17 U.S.C. § 119 : US Code - Section 119: Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing

Search 17 U.S.C. § 119 : US Code - Section 119: Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing

(a) Secondary Transmissions by Satellite Carriers. -
(1) Superstations. - Subject to the provisions of paragraphs
(5), (6), and (8) of this subsection and section 114(d),
secondary transmissions of a performance or display of a work
embodied in a primary transmission made by a superstation shall
be subject to statutory licensing under this section if the
secondary transmission is made by a satellite carrier to the
public for private home viewing or for viewing in a commercial
establishment, with regard to secondary transmissions the
satellite carrier is in compliance with the rules, regulations,
or authorizations of the Federal Communications Commission
governing the carriage of television broadcast station signals,
and the carrier makes a direct or indirect charge for each
retransmission service to each subscriber receiving the secondary
transmission or to a distributor that has contracted with the
carrier for direct or indirect delivery of the secondary
transmission to the public for private home viewing or for
viewing in a commercial establishment.
(2) Network stations. -
(A) In general. - Subject to the provisions of subparagraphs
(B) and (C) of this paragraph and paragraphs (5), (6), (7), and
(8) of this subsection and section 114(d), secondary
transmissions of a performance or display of a work embodied in
a primary transmission made by a network station shall be
subject to statutory licensing under this section if the
secondary transmission is made by a satellite carrier to the
public for private home viewing, with regard to secondary
transmissions the satellite carrier is in compliance with the
rules, regulations, or authorizations of the Federal
Communications Commission governing the carriage of television
broadcast station signals, and the carrier makes a direct or
indirect charge for such retransmission service to each
subscriber receiving the secondary transmission.
(B) Secondary transmissions to unserved households. -
(i) In general. - The statutory license provided for in
subparagraph (A) shall be limited to secondary transmissions
of the signals of no more than two network stations in a
single day for each television network to persons who reside
in unserved households. The limitation in this clause shall
not apply to secondary transmissions under paragraph (3).
(ii) Accurate determinations of eligibility. -
(I) Accurate predictive model. - In determining
presumptively whether a person resides in an unserved
household under subsection (d)(10)(A), a court shall rely
on the Individual Location Longley-Rice model set forth by
the Federal Communications Commission in Docket No. 98-201,
as that model may be amended by the Commission over time
under section 339(c)(3) of the Communications Act of 1934
to increase the accuracy of that model.
(II) Accurate measurements. - For purposes of site
measurements to determine whether a person resides in an
unserved household under subsection (d)(10)(A), a court
shall rely on section 339(c)(4) of the Communications Act
of 1934.
(iii) C-band exemption to unserved households. -
(I) In general. - The limitations of clause (i) shall not
apply to any secondary transmissions by C-band services of
network stations that a subscriber to C-band service
received before any termination of such secondary
transmissions before October 31, 1999.
(II) Definition. - In this clause the term "C-band
service" means a service that is licensed by the Federal
Communications Commission and operates in the Fixed
Satellite Service under part 25 of title 47 of the Code of
Federal Regulations.
(C) Exceptions. -
(i) States with single full-power network station. - In a
State in which there is licensed by the Federal
Communications Commission a single full-power station that
was a network station on January 1, 1995, the statutory
license provided for in subparagraph (A) shall apply to the
secondary transmission by a satellite carrier of the primary
transmission of that station to any subscriber in a community
that is located within that State and that is not within the
first 50 television markets as listed in the regulations of
the Commission as in effect on such date (47 CFR 76.51).
(ii) States with all network stations and superstations in
same local market. - In a State in which all network stations
and superstations licensed by the Federal Communications
Commission within that State as of January 1, 1995, are
assigned to the same local market and that local market does
not encompass all counties of that State, the statutory
license provided under subparagraph (A) shall apply to the
secondary transmission by a satellite carrier of the primary
transmissions of such station to all subscribers in the State
who reside in a local market that is within the first 50
major television markets as listed in the regulations of the
Commission as in effect on such date (section 76.51 of title
47 of the Code of Federal Regulations).
(iii) Additional stations. - In the case of that State in
which are located 4 counties that -
(I) on January 1, 2004, were in local markets principally
comprised of counties in another State, and
(II) had a combined total of 41,340 television
households, according to the U.S. Television Household
Estimates by Nielsen Media Research for 2004,
the statutory license provided under subparagraph (A) shall
apply to secondary transmissions by a satellite carrier to
subscribers in any such county of the primary transmissions
of any network station located in that State, if the
satellite carrier was making such secondary transmissions to
any subscribers in that county on January 1, 2004.
(iv) Certain additional stations. - If 2 adjacent counties
in a single State are in a local market comprised principally
of counties located in another State, the statutory license
provided for in subparagraph (A) shall apply to the secondary
transmission by a satellite carrier to subscribers in those 2
counties of the primary transmissions of any network station
located in the capital of the State in which such 2 counties
are located, if -
(I) the 2 counties are located in a local market that is
in the top 100 markets for the year 2003 according to
Nielsen Media Research; and
(II) the total number of television households in the 2
counties combined did not exceed 10,000 for the year 2003
according to Nielsen Media Research.
(v) Applicability of royalty rates. - The royalty rates
under subsection (b)(1)(B) apply to the secondary
transmissions to which the statutory license under
subparagraph (A) applies under clauses (i), (ii), (iii), and
(iv).
(D) Submission of subscriber lists to networks. -
(i) Initial lists. - A satellite carrier that makes
secondary transmissions of a primary transmission made by a
network station pursuant to subparagraph (A) shall, 90 days
after commencing such secondary transmissions, submit to the
network that owns or is affiliated with the network station -

(I) a list identifying (by name and address, including
street or rural route number, city, State, and zip code)
all subscribers to which the satellite carrier makes
secondary transmissions of that primary transmission to
subscribers in unserved households; and
(II) a separate list, aggregated by designated market
area (as defined in section 122(j)) (by name and address,
including street or rural route number, city, State, and
zip code), which shall indicate those subscribers being
served pursuant to paragraph (3), relating to significantly
viewed stations.
(ii) Monthly lists. - After the submission of the initial
lists under clause (i), on the 15th of each month, the
satellite carrier shall submit to the network -
(I) a list identifying (by name and address, including
street or rural route number, city, State, and zip code)
any persons who have been added or dropped as subscribers
under clause (i)(I) since the last submission under clause
(i); and
(II) a separate list, aggregated by designated market
area (by name and street address, including street or rural
route number, city, State, and zip code), identifying those
subscribers whose service pursuant to paragraph (3),
relating to significantly viewed stations, has been added
or dropped.
(iii) Use of subscriber information. - Subscriber
information submitted by a satellite carrier under this
subparagraph may be used only for purposes of monitoring
compliance by the satellite carrier with this subsection.
(iv) Applicability. - The submission requirements of this
subparagraph shall apply to a satellite carrier only if the
network to which the submissions are to be made places on
file with the Register of Copyrights a document identifying
the name and address of the person to whom such submissions
are to be made. The Register shall maintain for public
inspection a file of all such documents.
(3) Secondary transmissions of significantly viewed signals. -
(A) In general. - Notwithstanding the provisions of paragraph
(2)(B), and subject to subparagraph (B) of this paragraph, the
statutory license provided for in paragraphs (1) and (2) shall
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 (as defined in
section 122(j)) 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.
(B) Limitation. - Subparagraph (A) shall apply only to
secondary transmissions of the primary transmissions of network
stations and superstations to subscribers who receive secondary
transmissions from a satellite carrier pursuant to the
statutory license under section 122.
(C) Waiver. -
(i) In general. - A subscriber who is denied the secondary
transmission of the primary transmission of a network station
under subparagraph (B) may request a waiver from such denial
by submitting a request, through the subscriber's satellite
carrier, to the network station in the local market
affiliated with the same network where the subscriber is
located. The network station shall accept or reject the
subscriber's request for a waiver within 30 days after
receipt of the request. If the network station fails to
accept or reject the subscriber's request for a waiver within
that 30-day period, that network station shall be deemed to
agree to the waiver request. Unless specifically stated by
the network station, a waiver that was granted before the
date of the enactment of the Satellite Home Viewer Extension
and Reauthorization Act of 2004 under section 339(c)(2) of
the Communications Act of 1934 shall not constitute a waiver
for purposes of this subparagraph.
(ii) Sunset. - The authority under clause (i) to grant
waivers shall terminate on December 31, 2008, and any such
waiver in effect shall terminate on that date.
(4) Statutory license where retransmissions into local market
available. -
(A) Rules for subscribers to analog signals under subsection
(e). -
(i) For those receiving distant analog signals. - In the
case of a subscriber of a satellite carrier who is eligible
to receive the secondary transmission of the primary analog
transmission of a network station solely by reason of
subsection (e) (in this subparagraph referred to as a
"distant analog signal"), and who, as of October 1, 2004, is
receiving the distant analog signal of that network station,
the following shall apply:
(I) In a case in which the satellite carrier makes
available to the subscriber the secondary transmission of
the primary analog transmission of a local network station
affiliated with the same television network pursuant to the
statutory license under section 122, the statutory license
under paragraph (2) shall apply only to secondary
transmissions by that satellite carrier to that subscriber
of the distant analog signal of a station affiliated with
the same television network -
(aa) if, within 60 days after receiving the notice of
the satellite carrier under section 338(h)(1) of the
Communications Act of 1934, the subscriber elects to
retain the distant analog signal; but
(bb) only until such time as the subscriber elects to
receive such local analog signal.
(II) Notwithstanding subclause (I), the statutory license
under paragraph (2) shall not apply with respect to any
subscriber who is eligible to receive the distant analog
signal of a television network station solely by reason of
subsection (e), unless the satellite carrier, within 60
days after the date of the enactment of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, submits
to that television network a list, aggregated by designated
market area (as defined in section 122(j)(2)(C)), that -
(aa) identifies that subscriber by name and address
(street or rural route number, city, State, and zip code)
and specifies the distant analog signals received by the
subscriber; and
(bb) states, to the best of the satellite carrier's
knowledge and belief, after having made diligent and good
faith inquiries, that the subscriber is eligible under
subsection (e) to receive the distant analog signals.
(ii) For those not receiving distant analog signals. - In
the case of any subscriber of a satellite carrier who is
eligible to receive the distant analog signal of a network
station solely by reason of subsection (e) and who did not
receive a distant analog signal of a station affiliated with
the same network on October 1, 2004, the statutory license
under paragraph (2) shall not apply to secondary
transmissions by that satellite carrier to that subscriber of
the distant analog signal of a station affiliated with the
same network.
(B) Rules for other subscribers. - In the case of a
subscriber of a satellite carrier who is eligible to receive
the secondary transmission of the primary analog transmission
of a network station under the statutory license under
paragraph (2) (in this subparagraph referred to as a "distant
analog signal"), other than subscribers to whom subparagraph
(A) applies, the following shall apply:
(i) In a case in which the satellite carrier makes
available to that subscriber, on January 1, 2005, the
secondary transmission of the primary analog transmission of
a local network station affiliated with the same television
network pursuant to the statutory license under section 122,
the statutory license under paragraph (2) shall apply only to
secondary transmissions by that satellite carrier to that
subscriber of the distant analog signal of a station
affiliated with the same television network if the
subscriber's satellite carrier, not later than March 1, 2005,
submits to that television network a list, aggregated by
designated market area (as defined in section 122(j)(2)(C)),
that identifies that subscriber by name and address (street
or rural route number, city, State, and zip code) and
specifies the distant analog signals received by the
subscriber.
(ii) In a case in which the satellite carrier does not make
available to that subscriber, on January 1, 2005, the
secondary transmission of the primary analog transmission of
a local network station affiliated with the same television
network pursuant to the statutory license under section 122,
the statutory license under paragraph (2) shall apply only to
secondary transmissions by that satellite carrier of the
distant analog signal of a station affiliated with the same
network to that subscriber if -
(I) that subscriber seeks to subscribe to such distant
analog signal before the date on which such carrier
commences to provide pursuant to the statutory license
under section 122 the secondary transmissions of the
primary analog transmission of stations from the local
market of such local network station; and
(II) the satellite carrier, within 60 days after such
date, submits to each television network a list that
identifies each subscriber in that local market provided
such an analog signal by name and address (street or rural
route number, city, State, and zip code) and specifies the
distant analog signals received by the subscriber.
(C) Future applicability. - The statutory license under
paragraph (2) shall not apply to the secondary transmission by
a satellite carrier of a primary analog transmission of a
network station to a person who -
(i) is not a subscriber lawfully receiving such secondary
transmission as of the date of the enactment of the Satellite
Home Viewer Extension and Reauthorization Act of 2004; and
(ii) at the time such person seeks to subscribe to receive
such secondary transmission, resides in a local market where
the satellite carrier makes available to that person the
secondary transmission of the primary analog transmission of
a local network station affiliated with the same television
network pursuant to the statutory license under section 122,
and such secondary transmission of such primary transmission
can reach such person.
(D) Special rules for distant digital signals. - The
statutory license under paragraph (2) shall apply to secondary
transmissions by a satellite carrier to a subscriber of primary
digital transmissions of network stations if such secondary
transmissions to such subscriber are permitted under section
339(a)(2)(D) of the Communications Act of 1934, as in effect on
the day after the date of the enactment of the Satellite Home
Viewer Extension and Reauthorization Act of 2004, except that
the reference to section 73.683(a) of title 47, Code of Federal
Regulations, referred to in section 339(a)(2)(D)(i)(I) shall
refer to such section as in effect on the date of the enactment
of the Satellite Home Viewer Extension and Reauthorization Act
of 2004.
(E) Other provisions not affected. - This paragraph shall not
affect the applicability of the statutory license to secondary
transmissions under paragraph (3) or to unserved households
included under paragraph (12).
(F) Waiver. - A subscriber who is denied the secondary
transmission of a network station under subparagraph (C) or (D)
may request a waiver from such denial by submitting a request,
through the subscriber's satellite carrier, to the network
station in the local market affiliated with the same network
where the subscriber is located. The network station shall
accept or reject the subscriber's request for a waiver within
30 days after receipt of the request. If the network station
fails to accept or reject the subscriber's request for a waiver
within that 30-day period, that network station shall be deemed
to agree to the waiver request. Unless specifically stated by
the network station, a waiver that was granted before the date
of the enactment of the Satellite Home Viewer Extension and
Reauthorization Act of 2004 under section 339(c)(2) of the
Communications Act of 1934 shall not constitute a waiver for
purposes of this subparagraph.
(G) Available defined. - For purposes of this paragraph, a
satellite carrier makes available a secondary transmission of
the primary transmission of a local station to a subscriber or
person if the satellite carrier offers that secondary
transmission to other subscribers who reside in the same zip
code as that subscriber or person.
(5) Noncompliance with reporting and payment requirements. -
Notwithstanding the provisions of paragraphs (1) and (2), the
willful or repeated secondary transmission to the public by a
satellite carrier of a primary transmission made by a
superstation or a network station and embodying a performance or
display of a work is actionable as an act of infringement under
section 501, and is fully subject to the remedies provided by
sections 502 through 506 and 509, where the satellite carrier has
not deposited the statement of account and royalty fee required
by subsection (b), or has failed to make the submissions to
networks required by paragraph (2)(C).
(6) Willful alterations. - Notwithstanding the provisions of
paragraphs (1) and (2), the secondary transmission to the public
by a satellite carrier of a performance or display of a work
embodied in a primary transmission made by a superstation or a
network station is actionable as an act of infringement under
section 501, and is fully subject to the remedies provided by
sections 502 through 506 and sections 509 and 510, if the content
of the particular program in which the performance or display is
embodied, or any commercial advertising or station announcement
transmitted by the primary transmitter during, or immediately
before or after, the transmission of such program, is in any way
willfully altered by the satellite carrier through changes,
deletions, or additions, or is combined with programming from any
other broadcast signal.
(7) Violation of territorial restrictions on statutory license
for network stations. -
(A) Individual violations. - The willful or repeated
secondary transmission by a satellite carrier of a primary
transmission made by a network station and embodying a
performance or display of a work to a subscriber who is not
eligible to receive the transmission under this section is
actionable as an act of infringement under section 501 and is
fully subject to the remedies provided by sections 502 through
506 and 509, except that -
(i) no damages shall be awarded for such act of
infringement if the satellite carrier took corrective action
by promptly withdrawing service from the ineligible
subscriber, and
(ii) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation
occurred.
(B) Pattern of violations. - If a satellite carrier engages
in a willful or repeated pattern or practice of delivering a
primary transmission made by a network station and embodying a
performance or display of a work to subscribers who are not
eligible to receive the transmission under this section, then
in addition to the remedies set forth in subparagraph (A) -
(i) if the pattern or practice has been carried out on a
substantially nationwide basis, the court shall order a
permanent injunction barring the secondary transmission by
the satellite carrier, for private home viewing, of the
primary transmissions of any primary network station
affiliated with the same network, and the court may order
statutory damages of not to exceed $250,000 for each 6-month
period during which the pattern or practice was carried out;
and
(ii) if the pattern or practice has been carried out on a
local or regional basis, the court shall order a permanent
injunction barring the secondary transmission, for private
home viewing in that locality or region, by the satellite
carrier of the primary transmissions of any primary network
station affiliated with the same network, and the court may
order statutory damages of not to exceed $250,000 for each 6-
month period during which the pattern or practice was
carried out.
(C) Previous subscribers excluded. - Subparagraphs (A) and
(B) do not apply to secondary transmissions by a satellite
carrier to persons who subscribed to receive such secondary
transmissions from the satellite carrier or a distributor
before November 16, 1988.
(D) Burden of proof. - In any action brought under this
paragraph, the satellite carrier shall have the burden of
proving that its secondary transmission of a primary
transmission by a network station is to a subscriber who is
eligible to receive the secondary transmission under this
section.
(E) Exception. - The secondary transmission by a satellite
carrier of a performance or display of a work embodied in a
primary transmission made by a network station to subscribers
who do not reside in unserved households shall not be an act of
infringement if -
(i) the station on May 1, 1991, was retransmitted by a
satellite carrier and was not on that date owned or operated
by or affiliated with a television network that offered
interconnected program service on a regular basis for 15 or
more hours per week to at least 25 affiliated television
licensees in 10 or more States;
(ii) as of July 1, 1998, such station was retransmitted by
a satellite carrier under the statutory license of this
section; and
(iii) the station is not owned or operated by or affiliated
with a television network that, as of January 1, 1995,
offered interconnected program service on a regular basis for
15 or more hours per week to at least 25 affiliated
television licensees in 10 or more States.
(8) Discrimination by a satellite carrier. - Notwithstanding
the provisions of paragraph (1), the willful or repeated
secondary transmission to the public by a satellite carrier of a
performance or display of a work embodied in a primary
transmission made by a superstation or a network station is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through
506 and 509, if the satellite carrier unlawfully discriminates
against a distributor.
(9) Geographic limitation on secondary transmissions. - The
statutory license created by this section shall apply only to
secondary transmissions to households located in the United
States.
(10) Loser pays for signal intensity measurement; recovery of
measurement costs in a civil action. - In any civil action filed
relating to the eligibility of subscribing households as unserved
households -
(A) a network station challenging such eligibility shall,
within 60 days after receipt of the measurement results and a
statement of such costs, reimburse the satellite carrier for
any signal intensity measurement that is conducted by that
carrier in response to a challenge by the network station and
that establishes the household is an unserved household; and
(B) a satellite carrier shall, within 60 days after receipt
of the measurement results and a statement of such costs,
reimburse the network station challenging such eligibility for
any signal intensity measurement that is conducted by that
station and that establishes the household is not an unserved
household.
(11) Inability to conduct measurement. - If a network station
makes a reasonable attempt to conduct a site measurement of its
signal at a subscriber's household and is denied access for the
purpose of conducting the measurement, and is otherwise unable to
conduct a measurement, the satellite carrier shall within 60 days
notice thereof, terminate service of the station's network to
that household.
(12) Service to recreational vehicles and commercial trucks. -
(A) Exemption. -
(i) In general. - For purposes of this subsection, and
subject to clauses (ii) and (iii), the term "unserved
household" shall include -
(I) recreational vehicles as defined in regulations of
the Secretary of Housing and Urban Development under
section 3282.8 of title 24 of the Code of Federal
Regulations; and
(II) commercial trucks that qualify as commercial motor
vehicles under regulations of the Secretary of
Transportation under section 383.5 of title 49 of the Code
of Federal Regulations.
(ii) Limitation. - Clause (i) shall apply only to a
recreational vehicle or commercial truck if any satellite
carrier that proposes to make a secondary transmission of a
network station to the operator of such a recreational
vehicle or commercial truck complies with the documentation
requirements under subparagraphs (B) and (C).
(iii) Exclusion. - For purposes of this subparagraph, the
terms "recreational vehicle" and "commercial truck" shall not
include any fixed dwelling, whether a mobile home or
otherwise.
(B) Documentation requirements. - A recreational vehicle or
commercial truck shall be deemed to be an unserved household
beginning 10 days after the relevant satellite carrier provides
to the network that owns or is affiliated with the network
station that will be secondarily transmitted to the
recreational vehicle or commercial truck the following
documents:
(i) Declaration. - A signed declaration by the operator of
the recreational vehicle or commercial truck that the
satellite dish is permanently attached to the recreational
vehicle or commercial truck, and will not be used to receive
satellite programming at any fixed dwelling.
(ii) Registration. - In the case of a recreational vehicle,
a copy of the current State vehicle registration for the
recreational vehicle.
(iii) Registration and license. - In the case of a
commercial truck, a copy of -
(I) the current State vehicle registration for the truck;
and
(II) a copy of a valid, current commercial driver's
license, as defined in regulations of the Secretary of
Transportation under section 383 of title 49 of the Code of
Federal Regulations, issued to the operator.
(C) Updated documentation requirements. - If a satellite
carrier wishes to continue to make secondary transmissions to a
recreational vehicle or commercial truck for more than a 2-year
period, that carrier shall provide each network, upon request,
with updated documentation in the form described under
subparagraph (B) during the 90 days before expiration of that 2-
year period.
(13) Statutory license contingent on compliance with fcc rules
and remedial steps. - Notwithstanding any other provision of this
section, the willful or repeated secondary transmission to the
public by a satellite carrier of a primary transmission embodying
a performance or display of a work made by a broadcast station
licensed by the Federal Communications Commission is actionable
as an act of infringement under section 501, and is fully subject
to the remedies provided by sections 502 through 506 and 509, if,
at the time of such transmission, the satellite carrier is not in
compliance with the rules, regulations, and authorizations of the
Federal Communications Commission concerning the carriage of
television broadcast station signals.
(14) Waivers. - A subscriber who is denied the secondary
transmission of a signal of a network station under subsection
(a)(2)(B) may request a waiver from such denial by submitting a
request, through the subscriber's satellite carrier, to the
network station asserting that the secondary transmission is
prohibited. The network station shall accept or reject a
subscriber's request for a waiver within 30 days after receipt of
the request. If a television network station fails to accept or
reject a subscriber's request for a waiver within the 30-day
period after receipt of the request, that station shall be deemed
to agree to the waiver request and have filed such written
waiver. Unless specifically stated by the network station, a
waiver that was granted before the date of the enactment of the
Satellite Home Viewer Extension and Reauthorization Act of 2004
under section 339(c)(2) of the Communications Act of 1934, and
that was in effect on such date of enactment, shall constitute a
waiver for purposes of this paragraph
(15) Carriage of low power television stations. -
(A) In general. - Notwithstanding paragraph (2)(B), and
subject to subparagraphs (B) through (F) of this paragraph, the
statutory license provided for in paragraphs (1) and (2) shall
apply to the secondary transmission of the primary transmission
of a network station or a superstation that is licensed as a
low power television station, to a subscriber who resides
within the same local market.
(B) Geographic limitation. -
(i) Network stations. - With respect to network stations,
secondary transmissions provided for in subparagraph (A)
shall be limited to secondary transmissions to subscribers
who -
(I) reside in the same local market as the station
originating the signal; and
(II) reside within 35 miles of the transmitter site of
such station, except that in the case of such a station
located in a standard metropolitan statistical area which
has 1 of the 50 largest populations of all standard
metropolitan statistical areas (based on the 1980 decennial
census of population taken by the Secretary of Commerce),
the number of miles shall be 20.
(ii) Superstations. - With respect to superstations,
secondary transmissions provided for in subparagraph (A)
shall be limited to secondary transmissions to subscribers
who reside in the same local market as the station
originating the signal.
(C) No applicability to repeaters and translators. -
Secondary transmissions provided for in subparagraph (A) shall
not apply to any low power television station that retransmits
the programs and signals of another television station for more
than 2 hours each day.
(D) Royalty fees. - Notwithstanding subsection (b)(1)(B), a
satellite carrier whose secondary transmissions of the primary
transmissions of a low power television station are subject to
statutory licensing under this section shall have no royalty
obligation for secondary transmissions to a subscriber who
resides within 35 miles of the transmitter site of such
station, except that in the case of such a station located in a
standard metropolitan statistical area which has 1 of the 50
largest populations of all standard metropolitan statistical
areas (based on the 1980 decennial census of population taken
by the Secretary of Commerce), the number of miles shall be 20.
Carriage of a superstation that is a low power television
station within the station's local market, but outside of the
35-mile or 20-mile radius described in the preceding sentence,
shall be subject to royalty payments under subsection
(b)(1)(B).
(E) Limitation to subscribers taking local-into-local
service. - Secondary transmissions provided for in subparagraph
(A) may be made only to subscribers who receive secondary
transmissions of primary transmissions from that satellite
carrier pursuant to the statutory license under section 122,
and only in conformity with the requirements under 340(b) of
the Communications Act of 1934, as in effect on the date of the
enactment of the Satellite Home Viewer Extension and
Reauthorization Act of 2004.
(16) Restricted transmission of out-of-state distant network
signals into certain markets. -
(A) Out-of-state network affiliates. - Notwithstanding any
other provision of this title, the statutory license in this
subsection and subsection (b) shall not apply to any secondary
transmission of the primary transmission of a network station
located outside of the State of Alaska to any subscriber in
that State to whom the secondary transmission of the primary
transmission of a television station located in that State is
made available by the satellite carrier pursuant to section
122.
(B) Exception. - The limitation in subparagraph (A) shall not
apply to the secondary transmission of the primary transmission
of a digital signal of a network station located outside of the
State of Alaska if at the time that the secondary transmission
is made, no television station licensed to a community in the
State and affiliated with the same network makes primary
transmissions of a digital signal.
(b) Statutory License for Secondary Transmissions for Private
Home Viewing. - (!1)
(1) Deposits with the register of copyrights. - A satellite
carrier whose secondary transmissions are subject to statutory
licensing under subsection (a) shall, on a semiannual basis,
deposit with the Register of Copyrights, in accordance with
requirements that the Register shall prescribe by regulation -
(A) a statement of account, covering the preceding 6-month
period, specifying the names and locations of all superstations
and network stations whose signals were retransmitted, at any
time during that period, to subscribers as described in
subsections (a)(1) and (a)(2), the total number of subscribers
that received such retransmissions, and such other data as the
Register of Copyrights may from time to time prescribe by
regulation; and
(B) a royalty fee for that 6-month period, computed by
multiplying the total number of subscribers receiving each
secondary transmission of each superstation or network station
during each calendar month by the appropriate rate in effect
under this section.
Notwithstanding the provisions of subparagraph (B), a satellite
carrier whose secondary transmissions are subject to statutory
licensing under paragraph (1) or (2) of subsection (a) shall have
no royalty obligation for secondary transmissions to a subscriber
under paragraph (3) of such subsection.
(2) Investment of fees. - The Register of Copyrights shall
receive all fees deposited under this section and, after
deducting the reasonable costs incurred by the Copyright Office
under this section (other than the costs deducted under paragraph
(4)), shall deposit the balance in the Treasury of the United
States, in such manner as the Secretary of the Treasury directs.
All funds held by the Secretary of the Treasury shall be invested
in interest-bearing securities of the United States for later
distribution with interest by the Librarian of Congress as
provided by this title.
(3) Persons to whom fees are distributed. - The royalty fees
deposited under paragraph (2) shall, in accordance with the
procedures provided by paragraph (4), be distributed to those
copyright owners whose works were included in a secondary
transmission made by a satellite carrier during the applicable 6-
month accounting period and who file a claim with the Copyright
Royalty Judges under paragraph (4).
(4) Procedures for distribution. - The royalty fees deposited
under paragraph (2) shall be distributed in accordance with the
following procedures:
(A) Filing of claims for fees. - During the month of July in
each year, each person claiming to be entitled to statutory
license fees for secondary transmissions shall file a claim
with the Copyright Royalty Judges, in accordance with
requirements that the Copyright Royalty Judges shall prescribe
by regulation. For purposes of this paragraph, any claimants
may agree among themselves as to the proportionate division of
statutory license fees among them, may lump their claims
together and file them jointly or as a single claim, or may
designate a common agent to receive payment on their behalf.
(B) Determination of controversy; distributions. - After the
first day of August of each year, the Copyright Royalty Judges
shall determine whether there exists a controversy concerning
the distribution of royalty fees. If the Copyright Royalty
Judges determine that no such controversy exists, the Librarian
of Congress shall, after deducting reasonable administrative
costs under this paragraph, distribute such fees to the
copyright owners entitled to receive them, or to their
designated agents. If the Copyright Royalty Judges find the
existence of a controversy, the Copyright Royalty Judges shall,
pursuant to chapter 8 of this title, conduct a proceeding to
determine the distribution of royalty fees.
(C) Withholding of fees during controversy. - During the
pendency of any proceeding under this subsection, the Copyright
Royalty Judges shall withhold from distribution an amount
sufficient to satisfy all claims with respect to which a
controversy exists, but shall have the discretion to proceed to
distribute any amounts that are not in controversy.
(c) Adjustment of Royalty Fees. -
(1) Applicability and determination of royalty fees for analog
signals. -
(A) Initial fee. - The appropriate fee for purposes of
determining the royalty fee under subsection (b)(1)(B) for the
secondary transmission of the primary analog transmissions of
network stations and superstations shall be the appropriate fee
set forth in part 258 of title 37, Code of Federal Regulations,
as in effect on July 1, 2004, as modified under this paragraph.
(B) Fee set by voluntary negotiation. - On or before January
2, 2005, the Librarian of Congress shall cause to be published
in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining the
royalty fee to be paid by satellite carriers for the secondary
transmission of the primary analog transmission of network
stations and superstations under subsection (b)(1)(B).
(C) Negotiations. - Satellite carriers, distributors, and
copyright owners entitled to royalty fees under this section
shall negotiate in good faith in an effort to reach a voluntary
agreement or agreements for the payment of royalty fees. Any
such satellite carriers, distributors and copyright owners may
at any time negotiate and agree to the royalty fee, and may
designate common agents to negotiate, agree to, or pay such
fees. If the parties fail to identify common agents, the
Librarian of Congress shall do so, after requesting
recommendations from the parties to the negotiation proceeding.
The parties to each negotiation proceeding shall bear the cost
thereof.
(D) Agreements binding on parties; filing of agreements;
public notice. - (i) Voluntary agreements negotiated at any
time in accordance with this paragraph shall be binding upon
all satellite carriers, distributors, and copyright owners that
a (!2) parties thereto. Copies of such agreements shall be
filed with the Copyright Office within 30 days after execution
in accordance with regulations that the Register of Copyrights
shall prescribe.
(ii)(I) Within 10 days after publication in the Federal
Register of a notice of the initiation of voluntary negotiation
proceedings, parties who have reached a voluntary agreement may
request that the royalty fees in that agreement be applied to
all satellite carriers, distributors, and copyright owners
without convening an arbitration proceeding pursuant to
subparagraph (E).
(II) Upon receiving a request under subclause (I), the
Librarian of Congress shall immediately provide public notice
of the royalty fees from the voluntary agreement and afford
parties an opportunity to state that they object to those fees.
(III) The Librarian shall adopt the royalty fees from the
voluntary agreement for all satellite carriers, distributors,
and copyright owners without convening an arbitration
proceeding unless a party with an intent to participate in the
arbitration proceeding and a significant interest in the
outcome of that proceeding objects under subclause (II).
(E) Period agreement is in effect. - The obligation to pay
the royalty fees established under a voluntary agreement which
has been filed with the Copyright Office in accordance with
this paragraph shall become effective on the date specified in
the agreement, and shall remain in effect until December 31,
2009, or in accordance with the terms of the agreement,
whichever is later.
(F) Fee set by compulsory arbitration. -
(i) Notice of initiation of proceedings. - On or before May
1, 2005, the Librarian of Congress shall cause notice to be
published in the Federal Register of the initiation of
arbitration proceedings for the purpose of determining the
royalty fee to be paid for the secondary transmission of
primary analog transmission of network stations and
superstations under subsection (b)(1)(B) by satellite
carriers and distributors
(I) in the absence of a voluntary agreement filed in
accordance with subparagraph (D) that establishes royalty
fees to be paid by all satellite carriers and distributors;
or
(II) if an objection to the fees from a voluntary
agreement submitted for adoption by the Librarian of
Congress to apply to all satellite carriers, distributors,
and copyright owners is received under subparagraph (D)
from a party with an intent to participate in the
arbitration proceeding and a significant interest in the
outcome of that proceeding.
Such arbitrary (!3) proceeding shall be conducted under
chapter 8 as in effect on the day before the date of the
enactment of the Copyright Royalty and Distribution Act of
2004.
(ii) Establishment of royalty fees. - In determining
royalty fees under this subparagraph, the copyright
arbitration royalty panel appointed under chapter 8, as in
effect on the day before the date of the enactment of the
Copyright Royalty and Distribution Act of 2004 shall
establish fees for the secondary transmissions of the primary
analog transmission of network stations and superstations
that most clearly represent the fair market value of
secondary transmissions, except that the Librarian of
Congress and any copyright arbitration royalty panel shall
adjust those fees to account for the obligations of the
parties under any applicable voluntary agreement filed with
the Copyright Office pursuant to subparagraph (D). In
determining the fair market value, the panel shall base its
decision on economic, competitive, and programming
information presented by the parties, including -
(I) the competitive environment in which such programming
is distributed, the cost of similar signals in similar
private and compulsory license marketplaces, and any
special features and conditions of the retransmission
marketplace;
(II) the economic impact of such fees on copyright owners
and satellite carriers; and
(III) the impact on the continued availability of
secondary transmissions to the public.
(iii) Period during which decision of arbitration panel or
order of librarian effective. - The obligation to pay the
royalty fee established under a determination which -
(I) is made by a copyright arbitration royalty panel in
an arbitration proceeding under this paragraph and is
adopted by the Librarian of Congress under section 802(f),
as in effect on the day before the date of the enactment of
the Copyright Royalty and Distribution Act of 2004; or
(II) is established by the Librarian under section 802(f)
as in effect on the day before such date of enactment shall
be effective as of January 1, 2005.
(iv) Persons subject to royalty fee. - The royalty fee
referred to in (iii) shall be binding on all satellite
carriers, distributors and copyright owners, who are not
party to a voluntary agreement filed with the Copyright
Office under subparagraph (D).
(2) Applicability and determination of royalty fees for digital
signals. - The process and requirements for establishing the
royalty fee payable under subsection (b)(1)(B) for the secondary
transmission of the primary digital transmissions of network
stations and superstations shall be the same as that set forth in
paragraph (1) for the secondary transmission of the primary
analog transmission of network stations and superstations, except
that -
(A) the initial fee under paragraph (1)(A) shall be the rates
set forth in section 298.3(b)(1) and (2) of title 37, Code of
Federal Regulations, as in effect on the date of the enactment
of the Satellite Home Viewer Extension and Reauthorization Act
of 2004, reduced by 22.5 percent;
(B) the notice of initiation of arbitration proceedings
required in paragraph (1)(F)(i) shall be published on or before
December 31, 2005; and
(C) the royalty fees that are established for the secondary
transmission of the primary digital transmission of network
stations and superstations in accordance with to (!4) the
procedures set forth in paragraph (1)(F)(iii) and are payable
under subsection (b)(1)(B) -
(i) shall be reduced by 22.5 percent; and
(ii) shall be adjusted by the Librarian of Congress on
January 1, 2007, and on January 1 of each year thereafter, to
reflect any changes occurring during the preceding 12 months
in the cost of living as determined by the most recent
Consumer Price Index (for all consumers and items) published
by the Secretary of Labor.
(d) Definitions. - As used in this section -
(1) Distributor. - The term "distributor" means an entity which
contracts to distribute secondary transmissions from a satellite
carrier and, either as a single channel or in a package with
other programming, provides the secondary transmission either
directly to individual subscribers or indirectly through other
program distribution entities in accordance with the provisions
of this section.
(2) Network station. - The term "network station" means -
(A) a television station licensed by the Federal
Communications Commission, 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);
except that the term does not include the signal of the Alaska
Rural Communications Service, or any successor entity to that
service.
(3) Primary network station. - The term "primary network
station" means a network station that broadcasts or rebroadcasts
the basic programming service of a particular national network.
(4) Primary transmission. - The term "primary transmission" has
the meaning given that term in section 111(f) of this title.
(5) Private home viewing. - The term "private home viewing"
means the viewing, for private use in a household by means of
satellite reception equipment which is operated by an individual
in that household and which serves only such household, of a
secondary transmission delivered by a satellite carrier of a
primary transmission of a television station licensed by the
Federal Communications Commission.
(6) Satellite carrier. - The term "satellite carrier" means an
entity that uses the facilities of a satellite or satellite
service licensed by the Federal Communications Commission and
operates in the Fixed-Satellite Service under part 25 of title 47
of the Code of Federal Regulations or the Direct Broadcast
Satellite Service under part 100 of title 47 of the Code of
Federal Regulations, to establish and operate a channel of
communications for point-to-multipoint distribution of television
station signals, and that owns or leases a capacity or service on
a satellite in order to provide such point-to-multipoint
distribution, except to the extent that such entity provides such
distribution pursuant to tariff under the Communications Act of
1934, other than for private home viewing pursuant to this
section.
(7) Secondary transmission. - The term "secondary transmission"
has the meaning given that term in section 111(f) of this title.
(8) Subscriber. - The term "subscriber" means an individual or
entity that receives a secondary transmission service by means of
a secondary transmission from a satellite carrier and pays a fee
for the service, directly or indirectly, to the satellite carrier
or to a distributor in accordance with the provisions of this
section.
(9) Superstation. - The term "superstation" means a television
station, other than a network station, licensed by the Federal
Communications Commission, that is secondarily transmitted by a
satellite carrier.
(10) Unserved household. - The term "unserved household", with
respect to a particular television network, means a household
that -
(A) cannot receive, through the use of a conventional,
stationary, outdoor rooftop receiving antenna, an over-the-air
signal of a primary network station affiliated with that
network of Grade B intensity as defined by the Federal
Communications Commission under section 73.683(a) of title 47
of the Code of Federal Regulations, as in effect on January 1,
1999;
(B) is subject to a waiver that meets the standards of
subsection (a)(14) whether or not the waiver was granted before
the date of the enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004;
(C) is a subscriber to whom subsection (e) applies;
(D) is a subscriber to whom subsection (a)(12) applies; or
(E) is a subscriber to whom the exemption under subsection
(a)(2)(B)(iii) applies.
(11) Local market. - The term "local market" has the meaning
given such term under section 122(j), except that with respect to
a low power television station, the term "local market" means the
designated market area in which the station is located.
(12) Low power television station. - The term "low power
television station" means a low power television (!5) as defined
under section 74.701(f) of title 47, Code of Federal Regulations,
as in effect on June 1, 2004. For purposes of this paragraph, the
term "low power television station" includes a low power
television station that has been accorded primary status as a
Class A television licensee under section 73.6001(a) of title 47,
Code of Federal Regulations.
(13) Commercial establishment. - The term "commercial
establishment" -
(A) means an establishment used for commercial purposes, such
as a bar, restaurant, private office, fitness club, oil rig,
retail store, bank or other financial institution, supermarket,
automobile or boat dealership, or any other establishment with
a common business area; and
(B) does not include a multi-unit permanent or temporary
dwelling where private home viewing occurs, such as a hotel,
dormitory, hospital, apartment, condominium, or prison.
(e) Moratorium on Copyright Liability. - Until December 31, 2009,
a subscriber who does not receive a signal of Grade A intensity (as
defined in the regulations of the Federal Communications Commission
under section 73.683(a) of title 47 of the Code of Federal
Regulations, as in effect on January 1, 1999, or predicted by the
Federal Communications Commission using the Individual Location
Longley-Rice methodology described by the Federal Communications
Commission in Docket No. 98-201) of a local network television
broadcast station shall remain eligible to receive signals of
network stations affiliated with the same network, if that
subscriber had satellite service of such network signal terminated
after July 11, 1998, and before October 31, 1999, as required by
this section, or received such service on October 31, 1999.
(f) Expedited Consideration by Justice Department of Voluntary
Agreements to Provide Satellite Secondary Transmissions to Local
Markets. -
(1) In general. - In a case in which no satellite carrier makes
available, to subscribers located in a local market, as defined
in section 122(j)(2), the secondary transmission into that market
of a primary transmission of one or more television broadcast
stations licensed by the Federal Communications Commission, and
two or more satellite carriers request a business review letter
in accordance with section 50.6 of title 28, Code of Federal
Regulations (as in effect on July 7, 2004), in order to assess
the legality under the antitrust laws of proposed business
conduct to make or carry out an agreement to provide such
secondary transmission into such local market, the appropriate
official of the Department of Justice shall respond to the
request no later than 90 days after the date on which the request
is received.
(2) Definition. - For purposes of this subsection, the term
"antitrust laws" -
(A) has the meaning given that term in subsection (a) of the
first section of the Clayton Act (15 U.S.C. 12(a)), except that
such term includes section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) to the extent such section 5 applies to
unfair methods of competition; and
(B) includes any State law similar to the laws referred to in
paragraph (1).