Federal Register: April 16, 2007 (Volume 72, Number 72)
DOCID: fr16ap07-137 FR Doc E7-7207
LIBRARY OF CONGRESS
Copyright Office, Library of Congress
Docket ID: [Docket No. 2007-1]
ACTION: Reports and guidance documents; availability, etc.:
DOCUMENT ACTION: Notice of Inquiry.
Section 109 Report to Congress
DATES: Written comments are due July 2, 2007. Reply comments are due September 13, 2007. April 16, 2007.
Pursuant to statute, the Copyright Office is seeking comment on issues related to the operation of, and continued necessity for, the cable and satellite statutory licenses under the Copyright Act.
Cable and satellite statutory licenses; operation of and continued necessity; report to Congress,
Overview. There are three statutory licenses in the Copyright Act
(``Act'') governing the retransmission of distant and local broadcast
station signals. A statutory license is a codified licensing scheme
whereby copyright owners are required to license their works at a
regulated price and under governmentset terms and conditions. There is
one statutory license applicable to cable television systems and two
statutory licenses applicable to satellite carriers. The cable
statutory license, enacted in 1976 and codified in Section 111 of the
Act, permits a cable operator to retransmit both local and distant
radio and television signals to its subscribers who pay a fee for such
service. The satellite carrier statutory license, enacted in 1988 and
codified in Section 119 of the Act, permits a satellite carrier to
retransmit distant television signals (but not radio signals) to its subscribers
for private home viewing as well as to commercial establishments.\1\ \1\ We note that, unlike Section 111, Section 119 does not use the term ``distant'' to refer to those broadcast station signals retransmitted under the statutory license. For the purposes of this NOI, however, the term ``distant'' may be used in the Section 119 context to describe a television station signal retransmitted by a satellite carrier.
The royalties collected under the Section 111 and Section 119 licenses are paid to the copyright owners or their representatives, such as the Motion Picture Association of America (``MPAA''), the professional sports leagues (i.e., MLB, NFL, NHL, and the NBA, et. al.), performance rights groups (i.e., BMI and ASCAP), commercial broadcasters, noncommercial broadcasters, religious broadcasters, and Canadian broadcasters for the public performance of the programs carried on the retransmitted station signal. Under Chapter 8 of the Copyright Act, the Copyright Royalty Judges are charged with adjudicating royalty claim disputes arising under Sections 111 and 119 of the Act. See 17 U.S.C. 801.
The Section 122 statutory license, enacted in 1999, permits satellite carriers to retransmit local television signals (but not radio) into the stations' local market on a royaltyfree basis. The license is contingent upon the satellite carrier complying with the rules, regulations, and authorizations established by the Federal Communications Commission (``FCC'') governing the carriage of television broadcast signals. Section 338 of the Communications Act of 1934 (``Communications Act''), a corollary statutory provision to Section 122 and also enacted in 1999, required satellite carriers, by January 1, 2002, ``to carry upon request all local television broadcast stations' signals in local markets in which the satellite carriers carry at least one television broadcast station signal,'' subject to the other carriage provisions contained in the Communications Act. The FCC implemented this provision in 2000 and codified the ``carryone carryall'' rules in 47 CFR 76.66. The carriage of such signals is not mandatory, however, because satellite carriers may choose not to retransmit a local television signal to subscribers in a station's local market.
Section 109. On December 8, 2004, the President signed the Satellite Home Viewer Extension and Reauthorization Act of 2004, a part of the Consolidated Appropriations Act of 2004. See Pub. L. No. 108 447, 118 Stat. 3394 (2004) (hereinafter ``SHVERA''). Section 109 of the SHVERA requires the Copyright Office to examine and compare the statutory licensing systems for the cable and satellite television industries under Sections 111, 119, and 122 of the Act and recommend any necessary legislative changes no later than June 30, 2008. The Copyright Office has conducted similar analyses of the Section 111 and 119 statutory licenses at the request of Congress in 1992 and 1997. See The Cable and Satellite Compulsory Licenses: An Overview and Analysis (March 1992); A Review of the Copyright Licensing Regimes Covering Retransmission of Broadcast Signals (August 1997).
Under Section 109, Congress indicated that the report shall
include, but not be limited to, the following: (1) a comparison of the
royalties paid by licensees under such sections [111, 119, and 122],
including historical rates of increases in these royalties, a
comparison between the royalties under each such section and the prices
paid in the marketplace for comparable programming; (2) an analysis of
the differences in the terms and conditions of the licenses under such
sections, an analysis of whether these differences are required or
justified by historical, technological, or regulatory differences that
affect the satellite and cable industries, and an analysis of whether
the cable or satellite industry is placed in a competitive disadvantage
due to these terms and conditions; (3) an analysis of whether the
licenses under such sections are still justified by the bases upon
which they were originally created; (4) an analysis of the correlation,
if any, between the royalties, or lack thereof, under such sections and
the fees charged to cable and satellite subscribers, addressing whether
cable and satellite companies have passed to subscribers any savings
realized as a result of the royalty structure and amounts under such
sections; and (5) an analysis of issues that may arise with respect to
the application of the licenses under such sections to the secondary
transmissions of the primary transmissions of network stations and
superstations that originate as digital signals, including issues that
relate to the application of the unserved household limitations under
Section 119 and to the determination of royalties of cable systems and satellite carriers.\2\
\2\ Aside from the requirement to issue a report under Section 109, the SHVERA also required the Copyright Office to examine select portions of the Section 119 license and to determine what, if any, effect Sections 119 and 122 have had on copyright owners whose programming is retransmitted by satellite carriers. Specifically, Section 110 of the SHVERA required the Register of Copyrights to report her findings and recommendations on: (1) the extent to which the unserved household limitation for network stations contained in Section 119 has operated efficiently and effectively; and (2) the extent to which secondary transmissions of primary transmissions of network stations and superstations under Section 119 harm copyright owners of broadcast programming and the effect, if any, of Section 122 in reducing such harm. The Section 110 report was released in 2006. See Satellite Home Viewer Extension and Reauthorization Act Sec. 110 Report, A Report of the Register of Copyrights (February 2006).
According to Section 109's legislative history, the Copyright Office shall conduct a study of the Section 119 and Section 122 licenses for satellite, and the Section 111 license for cable, and make recommendations for improvements to Congress no later than June 30, 2008. The legislative history further instructs that the Copyright Office must analyze the differences among the three licenses and consider whether they should be eliminated, changed, or maintained with the goal of harmonizing their operation. See H.R. Rep. No. 108660, 108th Cong., 2d Sess., at 19 (2004).
This Notice of Inquiry (``NOI'') commences our efforts to collect information necessary to address the issues posed to us by Congress in Section 109 of the SHVERA. We plan to hold hearings on matters raised in this NOI later this year to further supplement the record. A separate Federal Register notice will be issued announcing the dates and procedures associated with those hearings. Interested parties will be provided an opportunity to testify at the hearings and respond to testimony submitted at those hearings.
We hereby seek comment on Sections 111, 119, and 122 of the Copyright Act. We analyze the rates, terms, and conditions found in the three licenses at issue. We also examine how multichannel video competition has been affected by the licenses and whether cable and satellite subscribers have benefitted from them. In addition, we explore the application of the licenses to new digital video technologies. We conclude our inquiry by seeking comment on whether the licenses should be maintained, modified, expanded, or eliminated.
A. Comparison of Royalties
Section 111. The royalty payment scheme for the Section 111 license
is complex and is based, in large part, on broadcast signal carriage
regulations adopted by the FCC over thirty years ago. Cable operators
pay royalties based on mathematical formulas established in Section
111(d)(1)(B), (C), and (D) of the Copyright Act. Section 111 segregates [[Page 19041]]
cable systems into three separate categories according to the amount of revenue, or ``gross receipts,'' a cable system receives from subscribers for the retransmission of distant broadcast station signals. For purposes of calculating the royalty fee cable operators must pay under Section 111, gross receipts include the full amount of monthly (or other periodic) service fees for any and all services (or tiers) which include one or more secondary transmissions of television or radio broadcast stations, for additional set fees, and for converter (``set top box'') fees. Gross receipts are not defined in Section 111, but are defined in the Copyright Office's rules. See 37 CFR 201.17(b)(1). These categories are: (1) systems with gross receipts between $0$263,800 (under Section 111(d)(1)(C)); (2) systems with gross receipts more than $263,800 but less than $527,600 (under Section 111(d)(1)(D)); and (3) systems with gross receipts of$527,600 and above (under Section 111(d)(1)(B)). This revenuebased classification system reveals Congress' belief that larger cable systems have a significant economic impact on copyrighted works.
The Copyright Office has developed Statement of Account (``SOA'') forms that must be submitted by cable operators on a semiannual basis for the purpose of paying statutory royalties under Section 111. There are two types of cable system SOAs currently in use. The SA12 Short Form is used for cable systems whose semiannual gross receipts are less than $527,600.00. There are three levels of royalty fees for cable operators using the SA12 Short Form: (1) a system with gross receipts of $137,000.00 or less pays a flat fee of $52.00 for the retransmission of all local and distant broadcast station signals; (2) a system with gross receipts greater than $137,000.00 and equal to or less than $263,000.00, pays between $52.00 to $1,319.00; and (3) a system grossing more than $263,800.00, but less than $527,600.00 pays between $1,319.00 to $3,957.00. Cable systems falling under the latter two categories pay royalties based upon a fixed percentage of gross receipts notwithstanding the number of distant station signals they retransmit. The SA3 Long Form is used by larger cable systems grossing $527,600.00 or more semiannually. The vast majority of royalties paid under Section 111 come from Form SA3 systems.
A key element in calculating the appropriate royalty fee involves
identifying subscribers of the cable system located outside the local
service area of a primary transmitter. See 17 U.S.C. 111(d)(1)(B); see
also 17 U.S.C. 111(f) (definition of ``local service area of a primary
transmitter''). This determination is predicated upon two sets of FCC
regulations: the broadcast signal carriage rules in effect on April 15,
1976, and a station's television market as currently defined by the
FCC. In general, a broadcast station is considered distant visavis a
particular cable system where subscribers served by that system are
located outside that broadcast station's specified 35 mile zone (a
market definition concept arising under the FCC's old rules), its Area
of Dominant Influence (``ADI'') (under Arbitron's defunct television
market system), or Designated Market Area (``DMA'') (under Nielsen's
current television market system). However, there are other sets of
rules and criteria (e.g., Grade B contour coverage or ``significantly
viewed'' status) that also apply in certain situations when assessing
the local or distant status of a stationeven when subscribers are
located outside its zone, ADI and DMA for copyright purposes. A cable
system pays a ``base rate fee'' if it carries any distant signals
regardless of whether or not the system is located in an FCCdefined
television market area. Form SA3 cable systems that carry only local
signals do not pay the base rate fee, but do pay the minimum fee of $5,344.59 (i.e. 1.013
The royalty scheme for Form SA3 cable systems employs the statutory device known as the distant signal equivalent (``DSE''). Section 111 defines a DSE as ``the value assigned to the secondary transmission of any nonnetwork television programming carried by a cable system in whole or in part beyond the local service area of a primary transmitter of such programming.'' 17 U.S.C. 111(f). A DSE is computed by assigning a value of one (1.0) to a distant independent broadcast station (as that term is defined in the Copyright Act), and a value of onequarter (.25) to distant noncommercial educational stations and network stations (as those terms are defined in the Copyright Act).
A Form SA3 cable system pays royalties based upon a sliding scale
of percentages of its gross receipts depending upon the number of DSEs
it carries. The greater the number of DSEs, the higher the total
percentage of gross receipts and, consequently, the larger the total
royalty payment. For example: (1) 1st DSE = 1.013
\3\ In 1980, the FCC eliminated its distant signal carriage and syndicated exclusivity rules. The Copyright Royalty Tribunal (``CRT''), in response to the FCC's actions, conducted a rate adjustment proceeding to establish two new rates applicable only to Form SA3 systems: (1) to compensate for the loss of the distant signal carriage rules, the CRT adopted the 3.75
At this juncture, it is important to note that the FCC does not
currently restrict the kind and quantity of distant signals a cable
operator may retransmit. Nevertheless, the FCC's former market quota
rules, which did limit the number of distant station signals carried
and were part of the FCC's local and distant broadcast carriage rules
in 1976, are still relevant for Section111 purposes. These rules are
integral in determining: (1) whether broadcast signals are permitted or
nonpermitted; (2) the applicable royalty fee category; and (3) a
station's local or distant status for copyright purposes. Broadcast
station signals retransmitted pursuant to the former market quota rules
are considered permitted stations and are not subject to a higher
royalty rate. To put these rules in context, a cable system in a
smaller television market (as defined by the FCC) was permitted to
carry only one independent television station signal under the FCC's
former market quota rules. Currently, a cable system in a smaller
market is permitted to retransmit one independent station signal. A
cable system located in the top 50 television market or second 50
market (as defined by the FCC), was permitted to carry more independent
station signals under the former market quota rules; a cable system in
these markets is currently permitted under Section 111 to retransmit
more independent station signals than a cable system in a smaller market. The former market quota rules did not apply to
cable systems located ``outside of all markets'' and these systems under Section 111 are currently permitted to retransmit an unlimited number of television station signals without incurring the 3.75
There are other bases of permitted carriage under the current copyright scheme that are tied to the FCC's former carriage requirements. They include: (1) specialty stations; (2) grandfathered stations; (3) commercial UHF stations placing a Grade B contour over a cable system; (4) noncommercial educational stations; (5) part time or substitute carriage; and (6) a station carried pursuant to an individual waiver of FCC rules. If none of these permitted bases of carriage are applicable, then the cable system pays a relatively higher royalty fee for the retransmission of that station's signal.
The Copyright Office has divided the royalties collected from cable
operators into three categories to reflect their origin: (1) the
``Basic Fund,'' which includes all royalties collected from Form SA1
and Form SA2 systems, and the royalties collected from Form SA3
systems for the retransmission of distant signals that would have been
permitted under the FCC's former distant carriage rules; (2) the
In order to be eligible for a distribution of royalties, a copyright owner of broadcast programming retransmitted by one or more cable systems under Section 111 must submit a written claim to the Copyright Royalty Judges. Only copyright owners of nonnetwork broadcast programming are eligible for a royalty distribution. Eligible copyright owners must submit their claims in July for royalties collected from cable systems during the previous year. If there are no controversies, meaning that the claimants have settled among themselves as to the amount of royalties each claimant is due, then the Copyright Royalty Judges distribute the royalties in accordance with the claimants' agreement(s) and the proceeding is concluded.\4\ \4\ The Copyright Royalty and Distribution Reform Act of 2004 (Pub. L. No. 108419) eliminated the Copyright Arbitration Royalty Panel (``CARP'') system that had been part of the Copyright Office since 1993. The Act replaced CARP (which itself replaced the Copyright Royalty Tribunal in 1993) with a system of three Copyright Royalty Judges (``CRJs''), who now determine rates and terms for the copyright statutory licenses and make determinations on distribution of statutory license royalties collected by the Copyright Office.
Section 119. The satellite carrier statutory license, first enacted through the Satellite Home Viewer Act (``SHVA'') of 1988, and codified in Section 119 of the Act, establishes a statutory copyright licensing scheme for satellite carriers that retransmit the signals of distant television network stations and superstations to satellite dish owners for their private home viewing and for viewing in commercial establishments. Satellite carriers may use the Section 119 license to retransmit the signals of superstations to subscribers located anywhere in the United States. However, the Section 119 statutory license limits the secondary transmissions of network station signals to no more than two such stations in a single day to persons who reside in unserved households. An ``unserved household'' is defined as one that cannot receive an overtheair signal of Grade B intensity of a network station using a conventional rooftop antenna. 17 U.S.C. 119(d). Congress created the unserved household provision to protect the historic networkaffiliate relationship as well as the program exclusivity enjoyed by television broadcast stations in their local markets.
The Section 119 license is similar to the cable statutory license in that it provides a means for satellite carriers to clear the rights to television broadcast programming upon semiannual payment of royalty fees to the Copyright Office. However, the calculation of royalty fees under the Section 119 license is significantly different from the cable statutory license. Rather than determine royalties based upon old FCC rules, royalties under the Section 119 license are calculated on a flat, per subscriber per station basis. Television broadcasts are divided into two categories: superstations (i.e., commercial independent television broadcast stations), and network stations (i.e., commercial televison network stations and noncommercial educational stations); each with its own attendant royalty rates. Satellite carriers multiply the respective royalty rate for each station by the number of subscribers, on a monthly basis, who receive the station's signal during the sixmonth accounting period to calculate their total royalty payment. Each year, satellite carriers submit royalties to the Copyright Office which are, in turn, distributed to copyright owners whose works were included in a retransmission of a broadcast station signal and for whom a claim for royalties was timely filed with the Copyright Royalty Judges.
Section 122. The Section 122 license allows satellite carriers to retransmit local television signals. Because there are no royalty fees or carriage restrictions for local signals retransmitted under Section 122, there is no need to distinguish between network stations and superstations as is the case in Section 119. The Section 122 statutory copyright license, permits, but does not require, satellite carriers to engage in the satellite retransmission of a local television station signal into the station's own market (DMA) without the need to identify and obtain authorization from copyright owners to retransmit the owners' programs. See 17 U.S.C. 122.
2. Payments and Rate Increases
Congress has asked us to compare the royalties paid by licensees under Sections 111, 119, and 122, and report on the historical rates of increases in these royalties.
Royalties Paid. Cable operators have paid, on average,
$125,000,000.00 in royalties annually since the implementation of
Section 111 by the Copyright Office in 1978. While royalty payments
under the cable statutory license have increased over the past seven
years, there have been periods of fluctuation in the past 29 years. For
example, royalties decreased 30
We estimate that smaller cable operators (SA1/SA2 systems) pay,
on average, .4
gross receipts. \5\ These percentages are generally consistent over other accounting periods as well.
\5\ We note that in the 2001/1 accounting period, for example, there were: (1) 5,517 SA1 form filers paying $202,193.37 in cable royalties; (2) 2,117 SA2 form filers paying $2,186,554.15 in cable royalties; and (3) 1,844 SA3 form filers paying $57,773, 352.29 in royalties. This figure was calculated by adding the base fee ($51,497,381.75) + 3.75
In comparison, satellite carriers have paid, on average, nearly
$50,000,000.00 in royalties annually, since the Copyright Office began
implementing the Section 119 license in 1989. Like the Section 111
royalties described above, there have been fluctuations due to changed
circumstances. For example, satellite royalties decreased by over
much satellite carriers paid in royalties as a percentage of revenue because Section 119 royalties are based on a flat fee per subscriber and not on a gross receipt basis as is the case under Section 111. However, Copyright Office records do indicate that DirecTV has paid more than $326 million in royalty fees between the second half of 1997 through the end of 2006, while Echostar has paid more than $158 million during the same period. Other (existing and defunct) satellite carriers, such as Primetime 24, Primestar Partners, and Satellite Communications, have also paid royalties under Section 119 over the last ten years. The payment of royalties by these and other companies are included in the average total discussed above.
As for Section 122, we reiterate that satellite carriers may carry local broadcast station signals on a royaltyfree basis as long as they abide by the carryone carryall requirements of Section 338 of the Communications Act. Therefore, there are no royalty data to examine for our purposes here.
Stations Carried. According to data obtained from the SA3 forms filed with the Copyright Office, there has been a slow, but steady, increase in the number of unique distant broadcast station signals retransmitted by cable operators across the United States over the last 15 years. For example, during the 1992/1 accounting period, cable operators retransmitted 822 unique distant signals. During the 2000/1 accounting period, that number increased to 918. And, during the 20051 accounting period, the number of unique distant signals retransmitted by cable operators reached 1,029. This increase is partly attributable to the retransmission of new distant analog television signals as well as new digital television signals (see infra) which are counted separately from their analog counterparts. This increase could also be due to the increased retransmission of distant low power television signals over the past decade.
However, there has been a decrease in the average number of distant station signals retransmitted by cable operators over the same time period. Copyright Office data gleaned from the SA3 forms suggests that during the 19921 accounting period, a cable system retransmitted an average of 2.74 distant signals (2,256 SA3s divided by 822 distant signals). During the 2000/1 accounting period, the average number of distant signals retransmitted by cable operators dropped to 2.52. And, during the recent 2005/1 accounting period, records show that a cable system retransmitted an average of 1.5 distant signals. There were, of course, some SA3 systems that reported retransmitting more than four distant signals, and some that reported no distant signals being retransmitted at all, but these types of systems are atypical.
The average decrease reflected in these accounting periods can be attributed to various factors, such as: (1) WTBS no longer being carried as a distant television signal since its conversion to a basic cable network in the late 1990s; (2) cable operators being required to carry local television signals, per Sections 614 and 615 of the Communications Act, and having had to drop distant signals to accommodate the carriage of such stations; (3) fewer SA3 forms being filed with the Copyright Office because of cable system mergers and acquisitions; and (4) statutory changes to the definition of ``local service area'' in the early 1990s.
As for the retransmission of distant television signals under
Section 119, we note that the type and number of signals retransmitted
varies from carrier to carrier. For example, Echostar's SOA for the
2006/2 accounting period shows that it retransmitted six superstation
signals (KTLA, KWGN, WGN, WPIX, WSBK, and WWOR) and paid royalties in
excess of $13 million for service to residential subscribers for
private home viewing over the six month period. Echostar paid an
additional $21,000.00 in royalties for service to commercial
establishments for the retransmission of these same superstation
signals in the 2006/2 period. Echostar also reported that it
retransmitted network station signals to subscribers in 168 DMAs in the
first five months of the 2006/2 accounting period, and paid nearly $3
million in royalties, before it had to terminate such service per a
Federal court injunction issued in December, 2006. See infra. Satellite
carriers do not have to report on the number of local television
signals carried under Section 122, but Echostar states on its website
that it provides localintolocal service in all but the smallest 36 DMAs in the nation.\6\
\6\ Echostar reports that it serves 174 DMAs (out of 210) with the signals of local television stations. See https://customersupport.dishnetwork.com/customernetqual/prepAddress.do.
DirecTV reports that it serves 142 DMAs (out of 210) with the signals of local television stations (and notes that this number accounts for more than 94
carried in each market is not specifically listed on either website.
Questions. We seek comment on the accuracy of the abovestated figures and ask for further explanation for the historic trends described above. Are there different reasons, other than the ones stated, explaining why royalties have fluctuated in the periods examined? We ask commenters to provide a granular analysis of the trends in royalty payments so that we may provide Congress with the information it seeks. On this point, we note that the Copyright Office periodically releases data showing the royalty amounts paid by cable operators and satellite carriers under their respective licenses. See http://www.copyright.gov/licensing/licreceipts.pdf. These data should be used by commenters when responding to this request.
We also seek comment on current distant signal trends under Section 111. For example, are distant television signals mainly retransmitted by cable operators serving smaller markets who are underserved by local television programming? Alternatively, are they retransmitted to subscribers who live on the fringes of television markets and are in need of valued broadcast programming unavailable from their local market stations? For example, do cable operators serving the SpringfieldHolyoke DMA retransmit signals from the adjacent Boston (Manchester) DMA so that their subscribers have access to state government news from Boston as well as popular sports programming carried by Boston television stations?
We also seek comment on the number of distant and local signals
retransmitted by satellite carriers. For example, are the six superstations listed
above typically retransmitted under Section 119? If so, why? How does a satellite carrier decide which superstation and network station signals it will retransmit? Does it decide based on the amount of royalties it has to pay or does the satellite carrier retransmit signals based on subscriber demand? Are there certain ``musthave'' distant television signals, including superstation signals, that satellite carriers retransmit to remain competitive with cable operators? What factors will likely affect the retransmission of distant television signals, and the concomitant royalties paid, by satellite carriers in the future? On average, does a subscriber to a cable service receive the same broadcast signal channel lineup as a subscriber to a satellite service? If not, what are the differences and why do they exist? 3. Marketplace Rates Compared
Congress has also asked us to compare the royalties under Sections 111, 119, and 122 and the prices paid in the marketplace for comparable programming. The difficult issue here is parsing the term ``comparable programming'' so that the analysis is clear. The inquiry assuredly includes an examination of the local broadcast station market, but the term could be read more expansively to include an analysis of the prices (license fees) paid by cable operators and satellite carriers to carry nonbroadcast programmers, such as basic cable networks. Given the ambiguous wording in the statute, we shall consider both local broadcast stations and basic cable networks in the analysis. With regard to broadcast stations, we will analyze the rates, terms, and conditions of carriage privately negotiated by cable operators, satellite carriers, and broadcast stations under the retransmission consent provisions found in Section 325 of the Communications Act of 1934, as amended by the 1992 Cable Act.
A brief history of broadcastcable carriage negotiations is necessary here. Prior to 1992, cable operators were not required to seek the permission of a local broadcast station before carrying its signal nor were they required to compensate the broadcaster for the value of its signal. Congress found that a broadcaster's lack of control over its signal created a ``distortion in the video marketplace which threatens the future of overtheair broadcasting.'' See S. Rep. No. 10292, 102d Cong., 1st Sess. (1991) at 35. In 1992, Congress acted to remedy the situation by giving a commercial broadcast station control over the use of its signal through statutorilygranted retransmission consent rights. Retransmission consent effectively permits a commercial broadcast station to seek compensation from a cable operator for carriage of its signal. Congress noted that some broadcasters might find that carriage itself was sufficient compensation for the use of their signal by an MVPD while other broadcasters might seek monetary compensation, and still others might negotiate for inkind consideration such as joint marketing efforts, the opportunity to provide news inserts on cable channels, or the right to program an additional channel on a cable system. Congress emphasized that it intended ``to establish a marketplace for the disposition of the rights to retransmit broadcast signals'' but did not intend ``to dictate the outcome of the ensuing marketplace negotiations.'' Id. at 36.
With regard to copyright issues, the legislative history indicates that Congress was concerned with the effect retransmission consent may have on the Section 111 license stating that ``the Committee recognizes that the environment in which the compulsory copyright [sic] operates may change because of the authority granted broadcasters by section 325(b)(1).'' Id. The legislative history later stated that cable operators would continue to have the authority to retransmit programs carried by broadcast stations under Section 111. Id.
During the first round of retransmission consent negotiations in the early 1990s, broadcasters initially sought cash compensation in return for retransmission consent. However, most cable operators, particularly the largest multiple system operators, were not willing to enter into agreements for cash, and instead sought to compensate broadcasters through the purchase of advertising time, cross promotions, and carriage of affiliated nonbroadcast networks. Many broadcasters were able to reach agreements that involved inkind compensation by affiliating with an existing nonbroadcast network or by securing carriage of their own newlyformed, nonbroadcast networks. See FCC, Retransmission Consent and Exclusivity Rules: Report to Congress Pursuant to Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (Sept. 8, 2005)(noting that the new broadcastaffiliated MVPD networks included Fox's FX, ABC's ESPN2, and NBC's America's Talking, which later became MSNBC). Broadcast stations that insisted on cash compensation were forced to either lose cable carriage or grant extensions allowing cable operators to carry their signals at no charge until negotiations were complete. Fourteen years later, cash still has not emerged as the sole form of consideration for retransmission consent, but the request and receipt involving such compensation is increasing. See Peter Grant and Brooks Barnes, Television's Power Shift: Cable Pays For Free Shows, Wall Street Journal, Feb. 5, 2007, at A1, A14 (noting that broadcast television station owners may be able to collect almost $400 million in retransmission fees from cable by 2010, increasing each subscriber's bill by $2.00 per month).
Under Section 325 of the Communications Act, as amended, retransmission consent for the carriage of commercial broadcast signals applies not only to cable operators, but also to other multichannel video programming distributors (``MVPDs''), such as satellite carriers and multichannel multipoint distribution services (``MMDS'' or ``Wireless Cable'').
Cable operators generally do not need to obtain retransmission consent for the carriage of established superstations under the Communications Act. Satellite carriers generally do not need to obtain retransmission consent to retransmit established superstations or network stations (if the subscriber is located in an area outside the local market of such stations and resides in an unserved household.) See 47 U.S.C. 325(b)(1).
We also must point out that retransmission consent is a right given to commercial broadcast stations. Copyright owners of the programs carried on such stations do not necessarily benefit financially from agreements between broadcasters and cable operators or satellite carriers.
We seek comment on how the prices, terms, and conditions of
retransmission consent agreements between local broadcast stations and
MVPDs relates to the statutory licenses at issue here. Specifically, we
seek comment on how retransmission consent agreements reflect
marketplace value for broadcast programming and how this value compares
with the royalties collected under the statutory licenses. As noted
above, it may be difficult to analyze these two variables because the
benefits of retransmission consent inures to broadcast stations while
the statutory royalty fees are paid to copyright owners (which include,
but are not limited to, broadcast stations). In any event, we believe
that the compensation paid for retransmission consent for local
stations may serve as a proxy for prices paid for the carriage of distant broadcast stations and the programs retransmitted
therein. We seek comment on whether this approach is correct.
We also seek comment on what the marketplace rate for distant
signals would be if a basic cable network was used as a surrogate.
There are hundreds of basic cable networks that may be used as a point
of comparison. Which ones should we select for our analysis? We could
use the TBS license fee structure (i.e., as dictated in the affiliation
agreement between the network and the MVPD) as a model since it was
formerly a superstation carried under the Section 111 and Section 119
licenses, but is now paid a per subscriber licensing fee as a basic
cable network. Is this an appropriate comparison? We understand that it
may be easier for cable operators and satellite carriers to license
basic cable networks, like TBS and CNN, than it would be for distant
broadcast signals. To wit, a nonbroadcast program network obtains
licenses from each copyright owner for all of the works in its lineup
to enable a cable operator or satellite carrier to retransmit the
network, but there is no equivalent conveyance of rights where cable or
satellite retransmission of a broadcast station signal is concerned. Is
this difference relevant to the analysis? What are the similarities
between basic cable networks and distant broadcast stations that we
should be aware of? Are there other ways to determine the value of copyrighted content carried by distant signals?
B. Differences in the Licenses
1. Terms and Conditions.
Congress has asked us to analyze the differences in the terms and conditions of the statutory licenses. First, there is a difference in how royalties are based. Satellite carriers pay a flat royalty fee on a per subscriber basis while cable operators pay royalties based on a complex system tied to cable system size and old FCC carriage rules. Compare 17 U.S.C. 119(b) with 17 U.S.C. 111(d). Second, satellite carriers are permitted to market and sell distant network station signals only to unserved households (i.e., those customers who are unable to receive the signals of local broadcast stations) while cable operators are not so restricted. Compare 17 U.S.C. 119(a)(2)(B) with 17 U.S.C. 111(c). Third, satellite carriers cannot provide the signals of more than two network stations in a single day to its subscribers in unserved households while cable operators may carry as many distant network station signals as they wish so long as they pay the appropriate royalty fee for each signal carried. Compare 17 U.S.C. 119(a)(2)(B)(i) with 17 U.S.C. 111(c) and (d). Fourth, cable operators are permitted to retransmit radio station signals under Section 111 while satellite carriers do not have such a right. See 17 U.S.C. 111(f). Fifth, Congress specifically accounted for the retransmission of digital television station signals by satellite carriers in the last revision of Section 119 in 2004, but has not yet addressed the retransmission of digital television signals by cable operators under Section 111. Finally, the Section 119 statutory license expires after a five year period, unless renewed by Congress, while the Section 111 statutory license, as well as the Section 122 license, are permanent. We seek comment on other differences between the statutory licenses, that are not noted above, that are relevant to this proceeding. 2. Justifications for Differences.
Congress also asked for an analysis of whether these differences are required or justified by historical, technological, or regulatory differences that affect the satellite and cable industries. We provide a broad overview to put this inquiry into perspective.
a. Historical Differences.
Section 111. The years leading up to the enactment of the Copyright Act of 1976 were marked by controversy over the issue of cable television. Through a series of court decisions, cable systems were allowed under the Copyright Act of 1909 to retransmit the signals of broadcast television stations without incurring any copyright liability for the copyrighted programs carried on those signals. See Fortnightly Corp. v. United Artists Television, 392 U.S. 390 (1968) (pertaining to the retransmission of local television station signals), Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (pertaining to the retransmission of distant television station signals). The question, at that time, was whether copyright liability should attach to cable transmissions under the proposed Copyright Act, and if so, how to provide a costeffective means of enabling cable operators to clear rights in all broadcasting programming that they retransmitted.
In the mid1970s, cable operators typically carried multiple broadcast signals containing programming owned by dozens of copyright owners. At the time, it was not realistic for hundreds of cable operators to negotiate individual licenses with dozens of copyright owners, so a practical mechanism for clearing rights was needed. As a result, Congress created the Section 111 statutory license for cable systems to retransmit broadcast signals. Congress enacted Section 111 after years of industry input and in light of (1) FCC regulations that inextricably linked the cable and broadcast industries and (2) the need to preserve the nationwide system of local broadcasting. See H.R. Rep. No. 1476 at 8891; see also, Cable Compulsory Licenses: Definition of Cable Systems, 62 FR 18705, 18707 (Apr. 17, 1997) (``The Office notes that at the time Congress created the cable compulsory license, the FCC regulated the cable industry as a highly localized medium of limited availability, suggesting that Congress, cognizant of the FCC's regulations and market realities, fashioned a compulsory license with a local rather than a national scope. This being so, the Office retains the position that a provider of broadcast signals be an inherently localized transmission media of limited availability to qualify as a cable system.''). It is important to note that at the time Section 111 was enacted, there were few local media outlets and virtually no competition to the Big 3 television networks (ABC, CBS, and NBC).
The structure of the cable statutory license was premised on two
prominent congressional considerations: (1) the perceived need to
differentiate between the impact on copyright owners of local versus
distant signals carried by cable operators; and (2) the need to
categorize cable systems by size based upon the dollar amount of
receipts a system receives from subscribers for the carriage of distant
signals. These two considerations played a significant role in
determining what economic effect cable systems had on the value of
copyrighted works carried on broadcast stations. Congress concluded
that a cable operator's retransmission of local signals did not affect
the value of the copyrighted works broadcast because the signal is
already available to the public for free through overtheair
broadcasting. Therefore, the cable statutory license permits cable
systems to retransmit local television signals without a significant
royalty obligation. Congress did determine, however, that the
retransmission of distant signals affected the value of copyrighted
broadcast programming because the programming was reaching larger
audiences. The increased viewership was not compensated because local
advertisers, who provide the principal remuneration to broadcasters,
were not willing to pay increased advertising rates for cable viewers
in distant markets who could not be reasonably expected to purchase their goods. As a result, Congress believed that
broadcasters had no reason or incentive to pay greater sums to compensate copyright owners for the receipt of their signals by viewers outside their local service area.
The Section 111 statutory license has not been the only means for licensing programming carried on distant broadcast signals. Copyright owners and cable operators have been free to enter into private licensing agreements for the retransmission of broadcast programming. Private licensing most frequently occurs in the context of particular sporting events, when a cable operator wants to retransmit a sporting event carried on a distant broadcast signal, but does not want to carry the signal on a fulltime basis. The practice of private licensing has not been widespread and most cable operators have relied exclusively on the cable statutory license to clear the rights to broadcast programming. Section 111 has been lightly amended since enacted in 1976.
Section 119. From the time of passage of the Copyright Act of 1976 through the mid1980s, the developing satellite television industry operated without incurring copyright liability under the passive carrier exemption of Section 111(a)(3) of the Act. That subsection provides an exemption for secondary transmissions of copyrighted works where the carrier has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and the carrier's activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others.
In the mid1980s, however, many resale carriers and copyright holders began scrambling their satellite signals to safeguard against the unauthorized reception of copyrighted works. Only authorized subscribers were able to descramble the encrypted signals. Scrambling presented several concerns, including whether it would impede the free flow of copyrighted works and whether it took satellite carriers out of the passive carrier exemption since it represented direct control over the receipt of signals. At the same time, several lawsuits were pending against certain satellite carriers who claimed to operate under Section 111. In 1992, the Copyright Office decided that satellite carriers were not cable systems within the meaning of Section 111, notwithstanding an 11th Circuit Court of Appeals decision holding otherwise. See 57 FR 3284 (1992), citing National Broadcasting Company, Inc. v. Satellite Broadcast Networks, 940 F.2d 1467 (11th Cir. 1991).
The satellite statutory license under Section 119 was enacted in 1988 to respond to these concerns and to ensure the availability of programming comparable to that offered by cable systems (i.e., an affiliate of each of the broadcast television networks, superstations, and nonbroadcast programming services) to satellite subscribers until a market developed for that distribution medium. See Satellite Home Viewer Act (``SHVA''), Pub. L. No. 100667 (1988); H.R. Rep. No. 887, Part I, 100th Cong., 2d Sess. 814 (1988). Section 119 was created at a time when there was no competition to cable operators in the provision of multichannel video programming and there were no rules in effect mandating the cable carriage of local broadcast signals.\7\ \7\ The United States Court of Appeals for the District of Columbia Circuit struck down, as unconstitutional under the First Amendment, two different sets of must carry rules promulgated by the FCC. See Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985); Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987). Congress did not enact Sections 614 and 615 of the
Communications Act until 1992.
The Section 119 statutory license created by the SHVA was scheduled to expire at the end of 1994 at which time satellite carriers were expected to be able to license the rights to all broadcast programming that they retransmitted to their subscribers. However, in 1994, Congress decided to reauthorize Section 119 for an additional five years and made two significant changes to the terms of the license. See Pub. L. No. 103369, 108 Stat. 3477 (1994). First, in reaction to complaints against satellite carriers concerning wholesale violations of the unserved household provision, the 1994 Act instituted a transitional signal strength testing regime in an effort to identify and terminate the network service of subscribers who did not reside in unserved households. Second, in order to assist the process of ultimately eliminating the Section 119 license, Congress provided for a Copyright Arbitration Royalty Panel proceeding to adjust the royalty rates paid by satellite carriers for the retransmission of network station and superstation signals. Unlike cable systems which pay royalty rates adjusted only for inflation, Congress mandated that satellite carrier rates should be adjusted to reflect marketplace value. It was thought that by compelling satellite carriers to pay statutory royalty rates that equaled the rates they would most likely pay in the open marketplace, there would be no need to further renew the Section 119 license and it could expire in 1999.
The period from 1994 to 1999, however, was the most eventful in the history of the Section 119 license. The satellite industry grew considerably during this time and certain satellite carriers provided thousands of subscribers with network station signals in violation of the unserved household limitation. Broadcasters sued certain satellite carriers and many satellite subscribers lost access to the signals of distant network stations. These aggrieved subscribers, in turn, complained to Congress about the unfairness of the unserved household limitation. In the meantime, the Library of Congress conducted a CARP proceeding to adjust the royalty rates paid by satellite carriers. Applying the new marketplace value standard as it was required to do, the CARP raised the rates considerably.
To address these events, Congress enacted the Satellite Home Viewer Improvement Act of 1999 (``SHVIA''). Pub. L. No. 106113, 113 Stat. 1501 (1999). The SHVIA, inter alia, permitted satellite carriers to retransmit nonnetwork signals to all served and unserved households in all markets. In reaction to industry complaints about the 1997 CARP proceeding that raised the Section 119 royalty rates, Congress abandoned the concept of marketplacevalue royalty rates and reduced the CARPestablished royalty fee for the retransmission of network station signals by 45 percent and the royalty fee for superstation signals by 30 percent. More importantly, the SHVIA instituted a new statutory licensing regime for the retransmission of local broadcast station signals by satellite carriers. By 1999, satellite carriers were beginning to implement local service in some of the major television markets in the United States. In order to further encourage this development, Congress created a new, royaltyfree license under Section 122 of the Copyright Act permitting the retransmission of local television signals. The SHVIA extended the revised Section 119 statutory license for five years until the end of 2004.
Congress also made several changes to the unserved household
limitation itself. The FCC was directed to conduct a rulemaking to set
specific standards whereby a satellite subscriber's eligibility to
receive service of a network station could accurately be predicted
(based on new signal strength measurements). For those subscribers that
were not eligible for distant network service, a process was codified
whereby they could seek a waiver of the unserved household limitation from
their local network station. In addition, three categories of subscribers were exempted from the unserved household limitation: (1) owners of recreational vehicles and commercial trucks, provided that they supplied certain required documentation; (2) subscribers receiving network service which was terminated after July 11, 1998, but before October 31, 1999, and did not receive a strong (Grade A) overtheair signal from their local network broadcaster; and (3) subscribers using large Cband satellite dishes.
The most recent authorization of Section 119 occurred in 2004 with
the enactment of the SHVERA. Until the end of 2009, satellite carriers
are authorized to retransmit distant network station signals to
unserved households and superstation signals to all households, without
retransmission consent, but with the requirement to pay royalties. In
the SHVERA, Congress adopted a complex set of rules to further limit
the importation of distant network station signals into local
television markets. For example, the law requires satellite carriers to
phase out the retransmission of distant signals in markets where they
offer localintolocal service. Generally, a satellite carrier will be
required to terminate distant station service to any subscriber that
elected to receive localintolocal service and would be precluded from
providing distant network station signals to new subscribers in markets
where localintolocal service is available. It also provided for the
delivery of superstation signals to commercial establishments and for
the delivery of television station signals from adjacent markets that
have been determined by the FCC to be ``significantly viewed'' in the
local market (so long as the satellite carrier provides localinto
local service to those subscribers under the Section 122 statutory license).\8\
\8\ Pursuant to SHVERA, satellite carriers were granted the right to retransmit outofmarket significantly viewed station signals to subscribers in the community in which the station is deemed significantly viewed, provided the local station affiliated with the same network as the significantly viewed station is offered to subscribers. Satellite carriers are not required to carry outof market significantly viewed signals, and, if they do carry them, retransmission consent is required.
Moreover, for the first time, the law distinguished between the retransmission of signals in an analog format and those transmitted in a digital format. SHVERA expanded the copyright license to make express provision for digital signals. In general, if a satellite carrier offers localintolocal digital signals in a market, it is not allowed to provide distant digital signals to subscribers in that market, unless it was offering such digital signals prior to commencing local intolocal digital service. If a household is predicted to be unserved by the analog signals of a network station, it can qualify for the digital signal of the distant network station with which the station is affiliated if it is offered by the subscriber's satellite carrier. If the satellite carrier offers localintolocal analog service, a subscriber must receive that service in order to qualify for distant digital signals. A household that qualifies for distant digital signal service can receive only signals from stations located in the same time zone or in a later time zone, not in an earlier time zone.
SHVERA also provides for signal testing at a household to determine if it is ``served'' by a digital signal overtheair. In some cases, if a household is shown to be unserved, it would be eligible for distant digital signals, provided the household subscribes to localintolocal analog service, if it is offered. However, this digital testing option was not available until April 30, 2006, in the top 100 television markets, and will be available by July 15, 2007, in all other television markets. Such digital tests also are subject to waivers that the FCC may issue for stations that meet specified statutory criteria. Unlike SHVIA, SHVERA did not determine the royalty rates during the fiveyear extension because representatives of satellite carriers and copyright owners of broadcast programming negotiated new rates for the retransmission of analog and digital broadcast station signals. See infra. A procedure was created to implement these negotiated rates and they were adopted by the Librarian of Congress in 2005.
Section 122. The Section 122 license was enacted eleven years after the Section 119 license and was intended to make the satellite industry more competitive by permitting the retransmission of local television signals on a royaltyfree basis. The license is permanent and its history is relatively noncontroversial. In fact, satellite carriers have increasingly relied upon the license in the last seven years to provide local television signals to their subscribers in over 150 local markets. See n. 8, supra.
Issues. As illustrated above, the statutory licenses were enacted by Congress, at various times, to respond to historical events and in response to technological developments. The key difference between the licenses is the relative rigidity of the applicable statutory language. Section 111 has effectively locked the cable industry into a royalty scheme tied to antiquated FCC rules (i.e. the local and distant signal carriage regulations in effect in 1976, but later repealed). On the other hand, Congress has been able to modify Section 119 to reflect current marketplace and legal developments because the license must be renewed every five years. We seek comment on the accuracy of our historical overview and ask if there are any other historical differences among the licenses that merit discussion.
b. Technological Differences
Cable systems and satellite carriers are technologically and functionally very different. Cable systems deliver video and audio (in analog, digital, and high definition formats), voice, and broadband services through fiber and coaxial cable to households, apartment buildings, hotels, mobile home parks, and local businesses. The cable industry has invested billions of dollars to upgrade transmission facilities over the last ten years so that cable systems are able to provide the services described above. Currently, cable operators offer separate tiers of traditional analog channels and newer digital channels to their subscribers, as well as premium services and video ondemand. Despite system upgrades, some cable systems still lack channel capacity to offer all of the new programming services available. Although there are many large cable operators, each system is franchised to a discrete geographical area. Local or state franchise authorities have authority to condition a franchise grant on the operator's offering, see 47 U.S.C. 541, and most cable headends serve specific geographic regions. A cable system's terrestrialbased technology has allowed cable operators to specifically tailor delivery of distant broadcast signals to the needs of their subscriber base.
Satellite carriers use satellites to transmit video programming to
subscribers, who must buy or rent a small parabolic ``dish'' antenna
and pay a subscription fee to receive the programming service.
Satellite carriers digitally compress each signal they carry and do not
sell separate analog and digital tiers as most cable operators now do.
They have nationwide footprints and a finite amount of transponder
space which currently limits the number of program services carried. To
make the most use of available channel capacity, satellite carriers
have begun to use spot beam technology to deliver local television
signals into local markets, but they do not have the level of technical sophistication to provide distant station
signals on the same basis as cable operators. In any event, satellite carriers have recently launched, or plan to launch, new satellites in order to increase channel capacity and to offer much more high definition television programming to subscribers across the country. Because satellite television is a spacebased technology, carriers are technically unable to provide the bundle of video, voice, and data in the same manner as cable sy
FOR FURTHER INFORMATION CONTACT
Ben Golant, Senior Attorney, and Tanya M. Sandros, Acting General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Telephone: (202) 7078380. Telefax: (202) 7078366.