Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 8385 

(2) An included contract in an 

umbrella product shall not be amended, 

unless the amendment remains 

functionally equivalent to the baseline 

agreement. 

(e) Special rules regarding nonpublished rates products. 

(1) A non-published rates contract 

template shall not be amended. 

(2) An included contract in a nonpublished rates product shall not be 

amended, except to: 

(i) Change the customer’s name to 

recognize a change to the legal name of 

the customer; 

(ii) Change the customer’s address; 

(iii) Change the name of any 

individual identified in the contract; 

(iv) Change notice information; 

(v) Make rate changes provided that 

the rates to be charged equal or exceed 

the current minimum rates approved by 

the Commission in the applicable 

streamlined-option rulemaking; 

(vi) Extend the included contract’s 

expiration date provided that the rates 

to be charged equal or exceed the 

current minimum rates approved by the 

Commission in the applicable 

streamlined-option rulemaking; 

(vii) Select an alternative optional 

provision available in the contract 

template. 

(3) An amendment to an existing 

included contract will take effect 

without Commission further approval 

upon filing with the Commission of the 

notice specified in paragraph (c)(1) of 

this section. 

(f) Special rules regarding 

standardized distinct products. 

(1) A request to amend a standardized 

distinct product is reviewed in an NSA 

summary proceeding. 

(2) An amendment to an existing 

standardized distinct product may take 

effect upon filing with the Commission 

without Commission approval if: 

(i) The Postal Service files the notice 

specified in paragraph (c)(1) of this 

section; and 

(ii) The amendment modifies the 

existing standardized distinct product 

in one or more of the following ways: 

(A) Changing the customer’s name to 

recognize a change to the legal name of 

the customer; 

(B) Changing the customer’s address; 

(C) Changing the name of any 

individual identified in the contract; 

(D) Changing notice information; 

(E) Extending the standardized 

distinct product’s expiration date 

provided that the rates to be charged 

equal or exceed the current minimum 

rates approved by the Commission in 

the applicable streamlined-option 

rulemaking; or 

(F) Implementing changes to rates 

provided that such changed rates equal 

or exceed the current minimum rates 

approved by the Commission in the 

applicable streamlined-option 

rulemaking. 

(g) Special rules regarding a request to 

amend a negotiated service agreement to 

extend the expiration date of the 

negotiated service agreement. 

1. A request to amend a negotiated 

service agreement to extend the 

expiration date of the negotiated service 

agreement must be submitted in 

accordance with § 3041.515. 

2. A proceeding considering a request 

to amend a negotiated service agreement 

to extend the expiration date of the 

negotiated service agreement is not a 

public proceeding. 

(h) When a general rule conflicts with 

a special rule in this section, the special 

rule shall take precedence. 

§ 3041.510 Renewals of competitive 

negotiated service agreements. 

(a) A renewal of a negotiated service 

agreement is deemed a new negotiated 

service agreement. 

(b) A renewal of a competitive 

negotiated service agreement will be 

added to the competitive product list 

pursuant to the applicable rules for 

adding a new negotiated service 

agreement to the competitive product 

list. 

§ 3041.515 Extensions 

(a) A negotiated service agreement 

may be extended prior to its expiration 

date upon one of the following: 

1. Timely filing of notice with the 

Commission of the valid exercise of an 

extension right in the negotiated service 

agreement; or 

2. Approval by the Commission of a 

timely filed amendment extending the 

expiration date of the negotiated service 

agreement. 

(b) For the purposes of paragraph (a) 

of this section, a notice or amendment 

is timely filed if it is filed at least 10 

days prior to the expiration of the 

negotiated service agreement. 

(c) Upon expiration, a negotiated 

service agreement shall be removed 

automatically from the competitive 

product list. 

(d) No negotiated service agreement 

shall remain on the competitive product 

list following its expiration. An expired 

negotiated service agreement shall not 

be extended retroactively. 

(e) Notwithstanding any other rule in 

this chapter, the prohibitions in 

paragraph (d) of this section shall not be 

waived. 

§ 3041.520 Terminations 

(a) The Postal Service shall file notice 

of the termination of a negotiated 

service agreement within 7 days after 

such termination. 

(b) Upon termination, a negotiated 

service agreement shall be removed 

automatically from the competitive 

product list. No negotiated service 

agreement shall remain on the 

competitive product list after its 

termination. 

Subpart F—Negotiated Service 

Agreement Reporting and Compliance 

§ 3041.605 Competitive negotiated service 

agreement reporting requirements. 

(a) The Postal Service must file, on a 

quarterly basis, a summary spreadsheet 

listing all negotiated service agreements 

active during any part of the prior 

quarter. Negotiated service agreements 

must be listed by Mail Classification 

Schedule section or in such other way 

as the Commission requires by order. 

Such spreadsheet must identify all 

extensions, expirations, and 

terminations of negotiated service 

agreements and any other information 

the Commission requires by order. 

(b) A report is due within 7 days after 

the last day of each quarter of the fiscal 

year. 

(c) Upon finding that any report 

contains significant omissions, 

inaccuracies, or other deficiencies, the 

Commission may take any of the 

following actions: 

1. Require the Postal Service to file 

such reports on a more frequent basis; 

2. Require a Postal Service executive 

to submit a sworn statement attesting to 

the accuracy and completeness of each 

subsequent report; and 

3. Impose other conditions the 

Commission finds reasonable and 

appropriate to ensure the accuracy and 

completeness of such reports. 

By the Commission. 

Jennie Jbara, 

Alternate Certifying Officer. 

[FR Doc. 2024–02281 Filed 2–6–24; 8:45 am] 

BILLING CODE 7710–FW–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 24–20; FCC 24–2; FR ID 

198390] 

Customer Rebates for Undelivered 

Video Programming During Blackouts 

AGENCY: Federal Communications 

Commission 

ACTION: Notice of proposed rulemaking. 

SUMMARY: In this document, the Federal 

Communications Commission 


khammond on DSKJM1Z7X2PROD with PROPOSALS
8386 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 

(Commission) seeks comment on 

whether to require cable operators and 

direct broadcast satellite (DBS) 

providers to give their subscribers 

rebates when those subscribers are 

deprived of video programming they 

expect to receive during programming 

blackouts that result from failed 

retransmission consent negotiations or 

failed non-broadcast carriage 

negotiations. When such blackouts 

occur, subscribers often pay the same 

monthly subscription fee for a service 

package that does not include all of the 

channels for which they signed up to 

receive. In other words, consumers are 

paying for a service that they are no 

longer receiving in full. This proceeding 

seeks comment on whether and how we 

should address this customer service 

shortcoming. We also seek comment on 

how the market addresses this issue 

currently. 

DATES: Submit comments on or before 

March 8, 2024. Submit reply comments 

on or before April 8, 2024. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 24–20, by 

any of the following methods: 

• Electronic Filers. Comments may be 

filed electronically by accessing ECFS 

at: http://apps.fcc.gov/ecfs/. Follow the 

instructions for submitting comments. 

• 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. 

Æ 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. 

Æ U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

Æ 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: For 

additional information on this 

proceeding, contact Brendan Murray, 

Brendan.Murray@fcc.gov, of the Policy 

Division, Media Bureau, (202) 418– 

1573. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking, (NPRM) FCC 24– 

2, adopted on January 10, 2024, and 

released on January 17, 2024. These 

documents will be available via ECFS 

(http://www.fcc.gov/cgb/ecfs/). 

(Documents will be available 

electronically in ASCII, Word, and/or 

Adobe Acrobat.) To request these 

documents in accessible formats for 

people with disabilities, 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). 

Background. The Communications 

Act of 1934, as amended (the Act), 

requires that cable operators and 

satellite TV providers obtain a broadcast 

TV station’s consent to lawfully 

retransmit the signal of a broadcast 

station to subscribers. Commercial 

stations may either demand carriage 

pursuant to the Commission’s must 

carry rules or elect retransmission 

consent and negotiate for compensation 

in exchange for carriage. If a 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 

cable operator or DBS provider loses the 

right to carry the signal. The same is 

true if a cable operator or DBS provider 

cannot negotiate for carriage with a nonbroadcast network. In both cases, the 

result is a blackout of that existing 

programming on the platform. When 

these blackouts occur, the cable operator 

or DBS provider’s subscribers typically 

lose access to the station or network’s 

entire signal on the platform, including 

both the national and local 

programming provided by the 

broadcaster, unless and until the parties 

are able to reach an agreement. 

Over the past decade, data indicates 

that the number of blackouts resulting 

from unsuccessful retransmission 

consent negotiations has increased 

dramatically. These blackouts often 

frustrate subscribers because they lose 

access to programming from their cable 

operator or DBS provider that they had 

previously received. A leading cause of 

these disputes is disagreements over 

per-subscriber programming fees. 

However, subscribers may not see 

rebates or bill reductions during the 

carriage dispute when the cable operator 

or DBS provider does not carry the 

broadcast TV station, even though many 

cable operators and DBS providers 

charge a fee on subscribers’ bills that 

purportedly pays programmers for 

subscriber access to the broadcast signal 

or network. 

Discussion. We seek comment on 

whether and how to require cable 

operators and DBS providers to give 

their subscribers rebates when they 

blackout a channel due to a 

retransmission consent dispute or a 

failed negotiation for carriage of a nonbroadcast channel. In the event that we 

adopt such a requirement, we seek 

comment below on (i) how to apply the 

rule, (ii) whether to specify the method 

that cable operators and DBS providers 

use to offer the rebates and if so, how 

they should issue rebates, (iii) our 

authority to adopt a rebate rule, (iv) how 

to enforce a rebate rule, (v) the costs and 

benefits of such a rule, and (vi) the 

effects that such a rule would have on 

digital equity and inclusion. We also 

invite comment on any other proposals 

to ensure that subscribers are made 

whole when they lose access to 

programming that they expected to 

receive in exchange for paying a 

monthly subscription fee when they 

signed up for service. 

We seek comment on this proposal at 

this time because, as discussed above, 

data indicates that the number of 

blackouts has increased dramatically in 

the last several years. Why is this? Is 

increased consolidation in either the 

broadcaster or MVPD market leading to 

an increase in blackouts? Has the 

proliferation of streaming services, 

including live linear streaming services 

(vMVPDs) impacted the amount or 

duration of blackouts, as these services 

may provide subscribers with 

alternative viewing options during a 

carriage dispute? Are broadcasters or 

programmers with certain categories of 

programming (e.g. sports) more likely to 

have negotiations that result in 

blackouts? Are there certain 

broadcasters or MVPDs whose 

negotiations result in blackouts more 

frequently than others? Are there 

proposals we should consider to 

incentivize both broadcasters/ 

programmers and distributors to limit 

programming blackouts? 

Applicability. We seek comment on 

whether to require cable operators and 

DBS providers to provide rebates if they 

blackout video channels due to a 


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retransmission consent dispute or a 

failed negotiation for carriage of a nonbroadcast channel. Below, we seek 

comment on whether various provisions 

of the Act give us authority to require 

cable operators and DBS providers to 

give their subscribers rebates when the 

operator or providers ceases to carry a 

channel due to a retransmission consent 

or program carriage dispute; given that 

the authority upon which we base this 

proposal is cable and DBS-specific, are 

those the only entities to which this 

proposal should apply? If we were to 

require cable operators and DBS 

providers to give rebates to subscribers 

who are deprived of programming they 

expected to receive, should the rule 

apply to any channel that is blacked 

out? What if the parties never reach an 

agreement for carriage? Would 

subscribers be entitled to rebates in 

perpetuity and how would that be 

calculated? Or should the rebate end 

when the subscriber renews the contract 

if the channel is still blacked out at the 

time of renewal? Similarly, if a 

subscriber initiates service during a 

blackout, would that subscriber be 

entitled to a rebate or a lower rate? Does 

the ‘‘good faith’’ negotiation 

requirement in section 325 of the Act 

confer unique status on broadcast 

channels that provides a basis to 

distinguish broadcast and broadcastaffiliated channels (that is, those 

channels that are owned by a company 

that also holds or controls broadcast 

licenses) from non-broadcast or 

independent channels? That is, does the 

‘‘good faith’’ negotiation requirement 

make an eventual carriage agreement 

more likely, and therefore suggest that a 

rebate would be temporary? If so, 

should this affect whether the rebate 

policy should apply to such entities, 

and why? To the extent that the existing 

terms of service between a cable 

operator or DBS provider and its 

subscriber specify that the cable 

operator or DBS provider is not liable 

for credits or refunds in the event that 

programming becomes unavailable, we 

seek comment on whether to deem such 

provisions unenforceable if we were to 

adopt a rebate requirement. 

Rebates. We seek comment on how 

cable operators and DBS providers 

currently handle this issue. Are there 

providers who currently provide 

subscribers with rebates or credits 

during a programming blackout? If so, 

does the provider proactively grant that 

rebate or credit to all subscribers 

affected, or is the subscriber required to 

affirmatively request it? How is the 

rebate or credit calculated? Are there 

providers who grant rebates or credits 

for the blackout of certain channels, but 

not of others? What are the deciding 

factors in such a case? Are there 

providers who do not grant rebates or 

credits during blackouts? If so, what is 

their rationale? How would requiring 

cable operators and DBS providers to 

provide rebates or credits change 

providers’ current customer service 

relations during a blackout? 

We seek comment on how to calculate 

the rebate to which a subscriber is 

entitled after a channel is blacked out 

and what methodology should be used. 

Would it be reasonable to require a 

cable operator or DBS provider to rebate 

the cost that it paid to the programmer 

to retransmit or carry the channel prior 

to the carriage impasse? We understand 

that carriage contracts can be complex; 

for example, rates may depend on the 

number of subscribers reached and the 

number of bundled channels being 

carried, video service providers can 

receive advertising time in exchange for 

carriage, providers’ profits for specific 

channels may vary depending on the 

packages and bundles that they offer, 

and specific per-subscriber rates may be 

confidential. Given these complexities, 

are there specific nuances that we could 

adopt as part of a rule to ensure that 

subscribers are made whole when they 

lose access to a channel? Should we 

instead simply require cable operators 

and DBS providers to provide a rebate 

or credit to the consumer that in good 

faith approximates the value of the 

consumer’s access to the channel? 

Should the Commission specify the 

method for providing the rebate? 

Authority. We tentatively conclude 

that sections 335 and 632 of the Act 

provide us with authority to require 

cable operators and DBS providers to 

issue a rebate to their subscribers when 

they blackout a channel. The 

Commission has relied on this authority 

to propose and adopt cable customer 

service regulations for decades, and 

recently proposed to use this authority 

to adopt a customer service rule that 

would apply to DBS as well as cable. 

We tentatively conclude that the 

broad authority we have to adopt 

‘‘public interest or other requirements 

for providing video programming’’ 

under section 335(a) permits us to 

require DBS providers to give 

subscribers rebates for blackouts. 

Section 335(a) authorizes the 

Commission to impose on DBS 

providers public interest requirements 

for providing video programming. 

Although section 335(a) requires the 

Commission to adopt certain statutory 

political broadcasting requirements for 

DBS providers, the statute is clear that 

this list is not exhaustive. We 

tentatively find that requiring rebates for 

service interruptions due to blackouts 

pertains to the ‘‘provi[sion] of video 

programming’’ and is in the public 

interest because the proposed rule 

would prevent DBS subscribers from 

being charged for services for the period 

that they did not receive them. 

Moreover, we tentatively find that a 

rebate requirement would ensure that 

DBS subscribers are made whole when 

they face interruptions of service that 

are outside their control. Accordingly, 

we tentatively conclude that we have 

authority under section 335(a) to apply 

our proposed rule to DBS providers. We 

seek comment on these tentative 

findings and conclusions. We also seek 

comment on whether there are 

alternative or additional statutes or 

arguments that provide a legal basis for 

our authority to adopt these 

requirements for DBS providers. For 

example, do we have authority under 

other provisions of Title III? 

We also seek comment on whether we 

have—and should exercise—ancillary 

authority under section 4(i) of the Act 

to extend our proposed rule to DBS 

providers and whether it is necessary to 

undertake this regulation for the 

Commission to effectively perform its 

responsibilities under the foregoing 

primary sources of statutory authority. 

Applying the rebate requirement to such 

providers would ensure uniformity of 

regulation between and among cable 

operators (regulated under Title VI and 

by various state consumer protection 

laws and local franchising provisions) 

and DBS providers (under Title III), 

thereby preventing DBS from gaining a 

competitive advantage over their 

competitors because they will not be 

required to provide rebates to their 

subscribers for loss of service due to 

blackouts. 

We tentatively conclude that section 

632—which directs the Commission to 

‘‘establish standards by which cable 

operators may fulfill their customer 

service requirements’’—grants us the 

authority to adopt a rebate requirement 

that would apply to cable operators. 

Sections 632(b)(2) and (b)(3) direct the 

Commission to establish standards 

governing ‘‘outages’’ and 

‘‘communications between the cable 

operator and the subscriber (including 

standards governing bills and refunds).’’ 

Although the statute does not define the 

term ‘‘outages,’’ we tentatively find that 

Congress intended that term to apply 

not only to a complete system failure 

but to broadly cover any interruption of 

service under the requirements of 

632(b)(2). Moreover, because our 

proposed rules seek to address cable 

operators’ billing and refund practices 


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8388 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 

concerning blacked out programming, 

we tentatively conclude that these are 

customer service matters within the 

meaning of section 632(b)(3). We 

tentatively find that this interpretation 

is supported by the legislative history. 

Specifically, when Congress adopted 

section 632, it directed us to ‘‘provide 

guidelines governing the provision of 

rebates and credits to customers due to 

system failures or other interruptions of 

service.’’ From a subscriber’s 

perspective, when a cable operator 

blacks out a signal over failed carriage 

negotiations, we tentatively find it to be 

an interruption of service—that is an 

‘‘outage’’ within the meaning of (b)(2): 

the subscriber is paying for a service in 

exchange for a particular package of 

channels, and that particular package of 

channels is no longer available in full 

for a period of time. Regardless of 

whether the outage is due to a technical 

issue, a breakdown in retransmission 

consent negotiations, or for some other 

reason, we tentatively find that the 

subscriber’s service interruption may be 

regulated under (b)(2), and entitled to a 

rebate. We tentatively find that we are 

also authorized under (b)(3) to require 

the cable operator to provide a rebate to 

the affected subscriber for the service 

loss during that period. In addition, we 

tentatively find that we may regulate 

blackout-related rebates under our 

general authority in 632(b) to establish 

‘‘customer service’’ standards. Although 

the term ‘‘customer service’’ is not 

defined in the statute, the legislative 

history defines the term ‘‘customer 

service’’ to mean ‘‘in general’’ ‘‘the 

direct business relation between a cable 

operator and a subscriber,’’ and goes on 

to explain that ‘‘customer service 

requirements’’ include requirements 

related to ‘‘rebates and credits to 

consumers.’’ We tentatively conclude 

that the proposed rebate requirement 

satisfies the definition of a ‘‘customer 

service requirement’’ because billing 

practices governing an interruption of 

service, such as blackouts, involve the 

‘‘direct business relation between a 

cable operator and a subscriber.’’ 

Furthermore, the list of topics Congress 

required the Commission to address in 

terms of customer service was not 

exhaustive. We tentatively conclude 

that blackout-related rebates are 

precisely the type of customer service 

concerns that Congress meant to address 

when it enacted section 632. Thus, we 

tentatively find that our proposed rules 

are within the statute’s grant of 

authority. We seek comment on this 

analysis. 

We acknowledge that section 623 of 

the Act limits our authority to regulate 

rates for cable service in areas where 

effective competition exists, and that 

nearly all cable operators now face 

effective competition and are not subject 

to rate regulation. However, there is no 

such limitation in section 632’s 

customer service provision. 

Furthermore, the availability of other 

service providers offering video 

programming in the franchise area may 

provide some prospective options for 

subscribers, or some deterrent effect for 

the conduct we aim to address, but we 

tentatively find that does not prevent a 

cable operator offering services under an 

existing contract from charging a 

subscriber for a channel that carries no 

programming due to a business dispute 

that is at least somewhat within the 

purview of the cable operator to resolve. 

We tentatively conclude that a rebate 

requirement for interruption of service 

due to blackouts would not be rate 

regulation. The statute does not define 

the term ‘‘rates’’ or explain the meaning 

of the phrase ‘‘rates for the provision of 

cable service’’ for purposes of section 

623. Recent court decisions distinguish 

prohibited rate regulations from 

regulations similar to the one we 

propose here that provide basic 

protections for cable customers. In 

Spectrum Northeast, LLC v. Frey, the 

First Circuit upheld a Maine regulation 

that requires cable operators to issue 

prorated credits or rebates for the days 

remaining in a billing period after a 

subscriber terminates cable service. The 

court determined that the federal 

preemption of cable rate regulation ‘‘did 

not extend to the regulation of 

termination rebates’’ and concluded that 

the Maine law is not a law governing 

‘‘rates for the provision of cable service’’ 

but rather is a ‘‘consumer protection 

law’’ that is not preempted. The New 

Jersey Supreme Court also recently 

upheld a similar New Jersey statute. In 

Matter of Altice, the Supreme Court of 

New Jersey concluded that a 

requirement that cable operators issue 

refunds for the remaining days in a 

billing cycle is not rate regulation 

because ‘‘the plain and ordinary 

meaning of rate regulation . . . is not so 

broad as to encompass all laws that 

affect or concern cable prices.’’ Both 

cases involved requirements that 

addressed cable operator charges to 

subscribers for services that were no 

longer being provided to the subscriber. 

Here, too, our proposed requirement 

would prohibit cable operators from 

charging subscribers for the period of 

time that particular programming is not 

being provided by the cable operator. 

That contrasts with our common 

understanding of rate regulation, which 

is when the government sets ‘‘the 

amount charged for a particular product 

. . . as defined by a particular unit of 

measurement in relation to the 

product.’’ Our proposal contains no 

limits on the amount that a cable 

operator may charge for a channel; 

rather, it would simply require the 

operator to rebate the amount it charges 

if it does not deliver the product. 

Accordingly, we tentatively conclude 

that the courts’ logic in Spectrum 

Northeast, LLC v. Frey and Matter of 

Altice applies to the rebate requirements 

for blackouts. We seek comment on this 

analysis. 

We also tentatively conclude that our 

proposal to require rebates in the event 

of a blackout is consistent with Section 

624(f) of the Act, which provides that 

‘‘[a]ny Federal agency . . . may not 

impose requirements regarding the 

provision or content of cable services, 

except as expressly provided in this 

subchapter.’’ As an initial matter, we 

tentatively conclude that our proposed 

rebate requirement is authorized by 

Section 632, as noted above. In any 

event, we note that courts have 

interpreted Section 624(f) to prohibit 

regulations that are based on the content 

of cable programming (e.g., 

requirements to carry or not carry 

certain programming). Because the 

blackout rebate proposal is not contentbased (that is, it does not require the 

cable operator to carry or not carry 

certain programming), we tentatively 

conclude it does not violate Section 

624(f). We seek comment on this 

analysis. 

As noted above, based on the 

language and structure of section 632, 

Congress authorized the Commission to 

establish customer service requirements 

for cable operators, and franchising 

authorities to adopt additional laws 

above and beyond the Commission’s 

baseline requirements. Therefore, we 

tentatively find that our proposed rule 

for cable operators would not preempt 

state and local laws applied to cable 

operators that require rebates for 

blackouts or otherwise exceed the 

requirements we adopt in this 

proceeding, so long as they are not 

inconsistent with Commission 

regulations. We seek comment on this 

analysis. 

Enforcement. The Commission shares 

authority over cable customer service 

issues under the Act: ‘‘the Commission 

sets baseline customer service 

requirements at the federal level, and 

state and local governments tailor more 

specific customer service regulations 

based on their communities’ needs.’’ 

Given the bifurcated authority we share 

with state and local governments, we 


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Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 8389 

seek comment on how best to enforce a 

rebate rule. Do state and local 

authorities have adequate resources to 

effectively enforce these rules? If not, is 

the Commission best equipped to 

enforce a rebate requirement based on 

consumer complaints? Is there a better 

enforcement mechanism to ensure that 

subscription video providers provide 

their subscribers with rebates or credit? 

Given our shared jurisdiction over cable 

customer service issues, we seek 

specific comment from State and local 

authorities regarding their local 

subscriber complaints and regulation 

experiences with respect to service 

interruptions due to blackouts. What is 

the most effective way to enforce a 

requirement applicable to DBS 

providers? 

Cost/Benefit Analysis. We invite 

commenters to address the costs and 

benefits of requiring cable operators and 

DBS providers to offer rebates to their 

subscribers when those subscribers are 

deprived of video programming for 

which they paid. What are the burdens 

and costs of providing rebates? Would 

the benefits to subscribers outweigh any 

such costs and burdens? Are the costs 

and benefits different for small cable 

entities, and if so, should we impose 

different obligations on those entities? 

How would requiring cable operators 

and DBS providers to offer rebates affect 

carriage negotiations with broadcast 

stations and non-broadcast 

programmers? Specifically, how would 

this policy affect the likelihood of 

blackouts, the duration of blackouts if 

they were to occur, and the carriage fee 

ultimately negotiated? 

Digital Equity and Inclusion. Finally, 

the Commission, as part of its 

continuing effort to advance digital 

equity for all, 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 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. 

Procedural Matters. Ex Parte Rules— 

Permit-But-Disclose. The proceeding 

this NPRM initiates shall be treated as 

a ‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules. 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. Memoranda must contain 

a summary of the substance of the ex 

parte presentation and not merely a 

listing of the subjects discussed. More 

than a one or two sentence description 

of the views and arguments presented is 

generally required. 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 section 

1.1206(b) of the rules. In proceedings 

governed by section 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. 

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. Accordingly, the 

Commission will publish the required 

summary of this Notice of Proposed 

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

proposed-rulemakings. 

Filing Requirements—Comments and 

Replies. Pursuant to sections 1.415 and 

1.419 of the Commission’s rules, 

interested parties may file comments 

and reply comments on or before the 

dates indicated on the first page of this 

document. Comments may be filed 

using the Commission’s Electronic 

Comment Filing System (ECFS). 

Electronic Filers: Comments may be 

filed electronically using the internet by 

accessing the ECFS: http://apps.fcc.gov/ 

ecfs/. 

Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. 

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. This is a temporary 

measure taken to help protect the health 

and safety of individuals, and to 

mitigate the transmission of COVID–19. 

Regulatory Flexibility Act. The 

Regulatory Flexibility Act of 1980, as 

amended (RFA), 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.’’ 

Accordingly, we have prepared an 

Initial Regulatory Flexibility Analysis 

(IRFA) concerning the possible/ 

potential impact of the rule and policy 

changes contained in this Notice of 

Proposed Rulemaking. 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. 

As required by the Regulatory 

Flexibility Act of 1980, as amended, the 

Commission has prepared this IRFA of 

the possible significant economic 

impact on a substantial number of small 

entities by the policies and rule changes 

proposed in the Notice of Proposed 

Rulemaking (NPRM). Written public 

comments are requested on this IRFA. 

Comments must be identified as 

responses to the IRFA and must be filed 

by the deadlines for comments specified 

in the NPRM. The Commission will 

send a copy of the NPRM, including this 

IRFA, to the Chief Counsel for Advocacy 


khammond on DSKJM1Z7X2PROD with PROPOSALS
8390 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 

of the Small Business Administration 

(SBA). 

Need for, and Objectives of, the 

Proposed Rules. In the NPRM, we 

address whether subscriber rebates 

should be offered by cable operators or 

direct broadcast satellite (DBS) 

providers in instances where those 

operators and providers fail to agree on 

carriage terms with a broadcaster or 

programming network and, as a result of 

the dispute, subscribers lose access to 

the channels over which the parties are 

negotiating. At present, the resulting 

subscriber blackouts lead to subscribers 

often paying the same monthly 

subscription fee for a service package 

that does not include all of the channels 

that expected to receive when signing 

up for service. The NPRMaims to 

address that customer service 

shortcoming, as well as address how 

such a rebate program could be 

implemented in a manner that does not 

create undue economic hardship to 

small and other entities in their efforts 

at compliance with the rules proposed 

in the NPRM, should they be adopted. 

Legal Basis. The proposed action is 

authorized pursuant to sections 1, 4(i), 

4(j), 303, 335(a), and 632(b) of the 

Communications Act of 1934, as 

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

303, 335(a), and 552(b). 

Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply. 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. The RFA generally defines the 

term ‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’ 

‘‘small organization,’’ and ‘‘small 

governmental jurisdiction.’’ In addition, 

the term ‘‘small business’’ has the same 

meaning as the term ‘‘small business 

concern’’ under the Small Business Act. 

A small business concern is one which: 

(1) is independently owned and 

operated; (2) is not dominant in its field 

of operation; and (3) satisfies any 

additional criteria established by the 

Small Business Act. Below, we provide 

a description of the impacted small 

entities, as well as an estimate of the 

number of such small entities, where 

feasible. 

Cable Companies and Systems (Rate 

Regulation Standard). The Commission 

has developed its own small business 

size standards 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. Based on industry data, 

there are about 420 cable companies in 

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

than 400,000 subscribers. In addition, 

under the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. Based on industry 

data, there are about 4,139 cable systems 

(headends) in the U.S. Of these, about 

639 have more than 15,000 subscribers. 

Accordingly, the Commission estimates 

that the majority of cable companies and 

cable systems are small. 

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.’’ For 

purposes of the Telecom Act Standard, 

the Commission determined that a cable 

system operator that serves fewer than 

498,000 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. 

Based on industry data, only six cable 

system operators have more than 

498,000 subscribers. 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. 

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. 

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. 

Transmission facilities may be based on 

a single technology or 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. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry. 

The SBA small business size standard 

for Wired Telecommunications Carriers 

classifies firms having 1,500 or fewer 

employees as small. U.S. Census Bureau 

data for 2017 show that 3,054 firms 

operated in this industry for the entire 

year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. 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 

and DISH Network, which require a 

great deal of capital for operation. 

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. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities. The 

NPRM does not specifically propose any 

new or modified reporting or record 

keeping requirements for small entities, 

although comments we receive in 

response to the NPRM may potentially 

lead to new compliance requirements in 

the future. The NPRM seeks comment 

on whether to require cable operators 

and DBS providers to give subscribers 

rebates for channels that are not 

provided due to a breakdown in 

retransmission consent negotiations. If 

subscriber rebates are implemented, the 

Commission will need to determine 

how small and other entities may 

comply with any adopted rules, what 

the method used to offer rebates should 

be, and how such rebates could be 

issued to their subscribers. 

In assessing the cost of compliance for 

small entities, at this time the 

Commission is not in a position to 

determine whether, if adopted, our 

proposals and the matters upon which 

we seek comment will require small 

entities to hire professionals to comply 

with the proposed rules in the NPRM, 

and cannot quantify the operational and 

implementation costs of compliance 

with the potential rule changes 

discussed herein. To help the 

Commission more fully evaluate the 

cost of compliance, in the NPRM we 

seek comment on the costs and benefits 

of these proposals. We expect the 

comments that we receive from the 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Proposed Rules 8391 

parties in the proceeding, including cost 

and benefit analyses, will help the 

Commission identify and evaluate 

compliance costs and burdens for small 

entities. 

Steps Taken to Minimize the 

Significant Economic Impact on Small 

Entities and Significant Alternatives 

Considered. 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.’’ 

At this time, the Commission is not 

aware of any revisions or new 

requirements that, if adopted, would 

impose a significant economic impact or 

burdens on small entities. The NPRM 

invites comment on how to 

accommodate entities for which 

compliance with the proposed rules 

would pose an undue hardship. 

The Commission expects to more 

fully consider the economic impact and 

alternatives for small entities following 

the review of comments and costs and 

benefits analyses filed in response to the 

NPRM. The Commission’s evaluation of 

this information will shape the final 

alternatives it considers, the final 

conclusions it reaches, and any final 

actions it ultimately takes in this 

proceeding to minimize any significant 

economic impact that may occur on 

small entities. 

Federal Rules that May Duplicate, 

Overlap, or Conflict with the Proposed 

Rules. None. 

Paperwork Reduction Act. This 

document may contain proposed new 

and modified 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 (OMB) to comment on any 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we seek specific comment on how we 

might further reduce the information 

collection burden for small business 

concerns with fewer than 25 employees. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an email to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice). 

Accordingly, it is ordered that, 

pursuant to the authority contained in 

sections 1, 4(i), 4(j), 303, 335(a), 632(b) 

of the Communications Act of 1934, as 

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

303, 335(a), and 552(b) this Notice of 

Proposed Rulemaking is adopted. 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. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2024–02097 Filed 2–6–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–HQ–ES–2021–0106; 

FF09E21000 FXES1111090FEDR 245] 

Endangered and Threatened Wildlife 

and Plants; Finding for the Gray Wolf 

in the Northern Rocky Mountains and 

the Western United States 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

finding on the gray wolf (Canis lupus) 

in the Northern Rocky Mountains 

(NRM) and in the Western United 

States. After a thorough review of the 

best available scientific and commercial 

data, we find that gray wolves within 

the NRM area do not, on their own, 

represent a valid listable entity; 

therefore, the NRM is not warranted for 

listing under the Endangered Species 

Act of 1973, as amended (Act). We find 

that the gray wolf in the Western United 

States is a valid listable entity; however, 

the gray wolf in the Western United 

States does not meet the definition of an 

endangered species or a threatened 

species. Thus, we find that listing the 

gray wolf in the Western United States 

is not warranted at this time. 

DATES: The finding in this document 

was made on February 7, 2024. 

ADDRESSES: This finding and the 

supporting information that we 

developed for this finding, including the 

species status assessment (SSA) report 

and species assessment form, are 

available on the internet at https://

www.regulations.gov at Docket No. 

FWS–HQ–ES–2021–0106. Please submit 

any new information, materials, 

comments, or questions concerning this 

finding to the appropriate person, as 

specified under FOR FURTHER

INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Marjorie Nelson, Acting Assistant 

Regional Director, Ecological Services 

Mountain-Prairie Region, 720–582– 

3524, marjorie_nelson@fws.gov. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Previous Federal Actions 

Gray wolves were originally listed as 

subspecies or as regional populations of 

subspecies in the lower 48 United States 

and Mexico. We detail these various 

original rulemakings in the November 3, 

2020, rule delisting the gray wolf 

throughout much of its range in the 

lower 48 States and Mexico (85 FR 

69778). 

In 1978, we published a rule 

reclassifying the gray wolf in Minnesota 

as a threatened species and gray wolves 

elsewhere in the lower 48 United States 

and Mexico as an endangered species. 

We later revised this listing by 

designating the population of gray 

wolves in the NRM, including Idaho, 

Montana, and Wyoming, the eastern 

one-third of Oregon and Washington, 

and a small portion of north-central 

Utah, as a Distinct Population Segment 

(DPS) and, following legal challenges 

and several rulemakings, ultimately 

delisting this population due to 

recovery (74 FR 15123, April 2, 2009; 76 

FR 25590, May 5, 2011; 77 FR 55530, 

September 10, 2012; 82 FR 20284, May 

1, 2017). Since delisting, gray wolves in 

the NRM have been managed by the 

States and Tribes. 

On November 3, 2020, we published 

a final rule removing the Act’s 

protections for gray wolves everywhere 

they were listed in the lower 48 States 

and Mexico, not including the Mexican 


khammond on DSKJM1Z7X2PROD with PROPOSALS