47 U.S.C. § 340 — Significantly viewed signals permitted to

Page 209 TITLE 47—TELECOMMUNICATIONS § 340 1 So in original. Probably should be ‘‘sections’’. 2 So in original. Probably should be ‘‘paragraphs’’. Subsec. (c)(4)(D), (E). Pub. L. 108–447, § 209, added sub- pars. (D) and (E). 2000—Subsec. (c)(5). Pub. L. 106–553 added par. (5). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–175 effective Feb. 27, 2010, see section 307(a) of Pub. L. 111–175, set out as a note under section 111 of Title 17, Copyrights. § 340. Significantly viewed signals permitted to be carried (a) Significantly viewed stations In addition to the broadcast signals that sub- scribers may receive under section 1 338 and 339 of this title, a satellite carrier is also authorized to retransmit to a subscriber located in a com- munity the signal of any station located outside the local market in which such subscriber is lo- cated, to the extent such signal— (1) has, before December 8, 2004, been deter- mined by the Federal Communications Com- mission to be a signal a cable operator may carry as significantly viewed in such commu- nity, except to the extent that such signal is prevented from being carried by a cable sys- tem in such community under the Commis- sion’s network nonduplication and syndicated exclusivity rules; or (2) is, after December 8, 2004, determined by the Commission to be significantly viewed in such community in accordance with the same standards and procedures concerning shares of viewing hours and audience surveys as are ap- plicable under the rules, regulations, and au- thorizations of the Commission to deter- mining with respect to a cable system whether signals are significantly viewed in a commu- nity. (b) Limitations (1) Service limited to subscribers taking local- into-local service This section shall apply only to retrans- missions to subscribers of a satellite carrier who receive retransmissions of a signal from that satellite carrier pursuant to section 338 of this title. (2) Service limitations A satellite carrier may retransmit to a sub- scriber in high definition format the signal of a station determined by the Commission to be significantly viewed under subsection (a) only if such carrier also retransmits in high defini- tion format the signal of a station located in the local market of such subscriber and affili- ated with the same network whenever such format is available from such station. (3) Limitation not applicable where no net- work affiliates The limitations in paragraphs (1) and (2) shall not prohibit a retransmission under this section to a subscriber located in a local mar- ket in which there are no network stations af- filiated with the same television network as the station whose signal is being retrans- mitted pursuant to this section. (4) Authority to grant station-specific waivers Paragraphs (1) and (2) shall not prohibit a re- transmission of a network station to a sub- scriber if and to the extent that the network station in the local market in which the sub- scriber is located, and that is affiliated with the same television network, has privately ne- gotiated and affirmatively granted a waiver from the requirements of paragraph 2 (1) and (2) to such satellite carrier with respect to re- transmission of the significantly viewed sta- tion to such subscriber. (c) Publication and modifications of lists; regula- tions (1) In general The Commission shall— (A) within 60 days after December 8, 2004— (i) publish a list of the stations that are eligible for retransmission under sub- section (a)(1) and the communities in which such stations are eligible for such retransmission; and (ii) commence a rulemaking proceeding to implement this section by publication of a notice of proposed rulemaking; (B) adopt rules pursuant to such rule- making within 1 year after December 8, 2004. (2) Public availability of list The Commission shall make readily avail- able to the public in electronic form, on the Internet website of the Commission or other comparable facility, a list of the stations that are eligible for retransmission under sub- section (a) and the communities in which such stations are eligible for such retransmission. The Commission shall update such list within 10 business days after the date on which the Commission issues an order making any modi- fication of such stations and communities. (3) Modifications In addition to cable operators and television broadcast station licensees, the Commission shall permit a satellite carrier to petition for decisions and orders— (A) by which stations may be added to those that are eligible for retransmission under subsection (a), and by which commu- nities may be added in which such stations are eligible for such retransmission; and (B) by which network nonduplication or syndicated exclusivity regulations are ap- plied to the retransmission in accordance with subsection (e). (d) Effect on other obligations and rights (1) No effect on carriage obligations Carriage of a signal under this section is not mandatory, and any right of a station licensee to have the signal of such station carried under section 338 of this title is not affected by the eligibility of such station to be carried under this section. (2) Retransmission consent rights not affected The eligibility of the signal of a station to be carried under this section does not affect Page 210 TITLE 47—TELECOMMUNICATIONS § 340 3 So in original. Probably should be followed by ‘‘section’’. 4 See References in Text note below. any right of the licensee of such station to grant (or withhold) retransmission consent under section 325(b)(1) of this title. (e) Network nonduplication and syndicated ex- clusivity (1) Not applicable except as provided by com- mission regulations Signals eligible to be carried under this sec- tion are not subject to the Commission’s regu- lations concerning network nonduplication or syndicated exclusivity unless, pursuant to reg- ulations adopted by the Commission, the Com- mission determines to permit network non- duplication or syndicated exclusivity to apply within the appropriate zone of protection. (2) Limitation Nothing in this subsection or Commission regulations shall permit the application of network nonduplication or syndicated exclu- sivity regulations to the retransmission of dis- tant signals of network stations that are car- ried by a satellite carrier pursuant to a statu- tory license under section 119(a)(2)(A) or (B) of title 17, with respect to persons who reside in unserved households, under 3 119(a)(4)(A),4 or under section 119(a)(12),4 of such title. (f) Enforcement (1) Orders and damages Upon complaint, the Commission shall issue a cease and desist order to any satellite car- rier found to have violated this section in car- rying any television broadcast station. Such order may, if a complaining station requests damages— (A) provide for the award of damages to a complaining station that establishes that the violation was committed in bad faith, in an amount up to $50 per subscriber, per sta- tion, per day of the violation; and (B) provide for the award of damages to a prevailing satellite carrier if the Commis- sion determines that the complaint was friv- olous, in an amount up to $50 per subscriber alleged to be in violation, per station al- leged, per day of the alleged violation. (2) Commission decision The Commission shall issue a final deter- mination resolving a complaint brought under this subsection not later than 180 days after the submission of a complaint under this sub- section. The Commission may hear witnesses if it clearly appears, based on written filings by the parties, that there is a genuine dispute about material facts. Except as provided in the preceding sentence, the Commission may issue a final ruling based on written filings by the parties. (3) Remedies in addition The remedies under this subsection are in addition to any remedies available under title 17. (4) No effect on copyright proceedings Any determination, action, or failure to act of the Commission under this subsection shall have no effect on any proceeding under title 17 and shall not be introduced in evidence in any proceeding under that title. In no instance shall a Commission enforcement proceeding under this subsection be required as a predi- cate to the pursuit of a remedy available under title 17. (g) Notices concerning significantly viewed sta- tions Each satellite carrier that proposes to com- mence the retransmission of a station pursuant to this section in any local market shall— (1) not less than 60 days before commencing such retransmission, provide a written notice to any television broadcast station in such local market of such proposal; and (2) designate on such carrier’s website all significantly viewed signals carried pursuant to section 340 of this title and the commu- nities in which the signals are carried. (h) Additional corresponding changes in regula- tions (1) Community-by-community elections The Commission shall, no later than October 30, 2005, revise section 76.66 of its regulations (47 CFR 76.66), concerning satellite broadcast signal carriage, to permit (at the next cycle of elections under section 325 of this title) a tele- vision broadcast station that is located in a local market into which a satellite carrier re- transmits a television broadcast station pur- suant to section 338 of this title, to elect, with respect to such satellite carrier, between re- transmission consent pursuant to such section 325 of this title and mandatory carriage pursu- ant to section 338 of this title separately for each county within such station’s local mar- ket, if— (A) the satellite carrier has notified the station, pursuant to paragraph (3), that it intends to carry another affiliate of the same network pursuant to this section dur- ing the relevant election period in the sta- tion’s local market; or (B) on the date notification under para- graph (3) was due, the satellite carrier was retransmitting into the station’s local mar- ket pursuant to this section an affiliate of the same television network. (2) Unified negotiations In revising its regulations as required by paragraph (1), the Commission shall provide that any such station shall conduct a unified negotiation for the entire portion of its local market for which retransmission consent is elected. (3) Additional provisions The Commission shall, no later than October 30, 2005, revise its regulations to provide the following: (A) Notifications by satellite carrier A satellite carrier’s retransmission of tele- vision broadcast stations pursuant to this section shall be subject to the following lim- itations: (i) In any local market in which the sat- ellite carrier provides service pursuant to Page 211 TITLE 47—TELECOMMUNICATIONS § 341 section 338 of this title on December 8, 2004, the carrier may notify a television broadcast station in that market, at least 60 days prior to any date on which the sta- tion must thereafter make an election under section 76.66 of the Commission’s regulations (47 CFR 76.66), of— (I) each affiliate of the same television network that the carrier reserves the right to retransmit into that station’s local market pursuant to this section during the next election cycle under such section of such regulations; and (II) for each such affiliate, the commu- nities into which the satellite carrier re- serves the right to make such retrans- missions. (ii) In any local market in which the sat- ellite carrier commences service pursuant to section 338 of this title after December 8, 2004, the carrier may notify a station in that market, at least 60 days prior to the introduction of such service in that mar- ket, and thereafter at least 60 days prior to any date on which the station must there- after make an election under section 76.66 of the Commission’s regulations (47 CFR 76.66), of each affiliate of the same tele- vision network that the carrier reserves the right to retransmit into that station’s local market during the next election cycle under such section of such regula- tions. (iii) Beginning with the 2005 election cycle, a satellite carrier may only re- transmit pursuant to this section during the pertinent election period a signal— (I) as to which it has provided the noti- fications set forth in clauses (i) and (ii); or (II) that it was retransmitting into the local market under this section as of the date such notifications were due. (B) Harmonization of elections and retrans- mission consent agreements If a satellite carrier notifies a television broadcast station that it reserves the right to retransmit an affiliate of the same tele- vision network during the next election cycle pursuant to this section, the station may choose between retransmission consent and mandatory carriage for any portion of the 3-year election cycle that is not covered by an existing retransmission consent agree- ment. (i) Definitions As used in this section: (1) Local market; satellite carrier; subscriber; television broadcast station The terms ‘‘local market’’, ‘‘satellite car- rier’’, ‘‘subscriber’’, and ‘‘television broadcast station’’ have the meanings given such terms in section 338(k) of this title. (2) Network station; television network The terms ‘‘network station’’ and ‘‘tele- vision network’’ have the meanings given such terms in section 339(d) of this title. (3) Community The term ‘‘community’’ means— (A) a county or a cable community, as de- termined under the rules, regulations, and authorizations of the Commission applicable to determining with respect to a cable sys- tem whether signals are significantly viewed; or (B) a satellite community, as determined under such rules, regulations, and authoriza- tions (or revisions thereof) as the Commis- sion may prescribe in implementing the re- quirements of this section. (June 19, 1934, ch. 652, title III, § 340, as added Pub. L. 108–447, div. J, title IX [title II, § 202(a)], Dec. 8, 2004, 118 Stat. 3409; amended Pub. L. 111–175, title II, §§ 203(a), 204(c), May 27, 2010, 124 Stat. 1245, 1250.) Editorial Notes REFERENCES IN TEXT Section 119(a)(4)(A) and section 119(a)(12) of title 17, referred to in subsec. (e)(2), were redesignated as sec- tions 119(a)(3)(A) and 119(a)(11) of title 17, respectively, by Pub. L. 111–175, title I, § 102(h)(1)(B), May 27, 2010, 124 Stat. 1224. Section 119(a)(3) of title 17 was repealed and section 119(a)(4) was redesignated as section 119(a)(3) by Pub. L. 116–94, div. P, title XI, § 1102(a)(1)(B), (C), Dec. 20, 2019, 133 Stat. 3202. Section 119(a)(11) of title 17 was redesignated as section 119(a)(8) by Pub. L. 116–94, div. P, title XI, § 1102(a)(1)(C), Dec. 20, 2019, 133 Stat. 3202. AMENDMENTS 2010—Subsec. (b)(1), (2). Pub. L. 111–175, § 203(a), amended pars. (1) and (2) generally. Prior to amend- ment, pars. (1) and (2) related to limitations for certain analog and digital services, respectively. Subsec. (i)(4). Pub. L. 111–175, § 204(c), struck out par. (4). Text read as follows: ‘‘The terms ‘equivalent band- width’ and ‘entire bandwidth’ shall be defined by the Commission by regulation, except that this paragraph shall not be construed— ‘‘(A) to prevent a satellite operator from using com- pression technology; ‘‘(B) to require a satellite operator to use the iden- tical bandwidth or bit rate as the local or distant broadcaster whose signal it is retransmitting; ‘‘(C) to require a satellite operator to use the iden- tical bandwidth or bit rate for a local network sta- tion as it does for a distant network station; ‘‘(D) to affect a satellite operator’s obligations under subsection (a)(1) of this section; or ‘‘(E) to affect the definitions of ‘program related’ and ‘primary video’.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–175 effective Feb. 27, 2010, see section 307(a) of Pub. L. 111–175, set out as a note under section 111 of Title 17, Copyrights. RULEMAKING REQUIRED Pub. L. 111–175, title II, § 203(b), May 27, 2010, 124 Stat. 1245, provided that: ‘‘Within 270 days after the date of the enactment of this Act [deemed to refer to Feb. 27, 2010, see section 307(a) of Pub. L. 111–175, set out as an Effective Date of 2010 Amendment note under section 111 of Title 17, Copyrights], the Federal Communica- tions Commission shall take all actions necessary to promulgate a rule to implement the amendments made by subsection (a) [amending this section].’’ § 341. Carriage of television signals to certain subscribers (a)(1) IN GENERAL.—A cable operator or sat- ellite carrier may elect to retransmit, to sub- scribers in an eligible county—