47 C.F.R. Subpart U—Implementation of Section 325(e) of the Communications Act: Procedures Governing Complaints Filed by Television Broadcast Stations Against Satellite Carriers for Retransmission Without Consent
Title 47 - Telecommunication
Source: 65 FR 10720, Feb. 29, 2000, unless otherwise noted.
The purpose of part 1, Subpart U, is to implement Section 325(e) of the Communications Act of 1934, as amended, 47 U.S.C. 325(e), et seq., as added by section 1009 of the Satellite Home Viewer Improvement Act of 1999, Public Law 106–113, section 1000(9), 113 Stat. 1501, Appendix I (1999). The procedures set forth in this subpart supersede 47 U.S.C. 312. By whom. If a television broadcast station believes that a satellite carrier has retransmitted its broadcast station's signal to any person in the local market of such station in violation of 47 U.S.C. 325 (b)(1), the station may file a complaint with the Commission under this section. (a) The following format shall be used for complaints of this type:
Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Complainant, v. Defendant File No. (to be inserted by the staff) Complaint To: The Commission. The complainant (here insert the name, address, and call letters of the complaining television broadcast station) avers that: On (here insert the dates upon which the alleged transmission occurred), retransmission of the broadcast television station's signal was made by (insert here name and address of the satellite carrier) to (here insert the street address of at least one person in the local market of the station to whom the alleged retransmission was made). The complainant avers that (here insert a statement that the retransmission was not expressly authorized by the television broadcast station), and requests that the appropriate relief be granted by the Commission, as provided by the pertinent provisions of the Communications Act of 1934, as amended, and the Commission's Rules. Date: (here insert the name and address of counsel for the complaining station). (b) A complaint lacking any of the foregoing information shall be dismissed by the FCC without prejudice to the complaining station. (c) Additional information may be provided, and, where applicable, should conform to the requirements set forth in §§1.48 through 1.52 of the Commission's rules. (a) General. Pursuant to 47 U.S.C. 325(e), for purposes of any proceeding under this subsection, any satellite carrier that retransmits the signal of any broadcast station shall be deemed to designate the Secretary of the Commission as its agent for service of process. (b) Specific. (1) A television broadcast station shall serve a satellite carrier with a complaint concerning an alleged violation of 47 U.S.C. 325(b)(1) by filing the original and two copies of the complaint on the Secretary of the Commission and serving a copy of the complaint by means of two commonly used overnight delivery services, each addressed to the chief executive officer of the satellite carrier at its principal place of business and each marked “URGENT LITIGATION MATTER” on the outer packaging. Service shall be deemed complete one business day after a copy of the complaint is provided to the delivery services for overnight delivery. On receipt of a complaint filed by a television broadcast station under this subsection, the Secretary of the Commission shall send the original complaint by United States mail, postage prepaid, receipt requested, addressed to the chief executive officer of the satellite carrier at its principal place of business. (2) Satellite carriers shall provide the name, address, and telephone number (including area code) of their chief executive officers to the Secretary of the Commission, no later than April 15, 2000. Satellite carriers shall update this information, as necessary, in the event that the identity or the address of their respective chief executive officers changes. These updates shall be made by United States mail within seven (7) days of such changes. Complaints sent to the last known address shall be deemed served if the satellite carrier fails to notify the Secretary of the Commission in accordance with this provision. Within five (5) business days after the date of service, without regard to §1.4 of this part, the satellite carrier shall file its answer with the Commission, and shall contemporaneously serve the answer upon counsel designated in the complaint, at the address listed for such counsel in the complaint. Service of the answer shall be made by use of one commonly used overnight delivery service and by the United States mail. (a) The defenses listed in paragraphs (a)(1) through (a)(4) of this section, are the only defenses available to a satellite carrier against which a complaint under this section is filed. (1) The satellite carrier did not retransmit the television broadcast station's signal to any person in the “local market” of the television broadcast station, as that term is defined in 17 U.S.C. 122(j) (Designated Market Area as determined by Nielsen Media Research and county containing the station's community of license), during the time period specified in the complaint; (2) The television broadcast station had, in a writing signed by an officer of the television broadcast station, expressly authorized the retransmission of the station by the satellite carrier to each person in the “local market” of the television broadcast station, as that term is defined in 17 U.S.C. 122(j), to which the satellite carrier made such retransmissions for the entire time period during which it is alleged that a violation of 47 U.S.C. 325 (b)(1) has occurred; (3) The retransmission was made after January 1, 2002, and the television broadcast station had elected to assert the right to carriage under 47 U.S.C. 338 as against the satellite carrier for the relevant period; or (4) The television broadcast station whose signal is being retransmitted is a noncommercial television broadcast station. (b) [Reserved] Each day of retransmission without consent of a particular television broadcast station to one or more persons in the local market of the station shall be considered a separate violation of 47 U.S.C. 325(b)(1). With respect to each alleged violation, the burden of proof shall be on a television broadcast station to establish that the satellite carrier retransmitted the station to at least one person in the local market of the station on the day in question. The burden of proof shall be on the satellite carrier with respect to all defenses other than the defense under §1.6005(a)(1). (a) In General. Within forty five (45) days after the filing of a complaint, the Commission shall issue a final determination in any proceeding brought under this subsection. The Commission's final determination shall specify the number of violations committed by the satellite carrier. The Commission shall hear witnesses only if it clearly appears, based on the written filings by the parties, that there is a genuine dispute about material facts. Except as provided in the preceding sentence, the Commission may issue a final ruling based on the written filings by the parties. (b) Discovery. The Commission may direct the parties to exchange pertinent documents, and if necessary, to take prehearing depositions, on such schedule as the Commission may approve, but only if the Commission first determines that such discovery is necessary to resolve a genuine dispute about material facts, consistent with the obligation to make a final determination within forty five (45) days. In this connection, the Commission may utilize the discovery or other evidentiary procedures set forth in §§1.311 through 1.364 of the Commission's rules. If the Commission determines that a satellite carrier has retransmitted the television broadcast station to at least one person in the local market of such station and has failed to meet its burden of proving one of the defenses under §1.6005 (a)(2) through (a)(4) with respect to such retransmission, the Commission shall: (a) Make a finding that the satellite carrier violated 47 U.S.C. 325(b)(1) with respect to that station; and (b) Issue an order, within forty-five (45) days after the filing of the complaint, containing— (1) A cease-and-desist order directing the satellite carrier immediately to stop making any further retransmissions of the television broadcast station to any person within the local market of such station until such time as the Commission determines that the satellite carrier is in compliance with 47 U.S.C. 325(b)(1) with respect to such station; (2) If the satellite carrier is found to have violated 47 U.S.C. 325(b)(1) with respect to more than two television broadcast stations, a cease-and-desist order directing the satellite carrier to stop making any further retransmission of any television broadcast station to any person within the local market of the stations identified in the cease-and-desist order, until such time as the Commission, after giving notice to the station, determines that the satellite carrier is in compliance with 47 U.S.C. 325(b)(1) with respect to such stations; and (3) An award to the complainant of that complainant's costs and reasonable attorney's fees. Such award shall be made only after the complainant submits appropriate documentation in support of its request. (c) Any cease-and-desist order issued hereunder shall include a statement of findings and the grounds therefor, shall specify the effective date of the order, and shall be served by the Commission upon the satellite carrier to which such order is directed. Any satellite carrier found to have violated Section 47 U.S.C. 325(b)(1) shall, upon receipt of the cease-and-desist order, immediately take all necessary steps to comply with the statute. Within two (2) days of receipt of the cease-and-desist order, the satellite carrier shall notify the Secretary of the Commission of steps taken to comply with the statute by written submission. The submission certified by the satellite carrier's chief executive officer shall also contain a copy of the pertinent cease-and-desist order, and shall be delivered to the Secretary of the Commission by means of one commonly used overnight delivery service, in addition to a copy delivered by United States mail. Effective Date Note: At 65 FR 10721, Feb. 29, 2000, §1.6010 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. The rules in section 1.6000 through section 1.6009 shall become effective May 30, 2000. Section 1.6010 contains information collection requirements that are not effective until approved by the Office of Management and Budget. The effective date for this section will be announced by the Commission in the No complaint may be filed under this rule section after December 31, 2001. This rule subpart shall continue to apply to any complaint filed on or before such date. See 47 U.S.C. 325 (e)(12).
Title 47: Telecommunication
PART 1—PRACTICE AND PROCEDURE
Subpart U—Implementation of Section 325(e) of the Communications Act: Procedures Governing Complaints Filed by Television Broadcast Stations Against Satellite Carriers for Retransmission Without Consent
§ 1.6000 Purpose.
§ 1.6001 Retransmission consent complaint procedures.
§ 1.6002 Form and content.
§ 1.6003 Service requirements.
§ 1.6004 Answers.
§ 1.6005 Exclusive defenses.
§ 1.6006 Counting of violations.
§ 1.6007 Burden of proof.
§ 1.6008 Determinations.
§ 1.6009 Relief.
§ 1.6010 Reporting of remedial measures.
§ 1.6011 Effective date.
§ 1.6012 Sunset provisions.
