A. Satellite Home Viewer Act (SHVA)

5. In 1988, Congress passed the Satellite Home Viewer Act (``1988 SHVA'') (The Satellite Home Viewer Act of 1988, Public Law 100667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111, 119). The 1988 SHVA was enacted on November 16, 1988, as an amendment to the copyright laws. The 1988 SHVA gave satellite carriers a statutory copyright license to offer distant signals to ``unserved'' households. 17 U.S.C. 119(a)), which established a statutory copyright license for satellite carriers to offer subscribers, who could not receive the signal of a broadcast station over the air, access to broadcast programming via satellite. The 1988 SHVA reflected Congress' intent to protect the role of local broadcasters in providing overtheair television by limiting satellite delivery of network broadcast programming to subscribers who were ``unserved'' by overtheair signals. The 1988 SHVA also permitted satellite carriers to offer distant ``superstations'' to subscribers. (See 17 U.S.S. 119(a)(1)). A superstation is defined as a television station, other than a network station, licensed by the Commission that is retransmitted by a satellite carrier. Thus, superstations are not considered ``network stations'' for copyright purposes.

B. Satellite Home Viewer Improvement Act of 1999 (SHVIA)

6. In 1999, in the Satellite Home Viewer Improvement Act (``SHVIA'') (The Satellite Home Viewer Improvement Act of 1999, Public Law 106113, 113 Stat. 1501 (1999) (codified in scattered sections of 17 and 47 U.S.C.). The SHVIA was enacted on November 29, 1999, as Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999 (``IPACORA'') (relating to copyright licensing and carriage of broadcast signals by satellite carriers)), Congress expanded on the 1988 SHVA by amending both the copyright laws (17 U.S.C. 119 and 122) and the Communications Act (47 U.S.C. 325, 338 and 339) to permit satellite carriers to retransmit local broadcast television signals directly to subscribers. The Commission implemented the SHVIA by adopting rules for satellite carriers with regard to carriage of broadcast signals, retransmission consent, and program exclusivity that paralleled the requirements for cable service. (See Implementation of the Satellite Home Viewer Improvement Act 1999: Broadcast Signal Carriage Issues, Retransmission Consent Issues, 65 FR 4056401 (June 30, 2000) (``SHVIA Signal Carriage Order''); Technical Standards for Determining Eligibility For SatelliteDelivered Network Signals Pursuant To the Satellite Home Viewer Improvement Act, 15 FCC Rcd 24321 (2000); Implementation of the Satellite Home Viewer Improvement Act of 1999: Application of Network NonDuplication, Syndicated Exclusivity, and Sports Blackout Rules To Satellite Retransmissions of Broadcast Signals, 15 FCC Rcd 21688 (2000) (``Satellite Exclusivity Order''); Implementation of the Satellite Home Viewer Improvement Act of 1999, Enforcement Procedures for Retransmission Consent Violations, 65 FR 6808201 (November 14, 2000); Implementation of the Satellite Home Viewer Improvement Act of 1999, Retransmission Consent Issues: Good Faith Negotiation and Exclusivity, 65 FR 1555902 (March 23, 2000)).

7. A key element of the SHVIA was to provide satellite carriers with a statutory copyright license to facilitate the retransmission of local broadcast programming, or ``localintolocal'' service, to subscribers. A satellite carrier provides ``localintolocal'' service when it retransmits a local television signal back into the local market of that television station for reception by subscribers. (See 47 CFR 76.66(a)(6)). Generally, a television station's ``local market'' is the DMA in which it is located. (See 17 U.S.C.122(j)(2)(A); 47 U.S.C. 340(i)(1)). DMAs, which describe each television market in terms of a unique geographic area, are established by Nielsen Media Research based on measured viewing patterns. Each satellite carrier providing local intolocal service pursuant to the statutory copyright license is generally obligated to carry any qualified local television station in the particular DMA that has made a timely election for mandatory carriage, unless the station's programming is duplicative of the programming of another station carried by the carrier in the DMA or the station does not provide a good quality signal to the carrier's local receive facility. (See 47 U.S.C. 338). This is commonly referred to as the ``carry one, carry all'' requirement.
C. Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA)

8. In December 2004, Congress passed and the President signed the SHVERA, which again amended the 1988 copyright laws and the Communications Act to further aid the competitiveness of satellite carriers and expand program offerings for satellite subscribers. Specifically, SHVERA distinguished between outofmarket (i.e., ``significantly viewed'') signals and truly ``distant'' signals for purposes of the statutory copyright licenses in sections 119 and 122 of title 17. The SHVERA established a copyright license that gives satellite carriers the option to offer Commissiondetermined ``significantly viewed'' signals to subscribers. Section 102 of the SHVERA extended the statutory copyright license contained in 17 U.S.C. 119(a) to ``apply to the secondary transmission of the primary transmission of a network station or a superstation to a subscriber who resides outside the station's local market * * * but within a community in which the signal has been determined by the Federal Communications Commission, to be significantly viewed in such community, pursuant to the rules, regulations, and authorizations of the Federal
Communications Commission in effect on April 15, 1976, applicable to determining with respect to a cable system whether signals are significantly viewed in a community.'' (See 17 U.S.C. 119(a)(3)(A)). IV. Discussion

9. The SHVERA created section 340 of the Communications Act and expanded the statutory copyright license for satellite carriers to establish the framework for satellite carriage of Commissiondetermined ``significantly viewed'' signals; section 102 of the SHVERA amends 17 U.S.C. 119(a) to create new subsection (a)(3), entitled ``secondary transmissions of significantly viewed signals.'' Section 202 of the SHVERA amends the Communications Act to create a new section 340, entitled ``Significantly Viewed Signals Permitted To Be Carried.'' As required by the SHVERA, we opened this proceeding on February 7, 2005 with the release of the NPRM. In the NPRM, we published the existing list of significantly viewed stations and sought comment on implementation of section 340 and the specific rule proposals and tentative conclusions contained in the NPRM.
[[Page 76508]]
A. Station Eligibility For Satellite Carriage as ``Significantly Viewed''

10. In the NPRM, we considered which stations are now eligible for ``significantly viewed'' status in which communities pursuant to the statutory copyright license contained in 17 U.S.C. 119(a). We also considered how stations and the related communities can be added to the list of significantly viewed stations (``SV List''). We discussed the interplay of the section 340 requirements with the Commission's network nonduplication and syndicated exclusivity rules and considered how to define a satellite community.

1. Significantly Viewed Stations and Related Communities

11. Section 340(a) of the Act requires the Commission to determine which stations a satellite carrier can retransmit as significantly viewed, as well as which subscribers in which communities can receive these stations. Section 340(a) of the Act, as created by the SHVERA, authorizes a satellite carrier ``to retransmit to a subscriber located in a community the signal of any station located outside the local market in which such subscriber is located, to the extent such signal: (1) Has, before the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, been determined by the Federal Communications Commission to be a signal a cable operator may carry as significantly viewed in such community, except to the extent that such signal is prevented from being carried by a cable system in such community under the Commission's network nonduplication and syndicated exclusivity rules; or (2) is, after such date of enactment, determined by the Commission to be significantly viewed in such community in accordance with the same standards and procedures concerning shares of viewing hours and audience surveys as are applicable under the rules, regulations, and authorizations of the Commission to determining with respect to a cable system whether signals are significantly viewed in a community.'' Section 340(a)(1) confers ``significantly viewed'' status in the satellite context to a station, and the communities in which the station has been determined by the Commission to be ``significantly viewed'' in the cable television context. Section 340(a)(2) provides for future
determinations of a station's ``significantly viewed'' status by the Commission, consistent with the Commission's existing rules and procedures for cable television. There is no statutory limit on the number of significantly viewed signals a satellite carrier may carry. (See 47 U.S.C. 340(a), which states that satellite carriers may retransmit such signals ``[i]n addition to the broadcast signals that subscribers may receive under section 338 [governing carriage of local signals] and 339 [governing carriage of distant signals].''). The exemption for significantly viewed signals is necessary because section 339 of the Communications Act (47 U.S.C. 339) prohibits a satellite carrier from providing a household with the signals of more than two distant affiliates of a particular network per day.

12. Section 340(c) of the Act directs the Commission to publish and maintain a unified list of stations, and the communities in which such stations are considered ``significantly viewed,'' that will apply to both cable operators and satellite carriers. In the NPRM, we compiled and published a list of stations that have been determined to be significantly viewed in specified counties and communities pursuant to the Commission's cable television rules. (See Sec. 76.54 of our rules describes the basis for deeming a station's signal ``significantly viewed;'' 47 CFR 76.54; 47 CFR 76.5(i)). This SV List, which was attached to the NPRM as Appendix B, identified these stations, counties and communities, combining the Commission's original 1972 list of significantly viewed stations by county with stations added on a county or communitywide basis over the intervening years. The Commission's initial list of significantly viewed stations was released in 1972. The SV List also includes stations granted significantly viewed status subsequent to 1972. The SV List indicates by a plus sign (+) those that have been added to the 1972 list after its publication to distinguish them from those stations and communities derived from the original 1972 list. Although we do not believe that this distinction is meaningful, for informational purposes we have retained this designation for the final SV List.

13. We sought comment on the SV List to solicit corrections and have changed the list only to correct errors appropriately demonstrated by commenters. Pursuant to section 340(c), this SV List will be available to the public on our website (http://www.fcc.gov/mb), and we will update this list within 10 business days if we modify it in the future. Section 340(c)(2) requires that the Commission ``make readily available to the public in electronic form, on the Internet website of the Commission or other comparable facility, a list of the stations that are eligible for retransmission under subsection (a) and the communities in which such stations are eligible for such
retransmission. The Commission shall update such list within 10 business days after the date on which the Commission issues an order making any modification of such stations and communities.''

14. Some stations on the SV List have been the subject of petitions resulting in program deletions based on network nonduplication or syndicated exclusivity. The SV List indicates by a pound sign () the stations and related communities subject to programming deletions. The exclusivity rules permit a station or syndicator that has exclusive rights to network or syndicated programming to prohibit a cable operator from carrying such programming on another station. The exclusivity rules are subject to an exception if the station in question is significantly viewed. This exception is, in turn, subject to waiver if the party petitioning for the programming deletion shows that the station is no longer significantly viewed. (See 47 CFR 76.92, 76.101 and 76.106; see also KCST Petition for Special Relief, 103 FCC 2d 407 (1986) (``KCST'')). Cable operators and satellite carriers must be aware of these required programming deletions (``blackouts'') and abide by them in their carriage of these stations in the communities so indicated. (See 47 CFR 76.122 and 123; see infra section IV.A.5). Since releasing the NPRM, we have granted one pending request for programming deletion based on the network nonduplication and syndicated exclusivity rules (CSR6383N (subjecting Station WAVETV (NBC, Channel 3), Louisville, Kentucky to programming deletions if carried in the community of Columbia, Kentucky) and we have updated the SV List accordingly.

15. In the NPRM, we acknowledged that the SHVERA allowed satellite carriers to immediately begin using the SV List to expand their carriage offerings so that their subscribers could start experiencing the benefits of the SHVERA as soon as possible. We permitted satellite carriers to rely on the SV List's accuracy to commence service, consistent with the other requirements set out in the SHVERA and this proceeding, prior to the adoption of a final list. Cable operators have been relying on this SV List for more than 30 years. We agree with EchoStar that ``the significantly viewed provision is self executing.'' NAB, in an ex parte, expressed concern that DBS operators were providing notices to stations of
[[Page 76509]]
their intent to carry significantly viewed stations. We note that use of the list must be consistent with the other requirements set out in the SHVERA and this proceeding. This decision was consistent with Congress' intent. Cable operators have been relying on this SV List for more than 30 years. We agree with EchoStar that ``the significantly viewed provision is self executing.'' EchoStar at 2. NAB, in an ex parte, expressed concern that DBS operators were providing notices to stations of their intent to carry significantly viewed stations. We note that use of the list must be consistent with the other requirements set out in the SHVERA and this proceeding. We published the SV List with the NPRM in accordance with the SHVERA's mandate in new section 340(c)(1)(A)(i). The purpose of the SV List is to identify ``the stations that are eligible'' for significantly viewed status, meaning those stations already determined to be significantly viewed by the Commission. The House Commerce Committee intended that the Commission publish the SV List within 180 days of enactment, and provided for ``interim eligibility'' for stations on the list. The intent was for satellite carriers to ``start carrying the signals on the list pending adoption of the rules.'' Although the ``interim eligibility'' language did not survive, the enacted provision required even faster publication of the SV List (i.e., within 60 days). This indicates Congress' intent to permit immediate use of the SV List upon publication; (See Barton Floor Statement at 2 (satellite carriers authorized to carry significantly viewed signals ``upon enactment'')). To the extent necessary, satellite carriers must now come into compliance with our final rules when they become effective. 2. Accuracy of SV List

16. In the NPRM, we asked interested parties to confirm the accuracy of the SV List. Our request for comment, however, was limited to ``whether the SV List accurately reflects such existing
significantly viewed determinations, and not about whether the SV List should be modified because of a change in a station's circumstances subsequent to its placement on the SV List.'' We received numerous comments about the accuracy of the SV List; however, only a handful of these comments offered evidence of specific errors.

17. To the extent that commenters are seeking specific additions or deletions to the list absent proof that these stations were or were not previously determined by the Commission to be significantly viewed, we reject these comments for failing to comply with Sec. 76.54 of our rules. Moreover, we also agree with EchoStar that these comments are beyond the scope of this proceeding. The SHVERA created a mechanism for parties to subsequently seek modification of the SV List. (See 47 U.S.C. 340(c)(3)). Requests to modify the SV List based on changed circumstances must follow this process. Therefore, requests for modification that fail to demonstrate an existing error to the list or fail to offer documentary evidence supporting the requested correction are rejected. We note that the only parties originally eligible to request that we declare a station significantly viewed were the station itself, or the cable operator. Satellite carriers will now be included as eligible parties.

18. We will correct the SV List based on comments by DIRECTV, WGAL and WHECTV. We will also address the corrections proposed by the comments of Saga and Saga Quad, although we reject their request.

19. DIRECTV. The SV List is corrected, pursuant to DIRECTV's comments, to reflect new call letters for certain stations. Staff review of Commission records indicates that, with respect to the stations questioned by DIRECTV, all but three of these stations' call letters have been changed since the time they were added to the list. The new call letters of these stations will now be reflected on the list, with a notation of the former call letters for consistency. The three stations that were not among this group, WJJY (Channel 14, Jacksonville, IL), KVFD (Channel 21, Fort Dodge, IA) and KFIZ (Channel 34, Fond du Lac, WI), have apparently gone dark and a notation has been made on the list to reflect this. There were 22 changes in station call letters.

20. In addition, we resolve two questions raised by DIRECTV: (1) Whether station WTCT, Channel 27, Marion, Illinois should be listed as significantly viewed for Marshall County, Kentucky and not Marshall County, Illinois; and (2) whether station KSASTV, Channel 24, Wichita, Kansas should be listed as significantly viewed in Butler County, Kentucky as well as Butler County, Kansas. Staff review of Commission records indicates that, by letter dated May 24, 1995, the Consumer Protection Division of the former Cable Services Bureau granted significantly viewed status to WTCTTV in Marshall County, Illinois. Further, by letters dated February 18, 1998, the Consumer Protection Division of the former Cable Services Bureau granted significantly viewed status to KSASTV in both Butler County, Kansas and Butler County, Kentucky. Therefore, our list is correct with respect to these questions. Finally, we correct 12 typographical errors pointed out by DIRECTV.

21. WHECTV. The SV List is corrected, pursuant to WHECTV's comments, to reflect that stations WCBSTV, WNBC, WNYW, WABCTV and WWORTV are not significantly viewed for the city of Rochester, NY, but rather are significantly viewed for the town of Rochester, located in Ulster County, New York. Staff review of Commission records indicates that, by letter dated March 8, 1990, the Chief of Video Services Division, Mass Media Bureau, granted Simmons Communications Company's request to declare the abovelisted stations significantly viewed for the Villages of Ellenville and Woodridge, NY, and the towns of Wawarsing, Rochester, Fallsburg, and Mamakating, NY.

22. WGAL. The SV List is also corrected, pursuant to WGAL's comments, to delete all references to WKBSTV, Channel 47, Altoona, PA, as being significantly viewed in the counties of Berks, Bucks, Chester, Delaware, Montgomery and Philadelphia, PA; the communities of East Hempfield Township, East Lampeter Township, East Petersburg, Lancaster, Lancaster Township, Manheim Township, Manor Township, Millersville, Mountville, West Hempfield Township and West Lampeter Township; the counties of Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer and Salem, NJ; and New Castle County, DE. Staff review of Commission records confirms that WKBSTV is currently the satellite of station WPCBTV, Greensburg, PA, and did not become operational until 1985. Television broadcast station WGTW, Channel 48, Philadelphia, PA is the successor to the station that originally had the call sign ``WKBSTV'' and that was granted significantly viewed status for the named counties on the basis of the 19711972 surveys and in the named communities based on communityspecific surveys after 1972. Although WGTW itself went dark for a period of time, it nonetheless retains the significantly viewed status originally granted to WKBSTV. Accordingly, we will list WGTW as significantly viewed, and delete all references to WKBSTV, for the named counties and communities.

23. Saga and Saga Quad. We reject the corrections to the SV List proposed by Saga Broadcasting, LLC (``Saga'') and Saga Quad States Communications, LLC (``Saga Quad''). We disagree with Saga and Saga Quad that errors were made in 1972 with respect to the following [[Page 76510]]
counties: Greenville, MS; Pittsburg, KS/Joplin, MO; and Victoria, TX. Staff review of the Commission's records indicates that the 19711972 survey data relied upon in the publication of the 1972 significantly viewed list was accurately performed in accordance with Sec. 76.54 of the rules. More specifically, the data for each station indicated by Saga and Saga Quad was doublechecked to ensure that the 19711972 audience statistics demonstrated that the criteria for significantly viewed status were met, that the 1972 significantly viewed list correctly reflected the survey results, that the significant viewing list was consistent with these documents and they were found to support the station's inclusion on the significantly viewed list. Moreover, we do not find Saga's request to use current Nielsen data as a means of deletion to be acceptable. We agree with the comments of Mission Broadcasting (KOLR), Meredith Corporation (KCTV) and Media General Communications, Inc. (WJTV), that the Saga submissions do not comply with the Sec. 76.54 petition process and exceed the scope of this proceeding. As a result, Saga's and Saga Quad's requests for deletion are rejected.
3. Procedures for Determining or Modifying Significantly Viewed Status

24. Section 340(c) provides a procedure for modifying the SV List with respect to satellite carriers, either to add eligible stations or communities, or to restrict carriage of eligible stations through application of the Commission's network nonduplication or syndicated exclusivity rules. (See 47 U.S.C. 340(c)(3) requires that the Commission ``permit a satellite carrier to petition for decisions and orders(A) by which stations may be added to those that are eligible for retransmission under subsection (a), and by which communities may be added in which such stations are eligible for such retransmission; and (B) by which network nonduplication or syndicated exclusivity regulations are applied to the retransmission in accordance with subsection (e).''). This provision permits a satellite carrier or station to petition the Commission to include a particular station and related community on the significantly viewed list. Section 119(a)(3) of the copyright provisions in title 17 requires that the Commission use the same rules in considering such petitions that were in effect as of April 15, 1976. In the NPRM, we described the existing rules in place for cable carriage and proposed rule amendments to implement the SHVERA's requirements for satellite carriage.

25. As proposed in the NPRM, we amend Sec. 76.54 to apply the rule to satellite carriers. As intended by Congress (17 U.S.C. 119(a)(3)); House Commerce Committee Report at 1 (purpose of the SHVERA includes ``increasing regulatory parity by extending to satellite carriers the same type of authority cable operators already have to carry `significantly viewed' signals into a market''), this provision essentially unchanged since April 15, 1976 (no changes were made to the procedures as in effect on April 15, 1976)will now govern the process for qualifying new signals for significantly viewed status in both the cable and satellite context. Revised Sec. 76.54 will now reference satellite carriers and the new SV List, but will not alter the procedures as in effect on April 15, 1976. The rules will operate for satellite carriage in the same fashion as they have for cable carriage. Thus, satellite carriers or broadcast stations seeking satellite carriage must follow the same petition process now in place for cable carriage, as required by Sec. Sec. 76.5, 76.7 and 76.54 of our rules. A fee may be required for the filing of certain petitions to change a station's significantly viewed status; 47 CFR 1.1104, 1.1117, 76.7. We do not need to amend Sec. Sec. 76.5 and 76.7 in order to permit the filing of such petitions for significantly viewed status by satellite carriers or broadcast stations seeking satellite carriage. We do, however, amend Sec. 76.5 in another context. We revise our definition of subscriber in Sec. 76.5(ee) to add a definition for a satellite subscriber. (See infra section IV.B.1. and revised rule Sec. 76.5(ee), and add a definition for satellite community in Sec. 76.5(gg), infra section IV.A.6. and revised rule Sec. 76.5(gg), 47 CFR 76.5(ee) and (gg)). Because Sec. 76.7 of our rules currently provides for the filing of special relief petitions by multichannel video programming distributors (MVPDs), such as satellite carriers, we need not amend this rule. Thus, a station, satellite carrier or cable operator that wishes to have a station designated significantly viewed would file a petition pursuant to the pleading requirements in Sec. 76.7(a)(1) and use the method described in Sec. 76.54 to demonstrate that the station is significantly viewed as defined in Sec. 76.5(i). Most of the comments support this decision.

26. Section 76.5(i) of the rules provides that a network affiliated station is considered to be significantly viewed if it obtains at least a three percent share of viewing hours in television homes in the community and has a net weekly circulation share of at least 25 percent; see 47 CFR 76.5(i)(1). Share of weekly viewing hours means the total hours that overtheair television households in the community viewed a station during the week, expressed as a percentage of the total hours these households viewed all stations during the period surveyed. Net weekly circulation means the number of overtheair television households that viewed a station for five minutes or more during the week, expressed as a percentage of the total overtheair television households in the survey area; 47 CFR 76.5(i) note. For independent stations, the test is a share of at least two percent viewing hours and a net weekly circulation of at least five percent.

27. Section 76.54 provides that parties may demonstrate that signals are significantly viewed either on a countywide basis or on a community basis. Under Sec. 76.54(b) of the rules, adopted in 1972, parties may demonstrate significantly viewed status based on an independent professional audience survey which is conducted by a professional organization that is independent from the cable systems or television stations ordering the surveys. Initially, the Commission suggested that parties undertaking surveys under this provision inform other interested parties regarding the survey and its methodology. On reconsideration, the Commission adopted Sec. 76.54(c) requiring such prior notification. (See 1972 R&O, 36 FCC 2d at 176, para. 86; 1972 Recon Order, 36 FCC 2d at 349, para. 62). The surveys must include the results of two weekly periods separated by at least 30 days, but no more than one of which shall be a week between April and September (i.e., outside the summer viewing period). The Commission recognized that the results of sample surveys can only be determinative within a given probability. Therefore, to assure that the survey errs on the side of excluding stations that are not actually significantly viewed, the Commission decided to require that the sample results exceed the significantly viewed standard, currently specified in Sec. 76.5(i), by at least one standard error. A ``standard error'' is a statistical measure used to assess, at a specified probability, that the sample estimate reflects the actual result had the entire universe been surveyed. Using one standard error, we can be approximately 70 percent certain that the actual audience statistic is the reported statistic plus or minus one standard error. The calculation of the standard error takes
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into account the sampling procedure, the sample size and the sample result. Initially, the Commission required separate surveys for each cable community, but the rule was revised to allow a single survey where a cable system served multiple communities. Thus, if a cable system serves more than one community, a single survey may be taken, provided that the sample includes overtheair television homes from each community that are proportional to the population. (See 47 CFR 76.54(b)).

28. Section 76.54(d), adopted in 1975, permits parties to demonstrate significantly viewed status for a new station using county wide audience surveys in lieu of the more burdensome communityby community method. (See Amendment of Part 76 of the Commission's Rules and Regulations to Permit Showings that Certain Television Broadcast Stations are Significantly Viewed Based on CountyWide Surveys, 56 FCC 2d 265, para. 1 (1975) (``1975 R&O'')). Under Sec. 76.54(d), significantly viewed status may be demonstrated on a countywide basis using independent professional audience surveys which cover three separate, consecutive fourweek periods and are otherwise comparable to the surveys used to compile the 1972 Appendix B list. Under this rule, a demonstration that a station is significantly viewed must be based on audience survey data from the station's first three years of operation. Where surveys are conducted pursuant to Sec. 76.54(d), the Commission concluded that the potential for an unrepresentative sample was considerably lessened by the adoption of a longer survey period. Accordingly, the Commission decided not to require that the results be subject to the standard error requirement and the survey results must simply meet the significantly viewed standard for the station type specified in Sec. 76.5(i). This was intended to place the survey methodology for newer stations on par with the methodology used in the original Commission surveys. Moreover, the rules require that the survey be undertaken by an independent professional audience survey organization and be subject to Commission review.

29. We reject the proposals by commenters seeking to substantively modify the Sec. 76.54 process for making significantly viewed determinations, including the proposals to add to the SV list those stations that could deliver a Grade B or better signal to a subscriber's home. The SHVERA did not authorize any approach that would presume that such stations are significantly viewed. Such modifications to the Sec. 76.54 process would be inconsistent with the SHVERA's requirement that we use the same rules for making significantly viewed determinations that were in effect as of April 15, 1976. Stations or carriers must demonstrate significantly viewed status through the existing Sec. 76.54 petition process.

30. In the NPRM, we stated that the digital signal of a television broadcast station will be accorded the same significantly viewed status as that of the analog signal, except that where a station is broadcasting only a digital signal, the station must petition for significantly viewed status using the analog requirements in Sec. 76.54. EchoStar has requested that we clarify that we will continue our ``present practice of according the digital signal of a broadcast station the same `significantly viewed' status as the analog signal,'' and that we only meant to require new digital stationsthose without a significantly viewed analog predecessorto make showings pursuant to Sec. 76.54. EchoStar is correct; we did not mean to suggest that stations would lose their significantly viewed status when they begin operating only in digital. (See Carriage of Digital Television Broadcast Signals, 16 FCC Rcd 2598, 2642, para. 100 (2001) (``[W]e believe that the public interest is best served by according the digital signal of a television broadcast station the same significantly viewed status accorded the analog signal. We note, however, that DTV only television stations must petition the Commission for significantly viewed status under the same requirements for analog stations in Sec. 76.54 of the Commission's rules.'')). Stations that have been listed as significantly viewed in a given community based on their analog signal will also be accorded significantly viewed status for their digital signal, even if their analog signal subsequently goes off the air. We intend to allow licensees to transfer their significantly viewed status from their analog station to their digital station. Moreover, stations with both analog and digital signals may continue to demonstrate significantly viewed status based on their analog signal. We recognize, however, that, in the future, stations will be operating only in digital. Therefore, new digital stations (without an existing analog companion) must demonstrate that their digital signals are
significantly viewed. This is the reason we amend our rule to add ``noise limited service contour,'' the service contour relevant for a station's digital signal.

31. We amend Sec. 76.54, as, to update the existing reference to ``Grade B contour,'' which applies to analog stations, to add ``noise limited service contour,'' the service contour relevant for a station's digital signal. We further amend Sec. 76.54 to eliminate an outdated reference and correct a typographical error, neither of which change in any way the substance or the process of the rule. The commenters on this issue support these rule changes.

32. Finally, Gulf and NAB and Network Affiliates (``NAB'') requested that we clarify that the independent professional audience surveys required by Sec. 76.54 must include surveys only from households that receive broadcast signals via an overtheair antenna. We agree, and, thus, we will amend Sec. 76.54 to reflect the rule's true meaning. Section 76.54 currently uses the term ``noncable,'' but such term was meant to indicate overtheair viewing. We have already noted this meaning in another context. (See 47 CFR 76.1506 (television stations are significantly viewed for carriage by open video systems ``when they are viewed in households that do not receive television signals from multichannel video programming distributors * * *'')). In the 1972 Order, we adopted the concept of significant viewing to apply to overtheair households, which at the time essentially meant households without cable (i.e., noncable households). Thus, amending Sec. 76.54 to change ``noncable'' to ``overtheair'' reflects the true intent of the rule as it was in 1976, and is more consistent with the SHVERA's intent to establish parity between cable and satellite. It would also be inconsistent with the original intent of the SV process to permit satellite carriers to use their own subscribers in audience surveys to demonstrate SV status. It would also be largely pointless as satellite carriers have had no way to offer such signals to subscribers in outofmarket communities except as ``distant'' signals to ``unserved'' households.

4. Definition of ``Network Station''

33. Our rules define network station as one of the ``three major national television networks.'' (See 47 CFR 76.5(j) and (k)). This definition is expressly relied upon to select the correct standard for determining whether a station is significantly viewed. (See 47 CFR 76.5(i) (the ``share'' required to achieve significantly viewed status depends upon whether the station in question is a network station or an independent station); 47 CFR 76.5(j) (full network station is: ``A commercial
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television broadcast station that generally carries in weekly prime time hours 85 percent of the hours of programming offered by one of the three major national television networks with which it has a primary affiliation (i.e., right of first refusal or first call)''; 47 CFR 76.5(k) (partial network station is: ``A commercial television broadcast station that generally carries in prime time more than 10 hours of programming per week offered by the three major national television networks, but less than the amount specified in paragraph (j) of this section''; 47 CFR 76.5(l) (independent station is: ``A commercial television broadcast station that generally carries in prime time not more than 10 hours of programming per week offered by the three major national television networks.'')). The standard applies only to commercial stations. 47 CFR 76.5(i)(l) (definitions of significantly viewed stations limited to ``commercial''); 1972 R&O, 36 FCC 2d at 180; 1972 Recon Order, 36 FCC 2d at 330 (educational stations were given mandatory carriage throughout their Grade B signal contour but were not given significantly viewed status because the low ratings for NCE stations made it difficult to develop a significantly viewed standard for them and to avoid ``an unwarranted profusion of educational signals'' to which the educational stations objected due to possible erosion or dilution of local subscriber support). (See also 17 U.S.C. 119(a)(3)(A) (limits significantly viewed to the Commission's rules in effect on April 15, 1976)). We mentioned in the NPRM that, for purposes of subscriber eligibility, the SHVERA relied on the definition of ``network station'' that is used in the copyright provisions of title 17, which provides that a ``network station'' is:
(A) a television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the United States which offer an
interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or (B) a ``noncommercial educational broadcast station (as defined in section 397 of the Communications Act of 1934 [47 U.S.C. 397]). 17 U.S.C. 119(d)(2). The SHVERA also relies on section 339(d) for the definition of ``television network,'' which is slightly different from the ``network'' definition in title 17. (See 47 U.S.C. 340(i)(2); 47 U.S.C. 339(d)(5); 47 CFR 76.66(a)(5) (defining television network in the context of satellite broadcast signal carriage)). Section 339(d)(5) provides: ``a television network in the United States which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated broadcast stations in 10 or more States.'' 47 U.S.C. 339(d)(5). We note the difference in language between ``affiliated television licensees'' in title 17 compared with ``affiliated broadcast stations'' in section 339 of the Communications Act, but we do not find the difference significant.

34. In the NPRM, we tentatively concluded that the SHVERA prevented us from updating our significantly viewed rules because it requires that we retain the standard we have used since April 15, 1976. (See 17 U.S.C. 119(a)(3)(A), as amended by section 102 of the SHVERA (the statutory copyright license applies to retransmission of significantly viewed network station or superstation to a subscriber in a community on the Commission's list and limits significantly viewed to the Commission's rules in effect on April 15, 1976)). Therefore, we proposed to harmonize the apparent inconsistencies by continuing to use the definition of network and independent station in our rules for purposes of determining whether a station is significantly viewed for placement on the SV List, which thereby excludes noncommercial stations from eligibility for the SV List. However, as also required by the SHVERA, we proposed to use the copyright definition of network station and superstation for purposes of subscriber eligibility and the other applications of the significantly viewed provisions.

35. We adopt our proposal in the NPRM to harmonize the conflicting definitions of network station. Most commenters on this issue support our proposal. The SHVERA required use of the rules in effect as of April 15, 1976, and thus precludes us from applying definitions of ``full network station,'' ``partial network station'' and ``independent station'' different from the April 15, 1976, standard incorporated by reference in the statute. Thus, as proposed in the NPRM, we will use our rule's definitions for purposes of determining whether a station is significantly viewed and use the Copyright Act's definitions for purposes of determining subscriber eligibility.

36. We reject, at this time, NAB's request to change the definitions of ``full network station,'' ``partial network station,'' and ``independent station'' in Sec. 76.5(j), (k), and (l) to track the Copyright Act definitions of ``network station'' and ``superstation'' in 47 U.S.C. 119(d). We recognize that our rules will treat stations owned by Fox or affiliated with the Fox Network as ``independent stations'' under the Commission's definitions in Sec. 76.5, and not as network stations, whereas these stations are treated as ``network stations'' under the Copyright Act definition. (Similarly, other networks that may satisfy the copyright definition of ``network,'' will be treated as ``independent stations'' under our rules.) But the statute requires that we use the rules in effect as of April 15, 1976, which would include our rule's definition of network station.

37. We also take this opportunity to respond to an ex parte question raised by Capitol Broadcasting Company, Inc. (CBC). CBC asks, with respect to a petition to impose network nonduplication and syndicated exclusivity on a station on the SV List, what standard applies if the station has subsequently changed its status to or from a network station. In addressing such petitions, we have found that petitioners seeking to demonstrate that a station no longer meets the significantly viewed criteria (and that therefore a waiver of the exemption from network nonduplication and syndicated exclusivity is warranted) must use the standard that applies to the listed station at the time the survey is conducted. The initial determination that a station is significantly viewed is based on a comparison of the submitted audience data with the significantly viewed standard applicable to the station affiliation status. Thus, when challenging whether a station is still entitled to invoke the significant viewing exemption under the network nonduplication and/or syndicated exclusivity rules, it is appropriate for a petitioner to make the determination of whether a waiver is warranted based on the criteria applicable to the station's affiliation at the time the survey was conducted. So, in CBC's example in which a listed station changed from a network station when initially listed to an independent station at the time of the survey to show the station is no longer significantly viewed, the petitioner should apply the independent standard to determine if the listed station no longer meets the crit

FOR FURTHER INFORMATION CONTACT

For additional information on this proceeding, contact Evan Baranoff, Evan.Baranoff@fcc.gov of the Media Bureau, Policy Division, (202) 4182120. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams, Federal Communications Commission, 445 12th St., SW., Room 1C823, Washington, DC 20554, or via the Internet to Cathy.Williams@fcc.gov.