54948 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

1The petition and the attachments may be viewed 

on the Copyright Office website at: http:// 

copyright.gov/docs/cable/digitalsignals.pdf and 

http://copyright.gov/docs/cable/digitalsignalsattachments.pdf. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.1D, which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, we 

believe that this rule should be 

categorically excluded, under figure 2–

1, paragraph (32)(e), of the Instruction, 

from further environmental 

documentation. Under figure 2–1, 

paragraph (32)(e), of the Instruction, an 

‘‘Environmental Determination Check 

List’’ and a ‘‘Categorical Exclusion 

Determination’’ are not required for this 

rule. However, comments on this 

section still be considered before the 

final rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039. 

2. In § 117.465, paragraphs (b), (c), (d), 

(e), and (f) are redesignated paragraphs 

(c), (d), (e), (f) and (g). A new paragraph 

(b) is added to read as follows: 

§ 117.465 Lafourche Bayou. 

* * * * * 

(b) The draw of the Valentine bridge, 

mile 44.7 at Valentine, shall open on 

signal; except that, from 6 p.m. to 6 

a.m., the draw shall open on signal if at 

least four hours advance notification is 

given. During the advance notification 

period, the draw shall open on less than 

four hours notice for an emergency and 

shall open on demand should a 

temporary surge in water traffic occur. 

* * * * * 

Dated: September 10, 2006. 

Joel R. Whitehead, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eighth Coast Guard District. 

[FR Doc. E6–15561 Filed 9–19–06; 8:45 am] 

BILLING CODE 4910–15–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2005–5] 

Retransmission of Digital Broadcast 

Signals Pursuant to the Cable 

Statutory License 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of Inquiry. 

SUMMARY: The Copyright Office is 

seeking comment on copyright issues 

associated with the secondary 

transmission of digital television 

broadcast signals by cable operators 

under the Copyright Act. 

DATES: Written comments are due 

November 6, 2006. Reply comments are 

due December 4, 2006. September 20, 

2006. 

ADDRESSES: If hand delivered by a 

private party, an original and five copies 

of a comment or reply comment should 

be brought to Library of Congress, U.S. 

Copyright Office, 2221 S. Clark Street, 

11th Floor, Arlington, VA. 22202, 

between 8:30 a.m. and 5 p.m. The 

envelope should be addressed as 

follows: Office of the General Counsel, 

U.S. Copyright Office. 

If delivered by a commercial courier, 

an original and five copies of a comment 

or reply comment must be delivered to 

the Congressional Courier Acceptance 

Site (‘‘CCAS’’) located at 2nd and D 

Streets, NE, Washington, D.C. between 

8:30 a.m. and 4 p.m. The envelope 

should be addressed as follows: Office 

of the General Counsel, U.S. Copyright 

Office, LM 430, James Madison 

Building, 101 Independence Avenue, 

SE, Washington, DC. Please note that 

CCAS will not accept delivery by means 

of overnight delivery services such as 

Federal Express, United Parcel Service 

or DHL. 

If sent by mail (including overnight 

delivery using U.S. Postal Service 

Express Mail), an original and five 

copies of a comment or reply comment 

should be addressed to U.S. Copyright 

Office, Copyright GC/I&R, P.O. Box 

70400, Southwest Station, Washington, 

DC 20024. 

FOR FURTHER INFORMATION CONTACT: Ben 

Golant, Senior Attorney, and Tanya M. 

Sandros, Associate General Counsel, 

Copyright GC/I&R, P.O. Box 70400, 

Southwest Station, Washington, DC 

20024. Telephone: (202) 707–8380. 

Telefax: (202) 707–8366. 

SUPPLEMENTARY INFORMATION: Section 

111 of the Copyright Act (‘‘Act’’), title 

17 of the United States Code (‘‘Section 

111’’) provides cable systems with a 

statutory license to retransmit a 

performance or display of a work 

embodied in a primary transmission 

made by a television station licensed by 

the Federal Communications 

Commission (‘‘FCC’’). Cable systems 

that retransmit broadcast signals in 

accordance with the provisions 

governing the statutory license set forth 

in Section 111 are required to pay 

royalty fees to the Copyright Office. 

Payments made under the cable 

statutory license are remitted semi–

annually to the Copyright Office which 

invests the royalties in United States 

Treasury securities pending distribution 

of these funds to those copyright owners 

who are entitled to receive a share of the 

fees. 

The Motion Picture Association of 

America, Inc. (‘‘MPAA’’), its member 

companies and other producers and/or 

distributors of movies, series and 

specials broadcast by television stations 

(‘‘Program Suppliers’’) and the Office of 

the Commissioner of Baseball, the 

National Basketball Association, the 

National Football League, the National 

Collegiate Athletic Association, the 

National Hockey League and the 

Women’s National Basketball 

Association (‘‘Joint Sports Claimants’’ or 

‘‘JSC’’) (collectively, ‘‘Copyright 

Owners’’) have requested that the 

Copyright Office commence a 

rulemaking to clarify the applicability of 

existing Copyright Office rules to the 

retransmission of digital broadcast 

signals under the statutory license set 

forth in Section 111 of the Copyright 

Act. 

The regulatory actions requested by 

Copyright Owners are properly within 

the authority of the Copyright Office. 17 

U.S.C.111(d) and 702. However, the 

retransmission of digital broadcast 

signals under Section 111 raises many 

issues, some of which require further 

elucidation before amending Section 

201.17 of title 37 of the Code of Federal 

Regulations (‘‘CFR’’ or ‘‘Section 

201.17’’) and the associated cable 

Statement of Account forms (‘‘SOAs’’). 

We therefore initiate this Notice of 

Inquiry (‘‘NOI’’) to address the matters 

raised by the Copyright Owners’

Petition for Rulemaking1and to seek 

comment on other possible changes to 

the Copyright Office’s existing rules and 

cable SOA forms. 


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2Recently, Congress established February 17, 

2009, as the date for the completion of the 

transition from analog to digital broadcast 

television. See Pub. L. No. 109-171, Section 3002(a), 

120 Stat. 4 (2006). 

3As of October 2005, more than 1,537 television 

stations nationwide were broadcasting in a digital 

format. See Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video 

Programming, 21 FCC Rcd 2503 (2006) (‘‘12th 

Annual Video Competition Report’’) at ¶95. 

4Section 111 stands in contrast to Section 119, 

the satellite statutory license, which Congress has 

amended to cover satellite carrier retransmission of 

digital broadcast signals. See Satellite Home Viewer 

Extension and Reauthorization Act of 2004, Pub. L. 

No. 108–447, Title IX, Section 103, 118 Stat. 3393 

(2004) (‘‘SHVERA’’). The SHVERA contains 

separate provisions concerning the royalties to be 

paid for the retransmission of digital broadcast 

signals by satellite carriers and it affords copyright 

owners and satellite carriers the opportunity to 

negotiate royalty rates for digital broadcast signals 

separate from analog signals. It also contains special 

rules, exceptions, and limitations regarding the 

carriage of digital signals, including provisions on 

the use of one satellite dish to receive all such 

signals, which subscribers are eligible to receive 

distant digital signals, and how to test the technical 

availability of such signals. 

5Section 201.17(b)(5) of the Copyright Office’s 

rules states that the terms primary transmission, 

secondary transmission, local service area of a 

primary transmitter, distant signal equivalent, 

network station, independent station, and 

noncommercial educational station have the 

meanings set forth in Section 111 of the Act. 

Background 

Digital television technology enables a 

television broadcast station to provide, 

over–the–air, an array of quality high–

definition digital television signals 

(‘‘HDTV’’), standard–definition digital 

television signals (‘‘SDTV’’), and many 

different types of ancillary programming 

and data services. In 1997, the FCC 

adopted its initial rules governing the 

transition of the broadcast television 

industry from analog to digital 

technology,2 and authorized each 

individual television station licensee to 

broadcast in a digital format. Advanced 

Television Systems and Their Impact on 

Existing Television Broadcast Service, 

12 FCC Rcd. 12809 (1997). Since that 

time, hundreds of television stations 

have been transmitting both analog and 

digital signals from their broadcast 

facilities,3 and television stations may 

choose to broadcast in a ‘‘digital–only’’

mode of operations, pursuant to FCC 

authorization. See, e.g., Second Periodic 

Review of the Commission’s Rules and 

Policies Affecting the Conversion to 

Digital Television, 19 FCC Rcd 18279, 

18321–22 (2004). Moreover, a 

significant number of cable operators 

have agreed to voluntarily carry both 

analog and digital broadcast signals 

from the same broadcast licensee. See 

http://www.ncta.com/ 

IssueBrief.aspx?contentId=2716&view=3 

(Cable operators voluntarily carrying at 

least 500 digital television station 

signals). 

It is this trend toward carriage of 

digital signals, often simultaneously 

with the transmission of an analog 

counterpart, that has prompted 

Copyright Owners to seek clarification 

of the rules governing a cable system’s 

carriage of broadcast signals under 

Section 111. However, before proposing 

new rules, the Copyright Office seeks 

comment on the proposed changes and 

a number of associated issues related to 

the carriage of digital signals. 

Applicability of Section 111 to Digital 

Broadcast Signals 

Copyright Owners request that the 

Copyright Office address the 

recordkeeping and royalty calculation 

issues that arise in connection with the 

carriage of digital broadcast signals by 

cable operators, provided that the 

Copyright Office is of the view that 

Section 111 covers retransmissions of 

digital broadcast signals. Petition at 5. 

In 1976, Congress amended the 

Copyright Act by adding, inter alia, the 

cable statutory license. In so doing, it 

explained the rationale supporting the 

addition of Section 111. According to 

the legislative history accompanying 

Section 111 of the Act, Congress 

recognized that ‘‘cable systems are 

commercial enterprises whose basic 

retransmission operations are based on 

the carriage of copyrighted program 

material and that copyright royalties 

should be paid by cable operators to the 

creators of such programs.’’ H.R. Rep. 

No. 94–1476, 94th Cong., 2d Sess. at 89 

(1976). It also recognized that ‘‘it would 

be impractical and unduly burdensome 

to require every cable system to 

negotiate with every copyright owner 

whose work was retransmitted by a 

cable system.’’ Id. Consequently, 

Congress established a statutory 

copyright license for the retransmission 

of those over–the–air broadcast signals 

that a cable system is authorized to 

carry pursuant to the FCC regulations 

then in place. 

In structuring the license, Congress 

made a distinction between primary and 

secondary transmissions and local 

versus distant ones in order to identify 

which transmissions are subject to the 

statutory license and at what rate. It did 

not define a broadcast transmission or 

identify whether a transmission was 

subject to the statutory license on the 

basis of the signal’s technical 

characteristics (i.e., an analog signal vs. 

a digital signal) nor was there a need to 

make such distinctions because all 

transmissions at that time were 

broadcast in an analog format.4

Specifically, Section 111(f) of the Act 

broadly defines ‘‘primary transmission’’

as ‘‘a transmission made to the public 

by the transmitting facility whose 

signals are being received and further 

transmitted by the secondary 

transmission service, regardless of 

where or when the performance or 

display was first transmitted,’’ and a 

‘‘secondary transmission’’ as ‘‘the 

further transmitting of a primary 

transmission simultaneously with the 

primary transmission, or 

nonsimultaneously with the primary 

transmission [under a narrowly 

prescribed set of circumstances]...’’ It is 

these secondary retransmissions to the 

public, where the carriage of the signals 

comprising the secondary transmission 

is permissible under the rules, 

regulations, or authorizations of the 

FCC, which are subject to statutory 

licensing. 

Such transmissions are then 

categorized as local or distant based 

upon the statutory definition of the 

‘‘local service area of the primary 

transmitter,’’which ‘‘in the case of a 

television broadcast station, comprises 

the area in which such station is 

entitled to insist upon its signal being 

retransmitted by a cable system 

pursuant to FCC requirements in effect 

on April 15, 1976, or such station’s 

television market as defined in section 

76.55(e) of the FCC’s rules (as in effect 

on September 18, 1993), or any 

modifications to such television market 

made, on or after September 18, 1993, 

pursuant to sections 76.55(e) or 76.59 of 

the FCC’s rules . . . .’’5

As seen above, there is nothing in the 

Act, its legislative history, or the 

Copyright Office’s implementing rules, 

which limits the cable statutory license 

to analog broadcast signals. Instead, the 

cited provisions broadly state that the 

statutory license applies to any 

broadcast stations licensed by the FCC 

or any of the signals transmitted by such 

stations. Thus, use of the statutory 

license for the retransmission of a 

digital signal would not be precluded 

merely because the technological 

characteristics of a digital signal differ 

from the traditional analog signal 

format. See Consumer Electronics 

Association v. FCC, 347 F.3d 291(D.C. 

Cir. 2003) (FCC had authority to issue 

order requiring that 13–inch and larger 

televisions include tuners capable of 

receiving and decoding digital 

television signals under plain language 

of the 1962 All Channel Receiver Act 

(‘‘ACRA’’), even though ACRA’s original 

intent was to promote and support the 

viability of analog UHF broadcast 

stations). 


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6For example, WHDT–TV–DT, Stuart, Florida, 

operates as a digital facility but never had a paired 

analog station. See Petition for Declaratory Ruling 

that Digital Broadcast Stations Have Mandatory 

Carriage Rights, 16 FCC Rcd 2692 (2001). 7As a point of reference, the Copyright Office 

notes that digital television station’s coverage areas 

are measured by noise limited service contours 

under current FCC rules, not Grade B contours as 

is the case for analog stations, see 47 CFR 76.54(c). 

8Cable operators are not required by the FCC to 

carry both the analog and digital signals of local 

broadcast stations. See Carriage of Digital 

Television Broadcast Signals, 20 FCC Rcd 4516 

(2005). 

9 Gross receipts for the basic service of providing 

secondary transmissions of primary broadcast 

transmitters include the full amount of monthly (or 

other periodic) service fees for any and all services 

or tiers of services which include one or more 

secondary transmissions of television or radio 

broadcast signals, for additional set fees, and for 

converter fees. See 37 CFR 201.17(b)(1). 

10We note, for example, that Metrocast 

Cablevision of New Hampshire has assigned a 

single value for a number of television stations 

transmitting both an analog and digital signal. 

Metrocast Cablevision SA3 Long Form, 2005/1 

period, Cable ID # 7438 (as assigned by the 

Licensing Division of the Copyright Office). 

11The FCC has decided that if a digital 

broadcaster elects to divide its digital spectrum into 

several separate, independent and unrelated 

multicast programming streams, only one of these 

streams, the ‘‘primary’’ digital video stream, is 

entitled to mandatory carriage under the 

Communications Act. See Carriage of Digital 

Television Broadcast Signals, 16 FCC Rcd 2598 

Even so, questions remain with regard 

to the application and operation of the 

cable statutory license structure in the 

digital television context. For this 

reason, we are seeking comment on the 

issues raised by the Copyright Owners’

Petition and on additional issues raised 

herein. 

Digital Broadcast Signal 

Retransmission Issues 

Retransmission of a digital television 

broadcast signal. Today, television 

broadcasters may choose to transmit 

their signals in either a digital format or 

an analog format, or simultaneously in 

both formats. Some stations have also 

chosen to make the initial transmission 

of a new station signal solely in the 

digital format.6 Carriage of digital 

signals by a cable system under the 

Section 111 license, however, requires a 

review of the current regulations and 

reporting practices as developed for 

analog signals to determine if these 

practices need to be readjusted in order 

to ensure accurate and complete 

reporting under the provisions of 

Section 111. 

First, in the case where the digital 

signal has or has had an analog 

counterpart, would the digital broadcast 

station’s television market for Section 

111 purposes be the same as the 

broadcast station’s television market for 

the analog signal? And if the analog 

signal is considered distant, can the 

digital counterpart ever be considered 

local, or vice versa? Second, how should 

the Copyright Office determine whether 

a distant digital broadcast signal is 

permitted or non–permitted for Distant 

Signal Equivalent (‘‘DSE’’) purposes? 

Third, how does the Copyright Office 

determine the basis of carriage for a 

distant digital signal (i.e. market quotas, 

grandfathered status, etc.)? Fourth, what 

DSE values (for network, educational, 

independent) should be assigned to 

digital signals? Fifth, how would the 

Copyright Office determine the coverage 

area of a broadcast licensee’s digital 

television transmission for cable 

copyright purposes, especially in the 

context of significantly viewed signals?7

Would the resolution of these 

questions be the same in the case where 

the signal never had an analog 

counterpart? The Copyright Office seeks 

answers to these questions concerning 

the carriage of a digital signal and will 

consider any related issues identified by 

the commenters. 

Simultaneous Retransmission of 

Analog and Digital Broadcast Signals. 

Currently, hundreds of television 

stations are broadcasting in both an 

analog and digital format. For example, 

WRC in Washington, D.C., broadcasts 

both an analog signal (Channel 4, WRC–

TV) and a digital signal (Channel 48, 

WRC–DT). See http://www.nbc4.com/ 

tvlistings/index.html. 

Copyright owners acknowledge that 

some cable systems are separately 

reporting carriage of digital and analog 

broadcast signals and, in their view, 

doing so appropriately.8 However, they 

state that it is unclear whether all cable 

systems are identifying carriage of both 

types of signals or are doing so in a 

consistent and uniform manner. 

According to Copyright Owners, the 

lack of uniformity in reporting the 

carriage of both analog and digital 

broadcast signals necessitates 

clarification of the Copyright Office’s 

existing regulations. 

Specifically, they urge the Copyright 

Office to clarify that, if a cable operator 

chooses to carry a television broadcast 

station’s analog and digital signals, that 

cable operator should identify those 

signals separately in Space G on its SOA 

(e.g., as WRC–TV on channel 4 and 

WRC–DT on channel 48). Copyright 

Owners assert that separate designation 

provides notice that a cable operator is 

carrying digital signals and may be 

charging subscribers additional fees that 

should be included in the gross receipts 

calculation.9 Moreover, in the context of 

distant signal carriage, Copyright 

Owners argue that separate reporting of 

both the digital and the analog signal is 

necessary because such carriage would 

generate an additional royalty 

obligation. 

For purposes of ascertaining the 

royalties owed, Copyright Owners 

suggest that where the programming is 

identical, the DSE values for carriage of 

a distant analog and a digital signal 

would be the same. Alternatively, if the 

programming on the two signals is 

different (e.g., where the digital signal 

does not carry network programming), 

they assert that the DSE values may be 

different and should be computed 

separately in accordance with the 

provisions of Section 111(f). But in 

either case, Copyright Owners imply 

that the cable operator would still have 

to pay for each signal. 

Must a cable operator pay separately 

for carriage of a digital signal and an 

analog signal where the signals carry 

identical programming to the subscriber, 

or does the statutory license allow for a 

single payment for the delivery of the 

same programming albeit in two 

different formats?10 Would the 

programming be considered ‘‘different’’

if the digital signal included only a 

subset of the programming from the 

analog signal or if the digital signal was 

broadcast in a high definition format? 

Are cable systems offering such 

combinations to subscribers and is the 

Copyright Owners’ method of valuation 

appropriate? 

We ask commenters to provide 

examples of where cable operators are 

retransmitting the analog and digital 

signals of the same licensee, but the 

programming on the primary (or main) 

digital signal is different than that of the 

analog signal. We also seek comment on 

how a cable operator should report the 

carriage of a digital signal that has been 

downconverted to an analog signal (at 

the cable operator’s headend) so that 

subscribers without a digital set top box 

are able to view such signals. 

Retransmission of Digital Multicast 

Streams. Multicasting is the process by 

which multiple streams of digital 

television programming are transmitted 

at the same time over a single broadcast 

channel. The eleven largest broadcast 

groups and their affiliates broadcast 

more than 937,000 hours of multicast 

programming during the month of 

October 2005. This multicast 

programming included news, weather, 

sports, religious material, music videos 

and coverage of local musicians and 

concerts, as well as foreign language 

programming (especially, but not 

limited to, Spanish programming). See 

12th Annual Video Competition Report, 

21 FCC Rcd. 2503 at ¶101.11


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(2001). In any event, cable systems have voluntarily 

agreed to carry multicast digital programming 

streams from broadcast stations across the country. 

See Carriage of Digital Television Broadcast 

Signals, 20 FCC Rcd 4516 at ¶ 38 (2005). 

12With regard to the mandatory carriage of digital 

program-related material, the FCC decided to use 

the same factors enumerated in WGN, that are used 

in the analog context, to determine what material 

is considered program-related for must carry 

purposes, at least for the time being. See Carriage 

of Digital Television Broadcast Signals, 16 FCC Rcd 

at 2624 (2001); but see id. at 2651 (FCC seeking 

further comment ‘‘on the proper scope of programrelated in the digital context.’’) 

For example, Station WRAL in 

Raleigh, North Carolina, transmits its 

analog signal (WRAL–TV) on channel 5 

and its digital signal (WRAL–DT) on 

channel 5.1, which simulcasts (in some 

cases in HDTV) certain of the 

programming on channel 5. It also 

transmits a 24–hour news channel 

(WRAL–NC) on channel 5.2. And, it 

transmits locally–produced 

programming on channels 5.3 (WRAL–

DT3) and 5.4 (WRAL–DT4). See http:// 

www.wral.com/wralinfo/index.html. 

Copyright Owners ask the Copyright 

Office to clarify that a cable operator 

carrying multicast signals must identify 

those signals separately in Space G on 

its SOA form. They state that a cable 

operator choosing to carry all of the 

digital channels transmitted by WRAL, 

for example, should state in Space G of 

its SOA that it carried WRAL–DT on 

channel 5.1; WRAL–NC on channel 5.2; 

WRAL–DT3 on channel 5.3; and 

WRAL–DT4 on channel 5.4. Copyright 

Owners assert that separate reporting is 

necessary in the case of carriage of 

multiple digital channels, where the 

copyright owners of the programming 

on such separate channels may be 

wholly different from the copyright 

owners of the programming on the 

primary digital video stream. We seek 

comment on the Copyright Owners’

suggestions. 

Copyright Owners also urge the 

Copyright Office to require separate 

calculation of DSE values and royalty 

payments for carriage of multiple 

streams of distant digital signals. If, for 

example, a cable operator chose to 

import two streams from a particular 

digital multicast television signal, one of 

which contained network programming 

and the other of which did not, that 

operator should be considered as 

importing 1.25 DSEs. We seek comment 

on Copyright Owners’ proposals. 

Retransmission of Datacast Streams. 

DTV technology allows television 

stations to use part of their digital 

bandwidth for new ancillary 

programming and data services. These 

services can be provided simultaneously 

with high definition or standard 

definition DTV programs, and can 

deliver virtually any type of data, audio 

or video, including text, graphics, 

software, web pages, video–on–demand, 

and niche programming. See 12th 

Annual Video Competition Report, 21 

FCC Rcd. 2503 at ¶105. Some of the 

content produced and distributed by the 

television station may be related to the 

program being broadcast (i.e., 

‘‘program–related material’’). For 

example, a television station may 

transmit interactive sports statistics 

along with the local major league 

baseball game being digitally broadcast. 

Copyright Owners did not directly 

discuss the retransmission of digital 

program–related material under Section 

111 in their Petition for Rulemaking. 

However, they did suggest that if one 

digital broadcast stream contained only 

material that was part of the copyrighted 

programming on the other digital 

broadcast stream, the cable operator 

would report only a single DSE (or .25 

DSE if the stream qualified as a 

‘‘network station’’ as defined in the 

Copyright Act). Copyright Owners cite 

to WGN v. United Video, 693 F.2d 622 

(7th Cir. 1982) in support of their 

proposal. In WGN, the 7th Circuit held 

that additional material broadcast with 

a television program that ‘‘is intended to 

be viewed with and as an integral 

component of that program’’ is covered 

by the copyright on the television 

program. 

We seek comment on Copyright 

Owners’ recommendation. We also ask 

whether the 1982 WGN case, decided in 

an analog context, is still good 

precedent for our purposes here.12 In 

other words, have time and technology 

eroded the precedential value of the 7th 

Circuit’s decision? 

We note that satellite carriers and 

copyright owners have agreed that no 

separate copyright royalty payment 

would be due for any program–related 

material contained on the digital 

broadcast stream within the meaning of 

WGN. See Rate Adjustment for the 

Satellite Carrier Compulsory License, 70 

FR 39178, 39179 (July 7, 2005). Should 

we consider this agreement as 

authoritative guidance in the Section 

111 context? 

Retransmission of Digital Audio 

Broadcast Signals. Like television 

station licensees, terrestrial radio station 

licensees are also converting to digital 

broadcasting. Using in band on channel 

(‘‘IBOC’’) technology, radio stations 

have initiated a new service known as 

digital audio broadcasting (‘‘DAB’’). 

DAB provides for enhanced sound 

fidelity and improved reception while 

giving radio stations the capability to 

multicast and offer new data services to 

the public (such as station, song and 

artist identification, stock and news 

information, as well as local traffic and 

weather bulletins). This technology 

allows broadcasters to use their current 

radio spectrum to transmit AM and FM 

analog signals simultaneously with new 

higher quality digital signals. IBOC 

technology makes use of the existing 

AM and FM bands (In Band) by adding 

digital carriers to a radio station’s analog 

signal, allowing broadcasters to transmit 

digitally on their existing channel 

assignments (On Channel). There is, 

however, no government mandated 

transition for radio station licensees as 

there is for television station licensees. 

See generally, Digital Audio 

Broadcasting Systems and Their Impact 

on the Terrestrial Radio Broadcast 

Service, 19 FCC Rcd 7505 (2004). 

Nevertheless, we seek comment on 

what changes in our rules and the SOAs 

are necessary to accommodate the 

secondary transmission of digital audio 

signals by cable systems. How should 

cable systems report the retransmission 

of digital audio multicast streams? Will 

cable subscribers need specialized 

equipment or set top boxes to receive 

these digital radio signals? If so, how 

would this affect a cable operator’s gross 

receipts calculations? 

Marketing of Digital Broadcast Signals 

and the Cable Statutory License 

The Copyright Office’s regulations 

require reporting of the gross receipts, as 

defined in Section 201.17(b), for any tier 

of service that must be purchased in 

order to access the tier which contains 

the broadcast signals. Compulsory 

License for Cable Systems: Reporting of 

Gross Receipts, 53 FR 2493, 2495 (Jan. 

28, 1988); see also 37 CFR 201.17(b)(1); 

Form SA 1–2, General Instructions, p. v; 

Form SA 3, General Instructions, p. vi. 

Copyright Owners state that cable 

operators often carry digital broadcast 

signals on a digital service tier, but for 

subscribers to access such signals, they 

must purchase other tiers of service. 

They note, for example, that Time 

Warner’s Lincoln, Nebraska cable 

system offers several digital broadcast 

signals in a package as a ‘‘free’’ service. 

However, in order to receive this ‘‘free’’

package, a subscriber must not only rent 

an HDTV set top box for $7.65 per 

month, the subscriber must also 

purchase the system’s ‘‘digital tier,’’

which contains many non–broadcast 

digital programming services, for an 

additional $6.95 per month. 

Accordingly, Copyright Owners 

request that the Copyright Office clarify 

that a cable operator must include in its 

gross receipts any revenues from the 

tiers of service consumers must 


rwilkins on PROD1PC63 with PROPOSAL
54952 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

purchase in order to receive HDTV or 

other digital broadcast signals–

notwithstanding that the operator may 

market its offering of such digital signals 

as ‘‘free.’’ Copyright Owners also 

recommend that the Copyright Office 

include in Space E of the cable SOAs a 

specific reference to ‘‘Digital and HDTV 

Tiers,’’ and explain that such reference 

includes all service tiers that a 

consumer must purchase in order to 

receive digital broadcast signals. We 

seek comment on these proposals. We 

also ask commenters to submit other 

examples of cable industry marketing 

practices that require subscribers to 

purchase tiers, services, or gateways, in 

order to access digital broadcast signals. 

Digital Equipment and Reception Issues 

Under Section 111 

Digital Set Top Boxes. Any fees 

charged for converters necessary to 

receive broadcast signals must be 

included in the cable system’s gross 

receipts used to calculate its Section 111 

royalty payment. 37 CFR 201.17(b)(1); 

Form SA 1–2, General Instructions, p. v; 

Form SA 3, General Instructions, p. vi. 

As the Copyright Office stated nearly 

thirty years ago: ‘‘In either case, the 

subscriber must have a converter to 

receive, in usable form, the signals of all 

of the television stations that constitute 

the cable system’s ‘basic service of 

providing secondary transmissions of 

primary broadcast transmitters.’

Subscriber fees associated with 

converters, therefore, are clearly 

amounts paid for the system’s secondary 

transmission service and are included in 

that system’s ‘gross receipts.’’’

Compulsory License for Cable Systems, 

43 FR 27827–27828 (June 27, 1978). 

Currently, cable subscribers are 

generally unable to receive digital 

(including broadcast) signals offered by 

their cable operator unless they obtain 

a special converter, i.e. digital set top 

box, regardless of whether those signals 

are available as part of the lowest–

priced basic service. Copyright Owners 

assert that some cable operators may not 

be including set top box fees in their 

calculation of gross receipts. They note, 

for example, that Time Warner’s 

Lincoln, Nebraska system lists its ‘‘HD 

Converter’’ fee (as well as its ‘‘basic 

converter’’ fee) in Block 2 of Space F of 

its 2004–1 SOA (labeled as ‘‘Services 

Other Than Secondary Transmission 

Rates’’) and not in Block 1 of Space E 

(labeled as ‘‘Secondary Transmission 

Service: Subscribers and Rates’’). 

Copyright Owners argue that only fees 

identified in Space E are included in the 

cable operator’s calculation of gross 

receipts (and thus in the calculation of 

the cable operator’s Section 111 

royalty). Copyright Owners assert that 

Time Warner’s Nebraska cable system (if 

it were carrying digital broadcast 

signals) may have been incorrectly 

reporting its revenues from the carriage 

of retransmitted broadcast signals. 

Copyright Owners are not suggesting 

that all cable operators are failing to 

include digital converter fees in their 

gross receipts. They note, for example, 

the 2004–1 SOA for Comcast’s 

Montgomery County, Maryland cable 

system does appear to include digital 

converter fees in its calculation of gross 

receipts. According to Copyright 

Owners, the fact that some cable 

systems are including such converter 

fees in their gross receipts while others 

are apparently not doing so underscores 

the need for the Copyright Office to 

clarify this issue to ensure consistency 

in the application of the relevant rules. 

Copyright Owners, therefore, request 

the Copyright Office to clarify that, in 

accordance with Section 201.17(b), a 

cable operator must include in its gross 

receipts any fees charged subscribers for 

digital set top boxes used to receive 

HDTV or other digital broadcast signals, 

notwithstanding that the operator may 

market its offering of such signals as 

‘‘free.’’ Copyright Owners also 

recommend that the Copyright Office 

include in Space E of the cable 

statement of account form specific 

reference to ‘‘Digital and HDTV 

Converters’’ and explain that this line 

item refers to converters used to receive 

HDTV or other digital broadcast signals. 

We seek comment on these proposed 

changes. 

Cable Cards. As stated earlier, under 

Section 201.17(b) of the Copyright 

Office’s rules, gross receipts for the 

retransmission of broadcast signals 

include the full amount of service fees 

for any and all services or tiers of 

service which include one or more 

secondary transmissions of television or 

radio broadcast signals, for additional 

set fees, and for converter fees. 

(Emphasis added) 

Section 624A of the Communications 

Act, 47 U.S.C. 544a, governs the 

compatibility between cable systems 

and navigation devices (e.g., cable set–

top boxes, digital video recorders, and 

television receivers with navigation 

capabilities) manufactured by consumer 

electronics manufacturers not affiliated 

with cable operators. In connection with 

the digital television transition, the 

cable industry and the consumer 

electronics industry have engaged in 

ongoing inter–industry discussions 

seeking to establish a cable ‘‘plug and 

play’’ standard. With the standard in 

place, consumers are able to directly 

attach their DTV receivers to cable 

systems and receive cable television 

service without the need for a digital set 

top box. To receive cable service, 

consumers would only need to use a 

point–of–deployment module (‘‘POD’’), 

now marketed as ‘‘CableCARD,’’ that 

would fit into a slot built into the 

television set. The POD acts as a key to 

unlock encrypted programming. In 

October 2003, the FCC adopted initial 

‘‘plug and play’’ and POD requirements 

that were generally proposed by the 

cable and consumer electronics 

industries. Compatibility Between Cable 

Systems and Consumer Electronics 

Equipment, 18 FCC Rcd 20885 (2003). 

The current rules, however, apply only 

to unidirectional programming (i.e. 

programming coming from the cable 

headend) and does not apply to bi–

directional programming, such as Video 

On Demand and impulse pay–per–view. 

The industries are currently working on 

a bi–directional plug and play 

agreement. In the meantime, cable 

subscribers will still need a digital set 

top box to access these types of 

advanced services. 

We seek comment on whether cable 

subscribers have been required to 

purchase CableCards in order to access 

digital broadcast television signals. If so, 

we ask whether the Copyright Office’s 

definition of gross receipts should be 

amended to include subscriber revenue 

generated through the lease of 

CableCards. How are cable operators 

currently treating the lease of 

CableCards on their SOAs? What space 

and block on the SOAs should be 

changed, or possibly added, to list 

CableCard revenue? 

Second Television Set Fees. Cable 

operator fees for service to second 

television sets are included in a cable 

system’s gross receipts for the purposes 

of Section 111. 37 CFR 201.17(b)(1); 

Form SA 1–2, General Instructions, p. v; 

Form SA 3, General Instructions, p. vi; 

see also Compulsory License for Cable 

Systems, 43 FR 958, 959 (Jan. 5, 1978) 

(‘‘The additional set fee is, we believe, 

clearly a payment for basic secondary 

transmission service . . .’’). 

Copyright Owners state that some 

cable systems charge additional fees for 

access to digital broadcast signals to a 

second television set in the household. 

They note, for example, that 

Susquehanna’s York, Pennsylvania, 

cable system charges its customers $6.95 

per month for ‘‘Additional HDTV 

Terminals,’’ even though it does not 

charge customers for service to 

additional television sets receiving only 

an analog service. See http:// 

www.suscom.com/home/sites/ 

pricing.php?city=york). Copyright 

Owners contend, however, that it is 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 54953 

unclear whether this system, and others 

like it, are including fees for service to 

additional sets that receive HDTV and 

other digital broadcast signals within 

their calculation of gross receipts. 

Copyright Owners thus ask the 

Copyright Office to clarify that, in 

accordance with Section 201.17(b) of 

the rules, fees for service to additional 

digital television sets or ‘‘HDTV 

Terminals’’ must be included in a cable 

system’s gross receipts. Copyright 

Owners also recommend that the 

Copyright Office include in Space E of 

the cable SOA specific reference to 

‘‘Digital and HDTV Additional Set Fees’’

and explain that such line item refers to 

fees charged for service to additional 

television sets receiving HDTV or other 

digital broadcast signals. We seek 

comment on the changes proposed by 

the Copyright Owners. Moreover, some 

cable operators offer their subscribers 

in–home digital networks where one 

digital set top box provides digital 

signals to all sets in the household. We 

seek comment on whether the fees 

associated with such a service, if any, 

should be included in the operator’s 

gross receipts calculation. 

Conclusion 

We hereby seek comment from the 

public on the issues identified herein 

associated with the retransmission of 

digital broadcast signals by cable 

systems under Section 111 of the 

Copyright Act. If there are any 

additional issues concerning the 

treatment of digital television 

retransmissions not discussed above, we 

encourage interested parties to bring 

those matters to our attention. 

Dated: September 14, 2006. 

Marybeth Peters, 

Register, U.S. Copyright Office. 

[FR Doc. 06–7927 Filed 9–19–06; 8:45 am] 

BILLING CODE 1410–30–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2006–0483; FRL–8078–2] 

Chlorpropham, Linuron, Pebulate, 

Asulam, and Thiophanate-methyl; 

Proposed Tolerance Actions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to revoke 

certain tolerances for the herbicides 

linuron and pebulate and the fungicide 

thiophanate-methyl. Also, EPA is 

proposing to modify certain tolerances 

for the herbicides chlorpropham, 

linuron, asulam and the fungicide 

thiophanate-methyl. In addition, EPA is 

proposing to establish new tolerances 

for the herbicides chlorpropham, 

linuron, asulam, and the fungicide 

thiophanate-methyl. The regulatory 

actions proposed in this document are 

part of the Agency’s reregistration 

program under the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA). 

DATES: Comments must be received on 

or before November 20, 2006. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2006–0483, by 

one of the following methods: 

• Federal eRulemaking Portal:http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 

Potomac Yard (South Bldg.); 2777 S. 

Crystal Drive, Arlington, VA. Deliveries 

are only accepted during the Docket’s 

normal hours of operation (8:30 a.m. to 

4 p.m., Monday through Friday, 

excluding legal holidays). Special 

arrangements should be made for 

deliveries of boxed information. The 

docket telephone number is (703) 305–

5805. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPP–2006–

0483. EPA’s policy is that all comments 

received will be included in the docket 

without change and may be made 

available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or email. The Federal regulations.gov 

website is an ‘‘anonymous access’’

system, which means EPA will not 

know your identity or contact 

information -unless you provide it in 

the body of your comment. If you send 

an e-mail comment directly to EPA 

without going through regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD-ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the docket index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available in the electronic 

docket at http://www.regulations.gov, 

or, if only available in hard copy, at the 

OPP Regulatory Public Docket in Rm. S–

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Drive, Arlington, VA. 

The hours of operation for this docket 

facility are from 8:30 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The docket facility telephone 

number is (703) 305–5805. 

FOR FURTHER INFORMATION CONTACT: Jane 

Smith, Special Review and 

Reregistration Division (7508P), Office 

of Pesticide Programs, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave, NW., Washington, DC 20460–0001; 

telephone number: (703) 308–0048; email address:smith.jane-scott@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111) 

• Animal production (NAICS code 

112) 

• Food manufacturing (NAICS code 

311) 

• Pesticide manufacturing (NAICS 

code 32532) 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 


rwilkins on PROD1PC63 with PROPOSAL