A Notice of Inquiry from the Copyright Office was published today in the Federal Register, announcing the initiation of an inquiry into the effects of the 2019 changes in the statutory license under Section 119 of the Copyright Act for satellite television providers to retransmit local television stations. Pursuant to that license, a satellite carrier can retransmit local television stations into their own markets without having to negotiate with each copyright holder in the programming carried by local stations. Instead, the satellite carrier pays a license fee set by the statute and the proceeds of that license are redistributed through proceedings held by the Copyright Royalty Board to the copyright holders. As part of that license, satellite carriers can import signals of distant network television stations into a market in certain circumstances – circumstances that were greatly limited by the Satellite Television Community Protection and Promotion Act (the “STCPPA”) in 2019. As part of that statute, Congress instructed the Copyright Office to conduct this study to review the impact of the 2019 changes.
The 2019 changes eliminated the ability of satellite carriers to import distant network signals to households in a market where:
- The households could not receive a local over-the-air signal via an antenna;
- The household received a waiver from a local network affiliate to receive a distant signal;
- “Grandfathered” households that received distant signals on or before October 31, 1999; and
- Households eligible for a statutory exemption related to receiving “C-Band” satellite signals.
These exceptions were problematic to broadcasters as they introduced a distant network affiliate into a television market, encouraging viewers to watch that distant station at the expense of the local affiliate. Congress was concerned that these situations encouraged viewers to watch distant news rather than the local news and information provided by in-market stations. Many of these provisions were also hard to implement and enforce. For instance, the question of whether a household could receive an over-the-air signal could often be a contentious question. Waivers also were problematic, as a local station could feel pressure to give a waiver to a local resident to avoid bad will within the community. Thus, in 2019, all of these exceptions were abolished.
Distant signals can still be imported under the STCPPA into satellite markets in these limited situations:
- RVs and commercial trucks; and
- Subscribers located in “short markets.”
These exceptions were of less concern to broadcasters, as RVs and trucks are typically transitory visitors to a market. Short markets are ones without an affiliate of a certain network – so the importation of a distant signal would not compete with a local affiliate. Moreover, the ability of a satellite carrier to rely on these exceptions was further limited, as only a satellite carrier who provided local-into-local service (beaming though their satellite systems local television stations into their own markets) in all 210 television markets can rely on these exceptions.
The study initiated by the Copyright Office is to look at the results of the law. The Copyright Office seeks comments from interested parties and the public (and it is in fact sending a survey to certain satellite subscribers to see how they have been impacted). Questions include whether households that did not receive programming from a local affiliate now receive such programming, whether the price and service from the satellite carriers have changed, whether households who were relying on the old exceptions to get network programming can still receive such programming, and whether the change in the statute has otherwise affected the experience of viewers and broadcasters.
Comments are due on the Notice of Inquiry in this proceeding on or before March 8, 2021.