[James Long]

Satellite Consumer Protection Act of 2006 (Introduced in Senate)
S 4067 IS

109th CONGRESS

2d Session

S. 4067

To provide for secondary transmissions of distant network signals for private home viewing by certain satellite carriers.

IN THE SENATE OF THE UNITED STATES

November 16, 2006​

Mr. LEAHY (for himself, Mr. ALLARD, Mr. ROCKEFELLER, Mr. BYRD, Mr. INOUYE, Mr. SALAZAR, Mr. ROBERTS, Ms. SNOWE, Mr. PRYOR, Mr. ENZI, Mrs. CLINTON, and Mr. ENSIGN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL​

To provide for secondary transmissions of distant network signals for private home viewing by certain satellite carriers.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,​

SECTION 1. SHORT TITLE.

This Act may be cited as the `Satellite Consumer Protection Act of 2006'..AEMD23AF​

SEC. 2. LIMITATIONS ON EXCLUSIVE RIGHTS: SECONDARY TRANSMISSIONS OF DISTANT NETWORK SIGNALS FOR PRIVATE HOME VIEWING BY CERTAIN SATELLITE CARRIERS.

(a) IN GENERAL- Chapter 1 of title 17, United States Code, is amended by inserting after section 119 the following:​

`Sec. 119A. Limitations on exclusive rights: secondary transmissions of distant network signals for private home viewing by certain satellite carriers

`(a) Statutory License Granted-

`(1) IN GENERAL- Notwithstanding any injunction issued under section 119(a)(7)(B), a satellite carrier found to have engaged in a pattern or practice of violations pursuant to section 119(a)(7)(B) is granted a statutory license to provide a secondary transmission of a performance or display of a work embodied in a primary transmission made by a network station in accordance with the provisions of this section.

`(2) SIGNIFICANTLY VIEWED SIGNALS- Under the statutory license granted by paragraph (1), a satellite carrier may provide a secondary transmission of a primary transmission made by a network station as provided in paragraph (2)(C) or (3) of section 119(a).

`(3) Distant signals-

`(A) IN GENERAL- Under the statutory license granted by paragraph (1), a satellite carrier may provide a secondary transmission of a performance or display of a work embodied in a primary transmission made by a network station, subject to the limitations of subparagraphs (B) and (C), of not more than 1 network station in a single day for each television network.

`(B) NON-LOCAL-INTO-LOCAL MARKETS- A satellite carrier may provide a secondary transmission under subparagraph (A) in a local market (as defined in section 122(j)) in which a satellite carrier does not currently provide, and has not ever provided, a transmission pursuant to a statutory license under section 122, if the satellite carrier--

`(i) complies with the terms and conditions for a statutory license under section 119; and

`(ii) certifies to the Copyright Office within 30 days after the date of enactment of the Satellite Consumer Protection Act of 2006, or before initiating service to a subscriber under this section, whichever is later, that all subscribers receiving secondary transmissions pursuant to a statutory license under this section in that local market reside in unserved households, as determined under section 119(a)(2)(B)(ii); and

`(iii) deposits, in addition to the deposits required by section 119(b)(1), a duplicate payment with the Register of Copyrights in the same amount for each network station in the local market affiliated with the same network as the network station being imported.​

`(C) SHORT MARKETS- In a local market (as defined in section 122(j)) in which a network station (as defined in section 119(d)) affiliated with the ABC, CBS, NBC, or Fox television network is not licensed by the Federal Communications Commission, a satellite carrier may provide secondary transmission under subparagraph (A) of the primary signals of a network station affiliated with that network, if the satellite carrier--

`(i) complies with the terms and conditions for a statutory license under section 119; and

`(ii) certifies to the Copyright Office within 30 days after the date of enactment of the Satellite Consumer Protection Act of 2006, or before initiating service to a subscriber under this section, whichever is later, that all subscribers receiving secondary transmissions pursuant to a statutory license under this section in that local market reside in unserved households, as determined under section 119(a)(2)(B)(ii).​

`(D) Short market exception-

`(i) IN GENERAL- Notwithstanding subparagraph (C), a satellite carrier may not provide secondary transmission of the primary signals of a network station under that subparagraph if secondary transmission of those signals could be provided under paragraph (2).

`(ii) DISCONTINUANCE OF SECONDARY TRANSMISSION WHEN PRIMARY SIGNAL BECOMES AVAILABLE- Notwithstanding subparagraph (C), a satellite carrier that has been providing secondary transmission of the primary signals of a network station under subparagraph (C) in a local market may not provide such secondary transmission in that local market more than 30 days after the date on which a network station affiliated with the same network begins to broadcast or rebroadcast the basic programming service of that network in that local market and could be carried pursuant to a license under section 122.​

`(b) DISTRIBUTION OF DUPLICATE DEPOSIT AMOUNTS- The Copyright Royalty Judges shall authorize the Librarian of Congress to distribute semiannually amounts received by the Register of Copyrights as deposits under subsection (a)(3)(B)(iii), after deducting the reasonable costs incurred by the Copyright Office and the Copyright Royalty Judges under this section, in accordance with a process that the Copyright Royalty Judges may prescribe by regulation, to a network station (as defined in section 119(d)(2)) affiliated with the network whose signals are being carried under this section to a community within the local market (as defined in section 122(j)) in which such signals are being provided under this section.

`(c) Statutory Damages-

`(1) IN GENERAL- The violation by a satellite carrier of subsection (a) is actionable as an act of infringement under section 501 and is subject to statutory damages equal to $100 per month multiplied by the number of subscribers with respect to which the violation was committed for each month during which the violation was committed (treating each month of a continuing violation as a separate violation).

`(2) PETITION- A petition for statutory damages may be made to the Copyright Royalty Judges, pursuant to such rules as may be prescribed by the Copyright Royalty Judges by regulation. In any proceeding under this section, the satellite carrier shall have the burden of proving that its secondary transmission of a primary transmission by a network station is to a subscriber who is eligible to receive the secondary transmission under this section.

`(3) ESCROW- As a condition of using the statutory license under subsection (a), a satellite carrier must deposit the sum of $20,000,000 in escrow with the Copyright Office. The Copyright Office shall deposit the escrow funds in an account in the Treasury of the United States, in such manner as the Secretary of the Treasury directs, and invested in interest-bearing securities of the United States with any interest from such investment to be credited to the account. The Copyright Royalty Judges shall have exclusive jurisdiction to determine liability for and entitlement to the statutory damages owed to the petitioning party in accordance with a process to be prescribed by regulation and they shall authorize the Librarian of Congress to distribute funds from the escrow account to satisfy this determination. After all petitions under this section against a satellite carrier have been resolved, any amount remaining in the satellite carrier's escrow account after February 17, 2009, after deducting the reasonable costs incurred by the Copyright Office and the Copyright Royalty Judges under this section, shall be returned to the satellite carrier.

`(4) JUDICIAL REVIEW- A satellite carrier may seek judicial review of all determinations of the Copyright Royalty Judges on a consolidated basis in a single petition of appeal to the United States Court of Appeals for the District of Columbia Circuit within 30 days after the later of--

`(A) February 17, 2009; or

`(B) the date on which all amounts in the escrow account have been distributed or returned.​

`(d) SUNSET- This section shall not apply after February 17, 2009.'.​

(b) CONFORMING AMENDMENT- The chapter analysis for chapter 1 of title 17, United States Code, is amended by inserting after the item relating to section 119 the following:

`119A. Limitations on exclusive rights: secondary transmissions of distant network signals for private home viewing by certain satellite carriers.'.​

 

[James Long]

Courtesy of the US Government ... Now we know exactly what was proposed.

 

[juan ellitinez]

:lol: Now if we could only decipher what it means!!!

 

[James Long]

The basics ... for "any" carrier that has a permanent injunction against them (who would that be? ):

Significantly Viewed not affected - these are the close distants from neighboring markets.

ONE affiliate per network as a distant - poorly written, as it isn't "a customer can only subscribe to one distant per network" but that the carrier cannot OFFER more than one affiliate. (17 USC 119 allows two affliates per network per qualified customer.)
- Non LIL markets (no locals offered) - payment to the local network affiliate in that market to match the 17 USC 119 payments. Another legal issue: "complies with the terms and conditions for a statutory license under section 119" should include the terms that lead to a permanent injunction. How can one comply if they have already proven non-compliance?
- Short markets (no local of that affiliate) - distants allowed as per 17 USC 119 except there is no local affiliate to pay and if there is a SV station available it must be carried instead of a distant.

Damages: Big money ---- $100 per month per customer in violation. Burden of proof remains on the satellite carrier (just like with 17 USC 119).

Deposit: $20 MILLION on hold in case there are violations.

Expiration: This all ends February 17, 2009 (when NTSC/Analog locals end).

Not bad, but no improvement over what D* can do and no benefit to any carrier that has not violated the law. And they forgot the "special case" stations added with SHVERA in 2004. That will have to be amended in.

 

[joblo]

The special cases are included by the paragraph 119(a)(2)(C) reference in 119A(a)(2).

These cover WMUR for northern NH, Burlington for southern VT, Jackson for southwest MS, and four counties in Oregon.

Edit:

Significantly Viewed not affected

Just to clarify, this permits SV to continue (or be resumed.)

Nice summary, James.

 

[James Long]

The special cases are included by the paragraph 119(a)(2)(C) reference in 119A(a)(2).

Good. Referred to "in code" instead of in clear words. :lol:

I was hoping for something more sweeping --- such as moving SV (and the special cases) to 17 USC 122 with other 'local' stations (cable calls them locals, why can't satellite?). I was also hoping for all Grade B stations to be added to SV. The proposed 17 USC 119A is a band-aid. The real problem still needs to be fixed.

 

[joblo]

I agree, James; this legislation leaves much to be desired. It's absolutely a quick and dirty band-aid and nothing more.

There's no RV provision, and no provision for digital white areas, so we can basically forget about digital distant service if this thing passes.

Honestly, I think we'll be better off in the long run if this bill goes down in flames.

 

[Darkman]

OK.. my English is poor for this kind of document.. hehe..

So to simplify this.. - what's the bottom line.. - Distants are saved.. or NOT.. or NOT yet?

 

[joblo]

Basically, Darkman, if the bill passes (and that's a big if), it will save one distant station per net for people in white areas who have absolutely no other access to that net.

 

[Darkman]

OK then.. thanks

 

[James Long]

There's no RV provision, and no provision for digital white areas, so we can basically forget about digital distant service if this thing passes.

Honestly, I think we'll be better off in the long run if this bill goes down in flames.

I forgot about the RV'rs (sorry) ... but apparently Leahy did too.
This bill really needs to be refined.

 

[cj9788]

This bill sucks it does not help me out in the slightest! I live in a true white area and subed to DNS before SHEVRA so under that law I was able to keep my DNS and LiL. So much for the hopeing and waiting.

 

[Jocelyn]

I agree cj9788. It doesn't appear to help me either (unless those of you more familiar to all the language tell me different). I was subscribed to distant networks in 1999 due to a valid grade B waiver with E*. Appear to have been requalified in 2002/2003, and never changed/lost networks until earlier this month with the injunction.

James, am I reading the legislation correctly that no grandfathering is applicable?

Thanks. I am usually okay reading a certain amount of legalise, but I have to admit this is making my eyes cross!

 

[Greg Bimson]

No grandfathering available because Dish Network did not provide the courts with any proof that any of their subscribers were grandfathered. So, technically, Dish Network has no grandfathered subscribers.

 

[Link]

Will this legislation still possibly give E* the right to provide distants again--even though they are carrying NPS?

 

[James Long]

The legislation will open up some distants in certain circumstances.

 

[waltinvt]

There's also some talk that a few in congress want to add language to the Leahy bill that would better separate digital DNS qualification procedures from those currently in place for analog (something that was supposed to be done before this).

Their logic is if they make digital DNS more available to white area viewers, it may speed up the digital transition in areas where affiliates are dragging their feet.

IMO some in congress have got to be thinking ahead to the '08 elections and there's no way the impending analog cutoff deadline will not be a campaign issue. If they don't "smooth" things out with constituents between now and then, this whole thing could bite them in the butt - especially those that had anything to do with approving the digital transition legislation in the first place.

 

[boylehome]

I received a letter from my Congressman today. It pretty much rehashed his previous information. He did state that, "I believe this injunction went too far and effectively punishes hundred of thousands of consumer in remote rural areas who have done nothing illegal." He stated how there premiliminary effort to try rectify failed as they didn't have enough time to passing legislation quickly due to Congress's adjournment. He said that he will continue to work for a legislative resolution in December, "in hope that service can be restored for the innocent consumer affected by the injunction." This was from Congressman Wally Herger 2nd District, California.

 

[Jocelyn]

Greg, (or anyone able to help) this is my question. How do I get proof from E* of my valid grade B waivers? When I called them they said they had no documents to give me. Do I have to contact the networks? To whom would I speak? Would it be tied to my address as opposed to name?

Since E* is now "advertising" (for lack of a better term,) that All American Direct is a possibility for receiving DNS, I assume I need to somehow get them this waiver situation information.

Wouldn't it seem reasonable that E* would have some sort of paper trail of the 1999 signal test? It didn't pass the smell test to be told they have no record of it other than their "note" on the computer about it.

 

[James Long]

Waivers are not transferable. You need to request new waivers via your new distants carrier, "whomever that may be".

BTW: One of the issues in the case against E* was their poor record keeping. They failed to present the court with a list of grandfathered customers. It is likely that they failed to keep track of waivers as well. They expected the networks/affilates to trust them when it came to their claim that all of their customers were eligible - even though it was proven several times that E*'s idea of eligible was not the same as written in law.