Changes marked are as requested by H.R. 2821, a bill in the 110th Congress (as introduced).
Green text will be added by the proposed H.R. 2821 as introduced, Red text will be removed.
TITLE 17 > CHAPTER 1 > § 122
§ 122. Limitations on exclusive rights: Secondary transmissions by satellite carriers within local markets
(a) Secondary Transmissions of Television Broadcast Stations by Satellite Carriers.— A secondary transmission of a performance or display of a work embodied in a primary transmission of a television broadcast station into the station’s local market or adjacent market shall be subject to statutory licensing under this section if—
(1) the secondary transmission is made by a satellite carrier to the public;
(2) with regard to secondary transmissions, the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals; and
(3) the satellite carrier makes a direct or indirect charge for the secondary transmission to—
(A) each subscriber receiving the secondary transmission; or
(B) a distributor that has contracted with the satellite carrier for direct or indirect delivery of the secondary transmission to the public.; and
(4) in the case of a satellite carrier that makes secondary transmissions into a television broadcast station's adjacent market, the satellite carrier also makes secondary transmissions into that market of the signals of the television broadcast stations located in that market.
(b) Reporting Requirements.—
(1) Initial lists.— A satellite carrier that makes secondary transmissions of a primary transmission made by a network station under subsection (a) shall, within 90 days after commencing such secondary transmissions, submit to the network that owns or is affiliated with the network station a list identifying (by name in alphabetical order and street address, including county and zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission under subsection (a).
(2) Subsequent lists.— After the list is submitted under paragraph (1), the satellite carrier shall, on the 15th of each month, submit to the network a list identifying (by name in alphabetical order and street address, including county and zip code) any subscribers who have been added or dropped as subscribers since the last submission under this subsection.
(3) Use of subscriber information.— Subscriber information submitted by a satellite carrier under this subsection may be used only for the purposes of monitoring compliance by the satellite carrier with this section.
(4) Requirements of networks.— The submission requirements of this subsection shall apply to a satellite carrier only if the network to which the submissions are to be made places on file with the Register of Copyrights a document identifying the name and address of the person to whom such submissions are to be made. The Register of Copyrights shall maintain for public inspection a file of all such documents.
(c) No Royalty Fee Required.— A satellite carrier whose secondary transmissions are subject to statutory licensing under subsection (a) shall have no royalty obligation for such secondary transmissions.
(d) Noncompliance With Reporting and Regulatory Requirements.— Notwithstanding subsection (a), the willful or repeated secondary transmission to the public by a satellite carrier into the local market or adjacent market of a television broadcast station of a primary transmission embodying a performance or display of a work made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided under sections 502 through 506 and 509, if the satellite carrier has not complied with the reporting requirements of subsection (b) or with the rules, regulations, and authorizations of the Federal Communications Commission concerning the carriage of television broadcast signals.
(e) Willful Alterations.— Notwithstanding subsection (a), the secondary transmission to the public by a satellite carrier into the local market or adjacent market of a television broadcast station of a performance or display of a work embodied in a primary transmission made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the satellite carrier through changes, deletions, or additions, or is combined with programming from any other broadcast signal.
(f) Violation of Territorial Restrictions on Statutory License for Television Broadcast Stations.—
(1) Individual violations.— The willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission embodying a performance or display of a work made by a television broadcast station to a subscriber who does not reside in that station’s local market or adjacent market, and is not subject to statutory licensing under section 119 or a private licensing agreement, is actionable as an act of infringement under section 501 and is fully subject to the remedies provided by sections 502 through 506 and 509, except that—
(A) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action by promptly withdrawing service from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5 for such subscriber for each month during which the violation occurred.
(2) Pattern of violations.— If a satellite carrier engages in a willful or repeated pattern or practice of secondarily transmitting to the public a primary transmission embodying a performance or display of a work made by a television broadcast station to subscribers who do not reside in that station’s local market or adjacent market, and are not subject to statutory licensing under section 119 or a private licensing agreement, then in addition to the remedies under paragraph (1)—
(A) if the pattern or practice has been carried out on a substantially nationwide basis, the court—
(i) shall order a permanent injunction barring the secondary transmission by the satellite carrier of the primary transmissions of that television broadcast station (and if such television broadcast station is a network station, all other television broadcast stations affiliated with such network); and
(ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out; and
(B) if the pattern or practice has been carried out on a local or regional basis with respect to more than one television broadcast station, the court—
(i) shall order a permanent injunction barring the secondary transmission in that locality or region by the satellite carrier of the primary transmissions of any television broadcast station; and
(ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out.
(g) Burden of Proof.— In any action brought under subsection (f), the satellite carrier shall have the burden of proving that its secondary transmission of a primary transmission by a television broadcast station is made only to subscribers located within that station’s local market or adjacent market or subscribers being served in compliance with section 119 or a private licensing agreement.
(h) Geographic Limitations on Secondary Transmissions.— The statutory license created by this section shall apply to secondary transmissions to locations in the United States.
(i) Exclusivity With Respect to Secondary Transmissions of Broadcast Stations by Satellite to Members of the Public.— No provision of section 111 or any other law (other than this section and section 119) shall be construed to contain any authorization, exemption, or license through which secondary transmissions by satellite carriers of programming contained in a primary transmission made by a television broadcast station may be made without obtaining the consent of the copyright owner.
(j) Definitions.— In this section—
(1) Distributor.— The term “distributor” means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities.
(2) Local market.—
(A) In general.— The term “local market”, in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a station is located, and—
(i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area are within the same local market; and
(ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station.
(B) County of license.— In addition to the area described in subparagraph (A), a station’s local market includes the county in which the station’s community of license is located.
(C) Designated market area.— For purposes of subparagraph (A), the term “designated market area” means a designated market area, as determined by Nielsen Media Research and published in the 1999–2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication.
(D) Certain areas outside of any designated market area.— Any census area, borough, or other area in the State of Alaska that is outside of a designated market area, as determined by Nielsen Media Research, shall be deemed to be part of one of the local markets in the State of Alaska. A satellite carrier may determine which local market in the State of Alaska will be deemed to be the relevant local market in connection with each subscriber in such census area, borough, or other area.
(3) Network station; satellite carrier; secondary transmission.— The terms “network station”, “satellite carrier”, and “secondary transmission” have the meanings given such terms under section 119 (d).
(4) Subscriber.— The term “subscriber” means a person who receives a secondary transmission service from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor.
(5) Television broadcast station.— The term “television broadcast station”—
(A) means an over-the-air, commercial or noncommercial television broadcast station licensed by the Federal Communications Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator television station; and
(B) includes a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico if the station broadcasts primarily in the English language and is a network station as defined in section 119 (d)(2)(A).
(6) ADJACENT MARKET- The term `adjacent market', in the case of both commercial and noncommercial television broadcast stations, means any designated market area adjacent to, and at least partially in the same State as, the designated market area in which the station is located.
Title 17 §122 US Code based on current available at Cornell University Law School.
Summary of Changes - This grants satellite providers royalty free retransmissions into adjacent markets as long as the adjacent market receives their own locals.
Opinion - Adjacent Market is oddly defined. If one county of a station's market is located in another state does that allow the rebroadcast into any adjacent market in the other state (regardless of the state the station is in)? If so, a Chicago station has all of the Indianapolis market stretching hundreds of miles away as it's "adjacent market" but not the Milwaukee market a few miles north of the city of Chicago (since the markets do not cross the Wisconsin/Illinois state line). [SEE BELOW]
TITLE 47 > CHAPTER 5 > SUBCHAPTER III > Part I > § 325
§ 325. False, fraudulent, or unauthorized transmissions
(b) Consent to retransmission of broadcasting station signals
(1) No cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except—
(A) with the express authority of the originating station;
(B) under section 534 of this title, in the case of a station electing, in accordance with this subsection, to assert the right to carriage under such section; or
(C) under section 338 of this title, in the case of a station electing, in accordance with this subsection, to assert the right to carriage under such section.
(2) This subsection shall not apply—
(A) to retransmission of the signal of a noncommercial television broadcast station;
(B) to retransmission of the signal of a television broadcast station outside the station’s local market by a satellite carrier directly to its subscribers, if—
(i) such station was a superstation on May 1, 1991;
(ii) as of July 1, 1998, such station was retransmitted by a satellite carrier under the statutory license of section 119 of title 17; and
(iii) the satellite carrier complies with any network nonduplication, syndicated exclusivity, and sports blackout rules adopted by the Commission under section 339 (b) of this title;
(C) until December 31, 2009, to retransmission of the signals of network stations directly to a home satellite antenna, if the subscriber receiving the signal—
(i) is located in an area outside the local market of such stations; and
(ii) resides in an unserved household;
(D) to retransmission by a cable operator or other multichannel video provider, other than a satellite carrier, of the signal of a television broadcast station outside the station’s local market if such signal was obtained from a satellite carrier and—
(i) the originating station was a superstation on May 1, 1991; and
(ii) as of July 1, 1998, such station was retransmitted by a satellite carrier under the statutory license of section 119 of title 17; or
(E) during the 6-month period beginning on November 29, 1999, to the retransmission of the signal of a television broadcast station within the station’s local market by a satellite carrier directly to its subscribers under the statutory license of section 122 of title 17.; or
(F) to retransmission of the signals of a television broadcast station to a subscriber located in the station's adjacent market--
(i) by a satellite carrier directly to the satellite antenna of the subscriber under section 122 of title 17, United States Code, or
(ii) by a cable operator or other multichannel video programmer, other than a satellite carrier, to the subscriber.
For purposes of this paragraph, the terms “satellite carrier” and “superstation” have the meanings given those terms, respectively, in section 119 (d) of title 17, as in effect on October 5, 1992, the term “unserved household” has the meaning given that term under section 119(d) of such title, and
the term “local market” has the meaning given that term
the terms `local market' and `adjacent market' have the meanings given such terms
in section 122(j) of such title.
Remainder omitted (unchanged).
Title 47 §325 US Code based on current available at Cornell University Law School.
Summary of Changes - This adds retransmissions into adjacent markets to the list of exceptions that DO NOT require the station's permission to use their signal.
Opinion - A station could refuse carriage within their own market but still be carried in adjacent markets (or as a distant) without their permission.
TITLE 47 > CHAPTER 5 > SUBCHAPTER III > Part I > § 339
§ 339. Carriage of distant television stations by satellite carriers
(a) Provisions relating to carriage of distant signals
(1) Carriage permitted
(A) In general
Subject to section 119 of title 17, any satellite carrier shall be permitted to provide the signals of no more than two network stations in a single day for each television network to any household not located within the local markets of those network stations.
(B) Additional service
In addition to signals provided under subparagraph (A), any satellite carrier may also provide service under the statutory license of section 122 of title 17, to the local market or adjacent market within which such household is located. The service provided under section 122 of such title may be in addition to the two signals provided under section 119 of such title.
Such two network stations may be comprised of both the analog signal and digital signal of not more than two network stations.
Remainder omitted (unchanged).
Title 47 §339 US Code based on current available at Cornell University Law School.
Summary of Changes - This allows for adjacent market signals without counting them against the two network signal limit.
Opinion - (B) was already poorly worded, it should have been "to households located in the local market or adjacent market." This paragraph relates to carriage to households, not markets.
In addition H.R. 2821 requires the following action to be taken by the FCC:
(1) WAIVER REQUIRED- Within 90 days after the date of enactment of this Act, the Federal Communications Commission shall commence a proceeding to revise the regulations concerning network nonduplication protection, syndicated exclusivity protection, and sports blackout protection (47 CFR part 76) against the retransmission by a cable operator or by a satellite carrier of signals of network stations to subscribers to permit such retransmission if the subscriber receiving the signals is located in the station's adjacent market (as such term is defined in section 122(j)(6) of title 17, United States Code).
(2) DEADLINE FOR ACTION- The Commission shall complete all actions necessary to prescribe the revised regulations required by paragraph (1) within 180 days after the date of enactment of this Act.
Illustrated:
| To the left is a map of the area around Chicago.
The green area is the Chicago market ... inside this area stations in the Chicago market must give their permission (via consent to carry or a must carry request) to be aired.
The yellow areas represent markets matching the definition of "adjacent market". These markets cover portions of Iowa, Illinois, Indiana and Michigan.
Under H.R. 2821 Chicago area stations could be aired anywhere in the yellow area without permission from the station, copyright payment or syndication/network blackout.
(Carriage in each area would also require their local stations be carried on satellite.)
The red area is the Milwaukee WI market. It is not considered adjacent under the definition. Subscribers in this area would have to rely on § 119 "Significantly Viewed" carriage, if available.
The blue areas are two more close markets of interest.
|
Discussion at DBSTalk: H.R. 2821 Adjacent markets considered local