[Federal Register: May 17, 2005 (Volume 70,
Number 94)]
[Notices]
[Page 28231-28233]
37 CFR Part 258
[Docket No. 2005-4 CARP SRA-Digital]
AGENCY: Copyright Office, Library of Congress
ACTION: Notice of proposed rulemaking
The Copyright Office of the Library of Congress is submitting for public comment a proposed settlement of royalty rates for the retransmission of digital over-the-air television broadcast signals by satellite carriers under the statutory license.
Comments and Notices of Intent to Participate must be submitted no later than June 16, 2005.
If hand delivered by a private party, an original and five copies of a comment and a Notice of Intent to Participate should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Office of the General Counsel/CARP, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, S.E., Washington, DC 20559-6000. If delivered by a commercial courier, an original and five copies of a comment and a Notice of Intent to Participate must be delivered to the Congressional Courier Acceptance Site located at 2nd and D Streets, N.E., between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, S.E., Washington, DC. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a comment and a Notice of Intent to Participate should be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. Comments and Notices of Intent to Participate may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.
David O. Carson, General Counsel, or Tanya Sandros, Associate General Counsel, Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
On December 8, 2004, the President signed the Satellite Home Viewer Extension and Reauthorization Act (“SHVERA”), a part of the Consolidated Appropriations Act of 2005. Pub.L. 108-447. SHVERA extends for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers, 17 U.S.C. 119, as well as making a number of amendments to the license. One of the amendments to section 119 sets forth a process, for the first time, for adjusting the royalty fees paid by
[[Page 28232]]
satellite carriers for the retransmission of digital broadcast signals. 17 U.S.C. 119(c)(2). The law set the initial rates as the rates set by the Librarian in 1997 for the retransmission of analog broadcast signals, 37 CFR 258.3(b)(1)&(2), reduced by 22.5 percent. 17 U.S.C. 119(c)(2)(A). These rates are to be adjusted in accordance with the procedures set forth in section 119(c)(1) of the Copyright Act.
On March 8, 2005, the Copyright Office received a letter from EchoStar Satellite L.L.C., DirecTV, Inc., Program Suppliers, and the Joint Sports Claimants requesting that the Office begin the process of setting the rates for the retransmission of digital broadcast signals by initiating a voluntary negotiation period so that rates for both digital and analog signals “will be in place before the July 31, 2005 deadline for satellite carriers to pay royalties for the first accounting period of 2005.” Letter at 2. The Office granted the request and, pursuant to section 119(c)(1), published in the Federal Register a notice initiating a voluntary negotiation period during which parties could negotiate in an effort to reach a voluntary agreement regarding the rates. See 70 FR 15368 (March 25, 2005).
In accordance with the March 25 notice, the Office has received one agreement, submitted jointly by the satellite carriers EchoStar Satellite L.L.C. and DirecTV, Inc., the copyright owners of motion pictures and syndicated television series represented by the Motion Picture Association of America, and the copyright owners of sports programming represented by the Office of the Commissioner of Baseball. The agreement proposes rates for the private home viewing of distant superstations and distant network stations for the 2005—2009 period, as well as the viewing of those signals in commercial establishments. The agreement specifies that distant superstations and network stations that are significantly viewed do not require a royalty payment, which is consistent with 17 U.S.C. 119(a)(3), as amended. In addition, the agreement proposes that, in the case of multicasting of digital superstations and network stations, each digital stream that is retransmitted by a satellite carrier must be paid for at the prescribed rate but no royalty payment is due for any program-related material contained on the stream within the meaning of WGN v. United Video, Inc., 693 F.2d 622, 626 (7th Cir. 1982) and Second Report and Order and First Order On Reconsideration in CS Doc. No. 98-120, FCC 05-27 at ] 44 & n.158 (Feb. 23, 2005).
The statute requires the Library to “provide public notice of the royalty fees from the voluntary agreement and afford parties an opportunity to state that they object to those fees.” 17 U.S.C. 119(c)(1)(D)(ii)(II). This Notice of Proposed Rulemaking (“NPRM”) fulfills the requirement.
The law further provides that the Librarian shall adopt the rates contained in the voluntary agreement as applicable to all satellite carriers, distributors and copyright owners “unless a party with an intent to participate” in a royalty rate adjustment proceeding before a Copyright Arbitration Royalty Panel (“CARP”) and a “significant interest in the outcome” of the CARP proceeding files an objection. Consequently, any party that objects to the rates opposed in this NPRM must submit the following on or before June 16, 2005:
1. A notice of objection to the rates identifying the rate or rates to which the objection applies and the reasons for the objection;
2. A statement setting forth in detail why the objector has a significant interest in the royalty rates to be adopted; and
3. A separate Notice of Intention to Participate in the CARP proceeding to adjust the rates. The CARP proceeding will commence on or before December 31, 2005. See 17 U.S.C. 119(c)(2). Only parties objecting to the royalty rates should submit the above-described documents.
A copy of the voluntary agreement can be viewed at www.copyright.gov/carp/sat_rate_agreement_amend.pdf. The Library is not proposing for adoption the additional terms set forth in the agreement as the statute only provides for adoption of royalty rates. See17 U.S.C. 119(c)(1)(D)(ii)(III).
Copyright, Satellite, Television.
For the reasons set forth above, the Copyright Office proposes to amend 37 CFR chapter II as follows:
1. The authority citation for part 258 is revised to read as follows:
Authority: 17 U.S.C. 119, 702, 802.
2. In § 258.2, paragraph (b) is amended by removing “§ 258.3(b)” and adding “§ 258.3(a)” in its place.
3. Section 258.3 is amended by revising the section heading and in paragraphs (a) through (h), by adding “analog signals of” before “broadcast stations each place it appears.
The revisions to § 258.3 read as follows:
* * * * *
4. Add a new § 258.4 to read as follows:
(a) Commencing January 1, 2005, the royalty rate for secondary transmission of digital signals of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 20 cents per subscriber per month for distant superstations.
(ii) 17 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 40 cents per subscriber per month for distant superstations.
(b) Commencing January 1, 2006, the royalty rate for secondary transmission of digital signals of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 21.5 cents per subscriber per month for distant superstations.
(ii) 20 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 43 cents per subscriber per month for distant superstations.
(c) Commencing January 1, 2007, the royalty rate for secondary transmission of digital signals of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 23 cents per subscriber per month for distant superstations.
(ii) 23 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 46 cents per subscriber per month for distant superstations.
(d) Commencing January 1, 2008, the royalty rate for secondary transmission of digital signals of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) The 2007 rate per subscriber per month for distant superstations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2007 to January 2008.
(ii) The 2007 rate per subscriber per month for distant network stations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2007 to January 2008.
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(2) For viewing in commercial establishments, the 2007 rate per subscriber per month for viewing distant superstations in commercial establishments adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2007 to January 2008.
(e) Commencing January 1, 2009, the royalty rate for secondary transmission of digital signals of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) The 2008 rate per subscriber per month for distant superstations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
(ii) The 2008 rate per subscriber per month for distant network stations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
(2) For viewing in commercial establishments, the 2008 rate per subscriber per month for viewing distant superstations in commercial establishments adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
(f) For purposes of calculating the royalty rates for secondary transmission of digital signals of broadcast stations by satellite carriers-
(1) In the case of digital multicasting, the rates in paragraphs (a) through (e) of this section apply to each digital stream that a satellite carrier or distributor retransmits pursuant to section 119; provided, however that no additional royalty shall be paid for the carriage of any material related to the programming on such stream; and
(2) Satellite carriers and distributors are not required to pay a section 119 royalty for the retransmission of a digital signal to a subscriber who resides in a community where that signal is “significantly viewed, within the meaning of 17 U.S.C. 119(a)(3) and (b)(1), as amended.
Dated: May 12, 2005.
Tanya Sandros,
Associate General Counsel.