[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Proposed Rules]
[Pages 29333-29336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14567]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 95-178; FCC 96-197]
Definition of Markets for Purposes of the Cable Television Must-
Carry Rules
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comment on transitional mechanisms to
facilitate the switch from a local market definition based on
Arbitron's ``Areas of Dominant Influence'' (``ADIs'') to one using
Nielsen's ``Designated Market Areas'' (``DMAs'') for purposes of the
cable television broadcast signal carriage rules. The Commission
amended its rules to continue to use Arbitron 1991-1992 ADIs to define
local markets for the triennial must-carry/retransmission consent
election that must take place by October 1, 1996, and to switch to
Nielsen's DMAs beginning with the 1999 election in a Report and Order
adopted concurrently with the Further Notice of Proposed Rulemaking
(``Further NPRM'') and summarized elsewhere in this issue of the
Federal Register. The Commission previously anticipated that updated
market lists
[[Page 29334]]
would be available coincident with the triennial must-carry/
retransmission consent election cycle. However, Arbitron ceased
publication of its market lists. The Commission is concerned that a
change in market designation procedures will affect a greater number of
stations, cable systems, and cable subscribers than would have been
affected by simply using a newer ADI market list, as had been
contemplated. Thus, the Further NPRM provides an opportunity for the
Commission and affected parties to further consider issues related to
the transition to a revised definition of local markets. The Further
NPRM also requests comment on procedures to refine the Section 614(h)
ad hoc market modification process in light of the new statutory
requirement that the Commission act on such requests within 120 days.
DATES: Comments are due on or before October 31, 1996, and reply
comments are due on or before November 15, 1996. Written comments by
the public on the proposed and/or modified information collections are
due October 31, 1996.
ADDRESSES: Federal Communications Commission, Washington, D.C. 20554.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, NW., Washington, DC 20554, or via the Internet to
dconway@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Marcia Glauberman or John Adams, Cable
Services Bureau, (202) 418-7200. For additional information concerning
the information collections contained in this FNPRM contact Dorothy
Conway at 202-418-0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Further Notice of Proposed Rulemaking, CS Docket No. 95-178, FCC 96-197
adopted April 25, 1996, and released May 24, 1996. The full text of
this decision is available for inspection and copying during normal
business hours in the FCC Reference Center (room 239), 1919 M Street,
NW, Washington, DC. 20554.
Paperwork Reduction Act
This Report and Order and Further Notice of Proposed Rulemaking may
contain either proposed or modified information collections. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to comment on the information
collections contained in this Order/FNPRM, as required by the Paperwork
Reduction Act of 1995, Pub. L. 104-13. Public and agency comments are
due at the same time as other comments on this FNPRM. Comments should
address: (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) ways to enhance the quality, utility, and clarity of the
information collected; and (c) 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.
Synopsis of the Further Notice of Proposed Rulemaking
1. The Further NPRM solicits additional information and provides
parties an opportunity to further consider issues relating to the
transition to market designations based on Nielsen's ``Designated
Market Areas'' (``DMAs''). It also seeks comment on procedures for
refining the section 614(h) ad hoc market modification process which
allows the Commission to modify the market areas of individual stations
and cable systems.
2. Under the signal carriage provisions added to the Communications
Act (``Act'') by the Cable Television Consumer Protection and
Competition Act of 1992 (``1992 Cable Act''), commercial broadcast
television stations are permitted to elect once every three years
whether they will be carried by cable systems in their local markets
pursuant to the must-carry or retransmission consent rules. Section 614
of the Act, 47 U.S.C. 534, provides that a station electing must-carry
status is entitled to insist on carriage of its signal. A station
electing retransmission consent as set forth in section 325 of the Act,
47 U.S.C. 325 negotiates a carriage agreement with each cable operator
and may be compensated for its station's carriage.
3. For purposes of these carriage rights, a station is considered
local on all cable systems located in the same television market as the
station. As enacted in 1992, section 614(h)(1)(C) of the Act required,
through a cross-reference to a Commission rule dealing with broadcast
ownership issues, that a station's market shall be determined using the
Arbitron Ratings Company's ``areas of dominant influence'' or ``ADI.''
The rules adopted in 1993 to implement these signal carriage provisions
established a mechanism for determining a station's local market for
each must-carry/retransmission consent cycle based on ADI market lists.
For the initial election in 1993, Arbitron's 1991-1992 Television ADI
Market Guide was used to define local markets and for each subsequent
election cycle an updated ADI market list was to be used.
4. However, since we established these procedures, Arbitron left
the television research business and the market list specified in the
rules for this year's election is unavailable. Congress also recognized
that Arbitron no longer publishes television market lists and the
Telecommunications Act of 1996 (``1996 Act''), Pub. L. 104-104, 110
Stat. 56 (1996), amended the definition of local market that referenced
ADIs. Specifically, Section 614(h)(1)(C) of the Act was amended by
Section 301 of the 1996 Act to provide that for purposes of applying
the mandatory carriage provisions, a broadcasting station's market
shall be determined ``by the Commission by regulation or order using,
where available, commercial publications which delineate television
markets based on viewing
patterns * * *.''
5. In addition, section 614(h) of the Act requires the Commission
to consider petitions for market modifications to add communities to or
exclude communities from a station's local market based on historical
carriage, signal coverage, local service, and viewing patterns. The
1996 Act modified this provision to require the Commission to act on
all petitions for market modifications within 120 days.
6. Prior to the 1996 Act, but consistent with its amended
definition of local market, we issued the Notice of Proposed Rulemaking
(``NPRM'') in this proceeding, summarized at 61 FR 1888 (January 24,
1996), seeking comment on three proposals for revising the mechanism
for determining local markets. First, the Commission could substitute
Nielsen Media Research's ``designated market areas'' or ``DMAs'' for
Arbitron's ADIs. While similar in many ways, the differences between
DMA and ADI market areas could result in a change in the area in which
a station can insist on carriage rights and a change in the stations
that a cable system is required to carry. The second option would be to
continue to use Arbitron's 1991-1992 Television ADI Market Guide to
define market areas, subject to individual review and refinement
through the section 614(h) process. Under this option, the local market
definition would remain unchanged, subject only to future individual
market modifications. A third proposal would be to retain the existing
market definitions for the 1996
[[Page 29335]]
election period and switch to a Nielsen based standard for subsequent
elections.
7. In this Further Notice of Proposed Rulemaking, we seek comment
on mechanisms for facilitating the transition from a market definition
system based on ADIs to one based on DMAs. We believe it will be useful
to consider various means of easing the difficulties that may be
associated with what, as the comments indicate, will be changes in the
carriage requirements applicable to many cable operators and
broadcasters. These changes potentially affect mandatory carriage
rights, channel positioning obligations, retransmission consent
negotiations, copyright payments, the expectations of cable
subscribers, programming contracts, and even the physical layout and
construction of cable plant and operations. Thus, by this Further NPRM,
we seek specific suggestions that would assist in this transition
process. In particular, we ask commenters to consider whether special
provisions should be made for particular types of stations or systems
to minimize the disruptions that could occur due to a switch to DMAs.
8. The Further NPRM also requests comment on the consequences of a
shift in definitions on the more particularized market boundary
redefinition process contained in section 614(h) of the statute, the
decisions that have been made under that section, and the proceedings
under it that would result from shifting market definitions. We seek
specific comment on what changes in the modification process might be
warranted given that administrative resources available to process
section 614(h) requests are limited and the 1996 Act establishes a 120-
day time period for action on these petitions. Under the existing
process, a party is free to make its case using whatever evidence it
deems appropriate. One means of expediting the modification process
might be to establish specific evidentiary requirements in order to
support market modification petitions under section 614(h) of the Act
and Sec. 76.59 of the rules. Therefore, in the Further NPRM, we propose
several specific information submission requirements and seek comment
on these and other alternatives that parties believe will assist the
Commission in its review of individual requests.
9. A second potential means of increasing the efficiency of the
decision making process with respect to market modification petitions
would be to alter to some extent the burden of producing the relevant
evidence. In particular, we seek comment on whether the process could
be expedited by permitting the party seeking the modification to
establish a prima facie case based on historical carriage, technical
signal coverage of the area in question, and off-air viewing, which
could then trigger an obligation on the part of any objecting entity to
complete the factual record by presenting conflicting evidence as to
the actual economic market involved.
Initial Regulatory Flexibility Analysis
10. Pursuant to section 603 of the Regulatory Flexibility Act, the
Commission has prepared the following initial regulatory flexibility
analysis (``IRFA'') of the expected impact of these proposed policies
and rules on small entities. Written public comments are requested on
the IRFA. These comments must be filed in accordance with the same
filing deadlines as comments on the rest of the Further NPRM, but they
must have a separate and distinct heading designating them as responses
to the IRFA. The Secretary shall cause a copy of the Further NPRM,
including the IRFA, to be sent to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with section 603(a) of the
Regulatory Flexibility Act, Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601
et seq. (1981). Objectives. The objective of the Further NPRM is to
solicit comments on ways to ease the transition to a revised market
definition of local television markets based on Nielsen's DMAs for
must-carry/retransmission consent elections beginning in 1999. We
request information that will permit us to develop transitional
mechanisms to minimize problems that could result from changing market
designations on broadcasters' must-carry rights, cable operators'
signal carriage obligations, and the availability of local television
service to cable subscribers. The Further NPRM also seeks comment on
requirements intended to make the Section 614(h) market modification
process more efficient.
Legal Basis. Authority for this proposed rulemaking is contained in
sections 4(i), 4(j) and 614 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j) and 534, and in section 301 of the
Telecommunications Act of 1996, Pub. L. 104-104 (1996).
Description, Potential Impact and Number of Small Entities
Affected. Changing from a market definition based on ADIs to one based
on DMAs could affect the area in which certain small commercial
broadcast television stations are entitled to elect must-carry/
retransmission consent rights and change the signal carriage
obligations of certain small cable systems. The further NPRM requests
proposals to minimize the impact on such small entities as well as
other stations and cable systems.
Reporting, Recordkeeping and Other Compliance Requirements. None.
Federal Rules which Overlap, Duplicate or Conflict with these
Rules. None.
Any Significant Alternatives Minimizing Impact on Small Entities
and Consistent with Stated Objectives. None.
Ex Parte
11. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided that they are disclosed as provided in the Commission's rules.
See generally, 47 CFR 1.1202, 1.1203, and 1.1206(a).
Comment Dates
12. Pursuant to applicable procedures set forth in Secs. 1.415 and
1.419 of the Commission's rules, interested parties may file comments
on or before October 31, 1996, and reply comments on or before November
15, 1996. To file formally in this proceeding, you must file an
original plus six copies of all comments, reply comments, and
supporting comments. If you would like each Commissioner to receive a
personal copy of your comments and reply comments, you must file an
original plus 11 copies. You should send comments and reply comments to
the Office of the Secretary, Federal Communications Commission, 1919 M
Street, NW., Washington, DC 20554. Comments and reply comments will be
available for public inspection during regular business hours in the
FCC Reference Center, Room 239, Federal Communications Commission, 1919
M Street NW., Washington DC 20554.
Ordering Clauses
13. Authority for this proposed rulemaking is contained in sections
4(i), 4(j) and 614 of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 154(j) and 534, and section 301 of the
Telecommunications Act of 1996, Pub. L. 104-104 (1996), part 76.
14. It is ordered that, the Secretary shall send a copy of the
Further Notice of Proposed Rulemaking, including the Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with paragraph 603(a) of the
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C.
Secs. 601 et seq. (1981).
[[Page 29336]]
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-14567 Filed 6-7-96; 8:45 am]
BILLING CODE 6712-01-P
