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The FCC recently released a Notice of Proposed Rulemaking
seeking comments on proposed changes to its satellite television
“significantly viewed” station rules to implement Section 203 of the
Satellite Television Extension and Localism Act of 2010 (“STELA”).
The proposed rules will make it easier for satellite carriers to import
significantly viewed stations located in one television market to satellite
subscribers located in a different television market. Congress
directed the FCC to issue final rules in this proceeding by November 24,
2010. Accordingly, comments in this proceeding are due by August
17th, with reply comments due by August 27th.
A
“significantly viewed” television station is a station that, although
assigned to one market, is treated as “local” to a particular community in
another market based on “significant” over-the-air viewing. Such
significantly viewed stations may then be carried on cable or satellite
systems serving those out-of-market communities. In order to prevent
satellite carriers from favoring a significantly viewed network affiliate
over the in-market, local affiliate of the same network, a satellite
carrier’s ability to deliver significantly viewed network stations has been
limited historically by statute in two respects. First, in order to
receive a significantly viewed network station, a subscriber must also
receive the satellite carrier’s “local-into-local” service. The FCC’s
rules further require that the satellite subscriber in fact receive the
specific local station that is affiliated with the same network as the
significantly viewed station (also known as the “same network affiliate”
rule). Second, a satellite carrier could offer a significantly viewed
station only if it carried the affiliated local network station using
either (i) an “equivalent” amount of bandwidth; or (ii) the
“entire” bandwidth of the local station (collectively, the “equivalent or
entire bandwidth requirement”). The FCC has interpreted the
“equivalent or entire bandwidth requirement” to require satellite carriers
to objectively compare the bandwidth allocated to carriage of the local
affiliate and the significantly viewed station in terms of megabits per
second (or bit rate) on a minute-by-minute basis. The FCC noted that
compliance with this requirement has made carriage of significantly viewed
stations so burdensome that they are rarely carried.
The
FCC interpreted STELA to eliminate the “same network affiliate” rule.
Therefore, in order to receive a significantly viewed station, the FCC’s
proposed rule only requires that a subscriber receive the satellite
carrier’s local-into-local service. This interpretation would allow a
satellite carrier to carry a significantly viewed station affiliated with a
particular network even if the in-market, local network affiliate failed to
request local carriage, refused to grant retransmission consent, or
otherwise was ineligible for local carriage (e.g., the station does
not provide a good quality signal to the carrier’s local receive facility).
In
light of STELA’s elimination of the “equivalent or entire bandwidth
requirement,” the FCC proposes to revise its rules to provide that a
satellite carrier may retransmit the high definition (“HD”) signal of a
significantly viewed station only if the satellite carrier also retransmits
the HD signal of the local station affiliated with the same network
whenever that signal is available in HD. In order to determine
whether a signal is being transmitted in HD, the FCC proposes to utilize
ATSC’s definition of HD service (i.e., a screen resolution of 720p,
1080i, or higher). Using this standard, the FCC would no longer
ensure that carriage of local affiliate and significantly viewed station
are comparable in terms of bit rates and compression technologies
employed. The FCC also seeks comment on its tentative conclusion that
STELA only limits satellite carriage of a significantly viewed station with
respect to HD format, and does not apply if the carrier only carries the
significantly viewed station in standard definition.
Finally,
the FCC seeks comments on the following multicast issues:
§ If
a satellite carrier wants to retransmit a significantly viewed network
affiliate and there is an in-market, local station that carries the same
network in HD on a secondary stream, is the satellite carrier required to
carry the local station’s secondary stream in HD in order to be permitted
to retransmit the significantly viewed station in HD?
§ Is
the satellite carrier required to carry this secondary stream in HD even if
the in-market station’s primary stream is affiliated with another network?
§ To
what extent are stations broadcasting HD programming from two different
networks? Is this sufficiently rare that it instead can be addressed
on a case-by-case basis?
Should you have any questions concerning satellite
carriage of television stations or would like to participate in this
proceeding, please contact your primary attorney in our office.
August 10, 2010
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