more States.’’

We ask whether we should implement

the section 339(d) definition for the

purposes of administering the

duplication provision at issue here. Are

there any alternative definitions that we

should consider?

26. We also inquire about the

application of the statutory phrase,

‘‘unless such stations are licensed to

communities in different states.’’

Congress stated that this phrase

addresses unique and limited cases,

including such station pairs as WMUR

(Manchester, New Hampshire) and

WCVB (Boston, Massachusetts) in the

Boston DMA (both ABC affiliates) as

well as WPTZ (Plattsburg, New York)

and WNNE (White River Junction,

Vermont) in the Burlington-Plattsburgh

DMA (both NBC affilates), in which

mandatory carriage of both duplicating

local stations upon request assures that

satellite subscribers will not be

precluded from receiving the network

affiliate that is licensed to a community

in the state in which they reside. We

seek comment on whether there are

other similar situations that must be

addressed as we proceed with adopting

rules here. In addition, we seek

comment on whether there are other

regulatory issues that may arise in this

situation.

27. Section 338(c)(2) states that: The

Commission shall prescribe regulations

limiting the carriage requirements under

subsection (a) of satellite carriers with

respect to the carriage of multiple local

noncommercial television broadcast

stations. To the extent possible, such

regulation shall provide the same degree

of carriage by satellite carriers of such

multiple stations as is provided by cable

systems under section 615. Section

615(l)(1), in turn, provides that a local

noncommercial educational television

(‘‘NCE’’) station qualifies for cable

carriage rights if it is licensed by the

Commission as an NCE station and if it

is owned and operated by a public

agency, nonprofit foundation, or

corporation or association that is

eligible to receive a community service

grant from the Corporation for Public

Broadcasting. An NCE station is also

considered qualified if it is owned and

operated by a municipality and

transmits predominantly

noncommercial programs for

educational purposes. For purposes of

cable carriage, an NCE station is

considered local if its community of

license is within 50 miles of, or the

station places a Grade B contour over,

the principal headend of the cable

system. Cable systems are obliged to

carry local noncommercial educational

television stations under a statutory

paradigm based upon a cable system’s

number of usable activated channels.

Cable systems with: (1) 12 or fewer

usable activated channels are required

to carry the signal of one qualified local

noncommercial educational station: (2)

13–36 usable activated channels are

required to carry no more than three

qualified local noncommercial

educational stations; and (3) more than

36 usable activated channels shall carry

at least three qualified local

noncommercial educational stations. At

the outset, we seek comment on

whether this approach is applicable in

the satellite context.

28. A cable operator with cable

system capacity of more than 36 usable

activated channels, and carrying the

signals of three qualified NCE stations,

is not required to carry the signals of

additional stations the programming of

which substantially duplicates the

programming broadcast by another

qualified NCE station requesting

carriage. The Act states that substantial

duplication was to be defined by the

Commission in a manner that promotes

access to distinctive noncommercial

educational television services. The

Commission concluded that an NCE

station does not substantially duplicate

the programming of another NCE station

if at least 50 percent of its typical

weekly programming is distinct from

programming on the other station either

during prime time or during hours other

than prime time. We first seek comment

on whether Congress, in drafting section

338(c)(2) meant for the Commission to

focus solely on the substantial

duplication language of section 615 to

limit satellite carriage of NCE stations or

whether it intended the Commission to

prescribe other means to limit such

carriage. If Congress meant for the

Commission to concentrate on

duplication, we ask whether we should

apply the definition set forth in the

cable carriage context or whether we

should devise a new definition for

satellite carriage purposes. If we are to

develop additional carriage limitations,

we ask what other rules should the

Commission adopt to more narrowly

tailor an NCE satellite carriage

requirement to make it comparable to

the NCE carriage obligations imposed on

cable operators.

E. Channel Positioning

29. Section 338(d) of the

Communications Act states that: No

satellite carrier shall be required to

provide the signal of a local television

broadcast station to subscribers in that

station’s local market on any particular

channel number or to provide the

signals in any particular order, except

that the satellite carrier shall retransmit

the signal of the local television

broadcast stations to subscribers in the

stations’ local market on contiguous

channels and provide access to such

station’s signals at a nondiscriminatory

price and in a nondiscriminatory

manner on any navigational device, onVerDate 11<MAY>2000 14:53 Jun 29, 2000 Jkt 190000 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\30JNP1.SGM pfrm08 PsN: 30JNP1
40570 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

screen program guide, or menu. The

Conference Report notes that the

obligation to carry local stations on

contiguous channels is to ensure that

satellite carriers position local stations

in a way that is convenient and

practically accessible for consumers.

The statutory directive for channel

positioning clearly states that satellite

carriers are required to present local

broadcast channels to satellite

subscribers in an uninterrupted series.

We seek comment, however, on whether

broadcast signals carried under

retransmission consent must be

contiguous with the television stations

carried under section 338 or whether

they may be presented to satellite

subscribers in a non-contiguous manner.

30. We also seek comment on the

phrase, ‘‘provide access to such station’s

signals at a nondiscriminatory price and

in a nondiscriminatory manner on any

navigational device, on-screen program

guide, or menu.’’ We specifically seek

comment on what rules the Commission

should develop to ensure that television

stations are accessible to satellite

subscribers on nondiscriminatory terms.

We ask whether there are any existing

Commission rules that we may use as a

model to develop regulations for this

particular situation. We ask whether

Congress meant that television station

signals carried pursuant to mandatory

carriage requests may cost no more per

channel to subscribers than packages of

retransmission consent television

station signals or other satellite service

packages. We seek comment on whether

Congress meant that electronic program

guide information concerning required

television station signals should be

presented to subscribers in the same

fashion as other programming services

provided by the satellite carrier.

F. Content To Be Carried

31. Section 338(g) states that, ‘‘The

regulations prescribed [under section

338] shall include requirements on

satellite carriers that are comparable to

the requirements on cable operators

under section 614(b)(3) * * * and

615(g)(1).’’ Section 614(b)(3) states that:

A cable operator shall carry in its

entirety, on the cable system of that

operator, the primary video,

accompanying audio, and line 21 closed

caption transmission of each of the local

commercial television stations carried

on the cable system and, to the extent

technically feasible, program-related

material carried in the vertical blanking

interval or on subcarriers.

Retransmission of other nonprogramrelated material (including teletext and

other subscription and advertiser

supported information services) shall be

at the discretion of the cable operator.

Where appropriate and feasible,

operators may delete signal

enhancements, such as ghost canceling,

from the broadcast signal and employ

such enhancements at the system

headend or headends.

32. Section 615(g)(1), which is the

noncommercial equivalent of the

commercial television station provision

in section 614(b)(3), states that: A cable

operator shall retransmit in its entirety

the primary video, accompanying audio,

and line 21 closed caption transmission

of each qualified local noncommercial

educational television station whose

signal is carried on the cable system,

and, to the extend technically feasible,

program-related material carried in the

vertical blanking interval, or on

subcarriers, that may be necessary for

receipt of programming by handicapped

persons or educational or language

purposes. Retransmission of other

material in the vertical blanking interval

[‘‘VBI’’] or on subcarriers shall be within

the discretion of the cable operator.

33. We seek comment on the

applicability of these requirements in

the satellite carriage context, especially

in light of the terms ‘‘comparable’’

contained in section 338(g), above. We

recognize that the Commission has not

specifically defined ‘‘primary video’’ in

the rules and has instead relied on the

language of section 614(b)(3)(B) to

clarify the scope of the term for

purposes of cable broadcast signal

carriage. In view of this history, we seek

comment on whether a specific

definition of primary video is required

for satellite carriers to fulfill the

requirements contained in section 338.

34. In the Broadcast Signal Carriage

Order, the Commission decided that the

factors enumerated in WGN Continental

Broadcasting, Co. v. United Video Inc.

(‘‘WGN’’) provided useful guidance for

what constitutes program-related

material. The WGN case addressed the

extent to which the copyright on a

television program also included

program material in the VBI of the

signal. The WGN court set out three

factors for making a copyright

determination. First, the broadcaster

must intend for the information in the

VBI to be seen by the same viewers who

are watching the video signal. Second,

the VBI information must be an integral

part of the program. The court in WGN

held that if the information in the VBI

is intended to be seen by the viewers

who are watching the video signal,

during the same interval of time as the

video signal, and as an integral part of

the program on the video signal, then

the VBI and the video signal are one

copyrighted expression and must both

be carried if one is to be carried. We

seek comment on whether the WGN

program-related analysis applies in the

context of satellite broadcast signal

carriage.

35. With regard to the ‘‘technical

feasibility’’ of the carriage of programrelated material in the VBI or on

subcarriers, the Commission stated in

the Broadcast Signal Carrier Order that

such carriage should be considered

‘‘technically feasible’’ if it does not

require the cable operator to incur

additional expenses and to change or

add equipment in order to carry such

material. The Commission noted that it

would consider signal carriage to be

‘‘technically feasible’’ if only nominal

costs, additions or changes of

equipment are necessary. We seek

comment on whether the consideration

of technical feasibility should be

different in the context of satellite

broadcast signal carriage.

36. Finally, we note that satellite

carriers are required to pass through

closed captions regardless of the

particular arrangements by which the

broadcast station is carrier. Section 79.1

of the Commission’s rules, adopted to

implement section 713 of the Act,

requires that all video programming

distributors, as defined in § 79.1(a)(2) of

the Commission’s rules, shall deliver all

programming received from the video

programming owner or other origination

source containing closed captioning to

receiving television households with the

original closed captioning data intact in

a format that can be recovered and

displayed by decoders meeting the

standards of § 15.119 of the

Commission’s rules. We take this

opportunity to ask whether satellite

carriers have, or will have, any

difficulties in passing through closed

captioning information to its

subscribers. If so, wee seek comment on

what measures the Commission should

take to ensure that captioning

information reaches its intended

audience.

G. Material Degradation

37. Section 338(g) states that, ‘‘The

regulations prescribed [by the

Commission under section 338] shall

include requirements on satellite

carriers that are comparable to the

requirements on cable operators under

sections 614(b)(4) * * * and 615(g)(2).’’

Section 614(b)(4)(A) states that, ‘‘The

signals of local commercial television

stations that a cable operator carriers

shall be carried without material

degradation. The Commission shall

adopt carriage standards to ensure that,

to the extent technically feasible, the

quality of signal processing and carriage

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40571

provided by a cable system for the

carriage of local commercial television

stations will be no less than that

provided by the system for carriage of

any other type of signal.’’ Section

615(g)(2), which is the noncommercial

equivalent of the commercial television

station provision in section 614(b)(4),

states that, ‘‘A cable operator shall

provide each qualified local

noncommercial educational television

station whose signal is carried in

accordance with this section with

bandwidth and technical capacity

equivalent to that provided in

commercial television broadcast stations

carried on the cable system and shall

carry the signal of each qualified local

noncommerical educational television

station without material degradation.’’

38. The Conference Report noted that

because of unique technical challenges

on satellite technology and constraints

on the use of satellite spectrum, satellite

carriers may initially be limited in their

ability to deliver must carry signals into

multiple markets. According to the

Conference Report: ‘‘New compression

technologies, such as video streaming,

may help overcome these barriers, and

if deployed, could enable satellite

carriers to deliver must carry signals

into many more markets than they could

otherwise.’’ The Commission is urged,

pursuant to its obligations under section

338, or in any other related proceedings,

‘‘to not prohibit satellite carriers from

using reasonable compression,

reformatting, or similar technologies to

meet their carriage obligations,

consistent with existing authority.’’

39. When implementing the material

degradation provision for cable carriage,

the Commission relied on the technical

standards as updated in the Cable

Technical Report and Order, in defining

the scope of the requirement. The Cable

Technical Report and Order specifically

addressed the issue of preventing

material degradation of local television

signals carried on cable systems by

adopting a number of technical

standards and providing that cable

operators must make reasonable efforts

and use good engineering practices and

proper equipment to guard against

unnecessary degradation in the signal

received and delivered to the cable

subscriber. The Commission stated that

the standards adopted in the Cable

Technical Report and Order were

sufficient to satisfy the material

degradation requirements contained in

the 1992 Cable Act. In declining to

adopt regulations in addition to those

found in the Cable Technical Report

and Order, the Commission stated that

further rules may have the unwarranted

effect of impeding technological

advances and experimentation in the

cable industry. Standards specific to

digital communications were not

adopted. Given the technological

differences between cable operators and

satellite carriers, we seek comment on

whether reliance on Commission

precedent in the cable carriage context

regarding material degradation is

appropriate and whether technical

standards mirroring those in the cable

television field would be warranted. We

seek comment on whether we should

develop new rules for satellite carriers,

and if so what such rules should be,

consistent with the Congressional

direction on digital compression and

taking into account the unique technical

aspects of satellite carriage of broadcast

signals.

40. It is important to note that our

concerns here revolve around the

satellite carrier’s treatment of the

broadcast signal on the equipment it

controls or authorizes. Thus, our focus

does not involve picture quality issues

that may arise because of the type of

television receiver used since the

satellite carrier has little control over

the use of these devices. Moreover, our

analysis of material degradation

recognizes that dish placement on or

near the subscriber’s premises can affect

the quality of the picture received, but

that the satellite carrier cannot control

how and where dishes are installed.

41. We understand that satellite

carriers use a different modulation

system from cable operators—

quadrature phase-shift keying or

‘‘QPSK’’—as the principal format when

transmitting video programming. Thus,

it is important to note at this juncture,

the technical steps in the digital

conversion process affecting the

material degradation analysis. In

satellite digital television systems, such

as those implemented by DirecTV and

Echostar, there are four layers of the

systems where video quality may be

affected. The first layer, known as the

picture layer, is where decisions are

made regarding the use of progressive or

interlace scanning techniques as well as

whether the picture will be produced in

a standard definition or high definition

format. The choices made in this layer

will not likely affect the quality of

retransmitted analog broadcasts. In the

second layer, the compression layer,

decisions are made regarding the types

of compression techniques used. The

relevant digital standard, MPEG–2,

supports a wide range of compression

ratios and data rates. At this layer, the

satellite carrier attempts to maximize

the number of channels carried on each

transponder and there is an effort to

place a limit on the maximum data rate

of each channel. Limiting the data rate

may cause the picture quality to

degrade, especially when certain video

scenes involve rapid motion images or

there is a greater degree of camera

panning and zooming. The third layer is

known as the transport layer and this is

where the data are structured and

organized into data packets. Since most

digital video systems use the MPEG

packet structure, there is little

likelihood that any type of degradation

would occur at this level. The final layer

is the transmission layer and this is

where data are modulated on to a carrier

for transmission. The use of high

efficiency modulation techniques, such

as the cable industry’s QAM standard,

permit greater data rate throughput.

QPSK, however, is a lower order

modulation and requires satellite

carriers to limit the data rate or increase

channel bandwidth. The chances for

degradation to occur at this level are

tied to the limiting data rate technique

in the compression layer.

42. We specifically note that

degradation may result when the

satellite carrier encodes an analog

broadcast signal and readies it for digital

retransmission. During the encoding

process, certain artifacts may be

introduced into the original material

that would have an effect on picture

quality. The most dominant artifact is

quantization noise in the picture. This

effect is often visible on edges of

subjects and textured areas of the image.

It is caused when there is a high amount

of picture detail along with a high

degree of picture activity and levels of

quantization are restricted due to data

rate reduction. Random noise can also

be introduced into the source video.

This can result in activity or ‘‘busyness’’

in detail areas of the picture and tiling

or flicker in other areas of the picture.

Such effects are caused by the encoder

attempting to encode random noise.

During the encoding process, data rate

reduction in combination with rapid

picture changes may result in another

artifact known as the ‘‘dirty window,’’

where noise appears stationary while

the images behind it are moving.

43. Understanding that satellite

carriers use the technical process

described above in retransmitting analog

broadcast signals, and keeping in mind

Congress’s express statement that any

reasonable type of digital compression

technique is permissible, we seek

comment on how to define material

degradation for purposes of section 338.

The focus of our concern in this context

is where the satellite carrier has made

a conscious decision to increase the

number of channels carried to the

detriment of picture quality. Thus, we

40572 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

seek comment on how to define the

term ‘‘material,’’ but in the context of a

deliberate action on the part of the

satellite carrier. For example, when a

broadcast television station freezes,

‘‘tiles’’ or looks ‘‘dirty’’ due to a satellite

carrier’s choice of encoding and

compression techniques, should that be

considered ‘‘material’’ or ‘‘immaterial’’

degradation? We also seek comment on

whether there are certain compression

ratios or encoding techniques that

should be prohibited because their use

would result in material degradation.

44. Aside from the matters discussed

above, questions arise as to what

standards and measurement techniques

the Commission should employ where

specific broadcast signal quality

disputes arise. In the cable carriage

context, where an operator carries the

broadcaster’s analog television signal,

issues such as signal to noise ratios and

ghosting have been the focus of concern.

In the satellite carriage situation, where

an analog broadcast signal is digitally

transmitted by a satellite carrier, picture

resolution is still important but bit error

rates and data throughput are also

relevant. Moreover, the technical

standards that are employed to evaluate

cable analog picture quality were

adopted and refined over the course of

many decades, yet the Commission has

had relatively little experience in

evaluating the analog to digital to analog

conversion of the type involved in

satellite broadcast signal carriage. We

seek suggestions for measurement

standards that may be used in

addressing signal degradation issues.

45. We also have questions

concerning the phrase ‘‘similar

technologies to meet their carriage

obligations’’ as it is found in this

section’s legislative history. We first ask

what is meant by the term ‘‘similar

technologies.’’ Are there any limits as to

the kind of technologies a satellite

carrier may use to fulfill its statutory

mandates under section 338? We

specifically seek comment on whether

the phrase encompasses ‘‘spot

beaming,’’ where a satellite carrier

delivers programming to a discrete

geographical location using a

specialized satellite. If so, what are the

implications for using such technology

in the satellite broadcast signal carriage

context.

H. Digital Television

46. Section 338(g) states: ‘‘The

regulations prescribed [by the

Commission under Section 338] shall

include requirements on satellite

carriers that are comparable to the

requirements on cable operators under

sections 614(b)(4) * * *.’’ Section

614(b)(4)(B) of the Act provides: ‘‘At

such time as the Commission prescribes

modifications of the standards for

television broadcast signals, the

Commission shall initiate a proceeding

to establish any changes in the signal

carriage requirements of cable television

systems necessary to ensure cable

carriage of such broadcast signals of

local commercial television stations

which have been changed to conform

with such modified standards.’’ The

Conference Report stated: ‘‘By directing

the FCC to promulgate these must carry

rules [found in section 338], the

conferees do not take any position

regarding the application of must-carry

rules to carriage of digital television

signals by either cable or satellite

systems.’’

47. The Commission has adopted

rules establishing a transitional process

for the conversion from an analog to a

digital form of broadcast transmission.

The rules allow each existing analog

television licensee or each eligible

permittee to construct or operate digital

facilities with a roughly comparable

service area using 6 MHz of spectrum,

in addition to the 6 MHz of spectrum

used for analog broadcasting. The

broadcast station will transmit a signal

consistent with the standards adopted

in Advanced Television Systems and

Their Impact Upon the Existing

Television Broadcast Service, Fourth

Report and Order in MM Docket No. 87–

268, giving it the flexibility to broadcast

in a high definition mode, in a multiple

program standard definition mode, in a

datacasting mode, or a mixture of all

three. During the transition period, both

the analog and digital television signals

will be broadcast. At the end of the

transition which is scheduled for the

year 2006, with certain statutory

exceptions, the station is to cease

broadcasting an analog signal and will

return to the government 6 MHz of

spectrum.

48. The rules governing the transition

from analog to digital broadcasting are

found in Advanced Television Systems

and Their Impact Upon the Existing

Television Broadcast Service, Fifth

Report and Order in MM Docket 87–268

(‘‘Fifth Report and Order’’). The Fifth

Report and Order set forth a phased-in

implementation schedule for the

introduction of digital broadcast

television. Construction requirements

vary depending on the size of the

television market and other factors.

49. In July 1998, the Commission

commenced a proceeding to determine

the carriage obligations cable operators

should have with regard to a broadcast

station’s digital television signal during

the transition period to digital

television. We sought comment on that

proceeding on how to accomplish the

Congressional goals reflected in

Sections 614, 615, and 325 of the Act in

light of the significant changes to the

relevant industries resulting from the

conversion to digital operations. The

thrust of the proceeding was to examine

the timing and scope of digital broadcast

signal carriage obligations for cable

operators. The Commission proposed

seven carriage options for the transition

period ranging from an immediate dual

carriage regime, where a cable operator

would carry both the analog and digital

signals at the same time, to the no

carriage options, where a cable operator

would be under no obligation to carry

the station’s digital signal until after the

transition period has ended.

50. When this proceeding was

initiated, there was no satellite

broadcast signal carriage requirement,

and satellite carriers apparently did not

find it necessary to comment on the

issues addressed in that proceeding.

Thus, we seek comment on whether

satellite carriers should be required to

carry digital broadcast television signals

in addition to analog broadcast signals

up until the time that television stations

return their analog spectrum to the

government. What are the costs and

benefits of such a requirement? In what

ways would a dual carriage rule limit

the number of markets satellite carriers

can serve with analog broadcast signals

alone? Moreover, would satellite

carriers have to drop existing nonbroadcast programming to accommodate

digital television signals? To what

extent should any digital carriage

requirements for satellite carriers be

consistent with those for cable

operations?

I. Compensation for Carriage

51. Section 338(e) states: ‘‘A satellite

carrier shall accept or request monetary

payment or other valuable consideration

in exchange either for carriage of local

television broadcast stations in

fulfillment of the requirements of this

section or for channel positioning rights

provided to such stations under this

section, except that any such station

may be required to bear the costs

associated with delivering a good

quality signal to the local receive facility

of the satellite carrier.’’ We will

consider the costs associated with

delivering a good quality signal as part

of our consideration of the several

related local receive facility issues,

discussed above. This provision largely

parallels provisions applicable to cable

operators that are found in sections

614(b)(10) and 615(i) of the Act that are

implemented in § 76.60 of the

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40573

Commission’s rules. In the cable

context, commercial broadcasters elect

either must carry or retransmission

consent to obtain carriage of their

signals. If mandatory carriage is

selected, there are no specific terms for

carriage that must be requested, other

than choosing the relevant channel

positioning options available to

broadcasters under the Act. If

retransmission consent is selected, the

operator may receive compensation

from the broadcaster in exchange for

carriage. We assume the same general

policy is intended here and that a

broadcaster seeking carriage rather than

requesting carriage ‘‘in fulfillment of the

requirements of [section 338]’’ would

simply negotiate carriage provisions,

including payment terms, in the context

of a retransmission consent negotiation.

We seek comment on this interpretation.

We also seek comment on the policy

underlying this provision and its

purpose in the statutory scheme.

J. Remedies

52. Section 338(a)(2) states that the

remedies for any failure to meet the

obligations under subsection (a)

(carriage obligations) shall be available

exclusively under section 501(f) of title

17, United States Code. New section

501(f)(1) states: ‘‘With respect to any

secondary transmission that is made by

a satellite carrier of a performance or

display of a work embodied in a

primary transmission and is actionable

as an act of infringement under section

122, a television broadcast station

holding a copyright or other license to

transmit or perform the same version of

that work shall, for purposes of

subsection (b) of this section, be treated

as a legal or beneficial owner if such

secondary transmission occurs within

the local market of that station.’’ New

section 501(f)(2) further provides: ‘‘A

television broadcast station may file a

civil action against any satellite carrier

that has refused to carry television

broadcast signals, as required under

section 122(a)(2), to enforce that

television broadcast station’s rights

under section 338(a) of the

Communications Act of 1934.’’ As it

appears that the Commission is not the

statutory venue to remedy non-carriage

of broadcast station signals by satellite

carriers, we believe that there is not

need for us to implement Section

338(a)(2). We seek comment on this

view.

53. Section 338(f)(1) of the

Communications Act states: ‘‘Whenever

a local television broadcast station

believes that a satellite carrier has failed

to meet its obligations under

subsections (b) through (e) of this

section [(b) good signal required, (c)

duplication not required, (d) channel

positioning, and (e) compensation for

carriage], such station shall notify the

carrier, in writing, of the alleged failure

and identify its reasons for believing

that the satellite carrier failed to comply

with such obligations. The satellite

carrier shall, within 30 days after such

written notification, respond in writing

to such notification and comply with

such obligations or sate its reasons for

believing that it is in compliance with

such obligations. A local television

broadcast station that disputes a

response by a satellite carrier that it is

in compliance with such obligations

may obtain review of such denial or

response by filing a complaint with the

Commission. Such complaint shall

allege the manner in which such

satellite carrier has failed to meet its

obligations and the basis for such

allegations.’’ In addition, section

338(f)(2) states: ‘‘The Commission shall

afford the satellite carrier against which

a complaint is filed under paragraph (1)

an opportunity to present data and

arguments to establish that there has

been no failure to meet its obligations

under this section.

54. Section 338(f)(3) of the

Communications Act states: ‘‘Within

120 days after the date a complain is

filed under paragraph (1), the

Commission shall determine whether

the satellite carrier has met its

obligations under subsections (b)

through (e). If the Commission

determines that the satellite carrier has

failed to meet such obligations, the

Commission shall order the satellite

carrier to make appropriate remedial

action. If the Commission determines

that the satellite carrier has fully met the

requirements of such subsections, the

Commission shall dismiss the

complaint.’’ We seek comment on the

meaning of the phrase, ‘‘appropriate

remedial action’’ for each of the relevant

subsections. We also ask whether the

payment of forfeitures for noncompliance would fall under the

‘‘appropriate remedial action’’ rubric.

55. These provisions clearly state the

remedial procedures for satellite carrier

violations of section 338, with

subsection 338(a) providing a remedy

for failure to carry and subsection 338(f)

providing specific remedies for unique

carriage violations. We seek comment

on two additional issues, however. First,

we seek comment on how the section

501(f) remedial limitation in section

338(a)(2) relates to the complaint

process set forth in section 338(f). For

example, if a satellite carrier refuses to

carry a broadcast station signal because

of a signal quality dispute, would the

broadcaster pursue its remedy in court,

at the Commission, or would both fora

be available? In addition, it appears that

a broadcaster cannot file a complaint

against a satellite carrier for noncompliance with the content-to-becarried or material degradation

provisions as the SHVIA specifically

referenced those issues in section 338(g)

rather than in (b) through (e), as

provided in section 338(f). We seek

comment on this interpretation. If this is

the correct reading of the statute, should

the Commission nonetheless include

those issues as subject to the complaint

process under its general authority to

administer the Communications Act?

IV. Procedural Matters

A. Ex Parte Rules

This proceeding will be treated as a

‘‘permit-but-disclose’’ proceeding

subject to the ‘‘permit-but disclose’’

requirements under § 1.1206(b) of the

Commission’s rules. Ex parte

presentations are permissible if

disclosed in accordance with

Commission rules, except during the

sunshine Agenda period when

presentations, ex parte or otherwise, are

generally prohibited. Persons making

oral ex parte presentations are reminded

that a memorandum summarizing a

presentation must contain a summary of

the substance of the presentation and

not merely a listing of the subjects

discussed. More than a one or two

sentence description of the views and

arguments presented is generally

required. Additional rules pertaining to

oral and written presentations are set

forth in § 1.1206(b) of the Commissions

rules.

B. Filing of Comments and Reply

Comments

56. Pursuant to applicable procedures

set forth in § 1.415 and 1.419 of the

Commission’s rules, interested parties

may file comments regarding this NPRM

on or before July 7, 2000 and reply

comments on or before July 28, 2000.

Comments may be filed using the

Commission’e Electronic Comment

Filing System (‘‘ECFS’’) or by filing

paper copies. Comments filed through

the ECFS can be sent as an electronic

file via the Internet to http://www.fcc/

e-file/ecfs.html. Generally, only one

copy of an electronic submission must

be filed. If multiple docket or

rulemaking numbers appear in the

caption of this proceeding, however,

commenters must transmit one

electronic copy of the comments to each

docket or rulemaking number

referenced in the caption. In completing

the transmittal screen, commenters

40574 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

should include their full name, Postal

service mailing address, and the

applicable docket or rulemaking

number. Parties may also submit an

electronic comment by internet e-mail.

To get filing instructions for e-mail

comments, commenters should send an

e-mail to ecfs@fcc.gov, and should

include the following words in the body

of the message, ‘‘get form your e-mail

address.’’ A sample form and directions

will be sent in reply.

57. Written comments by the public

on the proposed information collections

are due July 31, 2000. Written

comments must be submitted by the

Office of Management and Budget

(OMB) on the proposed information

collections on or before August 29,

2000. In addition to filing comments

with the Secretary, a copy of any

comments on the information

collection(s) contained herein should be

submitted to Judy Boley, Federal

Communications Commission, Room 1–

C804, 445 12th Street, SW, Washington,

DC 20554, or via the Internet to

jboley@fcc.gov and to Edward C.

Springer, OMB Desk Officer, 10236

NEOB, 725—17th Street, NW,

Washington, DC 20503 or via the

Internet to

Edward.Springer@omb.eop.gov.

58. Parties who choose to file by

paper must file an original and four

copies of each filing. If participants

want each Commissioner to receive a

personal copy of their comments, an

original plus nine copies must be filed.

If more than one docket or rulemaking

number appears in the caption of this

proceeding, commenters must submit

two additional copies for each

additional docket or rulemaking

number. All filing must be sent to the

Commission’s Secretary, Magalie Roman

Salas, Office of the Secretary, Federal

Communications Commission, 445 12th

Street, SW, Washington, DC 20554. The

Cable Services Bureau contact for this

proceeding is Ben Golant at (202) 418–

7111, TTY (202) 418–7172, or at

bgolant@fcc.gov.

59. Parties who choose to file by

paper should also submit their

comments on diskette. Parties should

submit diskettes to Ben Golant, Cable

Services Bureau, 445 12th Street NW,

Room 4–A803, Washington, DC 20554.

Such a submission should be on a 3.5-

inch diskette formatted in an IBM

compatible form using MS DOS 5.0 and

Microsoft Word, or compatible software.

The diskette should be accompanied by

a cover letter and should be submitted

in ‘‘ready only’’ mode. The diskette

should be clearly labeled with the

party’s name, proceeding (including the

lead docket number in this case, CS

Docket No. 00–96), type of pleading

(comments or reply comments), date of

submission, and the name of the

electronic file on the diskette. The label

should also include the following

phrase ‘‘Disk Copy—Not an Original.’’

Each diskette should contain only one

party’s pleadings, referable in a single

electronic file. In addition, commenters

must send diskette copies to the

Commission’s copy contractor,

International Transcription Service,

1231 20th Street, NW, Washington, DC

20036.

C. Paperwork Reduction Act Statement

and Initial Regulatory Flexibility Act

Statement

60. This NPRM contains a proposed

information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and the Office

of Management and Budget (OMB) to

comment on the information

collections(s) contained in this NPRM,

as required by the Paperwork Reduction

Act of 1995, Public Law 104–13. OMB

notification of action is due August 29,

2000. Comments should address: (a)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

OMB Control Number: 3060–xxxx

Title: Implementation of the Satellite

Home Viewer Improvement Act of 1999:

Broadcast Signal Carriage Issues.

Type of Review: New collection or

revision of existing collection.

Respondents: Business or other forprofit entities.

Number of Respondents: Satellite

carriers—xxxx.

Estimated Time Per Response: xxxx

hours.

Total Annual Burden: xxxx.

Cost to Respondents: xxxx.

Needs and Uses: Congress directed

the Commission to adopt regulations

that apply broadcast signal carriage

requirements to satellite carriers

pursuant to the changes outlined in the

Satellite Home Viewer Improvement Act

of 1999. The availability of such

information will serve the purpose of

informing the public of the method of

broadcast signal carriage.

Initial Regulatory Flexibility Analysis

a. As required by the Regulatory

Flexibility Act (‘‘RFA’’), the

Commission has prepared this Initial

Regulatory Flexibility Analysis

(‘‘IRFA’’) of the possible significant

economic impact on small entities by

the possible policies and rules that

would result from the NPRM of

Proposed Rulemaking (‘‘NPRM’’)

Written public comments are requested

on this IRFA. Comments must be

identified as responses to the IRFA and

must be filed by the deadlines for

comments on the NPRM. The

Commission will send a copy on of the

NPRM, including this IRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration. In addition,

the NPRM and IRFA (or summaries

thereof) will be published in the Federal

Register.

b. Need for, and Objectives of, the

Proposed Rules Sections 38(g) of the

Communications Act of 1934, as

amended (‘‘Act’’), directed the

Commission, within one year of

enactment of the Satellite Home Viewer

Improvement Act of 1999, to ‘‘issue

regulations implementing this section

following a rulemaking proceeding.’’

The relevant provisions concern the

carriage of all local television broadcast

station signals by satellite carriers

commencing on January 1, 2002.

c. Legal Basis. The authority for the

action proposed in this rulemaking is

contained in sections 1, 4(i) and (j),

338,614 and 615 of the Communications

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

154(i) and (j), 338, 534, and 535.

d. Description and Estimate of the

Number of Small Entities to Which the

Proposed Rules Will Apply. The IRFA

directs the Commission to provide a

description of and, where feasible, an

estimate of the number of small entities

that will be affected by the proposed

rules. The IFRA defines the term ‘‘small

entity’’ as having the same meaning as

the terms ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small business

concern’’ under section 3 of the Small

Business Act. Under the Small Business

Act, a small business concern is one

which: (1) Is independently owned and

operated; (2) is not dominant in its field

of operation; and (3) satisfies any

additional criteria established by the

Small Business Administration

(‘‘SBA’’). The rules we will adopt as a

result of the NPRM will affect television

station licensees and satellite carriers.

e. Television Stations. The proposed

rules and policies will apply to

television broadcasting licenses, and

potential licensees of television service.

The Small Business Administration

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40575

defines a television broadcasting station

that has no more than $10.5 million in

annual receipts as a small business.

Television broadcasting stations consist

of establishments primarily engaged in

broadcasting visual programs by

television to the public, except cable

and other pay television services.

Included in this industry are

commercial, religious, educational,

other television stations. Also included

are establishments primarily engaged in

television broadcasting and which

produce taped television program

materials. Separate establishments

primarily engaged in producing taped

television program material are

classified under another SIC number.

f. An element of the definition of

‘‘small business’’ is that the entity not

be dominant in its field of operation. We

are unable at this time to define or

quantify the criteria that would

establish whether a specific television

station is dominant in its field of

operation. Accordingly, the estimates

that follow of small businesses to which

rules may apply to not exclude any

television station from the definition of

a small business on this basis and are

therefore over-inclusive to that extent.

As additional element of the definition

of ‘‘small business’’ is that the entity

must be independently owned and

operated. As discussed further below,

we could not fully apply this criterion,

and our estimates of small businesses to

which rules may apply may be overexclusive to this extent. The SBA’s

general size standards are developed

taking into account these two statutory

criteria. This does not preclude us from

taking these factors into account in

making our estimates of the numbers of

small entities. There were 1,509

television stations operating in the

nation in 1992. That number has

remained fairly constant as indicated by

the approximately 1,616 operating

television broadcasting stations in the

nation as of September 1999. For 1992,

the number of television stations that

produced less than $10.0 million in

revenue was 1,155 establishments.Thus,

the new rules will affect approximately

1,616 television stations; approximately

77% per 1,230 of those stations are

considered small business. These

estimates may overstate the number of

small entities since the revenue figures

on which they are based on not include

or aggregate revenues from nontelevision affiliated companies.

g. Small MVPDs: SBA has developed

a definition of small entities for cable

and other pay television services, which

includes all such companies generating

$11 million or less in annual receipts.

This definition includes cable system

operators, direct broadcast satellite

services, multipoint distribution

systems, satellite master antenna

systems and subscription television

services. According to the Census

Bureau data from 1992, there were 1,758

total cable and other pay television

services and 1,423 had less than $11

million in revenue. We address below

service individually to provide a more

precise estimate of small entities.

h. DBS: There are four licensees of

DBS services under part 100 of the

Commission’s rules. Three of those

licensees are currently operational. Two

of the licensees which are operational

have annual revenues which may be in

excess of the threshold for a small

business. The Commission, however,

does not collect annual revenue data for

DBS and, therefore, is unable to

ascertain the number of small DBS

licensees that could be impacted by

these proposed rules. DBS service

requires a great investment of capital for

operation, and we acknowledge that

there are entrants in this field that may

not yet have generated $11 million in

annual receipts, and therefore may be

categorized as a small business, if

independently owned and operated.

i. HSD: The market for HSD service is

difficult to quantify. Indeed, the service

itself bears little resemblance to other

MVPDs. HSD owners have access to

more than 265 channels of programming

placed on C-band satellites by

programmers for receipt and

distribution by MVPDs, of which 115

channels are scrambled and

approximately 150 are unscrambled.

HSD owners can watch unscrambled

channels without paying a subscription

fee. To receive scrambled channels,

however, an HSD owner must purchase

an integrated receiver-decoder from an

equipment dealer and pay a

subscription fee to an HSD

programming package. Thus, HSD users

include: (1) Viewers who subscribe to a

packaged programming service, which

affords them access to most of the same

programming provided to subscribers of

other MVPDs; (2) viewers who receive

only non-subscription programming;

and (3) viewers who receive satellite

programming services illegally without

subscribing. Because scrambled

packages of programming are most

specifically intended for retail

consumers, these are the services most

relevant to this discussion.

j. According to the most recently

available information, there are

approximately 30 program packagers

nationwide offering packages of

scrambled programming to retail

consumers. These program packages

provide subscriptions to approximately

2,314,900 subscribers nationwide. This

is an average of about 77,163 subscribers

per program package. This is

substantially smaller than the 400,000

subscribers used in the commission’s

definition of a small MSO. Furthermore,

because this is an average, it is likely

that some program packagers may be

substantially smaller.

k. Description of Projected Reporting,

Recordkeeping and other Compliance

Requirements. In order to implement

the Satellite Home Viewer Improvement

Act of 1999, the Commission has

proposed to add new rules. We have yet

to determine whether to amend existing

provisions of the Commission’s rules, or

to adopt some other regulatory

framework or procedures concerning

satellite broadcast signal carriage. There

are certain compliance requirements

involving the satellite broadcast signal

carriage process. Foremost is satellite

carriers will have to carry all local

television stations in a given market if

it decides to carry at least one signal in

a market. There will be costs relating to

the time and effort involved in carrying

all local broadcast signals.

l. In terms of recordkeeping, entities

most will likely have to keep a record

of their election status and entities may

be required to maintain such

information within their business

environment and may also have to file

such information with the Commission.

m. Steps Taken to Minimize

Significant Impact on Small Entities,

and Significant Alternatives Considered.

The RFA requires an agency to describe

any significant alternatives that it has

considered in reaching its proposed

approach, which may include the

following four alternatives: (1) The

establishment of differing compliance or

reporting requirements or timetables

that take into account the resources

available to small entities; (2) the

clarification, consolidation, or

simplification of compliance or

reporting requirements under the rule

for small entities; (3) the use of

performance, rather than design,

standards; and (4) an exemption from

coverage of the rule, or any part thereof,

for small entities.

n. As indicated, the NPRM proposes

to implement certain aspects of the

Satellite Home Viewer Improvement Act

of 1999. Among other things, the new

legislation requires satellite carriers to

carry all local television broadcast

stations in a market, if it carries any

local market television stations, by

January 1, 2002. This document also

discusses implementing regulations

relating to the scope and substance of

local broadcast signal carriage by

satellite carriers. This legislation applies

40576 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

to small entities and large entities

equally. At this time, small entities are

not treated differently and might not be

impacted differently, but we seek

comment.

o. Federal Rules Which Duplicate,

Overlap, or Conflict with the

Commission’s Proposals. None.

61. Pursuant to section 1008 of the

Satellite Home Viewer Improvement Act

of 1999, notice is hereby given of the

proposals described in this NPRM.

62. The Consumer Information

Bureau, Reference Information Center,

shall send a copy of this NPRM,

including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–16185 Filed 6–29–00; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG12

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for the Arkansas River

Basin Population of the Arkansas

River Shiner

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; availability of

supplementary information.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose

designation of critical habitat pursuant

to the Endangered Species Act of 1973,

as amended (Act), for the Arkansas

River Basin population of the Arkansas

River shiner (Notropis girardi). This

proposal is made in response to a court

settlement in Center for Biological

Diversity v. Bruce Babbitt, et al. C99–

3202 SC, directing us to submit for

publication in the Federal Register a

proposal to withdraw the existing ‘‘not

prudent’’ critical habitat determination

together with a new proposed critical

habitat determination for the Arkansas

River Basin population of the Arkansas

River shiner by June 23, 2000, and to

invite public comment for 60 days. We

are proposing as critical habitat a total

of approximately 1,866 kilometers

(1,160 miles) of rivers and 91.4 meters

(300 feet) of their adjacent riparian

zones. Proposed critical habitat includes

portions of the Arkansas River in

Kansas, the Cimarron River in Kansas

and Oklahoma, the Beaver/North

Canadian River in Oklahoma, and the

Canadian/South Canadian River in New

Mexico, Texas, and Oklahoma. If this

proposed rule is finalized, Federal

agencies proposing actions that may

affect the areas designated as critical

habitat must consult with us on the

effects of the proposed actions, pursuant

to section 7(a)(2) of the Act.

DATES: We will consider all comments

on the proposed rule and the draft

environmental assessment received

from interested parties by August 29,

2000. We will hold public hearings in

Amarillo, Texas, on August 7, 2000; in

Oklahoma City, Oklahoma, on August 9,

2000; and in Pratt, Kansas, on August

11, 2000. We will start all hearings

promptly at 3:00 p.m. and end them no

later than 5:30 p.m. We must publish a

final determination on this proposal by

March 14, 2001, provided we determine

that we do not need to prepare an

Environmental Impact Statement to

comply with NEPA.

ADDRESSES: 1. Send your comments on

the proposed rule and draft

environmental assessment to the U.S.

Fish and Wildlife Service, Oklahoma

Ecological Services Office, 222 S.

Houston, Suite A, Tulsa, Oklahoma

74127–8909.

2. The complete file for this proposed

rule will be available for public

inspection, by appointment, during

normal business hours at the above

address. The draft environmental

assessment is available by writing to the

above address, or by connecting to our

web site at http://ifw2es.fws.gov/

oklahoma/. The draft economic analysis

will be available during the public

comment period. We will specify its

availability in local newspapers and

through a notice in the Federal Register.

3. We will hold the Amarillo hearing

at Texas A&M University Agricultural

Research and Extension Center, 6500

Amarillo Boulevard West, Amarillo,

Texas. We will hold the Oklahoma City

hearing at the Conservation Education

Center Auditorium, Oklahoma City Zoo,

2101 NE 50th, Oklahoma City,

Oklahoma. We will hold the Pratt

hearing at the Carpenter Auditorium,

Pratt Community College, 348 NE State

Road 61, Pratt, Kansas.

FOR FURTHER INFORMATION CONTACT: Ken

Collins, Oklahoma Ecological Services

Office, at the above address; telephone

918/581–7458, facsimile 918/581–7467.

SUPPLEMENTARY INFORMATION:

Background

The Arkansas River shiner is a small,

robust minnow with a small, dorsally

flattened head, rounded snout, and

small subterminal mouth (located near

the head end of the body but not at the

extreme end) (Miller and Robison 1973,

Robison and Buchanan 1988). Dorsal

(back) coloration tends to be light tan,

with silvery sides gradually grading to

white on the belly. Adults attain a

maximum length of 51 millimeters (2

inches). Dorsal, anal, and pelvic fins all

have eight rays, and there is a small,

black chevron usually present at the

base of the caudal fin.

The Arkansas River shiner was first

described based on fish collection in

1926 from the Cimarron River northwest

of Kenton, Cimarron County, Oklahoma

(Hubbs and Ortenburger 1929).

Historically, the Arkansas River shiner

was widespread and abundant

throughout the western portion of the

Arkansas River basin in Kansas (KS),

New Mexico (NM), Oklahoma (OK), and

Texas (TX). This species has

disappeared from more than 80 percent

of its historical range and is now almost

entirely restricted to about 820

kilometers (km) (508 miles (mi)) of the

Canadian River in OK, TX, and NM

(Larson et al. 1991; Pigg 1991). An

extremely small population may still

persist in the Cimarron River in OK and

KS, based on the collection of only nine

individuals since 1985. A remnant

population also may persist in the

Beaver/North Canadian River of OK,

based on collection of only four

individuals since 1990 (Larson et al.

1991; Jimmie Pigg, Oklahoma

Department of Environmental Quality,

pers. comm., 1993).

In 1999, six Arkansas River shiner

were collected from the Arkansas River

in Wichita, KS, at two locations—four

from near the 47th Street South bridge

and two near the Kansas State Highway

96 crossing (Vernon Tabor, U.S. Fish

and Wildlife Service, Manhattan, KS,

pers. comm., 2000). Prior to this

collection, the Arkansas River shiner

was believed to be extirpated from the

Arkansas River. An accurate assessment

of Arkansas River shiner populations in

the Arkansas, Cimarron, and Beaver/

North Canadian rivers is difficult

because the populations may be so

small that individuals may escape

detection during routine surveys. The

small size of Arkansas River shiner

aggregations in these three rivers

significantly reduces the likelihood that

these populations will persist over

evolutionarily significant timescales in

the absence of intensive conservation

efforts.