51658 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

the Chief Counsel for Advocacy of the 

U.S. Small Business Administration. 

List of Subjects in 47 CFR Part 64 

Individuals with disabilities, 

Telecommunications. 

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary. 

Rule Changes 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 64 as 

follows: 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 1. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 154, 254(k); secs. 403 

(b)(2)(B), (c), Public Law 104–104, 110 Stat. 

56. 

■ 2. Section 64.604 is amended by 

adding paragraph (b)(2)(iii) and revising 

paragraph (b)(4)(i) to read as follows: 

§ 64.604 Mandatory minimum standards. 

* * * * * 

(b) * * * 

(2) * * * 

(iii) Speed of answer requirements for 

VRS providers are phased-in as follows: 

by January 1, 2006, VRS providers must 

answer 80% of all calls within 180 

seconds, measured on a monthly basis; 

by July 1, 2006, VRS providers must 

answer 80% of all calls within 150 

seconds, measured on a monthly basis; 

and by Janury 1, 2007, VRS providers 

must answer 80% of all calls within 120 

seconds, measured on a monthly basis. 

Abandoned calls shall be included in 

the VRS speed of answer calculation. 

* * * * * 

(4) * * * 

(i) TRS shall operate every day, 24 

hours a day. Relay services that are not 

mandated by this Commission need not 

be provided every day, 24 hours a day, 

except VRS. 

* * * * * 

[FR Doc. 05–17327 Filed 8–30–05; 8:45 am] 

BILLING CODE 6712–01–M 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 05–181; FCC 05–159] 

Implementation of Section 210 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004 To Amend 

Section 338 of the Communications 

Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission adopts final rules 

implementing section 210 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004, which 

amends section 338(a)(4) of the 

Communications Act to require satellite 

carriage of the analog signals and digital 

signals of local stations in Alaska and 

Hawaii. Satellite carriers with more than 

five million subscribers must carry these 

signals to substantially all of their 

subscribers in each station’s local 

market by December 8, 2005 for analog 

signals and by June 8, 2007 for digital 

signals 

DATES: Effective September 30, 2005. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Eloise Gore, 

Eloise.Gore@fcc.gov of the Media 

Bureau, Policy Division, (202) 418–

2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal 

Communications Commission’s Report 

and Order, FCC 05–159, adopted on 

August 22, 2005 and released on August 

23, 2005. The full text of this document 

is available for public inspection and 

copying during regular business hours 

in the FCC Reference Center, Federal 

Communications Commission, 445 12th 

Street, SW., CY–A257, Washington, DC 

20554. These documents will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) The complete text 

may be purchased from the 

Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. To request this document in 

accessible formats (computer diskettes, 

large print, audio recording, and 

Braille), send an e-mail to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

Paperwork Reduction Act 

This document does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. The 

Commission received approval for the 

information collection requirements 

contained in this Order from the Office 

of Management and Budget on June 14, 

2005. There have been no changes to the 

information collection requirements 

since receiving OMB approval. In 

addition, therefore, it does not contain 

any new or modified ‘‘information 

collection burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). As described in the Final 

Regulatory Flexibility Certification, 

supra, the businesses affected by our 

action are not small. 

Summary of the Report and Order 

Introduction 

1. In this Report and Order (‘‘Order’’), 

we adopt rules to implement section 

210 of the Satellite Home Viewer 

Extension and Reauthorization Act of 

2004 (‘‘SHVERA’’). The Satellite Home 

Viewer Extension and Reauthorization 

Act of 2004 (SHVERA), Public Law 108–

447, section 210, 118 Stat 2809 (2004). 

SHVERA was enacted on December 8, 

2004, as title IX of the ‘‘Consolidated 

Appropriations Act, 2005.’’ Section 210 

of the SHVERA amends section 338(a) 

of the Communications Act of 1934, as 

amended, (‘‘Communications Act’’ or 

‘‘Act’’). Section 338 of the Act governs 

the carriage of local television broadcast 

stations by satellite carriers; see 47 

U.S.C. 338. In general, the SHVERA 

amends this section to require satellite 

carriers to carry the analog and digital 

signals of television broadcast stations 

in local markets in states that are not 

part of the contiguous United States, 

and to provide these signals to 

substantially all of their subscribers in 

each station’s local market by December 

8, 2005 for analog signals and by June 

8, 2007 for digital signals; see 47 U.S.C. 

338(a)(4). Our rules will implement the 

SHVERA requirements for carriage of 

analog and digital signals in Alaska and 

Hawaii. This Order concludes that such 

carriage shall include high definition 

and multicast signals as broadcast by 

local stations in these states. We adopt 

a two-step carriage election process 

beginning with carriage elections for 

analog signals by October 1, 2005, and 

followed by carriage elections for digital 

signals by April 1, 2007. 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51659 

Background 

Satellite Home Viewer Act (SHVA) and 

Satellite Home Viewer Improvement Act 

of 1999 (SHVIA) 

2. In 1988, Congress passed the 

Satellite Home Viewer Act (‘‘SHVA’’), 

which established a statutory copyright 

license for satellite carriers to offer 

subscribers access to broadcast 

programming via satellite when they are 

unable to receive the signal of a 

broadcast station over the air (that is, an 

‘‘unserved’’ household). The Satellite 

Home Viewer Act of 1988, Pub. L. No. 

100–667, 102 Stat. 3935, Title II (1988) 

(codified at 17 U.S.C. 111, 119). SHVA 

was enacted on November 16, 1988, as 

an amendment to the copyright laws. 

SHVA gave satellite carriers a statutory 

license to offer signals to ‘‘unserved’’

households. In 1999, Congress enacted 

the Satellite Home Viewer Improvement 

Act (‘‘SHVIA’’), which expanded the 

1988 SHVA by amending both the 1988 

copyright laws (see 17 U.S.C. 119, 122), 

and the Communications Act (see 47 

U.S.C. 325, 338, 339 and 340) to permit 

satellite carriers to retransmit local 

broadcast television signals directly to 

subscribers in the station’s local market 

(‘‘local-into-local’’ service) without 

requiring that they be ‘‘unserved’’

households. The Satellite Home Viewer 

Improvement Act of 1999, Pub. L. No. 

106–113, 113 Stat. 1501 (1999) (codified 

in scattered sections of 17 and 47 

U.S.C.). SHVIA was enacted on 

November 29, 1999, as Title I of the 

Intellectual Property and 

Communications Omnibus Reform Act 

of 1999 (‘‘IPACORA’’) (relating to 

copyright licensing and carriage of 

broadcast signals by satellite carriers). 

3. A satellite carrier provides ‘‘localinto-local’’ service when it retransmits a 

local television station’s signal back into 

the local market of the television station 

for reception by subscribers; see 17 

U.S.C. 122(j). If a carrier carries one or 

more stations in the market pursuant to 

the statutory copyright license, it is 

required to carry all of the other local 

stations in that market upon the 

station’s request (that is, the ‘‘carry-one, 

carry-all’’ requirement); see 47 U.S.C. 

338(a)(1). Generally, a television 

station’s ‘‘local market’’ is the 

designated market area (‘‘DMA’’) in 

which it is located. Section 340(i)(1) (as 

amended by section 202 of the 

SHVERA) defines the term ‘‘local 

market’’ by using the definition in 17 

U.S.C. 122(j)(2): ‘‘The term ‘local 

market,’ in the case of both commercial 

and noncommercial television broadcast 

stations, means the designated market 

area in which a station is located, and—

(i) In the case of a commercial television 

broadcast station, all commercial 

television broadcast stations licensed to 

a community within the same 

designated market area are within the 

same local market; and (ii) in the case 

of a noncommercial educational 

television broadcast station, the market 

includes any station that is licensed to 

a community within the same 

designated market area as the 

noncommercial educational television 

broadcast station.’’ DMAs describe each 

television market in terms of a unique 

geographic area, and are established by 

Nielsen Media Research based on 

measured viewing patterns; see 17 

U.S.C. 122(j)(2)(A)–(C). There are 210 

DMAs that encompass all counties in 

the 50 states, except for certain areas in 

Alaska; see Nielsen Station Index 

Directory and Nielsen Station Index 

United States Television Household 

Estimates (2004–5 ed.); see also 

Television and Cable Factbook 2005 

(Warren Communications) A–73. A 

satellite carrier choosing to provide 

such local-into-local service is generally 

obligated to carry any qualified local 

station in a particular DMA that has 

made a timely election for mandatory 

carriage, unless the station’s 

programming is duplicative of the 

programming of another station carried 

by the carrier in the DMA, or the station 

does not provide a good quality signal 

to the carrier’s local receive facility; see 

47 U.S.C. 338(a)(1), (b)(1) and (c)(1). 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004 (SHVERA) 

4. In December 2004, Congress passed 

and the President signed the Satellite 

Home Viewer Extension and 

Reauthorization Act of 2004. SHVERA 

again amends the 1988 copyright laws 

and the Communications Act. This 

rulemaking is required to implement 

provisions in section 210 of the 

SHVERA which establishes new and 

special requirements for satellite 

carriage of local stations in states 

outside the contiguous United States. 

Discussion 

5. Section 210 of the SHVERA creates 

a new subsection of the 

Communications Act, 338(a)(4), that 

requires satellite carriers with more than 

five million subscribers in the United 

States to carry the analog and digital 

signals of each television broadcast 

station licensed in local markets 

‘‘within a State that is not part of the 

contiguous United States.’’ Due to an 

apparent inconsistency in numbering 

the provisions added by the SHVERA, it 

is not clear if this provision will 

ultimately be codified as 338(a)(4) or 

(a)(5); see 47 U.S.C.A. 338 n.1 (West 

2005) (‘‘So in original. Two pars. (3) 

enacted.’’). In this Order we use the 

subsection as enacted by section 210, 

338(a)(4). Analog signals are required to 

be carried by December 8, 2005, and 

digital signals by June 8, 2007. A carrier 

is required to provide these signals to 

substantially all of its subscribers in 

each station’s local market. In addition, 

a satellite carrier is required to make 

available the stations that it carries in at 

least one local market to substantially 

all of its subscribers located outside of 

local markets and in the same state. The 

SHVERA also mandates that satellite 

carriers may not charge subscribers for 

these local signals more than they 

charge subscribers in other States to 

receive local market television stations. 

Although most of the requirements 

imposed by the new section 338(a)(4) 

are self-effectuating, the SHVERA 

requires the Commission to promulgate 

regulations concerning the timing of 

carriage elections by stations in local 

markets covered by section 338(a)(4) of 

the Act; see 47 U.S.C. 338(a)(4) (as 

amended by the SHVERA), which 

provides: 

(4) Carriage of Signals of Local 

Stations in Certain Markets—A satellite 

carrier that offers multichannel video 

programming distribution service in the 

United States to more than 5,000,000 

subscribers shall (A) within 1 year after 

the date of the enactment of the Satellite 

Home Viewer Extension and 

Reauthorization Act of 2004, retransmit 

the signals originating as analog signals 

of each television broadcast station 

located in any local market within a 

State that is not part of the contiguous 

United States, and (B) within 30 months 

after such date of enactment retransmit 

the signals originating as digital signals 

of each such station. The 

retransmissions of such stations shall be 

made available to substantially all of the 

satellite carrier’s subscribers in each 

station’s local market, and the 

retransmissions of the stations in at least 

one market in the State shall be made 

available to substantially all of the 

satellite carrier’s subscribers in areas of 

the State that are not within a 

designated market area. The cost to 

subscribers of such retransmissions 

shall not exceed the cost of 

retransmissions of local television 

stations in other States. Within 1 year 

after the date of enactment of that Act, 

the Commission shall promulgate 

regulations concerning elections by 

television stations in such State between 

mandatory carriage pursuant to this 

section and retransmission consent 

pursuant to section 325(b), which shall 

take into account the schedule on which 

51660 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

local television stations are made 

available to viewers in such State. 

6. We adopted the required Notice of 

Proposed Rulemaking (‘‘NPRM’’) on 

April 29, 2005 and established a short 

pleading cycle due to the need to 

implement the new rules before the 

upcoming carriage cycle; see 

Implementation of Section 210 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004 to Amend 

Section 338 of the Communications Act, 

20 FCC Rcd 9319, 9330, paragraph 30 

(2005) (‘‘NPRM’’). We received 

comments from six parties. As we stated 

in the NPRM, the new and amended 

rules apply only to satellite service in 

the states covered by section 338(a)(4), 

which we herein conclude are Alaska 

and Hawaii. The existing signal carriage 

provisions in § 76.66 of the 

Commission’s rules also continue to 

apply to satellite service in these states, 

where relevant and not inconsistent 

with the rules adopted in this 

proceeding; see 47 CFR 76.66. 

Satellite Carriers With More Than 

5,000,000 Subscribers 

7. Section 338(a)(4) of the Act 

expressly applies to a ‘‘satellite carrier 

that offers multichannel video 

programming distribution service in the 

United States to more than 5,000,000 

subscribers;’’ see 47 U.S.C. 338(a)(4) (as 

amended by the SHVERA). In the 

NPRM, we proposed that this provision 

applies to satellite carriers that have 

more than five million subscribers in 

2005 and, in the future, to any carriers 

with more than five million subscribers. 

Currently, DIRECTV and EchoStar 

qualify under this definition; see 

Annual Assessment of the Status of 

Competition in the Market for the 

Delivery of Video Programming, 

Eleventh Annual Report, MB Docket No. 

04–227, FCC 05–13 at paragraphs 54–55 

(2004). We received no comments 

relevant to the proposed rule, which 

follows the statutory language and 

which we adopt as new § 76.66(b)(2) 

without change. Section 76.66(a)(1) of 

the current rules defines ‘‘satellite 

carrier;’’ see 47 CFR 76.66(a)(1). If in the 

future there are new satellite carriers 

with more than five million subscribers, 

they would be required to comply with 

this carriage provision and to follow the 

rule provisions that apply to ‘‘new localinto-local service;’’ see 47 CFR 

76.66(d)(2). 

Noncontiguous States 

8. Section 338(a)(4) of the Act as 

amended by section 210 of the SHVERA 

applies to ‘‘a State that is not part of the 

contiguous United States;’’ see 47 U.S.C. 

338(a)(4) (as amended by the SHVERA). 

Because the general definition of 

‘‘State’’ in the Communications Act 

includes ‘‘the Territories and 

possessions,’’ we sought comment on 

whether ‘‘State’’ as used in the SHVERA 

should be read to include the 

noncontiguous territories and 

possessions of the United States, 

including but not limited to Puerto Rico 

and Guam, and whether considerations 

such as a satellite carrier’s regulatory 

authorizations and/or actual service area 

are relevant to interpreting the 

obligation under section 338(a)(4) of the 

Act to serve ‘‘noncontiguous states.’’

Territories in the Pacific, such as Guam, 

are in a different International 

Telecommunication Union (‘‘ITU’’) 

region from the 50 states. The 

contiguous United States, Alaska, 

Hawaii, Puerto Rico and the U.S. Virgin 

Islands are located in ITU Region 2 and 

have orbital assignments in the Region 

2 BSS Plan. The ‘‘Region 2 Plans’’

comprise the Plan for BSS in the band 

12.2–12.7 GHz in ITU Region 2 as 

contained in Appendix 30 of the ITU 

Radio Regulations, and the associated 

Plan for the feeder-links in the 

frequency band 17.3–17.8 GHz for the 

broadcasting-satellite service in Region 

2 as contained in Appendix 30A of the 

ITU Radio Regulations. Guam, the 

Northern Marianas, Wake Island and 

Palmyra Island are located in ITU 

Region 3 and have orbital assignments 

in the Region 3 BSS plan at 122.0° E.L., 

121.80° E.L., 140.0° E.L. and 170.0° E.L. 

respectively. Satellites operating 

pursuant to the Region 2 BSS plan are 

subject to different technical 

requirements and use different 

frequency bands than satellites 

authorized to operate in Region 3. 

Therefore, satellites designed to serve 

Region 2 areas would not meet the 

technical requirements necessary to 

serve Region 3 areas. We requested 

comment on the impact of regulatory 

differences (e.g., use of different 

frequency bands) between ITU regions 

in providing service to these locations, 

but we noted in the NPRM that spot 

beam technology may allow coverage of 

widely spaced areas if visible from the 

satellite location; see NPRM, 20 FCC 

Rcd at 9322, paragraph 7. 

9. We recognize that the phrase ‘‘a 

State that is not part of the contiguous 

United States’’ is susceptible to different 

interpretations. It is unclear from the 

statutory text whether the intended 

application of the term ‘‘State’’ means 

the definition of ‘‘State’’ as it appears in 

the Communications Act, which 

includes all territories and possessions, 

or whether it refers to the literal or 

colloquial use of the word ‘‘State,’’

meaning one of the fifty more or less 

internally autonomous territorial and 

political units composing the United 

States of America. In determining the 

proper interpretation, we bear in mind 

that section 3 of the Communications 

Act provides definitions of terms that 

apply for the purposes of this Act, 

‘‘unless the context otherwise requires;’’

see 47 U.S.C. 153. As explained below, 

we believe the best construction of this 

phrase, based on context and the current 

record before us, is that ‘‘a State that is 

not part of the contiguous United 

States’’ was intended to refer only to 

Alaska and Hawaii and not to the 

broader definition of the 

Communications Act which includes 

territories and possessions. This 

conclusion is consistent with arguments 

made by satellite carriers EchoStar and 

DIRECTV, who point out the serious 

technical difficulties of serving all the 

territories and possessions. Several 

broadcast stations in Puerto Rico argue 

that ‘‘State’’ should be read to include 

territories and possessions so that 

stations in Puerto Rico will be entitled 

to mandatory carriage. In addition to the 

technical difficulties, EchoStar also 

argues that Congress’ intent to limit 

section 338(a)(4) of the Act to Alaska 

and Hawaii is evidenced by the related 

copyright provisions in the SHVERA. 

We agree. As mentioned in the NPRM, 

Alaska is the only one of the 50 states 

that is not entirely subsumed within one 

or more DMAs; see Notice, 20 FCC Rcd 

at 9326, paragraph 18. Similarly, none 

of the noncontiguous territories and 

possessions are included in a DMA. 

However, section 122 of title 17, which 

defines ‘‘local market’’ for the statutory 

copyright license, as well as for section 

338 of the Act generally, was amended 

only to add the areas in the State of 

Alaska that are outside of all DMAs to 

the definition of ‘‘local market;’’ see 17 

U.S.C. 122(j)(2) (generally defining local 

market as ‘‘the designated market area 

in which a station is located’’ and 

further defining ‘‘designated market 

area’’ by reference to determinations by 

‘‘Nielsen Media Research and published 

in the 1999–2000 Nielsen Station Index 

Directory and Nielsen Station Index 

United States Television Household 

Estimates or any successor 

publication.’’); 47 U.S.C. 338(k) (3). 

Critically, the noncontiguous territories 

and possessions were not added; see 17 

U.S.C. 122(j)(2)(D), as amended by 

section 111(b) of the SHVERA (‘‘Certain 

areas outside of any designated market 

area.—Any census area, borough, or 

other area in the State of Alaska that is 

outside of a designated market area, as 

determined by Nielsen Media Research, 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51661 

shall be deemed to be part of one of the 

local markets in the State of Alaska. A 

satellite carrier may determine which 

local market in the State of Alaska will 

be deemed to be the relevant local 

market in connection with each 

subscriber in such census area, borough, 

or other area.’’); 47 U.S.C. 338(k)(3). 

Consequently, were we to apply ‘‘State’’

to the noncontiguous territories and 

possessions, satellite carriers would not 

have a statutory copyright license to 

retransmit the stations in these markets 

because they would not fall within the 

definition of ‘‘local market’’ in section 

122(j). 

10. Satellite carriers do not and are 

not required to reach all geographic 

areas that include the possessions and 

territories of the United States. Many 

areas are not visible to all satellites. For 

example, Guam is below the horizon for 

United States satellite assignment east 

of 148° W.L. The Commission has 

recognized that contiguous United 

States (‘‘CONUS’’) antenna beams 

modified to include Puerto Rico and the 

U.S. Virgin Islands could divert power 

from other regions and potentially 

adversely affect the services of other 

countries; see Policies and Rules for 

Direct Broadcast Satellite Service Report 

and Order, 17 FCC Rcd 11,368, 11,372 

(2002). We acknowledge that EchoStar 

and a company affiliated with DIRECTV 

currently provide service to Puerto Rico, 

including some local stations, and to the 

U.S. Virgin Islands. No one disputes, 

however, that service to Guam and other 

islands in the far Pacific would be 

outside the range of these companies 

and that requiring service to islands 

without television stations and without 

permanent populations would be 

absurd. Based on the serious technical 

difficulties of serving the territories and 

possessions, and the fact that the 

affected satellite carriers have never 

before served any subscribers in much 

of these areas, we believe Congress did 

not have in mind the definition of 

‘‘State’’ as set forth in the 

Communications Act. For all the 

reasons discussed above, we believe the 

best reading of the statute, and the one 

most consistent with Congressional 

intent, is that section 338(a)(4) of the 

Act’s use of the phrase ‘‘State that is not 

part of the contiguous United States’’

was not meant to include the 

noncontiguous territories and 

possessions, but instead was meant to 

refer only to the states of Alaska and 

Hawaii; see Griffin v. Oceanic 

Contractors, Inc., 458 U.S. 564, 575 

(1982) (stating that interpretations of a 

statute which would produce absurd 

results are to be avoided if alternative 

interpretations consistent with the 

legislative purpose are available); 

Lawson v. Suwanee Fruit & S.S. Co., 69 

S. Ct. 503 (1949) (Statutory definitions 

usually control the meaning of statutory 

words, but not where obvious 

incongruities in language would be 

created and major purpose of statute 

would be destroyed); Teva Pharm., 

USA, Inc. v. FDA, 182 F.3d 1003, 1011 

(D.C. Cir. 1999) (citing Robinson v. Shell 

Oil Co., 519 U.S. 337, 346 (1997)) 

(asserting that the FDA must interpret 

that statute to avoid absurd results and 

further congressional intent). 

Analog and Digital Signals 

11. We explained in the NPRM that 

the SHVERA requirements for satellite 

carriage to the noncontiguous states 

differ significantly from the existing 

satellite broadcast carriage 

requirements, both in scope and timing; 

see Notice, 20 FCC Rcd at 9323, 

paragraph 8. Currently, under the 

Communications Act and Commission 

rules implementing the Act, satellite 

carriers choose whether to rely on the 

statutory copyright license in section 

122 of title 17 to offer ‘‘local-into-local 

service,’’ which in turn triggers the 

carry-one, carry-all obligation; see 47 

U.S.C. 338(a)(1) and 47 CFR 76.66(b); 

see also Implementation of the Satellite 

Home Viewer Improvement Act of 1999, 

16 FCC Rcd 1918 (2000) (‘‘DBS Must 

Carry Report and Order’’), 16 FCC Rcd 

16544 (2001) (‘‘DBS Must Carry 

Reconsideration Order’’). The U.S. Court 

of Appeals for the Fourth Circuit upheld 

the constitutional validity of SHVIA and 

the reasonableness of the Commission’s 

rules promulgated thereunder. See 

Satellite Broadcasting and 

Communications Ass’n v. FCC, 275 F.3d 

337 (2001), cert. denied, 536 U.S. 922 

(2002). The Communications Act, 

moreover, prohibits a multichannel 

video programming distributor from 

retransmitting the signal of a broadcast 

station unless it has ‘‘the express 

authority’’ of the station. 47 U.S.C. 

325(b)(1)(A). See also 17 U.S.C. 122(a) 

(as amended by section 1002 of the 

SHVIA) and 47 U.S.C. 338(a)(1) (as 

amended by section 1008 of the SHVIA); 

see 47 U.S.C. 338(a)(1) and 47 CFR 

76.66(b); see also Implementation of the 

Satellite Home Viewer Improvement Act 

of 1999, 16 FCC Rcd 1918 (2000) (‘‘DBS 

Must Carry Report and Order’’), 16 FCC 

Rcd 16544 (2001) (‘‘DBS Must Carry 

Reconsideration Order’’). The U.S. Court 

of Appeals for the Fourth Circuit upheld 

the constitutional validity of SHVIA and 

the reasonableness of the Commission’s 

rules promulgated thereunder. See 

Satellite Broadcasting and 

Communications Ass’n v. FCC, 275 F.3d 

337 (2001), cert. denied, 536 U.S. 922 

(2002). The Communications Act, 

moreover, prohibits a multichannel 

video programming distributor from 

retransmitting the signal of a broadcast 

station unless it has ‘‘the express 

authority’’ of the station. 47 U.S.C. 

325(b)(1)(A). See also 17 U.S.C. 122(a) 

(as amended by section 1002 of the 

SHVIA) and 47 U.S.C. 338(a)(1) (as 

amended by section 1008 of the SHVIA). 

Satellite carriers are not currently 

required to offer local-into-local service 

in any market. The question of satellite 

carriage obligations concerning a 

station’s digital signal is currently 

pending before the Commission; see MB 

Docket Nos. 98–120 and 00–96; see also 

WHDT v. Echostar, 18 FCC Rcd 396 (MB 

2003) (‘‘WHDT Order’’). 

12. Section 338(a)(4) of the Act 

supersedes carry-one, carry-all by 

mandating analog and digital carriage in 

Alaska and Hawaii. A satellite carrier 

with more than five million subscribers 

is now required to retransmit the analog 

signals of each television station in local 

markets in Alaska and Hawaii to 

subscribers in those local markets by 

December 8, 2005 (one year after 

enactment of the SHVERA) and to 

retransmit the digital signals of each 

station no later than June 8, 2007 (30 

months after enactment of SHVERA). 

We sought comment in the NPRM on 

whether the statute unambiguously 

means that if any or all of the local 

stations in these states are still 

broadcasting analog signals as well as 

digital signals as of June 8, 2007, the 

SHVERA requirement mandates dual 

must carry; see NPRM, 20 FCC Rcd at 

9323–24, paragraph 9. The 

Communications Act provides for 

termination of analog signal licenses as 

of December 31, 2006, unless local 

stations request an extension and 

demonstrate that one or more criteria 

exist in their markets; see 47 U.S.C. 

309(j)(14) (criteria include the so-called 

‘‘85% test’’). 

13. DIRECTV contends that section 

338(a)(4) of the Act does not 

unambiguously require that satellite 

carriers must continue carrying analog 

signals after they begin carrying digital 

signals. DIRECTV suggests that there are 

two plausible readings of the text: that 

satellite carriers must retransmit analog 

signals either as long as Alaska and 

Hawaii broadcasters transmit in analog, 

or until satellite carriers are required to 

retransmit digital signals. It advocates 

that latter reading as the wiser policy. 

DIRECTV therefore reads section 

338(a)(4) of the Act to require that 

satellite carriers replace the analog 

signals with digital signals in June 2007. 

DIRECTV explains that because satellite 

51662 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

carriers digitize analog broadcast 

signals, there is little quality difference 

between an analog and SD digital signal 

to the DBS subscriber. Microcom, a 

satellite distributor and dealer in 

Alaska, argues that dual carriage is not 

warranted when a broadcast station is 

operating both its digital and analog 

service in a standard definition format 

because the law requires the content of 

those two services to be identical. 

Microcom, however, is in error as the 

‘‘simulcasting’’ requirements were 

eliminated in our Second DTV Periodic 

Review last year. In contrast, IBC and 

R y F, representing broadcast stations in 

Puerto Rico, argue that SHVERA 

requires satellite carriers to retransmit 

both the analog and digital signals by 

the mandated dates. 

14. We find that section 338(a)(4) of 

the Act is ambiguous with respect to the 

question of dual carriage. The statutory 

provision states that satellite carriers 

‘‘shall (A) within 1 year after December 

8, 2004, retransmit the signals 

originating as analog signals of each 

television broadcast station located in 

any local market within a State that is 

not part of the contiguous United States; 

and (B) within 30 months after 

December 8, 2004, retransmit the signals 

originating as digital signals of each 

such station.’’ While this language 

clearly contains two separate carriage 

requirements, it is unclear from the text 

whether Congress intended the analog 

carriage requirement to continue after 

commencement of the digital carriage 

requirement (i.e., simultaneous or dual 

carriage) or whether it intended the 

analog requirement to end when the 

digital requirement takes effect. The 

statute does not speak directly to the 

issue, and there is no legislative history 

to shed light on what Congress 

intended. Where the statutory language 

is ambiguous, we must construe the 

statute so as to effectuate the legislative 

purpose and intent; see Chevron U.S.A. 

Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 843 (1984) 

(asserting that if a statute is silent or 

ambiguous, the question for the court is 

whether the agency’s interpretation is 

based on a permissible construction of 

the statute). The Supreme Court stated, 

‘‘If Congress has explicitly left a gap for 

the agency to fill, there is express 

delegation of authority to the agency to 

elucidate a specific provision of the 

statute by regulation. Such legislative 

regulations are given controlling weight 

unless they are arbitrary, capricious, or 

manifestly contrary to the statute;’’ see 

Id. at 843–44; see also Nat’l Cable & 

Telecomm. Assn. v. Brand X Internet 

Serv., 125 S. Ct. 2688, 2699 (2005) 

(citing Smiley v. Citibank, 517 U.S. 735, 

742 (1996)) (clarifying that Chevron 

established the presumption that 

Congress, when it left a statute 

ambiguous, understood that the 

ambiguity would be resolved by an 

agency and desired the agency to 

possess whatever degree of discretion 

the ambiguity allowed). The Supreme 

Court noted that where a statute’s plain 

terms admit two or more reasonable 

ordinary usages, the Commission’s 

choice of one of them is entitled to 

deference; see Id. at 2704. Here, we 

agree with DIRECTV that the most 

reasonable interpretation of section 

338(a)(4) of the Act is that the analog 

carriage requirement ends upon 

commencement of the digital carriage 

requirement. We therefore conclude that 

satellite carriers must carry the signals 

of local stations in Alaska and Hawaii 

that originate as analog beginning no 

later than December 8, 2005, and the 

signals that originate as digital 

beginning no later than June 8, 2007, but 

that the analog carriage requirement 

ends when the digital carriage 

requirement begins. Based on the record 

in this proceeding, requiring carriage of 

both analog and digital signals 

simultaneously would likely increase 

the burden on satellite carriers without 

offering subscribers a substantial 

benefit. Because satellite carriers 

digitize analog broadcast signals, there 

is essentially no difference from a 

satellite subscriber’s perspective 

between the analog signal and the 

standard definition (SD) digital signal 

broadcast when such signals are 

carrying the same programming, as is 

currently the general practice in the 

industry. Thus, a dual carriage 

requirement would often result in a 

satellite carrier carrying the same 

programming with essentially the same 

signal quality twice. Moreover, in light 

of the requirement to carry multicast 

signals described below, satellite 

subscribers will be able to receive 

multiple digital programming streams 

offered by local stations, and we do not 

believe that the remote likelihood that 

certain programming transmitted by 

analog signals would not be transmitted 

by any of a station’s digital signals 

justifies the burden that a dual carriage 

requirement would impose on satellite 

carriers. Therefore, we conclude that 

simultaneous carriage of both analog 

and digital signals is not required and 

would serve no useful purpose in light 

of our other decisions in this 

proceeding. We will address other 

issues related to carriage of digital 

signals in the context of the proceeding 

addressing satellite carriage of local 

stations pursuant to section 338 of the 

Act as it applies throughout the United 

States during and after the transition to 

digital television; see Carriage of Digital 

Television Broadcast Signals: 

Amendment to Part 76 of the 

Commission’s Rules, CS Docket Nos. 

98–120 and 00–96 (pending rulemaking 

proceeding to determine satellite 

carriers’ obligations with respect to 

carriage of digital signals pursuant to 

section 338 of the Act. 

Digital Signal Content and Format 

15. Section 338(a)(4) of the Act 

requires carriage of ‘‘signals originating 

as analog signals’’ and ‘‘signals 

originating as digital signals.’’ We stated 

in the NPRM that there is no reference 

to ‘‘primary video’’ or any other term in 

section 338(a)(4) of the Act that 

expressly limits or describes the nature, 

format or content of the broadcast signal 

that satellite operators must carry in the 

noncontiguous states; see NPRM, 20 

FCC Rcd at 9323–24, paragraph 9; see 

also 47 U.S.C. 338(j), 534(b)(3) and 

535(g). The Commission recently 

concluded that the statutory term 

relating to cable mandatory carriage, 

‘‘primary video,’’ was ambiguous with 

respect to whether it requires cable 

operators to carry broadcasters’

multicast signals. Faced with an 

ambiguous statute, the Commission did 

not require mandatory carriage of 

multicast signals by cable systems; see 

Carriage of Digital Television Broadcast 

Signals: Amendment to Part 76 of the 

Commission’s Rules, CS Docket No. 98–

120, Second Report and Order and First 

Order on Reconsideration, FCC 05–27, 

at paragraph 33 (rel. Feb. 23, 2005) 

(‘‘DTV Second Report and Order’’) 

(declining, based on the record, to 

require cable operators to carry more 

than one programming stream of a 

digital station that multicasts). The 

NPRM concluded, therefore, that the 

amendment requires that satellite 

carriers carry all multicast signals of 

each station in noncontiguous states and 

carry the high definition digital signals 

of stations in noncontiguous states in 

high definition format. We also 

referenced the pending proceeding on 

satellite carriage of digital signals, in 

general, and sought comment on our 

view of the statutory language and any 

alternative construction of the SHVERA 

as the statute relates to the carriage of 

multicast and/or high definition signals. 

Satellite carriage of high definition and 

multicast local signals is also under 

review in the ongoing broadcast carriage 

rulemaking docket in the context of 

applying the statutory prohibition on 

material degradation; see 

Implementation of the Satellite Home 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51663 

Viewer Improvement Act of 1999, 16 

FCC Rcd 1918, 1970–72 , paragraphs 

120–123 (2000) (‘‘Report and Order’’); 

Carriage of Digital Television Broadcast 

Signals: Amendment to Part 76 of the 

Commission’s Rules, 16 FCC Rcd 2598, 

2600, 2658, paragraphs 3 and 136 (2001) 

(‘‘First Report and Order’’). See also 

NPRM, 20 FCC Rcd at 9323–24, 

paragraph 9. 

16. As explained in the NPRM, we 

continue to believe that the statutory 

language requires that satellite carriers 

carry all multicast signals and high 

definition (HD) signals of each local 

broadcast station in the noncontiguous 

states. We find section 338(a)(4)of the 

Act’s use of the plural term ‘‘signals’’ in 

requiring carriage of ‘‘signals originating 

as digital signals’’ to unambiguously 

mean carriage of the entire free over-theair digital broadcast, without limitation, 

being transmitted by a broadcaster. 

While DIRECTV argues that, because 

Congress also used the plural term 

‘‘signals’’ with respect to analog signals 

(and there is no analog multicast or 

analog HD), the phrase ‘‘signals of each 

station’’ could be interpreted to mean 

the transmission of a single station’s 

signal over time, we do not believe that 

this constitutes a reasonable 

interpretation of the statute. Section 

338(a)(4) of the Act contains no 

limitation on the nature of the digital 

broadcast signal—such as the term 

‘‘primary video’’ as used in the cable 

context—in describing the digital 

signals the satellite operator must carry 

in the noncontiguous states. At the time 

the SHVERA was enacted in December 

2004, the Commission had interpreted, 

in the cable carriage proceeding three 

years earlier, the term ‘‘primary video’’

in section 614(b)(3) of the Act to mean 

‘‘a single programming stream and other 

program-related content.’’ Had Congress 

intended to limit digital carriage to only 

a single standard definition stream, we 

believe Congress would have included 

similar limiting language in the satellite 

context. Section 338(a)(4) of the Act, by 

contrast, contains a broad requirement 

that satellite carriers retransmit ‘‘the 

signals originating as digital signals.’’

We also find unconvincing DIRECTV’s 

reliance on section 338(j) of the Act’s 

general directive that the Commission 

prescribe requirements on satellite 

carriers that are ‘‘comparable’’ to the 

must carry requirements imposed on 

cable operators; see 47 U.S.C. 338(j). 

According to DIRECTV, because cable 

operators in Alaska and Hawaii are not 

yet required to carry most digital signals 

in HD format nor are they required to 

carry multicast signals, the Commission 

cannot impose such requirements on 

satellite carriers in Alaska and Hawaii 

without running afoul of section 338(j) 

of the Act. We disagree. Under 

principles of statutory construction, 

section 338(a)(4) of the Act’s specific 

mandate requiring carriage of ‘‘the 

signals originating as digital signals’’ in 

Alaska and Hawaii supercedes the 

general comparability directive set forth 

in section 338(j) of the Act. Where the 

statute is clear and unambiguous, we 

must implement the express meaning of 

the statutory language; Chevron U.S.A. 

Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842–43 

(1984). Requiring carriage of multicast 

and HD signals most accurately reflects 

the requirement set forth in the statutory 

language itself. We decline to read into 

the statute a limitation where none 

exists. We believe that section 338(a)(4) 

of the Act requires carriage of Alaska 

and Hawaii broadcasters’ entire free 

over the air broadcast, including 

multicast and HD signals. This decision, 

however, is limited to section 338(a)(4) 

of the Act and does not interpret any 

other statutory provision that regulates 

cable or satellite carriage obligations. 

17. Even if we were to find ambiguity 

in the statutory language, however, we 

believe, for the reasons given above, that 

the better reading, and the one that most 

accurately reflects Congress’s intent, 

requires satellite carriers to carry all 

multicast and HD signals. We also reject 

EchoStar and DIRECTV’s argument that 

in order to avoid an unconstitutional 

construction of section 338(a)(4) of the 

Act, the Commission must not construe 

the statute to impose a multicast and HD 

carriage obligation. As explained below, 

we find interpreting section 338(a)(4) of 

the Act as mandating multicast and HD 

carriage is consistent with the First 

Amendment. The Supreme Court has 

held that must carry ‘‘is a contentneutral regulation’’ that must be 

analyzed under the intermediate level of 

scrutiny. Under this test, a contentneutral regulation will be upheld if: (1) 

It furthers an important or substantial 

governmental interest; (2) the 

government interest is unrelated to the 

suppression of free expression; and (3) 

the provisions do not burden 

substantially more speech than is 

necessary to further those interests. 

18. With regard to the first prong of 

the analysis, we find that the multicast 

and HD carriage obligation imposed 

under section 338(a)(4) of the Act 

furthers two important governmental 

interests. First, it ensures that the 

citizens of Alaska have full access to 

television programming. In enacting 

section 338(a)(4), we believe Congress 

recognized the unique situation in 

Alaska which makes communications 

services critically important to the 

public safety, education, and economic 

development of the state. Alaska has the 

lowest population density in the 

country, and communities in rural 

Alaska are unique in several ways. Most 

rural Alaskan communities are quite 

small—almost 90% of Alaskan 

communities have fewer than 1,000 

people; 25% of the communities have 

between 100 and 250 people; and 29% 

of the communities have fewer than 100 

people. Most Alaskan communities are 

also very remote and isolated—most 

rural communities in Alaska do not 

have access via road systems to the 

relatively urban areas of the State 

(Anchorage, Fairbanks and Juneau), and, 

indeed, many Alaskan communities can 

be accessed only by air or by water and 

are frequently inaccessible because of 

weather conditions. These 

characteristics taken together 

significantly limit the communications 

options available to Alaskan 

communities. Indeed, Alaska’s unique 

geography when combined with the 

State’s unique population distribution 

presents many rural Alaskans with 

serious challenges in obtaining a diverse 

range of television programming, 

particularly through over-the-air 

broadcasting. Moreover, cable service 

and other forms of multichannel video 

programming distribution services are 

often not available to them. As the 

Alaska Broadcasters have reported, 23% 

of Alaskan households are unable to 

access cable television, and these rural 

households on average are able to 

receive only one television station 

through over-the-air broadcasting. 

Service transmitted by satellite is one of 

the few viable means of transcending 

these obstacles, and the ability to 

receive multiple programming streams 

from local stations through satellite 

carriers would be the only way that 

many rural Alaskan households would 

be able to access these programming 

streams. Moreover, given the important 

role that DBS service plays in rural 

Alaska, unless satellite customers are 

provided with access to multicasting, 

there may not be sufficient incentive for 

Alaskan television stations to develop 

additional programming streams 

targeted to the needs and interests of 

rural communities, thus denying these 

Alaskans the benefits of the digital 

transition. We thus believe Congress 

intended section 338(a)(4) of the Act to 

be interpreted broadly, without 

limitations, in order to further the 

important governmental interest of 

providing the Alaskan community with 

full access to digital communications. 

51664 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

19. In addition, we find that multicast 

and HD carriage obligations imposed 

under section 338(a)(4) of the Act 

further a second important 

governmental interest of ensuring 

Alaska and Hawaii an equitable 

distribution of satellite service. We 

recognize that section 338(a)(4) of the 

Act is responsive to a long history of 

more limited DBS service in Alaska and 

Hawaii than in the lower 48 states. 

Filings in prior Commission 

proceedings indicate that, with respect 

to DBS service, Alaskans had ‘‘far fewer 

choices than other Americans do, often 

their signal reception is poorer, and the 

reception equipment required is often 

much larger.’’ In Hawaii, the DBS 

subscriber packages were not 

comparable to the subscriber packages 

available in the 48 lower states, 

particularly in the area of programming. 

For example, some of the most popular 

programming channels—such as CNN, 

ESPN, Headline News, Discovery 

Channel—were not offered to 

subscribers in Hawaii. The State of 

Hawaii continues to maintain today that 

the level of service provided to 

Hawaiian subscribers remains 

significantly lower than that provided to 

subscribers in the lower 48 states. 

According to the State of Hawaii, every 

television market that is larger than 

Honolulu already receives local-intolocal service from DIRECTV and nearly 

half of the 130 markets that receive 

local-into-local service from DIRECTV 

are smaller than Honolulu. We believe 

section 338(a)(4) of the Act was 

intended to remedy the situation in the 

noncontiguous states by providing 

Alaska and Hawaii with access to all of 

the programming offered through free 

over-the-air broadcasts, including all 

multicast and HD signals. We find that 

interpreting the statute in this manner 

best achieves the important 

governmental interest of making 

available ‘‘to all people of the United 

States’’ a ‘‘rapid, efficient, Nation-wide, 

and world-wide wire and radio 

communication service’’ and of 

providing ‘‘a fair, efficient, and 

equitable distribution of radio services’’

among the several States. 

20. With respect to the second prong 

of the constitutional analysis, we find 

the Government’s interest in ensuring 

the citizens of Alaska full access to 

television programming and the 

equitable distribution of satellite service 

are aimed at bringing a more robust 

communications service to the citizens 

of Alaska and Hawaii, not at stemming 

expression. These governmental 

interests are thus ‘‘unrelated to the 

suppression of free expression.’’ Indeed, 

they are aimed at providing the 

residents of Alaska and Hawaii with 

access to more information. We 

therefore find the second prong of the 

intermediate scrutiny test to be easily 

satisfied. 

21. With respect to the third prong of 

the analysis, we find that this multicast 

and HD carriage requirement will not 

burden substantially more speech than 

is necessary to further the important 

governmental interests. Satellite carriage 

of local digital broadcast signals 

pursuant to section 338 of the Act as it 

will apply in the contiguous states, 

including carriage of HD and multicast 

signals, is under review in the ongoing 

broadcast carriage rulemaking docket; 

see Carriage of Digital Television 

Broadcast Signals: Amendment to Part 

76 of the Commission’s Rules, CS 

Docket No. 98–120. Congress took steps 

to confine the breadth and burden of the 

regulation by directing the multicast 

and HD carriage obligation to apply only 

in the states of Alaska and Hawaii. The 

carriage requirement is thus narrowly 

tailored to serve the important 

government interests identified above in 

a direct and effective way. In addition, 

while DIRECTV makes a number of 

claims as to the burdensomeness of the 

regulation, the actual effects of a 

multicast and HD requirement in the 

States of Alaska and Hawaii remain 

unclear. We find speculative DIRECTV’s 

argument that imposing an HD and 

multicast carriage requirement for 

Alaska and Hawaii would place a 

substantial capacity burden on its 

system. The requirement for carriage of 

multicast and HD signals does not begin 

until June 2007. We do not know at this 

time how many programming streams 

Alaskan and Hawaiian local broadcast 

stations will be multicasting in 2007. At 

this point, for example, no station in 

Alaska or Hawaii is broadcasting more 

than two streams of programming; see 

e.g. www.CheckHD.com (showing one 

station, each, in Anchorage, Fairbanks, 

and North Pole, Alaska currently 

broadcasting two streams and none in 

Hawaii). Moreover, by the time the 

multicast and HD carriage requirement 

would take effect, many of the capacity 

issues may well be remedied through 

improvements in satellite technology. 

22. In short, we believe that in 

enacting section 338(a)(4), Congress 

sought to address the specific 

communications problems and special 

needs that exist in the states of Alaska 

and Hawaii and intended, through 

expanded satellite carriage, that 

subscribers in Alaska and Hawaii would 

be ensured full, not limited, access to 

the benefits of the digital transition. The 

multicast and HD carriage requirement 

furthers these important governmental 

interests without burdening 

substantially more speech than 

necessary and thus satisfies the 

requirements under the First 

Amendment. We note, however, that the 

foregoing analysis interprets section 

338(a)(4) of the Act only, and thus does 

not interpret sections 614 and 615 or 

section 338 with respect to satellite 

carriage of digital signals throughout the 

United States. 

Carriage Elections 

23. Section 338(a)(4) of the Act leaves 

implementation of carriage election 

rules expressly to the Commission’s 

discretion; see 47 U.S.C. 338(a)(4). 

Consequently, in the NPRM we 

proposed regulations concerning the 

timing of the carriage elections related 

to the new carriage requirements in 

Alaska and Hawaii; see NPRM, 20 FCC 

Rcd at 9324–25, paragraphs 10–15. The 

first satellite carriage cycle (pursuant to 

the SHVIA) will end on December 31, 

2005. The carriage election deadline for 

the second cycle is October 1, 2005, for 

carriage beginning January 1, 2006; see 

47 CFR 76.66(c)(4). As described in the 

NPRM, the analog signal carriage 

requirement for Alaska and Hawaii 

commences December 8, 2005, which is 

just a few weeks before the carriage 

cycle that applies to satellite carriers 

and broadcast stations in the contiguous 

states, which commences January 1, 

2006, and continues until December 31, 

2008; see NPRM, 20 FCC Rcd at 9324, 

paragraph 11; see 47 CFR 76.66(c). The 

carriage election process enables 

stations to choose between carriage 

pursuant to retransmission consent or 

mandatory carriage; see 47 U.S.C. 

325(b). Retransmission consent is based 

on an agreement between a broadcast 

station and satellite carrier, and 

includes a station’s authorization and 

terms for allowing its broadcast signal to 

be carried. Broadcast stations and 

satellite carriers are required to 

negotiate retransmission consent 

agreements in good faith. 47 U.S.C. 

338(b)(3)(c) (as amended by section 207 

of the SHVERA). If a station elects mustcarry status, it is, in general, entitled to 

insist without other terms that the 

satellite carrier carry its signal in its 

local market; see 47 U.S.C. 338(a); see 

also 47 CFR 76.66(c). 

24. To implement the carriage 

election timing requirements in section 

210 of the SHVERA, we will track the 

existing regulations as closely as 

possible so that carriage elections in 

Alaska and Hawaii will be synchronized 

with carriage elections in the contiguous 

states. Because the analog carriage 

requirement in Alaska and Hawaii takes 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51665 

effect only 24 days before the carriage 

cycle in the rest of the country, we will 

use the same carriage election deadline 

of October 1, 2005. Thus, commercial 

television broadcast stations in a local 

market in the noncontiguous states are 

required to make a retransmission 

consent-mandatory carriage (must carry) 

election by October 1, 2005, which is 

the same deadline for local stations in 

local-into-local markets in the 

contiguous states; see amended 

§ 76.66(c)(6). No commenter disagreed 

with this proposal and we adopt rules 

to implement it now; see amended rule 

§ 76.66(c)(6). 

25. With respect to carriage of the 

digital signals of stations in Alaska and 

Hawaii, the NPRM proposed that the 

retransmission consent-must carry 

election by a station in a local market 

in Alaska or Hawaii should be a twostep process with one election that 

applies to the analog signal carriage, 

which commences December 8, 2005, 

and a second carriage election that 

would govern carriage of the digital 

signal. Carriage of signals originating as 

digital must commence by June 8, 2007, 

but may begin pursuant to 

retransmission consent at any time. We 

proposed that the deadline for the 

second carriage election, for digital 

carriage, would be April 1, 2007, two 

months before carriage must commence. 

As an alternative, we suggested a onestep process in which the station’s 

election by October 1, 2005, for its 

analog signal, would also apply to its 

digital signal, for which mandatory 

carriage will commence by June 8, 2007. 

26. Two commenters, EchoStar and 

Microcom, favored the one-step 

approach on the basis of simplicity for 

satellite carriers and reduced burden for 

broadcasters. We believe, however, that 

the two-step approach better tracks 

Congress’ decision to mandate carriage 

of analog and digital signals in two 

separate steps. Two separate elections is 

also more consistent with the 

Commission’s Cable Must Carry 

decision in 2001, which permits stations 

broadcasting both analog and digital 

signals to elect must carry for their 

analog signal and retransmission 

consent for their digital signal; see 

Carriage of Digital Television Broadcast 

Signals: Amendment to Part 76 of the 

Commission’s Rules, etc., 16 FCC Rcd 

2598, 2610 (2001) (‘‘DTV Carriage First 

Report and Order’’). The two-step 

approach is also consistent with treating 

carriage of the digital signal as 

sequential rather than concurrent with 

the analog signal. It is important for 

local stations in Alaska and Hawaii to 

have a second, separate opportunity to 

elect between must carry and 

retransmission consent for their digital 

signals. We adopt the rule, as proposed 

in the NPRM, which establishes the 

procedures for this two-step carriage 

election; see amended rule § 76.66(c)(6). 

27. As further described in the NPRM, 

after the initial carriage cycle in Alaska 

and Hawaii (January 1, 2006 through 

December 31, 2008), the election cycle 

and carriage election procedures 

provided in section 76.66(c) will apply 

in the future; see NPRM, 20 FCC Rcd at 

9325, paragraph 14. For example, the 

next carriage election (after the 

upcoming 2005 election) is required by 

October 1, 2008, for the carriage cycle 

beginning January 1, 2009; see 47 CFR 

76.66(c)(2) and (4). We received no 

comments on this point. 

28. We also confirm that stations in 

Alaska and Hawaii should be permitted 

to elect must carry for their analog 

signals and negotiate for carriage of the 

digital signals via retransmission 

consent before the mandatory digital 

signal carriage takes effect. We received 

no comments on this point. Therefore, 

prior to June 8, 2007, when the 

mandatory digital carriage rights for 

local stations in Alaska and Hawaii take 

effect, such stations may separately 

negotiate for voluntary carriage of their 

digital signals even if they elect 

mandatory carriage for their analog 

signals; see amended § 76.66(c)(6). This 

flexibility is also consistent with the 

approach generally taken in the digital 

carriage rulemaking proceeding thus far. 

29. We also described in the NPRM 

that new television stations in Alaska or 

Hawaii should follow § 76.66(d)(3) of 

the Commission’s rules to notify the 

satellite carrier and elect carriage. Based 

on section 338(a)(4) of the Act, a new 

station in Alaska or Hawaii will have a 

right to mandatory carriage for its analog 

signal if it begins service after December 

8, 2005, and for its digital signal if it 

begins service after June 8, 2007. The 

existing rule describes the procedures 

and timing for requesting and obtaining 

carriage; thus, no rule amendments are 

needed; see 47 CFR 76.66(d)(3)(ii) 

through (iv). We received no comments 

on this issue, except that EchoStar asked 

that we clarify that stations that 

commence digital service after March 1, 

2007 be required to comply with the 

Commission’s rules for new stations. 

This date was related to the proposed 

special notification rules, which are 

discussed, infra. We provide that 

clarification here: new television 

broadcast stations in Alaska and Hawaii 

should follow the new station rule in 

§ 76.66(d)(3) of the Commission’s rules 

to notify satellite carriers and elect must 

carry or retransmission consent for their 

analog and digital signals. 

Procedures for Carriage 

30. The NPRM provided that in all 

other respects related to the mechanics 

of carriage, other than the carriage 

election cycle, we would apply the 

existing rules pertaining to satellite 

carriage as they were adopted to 

implement section 338 pursuant to the 

SHVIA; see NPRM, 20 FCC Rcd at 9324, 

paragraph 10; see also 47 U.S.C. 

338(a)(1), (b)(1), and (c); 47 CFR 76.66(g) 

and (h). As noted in the NPRM, section 

338(a)(4) of the Act also refers to the 

‘‘cost to subscribers of such 

transmissions’’ but does not require 

rules for implementation. NPRM, 20 

FCC Rcd at 9324, n. 34. We received no 

comments with respect to the 

mechanics for carriage and application 

of the existing rules. Therefore, our 

amended rules provide that carriage 

may be requested by television 

broadcast stations in local markets in 

Alaska and Hawaii effective December 

8, 2005 for analog signals, and June 7, 

2007 for digital signals; see amended 

rule § 76.66(b)(2). The carriage 

procedures for stations in Alaska and 

Hawaii shall follow the existing 

requirements, except with respect to the 

carriage election process, as described 

herein; see amended rule § 76.66(c)(6). 

Non-commercial television stations do 

not elect carriage because they cannot 

elect retransmission consent; see 47 

U.S.C. 325(b)(2)(A). They are entitled to 

mandatory carriage; see 47 U.S.C. 338. 

Availability of Signals 

31. Section 338(a)(4) of the Act 

provides that satellite retransmissions of 

local stations in Alaska and Hawaii 

‘‘shall be made available to substantially 

all of the satellite carrier’s subscribers in 

each station’s local market;’’ see 47 

U.S.C. 338(a)(4) (as amended by section 

210 of the SHVERA). The provision did 

not define ‘‘substantially all’’

subscribers, and we sought comment on 

its meaning in this context. Given that 

the statute refers to ‘‘subscribers,’’

obviously it is not referring to parts of 

the state that the carrier cannot reach at 

all. Rather, as the NPRM pointed out, 

this wording is consistent with the 

physical limitations of some satellite 

technology that may not be able to reach 

all parts of a state or a DMA where a 

spot beam is used to provide local 

stations. EchoStar agrees with our 

interpretation, noting that the existing 

geographic service rules apply to both 

Alaska and Hawaii and provide wellestablished parameters for service 

offerings. Microcom asserts that, at a 

minimum, ‘‘substantially all’’ should be 

defined as those that could be served by 

a satellite providing primary services 

51666 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

within the engineering constraints of the 

primary or spot beams. 

32. We believe that this statutory 

provision recognizes the existing 

physical limitations on satellite service, 

particularly in these noncontiguous 

states. With respect to DBS service to 

Alaska, for example, the Commission 

has stated that although reliable service 

usually requires a minimum elevation 

angle of ten degrees or more, service to 

Alaska is often offered at elevation 

angles as low as five degrees; see 

Policies and Rules for the Direct 

Broadcast Satellite Service, 17 FCC Rcd 

11,331, 11,358–59 (2002). The 

Commission defined elevation angle ‘‘as 

the upward tilt of an earth station 

antenna measured in degrees relative to 

the horizontal plane (ground), that is 

required to aim the earth station 

antenna at the satellite. When aimed at 

the horizon, the elevation angle is zero. 

If the satellite were below the horizon, 

the elevation angle would be less than 

zero. If the earth station antenna were 

tilted to a point directly overhead, it 

would have an elevation angle of 90°.’’

In addition, the Commission determined 

that in some areas of Alaska, from some 

orbital locations, the elevation angle 

was less than five degrees, or even 

below the horizon, thereby making 

service to those areas impossible. For 

example, the elevation angle for Attu 

Island, Alaska is less than zero or below 

the horizon for the 61.5°, 101°, and 110° 

orbit locations and only 4 for the 119° 

location. Microcom asserts that no 

location in Alaska has an elevation 

angle less than 10 degrees to the DBS 

orbital locations at 148 and 157 degrees 

West Longitude and proposes that 

carriers that use these orbital locations 

to provide local-into-local service to 

local markets on the west coast could do 

the same to provide the local stations in 

one or more of the Alaska DMAs, as 

well as to serve parts of Alaska not in 

a DMA. We are inclined to agree with 

Microcom that satellite carriers that 

have these orbital slots and can serve 

these areas should do so, and we note 

that satellite carriers must abide by the 

geographic service rules that require 

service where technically feasible; see 

Policies and Rules for the Direct 

Broadcast Satellite Service, 17 FCC Rcd 

at 11,358–62. 

33. In the NPRM we said it is not 

necessary to adopt new rules to 

implement this provision and noted that 

this provision is similar to the 

Commission interpretation adopted in 

the implementation of the SHVIA, that 

satellite carriers that offer local-intolocal service are not required to provide 

service to every subscriber in a DMA. 

Only EchoStar commented and agreed 

that no special rules were necessary on 

this point. 

Areas Outside Local Markets 

34. As described above, Alaska is the 

only one of the fifty states that has areas 

that are not included within any DMA. 

Section 338(a)(4) of the Act requires a 

satellite carrier in Alaska to make 

available the signals of all the local 

television stations that it carries in at 

least one local market to substantially 

all of its subscribers in areas outside of 

local markets who are in the same state; 

see 47 U.S.C. 338(a)(4), as amended by 

section 210 of SHVERA. Congress also 

modified the copyright provisions of 

title 17 to include these areas of Alaska 

that are outside of all DMAs within the 

definition of ‘‘local market’’ as it 

pertains to the statutory copyright 

license for carriage of local stations; see 

17 U.S.C. 122(j)(2)(D) as amended by 

section 111(b) of the SHVERA. In 

Alaska, there are three DMAs covering 

the main population centers, but most of 

the state, which is sparsely populated, 

is not included in a DMA. Thus, a 

satellite carrier in Alaska will be 

required to provide the television 

stations that it carries in at least one of 

the three DMAs, in which carriage of 

local stations is required by section 

338(a)(4) of the Act, to areas of the State 

not included in DMAs. In the NPRM we 

said that we believe the statute speaks 

for itself and that no special rule is 

required to implement this statutory 

requirement. 

35. No commenter disputed that the 

statutory language is largely selfeffectuating, but Microcom 

recommended that the Commission 

allow subscribers that are outside all 

DMAs to subscribe to any local package 

that they are technically capable of 

receiving. DIRECTV contends that 

section 338(a)(4) of the Act does not 

contemplate giving subscribers this 

option and that the SHVERA leaves the 

choice of which package to offer to the 

satellite carrier. DIRECTV explains that 

it could not comply with a rule that 

allowed subscribers outside of DMAs to 

choose which DMA package of local 

signals they want due to limitations in 

the set top box based upon the ‘‘market 

ID’’ that DIRECTV assigns to each local 

market. The market ID is critical to the 

operation of DIRECTV’s billing and 

customer service system, which cannot 

function with differing choices of local 

market packages within a given zip code 

or county. We agree that the statute does 

not require that the choice of local 

package rest with the individual 

subscriber, and, therefore, it is 

unnecessary to require a satellite carrier 

to reconfigure its operations to afford 

this choice. Moreover, the statutory 

copyright license in section 122 of title 

17 specifies that: ‘‘A satellite carrier 

may determine which local market in 

the State of Alaska will be deemed to be 

the relevant local market in connection 

with each subscriber in such census 

area, borough, or other area;’’ see 17 

U.S.C. 122(j)(2)(D) as amended by 

section 111(b) of the SHVERA We note, 

too, that DIRECTV has committed to 

working with local officials in Alaska to 

identify the appropriate local market to 

offer to Alaska subscribers who are not 

in a DMA. A satellite carrier that wishes 

to offer subscribers their choice of 

Alaska DMA package, however, is free 

to do so, as the statutory language 

neither compels nor forbids this 

approach. 

36. Microcom also raises a separate 

issue concerning signal availability, 

which is related to the revisions to the 

distant signal statutory copyright 

license, as revised by the SHVERA in 

conjunction with local signal 

availability pursuant to section 

338(a)(4). Section 119(a)(16) of title 17 

provides that the statutory copyright 

license for satellite retransmission of 

distant signals shall not apply with 

respect to satellite retransmission of a 

network station located outside of the 

State of Alaska to any subscriber in 

Alaska if a television station located in 

Alaska is made available by the satellite 

carrier pursuant to section 122; see 17 

U.S.C. 119(a)(16)(A) as amended by 

section 111 of the SHVERA. Section 

119(a)(16)(B) limits the restriction in (A) 

if the distant signal is a digital signal 

and no television station licensed to a 

community in Alaska and affiliated with 

the same network is transmitting a 

digital signal. See also, 17 U.S.C. 

122(j)(2)(D) as amended by section 

111(b) of the SHVERA, which amends 

the definition of ‘‘local’’ and thereby 

creates the copyright license for the 

areas in Alaska that are outside of a 

DMA: ‘‘Any census area, borough, or 

other area in the State of Alaska that is 

outside of a designated market area, as 

determined by Nielsen Media Research, 

shall be deemed to be part of one of the 

local markets in the State of Alaska. A 

satellite carrier may determine which 

local market in the State of Alaska will 

be deemed to be the relevant local 

market in connection with each 

subscriber in such census area, borough, 

or other area.’’ Microcom asks that we 

define when a signal is made 

‘‘available’’ for this purpose and to 

consider the cost to a subscriber to 

obtain the equipment to access the local 

signal package. We did not raise this 

question in the NPRM, as it applies 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51667 

specifically to eligibility for distant 

signals. We note, however, that the 

statute defines ‘‘available,’’ as it pertains 

to the copyright license in section 119, 

to mean that the station is available if 

the satellite carrier offers that local 

station to other subscribers who reside 

in the same zip code as the subscriber 

in question; see 17 U.S.C. 119(a)(4)(G) as 

amended by section 103 of the 

SHVERA; see also 47 U.S.C. 339(a)(2)(H) 

as amended by section 204 of the 

SHVERA, which is substantially the 

same definition. Thus, we cannot agree 

with Microcom’s proposal to determine 

availability based on the cost of 

equipment to receive the local station 

package. Microcom also asks the 

Commission to address questions 

pertaining to ‘‘commercial 

retransmission consent’’ for commercial 

establishments in Alaska that are not 

within a DMA. This issue is not within 

the scope of this proceeding, which is 

limited to implementation of section 

338(a)(4). 

37. The rules governing satellite 

carriage of local stations that were 

adopted to implement the SHVIA define 

‘‘local market’’ based upon the 

copyright definition cited in section 338 

of the Act; see 47 U.S.C. 338(k)(3) 

(formerly (h)(3)); see also 47 CFR 

76.66(e). EchoStar referred to the 

notification proposal in connection with 

its request for clarification concerning 

new stations. Accordingly, we amend 

our rule section to track the revised 

definition of local market in section 122 

of title 17 to reflect the revisions related 

to areas of Alaska outside of all DMAs; 

see adopted § 76.66(e)(2) and (3). 

Notification by Satellite Carrier 

38. In the NPRM we sought comment 

on a proposal to require special satellite 

carrier notifications to local stations in 

connection with the new carriage 

requirements in Alaska and Hawaii, 

although section 338(a)(4) of the Act 

does not require such notification. We 

proposed two special notifications: the 

first for the forthcoming carriage 

election for analog signals, and the 

second for carriage of digital signals in 

2007. We received no comments on this 

proposal. We conclude that it is 

unnecessary to establish a special 

notification procedure for the upcoming 

carriage election with respect to analog 

signal carriage. Moreover, there is 

inadequate time to adopt such a 

provision and make it effective in time 

to be meaningful for the analog carriage 

election deadline adopted in this Order. 

The deadline for stations to make 

carriage elections is October 1, 2005, for 

the carriage cycle that commences 

January 1, 2006, and that will govern 

carriage for local stations’ analog signals 

in Alaska and Hawaii beginning 

December 8, 2005. Thus, satellite 

carriers would have to send the 

proposed 30 day notification before 

September 1, which would require 

Federal Register publication of this 

Order no later than August 1, 2005. We 

note that EchoStar currently provides 

local-into-local service in the Honolulu 

and Anchorage DMAs, assuring that the 

stations in those markets are aware that 

they should make carriage elections no 

later than October 1, 2005 to ensure 

continued carriage. With respect to the 

other local markets in Alaska and 

Hawaii, if satellite carriers follow the 

existing rule for initiating local service, 

the notifications, elections, and carriage 

would come too late to satisfy the 

statutory requirement of commencing 

carriage of analog signals by December 

8, 2005; see 47 CFR 76.66(d)(2) 

(Requires 60 day notice prior to 

commencing service in a new market, 

gives stations 30 days to elect carriage, 

requires carriage to commence 90 days 

later). We will instead rely on the 

publication of this Order and the 

existing carriage election deadline to 

assure that stations in Alaska and 

Hawaii receive adequate notice for the 

October 1, 2005 carriage election 

deadline. 

39. We will adopt the second 

notification requirement to ensure that 

local stations in Alaska and Hawaii are 

reminded of their digital carriage rights 

commencing in June 2007. We will 

require satellite carriers with more than 

5 million subscribers to notify all 

television broadcast stations located in 

local markets in Alaska and Hawaii that 

they are entitled to carriage of their 

digital signals as of June 8, 2007, and 

that they must elect mandatory carriage 

or retransmission consent by April 1, 

2007, to be assured of carriage, as 

provided in §§ 76.66(b)(2) and (c)(6). 

This notification will be required by 

March 1, 2007, with respect to the 

carriage election for digital signals; see 

adopted § 76.66(d)(2)(iii). The amended 

rule provides for carriage requests from 

both commercial and noncommercial 

television broadcast stations. 

40. As further described in the NPRM, 

a new satellite carrier that meets the 

definition in section 338(a)(4) of the Act 

in the future will be required to comply 

with § 76.66(d)(2) of the Commission’s 

rules regarding ‘‘new local-into-local 

service’’ (imposes requirements when a 

new satellite carrier intends to 

retransmit a local television station back 

into its local market). 

Procedural Matters 

41. Accessibility Information. To 

request this Report and Order or other 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). This document can also 

be downloaded in Word and Portable 

Document Format (PDF) at: http:// 

www.fcc.gov. 

42. The Commission will send a copy 

of this Report and Order in a report to 

be sent to Congress and the Government 

Accountability Office (GAO) pursuant to 

the Congressional Review Act, see 

U.S.C. 801(a)(1)(A). 

Final Regulatory Flexibility Certification 

43. The Regulatory Flexibility Act of 

1980, as amended (RFA), requires a 

regulatory flexibility analysis be 

prepared for notice-and-comment rule 

making proceedings, unless the agency 

certifies that ‘‘the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities.’’ 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 

Administration (SBA). 

44. We are amending § 76.66 of the 

Commission’s rules as required by 

section 210 of the SHVERA. We expect 

these rule amendments will not have a 

significant economic impact on a 

substantial number of small entities. 

The rules are required by statute and 

will allow for local television stations to 

elect carriage pursuant to retransmission 

consent or mandatory carriage with 

respect to satellite carriers with more 

than 5 million subscribers in a noncontiguous state. ‘‘Satellite carriers,’’

including Direct Broadcast Satellite 

(DBS) carriers, will be directly and 

primarily affected by the rules. 

45. The satellite carriers covered by 

these rules are governed by the SBArecognized small business size standard 

of Cable and Other Program 

Distribution. This size standard 

provides that a small entity is one with 

$12.5 million or less in annual receipts. 

The two satellite carriers that are subject 

51668 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

to these rule amendments because they 

currently have more than five million 

subscribers, DIRECTV and EchoStar, 

report annual revenues that are in 

excess of the threshold for a small 

business. We anticipate that any 

satellite carrier that, in the future, has 

more than five million subscribers 

would necessarily have more than $12.5 

million in annual receipts. Thus, the 

entities directly affected by the 

proposed rules are not small entities. 

46. We also note that, in addition to 

satellite carriers, television broadcast 

stations are indirectly affected by the 

amended rule in that they potentially 

benefit from the satellite carriage 

required by the rule and must elect 

between mandatory carriage and 

retransmission consent. This carriage 

election, however, follows the existing 

Commission rules. These existing rules 

currently permit stations in Alaska and 

Hawaii to elect carriage if and when a 

satellite carrier offers local-into-local 

service in their market. The amended 

rules affect these election rights by 

merely providing a date certain for 

carriage in these specified markets, and 

this change does not amount to a 

significant economic impact. 

47. Therefore, we certify that the 

adopted rules will not have a significant 

economic impact on a substantial 

number of small entities. The 

Commission will send a copy of this 

Report and Order, including a copy of 

this Final Regulatory Flexibility 

Certification, to the Chief Counsel for 

Advocacy of the SBA. This certification 

will also be published in the Federal 

Register. 

Final Paperwork Reduction Act of 1995 

Analysis 

48. This document does not contain 

new or modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. The Commission received 

approval for the information collection 

requirements contained in this Order 

from the Office of Management and 

Budget on June 14, 2005. There have 

been no changes to the information 

collection requirements since receiving 

OMB approval. In addition, we note that 

there is no new or modified 

‘‘information burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see U.S.C. 

3506(c)(4). As described in the Final 

Regulatory Flexibility Certification, 

supra, the businesses affected by our 

action are not small. 

49. Further Information. For 

additional information concerning the 

PRA information collection 

requirements contained in this Order, 

contact Cathy Williams at 202–418–

2918, or via the Internet to 

Cathy.Williams@fcc.gov. 

50. Additional Information. For 

additional information on this 

proceeding, contact Eloise Gore, 

Eloise.Gore@fcc.gov, of the Media 

Bureau, Policy Division, (202) 418–

2120. 

Ordering Clauses 

51. Accordingly, it is ordered that 

pursuant to section 210 of the Satellite 

Home Viewer Extension and 

Reauthorization Act of 2004, and 

sections 1, 4(i) and (j), and 338(a)(4) of 

the Communications Act of 1934, as 

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

and 338(a)(4), that this Report and Order 

is adopted and the commission’s rules 

are hereby amended and shall become 

effective October 31, 2005. 

52. It is further ordered that the 

Consumer and Governmental Affairs 

Bureau, Reference Information Center, 

shall send a copy of this Report and 

Order, including the Final Regulatory 

Flexibility Certification, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 76 

Cable television, Television. 

Federal Communications Commission 

William F. Caton, 

Deputy Secretary. 

Rule Changes 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 76 as 

follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 1. The authority citation for part 76 

continues to read: 

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

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

315, 317, 325, 338, 339, 340, 503, 521, 522, 

531, 532, 533, 534, 535, 536, 537, 543, 544, 

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

561, 571, 572 and 573. 

■ 2. Section 76.66 is amended by 

revising paragraphs (b)(2) and (c)(4), by 

adding paragraph (c)(6), redesignate 

paragraphs (d)(2)(iii) and (iv) as 

paragraphs (d)(2)(iv) and (v), add new 

paragraph (d)(2)(iii) and revise 

paragraphs (e)(2) and (3) to read as 

follows: 

§ 76.66 Satellite broadcast signal carriage. 

* * * * * 

(b) * * * 

(2) A satellite carrier that offers 

multichannel video programming 

distribution service in the United States 

to more than 5,000,000 subscribers 

shall, no later than December 8, 2005, 

carry upon request the signal originating 

as an analog signal of each television 

broadcast station that is located in a 

local market in Alaska or Hawaii; and 

shall, no later than June 8, 2007, carry 

upon request the signals originating as 

digital signals of each television 

broadcast station that is located in a 

local market in Alaska or Hawaii. Such 

satellite carrier is not required to carry 

the signal originating as analog after 

commencing carriage of digital signals 

on June 8, 2007. Carriage of signals 

originating as digital signals of each 

television broadcast station that is 

located in a local market in Alaska or 

Hawaii shall include the entire free 

over-the-air signal, including multicast 

and high definition digital signals. 

* * * * * 

(c) * * * 

(4) Except as provided in paragraphs 

(c)(6), (d)(2) and (d)(3) of this section, 

local commercial television broadcast 

stations shall make their retransmission 

consent-mandatory carriage election by 

October 1st of the year preceding the 

new cycle for all election cycles after 

the first election cycle. 

* * * * * 

(6) A commercial television broadcast 

station located in a local market in 

Alaska or Hawaii shall make its 

retransmission consent-mandatory 

carriage election by October 1, 2005, for 

carriage of its signal that originates as an 

analog signal for carriage commencing 

on December 8, 2005, and by April 1, 

2007, for its signal that originates as a 

digital signal for carriage commencing 

on June 8, 2007 and ending on 

December 31, 2008. For analog and 

digital signal carriage cycles 

commencing after December 31, 2008, 

such stations shall follow the election 

cycle in paragraphs (c)(2) and (4). A 

noncommercial television broadcast 

station located in a local market in 

Alaska or Hawaii must request carriage 

by October 1, 2005, for carriage of its 

signal that originates as an analog signal 

for carriage commencing on December 

8, 2005, and for its signal that originates 

as a digital signal for carriage 

commencing on June 8, 2007 and 

ending on December 31, 2008. 

* * * * * 

(d) * * * 

(2) * * * 

(iii) A satellite carrier with more than 

five million subscribers shall provide 

the notice as required by paragraphs 

(d)(2)(i) and (ii) of this section to each 

television broadcast station located in a 

local market in Alaska or Hawaii, not 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51669 

1See 60 FR 43031 (August 18, 1995). For a 

detailed discussion of subsequent amendments to 

the head impact protection requirements see 69 FR 

9217 at 9218–9220 (February 27, 2004). 

later than March 1, 2007 with respect to 

carriage of digital signals; provided, 

further, that the notice shall also 

describe the carriage requirements 

pursuant to 47 U.S.C. 338(a)(4), and 

paragraph (b)(2) of this section. 

* * * * * 

(e) * * * 

(2) A designated market area is the 

market area, as determined by Nielsen 

Media Research and published in the 

1999–2000 Nielsen Station Index 

Directory and Nielsen Station Index 

United States Television Household 

Estimates or any successor publication. 

In the case of areas outside of any 

designated market area, any census area, 

borough, or other area in the State of 

Alaska that is outside of a designated 

market area, as determined by Nielsen 

Media Research, shall be deemed to be 

part of one of the local markets in the 

State of Alaska. 

(3) A satellite carrier shall use the 

1999–2000 Nielsen Station Index 

Directory and Nielsen Station Index 

United States Television Household 

Estimates to define television markets 

for the first retransmission consentmandatory carriage election cycle 

commencing on January 1, 2002 and 

ending on December 31, 2005. The 

2003–2004 Nielsen Station Index 

Directory and Nielsen Station Index 

United States Television Household 

Estimates shall be used for the second 

retransmission consent-mandatory 

carriage election cycle commencing 

January 1, 2006 and ending December 

31, 2008, and so forth for each triennial 

election pursuant to this section. 

Provided, however, that a county 

deleted from a market by Nielsen need 

not be subtracted from a market in 

which a satellite carrier provides localinto-local service, if that county is 

assigned to that market in the 1999–

2000 Nielsen Station Index Directory or 

any subsequent issue of that 

publication. A satellite carrier may 

determine which local market in the 

State of Alaska will be deemed to be the 

relevant local market in connection with 

each subscriber in an area in the State 

of Alaska that is outside of a designated 

market, as described in paragraph (e)(2) 

of this section. 

* * * * * 

[FR Doc. 05–17324 Filed 8–30–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2005–22240] 

RIN 2127–AJ60 

Federal Motor Vehicle Safety 

Standards; Occupant Protection in 

Interior Impact 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule; response to petitions 

for reconsideration. 

SUMMARY: This document responds to 

petitions for reconsideration requesting 

changes to a final rule published on 

February 27, 2004 (February 2004 final 

rule). The February 2004 final rule 

amended the upper interior impact 

requirements of Federal Motor Vehicle 

Safety Standard No. 201, ‘‘Occupant 

protection in interior impact.’’ Among 

other matters, to address the safety 

consequences of certain new vehicle 

designs, the February 2004 final rule 

added new targets to door frames and 

seat belt mounting structures found in 

some vehicles. This document amends 

the definition of ‘‘seat belt mounting 

structure’’ to ensure that the definition 

is not unnecessarily broad, and clarifies 

several issues related to existing target 

relocation procedures. This document 

also delays the implementation of the 

new requirements for door frames and 

seat belt mounting structures from 

September 1, 2005 until December 1, 

2005. 

DATES: The amendments in this rule are 

effective September 1, 2005. 

Petitions: Petitions for reconsideration 

must be received by October 17, 2005, 

and should refer to this docket and the 

notice number of this document and be 

submitted to: Administrator, National 

Highway Traffic Safety Administration, 

400 7th Street, SW., Washington, DC 

20590. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues: Lori Summers, Office 

of Crashworthiness Standards, NVS–

112, NHTSA, 400 7th Street, SW., 

Washington, DC 20590. Telephone: 

(202) 366–1740. Fax: (202) 493–2290. 

For legal issues: Mr. George Feygin, 

Attorney Advisor, Office of the Chief 

Counsel, NCC–112, NHTSA, 400 7th 

Street, SW., Washington, DC 20590. 

Telephone: (202) 366–5834. Fax: (202) 

366–3820. E-mail: 

George.Feygin@nhtsa.dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1995, the National Highway Traffic 

Safety Administration (NHTSA) 

amended Federal Motor Vehicle Safety 

Standard (FMVSS) No. 201, ‘‘Occupant 

protection in interior impact,’’ to require 

passenger cars, trucks, and 

multipurpose passenger vehicles with a 

gross vehicle weight rating (GVWR) of 

4,536 kilograms (10,000 pounds) or less, 

and buses with a GVWR of 3,860 

kilograms (8,500 pounds) or less, to 

provide head protection when an 

occupant’s head strikes upper interior 

components, such as pillars, side rails, 

headers, and the roof during a crash.1

The new head protection requirements 

were necessary because head impacts 

with upper interior components 

resulted in a significant number of 

occupant injuries and fatalities. 

The head impact protection 

provisions of FMVSS No. 201 set 

minimum performance requirements for 

vehicle interiors by establishing target 

areas within the vehicle that must be 

properly padded or otherwise have 

energy absorbing properties to minimize 

head injury in the event of a crash. 

Compliance with the upper interior 

impact requirements is determined, in 

part, by measuring the forces 

experienced by a Free Motion Headform 

(FMH) test device when it is propelled, 

at any speed up to and including either 

18 km/h or 24 km/h (12 mph or 15 

mph), into certain targets on the vehicle 

interior. 

New vehicle designs not 

contemplated by the 1995 amendments 

to FMVSS No. 201 emerged, and with 

them, certain safety concerns. First, a 

number of manufacturers began 

producing three door coupes and 

pickup trucks with three or four doors. 

Unlike the conventional designs, these 

vehicles do not have B-pillars between 

doors. Yet, the door frames appeared to 

be equivalent to the B-pillar for 

purposes of head impact protection 

because these door frames were located 

near the head of a seated vehicle 

occupant and posed the same potential 

head injury risks as a B-pillar. Second, 

certain pillarless coupes and 

convertibles used a freestanding vertical 

structure to provide an attachment point 

for the upper anchorage of a lap and 

shoulder belt. This structure, which 

must be relatively stiff in order to 

ensure the stability of the belt 

anchorage, was normally located near 

the head of the occupant in the seating 

position for which the belt is provided.