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[Federal Register Volume 77, Number 60 (Wednesday, March 28, 2012)]
[Notices]
[Pages 18869-18871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7430]

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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2011-1]

Cable Statutory License: Specialty Station List

AGENCY: Copyright Office, Library of Congress.

ACTION: Final specialty station list.

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SUMMARY: The Copyright Office is publishing a final list of stations 
listed in affidavits sent to the Copyright Office in which the owner or 
licensee of the station attests that the station qualifies as a 
specialty station in accordance with the Federal Communications 
Commission's (``FCC'') definition of specialty station in effect on 
June 24, 1981. The list shall be used to verify the specialty station 
status of those stations identified as such by cable systems on their 
semi-annual statements of account.

DATES: Effective Date: March 28, 2012.
    Applicability Dates: The list is applicable to statements of 
account filed with the Copyright Office beginning with the first 
accounting period of 2012 covering January 1, 2012 to June 30, 2012.

FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant General Counsel, 
and Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R, P.O. 
Box 70400, Southwest Station, Washington, DC 20024. Telephone: (202) 
707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: Under the cable statutory license, 17 U.S.C. 
111, a cable operator may retransmit the signal of a distant television 
station identified as a specialty station at the base rate rather than 
at the higher 3.75% rate that is incurred for the carriage of a non-
permitted signal. 37 CFR 256.2(c). Specialty station status is 
determined by reference to the former regulations of the FCC which 
defined a specialty station as ``a commercial television broadcast 
station that generally carries foreign-language, religious, and/or 
automated programming in one-third of the hours of an average broadcast 
week and one-third of the weekly prime-time hours.'' 47 CFR 76.5(kk) 
(1981). The specialty station designation was part of a complex 
regulatory structure governing the carriage of distant network station 
signals in the 1970s. However, the FCC no longer determines whether a 
station qualifies as a specialty station. It repealed its distant 
signal carriage rules in 1981 and has not reviewed its specialty 
station policy since that time. Nevertheless, the Office still keeps an 
active list because it is relevant to the calculation of royalties 
under Section 111.
    On this point, it should be noted that over twenty years ago, the 
Office implemented policies and procedures concerning notice to the 
public regarding specialty stations, the point of which was to provide 
all interested parties with a chance to comment on those stations 
claiming specialty status. It was the Office's intention at that time 
that the notice, publication, and objection procedures would give all 
parties a chance to cooperate in their assessment of the specialty 
stations on the list. 54 FR 38461, 38464 (September 18, 1989). The 
Office published its first specialty station list in 1990 under these 
procedures which allowed the owner of

[[Page 18870]]

the station to file an affidavit with the Office attesting to the fact 
that the station's programming comports with the 1981 FCC definition, 
and hence, qualifies it as a specialty station. 55 FR 40021 (October 1, 
1990). The Office noted at that time that it would periodically update 
the list and has done so on several occasions.
    Accordingly, on January 28, 2011, the Office again initiated a 
proceeding to update the list with the publication of a Notice in the 
Federal Register asking the owner, or a valid agent of the owner, to 
file a sworn affidavit stating that the station's programming satisfies 
the FCC's former requirements for specialty station status. 76 FR 5213 
(January 28, 2011). The Office received affidavits from 63 broadcast 
stations for which the owner or licensee of the television station had 
filed the requested affidavit. The Office then published an initial 
specialty station list in the Federal Register on April 22, 2011. 76 FR 
22733 (April 22, 2011).
    In the aforementioned Notice, the Office stated that any party 
objecting to any claim to specialty station status must submit comments 
with the Office stating his or her objections within thirty days of 
publication of this Notice in the Federal Register. The Motion Picture 
Association of America, Inc. (``MPAA'') made such a filing and objected 
to the inclusion of certain television stations. MPAA also contended 
that the Register has the authority to determine whether a particular 
station is properly identified as a specialty station. In its 
objection, MPAA referred to the standards set forth in 17 U.S.C. 
411(b)(1) regarding the use of a registration certificate for purposes 
of filing an infringement suit, noting that the certificate of 
registration would not be valid for this purpose if the application 
contained inaccurate information which, ``if known would have caused 
the Register of Copyrights to refuse registration.'' MPAA maintained 
that the same principle should apply in the case of specialty stations 
where the Office has accurate information to make a final determination 
as to whether a particular station should be characterized as a 
specialty station.
    In a subsequent notice, the Office provided an opportunity for the 
television broadcast stations that had filed affidavits attesting to 
their specialty station status the opportunity to rebut any objections 
filed to their identification as a specialty station and clarify their 
status for the purposes expressed herein. Moreover, the Office sought 
comment on MPAA's contention that 17 U.S.C. 411(b)(1) provides 
authority for, or is relevant to, whether the Office can make a final 
determination on the classification of a broadcast station as a 
specialty station. See 76 FR 69288 (Nov. 22, 2011). In addition, in 
keeping with its earlier practices, the Office notified each station 
directly of the objection to its filing and of the opportunity to file 
reply comments in support of its affidavit.
    Storefront Television, LLC d/b/a Caribbean Broadcasting Network 
(``Storefront''), the licensee of WPRU-LP, WSJX-LP, and WVXF(TV) 
responded to the objection of the MPAA to the inclusion of its three 
stations in the specialty station list compiled by the Office. It 
commented that the FCC determined that English language programming is 
foreign language programming in Puerto Rico and English language 
stations imported into the San Juan market are considered specialty 
stations. See Cable Television Co. of Puerto Rico, 46 FCC 2d 1096 
(1974); Cable TV Puerto Rico, 68 FCC 2d 609 (1978). It asserted that 
WPRU-LP and WSJX-LP, as English language stations licensed in Puerto 
Rico, qualified as specialty stations. With regard to WVXF(TV), 
Storefront stated that this television station is licensed to the US 
Virgin Islands, but its English language programming is imported into 
Puerto Rico. It concluded that this station also qualified as a 
specialty station under the circumstances. See Storefront Reply to 
Opposition at 1-2.
    Venture Technologies Group, LLC(``VTG'') (licensee of WNYA-CA, 
KHTV-LP, WNJJ-LD, KEBK-LP, KFIQ-LP, KILA-LP, KMRZ-LP, KRMV-LP, KRPE-LP, 
KRVD-LP, KSCZ-LP, KSGO-LP, WXOX-LP, KFMP-LP, KDBK-LP, W20CM, W26DB, 
W34DI, W42CX, W46DQ, W49DK, W52DW, W59EA), Four Seasons Peoria, LLC 
(licensee of WBQD-LP), World Television of Washington, LLC, and WLFM, 
LLC (licensee of WLFM-LP) also filed a response to MPAA's objection to 
the inclusion of several of their stations on the specialty station 
list compiled by the Office. These four broadcast groups asserted that 
their listed stations carry automated programming in at least one-third 
of the hours of an average broadcast week and one third of the weekly 
prime-time hours. They concluded that all listed stations qualified as 
specialty stations under the FCC's former rules and the affidavits 
submitted asserting the status of each station are accurate. They also 
stated that the fact that a licensed station is temporarily off the air 
because of technical or other considerations should not prevent that 
station from being included on the Specialty Station list as long as 
the station met the FCC's criteria for a specialty station prior to 
going silent and will meet the criteria when it returns to the air. See 
VTG et. al. Reply to Opposition at 1-3.
    No one, however, filed comments responsive to the Office's request 
regarding the Register's authority to resolve any dispute concerning 
the identification of a particular station as a specialty station. 
Nevertheless, the Office has considered MPAA's arguments and rejects 
its contention that Section 411(b)(1) provides any basis for the 
Register to make these determinations. Contrary to MPAA's claims, there 
is no statutory authority under this provision for the Register to make 
any substantive determinations with regard to specialty station status.
    In 2008, Congress passed the Prioritizing Resources and 
Organization for Intellectual Property Act, Public Law 110-403, which 
inter alia added a new paragraph 411(b) to ensure that no court holds a 
registration certificate invalid due to what it considers to be a 
misstatement on an application without first obtaining input from the 
Register as to whether the application was properly filed. The 
legislative history states that Congress adopted this amendment ``to 
prevent intellectual property thieves from exploiting th[e] potential 
loophole'' that would allow them to argue that ``a mistake in the 
registration documents, such as checking the wrong box on the 
registration form, renders a registration invalid and thus forecloses 
the availability of statutory damages.'' H.Rep. No. 110-617, at 24 
(2008).
    The language of this provision is solely directed at registration. 
There are no words, phrases or terms that tie this provision in any way 
to Section 111, much less specialty stations. Nor does it convey any 
general authority on the Register to opine on the characterization of a 
station as a specialty station under a defunct FCC regulation. Rather, 
Section 411(b) is a narrowly crafted provision that provides a 
mechanism for the court to seek an opinion from the Register on the 
consequences of an error on the registration certificate under the 
Copyright Office's policies and practices.
    The Office also rejects MPAA's suggestion that the Office adopt the 
principles of Section 411(b) to deny specialty station status based on 
the information provided in the affidavit. Whereas the Office's 
registration practices and policies provide a basis for the Office to 
advise the court on the significance of an error on the certificate, 
the same is not true with respect to the specialty station list. The

[[Page 18871]]

policies and procedures for creating this list are limited in scope and 
do not establish a process by which the Office can resolve the 
specialty station status of a particular station, regardless of the 
purported facts. Since the inception of this process, the Office has 
stated clearly that it would not play a role in determining the merits 
of a specialty station claim, noting that ``it should not itself verify 
the specialty station status of particular stations.'' 54 FR 38466 
(September 18, 1989). The Office has also commented that it 
periodically provides an updated annotated list so that ``cable systems 
can make an informed decision as to whether MPAA or any other party 
might contest the system's carriage of a particular station on a 
specialty basis.'' 56 FR 61056 (November 29, 1991). In light of these 
policies and practices, there is no support for MPAA's contention that 
the Office can make determinations regarding the specialty status of a 
particular station under the principles underlying Section 411(b).
    As noted above, the Office received affidavits from 63 broadcast 
stations for which the owner or licensee of the television station had 
filed the requested affidavit. Since the publication of the initial 
list, the Office received 24 additional affidavits, attesting to the 
specialty station status of the 24 identified stations. Because the 
Office received a substantial number of late filed affidavits, the 
Office found it necessary to seek input from the public regarding the 
asserted specialty station status of these particular stations and 
allow any interested party to file an objection to these newly listed 
stations. See 76 FR 69288 (November 8, 2011). No one filed any 
objections to the television stations listed in this most recent 
Federal Register publication. As such, these stations shall be duly 
listed here.
    The final list of specialty stations, as identified in the 
affidavits and published herein, shall be applicable to accounting 
periods beginning on January 1, 2012. Licensing examiners shall refer 
to the final annotated list in examining a statement of account where a 
cable system operator claims specialty station status for a particular 
station. If a cable system operator claims specialty station status for 
a station not on the published final list, the examiner shall determine 
whether the owner of the station has filed an affidavit since 
publication of the list.
    With regard to the treatment of contested specialty stations after 
this proceeding concludes, it is important to note that the Licensing 
Division examiners will look at these stations in the same way they 
have done in the past. That is, if a cable operator claims specialty 
station status for a contested station on the list, the examiner will 
inform the operator by letter that a particular party objects to the 
``specialty station characterization.'' See 54 FR 38461, 38464 
(September 18, 1989). The cable operator may then file an amended 
Statement of Account and recalculate royalties, if the operator so 
chooses.

Final Specialty Station List

CBAFT, Moncton, New Brunswick, Canada
CBFT, Montreal, Quebec, Canada
CBKFT, Regina, Saskatchewan, Canada
CBLFT, Toronto, Ontario, Canada
CBOFT, Ottawa, Ontario, Canada
CBUFT, Vancouver, British Columbia, Canada
CBVT, Quebec City, Quebec, Canada
CBWFT, Winnipeg, Manitoba, Canada
CBXFT, Edmonton, Alberta, Canada
CHLT-TV, Sherbrooke, Quebec, Canada
CIMT, Riviere-du-Loup, Quebec, Canada
CJBR, Rimouski, Quebec, Canada
CKSH, Sherbrooke, Quebec, Canada
CKTM, Trois-Rivieres, Quebec, Canada
CKTV, Saguenay, Quebec, Canada
K24IC-D, Bellingham, WA
KAZA-DTV, Avalon, CA
KBBC-TV, Bishop, CA
KBCB, Bellingham, WA
KBFD-DT, Honolulu, HI
KBKF-LP, San Jose, CA
KCGI-CA, Cape Girardeau, MO
KCSO-LD, Sacramento, CA
KDBK-LP, Caliente, CA
KEBK-LP, Bakersfield, CA
KEFM-LP, Chico, CA
KFIQ-LP, Lubbock, TX
KFMP-LP, Lubbock, TX
KHTV-LP, Los Angeles, CA
KILA-LP, Cherry Valley, CA
KMRZ-LP, Moreno Valley, CA
KNET-CA, Los Angeles, CA
KNLA-LP, Los Angeles, CA
KNNN-LP, Redding, CA
KRMV-LP, Walnut, CA
KRPE-LP, Banning, CA
KRVD-LP, Banning, CA
KSCZ-LP, Greenfield, CA
KSFV-CA, Los Angeles, CA
KSGO-LP, Chico, CA
KSXC-LP, S. Sioux City, NE
KTSF, San Francisco, CA
KWHY-TV, Los Angeles, CA
KWTA-LP, Tucson, AZ
W07DP-D35, Harrisburg, PA
W14DFD-TV14, Elliotsburg, PA
W16COD-TV16, Middleburg, PA
W20CM, Port Jervis, NY
W26DB, Port Jervis, NY
W29CO-TV29, Sharon, PA
W34DI, Port Jervis, NY
W42CX, Port Jervis, NY
W45BT-TV45, Brookville, PA
W46DQ, Port Jervis, NY
W46EJ-D21, Clarksburg, WV
W49DK, Port Jervis, NY
W52DW, Port Jervis, NY
W59EA, Port Jervis, NY
WAQP, Saginaw, MI
WBNF-CA, Buffalo, NY
WBPA-LP, Pittsburgh, PA
WBQD-LP, Davenport, IA
WCHU-LP, Chicago, IL
WDWO-CA, Detroit, MI
WDYR-CA, Dyersburg, TN
WHCT-LP, Hartford/Springfield, CT
WINM, Angola, IN
WKBS-TV47, Altoona, PA
WLFM-LP, Chicago, IL
WLJC-TV, Beattyville, KY
WLXI, Greensboro, NC
WMBC-TV, Newton, NJ
WNJJ-LD, Paterson, NJ
WNYA-CA, Kinderhook, NY
WNYB, Jamestown, NY
WPCB-TV40, Greensburg, PA
WPRU-LP, Aguadilla, P.R.
WRAY-TV, Wilson, NC
WRLM, Canton, OH
WSJP-LP, Aguadilla, P.R.
WSJX-LP, Aguadilla, P.R.
WTCT-Marion, IL
WTLJ, Muskegon, MI
WVXF(TV), Charlotte Amalie, USVI
WXLI, Greensboro, NC
WXOX-LP, Cleveland, OH
XERV-TV, Reynosa, Tamaulipas, Mexico
XHAB-TV, Matamoros, Tamaulipas, Mexico

    Dated: March 21, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-7430 Filed 3-27-12; 8:45 am]
BILLING CODE 1410-30-P
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