Satellite Broadcasting & Communications Ass'n v. FCC

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Satellite Broadcasting & Communications Ass'n v. FCC
Seal of the United States Court of Appeals for the Fourth Circuit.svg
Court United States Court of Appeals for the Fourth Circuit
Full case name Satellite Broadcasting and Communications Association v. FCC
ArguedSeptember 25, 2001
DecidedDecember 7, 2001
Citation275 F.3d 337
Court membership
Judges sitting Hiram Emory Widener Jr., Paul V. Niemeyer, M. Blane Michael
Case opinions
MajorityMichael, joined by a unanimous court
Laws applied
Satellite Home Viewer Improvement Act of 1999 (SHVIA)

Satellite Broadcasting and Communications Association v. FCC, 275 F.3d 337 (4th Cir. 2001) [1] [2] was a case decided by the United States Court of Appeals for the Fourth Circuit. Congress required satellite television carriers to carry all requesting local broadcast stations in the market where the carrier voluntarily decides to carry one local station in order to, in part, preserve a multiplicity of local broadcast outlets for over-the-air-viewers who do not subscribe either to satellite or cable service. [3]

Contents

Background

Satellite Broadcasting and Communications Association

"We are delighted that the SBCA Board of Directors has agreed to form a Foundation. Our industry has a presence in every state," said SBCA Executive Director, Joe Widoff. "Workers and their families live in thousands of communities throughout the country and the goal of the Foundation is to help meet the needs of these communities in meaningful ways." [4]

FCC

Detail

The Fourth Circuit acknowledged that both DBS and cable television operators engage in speech protected by the First Amendment when making channel and content selections. However, the court endorsed the holding in Turner that preserving "free" broadcast television constituted a content-neutral measure that imposes only incidental burdens on speech sufficient to pass muster using intermediate First Amendment scrutiny. The court held that imposing mandatory carriage requirements on satellite television operators furthers an important, narrowly drawn governmental interest:

  1. preserving a multiplicity of local broadcast outlets; and
  2. preventing the grant of a compulsory copyright license from undermining broadcast television competition, an outcome that could occur should DBS operators deprive their customers access to non-network broadcast stations. [5]

Congress Options

The Supreme Court has said that the "principal inquiry in determining content neutrality...is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys". This inquiry involves two steps. [6]

Each satellite carrier providing, under section 122 title 17, secondary transmissions to subscribers located within the local market of a television broadcast station of a primary transmission made by that station shall carry upon request the signals of all television broadcast stations located with in that local market. [7]

we disagree. SHVIA's carriage [8] obligations are not triggered simply by the decision to carry a local broadcast station in a given market. instead, they are triggered by the decision to carry that station by making use of the 122 license. A satellite carrier that privately negotiates the required copyright clearances can retransmit the signal of a local broadcast station without incurring any carriage obligations, but a carrier that retransmits the same signal by means of the statutory copyright license must comply with the carry one, carry all rule. [9] thus, the burdens of the rule do not depend on a satellite carrier's choice of content, but on its decision to transmit that content by using one set of economic arrangements rather that another. Accordingly, we hold that the carry one, carry all rule is content neutral on its face [10]

Congress Decision

Congress chose the second because it feared that cherry picking of major network affiliates within local markets would make it more difficult for non-carried stations in those markets to reach their audiences

Although the conferees expect that subscribers who receive no broadcast signals at all from their satellite service may install antennas or subscribe to cable service in addition to satellite service, the Conference Committee is less sanguine that subscribers who receive network signals and hundreds of other programming choices from their satellite carrier will undertake such trouble and expense to obtain over-the-air signals from independent broadcast stations [13]

Difference between Cable and Satellite

The proposed legislation violates federal law

Additionally, this 10-day notice period runs afoul of federal law as it is a restriction that unreasonably delays or prevents installation, maintenance or use of satellite services. The FCC derived its authority to create the OTARD Rule via the Telecommunications Act of 1996 ("1996 Act"). In Section 207 of the 1996 Act, Congress directed the FCC to "promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or digital broadcast satellite services." [16]

Implementation

Satellite Home Viewer Extension and Reauthorization Act [17]

Historical Introduction

Three statutory licenses in the Copyright Act ("Act") govern the retransmission of distant and local over-the-air broadcast station signals. There is one statutory license applicable to cable television systems and two statutory licenses applicable to satellite carriers.which are license 111, license 109, and license 120 [18]

Then and Now

  • Recent changes in the video programming marketplace and in video distribution technology are shaking the foundations of the communications industry and the law. The Internet, digital television, and video services using Internet Protocol, have changed the way individuals receive and consume all types of media. Traditional cable and satellite services are losing subscribers and market share to these newer technologies. There is also less interest in programming retransmitted over distant broadcast signals as a result of these new platforms and systems. These fundamental shifts call into question the appropriateness of the current statutory licensing systems in the Act. [19]
  • Broadcast television stations are changing the scope and breadth of their services, too. Digital television technology allows broadcasters to provide more programming choices to over-the-air viewers as well as to cable and satellite subscribers. Digital television stations now provide a mix of high definition and standard definition broadcast signals and may possibly offer interactive television services in the future. More importantly, such stations are able to "multicast" by splitting their digital signals into smaller streams each of which may be independently programmed. It is axiomatic that the digital television transmissions are much different than traditional analog transmissions. For that reason, the existing distant signal licenses, whose foundations were built upon analog broadcast technology, cannot readily accommodate the vibrant capabilities of digital television.

Extended Signal Importation Opportunities

SHVERA provides DBS operators with better opportunities to import distant broadcast signals into markets lacking "local-into-local [20] " delivery of nearby signals and localities unserviced by terrestrial broadcast network signals. local-into-local means that if a satellite customer lives in an area where the satellite company has decided to provide the service, the customer can receive local TV channels. If the company decides that it will not provide local broadcast stations in an area, the consumer may still receive local broadcast stations by using an antenna or basic cable service. [21]

Retransmission of Distant Digital Network Signals

SHVERA also offers DBS operators the opportunity to deliver distant digital network signals into "digital white areas" where the nearest network broadcaster does not currently offer digital content, or where adequate off-air reception does not occur.

Summary

The satellite and cable regulatory frameworks attempt to balance a number of longstanding, but potentially conflicting, public policy goals—most notably, localised, competitive provision of video services, support for the creative process, and preservation of free over-the-air broadcast television. [22] They also attempt to balance the interests of the satellite, cable, broadcast, and program content industries. Congress incorporated the sunset provisions in SHVERA [23] because of its concern that market changes could affect these balances. The statutory provisions distinguish between the retransmission of local signals—the broadcast signals of stations located in the same local market as the subscriber—and of distant signals. Provisions block or restrict the retransmission of many distant broadcast signals in order to protect local broadcasters from competition from distant signals and to provide them with a stronger negotiating position vis-à-vis the satellite and cable operators, with the intention of fostering local programming. But the regulatory framework also recognizes that U.S. households benefit from the receipt of certain distant broadcast signals and includes explicit retransmission and copyright rules for these.

Ruling

Satellite Home Viewer Improvement Act of 1999 [24]

This Act modified the Satellite Home Viewer Act of 1988. SHVIA permits satellite broadcasters to provide local broadcast TV signals to all their subscribers in that local TV station's market. SHVIA also permits satellite broadcasters (satellite broadcasters. 2000–2001) to provide "distant" or national broadcast programming to subscribers. SHIVA Fact Sheet [25]

Famous Quote The Act also imposes a "carry one, carry all" rule, which was designed to "preserve free television for those not served by satellite or cable and to promote widespread dissemination of information from a multiplicity of sources."

Carry one.carry all [26] The National Association of Broadcasters, which did not return requests for comment, is probably going to be unhappy because the FCC plans to allow DirecTV and Dish to down convert broadcasters' HD signals to a less pristine picture resolution for several years. The satellite giants-which combined serve about 30 million pay-TV subscribers-convinced FCC officials that they lacked the channel capacity to provide every eligible station in HD immediately. They insisted that they needed several years to prepare for a full HD carriage requirement. HD signals stress capacity because they take up much more bandwidth than digital signal transmitted at lower resolution. The FCC's HD rules for satellite were far more lenient than the ones originally proposed by FCC chairman Kevin Martin. He started off at full HD carriage in February 2009, coupled with a market-by-market waiver process. Martin scuttled his original plan after DirecTV and Dish Network complained that it was draconian and damaging to their ability to compete with cable. Instead, the FCC decided to give DirecTV and EchoStar until 2013 to carry all stations in HD within any market where they have elected to carry any station's signal in HD format. The "carry one, carry all in HD" principle kicks in when a satellite company starts carrying local signals in HD. DirecTV's decision to carry local TV signals in HD does not force Dish to do likewise in the same market.

Circuit Judge [27]

Rogers, Circuit Judge: Following enactment of the Telecommunications Act of 1996, the Federal Communications Commission promulgated a rule prohibiting restrictions on certain over-the-air reception devices ("OTARD"). [28] The rule invalidated

[a]ny restriction, including but not limited to any state or local law or regulation, including zoning, land-use or building regulation, or any private covenant, homeowners' association rule or similar restriction on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest in the property that impairs the installation, maintenance, or use of [antennas that are designed to receive direct broadcast satellite service, video programming services via multipoint distribution services, or television broadcast signals]...

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References

  1. ↑ Satellite Broadcasting & Communications Ass'n v. FCC, 275F.3d337 (4th Cir.2001).
  2. ↑ Stuart Minor Benjamin, Douglas Gary Lichtman, Howard A. Shelanski, Telecommunication Law and Policy, Feb, 2001
  3. ↑ A.Cherry, Barbara (September 2002). "Utilizing "Essentiality of Access" Analyses To Mitigate Risky, Costly and Untimely Government Interventions In Converging Telecommunications Technologies and Markets".{{cite journal}}: Cite journal requires |journal= (help)
  4. ↑ Hager, Amy (March 15, 2011). "SBCA Announces the SBCA Foundation" . Retrieved March 15, 2011.
  5. ↑ Rob Frieden, Analog and Digital Must-Carry Obligations of Cable and Satellite Television Operators in the United States, Pennsylvania State University
  6. ↑ Stuart Minor Benjamin, professor, Duke University School of Law, Telecommunication Laws and Policy, Oct, 2006
  7. ↑ Reardon, Marguerite. "Verizon CEO slams Net neutrality". http://news.cnet.com/8301-30686_3-10379932-266.html. Retrieved 2 May 2011
  8. ↑ International telecommunication union, John wily, Sept,10,2002
  9. ↑ Philip J. Weiser, University of Colorado, Telecommunication, Oct,2002
  10. ↑ James B. Speta, Northwestern Law School, Telecommunication Laws and Policy, Oct, 2002
  11. ↑ local broadcasters Cable television fact sheet, Cable Carriage of Broadcast Stations
  12. ↑ Howard A. Shelanski Georgetown Law School, Telecommunication policy, Washington D.C., Sept, 2001
  13. ↑ 4th Cir. 2001
  14. ↑ 275.F.3d. 337-US, January 31, 2003
  15. ↑ http://pacer.ca4.uscourts.gov/opinion.pdf/011151.P.pdf Feb 13, 2002 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
  16. ↑ http://www.sbca.com/assets/pdf/SBCA-Testimony-CT-Feb172009.pdf Testimony of Lisa V. McCabe Director, Public Policy and Outreach, Feb 17, 2009
  17. ↑ Satellite Home Viewer Extension and Reauthorization Act [section] 110 report: a report of the Register of Copyrights, February 2006 / U.S. Copyright Office.
  18. ↑ United States. Congress. House. Committee on the Judiciary, Satellite Home Viewer Extension and
  19. ↑ Federal Communications Commission, FCC ISSUES NOTICE REGARDING MEASUREMENT STANDARDS FOR DIGITAL TELEVISION SIGNALS PURSUANT TO SATELLITE HOME VIEWER EXTENSION AND REAUTHORIZATION ACT OF 2004, US Fed News Service, Including US State News, 2006
  20. ↑ "Receiving Television Broadcast Stations from Satellite TV Companies". May 19, 2011.
  21. ↑ FCC Document [ dead link ]
  22. ↑ Charles B. Goldfarb, Reauthorizing the Satellite Home Viewing Provisions in the Communications Act and the Copyright Act: Issues for Congress, Specialist in Telecommunications Policy February 2, 2010
  23. ↑ http://ipmall.info/hosted_resources/crs/R40624_020210.pdf Charles B. Goldfarb, SHRDDNS Report
  24. ↑ http://www.fcc.gov/mb/shva/shvia.pdf at 106th Congress First Session, in the state of united states, Nov 17th, 1999
  25. ↑ http://www.fcc.gov/mb/policy/shvera.doc information sheet, Oct, 2006
  26. ↑ Ted Hearn, Plan Allows Satellite Giants To Down Convert HD Signals For Years, Multichannel News, 3/19/2008
  27. ↑ D.C Court Appeals Ruling, United States Appeals Court, For the District of Columbia, Argued March 5, 2001
  28. ↑ http://www.neighborhoodlink.com/article/Association/FCC_Satellite_Antenna_Regulations , FCC Satellite and Antenna Regulations-the OTARD Rule, Oct, 2003
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