FCC meets Congressionally-imposed Thanksgiving deadline for revised satellite carriage rules
As we reported last August, the Satellite Television Extension and Localism Act of 2010 (you may know it better as “STELA”) – the legislation extending local station carriage rights for satellite providers – required the FCC to change certain of its rules relating to “significantly viewed” stations and “unserved households”. In response, the FCC dutifully, and quickly, launched proceedings to address those issues.
And now, a remarkably short four months later, the FCC has released three orders implementing the new rules. As a bonus, it has also given us a public notice requesting comments and data for an upcoming FCC report to Congress on the availability of in-state broadcast stations over satellite systems. For the most part, the orders simply put into the FCC’s rules the requirements laid out by STELA.
Significantly Viewed Stations Order
One order addresses questions relating to “significantly viewed” (SV) stations. As to eligibility for receiving certain SV signals, the Commission concludes that, in order to be eligible to receive an out-of-market SV network affiliate station, satellite subscribers will be required only to take their carrier’s local-into-local service package, regardless of whether that package includes an in-market affiliate of the same network. (Previously, a subscriber was not eligible to receive an out-of-market SV network affiliate unless the subscriber actually received, via satellite, the local in-market station affiliated with the same network.) Additionally, the FCC has modified its stance on situations in which there is no local affiliate of the same network as the SV station. From here on out, a satellite operator may offer an SV network station to a subscriber when there is no local affiliate of the same network present in the local market, even if the subscriber does not receive local-into-local service.
Gone is the old requirement that satellite carriers devote “equivalent bandwidth” to the carriage of the local in-market station as compared to the out-of-market SV station. The new STELA-imposed rules adopt the approach we previously described as the “HD or no HD approach”. That is, now a satellite operator may carry a network-affiliated SV station in HD, so long as the satellite operator carries the local station affiliated with the same network in HD whenever such format is available from the local station. (When is HD “available” for these purposes? The Commission has crafted a three-part test to make that determination.) The new rules also require satellite carriage of a secondary HD stream of a local station’s multicast signal if that stream is affiliated with the same network as an SV station retransmitted in HD to satellite subscribers in the local market.
Again, most of these changes were imposed on the FCC by STELA, so they should not come as a surprise to anyone. Importantly, the new rules make it easier for satellite operators to bring SV stations into a market. In-market stations will need to take that fact into account when weighing their options vis-à-vis mandatory carriage and granting retransmission consent. It’s easy to envision a situation in which an in-market network affiliate elects, unsuccessfully, to negotiate for retransmission consent, only to find an out-of-market SV station with the same affiliation being the sole network affiliate represented in those parts of the market in which the SV station is “significantly viewed”.
The new SV rules will become effective 30 days after publication in the Federal Register, which is currently scheduled to occur on November 26. Check back here to confirm the effective date.
Signal Prediction/Signal Measurement Orders
The FCC’s other orders deal with the technical requirements involved in the carriage of distant signals to “unserved households”. Satellite operators are permitted to provide a distant network-affiliated station to subscribers who are unable to receive an adequate over-the-air signal from the local affiliate of that network. And conversely, households which do receive an adequate over-the-air signal from the local affiliate are generally not eligible to get the distant signal by satellite (apart from SV stations, of course). Determining which households are “unserved”, of course, requires methods for predicting and measuring signals.
STELA required the FCC to develop a “point-to-point predictive model for reliably and presumptively determining the ability of individual locations, through the use of an antenna, to receive” a digital TV signal of specified strength. (An analog model is already in place but, in this post-DTV transition world, it’s useful only for the remaining analog LPTVs and TV translators.) Additionally, STELA required a resolution to the long-pending-still-unresolved proceeding to establish a procedure for on-site measurement of actual DTV signal reception.
Following STELA’s commands, the Commission has adopted a point-to-point predictive model for determining the ability of individual locations to receive an adequate over-the-air digital television broadcast signal through the use of an antenna. As expected, a new digital Individual Location Longley-Rice (ILLR) model will be used to determine whether individual households are eligible to receive the signals of distant network-affiliated digital television stations (including TV translator and low power television stations) from their satellite carrier.
The FCC has also continued the use of the “F(50,90) specifications” in the digital ILLR model. For those that don’t speak fluent geek, those two values – i.e., 50 and 90 – refer to location and time variability factors of evaluating signal strength. That is, within the area encompassed by an F(50,90) contour, at least 50% of the locations can be expected to receive a signal that exceeds the field strength value at least 90% of the time. This was the “old” standard in the analog world and the FCC found that it continues to be the appropriate standard for digital television. The new standard provides no special adjustment or procedure in the model for network signals carried on multicast program streams. The FCC’s assumption here is that if a household is predicted to receive a station, then all of that station’s program streams would be received equally.
A minor controversy arose from the STELA-mandated definition of the term “unserved household”. The STELA-imposed definition did not specify the use of a “conventional, stationary outdoor rooftop antenna”; instead, it simply referred to the use of “an antenna”. Some suggested that this change meant that signal predictions must assume the use of a less effective indoor antenna, drastically increasing the potential number of “unserved households”. The FCC acknowledged that the revised definition did afford the FCC more flexibility in determining the types of antennas that might be used. Nevertheless, the Commission ultimately found that an approach that specifies an outdoor antenna at six meters above ground for one-story structures and nine meters above ground for taller structures was most consistent with the DTV signal strength prediction model required by STELA.
The new prediction method will become effective 30 days after they are published in the Federal Register. No word yet on when that publication is likely to occur.
Occasionally, of course, an individual might dispute the signal strength predicted by this new digital ILLR model. The third of the FCC’s STELA orders revises the signal strength measurement procedures used to determine the actual – as opposed to the predicted – DTV signal at any specific location. A viewer denied distant signals on the basis of the predicted signal strength can ask for the actual signal strength to be measured using the amended procedures. If the measured signal strength shows the location is “unserved” then the viewer is eligible for distant signals. The FCC largely continued the use of prior procedures, tweaking them as necessary to address the differences between analog and digital TV signals.
Digital signal measurement procedures now include new provisions for the location of the measurement antenna, antenna height, signal measurement method, antenna orientation and polarization, and data recording. As with the predictive model, the FCC disagreed with those insisting that STELA required the use of an indoor antenna in conducting signal strength tests. Rather, the FCC continues to mandate the use of outdoor antennas in such tests. In addition, the new procedures measure only stations located within the same DMA as the satellite subscriber’s household.
The revised measurement method will not become effective until they have been approved by OMB. Check back here for updates on that process.
In-State Broadcasting Public Notice
Finally, the FCC issued a public notice seeking information that may be incorporated into the STELA-mandated report on issues relating to satellite carriage of “in-state” broadcast stations. Motivated by claims that some satellite subscribers are wrongfully denied satellite access to broadcast stations located in the same state because the station and subscribers are in different DMAs, Congress required the FCC to investigate the issue and submit a report to Congress by August 27, 2011. To develop the basis for such a report, the public notice seeks input from the public on a variety of factors, including the methodologies, metrics, data sources and “levels of granularity” to be used in the report.
According to the public notice, the report will: (1) analyze 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) evaluate the extent to which consumers in each local market have access to in-state broadcast programming over-the-air or from a multichannel video programming distributor; and (3) consider whether there are alternatives to DMAs to define “local” markets that would provide consumers with more in-state broadcast programming. Through this process, the FCC believes it will identify counties and associated populations within specific states that have limited access to in-state broadcast programming.
Comments in response to the public notice will be due 45 days after it is published in the Federal Register; reply comments will be due 75 days after Federal Register publication. Check back here for updates.
It is unlikely that new rules will immediately result from the FCC’s investigation and report. Still, stations located in DMAs that cross state lines should pay particular attention to this item, as satellite and cable operators have been arguing for some time that they should have the right to bring distant, but same-state, signals to their subscribers in the name of providing programming that is “local” to those subscribers. In particular, broadcasters will need to consider the FCC’s inquiries into whether there should be some alternative to the use of DMAs in determining carriage or whether the existing DMAs should be modified to better conform to state lines. Such changes would have a significant impact on stations’ advertising and programming operations, ownership restrictions, carriage rights and network exclusivity.