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Reauthorizing the Satellite Home Viewing
Provisions in the Communications Act and
the Copyright Act: Issues for Congress
Charles B. Goldfarb
Specialist in Telecommunications Policy
November 25, 2009
Congressional Research Service
7-5700
www.crs.gov
R40624
CRS Report for Congress
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repared for Members and Committees of Congress
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Reauthorizing the Satellite Home Viewing Provisions
Summary
To further the longstanding U.S. media policy goal of localism, the current statutory framework
for satellite and cable multichannel video programming distribution services distinguishes
between the retransmission of local broadcast signals—the signals of stations located in the same
local market as the subscriber—and of distant signals. Some statutory provisions block or restrict
the retransmission of distant broadcast signals in order to protect local broadcasters from
competition from those signals, with the intent of fostering local programming. At the same time,
Congress has recognized the value of subscribers receiving certain distant signals—for example,
if they are unable to receive broadcast network programming from a local station. Key copyright
and retransmission provisions in the 2004 Satellite Home Viewer Extension and Reauthorization
Act that make it possible for satellite operators to provide their subscribers those distant broadcast
signals expire on December 31, 2009. If these provisions are not reauthorized, it would be much
more difficult, if not impossible, for satellite operators to provide most of those signals to their
subscribers. In addition, a number of statutory provisions, and many Federal Communications
Commission and Copyright Office rules adopted to implement statutory provisions, are based on
the transmission of analog broadcast signals, but during 2009 the required transition to digital
broadcast signals will largely be achieved. As a result, some of the existing statutes and rules may
no longer be effective in attaining the objectives for which they were enacted, unless they are
modified.
The Senate Judiciary Committee, House Judiciary Committee, Senate Commerce Committee, and
House Commerce Committee all have reported bills (S. 1670, H.R. 3570, S. 2764, and H.R. 2994,
respectively) that address the provisions requiring reauthorization, the transition to digital
transmission, and several policy issues involving satellite retransmission of broadcast
programming of local interest. One issue is that satellite operators are allowed, but not required,
to offer subscribers the signals of all the broadcast stations in their local market. DirecTV and
DISH Network have chosen not to offer such “local-into-local” service in small markets
representing about 3% of U.S. television households. They argue that it would cost more to
provide such service than they could recover in revenues and that their limited capacity could be
better used providing high definition and other services in more densely populated areas. H.R.
927 would have made satellite provision of local-into-local service mandatory in all 210 markets,
but its sponsor withdrew it during the House Commerce Committee markup of H.R. 2994, when
DISH Network indicated it would voluntarily serve all 210 markets in exchange for provisions in
H.R. 2994 and H.R. 3570 mandating relief from a court injunction now in effect prohibiting it
from retransmitting distant broadcast signals using a statutory copyright license. The Senate
Judiciary Committee bill includes less direct incentives for DISH Network to serve all 210 local
markets. Another issue involves those situations where counties in one state are assigned to a
local market for which the primary city (and the local broadcast stations) are in another state.
Under current rules, satellite and cable operators are prohibited or restricted from providing to
subscribers in these “orphan counties” the signals of in-state, but non-local broadcast stations;
thus subscribers in those counties may not be receiving news and sports programming of state-
specific interest. But allowing the retransmission of out-of-market signals into those counties
could harm the local broadcast stations. Several bills have been introduced to address this issue
either generically or in specific states or geographic areas, but none of those bills has been
incorporated into the bills reported by the committees. This report will be updated as warranted.
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Contents
Introduction ................................................................................................................................ 1
Issues in the Current Public Policy Debate .................................................................................. 5
Revising Existing Rules That Are Based on Analog Technology ............................................ 5
The Retransmission of In-State, but Non-Local, Broadcast Signals into Counties
Assigned to Local Markets in Other States (“Orphan Counties”) ........................................ 7
Discretionary vs. Mandatory Provision of Local-into-Local Service ...................................... 8
Which Broadcast Signals Satellite Operators May Offer in Those Markets That Lack
a Network Affiliate (“Short Markets”) .............................................................................. 10
Multicasting and Unserved Households in Short Markets .................................................... 11
Which Households Are Eligible to Receive Distant Signals: Grandfathered
Subscribers, Other Subscribers, and Households that Are Not Subscribers When
Legislation is Enacted (“Future Applicability”) ................................................................ 13
Expanded Satellite Carriage of Low Power Television Stations............................................ 17
Satellite Carriage of Noncommercial Educational Television Stations.................................. 18
Satellite Carriage of State Public Affairs Networks.............................................................. 20
Which Statutory Copyright License Should Be Applied to the Content on the Signals
of Significantly Viewed and “Exception” Broadcast Stations ............................................ 20
Allowable Signal Formats for the Retransmission of Significantly Viewed Stations ............. 21
Proposals to Eliminate the Statutory Licensing System for Satellite and Cable
Retransmission of Distant Broadcast Signals .................................................................... 21
Retransmission of Programming for National Emergencies ................................................. 22
Providing Digital Service on a Single Dish.......................................................................... 23
Modification of the Methodology for Setting Copyright Royalty Rates................................ 23
Modification of Copyright Administrative Procedures and Requirements ............................ 24
Severability......................................................................................................................... 24
Differences in the Current Retransmission and Copyright Rules for Satellite and Cable ............. 24
Providing the Signals of Non-Local but In-State Stations to Orphan Counties............................ 29
The Overall Issue ................................................................................................................ 29
Regulatory Parameters Available to Address Orphan Counties ............................................. 34
Current Obstacles to Serving Orphan Counties .................................................................... 38
News Programming of State-Wide Interest .................................................................... 38
Sports Programming of State-Wide Interest ................................................................... 39
Requiring Satellite Operators to Offer Local-into-Local Service in All Markets ......................... 42
Figures
Figure 1. Counties Assigned to Designated Market Areas for Which the Primary City Is
Outside the State (“Orphan Counties”), 2009.......................................................................... 32
Tables
Table 1. Current Retransmission and Copyright Rules for Satellite and Cable Operators............ 26
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Table A-1. Counties and Television Households in Each State That Are Located in
Designated Market Areas (DMAs) for Which the Primary City Is Outside the State................ 46
Appendixes
Appendix. “Orphan Counties”................................................................................................... 46
Contacts
Author Contact Information ...................................................................................................... 81
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Introduction
Congress has constructed a regulatory framework for the retransmission of broadcast television
signals by satellite television operators through a series of laws—the 1988 Satellite Home Viewer
Act (SHVA),1 the Satellite Home Viewer Act of 1994,2 the 1999 Satellite Home Viewer
Improvement Act (SHVIA),3 and the 2004 Satellite Home Viewer Extension and Reauthorization
Act (SHVERA).4 These laws have fostered satellite provision of multichannel video
programming distribution (MVPD) service and, as satellite has become a viable competitor to
cable television, have attempted to make the regulatory regimes for satellite and cable more
similar. Today, the regulatory framework for satellite exists alongside an analogous, but in some
significant ways different, regulatory framework for cable.
The various provisions in these satellite acts created or modified sections in the Copyright Act5
and the Communications Act of 1934.6 Under current law, in order to retransmit a broadcaster’s
signals to its subscribers, a satellite operator or a cable operator, with certain exceptions, must
obtain a license from the copyright holders of the content contained in the broadcast for use of
that content and also must obtain the consent of the broadcaster for retransmission of the
broadcast signal. The statutory provisions addressing copyright are in the Copyright Act and are
administered by the Copyright Office in the Library of Congress; those provisions addressing
signal retransmission are in the Communications Act and are administered by the Federal
Communications Commission (FCC). But in several cases, the provisions in one act are
conditioned on meeting conditions prescribed in the other act or meeting rules adopted by the
agency that administers the other act.
SHVERA includes several provisions that will expire on December 31, 2009, unless they are
reauthorized. Most significantly,
• Section 119 of the Copyright Act7 provides satellite operators that retransmit
certain “distant” (non-local) broadcast television signals to their subscribers with
an efficient, relatively low cost way to license the copyrighted works contained in
those broadcast signals—a statutory per subscriber, per signal, per month royalty
fee. If the law expired, it would be very difficult (and perhaps impossible) for
satellite operators to offer the programming of broadcast networks8 to that subset
of subscribers who currently cannot receive that programming from local
1 P.L. 100-667.
2 P.L. 103-369.
3 P.L. 106-113.
4 P.L. 108-447, passed as Division J of Title IX of the FY2005 Consolidated Appropriations Act.
5 17 U.S.C. §§ 111, 119, and 122.
6 47 U.S.C. §§ 325, 335, 338, 339, 340, and 341.
7 17 U.S.C. §119.
8 A network is defined as an entity that offers an interconnected program service on a regular basis for 15 or more hours
per week to at least 25 affiliated television licensees in 10 or more states. (17 U.S.C. § 119(d)(2)(A) and 47 U.S.C. §
339(d)(2)(A)) In addition to the four major television networks—ABC, CBS, Fox, and NBC—that provide national
news as well as entertainment programming aimed at a general audience, there are several networks—Univision,
Telefutura, and Telemundo—that offer news and entertainment targeted to ethnic communities, as well as smaller
networks that provide entertainment or religious programming to their affiliates. Section 119(d)(2)(B) of the Copyright
Act defines “network station” to also include noncommercial broadcast stations.
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broadcast stations that are affiliated with those networks.9 It also would be
difficult for satellite operators to offer their subscribers the signals of distant
stations that are not affiliated with broadcast networks, such as “superstations.”10
In addition, section 119 provides those satellite operators that retransmit to their
subscribers the signals of “significantly viewed” stations—stations that are
located outside the local market in which the subscriber is located but have been
determined to be “significantly viewed” by those households in the local market
that do not subscribe to any MVPD provider—a royalty-free license for the
copyrighted works contained in those broadcast signals.11 If section 119 expired,
it would be very difficult (and perhaps impossible) for satellite operators to offer
their subscribers the signals of significantly viewed stations.
• Section 325(b)(2)(C) of the Communications Act12 allows a satellite operator to
retransmit the signals of distant network stations, without first obtaining the
retransmission consent of those distant stations, to those subscribing households
9 This would include subscribers who are not able to receive network programming because either (1) the satellite
operator does not offer the signals of the local broadcast stations and the subscribers are located too far from the
transmitter to receive the signals of the local network-affiliated stations over-the-air or (2) there is no network-affiliated
station in the local market. The specific household eligibility requirements for receiving distant signals are very
complex, and include certain grandfathered exceptions, but as a general rule households that can receive the signals of
local broadcast television stations either over-the-air or as part of local-into-local satellite service are not eligible to
receive distant network signals and would not be affected by the expiration of this provision.
10 The provisions in the two acts have sometimes created confusion because they define “superstations” differently. The
Communications Act identifies a class of “nationally distributed superstations” (47 U.S.C. § 339(d)(2)) that is limited
to six stations that were in operation prior to May 1, 1991. These are independent broadcast television stations whose
broadcast signals are picked up and redistributed by satellite to local cable television operators and to satellite
television operators all across the United States. These nationally distributed superstations in effect function like a
cable network rather than a local broadcast television station or a broadcast television network. The nationally
distributed superstations are WTBS, Atlanta; WOR and WPIX, New York; WSBK, Boston; WGN, Chicago; KTLA,
Los Angeles; and KTVT, Dallas. All of these nationally distributed superstations carry the games of professional sports
teams. It has become common in FCC proceedings and discussions to refer to these nationally distributed superstations
as simply “superstations.” In addition to these independent nationally distributed superstations, there also are many
independent television stations that are not nationally distributed superstations. This distinction is important because
under section 325(b)(2)(B) of the Communications Act, satellite operators may retransmit the signals of “superstations”
without obtaining the consent of the stations if they abide by the FCC’s network non-duplication and syndicated
exclusivity rules (which are discussed later in this report), but this exemption from the retransmission consent
requirement does apply to the retransmission of the signals of other independent stations. On the other hand, the
Copyright Act defines “superstation” as “a television station, other than a network station, licensed by the Federal
Communications Commission, that is secondarily transmitted by a satellite carrier.” (17 U.S.C. § 119(d)(9)) Thus,
under the Copyright Act, all independent stations are superstations and the copyright provisions apply the same way to
all independent stations. The House Judiciary Committee bill, H.R. 3570, and the Senate Judiciary Committee bill, S.
1670, would eliminate the current definitional inconsistency between the acts by replacing the word “superstation” with
“non-network station” throughout the Copyright Act.
11 The specific threshold viewing level for a “significantly viewed” station are, for a network affiliate station, a market
share of at least 3% of total weekly viewing hours in the market and a net weekly circulation of 25%; for independent
stations, 2% of total weekly viewing hours and a net weekly circulation of 5%. The share of viewing hours refers to the
total hours that households that do not receive television signals from MVPDs viewed the subject station during the
week, expressed as a percentage of the total hours these households viewed all stations during the week. Net weekly
circulation refers to the number of households that do not receive television signals from MVPDs that viewed the
station for 5 minutes or more during the entire week, expressed as a percentage of the total households that do not
receive television signals from MVPDs in the survey area. A satellite operator can retransmit the signals of these
significantly viewed stations only with the retransmission consent of the station.
12 47 U.S.C. § 325(b)(2)(C).
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that cannot receive the signals of local broadcast television network affiliates.13 If
it expired, a satellite operator would have to negotiate compensation terms with
those distant network stations whose signals it retransmitted to those “unserved”
subscribers.
• Section 325(b)(3)(C)(ii) of the Communications Act14 prohibits a television
broadcast station that provides retransmission consent from engaging in
exclusive contracts for carriage or failing to negotiate in good faith. Section
325(b)(3)(iii)15 prohibits an MVPD from failing to negotiate in good faith for
retransmission consent. If these provisions expired, a broadcaster or an MVPD
could choose to employ a “take it or leave it” strategy rather than to negotiate
retransmission consent terms in good faith, increasing the risk of an impasse that
results in subscribers losing access to the broadcast station’s programming.
The satellite and cable regulatory frameworks attempt to balance a number of longstanding, but
potentially conflicting, public policy goals—most notably, localism, competitive provision of
video services, support for the creative process, and preservation of free over-the-air broadcast
television. They also attempt to balance the interests of the satellite, cable, broadcast, and
program content industries. Congress incorporated the sunset provisions in SHVERA because of
its concern that market changes could affect these balances.
The statutory provisions distinguish between the retransmission of local signals—the broadcast
signals of stations located in the same local market as the subscriber—and of distant signals.
Provisions block or restrict the retransmission of many distant broadcast signals in order to
protect local broadcasters from competition from distant signals and to provide them with a
stronger negotiating position vis-à-vis the satellite and cable operators, with the intention of
fostering local programming. But the regulatory framework also recognizes that U.S. households
benefit from the receipt of certain distant broadcast signals and includes explicit retransmission
and copyright rules for these.
The regulatory framework for satellite sets the parameters within which industry players must
conduct business. It provides answers to four fundamental business questions:
• may—or must—the satellite operator retransmit some or all local broadcast
signals?16
• may the satellite operator retransmit certain categories of distant (non-local)
broadcast signals?
• is retransmission of those signals contingent on the satellite operator receiving
the prior retransmission consent of—and providing compensation to—the
broadcaster? and
• is use of the content on those signals subject to specific copyright license terms?
13 See footnote 9.
14 47 U.S.C. § 325(b)(3)(C)(ii).
15 47 U.S.C. § 325(b)(3)(C)(iii).
16 This is formally referred to in the statute as “secondary transmission” of the broadcast signals. The initial
transmission of the signals by the broadcast station is the “primary transmission.”
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Industry players also must conduct business within the context of the longstanding industry
practice of broadcast program suppliers—both broadcast networks and owners of non-network,
syndicated programming—contractually granting individual broadcast television stations the
exclusive broadcast rights to that programming in a geographic area and restricting those
broadcast stations from allowing other parties to retransmit the station signals carrying that
programming beyond the area of exclusivity. Thus, in some situations where the regulatory
framework allows satellite (or cable) operators to retransmit the signals of a distant broadcast
station, subject to obtaining the permission of the broadcast station, that station may be—and, in
practice, often is—contractually prohibited from granting the MVPD retransmission consent.
Although satellite and cable operators compete directly with one another in most markets, there
are significant differences in the regulatory frameworks under which they operate. (These
differences are presented in greater detail in Table 1 later in this report.) These differences largely
reflect the different origins of the cable and satellite industries—cable beginning as a business
and technology focused on serving narrow geographic areas and satellite beginning as a business
and technology serving broad geographic areas. To this day, the cable network architecture and
technology can more efficiently accommodate local programming than can satellite. Some
observers have proposed that the retransmission, copyright, and other rules under which these
competing multichannel video programming distributors operate should be rationalized to
eliminate artificial competitive advantages or disadvantages. For example, the Copyright Office,
in a report to Congress required by SHVERA,17 has proposed that the gross receipts royalty
system for cable retransmission of distant broadcast signals in section 111 of the Copyright Act be
replaced by a flat fee per subscriber system of the sort for satellite retransmission of distant
broadcast signals in section 119 of the Copyright Act. The Copyright Office also has proposed18
that the provisions defining satellite subscriber eligibility for receiving distant signals in section
119 (the “unserved household” provisions) be replaced by the imposition on satellite operators of
the FCC’s network non-duplication19 and syndicated exclusivity rules20 (but not its sports
17 Satellite Home Viewer Extension and Reauthorization Act Section 109 Report, A Report of the Register of
Copyrights, June 2008, at pp. ix-xi and 94-180.
18 Satellite Home Viewer Extension and Reauthorization Act Section 109 Report, A Report of the Register of
Copyrights, June 2008, at pp. 167-168.
19 47 C.F.R. §§ 76.92, 76.93, 76.106, 76.120, and 76.122. Commercial television station licensees that have contracted
with a broadcast network for the exclusive distribution rights to that network’s programming within a specified
geographic area are entitled to block a local cable system from carrying any programming of a more distant television
broadcast station that duplicates that network programming. Commercial broadcast stations may assert these non-
duplication rights regardless of whether or not the network programming is actually being retransmitted by the local
cable system and regardless of when, or if, the network programming is scheduled to be broadcast. This rule applies to
cable systems with more than 1,000 subscribers. Generally, the zone of protection for such programming cannot exceed
35 miles for broadcast stations licensed to a community in the FCC’s list of top 100 television markets or 55 miles for
broadcast stations licensed to communities in smaller television markets. The non-duplication rule does not apply when
the cable system community falls, in whole or in part, within the distant station’s Grade B signal contour. In addition, a
cable operator does not have to delete the network programming of any station that the FCC has previously recognized
as “significantly viewed” in the cable community. With respect to satellite operators, the network non-duplication rule
applies only to network signals transmitted by superstations, not to network signals transmitted by other distant
network affiliates.
20 47 C.F.R. §§ 76.101, 76.103, 76.106, 76.120, and 76.123. Cable systems that serve at least 1,000 subscribers may be
required, upon proper notification, to provide syndicated protection to broadcasters who have contracted with program
suppliers for exclusive exhibition rights to certain programs within specific geographic areas, whether or not the cable
system affected is carrying the station requesting this protection. However, no cable system is required to delete a
program broadcast by a station that either is significantly viewed in the cable community or places a Grade B or better
contour over the community of the cable system. With respect to satellite operators, the syndicated exclusivity rule
applies only to syndicated programming transmitted by superstations, not to syndicated programming transmitted by
(continued...)
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blackout21 rules), which currently are used to limit the retransmission of distant broadcast signals
by cable operators. But, to date, there has been little discussion of a major modification of the
regulatory framework. The proposals attracting the most legislative interest more narrowly
address reauthorization of the provisions that will expire on December 31, 2009, updating the
statutory language to reflect the transition from analog to digital technology, and ways to foster
wider satellite retransmission of broadcast programming of local and state-wide interest.
Issues in the Current Public Policy Debate
The current policy debate is motivated by, but not limited to, the need to address the
statutory copyright and retransmission provisions that will expire on December 31, 2009.
Copyright is within the jurisdiction of the judiciary committees; retransmission of
broadcast signals is within the jurisdiction of the commerce committees. The Senate
Judiciary Committee, House Judiciary Committee, Senate Commerce Committee, and
House Commerce Committee all have reported bills (S. 1670, H.R. 3570, S. 2764, and
H.R. 2994, respectively) that address reauthorization by extending the expiring
provisions (with some minor modifications) for five years, as well as a number of related
policy issues. There has been no opposition to the reauthorization of the expiring
provisions in the Communications Act and Copyright Act.
Revising Existing Rules That Are Based on Analog Technology
A number of statutory provisions, and many FCC and Copyright Office rules adopted to
implement statutory provisions, are based on the transmission of analog broadcast signals, but
during 2009 the transition to digital broadcast signals will largely be achieved. As a result,
statutes and rules that explicitly refer to analog technology may no longer be effective in attaining
the objectives for which they were initially enacted, unless they are modified. A number of parties
have stated that it is timely to make such modifications. Marybeth Peters, Register of Copyrights,
has proposed five modifications to Section 111 of the Copyright Law and four modifications to
(...continued)
other distant broadcast stations.
21 47 C.F.R. §§ 76.111, 76.120, 76.127, and 76.128. A cable system located within 35 miles of the city of license of a
broadcast station where a sporting event is taking place may not carry the live television broadcast of the sporting event
on its system if the event is not available live on a local television broadcast station, if the holder of the broadcast rights
to the event, or its agent, requests such a blackout. The holder of the rights is responsible for notifying the cable
operator of its request for program deletion at least by the Monday preceding the calendar week during which the
deletion is desired. If no television broadcast station is licensed to the community in which the sports event is taking
place, the 35-mile blackout zone extends from the broadcast station’s licensed community with which the sports event
or team is identified. If the event or local team is not identified with any particular community (for instance, the New
England Patriots), the 35-mile blackout zone extends from the community nearest the sports event which has a licensed
broadcast station. The sports blackout rule does not apply to cable television systems serving fewer than 1,000
subscribers, nor does it require deletion of a sports event on a broadcast station’s signal that was carried by a cable
system prior to March 31, 1972. The rule does not apply to sports programming carried on non-broadcast program
distribution networks such as ESPN. These networks, however, may be subject to private contractual blackout
restrictions. Similarly, the sports blackout rule applies to satellite operators only if a local television broadcast station is
not carrying the local sports event. If a local broadcast station does not have permission to carry the local game, then no
other broadcaster’s signal displaying the game can be shown in the protected local blackout zone. The sports blackout
rule applies to a satellite operator’s retransmission of nationally distributed superstations and network affiliated
stations. The rule exempts satellite operators with fewer than 1,000 subscribers in the protected area.
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Section 119 of the Copyright Act “to accommodate the conversion from analog to digital
broadcasting.”22 For example, under current law, satellite subscribers who are not able to receive
a grade B quality analog television signal23 (and are thus considered “unserved”) are allowed to
receive distant signals if their satellite operator is not offering local-into-local service, and some
unserved subscribers are allowed to receive distant signals even if their operator does offer local-
into-local service. Although the definition of unserved is based on analog technology, those
households also are considered unserved for digital service and thus may in some circumstances
be allowed to receive distant digital signals by satellite.
The House Commerce Committee bill, H.R. 2994, and the Senate Commerce Committee bill, S.
2764, both include specific proposed changes to current language in the Communications Act
intended to address this problem. They also include provisions directing the FCC to develop a
predictive model for the reception of digital signals within six months of enactment in order to
determine which households are “unserved” and therefore eligible to receive digital network
signals. Similarly, the House Judiciary Committee bill, H.R. 3570, and the Senate Judiciary
Committee bill, S. 1670, include specific proposed changes to current language in the Copyright
Act intended to replace existing references to analog technology with relevant references to
digital technology and also instruct the FCC to establish a predictive model for the reception of
digital signals.24 The bills also include provisions that address the period before the new
predictive model has been implemented.
22 Marybeth Peters, Register of Copyrights, written statement before the House Judiciary Committee, hearing on
“Copyright Licensing in a Digital Age: Competition, Compensation and the Need to Update the Cable and Satellite TV
Licenses,” at Appendix 1, February 25, 2009. The proposed modifications to section 111 include revising section 111,
and its terms and conditions, to expressly address the retransmission of digital broadcast signals; amending the
definition of “local service area of a primary transmitter” to include references to digital station “noise limited service
contours” for purposes of defining the local/distant status of noncommercial educational stations (and certain UHF
stations) for statutory royalty purposes; amending the statutory definition of “distant signal equivalent” (DSE) to clarify
that the royalty payment is for the retransmission of the copyrighted content without regard to the transmission format;
amending the definitions of “primary transmission” and “secondary transmission,” as well as the “station” definitions
in section 111(f) so they comport to the amended definition of DSE; and clarifying that each multicast stream of a
digital television station shall be treated as a separate DSE for section 111 royalty purposes. The proposed
modifications to section 119 include replacing the existing Grade B analog standard with the new noise-limited digital
signal intensity standard; adopting the Individual Location Longley Rice (ILLR) predictive digital methodology for
predicting whether a household can receive an acceptable digital signal from a local digital network station; mandating
that the FCC adopt digital signal testing procedures for purposes of determining whether a household is actually
unserved by a local digital signal; and deleting various references in section 119 to “analog” unless that reference is to
low power television stations that have not yet converted to digital broadcasting.
23 The Grade B contour around a station’s transmitter identifies the geographic area in which the quality of picture is
expected to be satisfactory to the median observer at least 90% of the time for at least 50% of the receiving locations
within the contour, in the absence of interfering co-channel and adjacent channel signals. (See Warren Communications
News, Television & Cable Factbook 2009, at p. A-16.
24 At the October 7, 2009, hearing on “Reauthorization of the Satellite Home Viewing Extension and Reauthorization
Act of 2004,” of the Subcommittee on Communications, Technology, and the Internet of the U.S. Senate Committee on
Commerce, Science, and Technology (Senate Commerce subcommittee hearing), Robert Gabrielli, senior vice
president for program operations at DirecTV, claimed that the current predictive model used by the FCC significantly
understates the number of households that are unserved, relative to a model employed by the National Association of
Broadcasters (NAB). He argued that reliance on the current FCC model would result in many households neither
getting signals over-the-air or by satellite. But Paul Karpowicz, president of Meredith Broadcasting Group and
representing the NAB at the hearing, disputed this claim.
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The Retransmission of In-State, but Non-Local, Broadcast Signals
into Counties Assigned to Local Markets in Other States (“Orphan
Counties”)
The current regulatory frameworks for both satellite and cable distinguish between the
retransmission of local and distant signals and require that local markets be defined by the
Designated Market Areas (DMAs) constructed and published by Nielsen Media Research.25 The
viewing patterns that underlie these Nielsen markets are primarily the result of the physical
locations of the various broadcast television stations and the reach of their signals. (They also
reflect the boundaries of the exclusive broadcast territories that each of the three original
television broadcast networks—ABC, CBS, and NBC—had incorporated into their contracts with
their local affiliate stations decades ago.) DMAs do not take into account state boundaries. As a
result, under current statutes and rules, a number of counties are assigned to local markets for
which the principal city (from which all or most of the local television signals originate) is
outside their state.26 Satellite subscribers (and many cable subscribers) in these “orphan counties”
may not be receiving signals from in-state broadcast stations and as a result may not be receiving
news, sports, and public affairs programming of interest in their state.
Some observers therefore have proposed that the statutory framework be modified to remove
prohibitions or impediments on satellite operators retransmitting to their subscribers in these
counties the signals of broadcast stations in in-state, but non-local, markets. (SHVERA
selectively removed these impediments through four “exceptions” that allow satellite operators to
retransmit to their subscribers in particular orphan counties in New Hampshire, Vermont, Oregon,
and Mississippi—but not in other locations—the signals of in-state but out-of-market broadcast
stations.27) Broadcasters, however, have voiced concern that allowing such retransmission could
undermine their financial viability by reducing their audience share and thus reducing their
advertising revenues. They also assert such retransmission would weaken the local broadcasters’
negotiating position with the satellite and cable operators, who could turn to the programming of
an in-state but out-of-market affiliate of a particular network if they failed to reach retransmission
consent with the local affiliate of that network. Broadcasters claim this would harm their ability to
provide quality local programming, which is expensive to produce.28
Although a number of bills have been introduced that would address this issue (either generically
or for specific states or geographic areas) by allowing satellite operators to retransmit to
subscribers in orphan counties the signals of certain in-state, but non-local broadcast stations,29
25 The statutory provisions for satellite explicitly require the use of Nielsen’s DMAs. (17 U.S.C. § 122(j)(2)(A) and
(C).) The statutory provisions for cable instructed the FCC to make market determinations “using, where available,
commercial publications which delineate television markets based on viewing patterns.” (47 U.S.C. § 534(h)(1)(C).)
Nielsen had already delineated such television markets, assigning geographic areas to markets based on predominant
viewing patterns in order to construct ratings data for advertisers, and the FCC therefore adopted Nielsen’s market
delineations.
26 A complete state-by-state list of these counties, their populations, and the full power television stations located in the
counties is provided in Table A-1 in the Appendix to this report.
27 17 U.S.C. §§ 119(a)(2)(c)(i)-(iv) and 47 U.S.C. § 341.
28 See, for example, John Eggerton, “Affiliate Associations Warn Legislators Against Allowing Imported Signals from
In-State, Distant Markets,” Broadcasting & Cable, March 30, 2009.
29 Representative Ross has introduced H.R. 3216, which would allow multichannel video programming distributors
(MVPDs)—satellite operators and cable operators (including telephone companies)—serving an orphan county to
(continued...)
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the bills reported out of the House Commerce, House Judiciary, Senate Commerce, and Senate
Judiciary committees do not include any provisions that would address this issue directly. During
the markup of the Senate Judiciary Committee bill (S. 1670), reportedly several Senators
proposed amendments that would have narrowly addressed the orphan county issue in their states,
but then agreed to withdraw their amendments when other Senators voiced concern that the
provisions would delay passage of the legislation because of unresolved issues among
broadcasters and satellite operators. At the markup reportedly there was discussion of imposing a
deadline on the industry to reach a negotiated solution, such as a proposal by Senator Coburn that,
if there is no industry agreement by the time the legislation reaches the Senate floor, a trigger
provision be inserted in the bill that would impose a statutory solution for the orphan counties
issue if no negotiated compromise is reached after two years.30
The House Commerce Committee bill includes a provision instructing the FCC to prepare within
one year a report containing analysis of (1) the number of households in each state that receive
local broadcast signals from stations of license located in a different state; (2) the extent to which
consumers have access to in-state broadcast programming; and (3) whether there are alternatives
to the use of DMAs to define local markets that would provide more consumers with in-state
broadcast programming. In addition, a savings clause in the House Commerce Committee bill—
stating that nothing in that legislation, in the Communications Act, or in any FCC regulation shall
limit the ability of a satellite operator to retransmit a performance or display of a work pursuant to
an authorization granted by the copyright owner—is intended to clarify that a satellite operator
always has the opportunity to negotiate a copyright license outside the section 119 statutory
license. As is explained later in this report, this clarification is not likely to result in the satellite
retransmission into orphan counties of the sports and network programming on in-state, but out-
of-market stations, but could encourage the retransmission of those stations’ locally produced
news programming. The various elements of the orphan county issue are discussed in greater
detail later in this report.
Discretionary vs. Mandatory Provision of Local-into-Local Service
Currently, satellite operators are allowed, but not required, to offer subscribers the signals of all
the broadcast stations in their local market. If a satellite operator chooses to retransmit the signal
of a local broadcast station and to take advantage of a royalty-free statutory copyright license for
the content carried on that signal, it must retransmit the primary signals of all the full power
stations in that local market, subject to obtaining local station permission. The satellite operators
have chosen not to offer this “local-into-local” service in many small markets, preferring to use
their satellite capacity to provide additional high definition and other programming to larger,
(...continued)
retransmit to their subscribers in that county the signals of television broadcast stations located in an adjacent in-state
market. In addition, the Four Corners Television Access Act of 2009 has been introduced in both the House (H.R.
1860, by Representatives Salazar and Coffman) and the Senate (S. 771, by Senators Bennet and Udall) to allow satellite
operators to retransmit the signals of certain in-state broadcast stations to subscribers located in two Colorado counties
that are assigned to the Albuquerque, NM, local market and to allow cable operators located in those counties to
retransmit the signals of certain in-state stations without having to obtain retransmission consent from the stations.
Also, Representative Boren has introduced H.R. 505, which would allow satellite operators to retransmit to any
subscriber in the state of Oklahoma—not just those in orphan counties—the signals of any broadcast station located in
that state.
30 See Anandashankar Mazundar, “Senate Judiciary Committee Votes Out Satellite Television Reauthorization Bill,”
BNA Daily Report for Executives, September 25, 2009.
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more lucrative markets than to use the capacity to serve very small numbers of customers. In
some cases, those small markets may not generate enough revenues to cover the costs of
providing local-into-local service.31 As a result, approximately 3% of all U.S. households do not
have access to local broadcast signals if they subscribe to satellite video service.32
Early in the 111th Congress, Representative Stupak introduced H.R. 927, which would, in effect,
require satellite operators to offer local-into-local service in all markets; if a satellite operator
wished to use the royalty-free statutory copyright license to rebroadcast the content on a
broadcast signal in any local market, it would have to provide local-into-local service in every
market. But during markup of the House Commerce Committee bill, H.R. 2994, Representative
Stupak agreed to withdraw his bill (which he had introduced in the form of an amendment), when
DISH Network indicated that it would voluntarily provide local-into-local service in all 210
markets within two years in exchange for statutory relief (provided in provisions in H.R. 2994
and H.R. 3570) from a current court injunction prohibiting it from providing its subscribers
distant signals using the section 119 copyright license.33
Specifically, as a result of repeated violations of section 119 of the Copyright Act, DISH Network
currently is subject to a permanent court injunction barring it from using the section 119 statutory
copyright license to retransmit distant signals to its subscribers; it therefore must employ an arms-
length agreement with National Programming Service for that entity to deliver distant signals to
its subscribers. The relevant provisions in H.R. 3570 and H.R. 2994 would waive the injunction if
DISH Network provides local-into-local service in all 210 local markets in the United States,
creating a process by which DISH Network could be found qualified to obtain a certification for a
section 119 copyright license and by which parties could challenge that certification. The steps in
this process as well as the arguments in the debate over discretionary vs. mandatory provision of
local-into-local service are presented in greater detail in a later section of this report.
The Senate Judiciary Committee bill includes provisions intended to indirectly encourage DISH
Network to offer local-into-local service in currently unserved markets. Many of those unserved
markets are “short markets” that have less than the full complement of local network affiliates for
the four major national broadcast networks—ABC, CBS, FOX, and NBC. Currently, satellite
operators can use the statutory copyright license for distant signals in section 119 of the
Copyright Act to retransmit to their subscribers the content on the broadcast signals of (1) local
low power stations, (2) significantly viewed stations, (3) the in-state but out-of-market stations in
31 Paul Gallant, an analyst with Stanford Washington Research Group, reportedly stated that mandatory provision of
local-into-local service in all markets “would impose significant new costs on Dish Network and DirecTV and generate
virtually no new revenue” because the markets in question are so small. See Todd Shields, “DirecTV, Dish May Face
Requirement for More Local TV (Update1),” Bloomberg.com, February 23, 2009, available at http://www.bloomberg.
com/apps/news?pid=newsarchive&sid=ayQ_vo3nJImo, viewed on April 27, 2009.
32 According to the written testimony of Charles W. Ergen, chairman, president, and chief executive officer of DISH
Network Corporation, submitted for the hearing on “Reauthorization of the Satellite Home Viewer Extension and
Reauthorization Act,” before the Subcommittee on Communications, Technology, and the Internet, Committee on
Energy and Commerce, U.S. House of Representatives, February 24, 2009, at p. 2, “DISH provides local service in 178
markets today, reaching 97 percent of households nationwide.” According to the written testimony of Bob Gabrielli,
senior vice president, broadcasting operations and distribution, DIRECTV, Inc., before the House Judiciary Committee,
February 25, 2009, at p. 10, “DIRECTV today offers local television stations by satellite in 150 of the 210 local
markets in the United States, serving 95 percent of American households. (Along with DISH Network, we offer local
service to 98 percent of American households.)”
33 See John Eggerton, “DISH: Local Into Local Within Two Years—No. 2 DBS Provider Said It Will Deliver Local TV
Stations to All 210 DMAs During that Time Frame,” Multichannel News, October 15, 2009.
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the four states that satellite operators were allowed to import into orphan counties under the
exceptions in SHVERA, and (4) distant network stations affiliated to national networks for which
there is no affiliate in the local (short) market. But DISH Network is enjoined from using the
section 119 copyright license. The Senate Judiciary Committee bill would change the license
required to retransmit the content of those four categories of broadcast signals from the section
119 license to the section 122 statutory copyright license for local signals, thus providing DISH
Network with an efficient and inexpensive license and that might encourage it to serve the
currently unserved markets.
The Senate Commerce Committee bill (S. 2764) would require each satellite carrier to submit a
semi-annual report to the FCC setting forth (1) each market in which it offers local-into-local
service; (2) detailed information regarding the use of satellite capacity for the provision of local-
into-local service; (3) each local market in which it has commended offering local-into-local
service in the six-month period covered by the report; and (4) each local market in which it has
ceased to offer local-into-local service in the six-month period. The FCC would be required to
submit to the Senate and House Commerce committees within a year a report containing the
findings, conclusions, and recommendations of a study of (1) incentives that would induce a
satellite carrier to offer local-into-local service in markets the carrier has not been serving; and (2)
the economics and satellite capacity conditions affecting delivery of local signals by satellite
carriers to these markets.
Which Broadcast Signals Satellite Operators May Offer in Those
Markets That Lack a Network Affiliate (“Short Markets”)
Currently, in local markets that are not served by an affiliate of a particular broadcast network,
satellite operators may retransmit the distant signals of up to two distant stations affiliated with
that network.34 This provision applies to all network stations, but in practice it primarily involves
the retransmission of distant signals into “short markets” that do not have local broadcast stations
affiliated with each of the four major national broadcast networks—ABC, CBS, FOX, and NBC.
The current statutory framework has been criticized by some for being too lenient and by others
for being too restrictive.
Some observers have proposed that, rather than allowing satellite operators to import the signals
of any distant network affiliates, such importation of distant network affiliate signals into a
market be limited to the signals of affiliates in an adjacent, in-state market, to maximize the
likelihood that the programming provided would contribute to localism.35 The Senate Judiciary
Committee bill would allow a satellite operator to retransmit into a short market the signal of a
station located in an adjacent market that is affiliated with a network for which there is no
affiliated local station, subject to obtaining the retransmission consent of the broadcast station.
At the same time, under current rules, in areas where a network-affiliated broadcast station is
located near the DMA boundary, so that its signal extends into a portion of a neighboring DMA
that does not have a local station affiliated with the same network, households in that neighboring
market who can receive that signal at a Grade B level are not considered to be “unserved” for that
34 47 U.S.C. § 339.
35 See, for example, Cheryl Bolen, “Boucher Advises Broadcasters to Negotiate Performance Royalty,” BNA Daily
Report for Executives, April 1, 2009.
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network; a satellite operator can neither offer that overlapping signal to those households as part
of local-into-local service (since it is a distant signal) nor provide to those households the signal
of a distant station affiliated with the same network, because those households are not considered
unserved. The satellite operators have proposed that current rules be modified to eliminate this
so-called “Grade B bleed” problem by modifying the test for a subscriber being unserved to apply
only to the strength of the signal from an in-market station or by defining unserved in terms of
whether the viewer can get local service from the satellite spot beam, rather than in terms of over-
the-air reception.36
The House Judiciary Committee and Senate Judiciary Committee bills would address this issue
by defining as “unserved” those households that do not receive an over-the-air signal with the
network programming from their local affiliate. The broadcasters and programmers have opposed
such a change. As explained in the next section of this report, they believe the short market issue
can best be addressed by taking advantage of the multicasting capabilities of digital technology.
The Senate Judiciary Committee bill indirectly addresses the short market problem by moving
from section 119 of the Copyright Act to section 122 the copyright license provision for the
retransmission of the content on the signals of a distant network station affiliated with a network
for which there is no local affiliated station. This would allow DISH Network, which is under a
court injunction prohibiting it from retransmitting signals under section 119 of the Copyright Act,
to do so using the section 122 statutory license.
Multicasting and Unserved Households in Short Markets
Broadcasters and programmers indicate that with the digital transition, the existing broadcast
stations in short markets have multicasting capabilities and therefore can—and often do—carry
the programming of a second and perhaps even third network. Thus, they claim, there are fewer
and fewer markets in which households cannot receive the signals of all four major broadcast
networks, and these few can be addressed by allowing or requiring satellite operators to carry all
the network signals carried by a local broadcaster, even if they are not the local broadcast
station’s primary signal.37
But the current statutory language does not explicitly address the situation where a digital station
in a short market is broadcasting multiple video streams—the programming of its primary
affiliated network and also the programming of one or more other networks. Section
119(d)(10)(A) of the Copyright Act defines an “unserved household” as “a household that cannot
receive, through the use of a conventional, outdoor rooftop antenna, an over-the-air signal of a
primary network station affiliated with that network of Grade B intensity,” where a “primary
network station” is “a network station that broadcasts or rebroadcasts the basic programming
service of a particular national network.” One possible interpretation of this broad definition of a
primary network station is that a single broadcast station multicasting more than one broadcast
36 See, for example, the written testimony of Derek Chang, executive vice president, content strategy and development,
DirecTV, Inc., before the House Committee on Energy and Commerce, Subcommittee on Communication Technology,
and the Internet, June 16, 2009, at pp. 5-6.
37 See, for example, the written statement of Paul A. Karpowicz, president, Meredith Broadcasting Group, on behalf of
the Television Board of the National Association of Broadcasters, before the Subcommittee on Communications,
Technology, and the Internet, House Committee on Energy and Commerce, “Hearing on Discussion Draft of
Legislation to Reauthorize the Satellite Home Viewer Act,” June 16, 2009, at p. 8.
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network represents more than one primary network station. This, in turn, would suggest that if a
local broadcast station in a short market were broadcasting multiple video streams that included
both the programming of its primary network affiliation on its primary video stream and the
programming of another national network on a secondary video stream, households receiving
those multiple video streams at a Grade B level would be considered served both with respect to
the primary network and the secondary network. Presumably, then, a satellite operator would not
be able to import to subscribers in that market the signals of a distant broadcast station affiliated
with that second network and, if it were offering local-into-local service, would have to include
retransmission of the broadcaster’s second video stream (if it obtained retransmission consent
from the broadcast station).38 But currently there is no explicit statutory language to that effect.
At the October 7, 2009, Senate Commerce subcommittee hearing, the panelist from DirecTV
claimed that the non-primary “multicast channels do not now ‘count’ for purposes of determining
eligibility for distant signals under the Copyright Act.”39 Moreover, if the public policy rationale
for limiting satellite retransmission of distant signals is to foster localism, a single station
multicasting the programming of multiple national networks would not be fostering localism
unless it offered unique locally-produced programming on each of its video streams (though the
limitation might strengthen the local broadcaster financially by restricting competition).40 It
therefore is conceivable that the FCC or a court could conclude that the holder of a single
broadcast license at a particular location should not be considered to have multiple primary
network stations; in that case, households would be considered unserved with respect to the
network signals carried by the local broadcaster’s secondary video stream and the satellite
operator would be allowed to retransmit a distant network signal to its subscribers.
The House Judiciary Committee bill (H.R. 3570) addresses this issue, but does not treat all
secondary video streams the same as primary ones. Under the bill, if a local broadcaster has a
video stream, other than its primary video stream, that provides the programming of a national
network and was carried by a satellite operator on July 1, 2009, and if the broadcaster continues
to carry that network’s programming on that video stream, then that video stream would be
considered a “qualified multicast video” and households in that local market would be considered
served with respect to the broadcast network whose programming was carried on that video
stream; a satellite carrier could not bring in the distant signal of another broadcast station
affiliated with the streamed network. Presumably, if the satellite operator were offering local-into-
local service in that market, it would have to include that multicast video stream if it reached
retransmission agreement with the broadcaster. Also, under the bill, if a local broadcaster has a
38 This is in contrast to the must carry provision in section 534(b)(3)(A) of the Communications Act, which requires a
cable operator to carry the primary video of each local broadcast television station. The FCC has interpreted the
primary video to be only the video stream of the broadcast station’s primary network affiliate, not any secondary video
streams.
39 Written Testimony of Robert Gabrielli, senior vice for program operations, DirecTV, before the Senate Committee
on Commerce, Science, and Transportation, October 7, 2009, at p. 4.
40 In his written testimony for the October 7, 2009, Senate Commerce subcommittee hearing, at p. 4, Robert Gabrielli
of DirecTV claimed that “We have reviewed the programming of network-affiliated multicast streams throughout the
country, and could not find a single one anywhere that offers any new local content.” At that same hearing, Paul A.
Karpowicz of Meredith Broadcasting Group and the NAB, at p. 7 of his written testimony (Testimony of Paul A.
Karpowicz, president, Meredith Broadcasting Group, before the Subcommittee on Communications and Technology,
Committee on Commerce, Science and Transportation, U.S. Senate), states that “KBAK-TV, the CBS affiliate in
Bakersfield, California, now carries Fox network programming on a multicast channel and presents separately
originated local news and other localized program services on that channel as well. With the switch to digital last June,
this trend will continue and the number of short markets should be substantially and rapidly reduced.”
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video stream, other than its primary video stream, that provides the programming of a national
network and that exists on January 1, 2013, and if the broadcaster continues after that date to
carry that network’s programming, then that video stream also would be considered a “qualified
multicast video” and households in that local market would be considered served with respect to
the broadcast network whose programming was carried on that video stream; a satellite carrier
could not bring in the distant signal of another broadcast station affiliated with the streamed
network. Again, presumably, if the satellite operator were offering local-into-local service in that
market, it would have to include that multicast video stream if it reached retransmission
agreement with the broadcaster. Language in H.R. 3570 also would clarify that copyright fees
should be established for each digital stream of programming in the event of a multicast
transmission. Under the bill, however, if a local broadcaster were to begin multicasting another
broadcast network signal after July 1, 2009, then between that date and January 1, 2013, the
signal would not be deemed a qualified multicast video and a satellite carrier could import into
the local market the signal of a broadcaster affiliated with the same network.
In contrast, the Senate Judiciary Committee bill (S. 1670) would not modify the definition of
unserved households to address the non-primary video streams of multicasting stations. It would
continue to define unserved households in terms of their inability to receive the signals of
“primary network stations.”
Both the House Commerce Committee bill (H.R. 2994) and the Senate Commerce Committee bill
(S. 2764) would allow a satellite subscriber who was lawfully receiving the distant signal of a
network station on the day before enactment of the new legislation to receive both that distant
signal and the local signal of a network station affiliated with the same network until the
subscriber chooses to no longer receive the distant signal from its satellite operator. Thus, if in a
short market a local broadcaster began to multicast on a non-primary video stream the
programming of the network for which there has been no local affiliate, and the satellite operator
chose to retransmit that non-primary video stream, a subscriber who has been receiving the
distant network signal could continue to receive that distant signal as well as the local network
signal, as long as it did not discontinue its distant service. A household in that short market would
not be allowed to receive a distant network signal, however, if it received from the satellite
operator the programming of that same network from the non-primary video stream of a local
broadcaster but was not a subscriber lawfully receiving the distant signal on the day before
enactment of the new legislation.41
Which Households Are Eligible to Receive Distant Signals:
Grandfathered Subscribers, Other Subscribers, and Households
that Are Not Subscribers When Legislation is Enacted (“Future
Applicability”)
The primary mechanism for limiting satellite retransmission of distant network signals has been
to restrict such retransmission to “unserved” households that cannot receive the programming of a
41 H.R. 2994 and S. 2764 also include a savings clause stating that the legislation would not affect the current
definitions of “program related” and “primary video” in FCC rules, which explicitly limit cable operators’ must-carry
responsibilities to the primary video stream. Cable operators do not have to carry the multicast non-primary video
streams of local broadcasters.
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particular network because either (1) the satellite operator is not offering local-into-local service
in that market and the households cannot receive a signal of a threshold quality level over-the-air
from the local network affiliate, or (2) there is no local affiliate offering the programming of that
network. But current rules also include certain grandfathered exceptions to those eligibility
restrictions; as a result, many households that are able to receive a network signal from a local
broadcast station are allowed to continue to receive the distant signal of a broadcast station
affiliated with the same network.
All four committee bills would retain these grandfathered exceptions and in some ways expand
on them. On one hand, it may not be much of a burden on the satellite operators to continue to
offer the distant signals to grandfathered subscribers if they would be using capacity on their
broad beams and satellites to uplink and downlink those signals anyway. On the other hand, such
grandfathering of the importation of distant signals (primarily from New York and Los Angeles)
undermines the policy of fostering localism, even if only on the margin.
Section 339 of the Communications Act sets the rules for carriage of distant television station
signals by satellite operators. Section 339(a)(2) addresses the replacement of distant signals with
local signals, enumerating four different sets of rules: for grandfathered subscribers to analog
distant signals, for other subscribers to analog distant signals, for households that are not
subscribers at the time the legislation is enacted (future applicability), and for subscribers to
distant digital signals. Both the House Commerce Committee bill (H.R. 2994) and the Senate
Commerce Committee bill (S. 2764) would change some of these rules.
• Under both the House and the Senate Commerce bills, section 339(a)(2)(A), the
current grandfathering provision that allows certain households that historically
had been receiving distant network signals illegally and therefore otherwise
would not have qualified to receive certain distant signals to continue to receive
those signals, would be retained, with the language updated only to reflect the
date of enactment of the new legislation and to eliminate reference to analog
technology. All these households would continue to be grandfathered to receive
distant network signals despite being able to receive the signals of local stations
with the same network affiliation.
• The House Commerce bill would eliminate references to analog signals, but
otherwise retain section 339(a)(2)(B), which currently addresses “rules for other
[non-grandfathered] subscribers to analog signals.” The revised provision in H.R.
2994, like the current provision, has two parts. Under the first part, if a
household’s satellite operator had made a local network station available on
January 1, 2005 as part of local-into-local service, the operator would
nonetheless be allowed to provide to that household a distant signal of a station
affiliated with the same network if the operator had submitted to the television
network no later than March 1, 2005 a list of households receiving that distant
signal that included that household. This continues the grandfathering of
households that had been legally receiving a distant network signal and were
allowed to continue to receive that signal when they also had access to the signal
of a local broadcast station affiliated with the same network. Under the second
part, if the satellite operator had not made available a local network station on
January 1, 2005 as part of local-into-local service, the operator would be allowed
to offer the household the distant network signal only if (a) the household seeks
to subscribe to the distant signal before the date on which the operator begins to
offer local-into-local service, and (b) the operator submits to each television
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network within 60 days of commencing such service the households subscribing
to the distant signal. Here, a household that had legally sought to receive a distant
network signal would be allowed to continue to receive that signal after the
signal of a local broadcast station affiliated with the same network was available..
• The Senate Commerce bill would eliminate current section 339(a)(2)(B), “rules
for other subscribers to analog signals,” and thus, unlike the House Commerce
bill, would not explicitly allow these two categories of households to continue to
receive distant network signals when the signals of local broadcast stations
affiliated with the same network were available.
• However, under both the House and Senate Commerce bills, a subscriber who
was lawfully receiving from a satellite operator the distant signal of network
station on the day before enactment of the new law would be allowed to receive
both the distant signal and the local signal of the same network until the
subscriber chooses to no longer receive the distant signal from the satellite
operator (whether or not the subscriber elects to subscribe to local-into-local
service). Thus, all the households legally receiving distant network signals under
section 339(a)(2)(B) of current law would continue to be allowed to receive those
distant signals under both the House Commerce and Senate Commerce bills.
• Under both the House Commerce bill and the Senate Commerce bill, a satellite
operator would not be allowed to provide a distant network signal to a household
that (1) is not a subscriber legally receiving that distant signal on the date of
enactment of the new law, and (2) either (a) at the time the household seeks to
receive the distant signal it resides in a local market where the satellite operator
offers local-into-local service that includes a local station affiliated to the same
network and the household can receive that local-into-local service, or (b) the
household receives from the satellite operator the non-primary video stream of a
multicasting local station that has the same network programming as the distant
network station.
• Under the House Commerce bill, a subscriber would be eligible to receive a
distant signal of a network station affiliated with the same network as a local
station if the household is determined, based on a test conducted in accordance
with the current model or any successor regulation based on an improved
predictive model and on-location testing, not to be able receive the signal of the
local station with an intensity that exceeds the standard. Any eligible subscriber
who is a lawful subscriber for such a distant signal as of the date of enactment of
the new legislation would be allowed to continue to receive that distant signal.
This would appear to allow a household that currently fails to meet the signal
intensity test for analog service for the signal of a local network station to be
grandfathered for the receipt of a distant network signal carrying the same
network, even if it could receive the digital signal of the local network station.
• Under the Senate Commerce bill, a subscriber (1) whose household is not
predicted by the new predictive model to receive a local network signal at
sufficient intensity to be considered served, or (2) who is determined to be an
unserved household by the definition in section 119(d)(10)(A) of the Copyright
Act (which is based on the old analog signal quality measure), would be eligible
to receive the distant signal of a broadcast station affiliated with the same
network, subject to a modified testing and waiver process intended to improve on
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the existing process. This, too, appears to allow a household that does not meet
the signal intensity test for analog service for the signal of a local network station
to be grandfathered for the receipt of a distant network signal carrying the same
network, even if it could receive the digital signal of the local network station.
Provisions in section 119 of the Copyright Act define “unserved households” and set the
copyright rules that apply to the secondary transmission of distant signals to those unserved
households. Both the House Judiciary Committee bill (H.R. 3570) and the Senate Judiciary
Committee bill (S. 1670) would modify some of those provisions.
• The House Judiciary bill would modify the definition (and in so doing narrow the
scope) of unserved households to take into account multicasting. If a local station
is multicasting and is offering a second network’s programming on one of its
non-primary video streams, but a household cannot receive that non-primary
video stream using a conventional, stationary, outdoor rooftop receiving antenna,
then the household would be deemed unserved with respect to the network whose
programming is being broadcast on that non-primary stream, but only if that non-
primary stream was carried by the satellite carrier on July 1, 2009 and remains
affiliated with the same network or if it exists on January 1, 2013 and remains
affiliated with the same network.42 That is, households would not be deemed
served by network programming introduced on non-primary video streams
between July 1, 2009 and January 1, 2013.
• The House Judiciary bill also would modify the definition of unserved household
by adding a provision grandfathering, as unserved, any subscribing household
that was legally receiving a distant network signal on the day before the
enactment of the new legislation because at that time it was not able to receive a
local signal for the same network—even if the household subsequently was able
to receive the signal of the local network station.
• In contrast, although the Senate Judiciary bill would modify the current definition
of unserved household to take into account the transition to digital service, it
would not take into account multicasting. Nor would it grandfather all
households that are unserved at the time the new legislation is enacted.
Just as section 339(a)(2) of the Communications Act has separate rules for four categories of
subscribers when addressing the replacement of distant signals with local signals, section
119(a)(4) of the Copyright Act has separate rules for the same four categories of subscribers when
addressing the statutory license where retransmission of distant signals is available into local
markets: rules for grandfathered subscribers to analog signals, rules for other (non-grandfathered)
subscribers to analog signals, rules for future applicability, and special rules for distant digital
signals.
• The House Judiciary bill would eliminate references to analog signals, but
otherwise retain the rules for grandfathered households receiving distant signals
currently in section 119(a)(4)(A).
• The Senate Judiciary bill would eliminate section 119(a)(4)(A), covering
grandfathered recipients of distant analog signals, but would include a provision
42 The significance of this definitional change is addressed below in the discussion of “short markets.”
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stating that the applicability of the statutory license to unserved households,
including those grandfathered households included in the definition of unserved
households, remains unaffected.
• The House Judiciary bill would eliminate the provisions relating to non-
grandfathered households receiving analog distant signals, households receiving
digital distant signals, and households not yet receiving distant signals (future
applicability), and create a new provision entitled “Rules for Other Subscribers.”
Under this provision, a statutory license would not apply to the satellite
retransmission of a distant network station to a household that either (1) is not a
subscriber lawfully receiving that distant signal as of the date of enactment of the
new legislation, or (2) at the time the household seeks to subscribe to receive that
distant signal, its satellite operator is offering local-into-local service that
includes a local station affiliated to the same network and the household is able to
receive that local-into-local service.
• The Senate Judiciary bill also would eliminate the provisions relating to non-
grandfathered households receiving analog distant signals, households receiving
digital distant signals, and households not yet receiving distant signals (future
applicability), and create a new provision entitled “Future Applicability.” Under
this provision, however, the statutory license would not apply to the satellite
retransmission of a distant network station to a household that both (1) is not a
subscriber lawfully receiving that distant signal as of December 31, 2009, and (2)
at the time household seeks to subscribe to receive that distant signal, its satellite
operator is offering local-into-local service that includes a local station affiliated
to the same network and the household is able receive that local-into-local
service.
• It would appear that use of the statutory license would be more restricted under
the House Judiciary bill than the Senate Judiciary bill, since households would be
excluded if they met either criterion under the House bill but would be excluded
only if they met both criteria under the Senate bill. But, as mentioned earlier, the
House Judiciary bill would include such a broad definition of unserved
households—in effect grandfathering all households deemed unserved at the time
the new legislation is enacted—that in practice the difference between the bills
with respect to this provision might not be significant.
Expanded Satellite Carriage of Low Power Television Stations
Low power television service was created by the FCC in the 1980s to serve small communities
(rural or urban) with low cost, limited geographic range facilities that used available spectrum
between full power stations. It is a “secondary service” that is not guaranteed protection from
interference or displacement by full service stations. Low power stations that produced at least
two hours per week of local programming, maintained a production studio within their Grade B
contour, and complied with many of the requirements placed on full service stations were given a
one-time opportunity to obtain “Class A” status that gave them primary status, that is, protected
their channel status.
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Currently, no local low power station can demand carriage by the satellite operator serving its
market area, even if that satellite operator is providing local-into-local service.43 Satellite
operators may retransmit the signals of low power stations only to subscribers within certain
geographic limitations—to subscribers located within 20 miles of the station transmitter for
network-affiliated stations located in the 50 largest markets, within 35 miles of the station
transmitter for network-affiliated stations located in other markets, and within the same
designated market area as non-network-affiliated stations.44 Satellite operators have no copyright
royalty obligation for retransmission of the low power station content within those same mileage
limits; beyond those limits, satellite operators are subject to the statutory copyright license fees
for distant signals outlined in section 119 of the Copyright Act.45
Some observers have argued that these rules unduly restrict the reach of low power stations. The
House Judiciary Committee bill would eliminate the current geographic limitations on satellite
retransmission, allowing a satellite operator to obtain a statutory copyright license under section
119 to retransmit the signals of a low power station to all subscribers who reside within the same
designated market area as the station and who take local-into-local service. But, under the bill, the
satellite operator would have to pay copyright license fees on the content for those subscribers in
the DMA who are located beyond the mileage limits listed above. Under the Senate Judiciary
Committee bill, satellite retransmission of low power television signals would be subject to the
royalty-free statutory copyright license for local broadcast signals in section 122 of the Copyright
Act, rather than the statutory license for distant signals, and the license would apply for all
subscribers within the DMA. No low power station would be entitled to insist on carriage, even if
the satellite operator were offering local-into-local service in the low power station’s local
market. Moving the satellite copyright license provision for low power signals from section 119
to section 122 would allow DISH Network, which currently is under court injunction prohibiting
it from using the section 119 license, to retransmit the content on the signals of low power
stations to its subscribers.
Satellite Carriage of Noncommercial Educational Television
Stations
By statute, providers of direct broadcast satellite service (DirecTV and DISH Network) must
reserve between 4% and 7% of their channel capacity exclusively for noncommercial
programming of an educational or informational nature.46 Although they are not specifically
required to retransmit the signals of local broadcast television stations, they are allowed to do so
on condition of carrying the primary signals of all local stations (and must obtain the
retransmission consent of the commercial, but not of the noncommercial, stations). With the
digital transition, broadcasters now are able to broadcast high definition signals and multiple
digital programming streams over their licensed spectrum, and the public television stations are
seeking to expand satellite carriage of their high definition and multicast signals.
The public broadcasters have reached retransmission consent agreements with DirecTV, the cable
industry (through both the National Cable and Telecommunications Association representing
43 47 U.S.C. § 338(a).
44 17 U.S.C. § 119(a)(15)(B).
45 17 U.S.C. § 119(a)(15)(D).
46 47 U.S.C. § 335(b)(1).
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large cable operators and the American Cable Association representing small cable operators),
and Verizon for the retransmission of most of their high definition and multicast video streams.
The agreement with DirecTV incorporated “creative solutions that recognized [DirecTV’s]
capacity limitations; ultimately ensuring that subscribers have access to the myriad of content and
services provided by the local stations while accommodating their capacity concerns.”47
The public broadcasters have not yet achieved retransmission agreement with DISH Network, but
negotiations are continuing. The broadcasters prefer to obtain a private carriage agreement and
state that DISH Network has been negotiating in good faith, but if an agreement is not
successfully concluded they would support a government mandate within the context of satellite
legislation.48 Representative Eshoo has expressed concern about the slow pace of the
negotiations, especially as they relate to the retransmission of high definition signals. The House
Commerce Committee bill includes an amendment she offered that would require a satellite
operator that (1) uses the section 122 copyright license to retransmit local broadcast signals, and
(2) does not have a current carriage contract with the public television stations, to carry the high
definition signals of the local noncommercial educational stations in at least 50% of the markets
in which it offers local-into-local service by December 31, 2010, and in all such markets by
December 31, 2011, and to carry the high definition signals of all the noncommercial stations in
those markets for which it introduces new local-into-local service.
The Senate Commerce Committee bill would require any satellite carrier that has not yet
negotiated a carriage contract covering at least 30 noncommercial educational television stations
(that is, DISH Network) (1) by the end of 2011 to offer subscribers the high definition signals of
qualified noncommercial educational television stations in all the local markets in which the
carrier currently offers local television broadcasts in high definition (and by the end of 2010 to
half of those markets) and (2) when initiating the provision of high definition local broadcast
television in a market, to include the high definition signals of all qualified local television
stations.
At the October 7, 2009, Senate Commerce subcommittee hearing, the public broadcasters
identified another problem for which they seek a legislative solution. Most states have developed
state public television networks intended to serve the entire state, but in 16 states those networks
do not have public stations transmitting signals in each DMA in the state; under current law,
satellite carriers are not allowed to use a royalty-free statutory copyright license to retransmit the
signals of the in-state, but out-of-market public broadcasting stations to their subscribers in those
DMAs.49 Both the House Judiciary Committee bill (H.R. 3570) and the Senate Judiciary
Committee bill (S. 1670) would modify the provisions for the royalty-free statutory copyright
license in section 122 of the Communications Act to allow, where there is a public educational
network of three or more noncommercial educational broadcast stations in a state, a satellite
operator to use the royalty-free license to retransmit the programming on those stations’ signals to
subscribers in any county in the state whose households are otherwise ineligible to receive
retransmissions of those signals.
47 Written Testimony of Bill Acker, Director of Broadcasting and Technology, West Virginia Public Broadcasting,
before the Senate Committee on Commerce, Science, and Transportation, Subcommittee on Communications,
Technology and the Internet, October 7, 2009, at p. 3.
48 Ibid. at pp. 4-6.
49 Ibid. at pp. 8-10.
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Satellite Carriage of State Public Affairs Networks
Cable franchise authorities are allowed, by law, to require cable operators to set aside some of
their capacity for the carriage of public, educational, and governmental (PEG) programming. This
programming is not broadcast to the public; it is sent directly to the cable system’s head-end for
retransmission. Satellite operators are not required to offer PEG programming, though they have
the obligation to allocate between 4 and 7 percent of their channel capacity exclusively to
noncommercial programming of an educational or informational nature. In order to foster PEG
programming on cable systems, a number of states have created state public affairs networks that
produce non-broadcast programming of state-wide interest. Although this programming is
available to satellite operators, those operators are not widely offering it to subscribers.
The Senate Commerce Committee bill (S. 2764) includes a provision intended to encourage
satellite operators to carry these state public affairs networks. Under the provision, a satellite
carrier that provides the retransmission of the state public affairs networks of at least 15 different
states, under reasonable prices, terms, and conditions, and does not delete any of the
noncommercial educational or informational programming on those networks, would only have to
allocate 3.5% of its channel capacity to the retransmission of educational or informational
noncommercial programming, rather than 4%. This provision might encourage satellite operators
to offer state public affairs networks to subscribers in orphan counties or in short markets.
Which Statutory Copyright License Should Be Applied to the
Content on the Signals of Significantly Viewed and “Exception”
Broadcast Stations
The current statutory framework is based on a distinction between local and distant signals. The
signals of significantly viewed stations and the signals of in-state, out-of-market stations in the
four states that satellite operators were allowed to import into orphan counties under the
exceptions in SHVERA, originate outside the market into which they are imported—and thus
clearly are distant signals. But since they are presumed to be providing programming of local or
state-wide interest to counties in that market, arguably that content could be viewed as local to the
counties into which they are imported.
Under current law, the signals of both the significantly viewed stations and the “exception”
stations may be retransmitted by a satellite operator to subscribers in those counties identified as
eligible in statute or by the FCC, using the distant signal statutory copyright license in section 119
(which provides that the content on the significantly viewed stations, but not on the exception
stations, would be subject to the royalty-free copyright license in section 122). Such
retransmission is subject to the satellite operator obtaining the retransmission consent of the
originating broadcaster, but not to the FCC’s network non-duplication and syndicated exclusivity
rules.50
The House Judiciary Committee bill would move satellite retransmission of significantly viewed
stations from section 119 to section 122 in the Copyright Act. Since significantly viewed stations
already are subject to the royalty-free license in section 122, there would be no change in
50 See 47 U.S.C. §§ 340(a),(d),(e) and 341 and 17 U.S.C. §§ 119(a)(2)(C)(i)-(iv) and (a)(3).
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copyright treatment. But it would allow DISH Network, which currently is under a court
injunction prohibiting it from using the section 119 statutory copyright license to retransmit the
content of broadcast signals, to use the section 122 statutory copyright license to do so.
The Senate Judiciary Committee bill would make satellite retransmission of both significantly
viewed stations and the exception stations subject to the local signal statutory copyright license in
section 122 rather than the distant signal statutory license in section 119, but would require the
satellite operator to continue to pay the statutory copyright license fees under section 119 for the
retransmission of the exception stations. Thus, this bill would have the same consequence as the
House bill with respect to copyright payments made. But, by moving the copyright license for the
exception stations to section 122, it would allow DISH Network to escape the court injunction on
its use of the section 119 copyright license for the retransmission of the content on these
exception stations as well as the significantly viewed stations.
Neither bill would affect the retransmission consent requirement or the exemption from the
FCC’s network non-duplication and syndicated exclusivity rules. The Senate Judiciary
Committee bill includes a provision stating that the satellite operator would not be required to
carry the significantly viewed stations or exception stations if they offered local-into-local
service.
Allowable Signal Formats for the Retransmission of Significantly
Viewed Stations
The satellite operators state that although both cable and satellite operators may offer
significantly viewed stations, only satellite operators are subject to an “equivalent bandwidth”
provision that, as interpreted by the FCC, requires the satellite operator to carry the signals of a
significantly viewed station that is affiliated to the same network as a local station in the same
format as that local station every moment of the day. Thus, for example, if the local station is not
transmitting its programming in high definition format, the satellite carrier is not allowed to
retransmit into the market the signals of the significantly viewed station in high definition format.
According to satellite operators, this is infeasible and the requirement should be repealed.51 Both
the House Commerce Committee bill (H.R. 2994) and the Senate Commerce Committee bill (S.
2764) include provisions that would clarify that a significantly viewed signal may only be
provided in high definition format if the satellite carrier is passing through all of the high
definition programming of the corresponding local station in high definition format as well; if the
local station is not providing programming in high definition format, then the satellite operator is
not restricted from providing the significantly viewed station’s signal in high definition format.
Proposals to Eliminate the Statutory Licensing System for Satellite
and Cable Retransmission of Distant Broadcast Signals
The United States Copyright Office has proposed that Congress abolish sections 111 and 119 of
the Copyright Law, arguing that the statutory licensing systems created by these provisions result
51 See, for example, the written testimony of Derek Chang, executive vice president, content strategy and development,
DirecTV, Inc., before the House Committee on Energy and Commerce, Subcommittee on Communication Technology,
and the Internet, June 16, 2009, at pp. 6-7.
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in lower payments to copyright holders than would be made if compensation were left to market
negotiations.52 According to the Copyright Office, the cable and satellite industries no longer are
nascent entities in need of government subsidies, have substantial market power, and are able to
negotiate private agreements with copyright owners for programming carried on distant broadcast
signals. One possible approach would be to enact a statutory “trigger” mechanism, by which once
a broadcast station successfully demonstrated that it had obtained the rights to negotiate for all the
holders of copyrighted materials on its programming, so that a satellite carrier did not have to
negotiate with multiple copyright holders, the statutory license for that station would sunset and
the satellite operator would have to undertake private negotiations. This is strongly opposed by
satellite operators, who question how voluntary licensing arrangements and sublicensing would
work in practice.53 Other parties argue that the current licensing systems are efficient and that the
purpose of copyright law is to balance the potentially conflicting goals of fostering the
dissemination of copyrighted material and allowing the copyright holder to be compensated by
giving the copyright holder a limited monopoly over its material; they oppose a rule that allows
the copyright holder to fully exploit its monopoly power to receive whatever the market would
bear.54
The Senate Judiciary Committee bill would require the Copyright Office, after consultation with
the FCC, to submit to the House and Senate Judiciary Committees, within one year, a report
containing proposed mechanisms, methods, and recommendations on how to implement a phase-
out of the current statutory license requirements in sections 111, 119, and 122 of the Copyright
Act, including recommendations for legislative or administrative actions. In the interim, both the
Senate Judiciary Committee bill and the House Judiciary Committee bill would reauthorize
section 119 of the Copyright Act until December 31, 2014.
The Senate Commerce Committee bill would require the Comptroller General to prepare and
submit a report within 12 months that analyzes and evaluates the changes to the cable and satellite
carriage requirements in the Communications Act and in FCC rules that would be required if
Congress implemented a phase-out of the current section 111, 119, and 122 statutory licensing
requirements in the Copyright Act. It instructs the Comptroller General to consider the impact of
such a phase-out on consumer prices and access to programming. The report should include any
recommendations for legislative or administrative actions.
Retransmission of Programming for National Emergencies
In times of national emergency, the federal government may seek the widest possible dispersal of
information to aid in monitoring and responding to the situation. But current copyright licensing
rules may place restrictions on what content on broadcast signals cable and satellite operators
may retransmit. For example, a satellite or cable operator may not have a copyright license to
retransmit the content of an emergency broadcast from a distant station. The House Judiciary
Committee bill therefore includes provisions that would modify sections 111 and 119 of the
Copyright Act to permit cable and satellite operators to retransmit programming that would
otherwise be unavailable under their copyright license, when deemed necessary by the Secretary
52 Satellite Home Viewer Extension and Reauthorization Act Section 109 Report, A Report of the Register of
Copyrights, June 2008, at p. xiv.
53 See, for example, the Written Testimony of Robert Gabrielli, senior vice president for program operations, DirecTV,
Inc., before the Senate Committee on Commerce, Science, and Transportation, October 7, 2009, at p. 8.
54 See, for example, the website of Public Knowledge at http://www.publicknowledge.org/issues/copyright.
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of Homeland Security. The bill would require the Secretary of Homeland Security to issue
regulations governing these retransmission requests and provide an annual report to Congress.
Providing Digital Service on a Single Dish
Under section 338(g) of the Communications Act, a satellite operator must provide to a subscriber
the analog signals of all broadcast stations on a single roof-top dish. It may use a second dish for
the provision of digital signals, but there is no requirement that all digital signals be provided on
the same dish. Both the House Commerce Committee bill and the Senate Commerce Committee
bill would modify section 338(g) to require a satellite operator, if it offers local-into-local service
in a market, to provide to a subscriber the digital signals of all the local broadcast stations on a
single dish.
Modification of the Methodology for Setting Copyright Royalty
Rates
Various interested parties have proposed changes to the current methodology for setting copyright
royalty rates for the satellite or cable retransmission of content on broadcast signals. With respect
to copyright licenses for satellite operators, the House Judiciary Committee bill would, among
other things, modify the procedure for determining royalty rates, allowing them to be set either by
voluntary negotiations or by proceedings before the Copyright Royalty Judges; eliminate the
automatic reductions in royalty rates prescribed in the current statute; modify the methodology
for the annual cost of living adjustment to be applied by the Copyright Royalty Judges; and
clarify that fees should be established for each digital stream of programming included in
multicast transmission.
With respect to copyright licenses for cable operators, the House Judiciary Committee bill would,
among other things, make alterations to the royalty structure, including setting initial rates that
would slightly increase the royalty rate that cable operators must pay to content owners (to levels
that have been negotiated by industry stakeholders); delay from 2010 to 2015 the date of the next
inflation adjustment, to take into account statutory increases in royalty rates that would take place
upon enactment of the bill; and update the definition of “distant signal equivalent” to reflect the
digital transition and existence of multicasting when calculating royalty payments. It also would
clarify that when a cable operator retransmits a distant broadcast signal to a service area
comprised of multiple communities, in which some communities are permitted to receive that
signal and other communities are prohibited to do so, the royalty calculation should not include
payments for the households that are not allowed to receive the signal (the so-called “phantom
signal” issue).
With respect to copyright licenses for satellite operators, the Senate Judiciary Committee bill
would make a number of technical changes intended to simplify the process for setting royalty
fees and would eliminate the 22.5% reduction in royalty fees currently set in statute. With respect
to copyright licenses for cable operators, the Senate Judiciary Committee bill would update and
clarify the royalty calculation methodology, making the same structural changes and setting the
same initial rates as in the House Judiciary Committee bill, delaying the date of the inflation
adjustment to 2015, modifying treatment of distant signal equivalents to reflect multicasting, and
directly addressing the phantom signal issue.
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Modification of Copyright Administrative Procedures and
Requirements
Various interested parties have proposed changes to the current administrative procedures and
requirements relating to the various satellite and cable copyright licenses. With respect to
copyright licenses for satellite operators, the House Judiciary Committee bill would, among other
things, create a filing fee, to be set by the Copyright Office, to help recoup administrative costs of
distributing royalty fees; grant an audit right for copyright holders to verify the statements of
account and royalty fees submitted by satellite providers; and increase the penalty for violations
of territorial restrictions in the 119 license and for individual violations of the 122 license terms
by increasing the maximum damages from $5 to $250 per subscriber per month during which the
violation occurred, and by increasing the maximum statutory damages for regional or large-scale
violations (that do not trigger a permanent injunction) from $250,000 to $2.5 million.
With respect to copyright licenses for cable operators, the House Judiciary Committee bill would,
among other things, create a filing fee, to be set by the Copyright Office, to help recoup the
administrative costs of distributing royalty fees; grant an audit right for copyright holders to
verify the statements of account and royalty fees submitted by the cable operators; and instruct
the Register of Copyrights to issue regulations that structure the audit process to reflect the
particular requirements of auditing gross receipts.
The Senate Judiciary Committee bill would make a number of technical changes to copyright
administrative procedures, including making the same increases in the penalties for violations of
the terms of the 119 and 122 licenses as are included in the House Judiciary Committee bill.
Severability
The Senate Commerce Committee bill (S. 2764) includes a “severability” provision stating that if
any provision of the new law, amendment made by the new law, or applications of such provision
or amendment is held to be unconstitutional, the remainder of the law, amendments, and
applications would not be affected.
Differences in the Current Retransmission and
Copyright Rules for Satellite and Cable
The four statutes that created and modified the regulatory framework for satellite sought to foster
satellite provision of MVPD service as a competitive alternative to cable service and, as satellite
became a viable competitor, to make the satellite and cable regulatory regimes more similar. But
many differences remain. For example,
• A cable operator must abide by the retransmission consent/must carry elections
of the broadcast stations located in its DMA and therefore must retransmit to its
subscribers the primary signal of every local station (except for the signals of any
stations that do not grant retransmission permission). While a satellite operator
must retransmit the signal of each full power local broadcast station (except for
the signals of any stations that do not grant retransmission permission) if it
chooses to use the royalty-free statutory copyright license for the content on
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those signals, it can choose not to offer any local signals by not offering local-
into-local service in a DMA.55
• Both satellite and cable operators are subject to restrictions on the distant signals
that they can offer their subscribers. The primary regulatory mechanisms for
restricting cable retransmission of distant signals are the FCC’s network non-
duplication and syndicated exclusivity rules that require the cable operator to
black out distant programming that duplicates local programming. The primary
mechanisms for restricting satellite retransmission are a complex array of rules
that confine the retransmission of distant network signals to those subscribers
deemed “unserved.”
• Although both satellite and cable operators are subject to statutory copyright
licensing for the retransmission of distant non-network station and network
station signals, the license fees for satellite operators are set on a flat per
subscriber, per distant station carried basis, while the license fees for cable
operators are based on the cable operator’s gross revenues.
• Cable operators are required to retransmit to their subscribers the signals of
stations that are located outside the DMA in which the cable system is located but
that are “significantly viewed” by those households in the cable service area that
do not subscribe to any MVPD provider, if the significantly viewed station gives
retransmission permission. In contrast, satellite operators are permitted, but not
required, to retransmit to their subscribers the signals of significantly viewed
stations, but if there is a local station with the same network affiliation as the
significantly viewed station, the satellite operator also must retransmit that local
station’s signals; the satellite operator must obtain the retransmission consent of
the significantly viewed station (though such consent is not required if there is no
local station affiliated to the same network as the significantly viewed station).
Table 1 compares some key signal retransmission and copyright provisions for satellite and cable
to identify similarities and differences.56 It is noteworthy that, although the satellite and cable
carriage provisions are found in the Communications Act and the satellite and cable copyright
provisions are found in the Copyright Act, several of these provisions—both in the
Communications Act covering carriage and in the Copyright Act covering a statutory copyright
license—do not stand on their own, but rather are contingent either on a party meeting a
requirement in a different act or meeting a requirement of the FCC.57
55 It would appear that a satellite operator could selectively offer local broadcast signals if it negotiated a copyright
license for the content on those signals outside the royalty-free provisions in section 122 of the Copyright Act, but it is
unlikely that a satellite operator would ever have the incentive to do this since it would then face the costs of the license
fees and of negotiating with potentially multiple copyright holders, and would have to employ a spot beam to uplink
and downlink the limited number of local broadcast signals it chose to carry.
56 The table does not present an exhaustive list of retransmission and copyright rules. Nor does it present the detailed
eligibility requirements for a subscriber to be considered “unserved”; the eligibility rules are replete with exceptions
and many pages long.
57 Thus section 339(a)(1)(A) of the Communications Act states: “Subject to section 119 of title 17, United States Code
[the Copyright Act], any satellite carrier shall be permitted to provide the signals of no more than two network stations
in a single day for each television network to any household not located within the local markets of those network
stations.” Similarly, sections 111(b)(1), (2), and (3) of the Copyright Act state it is not an infringement of copyright if
(1) the primary transmission is made by a broadcast station licensed by the FCC; and (2) the carriage of the signals
comprising the secondary transmission is required under the rules of the FCC; and (3) the signal of the primary
(continued...)
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Table 1. Current Retransmission and Copyright Rules
for Satellite and Cable Operators
Issue
Satellite Operators
Cable Operators
Local Signals:
A satellite operator is allowed, but not required, to
A cable operator is required to
Retransmission
retransmit to its subscribers the signals of broadcast
retransmit to its subscribers the
television stations in their local market (the DMA in
primary signals of all the full-power
which the subscriber is located); if a satellite operator commercial broadcast television
chooses to offer such “local-into-local” service and
stations, qualified noncommercial
use the royalty-free copyright license provision in
educational television stations, and
section 122 of the Copyright Act for the content on
qualified low-power television stations
those local broadcast signals, it must provide the
located in the DMA in which the cable
primary signals of all the full-power stations in that
operator is located, up to a certain
local market, subject to obtaining local station
percentage of its capacity, and subject
permission. (47 U.S.C. 338(a)(1)) If the signals of two
to obtaining local station permission; a
commercial stations in the DMA are substantially
cable operator may retransmit the
duplicative, the satellite operator need not carry both
signals of other (non-qualified
signals, unless they originate in different states. (47
noncommercial and low power stations)
U.S.C. 338(c)) The satellite operator may include in
local stations, subject to obtaining the
its local-into-local service the signals of local low
permission of those stations. (47 U.S.C.
power stations. (47 U.S.C. 338(a)(3)) A satellite
534(a) and (b) and 535(a) and (b) and
operator that chooses to offer its subscribers the
325(b))
signals of some but not all the local broadcast signals
in a market could do so by negotiating copyright
licenses for the content on the signals it carried, but
this is unlikely to be a viable option.
Local Signals:
Secondary transmission of a local broadcast signal by
Secondary transmission of a local
Copyright
a satellite operator is subject to statutory copyright
broadcast signal by a cable operator is
licensing with no royalty fee, if the satellite operator
not considered an infringement of
is in compliance with the FCC’s signal carriage rules.
copyright. (17 U.S.C. 111(b) and 47
(17 U.S.C. 122(a) and (c))
U.S.C. 534(a) and (b) and 535(a) and
(b))
(...continued)
transmitter is not altered or changed in any way by the secondary transmitter. A cable provider that meets these three
requirements then qualifies for a royalty-free copyright license for the retransmission of local broadcast signals. Also,
section 338(a)(1) of the Communications Act requires those satellite operators who retransmit to their subscribers the
signals of local broadcast station using the royalty-free copyright license in section 122 of the Copyright Act to carry
upon request the signals of all television broadcast stations located within that local market. In turn, section 122(a)(2)
of the Copyright Act makes the royalty-free copyright license available only if the satellite operator is in compliance
with the broadcast signal carriage rules, regulations, and authorizations of the FCC.
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Issue
Satellite Operators
Cable Operators
Distant Signals:
A satellite operator is allowed to retransmit (1) the
A cable operator is allowed to
Retransmission
signals of distant non-network stations (both
retransmit the signals of all distant
“national y distributed superstations” and other
broadcast television station signals
independent stations) to all of its subscribers, (2) the
subject to complying with the FCC’s
signals of distant “significantly viewed” stations to
network non-duplication, syndicated
subscribers located in the markets for which those
exclusivity, and sports blackout rules
stations qualify as significantly viewed, and (3) the
and subject to obtaining the consent of
signals of up to two distant stations affiliated with a
those distant stations (except that cable
network, to that subset of subscribers who are
operators do not need to obtain
deemed “unserved” by any local affiliate of that
retransmission consent from nationally
network—subscribers who cannot receive the signals
distributed superstations). (47 U.S.C.
of a local network-affiliated station because either (a)
325(b)(1) and 325(b)(2)(D) and 47 CFR
the satellite operator does not offer local-into-local
76.92-76.111) An MVPD does not need
service in the local market and the subscribers are
to obtain consent to retransmit the
located too far from the transmitter to receive signals signal of a noncommercial television
of a certain quality over-the-air, or (b) the network
broadcast station. (47 U.S.C.
does not have a local network-affiliated station in
325(b)(2)(A))
their market; a satellite operator also may retransmit
distant network signals in a small number of
grandfathered situations in which subscribers who do
have access to local-into-local service continue to be
eligible to receive distant signals from their satellite
operator. (47 U.S.C. 339(a) and (c) and 340(b)(3)) A
satellite operator does not need to obtain consent to
retransmit the signal of a nationally distributed
superstation if it complies with the FCC’s network
non-duplication, syndicated exclusivity, and sports
blackout rules. (47 U.S.C. 325(b)(2)(B)) To
retransmit the signals of a distant network station to
“unserved” subscribers, a satellite operator does not
need to obtain the consent of that distant network
station nor comply with the FCC’s network non-
duplication and syndicated exclusivity rules. (47 U.S.C.
325(b)((2)(C) and 340(e)(2)) To retransmit the
signals of a significantly viewed station, a satellite
operator must obtain the retransmission consent of
the station but does not have to comply with the
FCC’s network non-duplication and syndicated
exclusivity rules. (47 U.S.C. 340(d)(2) and 340(e)(1))
Where a satellite operator offers local-into-local
service, it may retransmit the signals of significantly
viewed stations only to those subscribers who take
local-into-local service. (47 U.S.C. 340(b)(1) and (2))
An MVPD does not need to obtain consent to
retransmit the signal of a noncommercial television
broadcast station. (47 U.S.C. 325(b)(2)(A)) Depending
on the interpretation of 47 U.S.C. 339(a)(1)(A), a
satellite provider may or many not be allowed to
retransmit distant signals other than those listed
above by negotiating a license with the copyright
holders of the content on those distant signals.a
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Issue
Satellite Operators
Cable Operators
Distant Signals:
For the three categories of distant signals identified
A cable operator must pay a statutory
Copyright
above in the “Distant Signals: Distribution” cell in this
copyright license royalty fee for the
table, there is a statutory copyright license available
public performance of the copyrighted
to a satellite operator for the public performance of
works on all distant signals carried
the copyrighted works on the broadcast signals: there except those of significantly viewed
is a royalty-free license for the public performance of
stations. Royalty fees are based on a
the copyrighted works on the signals of significantly
percentage of the cable operator’s gross
viewed stations; for the signals of distant network
revenues. (17 U.S.C. 111(d))
stations and distant non-network stations there are
separate royalty fees calculated on a flat per
subscriber, per distant station carried basis; these
royalty fees also differ stations for analog and digital
signals. (17 U.S.C. 119(a)(1), (2), and (3)) A satellite
operator always may negotiate a copyright license
agreement, outside the statutory copyright license
available in section 119 of the Copyright Act, with the
copyright holders of the content on a distant
broadcast signal, but depending on the interpretation
of section 339(a)(1)(A) of the Communications Act,
the satellite operator may or may not be allowed to
retransmit that distant signal.a
Exceptions
Satellite operators are allowed to retransmit, to
A cable operator may elect to
subscribers located in certain counties or states (in
retransmit to subscribers in Umatilla,
Vermont, New Hampshire, Oregon, and Mississippi)
Grant, Malheur, and Wallowa counties
that are assigned to DMAs whose local broadcast
in Oregon the broadcast signals of any
stations are in another state, certain in-state but non-
television broadcast station in Oregon
local market signals; retransmission of these distant
that any cable operator was
signals is subject to obtaining the permission of the
retransmitting to subscribers in those
stations and making royalty payments under the
four counties on January 1, 2004. (47
compulsory copyright license for the secondary
U.S.C. 341)
transmission of distant broadcast signals, but not
subject to meeting the requirements of the network
non-duplication and syndicated exclusivity rules. (17
U.S.C. 119(a)(2)(C)(i)-(iv) and 47 U.S.C. 341) The
geographic areas in Alaska that are not in any Nielsen
DMA are assigned by satellite carriers to one of the
DMAs in that state in order to allow the carriers to
offer subscribers in those areas the local-into-local
service for the DMA to which they are assigned. (17
U.S.C. 19(a)(16)) Satellite carriers with more than
5,000,000 subscribers who offer service in
Alaska/Hawaii must retransmit to subscribers in those
states all of the analog broadcast signals originating in
Alaska/ Hawaii; these signals must be made available
to substantially all of the subscribers in their DMAs
and the signals from at least one of the local markets
in the state must be made available to substantially all
of the subscribers in the state not located in a DMA;
the cost to subscribers of such transmissions shal not
exceed the cost of retransmission of local television
stations in other states. (47 U.S.C. 338(a)(4))
Source: Statutory and regulatory citations are provided within the table.
a. The possible interpretations of section 339(a)(1)(A) of the Communications Act, and the implications of
those interpretations, are presented in the next section of this report.
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Providing the Signals of Non-Local but In-State
Stations to Orphan Counties
The Overall Issue
Under current statutes and rules, 43 states have one or more counties that are assigned to local
markets for which the principal city (from which all or most of the local television signals
originate) is outside their state. Satellite (and, in many situations, cable) subscribers in these
orphan counties may not be receiving signals from in-state broadcast stations and may not be
receiving news, sports, and public affairs programming of interest in their state, though (as will be
discussed below) in some cases they are receiving such programming. Many households and local
and state elected officials in counties that currently are not being well served have contacted their
Members of Congress to request that satellite operators be allowed (and cable operators, who
currently are allowed, be encouraged) to retransmit to subscribers in the counties the signals of
broadcast stations in in-state, but non-local, markets.
Proponents of the retransmission of non-local but in-state broadcast signals to MVPD subscribers
located in orphan counties cite the following programming benefits:
• Sports programming—Many subscribers have a strong allegiance to the sports
teams of their home state universities, whose games are more likely to be
broadcast by in-state broadcast stations than by stations located in another state.
Similarly, many subscribers have a strong allegiance to professional sports teams
located in the state, whose games are more likely to be broadcast by in-state
broadcast stations than by stations located in another state.58 Stations located in
bordering states are especially unlikely to broadcast these sporting events of
interest to the subscribers in orphan counties if the state universities in those
bordering states belong to different sports conferences or if those bordering states
have their own professional sports teams. There is ample market evidence, in the
form of cable sports networks being able to command by far the highest per
subscriber fees, that many MVPD subscribers highly value sports programming
and therefore allowing MVPDs to offer non-local but in-state sports
programming would increase the well-being of those subscribers.
• Weather and related public safety programming—There tend to be prevailing
weather patterns in terms of the general direction that storms, tornadoes, and
other inclement weather take, for example from west to east or from south to
north. Public safety is fostered if MVPD subscribers are able to receive the
broadcast signals of stations that experience and report on the same weather
patterns the subscribers experience. Subscribers located in orphan counties that
do not experience the same weather patterns as the principal city in which their
local stations are located would benefit from receiving weather information
provided by non-local but in-state stations that do experience and report on the
58 Some professional sports leagues divide the country into geographic zones for which particular teams are given the
rights to be the exclusive team to have their games broadcast. Those geographic zones are more likely to follow the
boundaries of DMAs than of states.
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same weather patterns. Typically, however, orphan counties are located closer to
the principal city of their own DMA than to the principal city of any in-state
DMA and therefore the weather programming of their local broadcast stations
generally is more relevant to orphan county households.
• State news programming—Typically, broadcast television stations provide
more local news than state news. Frequently, however, orphan counties are
located quite far away from both the local stations in their DMAs and from the
closest non-local, but in-state stations. As a result, neither the local nor the in-
state stations are likely to provide much coverage of local news in those orphan
counties. Television stations, however, typically do provide some news coverage
of state-wide elections and other state-wide issues. Proponents of the
retransmission of in-state broadcast signals to orphan counties claim that the
public interest, as well as the private interest of subscribers, would benefit from
the retransmission of such state news programming to households in orphan
counties.
• State and local political advertising—Candidates for elective office at both the
state and local level often try to communicate with voters through broadcast
television advertising. To the extent that candidates, to reach households located
in orphan counties, must purchase advertising time on television stations
originating in other states and that primarily reach viewers who live in those
other states, the efficiency of political advertising is reduced and the cost
increased. If MVPDs could retransmit to subscribers located in orphan counties
the signals of in-state broadcast stations, political candidates might be able to
save in advertising purchases made to out-of-state stations and still reach
households located in those counties.
Broadcasters respond that the potential public interest gains from allowing the retransmission of
distant in-state programming would be outweighed by decreases in the quality and quantity of
local programming local stations could offer. They say they would be financially harmed by the
importation of the distant signals, unless perhaps the retransmitted programming was limited to
locally-produced news programming.59 Broadcast network affiliates claim that, in addition to
broadcast advertising revenues falling, MVPDs could play hardball in their retransmission
negotiations with the local stations, fail to reach a retransmission consent agreement, and then
simply carry the signals of a distant in-state network affiliate at a lower price. With lower (or
totally lost) retransmission consent revenues, broadcasters argue, they would have to cut back on
local news programming, which is expensive to produce.
The actual impact—both on public policy objectives such as localism and on local broadcast
station revenues—of allowing MVPDs to retransmit in-state signals to their subscribers in orphan
counties is likely to be sensitive to the specific new retransmission and copyright rules that are
59 See, for example, the written statement of David K. Rehr, president and CEO, the National Association of
Broadcasters, submitted to the United States House of Representatives Committee on the Judiciary, “Hearing on
Copyright Licensing in a Digital Age: Competition, Compensation and the Need to Update the Cable and Satellite TV
Licenses,” February 25, 2009, and the written statement of Paul A. Karpowicz, president, Meredith Broadcasting
Group, on behalf of the Television Board of the National Association of Broadcasters, before the Subcommittee on
Communications, Technology, and the Internet, House Committee on Energy and Commerce, “Hearing on Discussion
Draft of Legislation to Reauthorize the Satellite Home Viewer Act,” June 16, 2009.
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adopted. Moreover, whatever those rules may be, the actual impact is likely to vary significantly
from market to market.
There is no single model orphan county. Allowing MVPDs to retransmit distant in-state signals to
a sparsely populated rural county that is geographically distant from both its local broadcast
stations and from the distant in-state stations (for example, to Montezuma and La Plata counties
in southwestern Colorado, which are assigned to the Albuquerque, NM DMA) will likely have a
different market impact than allowing MVPDs to retransmit distant in-state signals to a highly
urbanized county that is geographically close to its local stations, but across the state line (for
example, to Dona Ana county in southern New Mexico, which includes the city of Las Cruces
and is just across the state line from, but assigned to the DMA of, El Paso, TX). It is unlikely that
the Albuquerque broadcast stations, which have 677,740 television households in their DMA,
provide much programming (or advertising) that addresses the local needs and interests of the
27,540 television households in Montezuma and La Plata counties.60 It also is unlikely that the
distant in-state stations in Denver would provide programming or advertising that addresses the
local needs and interests (including weather information) of households in Montezuma and La
Plata counties, though those stations are likely to provide some Colorado sports, news, and
political programming of state-wide interest. In contrast, the El Paso broadcast stations, which
have 302,470 television households in their DMA, may well provide programming and
advertising that addresses the local needs and interests of the 68,330 television households in
Dona Ana county. The in-state stations in Albuquerque are unlikely to provide local programming
(including weather reports or local advertising) of interest to the households in Dona Ana county,
but they are likely to provide some New Mexico sports, news, and political programming of state-
wide interest.
The Appendix to this report provides detailed information on orphan counties, listing, for each
state, the number of television households in the state, the DMAs in the state for which the
primary city is outside the state, each orphan county in those DMAs, the number of television
households in each orphan county, the percentage of television households in the state that are
located in orphan counties, and the full power commercial and public/educational television
stations located in the orphan counties (despite the principal city of the DMA being located in
another state). Figure 1 is a map of the continental United States that shows all of the orphan
counties. (There are no orphan counties in Alaska or Hawaii, although some portions of Alaska
are outside any DMA.) The detailed data and map, in conjunction, help illustrate on one hand
how ubiquitous orphan counties are and on the other hand how heterogeneous orphan counties
are, with television households in some counties (but not in others) having reasonable access to
programming of local and state-wide interest.
60 Statistics in this paragraph are from Nielsen DMA Market Atlas, Nielsen Media Research, 2008, reproduced in
Warren Communications, Television and Cable Factbook 2009, Stations Volume 2.
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Figure 1. Counties Assigned to Designated Market Areas for Which the Primary City
Is Outside the State (“Orphan Counties”), 2009
Sources: Prepared by CRS based on Designated Market Areas defined by Nielsen Media Research, as reported
in Television & Cable Factbook 2009, Warren Communications; Census TIGER/Line boundaries, 2008.
Consider, for example, the Washington, DC DMA. By definition, all the counties in the DMA
other than Washington, DC itself are orphan counties, since the principal city is outside their state
borders. But the access of television households in those counties to programs of state and local
interest varies significantly. The Washington, DC television stations tend to offer news, weather,
and sports programming of both local and state-wide interest to households in close-in suburban
Maryland and Virginia counties, such as Fairfax and Arlington counties in Virginia and
Montgomery and Prince George’s counties in Maryland. In addition, WFDC is a Univision
affiliate located in Arlington County and WPXW is an Ion affiliate located in close-in Manassas,
VA. But the Washington, DC DMA also includes counties far more distant from Washington,
DC—such as Fulton County, PA, seven counties in West Virginia (Grant, Mineral, Hardy,
Hampshire, Morgan, Berkeley, and Jefferson), Allegheny and Washington counties in Maryland,
and Shenandoah and Page counties in Virginia—for which the Washington, DC stations do not
provide programming of local interest (nor, in the case of the West Virginia and Pennsylvania
counties, programming of state-wide interest). But these distant counties may be served by
smaller broadcast stations located in the periphery of the Washington, DC DMA. For example,
WHAG-TV is an NBC-affiliated station located in Hagerstown, MD, and WJAL is an
independent station located in Hagerstown, and these stations may provide programming of local
interest to counties in Maryland, West Virginia, and Pennsylvania that are located in the
northwestern portion of the Washington, DC DMA. In addition, some out-of-market stations have
been designated as significantly viewed in these distant counties and satellite and cable operators
may retransmit them to households in those counties. For example, WJAC, an NBC affiliate in
Johnstown, PA, and WTAJ, a CBS affiliate in Altoona, PA, have been designated significantly
viewed stations in Fulton County, PA; WHSV, an ABC affiliate in Harrisonburg, VA, and WTVR,
a CBS affiliate in Richmond, VA, have been designated significantly viewed stations in Page
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County, VA.61 At the same time, the most current FCC list of significantly viewed counties does
not include any significantly viewed stations located in West Virginia for the seven West Virginia
counties in the Washington, DC DMA.62
It is difficult to project what the impact on the retransmission consent revenues of local
broadcasters would be from the importation of in-state signals into orphan counties, or if that
impact would be greater in rural or urban orphan counties. There are potentially conflicting
market forces at work. For example, on one hand, since the populations of Montezuma and La
Plata counties are small, and the local programming of the Albuquerque stations is not likely to be
responsive to the needs or interests of, or highly demanded by, the residents of those counties, it is
unlikely that the retransmission consent revenues that Albuquerque stations receive from MVPDs
serving Montezuma and La Plata counties represent a significant portion of those stations’
revenue streams. In contrast, because the local programming of the El Paso stations is likely to be
responsive to the needs and interests of the residents of Dona Ana county, which has a substantial
population, it is possible that the retransmission consent revenues that El Paso stations receive
from MVPDs serving Don Ana county do represent a significant portion of those stations’
revenue streams. On the other hand, given that small cable companies serving rural communities
(such as those serving Montezuma and La Plata counties) tend to be in less favorable
retransmission consent negotiating positions than larger cable companies serving more populous
areas (such as Comcast, which serves Las Cruces, the major city in Dona Ana county), on a per
subscriber basis more retransmission consent revenues may be generated in more rural counties.
Currently, cable operators may retransmit to their subscribers in orphan counties the signals of
any non-local station located in the state, subject to meeting the FCC’s network non-duplication,
syndicated exclusivity, and sports blackout rules, obtaining the permission of those distant
stations, and paying a copyright royalty fee. In many cases, the in-state stations are prohibited
from granting retransmission consent by provisions in their network-affiliate contracts—though
data are not available to shed light on how common such contractual prohibitions are or how
often (if at all) cable companies have sought such retransmission consent. In his written testimony
submitted for the June 16, 2009, House hearing, Preston Padden of the Walt Disney Company
identified several cable operators that have negotiated copyright agreements to import the local
news programming of broadcast stations located in another market.63 But this does not appear to
be common, suggesting that retransmitting only a broadcast station’s locally-produced news
programming may not be a particularly attractive option for cable operators.
Currently, satellite operators explicitly have the authority to retransmit the in-state signals of
stations that the FCC has determined are “significantly viewed” and of stations affiliated with
networks for which subscribers in the orphan county cannot receive the over-the-air signal of a
local network-affiliated station; they must pay a copyright fee for retransmitting the signals of
61 The FCC’s current list of significantly viewed stations, based on FCC actions through February 19, 2009, is available
at http://www.fcc.gov/mb/significantlyviewedstations022509.pdf. The listing is an update of the initial list adopted on
November 2, 2005, In the Matter of Implementation of the Satellite Home Viewer Extension and Reauthorization Act of
2004; Implementation of Section 340 of the Communications Act, Federal Communications Commission, MB Docket
No. 05-49, Report and Order, Appendix C, “Significantly Viewed List,” released November 3, 2005.
62 Ibid.
63 Written Testimony of Preston R. Padden, executive vice president, worldwide government relations, the Walt Disney
Company, before the Subcommittee on Communications, Technology, and the Internet, House Committee on Energy
and Commerce, “Hearing on Discussion Draft of Legislation to Reauthorize the Satellite Home Viewer Act,” June 16,
2009, at p. 6.
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network-affiliated stations, but not significantly viewed stations. It may be open to interpretation
whether the language in section 339(a)(1) of the Communications Act relating to which distant
signals a satellite carrier may carry allows a satellite operator to retransmit to orphan counties the
programming (including local news programming) of any other in-state but non-local broadcast
stations. If they are allowed to do so, they would not be allowed to use the statutory copyright
license provided in section 119 of the Copyright Act, but rather would have to negotiate a
copyright agreement with all of the relevant program copyright holders.64 It does not appear that
any satellite operator currently is retransmitting programming to subscribers in orphan counties
through a negotiated copyright agreement.
Regulatory Parameters Available to Address Orphan Counties
If Congress decides to foster MVPD retransmission of programming of state-wide interest to
subscribers in orphan counties, it would have a number of regulatory parameters available in
considering modification of current retransmission and copyright rules. These include:
• which in-state stations’ signals the MVPDs may retransmit: The more non-
local, but in-state stations that an MVPD may negotiate with to retransmit their
signals to subscribers in orphan counties, the greater the potential availability of
programming of state-wide interest to those subscribers (though many of these
stations might not be airing programming of local interest in the orphan
counties). At the same time, the greater the number of potential broadcast signals
available to the MVPD, the greater the opportunity for the MVPD to take a hard
line when negotiating retransmission consent with local broadcasters. The
broadest option would allow MVPDs to retransmit to their subscribers in orphan
counties the signals of any station located in the state;65 this would maximize
both the potential availability of programming of state-wide interest and the
potential negative impact on local broadcasters. A second option would allow
MVPDs to retransmit to their subscribers in orphan counties the signals of any
station located in the state capital.66 This option appears to implicitly assume that
the broadcast stations in state capitals are most likely to carry news and public
affairs programming of state-wide interest. Critics have indicated that state
capitals may be located very far from orphan counties, and thus be unlikely to
provide programming of local interest, such as weather forecasts, to households
in the counties. They have proposed that if the retransmission of non-local in-
state signals is allowed at all, it should be limited to the signals of stations that
are in markets adjacent to the orphan counties. H.R. 3216 would limit
retransmission to the signals of stations in markets adjacent to (or, if there were
no such markets, the market closest to) orphan counties; a broadcast station’s
signals could be retransmitted within an adjacent DMA, but (1) only if that
adjacent DMA covers more than one state, (2) only to counties in the DMA that
64 As explained below, the House Commerce Committee bill includes a provision stating that nothing in the law would
limit the ability of a satellite operator and the copyright holders (or their licensees) for the content on a broadcast signal
from negotiating contractual arrangements for the retransmission of the programming on that signal.
65 For example, H.R. 505, introduced by Representative Boren, would allow satellite operators to retransmit to any
subscriber in the state of Oklahoma the signals of any broadcast station located in the state.
66 In effect, S. 771 and H.R. 1860 would do this by classifying any station in the DMA of a state capital is significantly
viewed for purposes of carriage and retransmission.
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are within the same state as the broadcast station, and (3) only if those counties
have no home-state affiliate of the same network.67
• whether to limit the programming on those stations that can be
retransmitted by applying the FCC’s network non-duplication, syndicated
exclusivity, and sports blackout rules to such retransmission: Whichever in-
state stations’ signals may be retransmitted, MVPDs will find it less attractive to
retransmit these signals if such retransmission is subject to the FCC’s network
non-duplication and syndicated exclusivity rules, which allow the local station to
require the MVPD to black out all network and syndicated programming on the
retransmitted signal even if the local station was not being carried by the
MVPD.68 Although these rules only apply within a 35- to 55-mile radius of the
broadcast station, and many orphan counties are farther away from the local
broadcast stations than that, many counties, or parts thereof, do lie within those
mileage limits.
• whether there should be any modifications to the retransmission consent
requirements in Section 325 of the Communications Act to explicitly address
the retransmission of signals into orphan counties: Since most broadcasters
oppose the retransmission of distant signals into their markets, they may not be
willing to grant MVPDs permission to retransmit their signals to other markets.
Under current rules, MVPD retransmission of non-local signals is usually, but not
always, subject to obtaining the retransmission consent of the broadcast station.
Thus, even if an MVPD wants to retransmit a non-local, in-state signal to its
subscribers in an orphan county it may not be able to do so. One of the provisions
in the Four Corners Television Access Act of 2009 would exempt MVPDs from
the requirement to obtain retransmission consent from in-state broadcasters in
order to retransmit their signals to the two orphan counties. By contrast, under
H.R. 3216, MVPDs would be required to obtain retransmission consent from in-
state broadcast stations in order to retransmit their signals to orphan counties—
but this retransmission consent requirement would not apply if the station is
prohibited, under provisions of its network-affiliate contract, from granting
retransmission consent to MVPDs to retransmit their signals beyond their local
markets. At the same time, under H.R. 3216 a local broadcast station could not
attempt to block MVPDs from retransmitting non-local, in-state station signals
into orphan counties by conditioning MVPD retransmission of its own signal on
the MVPD not retransmitting non-local, in-state signals.
67 Under H.R. 3216, an “adjacent market” would be defined as any local market adjacent to, and partially but not
entirely in the same state as, the local market in which a station’s community of license is located; an “adjacent
underserved county” would be defined as a county within the station’s adjacent market that is both (a) located in the
same state as the station’s community of license, and (b) not within the local market of any other station that is both
affiliated with the same network and located in the same state as such other station’s community of license. In addition,
a county that is in a local market containing no in-state network stations, but which is not located in the adjacent market
of any in-state network station, would be considered to be in the adjacent market of the nearest local market located in
whole or in part within the state in which the county is located.
68 H.R. 3216 explicitly would not make the retransmission of in-state signals into adjacent underserved counties subject
to the FCC’s network non-duplication and syndicated exclusivity requirements. It is worth noting that, with respect to
the four state-specific exceptions in SHVERA, which allowed satellite providers to retransmit to their subscribers the
signals of certain non-local, in-state broadcast stations in New Hampshire, Vermont, Mississippi, and Oregon, the
statute does not explicitly require the satellite operators to abide by the FCC’s network non-duplication and syndicated
exclusivity rules and the FCC, using its discretion, chose not to apply those rules.
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• whether existing provisions in network-affiliate contracts that prohibit
affiliates from granting retransmission rights to their signals outside their
local markets should be pre-empted to ensure that in-state programming is
available to subscribers in orphan counties: Although systematic data are not
available, it appears that many current network-affiliate contracts include
provisions that prohibit the affiliates from granting MVPDs permission to
retransmit their signals beyond the local market. These contractual provisions
could render ineffective rules allowing MVPDs to retransmit in-state signals, if
such retransmission were contingent on obtaining the retransmission consent of
the broadcast station. If it is the intention of Congress to maximize the likelihood
that residents of orphan counties who subscribe to MVPD service receive non-
local, in-state broadcast signals, it may be necessary to pre-empt the restrictive
provisions in the network-affiliate contracts. Such action would, however,
represent intrusive government intervention into the contractual relationship
between private parties. One possible approach would be to exempt MVPDs that
want to retransmit in-state signals to their orphan county subscribers from the
requirement that they obtain the retransmission consent of the broadcaster. This
might or might not be effective, depending on the exact wording of the relevant
provisions in the network-affiliate contracts. If the provisions only prohibit
stations from granting retransmission consent, but do not restrict the stations
from allowing the signals to be retransmitted, then it might be sufficient to add a
provision to section 325(b)(2) of the Communications Act, which lists the
exceptions to the retransmission consent requirements. This, in effect, is what
H.R. 3216 would do; it would modify section 325(b)(2) to not require the MVPD
to obtain the retransmission consent of the in-state, out-of-market broadcast
station whose signal it wanted to retransmit into the orphan county if the station
were under a legal obligation restricting its ability to grant retransmission
consent. If the provisions in the network-affiliate contract include broader
restrictions, however, it might be necessary to prohibit certain contractual
relationships. There is not sufficient publicly available information on those
contractual provisions to be certain what statutory language would be needed to
pre-empt current restrictive provisions.
• whether MVPDs should be required to retransmit the signals of all local
broadcast stations in an orphan county as a precondition for the right to
retransmit non-local, in-state signals to subscribers in the orphan county:
One way to constrain the negotiating leverage that an MVPD could gain if it
were allowed to retransmit the signals of non-local, in-state stations to its orphan
county subscribers might be to condition such retransmission on the MVPD
reaching retransmission consent with, and carrying the signals of, all the local
stations in the county. H.R. 3216 includes this condition.
• what the copyright treatment should be for the retransmission of distant in-
state signals to subscribers in orphan counties: The greater the copyright
license fee that an MVPD must pay to retransmit non-local, in-state signals to
orphan county subscribers, the less the incentive for the MVPD to retransmit
those signals. Currently, satellite and cable providers must pay royalty fees for
the retransmission of superstation and distant network signals, but no fee for the
retransmission of the signals of significantly viewed stations. H.R. 3216 would
allow both satellite and cable operators to retransmit non-local, in-state signals to
orphan county subscribers on a royalty-free basis. The Four Corners Television
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Access Act of 2009 would deem each television broadcast station broadcasting in
the DMA of a state capital as a “significantly viewed” station. Because under
current rules the signals of significantly viewed stations can be retransmitted on a
royalty free basis, MVPDs would be allowed to retransmit the Denver stations to
the two orphan counties in Colorado without making copyright payments.
• whether it should be permissive or mandatory for MVPDs serving orphan
counties to retransmit the signals of non-local, in-state stations to
subscribers in those counties: Even if in-state broadcast stations gave their
permission for an MVPD to retransmit their signals to subscribers in orphan
counties, the MVPD might not have the incentive to retransmit those signals if it
did not perceive sufficient demand to justify using some of its (satellite or cable)
capacity to carry those signals. On one hand, if an in-state broadcast station is
carrying popular sports programming that the MVPD’s subscribers are likely to
demand—such as the games of an in-state university or in-state professional
team—the MVPD is very likely to want to retransmit that station’s signals
because carrying the sports programming might be a significant marketing tool.
Indeed, in a market with more than one MVPD provider, if one provider in the
market is able to retransmit popular sports programming that some significant
portion of households in the market view as “must have” programming, then
other MVPDs will be at a competitive disadvantage in that market if they cannot
retransmit that sports programming. For that reason, the cable and satellite
industries each has been concerned that it have the same right to retransmit
distant broadcast stations to subscribers in orphan counties as the other has.69 On
the other hand, if an in-state broadcast station is not carrying popular sports
programming, but does offer news and public affairs programming of state-wide
interest, though not of local interest to households in an orphan county, then the
demand in the orphan county for that programming might not be that substantial.
In that case, an MVPD serving that orphan county might not want to use some of
its scarce system capacity to retransmit the station’s signals. If ensuring that all
households in a state have access to state-wide news and public affairs
programming from a variety of sources is viewed as an important public policy
goal, then one might consider requiring MVPDs to retransmit to their subscribers
in orphan counties the signals of non-local, in-state stations. But such a
requirement might not be consistent with the viewing preferences of the
households in the orphan counties or in the business interest of either the
broadcasters or the MVPDs.
69 As will be explained below, however, if one MVPD has exclusive access to popular sports programming, it is likely
to oppose any action that would give some of its providers alternative sources of that programming. DirecTV is the
exclusive provider of the NFL Sunday Ticket package of out-of-market National Football League football games, and
as such the only provider of certain in-state, out-of-market NFL games to households in orphan counties. DirecTV thus
would not want to allow other MVPDs to retransmit those games in the orphan counties.
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Current Obstacles to Serving Orphan Counties
During the June 16, 2009, House hearing and in the general public policy debate, there has been
discussion about which distant signals satellite operators currently have the legal authority to
retransmit to subscribers in orphan counties, how they could obtain a license for the public
performance of the copyrighted works on the retransmitted signals, and under what conditions it
would be financially feasible to retransmit those signals. In particular, what current legal and
market limitations exist on the ability of a satellite operator to import in-state, non-local news and
public affairs programming and in-state, non-local sports programming into an orphan county?
Section 339(a)(1)(A) of the Communications Act, which addresses the distant broadcast signals
that a satellite operator is permitted to carry, states “Subject to section 119 of title 17, United
States Code, any satellite carrier shall be permitted to provide the signals of no more than two
network stations in a single day for each television network to any household not located within
the local markets of those network stations.” The basic legal question, for which there does not
appear to have been any definitive ruling by an administrative agency or court, is: Since section
339(a)(1)(A) is entitled “Carriage permitted,” does the phrase “Subject to section 119” limit the
scope of a satellite operator’s right to carry distant signals to only those signals for which a
satellite operator can obtain a statutory copyright license for secondary transmission under section
119?70 Or does a satellite operator always have the right to carry the signals of any and all
programming on distant broadcast signals for which it succeeds in negotiating a copyright
agreement with the copyright holders, with the reference to section 119 only intended to reinforce
that if a satellite operator chooses to use the statutory copyright license it must abide by all the
terms and conditions of that license in order to be able to carry a distant network signal? A
savings clause in the House Commerce Committee bill, stating that nothing in that legislation, in
the Communications Act, or in any FCC regulation shall limit the ability of a satellite operator to
retransmit a performance or display of a work pursuant to an authorization granted by the
copyright owner (or, if within the scope of its authorization, its licensee) is intended to clarify that
a satellite operator always has the opportunity to negotiate a copyright license outside the section
119 statutory license.
Beyond this legal question of statutory interpretation, there are questions about how a satellite
operator would be able to negotiate a license with the copyright holders and the extent to which a
satellite operator is likely to have a market incentive to do so. In this regard, it is useful to address
separately news programming of state-wide interest and sports programming of state-wide
interest, since both the supply characteristics and the demand characteristics are different for
these two programming categories.
News Programming of State-Wide Interest
The discussion at the June 16, 2009, House hearing focused on the retransmission to subscribers
in an orphan county of locally-produced news programming of an in-state station located in a
different DMA. The witnesses representing the broadcasting and program production industries
stated that many broadcasters have offered to make their locally-produced news programming—
but not their network programming—available to satellite operators who seek to serve orphan
70 There may be yet one other question. Section 339 addresses the “carriage of distant television stations by satellite
operators.” Does “carriage” in any way connote something different from “retransmission” or “secondary transmission”
of distant signals?
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counties and that a satellite operator could negotiate a copyright license and retransmission
consent agreement with an in-state station for the rights to carry that station’s local news
programming. These witnesses indicated that although locally-produced news programs are likely
to include clips from the national network, for which the network holds the copyright, when the
clips are included in a locally-produced news program the major networks generally give the
affiliate the right to negotiate a copyright agreement with an MVPD that includes those clips, so a
satellite operator would not have to negotiate separately with the network. The satellite operators
responded that they still would have to negotiate with whomever held the copyright for the
advertising segments of the locally-produced news program. The broadcasters argue that
advertisers are unlikely to place any barriers before the wider distribution of their advertising
messages and thus copyright negotiations with them should be simple. While this probably is
true, in some cases the copyright holder might be a musician, not the advertiser, though there is a
well-defined process involving BMI and ASCAP for obtaining a music copyright license.
More significantly, satellite operators claim that it would rarely be economically feasible for them
to retransmit only the two hours per day of an in-state broadcaster’s locally-produced news
programming. They say that this would require them to allocate a channel for only two hours of
programming per day. They claim they could not readily fill the remaining 22 hours with other
programming because they uplink and downlink locally-produced broadcast programming using
spot beams whose footprints cover narrow geographic areas, and uplink and downlink national or
regional programming networks using broad beams whose footprints cover the entire United
States or large regions within the United States. (More generally, the satellite operators have
claimed that, even if a non-local, but in-state broadcaster made available to them for
retransmission to their orphan county subscribers its network programming as well as its locally-
produced programming, they would be able to retransmit the programming only if both the
broadcast station and the orphan county were located within the footprint of the same spot beam.)
The satellite operators have the incentive to fill the capacity of their spot beams (as well as broad
beams) with the programming (or other service) that would generate the most revenues. Unless a
satellite operator has unused capacity on a spot beam—and to the extent possible it will try not to
construct excess capacity—it is unlikely to allocate a channel of that capacity to two hours of
programming per day. This is especially true if that programming includes some coverage of
news stories of state-wide interest, but a larger amount of programming that is of limited interest
to subscribers in the orphan county because it focuses on news of local interest in the community
of the (distant) station. (The satellite operators also have argued that they would not want to have
a channel that is dark 22 hours per day because subscribers do not like to have to “click” past
dark channels, but given the number of channels that satellite operators assign to pay-per-view
service that appears as dark channels to most subscribers, this is not a convincing argument.) All
this suggests that under current rules, if satellite operators are allowed to negotiate for the
retransmission to subscribers in orphan counties of only the signals of the locally-produced news
programming of non-local, in-state broadcast stations, in most cases they are unlikely to have an
incentive to do so.
Sports Programming of State-Wide Interest
In most situations, satellite operators are likely to have a stronger incentive to retransmit to
orphan counties the sports programming of state-wide interest of non-local, in-state broadcasters.
Demand for such programming may be substantial. Some households view certain sports
programming as “must have” programming that, if available from one MVPD but not a
competitor, would lead the household to subscribe to the MVPD that offered the programming.
More basically, if sports programming for which some households have a strong intensity of
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demand becomes available from a satellite provider and is not available over-the-air, some of
those households might be motivated to subscribe to the satellite service in order to obtain the
programming. Thus, in some orphan counties a satellite operator might have the incentive to
negotiate a copyright agreement just for the sports programming, even if the remainder of that
channel’s schedule remained dark, while in other orphan counties the satellite operator might not
have the incentive to do so.
But it may not be possible for a satellite operator to negotiate such a copyright agreement. In
responding to a question at the October 7, 2009, Senate Commerce subcommittee hearing, Paul
Karpowicz of Meredith Broadcasting Group stated that broadcasters can only grant consent for
programming whose copyright they control—local news, but not network programming or sports
franchises. If the sports programming covers the games of an in-state (or the most closely located
out-of-state) team in a professional sports league, such as the National Football League (NFL),
then almost certainly the league has retained its copyright over the programming and any
negotiations would have to be between the satellite operator and the league (or perhaps the local
team). Some professional leagues have set very strict geographic boundaries for where each
team’s games can be transmitted or retransmitted—and have chosen not to make exceptions to
those boundaries—in order to assure any broadcast station affiliated with the network that has
obtained the broadcast transmission rights remains the exclusive broadcaster of that league’s
games during that particular time of day and to maximize league revenues by protecting against
the cannibalization of revenues from other programming packages. For example, the NFL seeks
to maximize revenues by selling broadcast and cable networks the rights to certain local and
regional games, but also by separately marketing to DirecTV an exclusive NFL Sunday Ticket
package that offers live coverage of up to 14 NFL games each Sunday for avid football fans.
Allowing satellite or cable subscribers in certain areas to receive the local or regional games from
another source is likely to reduce demand for NFL Sunday Ticket.
In fact, because it has paid a huge amount of money to the NFL for the exclusive rights to carry
NFL Sunday Ticket, as part of its strategy of branding itself the MVPD of choice for sports fans,
DirecTV has an incentive to oppose the retransmission of broadcast NFL football games into
orphan counties. According to news reports, in March 2009 DirecTV signed a contract with NFL
valued at $4 billion a year for four years for the exclusive rights to sell the Sunday Ticket
package.71 Currently, DirecTV charges its subscribers $59.95 per month, for the five-month
season, for the Sunday Ticket package; it would have to sell many such packages to recoup its
payments for the exclusive programming. Many of the subscribers for the Sunday Ticket package
are residents of orphan counties who therefore cannot receive the games of their home NFL team
either over-the-air or by cable or satellite retransmission of broadcast station signals. Allowing
cable and satellite operators to retransmit into those orphan counties the signals of stations
carrying those games would cannibalize the demand for Sunday Ticket. During the markup of the
Senate Judiciary Committee bill, when he was discussing an amendment to allow satellite
operators to retransmit the signals of certain in-state, out-of-market stations to households in
orphan counties in Wisconsin, Senator Feingold reportedly indicated that the MVPD that
exclusively offered Sunday Ticket opposed the amendment because it would allow die-hard
Green Bay Packer fans in distant parts of the state to see Packers games without subscribing to
the package.72 Perhaps this partially explains why the four exceptions created in SHVERA, which
71 See, for example, Matthew Futterman, “NFL, DirecTV Extend Pact in $4 Billion Deal,” The Wall Street Journal,
March 24, 2009, at p. B5.
72 See Tim Warren, “Senate Judiciary Okays Satellite Reauthorization Bill,” Communications Daily, September 25,
(continued...)
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allowed satellite operators to retransmit distant signals into orphan counties in New Hampshire,
Vermont, Oregon, and Mississippi, did not cover any states that have an NFL team.
Television households in orphan counties also often seek sports programming that covers the
games of the football, basketball, or baseball teams of their state university. Their local broadcast
stations, broadcasting from a neighboring state, are likely to be transmitting the games of that
neighboring state’s university. Broadcasters claim that, under current rules, it is possible for non-
local, in-state broadcasters to obtain a copyright license for the home state university games that
extends to the orphan counties and then to negotiate retransmission consent and a copyright
license with the satellite and cable operators to allow them to retransmit the home university
games to their subscribers in the orphan counties.
As an example, Preston Padden of the Disney Company attached to his written testimony for the
June 16, 2009, House hearing a letter from KATV, the ABC affiliate in Little Rock, to DirecTV,
offering “to negotiate retransmission terms for KATV-produced news, sports, and public affairs
programming” to DirecTV subscribers located in orphan counties in Arkansas.73 Although the
letter is not explicit about KATV’s sports programming, in the policy debate broadcasters have
inferred that it includes the University of Arkansas football and basketball games, for which
KATV has negotiated a copyright license and which as a result legally should be treated as if it
were KATV’s locally-produced programming. It would appear that KATV could seek to negotiate
a retransmission agreement with DirecTV or any other MVPD, but there could be one legal risk.
As explained earlier, there has not been a legal ruling on the proper way to interpret section
339(a)(1)(A) of the Communications Act. If it were interpreted to limit the scope of a satellite
operator’s right to retransmit distant signals to only those signals for which a satellite operator can
obtain a statutory copyright license for secondary transmission under section 119, then a
broadcaster operating in the DMA to which the orphan counties are assigned (for example, the
local broadcaster in the Shreveport, Louisiana DMA that is carrying in orphan Arkansas counties
the Louisiana State games that probably are aired at the same time as the Arkansas games) could
challenge the retransmission of KATV’s signals through a complaint before the FCC, claiming
such retransmission is not allowed under the Communications Act and that it has been harmed to
the extent its audience has migrated to the Arkansas games. Since the University of Arkansas and
Louisiana State are in the same collegiate athletic conference, it might be possible that the
conference, which may have been the original copyright holder that had negotiated with KATV,
would be willing to help broker a compromise among the parties that would allow the University
of Arkansas games to be retransmitted to the orphan counties in Arkansas.
But sometimes state boundaries also represent boundaries between collegiate athletic
conferences. For example, the University of Arkansas and the University of Missouri are in
different athletic conferences. In this case, the local television station in the Springfield, Missouri
DMA that broadcasts the University of Missouri games might object to the retransmission of
University of Arkansas games to satellite subscribers in the orphan Arkansas counties located in
its local market, and there would not be a collegiate athletic conference to act as an intermediary.
(...continued)
2009.
73 Letter from L. Dale Nicholson, president and general manager, KATV, to Derek Chang, executive vice president for
content strategy and development, DirecTV, Inc., dated March 25, 2009, attached to the written Testimony of Preston
R. Padden, executive vice president, worldwide government relations, the Walt Disney Company, before the
Subcommittee on Communications, Technology, and the Internet, House Committee on Energy and Commerce,
“Hearing on Discussion Draft of Legislation to Reauthorize the Satellite Home Viewer Act,” June 16, 2009.
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If there is any likelihood that a local station could file a suit in court or a complaint at the FCC
that gets traction, it could create a legal and financial risk that might discourage a satellite
operator from negotiating to carry the non-local, in-state signals. The savings clause in the House
Commerce Committee bill stating that nothing in the law or in FCC rules shall limit the ability of
a satellite carrier to retransmit a performance or display of work pursuant to an authorization
granted by the copyright owner (or, if within the scope of its authorization, its licensee), is
intended to bar a local broadcaster from taking such actions.
The Senate Commerce Committee bill (S. 2764) includes a provision intended to encourage
satellite operators to carry these state public affairs networks. Under the provision, a satellite
carrier that provides the retransmission of the state public affairs networks of at least 15 different
states, under reasonable prices, terms, and conditions, and does not delete any of the
noncommercial educational or informational programming on those networks, would only have to
allocate 3.5% of its channel capacity to the retransmission of educational or informational
noncommercial programming, rather than 4%.This provision might encourage satellite operators
to offer state public affairs networks to subscribers in orphan counties.
Requiring Satellite Operators to Offer Local-into-
Local Service in All Markets
Currently, satellite operators are allowed, but not required, to offer subscribers the signals of all
full power broadcast stations in their local market. If a satellite operator chooses to retransmit the
signal of a local broadcast station, and to use the section 122 royalty-free copyright license for the
content provided over that signal, it must retransmit the primary signals of all the stations in that
local market, subject to obtaining local station permission. The satellite operators have chosen not
to offer this “local-into-local” service in many small markets, preferring to use their satellite
capacity to provide additional high definition and other programming to larger, more lucrative
markets than to use the capacity to serve very small numbers of customers. In some cases, those
small markets may not generate enough revenues to cover the costs of providing local-into-local
service.74 The 20 smallest DMAs each have at most 65,000 households; the smallest has only
4,000 households. At the October 7, 2009, Senate Commerce subcommittee hearing, Robert
Gabrielli of DirecTV claimed that it costs approximately $2.5 million to bring local-into-local
service to a new market.
As a result approximately 3% of all U.S. households do not have access to local broadcast signals
if they subscribe to satellite video service.75 Early in the 111th Congress, Representative Stupak
74 Paul Gallant, an analyst with Stanford Washington Research Group, reportedly stated that mandatory provision of
local-into-local service in all markets “would impose significant new costs on Dish Network and DirecTV and generate
virtually no new revenue” because the markets in question are so small. See Todd Shields, “DirecTV, Dish May Face
Requirement for More Local TV (Update1),” Bloomberg.com, February 23, 2009, available at http://www.bloomberg.
com/apps/news?pid=newsarchive&sid=ayQ_vo3nJImo, viewed on April 27, 2009.
75 According to the written testimony of Charles W. Ergen, chairman, president, and chief executive officer of DISH
Network Corporation, submitted for the hearing on “Reauthorization of the Satellite Home Viewer Extension and
Reauthorization Act,” before the Subcommittee on Communications, Technology, and the Internet, Committee on
Energy and Commerce, U.S. House of Representatives, February 24, 2009, at p. 2, “DISH provides local service in 178
markets today, reaching 97 percent of households nationwide.” According to the written testimony of Bob Gabrielli,
senior vice president, broadcasting operations and distribution, DIRECTV, Inc., before the House Judiciary Committee,
February 25, 2009, at p. 10, “DIRECTV today offers local television stations by satellite in 150 of the 210 local
(continued...)
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introduced H.R. 927, which would require a satellite operator that uses the royalty-free copyright
license for the content of local broadcast signal in any market to offer local-into-local service in
every market. This, in effect, would require satellite operators to offer local-into-local service in
all markets since they would not want to lose use of the royalty-free copyright license in those
markets in which they currently offer local-into-local service. Although this requirement is not
mandatory in the sense that a satellite operator could choose not to provide local-into-local
service in some markets if it agreed to forgo access to the royalty-free copyright license, its effect
would be to mandate local-into-local service in all markets.
The broadcasters support mandatory local-into-local service, arguing that in markets where
satellite operators are not offering such service satellite subscribers are unlikely to be able to
receive local news, weather, and sports programming since those subscribers probably no longer
maintain roof-top antennas to receive broadcast signals. The broadcasters claim this undermines
the “principles of localism and universal service for all Americans.”76 It is in the interest of
broadcasters to have their signals carried by as many MVPDs as possible; moreover, making such
carriage mandatory may help broadcasters in their retransmission consent negotiations with
MVPDs.
The satellite operators oppose a statutory requirement that they offer local-into-local service in all
markets.77 They claim that, in just ten years, they have built out their networks to provide local
programming to 98% of U.S. households, while cable and broadcast, despite being in business
much longer, actually offer local service to a smaller percentage of U.S. households. At the
October 7, 2009, Senate Commerce subcommittee hearing, Robert Gabrielli of DirecTV claimed
that his company currently retransmits approximately 500 national cable networks and 30
standard definition and 30 high definition pay-per-view channels, primarily on its broad beams,
and approximately 2,500 local broadcast channels, primarily on its spot beams. He claimed it
would be unfair to require the satellite carriers to allocate an even greater portion of their capacity
to carry the approximately 100 additional local broadcast television stations in the small markets
they do not currently serve; since available frequencies are limited, adding these broadcast signals
would require them to remove other programming. The satellite carriers therefore suggest that, if
local-into-local service is made mandatory, the requirement be constrained as follows:
• It should be subject to a one-third capacity cap, analogous to the constraint on the
must carry rules for cable, which require a cable operator to carry local
commercial stations only up to one-third of the aggregate number of usable
activated channels in the operator’s system;
• It should be limited to the carriage of the signals of those stations that provide
their viewers with a minimum of 20% locally-produced programming;
(...continued)
markets in the United States, serving 95 percent of American households. (Along with DISH Network, we offer local
service to 98 percent of American households.)”
76 Written statement of Paul A. Karpowicz, president, Meredith Broadcasting Group, on behalf of the Television Board
of the National Association of Broadcasters, before the Subcommittee on Communications, Technology, and the
Internet, House Committee on Energy and Commerce, “Hearing on Discussion Draft of Legislation to Reauthorize the
Satellite Home Viewer Act,” June 16, 2009, at p. 7.
77 See, for example, the written testimony of Derek Chang, executive vice president, content strategy and development,
DirecTV, Inc., before the House Committee on Energy and Commerce, Subcommittee on Communication Technology,
and the Internet, June 16, 2009, at pp. 6-14, which describes in detail the industry position on the issue of mandatory
local-into-local service.
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• Local broadcasters should share in the costs of providing local service in the
smallest markets by providing a good quality signal at one of the satellite
operator’s centralized uplink centers rather than at the local collection facility in
the broadcaster’s market, thereby imposing some of the backhaul costs on the
local broadcaster; and
• Local broadcasters should not charge satellite operators retransmission consent
fees for retransmitting their signals to subscribers in the smallest markets.
It may not be simple to measure capacity usage in satellite networks, since local
broadcast signals are retransmitted over spot beams while national and regional networks
are retransmitted over broad beams. But some formula presumably could be constructed.
Historically, despite the longstanding U.S. media policy goal of fostering localism, the
FCC has avoided setting specific requirements on the amount or proportion of broadcast
programming that must be locally-produced. Broadcasters strongly oppose any
restrictions on the retransmission consent property rights they were given by Congress in
the 1992 Cable Act. At the June 16, 2009, House hearing, Representative Boucher asked
the representative for the National Association of Broadcasters to meet with its
membership and report back the extent to which they would be willing to share in the
costs of providing local-into-local service in the smallest markets.
The House Judiciary Committee and House Commerce Committee bills include provisions that
would address this issue by creating an incentive for DISH Network to voluntarily serve all 210
markets. As a result of repeated violations of section 119 of the Copyright Act, DISH is subject to
a permanent court injunction barring it from using a section 119 statutory copyright license to
retransmit distant signals to its subscribers. It therefore must employ an arms-length agreement
with National Programming Service for that entity to obtain the copyright license to deliver
distant signals to the DISH subscribers. The bills would waive the injunction if DISH provides
local-into-local service in all 210 local markets in the United States, though they would not lift or
alter the penalties provisions that exist elsewhere in the statute that would apply to DISH
Network going forward. The bills outline the procedure by which DISH could obtain permission
to use the license on a temporary basis to offer local-into-local service in all 210 markets and by
which DISH would demonstrate it was actually offering that service in order to receive a full
waiver of the injunction. The limited temporary waiver could only be issued once and would
expire within 120 days of its issuance unless the court found good cause to extend the temporary
waiver. Once DISH was providing local-into-local service in all 210 markets, it would file a
statement of eligibility with the court that imposed the injunction. The statement must include a
certification issued by the FCC stating that DISH was providing a good quality signal to 90% of
the households in each DMA. The bills also outline the mechanism by which DISH’s claim that it
had established service in all 210 markets could be challenged. They set out penalties that the
court would impose for willful noncompliance, including the revocation of the license and
substantial monetary penalties. The bills set forth what the burden of proof would be in initial and
subsequent compliance proceedings. During the markup of H.R. 2994, DISH indicated that it
would voluntarily introduce local-into-local service in all 210 markets within two years in
exchange for the statutory relief from the court injunction. When DISH agreed to this,
Representative Stupak withdrew his proposed amendment, based on H.R. 927, to effectively
make it mandatory for satellite operators to serve all markets.78
78 See John Eggerton, “DISH: Local Into Local Within Two Years—No. 2 DBS Provider Said It Will Deliver Local TV
Stations to All 210 DMAs During that Time Frame,” Multichannel News, October 15, 2009.
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The Senate Judiciary Committee bill includes provisions intended to indirectly encourage DISH
Network to offer local-into-local service in currently unserved markets. Many of those unserved
markets are short markets that have less than the full complement of local network affiliates for
the four major national broadcast networks—ABC, CBS, FOX, and NBC. Currently, satellite
operators can use the statutory copyright license for distant signals in section 119 of the
Copyright Act to retransmit to their subscribers the content on the broadcast signals of (1) local
low power stations, (2) significantly viewed stations, (3) the in-state but out-of-market stations in
the four states that satellite operators were allowed to import into orphan counties under the
exceptions in SHVERA, and (4) distant network stations affiliated to national networks for which
there is no affiliate in the local (short) market. But DISH Network is enjoined from using the
section 119 copyright license. The Senate Judiciary Committee bill would change the license
required to retransmit the content of those four categories of broadcast signals from the section
119 license to the section 122 statutory copyright license for local signals, thus providing DISH
Network with an efficient and inexpensive license and encouraging it to serve the currently
unserved markets.
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Appendix. “Orphan Counties”
Table A-1. Counties and Television Households in Each State That Are Located in Designated Market Areas (DMAs)
for Which the Primary City Is Outside the State
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Alabama
1,860,130
Atlanta, GA
Cleburne
6,040
Atlanta, GA DMA: no station with city of license
in AL;
Randolph
8,750
Columbus, GA
Barbour
9,910
Columbus, GA DMA: one commercial station
with city of license in Opelika, AL and one
Chambers
14,120
public/educational station transmitting from
Lee
54,960
Louisville, AL;
Russel
20,700
Columbus-Tupelo-
Lamar
5,930
Columbus-Tupelo-West Point, MS DMA: no
West Point, MS
station with city of license in AL;
Meridian, MS
Choctaw
5,790
Meridian, MS DMA: no station with city of
license in AL.
Sumter
5,230
131,430
7.07%
Alaska
212,980
None
0
0.00%
Arizona
2,394,980
Albuquerque-
Apache (N)
14,350
Albuquerque-Santa Fe, NM DMA: no station with
Santa Fe, NM
city of license in AZ.
14,350
0.60%
CRS-46
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Arkansas
1,127,320
Memphis, TN
Crittenden
19,590
Memphis, TN DMA: no station with city of
license in AR;
Cross
7,150
Lee
3,430
Mississippi
17,430
Phillips
7,870
Poinsett
9,800
St.
Francis
9,180
Springfield, MO
Baxter
19,150
Springfield, MO DMA: one commercial station
with city of license in Harrison, AR;
Boone
15,440
Carroll
11,010
Fulton
4,880
Marion
7,000
Newton
3,500
Shreveport, LA
Columbia
9,480
Shreveport, LA DMA: no station with city of
license in AR;
Hempstead
8,700
Howard
5,270
Lafayette
3,160
Little
River
5,290
Miller
16,780
Nevada
3,650
Sevier
5,730
CRS-47
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Monroe, LA-
Ashley
8,750
Monroe, LA-El Dorado, AR DMA: one NBC-
El Dorado, AR
affiliated commercial station with city of license
Union
17,080
in El Dorado, AR and one other commercial
219,320
19.45% station with city of license in El Dorado, AR.
California
12,369,370
Reno, NV
Alpine
460
Reno, NV DMA: no station with city of license in
CA;
Lassen
9,570
Mono
5,040
Medford- Siskiyou
18,620
Medford-Klamath Falls, OR DMA: no station
Klamath Falls, OR
with city of license in CA;
Yuma,
AZ- Imperial
46,980
Yuma, AZ-El Centro, CA DMA: one Fox-
El Centro, CA
affiliated commercial station with city of license
in El Centro, CA, one Univision-affiliated
commercial station with city of license in El
Centro, and one Telefutura-affiliated commercial
station with city of license in Calipatria, CA.
80,210
0.65%
Colorado
1,896,020
Albuquerque, NM
La Plata
19,750
Albuquerque, NM DMA: one CBS-affiliated
commercial station with city of license in
Montezuma
10,190
Durango, CO that is a satellite of an
Albuquerque, NM station and one Telemundo-
affiliated commercial station with city of license
in Durango, CO that is a satellite of an
Albuquerque, NM station.
29,940
1.58%
Connecticut 1,340,730
New York City, NY Fairfield
325,740
New York City, NY DMA: one commercial
station with city of license in Bridgeport, CT, and
one public/ educational station transmitting from
Bridgeport, CT.
325,740
24.30%
CRS-48
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Delaware
337,290
Philadelphia, PA
Kent
59,980
Philadelphia, PA DMA: one commercial station
with city of license in Wilmington, DE and one
New
Castle
200,070
public/educational station transmitting from
Wilmington;
Salisbury, MD
Sussex
77,240
Salisbury, MD DMA: one public/educational
station transmitting from Seaford, DE.
337,290
100%
DC
257,650
None
0
0.00%
Florida
7,439,250
Mobile, AL-Pensacola-
Escambia
120,340
Mobile, AL-Pensacola-Fort Walton Beach, FL
Fort Walton Beach, FL
DMA: three commercial stations with city of
Okaloosa
78,970
license in Fort Walton Beach, FL, three
Santa
Rosa
54,430
commercial stations (including one ABC affiliate)
with city of license in Pensacola, FL, and one
public/educational station transmitting from
Pensacola, FL.
253,740
3.40%
Georgia
3,586,760
Greenville-Spartanburg-
Elbert
8,160
Greenville-Spartanburg-Anderson, SC-Asheville,
Anderson, SC-Asheville,
NC DMA: one CBS-affiliated commercial station
Franklin
8,590
NC
with city of license in Toccoa, GA;
Hart
9,960
Stephens
10,050
Jacksonville, FL
Brantley
6,050
Jacksonville, FL DMA: one commercial station
with city of license in Brunswick, GA and one
Camden
16,940
public/educational station transmitting from
Charlton
3,470
Waycross, GA;
Glynn
30,640
Pierce
7,180
Ware
13,930
CRS-49
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Chattanooga, TN
Catoosa
24,840
Chattanooga, TN DMA: one commercial station
with city of license in Dalton, GA and one
Dade
6,100
public/educational station transmitting from
Murray
15,010
Chatsworth-Dalton, GA;
Walker
25,590
Whitfield
32,190
Dothan, AL
Early
4,560
Dothan, AL DMA: no station with city of license
in GA;
Tallahassee, FL-
Brooks
6,360
Tallahassee, FL-Thomasville, GA DMA: one
Thomasville, GA
FOX-affiliated commercial station with city of
Clinch
2,680
license in Bainbridge, GA, one CBS-affiliated
Decatur
10,600
commercial station with city of license in
Thomasville, GA, and one CBS-affiliated
Echols
1,380
commercial station with city of license in
Valdosta, GA.
Grady
9,530
Lanier
2,970
Lowndes
38,260
Miller
2,470
Seminole
3,470
Thomas
17,750
318,730
8.89%
CRS-50
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Hawai
429,940
None
0
0.00%
Idaho
561,020
Salt Lake City, UT
Bear Lake
1,990
Salt Lake City, UT DMA: no station with city of
license in ID;
Franklin
3,780
Oneida
1,470
Spokane, WA
Benewah
3,580
Spokane, WA DMA: one CBS-affiliated
commercial station (affiliated with a station in
Bonner
16,370
Yakima, WA) with city of license in Lewiston, ID,
Boundary
4,030
one public/educational station transmitting from
Couer d’Alene, ID, and one public/ educational
Clearwater
3,080
station transmitting from Moscow, ID.
Idaho
5,850
Kootenai
53,100
Latah
13,000
Lewis
1,460
Nez
Perce
16,010
Shoshone
5,570
129,290
23.05%
Illinois
4,759,150
St. Louis, MO
Bond
6,450
St. Louis, MO DMA: one commercial station with
city of license in East St. Louis, IL;
Calhoun
2,090
Clay
5,540
Clinton
13,550
Fayette
8,020
Greene
5,350
Jersey
8,660
CRS-51
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Macoupin 19,150
Madison
108,570
Marion
15,780
Monroe
12,430
Montgomery
11,160
Randolph
11,960
St.
Clair
101,790
Washington
5,600
Evansville, IN
Edwards
2,790
Evansville, IN DMA: no station with city of
license in IL;
Wabash
4,870
Wayne
6,900
White
6,260
Terre Haute, IN
Clark
6,970
Terre Haute, IN DMA: one public/educational
station transmitting from Olney, IL;
Crawford
7,470
Jasper
3,770
Lawrence
5,930
Richland
6,420
CRS-52
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Paducah,
KY-Cape
Alexander
3,280
Paducah, KY-Cape Girardeau, MO-Mount
Girardeau, MO-Mount
Vernon, IL DMA: one commercial station with
Vernon, IL
city of license in Marion, IL, one ABC-affiliated
commercial station with city of license in
Franklin
16,750
Harrisburg, IL, one commercial station with city
Gal atin
2,580
of license in Mt. Vernon, IL, and one public/
educational station transmitting from
Hamilton
3,270
Carbondale, IL;
Hardin
1,880
Jackson
24,550
Jefferson
15,600
Johnson
4,450
Massac
6,260
Perry
8,440
Pope
1,690
Pulaski
2,470
Saline
10,720
Union
7,360
Williamson
27,310
Davenport, IA-Rock
Bureau
14,220
Davenport, IA-Rock Island-Moline, IL DMA: one
Island-Moline, IL
CBS-affiliated commercial station with city of
Carroll
6,550
license in Rock Island, IL, one ABC-affiliated
Henderson
3,100
commercial station with city of license in Moline,
IL, and one public/educational station
Henry
19,750
transmitting from Moline, IL.
Jo
Daviess
9,610
Knox
20,350
CRS-53
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Mercer
6,480
Rock
Island
60,920
Warren
6,580
Whiteside
23,440
695,090
14.61%
Indiana
2,480,150
Chicago, IL
Jasper
11,820
Chicago, IL DMA: one commercial station with
city of license in Gary, IN, one commercial
Lake
186,930
station with city of license in Hammond, IN, and
LaPorte
42,100
one public/educational station transmitting from
Gary, IN;
Newton
5,150
Porter
62,990
Cincinnati, OH
Dearborn
18,770
Cincinnati, OH DMA: no station with city of
license in IN;
Franklin
8,470
Ohio
2,290
Ripley
10,320
Switzerland
3,790
Union
2,770
Louisville, KY
Clark
45,080
Louisville, KY DMA: one commercial station with
city of license in Salem, IN;
Crawford
4,230
Floyd
29,110
Harrison
14,430
Jackson
16,720
Jefferson
12,800
CRS-54
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Jennings
10,560
Orange
7,910
Scott
9,420
Washington
10,730
Champaign & Springfield Warren
3,260
Champaign & Springfield-Decatur, IL DMA: no
-Decatur, IL
station with city of license in IN.
519,650
21.00%
Iowa
1,198,410
Omaha, NE
Cass
5,780
Omaha, NE DMA: one public/educational station
transmitting from Council Bluffs, IA and one
Crawford
6,280
public/ educational station transmitting from Red
Fremont
3,080
Oak, IA;
Harrison
6,070
Mills
5,680
Montgomery
4,480
Page
6,130
Pottawattamie
35,390
Shelby
4,880
Sioux Fal s, SD
Lyon
4,080
Sioux Falls, SD DMA: no station with city of
license in IA;
Osceola
2,480
Rochester, MN-Mason
Cerro
Gordo
18,430
Rochester, MN-Mason City, IA-Austin, MN
City, IA-Austin, MN
DMA: one CBS-affiliated commercial station with
Floyd
6,680
city of license in Mason City, IA and one public/
Hancock
4,460
educational station transmitting from Mason City,
IA;
Howard
3,770
CRS-55
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Mitchel
4,270
Winnebago
4,490
Worth
3,180
Quincy,
IL-Hannibal,
Lee
14,130
Quincy, IL-Hannibal, MO-Keokuk, IA DMA: no
MO-Keokuk, IA
station with city of license in IA.
143,740
12.00%
Kansas
1,080,320
Kansas City, MO
Anderson
3,030
Kansas City, MO DMA: one commercial station
with city of license in Lawrence, KS;
Atchison
6,270
Douglas
44,330
Franklin
10,180
Johnson
210,650
Leavenworth
25,240
Linn
3,870
Miami
11,620
Wyandotte
57,580
Tulsa, OK
Chautauqua
1,470
Tulsa, OK DMA: no station with city of license in
KS;
Montgomery
14,130
Lincoln and Hastings-
Jewel
1,390
Lincoln and Hastings-Kearney, NE DMA: no
Kearney, NE
station with city of license in KS;
Phillips
2,180
Republic
2,080
Smith
1,690
CRS-56
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
St. Joseph, MO
Doniphan
2,990
St. Joseph, MO DMA: no station with city of
license in KS;
Joplin, MO-Pittsburg, KS Al en
5,350
Joplin, MO-Pittsburg, KS DMA: one CBS-affiliated
commercial station with city of license in
Bourbon
5,830
Pittsburg, KS and one Fox-affiliated commercial
Cherokee
8,250
station with city of license in Pittsburg, KS.
Crawford
15,700
Labette
8,800
Neosho
6,370
Wilson
3,880
Woodson
1,360
454,240
42.05%
Kentucky
1,724,070
Nashville, TN
Allen
7,450
Nashville, TN DMA: no station with city of
license in KY;
Christian
29,170
Clinton
4,100
Cumberland
2,700
Logan
10,960
Monroe
4,760
Simpson
6,860
Todd
4,610
Trigg
5,750
CRS-57
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Cincinnati, OH
Boone
43,370
Cincinnati, OH DMA: one Fox-affiliated
commercial station with city of license in
Bracken
3,490
Newport, KY, one public/ educational station
Campbel
35,050
transmitting from Covington, KY, and one
public/educational station transmitting from
Gal atin
2,970
Owenton, KY;
Grant
9,430
Kenton
63,860
Mason
7,240
Owen
4,430
Pendleton
5,480
Robertson
790
Knoxville, TN
Bell
11,970
Knoxville, TN DMA: one commercial station
with city of license in Harlan, KY;
Harlan
13,010
McCreary
6,800
Charleston-Huntington,
Boyd
19,830
Charleston-Huntington, WV DMA: one
WV
commercial station with city of license in
Carter
11,010
Ashland, KY, one public/ educational station
Elliott
2,930
transmitting from Ashland, KY, and one
public/educational station transmitting from
Floyd
17,690
Pikeville, KY;
Greenup
15,410
Johnson
9,730
Lawrence
6,510
Lewis
5,530
Martin
4,550
CRS-58
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Pike
27,500
Tri-Cities (Kingsport-
Leslie
4,780
Tri-Cities (Kingsport-Johnson City, TN-Bristol,
Johnson City, TN-
VA) DMA: no station with city of license in KY;
Bristol, VA)
Letcher
9,960
Evansville, IN
Daviess
38,250
Evansville, IN DMA: one commercial station with
city of license in Madisonville, KY, one
Hancock
3,460
public/educational station transmitting from
Henderson
18,820
Madisonville, KY, and one public/ educational
station transmitting from Owensboro, KY.
Hopkins
19,140
McLean
3,960
Muhlenberg
12,370
Ohio
9,420
Union
5,580
Webster
5,420
535,310
31.05%
Louisiana
1,659,410
None
0
0.00%
Maine
553,220
None
0
0.00%
Maryland
2,122,440
Washington, DC
Al egany
28,630
Washington, DC DMA: one NBC-affiliated
commercial station with city of license in
Calvert
30,940
Hagerstown, MD, one other commercial station
Charles
50,670
with city of license in Hagerstown, MD, one
public/educational station transmitting from
Frederick
82,740
Hagerstown, MD, and one public/educational
station transmitting from Frederick, MD;
Montgomery
345,720
Prince
George’s 295,210
St.
Mary’s 37,400
CRS-59
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Washington
56,950
Pittsburgh, PA
Garrett
11,400
Pittsburgh, PA DMA: one public/educational
station transmitting from Oakland, MD.
939,660
44.27%
Massachusetts 2,492,190
Albany-Schenectady-
Berkshire
54,410
Albany-Schenectady-Troy, NY DMA: one ABC-
Troy, NY
affiliated commercial station with city of license
in Adams, MA that is a satellite of an Albany, NY
station;
Providence,
RI-New
Bristol
211,320
Providence, RI-New Bedford, MA DMA: one
Bedford, MA
ABC-affiliated commercial station with city of
license in New Bedford, MA and one other
commercial station with city of license in New
Bedford, MA.
265,730
10.66%
Michigan
3,881,920
Green
Bay-Appleton,
Menominee
10,350
Green Bay-Appleton, WI DMA: no station with
WI
city of license in MI (one CBS-affiliated
commercial station with city of license in
Escanaba, MI is in the Marquette, MI DMA but is
a satellite of a Green Bay, WI station);
Toledo, OH
Lenawee
37,510
Toledo, OH DMA: no station with city of license
in MI;
South Bend-Elkhart, IN Berrien
62,520
South Bend-Elkhart, IN DMA: no station with
city of license in MI;
Cass
19,880
Duluth,
MN-Superior,
Gogebic
6,560
Duluth, MN-Superior, WI DMA: no station with
WI
city of license in MI.
136,820
3.52%
CRS-60
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Minnesota
2,042,050
Sioux Fal s, SD
Lincoln
2,490
Sioux Fal s, SD DMA: one public/educational
station transmitting from Worthington, MN;
Murray
3,480
Nobles
7,550
Pipestone
3,860
Rock
3,760
Fargo-Val ey City, ND Becker
13,020
Fargo-Valley City, ND DMA: one FOX-affiliated
commercial station with city of license in Thief
Clay
20,940
River Falls, MN that is a satellite of a Fargo, ND
Clearwater
3,300
station;
Kittson
1,790
Lake of the Woods
1,760
Mahnomen
1,990
Marshal
3,980
Norman
2,680
Pennington
5,660
Polk
12,120
Red
Lake
1,680
Roseau
6,120
Wilkin
2,490
La Crosse-Eau Claire,
Houston
7,750
La Crosse-Eau Claire, WI DMA: no station with
WI
city of license in MN.
Winona
18,870
125,290
6.14%
CRS-61
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Mississippi
1,093,690
New Orleans, LA
Hancock
16,130
New Orleans, LA DMA: no station with city of
license in MS;
Pearl
River
22,330
Memphis, TN
Alcorn
15,010
Memphis, TN DMA: one commercial station with
city of license in Holly Springs, MS and one
Benton
3,080
public/educational station transmitting from
Coahoma
9,220
Oxford, MS;
DeSoto
58,400
Lafayette
16,790
Marshal
13,170
Panola
12,940
Quitman
3,050
Tate
9,710
Tippah
8,380
Tunica
3,890
Mobile, AL-Pensacola-
George
7,720
Mobile, AL-Pensacola-Fort Walton Beach, FL
Fort Walton Beach, FL
DMA: no station with city of license in MS;
Greene
4,160
Baton Rouge, LA
Amite
5,230
Baton Rouge, LA DMA: no station with city of
license in MS.
Wilkinson
3,630
212,840
19.46%
CRS-62
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Missouri
2,345,310
Omaha, NE
Atchison
2,570
Omaha, NE DMA: no station with city of license
in MO;
Paducah, KY-Cape
Bollinger
4,660
Paducah, KY-Cape Girardeau-Harrisburg, MO-
Girardeau-Harrisburg,
Mount Vernon, IL DMA: one FOX-affiliated
Butler
17,140
MO-Mount Vernon, IL
commercial station with city of license in Cape
Cape
Girardeau
29,720
Girardeau, MO, one CBS-affiliated commercial
station with city of license in Cape Girardeau,
Carter
2,300
MO, and one commercial station with city of
license in Poplar Bluff, MO that is a satellite of a
Dunklin
12,640
Harrisburg, IL station;
Madison
4,950
Mississippi
5,380
New
Madrid
7,080
Pemiscot
7,410
Perry
7,360
Scott
16,000
Stoddard
12,220
Wayne
5,330
Quincy, IL-Hannibal,
Clark
2,980
Quincy, IL-Hannibal, MO-Keokuk, IA DMA: one
MO-Keokuk, IA
CBS- and ABC-affiliated commercial station with
Knox
1,650
city of license in Hannibal, MO;
Lewis
3,770
Marion
11,140
Monroe
3,680
Ral s
3,890
Shelby
2,580
CRS-63
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Ottumwa, IA-Kirksville,
Adair
9,520
Ottumwa, IA-Kirksville, MO DMA: one ABC-
MO
affiliated commercial station with city of license
Macon
6,400
in Kirksville, MO.
Putnam
2,080
Schuyler
1,690
Scotland
1,760
Sullivan
2,560
188,460
8.04%
Montana
383,090
Spokane, WA
Lincoln
7,850
Spokane, WA DMA: no station with city of
license in MT;
Minot-Bismarck-
Daniels
690
Minot-Bismarck-Dickinson, ND DMA: no station
Dickinson, ND
with city of license in MT;
Fal on
1,060
McCone
,690
Richland
3,870
Roosevelt
3,350
Sheridan
1,380
Wibaux
390
Rapid City, SD
Carter
490
Rapid City, SD DMA: no station with city of
license in MT.
17,510
4.57%
CRS-64
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Nebraska
701,680
Denver, CO
Arthur
100
Denver, CO DMA: one public/educational station
transmitting from Alliance, NE;
Banner
300
Box
Butte
4,390
Cheyenne
4,180
Dawes
3,440
Deuel
800
Garden
790
Grant
190
Hooker
290
Keith
3,380
Kimbal
1,490
Sheridan
2,270
Sioux
590
Wichita-Hutchinson, KS Dundy
790
Wichita-Hutchinson, KS DMA: one NBC-
affiliated station with city of license in McCook,
NE that is a satellite of a Wichita, KS station;
Sioux Fal s, SD
Cherry
2,380
Sioux Fal s, SD DMA: one public/educational
station transmitting from Merriman, NE;
Sioux City, IA
Cedar
3,180
Sioux City, IA DMA: one public/educational
station transmitting from Norfolk, NE;
Dakota
6,990
Dixon
2,390
Knox
3,450
Madison
12,820
CRS-65
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Pierce
2,680
Stanton
2,280
Thurston
2,190
Wayne
3,190
Rapid City, SD
Morrill
1,980
Rapid City, SD DMA: no station with city of
license in NE;
Cheyenne,
WY-
Scotts Bluff
14,770
Cheyenne, WY-Scottsbluff, NE DMA: one ABC-
Scottsbluff, NE
affiliated commercial station with city of license
in Scottsbluff, NE that is affiliated with a Rapid
City, SD station, one CBS-affiliated commercial
station with city of license in Scottsbluff, NE that
is a satellite of a Cheyenne, WY station, and one
other commercial station with city of license in
Scottsbluff, NE.
77,450
11.04%
Nevada
991,230
Salt Lake City, UT
Elko
15,990
Salt Lake City, UT DMA: one NBC-affiliated
commercial station with city of license in Elko,
Eureka
570
NV and one NBC-affiliated commercial station
White
Pine
3,450
with city of license in Ely, NV that is a satellite of
a Las Vegas, NV station.
19,440
1.96%
New
512,040
Portland-Auburn, ME Carroll
20,100
Portland-Auburn, ME DMA: no station with city
Hampshire
of license in NH;
Coos
13,940
Burlington,
VT-
Grafton
32,590
Burlington, VT-Plattsburgh, NY DMA: one public/
Plattsburgh, NY
educational station transmitting from Littleton,
NH;
Sullivan
17,870
CRS-66
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Boston, MA-
Belknap
25,000
Boston, MA-Manchester, NH DMA: one ABC-
Manchester, NH
affiliated commercial station with city of license
Cheshire
29,950
in Manchester, NH, one Telemundo-affiliated
Hillsborough 153,330
commercial station with city of license in
Merrimack, NH, one commercial station with
Merrimack
57,430
city of license in Derry, NH, one commercial
station with city of license in Concord, NH that
Rockingham
114,740
is a satellite of a Boston, MA station, one
Strafford
47,090
public/educational station transmitting from
Durham, NH, and one public/ educational station
transmitting from Keene, NH.
512,040
100%
New Jersey 3,159,830
New York City, NY Bergen
333,540
New York City, NY DMA: one Telefutura-
affiliated commercial station with city of license
Essex
273,970
in Newark, NJ, one Univision-affiliated
Hudson
221,690
commercial station with city of license in
Paterson, NJ, one Telemundo-affiliated
Hunterdon
46,520
commercial station with city of license in Linden,
NJ, one commercial station with city of license in
Middlesex
278,160
Secaucus, NJ, one commercial station with city of
Monmouth
235,940
license in Newton, NJ, one public/educational
station transmitting from Montclair, NJ, one
Morris
177,440
public/educational station transmitting from
Ocean
224,690
West Milford, NJ, one public/educational station
transmitting from New Brunswick, NJ, and one
Passaic
159,650
public/ educational station transmitting from
New ark, NJ;
Somerset
117,740
Sussex
54,700
Union
183,420
Warren
41,750
CRS-67
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Philadelphia, PA
Atlantic
102,780
Philadelphia, PA DMA: one Telemundo-affiliated
commercial station with city of license in Atlantic
Burlington
166,510
City, NJ, one other commercial station with city
Camden
189,960
of license in Atlantic City, NJ, one Univision-
affiliated commercial station with city of license
Cape
May
40,210
in Vineland, NJ, one NBC-affiliated commercial
station with city of license in Wildwood, NJ, one
Cumberland
51,790
commercial station with city of license in
Gloucester
105,440
Burlington, NJ, one public/educational station
transmitting from Camden, NJ, and one
Mercer
128,740
public/educational station transmitting from
Trenton, NJ.
Salem
25,190
3,159,830
100%
New Mexico 745,730
Amarillo, TX
Curry
17,170
Amarillo, TC DMA: one ABC-affiliated
commercial station with city of license in Clovis,
Quay
3,750
NM that is a satellite of an Amarillo, TX station
Roosevelt
6,780
and one public/educational station transmitting
from Portales, NM;
Union
1,550
Odessa-Midland, TX Lea (S)
1,990
Odessa-Midland, TX DMA: one commercial
station with city of license in Hobbs, NM;
El Paso, TX-Las Cruces, Dona Ana
69,660
El Paso, TX-Las Cruces, NM DMA: one
NM
Telemundo-affiliated commercial station with city
of license in Las Cruces, NM and one
public/educational station transmitting from Las
Cruces, NM.
100,900
13.53%
CRS-68
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
New York
7,094,620
Burlington, VT-
Clinton
31,080
Burlington, VT-Plattsburgh, NY DMA: one NBC-
Plattsburgh, NY
affiliated commercial station with city of license
in North Pole, NY and one public/educational
Essex
15,030
station transmitting from Plattsburgh, NY.
Franklin
18,050
64,160
0.90%
North
3,636,710
Atlanta, GA
Clay
4,800
Atlanta, GA DMA: no station with city of license
Carolina
in NC;
Norfolk-Portsmouth-
Camden
3,980
Norfolk-Portsmouth-Newport News, VA DMA:
Newport News, VA
one commercial station with city of license in
Chowan
5,900
Manteo, NC and one public/educational station
Currituck
9,630
transmitting from Edenton, NC;
Dare
14,790
Gates
4,560
Hertford
8,870
Pasquotank
15,800
Perquimans
5,430
Chattanooga, TN
Cherokee
11,920
Chattanooga, TN DMA: no station with city of
license in NC;
Myrtle Beach-Florence,
Robeson
45,180
Myrtle Beach-Florence, SC DMA: one
SC
public/educational station transmitting from
Scotland
13,690
Lumberton, NC;
CRS-69
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Greenville-Spartanburg-
Buncombe
95,860
Greenville-Spartanburg-Anderson, SC-Asheville,
Anderson, SC-Asheville,
NC DMA: one ABC-affiliated station with city of
Graham
3,380
NC
license in Asheville, NC that is affiliated with a
Haywood
24,920
station in Anderson, SC, one other commercial
station with city of license in Asheville, NC, and
Henderson
44,190
one public/educational station transmitting from
Asheville, NC.
Jackson
15,080
Macon
14,410
Madison
8,370
McDowel
17,660
Mitchel
6,740
Polk
8,310
Rutherford
25,810
Swain
5,620
Transylvania
13,320
Yancey
7,830
436,050
11.99%
North Dakota 264,630
None
0
0.00%
CRS-70
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Ohio
4,550,660
Charleston-Huntington, Gallia
12,320
Charleston-Huntington, WV DMA: one
WV
commercial station with city of license in
Jackson
13,070
Portsmouth, OH and one public/educational
Lawrence
25,800
station transmitting from Portsmouth, OH;
Meigs
9,390
Scioto
30,210
Vinton
5,220
Fort Wayne, IN
Paulding
7,510
Fort Wayne, IN DMA: no station with city of
license in OH;
Van
Wert
11,570
Parkersburg, WV
Washington
24,810
Parkersburg DMA: no station with city of license
in OH;
Wheeling, WV-
Belmont
27,800
Wheeling, WV-Steubenville, OH DMA: one
Steubenville, OH
NBC-affiliated commercial station with city of
Harrison
6,460
license in Steubenville, OH.
Jefferson
28,490
Monroe
5,690
208,340
4.58%
Oklahoma
1,428,630
Shreveport, LA
McCurtain
12,850
Shreveport, LA DMA: no station with city of
license in OK;
Fort Smith-Fayetteville,
Le
Flore
18,530
Fort Smith-Fayetteville-Springdale-Rogers, AR
Springdale-Rogers, AR
DMA: no station with city of license in OK;
Sequoyah
15,700
Amarillo, TX
Beaver
1,970
Amarillo, TX DMA: no station with city of
license in OK;
Cimarron
970
Texas
6,820
CRS-71
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Joplin, MO-Pittsburg, KS Ottawa
12,280
Joplin, MO-Pittsburg, KS DMA: no station with
city of license in OK;
Wichita Falls, TX-
Comanche
41,370
Wichita Falls, TX-Lawton, OK DMA: one ABC-
Lawton, OK
affiliated commercial station with city of license
Cotton
2,490
in Lawton, OK;
Jackson
9,420
Jefferson
2,480
Stephens
17,760
Tillman
3,080
Sherman, TX-Ada, OK Atoka
5,350
Sherman, TX-Ada, OK DMA: one NBC-affiliated
commercial station with city of license in Ada,
Bryan
15,910
OK.
Carter
19,040
Choctaw
6,050
Coal
2,170
Johnston
4,070
Love
3,560
Marshal
6,140
Pontotoc
14,750
Pushmataha
4,630
226,420
15.85%
CRS-72
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Oregon
1,469,220
Spokane, WA
Wal owa
2,910
Spokane, WA DMA: no station with city of
license in OR;
Boise, ID
Malheur
9,840
Boise, ID DMA: no station with city of license in
OR:
Yakima-Pasco-Richland- Umatilla
25,270
Yakima-Pasco-Richland-Kennewick,
WA
DMA:
Kennewick, WA
one FOX-affiliated commercial station with city
of license in Pendleton, OR.
38,020
2.59%
Pennsylvania 4,876,070
New York City, NY Pike
22,870
New York City, NY DMA: no station with city of
license in PA;
Washington, DC
Fulton
6,220
Washington, DC DMA: no station with city of
license in PA;
Buffalo, NY
McKean
16,990
Buffalo, NY DMA: no station with city of license
in PA;
Potter
6,350
Youngstown, OH
Mercer
45,840
Youngstown, OH DMA: no station with city of
license in PA;
Elmira, NY
Tioga
15,730
Elmira, NY DMA: no station with city of license
in PA.
114,000
2.34%
Rhode Island 411,260
0 None
0
0.00%
CRS-73
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
South
1,765,850
Charlotte, NC
Chester
12,600
Charlotte, NC DMA: one commercial station
Carolina
with city of license in Rock Hill, SC and one
public/educational station transmitting from Rock
Chesterfield
17,170
Hill, SC;
Lancaster
29,860
York
83,330
Savannah, GA
Beaufort
59,580
Savannah, GA DMA: one FOX-affiliated
commercial station with city of license in
Hampton
7,700
Hardeeville, SC and one public/educational
Jasper
7,680
station transmitting from Beaufort, SC;
Augusta, GA
Aiken
59,940
Augusta, GA DMA: one public/educational
station transmitting from Allendale, SC.
Al endale
3,660
Bamberg
5,900
Barnwel
9,180
Edgefield
8,660
McCormick
3,880
309,140
17.51%
South Dakota 313,560
Sioux City, IA
Union
5,660
Sioux City, IA DMA: no station with city of
license in SD;
Minot-Bismarck-
Corson
1,280
Minot-Bismarck-Dickinson, ND DMA: no station
Dickinson, ND
with city of license in SD.
6,940
2.21%
CRS-74
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Tennessee
2,492,660
Paducah, KY-Cape
Lake
2,080
Paducah, KY-Cape Girardeau-Harrisburg, MO-
Girardeau-Harrisburg,
Mount Vernon, IL DMA: no station with city of
Obion
13,020
MO-Mount Vernon, IL
license in TN;
Weakley
13,210
Huntsville-Decatur, AL Lincoln
13,380
Huntsville-Decatur, AL DMA: no station with city
of license in TN.
41,690
1.67%
Texas
8,586,370
Shreveport, LA
Bowie
34,670
Shreveport, LA DMA: one NBC-affiliated
commercial station with city of license in
Cass
12,280
Texarkana, TX.
Harrison
24,090
Marion
4,570
Morris
5,300
Panola
9,090
Shelby
9,970
Titus
10,010
109,980
1.28%
Utah
859,650
None
0
0.00%
Vermont
249,410
Boston,
MA-
Windham
17,930
Boston, MA-Manchester, NH DMA: no station
Manchester, NH
with city of license in VT;
Albany-Schenectady-
Bennington
14,780
Albany-Schenectady-Troy, NY DMA: no station
Troy, NY
with city of license in VT.
32,710
13.11%
CRS-75
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Virginia
3,004,970
Washington, DC
Arlington
155,200
Washington, DC DMA: one commercial station
with city of license in Manassas, VA, one
Clarke
6,010
Telefutura-affiliated commercial station with city
Culpeper
17,410
of license in Arlington, VA, one
public/educational station transmitting from
Fairfax
382,320
Front Royal, VA, one public/educational station
transmitting from Fairfax, VA, and one
Fauquier
24,630
public/educational station transmitting from
Frederick
40,160
Goldvein, VA;
King
George
8,770
Loudoun
103,700
Page
10,140
Prince William 146,460
Rappahannock
2,860
Shenandoah
17,120
Spotsylvania
53,570
Stafford
41,010
Warren
13,950
Westmoreland
7,120
Raleigh-Durham, NC Mecklenburg
13,370
Raleigh-Durham, NC DMA: no station with city
of license in VA;
Greensboro-High
Point- Patrick
8,190
Greensboro-High Point-Winston Salem NC
Winston Salem, NC
DMA: no station with city of license in VA;
Bluefield,
Beckley-Oak
Tazewell
18,570
Bluefield-Beckley-Oak Hill, WV DMA: no station
Hill, WV
with city of license in VA;
CRS-76
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Tri-Cities (Kingsport-
Buchanan
9,460
Tri-Cities (Kingsport-Johnson City, TN-Bristol,
Johnson City, TN-
VA) DMA: one NBC-affiliated commercial station
Dickenson
6,930
Bristol, VA)
with city of license in Bristol, VA, one
Lee
10,120
commercial station with city of license in
Grundy, VA, one public/educational station
Russel
12,070
transmitting from Marion, VA, and one
public/educational station transmitting from
Scott
10,070
Norton, VA.
Smyth
13,600
Washington
30,420
Wise
17,990
1,181,220
39.31%
Washington 2,500,030
Portland, OR
Clark
153,210
Portland, OR DMA: one commercial station with
city of license in Vancouver, WA.
Cowlitz
38,290
Klickitat
7,570
Skamania
4,060
Wahkiakum
1,600
204,730
8.19%
CRS-77
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
West Virginia 753,390
Washington, DC
Berkeley
40,920
Washington, DC DMA: one commercial station
with city of license in Martinsburg, WV;
Grant
5,030
Hampshire
9,090
Hardy
5,780
Jefferson
20,580
Mineral
10,770
Morgan
6,880
Pittsburgh, PA
Monongalia
35,040
Pittsburgh, PA DMA: one public/educational
station transmitting from Morgantown, WV;
Preston
12,420
Harrisonburg, VA
Pendleton
3,040
Harrisonburg, VA DMA: no station with city of
license in WV;
Roanoke-Lynchburg, VA Pocahontas
3,430
Roanoke-Lynchburg, VA DMA: no station with
city of license in WV.
152,980
20.31%
Wisconsin
2,248,370
Minneapolis-St. Paul,
Barron
18,740
Minneapolis-St. Paul, MN DMA: one
MN
public/educational station transmitting from
Burnett
7,090
Menomonie, WI;
Dunn
15,830
Pierce
14,640
Polk
18,140
St.
‘Croix
31,950
Washburn
7,000
Marquette, MI
Florence
2,190
Marquette, MI DMA: no station with city of
license in WI;
CRS-78
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Duluth,
MN-Superior,
Ashland
6,570
Duluth, MN-Superior, WI DMA: one NBC-
WI
affiliated commercial station with city of license
in Superior, WI.
Bayfield
6,450
Douglas
18,410
Iron
3,090
Sawyer
7,110
157,210
6.99%
Wyoming
211,220
Denver, CO
Albany
13,260
Denver, CO DMA: one ABC-affiliated
commercial station with city of license in Rawlins,
Campbel
15,930
WY that is a satellite of a Casper, WY station
Carbon
6,420
and one public/educational station transmitting
from Laramie, WY;
Johnson
3,600
Niobrara
980
Platte
3,480
Salt Lake City, UT
Lincoln
6,230
Salt Lake City, UT DMA: one CBS-affiliated
station with city of license in Rock Springs, WY
Sublette
3,380
that is an satellite of a Casper, WY station;
Sweetwater
15,530
Uinta
7,350
Idaho Falls-Pocatello, ID Teton
8,480
Idaho Falls-Pocatello, ID DMA: one NBC-
affiliated commercial station with city of license
in Jackson, WY that is a satellite of a Pocatello,
ID station and one other commercial station
with city of license in Jackson, WY that is a
satellite of a Pocatello, ID station;
CRS-79
.
Counties
Assigned to
Percentage of
DMA for which
TV Households
Primary City Is
in State
Number of
DMAs in State for
Outside the
Number of TV
Located in
Full Power Broadcast TV Stations in
TV Households which Primary City
State (Orphan
Households in
Orphan
DMAs for which Primary City Is Outside
State
in the State
Is Outside the State Counties)
Orphan County Counties
the State (in Orphan Counties)
Billings, MT
Big Horn
4,190
Billings, MT DMA: no station with city of license
in WY;
Park
11,230
Rapid City, SD
Crook
2,650
Rapid City, SD DMA: one ABC-affiliated
commercial with city of license in Sheridan, WY
Sheridan
12,010
that is a satellite of a Rapid City, SD station and
Weston
2,810
one other commercial station with city of license
in Sheridan WY that is a satellite of a Casper,
WY station.
116,550
55.18%
Sources: DMA definitions by A.C. Nielsen Data as presented in Warren Communications News, Television & Cable Factbook 2009, station volumes 1 and 2; television
households by states and counties, as of September 2008, from A.C. Nielsen Data, household estimates compiled by Market Statistics Inc., as reprinted in Warren
Communications News, Television & Cable Factbook 2009, station volume 2; commercial and public/educational station data from Warren Communications News, Television
& Cable Factbook 2009, station volume 2.
CRS-80
.
Reauthorizing the Satellite Home Viewing Provisions
Author Contact Information
Charles B. Goldfarb
Specialist in Telecommunications Policy
cgoldfarb@crs.loc.gov, 7-7252
Congressional Research Service
81