Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Implementation of Section 340 of the Communications Act; Report and Order

[Federal Register Volume 70, Number 247 (Tuesday, December 27, 2005)]
[Rules and Regulations]
[Pages 76504-76624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24080]

Page 76503

Part II

Federal Communications Commission

47 CFR Part 76

Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Implementation of Section 340 of the Communications Act; Report and Order; Final Rule

Federal Register / Vol. 70 , No. 247 / Tuesday, December 27, 2005 / Rules and Regulations

Page 76504

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 05-49; FCC 05-187]

Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Implementation of Section 340 of the Communications Act; Report and Order

AGENCY: Federal Communications Commission.

ACTION: Final rule.

SUMMARY: In this document, the Commission adopts final rules implementing section 202 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (``SHVERA''), which creates Section 340 of the Communications Act (``Act''), and amends the copyright laws in order to provide satellite carriers with the authority to offer Commission-determined ``significantly-viewed'' signals of out-of-market broadcast stations to subscribers. This document satisfies the statutory mandate to adopt rules for satellite carriage of significantly viewed signals by December 8, 2005.

DATES: Effective January 26, 2006.

FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Evan Baranoff, [email protected] of the Media Bureau, Policy Division, (202) 418-2120. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams, Federal Communications Commission, 445 12th St., SW., Room 1-C823, Washington, DC 20554, or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's Report and Order, FCC 05-187, adopted on November 2, 2005 and released on November 3, 2005. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to [email protected] or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Paperwork Reduction Act Analysis

This Report and Order contains modified information collection requirements, which were proposed in the NPRM, 70 FR 11314 (March 8, 2005), and are subject to the Paperwork Reduction Act of 1995 (``PRA''), Public Law 104-13, 109 Stat 163 (1995). These information collection requirements were submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA and approved by OMB on May 25, 2005. In addition, the general public and other Federal agencies were invited to comment on these information collection requirements in the NPRM. We further note that pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought specific comment on how the Commission might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.'' We received no comments concerning these information collection requirements. On June 16, 2005, the Commission announced that it had obtained OMB approval for these information collection requirements, encompassed by OMB Control Nos. 3060-0311, 3060-0888, and 3060-0960. This Report and Order adopts the following information collection requirements, as proposed in the NPRM.

OMB Control Number: 3060-0311. OMB Approval Date: 05/25/05. OMB Expiration Date: 05/31/08. Title: 47 CFR 76.54, Significantly Viewed Signals; Method to be Followed for Special Showings. Form Number: Not applicable. Type of Review: Revision of a currently approved collection. Respondents: Business or other for-profit entities. Number of Respondents: 500. Frequency of Response: On occasion reporting requirement; Third party disclosure requirement. Estimated Time Per Response: 1-15 hours (average). Total Annual Burden: 20,610 hours. Total Annual Costs: $200,000. Privacy Impact Assessment: No impact(s). Needs and Uses: 47 CFR 76.54(b) provides for cable operators and broadcast stations seeking cable carriage of ``significantly viewed'' signals to use the Sec. 76.7 petition process to demonstrate ``significantly viewed'' status on a community basis by independent professional audience surveys. The rule changes require satellite carriers or broadcast stations seeking satellite carriage of ``significantly viewed'' signals to use the same petition process now in place for cable operators, as required by 47 CFR 76.5, 76.7 and 76.54 of the FCC's rules. 47 CFR 76.54(c) is used to notify interested parties, including licensees or permittees of television broadcast stations, about independent professional audience surveys that are being conducted by an organization to demonstrate that a particular broadcast station is eligible for significantly viewed status under the Commission's rules. The notifications provide interested parties with an opportunity to review survey methodologies and file objections. The existing notification requirement in Sec. 76.54(c) is retained, however, the rule changes will increase the potential number of parties that would file such notifications. 47 CFR 76.54(d) provides for cable operators and broadcast stations seeking cable carriage of ``significantly viewed'' signals to use the Sec. 76.7 petition process to demonstrate ``significantly viewed'' status. The rule changes will expand use of the Sec. 76.7 petition process to include petitions filed by satellite carriers or broadcast stations seeking satellite carriage of ``significantly viewed'' signals. 47 CFR 76.54(e) and (f) are additions to the rule. These rules will be used to notify television broadcast stations about the retransmission of significantly viewed signals by a satellite carrier into these stations' local market.

OMB Control Number: 3060-0888. OMB Approval Date: 05/25/05. OMB Expiration Date: 05/31/08. Title: Part 76, Multichannel Video and Cable Television Service; Pleading and Complaint Rules; 47 CFR 76.7 Petition Procedures. Form Number: Not applicable. Type of Review: Revision of a currently approved collection. Respondents: Business or other for-profit entities. Number of Respondents: 500. Frequency of Response: On occasion reporting requirement; Third party disclosure requirement. Estimated Time Per Response: 4-60 hours (average). Total Annual Burden: 16,000 hours. Total Annual Costs: $200,000. Privacy Impact Assessment: No impact(s).

Page 76505

Needs and Uses: 47 CFR 76.7 is used to make determinations on petitions and complaints filed with the Commission. The rule is used for numerous types of petitions and special relief petitions, including general petitions seeking special relief, waivers, enforcement, show cause, forfeiture and declaratory ruling procedures. The rule changes will expand use of the Sec. 76.7 petition process to include the filing of complaints under the section 340 of the Act enforcement provisions. Thus, the rule changes will expand the potential number of parties and situations that may require the filing of Sec. 76.7 petitions.

OMB Control Number: 3060-0960. OMB Approval Date: 05/25/05. OMB Expiration Date: 05/31/08. Title: 47 CFR 76.122, Satellite Network Non-duplication Protection Rules; 47 CFR 76.123, Satellite Syndicated Program Exclusivity Rules; 47 CFR 76.124, Requirements for Invocation of Non-duplication and Syndicated Exclusivity Protection; 47 CFR 76.127, Satellite Sports Blackout Rules. Form Number: Not applicable. Type of Review: Revision of a currently approved collection. Respondents: Business or other for-profit entities. Number of Respondents: 1,428. Frequency of Response: On occasion reporting requirement; Third party disclosure requirement. Estimated Time Per Response: 0.5-1 hour (average). Total Annual Burden: 12,402 hours. Total Annual Costs: $0. Privacy Impact Assessment: No impact(s). Needs and Uses: 47 CFR 76.122, 76.123, 76.124 and 76.127 are used to protect exclusive contract rights negotiated between broadcasters, distributors, and rights holders for the transmission of network, syndicated, and sports programming in the broadcasters' recognized market areas. The rule changes to Sec. Sec. 76.122 and 76.123 will implement statutory requirements to provide new rights for in-market stations to assert nonduplication and exclusivity rights, potentially increasing the number of filings pursuant to these rules. No changes to Sec. Sec. 76.124 and 76.127 are made.

Summary of the Report and Order

I. Introduction

1. With this Report and Order (``R&O''), we adopt rules to implement section 202 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (``SHVERA''), Public Law 108-447, sec. 202, 118 Stat 2809, 3393 (2004) (codified at 47 U.S.C. 340). (The SHVERA was enacted on December 8, 2004 as title IX of the ``Consolidated Appropriations Act, 2005.'' This proceeding to implement section 202 of the SHVERA (entitled ``Significantly Viewed Signals Permitted To Be Carried'') is one of many Commission proceedings required to implement the SHVERA. The other proceedings are being undertaken and should be largely completed by the end of this year. (See sections 202, 204, 205, 207, 208, 209 and 210 of the SHVERA; see also Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Reciprocal Bargaining Obligation, MB Docket No. 05-89, Report and Order, FCC 05-119 (rel. Jun. 7, 2005) (``Reciprocal Bargaining Order'') (adopting rules to implement section 207 of the SHVERA and impose a reciprocal good faith retransmission consent bargaining obligation on multichannel video programming distributors); Implementation of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 to Amend Section 338 of the Communications Act, MB Docket No. 05- 181, FCC 05-159 (rel. Aug. 23, 2005) (implementing section 210 of the SHVERA and requiring satellite carriers to carry both the analog and digital signals of television broadcast stations in local markets in noncontiguous states); Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Procedural Rules, 70 FR 21669-01 (April 27, 2005) (``Procedural Rules Order'') (adopting procedural rules required by sections 202, 205, and 209 of the SHVERA); Public Notice, ``Media Bureau Seeks Comment For Inquiry Required By the on Rules Affecting Competition In the Television Marketplace,'' MB Docket No. 05-28, 70 FR 11314-01 (March 8, 2005) (opening inquiry required by section 208 of the SHVERA concerning the impact of certain rules and statutory provisions on competition in the television marketplace)). Section 202 of the SHVERA created section 340 of the Communications Act of 1934, as amended (``Communications Act'' or ``Act''), which provides satellite carriers with the authority to offer Commission-determined ``significantly viewed'' signals of out-of-market (or ``distant'') broadcast stations to subscribers. Within 60 days of enactment, the SHVERA required the Commission to (1) publish and maintain a list of stations eligible for ``significantly viewed'' status and the related communities (as determined by the Commission) (see 47 U.S.C. 340(c)(1)(A)(i)), and (2) commence a rulemaking proceeding to implement section 340, thus enabling satellite carriage of such ``significantly viewed'' signals (47 U.S.C. 340(c)(1)(A)(ii)). These mandates were satisfied by the Commission's Notice of Proposed Rulemaking (``NPRM'') in this proceeding) (See Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004, 70 FR 11314 (Mar. 8, 2005) (``NPRM'')). We received 49 comments (from 46 commenters) and six replies in response to our NPRM. With this R&O, we satisfy the SHVERA's mandate that the Commission adopt rules implementing section 340 within one year of the statute's enactment (47 U.S.C. 340(c)(1)(B)). We have already adopted some rules to implement new section 340(h). 2. With the SHVERA, Congress took another step toward ``moderniz[ing] satellite television policy and enhanc[ing] competition between satellite and cable operators. There was no final Report issued to accompany the bill as it was enacted. (See House Bill, H.R. 4818, 108th Cong. (2004) (enacted)). Therefore, we look to the House Commerce Committee Report accompanying the House Bill, H.R. 4501, for the relevant legislative history for section 202 of the SHVERA. Although certain changes were made to H.R. 4501 before it was enacted, the House Commerce Committee Report language remains relevant with respect to those provisions such as section 202 that were unchanged. Also relevant in terms of the SHVERA legislative history, particularly as it relates to the changes in the copyright laws in 17 U.S.C. 119, is the House Judiciary Committee Report dated September 7, 2004, accompanying House Bill, H.R. 4518, 108th Cong. (2004), H.R. Rep. No. 108-660 (2004) (``House Judiciary Committee Report''). Finally, also relevant are certain remarks made in ``floor statements'' by Rep. Joe Barton (Chairman, House Energy and Commerce Committee) and Rep. Fred Upton, (Chairman, House Subcommittee on Telecommunications and the Internet) regarding H.R. 4518, 108th Cong. (2004). H.R. 4518 was amended to combine its copyright provisions with the Communications Act provisions of H.R. 4501 pursuant to a compromise between the House Energy and Commerce Committee and the House Judiciary Committee. (See The Honorable Joe Barton, Chairman, House Energy and Commerce Committee, ``Floor Statement'' (dated Oct. 6, 2004)

Page 76506

to H.R. 4518 (The Satellite Home Viewer Extension and Reauthorization Act of 2004) (``Barton Floor Statement''); The Honorable Fred Upton, Chairman, House Subcommittee on Telecommunications and the Internet, ``Floor Statement'' (dated Oct. 6, 2004) to H.R. 4518 (The Satellite Home Viewer Extension and Reauthorization Act of 2004) (``Upton Floor Statement''). The SHVERA adopted for satellite carriers and subscribers the concept of ``significantly viewed'' signals, which has applied in the cable context for more than 30 years. In 1972, the Commission adopted the concept of ``significantly viewed'' signals to differentiate between otherwise out-of-market television stations ``that have sufficient audience to be considered local and those that do not;'' see Cable Television Report and Order, 36 FCC 2d 143, 174, para. 83 (1972) (``1972 R&O''). The Commission concluded at that time that it would not be reasonable if choices on cable were more limited than choices over the air, and gave cable carriage rights to out-of-market stations in communities where they had significant over-the-air (non-cable) viewing.\1\ At the time the Commission adopted the significantly viewed rules, the cable television carriage rules were generally based on mileage zones from the relevant stations. A television station was generally considered ``local'' for cable carriage purposes if the relevant community served was within 35 miles of the station's city of license or within its Grade B contour but not within the 35 mile zone of another market. Cable system carriage of significantly viewed stations, however, was based on audience viewership levels in the relevant communities rather than by strict mileage zones. This afforded significantly viewed stations carriage when they otherwise would have been considered distant stations. (See 1972 R&O, 36 FCC 2d 143; Memorandum Opinion and Order on Reconsideration of the Cable Television Report and Order, 36 FCC 2d 326 (1972) (``1972 Recon Order''); 47 CFR 76.5(i) (defining ``significantly viewed'' as ``Viewed in other than cable television households as follows: (1) For a full or partial network station--a share of viewing hours of at least 3 percent (total week hours), and a net weekly circulation of at least 25 percent; and (2) for an independent station--a share of viewing hours of at least 2 percent (total week hours), and a net weekly circulation of at least 5 percent''); 47 CFR 76.54). 3. The copyright provisions that apply to cable systems have recognized the Commission's designation of stations as ``significantly viewed'' and treated them, for copyright purposes, as ``local,'' and therefore subject to reduced copyright payment obligations. (See 17 U.S.C. 111(a), (c), and (f)). The copyright provisions governing satellite carriers did not, however, provide a statutory copyright license for significantly viewed signals, and such signals were not, as a practical matter, generally available via satellite distribution outside of their Designated Market Areas (``DMAs''). (See 17 U.S.C. 119 (statutory copyright license for satellite carriage of ``distant'' network stations, limited to ``unserved households'') and 17 U.S.C. 122 (statutory copyright license for satellite carriage of ``local'' stations, defined as stations and subscribers in the same Designated Market Area)). Recognizing that the reach of a station's over-the-air signal is not constrained by the boundary of a DMA, the SHVERA allowed a satellite carrier to treat a signal as ``local'' in a community where such signal is ``significantly viewed'' by consumers in that community. A DMA generally identifies a television station's ``local market.'' Section 340(i)(1), as established by the SHVERA, defined the term ``local market'' using the definition contained in 17 U.S.C. 122(j)(2) (``The term `local market', in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a station is located, and--(i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area are within the same local market; and (ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station.'' In this way, the statutory provisions governing satellite carriage of broadcast stations move closer to the provisions that have long governed cable carriage.

II. Summary

4. The following are the key rule changes and conclusions adopted by this R&O. We adopt the Significantly Viewed List (``SV List'') published in the NPRM as the final SV List, changed only to correct errors appropriately demonstrated by commenters. The SV List will be published as Appendix C to the Report and Order. Moreover, this SV List will be made available to the public on our Web site, and we will update this list within 10 business days if it is modified in the future. [IV.A.1.] We will apply Sec. 76.54 of our rules to satellite carriers. Revised Sec. 76.54 will now reference satellite carriers and the new SV List, but will not alter the procedures as in effect on April 15, 1976. Thus, we now require satellite carriers or broadcast stations seeking significantly viewed status to follow the same petition process in place for cable operators, as required by Sec. Sec. 76.5, 76.7 and 76.54 of our rules. [IV.A.3.] With respect to the application of the Commission's network non-duplication and syndicated exclusivity rules to the carriage of significantly viewed stations, we implement the SHVERA provision to create a limited right for a station or distributor to assert exclusivity with respect to a station carried by a satellite carrier as significantly viewed; allow that significantly viewed station to assert the significantly viewed exception, just as a station would with respect to cable carriage; and allow the station or distributor asserting exclusivity to petition us for a waiver from the exception. Under this rule, stations are not removed from the SV List, but rather blackout deletions may be imposed. [IV.A.5.] A satellite carrier may create a new community for purposes of the SV List by reference to an existing community as a separate and distinct community or municipal entity (e.g., political jurisdiction, incorporated city or town); however, in the absence of a separate and distinct community or municipal entity (e.g., an unincorporated area), a satellite community may be defined by one or more adjacent five-digit zip code areas. [IV.A.6.] We find that sections 340(b)(1) and (2) require that a subscriber must receive a specific local network station as part of local-into-local service in order to be eligible to receive a significantly viewed station that is affiliated with the same network as the local station, subject to the statutory exemption in markets in which a particular network affiliate does not exist or in which the waiver provisions in section 340(b)(4) apply. [IV.B.2. and IV.B.3.] As a condition to offering a significantly viewed digital signal, satellite carriers must comply with the ``equivalent bandwidth'' and ``entire bandwidth'' requirements, which permit satellite carriage of a significantly viewed station only if the amount of bandwidth used to carry such station is equivalent to the amount of bandwidth used to carry the signal or signals of the

Page 76507

affiliated local network station, or the entire amount of bandwidth used by the local station. [IV.B.3.] We affirm our tentative conclusion that determinations of bad faith or frivolousness will be made on a case-by-case basis. We will use our existing procedures for Petitions for Special Relief as the procedural framework for complaints concerning significantly viewed status. [IV.D.1.]

III. Background

A. Satellite Home Viewer Act (SHVA)

5. In 1988, Congress passed the Satellite Home Viewer Act (``1988 SHVA'') (The Satellite Home Viewer Act of 1988, Public Law 100-667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111, 119). The 1988 SHVA was enacted on November 16, 1988, as an amendment to the copyright laws. The 1988 SHVA gave satellite carriers a statutory copyright license to offer distant signals to ``unserved'' households. 17 U.S.C. 119(a)), which established a statutory copyright license for satellite carriers to offer subscribers, who could not receive the signal of a broadcast station over the air, access to broadcast programming via satellite. The 1988 SHVA reflected Congress' intent to protect the role of local broadcasters in providing over-the-air television by limiting satellite delivery of network broadcast programming to subscribers who were ``unserved'' by over-the-air signals. The 1988 SHVA also permitted satellite carriers to offer distant ``superstations'' to subscribers. (See 17 U.S.S. 119(a)(1)). A superstation is defined as a television station, other than a network station, licensed by the Commission that is retransmitted by a satellite carrier. Thus, superstations are not considered ``network stations'' for copyright purposes.

B. Satellite Home Viewer Improvement Act of 1999 (SHVIA)

6. In 1999, in the Satellite Home Viewer Improvement Act (``SHVIA'') (The Satellite Home Viewer Improvement Act of 1999, Public Law 106-113, 113 Stat. 1501 (1999) (codified in scattered sections of 17 and 47 U.S.C.). The SHVIA was enacted on November 29, 1999, as Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999 (``IPACORA'') (relating to copyright licensing and carriage of broadcast signals by satellite carriers)), Congress expanded on the 1988 SHVA by amending both the copyright laws (17 U.S.C. 119 and 122) and the Communications Act (47 U.S.C. 325, 338 and 339) to permit satellite carriers to retransmit local broadcast television signals directly to subscribers. The Commission implemented the SHVIA by adopting rules for satellite carriers with regard to carriage of broadcast signals, retransmission consent, and program exclusivity that paralleled the requirements for cable service. (See Implementation of the Satellite Home Viewer Improvement Act 1999: Broadcast Signal Carriage Issues, Retransmission Consent Issues, 65 FR 40564-01 (June 30, 2000) (``SHVIA Signal Carriage Order''); Technical Standards for Determining Eligibility For Satellite-Delivered Network Signals Pursuant To the Satellite Home Viewer Improvement Act, 15 FCC Rcd 24321 (2000); Implementation of the Satellite Home Viewer Improvement Act of 1999: Application of Network Non-Duplication, Syndicated Exclusivity, and Sports Blackout Rules To Satellite Retransmissions of Broadcast Signals, 15 FCC Rcd 21688 (2000) (``Satellite Exclusivity Order''); Implementation of the Satellite Home Viewer Improvement Act of 1999, Enforcement Procedures for Retransmission Consent Violations, 65 FR 68082-01 (November 14, 2000); Implementation of the Satellite Home Viewer Improvement Act of 1999, Retransmission Consent Issues: Good Faith Negotiation and Exclusivity, 65 FR 15559-02 (March 23, 2000)). 7. A key element of the SHVIA was to provide satellite carriers with a statutory copyright license to facilitate the retransmission of local broadcast programming, or ``local-into-local'' service, to subscribers. A satellite carrier provides ``local-into-local'' service when it retransmits a local television signal back into the local market of that television station for reception by subscribers. (See 47 CFR 76.66(a)(6)). Generally, a television station's ``local market'' is the DMA in which it is located. (See 17 U.S.C.122(j)(2)(A); 47 U.S.C. 340(i)(1)). DMAs, which describe each television market in terms of a unique geographic area, are established by Nielsen Media Research based on measured viewing patterns. Each satellite carrier providing local-into-local service pursuant to the statutory copyright license is generally obligated to carry any qualified local television station in the particular DMA that has made a timely election for mandatory carriage, unless the station's programming is duplicative of the programming of another station carried by the carrier in the DMA or the station does not provide a good quality signal to the carrier's local receive facility. (See 47 U.S.C. 338). This is commonly referred to as the ``carry one, carry all'' requirement.

C. Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA)

8. In December 2004, Congress passed and the President signed the SHVERA, which again amended the 1988 copyright laws and the Communications Act to further aid the competitiveness of satellite carriers and expand program offerings for satellite subscribers. Specifically, SHVERA distinguished between out-of-market (i.e., ``significantly viewed'') signals and truly ``distant'' signals for purposes of the statutory copyright licenses in sections 119 and 122 of title 17. The SHVERA established a copyright license that gives satellite carriers the option to offer Commission-determined ``significantly viewed'' signals to subscribers. Section 102 of the SHVERA extended the statutory copyright license contained in 17 U.S.C. 119(a) to ``apply to the secondary transmission of the primary transmission of a network station or a superstation to a subscriber who resides outside the station's local market * * * but within a community in which the signal has been determined by the Federal Communications Commission, to be significantly viewed in such community, pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect on April 15, 1976, applicable to determining with respect to a cable system whether signals are significantly viewed in a community.'' (See 17 U.S.C. 119(a)(3)(A)).

IV. Discussion

9. The SHVERA created section 340 of the Communications Act and expanded the statutory copyright license for satellite carriers to establish the framework for satellite carriage of Commission-determined ``significantly viewed'' signals; section 102 of the SHVERA amends 17 U.S.C. 119(a) to create new subsection (a)(3), entitled ``secondary transmissions of significantly viewed signals.'' Section 202 of the SHVERA amends the Communications Act to create a new section 340, entitled ``Significantly Viewed Signals Permitted To Be Carried.'' As required by the SHVERA, we opened this proceeding on February 7, 2005 with the release of the NPRM. In the NPRM, we published the existing list of significantly viewed stations and sought comment on implementation of section 340 and the specific rule proposals and tentative conclusions contained in the NPRM.

Page 76508

A. Station Eligibility For Satellite Carriage as ``Significantly Viewed''

10. In the NPRM, we considered which stations are now eligible for ``significantly viewed'' status in which communities pursuant to the statutory copyright license contained in 17 U.S.C. 119(a). We also considered how stations and the related communities can be added to the list of significantly viewed stations (``SV List''). We discussed the interplay of the section 340 requirements with the Commission's network non-duplication and syndicated exclusivity rules and considered how to define a satellite community. 1. Significantly Viewed Stations and Related Communities 11. Section 340(a) of the Act requires the Commission to determine which stations a satellite carrier can retransmit as significantly viewed, as well as which subscribers in which communities can receive these stations. Section 340(a) of the Act, as created by the SHVERA, authorizes a satellite carrier ``to retransmit to a subscriber located in a community the signal of any station located outside the local market in which such subscriber is located, to the extent such signal: (1) Has, before the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, been determined by the Federal Communications Commission to be a signal a cable operator may carry as significantly viewed in such community, except to the extent that such signal is prevented from being carried by a cable system in such community under the Commission's network non-duplication and syndicated exclusivity rules; or (2) is, after such date of enactment, determined by the Commission to be significantly viewed in such community in accordance with the same standards and procedures concerning shares of viewing hours and audience surveys as are applicable under the rules, regulations, and authorizations of the Commission to determining with respect to a cable system whether signals are significantly viewed in a community.'' Section 340(a)(1) confers ``significantly viewed'' status in the satellite context to a station, and the communities in which the station has been determined by the Commission to be ``significantly viewed'' in the cable television context. Section 340(a)(2) provides for future determinations of a station's ``significantly viewed'' status by the Commission, consistent with the Commission's existing rules and procedures for cable television. There is no statutory limit on the number of significantly viewed signals a satellite carrier may carry. (See 47 U.S.C. 340(a), which states that satellite carriers may retransmit such signals ``[i]n addition to the broadcast signals that subscribers may receive under section 338 [governing carriage of local signals] and 339 [governing carriage of distant signals].''). The exemption for significantly viewed signals is necessary because section 339 of the Communications Act (47 U.S.C. 339) prohibits a satellite carrier from providing a household with the signals of more than two distant affiliates of a particular network per day. 12. Section 340(c) of the Act directs the Commission to publish and maintain a unified list of stations, and the communities in which such stations are considered ``significantly viewed,'' that will apply to both cable operators and satellite carriers. In the NPRM, we compiled and published a list of stations that have been determined to be significantly viewed in specified counties and communities pursuant to the Commission's cable television rules. (See Sec. 76.54 of our rules describes the basis for deeming a station's signal ``significantly viewed;'' 47 CFR 76.54; 47 CFR 76.5(i)). This SV List, which was attached to the NPRM as Appendix B, identified these stations, counties and communities, combining the Commission's original 1972 list of significantly viewed stations by county with stations added on a county or community-wide basis over the intervening years. The Commission's initial list of significantly viewed stations was released in 1972. The SV List also includes stations granted significantly viewed status subsequent to 1972. The SV List indicates by a plus sign (+) those that have been added to the 1972 list after its publication to distinguish them from those stations and communities derived from the original 1972 list. Although we do not believe that this distinction is meaningful, for informational purposes we have retained this designation for the final SV List. 13. We sought comment on the SV List to solicit corrections and have changed the list only to correct errors appropriately demonstrated by commenters. Pursuant to section 340(c), this SV List will be available to the public on our website (http://www.fcc.gov/mb), and we will update this list within 10 business days if we modify it in the future. Section 340(c)(2) requires that the Commission ``make readily available to the public in electronic form, on the Internet website of the Commission or other comparable facility, a list of the stations that are eligible for retransmission under subsection (a) and the communities in which such stations are eligible for such retransmission. The Commission shall update such list within 10 business days after the date on which the Commission issues an order making any modification of such stations and communities.'' 14. Some stations on the SV List have been the subject of petitions resulting in program deletions based on network non-duplication or syndicated exclusivity. The SV List indicates by a pound sign () the stations and related communities subject to programming deletions. The exclusivity rules permit a station or syndicator that has exclusive rights to network or syndicated programming to prohibit a cable operator from carrying such programming on another station. The exclusivity rules are subject to an exception if the station in question is significantly viewed. This exception is, in turn, subject to waiver if the party petitioning for the programming deletion shows that the station is no longer significantly viewed. (See 47 CFR 76.92, 76.101 and 76.106; see also KCST Petition for Special Relief, 103 FCC 2d 407 (1986) (``KCST'')). Cable operators and satellite carriers must be aware of these required programming deletions (``blackouts'') and abide by them in their carriage of these stations in the communities so indicated. (See 47 CFR 76.122 and 123; see infra section IV.A.5). Since releasing the NPRM, we have granted one pending request for programming deletion based on the network nonduplication and syndicated exclusivity rules (CSR-6383-N (subjecting Station WAVE-TV (NBC, Channel 3), Louisville, Kentucky to programming deletions if carried in the community of Columbia, Kentucky) and we have updated the SV List accordingly. 15. In the NPRM, we acknowledged that the SHVERA allowed satellite carriers to immediately begin using the SV List to expand their carriage offerings so that their subscribers could start experiencing the benefits of the SHVERA as soon as possible. We permitted satellite carriers to rely on the SV List's accuracy to commence service, consistent with the other requirements set out in the SHVERA and this proceeding, prior to the adoption of a final list. Cable operators have been relying on this SV List for more than 30 years. We agree with EchoStar that ``the significantly viewed provision is self executing.'' NAB, in an ex parte, expressed concern that DBS operators were providing notices to stations of

Page 76509

their intent to carry significantly viewed stations. We note that use of the list must be consistent with the other requirements set out in the SHVERA and this proceeding. This decision was consistent with Congress' intent. Cable operators have been relying on this SV List for more than 30 years. We agree with EchoStar that ``the significantly viewed provision is self executing.'' EchoStar at 2. NAB, in an ex parte, expressed concern that DBS operators were providing notices to stations of their intent to carry significantly viewed stations. We note that use of the list must be consistent with the other requirements set out in the SHVERA and this proceeding. We published the SV List with the NPRM in accordance with the SHVERA's mandate in new section 340(c)(1)(A)(i). The purpose of the SV List is to identify ``the stations that are eligible'' for significantly viewed status, meaning those stations already determined to be significantly viewed by the Commission. The House Commerce Committee intended that the Commission publish the SV List within 180 days of enactment, and provided for ``interim eligibility'' for stations on the list. The intent was for satellite carriers to ``start carrying the signals on the list pending adoption of the rules.'' Although the ``interim eligibility'' language did not survive, the enacted provision required even faster publication of the SV List (i.e., within 60 days). This indicates Congress' intent to permit immediate use of the SV List upon publication; (See Barton Floor Statement at 2 (satellite carriers authorized to carry significantly viewed signals ``upon enactment'')). To the extent necessary, satellite carriers must now come into compliance with our final rules when they become effective. 2. Accuracy of SV List 16. In the NPRM, we asked interested parties to confirm the accuracy of the SV List. Our request for comment, however, was limited to ``whether the SV List accurately reflects such existing significantly viewed determinations, and not about whether the SV List should be modified because of a change in a station's circumstances subsequent to its placement on the SV List.'' We received numerous comments about the accuracy of the SV List; however, only a handful of these comments offered evidence of specific errors. 17. To the extent that commenters are seeking specific additions or deletions to the list absent proof that these stations were or were not previously determined by the Commission to be significantly viewed, we reject these comments for failing to comply with Sec. 76.54 of our rules. Moreover, we also agree with EchoStar that these comments are beyond the scope of this proceeding. The SHVERA created a mechanism for parties to subsequently seek modification of the SV List. (See 47 U.S.C. 340(c)(3)). Requests to modify the SV List based on changed circumstances must follow this process. Therefore, requests for modification that fail to demonstrate an existing error to the list or fail to offer documentary evidence supporting the requested correction are rejected. We note that the only parties originally eligible to request that we declare a station significantly viewed were the station itself, or the cable operator. Satellite carriers will now be included as eligible parties. 18. We will correct the SV List based on comments by DIRECTV, WGAL and WHEC-TV. We will also address the corrections proposed by the comments of Saga and Saga Quad, although we reject their request. 19. DIRECTV. The SV List is corrected, pursuant to DIRECTV's comments, to reflect new call letters for certain stations. Staff review of Commission records indicates that, with respect to the stations questioned by DIRECTV, all but three of these stations' call letters have been changed since the time they were added to the list. The new call letters of these stations will now be reflected on the list, with a notation of the former call letters for consistency. The three stations that were not among this group, WJJY (Channel 14, Jacksonville, IL), KVFD (Channel 21, Fort Dodge, IA) and KFIZ (Channel 34, Fond du Lac, WI), have apparently gone dark and a notation has been made on the list to reflect this. There were 22 changes in station call letters. 20. In addition, we resolve two questions raised by DIRECTV: (1) Whether station WTCT, Channel 27, Marion, Illinois should be listed as significantly viewed for Marshall County, Kentucky and not Marshall County, Illinois; and (2) whether station KSAS-TV, Channel 24, Wichita, Kansas should be listed as significantly viewed in Butler County, Kentucky as well as Butler County, Kansas. Staff review of Commission records indicates that, by letter dated May 24, 1995, the Consumer Protection Division of the former Cable Services Bureau granted significantly viewed status to WTCT-TV in Marshall County, Illinois. Further, by letters dated February 18, 1998, the Consumer Protection Division of the former Cable Services Bureau granted significantly viewed status to KSAS-TV in both Butler County, Kansas and Butler County, Kentucky. Therefore, our list is correct with respect to these questions. Finally, we correct 12 typographical errors pointed out by DIRECTV. 21. WHEC-TV. The SV List is corrected, pursuant to WHEC-TV's comments, to reflect that stations WCBS-TV, WNBC, WNYW, WABC-TV and WWOR-TV are not significantly viewed for the city of Rochester, NY, but rather are significantly viewed for the town of Rochester, located in Ulster County, New York. Staff review of Commission records indicates that, by letter dated March 8, 1990, the Chief of Video Services Division, Mass Media Bureau, granted Simmons Communications Company's request to declare the above-listed stations significantly viewed for the Villages of Ellenville and Woodridge, NY, and the towns of Wawarsing, Rochester, Fallsburg, and Mamakating, NY. 22. WGAL. The SV List is also corrected, pursuant to WGAL's comments, to delete all references to WKBS-TV, Channel 47, Altoona, PA, as being significantly viewed in the counties of Berks, Bucks, Chester, Delaware, Montgomery and Philadelphia, PA; the communities of East Hempfield Township, East Lampeter Township, East Petersburg, Lancaster, Lancaster Township, Manheim Township, Manor Township, Millersville, Mountville, West Hempfield Township and West Lampeter Township; the counties of Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer and Salem, NJ; and New Castle County, DE. Staff review of Commission records confirms that WKBS-TV is currently the satellite of station WPCB-TV, Greensburg, PA, and did not become operational until 1985. Television broadcast station WGTW, Channel 48, Philadelphia, PA is the successor to the station that originally had the call sign ``WKBS-TV'' and that was granted significantly viewed status for the named counties on the basis of the 1971-1972 surveys and in the named communities based on community-specific surveys after 1972. Although WGTW itself went dark for a period of time, it nonetheless retains the significantly viewed status originally granted to WKBS-TV. Accordingly, we will list WGTW as significantly viewed, and delete all references to WKBS-TV, for the named counties and communities. 23. Saga and Saga Quad. We reject the corrections to the SV List proposed by Saga Broadcasting, LLC (``Saga'') and Saga Quad States Communications, LLC (``Saga Quad''). We disagree with Saga and Saga Quad that errors were made in 1972 with respect to the following

Page 76510

counties: Greenville, MS; Pittsburg, KS/Joplin, MO; and Victoria, TX. Staff review of the Commission's records indicates that the 1971-1972 survey data relied upon in the publication of the 1972 significantly viewed list was accurately performed in accordance with Sec. 76.54 of the rules. More specifically, the data for each station indicated by Saga and Saga Quad was double-checked to ensure that the 1971-1972 audience statistics demonstrated that the criteria for significantly viewed status were met, that the 1972 significantly viewed list correctly reflected the survey results, that the significant viewing list was consistent with these documents and they were found to support the station's inclusion on the significantly viewed list. Moreover, we do not find Saga's request to use current Nielsen data as a means of deletion to be acceptable. We agree with the comments of Mission Broadcasting (KOLR), Meredith Corporation (KCTV) and Media General Communications, Inc. (WJTV), that the Saga submissions do not comply with the Sec. 76.54 petition process and exceed the scope of this proceeding. As a result, Saga's and Saga Quad's requests for deletion are rejected. 3. Procedures for Determining or Modifying Significantly Viewed Status 24. Section 340(c) provides a procedure for modifying the SV List with respect to satellite carriers, either to add eligible stations or communities, or to restrict carriage of eligible stations through application of the Commission's network non-duplication or syndicated exclusivity rules. (See 47 U.S.C. 340(c)(3) requires that the Commission ``permit a satellite carrier to petition for decisions and orders--(A) by which stations may be added to those that are eligible for retransmission under subsection (a), and by which communities may be added in which such stations are eligible for such retransmission; and (B) by which network non-duplication or syndicated exclusivity regulations are applied to the retransmission in accordance with subsection (e).''). This provision permits a satellite carrier or station to petition the Commission to include a particular station and related community on the significantly viewed list. Section 119(a)(3) of the copyright provisions in title 17 requires that the Commission use the same rules in considering such petitions that were in effect as of April 15, 1976. In the NPRM, we described the existing rules in place for cable carriage and proposed rule amendments to implement the SHVERA's requirements for satellite carriage. 25. As proposed in the NPRM, we amend Sec. 76.54 to apply the rule to satellite carriers. As intended by Congress (17 U.S.C. 119(a)(3)); House Commerce Committee Report at 1 (purpose of the SHVERA includes ``increasing regulatory parity by extending to satellite carriers the same type of authority cable operators already have to carry `significantly viewed' signals into a market''), this provision--essentially unchanged since April 15, 1976 (no changes were made to the procedures as in effect on April 15, 1976)--will now govern the process for qualifying new signals for significantly viewed status in both the cable and satellite context. Revised Sec. 76.54 will now reference satellite carriers and the new SV List, but will not alter the procedures as in effect on April 15, 1976. The rules will operate for satellite carriage in the same fashion as they have for cable carriage. Thus, satellite carriers or broadcast stations seeking satellite carriage must follow the same petition process now in place for cable carriage, as required by Sec. Sec. 76.5, 76.7 and 76.54 of our rules. A fee may be required for the filing of certain petitions to change a station's significantly viewed status; 47 CFR 1.1104, 1.1117, 76.7. We do not need to amend Sec. Sec. 76.5 and 76.7 in order to permit the filing of such petitions for significantly viewed status by satellite carriers or broadcast stations seeking satellite carriage. We do, however, amend Sec. 76.5 in another context. We revise our definition of subscriber in Sec. 76.5(ee) to add a definition for a satellite subscriber. (See infra section IV.B.1. and revised rule Sec. 76.5(ee), and add a definition for satellite community in Sec. 76.5(gg), infra section IV.A.6. and revised rule Sec. 76.5(gg), 47 CFR 76.5(ee) and (gg)). Because Sec. 76.7 of our rules currently provides for the filing of special relief petitions by multichannel video programming distributors (MVPDs), such as satellite carriers, we need not amend this rule. Thus, a station, satellite carrier or cable operator that wishes to have a station designated significantly viewed would file a petition pursuant to the pleading requirements in Sec. 76.7(a)(1) and use the method described in Sec. 76.54 to demonstrate that the station is significantly viewed as defined in Sec. 76.5(i). Most of the comments support this decision. 26. Section 76.5(i) of the rules provides that a network affiliated station is considered to be significantly viewed if it obtains at least a three percent share of viewing hours in television homes in the community and has a net weekly circulation share of at least 25 percent; see 47 CFR 76.5(i)(1). Share of weekly viewing hours means the total hours that over-the-air television households in the community viewed a station during the week, expressed as a percentage of the total hours these households viewed all stations during the period surveyed. Net weekly circulation means the number of over-the-air television households that viewed a station for five minutes or more during the week, expressed as a percentage of the total over-the-air television households in the survey area; 47 CFR 76.5(i) note. For independent stations, the test is a share of at least two percent viewing hours and a net weekly circulation of at least five percent. 27. Section 76.54 provides that parties may demonstrate that signals are significantly viewed either on a county-wide basis or on a community basis. Under Sec. 76.54(b) of the rules, adopted in 1972, parties may demonstrate significantly viewed status based on an independent professional audience survey which is conducted by a professional organization that is independent from the cable systems or television stations ordering the surveys. Initially, the Commission suggested that parties undertaking surveys under this provision inform other interested parties regarding the survey and its methodology. On reconsideration, the Commission adopted Sec. 76.54(c) requiring such prior notification. (See 1972 R&O, 36 FCC 2d at 176, para. 86; 1972 Recon Order, 36 FCC 2d at 349, para. 62). The surveys must include the results of two weekly periods separated by at least 30 days, but no more than one of which shall be a week between April and September (i.e., outside the summer viewing period). The Commission recognized that the results of sample surveys can only be determinative within a given probability. Therefore, to assure that the survey errs on the side of excluding stations that are not actually significantly viewed, the Commission decided to require that the sample results exceed the significantly viewed standard, currently specified in Sec. 76.5(i), by at least one standard error. A ``standard error'' is a statistical measure used to assess, at a specified probability, that the sample estimate reflects the actual result had the entire universe been surveyed. Using one standard error, we can be approximately 70 percent certain that the actual audience statistic is the reported statistic plus or minus one standard error. The calculation of the standard error takes

Page 76511

into account the sampling procedure, the sample size and the sample result. Initially, the Commission required separate surveys for each cable community, but the rule was revised to allow a single survey where a cable system served multiple communities. Thus, if a cable system serves more than one community, a single survey may be taken, provided that the sample includes over-the-air television homes from each community that are proportional to the population. (See 47 CFR 76.54(b)). 28. Section 76.54(d), adopted in 1975, permits parties to demonstrate significantly viewed status for a new station using county-wide audience surveys in lieu of the more burdensome community-by-community method. (See Amendment of Part 76 of the Commission's Rules and Regulations to Permit Showings that Certain Television Broadcast Stations are Significantly Viewed Based on County-Wide Surveys, 56 FCC 2d 265, para. 1 (1975) (``1975 R&O'')). Under Sec. 76.54(d), significantly viewed status may be demonstrated on a county-wide basis using independent professional audience surveys which cover three separate, consecutive four-week periods and are otherwise comparable to the surveys used to compile the 1972 Appendix B list. Under this rule, a demonstration that a station is significantly viewed must be based on audience survey data from the station's first three years of operation. Where surveys are conducted pursuant to Sec. 76.54(d), the Commission concluded that the potential for an unrepresentative sample was considerably lessened by the adoption of a longer survey period. Accordingly, the Commission decided not to require that the results be subject to the standard error requirement and the survey results must simply meet the significantly viewed standard for the station type specified in Sec. 76.5(i). This was intended to place the survey methodology for newer stations on par with the methodology used in the original Commission surveys. Moreover, the rules require that the survey be undertaken by an independent professional audience survey organization and be subject to Commission review. 29. We reject the proposals by commenters seeking to substantively modify the Sec. 76.54 process for making significantly viewed determinations, including the proposals to add to the SV list those stations that could deliver a Grade B or better signal to a subscriber's home. The SHVERA did not authorize any approach that would presume that such stations are significantly viewed. Such modifications to the Sec. 76.54 process would be inconsistent with the SHVERA's requirement that we use the same rules for making significantly viewed determinations that were in effect as of April 15, 1976. Stations or carriers must demonstrate significantly viewed status through the existing Sec. 76.54 petition process. 30. In the NPRM, we stated that the digital signal of a television broadcast station will be accorded the same significantly viewed status as that of the analog signal, except that where a station is broadcasting only a digital signal, the station must petition for significantly viewed status using the analog requirements in Sec. 76.54. EchoStar has requested that we clarify that we will continue our ``present practice of according the digital signal of a broadcast station the same `significantly viewed' status as the analog signal,'' and that we only meant to require new digital stations--those without a significantly viewed analog predecessor--to make showings pursuant to Sec. 76.54. EchoStar is correct; we did not mean to suggest that stations would lose their significantly viewed status when they begin operating only in digital. (See Carriage of Digital Television Broadcast Signals, 16 FCC Rcd 2598, 2642, para. 100 (2001) (``[W]e believe that the public interest is best served by according the digital signal of a television broadcast station the same significantly viewed status accorded the analog signal. We note, however, that DTV-only television stations must petition the Commission for significantly viewed status under the same requirements for analog stations in Sec. 76.54 of the Commission's rules.'')). Stations that have been listed as significantly viewed in a given community based on their analog signal will also be accorded significantly viewed status for their digital signal, even if their analog signal subsequently goes off the air. We intend to allow licensees to transfer their significantly viewed status from their analog station to their digital station. Moreover, stations with both analog and digital signals may continue to demonstrate significantly viewed status based on their analog signal. We recognize, however, that, in the future, stations will be operating only in digital. Therefore, new digital stations (without an existing analog companion) must demonstrate that their digital signals are significantly viewed. This is the reason we amend our rule to add ``noise limited service contour,'' the service contour relevant for a station's digital signal. 31. We amend Sec. 76.54, as, to update the existing reference to ``Grade B contour,'' which applies to analog stations, to add ``noise limited service contour,'' the service contour relevant for a station's digital signal. We further amend Sec. 76.54 to eliminate an outdated reference and correct a typographical error, neither of which change in any way the substance or the process of the rule. The commenters on this issue support these rule changes. 32. Finally, Gulf and NAB and Network Affiliates (``NAB'') requested that we clarify that the independent professional audience surveys required by Sec. 76.54 must include surveys only from households that receive broadcast signals via an over-the-air antenna. We agree, and, thus, we will amend Sec. 76.54 to reflect the rule's true meaning. Section 76.54 currently uses the term ``non-cable,'' but such term was meant to indicate over-the-air viewing. We have already noted this meaning in another context. (See 47 CFR 76.1506 (television stations are significantly viewed for carriage by open video systems ``when they are viewed in households that do not receive television signals from multichannel video programming distributors * * *'')). In the 1972 Order, we adopted the concept of significant viewing to apply to over-the-air households, which at the time essentially meant households without cable (i.e., non-cable households). Thus, amending Sec. 76.54 to change ``non-cable'' to ``over-the-air'' reflects the true intent of the rule as it was in 1976, and is more consistent with the SHVERA's intent to establish parity between cable and satellite. It would also be inconsistent with the original intent of the SV process to permit satellite carriers to use their own subscribers in audience surveys to demonstrate SV status. It would also be largely pointless as satellite carriers have had no way to offer such signals to subscribers in out-of-market communities except as ``distant'' signals to ``unserved'' households. 4. Definition of ``Network Station'' 33. Our rules define network station as one of the ``three major national television networks.'' (See 47 CFR 76.5(j) and (k)). This definition is expressly relied upon to select the correct standard for determining whether a station is significantly viewed. (See 47 CFR 76.5(i) (the ``share'' required to achieve significantly viewed status depends upon whether the station in question is a network station or an independent station); 47 CFR 76.5(j) (full network station is: ``A commercial

Page 76512

television broadcast station that generally carries in weekly prime time hours 85 percent of the hours of programming offered by one of the three major national television networks with which it has a primary affiliation (i.e., right of first refusal or first call)''; 47 CFR 76.5(k) (partial network station is: ``A commercial television broadcast station that generally carries in prime time more than 10 hours of programming per week offered by the three major national television networks, but less than the amount specified in paragraph (j) of this section''; 47 CFR 76.5(l) (independent station is: ``A commercial television broadcast station that generally carries in prime time not more than 10 hours of programming per week offered by the three major national television networks.'')). The standard applies only to commercial stations. 47 CFR 76.5(i)-(l) (definitions of significantly viewed stations limited to ``commercial''); 1972 R&O, 36 FCC 2d at 180; 1972 Recon Order, 36 FCC 2d at 330 (educational stations were given mandatory carriage throughout their Grade B signal contour but were not given significantly viewed status because the low ratings for NCE stations made it difficult to develop a significantly viewed standard for them and to avoid ``an unwarranted profusion of educational signals'' to which the educational stations objected due to possible erosion or dilution of local subscriber support). (See also 17 U.S.C. 119(a)(3)(A) (limits significantly viewed to the Commission's rules in effect on April 15, 1976)). We mentioned in the NPRM that, for purposes of subscriber eligibility, the SHVERA relied on the definition of ``network station'' that is used in the copyright provisions of title 17, which provides that a ``network station'' is: