The FCC Implements Rule Revisions Mandated By SHVERA
On March 30, 2005, the Federal Communications Commission (“FCC”) adopted three new rules implementing discrete parts of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”) which was signed into law last December.1 These new rules relate to newly permitted carriage of “significantly viewed” stations by satellite carriers (similar to that available to cable operators) as well as two procedural rule changes concerning (i) satellite carrier notification to television broadcast stations in local-into-local markets, and (ii) the requirement that the Commission exempt satellite carriers from complying with the signal testing requirements where local-into-local service is available. The amendments to the rules were adopted without prior notice and comment because they implemented provisions in SHVERA that specifically directed the FCC to modify its rules. SHVERA generally was intended to make signal carriage, copyright and other rules governing DTH carriers more like those governing cable operators. See update dated Dec. 16, 2004.
Satellite carriage of “significantly viewed” signals
The Order revises Section 76.66 of the FCC’s rules to implement Section 340(h)(3)(A) of SHVERA which provides that satellite carriage of a significantly viewed, but otherwise out-of-market or “distant,” station is conditioned on the satellite carrier notifying any station affiliated with the same network as the significantly viewed station that the carrier may retransmit the significantly viewed station to subscribers in specified communities in that station’s local market during the next election cycle. The notification is required to be made at least 60 days before the carriage election date for markets where local-into-local service was being provided as of the date of SHVERA’s enactment (Dec. 8, 2004). For markets where local-into-local service is initiated after the enactment date, a DTH carrier must give notice at least 60 days before it introduces local-into-local service and at least 60 days before the next election cycle. Starting with the 2005 election cycle, a DTH carrier may only retransmit an out-of-market significantly viewed distant signal during the election cycle if proper notice was given or it was retransmitting the signal into the local market as of the date notifications were due.
The Order also revises Section 76.66 of the FCC’s rules to provide that if a DTH carrier notifies a station that it reserves the right to retransmit an affiliate of the same network during he next election cycle, “the station may choose either retransmission consent or mandatory carriage for any portion of the three year election cycle that is not covered by an existing retransmission consent agreement.”
Notice to stations of new local-into-local service
Section 338(h)(2)(A) of the Act required the FCC to revise Section 76.66(d)(2), regarding DTH notification to broadcast stations in new local-into-local markets. The revised rule requires DTH carriers to notify each local broadcast station at least 60 days prior to the commencement of local-into-local service. The notice must include: “(i) the carrier’s intention to launch local-into-local service; (ii) the identity of the local market; (iii) the location of the carrier’s proposed local receive facility for that local market; (iv) the station’s right to elect mandatory carriage or grant retransmission consent; (v) that the station has 30 days from the date it receives the notice to make the election; and (vi) that failure to make such election will result in the loss of the right to demand carriage under this section for the remainder of the three-year carriage cycle.” The revisions to the rule were designed to clearly delineate the rights and responsibilities of local broadcasters under the carry-one, carry-all provisions governing local-into-local service under SHVERA.
Elimination of certain testing requirements
Prior to SHVERA, DTH subscribers were permitted to receive a distant network signal if testing demonstrated that the local network signal was not available off-air, regardless of whether the local signal was available by satellite. SHVERA now prohibits the delivery of distant analog network signals in those markets where local network signals are available by satellite. Accordingly, for those markets where local-into-local service is available, the testing requirement has been eliminated as unnecessary.
If you would like a copy of the Order, or have any further questions about the revisions to the FCC’s rules or other aspects of SHVERA, please call us.
1 See In the Matter of Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004: Procedural Rules, FCC 05-81 (rel. March 30, 2005) (“Order”).