S. 2799 — Reported in Senate

II Calendar No. 569 113th CONGRESS 2d Session S. 2799 IN THE SENATE OF THE UNITED STATES September 11, 2014Mr. Rockefeller (for himself and Mr. Thune) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation September 17 (legislative day, September 16), 2014Reported by Mr. Rockefeller, with an amendmentStrike out all after the enacting clause and insert the part printed in italic A BILL To extend the authority of satellite carriers to retransmit certain television broadcast station signals, and for other purposes. 1. Short title This Act may be cited as the Satellite Television Access and Viewer Rights Act. 2. References to Communications Act of 1934 Except as otherwise expressly provided, wherever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.). I Satellite television 101. Extension of authority Section 325(b) (47 U.S.C. 325(b)) is amended— (1) in paragraph (2)(C), by striking December 31, 2014 and inserting December 31, 2019; and (2) in paragraph (3)(C), by striking January 1, 2015 each place it appears and inserting January 1, 2020. 102. Modification of television markets to further consumer access to relevant television programming (a) In general Section 338 (47 U.S.C. 338) is amended— (1) in subsection (k)— (A) by redesignating paragraphs (1) through (10) as paragraphs (2) through (11), respectively; (B) by inserting before paragraph (2), as redesignated, the following: (1) Designated market area The term designated market area means a designated market area as determined by Nielsen Media Research or by any successor system of assigning television broadcast stations to local markets adopted by the Commission. ; and (C) by amending paragraph (5), as redesignated, to read as follows: (5) Local market The term local market, in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a television broadcast station is located. ; and (2) by adding at the end the following: (l) Market determinations (1) In general Following a written request, the Commission may, with respect to a particular television broadcast station, include additional communities within its local market or exclude communities from such station’s local market to better effectuate the purposes of this section. (2) Considerations In considering requests filed under paragraph (1), the Commission— (A) may determine that particular communities are part of more than one local market; and (B) shall afford particular attention to the value of localism, including promoting a consumer's access to television signals that originate in the consumer's State of residence, by taking into account such factors as— (i) whether the station, or other stations located in the same area— (I) have been historically carried on the cable system or systems within such community; and (II) have been historically carried on the satellite carrier or carriers serving such community; (ii) whether the television station provides coverage or other local service to such community; (iii) whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (iv) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. (3) Carriage of signals A satellite carrier shall not delete from carriage the signal of a commercial television station during the pendency of any proceeding under this subsection. (4) Determinations Not later than 120 days after the date that a written request is filed under paragraph (1), the Commission shall grant or deny the request. . (b) Conforming amendments Section 614(h)(1)(C) (47 U.S.C. 534(h)(1)(C)) is amended— (1) in clause (ii)— (A) in the matter preceding subclause (I), by striking localism and inserting localism, including promoting consumer access to television signals that originate in a consumer's State of residence,; (B) in subclause (II), by striking community and inserting community or on the satellite carrier or carriers serving such community; and (C) by amending subclause (IV) to read as follows: (IV) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. ; and (2) by moving the margin of clause (iv) 4 ems to the left. (c) Implementation As part of the rulemaking to implement the amendments made by this section, the Federal Communications Commission shall ensure that procedures for the filing and consideration of a written request under sections 338(l) and 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338, 534) fully effectuate the purposes of the amendments made by this section. As part of that process, the Federal Communications Commission shall update what it considers to be a community for purposes of a modification of a market under section 338(l) or 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338, 534). II Video policy reforms 201. Consumer protections in retransmission consent (a) Joint retransmission consent negotiations Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)) is amended— (1) in clause (ii), by striking and at the end; (2) in clause (iii), by striking the period at the end and inserting ; and; and (3) by adding at the end the following: (iv) prohibit a television broadcast station from coordinating negotiations or negotiating on a joint basis with another television broadcast station to grant retransmission consent under this section to a multichannel video programming distributor, unless such stations are directly or indirectly under common de jure control permitted by the Federal Communications Commission; . (b) Protections for significantly viewed and other television signals Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)), as amended, is further amended by adding at the end the following: (v) prohibit a television broadcast station from limiting the ability of a multichannel video programming distributor to carry a television signal that has been deemed significantly viewed, within the meaning of section 76.54 of title 47, Code of Federal Regulations, or any successor regulation, or any other television broadcast signal such distributor is authorized to carry under section 338 or 614 of this Act, into the local market of such station, unless such stations are directly or indirectly under common de jure control permitted by the Commission; and . (c) Per se violations Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)), as amended, is further amended by adding at the end the following: (vi) following an expiration of a retransmission consent agreement between a television broadcast station and a multichannel video programming distributor under this section, permit the Commission— (I) to request from the parties such information as it deems necessary to ensure that neither party has committed a per se violation of its duty to negotiate in good faith under this paragraph; and (II) to determine, based on the information collected under subclause (I) and in accordance with this Act, that a party to a retransmission consent negotiation has committed a per se violation of its duty to negotiate in good faith. . (d) Good faith Section 325(b)(3) (47 U.S.C. 325(b)(3)) is amended by adding at the end the following: (D) Update to good faith rules The Commission shall commence a rulemaking to revise the regulations issued pursuant to subparagraph (C). That rulemaking shall— (i) consider whether each of the following constitutes a failure to negotiate in good faith as required by this paragraph— (I) the blocking of online content owned or controlled by a television broadcast station or a television network, or the act of soliciting, encouraging, or otherwise seeking to have another entity block access to online content, during retransmission consent negotiations or after the expiration of a retransmission consent agreement; and (II) allowing a television network to review and approve the rates, terms, and conditions of a retransmission consent agreement, or the material terms of such agreement, for any television broadcast station not wholly owned by such network; and (ii) review and update the Commission's totality of the circumstances test to ensure that such test encourages parties to a retransmission consent negotiation to present bona fide proposals on the material terms of a retransmission consent agreement during negotiations and engage in timely negotiations to reach an agreement. . (e) Conforming amendment Section 325(b)(7) (47 U.S.C. 325(b)(7)) is amended— (1) in subparagraph (A), by striking and at the end; (2) in subparagraph (B), by striking the period at the end and inserting ; and; and (3) by adding at the end the following: (C) television network means 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. . (f) Margin corrections (1) Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)) is further amended by moving the margin of clause (iii) 4 ems to the left. (2) Section 325(b) (47 U.S.C. 325(b)) is amended by moving the margin of paragraph (7), as amended by this section, 4 ems to the left. 202. Update to cable rates report Section 623(k) (47 U.S.C. 543(k)) is amended to read as follows: (k) Reports on average prices (1) In general The Commission shall annually publish statistical reports on the average rates for basic cable service and other cable programming, and for converter boxes, remote control units, and other equipment of cable systems that the Commission has found are subject to effective competition under subsection (a)(2) compared with cable systems that the Commission has found are not subject to such effective competition. (2) Inclusion in annual report The Commission shall include in its report under paragraph (1), the aggregate average total amount paid by cable systems per community in compensation under section 325. . 203. Competitive device availability (a) Termination of effectiveness (1) New navigation devices The authority provided by the second sentence of section 76.1204(a)(1) of title 47, Code of Federal Regulations, terminates effective on the date that is 2 years after the date of enactment of this Act. (2) Revision of regulations Not later than 910 days after the date of enactment of this Act, the Federal Communications Commission shall revise its regulations to strike the sentence described in paragraph (1) and make any necessary conforming revisions to its regulations. (b) Working Group (1) In general Not later than 60 days after the date of enactment of this Act, the Chairman of the Federal Communications Commission shall convene a working group of technical experts representing a wide range of stakeholders, to identify and report performance objectives, technical capabilities, and technical standards of a non-burdensome, uniform, and technology- and platform-neutral software-based downloadable security system designed to promote the competitive availability of navigation devices in furtherance of section 629 of the Communications Act of 1934 (47 U.S.C. 549). (2) Report Not later than 540 days after the date of enactment of this Act, the working group shall file a report with the Federal Communications Commission on its work under paragraph (1). (3) Commission assistance The Chairperson of the Federal Communications Commission may appoint a member of the Commission's staff— (A) to moderate and direct the work of the working group under this subsection; and (B) to provide technical assistance to members of the working group, as appropriate. (4) Initial meeting The initial meeting of the working group shall take place not later than 180 days after the date of the enactment of this Act. 204. Administrative reforms to effective competition petitions Section 623 (47 U.S.C. 543) is amended by adding at the end the following: (o) Streamlined petition process for small cable operators (1) In general Not later than 180 days after the date of enactment of the Satellite Television Access and Viewer Rights Act, the Commission shall complete a rulemaking to establish a streamlined process for filing of an effective competition petition pursuant to this section for small cable operators, particularly those who serve primarily rural areas. (2) Construction Nothing in this subsection shall be construed to have any effect on the duty of a small cable operator to prove the existence of effective competition under this section. (3) Definition of small cable operator In this subsection, the term small cable operator has the meaning given the term in subsection (m). . III Miscellaneous 301. Implementation Except as otherwise expressly provided, the Federal Communications Commission shall prescribe regulations to implement the requirements of this Act, and any amendments made by this Act, not later than 270 days after the date of enactment. 302. Severability If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of the Act, the amendments made by the Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby. 1. Short title This Act may be cited as the Satellite Television Access and Viewer Rights Act. 2. References to Communications Act of 1934 Except as otherwise expressly provided, wherever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.). I Satellite television 101. Extension of authority Section 325(b) (47 U.S.C. 325(b)) is amended— (1) in paragraph (2)(C), by striking December 31, 2014 and inserting December 31, 2019; and (2) in paragraph (3)(C), by striking January 1, 2015 each place it appears and inserting January 1, 2020. 102. Modification of television markets to further consumer access to relevant television programming (a) In general Section 338 (47 U.S.C. 338) is amended— (1) in subsection (k)— (A) by redesignating paragraphs (1) through (10) as paragraphs (2) through (11), respectively; (B) by inserting before paragraph (2), as redesignated, the following: (1) Designated market area The term designated market area means a designated market area as determined by Nielsen Media Research. ; and (C) by amending paragraph (5), as redesignated, to read as follows: (5) Local market The term local market, in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a television broadcast station is located, including with respect to a commercial television broadcast station any modifications to such market pursuant to subsection (l). ; and (2) by adding at the end the following: (l) Market determinations (1) In general Following a written request, the Commission may, with respect to a particular commercial television broadcast station, include additional communities within its local market or exclude communities from such station’s local market to better effectuate the purposes of this section. (2) Considerations In considering requests filed under paragraph (1), the Commission— (A) may determine that particular communities are part of more than one local market; (B) shall afford particular attention to the value of localism by taking into account such factors as— (i) whether the station, or other stations located in the same area— (I) have been historically carried on the cable system or systems within such community; or (II) have been historically carried on the satellite carrier or carriers serving such community; (ii) whether the television station provides coverage or other local service to such community; (iii) whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence; (iv) whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (v) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. (3) Carriage of signals (A) Carriage obligation A market determination under this subsection shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination. (B) Deletion of signals A satellite carrier shall not delete from carriage the signal of a commercial television broadcast station during the pendency of any proceeding under this subsection. (4) Determinations Not later than 120 days after the date that a written request is filed under paragraph (1), the Commission shall grant or deny the request. (5) No effect on eligibility to receive distant signals No modification of a commercial broadcast television station’s local market pursuant to this subsection shall have any effect on the eligibility of households in the community affected by such modification to receive distant signals pursuant to section 339 of this Act. . (b) Conforming amendments Section 614(h)(1)(C) (47 U.S.C. 534(h)(1)(C)) is amended— (1) in subclause (ii)— (A) in subclause (II), by striking community and inserting community or on the satellite carrier or carriers serving such community; (B) by redesignating subclauses (III) and (IV) as subclauses (IV) and (V), respectively; (C) by inserting after subclause (II) the following: (III) whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence; ; and (D) by amending subclause (V), as redesignated, to read as follows: (V) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. ; and (2) by moving the margin of clause (iv) 4 ems to the left. (c) Implementation As part of the rulemaking to implement the amendments made by this section, the Federal Communications Commission shall ensure that procedures for the filing and consideration of a written request under sections 338(l) and 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338, 534) fully effectuate the purposes of the amendments made by this section. As part of that process, the Federal Communications Commission shall update what it considers to be a community for purposes of a modification of a market under section 338(l) or 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338, 534). (d) Market modification process The Federal Communications Commission shall make information available to consumers on its website that explains the market modification process, including— (1) who may petition to include additional communities within, or exclude communities from, a— (A) local market (as defined in section 338(k) (47 U.S.C. 338(k))); or (B) television market (as determined under section 614(h)(1)(C) (47 U.S.C. 534(h)(1)(C))); and (2) the factors that the Commission takes into account when responding to a petition described in paragraph (1). II Video policy reforms 201. Consumer protections in retransmission consent (a) Joint retransmission consent negotiations Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)) is amended— (1) in clause (ii), by striking ; and at the end; (2) in clause (iii), by striking the period at the end and inserting a semicolon; and (3) by adding at the end the following: (iv) prohibit a television broadcast station from coordinating negotiations or negotiating on a joint basis with another television broadcast station in the same local market (as defined in section 338 of this Act) to grant retransmission consent under this section to a multichannel video programming distributor, unless such stations are directly or indirectly under common de jure control permitted under the regulations of the Federal Communications Commission; and . (b) Protections for significantly viewed and other television signals Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)), as amended, is further amended by adding at the end the following: (v) prohibit a television broadcast station from limiting the ability of a multichannel video programming distributor to carry a television signal that has been deemed significantly viewed, within the meaning of section 76.54 of title 47, Code of Federal Regulations, or any successor regulation, or any other television broadcast signal such distributor is authorized to carry under section 338, 339, 340, or 614 of this Act, into the local market of such station, unless such stations are directly or indirectly under common de jure control permitted by the Commission. . (c) Good faith Section 325(b)(3) (47 U.S.C. 325(b)(3)) is amended by adding at the end the following: (D) Update to good faith rules The Commission shall commence a rulemaking to review and update its totality of the circumstances test for good faith negotiations. As part of that rulemaking, the Commission shall ensure that such test encourages parties to a retransmission consent negotiation to present bona fide proposals on the material terms of a retransmission consent agreement during negotiations and engage in timely negotiations to reach an agreement. . (d) Margin corrections (1) Section 325(b)(3)(C) (47 U.S.C. 325(b)(3)(C)) is further amended by moving the margin of clause (iii) 4 ems to the left. (2) Section 325(b) (47 U.S.C. 325(b)) is amended by moving the margin of paragraph (7), 4 ems to the left. 202. Update to cable rates report Section 623(k) (47 U.S.C. 543(k)) is amended to read as follows: (k) Reports on average prices (1) In general The Commission shall annually publish statistical reports on the average rates for basic cable service and other cable programming, and for converter boxes, remote control units, and other equipment of cable systems that the Commission has found are subject to effective competition under subsection (a)(2) compared with cable systems that the Commission has found are not subject to such effective competition. (2) Inclusion in annual report (A) In general The Commission shall include in its report under paragraph (1), the aggregate average total amount paid by cable systems in compensation under section 325. (B) Form The Commission shall publish information under this paragraph in a manner substantially similar to the way other comparable information is published in such report. . 203. Competitive device availability (a) Termination of effectiveness (1) New navigation devices The second sentence of section 76.1204(a)(1) of title 47, Code of Federal Regulations, terminates effective on the date that is 2 years after the date of enactment of this Act. (2) Revision of regulations Not later than 910 days after the date of enactment of this Act, the Federal Communications Commission shall revise its regulations to strike the sentence described in paragraph (1) and make any necessary conforming revisions to its regulations. (b) Working Group (1) In general Not later than 60 days after the date of enactment of this Act, the Chairman of the Federal Communications Commission shall convene a working group of technical experts representing a wide-range of stakeholders, to identify, report, and recommend performance objectives, technical capabilities, and technical standards of a not unduly burdensome, uniform, and technology- and platform-neutral software-based downloadable security system designed to promote the competitive availability of navigation devices in furtherance of section 629 of the Communications Act of 1934 (47 U.S.C. 549). (2) Report Not later than 540 days after the date of enactment of this Act, the working group shall file a report with the Federal Communications Commission on its work under paragraph (1). (3) Commission assistance The Chairperson of the Federal Communications Commission may appoint a member of the Commission's staff— (A) to moderate and direct the work of the working group under this subsection; and (B) to provide technical assistance to members of the working group, as appropriate. (4) Initial meeting The initial meeting of the working group shall take place not later than 180 days after the date of the enactment of this Act. 204. Administrative reforms to effective competition petitions Section 623 (47 U.S.C. 543) is amended by adding at the end the following: (o) Streamlined petition process for small cable operators (1) In general Not later than 180 days after the date of enactment of the Satellite Television Access and Viewer Rights Act, the Commission shall complete a rulemaking to establish a streamlined process for filing of an effective competition petition pursuant to this section for small cable operators, particularly those who serve primarily rural areas. (2) Construction Nothing in this subsection shall be construed to have any effect on the duty of a small cable operator to prove the existence of effective competition under this section. (3) Definition of small cable operator In this subsection, the term small cable operator has the meaning given the term in subsection (m)(2). . 205. Report on designated market areas (a) In general Not later than 18 months after the date of enactment of this Act, the Federal Communications Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate, the Committee on the Judiciary of the Senate, the Committee on Energy and Commerce of the House of Representatives, and the Committee on the Judiciary of the House of Representatives a report that contains— (1) an analysis of— (A) the extent to which consumers in each local market have access to broadcast programming from television broadcast stations located outside their local market; and (B) (i) whether there are alternatives to the use of designated market areas to define markets that would provide consumers with more local programming options; and (ii) the potential impact the alternatives described in clause (i) could have on localism and on broadcast television locally, regionally, and nationally; and (2) recommendations on how to foster increased localism in counties served by out-of-State designated market areas. (b) Considerations for fostering increased localism In making recommendations under subsection (a)(2), the Commission shall consider— (1) the impact that designated market areas that cross State lines have on access to local programming; (2) the impact that designated market areas have on local programming in rural areas; and (3) the state of local programming in States served exclusively by out-of-State designated market areas. III Miscellaneous 301. Implementation Except as otherwise expressly provided, the Federal Communications Commission shall prescribe regulations to implement the requirements of this Act, and any amendments made by this Act, not later than 270 days after the date of enactment of this Act. 302. Severability If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of the Act, the amendments made by the Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby. September 17 (legislative day, September 16), 2014Reported with an amendment