[Federal Register Volume 64, Number 25 (Monday, February 8, 1999)]
[Rules and Regulations]
[Pages 5951-5957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1346]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 100
[MM Docket 93-25; FCC 98-307]
Direct Broadcast Satellite Public Interest Obligations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission imposes requirements on
Direct Broadcast Satellite Service (DBS) providers to comply with the
political broadcast rules of the Communications Act of 1934, as
amended, and mandates that DBS providers reserve between 4 percent and
7 percent of their channel capacity exclusively for ``noncommercial
programming of an educational or informational nature.'' These rules
will provide for the carriage on DBS systems of qualified political
candidates for national office and will make DBS channel capacity
available to ``national educational programming suppliers,'' upon
reasonable prices, terms, and conditions.
DATES: Effective June 15, 1999 except for Sec. 100.5(c)(6) which
contains information collection requirements that are not effective
until approved by the Office of Management and Budget. The FCC will
publish a document in the Federal Register announcing the effective
date for that section. Written Comments regarding the Paperwork
Reduction Act requirements in Sec. 100.5(c)(6) should be submitted on
or before April 9, 1999.
ADDRESSES: Comments regarding the paperwork reduction act requirements
in Sec. 100.5(c)(6) should be submitted to Les Smith at 445 12th Street
S.W., Rm. 1-A804, Washington D.C. 20554 or via internet at
lesmith@fcc.gov; phone 202-418-0217.
FOR FURTHER INFORMATION CONTACT: For more information regarding the
Report and Order contact Rosalee Chiara (202) 418-0754 or James Taylor
(202) 418-2113 of the International Bureau. For more information
regarding the information collections and to submit comments, contact
Les Smith at 202-418-0217; 445 12th Street S.W., Rm. 1-A804, Washington
D.C. 20554 or via internet at lesmith@fcc.gov, and Timothy Fain, OMB
Desk Officer, Rm. 10236 NEOB, 725 17th Street, N.W., Washington, D.C.
20503 or fain__t@al.eop.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in MM Docket No. 93-25; FCC 98-307, adopted November 19, 1998
and released on November 25, 1998. The complete text of this Report and
Order is available for inspection and copying during normal business
hours in the FCC Reference Center (Room), 445 12th Street, S.W.
Washington, D.C. 20554, and also may be purchased from the Commission's
copy contractor, International Transcription Service, Inc., 1231 20th
Street, N.W., Washington, DC 20036, telephone: 202-857-3800, facsimile:
202-857-3805.
Summary of Report and Order
1. On March 2, 1993 the Commission released a Notice of Proposed
Rulemaking to implement Section 25 of the 1992 Cable Television
Consumer Protection and Competition Act of 1992
[[Page 5952]]
(``1992 Cable Act'').1 Specifically, Section 25 of the 1992
Cable Act, which added new Section 335 to the Communications Act of
1934, as amended, (the Act) required the Commission to impose on
providers of Direct Broadcast Satellite Service (DBS), the political
programming requirements of Sections 312(a)(7) and 315 of the Act and
adopt rules requiring the set aside of channels for noncommercial
educational and informational programming. In addition, Section 25 also
directed the Commission to examine the opportunities for localism.
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\1\ In the Matter of Implementation of Section 25 of the Cable
Television Consumer Protection and Competition Act of 1992, Direct
Broadcast Satellite Public Service Obligations, 8 FCC Rcd. 1589
(1993).
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2. On September 16, 1993 the United States District Court for the
District of Columbia held that Section 25 of the 1992 Cable Act was
unconstitutional.2 On August 30, 1996, the United States
Court of Appeals for the District of Columbia Circuit reversed the
District Court.3 In light of the interval between the
original Notice of Proposed Rulemaking and the appellate court
decision, the Commission released a Public Notice on January 31, 1997
seeking to update and refresh the record.4 Following review
of the comments provided, the Commission released the Report and Order
summarized here.
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\2\ Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1
(D.D.C. 1993).
\3\ Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957
(D.C. Cir. 1996).
\4\ Public Notice (No. 72078, rel. January 31, 1997).
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3. Entities responsible for complying with DBS public interest
obligations. The Commission will hold part 100 and part 25 DBS
licensees ultimately responsible for compliance with these rules.
Licensees will, however, be able to demonstrate compliance with the
public service obligations by relying on certifications from
distributors that expressly state that they have complied with the
public service obligations. Satellites licensed under Part 25, but
operating in the C-band, are not covered by these rules because the
statute specifies only Ku-band licensees. In the case of Part 25
licensees, the Commission has imposed a threshold for inclusion under
the rules that requires an entity control at least enough programming
channels so that 4 percent of the total programming channels available
for video yields a set-aside of at least one noncommercial, educational
or informational programming channel.
4. Application of public service obligations to foreign satellites
entering the U.S. Market. Section 25.137 of the Commission's rules
requires that earth stations operating with non-U.S. licensed
satellites be licensed by the Commission. As a condition of its
license, the Commission will require the earth station licensee
communicating with a non-U.S. licensed satellite to comply with Section
335 public interest rules.
5. Application of the political broadcasting provisions of Section
335(a). Section 335(a) of the Act states, among other things, that any
regulations shall, at a minimum, impose the political broadcast rules
of Sections 312 and 315 of the Act.
6. Access for Federal Candidates. Section 312(a)(7) of the Act
requires broadcasters to allow legally qualified candidates for federal
office reasonable access to their facilities. Access can be provided on
a free or paid basis. Since the passage of Section 312(a)(7), the
Commission's policy has generally been to defer to the reasonable, good
faith judgment of licensees as to what constitutes ``reasonable
access'' under the circumstances present in a particular case. Factors
the Commission would consider in reviewing such a case include the
number of candidates requesting time, the technical difficulties in
satisfying the request, and the availability of reasonable
alternatives.
7. The Commission will monitor DBS providers' performance in this
area so that it can modify the Commission's rules if necessary and as
experience dictates. The Commission will require DBS providers to
maintain a file available to the public at the providers' headquarters
containing requests for political advertising time and disposition of
those requests. Where DBS providers carry the programming of a
terrestrial broadcast television station, it is the responsibility of
the terrestrial broadcaster and not the DBS provider to satisfy the
political broadcasting requirements of Sections 312(a)(7).
8. Equal Opportunities. In conformance with statutory mandate, the
Commission will apply the equal opportunities provisions of Section
315(a) of the Act, Section 73.1940 of the Commission's rules, and the
policies delineated in prior Commission orders to DBS providers. DBS
providers will be required to ensure, by contractual means or
otherwise, that these rules are followed. If one legally qualified
candidate is afforded access to a DBS system, all other candidates for
the same office who make timely requests must be afforded that same
opportunity.5 To ensure that competing candidates will be
able to ascertain what equal opportunities they are entitled to, we
will require the DBS provider to maintain a political file similar to
the one maintained by broadcasters.6 The Report and Order
retains the definitions of ``use'' and ``legally qualified candidate''
in current rules and policies. The Commission will resolve issues
involving DBS providers' equal opportunities obligations in the context
of particular cases.
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\5\ 47 CFR 73.1941(c) (a request must be made within one week of
the day on which the first prior use giving rise to the right of
equal opportunities occurred).
\6\ See 47 CFR 73.1943 (requiring the licensee to keep and
permit public inspection of a complete record of all requests for
broadcast time made and a notation showing the disposition, charges,
etc.).
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9. Lowest Unit Charge. If advertising is sold on DBS systems,
legally qualified candidates must be afforded the benefit of the lowest
unit charge (LUC) during the pre-election periods prescribed by Section
315 of the Act. Section 315(b) of the Act and Section 73.1942 of the
Commission's rules provide that broadcasters may not charge any legally
qualified candidate more than the LUC for advertising on the station
during certain periods preceding the election. Although DBS providers
do not currently have commercial rates on which to base a LUC
determination, they can set a reasonable rate, based on consideration
of marketplace factors such as what other media charge to reach a
similar audience if they sell time to candidates pursuant to Sections
312 or 315 of the Act or otherwise choose to do so. DBS providers, like
broadcasters and cable operators, must disclose to candidates
information about rates and discount privileges and give any discount
privileges to candidates. A DBS provider may make time available
without charge on a nondiscriminatory basis.
10. Opportunities for Localism. Section 335(a) also requires the
Commission ``to examine the opportunities that the establishment of
direct broadcast satellite service provides for the principle of
localism under [the] Act, and the methods by which such principle may
be served through technological and other developments in, or
regulation of, such service.'' Although there have been significant
technological developments in the DBS industry since the Commission
first developed rules for DBS, and some DBS providers are providing
limited local service, no DBS provider has the technical capability to
provide local service to all markets in the country. If legal and
technical issues regarding localized programming are resolved, the
Commission may consider
[[Page 5953]]
requiring DBS providers to offer some amount of locally-oriented
programming.
11. Public Interest or Other Obligations. The Report and Order does
not impose upon the DBS industry additional programming requirements.
The Commission found that DBS is a relatively new entrant attempting to
compete with an established, financially stable cable industry.
Although the DBS industry has grown significantly since 1992, it still
claims just under eight million subscribers in contrast to cable's 64
million customers. Additional obligations on DBS providers might hinder
the development of DBS as a viable competitor to cable. The Commission
concluded that, although Section 335(a) provides ample authority to
impose other public interest programming requirements upon DBS
providers, it would not exercise its authority at this time. If it
becomes evident that there is a need, the Commission will reconsider
this conclusion.
12. Carriage Obligations for Educational and Informational
Programming. The 1992 Cable Act requires the Commission to adopt rules
requiring DBS providers to make available channel capacity for
programming of an educational or informational nature. The Commission
concluded that discrete channels should be reserved to fulfill the
noncommercial reservation requirements of Section 335(b) to assure
continuity, predictability and easier monitoring and enforcement.
Requiring the set aside of discrete channels will make it easier for
consumers to locate such programming on one or more particular
channels.
13. Determination of Total Channel Capacity. For the purpose of
applying Section 335(b), channel capacity should be based on the total
channel capacity that is being, or could be, used to provide video
programming. Barker and other informational guide channels will be
included as available channels for determining the required set aside,
as they are video channels supplied to the customers. In addition,
unused channels that could be used to provide DBS service will be
included in the set aside calculation. Channels used for audio or other
non-video services will not be included.
14. Because advances in digital compression technology will
continue to expand the number of programming channels that can be
offered to customers in a given amount of spectrum and the number of
available channels will change depending on the complexity of the type
of programming transmitted, the total number of programming channels
offered by a DBS licensee on all its satellites can vary on a weekly or
even a daily basis. To address these fluctuations, each DBS licensee
will have to calculate on a quarterly basis the number of channels
available for video programming on all its satellites. Each DBS
licensee will then use the average of these quarterly measurements
during the year to ascertain the total number of channels for purposes
of determining the number of reserved channels. DBS providers will be
required to record these quarterly channel measurements and average
calculations as well as their response to any capacity changes in logs
kept at their main offices and available to the Commission and to the
public.
15. Reservation Percentage. The Commission concluded that DBS
providers will be required to reserve four percent of their channel
capacity exclusively for noncommercial educational and informational
programming. In the event that the four percent calculation creates any
fraction of a channel, the DBS provider will round the calculation
upward.7 The public interest programming provided for in
this order must be made available to all of a DBS provider's
subscribers without additional charge.
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\7\ For example, if a DBS provider supplies 120 video channels
to customers, the provider will have to reserve initially five
channels for noncommercial programming of an educational or
informational nature. Four percent of 120 channels amounts to 4.8
channels. Under the rule this figure would be rounded up to 5
channels.
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16. Impact on Existing Programming Contracts. The Commission
concluded that the reservation requirement applies notwithstanding
existing programming contracts and DBS providers will have to make
available sufficient channel capacity to fulfill the reservation
requirement, regardless of existing programming contracts.
17. National Educational Programming Supplier. Pursuant to Section
335(b)(3), DBS providers must make the reserved channels available to
``national educational programming suppliers'' upon certain terms.
Section 335(b)(5)(B) provides that the term national educational
programming supplier ``includes any qualified noncommercial educational
television station, other public telecommunications entities, and
public or private educational institutions.'' Neither this section of
the statute nor the legislative history define ``noncommercial
educational broadcast station,'' ``public broadcasting entity'' or
``public telecommunications entity.'' In the absence of any other
Congressional guidance the Commission looked to other provisions of the
Act in which those terms are defined such as Section 397 of the Act.
18. Section 397(6) of the Act defines a ``noncommercial educational
broadcast station'' as a television or radio broadcast station that (i)
``is eligible to be licensed by the Commission as a noncommercial
educational radio or television broadcast station and which is owned
and operated by a public agency or nonprofit private foundation,
corporation, or association,'' or (ii) ``is owned and operated by a
municipality and which transmits only noncommercial programs for
educational purposes.'' The Commission found it appropriate to use the
definition of noncommercial educational television station and public
telecommunication entity used in the noncommercial broadcast context
and noted that Section 615(1) of the Act further defines such a station
to include any television broadcast station that has as its licensee an
entity eligible to receive a community service grant from the
Corporation for Public Broadcasting.
19. Section 397(12) of the Act defines ``public telecommunications
entity'' as any enterprise which (i) ``is a public broadcast station or
a noncommercial telecommunications entity'' and (ii) ``disseminates
public telecommunications services to the public.'' A ``noncommercial
telecommunications entity'' is defined as ``any enterprise which is
owned and operated by a state, a political or special purpose
subdivision of a state, a public agency, or a nonprofit private
foundation, corporation or association, and has been organized
primarily for the purpose of disseminating audio or video noncommercial
educational and cultural programs to the public by means other than a
primary television or radio broadcast station.'' 8 These
entities are required to disseminate ``public telecommunications
services,'' which are defined as noncommercial educational and cultural
radio and television programs, and related noncommercial instructional
or informational material.9
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\8\ 47 U.S.C. 397(7). The means of dissemination include, but
are not limited to, coaxial cable, optical fiber, broadcast
translators, cassettes, discs, microwave, or laser transmission
through the atmosphere.
\9\ 47 U.S.C. 397(14).
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20. Section 397 of the Act does not define the term ``public or
private educational institutions.'' The Commission looked elsewhere for
guidance in defining that term including incorporating the eligibility
criteria established by the rules for instructional
[[Page 5954]]
television fixed stations (``ITFS'') contained in Section 74.932 of the
Commission's rules because the types of services provided by
educational institutions and ITFS are analogous.10 Section
74.932(a) provides that a license for an ITFS will be issued only to an
accredited institution or to a governmental organization engaged in the
formal education of enrolled students or to a nonprofit organization
whose purposes are educational and include providing educational and
instructional television material to such accredited institutions and
governmental organizations. The Commission adopted the ITFS criteria in
interpreting ``public and private educational institutions.''
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\10\ 47 CFR 74.932(a). ITFS are intended primarily to provide
formal educational or cultural development to students enrolled in
accredited public or private institutions or colleges or
universities.
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21. Additional Entities. The Commission determined that the list of
entities in Section 335(b)(5)(B) was not intended to be an exclusive
list of entities that can qualify as national educational programming
suppliers but a nonexclusive list that may be enlarged upon. Although
the Commission did not interpret Section 335(b)(5)(B) as an exclusive
list of eligible program suppliers, the Commission found that Congress
intended to limit eligibility to entities that share the same essential
characteristics as those listed.
22. The Report and Order states that the term ``national
educational programming supplier'' in Section 335(b)(5)(B) includes
only noncommercial entities with an educational mission. The term
should not be interpreted as including ``commercial'' entities
organized for profit-making purposes. The Commission found that the
eligibility of a programming supplier under the statute should
depend on its noncommercial character, not merely whether its
programming contains commercials.
23. The Commission also found that the tax code definition of non-
profit will apply to qualify an entity as an eligible national
educational programming supplier.11 Thus, an entity with an
educational mission that is organized under the tax code as a nonprofit
corporation will be eligible as a national educational programming
supplier. An entity that is not organized as a nonprofit corporation
may also qualify if it shows to the Commission's satisfaction that it
is organized for a noncommercial purpose and has an educational
mission. The Report and Order permits joint ventures as long as
participants demonstrate that the joint venture is noncommercial within
the meaning of Section 335 and that the venture's mission is
educational.
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\11\ 26 U.S.C. 501(c)(3).
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24. Definition of the Term ``National''. The Commission interpreted
the term ``national'' broadly so as to include local, regional, or
national domestic nonprofit entities that qualify under the definitions
listed above and produce noncommercial programming designed for a
national audience. The Commission also found that the definition should
include international nonprofit programmers that satisfy the terms of
the definitions in Section 397 of the Act and the Commission's ITFS
rules.
25. Noncommercial Programming of an Educational or Informational
Nature. Section 335(b)(1) requires that the reserved channels be used
``exclusively for noncommercial programming of an educational or
informational nature.'' The Commission concluded that the rules need
not elaborate on the term ``educational and informational'' programming
and that a DBS provider can comply with the reservation requirement by
affording access to programming supplied by specific categories of
noncommercial entities. The Commission will reconsider this conclusion,
however, if it appears that more specific guidance on the definition of
this term is necessary.
26. Implementation of Section 335(b)(3); Editorial Control. Section
335(b)(3) requires DBS providers to make channel capacity available to
national educational programming suppliers but prohibits the DBS
provider from exercising any editorial control over any video
programming provided on the reserved channels. The Commission concluded
that the best reading of the editorial control language is that it
prohibits DBS providers from controlling the selection of, or in any
way editing or censoring, individual programs that will be carried on
the reserved channels. The Report and Order does not, however, prohibit
DBS operators from selecting among national educational programming
suppliers so long as the DBS provider does not refuse to make unused
reserved capacity available to qualified suppliers. Nor does it
prohibit DBS providers from refusing to carry non-qualifying
programming or ineligible programmers.
27. The Commission rejected arguments that the interpretation of
Section 335 is constrained by similar language in the cable leased
access provision. Section 335 only prohibits DBS providers from
exercising ``editorial control over programming,'' while the cable
leased access provision, Section 612, also prohibits cable operators
from ``in any other way consider[ing] the content of such
programming.'' The Commission found that omission of this last clause
from the DBS provision suggests that DBS providers are not necessarily
barred from considering certain factors relating to programming in
selecting programmers, but are prohibited from exercising control over
such programming. Thus, DBS providers might consider a variety of
factors in deciding which programmers to select, including the broad
genres of programming they plan to provide (e.g., cultural,
documentary, children's educational), the programmers' experience,
reliability, and reputation for quality programming, and the quality of
programming they may have produced in the past. They may not, however,
require the programmers they select to include particular series or
programs on their channels as a condition of carriage. If in the
future, it appears that DBS operators seek to use the selection process
as a means of improperly influencing programming provided on the
reserved channels, the Commission will take appropriate action.
28. The Report and Order does not prohibit the operators from
electing to use a consortium or clearinghouse of educators and public
interest specialists to choose among qualifying programs that would be
aired on the set-aside capacity. With regard to qualifications, the
Report and Order recognizes that someone must make the determination
that programmers who wish to use the reserved channels are eligible
under the statute to do so and that the programming carried on the
reserved channels qualifies under the statute as noncommercial
programming of an educational or informational nature. The Commission
found that DBS providers should be responsible for ensuring that the
obligations imposed by the statute are fulfilled. In order to avoid
undue intrusion into the programming decisions of qualified
programmers, however, the Commission does not believe that it would be
appropriate for DBS providers to pre-screen all programming carried on
the reserved channels. Rather, if an abuse of the reserved channels by
a particular programmer comes to the DBS provider's attention, it can
then take action to ensure that only qualified programs are carried on
the reserved channels by that programmer in the future.
29. DBS providers may not alter or censor the content of the
programming or otherwise exercise any control over the programming. To
aid in monitoring and enforcing the obligations of DBS
[[Page 5955]]
providers, we will require them to maintain files available for public
inspection concerning use of the reserved capacity. These files should
identify the entities that request access, the entities to whom
noncommercial capacity is being provided, the amount of capacity being
provided to each entity, the conditions under which it is being
provided and the rates, if any, being paid by the entity, and, when
access is denied, a brief description of the reason or reasons why
access was denied.
30. Non-commercial channel limitation. In order to ensure that
access to non-commercial channels is not dominated by a few national
educational program suppliers, the Report and Order limits to one the
number of channels that can be initially allocated to a single
qualified program provider on each DBS system. The Commission found
this will make a greater variety of educational and informational
programs available to the U.S. viewing public and will provide an
opportunity for carriage of programming that might not otherwise be
shown.
31. In order to ensure that a particular programmer will be allowed
access to only one channel, the Commission will require that individual
programmers be separate entities. If two national educational
programming suppliers are directly or indirectly under common control
or ownership, the will be treated as one entity for purposes of
obtaining access to the reserved channels. In applying this provision,
the Commission will define cognizable ownership and other interests
according to the Commission's broadcast attribution rules.12
Those rules seek to identify those interests in, or relationships with,
an entity that confer on their holders a degree of influence or control
such that the holders have a realistic potential to affect the
programming decisions of the entity or other core operating functions.
If, after all qualified entities that have sought access have been
offered access on at least one channel, a provider may allocate an
additional channel to a qualified programmer without having to make
additional efforts to secure other qualified programmers.
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\12\ 47 CFR 73.3555 note 1 & 2.
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32. Liability for Violations. Because Section 335 prohibits DBS
providers from exercising any editorial control over programming
utilizing the reserved channels, the Commission interpreted the statute
in accordance with the Supreme Court's holding in Farmers Educational
and Cooperative Union of America v. WDAY, 13 as immunizing
the DBS providers from liability under state and local laws as a result
of the content of the programming. Section 335(b) prohibits DBS
providers from exercising ``any editorial control'' over noncommercial
programming using the set-aside capacity, and thus implicitly grants
them immunity from liability under state and local law for distributing
such programming. By the same token, the Commission will enforce any
requirements imposed by the Act or our rules, other than these public
interest obligations, against the programmers who supply such
programming, rather than the DBS providers who carry it under Section
335.
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\13\ 360 US 525 (1959) (Farmers Union).
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33. Applicability of Political Broadcasting Rules to the
Noncommercial Set Aside Capacity. The statutory language makes clear
that noncommercial programming suppliers are not considered DBS
providers for purpose of either Section 335(a) or Section 335(b) and
are not subject to those requirements.
34. Refusal to Carry Programming Supplier. Section 335 does not
appear to allow DBS operators to refuse to carry any particular
program. This does not, however, mean that a DBS provider is prevented
from making an initial threshold determination as to whether a
programmer is qualified for carriage or whether the programming
proposed is noncommercial, educational, or informational. The
Commission found this approach consistent with judicial interpretation
of the editorial control prohibition for public, educational, and
governmental set-aside channels provided by cable operators. In
addition, a DBS provider can set technical quality standards for
programming carried on its satellite system and these standards can be
applied to programming on the set-aside channels.
35. Unused Channel Capacity. Section 335(b)(2) of the
Communications Act permits a DBS provider to utilize for any purpose
any unused channel capacity required to be reserved under this
subsection pending the actual use of such channel capacity for
noncommercial programming of an educational or informational nature. A
DBS provider will however, be required to vacate reserved capacity,
regardless of contractual obligations, within a reasonable time after a
qualified programmer's request for access has been received.
36. Reasonable Prices, Terms, and Conditions. The Commission
concluded that costs that can be specifically allocated to
noncommercial programmers are those that are directly related to making
the capacity available to noncommercial programmers. These include,
incremental labor required for traffic management at the uplink
facility, incremental compression equipment, incremental labor required
to authorize viewers to receive particular programming, and any
backhaul costs actually incurred by the DBS provider in order to
transmit the noncommercial educational or informational programming. If
a DBS provider has an authorization center or procedure used solely for
the provision of noncommercial channels, such costs may be allocated to
noncommercial programmers as well.
37. With regard to rates that are appropriate for the set aside
channels under Section 335(b), the statute gives certain guidelines for
the Commission to apply. First, Section 335(b)(4) says the Commission
should take into account the nonprofit character of the programmer and
any federal funds used to support programming. Second, the statute
provides that the Commission shall not allow rates to exceed 50 percent
of the direct costs, which we have discussed above.
38. The Commission thinks that it should not be involved in setting
rates for noncommercial programmers because the Commission does not set
rates for satellite capacity in any other context. The Commission will
address any disputes with respect to rates in the context of a
complaint proceeding. Because the statute does not give the Commission
any basis upon which to differentiate among noncommercial educational
and informational programming based on the availability of outside
financing, the Commission concluded that the 50 percent cap applies to
all qualified programmers and not just those who receive no outside
funding for their programs.
39. Effective Date. The Commission concluded that a long phase-in
period is unnecessary. The Commission recognized, however, that DBS
providers and programmers need some amount of time in which to solidify
plans and execute contracts. The Commission will require each DBS
provider make available the channel capacity for educational and
informational programming of a noncommercial nature as soon as the
rules become effective. DBS providers must open a window at that time
to allow interested programming suppliers to enter into discussions
with the DBS providers regarding program carriage. Programming intended
to fulfill the
[[Page 5956]]
provisions of this section must be made available to the public no
later than six months after these rules are effective. Until the four
percent of capacity is filled with qualified programming, DBS providers
may not assert that capacity is unavailable if there are qualified
entities seeking carriage who are ready to meet the prices, terms and
conditions established by the DBS provider.
Ordering Clauses
40. Accordingly, it is ordered that Part 100 of the Commission's
rules is hereby amended as set out.
41. It is further ordered that the Commission's Office of Managing
Director shall send a copy of this Report and Order, including the
Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
42. It is further ordered that the amendments to part 100 of the
Commission's rules, 47 CFR part 100, and the Commission's policies,
rules and requirements established in this Report and Order shall take
effect 60 days after publication of the amendments in the Federal
Register, or in accordance with the requirements of 5 U.S.C. 801(a)(3)
and 44 U.S.C. 3507, whichever occurs later. The Commission will publish
a notice announcing the effective date of this Report and Order.
43. It is further ordered that the Commission shall send a copy of
this Report and Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
44. This Report and Order is issued under Sec. 0.261 of the
Commission's rules, 47 CFR 0.261 (1996). Petitions for reconsideration
under Sec. 1.429 of the Commission's rules, 47 CFR 1.429 (1996), or
applications for review under Section 1.115 of the Commission's rules,
47 CFR 1.115 (1996), may be filed within 30 days of the date of this
Report and Order in the Federal Register (See 47 CFR 1.4(b)(1)).
Paperwork Reduction Act
The Federal Communications Commission, as part of its continuing
effort to reduce paperwork burden invites the general public and other
Federal agencies to take this opportunity to comment on the following
information collection, as required by the Paperwork Reduction Act of
1995, Public Law 104-13. An agency may not conduct or sponsor a
collection of information unless it displays a currently valid control
number. No person shall be subject to any penalty for failing to comply
with a collection of information subject to the Paperwork Reduction Act
(PRA) that does not display a valid control number. Comments are
requested concerning (a) whether the proposed collection of information
is necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimate; (c) ways
to enhance the quality, utility, and clarify of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: New.
Title: Implementation of Section 25 of the Cable Television
Consumer Protection and Competition Act of 1992, Direct Broadcast
Satellite Public Interest Obligations.
Form No.: NA.
Type of Collection: New Collection.
Respondents: Business or other for-profit.
Number of Respondents: 8.
Estimated Time for Response: 12 hours.
Total Annual Burden: 96 hours.
Needs and Uses: The information will be used by the Federal
Communications Commission (FCC) and interested members of the public to
monitor DBS providers' compliance with public interest obligations.
Without such information, the FCC could not determine whether DBS
providers have complied with their obligations.
List of Subjects in 47 CFR Part 100
Satellite.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 100 as follows:
PART 100--DIRECT BROADCAST SATELLITE SERVICE
1. The authority citation for part 100 is amended to read as
follows:
Authority: 47 U.S.C. 154, 303, 335, 309 and 554.
2. Add Sec. 100.5 to read as follows:
Subpart A--General Information
Sec. 100.5 Public interest obligations.
(a) DBS providers are subject to the public interest obligations
set forth in paragraphs (b) and (c) of this section. For purposes of
this rule, DBS providers are any of the following:
(1) Entities licensed pursuant to 47 CFR part 100; or
(2) Entities licensed pursuant to part 25 of this chapter that
operate satellites in the Ku-band fixed satellite service and that sell
or lease capacity to a video programming distributor that offers
service directly to consumers providing a sufficient number of channels
so that four percent of the total applicable programming channels
yields a set-aside of at least one channel of non-commercial
programming pursuant to paragraph (c) of this section, or
(3) Non-U.S. licensed satellite operators in the Ku-band that offer
video programming directly to consumers in the United States pursuant
to an earth station license issued under part 25 of this title and that
offer in a sufficient number of channels to consumers so that four
percent of the total applicable programming channels yields a set-aside
of one channel of non-commercial programming pursuant to paragraph (c)
of this section,
(b) Political broadcasting requirements--(1) Reasonable access. DBS
providers must comply with Sec. 312(a)(7) of the Communications Act of
1934, as amended, by allowing reasonable access to, or permitting
purchase of reasonable amounts of time for, the use of their facilities
by a legally qualified candidate for federal elective office on behalf
of his or her candidacy.
(2) Use of facilities. DBS providers must comply with Sec. 315 of
the Communications Act of 1934, as amended, by providing equal
opportunities to legally qualified candidates.
(c) Carriage obligation for noncommercial programming--(1)
Reservation requirement. DBS providers shall reserve four percent of
their channel capacity exclusively for use by qualified programmers for
noncommercial programming of an educational or informational nature.
Channel capacity shall be determined annually by calculating, based on
measurements taken on a quarterly basis, the average number of channels
available for video programming on all satellites licensed to the
provider during the previous year. DBS providers may use this reserved
capacity for any purpose until such time as it is used for
noncommercial educational or informational programming.
(2) Qualified programmer. For purposes of these rules, a qualified
programmer is:
(i) A noncommercial educational broadcast station as defined in
Sec. 397(6)
[[Page 5957]]
of the Communications Act of 1934, as amended,
(ii) A public telecommunications entity as defined in Sec. 397(12)
of the Communications Act of 1934, as amended,
(iii) An accredited nonprofit educational institution or a
governmental organization engaged in the formal education of enrolled
students (A publicly supported educational institution must be
accredited by the appropriate state department of education; a
privately controlled educational institution must be accredited by the
appropriate state department of education or the recognized regional
and national accrediting organizations.), or
(iv) A nonprofit organization whose purposes are educational and
include providing educational and instructional television material to
such accredited institutions and governmental organizations.
(v) Other noncommercial entities with an educational mission.
(3) Editorial control.
(i) A DBS operator will be required to make capacity available only
to qualified programmers and may select among such programmers when
demand exceeds the capacity of their reserved channels.
(ii) A DBS operator may not require the programmers it selects to
include particular programming on its channels.
(iii) A DBS operator may not alter or censor the content of the
programming provided by the qualified programmer using the channels
reserved pursuant to this section.
(4) Non-commercial channel limitation. A DBS operator cannot
initially select a qualified programmer to fill more than one of its
reserved channels except that, after all qualified entities that have
sought access have been offered access on at least one channel, a
provider may allocate additional channels to qualified programmers
without having to make additional efforts to secure other qualified
programmers.
(5) Rates, terms and conditions. (i) In making the required
reserved capacity available, DBS providers cannot charge rates that
exceed costs that are directly related to making the capacity available
to qualified programmers. Direct costs include only the cost of
transmitting the signal to the uplink facility and uplinking the signal
to the satellite.
(ii) Rates for capacity reserved under paragraph (c)(1) of this
section shall not exceed 50 percent of the direct costs as defined in
this section.
(iii) Nothing in this section shall be construed to prohibit DBS
providers from negotiating rates with qualified programmers that are
less than 50 percent of direct costs or from paying qualified
programmers for the use of their programming.
(iv) DBS providers shall reserve discrete channels and offer these
to qualifying programmers at consistent times to fulfill the
reservation requirement described in these rules.
(6) Public file. (i) Each DBS provider shall keep and permit public
inspection of a complete and orderly record of:
(A) Quarterly measurements of channel capacity and yearly average
calculations on which it bases its four percent reservation, as well as
its response to any capacity changes;
(B) A record of entities to whom noncommercial capacity is being
provided, the amount of capacity being provided to each entity, the
conditions under which it is being provided and the rates, if any,
being paid by the entity;
(C) A record of entities that have requested capacity, disposition
of those requests and reasons for the disposition; and
(D) A record of all requests for political advertising time and the
disposition of those requests.
(ii) All records required by this paragraph shall be placed in a
file available to the public as soon as possible and shall be retained
for a period of two years.
(7) Effective date. DBS providers are required to make channel
capacity available pursuant to paragraph (c) of this section upon the
effective date. Programming provided pursuant to this rule must be
available to the public no later than six months after the effective
date.
* * * * * *
[FR Doc. 99-1346 Filed 2-5-99; 8:45 am]
BILLING CODE 6712-01-P
