E9-31095. Implementation of Section 1003(b) of the Department of Defense Appropriations Act, 2010

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document establishes a new sunset date for certain Commission's rules applicable to retransmission consent in accordance with Section 1003(b) of the Department of Defense Appropriations Act, 2010, Public Law No. 111-118.

DATES:

Effective December 31, 2009.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

For additional information on this proceeding, contact David Konczal, [e-mail], of the Media Bureau, Policy Division, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Order, FCC 09-113, adopted and released on December 28, 2009. 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. This document will also be available via ECFS (http://www.fcc.gov/​cgb/​ecfs/​). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to [e-mail] or call the Commission's Consumer and Governmental Affairs Bureau at [phone] (voice), [phone] (TTY).

Summary of the Order

I. Introduction

1. In this Order, we amend §§ 76.64(l) and 76.65(f) of the Commission's rules in accordance with Section 1003(b) of the Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b) (2009), which was enacted on December 19, 2009. Section 325(b)(3)(C)(ii) of the Communications Act of 1934, as amended (the “Act”), required the Commission to adopt regulations that, until January 1, 2010, prohibit a television broadcast station that provides retransmission consent from engaging in exclusive contracts for carriage or failing to negotiate in good faith. 47 U.S.C. 325(b)(3)(C)(ii). Section 325(b)(3)(C)(iii) required the Commission to adopt regulations that, until January 1, 2010, prohibit a multichannel video programming distributor from failing to negotiate in good faith for retransmission consent. 47 U.S.C. 325(b)(3)(C)(iii). The Commission has previously adopted rules to implement these provisions, including §§ 76.64(l) and 76.65(f) to reflect the sunset date of January 1, 2010. See 47 CFR 76.64(l) (“Exclusive retransmission consent agreements are prohibited. No television broadcast station shall make or negotiate any agreement with one multichannel video programming distributor for carriage to the exclusion of other multichannel video programming distributors. This paragraph shall terminate at midnight on December 31, 2009.”); 47 CFR 76.65(f) (“Termination of rules. This section shall terminate at midnight on December 31, 2009.”).

2. In Section 1003(b) of the Department of Defense Appropriations Act, 2010, Congress amended Sections 325(b)(3)(C)(ii) and (iii) to replace the previous sunset date of January 1, 2010 with a new sunset date of March 1, 2010. See Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b). Accordingly, we are amending our rules to reflect the new sunset date, provided that if Congress further extends this date, the rules remain in effect until the statutory authorization expires. We are amending these rules without providing prior public notice and comment because prior notice and comment would be impracticable in this case. See 5 U.S.C. 553(b)(3)(B). Section 1003(b) of the Department of Defense Appropriations Act, 2010 was enacted on December 19, 2009, less than two weeks before the sunset date of January 1, 2010. This provides the Commission with an insufficient amount of time to publish a Notice of Proposed Rulemaking in the Federal Register, to allow time for meaningful comment, and to consider those comments before taking the necessary actions prior to the sunset date of January 1, 2010. See Petry v. Block, 737 F.2d 1193, 1201 (D.C. Circ. 1984) (holding that the “extremely limited time given by Congress” established “good cause” for not seeking prior notice and comment). Moreover, our action here is largely ministerial, because it simply implements a new sunset date established by Congress. See 5 U.S.C. 553(b)(3)(B). See, e.g., Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 (DC Cir. 1982) (agency order, issued pursuant to congressional waiver of certain provisions of federal law that would otherwise have governed construction and operation of Alaskan natural gas pipeline, was appropriately issued without notice and comment as a nondiscretionary ministerial action); Implementation of Section 505 of the Telecommunications Act of 1996 (Scrambling of Sexually Explicit Adult Video Service Programming), 11 FCC Rcd 5386, 5387 (1996); Implementation of Sections 204(A) and 204(C) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), 11 FCC Rcd 6363, 6364 (1996); Implementation of Sections 202(A) and 202(B)(1) of the Telecommunications Act of 1996 (Broadcast Radio Ownership), 11 FCC Rcd 12368, 12371 (1996); Implementation of Sections 202(c)(1) and 202(e) of the Telecommunications Act of 1996 (National Broadcast Television Ownership and Dual Network Operations), 11 FCC Rcd 12374, 12377 (1996). Accordingly, we find that this action falls within the “good cause” exception to the notice and comment requirements of the Administrative Procedure Act (“APA”). Because we have found good cause for not seeking prior notice and comment, the Regulatory Flexibility Act and the Congressional Review Act do not apply to our action here. See 5 U.S.C. 603(a); 5 U.S.C. 808. For similar reasons, we find good cause to make these amendments to our rules effective upon publication in the Federal Register. Because the legislation establishing the new sunset date was enacted less than two weeks prior to the previous sunset date of January 1, 2010, we are unable to provide for a 30-day period before the new sunset date in these rules takes effect. See 5 U.S.C. 553(d)(3) (“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.”); see also 47 CFR 1.427(b).

II. Procedural Matters

3. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

III. Ordering Clauses

4. It is ordered that pursuant to the authority found in Section 325 of the Communications Act of 1934, as amended, 47 U.S.C. 325, and Section 1003(b) of the Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b) (2009), §§ 76.64(l) and 76.65(f) of the Commission's rules are hereby amended as set forth in the rule changes below and are effective December 31, 2009.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Rule Changes

For the reasons stated in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

1. The authority citation for part 76 continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.

2. Section 76.64 is amended by revising the last sentence of paragraph (l) to read as follows:

§ 76.64

Retransmission consent.

* * * * *

(l) * * * This paragraph shall terminate at midnight on February 28, 2010, provided that if Congress further extends this date, the rules remain in effect until the statutory authorization expires.

* * * * *

3. Section 76.65 is amended by revising paragraph (f) to read as follows:

§ 76.65

Good faith and exclusive retransmission consent complaints.

* * * * *

(f) Termination of rules. This section shall terminate at midnight on February 28, 2010, provided that if Congress further extends this date, the rules remain in effect until the statutory authorization expires.