Posted on November 24, 2010 by Brendan Holland

FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)

Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday's flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don't have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress's intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.

The next two items address the signal prediction and measurement rules, which guide determinations as to whether or not a particular location receives an adequate digital signal.  The reception of such a signal is the crux of the determination of whether a particular household is served or unserved, in which case it is eligible to receive distant signals.  Specifically, the Commission adopted a point-to-point predictive model for determining reception of an over-the-air DTV of a suitable strength at a particular location.  As proposed, the predictive model for digital signals is based on the current model used for predicting reception of analog signals.  And settling one of the main issues up for debate in this area, the Commission decided to retain the use of an outdoor receiving antenna as part of the predictive model, declining to change its rules to contemplate an indoor antenna. 

In addition, in the event that it becomes necessary to measure the field strength of a digital television signal, the Commission's second item updates the Commission's rules to address the measurement of DTV signals.  As an initial matter, the Commission clarified that only in-market signals are relevant for determining whether a station is unserved.  Consistent with the approach for the predictive model, the Commission decided that the rules would continue to rely on an outdoor signal intensity test to determine eligibility to receive distant network signals.  The Commission found that no reliable indoor testing method had been proposed and sided with the broadcasters as it found the methodology proposed by the satellite carriers for indoor testing to be flawed.  The Commission also refrained from making any special provisions for multicast signals in either the predictive model or the field strength measurements, reasoning that the reception of any particular program stream is equally available in the station's signal.  A copy of the Order on the predictive reception model is available here, and the Order regarding the field strength measurements can be found here. 

Finally, in the last item in the bunch, the Commission released a Public Notice soliciting input regarding the reception and consumer use of signals from a community licensed to a different state than the subscriber.  STELA mandated that the FCC prepare a report to Congress by August 27, 2011, addressing the following issues:  1.) the number of households in a State that receive the signals of local broadcast stations assigned to a community of license located in a different State; 2.) to what extent do consumers in each local market have access to in-state broadcast programming over-the-air or from a multichannel video programming distributor; and 3.) are there alternatives to DMAs to define “local” markets that would provide consumers with more in-state broadcast programming.   Clearly, the answers to some of these questions could have a significant impact on local television stations, and interested parties should consider filing comments to provide the FCC with data on these issues.  The issue of access to "in-state" television stations, regardless of DMA boundaries, has come up in previous Congresses.  By this request for a Commission report, Congress could be fishing for a basis to change the rules governing the importation of signals and the determination of what signals a particular subscriber is eligible to receive.  Comments will be due 45 days after the item is published in the Federal Register, with Reply Comments due 30 days after that.  A copy of the Public Notice is available here. 

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Posted on August 1, 2010 by Brendan Holland

FCC Begins Proceedings to Implement Changes to Satellite Television Rules as a Result of STELA

The FCC has issued another in a series of Notice of Proposed Rule Makings aimed at implementing changes to the satellite television rules brought about by the recently enacted Satellite Television Extension and Localism Act of 2010 or "STELA".  In particular, by its NPRM issued last week, the Commission proposes a predictive model to provide presumptive determinations as to whether a household is considered unserved by a local network-affiliated digital station.  The model proposed is a point-to-point predictive model that will allow parties to determine whether a particular location has the ability to receive an over-the-air digital television broadcast signal at the intensity level necessary for service.  The predictive model proposed by the Commission is based on the current model used for predicting reception of analog signals, which uses Longley-Rice to predict signal propagation. 

In proposing this predictive model, the Commission tentatively concludes that the current standard for an outdoor antenna should continue be used in predicting digital television signal strengths at individual locations.  Although STELA revised the definition of an "unserved" household by changing the previous statutory reference to a "conventional, stationary outdoor rooftop antenna" to refer simply to the use of an "antenna" (as we mentioned in our earlier blog), the Commission's recent NPRM finds that the Act's specification of the DTV standard incorporated in the FCC's rules implies the use of an outdoor antenna to receive service.  Therefore, the predictive model the Commission proposes in its NPRM for determining reception of over-the-air digital television signals will continue to include the outdoor antenna standard (with some adjustments for height).  That said, and as the Commission itself notes, given that both of the satellite television providers are moving towards providing local-into-local service in most markets, the need for making determinations as to which households are "unserved" (and hence eligible to receive distant signals), is diminishing, although there are still a number of markets where such local-into-local service has yet to be implemented. 

Although STELA also narrowed the unserved standard to focus just on the reception of signals from an in-market affiliate (rather than simply any affiliate) and to address the notion of multicast digital streams, these changes do not impact the Commission's adoption of a predictive model, and thus were not explicitly addressed by the NPRM.  However, the Commission does include a Further Notice of Proposed Rule Making to address issues regarding on-site measurements in the event that a subscriber requests an on-site signal strength test following application of the predictive model.  Here again, the Commission proposes to limit measurements to outdoor antennas.  Comments on the Commission's proposed rule changes will be due 20 days after publication of the NPRM in the Federal Register, which, as of this writing, has not yet occurred. 

In addition, on July 23, 2010, the Commission issued another NPRM proposing changes to the Commission's Rules in order to mirror the changes contained in STELA regarding carriage of significantly viewed broadcast stations.  Specifically, STELA revised the statute to make it easier for satellite providers to offer significantly viewed stations in two ways:  First, by allowing delivery of a significantly viewed station in HD, provided that the satellite carrier also carries an HD signal from the local affiliate of the same network.  And second, by eliminating the requirement that a subscriber first receive the signal of the in-market station affiliated with the same network before it can receive the significantly viewed station, and requiring simply that the consumer subscribe to the local-into-local package, regardless of whether it contains an in-market affiliate of the same network.  The Commission's NPRM simply seeks to conform the FCC's Rules to these statutory changes.  As this earlier NPRM has been published in the Federal Register already, the deadline for Comments in the proceeding has been set for August 17, with Reply Comments due by August 27.   Comments can be filed through the Commission's Electronic Comment Filing System available here ECFS. 
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Posted on May 12, 2010 by Brendan Holland

Congress Passes STELA Act Extending Satellite Television Provisions and Changing the Definition of Unserved Household

On Wednesday, Congress passed the Satellite Television Extension and Localism Act of 2010 (STELA), which extends the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers who are unable to receive a signal from their local network affiliate.  The Act extends that blanket license for five more years until December 31, 2014.  Enactment of this bill (assuming President Obama signs it into law) will essentially extend the current blanket license scheme -- which previously expired on December 31, 2009, and which had been hastily extended temporarily a couple of times this year -- that governs the importation of distant signals.  Although the Act did not tackle many of the issues that had been raised and debated regarding satellite television and the rebroadcast of local station over the past six months, the final bill does allow Dish Network to get back into the business of rebroadcasting distant signals directly, instead of through a third party.  In exchange for this change in the law, Dish Network has committed to delivering local television signals into the remaining dozen or so markets in which it doesn't provide local-into-local service presently.  By virtue of this trade, Dish will likely become the first satellite television provider to offer local TV stations via satellite in all 210 markets in the country.

One subtle, but potentially very significant change for broadcast stations is the fact that the rule changes the definition of what constitutes an "unserved household".  Today, the law defines an unserved household (i.e., one that would be entitled to the importation of a distant signal) as:  "...a household that cannot receive, through the use of a conventional, stationary, outdoor rooftop receiving antenna, an over-the-air signal of a primary network station affiliated with that network..."  47 USC 119(d)(10)(A).  Now, however, the STELA Act changes that definition to simply state that an unserved household is one that:  "...cannot receive, through the use of an antenna, an over-the-air signal..."  Changing the definition to reception simply by "an antenna" instead of a "conventional, station, outdoor rooftop receiving antenna" would appear to mean that Congress has just extended the definition of unserved households to include those that cannot receive an adequate signal using rabbit ear antennas, not one that can't receive a signal using a 30-foot, fixed, outdoor antenna.  This could lead to a significant change in the provision of distant signals and potentially eat away at a station's protected service area.  How exactly this plays out and whether or not it allows the satellite providers to bring distant signals to households previously considered "served" remains to be seen. 

Beyond this change to the definition of an unserved household, the Act also revises language in the existing laws to reflect the transition from analog to digital by removing antiquated analog terms and substituting digital language.  In particular, the Act addresses multicast channels that provide network programming.  Specifically, the Act provides protection from duplicating distant network signals for those stations broadcasting Network affiliated multicast stations. Under the Act, network multicast channels in existence on March 31, 2010, will be entitled to program exclusivity protection beginning on October 1, 2010.  Network affiliated multicast channels that begin operation after March 31, 2010, but before December 31, 2010, will be protected from duplicating distant network signals for subscribers who sign up for service after December 31, 2010.  And stations commencing multicast of network signals after January 1, 2011 will be entitled to immediate protection.  This protection will apply with respect to new subscribers going forward, but existing subscribers are effectively grandfathered if they are already receiving a distant network signal from a network currently multicast by a local station.

While the Act does not address issues such as changes to the retransmission consent agreement process, it does make a number of small changes that could impact broadcasters in a big way.  So we will undoubtedly be talking about more of these issues in the future.     
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