95-439. Cable Compulsory License: Notice of Inquiry Regarding Merger of Cable Systems and Individual Pricing of Broadcast Signals  

  • [Federal Register Volume 60, Number 5 (Monday, January 9, 1995)]
    [Proposed Rules]
    [Pages 2365-2367]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-439]
    
    
    
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    LIBRARY OF CONGRESS
    
    Copyright Office
    
    37 CFR Part 201
    
    [Docket No. RM 89-2A]
    
    
    Cable Compulsory License: Notice of Inquiry Regarding Merger of 
    Cable Systems and Individual Pricing of Broadcast Signals
    
    AGENCY: Copyright Office, Library of Congress.
    
    ACTION: Extension of comment period.
    
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    SUMMARY: The Copyright Office is reopening the comment period in Docket 
    RM 89-2 (Merger of Cable Systems) to broaden the scope of this 
    proceeding. Specifically, the Office seeks comment as to the copyright 
    royalty implications of a la carte offerings of broadcast signals by 
    cable operators and the permissibility of allocating gross receipts 
    among subscriber groups for a la carte signals in computing royalties 
    due under the cable compulsory license of the Copyright Act.
    
    DATES: Initial comments should be received by February 23, 1995. Reply 
    comments should be received by February 8, 1995.
    
    ADDRESSES: Interested persons should submit fifteen copies of their 
    written comments, if delivered by mail, to: Copyright GC/I&R, P. O. Box 
    70400, Southwest Station, Washington, D.C. 20024. If delivered by hand, 
    fifteen copies should be brought to: Office of the General Counsel, 
    James Madison Memorial Building, Room LM-407, 101 Independence Avenue, 
    S.E., Washington, D.C. 20540.
    
    FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General 
    Counsel, Copyright GC/I&R, P. O. Box 70400, Southwest Station, 
    Washington, D.C. 20024. Telephone (202) 707-8380. Telefax: (202) 707-
    8366.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
        On September 18, 1989, the Copyright Office published a Notice of 
    Inquiry (NOI) in Docket No. RM 89-2 to inform the public that it was 
    examining the issues of merger and acquisition of cable systems and 
    their impact on the computation and reporting of royalties under the 
    cable compulsory license, 17 U.S.C. 111. 54 FR 38390 (1989). At the 
    heart of the 1989 NOI were the royalty filing questions raised by the 
    application of the ``contiguous communities'' provision of the section 
    111(f) definition of a cable system. That provision provides that two 
    or more cable facilities are considered as one cable system if the 
    facilities are either in contiguous communities under common ownership 
    or control or operating from one headend. See also 37 CFR 201.17(b)(2).
        The Office highlighted some of the difficulties created by cable 
    systems in contiguous communities becoming a single system through 
    either merger or acquisition by a common owner:
    
        For example, assume a situation where there are two completely 
    independent but contiguous cable systems. System A carries two non-
    permitted (3.75% rate) independent station signals and System B, 
    assigned a different television market, carries the same two 
    independent station signals but on a permitted (base rate) basis, 
    plus a superstation signal on a non-permitted (3.75% rate) basis. 
    Systems A and B are purchased by the same parent company and 
    apparently become a single cable system for purposes of the 
    compulsory license. The purchase raises several problematic issues 
    as to the calculation of the proper royalty fee. Should the 
    independent stations be paid for at the 3.75% rate or the non-3.75% 
    rate system-wide, or should the rates be allocated among subscribers 
    within the system and, if so, on what basis? Furthermore, if 
    allocation is the answer, what rate can be attributed to new 
    subscribers to the merged system? Finally, there is the question of 
    the superstation signal which is only carried by former cable System 
    B. At the time of acquisition, should the superstation be attributed 
    throughout the entire system, even though many subscribers do not 
    receive the signal (a so-called `phantom' signal)? And which 
    system's market quota (A's or B's) should be used for the entire 
    statement?
    54 FR at 38391
        Based on the above scenario, the Office also formally posed a set 
    of further questions--many of which addressed the creation of 
    subscriber groups for attributing signals and royalty rates. Among 
    these questions were whether cable operators should be allowed to 
    attribute distant signals among their subscribers in accordance with 
    the conditions that existed prior to the merger or acquisition, and 
    whether cable operators should only be required to include in gross 
    receipts the revenues generated from subscribers who actually 
    [[Page 2366]] received a broadcast signal. Id. at 38391-92.
        Several parties, who commented on the 1989 NOI, proposed a possible 
    ``solution'' to the above described scenario.1 Their proposal is a 
    two step approach: aggregation, and then allocation of gross receipts. 
    Cable systems would first aggregate the gross receipts of all of their 
    subscribers to determine which Copyright Office form (and hence royalty 
    rates) to use; then cable systems would report carriage of distant 
    signals according to subscriber groups. Thus, in the above example 
    provided by the Office in the 1989 NOI, Systems A and B would aggregate 
    their gross receipts to determine which form to use (either SA 1-2 or 
    SA-3) and the corresponding royalty rates, and then continue to file 
    separately (i.e. as they were filing prior to the merger/acquisition). 
    Thus, if System A and B's aggregated gross receipts total was in excess 
    of $292,000, both systems would file a separate form SA-3 with the 
    corresponding royalty rates. System A would file an SA-3 and report two 
    non-permitted independent signals at the 3.75% rate, based only on the 
    gross receipts of the subscribers in the communities System A serves. 
    System B would also file an SA-3 and report both the non-permitted 
    3.75% superstation signal and those same two independent signals on a 
    permitted basis, based on the gross receipts of the subscribers in the 
    communities System B serves. See comments of American Television and 
    Communications Corp. at 10; comments of Baraff, Koerner, Olender & 
    Hochberg, P.C. at 2-3; comments of Adelphia Communication Corp et. al. 
    at 10; comments of National Cable Television Association at 13; 
    comments of Program Suppliers at 7-9. But see comments of Joint Sports 
    Claimants at 3. The referenced commentators argue that this approach is 
    consistent with the ``contiguous communities'' provision of section 
    111(f) since that provision speaks only to how systems are to be 
    classified, not how they are to report carriage, and sustains the 
    purpose of the provision to prevent fragmentation of cable 
    systems.2
    
        \1\Although the Copyright Office has reviewed the comments, it 
    has not reached any conclusions or decisions with regard to the 
    suggestions proposed by the various commentators.
        \2\''Fragmentation'' is the practice whereby a cable system 
    separates or ``fragments'' its system into as series of smaller 
    systems filing separate forms, usually the SA 1-2, and corresponding 
    lower royalty rates. The purpose of fragmentation its to reduce the 
    operator's overall gross receipts and thereby create a substantially 
    lower royalty payment under the cable license.
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        The referenced commentators' proposal advocates the creation of 
    ``subscriber groups'' within a single cable system, requiring 
    allocation of gross receipts to specific groups of subscribers and 
    application of varying royalty rates to those groups. Until now, the 
    Copyright Office has looked with disfavor on allocation of gross 
    receipts based on subscriber groups, since allocation among different 
    subscribers, with one exception, is not specifically recognized by 
    section 111 and creates problems in applying the royalty rates.3 
    The only express allowance for allocation in section 111 is the 
    partially local/partially distant provision of section 111(d)(1)(B). 
    That section provides that ``in the case of any cable system located 
    partly within and partly without the local service area of a primary 
    transmitter, gross receipts shall be limited to those gross receipts 
    derived from subscribers located without the local service area of such 
    primary transmitter.'' There are now other ``subscriber group'' and 
    gross receipts allocation issues beyond those of section 111(d)(1)(B) 
    and those presented by the merger and acquisition of cable systems.
    
        \3\The royalty rate problems include identifying the signals to 
    which the 3.75% rate applies and in the case of permitted signals, 
    what is the order of the DSE (first, second, third).
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    II. The 1992 Cable Act
    
        In 1992 Congress passed the ``Cable Television Consumer Protection 
    and Competition Act of 1992'' (1992 Cable Act) which, among other 
    things, regulates the rates that cable operators may charge their 
    subscribers for cable programming services. Although the 1992 Cable Act 
    is telecommunications legislation, and not copyright, its passage has 
    created additional issues related to creation of subscriber groups and 
    allocation of gross receipts to those addressed in our 1989 NOI.
        The 1992 Cable Act permits the Federal Communications Commission, 
    and in some cases local franchising authorities, to regulate the rates 
    charged by cable operators for both broadcast and nonbroadcast 
    programming services. While packages or ``tiers'' of programming 
    services are subject to rate regulation, Congress excluded per-channel 
    service offerings from such regulation. These per-channel offerings are 
    known as a la carte signals because, to be exempt from rate regulation, 
    subscribers must have a ``realistic choice'' in deciding whether to 
    receive the signal. Report and Order and Further Notice of Proposed 
    Rulemaking in MM Docket 92-266, 8 FCC Rcd. 5631 327-328 & n. 808.
        The exemption from rate regulation for a la carte signals 
    encourages cable operators to offer some, if not all of their services 
    (beyond the basic tier required by the 1992 Cable Act to be provided to 
    all subscribers), on a subscriber choice basis. Thus, for example, a 
    cable operator might offer subscribers three distant superstation 
    signals (WTBS, WWOR, WGN, etc.) at $3 a month per signal. A subscriber 
    could choose any combination of these signals, or none at all, and pay 
    only the per signal charges for those signals selected. The result is a 
    number of distant signal offerings by the cable operator, with varying 
    numbers of subscribers within the system selecting, receiving, and 
    paying separately for each signal.
        With the increasing ability of cable operators to offer subscribers 
    essentially ``one signal tiers'' of broadcast stations, issues arise as 
    to the proper calculation and reporting of royalty fees under the 
    section 111 cable compulsory license. If every distant signal offering 
    is allocated to the entire subscriber base of the cable system, ``one 
    signal tiers'' that are purchased by just a few of the cable system's 
    subscribers could result in costing the cable system more in royalties 
    than the income it gets from the few subscribers. As noted above, the 
    Copyright Office has had a longstanding policy against creation of 
    subscriber groups and allocation of gross receipts, except as provided 
    for in section 111(d)(1)(B). By extending the comment period in this 
    proceeding, the Office is now re-examining this policy in both the 
    context of merger and acquisition of cable systems and a la carte 
    broadcast signals.
    
    III. Extension of Comment Period
    
        Because the royalty issues presented by a la carte broadcast 
    signals resemble many of those presented by the merger and acquisition 
    of cable systems, the Copyright Office is reopening this proceeding to 
    receive comment on how compulsory license royalty payments should be 
    made for a la carte offerings of broadcast signals by cable operators. 
    Specifically, the Office seeks comment on the following inquiries:
        (a) As described in the ``System A and System B'' example in the 
    1989 NOI to this proceeding, a ``phantom'' signal problem occurs when 
    the superstation carried by System B is attributed to all subscribers 
    throughout the merged systems, even though the subscribers in former 
    System A do not actually receive the signal. In the case of a la carte 
    broadcast signals, should carriage of each distant broadcast signal be 
    attributed throughout the entire subscription base, even if many 
    [[Page 2367]] subscribers do not actually receive the signal. The 
    Copyright Office has historically required such attribution, based upon 
    its interpretation that the Copyright Act permits only allocation of 
    gross receipts among subscriber groups for partially local/partially 
    distant signals. Does the 1992 Cable Act, or other circumstances, 
    warrant a change in this interpretation? If so, on what basis?
        (b) It has been suggested by some that the Copyright Office should 
    permit creation of subscriber groups for a la carte broadcast signals, 
    and allow cable operators to allocate gross receipts only to those 
    subscribers who select and receive a particular signal. Thus, for 
    example, if a cable system has 1000 subscribers and only 500 of them 
    choose to receive superstation X, the distant signal equivalent (DSE) 
    value generated by superstation X would only be applied against the 
    gross receipts generated from the 500 subscribers who took the 
    superstation, as opposed to applying it against the system's total 
    gross receipts.4
    
        \4\This example assumes the cable system is an SA-3 form system, 
    and therefore makes royalty payments based on the number of DSE's 
    carried.
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        One concern with allowing that would be that it would offer the 
    cable system an incentive to pull its distant signals from its basic 
    tier offering, and offer them only as a la carte signals, thus reducing 
    the subscriber base from which the royalty is calculated.
        The Cable Act of 1992 has made it more difficult for cable systems 
    to restructure their distant signal offerings because it states that, 
    for a basic tier subject to rate regulation, ``such basic service tier 
    shall, at a minimum, consist of * * * (iii) any signal of any 
    television broadcast station that is provided by the cable operator to 
    any subscriber, except a signal which is secondarily transmitted by a 
    satellite carrier beyond the local service area of such station.'' 47 
    USC 543 (b) (7) (iii).
        Therefore, for distant signals that are imported by means other 
    than satellite carrier, if the cable system offers it to one 
    subscriber, it must offer it to all on the basic tier. In 1989, 48.2% 
    of all instances of distant signal carriage on a Form 3 cable system 
    were by means other than satellite carrier. 1989 Cable Royalty 
    Distribution Proceeding, 57 FR 15286, 15294 (1992).
        However, 51.8% of distant signal carriage in 1989 was by means of 
    satellite carrier, and those signals could be pulled from the basic 
    tier without violating the 1992 Cable Act. In addition, cable systems 
    that are not subject to basic tier rate regulation because there is 
    effective competition in the system's franchise area, are also free to 
    restructure.
        What would be the statutory basis for allowing a la carte 
    allocation, and what effect would it have on the total amount of 
    royalties paid?
        (c) If the Copyright Office allowed the type of gross receipts 
    allocation described in question (b), what is the proper royalty rate 
    to assess against the gross receipts of each subscriber group? For 
    example, if a cable system carried two distant signals on an a la carte 
    basis, one a permitted signal and the other a non-permitted signal at 
    the 3.75% rate, how can it be determined which subscriber group is 
    receiving the less expensive base rate permitted signal, and which 
    group is receiving the more expensive 3.75% rate non-permitted signal? 
    Obviously, there is a powerful incentive for the cable operator to 
    assign the 3.75% rate to the signal with the fewest subscribers, and 
    hence the lowest amount of gross receipts. A similar problem occurs in 
    applying the decreasing rates for permitted signals. Are there any 
    fixed factors which the Copyright Office could apply to prevent the 
    repeated occurrence of applying the lower rate against the higher gross 
    receipts? What effect would that have on the total royalty pool 
    generated by section 111?
        The Copyright Office requests comment on the questions raised in 
    this extended comment period, as well as any other issues related to 
    compulsory license royalty payments for a la carte offerings of 
    broadcast signals.
    
    List of Subjects
    
        Cable compulsory license; Cable television systems.
    
        Dated: December 29, 1994.
    Marybeth Peters,
    Register of Copyrights.
        Approved by:
    James H. Billington,
    The Librarian of Congress.
    [FR Doc. 95-439 Filed 1-6-95; 8:45 am]
    BILLING CODE 1410-31-P
    
    

Document Information

Published:
01/09/1995
Department:
U.S. Copyright Office, Library of Congress
Entry Type:
Proposed Rule
Action:
Extension of comment period.
Document Number:
95-439
Dates:
Initial comments should be received by February 23, 1995. Reply comments should be received by February 8, 1995.
Pages:
2365-2367 (3 pages)
Docket Numbers:
Docket No. RM 89-2A
PDF File:
95-439.pdf
CFR: (1)
37 CFR 201