The FCC has begun to address some of the regulatory logistics associated with satellite importation of distant signals into local TV markets.
Current regulatory regime
In December 2004, Congress enacted the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). Among other things, SHVERA amended Section 339 of the Communications Act to permit satellite carriers to import distant digital network TV signals under certain circumstances.
As is the case with satellite importation of analog distant network signals, one key issue is whether the subscriber is eligible to receive such a service. Eligibility is based on whether the subscriber is served by the signal of the local affiliate of the particular network. If the subscriber already receives the local signal, then ordinarily the subscriber would not be eligible to receive a distant network signal. If the customer is located within the local affiliate's market area, the satellite carrier may not provide distant signal service. And in order to receive such service, the customer (or the carrier on behalf of the customer) must seek a waiver from the local affiliate.
If the local affiliate refuses to grant the waiver, then the customer may request signal testing to see if the actual signal of the local affiliate covers the subscriber's location. If such testing shows that the subscriber does not receive the local affiliate's signal, then the subscriber may receive distant signal service from the satellite carrier. In the case of a subscriber seeking importation of a distant digital signal, the testing would determine if the actual over-the-air digital signal of the local network station meets certain technical standards in the FCC's rules. Beginning April 30, subscribers could request a waiver with respect to a local network station within the top 100 television markets or beginning July 15, 2007, for any other full-power local network affiliate.
Measuring DTV signals
The FCC proposed to use technical standards in taking measurements of digital TV signals at a subscriber's location. The Notice of Proposed Rulemaking seeks comments on whether the receive antenna should be a standard one or one with a front-to-back gain ration consistent with DTV planning factors.
With respect to measurement procedures, the notice proposes measuring the integrated average power over the signal's entire 6MHz bandwidth. The proposal also seeks comments on what to do about a possible lack of qualified, independent testers to perform signal strength tests.
Waivers for DTV signals
The FCC also released an order addressing requests from stations for rule waivers that would prohibit satellite subscribers from being eligible for exemptions from the distant signal importation ban based on the lack of digital signals at their viewing locations. Stations in the top-100 markets had to file such waiver requests by April 30 of this year, while other stations have until Feb. 15, 2007. This waiver procedure was intended to assist stations that were not transmitting their digital signal at full power, primarily due to causes that are not the station's fault. Such stations would receive a six-month reprieve from the obligation to either participate in signal tests or allow local viewers to receive imported digital signals from an affiliate of the same network. These waivers are renewable upon a further showing.
Under SHVERA, a waiver request must provide clear and convincing evidence that the station's digital signal coverage is limited due to zoning impediments, force majeure, reduction in signal strength due to side-mounting, or no availability of satellite-delivered network signals in the market. Under no circumstances may a waiver be based upon financial exigency.
The FCC granted half of the already-pending waiver requests, based on detailed and specific showings of facts under the first three criteria listed above. Almost all of the waiver requests that the FCC denied were those filed under the fourth criterion (i.e., station's digital signal coverage is decreased because of side-mounted antenna). In these cases, the FCC found that the licensees had failed to demonstrate by clear and convincing evidence that the use of a side-mounted antenna was the cause or resulted in a substantial decrease in the station's digital signal coverage area.
Harry C. Martin is the past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC.
Oct. 2 is the filing deadline for renewal applications and EEO program reports for TV stations in Alaska, Hawaii, Oregon, Washington and the Pacific Islands. This deadline also applies to TV translators, LPTV and Class A stations in those states, although translators and LPTV stations that do not originate programming do not have to file EEO reports.
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