80 FR 59706 - Implementation of Section 103 of the STELA Reauthorization Act of 2014, Totality of the Circumstances Test
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 80, Issue 191 (October 2, 2015)
Federal Register Volume 80, Issue 191 (October 2, 2015)
| Page Range | 59706-59719 | |
| FR Document | 2015-24843 |
[Federal Register Volume 80, Number 191 (Friday, October 2, 2015)] [Proposed Rules] [Pages 59706-59719] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-24843] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 15-216; FCC 15-109] Implementation of Section 103 of the STELA Reauthorization Act of 2014, Totality of the Circumstances Test AGENCY: Federal Communications Commission. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: In this document, the Commission seeks comment on potential updates to the ``totality of the circumstances test'' for evaluating whether broadcast stations and multichannel video programming distributors (``MVPDs'') are negotiating for retransmission consent in good faith. The document seeks comment generally on the totality of the circumstances test, including whether and how the Commission should update that test. The document also seeks comment on whether there are specific practices that the Commission should identify as evidencing bad faith under the totality of the circumstances test. DATES: Comments are due on or before December 1, 2015; reply comments are due on or before December 31, 2015. ADDRESSES: You may submit comments, identified by MB Docket No. 15-216, by any of the following methods:Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments. Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: (202) 418- 0530 or TTY: (202) 418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Diana Sokolow or Raelynn Remy of the Policy Division, Media Bureau at (202) 418-2120 or [email protected]; [email protected]. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 15-109, adopted and released on September 2, 2015. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document contains no proposed information collection requirements. Synopsis I. Introduction 1. By this Notice of Proposed Rulemaking (NPRM), as directed by Section 103(c) of the STELA Reauthorization Act of 2014 (``STELAR''),\1\ we review the totality of the circumstances test for evaluating whether broadcast stations and multichannel video programming distributors (``MVPDs'') are negotiating for retransmission consent in good faith. The Communications Act of 1934, as amended (the ``Act''), prohibits cable systems and other MVPDs from retransmitting a broadcast station's signal without the station's express consent.\2\ This consent is known as ``retransmission consent.'' The Act and the Commission's implementing rules require broadcasters and MVPDs to negotiate for retransmission consent in good faith.\3\ The Commission has adopted a two-part framework for evaluating good faith in this context. First, the Commission has established a list of objective good faith negotiation standards, the violation of which is considered a per se breach of the good faith negotiation obligation.\4\ Second, even if the specific per se standards are met, the Commission may consider whether, based on the totality of the circumstances, a party has failed to negotiate retransmission consent in good faith.\5\ In accordance with Section 103(c) of STELAR, which contemplates that the Commission will conduct a ``robust examination'' of practices used by parties in retransmission consent negotiations,\6\ we adopt this NPRM and seek comment on potential updates to the totality of the circumstances test. --------------------------------------------------------------------------- \1\ Congress directed the Commission to ``commence a rulemaking to review its totality of the circumstances test for good faith negotiations'' by September 4, 2015. See Public Law 113-200, 103(c), 128 Stat. 2059 (2014). \2\ 47 U.S.C. 325(b)(1)(A). \3\ Id. 325(b)(3)(C)(ii), (iii); 47 CFR 76.65. \4\ See 47 CFR 76.65(b)(1). \5\ See id. 76.65(b)(2). \6\ See Report from the Senate Committee on Commerce, Science, and Transportation accompanying S. 2799, 113th Cong., S. Rep. No. 113-322 at 13 (2014) (``Senate Commerce Committee Report''). --------------------------------------------------------------------------- II. Background 2. Congress created the retransmission consent regime in 1992 ``to establish a marketplace for the disposition of the rights to retransmit broadcast signals,'' but not ``to dictate the outcome of the ensuing marketplace negotiations.'' \7\ Later, Congress adopted good faith [[Page 59707]] negotiation requirements in Section 325 of the Act, prohibiting broadcast television stations and MVPDs from ``failing to negotiate [retransmission consent] in good faith.'' \8\ Section 325 also provides that entering ``into retransmission consent agreements containing different terms and conditions, including price terms,'' is not a violation of the duty to negotiate in good faith ``if such different terms and conditions are based on competitive marketplace considerations.'' \9\ The Commission has implemented the good faith negotiation statutory provisions through a two-part framework for determining whether retransmission consent negotiations are conducted in good faith.\10\ First, the Commission initially established a list of seven (subsequently nine) good faith negotiation standards, the violation of which is considered a per se breach of the good faith negotiation obligation.\11\ Second, even if the specific per se standards are met, a complainant may attempt to demonstrate that, based on the totality of the circumstances, a party has failed to negotiate retransmission consent in good faith.\12\ In its Good Faith Order, the Commission described the totality of the circumstances test as follows: --------------------------------------------------------------------------- \7\ S. Rep. No. 92, 102nd Cong., 1st Sess. (1991), reprinted in 1992 U.S.C.C.A.N. 1133, 1169. \8\ 47 U.S.C. 325(b)(3)(C). \9\ Id. In 1999, Congress enacted the Satellite Home Viewer Improvement Act (``SHVIA''), which required television stations to negotiate retransmission consent with MVPDs in good faith and included the ``competitive marketplace considerations'' provision. Public Law 106-113, 113 Stat. 1501 (1999). Although SHVIA imposed the good faith negotiation obligation only on broadcasters, in 2004 Congress made the good faith negotiation obligation reciprocal between broadcasters and MVPDs. Public Law 108-447, 118 Stat. 2809 (2004) (referred to as the Satellite Home Viewer Extension and Reauthorization Act, or ``SHVERA''). \10\ See Implementation of the Satellite Home Viewer Improvement Act of 1999, Retransmission Consent Issues: Good Faith Negotiation and Exclusivity, First Report and Order, 65 FR 15559 (2000) (``Good Faith Order''). \11\ 47 CFR 76.65(b)(1). \12\ See 47 CFR 76.65(b)(2). --------------------------------------------------------------------------- The second part of the test is a totality of the circumstances standard. Under this standard, an MVPD may present facts to the Commission which, even though they do not allege a violation of the objective standards, given the totality of the circumstances reflect an absence of a sincere desire to reach an agreement that is acceptable to both parties and thus constitute a failure to negotiate in good faith. We do not intend the totality of the circumstances test to serve as a `back door' inquiry into the substantive terms negotiated between the parties. While the Commission will not ordinarily address the substance of proposed terms and conditions or the terms of actual retransmission consent agreements, we will entertain complaints under the totality of the circumstances test alleging that specific retransmission consent proposals are sufficiently outrageous, or evidence that differences among MVPD agreements are not based on competitive marketplace considerations, as to breach a broadcaster's good faith negotiation obligation. However, complaints which merely reflect commonplace disagreements encountered by negotiating parties in the everyday business world will be promptly dismissed by the Commission.\13\ --------------------------------------------------------------------------- \13\ Good Faith Order, 65 FR at 15564, para. 32 (footnote omitted). 3. Since Congress's enactment of Section 325, we have seen significant changes in the retransmission consent marketplace that have altered the negotiation dynamics between broadcasters and MVPDs. For example, whereas broadcasters in the past typically negotiated with MVPDs for in-kind compensation, broadcasters have increasingly sought and received monetary compensation in exchange for retransmission consent.\14\ Moreover, in contrast to the video programming landscape that existed in 1992, when consumers typically had a single cable operator as their only video service option, consumers seeking to purchase video programming service today generally are able to choose among multiple MVPDs.\15\ The increase in competition among MVPDs has improved broadcasters' leverage in retransmission consent negotiations with MVPDs.\16\ MVPDs that face competition have stronger incentives to negotiate retransmission consent agreements with broadcast stations because much broadcast network television programming continues to be ``must-have'' programming for MVPDs and an MVPD that is unable to reach a retransmission consent agreement with a broadcast station may permanently lose subscribers to rival MVPDs--including subscribers to its associated voice and broadband services.\17\ In addition, broadcast licensees that are affiliated with other programming networks may have additional leverage because they can integrate their retransmission consent negotiations with carriage of the other networks,\18\ and any negotiation impasses could result in the MVPD's loss of those other networks as well as the broadcast stations. Further, consumers today are increasingly accessing video programming from online video distributors that deliver content via the Internet.\19\ As a consequence of these marketplace changes, retransmission consent fees have steadily grown and are projected to increase further, thereby applying upward pressure on consumer prices for MVPD video programming services. Moreover, ``negotiations [for] retransmission consent have become significantly more complex in recent years, and . . . in some cases one or both parties to a negotiation may be engaging in tactics that push those negotiations toward a breakdown and result in consumer harm from programming blackouts.'' \20\ --------------------------------------------------------------------------- \14\ See Amendment of the Commission's Rules Related to Retransmission Consent, Report and Order and Further Notice of Proposed Rulemaking, 79 FR 28615, 28616, para. 2 (2014) (``2014 Joint Negotiation Order''); Time Warner Cable Inc. et al. Petition for Rulemaking to Amend the Commission's Rules Governing Retransmission Consent, MB Docket No. 10-71, at 15 (filed Mar. 9, 2010). Prior to the exchange of monetary compensation, cable operators typically compensated broadcasters for consent to retransmit the broadcasters' signals through in-kind compensation, such as carriage of additional channels of the broadcaster's programming on the cable system or advertising time. See Amendment of the Commission's Rules Related to Retransmission Consent, Notice of Proposed Rulemaking, 76 FR 17071, 17072, para. 2 (2011) (``2011 NPRM''). \15\ See Amendment to the Commission's Rules Concerning Effective Competition; Implementation of Section 111 of the STELA Reauthorization Act, Report and Order, 80 FR 38001, paras. 3, 4 (2015). \16\ See 2011 NPRM, 76 FR at 17072, para. 2 & 17077, para. 14. \17\ See, e.g., Joe Flint, Time Warner Cable Loses 306,000 Subscribers, Cites Fight With CBS, LA Times, Oct. 31, 2013; Duane Dudeck, Time Warner Cable Lost Subscribers During WTMJ Blackout, Journal Sentinel, Dec. 3, 2013; Yinka Adegoke, Cablevision Blames Fox Blackout for Subscriber Losses, Reuters, Feb. 16, 2011. \18\ See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, Sixteenth Report (``Sixteenth Competition Report''). \19\ See Sixteenth Competition Report. \20\ See Senate Commerce Committee Report at 13. --------------------------------------------------------------------------- 4. In March 2014, the Commission, in a separate proceeding regarding retransmission consent, adopted an order strengthening its retransmission consent rules to provide that joint negotiation by stations that are ranked among the top four stations in a market as measured by audience share and are not commonly owned constitutes a per se violation of the good faith negotiation requirement.\21\ The Commission intended its action to facilitate the fair and effective completion of retransmission consent negotiations.\22\ Through Section 103 of STELAR, which was enacted on December 4, 2014, Congress subsequently revised Section 325 of the Act to ``prohibit a television broadcast station from coordinating negotiations or negotiating on a joint basis with another television broadcast station in the same local market . . . to grant retransmission consent under this section to a[n MVPD], unless such stations are directly or indirectly under common de jure control permitted [[Page 59708]] under the regulations of the Commission.'' \23\ The Commission adopted an order implementing this provision, replacing the previous rule regarding joint negotiation with language consistent with the new statute.\24\ --------------------------------------------------------------------------- \21\ See 2014 Joint Negotiation Order. \22\ Id., 79 FR at 28615, para. 1. \23\ Pub. L. 113-200, 103(a); 47 U.S.C. 325(b)(3)(C). \24\ The Commission found that the statutory prohibition on joint negotiation is broader than, and thus supersedes, the Commission's previous prohibition. Implementation of Sections 101, 103 and 105 of the STELA Reauthorization Act of 2014, Order, 80 FR 11,328, 11,329, paras. 4, 5 (2015) (``STELAR Sections 101, 103 and 105 Order''). --------------------------------------------------------------------------- 5. In addition to the joint negotiation provision, Section 103 requires the Commission to take certain further actions related to retransmission consent. First, Section 103 revised Section 325 of the Act to ``prohibit a television broadcast station from limiting the ability of a[n MVPD] to carry into the local market . . . of such station a television signal that has been deemed significantly viewed . . . unless such stations are directly or indirectly under common de jure control permitted by the Commission.'' \25\ The Commission implemented this provision by adding a new per se good faith negotiation standard to its rules.\26\ Second, Section 103 directed the Commission to ``commence a rulemaking to review its totality of the circumstances test for good faith negotiations under clauses (ii) and (iii) of section 325(b)(3)(C) of the Communications Act of 1934 (47 U.S.C. 325(b)(3)(C)).'' \27\ This NPRM commences the rulemaking to review and, if necessary, update the totality of the circumstances test.\28\ In the single instance in which the Media Bureau has found a violation of the good faith negotiation requirement, it determined that the cable operator breached its duty to negotiate in good faith based on the totality of the circumstances test.\29\ The cable operator claimed during negotiations that its retransmission consent agreement with one station permitted it to carry the other broadcast stations at issue, but the Media Bureau found that its failure to provide evidence of a valid retransmission consent agreement permitting such carriage was a breach of its duty to negotiate in good faith.\30\ --------------------------------------------------------------------------- \25\ Public Law 113-200, 103(b); 47 U.S.C. 325(b)(3)(C). \26\ STELAR Sections 101, 103, and 105 Order, 80 FR at 11,329, para. 5. \27\ Public Law 113-200, 103(c). \28\ We note that we previously initiated a rulemaking proceeding on retransmission consent issues in 2011 and certain issues in that proceeding remain pending. See 2011 NPRM. To the extent certain pleadings filed in the 2011 rulemaking are relevant to this proceeding, we refer to them herein. \29\ See Letter to Jorge L. Bauermeister, 22 FCC Rcd 4933, 4934 (MB 2007). \30\ Bauermeister, 22 FCC Rcd 4933. --------------------------------------------------------------------------- III. Discussion 6. In accordance with Congress's directive in Section 103(c) of STELAR, we seek comment below on any potential updates we should make to the totality of the circumstances test to ensure that the conduct of broadcasters and MVPDs during negotiations for retransmission consent and after such negotiations have broken down meet the good faith standard in Section 325 of the Act.\31\ In Section III.A, we seek comment generally on the totality of the circumstances test, including whether and how we should update that test. In Section III.B, we seek comment on whether there are specific practices that we should identify as evidencing bad faith under the totality of the circumstances test.\32\ Consistent with Congress's intent in Section 103(c) of STELAR, our goal in this proceeding is to provide further guidance to negotiating parties about the totality of the circumstances test, if necessary, to benefit consumers of video programming service by facilitating successful negotiations and avoiding disruptions in service to consumers.\33\ --------------------------------------------------------------------------- \31\ See Senate Commerce Committee Report at 13. \32\ Pursuant to the totality of the circumstances test, the Commission may consider all of the facts that are brought before it regarding a retransmission consent negotiation to determine whether there is a breach of the duty to negotiate in good faith. See, e.g., Good Faith Order, 65 FR 15564, para. 32. Although in this NPRM we seek comment on whether there are certain practices and/or conduct that should be considered evidence of bad faith under the totality of the circumstances test, until this rulemaking is complete we will continue to apply the presumptions established in the 2000 Good Faith Order. See Good Faith Order, 65 FR at 15567, paras. 56 through 58. Thus, the fact that we are seeking comment on potential updates to the totality of the circumstances test does not preclude us from concluding, in a particular case, that certain practices or conduct is a breach of the good faith duty today. \33\ See Senate Commerce Committee Report at 13. --------------------------------------------------------------------------- A. Totality of the Circumstances Test in General 7. First, we ask whether there is a need to update the totality of the circumstances test. How is the retransmission consent market currently functioning? Is there a market failure, and if so, what is its source? Are there issues with the current totality of the circumstances test that warrant change? We seek comment on this. We invite comment on any elaboration of the totality of the circumstances test we can provide that will help to guide negotiations to a successful conclusion. Section 76.65(b)(2) of our rules permits a party to a retransmission consent negotiation to ``demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that [the other party] breached its duty to negotiate in good faith.'' \34\ How can the Commission most effectively address complaints that do not allege per se violations but that involve behavior that is asserted to be inconsistent with good faith? Does the ``current process for filing bad faith allegations'' based on the totality of the circumstances test, including the legal standards and evidentiary burdens, help to promote bona fide negotiations and protect consumers? \35\ If not, how can we change our good faith rules in a way that will ensure that both parties to a negotiation offer bona fide terms and conditions for carriage? If the Commission provides additional guidance on conduct that will be considered evidence of bad faith under the totality of the circumstances test, would this help facilitate productive retransmission consent negotiations? Alternatively, should the totality of the circumstances test be eliminated or replaced? Commenters that advocate replacement of the totality of the circumstances test should specify the test that we should consider in its place. --------------------------------------------------------------------------- \34\ 47 CFR 76.65(b)(2). \35\ See Senate Commerce Committee Report at 13. --------------------------------------------------------------------------- 8. How effective has our totality of the circumstances test been? Although it was originally designed to give the Commission flexibility to take account of any unique facts underlying a particular retransmission consent dispute, should we modify the test to make it more specific? Is it possible to maintain the flexibility of the totality of the circumstances test, while at the same time giving additional guidance to the parties to retransmission consent negotiations about certain conduct that we consider evidence of bad faith negotiation? When we last sought comment on this issue in 2011,\36\ some commenters stated that providing more specificity for the totality of the circumstances test would promote a more competitive marketplace,\37\ and others stated that more specificity is unnecessary.\38\ Are there certain practices that the Commission should consider to be evidence of bad faith in evaluating the totality of the circumstances, or is that test best left as [[Page 59709]] a general provision to capture those actions and behaviors that we do not now foresee but that may in particular future cases impede retransmission consent negotiations? To the extent that we are able to provide more guidance to MVPDs and broadcasters, what specific negotiation practices do parties engage in that should be considered evidence of bad faith under the totality of the circumstances test? \39\ In adopting the Good Faith Order, the Commission concluded that Congress intended it to ``follow established precedent, particularly in the field of labor law, in implementing the good faith retransmission consent negotiation requirement,'' and the Commission discussed labor law precedents in that order.\40\ We invite comment on whether more recent labor law precedents, or precedents from other areas of law, may be useful in revising the totality of the circumstances test.\41\ --------------------------------------------------------------------------- \36\ 2011 NPRM, 76 FR at 17079, paras. 31 through 33. \37\ See, e.g., Comments of CenturyLink on the 2011 NPRM at 7 (filed May 27, 2011) (``CenturyLink NPRM Comments''). \38\ See, e.g., Comments of Barrington Broadcasting Group, LLC, et al. on the 2011 NPRM at 20 (filed May 27, 2011) (``Joint Broadcasters NPRM Comments''). \39\ See infra Section III.B (seeking comment on specific practices that potentially evidence a failure to negotiate in good faith under the totality of the circumstances test). \40\ Good Faith Order, 65 FR at 15560, para. 6. \41\ See Ex Parte Letter of CenturyLink, Consolidated Communications, Inc., FairPoint Communications, Inc., ITTA, Mediacom Communications Corp., NTCA, Public Knowledge and TDS Telecommunications Corp. in MB Docket No. 10-71 at 4, 5 (filed Aug. 18, 2015) (``Joint Parties Ex Parte Letter''). --------------------------------------------------------------------------- 9. Section 325 of the Act provides, among other things, that ``it shall not be a failure to negotiate in good faith if the television broadcast station enters into retransmission consent agreements containing different terms and conditions, including price terms, with different [MVPDs] if such different terms and conditions are based on competitive marketplace considerations.'' \42\ In implementing this provision in 2000, the Commission provided the following examples of bargaining proposals that are presumptively consistent with competitive marketplace considerations: --------------------------------------------------------------------------- \42\ 47 U.S.C. 325(b)(3)(C). --------------------------------------------------------------------------- 1. Proposals for compensation above that agreed to with other MVPDs in the same market; 2. Proposals for compensation that are different from the compensation offered by other broadcasters in the same market; 3. Proposals for carriage conditioned on carriage of any other programming, such as a broadcaster's digital signals, an affiliated cable programming service, or another broadcast station either in the same or a different market; \43\ --------------------------------------------------------------------------- \43\ See infra Section III.B (asking whether a broadcaster's requirement that broadcast stations and cable networks be bundled as part of the same agreement should violate the good faith negotiation requirement). --------------------------------------------------------------------------- 4. Proposals for carriage conditioned on a broadcaster obtaining channel positioning or tier placement rights; 5. Proposals for compensation in the form of commitments to purchase advertising on the broadcast station or broadcast-affiliated media; and 6. Proposals that allow termination of retransmission consent agreement based on the occurrence of a specific event, such as implementation of SHVIA's satellite must carry requirements.\44\ --------------------------------------------------------------------------- \44\ Good Faith Order, 65 FR at 15567, para. 56. We seek comment on whether, in light of changes that have occurred in the video programming marketplace since 2000, these bargaining proposals should remain presumptively consistent with competitive marketplace considerations under the totality of the circumstances test.\45\ Should the Commission amend, delete from, or add to this list? \46\ At the time the Commission adopted the totality of the circumstances test, the good faith negotiation requirement applied only to broadcasters, but in 2004 Congress applied it to MVPDs as well. Should any practices or bargaining proposals be added to this list to account for application of the good faith requirement to the conduct of MVPDs? --------------------------------------------------------------------------- \45\ See ACA Ex Parte Letter in MB Docket No. 10-71 at 2 (filed July 31, 2015) (urging the Commission to reexamine its existing presumptions that certain types of conduct are consistent with competitive marketplace considerations) (``ACA July 31, 2015 Ex Parte Letter''). \46\ See, e.g., Comments of the American Public Power Association on the 2011 NPRM at 26 (filed May 27, 2011) (``APPA Group NPRM Comments''); Comments of Sinclair Broadcast Group, Inc. on the 2011 NPRM at 19 (filed May 27, 2011); Comments of the National Association of Broadcasters on the 2011 NPRM at 51 (filed May 27, 2011); Comments of Nexstar Broadcasting, Inc. on the 2011 NPRM at 18 (filed May 27, 2011). --------------------------------------------------------------------------- 10. The Commission also previously stated that ``[c]onsiderations that are designed to frustrate the functioning of a competitive market are not `competitive marketplace considerations.' '' \47\ Although the Commission found it ``more difficult to develop a . . . list of proposals that indicate an automatic absence of competitive marketplace considerations,'' \48\ it concluded that the following proposals are presumptively inconsistent with competitive marketplace considerations: --------------------------------------------------------------------------- \47\ Good Faith Order, 65 FR at 15567, para. 58. \48\ Id. at para. 57. --------------------------------------------------------------------------- 1. Proposals that specifically foreclose carriage of other programming services by the MVPD that do not substantially duplicate the proposing broadcaster's programming; 2. Proposals involving compensation or carriage terms that result from an exercise of market power by a broadcast station or that result from an exercise of market power by other participants in the market (e.g., other MVPDs) the effect of which is to hinder significantly or foreclose MVPD competition; 3. Proposals that result from agreements not to compete or to fix prices; and 4. Proposals for contract terms that would foreclose the filing of complaints with the Commission.\49\ --------------------------------------------------------------------------- \49\ Id. at para. 58. --------------------------------------------------------------------------- 11. The Commission explained that these examples are illustrative and are not intended to be exclusive of other bargaining proposals that may be inconsistent with competitive marketplace considerations.\50\ We ask commenters whether we should consider any revisions to the list of bargaining proposals that are presumptively inconsistent with competitive marketplace considerations under the totality of the circumstances test.\51\ Should any practices or bargaining proposals be added to this list to account for the 2004 extension of the good faith negotiation requirement to the conduct of MVPDs? Should this list be revised or expanded to account for any of the practices or proposals discussed in Section III.B. infra? Are there practices or proposals that standing alone would not violate the good faith negotiation requirement but that in combination with other factors could violate the totality of the circumstances test? Are there particular negotiating practices that tend to result in a breakdown in negotiations, and if so, how, if at all, should the totality of the circumstances test be changed to account for those practices? How can we best ensure that any revisions to the totality of the circumstances test will not hinder a party's ability to tailor its proposals to the competitive environment? \52\ Should any of the factors considered under the totality of the circumstances test be codified in our rules? In keeping with Congress's directive, we seek to provide the industry with further guidance that would provide more certainty as to what constitutes good faith in retransmission consent negotiations, and thereby help facilitate productive negotiations. --------------------------------------------------------------------------- \50\ Id. at 15567, nn.123, 125. \51\ See, e.g., Comments of Cox Enterprises, Inc. on the 2011 NPRM at 9 (filed May 27, 2011); Comments of DISH Network L.L.C. on the 2011 NPRM at 25, 26 (filed May 27, 2011) (``DISH Network NPRM Comments''). \52\ Reply Comments of CBS Corporation on the 2011 NPRM at 21 (filed June 27, 2011). --------------------------------------------------------------------------- [[Page 59710]] B. Specific Practices That Potentially Evidence a Failure To Negotiate in Good Faith Under the Totality of the Circumstances Test 12. We seek comment on whether there are specific practices that we should identify as evidencing bad faith negotiation under the totality of the circumstances test. Do broadcasters or MVPDs engage in particular conduct or demand types of contract terms that we should consider as evidence of bad faith under the totality of the circumstances test? Commenters that advocate the inclusion of additional conduct and/or practices under the totality of the circumstances test should explain the legal and policy bases for a Commission finding that such conduct and/or practices are evidence of bad faith or should be deemed presumptively inconsistent with competitive marketplace considerations. Interested parties have identified a number of practices that broadcasters or MVPDs have engaged in during retransmission consent negotiations (or after a breakdown in negotiations) that, they assert, evidence bad faith under the totality of the circumstances test. We discuss those practices below. 13. First, parties have urged the Commission to address the practice by broadcasters of preventing consumers' online access to the broadcaster's programming as an apparent tactic to gain leverage in a retransmission consent dispute.\53\ In certain recent retransmission consent impasses, broadcasters have prevented subscribers from accessing their video content over the Internet during retransmission consent negotiations.\54\ The legislative history regarding Section 103(c) of STELAR indicates that Congress was concerned about such practices and directed the Commission to examine in this proceeding ``the role digital rights and online video programming have begun to play in retransmission consent negotiations.'' \55\ Such online access restrictions prevent all of an MVPD's broadband subscribers, i.e., regardless of whether those subscribers are located in markets where the MVPD and broadcaster have reached an impasse in negotiations, from accessing the online video programming that the broadcaster otherwise makes generally available when the broadcaster and the MVPD are engaged in a retransmission consent dispute.\56\ In addition, this practice affects the MVPD's broadband subscribers even if those subscribers do not also subscribe to the MVPD's video service.\57\ We seek comment on whether such a practice during retransmission consent disputes should be considered evidence of bad faith under the totality of the circumstances test.\58\ We acknowledge that, even where a broadcaster has prevented access to its programming online, many consumers can obtain access to the signal for free over the air. How, if at all, is using this online practice as a tactic to gain negotiating leverage more egregious or harmful to consumers than other practices used to gain leverage in retransmission consent discussions? Should causing consumers harm to enhance negotiating leverage generally be a factor that we should consider as evidence of bad faith under the totality of the circumstances test? \59\ We note that, in an analogous context, some news organizations that distribute content via newspapers and the Internet limit access to their online content to paid subscribers. To the extent online access restrictions are reasonable in that context, what distinguishes such restrictions from those that are imposed in cases of preventing online access in this context, i.e., where a broadcaster distributes its programming content via an MVPD and online? Are there issues of statutory authority or constitutional issues that should be considered in this context? --------------------------------------------------------------------------- \53\ See American Television Alliance (``ATVA'') Ex Parte Letter in MB Docket No. 10-71 at 3 (filed July 17, 2015) (``ATVA Ex Parte Letter''). In 2014, Mediacom Communications Corporation (``Mediacom'') filed a Petition in which it requested, among other things, that the Commission prohibit the practice of preventing subscribers' online access. See Mediacom Communications Corporation Petition for Rulemaking, RM-11728, at iii, iv, 13, 17 (filed July 21, 2014) (``Mediacom Petition''). Commenters were divided on whether the Commission should address this practice. Some commenters asserted that we should prohibit this practice because it uses anti- consumer behavior as leverage in retransmission consent negotiations, which they argue is inconsistent with an obligation to negotiate in good faith. Others argued that preventing online access is an appropriate tool in retransmission consent negotiations and that a broadcaster may be unable to ascertain which of an MVPD's broadband customers also subscribes to the MVPD's video service. \54\ For example, during a retransmission consent dispute between CBS and Time Warner Cable (``TWC'') in 2013, CBS prevented TWC's broadband customers from accessing CBS programming online, even if the broadband customers did not subscribe to TWC for video programming. \55\ Senate Commerce Committee Report at 13. \56\ See Mediacom Reply Comments at 19 (filed Oct. 14, 2014). \57\ See NTCA Comments on Mediacom Petition at 6; Reply Comments of Cequel Communications, LLC d/b/a Suddenlink Communications in RM- 11728, at 4 (filed Oct. 14, 2014); TDS Comments on Mediacom Petition at 6. \58\ We understand that when a broadcaster prevents an MVPD's broadband subscribers from accessing the broadcaster's programming online, it may be unable to identify which broadband subscribers are also video subscribers. \59\ See ACA July 31, 2015 Ex Parte Letter at 2. See also Comments of National Consumers League on the 2011 NPRM at 1 (``NCL NPRM Comments''). --------------------------------------------------------------------------- 14. In addition to broadcasters preventing online access, parties have expressed concern about broadcasters' relinquishing to third parties their right to grant retransmission consent and similar practices. For example, should certain network involvement in retransmission consent negotiations be a factor suggesting bad faith under the totality of the circumstances test? We understand that some network affiliation agreements give the network the right to approve its affiliate's retransmission consent agreement with an MVPD, and some MVPDs and consumer groups have argued that this practice has hindered the progress of retransmission consent negotiations. What are the appropriate parameters of network involvement in retransmission consent negotiations? Would it be appropriate for a network to negotiate on behalf of its affiliates, and if so, to what extent? Should it be considered evidence of bad faith for a broadcaster to give any third party the right to approve its retransmission consent agreement? As noted, the statute now precludes joint negotiation by non-commonly owned stations in the same local market; \60\ should it be considered evidence of bad faith under the totality of the circumstances test if a broadcaster jointly negotiates with, or entrusts retransmission consent negotiations to, [[Page 59711]] any non-commonly owned entity regardless of the geographic market in which that entity operates? \61\ --------------------------------------------------------------------------- \60\ As noted above, Congress in Section 103 of STELAR revised Section 325 of the Act to ``prohibit a television broadcast station from coordinating negotiations or negotiating on a joint basis with another television broadcast station in the same local market . . . to grant retransmission consent . . . unless such stations are directly or indirectly under common de jure control permitted under the regulations of the Commission,'' Pub. L. 113-200, 103(a); 47 U.S.C. 325(b)(3)(C)(iv), and the Commission codified this language in its rules nearly verbatim. See 47 CFR 76.65(b)(1)(viii). We note that Congress's inclusion of the term ``de jure control'' in Section 103 of STELAR was intended to ensure that only those stations that come within the scope of this term as defined by the Commission (e.g., same market stations owned by an entity that holds over 50 percent of the stations' voting stock) would be permitted to negotiate jointly for retransmission consent. See, e.g., Application of Fox Television Stations, Inc., 10 FCC Rcd 8452, 8513 (1995) (de jure control typically is determined by whether a shareholder owns more than 50 percent of the voting shares of a corporation); Metromedia, Inc., 98 FCC 2d 300, 305, 306 (1984) (de jure control is ownership of over 50 percent of a corporation's voting stock); Corporate Ownership Reporting and Disclosure by Broadcast Licensees, Report and Order, 49 FR 19482, 19490, n.47, 19491 (1984) (a voting ownership interest exceeding 50% reflects the line of de jure control). Thus, stations operating under joint sales agreements (``JSAs''), local marketing agreements (``LMAs''), or similar ``sidecar'' arrangements, even if attributable, cannot jointly negotiate retransmission consent with a station in the same market owned by the broker because they are not ``under common de jure control.'' \61\ See ATVA Ex Parte Letter at 4, 5. --------------------------------------------------------------------------- 15. We also invite comment on how a broadcaster's insistence on bundling broadcast signals with other broadcast stations or cable networks into the retransmission consent agreement should be treated under the totality of the circumstances test. We note that early retransmission consent agreements typically provided for noncash payment to broadcasters in the form of carriage of additional programming. If a broadcaster requires MVPDs to purchase less popular programming in order to purchase more desired programming, the MVPDs may be forced to pay for programming that they do not want and may in turn pass those costs onto consumers. And while broadcasters and other programmers sometimes offer MVPDs both a bundled price and standalone prices for particular programming, some MVPDs assert that the prices for the standalone options may be so high that the only economically sound option is to accept the bundled offer. Although the Commission, in the Good Faith Order, concluded that the bundling of broadcast and non-broadcast programming in retransmission consent agreements is a practice that is presumptively consistent with good faith bargaining,\62\ it also stated that ``[c]onduct that is violative of national policies favoring competition--that is, for example, intended to gain or sustain a monopoly, is an agreement not to compete or fix prices, or involves the exercise of market power in one market in order to foreclose competitors from participation in another market--is not within the competitive marketplace considerations standard . . . .'' \63\ The Commission has specifically ``clarif[ied] that tying is not consistent with competitive marketplace considerations if it would violate the antitrust laws.''\64\ Have circumstances changed such that bundling of broadcast and non-broadcast programming should not be presumptively consistent with good faith bargaining under any circumstances? \65\ What type of showing must an MVPD complainant make to demonstrate that bundling in a particular case violates antitrust laws? We also seek comment on whether and to what extent a broadcaster's insistence on bundling a local broadcast signal with specific types of programming such as regional sports networks (or other ``must have'' programming), multicast programming, duplicative stations, and/or significantly viewed stations should factor into our assessment of whether the broadcaster has negotiated in good faith under the totality of the circumstances test.\66\ In addition, we seek comment on whether a broadcaster's insistence on bundling a local broadcast signal with one or more prospective programming channels \67\ should be considered evidence of bad faith under the totality of the circumstances test. With regard to the bundling of prospective channels, how can an MVPD assess the reasonableness of a broadcaster's proposed carriage fees for a bundled offering that contains a programming channel that has not yet been launched or whose carriage is conditioned on future events? Is it consistent with good faith bargaining for a broadcaster to insist on MVPD carriage of untested programming channels as a condition of carrying a local broadcast signal? If we decide that a broadcast station's attempt to tie carriage of its affiliated programming to carriage of a broadcast station is a factor suggesting a failure to negotiate in good faith, how would we analyze the legitimacy of a standalone offer? The American Television Alliance, for example, suggests that the stand-alone offer be ``a real economic alternative to a bundle of broadcast and non-broadcast programming.'' \68\ --------------------------------------------------------------------------- \62\ See Good Faith Order, 65 FR at 15567, para. 56. \63\ Id. at para. 58. \64\ See also Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Reciprocal Bargaining Obligation, Report and Order, 70 FR 40216, 40219, para. 15 (2005) (``Reciprocal Bargaining Order'') (``[W]e clarify that tying is not consistent with competitive marketplace considerations if it would violate the antitrust laws.''). \65\ See Reply Comments of Public Knowledge and New America Foundation on the 2011 NPRM at 6, 7. \66\ See ATVA Ex Parte Letter at 3; ACA Ex Parte Letter in MB Docket No. 10-71 at 2, 3 (filed July 24, 2015) (``ACA July 24, 2015 Ex Parte Letter''). \67\ By prospective programming channel, we refer to a programming channel that has not yet been launched or a station or network that may be acquired in the future. See ACA July 24, 2015 Ex Parte Letter at 2. \68\ See ATVA Ex Parte Letter at 3. --------------------------------------------------------------------------- 16. Parties have identified a number of other negotiating practices that, they assert, are inconsistent with the statutory duty to bargain in good faith. We seek comment on whether any of these practices should factor into our assessment of whether a negotiating entity has breached its duty to negotiate in good faith under the totality of the circumstances test. In particular, parties assert that the following practices raise concerns about whether a party has met its obligation to negotiate retransmission consent in good faith: (i) A broadcaster's insistence on contract expiration dates, or threats to black out a station signal, in the time period just prior to the airing of a ``marquee'' sports or entertainment event; \69\ (ii) a broadcaster's preventing an MVPD from temporarily importing an out-of-market signal in cases where the broadcaster has blacked out its local signal after negotiations failed to produce an agreement by the contract expiration date; \70\ (iii) a broadcaster's demand that an MVPD place limits on its subscribers' use of lawful devices and functionalities; (iv) a broadcaster's demand that MVPDs pay per-subscriber fees not only for viewers of the broadcaster's retransmitted signal, but also for subscribers that receive the broadcaster's signal over-the-air or who receive an MVPD's Internet or voice service, but not its video service; \71\ (v) an MVPD's or broadcaster's refusal to provide ``information substantiating reasons for positions taken when requested to in the course of bargaining''; \72\ (vi) an MVPD's or broadcaster's engaging in ``surface bargaining,'' i.e., conduct designed to delay negotiations, but that does not necessarily constitute an outright refusal to bargain; \73\ (vii) an MVPD-affiliated broadcaster's ``discriminat[ion] in the prices, terms and conditions [for] retransmission consent among or between MVPDs based on vertical competitive effects''; \74\ (viii) an MVPD's or broadcaster's demanding or negotiating retransmission consent based on ``most favored nation'' provisions; \75\ (ix) a broadcaster's demand for tier placement commitments, which compel MVPDs to place their affiliated networks in the [[Page 59712]] most popular programming packages; \76\ (x) a broadcaster's imposition of minimum penetration requirements, which require MVPDs to guarantee that broadcaster-affiliated cable networks will reach a specified percentage of customers; \77\ (xi) a broadcaster's failure to make an initial contract proposal at least 90 days prior to the existing contract's expiration; \78\ (xii) a broadcaster's preventing an MVPD from disclosing rates, terms and conditions of a contract proposal or agreement to the Commission, a court of competent jurisdiction, and/or other state or federal governmental entities in connection with a formal retransmission consent complaint or other legal or administrative proceeding; \79\ (xiii) a broadcaster's discrimination in price among MVPDs in a market absent a showing of direct and legitimate economic benefits associated with such price differences; \80\ (xiv) an MVPD's or broadcaster's failure to negotiate terms and conditions for retransmission consent based on actual local market conditions; \81\ and (xv) an MVPD's or broadcaster's attempt to manufacture a retransmission consent dispute in the hope of encouraging government intervention.\82\ We also seek comment on any other practices that should be considered evidence of bad faith under the totality of the circumstances test. --------------------------------------------------------------------------- \69\ See ATVA Ex Parte Letter at 3, 4; ACA July 24, 2015 Ex Parte Letter at 2. See also Comments of Consumer Action on the 2011 NPRM at 1 (``Consumer Action Comments''). \70\ See ATVA Ex Parte Letter at 4. Although Section 103 of STELAR amended Section 325 of the Act to ``prohibit a television broadcast station from limiting the ability of [an MVPD] to carry into the local market . . . of such station a television signal that has been deemed significantly viewed . . . or any other television broadcast signal such distributor is authorized to carry . . . .,'' this provision would not permit an MVPD to import a non- significantly viewed signal in cases where the MVPD were not ``authorized to carry'' the signal, with certain exceptions. 47 U.S.C. 325(b)(3)(C) (as amended by Section 103 of STELAR). ATVA proposes that we deem it a failure to negotiate in good faith for a broadcaster not to authorize such carriage either through waiver of the right to prevent importation of distant signals (in the case of satellite carriers) or through exercise of network non-duplication or syndicated exclusivity rights (in the case of cable and telecommunications MVPDs). \71\ ATVA Ex Parte Letter at 5. \72\ See ACA July 24, 2015 Ex Parte Letter at 1. See also Joint Parties Ex Parte Letter at 4. \73\ Id. at 2. \74\ Id. at 3. \75\ Id. \76\ See Cablevision July 31, 2015 Ex Parte Letter at 3, 5; ITTA Ex Parte Letter in MB Docket No. 10-71 at 1, 2 (filed Aug. 7, 2015) (``ITTA August 7, 2015 Ex Parte Letter''); Mediacom Petition at 10 through 12 (identifying certain other tactics used by programmers to force bundling of multiple channels on widely penetrated tiers). \77\ See Cablevision July 31, 2015 Ex Parte Letter at 3 through 5 (asserting that, in order to broaden the reach of their programming, broadcasters have used tying practices in conjunction with tier placement and minimum penetration requirements, and that these practices collectively harm consumers). Cablevision further asserts that the good faith standard mandates that broadcasters omit basic tier customers from the denominator used to assess whether minimum penetration requirements have been met in contracts for bundled programming. Id. at 5. \78\ See ITTA Ex Parte Letter in MB Docket No. 10-71 at 2 (filed Aug. 13, 2015) (``ITTA August 13, 2015 Ex Parte Letter''). \79\ Id. \80\ Id. \81\ See Comments of Block Communications, Inc. in MB Docket No. 10-71 at 8, 9 (filed Aug. 14, 2015) (``Block Comments''). \82\ See NAB Ex Parte Letter in MB Docket No. 10-71 at 1 (filed July 13, 2015); NAB Ex Parte Letter at 2 (filed July 24, 2015); NAB Ex Parte Letter at 1 (filed August 25, 2015). --------------------------------------------------------------------------- 17. How, if at all, should any of the above practices figure into our assessment of whether the broadcaster or MVPD has breached its duty to negotiate retransmission consent in good faith under the totality of the circumstances test? With regard to the second practice noted above (concerning importation of distant broadcast signals), we note that there could be situations where an MVPD is denied the right to carry a significantly viewed signal by a distant broadcast station that is precluded from granting out-of-market carriage of its signal due to restrictions in a network affiliation agreement.\83\ Does Section 325(b)(3)(C)(v) of the Act, as added by Section 103(b) of STELAR (which, as noted above, generally prohibits a broadcast station from limiting the ability of an MVPD ``to carry into the local market . . . of such station . . . a television signal that has been deemed significantly viewed. . . .'') require the significantly viewed station to consent to carriage of its signal by the MVPD in retransmission consent negotiations or does it only govern retransmission consent negotiations between local stations and the MVPD? \84\ If this section does not apply, we note that the Commission, in implementing the reciprocal bargaining provisions of Section 325, found that ``it is incumbent on broadcasters subject to . . . contractual limitations [in a network affiliation agreement] that have been engaged by an out-of- market MVPD to negotiate retransmission consent of its signal to at least inquire with its network whether the network would waive the limitation with regard to the MVPD in question.'' \85\ Given this statement, in cases where a significantly viewed station refuses out- of-market carriage of its signal without first asking the network whether it would consider waiving its right to enforce contractual restrictions on such carriage, should the broadcaster's refusal continue to be probative evidence of whether it is negotiating in bad faith under the totality of the circumstances test? \86\ --------------------------------------------------------------------------- \83\ See Comments of ACA on the 2011 NPRM at 55 through 58 (filed May 27, 2011); ACA Ex Parte Letter in MB Docket No. 10-71 at 4 (filed Aug. 28, 2015). \84\ We note that Congress intended Section 103(b) of STELAR ``to be interpreted broadly by the FCC to ensure that a television broadcast station is not able to limit MVPD carriage of signals that it is permitted to carry pursuant to the Communications Act. . . .'' See Senate Commerce Committee Report at 13. \85\ See Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Reciprocal Bargaining Obligation, Report and Order, 70 FR 40216, 40223, para. 35 (2005) (``Reciprocal Bargaining Order''). \86\ Although Section 76.65(b)(vi) of our rules provides that the ``[e]xecution by a Negotiating Entity of an agreement with any party, a term or condition of which, requires that such Negotiating Entity not enter into a retransmission consent agreement with any other television broadcast station or [MVPD]'' violates the duty to negotiate retransmission consent in good faith, we note that Section 76.65(b)(vi) was intended to prohibit collusion between a broadcaster and an MVPD that contemplates non-carriage of the broadcaster's signal by another MVPD, and was not intended ``to affect the ability of a network affiliate agreement to limit redistribution of network programming.'' See id., 70 FR at 40223, para. 34. --------------------------------------------------------------------------- 18. We note that although most of the alleged bad faith practices discussed in this NPRM are attributed by commenting parties to broadcasters, Section 325(b)(3)(C) of the Act imposes a duty to negotiate retransmission consent in good faith reciprocally on broadcasters and MVPDs, and the Commission has interpreted this statutory obligation to subject broadcasters and MVPDs equally to the totality of the circumstances test and the per se violations of good faith in Section 76.65 of our rules.\87\ Thus, we propose that any practices that we find to be indicative of bad faith under the totality of the circumstances test or to be per se violations of the duty to negotiate in good faith apply to both broadcasters and MVPDs (to the extent such practices are engaged in by both broadcasters and MVPDs),\88\ and we seek comment on that proposal. Parties asserting that certain practices should be deemed bad faith only when engaged in by MVPDs or by broadcasters should explain how such an interpretation is consistent with the text of Section 325(b)(3)(C) of the Act, which imposes a reciprocal duty to bargain in good faith. --------------------------------------------------------------------------- \87\ See Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Reciprocal Bargaining Obligation, Report and Order, 70 FR 40218, para. 13 (2005). \88\ For example, demanding that an MVPD place limits on its subscribers' use of lawful devices and functionalities (set forth in (iii) above) appears to be a practice that can be attributed only to broadcasters. --------------------------------------------------------------------------- 19. Finally, we invite comment on how an MVPD's demand for online distribution rights, or a broadcaster's refusal to grant such rights, should be treated under the totality of the circumstances test. Online distribution rights are important because consumers today are increasingly accessing video programming from online video distributors that deliver content via the Internet. We understand that online distribution rights have been a critical factor in recent retransmission consent negotiations. Are there any circumstances in which an MVPD's demands with respect to online rights, or a broadcaster's unwillingness to offer such rights, should be considered evidence of bad faith under the totality of the circumstances test? \89\ --------------------------------------------------------------------------- \89\ See ACA July 24, 2015 Ex Parte Letter at 3. --------------------------------------------------------------------------- 20. In the alternative to considering any of the above factors, or additional factors that commenters raise, pursuant to the totality of the circumstances test, [[Page 59713]] we ask commenters to consider whether any of the factors mentioned above should instead be considered additional per se violations of the duty to negotiate retransmission consent in good faith.\90\ Commenters should explain their reasoning for considering particular conduct or practices either in the context of the totality of the circumstances test or as a candidate for a per se rule, and the statutory authority for a Commission finding that any such practices should be regulated under the totality of the circumstances test or as a per se rule.\91\ --------------------------------------------------------------------------- \90\ See, e.g., Cablevision July 31, 2015 Ex Parte Letter at 4, 5. \91\ See id. at 5 through 7. --------------------------------------------------------------------------- IV. Procedural Matters A. Regulatory Flexibility Act 21. As required by the Regulatory Flexibility Act of 1980, as amended (``RFA''),\92\ the Commission has prepared this present Initial Regulatory Flexibility Analysis (``IRFA'') concerning the possible significant economic impact on small entities by the policies and rules proposed in the Notice of Proposed Rulemaking (``NPRM''). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (``SBA'').\93\ In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.\94\ --------------------------------------------------------------------------- \92\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 through 612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (``CWAAA''). \93\ See 5 U.S.C. 603(a). \94\ See id. --------------------------------------------------------------------------- 1. Need for, and Objectives of, the Proposed Rules 22. In the Notice of Proposed Rulemaking (``NPRM''), as directed by Section 103 of the STELA Reauthorization Act of 2014 (``STELAR''),\95\ we review the totality of the circumstances test for evaluating whether broadcast stations and multichannel video programming distributors (``MVPDs'') are negotiating for retransmission consent in good faith. The Communications Act of 1934, as amended (the ``Act''), prohibits cable systems and other MVPDs from retransmitting a broadcast station's signal without the station's express consent.\96\ This consent is known as ``retransmission consent.'' The Act and the Commission's implementing rules require broadcasters and MVPDs to negotiate for retransmission consent in good faith.\97\ The Commission has adopted a two-part framework for evaluating good faith in this context. First, the Commission has established a list of objective good faith negotiation standards, the violation of which is considered a per se breach of the good faith negotiation obligation.\98\ Second, even if the specific per se standards are met, the Commission may consider whether, based on the totality of the circumstances, a party failed to negotiate retransmission consent in good faith.\99\ In accordance with STELAR, we adopt this NPRM and seek comment on the scope of the totality of the circumstances test. --------------------------------------------------------------------------- \95\ Congress directed the Commission to ``commence a rulemaking to review its totality of the circumstances test for good faith negotiations'' by September 4, 2014. See Public Law 113-200, 103(c), 128 Stat. 2059 (2014). \96\ 47 U.S.C. 325(b)(1)(A). \97\ Id. 325(b)(3)(C)(ii), (iii); 47 CFR 76.65. \98\ See 47 CFR 76.65(b)(1). \99\ See id. 76.65(b)(2). --------------------------------------------------------------------------- 2. Legal Basis 23. The proposed action is authorized pursuant to Sections 4(i), 4(j), 303(r), and 325 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 325, and Section 103 of the STELA Reauthorization Act of 2014, Public Law 113-200, Section 103, 128 Stat. 2059 (2014). 3. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply 24. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.\100\ The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' \101\ In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act.\102\ A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.\103\ Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible. --------------------------------------------------------------------------- \100\ 5 U.S.C. 603(b)(3). \101\ Id. 601(6). \102\ Id. 601(3) (incorporating by reference the definition of ``small-business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ``unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.'' 5 U.S.C. 601(3). \103\ 15 U.S.C. 632. --------------------------------------------------------------------------- 25. Wired Telecommunications Carriers. The 2007 North American Industry Classification System (``NAICS'') defines ``Wired Telecommunications Carriers'' as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.'' \104\ The SBA has developed a small business size standard for wireline firms within the broad economic census category, ``Wired Telecommunications Carriers.'' \105\ Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the entire year.\106\ Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.\107\ Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. --------------------------------------------------------------------------- \104\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired Telecommunications Carriers.'' http://www.census.gov/naics/2007/def/ND517110.HTM-N517110. \105\ 13 CFR 121.201 (NAICS code 517110). \106\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007-2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ5 http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table. \107\ Id. --------------------------------------------------------------------------- 26. Cable Television Distribution Services. Since 2007, these services [[Page 59714]] have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined above. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 31,996 establishments that operated that year.\108\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\109\ Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. --------------------------------------------------------------------------- \108\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \109\ Id. --------------------------------------------------------------------------- 27. Cable Companies and Systems. The Commission has developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rate regulation rules, a ``small cable company'' is one serving 400,000 or fewer subscribers, nationwide.\110\ According to SNL Kagan, there are 1,258 cable operators.\111\ Of this total, all but 10 incumbent cable companies are small under this size standard.\112\ In addition, under the Commission's rules, a ``small system'' is a cable system serving 15,000 or fewer subscribers.\113\ Current Commission records show 4,584 cable systems nationwide.\114\ Of this total, 4,012 cable systems have fewer than 20,000 subscribers, and 572 systems have 20,000 subscribers or more, based on the same records. Thus, under this standard, we estimate that most cable systems are small. --------------------------------------------------------------------------- \110\ 47 CFR 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 60 FR 35,854, 35,859 (1995). \111\ Data provided by SNL Kagan to Commission Staff upon request on March 25, 2014. Depending upon the number of homes and the size of the geographic area served, cable operators use one or more cable systems to provide video service. See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report (2013) (``15th Annual Video Competition Report''). \112\ SNL Kagan, U.S. Multichannel Top Cable MSOs (2014). We note that when this size standard (i.e., 400,000 or fewer subscribers) is applied to all MVPD operators, all but 14 MVPD operators would be considered small. 15th Annual Video Competition Report, paras. 27, 28 (subscriber data for DBS and Telephone MVPDs). The Commission applied this size standard to MVPD operators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, Report and Order, 77 FR 40,276, 40,287, para. 37 (2011) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers nationwide, as of December 31, 2011). \113\ 47 CFR 76.901(c). \114\ The number of active, registered cable systems comes from the Commission's Cable Operations and Licensing System (COALS) database on July 1, 2014. A cable system is a physical system integrated to a principal headend. --------------------------------------------------------------------------- 28. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is ``a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.'' \115\ There are approximately 56.4 million incumbent cable video subscribers in the United States today.\116\ Accordingly, an operator serving fewer than 564,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.\117\ Based on available data, we find that all but 10 incumbent cable operators are small under this size standard.\118\ We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million.\119\ Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. --------------------------------------------------------------------------- \115\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn.1 through 3. \116\ See NCTA, Industry Data, Cable Video Customers (2012). \117\ 47 CFR 76.901(f); see Public Notice, FCC Announces New Subscriber Count for the Definition of Small Cable Operator, DA 01- 158 (Cable Services Bureau, Jan. 24, 2001). \118\ See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012). \119\ The Commission does receive such information on a case-by- case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to Section 76.901(f) of the Commission's rules. See 47 CFR 76.901(f). --------------------------------------------------------------------------- 29. Direct Broadcast Satellite (``DBS'') Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic ``dish'' antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic census category, ``Wired Telecommunications Carriers,'' \120\ which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.\121\ Census data for 2007 shows that there were 3,188 firms that operated for the entire year.\122\ Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.\123\ Therefore, under this size standard, the majority of such businesses can be considered small. However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled ``Cable and Other Program Distribution.'' The 2002 definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.\124\ Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and DISH Network.\125\ Each currently offers subscription services. DIRECTV and DISH Network each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider. --------------------------------------------------------------------------- \120\ See 13 CFR 121.201, NAICS code 517110 (2007). The 2007 NAICS definition of the category of ``Wired Telecommunications Carriers'' is in paragraph 5, above. \121\ 13 CFR 121.201, NAICS code 517110 (2007). \122\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ5http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table. \123\ Id. \124\ 13 CFR 121.201; NAICS code 517510 (2002). \125\ See 15th Annual Video Competition Report, para. 27. As of June 2012, DIRECTV is the largest DBS operator and the second largest MVPD in the United States, serving approximately 19.9 million subscribers. DISH Network is the second largest DBS operator and the third largest MVPD, serving approximately 14.1 million subscribers. Id. paras. 27, 110, 111. --------------------------------------------------------------------------- 30. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via [[Page 59715]] terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA's broad economic census category, ``Wired Telecommunications Carriers,'' \126\ which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.\127\ Census data for 2007 shows that there were 31,996 establishments that operated that year.\128\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\129\ Therefore, under this size standard, the majority of such businesses can be considered small. --------------------------------------------------------------------------- \126\ See 13 CFR 121.201, NAICS code 517110 (2007). \127\ 13 CFR 121.201, NAICS code 517110 (2007). \128\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007-2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \129\ Id. --------------------------------------------------------------------------- 31. Home Satellite Dish (``HSD'') Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers.\130\ The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 31,996 establishments that operated that year.\131\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\132\ Therefore, under this size standard, the majority of such businesses can be considered small. --------------------------------------------------------------------------- \130\ 13 CFR 121.201, NAICS code 517110 (2007). \131\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007-2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \132\ Id. --------------------------------------------------------------------------- 32. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and ``wireless cable,'' transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).\133\ In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years.\134\ The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.\135\ After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.\136\ The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) will receive a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) will receive a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) will receive a 35 percent discount on its winning bid.\137\ Auction 86 concluded in 2009 with the sale of 61 licenses.\138\ Of the 10 winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses. --------------------------------------------------------------------------- \133\ Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act-- Competitive Bidding, Report and Order, 60 FR 36,524, 36,525, para. 7 (1995). \134\ 47 CFR 21.961(b)(1). \135\ 47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre- auction licenses, the applicable standard is SBA's small business size standard of 1500 or fewer employees. \136\ Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, Public Notice, 74 FR 38,018 (2009). \137\ Id. at 8296. \138\ Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice (2009). --------------------------------------------------------------------------- 33. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based EBS. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.'' \139\ The SBA has [[Page 59716]] developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 31,996 establishments that operated that year.\140\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\141\ Therefore, under this size standard, the majority of such businesses can be considered small entities. In addition to Census data, the Commission's internal records indicate that, as of September 2012, there were 2,241 active EBS licenses. The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.\142\ --------------------------------------------------------------------------- \139\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired Telecommunications Carriers,'' (partial definition) http://www.census.gov/naics/2007/def/ND517110.HTM-N517110. Examples of this category are: Broadband Internet service providers (e.g., cable, DSL); local telephone carriers (wired); cable television distribution services; long-distance telephone carriers (wired); closed circuit television (``CCTV'') services; VoIP providers, using own operated wired telecommunications infrastructure; direct-to-home satellite system (``DTH'') services; telecommunications carriers (wired); satellite television distribution systems; and multichannel multipoint distribution services (``MMDS''). \140\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \141\ Id. \142\ The term ``small entity'' within SBREFA applies to small organizations (non-profits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4) through 601(6). --------------------------------------------------------------------------- 34. Fixed Microwave Services. Microwave services include common carrier,\143\ private-operational fixed,\144\ and broadcast auxiliary radio services.\145\ They also include the Local Multipoint Distribution Service (LMDS),\146\ the Digital Electronic Message Service (DEMS),\147\ and the 24 GHz Service,\148\ where licensees can choose between common carrier and non-common carrier status.\149\ At present, there are approximately 31,428 common carrier fixed licensees and 79,732 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. There are approximately 120 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The Commission has not yet defined a small business with respect to microwave services. For purposes of the IRFA, we will use the SBA's definition applicable to Wireless Telecommunications Carriers (except satellite)--i.e., an entity with no more than 1,500 persons.\150\ Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.\151\ For the category of Wireless Telecommunications Carriers (except Satellite), Census data for 2007 show that there were 11,163 firms that operated that year.\152\ Of those, 10,791 had fewer than 1,000 employees, and 372 firms had 1,000 employees or more. Thus under this category and the associated small business size standard, the majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. --------------------------------------------------------------------------- \143\ See 47 CFR part 101, subparts C and I. \144\ See 47 CFR part 101, subparts C and H. \145\ Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission's Rules. See 47 CFR part 74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay signals from a remote location back to the studio. \146\ See 47 CFR part 101, subpart L. \147\ See 47 CFR part 101, subpart G. \148\ See id. \149\ See 47 CFR 101.533, 101.1017. \150\ 13 CFR 121.201, NAICS code 517210. \151\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now- superseded, pre-2007 CFR citations were 13 CFR 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). \152\ U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009) http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&-ds_name=EC0751SSSZ5&-_lang=en. --------------------------------------------------------------------------- 35. Open Video Systems. The open video system (``OVS'') framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.\153\ The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services,\154\ OVS falls within the SBA small business size standard covering cable services, which is ``Wired Telecommunications Carriers.'' \155\ The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the entire year.\156\ Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.\157\ Therefore, under this size standard, the majority of such businesses can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (``BSPs'') are currently the only significant holders of OVS certifications or local OVS franchises.\158\ The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS operators may qualify as small entities. --------------------------------------------------------------------------- \153\ 47 U.S.C. 571(a)(3), (4). See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Thirteenth Annual Report, para. 135 (2000) (``13th Annual Video Competition Report''). \154\ See 47 U.S.C. 573. \155\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired Telecommunications Carriers.'' http://www.census.gov/naics/2007/def/ND517110.HTM-N517110. \156\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007-2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ5 http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table. \157\ Id. \158\ See 13th Annual Video Competition Report, para. 135. BSPs are newer firms that are building state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network. --------------------------------------------------------------------------- 36. Cable and Other Subscription Programming. The Census Bureau defines this category as follows: ``This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. . . . These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to- home satellite systems, for transmission to viewers.'' \159\ The SBA has developed a small business size standard for this category, which is: All such businesses having $38.5 million dollars or less in annual revenues.\160\ Census data for 2007 shows that there were 3,188 firms that operated for the entire year.\161\ Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.\162\ Thus, under this [[Page 59717]] size standard, the majority of such businesses can be considered small entities. --------------------------------------------------------------------------- \159\ U.S. Census Bureau, 2007 NAICS Definitions, ``515210 Cable and Other Subscription Programming.''http://www.census.gov/naics/2007/def/ND515210.HTM-N515210. \160\ 13 CFR 121.210; 2012 NAICS code 515210. \161\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ5 http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table. \162\ Id. --------------------------------------------------------------------------- 37. Small Incumbent Local Exchange Carriers. We have included small incumbent local exchange carriers in this present RFA analysis. A ``small business'' under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and ``is not dominant in its field of operation.'' \163\ The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not ``national'' in scope.\164\ We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. --------------------------------------------------------------------------- \163\ 15 U.S.C. 632. \164\ Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of ``small-business concern,'' which the RFA incorporates into its own definition of ``small business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA regulations interpret ``small business concern'' to include the concept of dominance on a national basis. See 13 CFR 121.102(b). --------------------------------------------------------------------------- 38. Incumbent Local Exchange Carriers (``ILECs''). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.\165\ Census data for 2007 shows that there were 3,188 firms that operated for the entire year.\166\ Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.\167\ Therefore, under this size standard, the majority of such businesses can be considered small entities. --------------------------------------------------------------------------- \165\ 13 CFR 121.201 (2007 NAICS code 517110). \166\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ5 http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table. \167\ Id. --------------------------------------------------------------------------- 39. Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other Local Service Providers.'' Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.\168\ Census data for 2007 shows that there were 31,996 establishments that operated that year.\169\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\170\ Therefore, under this size standard, the majority of such businesses can be considered small entities. --------------------------------------------------------------------------- \168\ 13 CFR 121.201 (2007 NAICS code 517110). \169\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \170\ Id. --------------------------------------------------------------------------- 40. Television Broadcasting. ``This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA defines a television broadcasting station as a small business if such station has no more than $38.5 million in annual receipts. The 2007 U.S. Census reports that in 2007, 808 television broadcasting firms operated during that year. Of that number, 709 had annual receipts of less than $25 million. Twenty-nine firms operated with annual receipts from $25 million to $50 million, but the Census does not specify the number of stations in that category that had annual receipts of $38.5 million or less. Based on this data, the Commission concludes that a majority of television stations is small under the applicable SBA size standard. 41. The Commission has estimated the number of licensed commercial television stations to be 1,390.\171\ According to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) as of January 31, 2011, 1,006 (or about 78 percent) of an estimated 1,298 commercial television stations \172\ in the United States have revenues of $14 million or less and, thus, qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial educational (``NCE'') television stations to be 391.\173\ We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations \174\ must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. --------------------------------------------------------------------------- \171\ See News Release, ``Broadcast Station Totals as of December 31, 2010,'' 2011 WL 484756 (dated Feb. 11, 2011) (``Broadcast Station Totals'')http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf. \172\ We recognize that this total differs slightly from that contained in Broadcast Station Totals, supra; however, we are using BIA's estimate for purposes of this revenue comparison. \173\ See Broadcast Station Totals, supra. \174\ ``[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.'' 13 CFR 121.103(a)(1). --------------------------------------------------------------------------- 42. In addition, an element of the definition of ``small business'' is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over- inclusive to that extent. Also, as noted, an additional element of the definition of ``small business'' is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. 43. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,388.\175\ In addition, according to Commission staff review of the BIA Advisory Services, LLC's Media Access Pro Television Database, as of March 28, 2012, about 950 of an estimated 1,300 commercial television [[Page 59718]] stations (or approximately 73 percent) had revenues of $14 million or less.\176\ We therefore estimate that the majority of commercial television broadcasters are small entities. --------------------------------------------------------------------------- \175\ See Broadcast Station Totals as of December 31, 2013, Press Release (MB rel. Jan. 8, 2014) (``Jan. 8, 2014 Broadcast Station Totals Press Release'')https://www.fcc.gov/document/broadcast-station-totals-december-31-2013. \176\ We recognize that this total differs slightly from that contained in Jan. 8, 2014 Broadcast Station Totals Press Release; however, we are using BIA's estimate for purposes of this revenue comparison. --------------------------------------------------------------------------- 44. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations \177\ must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of ``small business'' is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. --------------------------------------------------------------------------- \177\ ``[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.'' 13 CFR 121.103(a)(1). --------------------------------------------------------------------------- 45. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.\178\ These stations are non-profit, and therefore considered to be small entities.\179\ --------------------------------------------------------------------------- \178\ See Jan. 8, 2014 Broadcast Station Totals Press Release. \179\ See generally 5 U.S.C. 601(4), (6). --------------------------------------------------------------------------- 4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 46. The NPRM does not seek comment on specific reporting or recordkeeping requirements. Rather, in Section III.A the NPRM broadly seeks comment on any elaboration of the totality of the circumstances test it can provide that will help guide negotiations to a successful conclusion. Then in Section III.B the NPRM seeks comment on whether there are specific practices that we should identify as evidencing bad faith under the totality of the circumstances test. The resolution of these issues could affect all entities that negotiate retransmission consent, including small entities. 5. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 47. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): ``(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.'' \180\ --------------------------------------------------------------------------- \180\ 5 U.S.C. 603(c)(1) through (c)(4). --------------------------------------------------------------------------- 48. Enhancing the successful completion of retransmission consent negotiations would benefit both broadcasters and MVPDs, including those that are smaller entities, as well as MVPD subscribers. Given that improvements to the totality of the circumstances test would have such an effect, making such improvements would benefit both smaller and larger entities, and thus an analysis of alternatives is unnecessary. We note additionally that the NPRM broadly seeks comment on any elaboration of the totality of the circumstances test it can provide that will help guide negotiations to a successful conclusion, and it asks whether there are specific practices that we should identify as evidencing bad faith under the totality of the circumstances test. These inquiries are wide-ranging, and we encourage commenters to indicate whether we should consider any alternatives that would minimize any adverse impact on small businesses while maintaining the benefits to the retransmission consent process. 6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule 49. None. B. Paperwork Reduction Act 50. This NPRM proposes no new or modified information collection requirements. In addition, therefore, it does not propose any new or modified ``information collection burden for small business concerns with fewer than 25 employees,'' pursuant to the Small Business Paperwork Relief Act of 2002. C. Ex Parte Rules 51. This proceeding shall be treated as a ``permit-but-disclose'' proceeding in accordance with the Commission's ex parte rules.\181\ Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules. --------------------------------------------------------------------------- \181\ 47 CFR 1.1200 et seq. --------------------------------------------------------------------------- D. Filing Requirements 52. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/. [[Page 59719]] Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554. 53. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 54. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). 55. Additional Information. For additional information on this proceeding, contact Diana Sokolow or Raelynn Remy of the Media Bureau, Policy Division, Federal Communications Commission, (202) 418-2120, [email protected]; [email protected]. V. Ordering Clauses 56. Accordingly, it is ordered that, pursuant to the authority found in Sections 4(i), 4(j), 303(r), and 325 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 325, and Section 103 of the STELA Reauthorization Act of 2014,\182\ this Notice of Proposed Rulemaking is adopted. --------------------------------------------------------------------------- \182\ Public Law 113-200, Section 111, 128 Stat. 2059 (2014). 47 U.S.C. 543(o)(1). --------------------------------------------------------------------------- 57. It is further ordered that, the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 2015-24843 Filed 10-1-15; 8:45 am] BILLING CODE 6712-01-P
![59706 Federal Register / Vol. 80, No. 191 / Friday, October 2, 2015 / Proposed Rules
interested parties an opportunity to ADDRESSES: You may submit comments, Synopsis
review the information collected before identified by MB Docket No. 15–216, by I. Introduction
filing comments. The Bureau any of the following methods:
subsequently extended the comment 1. By this Notice of Proposed
• Federal eRulemaking Portal: http:// Rulemaking (NPRM), as directed by
deadlines since the data was not yet www.regulations.gov. Follow the
available. For similar reasons, the Section 103(c) of the STELA
instructions for submitting comments. Reauthorization Act of 2014
Bureau hereby further extends the
• Federal Communications (‘‘STELAR’’),1 we review the totality of
comment and reply deadlines. The
Commission’s Web site: http:// the circumstances test for evaluating
Bureau is initiating the process of
fjallfoss.fcc.gov/ecfs2/. Follow the whether broadcast stations and
allowing access to the data collected to
instructions for submitting comments. multichannel video programming
authorized parties pursuant to the
protective order in this proceeding via • Mail: Filings can be sent by hand or distributors (‘‘MVPDs’’) are negotiating
the NORC Data Enclave®. Interested messenger delivery, by commercial for retransmission consent in good faith.
parties will not, however, have adequate overnight courier, or by first-class or The Communications Act of 1934, as
time to access and review the overnight U.S. Postal Service mail. All amended (the ‘‘Act’’), prohibits cable
information collected prior to the filings must be addressed to the systems and other MVPDs from
current September 25 and October 16, Commission’s Secretary, Office of the retransmitting a broadcast station’s
2015 comment and reply comment Secretary, Federal Communications signal without the station’s express
deadlines. To provide sufficient time for Commission. consent.2 This consent is known as
‘‘retransmission consent.’’ The Act and
interested parties to access and review • People with Disabilities: Contact the
the Commission’s implementing rules
the information collected, the Bureau FCC to request reasonable
require broadcasters and MVPDs to
hereby extends the deadline for filing accommodations (accessible format
negotiate for retransmission consent in
comments to November 20, 2015, and documents, sign language interpreters,
good faith.3 The Commission has
reply comments to December 11, 2015. CART, etc.) by email: FCC504@fcc.gov
adopted a two-part framework for
Federal Communications Commission. or phone: (202) 418–0530 or TTY: (202) evaluating good faith in this context.
Pamela Arluk, 418–0432. First, the Commission has established a
Chief, Pricing Policy Division, Wireline For detailed instructions for list of objective good faith negotiation
Competition Bureau. submitting comments and additional standards, the violation of which is
[FR Doc. 2015–25048 Filed 10–1–15; 8:45 am] information on the rulemaking process, considered a per se breach of the good
BILLING CODE 6712–01–P
see the SUPPLEMENTARY INFORMATION faith negotiation obligation.4 Second,
section of this document. even if the specific per se standards are
FOR FURTHER INFORMATION CONTACT: For met, the Commission may consider
FEDERAL COMMUNICATIONS additional information on this whether, based on the totality of the
COMMISSION proceeding, contact Diana Sokolow or circumstances, a party has failed to
Raelynn Remy of the Policy Division, negotiate retransmission consent in
47 CFR Part 76 good faith.5 In accordance with Section
Media Bureau at (202) 418–2120 or
Diana.Sokolow@fcc.gov; 103(c) of STELAR, which contemplates
[MB Docket No. 15–216; FCC 15–109] Raelynn.Remy@fcc.gov. that the Commission will conduct a
‘‘robust examination’’ of practices used
Implementation of Section 103 of the SUPPLEMENTARY INFORMATION: This is a by parties in retransmission consent
STELA Reauthorization Act of 2014, summary of the Commission’s Notice of negotiations,6 we adopt this NPRM and
Totality of the Circumstances Test Proposed Rulemaking, FCC 15–109, seek comment on potential updates to
adopted and released on September 2, the totality of the circumstances test.
AGENCY:Federal Communications 2015. The full text is available for public
Commission. inspection and copying during regular
business hours in the FCC Reference II. Background
ACTION: Proposed rule.
Center, Federal Communications
2. Congress created the retransmission
Commission, 445 12th Street SW., Room
SUMMARY: In this document, the consent regime in 1992 ‘‘to establish a
CY–A257, Washington, DC 20554. This
Commission seeks comment on marketplace for the disposition of the
document will also be available via
potential updates to the ‘‘totality of the rights to retransmit broadcast signals,’’
ECFS at http://fjallfoss.fcc.gov/ecfs/.
circumstances test’’ for evaluating but not ‘‘to dictate the outcome of the
Documents will be available
whether broadcast stations and ensuing marketplace negotiations.’’ 7
electronically in ASCII, Microsoft Word,
multichannel video programming Later, Congress adopted good faith
and/or Adobe Acrobat. The complete
distributors (‘‘MVPDs’’) are negotiating
text may be purchased from the
for retransmission consent in good faith. 1 Congress directed the Commission to
Commission’s copy contractor, 445 12th ‘‘commence a rulemaking to review its totality of
The document seeks comment generally
Street SW., Room CY–B402, the circumstances test for good faith negotiations’’
on the totality of the circumstances test, by September 4, 2015. See Public Law 113–200,
Washington, DC 20554. Alternative
including whether and how the 103(c), 128 Stat. 2059 (2014).
formats are available for people with
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Commission should update that test. 2 47 U.S.C. 325(b)(1)(A).
disabilities (Braille, large print,
The document also seeks comment on 3 Id. 325(b)(3)(C)(ii), (iii); 47 CFR 76.65.
electronic files, audio format), by 4 See 47 CFR 76.65(b)(1).
whether there are specific practices that
sending an email to fcc504@fcc.gov or 5 See id. 76.65(b)(2).
the Commission should identify as
calling the Commission’s Consumer and 6 See Report from the Senate Committee on
evidencing bad faith under the totality
Governmental Affairs Bureau at (202) Commerce, Science, and Transportation
of the circumstances test. accompanying S. 2799, 113th Cong., S. Rep. No.
418–0530 (voice), (202) 418–0432
113–322 at 13 (2014) (‘‘Senate Commerce
DATES: Comments are due on or before (TTY). This document contains no Committee Report’’).
December 1, 2015; reply comments are proposed information collection 7 S. Rep. No. 92, 102nd Cong., 1st Sess. (1991),
due on or before December 31, 2015. requirements. reprinted in 1992 U.S.C.C.A.N. 1133, 1169.
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![Federal Register / Vol. 80, No. 191 / Friday, October 2, 2015 / Proposed Rules 59707
negotiation requirements in Section 325 alleging that specific retransmission consent voice and broadband services.17 In
of the Act, prohibiting broadcast proposals are sufficiently outrageous, or addition, broadcast licensees that are
television stations and MVPDs from evidence that differences among MVPD affiliated with other programming
agreements are not based on competitive
‘‘failing to negotiate [retransmission networks may have additional leverage
marketplace considerations, as to breach a
consent] in good faith.’’ 8 Section 325 broadcaster’s good faith negotiation because they can integrate their
also provides that entering ‘‘into obligation. However, complaints which retransmission consent negotiations
retransmission consent agreements merely reflect commonplace disagreements with carriage of the other networks,18
containing different terms and encountered by negotiating parties in the and any negotiation impasses could
conditions, including price terms,’’ is everyday business world will be promptly result in the MVPD’s loss of those other
not a violation of the duty to negotiate dismissed by the Commission.13 networks as well as the broadcast
in good faith ‘‘if such different terms 3. Since Congress’s enactment of stations. Further, consumers today are
and conditions are based on competitive Section 325, we have seen significant increasingly accessing video
marketplace considerations.’’ 9 The changes in the retransmission consent programming from online video
Commission has implemented the good marketplace that have altered the distributors that deliver content via the
faith negotiation statutory provisions negotiation dynamics between Internet.19 As a consequence of these
through a two-part framework for broadcasters and MVPDs. For example, marketplace changes, retransmission
determining whether retransmission whereas broadcasters in the past consent fees have steadily grown and
consent negotiations are conducted in typically negotiated with MVPDs for in- are projected to increase further, thereby
good faith.10 First, the Commission kind compensation, broadcasters have applying upward pressure on consumer
initially established a list of seven increasingly sought and received prices for MVPD video programming
(subsequently nine) good faith monetary compensation in exchange for services. Moreover, ‘‘negotiations [for]
negotiation standards, the violation of retransmission consent.14 Moreover, in retransmission consent have become
which is considered a per se breach of contrast to the video programming significantly more complex in recent
the good faith negotiation obligation.11 landscape that existed in 1992, when years, and . . . in some cases one or
Second, even if the specific per se consumers typically had a single cable both parties to a negotiation may be
standards are met, a complainant may operator as their only video service engaging in tactics that push those
attempt to demonstrate that, based on option, consumers seeking to purchase negotiations toward a breakdown and
the totality of the circumstances, a party video programming service today result in consumer harm from
has failed to negotiate retransmission generally are able to choose among programming blackouts.’’ 20
consent in good faith.12 In its Good 4. In March 2014, the Commission, in
multiple MVPDs.15 The increase in
Faith Order, the Commission described a separate proceeding regarding
competition among MVPDs has
the totality of the circumstances test as retransmission consent, adopted an
improved broadcasters’ leverage in
follows: order strengthening its retransmission
retransmission consent negotiations
The second part of the test is a totality of consent rules to provide that joint
with MVPDs.16 MVPDs that face negotiation by stations that are ranked
the circumstances standard. Under this competition have stronger incentives to
standard, an MVPD may present facts to the among the top four stations in a market
Commission which, even though they do not
negotiate retransmission consent as measured by audience share and are
allege a violation of the objective standards, agreements with broadcast stations not commonly owned constitutes a per
given the totality of the circumstances reflect because much broadcast network se violation of the good faith negotiation
an absence of a sincere desire to reach an television programming continues to be requirement.21 The Commission
agreement that is acceptable to both parties ‘‘must-have’’ programming for MVPDs intended its action to facilitate the fair
and thus constitute a failure to negotiate in and an MVPD that is unable to reach a
good faith. We do not intend the totality of and effective completion of
retransmission consent agreement with retransmission consent negotiations.22
the circumstances test to serve as a ‘back a broadcast station may permanently
door’ inquiry into the substantive terms Through Section 103 of STELAR, which
negotiated between the parties. While the
lose subscribers to rival MVPDs— was enacted on December 4, 2014,
Commission will not ordinarily address the including subscribers to its associated Congress subsequently revised Section
substance of proposed terms and conditions 325 of the Act to ‘‘prohibit a television
13 Good Faith Order, 65 FR at 15564, para. 32
or the terms of actual retransmission consent broadcast station from coordinating
agreements, we will entertain complaints (footnote omitted).
14 See Amendment of the Commission’s Rules negotiations or negotiating on a joint
under the totality of the circumstances test
Related to Retransmission Consent, Report and basis with another television broadcast
Order and Further Notice of Proposed Rulemaking, station in the same local market . . . to
8 47 U.S.C. 325(b)(3)(C). 79 FR 28615, 28616, para. 2 (2014) (‘‘2014 Joint
9 Id. In 1999, Congress enacted the Satellite Home Negotiation Order’’); Time Warner Cable Inc. et al.
grant retransmission consent under this
Viewer Improvement Act (‘‘SHVIA’’), which Petition for Rulemaking to Amend the section to a[n MVPD], unless such
required television stations to negotiate Commission’s Rules Governing Retransmission stations are directly or indirectly under
retransmission consent with MVPDs in good faith Consent, MB Docket No. 10–71, at 15 (filed Mar. 9, common de jure control permitted
and included the ‘‘competitive marketplace 2010). Prior to the exchange of monetary
considerations’’ provision. Public Law 106–113, compensation, cable operators typically 17 See, e.g., Joe Flint, Time Warner Cable Loses
113 Stat. 1501 (1999). Although SHVIA imposed the compensated broadcasters for consent to retransmit
good faith negotiation obligation only on the broadcasters’ signals through in-kind 306,000 Subscribers, Cites Fight With CBS, LA
broadcasters, in 2004 Congress made the good faith compensation, such as carriage of additional Times, Oct. 31, 2013; Duane Dudeck, Time Warner
negotiation obligation reciprocal between channels of the broadcaster’s programming on the Cable Lost Subscribers During WTMJ Blackout,
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
broadcasters and MVPDs. Public Law 108–447, 118 cable system or advertising time. See Amendment Journal Sentinel, Dec. 3, 2013; Yinka Adegoke,
Stat. 2809 (2004) (referred to as the Satellite Home of the Commission’s Rules Related to Cablevision Blames Fox Blackout for Subscriber
Viewer Extension and Reauthorization Act, or Retransmission Consent, Notice of Proposed Losses, Reuters, Feb. 16, 2011.
18 See Annual Assessment of the Status of
‘‘SHVERA’’). Rulemaking, 76 FR 17071, 17072, para. 2 (2011)
10 See Implementation of the Satellite Home (‘‘2011 NPRM’’). Competition in the Market for Delivery of Video
Viewer Improvement Act of 1999, Retransmission 15 See Amendment to the Commission’s Rules Programming, Sixteenth Report (‘‘Sixteenth
Consent Issues: Good Faith Negotiation and Concerning Effective Competition; Implementation Competition Report’’).
19 See Sixteenth Competition Report.
Exclusivity, First Report and Order, 65 FR 15559 of Section 111 of the STELA Reauthorization Act,
(2000) (‘‘Good Faith Order’’). Report and Order, 80 FR 38001, paras. 3, 4 (2015). 20 See Senate Commerce Committee Report at 13.
11 47 CFR 76.65(b)(1). 16 See 2011 NPRM, 76 FR at 17072, para. 2 & 21 See 2014 Joint Negotiation Order.
12 See 47 CFR 76.65(b)(2). 17077, para. 14. 22 Id., 79 FR at 28615, para. 1.
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![59708 Federal Register / Vol. 80, No. 191 / Friday, October 2, 2015 / Proposed Rules
under the regulations of the carriage was a breach of its duty to negotiation to ‘‘demonstrate, based on
Commission.’’ 23 The Commission negotiate in good faith.30 the totality of the circumstances of a
adopted an order implementing this particular retransmission consent
III. Discussion
provision, replacing the previous rule negotiation, that [the other party]
regarding joint negotiation with 6. In accordance with Congress’s breached its duty to negotiate in good
language consistent with the new directive in Section 103(c) of STELAR, faith.’’ 34 How can the Commission most
statute.24 we seek comment below on any effectively address complaints that do
potential updates we should make to the not allege per se violations but that
5. In addition to the joint negotiation totality of the circumstances test to involve behavior that is asserted to be
provision, Section 103 requires the ensure that the conduct of broadcasters inconsistent with good faith? Does the
Commission to take certain further and MVPDs during negotiations for ‘‘current process for filing bad faith
actions related to retransmission retransmission consent and after such allegations’’ based on the totality of the
consent. First, Section 103 revised negotiations have broken down meet the circumstances test, including the legal
Section 325 of the Act to ‘‘prohibit a good faith standard in Section 325 of the standards and evidentiary burdens, help
television broadcast station from Act.31 In Section III.A, we seek to promote bona fide negotiations and
limiting the ability of a[n MVPD] to comment generally on the totality of the protect consumers? 35 If not, how can we
carry into the local market . . . of such circumstances test, including whether change our good faith rules in a way
station a television signal that has been and how we should update that test. In that will ensure that both parties to a
deemed significantly viewed . . . unless Section III.B, we seek comment on negotiation offer bona fide terms and
such stations are directly or indirectly whether there are specific practices that conditions for carriage? If the
under common de jure control we should identify as evidencing bad Commission provides additional
permitted by the Commission.’’ 25 The faith under the totality of the guidance on conduct that will be
Commission implemented this circumstances test.32 Consistent with considered evidence of bad faith under
provision by adding a new per se good Congress’s intent in Section 103(c) of the totality of the circumstances test,
faith negotiation standard to its rules.26 STELAR, our goal in this proceeding is would this help facilitate productive
Second, Section 103 directed the to provide further guidance to retransmission consent negotiations?
Commission to ‘‘commence a negotiating parties about the totality of Alternatively, should the totality of the
rulemaking to review its totality of the the circumstances test, if necessary, to circumstances test be eliminated or
circumstances test for good faith benefit consumers of video replaced? Commenters that advocate
negotiations under clauses (ii) and (iii) programming service by facilitating replacement of the totality of the
of section 325(b)(3)(C) of the successful negotiations and avoiding circumstances test should specify the
Communications Act of 1934 (47 U.S.C. disruptions in service to consumers.33 test that we should consider in its place.
325(b)(3)(C)).’’ 27 This NPRM 8. How effective has our totality of the
A. Totality of the Circumstances Test in
commences the rulemaking to review circumstances test been? Although it
General
and, if necessary, update the totality of was originally designed to give the
the circumstances test.28 In the single 7. First, we ask whether there is a
Commission flexibility to take account
instance in which the Media Bureau has need to update the totality of the
circumstances test. How is the of any unique facts underlying a
found a violation of the good faith particular retransmission consent
negotiation requirement, it determined retransmission consent market currently
functioning? Is there a market failure, dispute, should we modify the test to
that the cable operator breached its duty make it more specific? Is it possible to
to negotiate in good faith based on the and if so, what is its source? Are there
issues with the current totality of the maintain the flexibility of the totality of
totality of the circumstances test.29 The the circumstances test, while at the
cable operator claimed during circumstances test that warrant change?
We seek comment on this. We invite same time giving additional guidance to
negotiations that its retransmission the parties to retransmission consent
consent agreement with one station comment on any elaboration of the
totality of the circumstances test we can negotiations about certain conduct that
permitted it to carry the other broadcast we consider evidence of bad faith
stations at issue, but the Media Bureau provide that will help to guide
negotiations to a successful conclusion. negotiation? When we last sought
found that its failure to provide comment on this issue in 2011,36 some
evidence of a valid retransmission Section 76.65(b)(2) of our rules permits
a party to a retransmission consent commenters stated that providing more
consent agreement permitting such specificity for the totality of the
30 Bauermeister, 22 FCC Rcd 4933. circumstances test would promote a
23 Pub. L. 113–200, 103(a); 47 U.S.C. 325(b)(3)(C). 31 See Senate Commerce Committee Report at 13. more competitive marketplace,37 and
24 The Commission found that the statutory
prohibition on joint negotiation is broader than, and
32 Pursuant to the totality of the circumstances others stated that more specificity is
test, the Commission may consider all of the facts unnecessary.38 Are there certain
thus supersedes, the Commission’s previous
that are brought before it regarding a retransmission
prohibition. Implementation of Sections 101, 103
consent negotiation to determine whether there is
practices that the Commission should
and 105 of the STELA Reauthorization Act of 2014, consider to be evidence of bad faith in
a breach of the duty to negotiate in good faith. See,
Order, 80 FR 11,328, 11,329, paras. 4, 5 (2015)
(‘‘STELAR Sections 101, 103 and 105 Order’’).
e.g., Good Faith Order, 65 FR 15564, para. 32. evaluating the totality of the
25 Public Law 113–200, 103(b); 47 U.S.C.
Although in this NPRM we seek comment on circumstances, or is that test best left as
whether there are certain practices and/or conduct
325(b)(3)(C).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
that should be considered evidence of bad faith 34 47
26 STELAR Sections 101, 103, and 105 Order, 80
under the totality of the circumstances test, until CFR 76.65(b)(2).
FR at 11,329, para. 5. this rulemaking is complete we will continue to
35 See Senate Commerce Committee Report at 13.
27 Public Law 113–200, 103(c). 36 2011 NPRM, 76 FR at 17079, paras. 31 through
apply the presumptions established in the 2000
28 We note that we previously initiated a Good Faith Order. See Good Faith Order, 65 FR at 33.
rulemaking proceeding on retransmission consent 15567, paras. 56 through 58. Thus, the fact that we 37 See, e.g., Comments of CenturyLink on the
issues in 2011 and certain issues in that proceeding are seeking comment on potential updates to the 2011 NPRM at 7 (filed May 27, 2011) (‘‘CenturyLink
remain pending. See 2011 NPRM. To the extent totality of the circumstances test does not preclude NPRM Comments’’).
certain pleadings filed in the 2011 rulemaking are us from concluding, in a particular case, that certain 38 See, e.g., Comments of Barrington Broadcasting
relevant to this proceeding, we refer to them herein. practices or conduct is a breach of the good faith Group, LLC, et al. on the 2011 NPRM at 20 (filed
29 See Letter to Jorge L. Bauermeister, 22 FCC Rcd duty today. May 27, 2011) (‘‘Joint Broadcasters NPRM
4933, 4934 (MB 2007). 33 See Senate Commerce Committee Report at 13. Comments’’).
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a general provision to capture those 4. Proposals for carriage conditioned market power by other participants in
actions and behaviors that we do not on a broadcaster obtaining channel the market (e.g., other MVPDs) the effect
now foresee but that may in particular positioning or tier placement rights; of which is to hinder significantly or
future cases impede retransmission 5. Proposals for compensation in the foreclose MVPD competition;
consent negotiations? To the extent that form of commitments to purchase
advertising on the broadcast station or 3. Proposals that result from
we are able to provide more guidance to
broadcast-affiliated media; and agreements not to compete or to fix
MVPDs and broadcasters, what specific
negotiation practices do parties engage 6. Proposals that allow termination of prices; and
in that should be considered evidence of retransmission consent agreement based 4. Proposals for contract terms that
bad faith under the totality of the on the occurrence of a specific event, would foreclose the filing of complaints
circumstances test? 39 In adopting the such as implementation of SHVIA’s with the Commission.49
Good Faith Order, the Commission satellite must carry requirements.44
11. The Commission explained that
concluded that Congress intended it to We seek comment on whether, in light these examples are illustrative and are
‘‘follow established precedent, of changes that have occurred in the
not intended to be exclusive of other
particularly in the field of labor law, in video programming marketplace since
bargaining proposals that may be
implementing the good faith 2000, these bargaining proposals should
retransmission consent negotiation remain presumptively consistent with inconsistent with competitive
requirement,’’ and the Commission competitive marketplace considerations marketplace considerations.50 We ask
discussed labor law precedents in that under the totality of the circumstances commenters whether we should
order.40 We invite comment on whether test.45 Should the Commission amend, consider any revisions to the list of
more recent labor law precedents, or delete from, or add to this list? 46 At the bargaining proposals that are
precedents from other areas of law, may time the Commission adopted the presumptively inconsistent with
be useful in revising the totality of the totality of the circumstances test, the competitive marketplace considerations
circumstances test.41 good faith negotiation requirement under the totality of the circumstances
9. Section 325 of the Act provides, applied only to broadcasters, but in test.51 Should any practices or
among other things, that ‘‘it shall not be 2004 Congress applied it to MVPDs as bargaining proposals be added to this
a failure to negotiate in good faith if the well. Should any practices or bargaining list to account for the 2004 extension of
television broadcast station enters into proposals be added to this list to the good faith negotiation requirement
retransmission consent agreements account for application of the good faith to the conduct of MVPDs? Should this
containing different terms and requirement to the conduct of MVPDs? list be revised or expanded to account
conditions, including price terms, with 10. The Commission also previously for any of the practices or proposals
different [MVPDs] if such different stated that ‘‘[c]onsiderations that are discussed in Section III.B. infra? Are
terms and conditions are based on designed to frustrate the functioning of there practices or proposals that
competitive marketplace a competitive market are not
standing alone would not violate the
considerations.’’ 42 In implementing this ‘competitive marketplace
considerations.’ ’’ 47 Although the good faith negotiation requirement but
provision in 2000, the Commission
provided the following examples of Commission found it ‘‘more difficult to that in combination with other factors
bargaining proposals that are develop a . . . list of proposals that could violate the totality of the
presumptively consistent with indicate an automatic absence of circumstances test? Are there particular
competitive marketplace considerations: competitive marketplace negotiating practices that tend to result
1. Proposals for compensation above considerations,’’ 48 it concluded that the in a breakdown in negotiations, and if
that agreed to with other MVPDs in the following proposals are presumptively so, how, if at all, should the totality of
same market; inconsistent with competitive the circumstances test be changed to
2. Proposals for compensation that are marketplace considerations: account for those practices? How can we
different from the compensation offered 1. Proposals that specifically foreclose best ensure that any revisions to the
by other broadcasters in the same carriage of other programming services totality of the circumstances test will
market; by the MVPD that do not substantially not hinder a party’s ability to tailor its
3. Proposals for carriage conditioned duplicate the proposing broadcaster’s proposals to the competitive
on carriage of any other programming, programming; environment? 52 Should any of the
such as a broadcaster’s digital signals, 2. Proposals involving compensation factors considered under the totality of
an affiliated cable programming service, or carriage terms that result from an the circumstances test be codified in our
or another broadcast station either in the exercise of market power by a broadcast
rules? In keeping with Congress’s
same or a different market; 43 station or that result from an exercise of
directive, we seek to provide the
39 See infra Section III.B (seeking comment on 44 Good Faith Order, 65 FR at 15567, para. 56.
industry with further guidance that
specific practices that potentially evidence a failure 45 See ACA Ex Parte Letter in MB Docket No. 10– would provide more certainty as to what
to negotiate in good faith under the totality of the 71 at 2 (filed July 31, 2015) (urging the Commission constitutes good faith in retransmission
circumstances test). to reexamine its existing presumptions that certain
40 Good Faith Order, 65 FR at 15560, para. 6.
consent negotiations, and thereby help
types of conduct are consistent with competitive
41 See Ex Parte Letter of CenturyLink, marketplace considerations) (‘‘ACA July 31, 2015 facilitate productive negotiations.
Consolidated Communications, Inc., FairPoint Ex Parte Letter’’).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Communications, Inc., ITTA, Mediacom 46 See, e.g., Comments of the American Public
Communications Corp., NTCA, Public Knowledge Power Association on the 2011 NPRM at 26 (filed 49 Id.at para. 58.
and TDS Telecommunications Corp. in MB Docket May 27, 2011) (‘‘APPA Group NPRM Comments’’); 50 Id.at 15567, nn.123, 125.
No. 10–71 at 4, 5 (filed Aug. 18, 2015) (‘‘Joint Comments of Sinclair Broadcast Group, Inc. on the 51 See, e.g., Comments of Cox Enterprises, Inc. on
Parties Ex Parte Letter’’). 2011 NPRM at 19 (filed May 27, 2011); Comments
42 47 U.S.C. 325(b)(3)(C). of the National Association of Broadcasters on the the 2011 NPRM at 9 (filed May 27, 2011);
43 See infra Section III.B (asking whether a 2011 NPRM at 51 (filed May 27, 2011); Comments Comments of DISH Network L.L.C. on the 2011
broadcaster’s requirement that broadcast stations of Nexstar Broadcasting, Inc. on the 2011 NPRM at NPRM at 25, 26 (filed May 27, 2011) (‘‘DISH
and cable networks be bundled as part of the same 18 (filed May 27, 2011). Network NPRM Comments’’).
47 Good Faith Order, 65 FR at 15567, para. 58. 52 Reply Comments of CBS Corporation on the
agreement should violate the good faith negotiation
requirement). 48 Id. at para. 57. 2011 NPRM at 21 (filed June 27, 2011).
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any non-commonly owned entity must an MVPD complainant make to or threats to black out a station signal,
regardless of the geographic market in demonstrate that bundling in a in the time period just prior to the airing
which that entity operates? 61 particular case violates antitrust laws? of a ‘‘marquee’’ sports or entertainment
15. We also invite comment on how We also seek comment on whether and event; 69 (ii) a broadcaster’s preventing
a broadcaster’s insistence on bundling to what extent a broadcaster’s insistence an MVPD from temporarily importing
broadcast signals with other broadcast on bundling a local broadcast signal an out-of-market signal in cases where
stations or cable networks into the with specific types of programming the broadcaster has blacked out its local
retransmission consent agreement such as regional sports networks (or signal after negotiations failed to
should be treated under the totality of other ‘‘must have’’ programming), produce an agreement by the contract
the circumstances test. We note that multicast programming, duplicative expiration date; 70 (iii) a broadcaster’s
early retransmission consent agreements stations, and/or significantly viewed demand that an MVPD place limits on
typically provided for noncash payment stations should factor into our its subscribers’ use of lawful devices
to broadcasters in the form of carriage of assessment of whether the broadcaster and functionalities; (iv) a broadcaster’s
additional programming. If a has negotiated in good faith under the demand that MVPDs pay per-subscriber
broadcaster requires MVPDs to purchase totality of the circumstances test.66 In fees not only for viewers of the
less popular programming in order to addition, we seek comment on whether broadcaster’s retransmitted signal, but
purchase more desired programming, a broadcaster’s insistence on bundling a also for subscribers that receive the
the MVPDs may be forced to pay for local broadcast signal with one or more broadcaster’s signal over-the-air or who
programming that they do not want and prospective programming channels 67 receive an MVPD’s Internet or voice
may in turn pass those costs onto should be considered evidence of bad service, but not its video service; 71 (v)
consumers. And while broadcasters and faith under the totality of the an MVPD’s or broadcaster’s refusal to
other programmers sometimes offer circumstances test. With regard to the provide ‘‘information substantiating
MVPDs both a bundled price and bundling of prospective channels, how reasons for positions taken when
standalone prices for particular can an MVPD assess the reasonableness
requested to in the course of
programming, some MVPDs assert that of a broadcaster’s proposed carriage fees
the prices for the standalone options bargaining’’; 72 (vi) an MVPD’s or
for a bundled offering that contains a
may be so high that the only broadcaster’s engaging in ‘‘surface
programming channel that has not yet
economically sound option is to accept bargaining,’’ i.e., conduct designed to
been launched or whose carriage is
the bundled offer. Although the delay negotiations, but that does not
conditioned on future events? Is it
Commission, in the Good Faith Order, necessarily constitute an outright refusal
consistent with good faith bargaining for
concluded that the bundling of a broadcaster to insist on MVPD carriage to bargain; 73 (vii) an MVPD-affiliated
broadcast and non-broadcast of untested programming channels as a broadcaster’s ‘‘discriminat[ion] in the
programming in retransmission consent condition of carrying a local broadcast prices, terms and conditions [for]
agreements is a practice that is signal? If we decide that a broadcast retransmission consent among or
presumptively consistent with good station’s attempt to tie carriage of its between MVPDs based on vertical
faith bargaining,62 it also stated that affiliated programming to carriage of a competitive effects’’; 74 (viii) an MVPD’s
‘‘[c]onduct that is violative of national broadcast station is a factor suggesting a or broadcaster’s demanding or
policies favoring competition—that is, failure to negotiate in good faith, how negotiating retransmission consent
for example, intended to gain or sustain would we analyze the legitimacy of a based on ‘‘most favored nation’’
a monopoly, is an agreement not to standalone offer? The American provisions; 75 (ix) a broadcaster’s
compete or fix prices, or involves the Television Alliance, for example, demand for tier placement
exercise of market power in one market suggests that the stand-alone offer be ‘‘a commitments, which compel MVPDs to
in order to foreclose competitors from real economic alternative to a bundle of place their affiliated networks in the
participation in another market—is not broadcast and non-broadcast
within the competitive marketplace programming.’’ 68
69 See ATVA Ex Parte Letter at 3, 4; ACA July 24,
considerations standard . . . .’’ 63 The 2015 Ex Parte Letter at 2. See also Comments of
16. Parties have identified a number Consumer Action on the 2011 NPRM at 1
Commission has specifically ‘‘clarif[ied] of other negotiating practices that, they (‘‘Consumer Action Comments’’).
that tying is not consistent with assert, are inconsistent with the 70 See ATVA Ex Parte Letter at 4. Although
competitive marketplace considerations statutory duty to bargain in good faith. Section 103 of STELAR amended Section 325 of the
if it would violate the antitrust laws.’’64 Act to ‘‘prohibit a television broadcast station from
We seek comment on whether any of limiting the ability of [an MVPD] to carry into the
Have circumstances changed such that these practices should factor into our local market . . . of such station a television signal
bundling of broadcast and non- assessment of whether a negotiating that has been deemed significantly viewed . . . or
broadcast programming should not be entity has breached its duty to negotiate any other television broadcast signal such
presumptively consistent with good distributor is authorized to carry . . . .,’’ this
in good faith under the totality of the provision would not permit an MVPD to import a
faith bargaining under any circumstances test. In particular, parties non-significantly viewed signal in cases where the
circumstances? 65 What type of showing assert that the following practices raise MVPD were not ‘‘authorized to carry’’ the signal,
concerns about whether a party has met with certain exceptions. 47 U.S.C. 325(b)(3)(C) (as
61 See ATVA Ex Parte Letter at 4, 5. amended by Section 103 of STELAR). ATVA
its obligation to negotiate retransmission proposes that we deem it a failure to negotiate in
62 See Good Faith Order, 65 FR at 15567, para. 56.
63 Id. at para. 58.
consent in good faith: (i) A broadcaster’s good faith for a broadcaster not to authorize such
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
64 See also Implementation of Section 207 of the
insistence on contract expiration dates, carriage either through waiver of the right to
prevent importation of distant signals (in the case
Satellite Home Viewer Extension and
66 See ATVA Ex Parte Letter at 3; ACA Ex Parte of satellite carriers) or through exercise of network
Reauthorization Act of 2004; Reciprocal Bargaining
Letter in MB Docket No. 10–71 at 2, 3 (filed July non-duplication or syndicated exclusivity rights (in
Obligation, Report and Order, 70 FR 40216, 40219,
24, 2015) (‘‘ACA July 24, 2015 Ex Parte Letter’’). the case of cable and telecommunications MVPDs).
para. 15 (2005) (‘‘Reciprocal Bargaining Order’’) 71 ATVA Ex Parte Letter at 5.
(‘‘[W]e clarify that tying is not consistent with 67 By prospective programming channel, we refer
72 See ACA July 24, 2015 Ex Parte Letter at 1. See
competitive marketplace considerations if it would to a programming channel that has not yet been
violate the antitrust laws.’’). launched or a station or network that may be also Joint Parties Ex Parte Letter at 4.
73 Id. at 2.
65 See Reply Comments of Public Knowledge and acquired in the future. See ACA July 24, 2015 Ex
New America Foundation on the 2011 NPRM at 6, Parte Letter at 2. 74 Id. at 3.
7. 68 See ATVA Ex Parte Letter at 3. 75 Id.
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most popular programming packages; 76 second practice noted above 18. We note that although most of the
(x) a broadcaster’s imposition of (concerning importation of distant alleged bad faith practices discussed in
minimum penetration requirements, broadcast signals), we note that there this NPRM are attributed by
which require MVPDs to guarantee that could be situations where an MVPD is commenting parties to broadcasters,
broadcaster-affiliated cable networks denied the right to carry a significantly Section 325(b)(3)(C) of the Act imposes
will reach a specified percentage of viewed signal by a distant broadcast a duty to negotiate retransmission
customers; 77 (xi) a broadcaster’s failure station that is precluded from granting consent in good faith reciprocally on
to make an initial contract proposal at out-of-market carriage of its signal due broadcasters and MVPDs, and the
least 90 days prior to the existing to restrictions in a network affiliation Commission has interpreted this
contract’s expiration; 78 (xii) a agreement.83 Does Section statutory obligation to subject
broadcaster’s preventing an MVPD from 325(b)(3)(C)(v) of the Act, as added by broadcasters and MVPDs equally to the
disclosing rates, terms and conditions of Section 103(b) of STELAR (which, as totality of the circumstances test and the
a contract proposal or agreement to the noted above, generally prohibits a per se violations of good faith in Section
Commission, a court of competent broadcast station from limiting the 76.65 of our rules.87 Thus, we propose
jurisdiction, and/or other state or federal ability of an MVPD ‘‘to carry into the that any practices that we find to be
governmental entities in connection local market . . . of such station . . . a indicative of bad faith under the totality
with a formal retransmission consent television signal that has been deemed of the circumstances test or to be per se
complaint or other legal or significantly viewed. . . .’’) require the violations of the duty to negotiate in
administrative proceeding; 79 (xiii) a significantly viewed station to consent good faith apply to both broadcasters
broadcaster’s discrimination in price to carriage of its signal by the MVPD in and MVPDs (to the extent such practices
among MVPDs in a market absent a retransmission consent negotiations or are engaged in by both broadcasters and
showing of direct and legitimate does it only govern retransmission MVPDs),88 and we seek comment on
economic benefits associated with such consent negotiations between local that proposal. Parties asserting that
price differences; 80 (xiv) an MVPD’s or stations and the MVPD? 84 If this section certain practices should be deemed bad
broadcaster’s failure to negotiate terms does not apply, we note that the faith only when engaged in by MVPDs
and conditions for retransmission Commission, in implementing the or by broadcasters should explain how
consent based on actual local market reciprocal bargaining provisions of such an interpretation is consistent with
conditions; 81 and (xv) an MVPD’s or Section 325, found that ‘‘it is incumbent the text of Section 325(b)(3)(C) of the
broadcaster’s attempt to manufacture a on broadcasters subject to . . . Act, which imposes a reciprocal duty to
retransmission consent dispute in the contractual limitations [in a network bargain in good faith.
hope of encouraging government affiliation agreement] that have been 19. Finally, we invite comment on
intervention.82 We also seek comment engaged by an out-of-market MVPD to how an MVPD’s demand for online
on any other practices that should be negotiate retransmission consent of its distribution rights, or a broadcaster’s
considered evidence of bad faith under signal to at least inquire with its refusal to grant such rights, should be
the totality of the circumstances test. network whether the network would treated under the totality of the
17. How, if at all, should any of the waive the limitation with regard to the circumstances test. Online distribution
above practices figure into our MVPD in question.’’ 85 Given this rights are important because consumers
assessment of whether the broadcaster statement, in cases where a significantly today are increasingly accessing video
or MVPD has breached its duty to viewed station refuses out-of-market programming from online video
negotiate retransmission consent in carriage of its signal without first asking distributors that deliver content via the
good faith under the totality of the the network whether it would consider Internet. We understand that online
circumstances test? With regard to the waiving its right to enforce contractual distribution rights have been a critical
restrictions on such carriage, should the factor in recent retransmission consent
76 See Cablevision July 31, 2015 Ex Parte Letter
broadcaster’s refusal continue to be negotiations. Are there any
at 3, 5; ITTA Ex Parte Letter in MB Docket No. 10–
probative evidence of whether it is circumstances in which an MVPD’s
71 at 1, 2 (filed Aug. 7, 2015) (‘‘ITTA August 7, 2015 demands with respect to online rights,
Ex Parte Letter’’); Mediacom Petition at 10 through negotiating in bad faith under the
12 (identifying certain other tactics used by totality of the circumstances test? 86 or a broadcaster’s unwillingness to offer
programmers to force bundling of multiple channels such rights, should be considered
on widely penetrated tiers). 83 See Comments of ACA on the 2011 NPRM at evidence of bad faith under the totality
77 See Cablevision July 31, 2015 Ex Parte Letter
55 through 58 (filed May 27, 2011); ACA Ex Parte of the circumstances test? 89
at 3 through 5 (asserting that, in order to broaden Letter in MB Docket No. 10–71 at 4 (filed Aug. 28, 20. In the alternative to considering
the reach of their programming, broadcasters have 2015).
used tying practices in conjunction with tier any of the above factors, or additional
84 We note that Congress intended Section 103(b)
placement and minimum penetration requirements, factors that commenters raise, pursuant
of STELAR ‘‘to be interpreted broadly by the FCC
and that these practices collectively harm to ensure that a television broadcast station is not to the totality of the circumstances test,
consumers). Cablevision further asserts that the able to limit MVPD carriage of signals that it is
good faith standard mandates that broadcasters omit permitted to carry pursuant to the Communications collusion between a broadcaster and an MVPD that
basic tier customers from the denominator used to Act. . . .’’ See Senate Commerce Committee Report contemplates non-carriage of the broadcaster’s
assess whether minimum penetration requirements at 13. signal by another MVPD, and was not intended ‘‘to
have been met in contracts for bundled 85 See Implementation of Section 207 of the affect the ability of a network affiliate agreement to
programming. Id. at 5. limit redistribution of network programming.’’ See
78 See ITTA Ex Parte Letter in MB Docket No. 10–
Satellite Home Viewer Extension and
id., 70 FR at 40223, para. 34.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Reauthorization Act of 2004, Reciprocal Bargaining
71 at 2 (filed Aug. 13, 2015) (‘‘ITTA August 13, 2015 Obligation, Report and Order, 70 FR 40216, 40223, 87 See Implementation of Section 207 of the
Ex Parte Letter’’). para. 35 (2005) (‘‘Reciprocal Bargaining Order’’). Satellite Home Viewer Extension and
79 Id.
86 Although Section 76.65(b)(vi) of our rules Reauthorization Act of 2004, Reciprocal Bargaining
80 Id.
provides that the ‘‘[e]xecution by a Negotiating Obligation, Report and Order, 70 FR 40218, para.
81 See Comments of Block Communications, Inc.
Entity of an agreement with any party, a term or 13 (2005).
in MB Docket No. 10–71 at 8, 9 (filed Aug. 14, 2015) condition of which, requires that such Negotiating 88 For example, demanding that an MVPD place
(‘‘Block Comments’’). Entity not enter into a retransmission consent limits on its subscribers’ use of lawful devices and
82 See NAB Ex Parte Letter in MB Docket No. 10– agreement with any other television broadcast functionalities (set forth in (iii) above) appears to
71 at 1 (filed July 13, 2015); NAB Ex Parte Letter station or [MVPD]’’ violates the duty to negotiate be a practice that can be attributed only to
at 2 (filed July 24, 2015); NAB Ex Parte Letter at retransmission consent in good faith, we note that broadcasters.
1 (filed August 25, 2015). Section 76.65(b)(vi) was intended to prohibit 89 See ACA July 24, 2015 Ex Parte Letter at 3.
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size standard, the majority of such size standard specifically for these an estimated 1,298 commercial
businesses can be considered small service providers. The appropriate size television stations 172 in the United
entities. standard under SBA rules is for the States have revenues of $14 million or
37. Small Incumbent Local Exchange category Wired Telecommunications less and, thus, qualify as small entities
Carriers. We have included small Carriers. Under that size standard, such under the SBA definition. The
incumbent local exchange carriers in a business is small if it has 1,500 or Commission has estimated the number
this present RFA analysis. A ‘‘small fewer employees.168 Census data for of licensed noncommercial educational
business’’ under the RFA is one that, 2007 shows that there were 31,996 (‘‘NCE’’) television stations to be 391.173
inter alia, meets the pertinent small establishments that operated that We note, however, that in assessing
business size standard (e.g., a telephone year.169 Of this total, 30,178 whether a business concern qualifies as
communications business having 1,500 establishments had fewer than 100 small under the above definition,
or fewer employees), and ‘‘is not employees, and 1,818 establishments business (control) affiliations 174 must
dominant in its field of operation.’’ 163 had 100 or more employees.170 be included. Our estimate, therefore,
The SBA’s Office of Advocacy contends Therefore, under this size standard, the likely overstates the number of small
that, for RFA purposes, small incumbent majority of such businesses can be entities that might be affected by our
local exchange carriers are not dominant considered small entities. action, because the revenue figure on
in their field of operation because any 40. Television Broadcasting. ‘‘This which it is based does not include or
such dominance is not ‘‘national’’ in industry comprises establishments aggregate revenues from affiliated
scope.164 We have therefore included primarily engaged in broadcasting companies. The Commission does not
small incumbent local exchange carriers images together with sound. These compile and otherwise does not have
in this RFA analysis, although we establishments operate television access to information on the revenue of
emphasize that this RFA action has no broadcasting studios and facilities for NCE stations that would permit it to
effect on Commission analyses and the programming and transmission of determine how many such stations
determinations in other, non-RFA programs to the public. These would qualify as small entities.
contexts. establishments also produce or transmit 42. In addition, an element of the
38. Incumbent Local Exchange visual programming to affiliated definition of ‘‘small business’’ is that the
Carriers (‘‘ILECs’’). Neither the broadcast television stations, which in entity not be dominant in its field of
Commission nor the SBA has developed turn broadcast the programs to the operation. We are unable at this time to
a small business size standard public on a predetermined schedule. define or quantify the criteria that
specifically for incumbent local Programming may originate in their own would establish whether a specific
exchange services. The appropriate size studio, from an affiliated network, or television station is dominant in its field
standard under SBA rules is for the from external sources. The SBA defines of operation. Accordingly, the estimate
category Wired Telecommunications a television broadcasting station as a of small businesses to which rules may
Carriers. Under that size standard, such small business if such station has no apply do not exclude any television
a business is small if it has 1,500 or more than $38.5 million in annual station from the definition of a small
fewer employees.165 Census data for receipts. The 2007 U.S. Census reports business on this basis and are therefore
2007 shows that there were 3,188 firms that in 2007, 808 television broadcasting over-inclusive to that extent. Also, as
that operated for the entire year.166 Of firms operated during that year. Of that noted, an additional element of the
this total, 2,940 firms had fewer than number, 709 had annual receipts of less definition of ‘‘small business’’ is that the
100 employees, and 248 firms had 100 than $25 million. Twenty-nine firms entity must be independently owned
or more employees.167 Therefore, under operated with annual receipts from $25 and operated. We note that it is difficult
this size standard, the majority of such million to $50 million, but the Census at times to assess these criteria in the
businesses can be considered small does not specify the number of stations context of media entities and our
entities. in that category that had annual receipts estimates of small businesses to which
39. Competitive Local Exchange
of $38.5 million or less. Based on this they apply may be over-inclusive to this
Carriers, Competitive Access Providers
data, the Commission concludes that a extent.
(CAPs), ‘‘Shared-Tenant Service 43. Apart from the U.S. Census, the
majority of television stations is small
Providers,’’ and ‘‘Other Local Service Commission has estimated the number
under the applicable SBA size standard.
Providers.’’ Neither the Commission nor 41. The Commission has estimated of licensed commercial television
the SBA has developed a small business the number of licensed commercial stations to be 1,388.175 In addition,
163 15
television stations to be 1,390.171 according to Commission staff review of
U.S.C. 632.
164 Letter from Jere W. Glover, Chief Counsel for
According to Commission staff review the BIA Advisory Services, LLC’s Media
Advocacy, SBA, to William E. Kennard, Chairman, of the BIA Kelsey Inc. Media Access Pro Access Pro Television Database, as of
FCC (May 27, 1999). The Small Business Act Television Database (BIA) as of January March 28, 2012, about 950 of an
contains a definition of ‘‘small-business concern,’’ 31, 2011, 1,006 (or about 78 percent) of estimated 1,300 commercial television
which the RFA incorporates into its own definition
of ‘‘small business.’’ See 15 U.S.C. 632(a) (Small
168 13 CFR 121.201 (2007 NAICS code 517110). 172 We recognize that this total differs slightly
Business Act); 5 U.S.C. 601(3) (RFA). SBA
regulations interpret ‘‘small business concern’’ to 169 U.S. Census Bureau, 2007 Economic Census. from that contained in Broadcast Station Totals,
include the concept of dominance on a national See U.S. Census Bureau, American FactFinder, supra; however, we are using BIA’s estimate for
basis. See 13 CFR 121.102(b). ‘‘Information: Subject Series—Estab and Firm Size: purposes of this revenue comparison.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
165 13 CFR 121.201 (2007 NAICS code 517110). Employment Size of Establishments for the United 173 See Broadcast Station Totals, supra.
166 U.S. Census Bureau, 2007 Economic Census. States: 2007—2007 Economic Census,’’ NAICS code 174 ‘‘[Business concerns] are affiliates of each
See U.S. Census Bureau, American FactFinder, 517110, Table EC0751SSSZ2http:// other when one concern controls or has the power
‘‘Information: Subject Series—Estab and Firm Size: factfinder2.census.gov/faces/nav/jsf/pages/ to control the other or a third party or parties
Employment Size of Establishments for the United index.xhtml. controls or has to power to control both.’’ 13 CFR
170 Id. 121.103(a)(1).
States: 2007—2007 Economic Census,’’ NAICS code
517110, Table EC0751SSSZ5 http:// 171 See News Release, ‘‘Broadcast Station Totals 175 See Broadcast Station Totals as of December
factfinder.census.gov/faces/tableservices/jsf/pages/ as of December 31, 2010,’’ 2011 WL 484756 (dated 31, 2013, Press Release (MB rel. Jan. 8, 2014) (‘‘Jan.
productview.xhtml?pid=ECN_2007_US_ Feb. 11, 2011) (‘‘Broadcast Station Totals’’)http:// 8, 2014 Broadcast Station Totals Press
51SSSZ5&prodType=table. www.fcc.gov/Daily_Releases/Daily_Business/2011/ Release’’)https://www.fcc.gov/document/broadcast-
167 Id. db0211/DOC-304594A1.pdf. station-totals-december-31-2013.
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stations (or approximately 73 percent) 5. Steps Taken To Minimize Significant accordance with the Commission’s ex
had revenues of $14 million or less.176 Economic Impact on Small Entities and parte rules.181 Persons making ex parte
We therefore estimate that the majority Significant Alternatives Considered presentations must file a copy of any
of commercial television broadcasters 47. The RFA requires an agency to written presentation or a memorandum
are small entities. describe any significant alternatives that summarizing any oral presentation
44. We note, however, that, in it has considered in reaching its within two business days after the
assessing whether a business concern proposed approach, which may include presentation (unless a different deadline
qualifies as small under the above the following four alternatives (among applicable to the Sunshine period
others): ‘‘(1) The establishment of applies). Persons making oral ex parte
definition, business (control)
differing compliance or reporting presentations are reminded that
affiliations 177 must be included. Our
requirements or timetables that take into memoranda summarizing the
estimate, therefore, likely overstates the
account the resources available to small presentation must (1) list all persons
number of small entities that might be
entities; (2) the clarification, attending or otherwise participating in
affected by our action, because the the meeting at which the ex parte
revenue figure on which it is based does consolidation, or simplification of
compliance and reporting requirements presentation was made, and (2)
not include or aggregate revenues from summarize all data presented and
affiliated companies. In addition, an under the rule for such small entities;
(3) the use of performance, rather than arguments made during the
element of the definition of ‘‘small presentation. If the presentation
business’’ is that the entity not be design standards; and (4) an exemption
from coverage of the rule, or any part consisted in whole or in part of the
dominant in its field of operation. We presentation of data or arguments
are unable at this time to define or thereof, for small entities.’’ 180
48. Enhancing the successful already reflected in the presenter’s
quantify the criteria that would written comments, memoranda or other
completion of retransmission consent
establish whether a specific television filings in the proceeding, the presenter
negotiations would benefit both
station is dominant in its field of may provide citations to such data or
broadcasters and MVPDs, including
operation. Accordingly, the estimate of arguments in his or her prior comments,
those that are smaller entities, as well as
small businesses to which rules may memoranda, or other filings (specifying
MVPD subscribers. Given that
apply do not exclude any television improvements to the totality of the the relevant page and/or paragraph
station from the definition of a small circumstances test would have such an numbers where such data or arguments
business on this basis and are therefore effect, making such improvements can be found) in lieu of summarizing
over-inclusive to that extent. would benefit both smaller and larger them in the memorandum. Documents
45. In addition, the Commission has entities, and thus an analysis of shown or given to Commission staff
estimated the number of licensed alternatives is unnecessary. We note during ex parte meetings are deemed to
noncommercial educational (NCE) additionally that the NPRM broadly be written ex parte presentations and
television stations to be 396.178 These seeks comment on any elaboration of must be filed consistent with rule
stations are non-profit, and therefore the totality of the circumstances test it 1.1206(b). In proceedings governed by
considered to be small entities.179 can provide that will help guide rule 1.49(f) or for which the
negotiations to a successful conclusion, Commission has made available a
4. Description of Projected Reporting, and it asks whether there are specific method of electronic filing, written ex
Recordkeeping, and Other Compliance practices that we should identify as parte presentations and memoranda
Requirements evidencing bad faith under the totality summarizing oral ex parte
of the circumstances test. These presentations, and all attachments
46. The NPRM does not seek comment thereto, must be filed through the
on specific reporting or recordkeeping inquiries are wide-ranging, and we
encourage commenters to indicate electronic comment filing system
requirements. Rather, in Section III.A available for that proceeding, and must
the NPRM broadly seeks comment on whether we should consider any
alternatives that would minimize any be filed in their native format (e.g., .doc,
any elaboration of the totality of the .xml, .ppt, searchable .pdf). Participants
circumstances test it can provide that adverse impact on small businesses
while maintaining the benefits to the in this proceeding should familiarize
will help guide negotiations to a themselves with the Commission’s ex
successful conclusion. Then in Section retransmission consent process.
parte rules.
III.B the NPRM seeks comment on 6. Federal Rules That May Duplicate,
whether there are specific practices that Overlap, or Conflict With the Proposed D. Filing Requirements
we should identify as evidencing bad Rule 52. Comments and Replies. Pursuant
faith under the totality of the 49. None. to Sections 1.415 and 1.419 of the
circumstances test. The resolution of Commission’s rules, 47 CFR 1.415,
these issues could affect all entities that B. Paperwork Reduction Act 1.419, interested parties may file
negotiate retransmission consent, 50. This NPRM proposes no new or comments and reply comments on or
including small entities. modified information collection before the dates indicated on the first
requirements. In addition, therefore, it page of this document. Comments may
176 We recognize that this total differs slightly
does not propose any new or modified be filed using the Commission’s
from that contained in Jan. 8, 2014 Broadcast Electronic Comment Filing System
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Station Totals Press Release; however, we are using
‘‘information collection burden for
BIA’s estimate for purposes of this revenue small business concerns with fewer than (ECFS). See Electronic Filing of
comparison. 25 employees,’’ pursuant to the Small Documents in Rulemaking Proceedings,
177 ‘‘[Business concerns] are affiliates of each
Business Paperwork Relief Act of 2002. 63 FR 24121 (1998).
other when one concern controls or has the power • Electronic Filers: Comments may be
to control the other or a third party or parties C. Ex Parte Rules filed electronically using the Internet by
controls or has to power to control both.’’ 13 CFR
121.103(a)(1). 51. This proceeding shall be treated as accessing the ECFS: http://
178 See Jan. 8, 2014 Broadcast Station Totals Press a ‘‘permit-but-disclose’’ proceeding in fjallfoss.fcc.gov/ecfs2/.
Release.
179 See generally 5 U.S.C. 601(4), (6). 180 5 U.S.C. 603(c)(1) through (c)(4). 181 47 CFR 1.1200 et seq.
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![Federal Register / Vol. 80, No. 191 / Friday, October 2, 2015 / Proposed Rules 59719
• Paper Filers: Parties who choose to East Hampton Drive, Capitol Heights, Communications Commission, (202)
file by paper must file an original and MD 20743. 418–2120, Diana.Sokolow@fcc.gov;
one copy of each filing. If more than one • U.S. Postal Service first-class, Raelynn.Remy@fcc.gov.
docket or rulemaking number appears in Express, and Priority mail must be
addressed to 445 12th Street SW., V. Ordering Clauses
the caption of this proceeding, filers
must submit two additional copies for Washington, DC 20554. 56. Accordingly, it is ordered that,
each additional docket or rulemaking 53. Availability of Documents. pursuant to the authority found in
number. Comments, reply comments, and ex Sections 4(i), 4(j), 303(r), and 325 of the
parte submissions will be available for Communications Act of 1934, as
Filings can be sent by hand or public inspection during regular amended, 47 U.S.C. 154(i), 154(j),
messenger delivery, by commercial business hours in the FCC Reference 303(r), and 325, and Section 103 of the
overnight courier, or by first-class or Center, Federal Communications STELA Reauthorization Act of 2014,182
overnight U.S. Postal Service mail. All Commission, 445 12th Street SW., CY– this Notice of Proposed Rulemaking is
filings must be addressed to the A257, Washington, DC 20554. These adopted.
Commission’s Secretary, Office of the documents will also be available via 57. It is further ordered that, the
Secretary, Federal Communications ECFS. Documents will be available Commission’s Consumer and
Commission. electronically in ASCII, Microsoft Word, Governmental Affairs Bureau, Reference
• All hand-delivered or messenger- and/or Adobe Acrobat. Information Center, shall send a copy of
delivered paper filings for the 54. People with Disabilities. To this Notice of Proposed Rulemaking,
Commission’s Secretary must be request materials in accessible formats including the Initial Regulatory
delivered to FCC Headquarters at 445 for people with disabilities (Braille, Flexibility Act Analysis, to the Chief
12th St. SW., Room TW–A325, large print, electronic files, audio
Counsel for Advocacy of the Small
format), send an email to fcc504@fcc.gov
Washington, DC 20554. The filing hours Business Administration.
or call the FCC’s Consumer and
are 8:00 a.m. to 7:00 p.m. All hand Federal Communications Commission.
Governmental Affairs Bureau at (202)
deliveries must be held together with Marlene H. Dortch,
418–0530 (voice), (202) 418–0432
rubber bands or fasteners. Any
(TTY). Secretary.
envelopes and boxes must be disposed 55. Additional Information. For [FR Doc. 2015–24843 Filed 10–1–15; 8:45 am]
of before entering the building. additional information on this BILLING CODE 6712–01–P
• Commercial overnight mail (other proceeding, contact Diana Sokolow or
than U.S. Postal Service Express Mail Raelynn Remy of the Media Bureau, 182 Public Law 113–200, Section 111, 128 Stat.
and Priority Mail) must be sent to 9300 Policy Division, Federal 2059 (2014). 47 U.S.C. 543(o)(1).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
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Document Created: 2015-12-15 08:44:43
Document Modified: 2015-12-15 08:44:43
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments are due on or before December 1, 2015; reply comments are due on or before December 31, 2015. | |
| Contact | For additional information on this proceeding, contact Diana Sokolow or Raelynn Remy of the Policy Division, Media Bureau at (202) 418-2120 or [email protected]; [email protected] | |
| FR Citation | 80 FR 59706 |
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