S. 2406

One Hundred Third Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the twenty-fifth day of January, one thousand nine hundred and ninety-four

An Act

To amend title 17, United States Code, relating to the definition of a local service

area of a primary transmitter, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Satellite Home Viewer Act

of 1994’’.

SEC. 2. STATUTORY LICENSE FOR SATELLITE CARRIERS.

Section 119 of title 17, United States Code, is amended as

follows:

(1) Subsection (a)(2)(C) is amended—

(A) by striking ‘‘90 days after the effective date of

the Satellite Home Viewer Act of 1988, or’’;

(B) by striking ‘‘whichever is later,’’;

(C) by inserting ‘‘name and’’ after ‘‘identifying (by’’

each place it appears; and

(D) by striking ‘‘, on or after the effective date of

the Satellite Home Viewer Act of 1988,’’.

(2) Subsection (a)(5) is amended by adding at the end

the following: ‘‘(D) BURDEN OF PROOF.—In any action brought under

this paragraph, the satellite carrier shall have the burden

of proving that its secondary transmission of a primary

transmission by a network station is for private home

viewing to an unserved household.’’.

(3) Subsection (b)(1)(B) is amended—

(A) in clause (i) by striking ‘‘12 cents’’ and inserting

‘‘17.5 cents per subscriber in the case of superstations

not subject to syndicated exclusivity under the regulations

of the Federal Communications Commission, and 14 cents

per subscriber in the case of superstations subject to such

syndicated exclusivity’’; and

(B) in clause (ii) by striking ‘‘3’’ and inserting ‘‘6’’.

(4) Subsection (c) is amended—

(A) in paragraph (1) by striking ‘‘December 31, 1992,’’;

(B) in paragraph (2)—

(i) in subparagraph (A) by striking ‘‘July 1, 1991’’

and inserting ‘‘July 1, 1996’’; and

(ii) in subparagraph (D) by striking ‘‘December

31, 1994’’ and inserting ‘‘December 31, 1999, or in

accordance with the terms of the agreement, whichever

is later’’; and
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(C) in paragraph (3)—

(i) in subparagraph (A) by striking ‘‘December 31,

1991’’ and inserting ‘‘January 1, 1997’’;

(ii) by amending subparagraph (D) to read as follows:

‘‘(D) ESTABLISHMENT OF ROYALTY FEES.—In determining royalty fees under this paragraph, the Copyright

Arbitration Panel shall establish fees for the retransmission

of network stations and superstations that most clearly

represent the fair market value of secondary transmissions.

In determining the fair market value, the Panel shall base

its decision on economic, competitive, and programming

information presented by the parties, including—

‘‘(i) the competitive environment in which such

programming is distributed, the cost for similar signals

in similar private and compulsory license marketplaces, and any special features and conditions of the

retransmission marketplace;

‘‘(ii) the economic impact of such fees on copyright

owners and satellite carriers; and

‘‘(iii) the impact on the continued availability of

secondary transmissions to the public.’’;

(iii) in subparagraph (E) by striking ‘‘60’’ and

inserting ‘‘180’’; and

(iv) in subparagraph (C)—

(I) by striking ‘‘, or until December 31, 1994’’;

and

(II) by inserting ‘‘or July 1, 1997, whichever is later’’ after ‘‘section 802(g)’’. (5) Subsection (a) is amended—

(A) in paragraph (5)(C) by striking ‘‘the Satellite Home

Viewer Act of 1988’’ and inserting ‘‘this section’’; and (B) by adding at the end the following: ‘‘(8) TRANSITIONAL SIGNAL INTENSITY MEASUREMENT PROCE- DURES.—‘‘(A) IN GENERAL.—Subject to subparagraph (C), upon

a challenge by a network station regarding whether a

subscriber is an unserved household within the predicted

Grade B Contour of the station, the satellite carrier shall,

within 60 days after the receipt of the challenge— ‘‘(i) terminate service to that household of the signal that is the subject of the challenge, and within

30 days thereafter notify the network station that made

the challenge that service to that household has been

terminated; or

‘‘(ii) conduct a measurement of the signal intensity

of the subscriber’s household to determine whether

the household is an unserved household after giving

reasonable notice to the network station of the satellite

carrier’s intent to conduct the measurement.

‘‘(B) EFFECT OF MEASUREMENT.—If the satellite carrier

conducts a signal intensity measurement under subparagraph (A) and the measurement indicates that—

‘‘(i) the household is not an unserved household,

the satellite carrier shall, within 60 days after the

measurement is conducted, terminate the service to

that household of the signal that is the subject of
S. 2406—3

the challenge, and within 30 days thereafter notify

the network station that made the challenge that service to that household has been terminated; or

‘‘(ii) the household is an unserved household, the

station challenging the service shall reimburse the satellite carrier for the costs of the signal measurement

within 60 days after receipt of the measurement results

and a statement of the costs of the measurement.

‘‘(C) LIMITATION ON MEASUREMENTS.—(i) Notwithstanding subparagraph (A), a satellite carrier may not be

required to conduct signal intensity measurements during

any calendar year in excess of 5 percent of the number

of subscribers within the network station’s local market

that have subscribed to the service as of the effective

date of the Satellite Home Viewer Act of 1994.

‘‘(ii) If a network station challenges whether a subscriber is an unserved household in excess of 5 percent

of the subscribers within the network’s station local market

within a calendar year, subparagraph (A) shall not apply

to challenges in excess of such 5 percent, but the station

may conduct its own signal intensity measurement of the

subscriber’s household after giving reasonable notice to

the satellite carrier of the network station’s intent to conduct the measurement. If such measurement indicates that

the household is not an unserved household, the carrier

shall, within 60 days after receipt of the measurement,

terminate service to the household of the signal that is

the subject of the challenge and within 30 days thereafter

notify the network station that made the challenge that

service has been terminated. The carrier shall also, within

60 days after receipt of the measurement and a statement

of the costs of the measurement, reimburse the network

station for the cost it incurred in conducting the measurement.

‘‘(D) OUTSIDE THE PREDICTED GRADE B CONTOUR.—(i)

If a network station challenges whether a subscriber is

an unserved household outside the predicted Grade B Contour of the station, the station may conduct a measurement

of the signal intensity of the subscriber’s household to

determine whether the household is an unserved household

after giving reasonable notice to the satellite carrier of

the network station’s intent to conduct the measurement.

‘‘(ii) If the network station conducts a signal intensity

measurement under clause (i) and the measurement

indicates that—

‘‘(I) the household is not an unserved household,

the station shall forward the results to the satellite

carrier who shall, within 60 days after receipt of the

measurement, terminate the service to the household

of the signal that is the subject of the challenge, and

shall reimburse the station for the costs of the

measurement within 60 days after receipt of the

measurement results and a statement of such costs;

or

‘‘(II) the household is an unserved household, the

station shall pay the costs of the measurement.
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‘‘(9) LOSER PAYS FOR SIGNAL INTENSITY MEASUREMENT;

RECOVERY OF MEASUREMENT COSTS IN A CIVIL ACTION.—In any

civil action filed relating to the eligibility of subscribing households as unserved households—

‘‘(A) a network station challenging such eligibility shall,

within 60 days after receipt of the measurement results

and a statement of such costs, reimburse the satellite carrier for any signal intensity measurement that is conducted

by that carrier in response to a challenge by the network

station and that establishes the household is an unserved

household; and

‘‘(B) a satellite carrier shall, within 60 days after

receipt of the measurement results and a statement of

such costs, reimburse the network station challenging such

eligibility for any signal intensity measurement that is

conducted by that station and that establishes the household is not an unserved household.

‘‘(10) INABILITY TO CONDUCT MEASUREMENT.—If a network

station makes a reasonable attempt to conduct a site measurement of its signal at a subscriber’s household and is denied

access for the purpose of conducting the measurement, and

is otherwise unable to conduct a measurement, the satellite

carrier shall within 60 days notice thereof, terminate service

of the station’s network to that household.’’.

(6) Subsection (d) is amended—

(A) by amending paragraph (2) to read as follows:

‘‘(2) NETWORK STATION.—The term ‘network station’

means—

‘‘(A) a television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast

by a network station, that is owned or operated by, or

affiliated with, one or more of the television networks in

the United States which offer an interconnected program

service on a regular basis for 15 or more hours per week

to at least 25 of its affiliated television licensees in 10

or more States; or

‘‘(B) a noncommercial educational broadcast station (as

defined in section 397 of the Communications Act of 1934).’’;

(B) in paragraph (6) by inserting ‘‘and operates in

the Fixed-Satellite Service under part 25 of title 47 of

the Code of Federal Regulations or the Direct Broadcast

Satellite Service under part 100 of title 47 of the Code

of Federal Regulations’’ after ‘‘Commission’’; and (C) by adding at the end the following:

‘‘(11) LOCAL MARKET.—The term ‘local market’ means the

area encompassed within a network station’s predicted Grade

B contour as that contour is defined by the Federal Communications Commission.’’.

SEC. 3. DEFINITIONS.

(a) CABLE SYSTEM.—Section 111(f) of title 17, United States

Code, is amended in the paragraph relating to the definition of

‘‘cable system’’ by inserting ‘‘microwave,’’ after ‘‘wires, cables,’’.

(b) LOCAL SERVICE AREA.—Section 111(f) of title 17, United

States Code, is amended in the paragraph relating to the definition

of ‘‘local service area of a primary transmitter’’ by inserting after
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‘‘April 15, 1976,’’ the following: ‘‘or such station’s television market

as defined in section 76.55(e) of title 47, Code of Federal Regulations

(as in effect on September 18, 1993), or any modifications to such

television market made, on or after September 18, 1993, pursuant

to section 76.55(e) or 76.59 of title 47 of the Code of Federal

Regulations,’’.

SEC. 4. TERMINATION.

(a) EXPIRATION OF AMENDMENTS.—Section 119 of title 17,

United States Code, as amended by section 2 of this Act, ceases

to be effective on December 31, 1999.

(b) CONFORMING AMENDMENT.—Section 207 of the Satellite

Home Viewer Act of 1988 (17 U.S.C. 119 note) is repealed.

SEC. 5. LIMITATION.

The amendments made by this section apply only to section

119 of title 17, United States Code.

SEC. 6. EFFECTIVE DATE.

(a) IN GENERAL.—Except as provided in subsections (b) and

(d), this Act and the amendments made by this Act take effect

on the date of the enactment of this Act.

(b) BURDEN OF PROOF PROVISIONS.—The provisions of section

119(a)(5)(D) of title 17, United States Code (as added by section

2(2) of this Act) relating to the burden of proof of satellite carriers,

shall take effect on January 1, 1997, with respect to civil actions

relating to the eligibility of subscribers who subscribed to service

as an unserved household before the date of the enactment of

this Act.

(c) TRANSITIONAL SIGNAL INTENSITY MEASUREMENT PROCEDURES.—The provisions of section 119(a)(8) of title 17, United States

Code (as added by section 2(5) of this Act), relating to transitional

signal intensity measurements, shall cease to be effective on December 31, 1996.

(d) LOCAL SERVICE AREA OF A PRIMARY TRANSMITTER.—The

amendment made by section 3(b), relating to the definition of the

local service area of a primary transmitter, shall take effect on

July 1, 1994.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.