47 U.S.C. § 535 — Carriage of noncommercial educational tel-

Page 281 TITLE 47—TELECOMMUNICATIONS § 535 REVISION OF RULES Pub. L. 113–200, title I, § 105(b), Dec. 4, 2014, 128 Stat. 2063, provided that: ‘‘Not later than 90 days after the date of the enactment of this Act [Dec. 4, 2014], the [Federal Communications] Commission shall revise section 76.1601 of its rules (47 CFR 76.1601) and any note to such section by removing the prohibition against de- letion or repositioning of a local commercial television station during a period in which major television rat- ings services measure the size of audiences of local tel- evision stations.’’ APPLICATION TO PENDING REQUESTS Pub. L. 104–104, title III, § 301(d)(2), Feb. 8, 1996, 110 Stat. 116, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to— ‘‘(A) any request pending under section 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 534(h)(1)(C)) on the date of enactment of this Act [Feb. 8, 1996]; and ‘‘(B) any request filed under that section after that date.’’ § 535. Carriage of noncommercial educational tel- evision (a) Carriage obligations In addition to the carriage requirements set forth in section 534 of this title, each cable oper- ator of a cable system shall carry the signals of qualified noncommercial educational television stations in accordance with the provisions of this section. (b) Requirements to carry qualified stations (1) General requirement to carry each quali- fied station Subject to paragraphs (2) and (3) and sub- section (e), each cable operator shall carry, on the cable system of that cable operator, any qualified local noncommercial educational tel- evision station requesting carriage. (2) Systems with 12 or fewer channels (A) Notwithstanding paragraph (1), a cable operator of a cable system with 12 or fewer us- able activated channels shall be required to carry the signal of one qualified local non- commercial educational television station; ex- cept that a cable operator of such a system shall comply with subsection (c) and may, in its discretion, carry the signals of other quali- fied noncommercial educational television stations. (B) In the case of a cable system described in subparagraph (A) which operates beyond the presence of any qualified local noncommercial educational television station— (i) the cable operator shall import and carry on that system the signal of one quali- fied noncommercial educational television station; (ii) the selection for carriage of such a sig- nal shall be at the election of the cable oper- ator; and (iii) in order to satisfy the requirements for carriage specified in this subsection, the cable operator of the system shall not be re- quired to remove any other programming service actually provided to subscribers on March 29, 1990; except that such cable oper- ator shall use the first channel available to satisfy the requirements of this subpara- graph. (3) Systems with 13 to 36 channels (A) Subject to subsection (c), a cable oper- ator of a cable system with 13 to 36 usable ac- tivated channels— (i) shall carry the signal of at least one qualified local noncommercial educational television station but shall not be required to carry the signals of more than three such stations, and (ii) may, in its discretion, carry additional such stations. (B) In the case of a cable system described in this paragraph which operates beyond the presence of any qualified local noncommercial educational television station, the cable oper- ator shall import and carry on that system the signal of at least one qualified noncommercial educational television station to comply with subparagraph (A)(i). (C) The cable operator of a cable system de- scribed in this paragraph which carries the signal of a qualified local noncommercial edu- cational station affiliated with a State public television network shall not be required to carry the signal of any additional qualified local noncommercial educational television stations affiliated with the same network if the programming of such additional stations is substantially duplicated by the program- ming of the qualified local noncommercial educational television station receiving car- riage. (D) A cable operator of a system described in this paragraph which increases the usable ac- tivated channel capacity of the system to more than 36 channels on or after March 29, 1990, shall, in accordance with the other provi- sions of this section, carry the signal of each qualified local noncommercial educational tel- evision station requesting carriage, subject to subsection (e). (c) Continued carriage of existing stations Notwithstanding any other provision of this section, all cable operators shall continue to provide carriage to all qualified local non- commercial educational television stations whose signals were carried on their systems as of March 29, 1990. The requirements of this sub- section may be waived with respect to a par- ticular cable operator and a particular such sta- tion, upon the written consent of the cable oper- ator and the station. (d) Placement of additional signals A cable operator required to add the signals of qualified local noncommercial educational tele- vision stations to a cable system under this sec- tion may do so, subject to approval by the fran- chising authority pursuant to section 531 of this title, by placing such additional stations on pub- lic, educational, or governmental channels not in use for their designated purposes. (e) Systems with more than 36 channels A cable operator of a cable system with a ca- pacity of more than 36 usable activated channels which is required to carry the signals of three qualified local noncommercial educational tele- vision stations shall not be required to carry the signals of additional such stations the program- Page 282 TITLE 47—TELECOMMUNICATIONS § 535 ming of which substantially duplicates the pro- gramming broadcast by another qualified local noncommercial educational television station requesting carriage. Substantial duplication shall be defined by the Commission in a manner that promotes access to distinctive noncommer- cial educational television services. (f) Waiver of nonduplication rights A qualified local noncommercial educational television station whose signal is carried by a cable operator shall not assert any network non- duplication rights it may have pursuant to sec- tion 76.92 of title 47, Code of Federal Regula- tions, to require the deletion of programs aired on other qualified local noncommercial edu- cational television stations whose signals are carried by that cable operator. (g) Conditions of carriage (1) Content to be carried A cable operator shall retransmit in its en- tirety the primary video, accompanying audio, and line 21 closed caption transmission of each qualified local noncommercial educational tel- evision station whose signal is carried on the cable system, and, to the extent technically feasible, program-related material carried in the vertical blanking interval, or on subcar- riers, that may be necessary for receipt of pro- gramming by handicapped persons or for edu- cational or language purposes. Retransmission of other material in the vertical blanking in- terval or on subcarriers shall be within the discretion of the cable operator. (2) Bandwidth and technical quality A cable operator shall provide each qualified local noncommercial educational television station whose signal is carried in accordance with this section with bandwidth and tech- nical capacity equivalent to that provided to commercial television broadcast stations car- ried on the cable system and shall carry the signal of each qualified local noncommercial educational television station without mate- rial degradation. (3) Changes in carriage The signal of a qualified local noncommer- cial educational television station shall not be repositioned by a cable operator unless the cable operator, at least 30 days in advance of such repositioning, has provided written no- tice to the station and all subscribers of the cable system. For purposes of this paragraph, repositioning includes (A) assignment of a qualified local noncommercial educational tel- evision station to a cable system channel number different from the cable system chan- nel number to which the station was assigned as of March 29, 1990, and (B) deletion of the station from the cable system. The notifica- tion provisions of this paragraph shall not be used to undermine or evade the channel posi- tioning or carriage requirements imposed upon cable operators under this section. (4) Good quality signal required Notwithstanding the other provisions of this section, a cable operator shall not be required to carry the signal of any qualified local non- commercial educational television station which does not deliver to the cable system’s principal headend a signal of good quality or a baseband video signal, as may be defined by the Commission. (5) Channel positioning Each signal carried in fulfillment of the car- riage obligations of a cable operator under this section shall be carried on the cable sys- tem channel number on which the qualified local noncommercial educational television station is broadcast over the air, or on the channel on which it was carried on July 19, 1985, at the election of the station, or on such other channel number as is mutually agreed upon by the station and the cable operator. Any dispute regarding the positioning of a qualified local noncommercial educational tel- evision station shall be resolved by the Com- mission. (h) Availability of signals Signals carried in fulfillment of the carriage obligations of a cable operator under this sec- tion shall be available to every subscriber as part of the cable system’s lowest priced service tier that includes the retransmission of local commercial television broadcast signals. (i) Payment for carriage prohibited (1) In general A cable operator shall not accept monetary payment or other valuable consideration in exchange for carriage of the signal of any qualified local noncommercial educational tel- evision station carried in fulfillment of the re- quirements of this section, except that such a station may be required to bear the cost asso- ciated with delivering a good quality signal or a baseband video signal to the principal headend of the cable system. (2) Distant signal exception Notwithstanding the provisions of this sec- tion, a cable operator shall not be required to add the signal of a qualified local noncommer- cial educational television station not already carried under the provision of subsection (c), where such signal would be considered a dis- tant signal for copyright purposes unless such station indemnifies the cable operator for any increased copyright costs resulting from car- riage of such signal. (j) Remedies (1) Complaint Whenever a qualified local noncommercial educational television station believes that a cable operator of a cable system has failed to comply with the signal carriage requirements of this section, the station may file a com- plaint with the Commission. Such complaint shall allege the manner in which such cable operator has failed to comply with such re- quirements and state the basis for such allega- tions. (2) Opportunity to respond The Commission shall afford such cable op- erator an opportunity to present data, views, and arguments to establish that the cable op- Page 283 TITLE 47—TELECOMMUNICATIONS § 536 erator has complied with the signal carriage requirements of this section. (3) Remedial actions; dismissal Within 120 days after the date a complaint is filed under this subsection, the Commission shall determine whether the cable operator has complied with the requirements of this section. If the Commission determines that the cable operator has failed to comply with such requirements, the Commission shall state with particularity the basis for such findings and order the cable operator to take such re- medial action as is necessary to meet such re- quirements. If the Commission determines that the cable operator has fully complied with such requirements, the Commission shall dismiss the complaint. (k) Identification of signals A cable operator shall identify, upon request by any person, those signals carried in fulfill- ment of the requirements of this section. (l) Definitions For purposes of this section— (1) Qualified noncommercial educational tele- vision station The term ‘‘qualified noncommercial edu- cational television station’’ means any tele- vision broadcast station which— (A)(i) under the rules and regulations of the Commission in effect on March 29, 1990, is licensed by the Commission as a non- commercial educational television broadcast station and which is owned and operated by a public agency, nonprofit foundation, cor- poration, or association; and (ii) has as its licensee an entity which is eligible to receive a community service grant, or any successor grant thereto, from the Corporation for Public Broadcasting, or any successor organization thereto, on the basis of the formula set forth in section 396(k)(6)(B) of this title; or (B) is owned and operated by a munici- pality and transmits predominantly non- commercial programs for educational pur- poses. Such term includes (I) the translator of any noncommercial educational television station with five watts or higher power serving the franchise area, (II) a full-service station or translator if such station or translator is li- censed to a channel reserved for noncommer- cial educational use pursuant to section 73.606 of title 47, Code of Federal Regulations, or any successor regulations thereto, and (III) such stations and translators operating on channels not so reserved as the Commission determines are qualified as noncommercial educational stations. (2) Qualified local noncommercial educational television station The term ‘‘qualified local noncommercial educational television station’’ means a quali- fied noncommercial educational television station— (A) which is licensed to a principal com- munity whose reference point, as defined in section 76.53 of title 47, Code of Federal Reg- ulations (as in effect on March 29, 1990), or any successor regulations thereto, is within 50 miles of the principal headend of the cable system; or (B) whose Grade B service contour, as de- fined in section 73.683(a) of such title (as in effect on March 29, 1990), or any successor regulations thereto, encompasses the prin- cipal headend of the cable system. (June 19, 1934, ch. 652, title VI, § 615, as added Pub. L. 102–385, § 5, Oct. 5, 1992, 106 Stat. 1477.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 60 days after Oct. 5, 1992, see section 28 of Pub. L. 102–385, set out as an Effective Date of 1992 Amendment note under section 325 of this title. § 536. Regulation of carriage agreements (a) Regulations Within one year after October 5, 1992, the Com- mission shall establish regulations governing program carriage agreements and related prac- tices between cable operators or other multi- channel video programming distributors and video programming vendors. Such regulations shall— (1) include provisions designed to prevent a cable operator or other multichannel video programming distributor from requiring a fi- nancial interest in a program service as a con- dition for carriage on one or more of such op- erator’s systems; (2) include provisions designed to prohibit a cable operator or other multichannel video programming distributor from coercing a video programming vendor to provide, and from retaliating against such a vendor for fail- ing to provide, exclusive rights against other multichannel video programming distributors as a condition of carriage on a system; (3) contain provisions designed to prevent a multichannel video programming distributor from engaging in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by discriminating in video pro- gramming distribution on the basis of affili- ation or nonaffiliation of vendors in the selec- tion, terms, or conditions for carriage of video programming provided by such vendors; (4) provide for expedited review of any com- plaints made by a video programming vendor pursuant to this section; (5) provide for appropriate penalties and remedies for violations of this subsection, in- cluding carriage; and (6) provide penalties to be assessed against any person filing a frivolous complaint pursu- ant to this section. (b) ‘‘Video programming vendor’’ defined As used in this section, the term ‘‘video pro- gramming vendor’’ means a person engaged in the production, creation, or wholesale distribu- tion of video programming for sale. (June 19, 1934, ch. 652, title VI, § 616, as added Pub. L. 102–385, § 12, Oct. 5, 1992, 106 Stat. 1488.)