Implementation of the Satellite Home Viewer Improvement Act of 1999: Application of Network Nonduplication, Syndicated Exclusivity, and Sports Blackout Rules to Satellite Retransmissions of Broadcast Signals

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applicability. We find that notice and comment are unnecessary under section 553(b) of the Administrative Procedure Act because the rules are outdated and have no further applicability.

Procedural Matters

89. The SHVIA requires that these rules become effective within one year of enactment. The SHVIA was enacted on November 29, 1999. We find good cause exists under the Administrative Procedure Act (``APA'') to have the rules adopted in this Report and Order take effect with fewer than 30 days advance publication in the Federal Register pursuant to section 553(d)(3) of the APA due to the statutory deadline. The APA generally requires publication in the Federal Register of substantive rules 30 days prior to their effective date but permits substantive rules to become effective with less than 30 days advance publication for good cause. The Commission has acted expeditiously to adopt these complex rules, and they will be adopted and published in the Federal Register before the statutory deadline. We note that the rules contemplate a phase-in period to allow parties to implement the new requirements, and thus parties will have time to consider the effect of the rules before they commence implementation.

Final Regulatory Flexibility Analysis

90. As required by the Regulatory Flexibility Act (``RFA''), see 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in the NPRM. The Commission sought written public comments on the possible significant economic impact of the proposed policies and rules on small entities in the Notice, including comments on the IRFA. No comments were received on the IRFA. Pursuant to the RFA, see 5 U.S.C. 604, a Final Regulatory Flexibility Analysis is contained in the Report and Order. This Final Regulatory Flexibility Analysis (``FRFA'') conforms to the RFA. 91. Need for, and Objectives of, this Report and Order. Section 339(b) of the Communications Act of 1934, as amended (``Act''), 47 U.S.C. 339(b)(1), directed the Commission to ``complete all actions necessary to prescribe regulations required by this section so that the regulations shall become effective within 1 year after'' enactment of the Satellite Home Viewer Improvement Act of 1999. The relevant provisions concern the application of the cable network non-duplication, syndicated program exclusivity, and sports blackout rules to satellite carriers' retransmission of nationally distributed superstations, and, with respect only to the cable sports blackout rules, to satellite retransmission of network stations. 92. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. We did not receive any comments in direct response to the IRFA. However, we received some comments requesting an exception to the rules analogous to the cable small system exception. As discussed in Sections V.H. and VI.D., we create an exception to the rules that will assist any small entities subject to these rules now or in the future. 93. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply. 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 proposed rules. The RFA defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small government jurisdiction.'' (5 U.S.C. 601(6)) In addition, the term ``small business concern'' has the same meaning as the term ``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 we adopt affect television station licensees and satellite carriers. 94. Television Stations: The rules and policies will apply to television broadcasting licensees, and potential licensees of television service. The SBA defines a television broadcasting station that has no more than $10.5 million in annual receipts as a small business. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Included in this industry are commercial, religious, educational, and other television stations. Also included are establishments primarily engaged in television broadcasting and which produce taped television program materials. Separate establishments primarily engaged in producing taped television program materials are classified under another SIC number. 95. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ``unless an agency after consultation with the Office of Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.'' 96. 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 estimates that follow 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. An additional element of the definition of ``small business'' is that the entity must be independently owned and operated. As discussed further below, we could not fully apply this criterion, and our estimates of small businesses to which rules may apply may be over-inclusive to this extent. The SBA's general size standards are developed taking into account these two statutory criteria. This does not preclude us from taking these factors into account in making our estimates of the numbers of small entities. 97. There were 1,509 television stations operating in the nation in 1992. That number has remained fairly constant as indicated by the approximately 1,616 operating television broadcasting stations in the nation as of September 1999. For 1992, the number of television stations that produced less than $10.0 million in revenue was 1,155 establishments. Thus, the new rules will affect approximately 1,616 television stations; approximately 77%, or 1,230 of those stations are considered small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-television affiliated companies. 98. Small Multiple Video Program Distributors (``MVPDs''): SBA has developed a definition of small entities for cable and other pay television services, which includes all such companies generating $11 million or less in annual receipts. This definition includes cable system operators, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau data from 1992, there were 1,758 total cable and other pay television services and 1,423 had less than $11 million in revenue. We address below services individually to provide a more precise estimate of small entities.

Page 68100

99. Direct Broadcast Satellite (``DBS''): There are four licensees of DBS services under Part 100 of the Commission's Rules. Three of those licensees are currently operational. Two of the licensees which are operational have annual revenues which may be in excess of the threshold for a small business. The Commission, however, does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. DBS service requires a great investment of capital for operation, and we acknowledge that there are entrants in this field that may not yet have generated $11 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated. 100. Home Satellite Delivery (``HSD''): The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt and distribution by MVPDs, of which 115 channels are scrambled and approximately 150 are unscrambled. HSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming package. Thus, HSD users include: (1) Viewers who subscribe to a packaged programming service, which affords them access to most of the same programming provided to subscribers of other MVPDs; (2) viewers who receive only non-subscription programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled packages of programming are most specifically intended for retail consumers, these are the services most relevant to this discussion. 101. According to the most recently available information, there are approximately 30 program packagers nationwide offering packages of scrambled programming to retail consumers. These program packagers provide subscriptions to approximately 2,314,900 subscribers nationwide. This is an average of about 77,163 subscribers per program package. This is substantially smaller than the 400,000 subscribers used in the commission's definition of a small MSO. Furthermore, because this is an average, it is possible that some program packagers may be smaller. 102. Description of Projected Reporting, Recordkeeping and other Compliance Requirements. This Report and Order establishes a series of rules implementing the Satellite Home Viewer Improvement Act of 1999. We have adopted a regulatory framework for substantive rules and procedures concerning network non-duplication, syndicated program exclusivity, and sports blackout that is substantially similar to, but separate from, these rules in the cable context. There are certain compliance requirements involving the satellite broadcast signal delivery process. Foremost is satellite carriers will have to delete certain programming from the retransmission of nationally distributed superstations to satellite subscribers within the protected zone of the television broadcast station or other rights holder asserting network non-duplication, syndicated program exclusivity or sports blackout rights. With respect to satellite retransmission of network stations, satellite carriers will be required to delete certain sports events from retransmission to satellite subscribers located within the rights holder's zone of protection. There will be costs relating to the time and effort involved in deleting these superstation signals and replacing the deleted programming. These costs will largely be borne by satellite carriers. We do not believe any satellite carrier currently subject to these rules is classified as a small entity. 103. In terms of recordkeeping, entities will likely have to keep a record of the deletion and blackout requests and entities may be required to maintain such information within their business environment. This information is for business purposes and not required to be provided to the Commission as a matter of course. 104. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. 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: (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. (5 U.S.C. 603(c).) 105. As indicated above, the Report and Order implements certain aspects of the Satellite Home Viewer Improvement Act of 1999. Among other things, as described in Sections II and IV, the new legislation requires the Commission to apply the cable network non-duplication rules, syndicated program exclusivity rules, and sports blackout rules to satellite carriers within one year of the November 29, 1999 enactment date. This legislation applies to both small and large entities. Because the Commission was instructed to pattern the satellite rules after the cable rules, the best alternative available to assist small entities was to create an exception for satellite carriers that have 1,000 or fewer subscribers within the zip codes areas that comprise the geographic zone protected by these rules. To the extent small entities come within this exception, they are exempt from these rules.

Ordering Clauses

106. Accordingly, It is ordered that, pursuant authority found in sections 4(i) 4(j), 303(r), and 339 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 339, the terms of this Report and Order and rules as set forth in the rule changes are adopted. The amendments shall become effective November 29, 2000, provided that this Report and Order (or a summary thereof) and the rules have been published in the Federal Register and OMB emergency approval of the information collections has been obtained on or before that date. 107. It is further ordered that the Consumer Information Bureau, Reference Information Center, Shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 73 and 76

Cable television, Satellite carriers, Television broadcast stations.

Federal Communications Commission. William F. Caton, Deputy Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends Parts 73 and 76 of Title 47 of the Code of Federal Regulations as follows:

PART 73--RADIO BROADCAST SERVICES

The authority citation for Part 73 continues to read as follows:

Page 68101

Authority: 47 U.S.C. 154, 303, 334 and 336.

1. Section 73.658(m)(1) is revised to read as follows:

Sec. 73.658 Affiliation agreements and network program practices; territorial exclusivity in non-network program arrangements.

* * * * * (m) Territorial exclusivity in non-network arrangements. (1) No television station shall enter into any contract, arrangement, or understanding, expressed or implied; with a non-network program producer, distributor, or supplier, or other person; which prevents or hinders another television station located in a community over 56.3 kilometers (35 miles) away, as determined by the reference points contained in Sec. 76.53 of this chapter, (if reference points for a community are not listed in Sec. 76.53, the location of the main post office will be used) from broadcasting any program purchased by the former station from such non-network program producer, distributor, supplier, or other person, except that a television station may secure exclusivity against a television station licensed to another designated community in a hyphenated market specified in the market listing as contained in Sec. 76.51 of this chapter for those 100 markets listed, and for markets not listed in Sec. 76.51 of this chapter, the listing as contained in the Nielsen Media Research DMA Rankings for the most recent year at the time that the exclusivity contract, arrangement or understanding is complete under practices of the industry. As used in this paragraph, the term ``community'' is defined as the community specified in the instrument of authorization as the location of the station. * * * * *

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

2. The authority citation for Part 76 is revised to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 325, 339, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

3. Section 76.5(ii) is revised to read as follows:

Sec. 76.5 Definitions

* * * * * (ii) A syndicated program is any program sold, licensed, distributed or offered to television station licensees in more than one market within the United States other than as network programming as defined in Sec. 76.5(m).

4. Section 76.51 is amended by revising the entries for paragraphs (a)(2) and (a)(28) to read as follows:

Sec. 76.51 Major television markets.

* * * * * (a) * * * (2) Los Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif. * * * * * (28) Tampa-St. Petersburg-Clearwater, Florida. * * * * *

Sec. 76.67 [Removed]

5. Remove Sec. 76.67.

6. Revise Part 76, subpart F to read as follows:

Subpart F--Network Non-duplication Protection, Syndicated Exclusivity and Sports Blackout

Sec.
76.92   Cable network non-duplication; extent of protection.
76.93   Parties entitled to network non-duplication protection.
76.94   Notification.
76.95   Exceptions.
76.101   Cable syndicated program exclusivity: extent of protection.
76.103   Parties entitled to syndicated exclusivity.
76.105   Notification.
76.106   Exceptions.
76.107   Exclusivity contracts.
76.108   Indemnification contracts.
76.109   Requirements for invocation of protection.
76.110   Substitutions.
76.111   Cable sports blackout.
76.120   Network non-duplication, syndicated exclusivity and sports
blackout for satellite carriers: Definitions.
76.122   Satellite network non-duplication.
76.123   Satellite syndicated program exclusivity.
76.124   Requirements for invocation of protection.
76.125   Indemnification contracts.
76.127   Satellite sports blackout.
76.128   Application of sports blackout rules.
76.130   Substitutions.

Sec. 76.92 Cable network non-duplication; extent of protection.

(a) Upon receiving notification pursuant to Sec. 76.94, a cable community unit located in whole or in part within the geographic zone for a network program, the network non-duplication rights to which are held by a commercial television station licensed by the Commission, shall not carry that program as broadcast by any other television signal, except as otherwise provided below. (b) For purposes of this section, the order of nonduplication priority of television signals carried by a community unit is as follows: (1) First, all television broadcast stations within whose specified zone the community of the community unit is located, in whole or in part; (2) Second, all smaller market television broadcast stations within whose secondary zone the community of the community unit is located, in whole or in part. (c) For purposes of this section, all noncommercial educational television broadcast stations licensed to a community located in whole or in part within a major television market as specified in Sec. 76.51 shall be treated in the same manner as a major market commercial television broadcast station, and all noncommercial educational television broadcast stations not licensed to a community located in whole or in part within a major television market shall be treated in the same manner as a smaller market television broadcast station. (d) Any community unit operating in a community to which a 100-watt or higher power translator is located within the predicted Grade B signal contour of the television broadcast station that the translator station retransmits, and which translator is carried by the community unit shall, upon request of such translator station licensee or permittee, delete the duplicating network programming of any television broadcast station whose reference point (See Sec. 76.53) is more than 88.5 km (55 miles) from the community of the community unit. (e) Any community unit which operates in a community located in whole or in part within the secondary zone of a smaller market television broadcast station is not required to delete the duplicating network programming of any major market television broadcast station whose reference point (See Sec. 76.53) is also within 88.5 km (55 miles) of the community of the community unit. (f) A community unit is not required to delete the duplicating network programming of any television broadcast station which is significantly viewed in the cable television community pursuant to Sec. 76.54. (g) A community unit is not required to delete the duplicating network programming of any qualified NCE television broadcast station that is carried in fulfillment of the cable television system's mandatory signal carriage obligations, pursuant to Sec. 76.56.

Note: With respect to network programming, the geographic zone within which the television station is entitled to enforce network non-duplication protection and priority of shall be that geographic area agreed upon between the network and the

Page 68102

television station. In no event shall such rights exceed the area within which the television station may acquire broadcast territorial exclusivity rights as defined in Sec. 73.658(m) of this Chapter, except that small market television stations shall be entitled to a secondary protection zone of 32.2 additional kilometers (20 additional miles). To the extent rights are obtained for any hyphenated market named in Sec. 76.51, such rights shall not exceed those permitted under Sec. 73.658(m) of this Chapter for each named community in that market.

Sec. 76.93 Parties entitled to network non-duplication protection.

Television broadcast station licensees shall be entitled to exercise non-duplication rights pursuant to Sec. 76.92 in accordance with the contractual provisions of the network-affiliate agreement.

Sec. 76.94 Notification.

(a) In order to exercise non-duplication rights pursuant to Sec. 76.92, television stations shall notify each cable television system operator of the non-duplication sought in accordance with the requirements of this section. Except as otherwise provided in paragraph (b) of this section, non-duplication protection notices shall include the following information: (1) The name and address of the party requesting non-duplication protection and the television broadcast station holding the non-duplication right; (2) The name of the program or series (including specific episodes where necessary) for which protection is sought; and (3) The dates on which protection is to begin and end. (b) Broadcasters entering into contracts providing for network non-duplication protection shall notify affected cable systems within 60 calendar days of the signing of such a contract. In the event the broadcaster is unable based on the information contained in the contract, to furnish all the information required by paragraph (a) of this section at that time, the broadcaster must provide modified notices that contain the following information: (1) The name of the network (or networks) which has (or have) extended non-duplication protection to the broadcaster; (2) The time periods by time of day (local time) and by network (if more than one) for each day of the week that the broadcaster will be broadcasting programs from that network (or networks) and for which non-duplication protection is requested; and (3) The duration and extent (e.g., simultaneous, same-day, seven-day, etc.) of the non-duplication protection which has been agreed upon by the network (or networks) and the broadcaster. (c) Except as otherwise provided in paragraph (d) of this section, a broadcaster shall be entitled to non-duplication protection beginning on the later of: (1) The date specified in its notice (as described in paragraphs (a) or (b) of this section, whichever is applicable) to the cable television system; or (2) The first day of the calendar week (Sunday through Saturday) that begins 60 days after the cable television system receives notice from the broadcaster. (d) A broadcaster shall provide the following information to the cable television system under the following circumstances: (1) In the event the protection specified in the notices described in paragraphs (a) or (b) of this section has been limited or ended prior to the time specified in the notice, or in the event a time period, as identified to the cable system in a notice pursuant to paragraph (b) of this section, for which a broadcaster has obtained protection is shifted to another time of day or another day (but not expanded), the broadcaster shall, as soon as possible, inform each cable television system operator that has previously received the notice of all changes from the original notice. Notice to be furnished ``as soon as possible'' under this paragraph shall be furnished by telephone, telegraph, facsimile, overnight mail or other similar expedient means. (2) In the event the protection specified in the modified notices described in paragraph (b) of this section has been expanded, the broadcaster shall, at least 60 calendar days prior to broadcast of a protected program entitled to such expanded protection, notify each cable system operator that has previously received notice of all changes from the original notice. (e) In determining which programs must be deleted from a television signal, a cable television system operator may rely on information from any of the following sources published or otherwise made available: (1) Newspapers or magazines of general circulation. (2) A television station whose programs may be subject to deletion. If a cable television system asks a television station for information about its program schedule, the television station shall answer the request: (i) Within ten business days following the television station's receipt of the request; or (ii) Sixty days before the program or programs mentioned in the request for information will be broadcast; whichever comes later. (3) The broadcaster requesting exclusivity. (f) A broadcaster exercising exclusivity pursuant to Sec. 76.92 shall provide to the cable system, upon request, an exact copy of those portions of the contracts, such portions to be signed by both the network and the broadcaster, setting forth in full the provisions pertinent to the duration, nature, and extent of the non-duplication terms concerning broadcast signal exhibition to which the parties have agreed.

Sec. 76.95 Exceptions.

(a) The provisions of Secs. 76.92 through 76.94 shall not apply to a cable system serving fewer than 1,000 subscribers. Within 60 days following the provision of service to 1,000 subscribers, the operator of each such system shall file a notice to that effect with the Commission, and serve a copy of that notice on every television station that would be entitled to exercise network non-duplication protection against it. (b) Network non-duplication protection need not be extended to a higher priority station for one hour following the scheduled time of completion of the broadcast of a live sports event by that station or by a lower priority station against which a cable community unit would otherwise be required to provide non-duplication protection following the scheduled time of completion.

Sec. 76.101 Cable syndicated program exclusivity: extent of protection.

Upon receiving notification pursuant to Sec. 76.105, a cable community unit located in whole or in part within the geographic zone for a syndicated program, the syndicated exclusivity rights to which are held by a commercial television station licensed by the Commission, shall not carry that program as broadcast by any other television signal, except as otherwise provided below.

Note: With respect to each syndicated program, the geographic zone within which the television station is entitled to enforce syndicated exclusivity rights shall be that geographic area agreed upon between the non-network program supplier, producer or distributor and the television station. In no event shall such zone exceed the area within which the television station has acquired broadcast territorial exclusivity rights as defined in Sec. 73.658(m) of this Chapter. To the extent rights are obtained for any hyphenated market named in Sec. 76.51, such rights shall not exceed those permitted under

Page 68103

Sec. 73.658(m) of this Chapter for each named community in that market.

Sec. 76.103 Parties entitled to syndicated exclusivity.

(a) Television broadcast station licensees shall be entitled to exercise exclusivity rights pursuant to Sec. 76.101 in accordance with the contractual provisions of their syndicated program license agreements, consistent with Sec. 76.109. (b) Distributors of syndicated programming shall be entitled to exercise exclusive rights pursuant to Sec. 76.101 for a period of one year from the initial broadcast syndication licensing of such programming anywhere in the United States; provided, however, that distributors shall not be entitled to exercise such rights in areas in which the programming has already been licensed.

Sec. 76.105 Notification.

(a) In order to exercise exclusivity rights pursuant to Sec. 76.101, distributors or television stations shall notify each cable television system operator of the exclusivity sought in accordance with the requirements of this section. Syndicated program exclusivity notices shall include the following information: (1) The name and address of the party requesting exclusivity and the television broadcast station or other party holding the exclusive right; (2) The name of the program or series (including specific episodes where necessary) for which exclusivity is sought; (3) The dates on which exclusivity is to begin and end. (b) Broadcasters entering into contracts on or after August 18, 1988, which contain syndicated exclusivity protection shall notify affected cable systems within sixty calendar days of the signing of such a contract. Broadcasters who have entered into contracts prior to August 18, 1988, and who comply with the requirements specified in Sec. 76.109 shall notify affected cable systems on or before June 19, 1989. A broadcaster shall be entitled to exclusivity protection beginning on the later of: (1) The date specified in its notice to the cable television system; or (2) The first day of the calendar week (Sunday through Saturday) that begins 60 days after the cable television system receives notice from the broadcaster; (c) In determining which programs must be deleted from a television broadcast signal, a cable television system operator may rely on information from any of the following sources published or otherwise made available. (1) Newspapers or magazines of general circulation; (2) A television station whose programs may be subject to deletion. If a cable television system asks a television station for information about its program schedule, the television station shall answer the request: (i) Within ten business days following the television station's receipt of the request; or (ii) Sixty days before the program or programs mentioned in the request for information will be broadcast; whichever comes later. (3) The distributor or television station requesting exclusivity. (d) In the event the exclusivity specified in paragraph (a) of this section has been limited or has ended prior to the time specified in the notice, the distributor or broadcaster who has supplied the original notice shall, as soon as possible, inform each cable television system operator that has previously received the notice of all changes from the original notice. In the event the original notice specified contingent dates on which exclusivity is to begin and/or end, the distributor or broadcaster shall, as soon as possible, notify the cable television system operator of the occurrence of the relevant contingency. Notice to be furnished ``as soon as possible'' under this paragraph shall be furnished by telephone, telegraph, facsimile, overnight mail or other similar expedient means.

Sec. 76.106 Exceptions.

(a) Notwithstanding the requirements of Secs. 76.101 through 76.105, a broadcast signal is not required to be deleted from a cable community unit when that cable community unit falls, in whole or in part, within that signal's grade B contour, or when the signal is significantly viewed pursuant to Sec. 76.54 in the cable community. (b) The provisions of Secs. 76.101 through 76.105 shall not apply to a cable system serving fewer than 1,000 subscribers. Within 60 days following the provision of service to 1,000 subscribers, the operator of each such system shall file a notice to that effect with the Commission, and serve a copy of that notice on every television station that would be entitled to exercise syndicated exclusivity protection against it.

Sec. 76.107 Exclusivity contracts.

A distributor or television station exercising exclusivity pursuant to Sec. 76.101 shall provide to the cable system, upon request, an exact copy of those portions of the exclusivity contracts, such portions to be signed by both the distributor and the television station, setting forth in full the provisions pertinent to the duration, nature, and extent of the exclusivity terms concerning broadcast signal exhibition to which the parties have agreed.

Sec. 76.108 Indemnification contracts.

No licensee shall enter into any contract to indemnify a cable system for liability resulting from failure to delete programming in accordance with the provisions of this subpart unless the licensee has a reasonable basis for concluding that such program deletion is not required by this subpart.

Sec. 76.109 Requirements for invocation of protection.

For a station licensee to be eligible to invoke the provisions of Sec. 76.101, it must have a contract or other written indicia that it holds syndicated exclusivity rights for the exhibition of the program in question. Contracts entered on or after August 18, 1988, must contain the following words: ``the licensee [or substitute name] shall, by the terms of this contract, be entitled to invoke the protection against duplication of programming imported under the Compulsory Copyright License, as provided in Sec. 76.101 of the FCC rules [or `as provided in the FCC's syndicated exclusivity rules'].'' Contracts entered into prior to August 18, 1988, must contain either the foregoing language or a clear and specific reference to the licensee's authority to exercise exclusivity rights as to the specific programming against cable television broadcast signal carriage by the cable system in question upon the contingency that the government reimposed syndicated exclusivity protection. In the absence of such a specific reference in contracts entered into prior to August 18, 1988, the provisions of these rules may be invoked only if the contract is amended to include the specific language referenced in this section or a specific written acknowledgment is obtained from the party from whom the broadcast exhibition rights were obtained that the existing contract was intended, or should now be construed by agreement of the parties, to include such rights. A general acknowledgment by a supplier of exhibition rights that specific contract language was intended to convey rights under these rules will be accepted with respect to all contracts containing that specific language. Nothing in this section shall be construed as a grant of

Page 68104

exclusive rights to a broadcaster where such rights are not agreed to by the parties.

Sec. 76.110 Substitutions.

Whenever, pursuant to the requirements of the syndicated exclusivity rules, a community unit is required to delete a television program on a broadcast signal that is permitted to be carried under the Commission's rules, such community unit may, consistent with these rules and the sports blackout rules at Sec. 76.111, substitute a program from any other television broadcast station. Programs substituted pursuant to this section may be carried to their completion.

Sec. 76.111 Cable sports blackout.

(a) No community unit located in whole or in part within the specified zone of a television broadcast station licensed to a community in which a sports event is taking place, shall, on request of the holder of the broadcast rights to that event, or its agent, carry the live television broadcast of that event if the event is not available live on a television broadcast station meeting the criteria specified in Sec. 76.128. For purposes of this section, if there is no television station licensed to the community in which the sports event is taking place, the applicable specified zone shall be that of the television station licensed to the community with which the sports event or team is identified, or, if the event or local team is not identified with any particular community, the nearest community to which a television station is licensed. (b) Notification of the programming to be deleted pursuant to this section shall include the following information: (1) As to programming to be deleted from television broadcast signals regularly carried by the community unit: (i) The name and address of the party requesting the program deletion; (ii) The date, time and expected duration of the sports event the television broadcast of which is to be deleted; (iii) The call letters of the television broadcast station(s) from which the deletion is to be made. (2) As to programming to be deleted from television broadcast signals not regularly carried by the community unit: (i) The name and address of the party requesting the program deletion; (ii) The date, time and expected duration of the sports event the television broadcast of which is to be deleted. (c) Notifications given pursuant to this section must be received, as to regularly scheduled events, no later than the Monday preceding the calendar week (Sunday through Saturday) during which the program deletion is to be made. Notifications as to events not regularly scheduled and revisions of notices previously submitted, must be received within twenty-four (24) hours after the time of the telecast to be deleted is known, but in any event no later than twenty-four (24) hours from the time the subject telecast is to take place. (d) Whenever, pursuant to this section, a community unit is required to delete a television program on a signal regularly carried by the community unit, such community unit may, consistent with the rules contained in subpart F of this part, substitute a program from any other television broadcast station. A program substituted may be carried to its completion, and the community unit need not return to its regularly carried signal until it can do so without interrupting a program already in progress. (e) The provisions of this section shall not be deemed to require the deletion of any portion of a television signal which a community unit was lawfully carrying prior to March 31, 1972. (f) The provisions of this section shall not apply to any community unit having fewer than 1,000 subscribers.

Sec. 76.120 Network non-duplication protection, syndicated exclusivity and sports blackout rules for satellite carriers: Definitions.

For purposes of Secs. 76.122-76.130, the following definitions apply: (a) Satellite carrier. The term ``satellite carrier'' means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service under part 25 of title 47 of the Code of Federal Regulations or the Direct Broadcast Satellite Service under part 100 of title 47 of the Code of Federal Regulations, to establish and operate a channel of communications for point-to-multipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934, other than for private home viewing. (b) Nationally distributed superstation. The term ``nationally distributed superstation'' means a television broadcast station, licensed by the Commission, that-- (1) Is not owned or operated by or affiliated with a television network that, as of January 1, 1995, offered interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more States; (2) On May 1, 1991, was retransmitted by a satellite carrier and was not a network station at that time; and (3) Was, as of July 1, 1998, retransmitted by a satellite carrier under the statutory license of Section 119 of title 17, United States Code. (c) Television network. The term ``television network'' means a television network in the United States which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated broadcast stations in 10 or more States. (d) Network station. The term ``network station'' means-- (1) A television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the United States which offer an interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or (2) A noncommercial educational broadcast station (as defined in Section 397 of the Communications Act of 1934); except that the term does not include the signal of the Alaska Rural Communications Service, or any successor entity to that service. (e) Zone of protection. The term ``zone of protection'' means-- (1) With respect to network non-duplication, the zone of protection within which the television station is entitled to enforce network non-duplication protection shall be that geographic area agreed upon between the network and the television station. In no event shall such rights exceed the area within which the television station may acquire broadcast territorial exclusivity rights as defined in Sec. 73.658(m) of this Chapter, except that small market television stations shall be entitled to a secondary protection zone of 32.2 additional kilometers (20 additional miles). To the extent rights are obtained for any hyphenated market named in Sec. 76.51, such rights shall not exceed those permitted under Sec. 73.658(m) of this Chapter for each named community in that market. (2) With respect to each syndicated program, the zone of protection within

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which the television station is entitled to enforce syndicated exclusivity rights shall be that geographic area agreed upon between the non-network program supplier, producer or distributor and the television station. In no event shall such zone exceed the area within which the television station has acquired broadcast territorial exclusivity rights as defined in Sec. 73.658(m) of this Chapter. To the extent rights are obtained for any hyphenated market named in Sec. 76.51, such rights shall not exceed those permitted under Sec. 73.658(m) of this chapter for each named community in that market. (3) With respect to sports blackout, the zone of protection is the ``specified zone'' of a television broadcast station, as defined in Sec. 76.5(e). If there is no television station licensed to the community in which the sports event is taking place, the applicable specified zone shall be that of the television station licensed to the community with which the sports event or team is identified, or, if the event or local team is not identified with any particular community, the nearest community to which a television station is licensed.

Sec. 76.122 Satellite network non-duplication.

(a) Upon receiving notification pursuant to paragraph (c) of this section, a satellite carrier shall not deliver, to subscribers within zip code areas located in whole or in part within the zone of protection of a commercial television station licensed by the Commission, a program carried on a nationally distributed superstation when the network non-duplication rights to such program are held by the commercial television station providing notice, except as provided in paragraphs (j), (k) or (l) of this section. (b) Television broadcast station licensees shall be entitled to exercise non-duplication rights pursuant to Sec. 76.122 in accordance with the contractual provisions of the network-affiliate agreement, and as provided in Sec. 76.124. (c) In order to exercise non-duplication rights pursuant to Sec. 76.122, television stations shall notify each satellite carrier of the non-duplication sought in accordance with the requirements of this section. Non-duplication protection notices shall include the following information: (1) The name and address of the party requesting non-duplication protection and the television broadcast station holding the non-duplication right; (2) The name of the program or series (including specific episodes where necessary) for which protection is sought; (3) The dates on which protection is to begin and end; (4) The name of the network (or networks) which has (or have) extended non-duplication protection to the broadcaster; (5) The time periods by time of day (local time) and by network (if more than one) for each day of the week that the broadcaster will be broadcasting programs from that network (or networks) and for which non-duplication protection is requested; (6) The duration and extent (e.g., simultaneous, same-day, seven-day, etc.) of the non-duplication protection which has been agreed upon by the network (or networks) and the broadcaster; and (7) A list of the U.S. postal zip code(s) that encompass the zone of protection under these rules. (d) Broadcasters entering into contracts providing for network non-duplication protection shall notify affected satellite carriers within 60 calendar days of the signing of such a contract; provided, however, that for such contracts signed before November 29, 2000, the broadcaster may provide notice on or before January 31, 2001, or with respect to pre-November 29, 2000 contracts that require amendment in order to invoke the provisions of these rules, notification may be given within sixty calendar days of the signing of such amendment. (e) Except as otherwise provided in this section, a broadcaster shall be entitled to non-duplication protection beginning on the later of: (1) The date specified in its notice to the satellite carrier; or (2) The first day of the calendar week (Sunday through Saturday) that begins 60 days after the satellite carrier receives notice from the broadcaster; Provided, however, that with respect to notifications given pursuant to this section prior to June 1, 2001, a satellite carrier is not required to provide non-duplication protection until 120 days after the satellite carrier receives such notification. (f) A broadcaster shall provide the following information to the satellite carrier under the following circumstances: (1) In the event the protection specified in the notices described in paragraph (c) of this section has been limited or ended prior to the time specified in the notice, or in the event a time period, as identified to the satellite carrier in a notice pursuant to paragraph (c) of this section, for which a broadcaster has obtained protection is shifted to another time of day or another day (but not expanded), the broadcaster shall, as soon as possible, inform each satellite carrier that has previously received the notice of all changes from the original notice. Notice to be furnished ``as soon as possible'' under this paragraph shall be furnished by telephone, telegraph, facsimile, e-mail, overnight mail or other similar expedient means. (2) In the event the protection specified in the notices described in paragraph (c) of this section has been expanded, the broadcaster shall, at least 60 calendar days prior to broadcast of a protected program entitled to such expanded protection, notify each satellite carrier that has previously received notice of all changes from the original notice. (g) In determining which programs must be deleted from a television signal, a satellite carrier may rely on information from newspapers or magazines of general circulation, the broadcaster requesting exclusivity protection, or the nationally distributed superstation. (h) If a satellite carrier asks a nationally distributed superstation for information about its program schedule, the nationally distributed superstation shall answer the request: (i) Within ten business days following its receipt of the request; or (ii) Sixty days before the program or programs mentioned in the request for information will be broadcast, whichever comes later. (i) A broadcaster exercising exclusivity pursuant to this section shall provide to the satellite carrier, upon request, an exact copy of those portions of the contracts, such portions to be signed by both the network and the broadcaster, setting forth in full the provisions pertinent to the duration, nature, and extent of the non-duplication terms concerning broadcast signal exhibition to which the parties have agreed. (j) A satellite carrier is not required to delete the duplicating programming of any nationally distributed superstation that is carried by the satellite carrier as a local station with the station's retransmission consent pursuant to Sec. 76.64 (i) Within the station's local market; (ii) If the station is ``significantly viewed,'' pursuant to Sec. 76.54, in zip code areas included within the zone of protection; or (iii) If the zone of protection falls, in whole or in part, within that signal's grade B contour. (k) A satellite carrier is not required to delete the duplicating programming of any nationally distributed superstation from an individual

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subscriber who is located outside the zone of protection, notwithstanding that the subscriber lives within a zip code provided by the broadcaster pursuant to paragraph (c) of this section. (l) A satellite carrier is not required to delete programming if it has fewer than 1,000 subscribers within the relevant protected zone who subscribe to the nationally distributed superstation carrying the programming for which deletion is requested pursuant to paragraph (c) of this section.

Sec. 76.123 Satellite syndicated program exclusivity.

(a) Upon receiving notification pursuant to paragraph (d) of this section, a satellite carrier shall not deliver, to subscribers located within zip code areas in whole or in part within the zone of protection of a commercial television station licensed by the Commission, a program carried on a nationally distributed superstation when the syndicated program exclusivity rights to such program are held by the commercial television station providing notice, except as provided in paragraphs (k), (l) and (m) of this section. (b) Television broadcast station licensees shall be entitled to exercise exclusivity rights pursuant to this Section in accordance with the contractual provisions of their syndicated program license agreements, consistent with Sec. 76.124. (c) Distributors of syndicated programming shall be entitled to exercise exclusive rights pursuant to this Section for a period of one year from the initial broadcast syndication licensing of such programming anywhere in the United States; provided, however, that distributors shall not be entitled to exercise such rights in areas in which the programming has already been licensed. (d) In order to exercise exclusivity rights pursuant to this Section, distributors of syndicated programming or television broadcast stations shall notify each satellite carrier of the exclusivity sought in accordance with the requirements of this paragraph. Syndicated program exclusivity notices shall include the following information: (1) The name and address of the party requesting exclusivity and the television broadcast station or other party holding the exclusive right; (2)The name of the program or series (including specific episodes where necessary) for which exclusivity is sought; (3)The dates on which exclusivity is to begin and end; and (4) A list of the U.S. postal zip code(s) that encompass the zone of protection under these rules. (e) A distributor or television station exercising exclusivity pursuant to this Section shall provide to the satellite carrier, upon request, an exact copy of those portions of the exclusivity contracts, such portions to be signed by both the distributor and the television station, setting forth in full the provisions pertinent to the duration, nature, and extent of the exclusivity terms concerning broadcast signal exhibition to which the parties have agreed. (f) Television broadcast stations or distributors entering into contracts on or after November 29, 2000, which contain syndicated exclusivity protection with respect to satellite retransmission of programming, shall notify affected satellite carriers within sixty calendar days of the signing of such a contract. Television broadcast stations or distributors who have entered into contracts prior to November 29, 2000, and who comply with the requirements specified in Sec. 76.124 shall notify affected satellite carriers on or before January 31, 2001; provided, however, that with respect to pre-November 29, 2000 contracts that require amendment in order to invoke the provisions of these rules, notification may be given within sixty calendar days of the signing of such amendment. (g) Except as otherwise provided in this section, a television broadcast station shall be entitled to exclusivity protection beginning on the later of: (1) The date specified in its notice to the satellite carrier; or (2) The first day of the calendar week (Sunday through Saturday) that begins 60 days after the satellite carrier receives notice from the broadcaster. Provided, however, that with respect to notifications given pursuant to this section prior to June 1, 2001, a satellite carrier is not required to provide syndicated exclusivity protection until 120 days after the satellite carrier receives such notification. (h) In determining which programs must be deleted from a television broadcast signal, a satellite carrier may rely on information from the distributor or television broadcast station requesting exclusivity; newspapers or magazines of general circulation; or the nationally distributed superstation whose programs may be subject to deletion. (i) If a satellite carrier asks a nationally distributed superstation for information about its program schedule, the nationally distributed superstation shall answer the request: (1) Within ten business days following the its receipt of the request; or (2) Sixty days before the program or programs mentioned in the request for information will be broadcast; whichever comes later. (j) In the event the exclusivity specified in paragraph (a) of this section has been limited or has ended prior to the time specified in the notice, the distributor or broadcaster who has supplied the original notice shall, as soon as possible, inform each satellite carrier that has previously received the notice of all changes from the original notice. In the event the original notice specified contingent dates on which exclusivity is to begin and/or end, the distributor or broadcaster shall, as soon as possible, notify the satellite carrier of the occurrence of the relevant contingency. Notice to be furnished ``as soon as possible'' under this Subsection shall be furnished by telephone, telegraph, facsimile, e-mail, overnight mail or other similar expedient means. (k) A satellite carrier is not required to delete the programming of any nationally distributed superstation that is carried by the satellite carrier as a local station with the station's retransmission consent pursuant to Sec. 76.64: (1) Within the station's local market; (2) If the station is ``significantly viewed,'' pursuant to Sec. 76.54, in zip code areas included within the zone of protection; or (3) If the zone of protection falls, in whole or in part, within that signal's grade B contour. (l) A satellite carrier is not required to delete the duplicating programming of any nationally distributed superstation from an individual subscriber who is located outside the zone of protection, notwithstanding that the subscriber lives within a zip code provided by the broadcaster pursuant to paragraph (d) of this section. (m) A satellite carrier is not required to delete programming if it has fewer than 1,000 subscribers within the relevant protected zone who subscribe to the nationally distributed superstation carrying the programming for which deletion is requested pursuant to paragraph (d) of this section.

Sec. 76.124 Requirements for invocation of protection.

For a television broadcast station licensee or distributor of syndicated programming to be eligible to invoke the provisions of Sec. 76.122 or Sec. 76.123 of this subpart, it must have a contract or other written indicia that it holds network program non-duplication or syndicated

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exclusivity rights for the exhibition of the program in question. Contracts entered on or after November 29, 2000, must contain the following words: ``the licensee [or substitute name] shall, by the terms of this contract, be entitled to invoke the protection against duplication of programming imported under the Statutory Copyright License, as provided in Sec. 76.122 or Sec. 76.123 of the FCC rules [or 'as provided in the FCC's satellite network non-duplication or syndicated exclusivity rules'].'' Contracts entered into prior to November 29, 2000, must contain the foregoing language plus a clear and specific reference to the licensee's authority to exercise exclusivity rights as to the specific programming against signal carriage by the satellite carrier in question, or by satellite carriage in general in a protected, geographic or specified zone. In the absence of such a specific reference in contracts entered into prior to November 29, 2000, the provisions of these rules may be invoked only if the contract is amended to include the specific language referenced in this section or a specific written acknowledgment is obtained from the party from whom the broadcast exhibition rights were obtained that the existing contract was intended, or should now be construed by agreement of the parties, to include such rights. A general acknowledgment by a supplier of exhibition rights that specific contract language was intended to convey rights under these rules will be accepted with respect to all contracts containing that specific language. Nothing in this section shall be construed as a grant of exclusive rights to a broadcaster where such rights are not agreed to by the parties.

Sec. 76.125 Indemnification contracts.

No television broadcast station licensee shall enter into any contract to indemnify a satellite carrier for liability resulting from failure to delete programming in accordance with the provisions of this Subpart unless the licensee has a reasonable basis for concluding that such program deletion is not required by this Subpart.

Sec. 76.127 Satellite sports blackout.

(a) Upon the request of the holder of the broadcast rights to a sports event, or its agent, no satellite carrier shall retransmit to subscribers within the area comprising the specified zone a ``nationally distributed superstation'' or ``network station'' carrying the live television broadcast of a sports event if the event is not available live on a television broadcast station meeting the criteria specified in Sec. 76.128. For purposes of this section, if there is no television station licensed to the community in which the sports event is taking place, the applicable specified zone shall be that of the television station licensed to the community with which the sports event or team is identified, or, if the event or local team is not identified with any particular community, the nearest community to which a television station is licensed. (b) Notification of the programming to be deleted pursuant to this Section shall include the following information: (1) The name and address of the party requesting the program deletion; (2) The date, time and expected duration of the sports event the television broadcast of which is to be deleted; (3) The call letters of the nationally distributed superstation or network station(s) from which the deletion is to be made; (4) The U.S. postal zip codes that encompass the specified zone. (c) Notifications given pursuant to this section must be received by the satellite carrier, as to regularly scheduled events, within forty-eight (48) hours after the time of the telecast to be deleted is known, and no later than the Monday preceding the calendar week (Sunday through Saturday) during which the program deletion is to be made. Notifications as to events not regularly scheduled and revisions of notices previously submitted, must be received within twenty-four (24) hours after the time of the telecast to be deleted is known, but in any event no later than twenty-four (24) hours from the time the subject telecast is to take place. (d) A satellite carrier is not required to delete a sports event from an individual subscriber who is located outside the specified zone, notwithstanding that the subscriber lives within a zip code provided by the holder of the broadcast rights pursuant to paragraph (b) of this section. (e) A satellite carrier is not required to delete a sports event if it has fewer than 1,000 subscribers within the relevant specified zone who subscribe to the nationally distributed superstation or network station carrying the sports event for which deletion is requested pursuant to paragraph (b) of this section. (f) Notwithstanding paragraph (c) of this section, for sports events to be deleted on or before March 31, 2001, notification must be received by satellite carriers at least 60 full days prior to the day the telecast is to be deleted.