5184 Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Proposed Rules 

1 47 U.S.C. 325. 

2 Id. Section 325(b)(3)(B). 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 23–427; FCC 23–115; FR 

ID 197786] 

Reporting Requirements for 

Commercial Television Broadcast 

Station Blackouts 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission proposes 

a reporting framework for TV station 

blackouts occurring on video service 

platforms offered by cable operators, 

satellite TV providers, and other 

multichannel video programming 

distributors (MVPDs). The proposed 

rule would require notification to the 

Commission when broadcast 

programming is disrupted for over 24 

hours as a result of an inability to obtain 

a broadcast station’s consent to 

retransmit its signal. The proposed 

reporting framework would require 

MVPDs to publicly report to the 

Commission the beginning and end of 

any qualifying blackout of a commercial 

broadcast television station, or stations, 

and disclose either publicly or 

confidentially the number of subscribers 

affected by the blackout. Timely 

notification of these blackouts via a 

Commission-hosted reporting portal 

would ensure that the Commission and 

the public receive prompt and accurate 

information about critical MVPD service 

disruptions involving broadcast stations 

when they occur. 

DATES: Comments are due on or before 

February 26, 2024. Reply comments are 

due on or before March 26, 2024. 

Written comments on the Paperwork 

Reduction Act proposed information 

collection requirements must be 

submitted by the public, Office of 

Management and Budget (OMB), and 

other interested parties on or before 

March 26, 2024. 

ADDRESSES: Pursuant to §§ 1.415 and 

1.419 of the Commission’s rules, 47 CFR 

1.415, 1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated in this 

document. Comments and reply 

comments may be filed using the 

Commission’s Electronic Comment 

Filing System (ECFS). See Electronic 

Filing of Documents in Rulemaking 

Proceedings, 63 FR 24121 (1998). You 

may submit comments, identified by 

MB Docket No. 23–427, by any of the 

following methods: 

• Electronic Filers: Comments may be 

filed electronically by accessing ECFS 

at: http://www.fcc.gov/ecfs/. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. Paper filings can 

be sent by commercial overnight 

courier, or by first-class or overnight 

U.S. Postal Service mail. All filings 

must be addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9050 

Junction Drive, Annapolis Junction, MD 

20701. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

• Effective March 19, 2020, and until 

further notice, the Commission no 

longer accepts any hand or messenger 

delivered filings. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

In addition to filing comments with 

the Secretary, a copy of any comments 

on the Paperwork Reduction Act 

proposed information collection 

requirements contained herein should 

be submitted to the Federal 

Communications Commission via email 

to PRA@fcc.gov and to Cathy Williams, 

FCC, via email to Cathy Williams@

fcc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Brooke Olaussen of the Media Bureau, 

Policy Division at brooke.olaussen@

fcc.gov, (202) 418–1060. For additional 

information concerning the Paperwork 

Reduction Act proposed information 

collection requirements contained in 

this document, send an email to PRA@

fcc.gov or contact Cathy Williams at 

Cathy.Williams@fcc.gov, (202) 418– 

2991. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking (NPRM), FCC 23– 

115, adopted on December 19, 2023 and 

released on December 21, 2023. The full 

text of this document is available 

electronically via the Commission’s 

website at: https://docs.fcc.gov/public/ 

attachments/FCC-23-115A1.pdf. To 

request materials in accessible formats 

for people with disabilities (e.g., Braille, 

large print, electronic files, audio 

format), send an email to fcc504@fcc.gov 

or call the Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Comments should address: (a) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology; and (e) ways to 

further reduce the information 

collection burden on small business 

concerns with fewer than 25 employees. 

Synopsis 

I. Introduction 

1. This Notice of Proposed 

Rulemaking (NPRM) proposes to amend 

the Commission’s rules to require 

notification to the Commission when a 

blackout of a broadcast television 

station, or stations, occurs on a video 

programming service offered by a 

multichannel video programming 

distributor (MVPD) for 24 hours or more 

due to a breakdown in retransmission 

consent negotiations between 

broadcasters and MVPDs. The proposed 

reporting framework would require 

public notice to the Commission of the 

beginning and resolution of any 

blackout and submission of information 

about the number of subscribers affected 

(which we propose may be designated 

as confidential). By requiring timely 

notification of broadcast station 

blackouts in a centralized, Commissionhosted database, these proposed 

reporting requirements would ensure 

that the Commission and public receive 

prompt and accurate information about 

critical MVPD service disruptions 

involving broadcast stations when they 

occur. 

II. Background 

2. The Communications Act of 1934, 

as amended (the Act), requires that 

cable operators, satellite TV providers, 

and other MVPDs obtain a broadcast TV 

station’s consent to lawfully retransmit 

the signal of a broadcast station to 

subscribers.1 Commercial stations may 

either give consent by demanding 

carriage (must carry) or seek to negotiate 

for compensation in exchange for 

carriage (retransmission consent), and 

may switch between these choices every 

three years.2 If a former ‘‘must carry’’ 


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3Federal Communications Commission, 

Retransmission Consent, https://www.fcc.gov/ 

media/policy/retransmission-consent (last updated 

Sept. 27, 2021). 

4Although some MVPD subscribers may be able 

to view the blacked out local broadcast signals 

using over-the-air antennas or other equipment, not 

all live in locations that can receive over-the-air 

signals, and further not all would have the 

equipment necessary to do so. FCC, DTV Reception 

Maps, https://www.fcc.gov/media/engineering/ 

dtvmaps (last visited Sept. 28, 2023) (showing overthe-air signal availability and noting that ‘‘[a]ctual 

signal strength may vary based on a variety of 

factors, including, but not limited to, building 

construction, neighboring buildings and trees, 

weather, and specific reception hardware,’’ and that 

‘‘signal strength may be significantly lower in 

extremely hilly areas’’). 

5Atif Zubair, History of Retrans Deals and Signal 

Blackouts, 1993–2014 YTD, Market Intelligence, 

S&P Capital IQ Pro (Feb. 25, 2014) (reporting data 

from ‘‘publicly announced retrans agreements 

between broadcasters and multichannel operators’’ 

from 1993 through Feb. 25, 2014); id. (‘‘Blackouts 

in our database show that signal disruptions have 

become more frequent during the past three years 

since 2011, contributing 54 of the total 81 blackouts 

in our database.’’). 

6Atif Zubair, Retrans Roundup 2019, Market 

Intelligence, S&P Capital IQ Pro (Jan. 21, 2020) 

(reporting ‘‘2019 publicized broadcast signal 

disruptions’’ data as of Dec. 31, 2019 in Excel 

format accessible via link to ‘‘retrans agreement and 

signal disruptions databases’’ embedded in article). 

7 Id. 

8Peter Leitzinger, Retrans Roundup 2021, Market 

Intelligence, S&P Capital IQ Pro (Jan. 28, 2022) 

(reporting 2020 and 2021 ‘‘publicized broadcast 

signal disruptions’’ data in Excel format accessible 

via link to ‘‘retrans agreement and signal 

disruptions databases’’ embedded in article); Peter 

Leitzinger, Retrans Roundup 2022, Market 

Intelligence, S&P Capital IQ Pro (Feb. 7, 2023) 

(reporting ‘‘2022 publicized broadcast signal 

disruptions’’ data as of Jan. 15, 2023 in Excel format 

accessible via link to ‘‘retrans agreement and signal 

disruptions databases’’ embedded in article). By 

MVPDs’ own count, between 2010 and 2019 there 

have been more than 1,250 broadcast station 

blackouts since 2010. Eun-A Park, Rob Frieden, 

Krishna Jayakar, Blackouts in Retransmission 

Consent Negotiations: Empirical Analysis of Factors 

Predicting their Frequency and Duration, TPRC48: 

The 48th Research Conference on Communication, 

Information, and internet Policy (December 17, 

2020) https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=3749577. 

9Subcommittee on Communications and 

Technology Hearing on Connecting America: 

Oversight of the FCC, 117th Cong., at 7 (Mar. 31, 

2022), https://docs.house.gov/meetings/IF/IF16/ 

20220331/114545/HHRG-117-IF16-WstateRosenworcelJ-20220331-SD001.pdf (Subcommittee 

question posed in statement of the Honorable 

Jessica Rosenworcel, Chairwoman, FCC). 

10See, e.g., Letter from Rep. David Cicilline et al., 

U.S. House of Representatives, to Jessica 

Rosenworcel, Chairwoman, FCC (Oct. 25, 2022), 

https://docs.fcc.gov/public/attachments/DOC389144A2.pdf (‘‘While we take no position as to the 

merits of this dispute, we believe that Rhode 

Islanders should not be caught in the middle and 

as a consequence be left without access to local 

news and programming. We encourage the Federal 

Communications Commission to do everything in 

its power to help bring the parties together so that 

negotiations can continue in good faith.’’). 

11 47 U.S.C. 325(b)(3)(C). In 1999, Congress 

enacted the Satellite Home Viewer Improvement 

Act (SHVIA), which required television stations to 

negotiate retransmission consent with MVPDs in 

good faith and included the ‘‘competitive 

marketplace considerations’’ provision. Public Law 

106–113, 113 Stat. 1501 (1999). Although SHVIA 

imposed the good faith negotiation obligation only 

on broadcasters, in 2004 Congress made the good 

faith negotiation obligation reciprocal between 

broadcasters and MVPDs. Public Law 108–447, 118 

Stat. 2809 (2004) (referred to as the Satellite Home 

Viewer Extension and Reauthorization Act 

(SHVERA)). 

12 47 CFR 76.65(b). 

13 Id. §§ 76.65(c), 76.65(e). 

14See, e.g., Letter from Jessica Rosenworcel, 

Chairwoman, FCC, to Rep. David Cicilline et al., 

U.S. House of Representatives (Nov. 1, 2022), 

https://docs.fcc.gov/public/attachments/DOC389144A1.pdf (responding to a letter from members 

of Congress urging FCC action after failed carriage 

negotiations between Nexstar and Verizon resulted 

in a blackout and emphasizing that ‘‘it is important 

to understand that the Commission’s authority in 

this area is limited, as under Section 325 we cannot 

order or otherwise require carriage of a broadcast 

station during a dispute.’’). 

15Amendment of the Commission’s Rules Related 

to Retransmission Consent, MB Docket No. 10–71, 

Notice of Proposed Rulemaking, 26 FCC Rcd 2718, 

2720, para. 3 (2011) (2011 Retrans Consent NPRM) 

(‘‘The Commission does not have the power to force 

broadcasters to consent to MVPD carriage of their 

signals nor can the Commission order binding 

arbitration.’’); id. at 2728, para. 18 (‘‘[R]egarding 

interim carriage, examination of the Act and its 

legislative history has convinced us that the 

Commission lacks authority to order carriage in the 

Continued 

station elects retransmission consent but 

is unable to reach agreement for 

carriage, or the parties to an existing 

retransmission consent agreement do 

not extend, renew, or revise that 

agreement prior to its expiration, the 

MVPD loses the right to carry the signal. 

The result is a ‘‘blackout’’ of that 

existing broadcast programming on the 

MVPD platform.3 When these broadcast 

station blackouts occur, the MVPD’s 

subscribers typically lose access through 

their MVPD service to the station’s 

entire signal, including both the 

national and local programming 

provided by the broadcaster.4 Thus, if 

the blacked-out broadcast station was 

owned by or affiliated with a national 

broadcast network—such as ABC, CBS, 

FOX, NBC, The CW, Telemundo, or 

Univision—subscribers would be unable 

to access through their MVPD service 

that broadcaster’s network programming 

as well as the local news, traffic, 

weather, and emergency information 

programming provided by their local 

station. 

3. Over the past decade, data indicates 

that the number of blackouts resulting 

from unsuccessful retransmission 

consent negotiations has increased 

dramatically. For the first 20 years of the 

retransmission consent regime, S&P 

Capital IQ reports that there were a total 

of 81 failed retransmission consent 

negotiations that resulted in blackouts 

of 447 broadcast TV stations in 365 

markets, with two thirds of the impasses 

occurring just in the last three years of 

that period, from 2011 to 2014.5 This 

increase in the number of blackouts has 

persisted for over a decade, and the 

impact of each individual blackout has 

increased as more stations are taken off 

the air for longer periods of time. In 

2019 alone, just 18 retransmission 

consent impasses resulted in 272 station 

blackouts that spanned 205 markets and 

affected 26.5 million subscribers.6

According to S&P Capital IQ, these 

blackouts ‘‘on average remained in 

effect for 171 days—higher than the 98- 

day average in 2018, 33 days in 2017 

and 52 days in 2016.’’ 7 Some MVPD 

subscribers in over half of television 

markets continue to experience 

blackouts every year.8

4. Members of Congress have 

expressed concern about the impact of 

broadcast station blackouts. After a 

March 2022 FCC oversight hearing, Rep. 

Clarke of New York noted that ‘‘[o]ver 

the last two years, there were an 

estimated 460 blackouts associated with 

retransmission consent impasses, 

resulting in consumers losing access to 

their favorite shows. Unfortunately, 

these blackouts may be used as leverage 

during retransmission negotiations by 

broadcasters at the expense of consumer 

access to television programming.’’ 9 In 

addition, during high-profile 

retransmission consent disputes, the 

Commission often receives letters from 

members of Congress urging the 

Commission to take action to prevent or 

end a broadcast station blackout.10

5. Added as part of the Cable 

Television Consumer Protection and 

Competition Act of 1992 (1992 Cable 

Act), section 325 of the Act prohibits 

broadcast television stations and 

MVPDs from ‘‘failing to negotiate 

[retransmission consent] in good 

faith,’’ 11 and the Commission’s rules 

provide a framework for determining 

whether those negotiations are in fact 

conducted in good faith.12 If a broadcast 

station or MVPD believes the other party 

has not acted in good faith, it may file 

a good faith complaint with the 

Commission either before or after a 

carriage agreement is signed.13

6. Congress has not, however, 

authorized the Commission to require 

that parties resolve retransmission 

consent disputes with carriage 

agreements, or to force carriage in the 

absence of an agreement.14 While 

section 325 of the Act grants the 

Commission authority to establish 

regulations governing retransmission 

consent negotiations, the Commission 

has repeatedly determined that this 

authority does not extend to requiring 

carriage of a broadcast station during a 

retransmission dispute.15 Given this 


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absence of a broadcaster’s consent due to a 

retransmission consent dispute. . . . We thus 

interpret section 325(b) to prevent the Commission 

from ordering carriage over the objection of the 

broadcaster, even upon a finding of a violation of 

the good faith negotiation requirement.’’); 

Implementation of the Satellite Home Viewer 

Improvement Act of 1999, Retransmission Consent 

Issues: Good Faith Negotiation and Exclusivity, CS 

Docket No. 99–363, First Report and Order, 15 FCC 

Rcd 5445, 5471, para. 60 (2000) (Good Faith Order) 

(‘‘[W]e see no latitude for the Commission to adopt 

regulations permitting retransmission during good 

faith negotiation or while a good faith or exclusivity 

complaint is pending before the Commission where 

the broadcaster has not consented to such 

retransmission.’’). 

16 Good Faith Order, 15 FCC Rcd at 5454–55, 

paras. 23–24. 

17 2011 Retrans Consent NPRM, 26 FCC Rcd at 

2729, para. 20. 

18Supra para. 3. 

19 47 U.S.C. 552(b), 335(a). 

20 47 U.S.C. 552(b). 

21 47 CFR 76.309(c)(1) (addressing cable system 

office hours and telephone availability), 

76.309(c)(2) (addressing installations, outages, and 

service calls), 76.309(c)(3) (addressing 

communications between cable operators and cable 

subscribers); Implementation of Section 8 of the 

Cable Television Consumer Protection and 

Competition Act of 1992 Consumer Protection and 

Customer Service, MM Docket No. 92–263, Report 

and Order, 8 FCC Rcd 2892, 2901, para. 34 (1993) 

(Cable Operator Customer Service R&O) (‘‘[W]e are 

adopting a single set of federal customer service 

standards which deal with the specific areas set out 

in section 632(b).’’). 

22Cable Operator Customer Service R&O, 8 FCC 

Rcd at 2907, para. 69. 

23 47 U.S.C. 335(a). 

24 Id. 

25 Id. 

26 Implementation of Section 25 of the Cable 

Television Consumer Protection and Competition 

Act of 1992, MM Docket No. 93–25, Report and 

Order, 13 FCC Rcd 23254, 23279–80, para. 64 

(1998). 

27 Id. at 23280, para. 64. 

28While, as required by our rules, MVPDs notify 

subscribers when specific broadcast station 

channels are blacked out, we are not aware of any 

systematic method used by MVPDs or broadcasters 

to notify the general public of broadcast station 

blackouts. Infra note 31. 

29 Id. See 2011 Retrans Consent NPRM, 26 FCC 

Rcd at 2724, para. 12 (noting at the time that 

‘‘[t]here have been very few complaints filed 

alleging violations of the Commission’s good faith 

rules’’); DirecTV, LLC; AT&T Services, Inc., 

Complainants, v. Deerfield Media, Inc. et al., MB 

Docket No. 19–168, Memorandum Opinion and 

Order and Notice of Apparent Liability for 

Forfeiture, 35 FCC Rcd 10695, 10699, para. 8 (2020) 

(noting that the Deerfield good faith complaint ‘‘is 

only the second good faith complaint that was not 

withdrawn, dismissed, or denied since the rules 

were established and the first one that the 

Commission has had the opportunity to consider’’). 

30Section 76.1603 provides that cable operators 

must notify their subscribers ‘‘as soon as possible’’ 

when service changes occur due to failed 

retransmission consent or program carriage 

negotiations. 47 CFR 76.1603(b). 

31While S&P Capital IQ Pro’s retransmission 

database is a helpful resource, it provides limited 

visibility into the retransmission consent 

marketplace on an ongoing basis. The database is 

typically published only in yearly intervals, 

excludes independent and class A TV stations, and 

only lists publicized blackouts. Therefore, we do 

not believe data collected by S&P is a suitable 

substitute for complete or timely information on 

service disruptions. Supra note 8. 

limitation, the Commission’s good faith 

rules focus on ‘‘develop[ing] and 

enforce[ing] a process’’ conducive to 

negotiation rather than ‘‘sit[ting] in 

judgment of the terms of every 

retransmission consent agreement[.]’’ 16

Nevertheless, broadcast station 

blackouts have remained a cause for 

concern. In a 2011 action proposing 

amendments to the Commission’s good 

faith rules, the Commission observed 

that ‘‘[i]n recent times, the actual and 

threatened service disruptions resulting 

from increasingly contentious 

retransmission consent disputes present 

a growing inconvenience and source of 

confusion for consumers.’’ 17 Since the 

Commission made that observation, the 

number of retransmission consent 

impasses has continued to increase, 

causing service disruptions for 

consumers.18

7. In addition to establishing the 

retransmission consent regime, the 1992 

Cable Act also bolstered the 

Commission’s customer service 

authority over cable and satellite TV 

providers. Pursuant to sections 632(b) 

and 335(a), the Commission may adopt 

customer service requirements for cable 

operators and public interest regulations 

for DBS providers.19 Section 632(b) of 

the Act directs the Commission to 

‘‘establish standards by which cable 

operators may fulfill their customer 

service requirements’’ and specifies a 

set of minimum customer service areas 

that the adopted standards must cover.20

In 1993, the Commission implemented 

this mandate in § 76.309 of its rules, 

adopting a single set of customer service 

requirements for cable operators in the 

areas Congress specified.21 While at that 

time the Commission declined to adopt 

additional standards in areas not 

specified in the statute, it reserved the 

right to revise and supplement the 

standards.22

8. Similarly, section 335(a) authorizes 

the Commission to impose ‘‘public 

interest or other requirements for 

providing video programming’’ on DBS 

providers.23 The statute directs the 

Commission to impose certain 

minimum obligations on DBS providers, 

including complying with the political 

programming requirements of sections 

312(a)(7) and 315 of the Act.24 It also 

directs the Commission to examine 

opportunities that may serve the 

principle of localism in the Act.25 As 

with section 632, when implementing 

section 335 of the Act, the Commission 

declined to impose any additional 

public interest obligations on DBS 

providers beyond the minimum 

protections specified in the statute.26

The Commission explained that DBS 

service ‘‘is still a relatively young 

industry and we decline to impose any 

additional obligations on the DBS 

industry before we see how DBS serves 

the public.’’ 27

9. Currently, neither broadcast 

stations nor MVPDs are under any 

obligation to report to the Commission 

MVPD service disruptions involving 

broadcast programming. Neither the 

Commission nor the public has a 

systematic method for learning of 

significant MVPD service disruptions 

involving broadcast programming.28

When a party to a retransmission 

consent negotiation files a complaint 

with the Commission alleging a 

violation of the Commission’s good faith 

negotiation rules, the complaint process 

requires the parties to provide the 

Commission with relevant details about 

the blackout and each party’s assertions 

as to why the negotiation reached an 

impasse. Since the adoption of the good 

faith negotiation rules in 2000, there 

have been relatively few complaints 

alleging violations of the Commission’s 

good faith negotiation rules despite an 

escalation in the number of stalled or 

failed retransmission consent 

negotiations resulting in blackouts.29

The Commission usually learns of 

broadcast station blackouts on MVPD 

platforms through reports of disputes in 

the media or informal communication 

with staff. This ad hoc process does not 

provide the Commission, Congress, or 

the public 30 with timely or specific 

information regarding service 

disruptions.31 Accordingly, we initiate 

this rulemaking. 

III. Discussion 

10. In the discussion below, we 

propose to require that MVPDs report 

retransmission consent blackouts within 

48 hours and notify the Commission 

within two business days of its 

resolution. We discuss the specific 

aspects of the proposed reporting 

obligations and our proposed rule, and 

we address the Commission’s authority 

to adopt the proposed requirements. We 

request comment on all aspects of the 

proposal, including the proposed rule as 

set forth below in Appendix A. 

A. Overview and Policy Considerations 

11. Given the data discussed above, 

we are concerned about the increasing 

number and duration of broadcast 

station blackouts on MVPD platforms 

across the country and the 

Commission’s lack of ready access to 

basic information about such service 

disruptions. Given that many broadcast 


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32 47 U.S.C. 325(b)(3)(A). 

33 47 CFR 76.1603(b). 

34See 47 CFR 76.64(d) (‘‘A multichannel video 

program distributor is an entity such as, but not 

limited to, a cable operator, a BRS/EBS provider, a 

direct broadcast satellite service, a television 

receive-only satellite program distributor, or a 

satellite master antenna television system operator, 

that makes available for purchase, by subscribers or 

customers, multiple channels of video 

programming.’’); infra Appendix A—Proposed 

Rules, § 76.68(c)(1). 

35 47 U.S.C. 325(a). 

36Supra paras. 23, 27. 

37Federal Communications Commission, Network 

Outage Reporting System (NORS), https://

www.fcc.gov/network-outage-reporting-system-nors 

(last updated Mar. 25, 2022). 

station blackouts on MVPD platforms 

occur without either party filing a 

complaint with the Commission, we 

cannot rely on good faith complaints to 

inform us when a deal impasse has 

resulted in a blackout, nor can we 

consider such complaints an accurate 

sampling of significant service 

disruptions. In addition, members of 

Congress regularly ask the Commission 

for information on broadcast station 

blackouts when they occur. Often the 

Commission does not have access to this 

important information through a 

consistent, reliable, and systematic 

means. To close this information gap, 

we tentatively conclude that obtaining 

blackout information from MVPDs 

would be the most effective method for 

the Commission to gain important and 

timely information about broadcast 

station blackouts occurring across the 

country and better fulfill our statutory 

obligation involving the retransmission 

consent negotiation process.32

12. Access to a centralized source of 

information about where and when 

broadcast station blackouts occur would 

be beneficial not only to the 

Commission, but also to consumers. To 

make informed decisions regarding 

video service, consumers must have 

access to easily available, accurate, and 

timely information about such services. 

While cable subscribers receive notice 

from their cable operator when an 

individual broadcast station blackout 

affects their own channel lineup and 

video service,33 on a broader scale, 

consumers generally do not have access 

to a consolidated source of information 

about broadcast station blackouts 

occurring in aggregate. Such 

information would increase 

transparency about the frequency and 

duration of blackouts and help 

consumers understand the extent to 

which blackouts might be a problem not 

just in their own locality but in other 

areas of the country as well. For 

example, having aggregate data about 

blackouts may be a useful metric for 

consumers looking for a new MVPD 

service provider. For consumers that 

place a premium on continuity of 

service, having access to this data may 

enable them to investigate which MVPD 

service providers—as well as broadcast 

affiliates—have a stronger history of 

blackouts. 

13. Entities Responsible for Reporting. 

We seek comment on requiring affected 

MVPDs that stop carrying broadcast 

signals pursuant to expired 

retransmission consent agreements, 

including cable operators and DBS 

providers (Reporting Entities),34 to 

comply with the proposed blackout 

reporting requirements, as more fully 

discussed below. While both MVPDs 

and broadcasters are subject to the 

requirements of section 325 of the Act 

and the Commission’s good faith rules, 

it is the responsibility of the MVPD, 

rather than the broadcaster, to stop 

retransmitting the broadcast station’s 

signal, and thereby remove the 

programming that is subject to blackout 

from their MVPD platforms upon the 

expiration of a carriage agreement.35

Thus, as a practical matter, it is the 

MVPD who has the most ready access to 

and first-hand knowledge of when and 

where a broadcast station blackout 

occurs and which subscribers are 

affected, thereby ensuring that the 

Commission would receive the most 

complete, accurate, and up-to-date 

information. Further, as it is the MVPD 

subscribers who are directly impacted 

by these blackouts, we believe it makes 

the most sense for MVPDs to be 

responsible for reporting blackout 

information through the reporting 

portal. As a result, we tentatively 

conclude it would be least burdensome 

on MVPDs to report this information 

promptly and accurately to the 

Commission. 

14. We therefore propose requiring 

MVPDs to notify the Commission of any 

blackouts of a broadcast station or 

stations that occur on their systems due 

to a loss of retransmission consent, and 

we seek comment on this proposal. 

Under this proposal, MVPDs would 

report incidents during which broadcast 

programming is disrupted for over 24 

hours as a result of an inability to obtain 

a broadcast station’s consent to 

retransmit its signal. We seek comment 

on these understandings and this 

proposal. For example, are there 

circumstances in which the broadcaster, 

rather than the MVPD, removes the 

broadcast station(s) from the MVPD’s 

platform? 

15. Alternatively, we seek comment 

on whether we should impose the 

reporting obligation solely on 

broadcasters or impose a joint blackout 

reporting requirement on both MVPDs 

and broadcasters. Would adopting a 

broadcaster-only reporting requirement 

or imposing a joint reporting obligation 

on both MVPDs and broadcasters 

provide additional benefits to the 

public? Do broadcasters have access to 

different, additional, or more timely 

information about blackouts that would 

be beneficial for the public to see in 

real-time? If reporting obligations were 

the same for both parties, would the 

Commission need to address or attempt 

to resolve conflicting reports? Instead of 

requiring broadcasters to report 

blackouts, should we rely instead on 

broadcasters voluntarily providing 

additional information to supplement 

blackout notices submitted by MVPDs 

they believe contain inaccurate or 

incomplete information? 

16. Reporting Framework. As 

discussed in more detail below, we 

propose requiring MVPDs to notify the 

Commission of both the start and 

conclusion of a broadcast station 

blackout. The initial notification would 

provide basic blackout information, 

both public and confidential, to the 

Commission within 48 hours of the start 

of a reportable broadcast station 

blackout (Initial Blackout Notification). 

The final notification, submitted no 

later than two business days after the 

end of the reportable broadcast station 

blackout, would publicly identify the 

date retransmission resumed (Final 

Blackout Notification). We propose that 

this information be collected through an 

online reporting portal designed, 

hosted, and administered by the 

Commission.36 Under our proposal, we 

will delegate to the Media Bureau the 

authority to issue a public notice giving 

Reporting Entities notice of the specific 

reporting procedures to submit blackout 

information via the reporting portal and 

identifying the date on which the 

reporting requirement would become 

effective. Public blackout information 

collected through the portal would then 

be available on the Commission’s 

website. We seek comment generally on 

this proposal and on the specifics 

below. In addition, to the extent we 

adopt a reporting requirement for 

broadcasters, we seek comment on 

whether this same reporting framework 

should be applied to broadcasters or 

whether a different approach is 

appropriate for broadcasters. 

17. To streamline reporting, we 

propose creating an online reporting 

portal, modeled after the Commission’s 

Network Outage Reporting System 

(NORS).37 The proposed data to be 

reported would be filed with the 


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38 Infra para. 28. 39Supra note 31. 40We note that these reporting requirements 

would be separate from our good faith complaint 

procedure and are not intended to replace or inform 

the good faith complaint process. 

41See Proposed Extension of Part 4 of the 

Commission’s Rules Regarding Outage Reporting to 

Interconnected Voice Over Internet Protocol Service 

Providers and Broadband Internet Service 

Providers, PS Docket No. 11–82, Notice of Proposed 

Rulemaking, 26 FCC Rcd 7166, 7189–90, para. 57 

(2011) (summarizing the Commission’s 

unsuccessful attempt at voluntary outage reporting 

prior to the adoption of NORS and the part 4 rules: 

‘‘previous provider participation in voluntary 

network-outage reporting was ‘spotty,’ the ‘quality 

of information obtained was very poor,’ and there 

was ‘no persuasive evidence in the record that . . . 

all covered communications providers would 

voluntarily file accurate and complete outage 

reports for the foreseeable future or that mandatory 

reporting is not essential to the development, 

refinement, and validation of best practices.’ Hence, 

mandatory reporting was adopted to ensure timely, 

accurate reporting.’’) (quoting New Part 4 of the 

Commission’s Rules Concerning Disruptions to 

Communications, ET Docket No. 04–35, Report and 

Order and Further Notice of Proposed Rulemaking, 

19 FCC Rcd 16830, 16851–52, paras. 37–39 (2004)). 

42 Infra Appendix A, § 76.68(c)(2). 

43 Id. § 76.68(c)(3). 

44 47 U.S.C. 325(a) (‘‘. . . nor shall any 

broadcasting station rebroadcast the program or any 

part thereof of another broadcasting station without 

the express authority of the originating station.’’) 

(emphasis added). Compare 47 U.S.C. 325(b)(2)(A) 

(‘‘This subsection shall not apply . . . to 

retransmission of the signal of a noncommercial 

television broadcast station.’’). 

45 47 CFR 76.64(j) (allowing retransmission 

agreements to ‘‘specify the extent of the consent 

being granted, whether for the entire signal or any 

portion of the signal’’). 

Commission via this web-based system. 

As with NORS, this system would use 

an electronic template to promote the 

ease of reporting and encryption 

technology to ensure the security of the 

information fields. The proposed 

blackout information to be reported 

would be available to the public, except 

for more sensitive information regarding 

subscribers, which Reporting Entities 

may designate as confidential. We have 

aimed to tailor the proposed 

requirements so that they impose a 

minimal burden on Reporting Entities 

while still ensuring that the 

Commission and the public have access 

to critical information on service 

disruptions.38 We seek comment on this 

approach. 

18. We tentatively conclude that the 

timely provision and compilation of 

blackout information would allow the 

Commission and the public to 

systematically track and analyze 

information on broadcast station 

blackouts on MVPD platforms across the 

country. The availability of this 

information would also help the 

Commission determine the frequency 

and duration of blackouts nationwide 

and identify any statistically meaningful 

trends across blackouts. Without such 

reporting, the Commission will continue 

to have limited visibility into broadcast 

station blackouts.39 In the long run, this 

impairs the Commission’s ability to 

oversee the retransmission consent 

negotiation process as intended by 

Congress. The prompt provision of 

blackout information will allow the 

Commission to more effectively 

discharge its statutory responsibilities 

by better monitoring breakdowns in 

retransmission consent negotiations.40

We seek comment on this analysis. 

B. Proposed Reporting Requirements 

19. We seek comment on the specific 

proposals that follow for implementing 

the proposed reporting requirements. In 

particular, we seek comment on 

whether reporting obligations should be 

mandatory or voluntary; the definition 

of a broadcast station blackout; the 

threshold for reporting a broadcast 

station blackout; how to submit the 

proposed filings; what information 

should be disclosed about broadcast 

station blackouts; what the costs and 

benefits of our proposed rule might be; 

and whether better alternatives exist, 

including a more streamlined rule for 

small entities. 

20. Mandatory Reporting. We propose 

that blackout reporting be a mandatory 

obligation. Mandatory reporting would 

permit the Commission and the public 

to obtain a comprehensive, timely view 

of broadcast station blackouts occurring 

on MVPD platforms nationwide. This 

information would be beneficial to the 

Commission’s efforts to keep abreast of 

the impact these blackouts have on 

viewers, local broadcasting, and MVPD 

service. In contrast, voluntary reporting 

would likely create substantial gaps in 

data that would significantly impair 

such efforts, as has been the 

Commission’s experience in the past 

with voluntary reporting.41 Considering 

these factors, we tentatively conclude 

that voluntary reporting would not 

sufficiently serve the information 

collection purposes of this reporting 

initiative. We seek comment on this 

tentative conclusion. Are there other 

regulatory alternatives the Commission 

should consider? 

21. Definition of Broadcast Station 

Blackout. For the purposes of this 

reporting rule, we propose defining a 

‘‘Broadcast Station Blackout’’ as ‘‘any 

time an MVPD ceases retransmission of 

a commercial television broadcast 

station’s signal due to a lapse of the 

broadcast station’s consent for such 

retransmission.’’ 42 With this definition, 

we seek to encompass all blackouts 

occurring as a result of a retransmission 

consent dispute, and thus, in the 

context of blackout reporting, include 

all commercial full power, class A, and 

low power television (LPTV) broadcast 

stations within the definition of a 

‘‘commercial television broadcast 

station.’’ 43 We tentatively conclude it is 

appropriate to include class A and 

LPTV stations within the definition of 

‘‘commercial television broadcast 

station’’ here because these stations, like 

full power stations, are subject to the 

requirements of section 325 of the Act 

and the Commission’s good faith 

rules.44 We seek comment on this 

analysis and our proposed definition. 

Have there been or could there be 

instances in which, due to a 

retransmission consent dispute, MVPDs 

are required to cease retransmitting only 

some programming streams of a 

broadcast station and not others (for 

example, only the primary stream, but 

not the multichannel streams)? 45 If so, 

does the proposed definition adequately 

cover these scenarios? Are there any 

reasons why Broadcast Station 

Blackouts involving class A and LPTV 

stations should not be subject to the 

proposed reporting requirements? 

22. Reporting Threshold. We propose 

requiring Reporting Entities to report all 

Broadcast Station Blackouts that last for 

over 24 hours. We tentatively conclude 

this reporting threshold will provide a 

sufficient level of information to build 

a more precise and complete picture of 

the state of blackouts that have a 

significant impact on consumers. 

Collecting information on all blackouts 

lasting over 24 hours will allow the 

Commission and the public to gain a 

better understanding of the frequency 

and duration of blackouts occurring in 

the retransmission consent marketplace. 

Blackouts lasting over 24 hours are more 

likely to cause consumer harm, whereas 

blackouts of shorter duration are more 

likely to have a lesser impact on 

viewers, and thus we propose that we 

should not impose reporting 

requirements on blackouts lasting less 

than 24 hours. We therefore tentatively 

conclude this threshold appropriately 

balances the burdens of Reporting 

Entities and the information needs of 

the Commission and consumers. We 

seek comment on the proposed 

reporting threshold and whether there 

should be any additional reporting 

thresholds. For example, should we also 

require reporting for blackouts based on 

a metric other than duration of the 

service disruption? If so, what metrics 

should be used to determine what 

would qualify as a reportable event? Do 

commenters believe the proposed 

reporting threshold is appropriate, or 

should reporting obligations be triggered 


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46 Infra Appendix A, § 76.68(a); infra para. 27. 

47 Infra Appendix A, § 76.68(a)(1). 

48 Id. § 76.68(a)–(b). 

49 Id. § 76.68(a)(1)(vi). 

50 Id. § 76.68(b). 

51 47 CFR 0.459(a)(4) (‘‘The Commission may use 

abbreviated means for indicating that the submitter 

of a record seeks confidential treatment, such as a 

checkbox enabling the submitter to indicate that the 

record is confidential. However, upon receipt of a 

request for inspection of such records pursuant to 

§ 0.461, the submitter will be notified of such 

request pursuant to § 0.461(d)(3) and will be 

requested to justify the confidential treatment of the 

record, as set forth in paragraph (b) of this section’’). 

Reporting Entities seeking confidential treatment of 

any other data requested pursuant to paragraphs 

(a)(1)(i) through (v) of the proposed rule must 

submit a request that the data be treated as 

confidential with the submission of the Initial 

Blackout Notification, along with their reasons for 

withholding the information from the public, 

pursuant to 47 CFR 0.459. Infra Appendix A, 

§ 76.68(b). 

52 Infra Appendix A, § 76.68(a)(2). 

53 Id. 

by blackouts of longer or shorter 

duration? If proposing another reporting 

threshold, commenters should explain 

why they think it is more appropriate. 

23. Reporting Process. Under our 

proposed rule, Reporting Entities would 

submit two notifications: an Initial 

Blackout Notification shortly after the 

beginning of a reportable Broadcast 

Station Blackout and a Final Blackout 

Notification after resumption of 

carriage. All information would be 

submitted to the Commission within a 

designated online reporting portal in 

accordance with procedures further 

specified in a Bureau-issued public 

notice following adoption of these 

proposed reporting requirements.46 We 

seek comment on this proposed rule and 

the details discussed below. 

24. Initial Blackout Notification. We 

propose that, in the event of a Broadcast 

Station Blackout lasting over 24 hours, 

after that threshold is met, the Reporting 

Entity must submit an Initial Blackout 

Notification as soon as practicable, but 

no later than 48 hours after the initial 

interruption to the broadcast station 

programming.47 The following 

information would be reported in the 

Notification and available to the public: 

the name of the Reporting Entity; the 

station or stations no longer being 

retransmitted, including network 

affiliation(s), if any, of each affected 

primary and multicast stream; the name 

of the broadcast station group, if any, 

that owns the station(s); the Designated 

Market Areas in which affected 

subscribers reside; and the date and 

time of the initial interruption to 

programming.48 Additionally, Reporting 

Entities would report the number of 

subscribers affected.49 Critically, 

subscriber information is one of the key 

metrics by which a blackout’s impact 

can be measured. We recognize that 

market-by-market subscriber data can be 

particularly sensitive and is information 

not routinely made public by MVPDs. 

Therefore we propose giving Reporting 

Entities the option to submit the 

subscriber data provided 

confidentially.50 Reporting Entities 

would be able to opt for confidential 

treatment of the subscriber data 

provided by designating the data as 

confidential within the portal, rather 

than filing a separate request with the 

Commission.51 We encourage Reporting 

Entities to submit an Initial Blackout 

Notification as soon as practicable, but 

do not believe that this proposed 

reporting obligation would require more 

than 24 hours to complete after a 

blackout becomes reportable. We 

tentatively conclude that the 48-hour 

reporting window reasonably balances 

the benefit of receiving prompt notice of 

a blackout with the burden of reporting 

by giving Reporting Entities a sufficient 

amount of time to gather and submit the 

proposed information. 

25. We invite comment on this 

proposed information collection, the 48- 

hour reporting window, the public 

treatment of the non-subscriber data, 

and the confidential treatment of the 

subscriber data. Would it be beneficial 

to require entities to provide any 

additional information as part of the 

Initial Blackout Notification? Would it 

be beneficial to also have Reporting 

Entities identify the specific areas (for 

example, counties or cable 

communities) affected within the DMAs 

identified? If so, should entities report 

such information publicly or 

confidentially? Would any of the 

proposed disclosures be difficult for a 

Reporting Entity to provide within the 

proposed reporting window, and if so, 

why? Do commenters believe that the 

proposed 48-hour reporting window is 

sufficient, or do they believe a reporting 

window of longer or shorter duration 

would be more appropriate? If 

proposing another reporting window, 

commenters should explain why they 

think that time period is more 

appropriate. Is there any non-subscriber 

information disclosed in the Initial 

Blackout Notification for which 

Reporting Entities should be able to opt 

for confidential treatment by 

designating the data as confidential 

within the portal, rather than filing a 

separate request with the Commission? 

If so, why? Conversely, is there any 

reason why the subscriber information 

provided should not be given such 

confidential treatment? 

26. Final Blackout Notification. No 

later than two business days after the 

resumption of carriage to subscribers, 

we propose that Reporting Entities 

submit a Final Blackout Notification, 

which would update the initial blackout 

notice provided.52 The information in 

this Final Blackout Notification would 

be available to the public and would 

report the date on which retransmission 

resumed for each station included in the 

Initial Blackout Notification.53 As an 

update to the Initial Blackout 

Notification, we envision that Reporting 

Entities will be able to easily update the 

information in the reporting portal for 

each station as it resumes 

retransmission. We request comment on 

this proposed Notification, including 

the information disclosures required, 

the proposed two-business-day 

reporting window, and the public 

treatment of the disclosures. In the 

event of a partial end to a reported 

blackout involving multiple stations 

(that is, the parties have resolved the 

retransmission consent dispute with 

respect to some of the blacked out 

stations, but not others), should 

reporting entities be required, as 

proposed, to timely report the 

resumption of carriage for each resumed 

station until all stations included in the 

Initial Blackout Notification have been 

accounted for? Or should Reporting 

Entities only be required to submit a 

report once the dispute has been 

resolved for all stations included in the 

initial notification (with different 

carriage resumption dates for different 

stations listed as appropriate)? Is there 

any other information we should 

request as part of this final notice? 

Would any of the proposed disclosures 

be difficult for a Reporting Entity to 

provide within the proposed reporting 

window? Are there any reasons why the 

final Notification should not be publicly 

available, and if so, why? Is there a 

point at which the Commission should 

consider a blackout to be permanent, or 

should we consider blackouts to be 

ongoing until a final notification is filed 

regardless of their duration? 

27. Submissions. We propose 

providing an online reporting portal 

through which entities would be able to 

submit blackout notices to the 

Commission. We envision these notices 

would be made through a standardized 

form in the portal, fillable by the 

Reporting Entity, with fields for the 

various data categories. As noted above, 

the Bureau would announce specific 

instructions via public notice. We 

tentatively conclude that this approach 

to collecting data ensures that the 

Commission learns of reportable 

broadcast station blackouts in a timely 

manner and, at the same time, 


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54Supra paras. 12, 18. 

55Supra para. 27. 

56 Infra Appendix B, paras. 5–25. 

57Section 1 of the Communications Act of 1934 

as amended provides that the FCC ‘‘regulat[es] 

interstate and foreign commerce in communication 

by wire and radio so as to make [such service] 

available, so far as possible, to all the people of the 

United States, without discrimination on the basis 

of race, color, religion, national origin, or sex.’’ 47 

U.S.C. 151. 

58The term ‘‘equity’’ is used here consistent with 

Executive Order 13985 as the consistent and 

systematic fair, just, and impartial treatment of all 

individuals, including individuals who belong to 

underserved communities that have been denied 

such treatment, such as Black, Latino, and 

Indigenous and Native American persons, Asian 

Americans and Pacific Islanders and other persons 

of color; members of religious minorities; lesbian, 

gay, bisexual, transgender, and queer (LGBTQ+) 

persons; persons with disabilities; persons who live 

in rural areas; and persons otherwise adversely 

affected by persistent poverty or inequality. See 

Exec. Order No. 13985, 86 FR 7009, Executive 

Order on Advancing Racial Equity and Support for 

Underserved Communities Through the Federal 

Government (Jan. 20, 2021). 

59 47 U.S.C. 325(b)(3)(A). 

60Amendment of the Commission’s Rules Related 

to Retransmission Consent, MB Docket No. 10–71, 

Report and Order and Further Notice of Proposed 

Rulemaking, 29 FCC Rcd 3351, 3371, para. 30 

(2014). 

61 47 U.S.C. 325(b)(3)(C). 

62 Id. 

63 Good Faith Order, 15 FCC Rcd at 5455, para. 

24. 

64 2011 Retrans Consent NPRM, 26 FCC Rcd at 

2721, para. 7 (quoting S. Rep. No. 92, 102nd Cong., 

1st Sess. 1991, reprinted in 1992 U.S.C.C.A.N. 1133, 

1169); Good Faith Order, 15 FCC Rcd at 5454–55, 

para. 23. 

minimizes the amount of time and effort 

required to comply with the reporting 

requirements. We seek comment on how 

best to share the information collected 

from the Initial and Final Blackout 

Notifications with the public. For 

example, in addition to publicly posting 

the non-confidential portions of the 

blackout notices, should the web portal 

include a public-facing, searchable 

database of the information collected 

from the blackout notices? Or would it 

suffice for the Commission to publicly 

post the blackout notices by date of 

submission? 

28. Costs and Benefits. We tentatively 

conclude this process is reasonable in 

light of the significant benefits to the 

Commission, Congress, and the public 

from having timely access to important 

and accurate information on service 

disruptions. As detailed above, we 

anticipate that the availability of this 

blackout information will have tangible 

benefits for the Commission and the 

public.54 Moreover, we tentatively 

conclude that Reporting Entities already 

collect this information in the ordinary 

course of business for their internal use. 

Thus, we expect the only burden 

associated with the proposed reporting 

requirements would be the time 

required to complete the two 

notifications. We anticipate that 

electronic submission through the 

reporting portal will minimize the 

amount of time and effort that will be 

required to complete the proposed 

reporting obligations.55 As a result, we 

expect that complying with our 

proposed reporting requirements would 

create a minimal administrative burden, 

and that, on balance, the benefits to the 

public resulting from compiling and 

analyzing this blackout information 

would outweigh any potential burden. 

We seek comment on the reasonableness 

of the proposed reporting process, and 

we request comment on relevant types 

of blackout information already being 

collected by cable operators, DBS 

providers, other MVPDs, and broadcast 

stations so that we can best align our 

metrics with what is already available to 

them. We invite comment on the 

burdens that might be imposed by the 

adoption of the proposed reporting 

requirements, and in particular 

welcome comments quantifying that 

burden and recommendations to 

mitigate it. Would collecting and 

reporting as proposed be more 

burdensome for small entities? 56 If so, 

why and to what degree? In addition, 

we seek comment on the benefits and 

drawbacks of treating the non-subscriber 

information disclosures in the Initial 

and Final Blackout Notification as 

public information. Is there any 

alternative reporting approach that 

would maximize the potential benefits 

and accomplish the proceeding’s 

objectives in a less costly, less 

burdensome, and/or more effective 

manner? Should there be an additional 

or alternative reporting threshold for 

small entities? If so, what should that 

reporting threshold be and why is it 

necessary? Alternatively, is the burden 

of reporting outweighed by the benefits 

gained from the ability to better monitor 

and study reported blackouts? 

29. Digital Equity and Inclusion. The 

Commission, as part of its continuing 

effort to advance digital equity for all,57

including people of color, persons with 

disabilities, persons who live in rural or 

Tribal areas, and others who are or have 

been historically underserved, 

marginalized, or adversely affected by 

persistent poverty or inequality, invites 

comment on any equity-related 

considerations 58 and benefits (if any) 

that may be associated with the 

proposals and issues discussed herein. 

Specifically, we seek comment on how 

our proposals may promote or inhibit 

advances in diversity, equity, inclusion, 

and accessibility, as well the scope of 

the Commission’s relevant legal 

authority. 

C. Legal Authority 

30. We tentatively conclude the 

Commission has ample authority to 

adopt the proposed blackout reporting 

requirements. Section 325(b)(3)(A) of 

the Act grants the Commission broad 

authority to ‘‘establish regulations to 

govern the exercise by television 

broadcast stations of the right to grant 

retransmission consent.’’ 59 The 

Commission has previously concluded 

that ‘‘this provision grants the 

Commission authority to adopt rules 

governing retransmission consent 

negotiations[.]’’ 60 Separately and in 

addition, section 325(b)(3)(C) mandates 

that broadcasters and MVPDs negotiate 

retransmission consent in good faith.61

The Commission has express statutory 

authority to adopt rules implementing 

this requirement.62 In past actions it has 

recognized that ‘‘by imposing a good 

faith obligation, Congress intended that 

the Commission develop and enforce a 

process’’ conducive to good faith 

negotiations 63 rather than ‘‘dictate the 

outcome’’ of such negotiations.64 We 

tentatively conclude the proposed 

blackout reporting requirements fall 

squarely within the Commission’s 

oversight authority under both section 

325(b)(3)(A) and section 325(b)(3)(C). 

Specifically, we tentatively find that 

timely notification about a blackout and 

access to accurate information about the 

surrounding circumstances is critical to 

carrying out our statutory mission. 

Reporting blackout information is the 

most efficient means for the 

Commission to obtain critical 

information needed to monitor ongoing 

blackout situations that could result in 

the filing of a retransmission consent 

complaint. Indeed, we expect that 

access to timely reporting information 

could result in tangible improvements 

to the retransmission consent 

negotiation process by allowing 

Commission intervention to get 

negotiations back on track if necessary, 

consistent with statutory requirements. 

In that way, protracted blackouts may be 

avoided. Thus, we tentatively find that 

requiring notification to the 

Commission when broadcast 

programming has gone dark on 

subscribers’ MVPD service because of 

failed retransmission consent 

negotiations will allow the Commission 

to better govern the retransmission 

consent negotiation process as 

envisioned under the Communications 

Act. 

31. The Commission also has broad 

information collection authority under 

section 403 of the Act, which grants the 


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65 47 U.S.C. 403 (‘‘The Commission shall have full 

authority and power at any time to institute an 

inquiry, on its own motion, in any case and as to 

any matter or thing concerning which complaint is 

authorized to be made, to or before the Commission 

by any provision of this chapter, or concerning 

which any question may arise under any provisions 

of this chapter, or relating to the enforcement of any 

of the provisions of this chapter.’’); Stahlman v. 

FCC, 126 F.2d 124, 127 (D.C. Cir. 1942) (‘‘[F]ull 

authority and power is given to the Commission 

with or without complaint to institute an inquiry 

concerning questions arising under the provisions 

of the Act or relating to its enforcement. This . . . 

includes authority to obtain the information 

necessary to discharge its proper functions, which 

would embrace an investigation aimed at the 

prevention or disclosure of practices contrary to 

public interest.’’) (citing 47 U.S.C. 403); Barrier 

Communications Corp., Notice of Apparent 

Liability for Forfeiture, 35 FCC Rcd 10186, 10189, 

para. 8 (2020) (‘‘Section 403 of the Communications 

Act . . . grants the Commission broad authority to 

conduct investigations and to compel entities to 

provide information and documents sought during 

investigations.’’); In re: James A. Kay, Jr., WT 

Docket No. 94–147, Memorandum Opinion and 

Order, 13 FCC Rcd 16369, 16372, para. 10 (1998) 

(‘‘[U]nder 47 U.S.C. 403, the Commission enjoys 

wide discretion to initiate investigations with or 

without a complaint and has a responsibility to 

investigate where there is reason to believe that a 

licensee is violating the Commission’s rules or 

policies.’’). See also 47 CFR 1.1 (‘‘The Commission 

may on its own motion or petition of any interested 

party hold such proceedings as it may deem 

necessary from time to time . . . for the purpose of 

obtaining information necessary or helpful in the 

determination of its policies, the carrying out of its 

duties or the formulation or amendment of its rules 

and regulations.’’). 

66See 47 U.S.C. 154(i) (authorizing the 

Commission to ‘‘perform any and all acts, make 

such rules and regulations, and issue such orders, 

not inconsistent with this Act, as may be necessary 

in the execution of its functions’’); 47 U.S.C. 303(r) 

(the Commission shall ‘‘[m]ake such rules and 

regulations and prescribe such restrictions and 

conditions, not inconsistent with law, as may be 

necessary to carry out the provisions of this Act’’); 

47 U.S.C. 325(b)(3)(A) (the Commission shall 

‘‘establish regulations to govern the exercise by 

television broadcast stations of the right to grant 

retransmission consent under this subsection 

. . .’’). 67 47 U.S.C. 552(b), 335(a). 68 Id. Section 552(b) (‘‘The Commission shall . . . 

establish standards by which cable operators may 

fulfill their customer service requirements.’’). 69 Id. Section 335(a) (‘‘The Commission shall . . . 

initiate a rulemaking proceeding to impose, on 

providers of direct broadcast satellite service, 

public interest or other requirements for providing 

video programming.’’). Although section 335(a) 

requires that the Commission adopt certain 

statutory political broadcasting requirements for 

DBS providers, the statute is clear that this list is 

not exhaustive. 47 U.S.C. 335(a) (‘‘Any regulations 

prescribed pursuant to such rulemaking shall, at a 

minimum, apply the access to broadcast time 

requirement of section 312(a)(7) and the use of 

facilities requirements of section 315 to providers 

of direct broadcast satellite service . . .’’) (emphasis 

added). 

70Empowering Broadband Consumers Through 

Transparency, CG Docket No. 22–2, 2022 WL 

17100958, Report and Order and Further Notice of 

Proposed Rulemaking, FCC 22–86, at *1, para. 1 

(Nov. 17, 2022). 

71Cellco Partnership v. FCC, 700 F.3d 534, 541– 

42 (D.C. Cir. 2012) (quoting NBC v. United States, 

319 U.S. 190, 219 (1943) and 47 U.S.C. 303(g) (‘‘The 

Commission from time to time, as public 

convenience, interest, or necessity requires, shall 

. . . (g) study new uses for radio, provide for 

experimental uses of frequencies, and generally 

encourage the larger and more effective use of radio 

in the public interest[.]’’)). 

72 47 U.S.C. 307(b); United States v. Southwestern 

Cable Co., 392 U.S. 157, 173–74 (1968) (‘‘Congress 

has imposed upon the Commission the ‘obligation 

of providing a widely dispersed radio and 

television service, with a fair, efficient, and 

equitable distribution’ of service among the ‘several 

States and communities.’ ’’) (quoting S. Rep. No. 

923, 86th Cong., 1st Sess. and 47 U.S.C. 307(b)). 

73 47 U.S.C. 303. 

74 Id. Sections 307, 316; Cellco Partnership, 700 

F.3d at 543. 

Commission discretion to require 

disclosures on matters, like 

retransmission consent, that fall within 

the Commission’s jurisdiction.65 We 

tentatively find that a retransmission 

consent-related blackout that lasts more 

than 24 hours warrants further inquiry 

by the Commission about the 

circumstances surrounding that 

blackout, to ensure that all parties are 

fulfilling their statutory obligation to 

negotiate in good faith. In addition, the 

Act grants the Commission broad 

authority to take the steps necessary to 

implement its mandates, and thus 

provides concurrent authority for the 

proposed blackout reporting rules. 

Sections 4(i) and 303 generally 

authorize the Commission to take any 

actions ‘‘as may be necessary’’ to ensure 

that the Commission can properly 

govern the retransmission consent 

negotiation process and thereby ensure 

that broadcasters and MVPDs fulfill 

their statutory obligation to negotiate 

retransmission consent in good faith.66

32. We also tentatively conclude that 

there is statutory support for the 

proposed reporting requirement in 

sections 632(b) and 335(a) of the Act.67

Under section 632(b), the Commission 

can adopt customer service 

requirements for cable operators.68 And, 

pursuant to section 335(a), the 

Commission has authority to impose on 

DBS providers public interest 

requirements for ‘‘providing video 

programming,’’ which we tentatively 

conclude includes reports on video 

programming blackouts.69 In addition, 

we tentatively conclude that informing 

the Commission and the public about 

the availability of broadcast signals both 

serves the public interest and helps 

consumers make informed choices 

concerning video programming services. 

Blackout reporting will give the public 

greater visibility into the breadth and 

impact of blackouts arising from 

negotiation disputes and provide a 

reliable source of information about the 

entities most frequently involved in 

blackouts. We tentatively conclude that 

the proposed reporting requirements are 

customer service and public interest 

requirements that squarely fall within 

our authority under sections 632(b) and 

335(a). As the Commission recently 

explained, ‘‘Consumer access to clear, 

easy-to-understand, and accurate 

information is central to a wellfunctioning marketplace that encourages 

competition, innovation, low prices, 

and high-quality services. The same 

information empowers consumers to 

choose services that best meet their 

needs and matches their budgets and 

ensures that they are not surprised by 

unexpected charges or service quality 

that falls short of their expectations.’’ 70

These are some of the same goals that 

the proposed reporting requirements 

intend to accomplish. We seek comment 

on our authority to adopt blackout 

reporting requirements for cable 

operators and DBS providers under 

these provisions. 

33. To the extent we adopt blackout 

reporting requirements for broadcasters, 

we tentatively conclude that our 

authority under Title III allows us to 

adopt such requirements to serve the 

public interest objectives stated above. 

Title III endows the Commission with 

‘‘expansive powers’’ and a 

‘‘comprehensive mandate to ‘encourage 

the larger and more effective use of 

radio in the public interest.’ ’’ 71 This 

mandate is reinforced by section 307(b), 

which directs the Commission to 

‘‘provide a fair, efficient, and equitable 

distribution’’ of service throughout the 

country.72 Section 303 of the Act grants 

the Commission authority to establish 

operational obligations for licensees that 

further the goals and requirements of 

the Act if such obligations are necessary 

for the ‘‘public convenience, interest, or 

necessity’’ and are not inconsistent with 

other provisions of law.73 In addition, 

sections 307 and 316 of the Act allow 

the Commission to authorize the 

issuance of licenses or adopt new 

conditions on existing licenses if such 

actions will promote public interest, 

convenience, and necessity.74 Here, we 

tentatively conclude that the proposed 

reporting requirements would serve the 

public interest by informing the public 

about the availability of local broadcast 

signals on MVPD platforms and by 

providing the Commission and the 

public a systematic way to track 

broadcast station blackouts occurring on 

MVPD platforms. While some MVPD 

subscribers could replace the blacked 

out local broadcast signals with the 

broadcaster’s own over-the-air 

transmission, not all subscribers would 

be able to do so because they either lack 

the necessary equipment or live in 

locations where they are unable to 

sufficiently receive the over-the-air 


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75Supra note 4. 

76 5 U.S.C. 603. The RFA, 5 U.S.C. 601–612, was 

amended by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (SBREFA), Public 

Law 104–121, Title II, 110 Stat. 857 (1996). 

77 5 U.S.C. 603(a). 

78 Id. 79 5 U.S.C. 603(b)(3). 

80 Id. Section 601(6). 

81 Id. Section 601(3) (adopting by reference the 

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

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

definition of a small business applies ‘‘unless an 

agency, after consultation with the Office of 

Advocacy of the Small Business Administration 

and after opportunity for public comment, 

establishes one or more definitions of such term 

which are appropriate to the activities of the agency 

and publishes such definition(s) in the Federal 

Register.’’ 

82 15 U.S.C. 632(a)(1). 

83See U.S. Census Bureau, 2017 NAICS 

Definition, ‘‘517311 Wired Telecommunications 

Carriers,’’ https://www.census.gov/naics/

?input=517311&year=2017&details=517311. 

84 Id. 

85 Id. 

86Fixed Local Service Providers include the 

following types of providers: Incumbent Local 

Exchange Carriers (ILECs), Competitive Access 

Providers (CAPs) and Competitive Local Exchange 

Carriers (CLECs), Cable/Coax CLECs, 

Interconnected VOIP Providers, Non-Interconnected 

VOIP Providers, Shared-Tenant Service Providers, 

Audio Bridge Service Providers, and Other Local 

Service Providers. Local Resellers fall into another 

U.S. Census Bureau industry group and therefore 

data for these providers is not included in this 

industry. 

transmission.75 Therefore, over-the-air 

transmission of local broadcast signals 

may not be a reasonable substitute for 

the retransmission of local broadcast 

programming on MVPD platforms. We 

tentatively conclude that the proposed 

blackout reporting requirements would 

‘‘encourage the larger and more effective 

use of radio in the public interest’’ and 

promote the fair, efficient, and equitable 

distribution’’ of service throughout the 

country by informing the Commission 

and the public about the disruption of 

local broadcast signal carriage on MVPD 

platforms. Therefore, we tentatively 

conclude that it serves the public 

interest for the Commission and the 

public to have a centralized database to 

be able to systematically monitor 

obstacles to signal and programming 

availability. We seek comment on these 

and other potentially relevant sources of 

authority. 

IV. Initial Regulatory Flexibility 

Analysis 

34. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),76 the Federal Communications 

Commission (Commission) has prepared 

this Initial Regulatory Flexibility 

Analysis (IRFA) of the possible 

significant economic impact on a 

substantial number of small entities by 

the policies proposed in the NPRM. 

Written public comments are requested 

on this IRFA. Comments must be 

identified as responses to the IRFA and 

must be filed by the deadlines for 

comments on the NPRM. The 

Commission will send a copy of the 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA).77 In 

addition, the NPRM and the IRFA (or 

summaries thereof) will be published in 

the Federal Register.78

A. Need for, and Objectives of, the 

Proposed Rules 

35. In the NPRM, the Commission 

considers and seeks comment on a 

proposal to impose reporting 

requirements for broadcast television 

station blackouts that occur as result of 

a retransmission consent dispute. Over 

the past decade, S&P Capital IQ data 

indicates that the number of blackouts 

resulting from unsuccessful 

retransmission consent negotiations has 

increased dramatically, causing service 

disruptions for consumers. The 

Commission usually learns of broadcast 

station blackouts through reports of 

disputes in the media or informal 

communication with staff, which does 

not allow the Commission or the public 

access to timely information on these 

service disruptions. Under this 

proposal, cable operators, satellite TV 

providers, and other multichannel video 

programming distributors (MVPDs) 

would be required to notify the 

Commission when a broadcast station 

blackout lasting over 24 hours occurs on 

their system. The proposed reporting 

framework would require public notice 

to the Commission of the beginning and 

resolution of any blackout and 

submission of confidential information 

about its scope. We tentatively conclude 

that this proposed rule would ensure 

that the Commission receives prompt 

and accurate information about critical 

broadcast service disruptions when they 

occur. The availability of this 

information would also help the 

Commission determine the extent of 

blackouts nationwide, identify recurring 

problems, determine whether actions 

can be taken to help prevent future 

blackouts from occurring, and identify 

any statistically meaningful trends 

across blackouts. 

B. Legal Basis 

36. The proposed action is authorized 

pursuant to sections 1, 4(i), 4(j), 301, 

303(b), 303(g), 303(j), 303(r), 303(v), 307, 

309, 316, 325, 335(a), 403, and 632 of 

the Communications Act of 1934, as 

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

301, 303(b), 303(g), 303(j), 303(r), 303(v), 

307, 309, 316, 325, 335(a), 403, and 552. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply 

37. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules, if adopted.79 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

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

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 80 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.81 A small 

business concern is one which: (1) is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA.82

38. Wired Telecommunications 

Carriers. The U.S. Census Bureau 

defines this industry as establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired communications networks.83

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution, and wired broadband 

internet services.84 By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.85

Wired Telecommunications Carriers are 

also referred to as wireline carriers or 

fixed local service providers.86


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87See 13 CFR 121.201, NAICS Code 517311 (as 

of 10/1/22, NAICS Code 517111). 

88See U.S. Census Bureau, 2017 Economic 

Census of the United States, Selected Sectors: 

Employment Size of Firms for the U.S.: 2017, Table 

ID: EC1700SIZEEMPFIRM, NAICS Code 517311, 

https://data.census.gov/cedsci/table?y=2017&

n=517311&tid=ECNSIZE2017.EC1700SIZ

EEMPFIRM&hidePreview=false. 

89 Id. The available U.S. Census Bureau data does 

not provide a more precise estimate of the number 

of firms that meet the SBA size standard. 

90Federal-State Joint Board on Universal Service, 

Universal Service Monitoring Report at 26, Table 

1.12 (2022), https://docs.fcc.gov/public/ 

attachments/DOC-391070A1.pdf. 

91 Id. 

92 47 CFR 76.901(d). 

93S&P Global Market Intelligence, S&P Capital IQ 

Pro, U.S. MediaCensus, Operator Subscribers by 

Geography (last visited May 26, 2022). 

94S&P Global Market Intelligence, S&P Capital IQ 

Pro, Top Cable MSOs 12/21Q (last visited May 26, 

2022); S&P Global Market Intelligence, 

Multichannel Video Subscriptions, Top 10 (April 

2022). 

95 47 CFR 76.901(c). 

96S&P Global Market Intelligence, S&P Capital IQ 

Pro, U.S. MediaCensus, Operator Subscribers by 

Geography (last visited May 26, 2022). 

97S&P Global Market Intelligence, S&P Capital IQ 

Pro, Top Cable MSOs 12/21Q (last visited May 26, 

2022). 

98 47 U.S.C. 543(m)(2). 

99 FCC Announces New Subscriber Count for the 

Definition of Small Cable Operator, Public Notice, 

16 FCC Rcd 2225 (CSB 2001) (2001 Subscriber 

Count PN). In this Public Notice, the Commission 

determined that there were approximately 67.7 

million cable subscribers in the United States at 

that time using the most reliable source publicly 

available. Id. We recognize that the number of cable 

subscribers changed since then and that the 

Commission has recently estimated the number of 

cable subscribers to traditional and telco cable 

operators to be approximately 58.1 million. See 

Communications Marketplace Report, GN Docket 

No. 20–60, 2020 Communications Marketplace 

Report, 36 FCC Rcd 2945, 3049, para. 156 (2020) 

(2020 Communications Marketplace Report). 

However, because the Commission has not issued 

a public notice subsequent to the 2001 Subscriber 

Count PN, the Commission still relies on the 

subscriber count threshold established by the 2001 

Subscriber Count PN for purposes of this rule. See 

47 CFR 76.901(e)(1). 

100S&P Global Market Intelligence, S&P Capital 

IQ Pro, Top Cable MSOs 12/21Q (last visited May 

26, 2022); S&P Global Market Intelligence, 

Multichannel Video Subscriptions, Top 10 (April 

2022). 

101The Commission does receive such 

information on a case-by-case basis if a cable 

operator appeals a local franchise authority’s 

finding that the operator does not qualify as a small 

cable operator pursuant to § 76.901(e) of the 

Commission’s rules. See 47 CFR 76.910(b). 

102U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

103 Id. 

104 Id. Included in this industry are: broadband 

internet service providers (e.g., cable, DSL); local 

telephone carriers (wired); cable television 

distribution services; long-distance telephone 

carriers (wired); closed-circuit television (CCTV) 

services; VoIP service providers, using own 

operated wired telecommunications infrastructure; 

direct-to-home satellite system (DTH) services; 

telecommunications carriers (wired); satellite 

television distribution systems; and multichannel 

multipoint distribution services (MMDS). 

105 Id. 

106 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

107U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: EC1700S

IZEEMPFIRM, NAICS Code 517311, https://

data.census.gov/cedsci/table?y=2017&

n=517311&tid=ECNSIZE2017.EC1700

SIZEEMPFIRM&hidePreview=false. 

108 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

39. The SBA small business size 

standard for Wired Telecommunications 

Carriers classifies firms having 1,500 or 

fewer employees as small.87 U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms that operated in this 

industry for the entire year.88 Of this 

number, 2,964 firms operated with 

fewer than 250 employees.89

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 4,590 providers that 

reported they were engaged in the 

provision of fixed local services.90 Of 

these providers, the Commission 

estimates that 4,146 providers have 

1,500 or fewer employees.91

Consequently, using the SBA’s small 

business size standard, most of these 

providers can be considered small 

entities. 

40. Cable Companies and Systems 

(Rate Regulation). The Commission has 

developed its own small business size 

standard for the purpose of cable rate 

regulation. Under the Commission’s 

rules, a ‘‘small cable company’’ is one 

serving 400,000 or fewer subscribers 

nationwide.92 Based on industry data, 

there are about 420 cable companies in 

the U.S.93 Of these, only seven have 

more than 400,000 subscribers.94 In 

addition, under the Commission’s rules, 

a ‘‘small system’’ is a cable system 

serving 15,000 or fewer subscribers.95

Based on industry data, there are about 

4,139 cable systems (headends) in the 

U.S.96 Of these, about 639 have more 

than 15,000 subscribers.97 Accordingly, 

the Commission estimates that the 

majority of cable companies and cable 

systems are small. 

41. Cable System Operators (Telecom 

Act Standard). The Communications 

Act of 1934, as amended, contains a size 

standard for a ‘‘small cable operator,’’ 

which is ‘‘a cable operator that, directly 

or through an affiliate, serves in the 

aggregate fewer than one percent of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000.’’ 98 For 

purposes of the Telecom Act Standard, 

the Commission determined that a cable 

system operator that serves fewer than 

677,000 subscribers, either directly or 

through affiliates, will meet the 

definition of a small cable operator 

based on the cable subscriber count 

established in a 2001 Public Notice.99

Based on industry data, only six cable 

system operators have more than 

677,000 subscribers.100 Accordingly, the 

Commission estimates that the majority 

of cable system operators are small 

under this size standard. We note 

however, that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 

million.101 Therefore, we are unable at 

this time to estimate with greater 

precision the number of cable system 

operators that would qualify as small 

cable operators under the definition in 

the Communications Act. 

42. Direct Broadcast Satellite (DBS) 

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic ‘‘dish’’ 

antenna at the subscriber’s location. 

DBS is included in the Wired 

Telecommunications Carriers industry 

which comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks.102

Transmission facilities may be based on 

a single technology or combination of 

technologies.103 Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution; and wired broadband 

internet services.104 By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.105

43. The SBA small business size 

standard for Wired Telecommunications 

Carriers classifies firms having 1,500 or 

fewer employees as small.106 U.S. 

Census Bureau data for 2017 show that 

3,054 firms operated in this industry for 

the entire year.107 Of this number, 2,964 

firms operated with fewer than 250 

employees.108 Based on this data, the 

majority of firms in this industry can be 

considered small under the SBA small 

business size standard. According to 

Commission data however, only two 

entities provide DBS service, DIRECTV 


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109Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video 

Programming, Eighteenth Report, Table III.A.5, 32 

FCC Rcd 568, 595 (Jan. 17, 2017). 

110U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

111 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

112U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: EC1700S

IZEEMPFIRM, NAICS Code 517311, https://

data.census.gov/cedsci/table?y=2017&n=517311&

tid=ECNSIZE2017.EC1700SIZEEMPFIRM&

hidePreview=false. 

113 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

114U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

115 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

116U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: EC1700

SIZEEMPFIRM, NAICS Code 517311, https://

data.census.gov/cedsci/table?y=2017&n=517311&

tid=ECNSIZE2017.EC1700SIZEEMPFIRM&

hidePreview=false. 

117 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

118U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

119 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

120 Id. 

121U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: EC1700

SIZEEMPFIRM, NAICS Code 517311, https://

data.census.gov/cedsci/table?y=2017&n=517311&

tid=ECNSIZE2017.EC1700SIZEEMPFIRM&

hidePreview=false. 

122 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

123Federal-State Joint Board on Universal 

Service, Universal Service Monitoring Report at 26, 

Table 1.12 (2022), https://docs.fcc.gov/public/ 

attachments/DOC-391070A1.pdf. 

124 Id. 

125Competitive Local Exchange Service Providers 

include the following types of providers: 

Competitive Access Providers (CAPs) and 

Competitive Local Exchange Carriers (CLECs), 

Cable/Coax CLECs, Interconnected VOIP Providers, 

Non-Interconnected VOIP Providers, Shared-Tenant 

Service Providers, Audio Bridge Service Providers, 

Local Resellers, and Other Local Service Providers. 

126U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

127 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

128U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: 

EC1700SIZEEMPFIRM, NAICS Code 517311, 

https://data.census.gov/cedsci/table?y=2017&

n=517311&tid=ECNSIZE2017.EC170

0SIZEEMPFIRM&hidePreview=false. 

129 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

130Federal-State Joint Board on Universal 

Service, Universal Service Monitoring Report at 26, 

Table 1.12 (2022), https://docs.fcc.gov/public/ 

attachments/DOC-391070A1.pdf. 

131 Id. 

(owned by AT&T) and DISH Network, 

which require a great deal of capital for 

operation.109 DIRECTV and DISH 

Network both exceed the SBA size 

standard for classification as a small 

business. Therefore, we must conclude 

based on internally developed 

Commission data, in general DBS 

service is provided only by large firms. 

44. Satellite Master Antenna 

Television (SMATV) Systems, also 

known as Private Cable Operators 

(PCOs). SMATV systems or PCOs are 

video distribution facilities that use 

closed transmission paths without using 

any public right-of-way. They acquire 

video programming and distribute it via 

terrestrial wiring in urban and suburban 

multiple dwelling units such as 

apartments and condominiums, and 

commercial multiple tenant units such 

as hotels and office buildings. SMATV 

systems or PCOs are included in the 

Wired Telecommunications Carriers’ 

industry which includes wireline 

telecommunications businesses.110 The 

SBA small business size standard for 

Wired Telecommunications Carriers 

classifies firms having 1,500 or fewer 

employees as small.111 U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms in this industry that 

operated for the entire year.112 Of this 

total, 2,964 firms operated with fewer 

than 250 employees.113 Thus under the 

SBA size standard, the majority of firms 

in this industry can be considered 

small. 

45. Home Satellite Dish (HSD) 

Service. HSD or the large dish segment 

of the satellite industry is the original 

satellite-to-home service offered to 

consumers and involves the home 

reception of signals transmitted by 

satellites operating generally in the Cband frequency. Unlike DBS, which 

uses small dishes, HSD antennas are 

between four and eight feet in diameter 

and can receive a wide range of 

unscrambled (free) programming and 

scrambled programming purchased from 

program packagers that are licensed to 

facilitate subscribers’ receipt of video 

programming. Because HSD provides 

subscription services, HSD falls within 

the industry category of Wired 

Telecommunications Carriers.114 The 

SBA small business size standard for 

Wired Telecommunications Carriers 

classifies firms having 1,500 or fewer 

employees as small.115 U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms that operated for the 

entire year.116 Of this total, 2,964 firms 

operated with fewer than 250 

employees.117 Thus, under the SBA size 

standard, the majority of firms in this 

industry can be considered small. 

46. Incumbent Local Exchange 

Carriers (Incumbent LECs). Neither the 

Commission nor the SBA have 

developed a small business size 

standard specifically for incumbent 

local exchange carriers. Wired 

Telecommunications Carriers 118 is the 

closest industry with an SBA small 

business size standard.119 The SBA 

small business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small.120 U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year.121 Of this number, 2,964 

firms operated with fewer than 250 

employees.122 Additionally, based on 

Commission data in the 2022 Universal 

Service Monitoring Report, as of 

December 31, 2021, there were 1,212 

providers that reported they were 

incumbent local exchange service 

providers.123 Of these providers, the 

Commission estimates that 916 

providers have 1,500 or fewer 

employees.124 Consequently, using the 

SBA’s small business size standard, the 

Commission estimates that the majority 

of incumbent local exchange carriers 

can be considered small entities. 

47. Competitive Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a size 

standard for small businesses 

specifically applicable to local exchange 

services. Providers of these services 

include several types of competitive 

local exchange service providers.125

Wired Telecommunications Carriers 126

is the closest industry with a SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small.127 U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

that operated in this industry for the 

entire year.128 Of this number, 2,964 

firms operated with fewer than 250 

employees.129 Additionally, based on 

Commission data in the 2022 Universal 

Service Monitoring Report, as of 

December 31, 2021, there were 3,378 

providers that reported they were 

competitive local exchange service 

providers.130 Of these providers, the 

Commission estimates that 3,230 

providers have 1,500 or fewer 

employees.131 Consequently, using the 

SBA’s small business size standard, 


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132U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

133 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

134U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: 

EC1700SIZEEMPFIRM, NAICS Code 517311, 

https://data.census.gov/cedsci/table?y=2017&

n=517311&tid=ECNSIZE2017.EC1700SIZE

EMPFIRM&hidePreview=false. 

135 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

136Federal-State Joint Board on Universal 

Service, Universal Service Monitoring Report at 26, 

Table 1.12 (2022), https://docs.fcc.gov/public/ 

attachments/DOC-391070A1.pdf. 

137 Id. 

138U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517311 Wired Telecommunications Carriers,’’ 

https://www.census.gov/naics/?input=517311&

year=2017&details=517311. 

139 13 CFR 121.201, NAICS Code 517311 (as of 

10/1/22, NAICS Code 517111). 

140U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Employment 

Size of Firms for the U.S.: 2017, Table ID: 

EC1700SIZEEMPFIRM, NAICS Code 517311, 

https://data.census.gov/cedsci/table?y=2017&

n=517311&tid=ECNSIZE2017.EC1700SIZE

EMPFIRM&hidePreview=false. 

141 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

142The use of the term ‘‘wireless cable’’ does not 

imply that it constitutes cable television for 

statutory or regulatory purposes. 

143 47 CFR 27.4; see also Amendment of Parts 21 

and 74 of the Commission’s Rules with Regard to 

Filing Procedures in the Multipoint Distribution 

Service and in the Instructional Television Fixed 

Service and Implementation of Section 309(j) of the 

Communications Act—Competitive Bidding, Report 

and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995). 

144 Generally, a wireless cable system may be 

described as a microwave station transmitting on a 

combination of BRS and EBS channels to numerous 

receivers with antennas, such as single-family 

residences, apartment complexes, hotels, 

educational institutions, business entities and 

governmental offices. The range of the transmission 

depends upon the transmitter power, the type of 

receiving antenna and the existence of a line-ofsight path between the transmitter or signal booster 

and the receiving antenna. 

145U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517312 Wireless Telecommunications Carriers 

(except Satellite),’’ https://www.census.gov/naics/

?input=517312&year=2017&details=517312. 

146 13 CFR 121.201, NAICS Code 517312 (as of 

10/1/22, NAICS Code 517112). 

147U.S. Census Bureau, 2017 Economic Census of 

the United States, Employment Size of Firms for the 

U.S.: 2017, Table ID: EC1700SIZEEMPFIRM, NAICS 

Code 517312, https://data.census.gov/cedsci/

table?y=2017&n=517312&tid=ECNSIZE

2017.EC1700SIZEEMPFIRM&hidePreview=false. 

148 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

149Based on a FCC Universal Licensing System 

search on December 10, 2021, https://wireless2.

fcc.gov/UlsApp/UlsSearch/searchAdvanced.jsp. 

Search parameters: Service Group = All, ‘‘Match 

only the following radio service(s)’’, Radio Service 

= BR, ED; Authorization Type = All; Status = 

Active. We note that the number of active licenses 

does not equate to the number of licensees. A 

licensee can have one or more licenses. 

most of these providers can be 

considered small entities. 

48. Competitive Access Providers 

(CAPs). Neither the Commission nor the 

SBA have developed a definition of 

small entities specifically applicable to 

CAPs. The closest applicable industry 

with a SBA small business size standard 

is Wired Telecommunications 

Carriers.132 Under the SBA small 

business size standard a Wired 

Telecommunications Carrier is a small 

entity if it employs 1,500 employees or 

less.133 U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year.134 Of that number, 2,964 

firms operated with fewer than 250 

employees.135 Additionally, based on 

Commission data in the 2022 Universal 

Service Monitoring Report, as of 

December 31, 2021, there were 659 

CAPs and competitive local exchange 

carriers (CLECs), and 69 cable/coax 

CLECs that reported they were engaged 

in the provision of competitive local 

exchange services.136 Of these 

providers, the Commission estimates 

that 633 providers have 1,500 or fewer 

employees.137 Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

49. Open Video Systems. The open 

video system (OVS) framework was 

established in 1996 and is one of four 

statutorily recognized options for the 

provision of video programming 

services by local exchange carriers. The 

OVS framework provides opportunities 

for the distribution of video 

programming other than through cable 

systems. OVS operators provide 

subscription services and therefore fall 

within the SBA small business size 

standard for the cable services industry, 

which is ‘‘Wired Telecommunications 

Carriers.’’ 138 The SBA small business 

size standard for this industry classifies 

firms having 1,500 or fewer employees 

as small.139 U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year.140 Of this total, 2,964 firms 

operated with fewer than 250 

employees.141 Thus, under the SBA size 

standard the majority of firms in this 

industry can be considered small. 

Additionally, we note that the 

Commission has certified some OVS 

operators who are now providing 

service and broadband service providers 

(BSPs) are currently the only significant 

holders of OVS certifications or local 

OVS franchises. The Commission does 

not have financial or employment 

information for the entities authorized 

to provide OVS however, the 

Commission believes some of the OVS 

operators may qualify as small entities. 

50. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ 142 transmit video programming 

to subscribers and provide two-way 

high speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)).143 Wireless cable operators that 

use spectrum in the BRS often 

supplemented with leased channels 

from the EBS, provide a competitive 

alternative to wired cable and other 

multichannel video programming 

distributors. Wireless cable 

programming to subscribers resembles 

cable television, but instead of coaxial 

cable, wireless cable uses microwave 

channels.144

51. In light of the use of wireless 

frequencies by BRS and EBS services, 

the closest industry with a SBA small 

business size standard applicable to 

these services is Wireless 

Telecommunications Carriers (except 

Satellite).145 The SBA small business 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees.146 U.S. Census Bureau 

data for 2017 show that there were 2,893 

firms that operated in this industry for 

the entire year.147 Of this number, 2,837 

firms employed fewer than 250 

employees.148 Thus under the SBA size 

standard, the Commission estimates that 

a majority of licensees in this industry 

can be considered small. 

52. According to Commission data as 

December 2021, there were 

approximately 5,869 active BRS and 

EBS licenses.149 The Commission’s 

small business size standards with 

respect to BRS involves eligibility for 

bidding credits and installment 

payments in the auction of licenses for 

these services. For the auction of BRS 

licenses, the Commission adopted 

criteria for three groups of small 

businesses. A very small business is an 

entity that, together with its affiliates 

and controlling interests, has average 

annual gross revenues exceed $3 million 

and did not exceed $15 million for the 

preceding three years, a small business 

is an entity that, together with its 

affiliates and controlling interests, has 


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150 47 CFR 27.1218(a). 

151Federal Communications Commission, 

Economics and Analytics, Auctions, Auction 86: 

Broadband Radio Service, Summary, Reports, All 

Bidders, https://www.fcc.gov/sites/default/files/ 

wireless/auctions/86/charts/86bidder.xls. 

152Based on a FCC Universal Licensing System 

search on December 10, 2021, https://

wireless2.fcc.gov/UlsApp/UlsSearch/

searchAdvanced.jsp. Search parameters: Service 

Group = All, ‘‘Match only the following radio 

service(s)’’, Radio Service = BR; Authorization Type 

= All; Status = Active. We note that the number of 

active licenses does not equate to the number of 

licensees. A licensee can have one or more licenses. 

153 47 CFR 27.1219(a). 

154 47 CFR part 101, subparts C and I. 

155 Id. Subparts C and H. 

156Auxiliary Microwave Service is governed by 

Part 74 of Title 47 of the Commission’s Rules. See 

47 CFR part 74. Available to licensees of broadcast 

stations and to broadcast and cable network 

entities, broadcast auxiliary microwave stations are 

used for relaying broadcast television signals from 

the studio to the transmitter, or between two points 

such as a main studio and an auxiliary studio. The 

service also includes mobile TV pickups, which 

relay signals from a remote location back to the 

studio. 

157 47 CFR part 30. 

158 47 CFR part 101, subpart Q. 

159 Id. Subpart L. 

160 Id. Subpart G. 

161 Id. 

162 Id. Subpart O. 

163 Id. Subpart P. 

164 47 CFR 101.533, 101.1017. 

165U.S. Census Bureau, 2017 NAICS Definition, 

‘‘517312 Wireless Telecommunications Carriers 

(except Satellite),’’ https://www.census.gov/naics/

?input=517312&year=2017&details=517312. 

166 13 CFR 121.201, NAICS Code 517312 (as of 

10/1/22, NAICS Code 517112). 

167U.S. Census Bureau, 2017 Economic Census of 

the United States, Employment Size of Firms for the 

U.S.: 2017, Table ID: EC1700SIZEEMPFIRM, NAICS 

Code 517312, https://data.census.gov/cedsci/

table?y=2017&n=517312&tid=ECNSIZE

2017.EC1700SIZEEMPFIRM&hidePreview=false. 

168 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

169 47 CFR 101.538(a)(1)–(3), 101.1112(b)–(d), 

101.1319(a)(1)–(2), and 101.1429(a)(1)–(3). 

170See U.S. Census Bureau, 2017 NAICS 

Definition, ‘‘515120 Television Broadcasting,’’ 

https://www.census.gov/naics/?input=515120&

year=2017&details=515120. 

171 Id. 

172 13 CFR 121.201, NAICS Code 515120 (as of 

10/1/22 NAICS Code 516120). 

173U.S. Census Bureau, 2017 Economic Census of 

the United States, Selected Sectors: Sales, Value of 

Shipments, or Revenue Size of Firms for the U.S.: 

2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 

average gross revenues exceed $15 

million and did not exceed $40 million 

for the preceding three years, and an 

entrepreneur is an entity that, together 

with its affiliates and controlling 

interests, has average gross revenues not 

exceeding $3 million for the preceding 

three years.150 Of the ten winning 

bidders for BRS licenses, two bidders 

claiming the small business status won 

four licenses, one bidder claiming the 

very small business status won three 

licenses and two bidders claiming 

entrepreneur status won six licenses.151

One of the winning bidders claiming a 

small business status classification in 

the BRS license auction has an active 

license as of December 2021.152

53. The Commission’s small business 

size standards for EBS define a small 

business as an entity that, together with 

its affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $55 million for the preceding 

five (5) years, and a very small business 

is an entity that, together with its 

affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $20 million for the preceding 

five (5) years.153 In frequency bands 

where licenses were subject to auction, 

the Commission notes that as a general 

matter, the number of winning bidders 

that qualify as small businesses at the 

close of an auction does not necessarily 

represent the number of small 

businesses currently in service. Further, 

the Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

54. Fixed Microwave Services. Fixed 

microwave services include common 

carrier,154 private-operational fixed,155

and broadcast auxiliary radio 

services.156 They also include the Upper 

Microwave Flexible Use Service 

(UMFUS),157 Millimeter Wave Service 

(70/80/90 GHz),158 Local Multipoint 

Distribution Service (LMDS),159 the 

Digital Electronic Message Service 

(DEMS),160 24 GHz Service,161 Multiple 

Address Systems (MAS),162 and 

Multichannel Video Distribution and 

Data Service (MVDDS),163 where in 

some bands licensees can choose 

between common carrier and noncommon carrier status.164 Wireless 

Telecommunications Carriers (except 

Satellite) 165 is the closest industry with 

a SBA small business size standard 

applicable to these services. The SBA 

small size standard for this industry 

classifies a business as small if it has 

1,500 or fewer employees.166 U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms that operated in 

this industry for the entire year.167 Of 

this number, 2,837 firms employed 

fewer than 250 employees.168 Thus 

under the SBA size standard, the 

Commission estimates that a majority of 

fixed microwave service licensees can 

be considered small. 

55. The Commission’s small business 

size standards with respect to fixed 

microwave services involve eligibility 

for bidding credits and installment 

payments in the auction of licenses for 

the various frequency bands included in 

fixed microwave services. When 

bidding credits are adopted for the 

auction of licenses in fixed microwave 

services frequency bands, such credits 

may be available to several types of 

small businesses based average gross 

revenues (small, very small and 

entrepreneur) pursuant to the 

competitive bidding rules adopted in 

conjunction with the requirements for 

the auction and/or as identified in Part 

101 of the Commission’s rules for the 

specific fixed microwave services 

frequency bands.169

56. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

57. Television Broadcasting. This 

industry is comprised of 

‘‘establishments primarily engaged in 

broadcasting images together with 

sound.’’ 170 These establishments 

operate television broadcast studios and 

facilities for the programming and 

transmission of programs to the 

public.171 These establishments also 

produce or transmit visual programming 

to affiliated broadcast television 

stations, which in turn broadcast the 

programs to the public on a 

predetermined schedule. Programming 

may originate in their own studio, from 

an affiliated network, or from external 

sources. The SBA small business size 

standard for this industry classifies 

businesses having $41.5 million or less 

in annual receipts as small.172 2017 U.S. 

Census Bureau data indicate that 744 

firms in this industry operated for the 

entire year.173 Of that number, 657 firms 


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Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Proposed Rules 5197 

515120, https://data.census.gov/cedsci/

table?y=2017&n=515120&tid=ECNSIZE

2017.EC1700SIZEREVFIRM&hidePreview=false. 174 Id. The available U.S. Census Bureau data 

does not provide a more precise estimate of the 

number of firms that meet the SBA size standard. 

We also note that according to the U.S. Census 

Bureau glossary, the terms receipts and revenues 

are used interchangeably, see https://

www.census.gov/glossary/#term_ReceiptsRevenue

Services. 175Broadcast Station Totals as of June 30, 2023, 

Public Notice, DA 23–582 (rel. July 14, 2023) (July 

2023 Broadcast Station Totals PN), https://

docs.fcc.gov/public/attachments/DA-23-582A1.pdf. 176 Id. 177 47 CFR 76.64(d) (‘‘A multichannel video 

program distributor is an entity such as, but not 

limited to, a cable operator, a BRS/EBS provider, a 

direct broadcast satellite service, a television 

receive-only satellite program distributor, or a 

satellite master antenna television system operator, 

that makes available for purchase, by subscribers or 

customers, multiple channels of video 

programming.’’); infra Appendix A—Proposed 

Rules, § 76.68(c)(1). 

178Supra NPRM, Appendix A—Proposed Rules. 

179Federal Communications Commission, 

Network Outage Reporting System (NORS), https:// 

www.fcc.gov/network-outage-reporting-system-nors 

(last updated Mar. 25, 2022). 180 5 U.S.C. 603(c)(1)–(4). 

had revenue of less than $25,000,000.174

Based on this data we estimate that the 

majority of television broadcasters are 

small entities under the SBA small 

business size standard. 

58. As of June 30, 2023, there were 

1,375 licensed commercial television 

stations.175 Of this total, 1,256 stations 

(or 91.3%) had revenues of $41.5 

million or less in 2022, according to 

Commission staff review of the BIA 

Kelsey Inc. Media Access Pro Television 

Database (BIA) on July 17, 2023, and 

therefore these licensees qualify as 

small entities under the SBA definition. 

In addition, the Commission estimates 

as of June 30, 2023, there were 383 

licensed noncommercial educational 

(NCE) television stations, 381 Class A 

TV stations, 1,902 LPTV stations and 

3,123 TV translator stations.176 The 

Commission, however, does not compile 

and otherwise does not have access to 

financial information for these 

television broadcast stations that would 

permit it to determine how many of 

these stations qualify as small entities 

under the SBA small business size 

standard. Nevertheless, given the SBA’s 

large annual receipts threshold for this 

industry and the nature of these 

television station licensees, we presume 

that all of these entities qualify as small 

entities under the above SBA small 

business size standard. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

59. The proposed rule would require 

all MVPDs carrying broadcast 

programming pursuant to 

retransmission consent agreements, 

including cable operators and DBS 

providers (Reporting MVPDs or, more 

broadly, Reporting Entities),177 to notify 

the Commission of both the start and 

conclusion of a broadcast station 

blackout lasting over 24 hours. The 

initial notification would provide basic 

blackout information, both public and 

confidential, to the Commission within 

48 hours of the start of a reportable 

broadcast station blackout (Initial 

Blackout Notification). The final 

notification, submitted no later than two 

business days after the end of the 

reportable broadcast station blackout, 

would publicly identify the date 

retransmission resumed (Final Blackout 

Notification). We propose that this 

information be collected through an 

online reporting portal designed, 

hosted, and administered by the 

Commission. Reporting Entities would 

be given notice of the specific reporting 

procedures by public notice before 

being required to submit blackout 

information via the reporting portal. 

Public blackout information collected 

through the portal would then be 

available on the Commission’s 

website.178

60. To streamline reporting, the 

NPRM proposes creating an online 

reporting portal, modeled after the 

Commission’s Network Outage 

Reporting System (NORS), which 

Reporting Entities would use to report 

broadcast station blackouts occurring on 

MVPD platforms.179 The proposed data 

to be reported would be filed with the 

Commission via this web-based system. 

As with the Commission’s Network 

Outage Reporting System (NORS), this 

system would use an electronic 

template to promote the ease of 

reporting and encryption technology to 

ensure the security of the information 

fields. The proposed blackout 

information to be reported would be 

available to the public, except for more 

sensitive information regarding 

subscribers, which Reporting Entities 

may designate as confidential. 

61. The NPRM aims to tailor the 

proposed requirements so that they 

impose a minimal burden on small and 

other Reporting Entities while still 

ensuring that the Commission and the 

public have access to critical data on 

service disruptions. It is likely that 

small and other Reporting Entities 

already collect this information in the 

ordinary course of business for their 

internal use. As such, the operational 

cost of implementation associated with 

the proposed reporting requirements for 

small entities would be the time 

required to complete the two 

notifications. We anticipate that 

electronic submission through the 

reporting portal will minimize the 

amount of time and effort that will be 

required to complete the proposed 

reporting obligations. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities and Significant Alternatives 

Considered 

62. The RFA requires an agency to 

describe any significant, specifically 

small business, alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) the establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rule for such small entities; 

(3) the use of performance, rather than 

design, standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 180

63. The NPRM considers certain 

alternatives that may impact small 

entities. One such alternative discussed 

is whether mandatory blackout 

reporting is necessary and if voluntary 

reporting could support the 

Commission’s efforts to stay informed 

on the frequency and impact of 

broadcast station blackouts. The NPRM 

concludes that based on experience 

with voluntary reporting in other 

contexts, this would likely create 

substantial gaps in data that would 

significantly impair the Commission’s 

efforts and therefore not sufficiently 

serve the information collection 

purposes of this reporting initiative. The 

NPRM also considers the timeliness of 

the Final Blackout Notification 

reporting the resumption of carriage 

when multiple stations are involved in 

a blackout and whether Reporting 

Entities must report the partial end of a 

blackout as carriage for each station 

resumes, or report only after the dispute 

has been resolved for all the stations 

included in the Initial Blackout 

Notification. 

64. We anticipate that complying with 

the proposed reporting requirements 

will create a minimal administrative 

burden on small entities and that, on 

balance, the benefits of compiling this 

information on service disruptions 

would outweigh any potential burden. 

We expect that Reporting Entities will 

have ready access to the basic blackout 

information that is proposed to be 


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181NPRM at para. 28. 

182See 5 U.S.C. 603. The RFA, 5 U.S.C. 601–612, 

was amended by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (SBREFA), Public 

Law 104–121, Title II, 110 Stat. 857 (1996). 

183 Id. Section 605(b). 

184The Paperwork Reduction Act of 1995 (PRA), 

Public Law 104–13, 109 Stat. 163 (1995) (codified 

in Chapter 35 of title 44 of the U.S. Code). 

185The Small Business Paperwork Relief Act of 

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

(2002) (codified in Chapter 35 of title 44 of the U.S. 

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

186 5 U.S.C. 553(b)(4). The Providing 

Accountability Through Transparency Act, Public 

Law 118–9 (2023), amended section 553(b) of the 

Administrative Procedure Act. 

187 47 CFR 1.1200 et seq. 

included in the required notices—when 

and where the blackout occurred and 

what subscribers were affected. As a 

result, we believe that, in the normal 

course of operations, the only potential 

burden associated with the reporting 

requirements contained in this NPRM 

will be the time required to complete 

the Initial and Final Notifications. We 

also anticipate that electronic 

submission should minimize the 

amount of time and effort that will be 

required to comply with the rule 

proposed in this NPRM. In addition, we 

do not anticipate that it will be costly 

or time consuming for Reporting 

Entities to fill out and submit the 

proposed notifications, each of which is 

quite brief. Given this reporting 

framework, we expect that the economic 

impact on small entities is not likely to 

be significant, and therefore believe that 

the proposed process is reasonable in 

light of the benefits to the Commission, 

Congress, and the public from having 

timely access to important and accurate 

information on service disruptions. 

65. The NPRM seeks comment on the 

types of burdens small entities will face 

in complying with the proposed 

requirements and invites commenters to 

quantify that burden and recommend 

how to mitigate it.181 To assist in the 

Commission’s evaluation of the 

economic impact on small entities, as a 

result of actions that have been 

proposed in the NPRM, and to better 

explore options and alternatives, the 

Commission has sought comment from 

the parties. In particular, the 

Commission seeks comment on whether 

any of the burdens associated with the 

reporting requirements described above 

can be minimized for small entities. 

Entities, especially small businesses and 

small entities, are encouraged to 

quantify the costs and benefits of the 

proposed reporting requirements. The 

Commission expects to more fully 

consider the economic impact and 

alternatives for small entities following 

the review of comments filed in 

response to the NPRM. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

66. None. 

V. Procedural Matters 

67. Regulatory Flexibility Act. The 

Regulatory Flexibility Act of 1980, as 

amended (RFA),182 requires that an 

agency prepare a regulatory flexibility 

analysis for notice and comment 

rulemakings, unless the agency certifies 

that ‘‘the rule will not, if promulgated, 

have a significant economic impact on 

a substantial number of small 

entities.’’ 183 Accordingly, we have 

prepared an Initial Regulatory 

Flexibility Analysis (IRFA) concerning 

the possible/potential impact of the rule 

and policy changes contained in this 

NPRM. The IRFA is attached as 

Appendix B. Written public comments 

are requested on the IRFA. Comments 

must have a separate and distinct 

heading designating them as responses 

to the IRFA and must be filed by the 

deadlines for comments on the first page 

of this document. 

68. Initial Paperwork Reduction Act 

Analysis. This document contains 

proposed new information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995.184 In addition, pursuant to the 

Small Business Paperwork Relief Act of 

2002, we seek specific comment on how 

we might further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.185

69. Providing Accountability Through 

Transparency Act. The Providing 

Accountability Through Transparency 

Act requires each agency, in providing 

notice of a rulemaking, to post online a 

brief plain-language summary of the 

proposed rule.186 Accordingly, the 

Commission will publish the required 

summary of this Notice of Proposed 

Rulemaking on: https://www.fcc.gov/ 

proposed-rulemakings. 

70. Ex Parte Rules—Permit-ButDisclose. This proceeding shall be 

treated as a ‘‘permit-but-disclose’’ 

proceeding in accordance with the 

Commission’s ex parte rules.187 Persons 

making ex parte presentations must file 

a copy of any written presentation or a 

memorandum summarizing any oral 

presentation within two business days 

after the presentation (unless a different 

deadline applicable to the Sunshine 

period applies). Persons making oral ex 

parte presentations are reminded that 

memoranda summarizing the 

presentation must (1) list all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made, and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenter’s 

written comments, memoranda, or other 

filings in the proceeding, the presenter 

may provide citations to such data or 

arguments in his or her prior comments, 

memoranda, or other filings (specifying 

the relevant page and/or paragraph 

numbers where such data or arguments 

can be found) in lieu of summarizing 

them in the memorandum. Documents 

shown or given to Commission staff 

during ex parte meetings are deemed to 

be written ex parte presentations and 

must be filed consistent with rule 

1.1206(b). In proceedings governed by 

rule 1.49(f) or for which the 

Commission has made available a 

method of electronic filing, written ex 

parte presentations and memoranda 

summarizing oral ex parte 

presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding, and must 

be filed in their native format (e.g., .doc, 

.xml, .ppt, searchable .pdf). Participants 

in this proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

IV. Ordering Clauses 

71. It is ordered, pursuant to the 

authority found in sections 1, 4(i), 4(j), 

301, 303(b), 303(g), 303(j), 303(r), 303(v), 

307, 309, 316, 325, 335(a), 403, and 632 

of the Communications Act of 1934, as 

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

301, 303(b), 303(g), 303(j), 303(r), 303(v), 

307, 309, 316, 325, 335(a), 403, and 552, 

that this Notice of Proposed Rulemaking 

IS HEREBY ADOPTED. 

72. It is further ordered that the 

Commission’s Office of the Secretary 

SHALL SEND a copy of this Notice of 

Proposed Rulemaking, including the 

Initial Regulatory Flexibility Analysis, 

to the Chief Counsel for Advocacy of the 

Small Business Administration. 

List of Subjects in 47 CFR Part 76 

Television. 


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Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Proposed Rules 5199 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 76 as follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISON SERVICE 

■ 1. The authority citation for part 76 

continues to read as follows: 

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

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

315, 317, 325, 338, 339, 340, 341, 503, 521, 

522, 531, 532, 534, 535, 536, 537, 543, 544, 

544a, 545, 548, 549, 552, 554, 556, 558, 560, 

561, 571, 572, 573. 

■ 2. Add § 76.68 to Subpart D to read as 

follows: 

§ 76.68 Reporting Requirements for 

Commercial Television Broadcast Station 

Blackouts. 

(a) Information Required. All 

information must be submitted to the 

Commission electronically in 

accordance with procedures specified 

by the Media Bureau by public notice. 

(1) In the event of a Broadcast Station 

Blackout lasting over 24 hours, the 

Reporting Entity shall, within 48 hours 

of the initial interruption to 

programming, submit an Initial Blackout 

Notification. This Notification will be 

available to the public and shall 

identify: 

(i) The name of the Reporting Entity; 

(ii) The commercial television 

broadcast station or stations no longer 

being retransmitted, including network 

affiliation(s), if any, of each affected 

primary and multicast stream; 

(iii) The name of the broadcast station 

group, if any, that owns the commercial 

television broadcast station(s) 

(iv) The Designated Market Area(s) in 

which affected subscribers reside; 

(v) The date and time of the initial 

interruption to programming; and 

(vi) The number of subscribers 

affected. 

(2) No later than 2 business days after 

the resumption of carriage to 

subscribers, the Reporting Entity shall 

submit a Final Blackout Notification. 

This Notification will be available to the 

public and shall state, with respect to 

each station identified in the Initial 

Blackout Notification, that 

retransmission has resumed and include 

the date on which retransmission 

resumed. 

(b) Confidential Treatment. Reporting 

Entities may request that subscriber data 

submitted pursuant to paragraph 

(a)(1)(vi) of this section be treated as 

confidential and be withheld from 

public inspection by so indicating on 

the notice at the time that they submit 

such data. Reporting Entities seeking 

confidential treatment of any other data 

requested pursuant to paragraphs 

(a)(1)(i) through (v) of this section must 

submit a request that the data be treated 

as confidential with the submission of 

the Initial Blackout Notification, along 

with their reasons for withholding the 

information from the public, pursuant to 

§ 0.459 of this chapter. 

(c) Definitions. 

(1) Reporting Entity. The entity 

reporting a Broadcast Station Blackout. 

(2) Broadcast Station Blackout. Any 

time an MVPD ceases retransmission of 

a commercial television broadcast 

station’s signal due to a lapse of the 

broadcast station’s consent for such 

retransmission. 

(3) Commercial Television Broadcast 

Station. For the purposes of this section, 

a ‘‘commercial television broadcast 

station’’ includes all commercial full 

power, class A, and low power 

television broadcast stations. 

[FR Doc. 2024–01505 Filed 1–25–24; 8:45 am] 

BILLING CODE 6712–01–P 


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