47 U.S.C. § 546 — Renewal

Page 296 TITLE 47—TELECOMMUNICATIONS § 546 (c) Rearrangement, replacement, or removal of service Notwithstanding subsections (a) and (b), a cable operator may, upon 30 days’ advance no- tice to the franchising authority, rearrange, re- place, or remove a particular cable service re- quired by the franchise if— (1) such service is no longer available to the operator; or (2) such service is available to the operator only upon the payment of a royalty required under section 801(b)(2) of title 17, which the cable operator can document— (A) is substantially in excess of the amount of such payment required on the date of the operator’s offer to provide such service, and (B) has not been specifically compensated for through a rate increase or other adjust- ment. (d) Rearrangement of particular services from one service tier to another or other offering of service Notwithstanding subsections (a) and (b), a cable operator may take such actions to rear- range a particular service from one service tier to another, or otherwise offer the service, if the rates for all of the service tiers involved in such actions are not subject to regulation under sec- tion 543 of this title. (e) Requirements for services relating to public, educational, or governmental access A cable operator may not obtain modification under this section of any requirement for serv- ices relating to public, educational, or govern- mental access. (f) ‘‘Commercially impracticable’’ defined For purposes of this section, the term ‘‘com- mercially impracticable’’ means, with respect to any requirement applicable to a cable operator, that it is commercially impracticable for the operator to comply with such requirement as a result of a change in conditions which is beyond the control of the operator and the nonoccur- rence of which was a basic assumption on which the requirement was based. (June 19, 1934, ch. 652, title VI, § 625, as added Pub. L. 98–549, § 2, Oct. 30, 1984, 98 Stat. 2790.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title. § 546. Renewal (a) Commencement of proceedings; public notice and participation (1) A franchising authority may, on its own initiative during the 6-month period which be- gins with the 36th month before the franchise expiration, commence a proceeding which af- fords the public in the franchise area appro- priate notice and participation for the purpose of (A) identifying the future cable-related com- munity needs and interests, and (B) reviewing the performance of the cable operator under the franchise during the then current franchise term. If the cable operator submits, during such 6-month period, a written renewal notice re- questing the commencement of such a pro- ceeding, the franchising authority shall com- mence such a proceeding not later than 6 months after the date such notice is submitted. (2) The cable operator may not invoke the re- newal procedures set forth in subsections (b) through (g) unless— (A) such a proceeding is requested by the cable operator by timely submission of such notice; or (B) such a proceeding is commenced by the franchising authority on its own initiative. (b) Submission of renewal proposals; contents; time (1) Upon completion of a proceeding under sub- section (a), a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a pro- posal for renewal. (2) Subject to section 544 of this title, any such proposal shall contain such material as the fran- chising authority may require, including pro- posals for an upgrade of the cable system. (3) The franchising authority may establish a date by which such proposal shall be submitted. (c) Notice of proposal; renewal; preliminary as- sessment of nonrenewal; administrative re- view; issues; notice and opportunity for hear- ing; transcript; written decision (1) Upon submittal by a cable operator of a proposal to the franchising authority for the re- newal of a franchise pursuant to subsection (b), the franchising authority shall provide prompt public notice of such proposal and, during the 4- month period which begins on the date of the submission of the cable operator’s proposal pur- suant to subsection (b), renew the franchise or, issue a preliminary assessment that the fran- chise should not be renewed and, at the request of the operator or on its own initiative, com- mence an administrative proceeding, after pro- viding prompt public notice of such proceeding, in accordance with paragraph (2) to consider whether— (A) the cable operator has substantially complied with the material terms of the exist- ing franchise and with applicable law; (B) the quality of the operator’s service, in- cluding signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the system, has been reasonable in light of community needs; (C) the operator has the financial, legal, and technical ability to provide the services, fa- cilities, and equipment as set forth in the op- erator’s proposal; and (D) the operator’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests. (2) In any proceeding under paragraph (1), the cable operator shall be afforded adequate notice and the cable operator and the franchise author- Page 297 TITLE 47—TELECOMMUNICATIONS § 546 ity, or its designee, shall be afforded fair oppor- tunity for full participation, including the right to introduce evidence (including evidence re- lated to issues raised in the proceeding under subsection (a)), to require the production of evi- dence, and to question witnesses. A transcript shall be made of any such proceeding. (3) At the completion of a proceeding under this subsection, the franchising authority shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such de- cision to the cable operator. Such decision shall state the reasons therefor. (d) Basis for denial Any denial of a proposal for renewal that has been submitted in compliance with subsection (b) shall be based on one or more adverse find- ings made with respect to the factors described in subparagraphs (A) through (D) of subsection (c)(1), pursuant to the record of the proceeding under subsection (c). A franchising authority may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (c)(1)(A) or on events considered under subsection (c)(1)(B) in any case in which a violation of the franchise or the events considered under subsection (c)(1)(B) occur after the effective date of this subchapter unless the franchising authority has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the franchising authority has waived its right to object, or the cable operator gives writ- ten notice of a failure or inability to cure and the franchising authority fails to object within a reasonable time after receipt of such notice. (e) Judicial review; grounds for relief (1) Any cable operator whose proposal for re- newal has been denied by a final decision of a franchising authority made pursuant to this sec- tion, or has been adversely affected by a failure of the franchising authority to act in accord- ance with the procedural requirements of this section, may appeal such final decision or fail- ure pursuant to the provisions of section 555 of this title. (2) The court shall grant appropriate relief if the court finds that— (A) any action of the franchising authority, other than harmless error, is not in compli- ance with the procedural requirements of this section; or (B) in the event of a final decision of the franchising authority denying the renewal proposal, the operator has demonstrated that the adverse finding of the franchising author- ity with respect to each of the factors de- scribed in subparagraphs (A) through (D) of subsection (c)(1) on which the denial is based is not supported by a preponderance of the evi- dence, based on the record of the proceeding conducted under subsection (c). (f) Finality of administrative decision Any decision of a franchising authority on a proposal for renewal shall not be considered final unless all administrative review by the State has occurred or the opportunity therefor has lapsed. (g) ‘‘Franchise expiration’’ defined For purposes of this section, the term ‘‘fran- chise expiration’’ means the date of the expira- tion of the term of the franchise, as provided under the franchise, as it was in effect on Octo- ber 30, 1984. (h) Alternative renewal procedures Notwithstanding the provisions of subsections (a) through (g) of this section, a cable operator may submit a proposal for the renewal of a fran- chise pursuant to this subsection at any time, and a franchising authority may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (a) through (g) of this section shall not apply to a decision to grant or deny a pro- posal under this subsection. The denial of a re- newal pursuant to this subsection shall not af- fect action on a renewal proposal that is sub- mitted in accordance with subsections (a) through (g). (i) Effect of renewal procedures upon action to revoke franchise for cause Notwithstanding the provisions of subsections (a) through (h), any lawful action to revoke a cable operator’s franchise for cause shall not be negated by the subsequent initiation of renewal proceedings by the cable operator under this section. (June 19, 1934, ch. 652, title VI, § 626, as added Pub. L. 98–549, § 2, Oct. 30, 1984, 98 Stat. 2791; amended Pub. L. 102–385, § 18, Oct. 5, 1992, 106 Stat. 1493.) Editorial Notes REFERENCES IN TEXT For ‘‘the effective date of this subchapter’’, referred to in subsec. (d), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as an Effective Date note under section 521 of this title. AMENDMENTS 1992—Subsec. (a). Pub. L. 102–385, § 18(a), amended sub- sec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘During the 6-month period which begins with the 36th month before the franchise expiration, the franchising authority may on its own initiative, and shall at the request of the cable operator, com- mence proceedings which afford the public in the fran- chise area appropriate notice and participation for the purpose of— ‘‘(1) identifying the future cable-related community needs and interests; and ‘‘(2) reviewing the performance of the cable oper- ator under the franchise during the then current franchise term.’’ Subsec. (c)(1). Pub. L. 102–385, § 18(b), inserted ‘‘pursu- ant to subsection (b)’’ after ‘‘renewal of a franchise’’ and substituted ‘‘date of the submission of the cable op- erator’s proposal pursuant to subsection (b)’’ for ‘‘com- pletion of any proceedings under subsection (a)’’. Subsec. (c)(1)(B). Pub. L. 102–385, § 18(c), substituted ‘‘mix or quality’’ for ‘‘mix, quality, or level’’. Subsec. (d). Pub. L. 102–385, § 18(d), inserted ‘‘that has been submitted in compliance with subsection (b)’’ after ‘‘Any denial of a proposal for renewal’’ and sub- stituted ‘‘or the cable operator gives written notice of a failure or inability to cure and the franchising au- Page 298 TITLE 47—TELECOMMUNICATIONS § 547 thority fails to object within a reasonable time after receipt of such notice’’ for ‘‘or has effectively acqui- esced’’. Subsec. (e)(2)(A). Pub. L. 102–385, § 18(e), inserted ‘‘, other than harmless error,’’ after ‘‘franchising au- thority’’. Subsec. (i). Pub. L. 102–385, § 18(f), added subsec. (i). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–385 effective 60 days after Oct. 5, 1992, see section 28 of Pub. L. 102–385, set out as a note under section 325 of this title. EFFECTIVE DATE Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title. § 547. Conditions of sale (a) If a renewal of a franchise held by a cable operator is denied and the franchising authority acquires ownership of the cable system or ef- fects a transfer of ownership of the system to another person, any such acquisition or transfer shall be— (1) at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself, or (2) in the case of any franchise existing on the effective date of this subchapter, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer. (b) If a franchise held by a cable operator is re- voked for cause and the franchising authority acquires ownership of the cable system or ef- fects a transfer of ownership of the system to another person, any such acquisition or transfer shall be— (1) at an equitable price, or (2) in the case of any franchise existing on the effective date of this subchapter, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer. (June 19, 1934, ch. 652, title VI, § 627, as added Pub. L. 98–549, § 2, Oct. 30, 1984, 98 Stat. 2793.) Editorial Notes REFERENCES IN TEXT For ‘‘the effective date of this subchapter’’, referred to in subsecs. (a)(2) and (b)(2), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as an Effective Date note under section 521 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title. § 548. Development of competition and diversity in video programming distribution (a) Purpose The purpose of this section is to promote the public interest, convenience, and necessity by increasing competition and diversity in the mul- tichannel video programming market, to in- crease the availability of satellite cable pro- gramming and satellite broadcast programming to persons in rural and other areas not currently able to receive such programming, and to spur the development of communications tech- nologies. (b) Prohibition It shall be unlawful for a cable operator, a sat- ellite cable programming vendor in which a cable operator has an attributable interest, or a satellite broadcast programming vendor to en- gage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or ef- fect of which is to hinder significantly or to pre- vent any multichannel video programming dis- tributor from providing satellite cable program- ming or satellite broadcast programming to sub- scribers or consumers. (c) Regulations required (1) Proceeding required Within 180 days after October 5, 1992, the Commission shall, in order to promote the public interest, convenience, and necessity by increasing competition and diversity in the multichannel video programming market and the continuing development of communica- tions technologies, prescribe regulations to specify particular conduct that is prohibited by subsection (b). (2) Minimum contents of regulations The regulations to be promulgated under this section shall— (A) establish effective safeguards to pre- vent a cable operator which has an attrib- utable interest in a satellite cable program- ming vendor or a satellite broadcast pro- gramming vendor from unduly or improperly influencing the decision of such vendor to sell, or the prices, terms, and conditions of sale of, satellite cable programming or sat- ellite broadcast programming to any unaf- filiated multichannel video programming distributor; (B) prohibit discrimination by a satellite cable programming vendor in which a cable operator has an attributable interest or by a satellite broadcast programming vendor in the prices, terms, and conditions of sale or delivery of satellite cable programming or satellite broadcast programming among or between cable systems, cable operators, or other multichannel video programming dis- tributors, or their agents or buying groups; except that such a satellite cable program- ming vendor in which a cable operator has an attributable interest or such a satellite broadcast programming vendor shall not be prohibited from— (i) imposing reasonable requirements for creditworthiness, offering of service, and financial stability and standards regarding character and technical quality; (ii) establishing different prices, terms, and conditions to take into account actual and reasonable differences in the cost of creation, sale, delivery, or transmission of satellite cable programming or satellite broadcast programming;