[Federal Register: May 5, 2008 (Volume 73, Number 87)]
[Proposed Rules]               
[Page 24515-24519]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my08-9]                         

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 00-96; FCC 08-86]

 
Carriage of Digital Television Broadcast Signals; Implementation 
of the Satellite Home Viewer Improvement Act of 1999: Local Broadcast 
Signal Carriage Issues and Retransmission Consent Issues

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seeks comment on the application of the 
statutory requirement for nondiscriminatory treatment in carriage of 
standard definition (``SD'') and high definition (``HD'') signals. 
Satellite

[[Page 24516]]

carriers should be required to carry the signals of all local broadcast 
stations in HD and SD if they carry the signals of any local station in 
the same market in both HD and SD so that subscribers without HD-
capable equipment will be able to view all stations. That is, the 
Commission seeks comment on whether the Communications Act would 
prohibit satellite carriers from carrying some broadcast stations in 
both HD and SD but not others.

DATES: Comments for this proceeding are due on or before June 4, 2008; 
reply comments are due on or before June 19, 2008.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. You may submit comments, identified by CS Docket 
No. 00-96, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For more information on this 
proceeding, please contact Lyle Elder, Lyle.Elder@fcc.gov, or Eloise 
Gore, Eloise.Gore@fcc.gov, of the Media Bureau, Policy Division, (202) 
418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking in CS Docket No. 00-96, FCC 08-
86, adopted March 19, 2008, and released March 27, 2008. 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, 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).

Summary of the Notice of Proposed Rulemaking

I. Second Further Notice of Proposed Rulemaking

    1. We seek comment on the scope of satellite carriers' carriage 
obligations under Section 338 of the Act as the HD carriage requirement 
becomes effective. In those markets, satellite carriers will be 
carrying the HD signals from all stations broadcasting in HD. But many 
subscribers in those markets may not have HD-capable set-top boxes on 
all sets connected to the DBS system. In such markets, carriage of only 
an HD signal would mean that those subscribers without HD-capable 
equipment would not be able to view the programming.
    2. In such circumstances, satellite carriers may wish to provide 
separate SD broadcast feeds in addition to the mandated HD feeds. We 
seek comment on whether satellite carriers should be required to carry 
the signals of all local broadcast stations in HD and SD if they carry 
the signals of any local station in the same market in both HD and SD. 
That is, we seek comment on whether the Act would prohibit satellite 
carriers from carrying some broadcast stations in both HD and SD but 
not others--e.g., under the carry-one, carry-all provisions of section 
338(a) of the Act or the nondiscrimination provisions of section 338(d) 
of the Act.
    3. We also seek comment on the applicability of section 338(g)(2) 
of the Act, added in 2004, which provides that ``[i]f the carrier 
retransmits signals in the digital television service, the carrier 
shall retransmit such digital signals in such market by means of a 
single reception antenna and associated equipment.'' In local markets 
where a satellite carrier carries the signal of at least one local 
broadcaster in both HD and SD format, we seek comment on whether this 
provision requires that the operator do so for all broadcast stations 
in that market.
    4. Finally, we seek comment on the petition for rulemaking filed by 
Rancho Palos Verdes (``RPV Petition''), which asks the Commission to 
adopt rules for satellite carriers that would be similar to the 
``viewability'' provisions governing cable operators. The statutory 
bases for the cable viewability rules do not appear to have express DBS 
equivalents. We seek comment on whether satellite carriers nonetheless 
have an obligation, under sections 338(a), (d), (g), or any other 
provision, to provide all subscribers in a local-into-local market with 
the ability to view all stations carried pursuant to carry-one, carry-
all requirements. As a policy matter, should the Commission impose such 
a requirement in the interests of regulatory parity and for the benefit 
of consumers?
    5. Requiring similar treatment among broadcast stations could help 
ensure that consumers in local-into-local markets continue to receive 
all of their local broadcast signals, regardless of their subscription 
package. On the other hand, we seek comment on the impact of such a 
requirement on satellite carriers' ability to add local-into-local 
markets or to meet the HD implementation schedule set forth in the 
Order (Adopted: 3/19/08, Released: 3/27/08). We seek comment on these 
and any other legal, factual, or policy issues raised by the above 
discussion.

II. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    6. As required by the Regulatory Flexibility Act of 1980 (``RFA''), 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(``IRFA'') relating to this Second Further Notice of Proposed 
Rulemaking. The IRFA is set forth in Appendix B.
    7. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (``IRFA'') of the possible economic impact on a 
substantial number of small entities by the policies and rules proposed 
in this Second Further Notice of Proposed Rulemaking (``Second Further 
NPRM''). Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments on the Second Further NPRM as indicated on the 
first page of the Order. The Commission will send a copy of the Second 
Further NPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (``SBA''). In addition, the Second 
Further NPRM and IRFA (or summaries thereof) will be published in the 
Federal Register.
1. Need for, and Objectives of, the Proposals
    8. This Second Further NPRM seeks comment on the scope of satellite 
carriers' carriage obligations under

[[Page 24517]]

section 338 of the Act as the HD carriage requirement becomes 
effective. It asks whether satellite carriers should be required to 
carry the signals of all local broadcast stations in HD and SD if they 
carry the signals of any local station in the same market in both HD 
and SD. It also asks whether satellite carriers have an obligation, 
under sections 338(a), (d), (g), or any other provision, to provide all 
subscribers in a local-into-local market with the ability to view all 
stations carried pursuant to carry-one, carry all requirements. It 
seeks comment on whether, as a policy matter, the Commission should 
impose such a requirement, and on the impact of such a requirement on 
satellite carriers' ability to add local-into-local markets or to meet 
the HD implementation schedule set forth in the Order. Finally, it 
seeks comment on any other legal, factual or policy issues raised by 
the discussion in the Further Notice itself.
2. Legal Basis
    9. The authority for the action proposed in this rulemaking is 
contained in sections 4(i), 4(j), 303(r), 325, 336, 338, 614, and 615 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), 303(r), 325, 336, 338, 534, and 535.
3. Description and Estimate of the Number of Small Entities To Which 
the Proposals Will Apply
    10. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted herein. The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small business concern'' 
under Section 3 of the Small Business Act. 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). The rules adopted herein will directly affect 
small television broadcast stations and small satellite carriers. A 
description of these small entities, as well as an estimate of the 
number of such small entities, is provided below.
    11. Television Broadcasting. The SBA defines a television 
broadcasting station as a small business if such station has no more 
than $13.0 million in annual receipts. Business concerns included in 
this industry are those ``primarily engaged in broadcasting images 
together with sound.'' The Commission has estimated the number of 
licensed commercial television stations to be 1,376. According to 
Commission staff review of the BIA Publications, Inc. Master Access 
Television Analyzer Database (BIA) on March 30, 2007, about 986 of an 
estimated 1,374 commercial television stations (or approximately 72 
percent) have revenues of $13.0 million or less and thus qualify as 
small entities under the SBA definition. We note, however, that, in 
assessing whether a business concern qualifies as small under the above 
definition, business (control) affiliations must be included. Our 
estimate, therefore, likely overstates the number of small entities 
that might be affected by our action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies. The Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 380. 
The Commission does not compile and otherwise does not have access to 
information on the revenue of NCE stations that would permit it to 
determine how many such stations would qualify as small entities.
    12. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    13. Satellite Carriers. The term ``satellite carrier'' includes 
entities providing services as described in 17 U.S.C. 119(d)(6) using 
the facilities of a satellite or satellite service licensed under Part 
25 of the Commission's rules to operate in Direct Broadcast Satellite 
(``DBS'') or Fixed-Satellite Service (``FSS'') frequencies. As a 
general practice, not mandated by any regulation, DBS licensees usually 
own and operate their own satellite facilities as well as package the 
programming they offer to their subscribers. In contrast, satellite 
carriers using FSS facilities often lease capacity from another entity 
that is licensed to operate the satellite used to provide service to 
subscribers. These entities package their own programming and may or 
may not be Commission licensees themselves. In addition, a third 
situation may include an entity using a non-U.S. licensed satellite to 
provide programming to subscribers in the United States pursuant to a 
blanket earth station license. Since 2007, the SBA has recognized 
satellite television distribution services within the broad economic 
census category of Wired Telecommunications Carriers. The SBA has 
developed a small business size standard for this category, which is: 
All such firms having 1,500 or fewer employees. The most current Census 
Bureau data, however, are from the last economic census of 2002, and we 
will use those figures to gauge the prevalence of small businesses in 
this category. Those size standards are for the two census categories 
of ``Satellite Telecommunications'' and ``Other Telecommunications.'' 
Under both prior categories, such a business was considered small if it 
had $13.5 million or less in average annual receipts.
    14. Direct Broadcast Satellite (DBS) Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. Because DBS provides subscription 
services, DBS falls within the SBA-recognized definition of Wired 
Telecommunications Carriers. However, as discussed above, we rely on 
the previous size standard, Cable and Other Subscription Programming, 
which provides that a small entity is one with $13.5 million or less in 
annual receipts. Currently, only two operators--DirecTV and EchoStar 
Communications Corporation (``EchoStar'')--hold licenses to provide DBS 
service, which requires a great investment of capital for operation. 
Both currently offer subscription services and report annual revenues 
that are in excess of the threshold for a small business. Because DBS 
service requires significant capital, we believe it is unlikely that a 
small entity as defined by the SBA would have the financial wherewithal 
to become a DBS licensee. Nevertheless, given the absence of specific 
data on this point, we acknowledge the possibility that there are 
entrants in this field that may not yet have generated $13.5 million in 
annual receipts, and therefore may be categorized as a small business, 
if independently owned and operated.
    15. Fixed-Satellite Service (``FSS''). The FSS is a 
radiocommunication service between earth stations at a

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specified fixed point or between any fixed point within specified areas 
and one or more satellites. The FSS, which utilizes many earth stations 
that communicate with one or more space stations, may be used to 
provide subscription video service. Therefore, to the extent FSS 
frequencies are used to provide subscription services, FSS falls within 
the SBA-recognized definition of Wired Telecommunications Carriers. 
However, as discussed above, we rely on the previous size standard, 
Cable and Other Subscription Programming, which provides that a small 
entity is one with $13.5 million or less in annual receipts. Although a 
number of entities are licensed in the FSS, not all such licensees use 
FSS frequencies to provide subscription services. Both of the DBS 
licensees (EchoStar and DirecTV) have indicated interest in using FSS 
frequencies to broadcast signals to subscribers. It is possible that 
other entities could similarly use FSS frequencies, although we are not 
aware of any entities that might do so.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    16. The Second Further NPRM seeks comment on rules that would 
primarily impose requirements on satellite carriers, and as discussed 
above few if any satellite carriers qualify as small entities. Small 
satellite carriers currently have obligations with respect to carriage 
of local commercial and non-commercial broadcast stations. The 
obligations would be increased by the rules contemplated in the Further 
Notice of Proposed Rulemaking (Further NPRM), but would not change in 
kind. As with existing statutory and regulatory requirements, small 
satellite carriers will need engineering and legal services to comply 
with the proposed rules, but if the proposed rules are implemented we 
do not anticipate that this need will be any different for small 
carriers than for large carriers. Small broadcast stations would be 
affected by the proposed rules, although likely in a positive way, and 
could be affected by other proposals raised in response to the Further 
NPRM. Also, initially, broadcasters may need additional legal services.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    17. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities. We seek comment on the applicability of any of these 
alternatives to affected small entities.
    18. The requirements proposed in the Second Further NPRM would in 
most cases create minimal economic impact on small entities, and in 
some cases could provide positive economic impact. Station licensees 
and other parties are encouraged to submit comment on the proposals' 
impact on small television stations. Every effort will be made to 
minimize the impact of any adopted proposals on small satellite 
carriers. Finally, we are mindful of the potential concerns of small 
entities and will, therefore, continue to carefully scrutinize our 
policy determinations going forward. We invite small entities to submit 
comment on how the Commission could further minimize potential burdens 
on small entities if the proposals provided in the Second Further NPRM, 
or those submitted into the record, are ultimately adopted.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    19. None.

B. Initial Paperwork Reduction Act Analysis

    20. This Second Further Notice of Proposed Rulemaking has been 
analyzed with respect to the PRA and does not contain proposed 
information collection requirements. 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.

C. Ex Parte Rules

    21. Permit-But-Disclose. This proceeding will be treated as a 
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under section 1.1206(b) of the Commission's 
Rules. Ex parte presentations are permissible if disclosed in 
accordance with Commission Rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of 
the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one- or two-sentence description of the 
views and arguments presented is generally required. Additional rules 
pertaining to oral and written presentations are set forth in section 
1.1206(b).

D. Filing Requirements

    22. Comments and Replies. Pursuant to sections 1.415 and 1.419 of 
the Commission's Rules, interested parties may file comments on or 
before June 4, 2008, and reply comments on or before June 19, 2008, 
using: (1) The Commission's Electronic Comment Filing System 
(``ECFS''), (2) the Federal Government's eRulemaking Portal, or (3) by 
filing paper copies.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to ecfs@fcc.gov, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the

[[Page 24519]]

Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, 
Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 
p.m. All hand deliveries must be held together with rubber bands or 
fasteners. Any envelopes must be disposed of before entering the 
building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    23. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection 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. Documents 
will be available electronically in ASCII, Word 97, and/or Adobe 
Acrobat.
    24. Accessibility Information. To request information in accessible 
formats (computer diskettes, large print, audio recording, and 
Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer 
and 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.

E. Additional Information

    25. For more information on this Second Further Notice of Proposed 
Rule Making, please contact Lyle Elder, Lyle.Elder@fcc.gov, or Eloise 
Gore, Eloise.Gore@fcc.gov, of the Media Bureau, Policy Division, (202) 
418-2120.
    26. It is further ordered that the Consumer and Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Second Further Notice of Proposed Rule Making, including the Final and 
Initial Regulatory Flexibility Analyses, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 76

    Cable television, Digital television, Multichannel video 
programming distributors, Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
 [FR Doc. E8-9747 Filed 5-2-08; 8:45 am]

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