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53–927 PDF 2009

S. HRG. 111–193 

ENSURING TELEVISION CARRIAGE IN THE DIGITAL 

AGE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

FEBRUARY 25, 2009 

Serial No. J–111–7 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 111 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Cohen, David L., Executive Vice President, Comcast Corporation, Philadelphia, Pennsylvania ............................................................................................... 10 

Ergen, Charles, Chairman and Chief Executive Officer, DISH Network, 

L.L.C., Englewood, Colorado ............................................................................... 4 

Franks, Martin D., Executive Vice President of Planning, Policy and Government Relations, CBS Corporation, New York, New York ................................. 8 

Hartwell, Robert M., Vermont State Senator, Bennington District, Manchester Center, Vermont ...................................................................................... 12 

Yager, K. James, Chief Executive Officer, Barrington Broadcasting Group, 

L.L.C., Hoffman Estates, Illinois, on behalf of the National Association 

of Broadcasters ..................................................................................................... 7 

QUESTIONS AND ANSWERS 

Responses of David L. Cohen to questions submitted by Senators Specter, 

Feingold and Hatch .............................................................................................. 29 

Responses of Charlie Ergen to questions submitted by Senators Specter, 

Feingold and Hatch .............................................................................................. 35 

Responses of Martin Franks to questions submitted by Senators Hatch and 

Specter .................................................................................................................. 41 

Responses of Robert M. Hartwell to questions submitted by Senator Hatch ..... 44 

Responses of James Yager to questions submitted by Senators Hatch, and 

Specter .................................................................................................................. 46 

SUBMISSIONS FOR THE RECORD 

Association of Public Television Stations (APTS), Arlington, Virginia, statement ...................................................................................................................... 53 

Cohen, David L., Executive Vice President, Comcast Corporation, Philadelphia, Pennsylvania, statement ............................................................................ 60 

Ergen, Charles, Chairman and Chief Executive Officer, DISH Network, 

L.L.C., Englewood, Colorado, statement ............................................................ 71 

Franks, Martin D., Executive Vice President of Planning, Policy and Government Relations, CBS Corporation, New York, New York, statement .............. 76 

Gabrielli, Bob, Senior Vice President, Broadcasting Operations and Distribution, DIRECTV, Inc., El Segundo, California, statement ................................. 93 

Hartwell, Robert M., Vermont State Senator, Bennington District, Manchester Center, Vermont, statement .................................................................. 109 

National Programming Service, Mike Mountford, Chief Executive Officer, Indianapolis, Indiana, statement ........................................................................... 113 

Sohn, Gigi B., President, Public Knowledge, Consumers Union, Washington, 

D.C., statement .................................................................................................... 121 

Yager, K. James, Chief Executive Officer, Barrington Broadcasting Group, 

L.L.C., Hoffman Estates, Illinois, on behalf of the National Association 

of Broadcasters, statement .................................................................................. 130 

(1) 

ENSURING TELEVISION CARRIAGE IN THE 

DIGITAL AGE 

WEDNESDAY, FEBRUARY 25, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feingold, Cardin, Wyden, Klobuchar, Kaufman, Specter, and Hatch. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. It is good to see everybody 

here. We seem to have some interest in this hearing. I thank you 

all for coming. 

Last week, in Vermont, our broadcast television stations turned 

off their analog signals and began broadcasting only in digital. By 

June 13th, of course, all the television stations across the country 

will have completed this transition. And with the digital era upon 

us, consumers are, of course, getting their video content in ways 

that were unimaginable just a couple decades ago. Network programs are available online, and consumers are increasingly viewing 

broadcast television stations through cable and satellite systems 

rather than using an antenna. 

Congress has facilitated the growth of the cable and satellite industries by providing a statutory license to retransmit broadcast 

television to consumers. And we all know, I think, by the interest 

in this, that parts of that license expire this year, important parts. 

Congress first passed the Satellite Home Viewer Act in 1988, and 

with each reauthorization we have sought to improve it in a manner that protects content owners but also improves the ability of 

consumers to access local television stations. In 1999, I introduced 

legislation with Senator Kohl and Senator Hatch and others that 

led to the creation of a license for satellite companies to provide 

local broadcast stations in local markets for the first time. 

This provision has been tremendously successful. Both DISH 

Network and DirecTV use this license to provide local service in 

Vermont, and I thank them for making that service available. I live 

in a rural area in Vermont. The nearest neighbor is half a mile 

away, and I have what is sometimes referred to as the ‘‘State flower’’ in Vermont—the satellite dish on my roof. 

2 

The local television plays a key role in cities and towns across 

the country. Local television, of course, provides relevant news, 

weather, and sports. It is the place where people hear first of emergencies in the area. It helps create a sense of community. 

Now, I appreciate that Bob Hartwell is here from Vermont to testify today. As a State Senator from Bennington County, which is 

in the southwest corner of our State, he can talk about the importance of receiving home State television stations. Bennington County is one of two counties in southern Vermont that is not considered part of the Burlington television market, the area where our 

three major television stations, now a fourth, are located. Residents 

in Bennington were unable to receive the local Vermont broadcast 

stations by satellite for many years. During the 2004 reauthorization, I included a provision that made it possible for the southern 

Vermont counties to receive Vermont stations by satellite. Senator 

Hartwell knows firsthand that for a Bennington County resident, 

seeing news of a fire in Clifton Park, New York, is not the same 

as seeing that news for Rutland, Vermont, or Bennington, 

Vermont. 

So the provision that I put in helped to keep Vermonters in all 

corners of the State connected. I appreciate that DirecTV took advantage of it to serve southern Vermonters, but there is still more 

to do. For instance, DISH is currently not allowed to provide this 

service, and I understand that other States have similar issues in 

which residents are unable to access stations from their home 

States. 

Now, a healthy satellite industry promotes competition between 

video providers and benefits consumers across the country. And it 

is particularly important in rural areas that may be out of the 

reach of broadcast television and even cable access. They are, of 

course, in these rural areas. I could not receive our Vermont stations with an antenna, and I am very typical of many, many 

Vermonters, and cable would not be available because of the lack 

of density in the area I live in. So we have satellite that fills that 

role. We are not flat in Vermont, and the topography blocks other 

signals. But a healthy satellite and a healthy cable industry take 

on a renewed importance because of the digital television transition, which has left many consumers unable to access stations over 

the air. 

So we are going to need to refocus on modernizing and simplifying the licenses for the digital age. The United States Copyright 

Office released a report last summer that made recommendations 

for updating these licenses. One of their recommendations is to 

harmonize the satellite and cable licenses, which currently operate 

very differently, and I am interested in hearing the views on how 

that is going to affect competition. 

I look forward to working with the Senators on this Committee, 

and a number of other Committees that have jurisdiction, to bring 

out legislation that is going to improve service to consumers, but 

that is also going to allow cable and satellite providers and broadcast television stations and content creators to thrive in the digital 

age, because if they all do well, then the consumers do well. 

Senator Specter. 

3 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

This is a very important hearing to ensure television coverage in 

the digital age, and we find that people are relying more and more 

upon satellite and cable. This Committee has delved very deeply 

into a number of collateral issues relating to the controversies between the National Football League and the cable companies. And 

I have been concerned about arrangements where fans in the local 

areas of the Eagles and the Steelers, the two pro teams in my 

State, have been denied access because of complexities. And I do 

not know that this legislation will provide any opportunity to deal 

with those subjects, but, candidly, I have been looking for a vehicle 

which would address those matters, disconcerted with the high intensity of interest in the really premier teams, like the Steelers 

and the Eagles, that they are denied coverage. 

But we are dealing with some very, very technical subjects here. 

While cable and satellite providers may enter into private agreements with broadcasters for retransmission, in the absence of 

agreements it is governing by the Copyright Act. And these license 

are very important to enable cable and satellite providers to retransmit over-the-air broadcast without obtaining the broadcaster’s 

permission with the compensation provided by the statute. 

Our inner workings of the Congress make it complicated because 

there is jurisdiction both by this Committee and the Commerce 

Committee, which means you have to go to four hearings—two in 

the House and two in the Senate. But at least you are covered by 

C–SPAN so what you say here will be carried far and wide. 

Senator Leahy and I have a special spot reserved on C–SPAN 

that put us on at 3 a.m., so he and I have a tremendous following 

among America’s insomniacs. 

[Laughter.] 

Senator SPECTER. We will be watching this very closely. I regret 

that I am going to have to excuse myself early to join the Environment and Public Works Committee, where we are pushing ahead 

to try to find a legislative answer to global warming at an early 

stage. But I am leaving behind Ryan Triplette, in company with 

some very high-powered lawyers on the Hill, who knows more 

about this subject than anybody else. 

I want to give a special word of greeting to David Cohen, who 

is Executive Vice President of Comcast and a longstanding friend, 

a real activist in community affairs and commercial affairs. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. And, unfortunately, as 

Senator Specter was referring to, everybody has about five different 

committees going on at once, but Senator Specter and I have always worked together in putting up the agenda for this Committee. 

So I appreciate your being here. 

Senator Kohl, did you want to say—— 

STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE 

STATE OF WISCONSIN 

Senator KOHL. Yes, just a word or two. Thank you, Mr. Chairman, for holding this hearing as we revisit the Satellite Home 

4 

Viewer Act. The simple goal of this law at the time we passed it 

was to level the playing field between satellite and cable companies 

in order to give consumers greater choice and better value. Now 

that satellite has established itself in many markets as a competitor to cable, it is essential that we reauthorize parts of the law 

that are set to expire at the end of this year. 

Where necessary, we should take stock of the changes that have 

occurred over the past 5 years to see whether adjustments are necessary to enhance and expand competition between cable and satellite. I look forward to continue working with you, Mr. Chairman, 

as we have each of the last two times this bill was considered, as 

we reauthorize and improve the Satellite Home Viewer Act. 

I want to thank the witnesses for being here. I also have to leave 

because I am chairing a hearing in the Aging Committee, but it is 

a delight to see you, and I have enjoyed working with you over the 

years. Thank you so much. 

Chairman LEAHY. Be careful on those of us who are aging, Senator Kohl. I do appreciate that. 

Senator SPECTER. Both of us, Senator Kohl. 

The first witness is going to be Charles Ergen. He is the founder, 

Chairman, and CEO of DISH Network, and what I am going to do 

is ask each one—I will introduce each one of you separately, and 

then if you will testify, and then we will all ask questions afterwards. 

He is the founder, Chairman, and CEO of DISH Network, one of 

the Nation’s largest satellite television companies. He founded the 

original company EchoStar in 1980, as I recall, then launched 

DISH Network in 1996. He is the co-founder of the Satellite Broadcasting Communications Association. He was named one of the 

world’s Best CEOs by Barron’s Magazine in 2007, named to Forbes 

Magazine’s top-ten CEO list. He received his bachelor’s degree from 

the University of Tennessee, holds an MBA from the Babcock 

Graduate School of Management at Wake Forest University. 

Mr. Ergen, please go ahead, sir. 

STATEMENT OF CHARLES ERGEN, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, DISH NETWORK, L.L.C., ENGLEWOOD, 

COLORADO 

Mr. ERGEN. Thank you. Chairman Leahy, Ranking Member 

Specter, and members of the Committee, I appreciate the opportunity to testify today. My name is Charlie Ergen. I am the Chairman and CEO of DISH Network, the nation’s third largest pay-TV 

provider. 

The Copyright Office has provided this Committee with a road 

map for updating the cable and satellite compulsory copyright licenses to reflect the changing video landscape. We agree with the 

Copyright Office that the digital age has arrived and the laws need 

to catch up. I would like to highlight three issues from the 2008 

Copyright Office Report. 

First, the separate cable and satellite copyright regimes no 

longer make sense. We compete for the same customers, and we 

should have the same rules. 

Second, many consumers cannot get local news and sports from 

their home state because of the way local markets are defined. 

5 

And, third, many rural communities are missing one or more of 

the four major networks. 

In addition, Congress should also address the interrelated issues 

of retransmission consent and must-carry when updating the compulsory copyright licenses this year. 

With respect to the first issue, the Copyright Office recommended 

folding the existing licenses into a unitary digital copyright license 

to reflect the changes in technology and place all providers on the 

same level playing field. We support that approach. Specifically, a 

unitary license for all pay-TV providers would ensure that all consumers get the services they need in a digital world, in a manner 

that is fair to the copyright holders, broadcasters, cable, satellite, 

and new entrants such as the telcos. 

Absent a unified license, we agree with the Copyright Office that 

there should at least be parity going forward between cable, satellite, and telco regimes. Consumers should have the benefit of the 

same bundle of rights under the law regardless of the pay-TV provider they select. It should not be harder or more expensive for one 

pay-TV provider to carry a local, significantly viewed, or nearby 

broadcaster than a rival platform because of distinctions in copyright law. 

With respect to the second issue, the Copyright Office also recognizes the need for DMA reform and enhanced competition between 

video providers. Citizens living in DMAs that straddle state borders are often denied access to news, weather, and election coverage from their home state. State Senator Hartwell, here today, 

represents one such community in Vermont, where DMA lines force 

constituents to watch local news from a neighboring State. Overall, 

this is an issue in 45 states. As you can see from the map of Iowa, 

which is over here, depending on where a customer lives, they may 

get local news from Iowa, Minnesota, Nebraska, South Dakota, or 

Missouri. This is just one example. 

Now, Senators have been receiving complaints from their constituents about this concern for many years. Mr. Chairman, you 

took the lead on this issue 5 years ago for two DMAs in Vermont 

and championed a similar effort in additional states. Importantly, 

these fixes helped consumers and did not cause any actual harm 

to broadcasters. Building off that forward-looking policy, we recommend a more global DMA fix. Specifically, a broadcast station 

from a neighboring DMA should be treated as ‘‘local’’ for purposes 

of the copyright laws, particularly if it furthers the concept of 

‘‘state unity.’’ With this change, citizens living in DMAs that straddle state borders would no longer be prevented from receiving their 

local news from their home state. 

Third, we agree with the Copyright Office that all consumers 

should have access to NBC, CBS, ABC, and FOX programming. 

Today, DISH Network provides local service in 178 markets, out of 

the 210 total, reaching 97 percent of households. This translates 

into 1,400 local broadcast stations, which is far more than any 

other pay-TV provider. In most of the remaining markets, one or 

more of the big four networks is missing, and so it has not been 

economical to provide the service for them. If a local community is 

missing a broadcast station, providers should be able to treat a 

6 

nearby affiliate as the ‘‘local’’ affiliate under copyright and communications law. 

And, finally, Congress should use this opportunity to examine retransmission consent and must-carry, given that those issues have 

been tied to our compulsory license. Technology and competition 

have come a long way in the last 5 years, but today there are multiple pay-TV providers in every DMA. Broadcast stations electing 

retransmission consent hold DISH customers hostage, as they play 

their local monopoly off multiple providers to extract huge license 

fees. In 2008 alone, consumers lost programming in approximately 

15 percent of our markets because of retransmission consent fee 

disputes. Yet the same broadcasters provide their content for free 

on the Internet and to those lucky enough to live within the 

shrinking areas of digital over-the-air coverage. 

Because the broadcasters received billions of dollars of spectrum 

for free, we think the retransmission consent should be free as 

well. Failing that, we support the creation of a national retransmission consent rate. Satellite providers already pay a fixed, persubscriber copyright royalty rate, and we see no reason why a similar concept would not work for retransmission consent. 

With respect to must-carry, we are forced to carry hundreds of 

must-carry stations that have little or no local content. This increases our costs and raises our prices to consumers at a time 

when consumers need all the disposable income they can get. Mustcarry stations should be required to earn carriage by airing at least 

20 hours of local programming each week. This would be beneficial 

to consumers and would have no harmful effect on broadcasters 

that invest in their local markets. 

We are in the middle of a digital age that is changing the way 

people watch TV. It is pretty simple: People want to watch TV anywhere, anytime. The Committee put down a marker 5 years ago to 

give consumers the flexibility to get truly local content. 

Again, thank you for inviting me to testify this morning. 

[The prepared statement of Mr. Ergen appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you very much, Mr. Ergen. I appreciate your being here. 

James Yager is the Chair of the Television Board for the National Association of Broadcasters. He is also the CEO of the Barrington Broadcasting Group, which he founded to manage smalland mid-sized-market TV stations. Mr. Yager began his broadcasting career in 1960 with WIS-TV in Columbia, South Carolina, 

and he has held numerous managerial positions at multiple broadcast companies since. 

But in addition to his role with the NAB and Barrington Broadcasting, Mr. Yager serves on the boards of Broadcast Music Incorporated, Television Operators Caucus, the Maximum Service for 

Television. He is a graduate of Colgate University. 

Mr. Yager, we are delighted to have you here. Please go ahead, 

sir. 

7 

STATEMENT OF K. JAMES YAGER, CHIEF EXECUTIVE OFFICER, 

BARRINGTON BROADCASTING GROUP, L.L.C., HOFFMAN ESTATES, ILLINOIS, ON BEHALF OF THE NATIONAL ASSOCIATION OF BROADCASTERS 

Mr. YAGER. Well, Mr. Chairman, thank you for that introduction, 

and members of the Committee, I am delighted to be here today. 

The Chairman has given you my background, so let me just begin 

by saying ever since Congress crafted the original Satellite Home 

Viewer Act of 1988, it has worked to further two objectives: first, 

that free, over-the-air television will remain widely available to 

American households; and, second, that satellite retransmissions 

will not jeopardize the local television service in any market. Those 

two goals remain paramount today. 

Our Barrington stations keep our communities informed and connected. We work every day to embody the spirit of localism which 

Congress has affirmed time and time again as a vital public policy 

goal. We do not charge our viewers to watch our programming. We 

rely on payments from advertisers to deliver a free service to your 

constituents. Without free, over-the-air television, cable and satellite companies would essentially be unrestrained in their ability 

to charge subscribers even higher rates. 

Broadcast television stations remain the primary source of the 

most diverse and popular entertainment, news, weather, and sports 

programming in the country. In fact, according to data from 

Nielsen Media Research, in the 2007–08 television season, 488 of 

the top 500 prime-time television programs were broadcast on overthe-air television. While these stations represent a relatively small 

number of channels of those on cable and satellite systems, broadcast stations offer a unique and valuable service to their local markets that could be diminished by unnecessary changes to the law. 

As Congress considers updates to SHVERA, it is vital that you 

uphold and strengthen the tradition of localism. Any changes 

should not impair the enforcement of program market agreements 

that are essential to local broadcast service. Furthermore, this 

Committee should strengthen localism by phasing out satellite licenses for distant signals. The license should be placed with a requirement for local-into-local carriage in all television markets. 

This would enhance localism, program diversity, price competition, 

and increased choices for the viewer. 

Congress should mandate local-into-local service in every market 

in the country. There are 31 of the 210 television markets in small 

and rural areas that satellite companies have chosen not to serve. 

They have said this is a capacity issue. I believe it is purely and 

simply a business decision on their part. I am certain that if Congress does not step in, the satellite companies will never provide 

local service to every market in this country. Broadcasters have invested $1 billion, and more, in making the 

transition to digital television. So far there has been little economic 

return on that investment for broadcasters. Nevertheless, those investments, in my opinion, were in the public interest. The satellite 

industry’s investment in providing local-into-local service to all 

Americans would also be in the public interest. 

Localism is at the forefront of the broadcasters’ operations. In 

emergency situations, it is the broadcaster, not the cable or satVerDate Nov 24 2008 09:19 Dec 29, 2009 Jkt 053927 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53927.TXT SJUD1 PsN: CMORC
8 

ellite companies, who is on the scene providing the public with 

emergency, life-saving, and timely information it needs. Localism is 

not in the DNA or business models of either cable or the satellite 

companies. Some Members of Congress have expressed frustration 

that their constituents do not have access to in-State but out-ofmarket television stations. Current law allows cable and satellite 

systems to offer non-duplicating, out-of-market programming to 

their subscribers. But many cable and satellite systems choose not 

to do so. However, Congress should not change current law to allow 

cable and satellite companies to offer network and syndicated programming that is identical to programs already offered by the local 

broadcaster who has negotiated to have those rights in their markets. Doing so would be inconsistent with the longstanding principle of localism and the carefully balanced system of retransmission consent that is established by Congress to further this 

principle. 

If we import a distant, in-State duplicating signal, it could undercut the retransmission consent rights of an in-market station 

and seriously erode the local broadcaster’s service to the public. 

Thank you for giving me the opportunity to testify, and I look 

forward to answering any questions you might have. 

[The prepared statement of Mr. Yager appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is Martin Franks, the Executive Vice President 

for Policy, Planning, and Government Relations with the CBS Corporation. He is responsible for overseeing the corporation’s activities in Washington as well as with State and local government. He 

also oversees CBS’ corporate philanthropy. He joined CBS in 1988 

following extensive experience in Washington, including service on 

the staffs of President Jimmy Carter, Congressman Tony Coelho, 

as well as having to serve a sentence as my chief of staff for a period of time. He also serves as Vice Chair of the Board for Advertising Council and Maximum Service Television and is a graduate 

of Princeton University. 

Mr. Franks, please go ahead. 

STATEMENT OF MARTIN D. FRANKS, EXECUTIVE VICE PRESIDENT, POLICY, PLANNING AND GOVERNMENT RELATIONS, 

CBS CORPORATION, NEW YORK, NEW YORK 

Mr. FRANKS. Mr. Chairman, it is a very real pleasure to be working with you once again on an issue of crucial importance to 

Vermonters. The industry appreciates your leadership and your efforts to preserve the broadcast network-affiliate relationship while 

promoting competition in today’s video marketplace. And CBS will 

always be grateful to you and Senator Specter for your courage and 

leadership on S. 852, the FAIR Act, in the 109th Congress. 

Mr. Chairman, Senator Kaufman, I want to thank the Committee for the opportunity to appear and to express CBS’ view that 

the legislative issue on the table today is really a very narrow one: 

whether to extend satellite’s compulsory distant-signal license once 

again. In contrast, the local-into-local license is permanent and not 

part of this debate. Yet during the course of congressional deliberation over the distant-signal license, you will hear from parties seekVerDate Nov 24 2008 09:19 Dec 29, 2009 Jkt 053927 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53927.TXT SJUD1 PsN: CMORC
9 

ing to exploit this legislation as a vehicle for a wish list of unrelated items, such as changes to retransmission consent or DMA 

modification. 

Besides complicating the legislative process, the issues of retransmission consent and DMA modification are not broken and do 

not need fixing. Each year CBS and other television broadcasters 

conclude hundreds of retransmission consent agreements with 

cable, satellite, and telephone operators. In an overwhelming majority of such instances, agreements are reached quietly, amicably, 

and in a mutually beneficial manner. Legislating to deal with a 

very few disputes against a pattern where there are literally hundreds of instances where willing sellers and willing buyers successfully reach agreement would be a solution in search of a problem. 

In the end, the retransmission consent regime works and in the 

manner Congress intended. 

DMAs are not a governmental creation. Rather, Nielsen groups 

counties by viewing patterns and the laws of physics and signal 

propagation rather than geographic boundaries. DMAs are the center of a broadcaster’s economic universe, and any tinkering with 

the system, even in good economic times, could be financially seismic, not only for smaller local broadcasters, but also for local merchants who buy time on their local stations in order to reach potential customers in their markets, never anticipating that competing 

and confusing ads could be coming into the market from a station 

a hundred or even a thousand miles away. 

If the desired outcome is for viewers to access news from their 

out-of-market but in-State television stations, right now—right 

now, without the need to change any law or redefine any DMA— 

MVPDs may already import any station’s newscast into any other 

market simply by securing the imported station’s permission to do 

so. Stations control the copyright of their news programming and 

face absolutely no restriction in making them available to multichannel providers in nearby markets looking to augment news programming. 

While we are prepared to work on any problem areas where 

there may be issues with regard to local and in-State news, please 

do not fall for the masquerade of those who are using DMA reform 

as a proxy for their real objective: a means for MVPDs to obtain 

bargaining leverage in a retransmission consent regime that is now 

in nearly perfect balance. 

Television broadcasters have the right, through the Copyright 

and Communications Acts and private contracts, to control the distribution of the national and local programming they transmit. The 

CBS Television Network alone invests billions of dollars each year 

in order to be able to deliver the highest-quality news, sports, and 

entertainment programming. 

Three weeks from tomorrow, the national phenomenon known as 

‘‘March Madness’’ will tip off. Each year CBS spends hundreds of 

millions of dollars just for the rights to the 3 weeks of March Madness alone. It is a hefty investment but one that, in partnership 

with the NCAA and our affiliates, gives us the right to determine 

how the content can be distributed in a way that produces a return 

on that investment and a benefit to American viewers. That expensive investment in high-quality programming pays off. Superior 

10 

programming generates viewing that helps not only the CBS network and the stations we own, but also our affiliated stations nationwide. 

High-quality network programming benefits local stations because they sell advertising within that network programming. That 

allows them to make significant financial investments in local 

news, sports, weather, and other programming, including syndicated shows like ‘‘Wheel of Fortune,’’ ‘‘Jeopardy,’’ and ‘‘Oprah,’’ 

some of your constituents’ favorite programs. 

This mutually beneficial network-affiliate national and local arrangement, of course, is not unique to CBS. It is also enjoyed by 

the other networks and their affiliated stations across the country. 

In the end, however, it is local viewers who benefit most from this 

system. 

Mr. Chairman, again I would like to thank you and the Committee for helping to foster today’s robust video delivery marketplace, where, thanks to vigorous competition, broadcast television 

is still an integral player deeply valued by American viewers. 

Thank you. 

[The prepared statement of Mr. Franks appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is David Cohen, Executive Vice President for 

the Philadelphia-based Comcast Corporation, senior counsel to the 

CEO, well-known to this Committee. Prior to joining Comcast, Mr. 

Cohen was a partner and Chairman of Ballard Spahr Andrews & 

Ingersoll, one of the largest law firms in the country. He serves on 

several distinguished boards and committees, including the Greater 

Philadelphia Chamber of Commerce, where he serves as Chairman. 

He serves on Penn Medicine, the Trustees of the University of 

Pennsylvania. He has a bachelor’s degree from Swarthmore and his 

law degree from the University of Pennsylvania Law School. 

Mr. Cohen, it is nice to see you again. Please go ahead, sir. 

STATEMENT OF DAVID L. COHEN, EXECUTIVE VICE PRESIDENT, COMCAST CORPORATION, PHILADELPHIA, PENNSYLVANIA 

Mr. COHEN. Thank you, Mr. Chairman, and thank you for the opportunity to testify. While acknowledging the slight alteration from 

Senate protocol, I want to take a small piece of personal witness 

privilege and say what a pleasure it is to testify before your newest 

member, whom I have had the opportunity to work with on a wide 

variety of matters for over 20 years, and what a pleasure it is to 

say ‘‘Senator Kaufman.’’ So a real pleasure to be here and to see 

you, Senator. 

Chairman LEAHY. And I will certainly give you extra time for 

this. I must say also, Mr. Cohen, how delighted I am that Senator 

Kaufman is here, and he has been joined by Senator Klobuchar, 

two new members of this Committee. It makes my life a lot easier. 

Please go ahead, sir. 

Mr. COHEN. Thank you. I would like to focus my oral comments 

today on two basic points relating to the Section 111 compulsory 

copyright license: 

11 

First, cable’s compulsory license works—for the consumers, for 

the copyright holders, and for cable. It is still necessary, and it 

should not be repealed or substantially altered. 

And, second, in light of a recent Copyright Office ruling, cable’s 

compulsory license should be clarified to ensure that royalties are 

not paid on so-called phantom signals, which I will describe a little 

later. 

The compulsory license is critical to the cable industry and to our 

customers and your constituents. Without this license, it would be 

all but impossible as a practical matter for cable operators to secure the necessary clearances for each copyrighted program included in their cable line-ups—an estimated 500 million separate 

copyrighted programs every year. With the license, we get these 

rights, our customers get the programming they expect and value, 

and the underlying copyright owners get appropriate compensation. 

In fact, since 1976, the inception of the compulsory license, the 

cable industry has paid almost $4 billion in royalties, including 

well over $150 million last year alone. 

In a report to Congress last year, the Copyright Office suggested 

that the compulsory copyright license could be repealed and that 

some replacement mechanism would likely emerge. I think that is 

wishful thinking. No better model has emerged anywhere in the 

world. And as strongly as I believe in free markets, the cable compulsory license is meeting the needs of consumers, copyright owners, and cable operators. And so I think we are confronted with a 

clear case of ‘‘If it ain’t broke, don’t fix it.’’ 

Another idea that some have raised is whether Congress should 

consider harmonizing cable’s compulsory license with the satellite 

industry’s statutory license. The cable and satellite licenses are different largely because the FCC rules that determine how they can 

offer broadcast programming are very different. 

For example, cable operators are required to put all broadcast 

signals on the basic tier and make every subscriber buy that tier. 

That requirement does not apply to satellite companies, and there 

are additional important differences as well. Parity or harmonization of the cable and satellite licenses could not be achieved without major modifications to the cable and satellite regulatory and 

legislative schemes, and all of these changes will likely result in 

the disruptive loss of some broadcast signal retransmissions to your 

constituents. We strongly recommend against any such plan. 

There is one discrete area, however, where legislative action 

would be important: to deal with the so-called phantom signal issue 

I mentioned earlier. Let me use a simple example to explain the 

problem. 

Assume we have two communities, A and B, served by two separate Comcast cable systems. Community A has 5,000 subscribers 

and has historically paid a distant signal charge on WZZZ only for 

the 5,000 subscribers in Community A—the customers who actually receive the signal. Community B has 100,000 subscribers and 

does not receive WZZZ. 

But if Comcast were to connect the two cable systems with a 

fiber link to permit the more efficient delivery of advanced services, 

even though it made no changes to the channel line-ups in either 

Community A or Community B, the Copyright Office now says that 

12 

Comcast should pay royalties on WZZZ as if it were delivered not 

just to the 5,000 customers in Community A which actually receive 

the signal, but also to all 100,000 subscribers in Community B who 

are not receiving the signal. In essence, Comcast would suddenly 

be paying 20 times more just to deliver the signal to the same 

5,000 people. This phenomenon is called ‘‘phantom signals,’’ and I 

respectfully suggest it is an absurd result. 

The Copyright Office itself acknowledges that the result is illogical and probably not intended by the statute, but it insists that the 

existing statutory language gives them no choice and that this is 

a problem for Congress to fix. 

So we request that Congress consider a modest change to Section 

111 to clarify that royalty fees need only be calculated on distant 

broadcast signals that are actually available to subscribers, and not 

on phantom broadcast signals. 

Thank you again for inviting me to testify, and I look forward to 

your questions. 

[The prepared statement of Mr. Cohen appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Our last witness, Senator Bob Hartwell, is the Vermont State 

Senator for the District of Bennington. That includes Bennington 

County and Wilmington, Vermont, as I mentioned before, in the 

southwest corner of our State—a part where for some time television was mostly out of Albany, New York, and Vermont news was 

left out. Prior to beginning his service in the Vermont State Senate 

in 2007, Senator Hartwell was active in his community, served on 

the Bennington County Regional Planning Commission from 1997 

to 2007; the Town of Dorset’s Select Board from 2001 to 2004. He 

continues to serve on the New England Association of Regional 

Councils, and formerly in private law practice. 

Senator Hartwell, good to have you here. Please go ahead, sir. 

STATEMENT OF HON. ROBERT M. HARTWELL, VERMONT 

STATE SENATOR, BENNINGTON DISTRICT, MANCHESTER 

CENTER, VERMONT 

Mr. HARTWELL. Thank you, Senator, and thank you, members of 

the Committee, for allowing me the time to testify today. As Senator Leahy has said, I am in the Vermont State Senate. I serve on 

the Senate Committee on Natural Resources and Energy and on 

the Senate Committee on Finance, and I reside in the town of Dorset. There are 17 towns in Bennington County that I represent, 

and the one town, Wilmington, in the county of Windham immediately to its east. 

I am testifying as to the importance of providing local television 

access to residents in rural areas in rural States like Vermont. 

These areas are exemplified by Bennington and Windham counties, 

and I am requesting that the Committee assure that Vermont commercial and public television will be available in Bennington and 

Windham counties. 

Many of the towns in my district are exemplified as rural villages and residences clustered across the rural landscape, some of 

it farms, much of it working forests. These residences are separated in many instances by great distances. Nine of my towns have 

13 

populations of less than a thousand people each, and for many of 

these people, satellite is their only access to television news, weather, and advertising. Most of these towns are located in mountainous areas accessible by one State secondary highway and a 

maze of local roads, many of them dirt roads. 

My constituents remind me that they are unable to receive cable 

television due to the prohibitive cost of bringing cable to rural 

homes given the distance, and even in cases in which cable is available in the area, the cost of bringing it to a few isolated residences 

is prohibitive. These same people, again, have access to television 

only through satellite, but many have no access to Vermont television programming whatsoever because Windham County has 

been assigned to the Boston DMA and Bennington County has 

been assigned to the Albany, New York, DMA. 

My own home is an example of this. Even as a State Senator, 

I do not see Vermont news on my television. 

Thanks to the Leahy provision added in the 2004 reauthorization, DirecTV subscribers in Bennington and Windham counties do 

have access to Vermont television stations. But many of our subscribers are DISH Network subscribers, as I am, and do not have 

access to Vermont television or Vermont programming of any kind. 

I have constituents in this situation who are relegated to leaving 

home in search of a newspaper, which is likely to be a more prompt 

source of news for them. A good example of this is that during an 

election, they have access to television, but to the national results. 

But when it comes to local and State results, they do not have access at all and do not learn about it until 1 or 2 or even 3 days 

later, some of these areas being served only by weekly newspapers, 

which usually come out on a Friday. This search is frustrated 

somewhat further by the absence of what would be called a statewide newspaper. 

To put all of this in perspective, many of my constituents have 

served on their town select boards and school boards and other 

commissions and agencies, many of which are elective offices, as I 

have. Many of the proceedings of these boards and commissions are 

now available through local cable access, and those who have cable 

can see them. But many of my constituents who have served on 

these commissions never see them. They cannot get access to cable, 

and there is nothing for them whatsoever on satellite if they are 

DISH Network subscribers. This is frustrating for them, and they 

seem to feel or seem to express some sense of discrimination since 

they simply do not have access. Many of these people are retired. 

My constituents in Bennington County tend to be older than the 

rest of the State, and they have misgivings about going out at 

night to proceedings of this nature, and they usually occur at night. 

The placement of Windham County in the Boston DMA and the 

placement of Bennington County in the Albany DMA precludes the 

receipt of any Vermont news, weather, and advertising. A specific 

example of this would be that when we watch the Weather Channel at my house and houses similarly situated, we see the national 

weather. We know what is going on. But there is no current status 

and no forecasts for the immediate area, which you would find if 

you had access to cable. You would have a local status and forecast 

for Bennington area, and you would have one for the Brattleboro 

14 

area in Windham County. We cannot see that status from our televisions at this time. 

I believe that all residents, including those in rural areas, have 

a reasonable expectancy of access to news, weather, and other programming relative to their home State and, therefore, of interest 

to them. I urge the Committee to work to assure that residents of 

rural areas such as the area I represent receive satellite television 

at reasonable cost with programming relevant to the State of 

Vermont, the State in which they live. 

Again, I want to thank you, Mr. Chairman and members of the 

Committee, for allowing me to testify about this important issue of 

public policy, and certainly a very important issue to my constituency in Vermont. 

[The prepared statement of Mr. Hartwell appears as a submission for the record.] 

Chairman LEAHY. Thank you, Senator. 

Of course, you have the situation where Vermont is having a 

major debate in the legislature right now, as many other States 

are, on what to do in this economy with the changes in the State 

budget, the changes that are going to affect your constituents certainly in southern Vermont, as well as in all other parts of 

Vermont. And without this kind of coverage, your constituents are 

more apt to hear what is happening in Albany with the New York 

Legislature than they are about what is happening in Vermont. Is 

that correct? 

Mr. HARTWELL. Yes, Senator, that is correct. I think certainly 

they will receive a lot more information about what is going on in 

Albany than they will of what is going on Montpelier. But they 

want to know what is going on in Montpelier. 

Chairman LEAHY. Congress created the local license for satellite 

television, as has been talked about today, in 1999. Let me ask 

each of you: How has authorizing satellite companies to provide 

subscribers with local stations affected competition among video 

service providers from your view? And if you could keep it fairly 

brief, and certainly I will give everybody time to expand their testimony for the record. 

Mr. Ergen. 

Mr. ERGEN. Thank you, Senator. It has been great, I think, for 

consumers. They were asking for it when we started back in 1994 

in this business, in the direct-to-home business, and it took us 5 

years to get a law. And it has been one of the great success stories 

of this Committee to provide competition. The FCC has shown that 

where local channels are provided, customers have benefited from 

increased competition in lower rates for their TV programming and 

more choice. 

Chairman LEAHY. Mr. Yager. 

Mr. YAGER. Well, I believe in competition, and I think the satellite and cable industries have proven to all of us that good competition offers choice as long as we have local-into-local service do 

not differentiate against our local stations. 

Chairman LEAHY. Mr. Franks. 

Mr. FRANKS. It has been nothing but a boon to the video marketplace but, more important, to consumers. I would just stress, 

though, on Senator Hartwell’s point, there is nothing in the law or 

15 

regulation today that prevents a cable or satellite operator from 

bringing Burlington news into the southern Vermont counties. 

Chairman LEAHY. Mr. Cohen. 

Mr. COHEN. Mr. Chairman, I agree with everyone on the panel. 

I think this has been a boon to competition, and I think it has 

made the cable industry a better competitor. And I think price is 

one thing, but I think if you look at the quality and the variety of 

services that are now being delivered by cable, by satellite, and 

now by the telcos as they go into that space, I think all of that was 

stimulated by bringing local television onto satellite. 

Chairman LEAHY. Senator Hartwell. 

Mr. HARTWELL. I would just re-emphasize, Senator, that for us 

it is an availability issue right now. Certainly satellite has been 

very important. Without the satellite, we would have no communication where I live. 

Chairman LEAHY. The Copyright Office in their report has recommended that Congress either unify or harmonize the cable and 

satellite licenses. I have received a lot of mail from your industry 

on this, and each of you has a different perspective on the licenses. 

So let me ask you your views. 

Are there aspects of the satellite licenses that do not work in the 

cable world? How would the broadcasters and content owners view 

such a change? Let us start with you, Mr. Ergen. 

Mr. ERGEN. As Mr. Cohen pointed out, there are some differences 

between what cable does and satellite, primarily because satellite 

has the ability to do a national signal and cable is only capable of 

doing a local signal. 

Having said that, I do believe that it is something that we should 

do, and we should be able to get to a unitary license. Mr. Cohen 

thought it was too complicated to do that. That is typically because 

they have several advantages over us in terms of how much they 

pay for copyright. On a percentage basis, we have paid much more 

than—in the satellite industry, we have paid a much greater percentage of our revenue to license fees. So we think that it needs 

to level the playing field. 

In addition, things like phantom subscribers are things that 

should be fixed, and there are some things that work for cable and 

some things that work for satellite. But I believe that with enough 

effort it would be relatively easy to get to a unified license. 

Chairman LEAHY. Mr. Yager. 

Mr. YAGER. Mr. Chairman, they are obviously very different technologies. The satellite technology and the cable technology are not 

the same. I would be concerned that trying to harmonize them 

might have unintended consequences, but the NAB really does not 

have a position on this issue. 

Chairman LEAHY. Thank you. 

Mr. Franks. 

Mr. FRANKS. I promised our general counsel I would not practice 

law without a license again, Senator. I am far from a copyright expert. I would just say, though, the current system works pretty 

well. And to Jim’s point, Mr. Yager’s point about unintended consequences, when we try and change things to make them better, 

sometimes we do not make them better. And my temptation would 

16 

be, as I testified, to do simply a straight reauthorization of the satellite license. 

Chairman LEAHY. Mr. Cohen. 

Mr. COHEN. Mr. Chairman, just to be clear, I think I heard two 

questions in your question, which are the two possible recommendations from the Copyright Office: 

One, to eliminate the license, and I do not think there is any appetite by anyone on this panel to eliminate the license. I addressed 

it somewhat in my oral testimony, more in my written testimony, 

but I think that calls for the likelihood of chaos, massive disruption 

to customers, and is definitely not a recommendation that should 

be pursued. 

The second half of the question is, OK, if we are going to keep 

the license, should the cable versus satellite provisions be harmonized? And it is our position that they should not be. Again, the 

current structure basically works. There are differences, but those 

differences, I would suggest, are rooted in technology and different 

regulatory treatments; and that if you are trying to level the competitive playing field, you cannot just look at the compulsory copyright license. You have to look at the entire playing field, which is 

a considerably more complicated endeavor that involves a wide variety of regulatory restrictions, some of which are imposed on us, 

some of which are imposed on satellite. 

I would also note that it is not at all clear that, in fact, in the 

aggregate cable ‘‘pays more’’ and satellite ‘‘pays less.’’ And, again, 

the potential disruptions that could come from these changes I 

think are something this Committee has to be concerned about. 

I would close with one—— 

Chairman LEAHY. You would not agree with the Copyright Office 

that Congress should either unify or harmonize the cable—— 

Mr. COHEN. We disagree with both those recommendations. But 

I want to make clear, this is actually not a cable-versus-satellite 

issue. It happens to be an issue on which Mr. Ergen and I disagree. 

But I want to quote to you from some interesting testimony that 

was given on the other side of the Capitol, which I think is still 

in the same jurisdiction, if not in the same Committee, yesterday. 

That testimony, I will just read a very brief portion of it: 

‘‘Harmonization is better in theory than in practice. Imposing 

cable rules on satellite is problematic. Imposing satellite rules on 

cable cannot be any better. In the real world, harmonization would 

almost certainly result in consumer disruption.’’ 

The source of that testimony was DirecTV testifying against harmonization of the cable and satellite licenses. 

Chairman LEAHY. Thank you. My time is up, and I will yield to 

Senator Hatch—unless you wanted to add something to that, Senator Hartwell. 

Mr. HARTWELL. Thank you, Senator. For me, it is—— 

Chairman LEAHY. You just want to get the service. 

Mr. HARTWELL. The signal is coming from the satellite, Senator. 

Yes, that is what I want. 

Chairman LEAHY. Thank you. 

Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. 

17 

Now, Section 109 of SHVERA, the Satellite Home Viewer Extension and Reauthorization Act, required the Copyright Office to examine and compare the statutory licensing systems for the cable 

and satellite television industries under Sections 111, 119, and 122 

of the Copyright Act and recommend any necessary legislative 

changes no later than June 30th of 2008. 

Now, I know some of you referenced the report in your remarks, 

but I would like to just ask this question, for anybody who cares 

to answer it: Did the Copyright Office get it right or didn’t it? Mr. 

Ergen. 

Mr. ERGEN. I will start with that. I think in general they got it 

right. We all have our different constituencies. Some of us are public companies. We all have our own self-interest here. The Copyright Office really is an independent party, really does not get into 

shareholders and different constituencies. And so I think in general 

they got it right, and most of the panel here, other than myself, 

have said, ‘‘We do not want to change anything.’’ And that is usually indicative of a marketplace where somebody is pretty comfortable. They do not want to change anything because they do not 

want additional competition and so forth. And I think in general 

the Copyright Office is a good place for this Committee to start, as 

it is written by a third-party, objective observer. 

Senator HATCH. Anybody else care to comment? 

Mr. COHEN. I think, Senator, as I said, the Copyright Office got 

some things right. I think they got some things wrong. And one of 

the reasons for that is that I think when you look at the purposes 

of the compulsory copyright license, there were a number of stakeholder interests that needed to be examined: copyright owners, distributors, and the consumer interest. And I think where the Copyright Office fell down is that they did not properly value the consumer interests and the risks of disruption to our customers and 

your constituents to some of the changes that they proposed. And 

I think that is the underlying reason why they reached contrary 

conclusions, or conclusions that I do not think are supported by the 

overall public policy objectives that this Committee has in front of 

it. 

Senator HATCH. OK. The 2008 Copyright Office Report states 

that the cable and satellite industries are no longer dependent 

upon distant signals, as they were at the outset of the licenses, so 

repealing the distant-signal licenses will not have the dramatic effect that it would have had years ago. 

I would just like to know what your thoughts are on this finding. 

And what is your response to the argument made by the Copyright 

Office that current distant licenses have impeded the development 

of the sub-licensing system? And how would repealing the distantsignal licenses affect viewers? Yes, Mr. Yager. 

Mr. YAGER. Repealing the distant-signal license is just part, I 

think, of the progress we have made in technology in terms of the 

satellite industry, as well as the cable industry. The NAB supports 

repeal of the distant-signal license. We support the local-into-local 

in all small markets, and they are all small markets that do not 

have local-into-local today. So we would support local-into-local, but 

we think basically the Copyright Office got it pretty right the first 

time. 

18 

Senator HATCH. Mr. Yager, the Internet has opened up a whole 

new world of how television networks offer news, sports, entertainment, and other types of programming. Now, online video 

aggregators, like iTunes and Hulu, allow us to download or share 

their content over the Internet. Now, slingbox technology allows 

one to redirect local network streams remotely. Of course, not to be 

forgotten are digital recorders which allow viewers to watch programs at their leisure. 

Now, with everything available to the consumer today, why are 

you opposed, if you are, to importing TV stations’ signals from adjacent DMAs, especially in areas where those DMAs cross State 

lines? Let me give you an example. If my fellow Utahans are receiving their local channel either through their cable or satellite 

providers, but want to pay an additional fee to receive a Las Vegas, 

Nevada, channel or a Denver, Colorado, channel, why would you 

oppose that option? And do you agree that in light of the emerging 

technologies, a new approach will be necessary to address how consumers are accessing TV programming? 

Mr. YAGER. I think the issues of DMAs and in-market/out-ofmarket stations are much more complex. Let me just give you an 

example of a station we own in Amarillo, Texas. It serves three 

counties in Oklahoma, up in the Oklahoma Panhandle. We are in 

the Texas Panhandle. The closest in-State station to those three 

Oklahoma counties is 334 miles away, and an omnibus change to 

the definition of ‘‘DMAs’’ could gigantically impact the service we 

provide to those three small counties in the Panhandle of Oklahoma. We are the ones who put emergency information on the air 

for them. We are the ones who report their school closings. We are 

the ones who cover their high school football games. And we are 

the ones that cover their local political institutions. 

It is hard for me to believe that a station that is 335 miles away 

would do the same for those three counties that we would do. That 

is the essence of the DMA structure we have had in this country 

for now about 45 years. 

I would strongly believe that—there are exceptions, certainly, to 

DMA, and there are four exceptions currently to the in-State/outof-market regime. But if we are going to get into DMAs, we have 

got to look at each one as an individual kind of situation. 

Let me just give you one other: North Carolina. For years, I managed a station in Spartanburg, South Carolina, that served the 

northwestern part of the State of North Carolina. We had 40 translators up in the North Carolina area. If we could not serve that 

area, that market would have lost its viability in terms of its North 

Carolina audience, and the Asheville station would then be competing, if they brought in in-market stations, against much larger 

stations from Charlotte, North Carolina. 

So I really think when we get into the DMA situation, it is a 

much more complex situation than just saying let’s bring in out-ofState stations to in-market stations—markets. 

Senator HATCH. Mr. Franks. 

Mr. FRANKS. Senator Hatch, let me address two points, I believe. 

As one of the networks that is providing content over the Internet, 

let me point out that we do not do that until a considerable period 

of time after it has aired live on the network. So that is one issue. 

19 

Another is we do not put on our full complement of programming, either because we do not have the rights or for another business reason. But if as we enter into the Internet distribution of our 

programming, it is done as a private contractual agreement either 

with our affiliates or with—we supply video on demand to Comcast, 

or we are about to start supplying video on demand to Mr. Ergen. 

Those are private contractual arrangements that, frankly, work 

just fine and I do not think need congressional intervention. 

On the out-of-market question, I think the biggest—as I say, outof-market news can be provided today. Once you get beyond news 

into either the entertainment programs or the sports programming, 

you enter a whole new web of copyrights, and of rights holders, and 

it is a very complicated world. But even more important than that, 

if Las Vegas starts coming into southern Utah, you are going to ultimately undermine not only the economics of the stations in Salt 

Lake or St. George or other parts of the State, but you are also 

going to hurt the local businesses that advertise on that station. A 

car dealer in St. George is buying an ad to reach that region. If a 

Las Vegas car dealer ad is coming in, I do not think too many people from St. George are going to Las Vegas to buy their car. And 

you are going to undermine that local economy, not just the station. 

Senator HATCH. You never know. 

Mr. ERGEN. Senator, if I may, I would like to give an opposing 

view, perhaps, that our customers tell us about. You have heard 

that it was too complicated, these DMAs are too complicated and 

so forth. If we listen, with all due respect, to the broadcasters here, 

we would still have the horse and buggy. 

As you correctly point out, technology has changed. You can 

watch any of these channels on the Internet. Why can’t you watch 

them on your satellite or cable system? 

And consumers, you cannot just put the news on and turn it on 

and off. It would be disruptive to consumers. And as Senator 

Hartwell said, people in Vermont in March Madness that is coming 

up, they want to watch the University of Vermont when they are 

in southwest Vermont. They do not want to watch the University 

of Rutgers because they are getting the Albany station. And at 

some point, I hope that the desires and the rights of consumers and 

what people want to see, they can get another technology until we 

bring the broadcasting world into the 21st century, into the digital 

age. And I think we have to keep the consumer in mind. 

Chairman LEAHY. We have gone way over time, and we are going 

to have to—and I am supposed to be at another hearing. But, Mr. 

Franks, I would give you—very, very briefly. 

Mr. FRANKS. What Mr. Ergen just said is not that he cannot deliver the local news. It is that he does not want to deliver the local 

news without also being able to deliver the prime-time programming. 

Mr. ERGEN. Let me just put on the record that that is not true. 

I have gone to broadcasters to deliver local news, and what they 

say is, ‘‘Well, our local news has national content in it. So when 

we do the local news from NBC, we may carry a national feed of 

NBC during the middle of the news, and we do not have the rights 

to do that. So we cannot give you the rights to do that.’’ 

20 

So it is beyond news. It is also—but it is really people in 

Vermont want to see Vermont, and it is as simple as that. It is not 

complicated. And when you start—when people on a committee up 

here start talking about complicated, that is code for, ‘‘We do not 

want competition.’’ 

Chairman LEAHY. We are going to go to Senator Feingold and 

then Senator Kaufman, Senator Klobuchar, and Senator Cardin, 

depending upon which ones are here. I am going to step out briefly 

and turn the gavel over to Senator Feingold. 

Senator FEINGOLD [presiding.] Thank you, Mr. Chairman. 

Thanks for having this hearing on television and the digital age. 

I know that the focus of this hearing is primarily on the SHVERA 

reauthorization, but I did want to take a minute to focus on some 

concerns of my constituents. Let me start with a comment on the 

digital transition itself, which has been a stressful time for many 

of my constituents who rely on over-the-air television for information and entertainment. 

I want to acknowledge the hard work of many of your companies 

in helping to get the word out about the transition. I know that the 

Wisconsin broadcasters were diligent about setting up regional call 

centers and also believe that other industry segments were involved as well. While clearly there were problems with the converter box coupon program that are now being resolved, I remain 

concerned about individuals on the edges of markets that are going 

to be unable to receive over-the-air digital signals and are facing 

the prospect of significant expense to either subscribe to a pay-TV 

service or invest in an antenna that may or may not fix their situation. 

Similarly, the shift from analog to digital in pay-television services can also have ramifications as channels are shifted and compatibility issues arise with older television sets. These burdens can 

be especially daunting for low-income individuals and seniors living 

on a fixed income, and we have to make sure that we keep these 

populations in mind, particularly because many of them rely so 

heavily on television for entertainment. 

The other main area of concern I heard about in Wisconsin regards content. I go to every one of Wisconsin’s 72 counties every 

year for a public town hall meeting. I cannot say that television is 

one of the top topics, but in the northwestern part of Wisconsin, it 

is a consistent concern. No offense to Senator Klobuchar, who was 

just here, but as was just being indicated by some of you folks, my 

constituents want to know why they can only get news about what 

is happening in Minnesota’s government rather than about the 

laws and budget of Wisconsin. And while they can understand that 

some football fans might want to see the Vikings—we do have a 

little bit of dissension in that part of the State—most of my constituents only want to watch them when they lose to the Packers. 

[Laughter.] 

Senator FEINGOLD. And they are extremely frustrated by what 

they see as an arbitrary decision on a map that prevents them 

from seeing their favorite team. So let me turn to my questions. 

Mr. Ergen, in your testimony you mentioned the need to find a 

way to address this situation. Tell me a little bit more about how 

you would envision this working. Would consumers have to subVerDate Nov 24 2008 09:19 Dec 29, 2009 Jkt 053927 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53927.TXT SJUD1 PsN: CMORC
21 

scribe to an additional in-State station and pay a fee? Would copyright holders and broadcasters be compensated? 

Mr. ERGEN. Yes, I think the solution is very simple, and the 

Copyright Office addressed this in part. I think we need to expand 

the definition of ‘‘local into local.’’ We all know that in the DMA 

we can broadcast the local stations. We need to expand that ‘‘localinto-local’’ definition to include the adjacent DMA. I believe that to 

do that, to protect broadcasters, as Mr. Yager had said, you must 

first broadcast to the local market DMA, and then you would have 

the right to bring in the adjacent market. You then should compensate the adjacent market through retransmission consent and 

private agreements. That way the copyright holder is also protected. 

There will be differences in sports leagues and so forth and so 

on, and I think that once you expand local to local, the copyright 

holders will do their negotiations around that expanded local into 

local. I think it is a very, very simple solution. 

Senator FEINGOLD. OK. Mr. Yager and Mr. Franks, Senator 

Hatch and Senator Leahy sort of touched on this, I think, but I noticed in your prepared testimony that you would oppose modification of DMAs to allow my constituents to watch the Packers and 

receive local news. Believe me, it will not go over well at my next 

town hall meeting during football season in northwestern Wisconsin. Do you have another solution to the issue? Or in your 

minds is it simply not a problem? 

Mr. FRANKS. Well, first off, Senator, unlike what Mr. Ergen said 

a few minutes ago, the CBS Television Network is willing to sign 

off any rights in our news programming to allow our local affiliates 

to give the right to an adjacent market to carry their local news. 

Local news is not really an issue in this hearing, I do not believe. 

The sports questions, though, are a very different question because there you are dealing with a very powerful rights hold—in 

this case, the National Football League—and with all due respect, 

I think it is a question you really need to address to them, because 

even if we wanted to allow that adjacent market in, we do not have 

the contractual right from the league to do that. And, in fact, we 

are regularly called upon by the league to enforce their territorial 

blackouts as part of our contractual obligation to them. 

Senator FEINGOLD. Mr. Yager. 

Mr. YAGER. Well, I agree with my colleague from CBS. They are 

the ones who negotiate for the national rights for major sporting 

events, and they negotiate with the NFL. The local station has very 

little it can do to carry an NFL game other than work with its network on what they offer. 

I understand the problem from—I happen to be a Bears fan, so 

I do not totally understand the problem that anybody would want 

to watch both the Packers—— 

Senator FEINGOLD. Well, we have a problem with that in another 

part of the state. 

[Laughter.] 

Mr. YAGER. But it really is something you should be addressing 

with the NFL because it is a contractual—— 

Senator FEINGOLD. All right. My time is up. I would turn to Senator Cardin for his round and turn the gavel over to him. 

22 

Senator CARDIN [presiding.] Well, let me thank you all. I really 

came to this hearing to try to learn more about this issue. I represent Maryland, as you know, and we really have not seen the 

problems that have been expressed by those Senators who represent States that have a larger rural community. I represent rural 

areas in Maryland, and they do have this issue, but it has not been 

a dominant issue. I really wanted to try to understand more about 

the challenges. 

I was pleased to hear the last response, and I just hope that we 

can clarify that, because local content news is perhaps the most 

single important issue that we want to make sure communities can 

receive. And it seemed like there was more agreement than the information that we had received before. So perhaps we have made 

some progress on that as a result of this hearing. 

The other matter that I find challenging is that we have technology changing all the time, and with the use of the communications through the Internet, competition is not what it was when 

these laws were developed. And I think as we look at trying to harmonize and modernize the laws as it relates to different ways in 

which families receive their video communication, we have to be realistic that technology is not static and will continue to change and 

that what we put in law will be able to allow for fair competition 

and access as we move forward on these issues. 

So, with that in mind, I am just going to ask a general question 

as to are there changes that we should be looking at because of the 

technology changes that are currently taking place. As it relates to 

the way individuals can get video communication today, it is not 

from the conventional television set, but it is from so many different other sources. Do you have any advice for us in that regard? 

Mr. ERGEN. I think I will start with that, and I was privileged 

to testify yesterday on the House side Commerce Committee where 

a representative from Consumers Union, Ms. Sohn, talked about 

this particular subject, and also a representative from one of the 

think tanks talked about this subject. And the big thing is that geographic lines no longer mean anything. In fact, almost they do not 

even mean anything around the world, but they certainly do not 

mean much anymore with today’s technology from a geography 

DMA line that is randomly drawn through a Nielsen rating from 

50 years ago on a map. You know, we showed a map earlier from 

Iowa that shows just how convoluted those DMA maps are. So with 

the advent of the Internet, it is ludicrous that you could watch any 

TV on your computer, but on your TV set you have to be in some 

DMA line that was broadcaster to broadcaster. 

So what I hope does not happen is we do not go another 5 years 

with restrictions that do not keep up with the technology, and I 

think you have to look at that. Your point is well taken. 

Senator CARDIN. I appreciate that. 

Mr. Yager. 

Mr. YAGER. I would hate to mix technology with the DMA issue. 

The DMA issue is one that is voted upon by the viewers in their 

community. And, by the way, DMAs change every year. But your 

point on technology is a very valid one. It does not really impact, 

I think, the DMA issue, as Mr. Ergen would suggest. 

23 

Where we think technology is going, look what we can do with 

digital. Look what we will be able to do with digital. Today we can 

probably multi-cast two channels other than the major channel we 

have. We think this is going to solve a lot of local problems, local 

service problems in the communities we serve. And we agree with 

you. We think technology is growing very rapidly, and when we get 

out of MPEG2 to MPEG4, which allows us to probably multi-cast 

four or five channels in the local market, Mr. Ergen is going to 

have further problems because we are going to say we want those 

carried as well on satellite. 

Mr. FRANKS. Senator Cardin, let me put on a slightly different 

hat, if I may. Instead of television network per se, let me be a program producer. For instance, we own the three ‘‘CSI’’ programs, 

three of the top-ten most popular programs in the country. A challenge for us is that technology is indeed breaking down the windows and the business models in which we air that programming. 

But the technology is ahead of the economic models. So while, yes, 

we put the ‘‘CSI’’ on the Internet on a delayed basis for a videoon-demand experience for consumers, our network business is a 

$4.5 billion business, and attracting the advertisers to that simultaneous national viewing of a Thursday night ‘‘CSI’’ episode is what 

allows us to spend millions of dollars to create just that single episode. 

The revenues from the Internet are still in comparison de minimis, and it is why we are very careful in how we manage our Internet business so that it does not completely cannibalize the economic model that allows us to produce this popular programming. 

That is the threat we feel from technology. We will sort out our 

business issues with Mr. Ergen and Mr. Cohen. We are all big companies. We can protect ourselves pretty well. It is this attack on 

the economic model, the disruptive technology in that sense of the 

economic model, and it becomes a problem because if we do not figure that out, then it is going to be very hard—I mean, who is going 

to produce that programming? The Internet itself cannot produce 

the program. And how do you know that you want to go watch a 

program on the Internet? You know because the demand has been 

created by the dinosaur network. 

Senator CARDIN. Is that factored into your negotiations today, 

that economic reality of current technology? 

Mr. FRANKS. It is why we try so hard to protect our windows, it 

is little things like DMAs. That $4.5 billion dinosaur network business, if you will, is what fuels all of that program creation and 

makes it possible for people like Mr. Ergen to resell our signal. 

Senator CARDIN. Senator Wyden, the gavel is yours. 

Senator WYDEN [presiding.] Thank you, Mr. Chairman, and I 

want to apologize to all of our guests. We had a very long hearing 

in the Finance Committee, and I am coming in late, and I am going 

to try not to plow over too much that people have already pummeled. 

My concern is born out of what I hear at home, and what I hear 

at home is tens of thousands of Oregonians get up every day to see 

their television broadcast—television that is important—coming 

from somewhere else and coming largely with news that they do 

not have a great interest in. It might be Washington, it might be 

24 

Idaho, but it certainly is not Oregon. And I have been pushing for 

a great many years—I was also on the Commerce Committee. My 

spouse said the other day, ‘‘Dear, what Committee are you not on? ’’ 

And now that I have picked up this Judiciary Committee assignment, I come to the Satellite Home Viewer Act with a perspective 

from a judicial outlook. 

From my vantage point, it is hard to see how just putting Bandaids on this issue, the question of reforming the Satellite Home 

Viewer Act, is going to really address the concern. You need to create what is, in effect, a bright-line fix that cannot involve manipulation and ensures that people can get broadcasts that they really 

care about, that represent the concerns and interests that they aspire to hear about on a daily kind of basis. So I think what I would 

like to do for a few minutes is touch on these issues. 

Mr. Ergen, you have had strong views on these topics for a lot 

of years, and let me start by getting your view with respect to the 

importance of these kinds of concerns—in-State news, weather, 

emergency notices. You have been in this business a long time. 

What is your sense about how people look at this? 

Mr. ERGEN. I am 100 percent confident how they look at it. They 

look at it in the State of Oregon that they want to see the news, 

weather, and sports of Oregon. And these randomly drawn lines on 

a map 50 or 60 or 70 years ago by a Nielsen company who does 

not even want to take ownership for these lines today in today’s 

digital world do not make sense. 

Mr. Yager earlier said that the consumer voted on these lines. I 

know of not one consumer who has ever voted in Oregon to watch 

Washington when it could watch Oregon. The technology exists, 

both through cable and satellite, for the people of Oregon to be able 

to watch channels in Oregon. 

Senator WYDEN. And so your argument is that these rules are 

simply outdated. I mean, talk about health reform, something you 

and I have talked about, there you are dealing with the 1940s, a 

day when people stayed somewhere at the workplace 20, 25 years 

until you gave them a gold watch and a big steak dinner. And we 

are talking about reforming the health system to modernize these 

health rules. And you are talking about, I think, much the same 

thing as it relates to the Satellite Home Viewer Act. 

Mr. ERGEN. Again, I do not want to live in the horse-and-buggy 

age. I think that the Internet and satellite technology, along with 

digital cable, these are fantastic technologies that are able to now 

deliver consumers what they want to watch, where they wanted to 

watch it, and only the incumbent generations of people who do not 

want competition, you missed—you know, earlier in the panel everybody said things are too complicated, we do not want to change 

anything. Well, nobody wants to change anything when they make 

good money and do not have competition. Of course, you do not 

want to change. 

But as you know, the consumer is saying you should change because the technology does allow us. We can watch it on our phone. 

We can watch it on our computer. Why can’t we watch it on our 

TV? 

Senator WYDEN. Now, how would an adjacent DMA fix, which is 

largely the concept that is being discussed here, that allows all satVerDate Nov 24 2008 09:19 Dec 29, 2009 Jkt 053927 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53927.TXT SJUD1 PsN: CMORC
25 

ellite providers to offer State-specific stations to their customers 

solve these problems? What are the implications of an adjacent 

DMA fix? I guess that would be the way to characterize it. 

Mr. ERGEN. Well, it is a very simple fix for consumers. It just allows you to bring in the adjacent DMA along with the local DMA. 

I think you should be required to do the local DMA. I do think— 

and we do not have a representative from sports leagues here or 

other copyright holders, and I do not want to speak for them. I 

think that they would have to renegotiate their contracts around 

what I call ‘‘expanded local,’’ which is to expand the definition of 

local to include your current local DMA and an adjacent DMA. 

That would solve the in-State problem where the 45 States import 

signals—I mean, from different States than their own State. That 

would solve that problem and give customers a choice. We can protect the local broadcaster by requiring the local broadcasts to be 

broadcast as well. 

Mr. FRANKS. Senator Wyden, may I jump in? 

Senator WYDEN. Yes. Go ahead, Mr. Franks, and we are going 

to have some questions for you, too. 

Mr. FRANKS. I look forward to them, as always. 

With regard to the local news problem, there is nothing in today’s law or regulation that prevents a cable operator or a satellite 

operator in the State of Oregon from providing that local news. The 

local station controls that copyright, and so there is no reason right 

now that your constituents could not be delivered the in-State local 

news product that you want. There is no impediment in the law or 

regulation to doing that now. 

Senator WYDEN. Mr. Ergen. 

Mr. ERGEN. I do not believe that is true. I have tried—I have met 

with Gannett Broadcasting, and I have tried to bring in the local 

news. I even talked about doing regional concepts. Ultimately what 

they said was—and this is an NBC affiliate so I do not want to 

speak for Mr. Franks, who is CBS. They said, well, we own the 

copyright to our local news, but we do not own the copyright to the 

national news, and our local news feeds are interlaced with national stories. So when President Obama was talking last night, 

that is a national story that national NBC owns the copyright. The 

local broadcaster did not have the right to give that news to me. 

Second, the consumer is interested in more than just news. He 

is interested in sports. So March Madness comes up, in Oregon 

they may want to watch the University of Oregon. They may not 

want to watch Gonzaga, which is what may be shown by the CBS 

affiliate that comes from Yakima or Spokane into Oregon. 

So it is a broader issue than that, and, look, it is a question of 

do we want to be on the side of consumers or do we want to be 

on the side of special interests that I represent and other people 

at this panel represent? And that is a choice that this Congress has 

to make. 

Senator WYDEN. Mr. Franks I think is champing at the bit to say 

some more. 

Mr. FRANKS. I just do not quite understand how I am representing the special interests here. If there is a problem in Oregon 

that involves the CBS Television Network and a local CBS affiliate 

in providing local news product to your constituents, I would be 

26 

happy to start working on it this afternoon, because it is not a 

problem. 

Senator WYDEN. That may be what it comes to—under Chairman 

Leahy’s auspices sending you all out to do some negotiating so that 

we get this resolved, because this has gone on for too long. 

As I look at this question, adjacent DMA, nobody is talking about 

doing this everywhere on the planet, only where there is not otherwise available State-specific affiliate broadcasting. So we may have 

to send good people like Mr. Franks and Mr. Ergen out to have 

their own kind of negotiation and put this together, because it is 

time to get this done. 

Mr. FRANKS. Well, I doubt that your constituents really care 

where they get their ‘‘CSI.’’ Part of what Mr. Ergen is also trying 

to do is to be able to import ‘‘CSI’’ into that market, and then we 

do begin to have a problem because then you are undermining the 

local station. But to the extent that this is about news, it is not 

a problem—it is a problem, I understand, but the solution to the 

problem exists right now. 

Senator WYDEN. Do you want to bat this around some more, Mr. 

Ergen? 

Mr. ERGEN. Well, I am pleased to hear Mr. Franks say CBS 

would give us the rights to the—would give their national rights 

to their affiliates—— 

Mr. FRANKS. I did not say I would give them to you, but I would 

give them to our local affiliates. 

[Laughter.] 

Mr. ERGEN. That is right, local affiliates in—I think Mr. Yager 

wanted to jump in here because I did not want to—— 

Senator WYDEN. We are teeing you up, Mr. Yager. 

Mr. YAGER. Okay. Number one, our company would be happy— 

we have never been asked to give the rights to any of our newscasts, special programming to—by any satellite or cable company. 

I can say without question here I would be more than willing to 

work with our NBC, FOX, and ABC affiliates to get the rights to 

carry their news. Mr. Franks said we could always do that, so our 

CBS affiliates are available to Mr. Ergen to State lines at any time 

he wants as of this hearing. 

That is what is in the law, and we want to abide by the law. I 

was not aware that other affiliates might be using the network 

news angle and saying we do not have the copyrights. I think that 

is a simple problem to work out. 

Senator WYDEN. That is promising. 

Mr. ERGEN. I think that is great. I think that is great, and I am 

glad to hear that CBS will take the lead, and hopefully they can 

convince some of their other constituents or the other networks to 

do something similar. And I think Mr. Yager made a kind offer as 

well, and I think that would be an important step. 

Senator WYDEN. That is real progress. You can take the rest of 

the day off. 

[Laughter.] 

Senator WYDEN. Listen, can I ask you one—— 

Mr. FRANKS. But I do think it is significant, Senator, that no one 

has ever asked him. How long have you been in the business, Jim? 

27 

Mr. YAGER. You do not want to know. I should be at Senator 

Kohl’s hearing—— 

Senator WYDEN. I guess I just did, so—— 

Mr. FRANKS. No, but I mean that no satellite or cable operator 

has ever asked. So, I mean, if there is this pressing need and this 

urgent desire to meet the needs of customers and constituents, in 

some ways we are hearing about it relatively late in the game. 

Senator WYDEN. I am going to quit while I am ahead. I think we 

are on our way to making some progress. 

Just one other question for you, Mr. Yager. When our country 

switches over to digital on the 12th of June, obviously broadcast 

and TV changes dramatically. Folks in rural areas like rural Oregon who used to make do with a weak signal and a little snow 

on their TV screens are going to end up sometimes with no picture, 

no sound at all, unless the local broadcaster takes step to improve 

signal strength and coverage. 

What is being done on this point to make the necessary investments so that these communities get the kind of quality service 

they deserve? 

Mr. YAGER. Well, I think most responsible local broadcasters are 

taking steps to, if they have had a side-mounted digital antenna— 

and I think that is what you are referring to, where the digital signal might not be totally at this point in time replicating the analog 

signal in a given market, that can well be because of the power 

kind of being deficient to what they are going to have on analog 

or because they have got a side-mounted antenna. 

I can only speak for my company. We intend to fully replicate the 

analog signal, and the beauty of that is that when you replicate the 

analog signal, it is not a snowy picture. It will be a picture that 

that viewer can see without distortion. 

Senator WYDEN. And for you, Mr. Cohen and Mr. Hartwell, we 

have largely spared you the grilling here today. Would you all like 

to add anything? In fact, what is really timely about this, and the 

comments of Mr. Franks, Mr. Yager, and Mr. Ergen, is that I think 

it is fair to say that the administration, the Obama administration, 

with all they have had on their plate, has not exactly laid out all 

of their goals for Satellite Home Viewer reauthorization, and I 

think it is helpful to have been able to have the three of you respond to some questions because I think it suggests that there may 

be more of a consensus here than people thought. And I want to 

give Mr. Cohen and Mr. Hartwell a chance, in effect, to make any 

comments they want, and we will wrap this up. 

Mr. Cohen, anything you want to add? 

Mr. COHEN. Senator, I think all I would say is that although I 

will plead guilty to being one of the folks on the panel who said 

that the adjacent DMA issue was complicated, what I also said was 

I think that there is dialog that can occur. We have found some 

fixes around this problem, for example, in—we, Comcast, and so I 

have some familiarity with it—in southern Vermont, and it does 

not help Senator Hartwell’s constituents who are living in the most 

rural areas of southern Vermont where cable just cannot economically extend. 

We do currently carry WCAX, which is the CBS affiliate in Burlington. We bring that in as a distant signal under the compulsory 

28 

copyright license. It happens to be the network affiliate, I am told, 

that has the most local news and the most local coverage. And it 

has been a way for us to satisfy or at least largely satisfy our customers in southern Vermont who were complaining to us, as well 

as to Senator Hartwell and Senator Leahy, about the absence of 

local news and local news content in southern Vermont. 

So we are prepared, we as an industry are prepared to sit at the 

table, to be at the table, to look whether there are business solutions or legal solutions to these issues, and we are happy to be a 

partner in trying to help resolve those. 

Senator WYDEN. Mr. Hartwell, anything you want to add? 

Mr. HARTWELL. Yes, thank you, Senator Wyden. I appreciate 

your introductory remarks. They go right to the point that the 

issue that is bothering many Oregonians is the same issue that is 

bothering many Vermonters. I look forward to what would be a 

novelty in my case, to turn on the television set in my home in Dorset, Vermont, and see the Burlington, Vermont, television. And we 

do not do that. We do not see that. But that is what we want. 

Senator WYDEN. Well, I appreciate the panel. The fact of the 

matter is if you have these States—and Vermont and Oregon are 

particularly concerned. We have got large swaths of our State that 

simply are not able to watch news and information that we feel 

strongly about because their ‘‘market area’’ is somewhere else. And 

I think we have been able to make some progress today in terms 

of our witnesses looking at some ways to bridge the differences. So 

this has been constructive. 

Again, I apologize to our panel for coming in late and having to 

try to pick up on some of the earlier comments. But I like the tone 

of the outcome and where we are headed, and we will look forward 

to following up under the leadership of Chairman Leahy and Senator Specter. 

With that, we are adjourned. 

[Whereupon, at 11:40 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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