Text: S.1670 — 111th Congress (2009-2010)

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Reported to Senate (09/24/2009)


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[Congressional Bills 111th Congress]
[From the U.S. Government Printing Office]
[S. 1670 Reported in Senate (RS)]

                                                       Calendar No. 165
111th CONGRESS
  1st Session
                                S. 1670

To reform and modernize the limitations on exclusive rights relating to 
              secondary transmissions of certain signals.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 15, 2009

Mr. Leahy (for himself, Mr. Sessions, Mr. Kohl, Mr. Hatch, and Mr. Kyl) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                           September 24, 2009

                 Reported by Mr. Leahy, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
To reform and modernize the limitations on exclusive rights relating to 
              secondary transmissions of certain signals.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Satellite Television Modernization 
Act of 2009''.

SEC. 2. LIMITATIONS ON EXCLUSIVE RIGHTS: SECONDARY TRANSMISSIONS OF 
              SUPERSTATIONS AND NETWORK STATIONS FOR PRIVATE HOME 
              VIEWING.

    Section 119 of title 17, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2)--
                            (i) in subparagraph (A)--
                                    (I) by striking ``subparagraphs (B) 
                                and (C)'' and inserting ``subparagraph 
                                (B)''; and
                                    (II) by striking ``(5), (6), (7), 
                                and (8)'' and inserting ``(4), (5), 
                                (6), and (7)'';
                            (ii) in subparagraph (B)--
                                <DELETED>    (I) in clause (i), by 
                                striking the second sentence; 
                                and</DELETED>
                                    (I) in clause (i)--
                                            (aa) in the first sentence, 
                                        by inserting before the period 
                                        the following: ``, except that 
                                        a satellite provider lawfully 
                                        serving a subscriber with a 
                                        distant network station 
                                        pursuant to this subparagraph 
                                        while a network station 
                                        affiliated with such network 
                                        was broadcasting in analog 
                                        shall not be required to re-
                                        qualify such subscriber to 
                                        receive such distant station 
                                        under the digital predictive 
                                        model established by the 
                                        Federal Communications 
                                        Commission''; and
                                            (bb) by striking the second 
                                        sentence; and
                                    (II) in clause (ii)--
                                        <DELETED>    (aa) in subclause 
                                        (I)--</DELETED>

                                                <DELETED>    (AA) by 
                                                striking ``the 
                                                Individual Location'' 
                                                and all that follows 
                                                through ``No. 98-201,'' 
                                                and inserting ``the 
                                                predictive digital 
                                                model established by 
                                                the Federal 
                                                Communications 
                                                Commission,''; 
                                                and</DELETED>

                                                <DELETED>    (BB) by 
                                                striking ``under 
                                                section 339(c)(3) of 
                                                the Communications Act 
                                                of 1934 (47 U.S.C. 
                                                339(c)(3))''; 
                                                and</DELETED>

                                            (aa) in subclause (I), by 
                                        striking ``the court shall 
                                        rely'' and all that follows 
                                        through the period at the end 
                                        and insert the following: ``a 
                                        court shall rely, with respect 
                                        to a signal originating as an 
                                        analog signal, on the 
                                        Individual Location Longley-
                                        Rice model set forth by the 
                                        Federal Communications 
                                        Commission in Docket No. 98-
                                        201, and shall rely, with 
                                        respect to a signal originating 
                                        as a digital signal, on the 
                                        predictive model established by 
                                        the Federal Communications 
                                        Commission, as that model may 
                                        be amended over time to 
                                        increase the accuracy of that 
                                        model.''; and
                                            (bb) in subclause (II), by 
                                        striking ``section 339(c)(4) of 
                                        the Communications Act of 1934 
                                        (47 U.S.C. 339(c)(4))'' and 
                                        inserting ``rules established 
                                        by the Federal Communications 
                                        Commission'';
                            (iii) by striking subparagraph (C);
                            (iv) by redesignating subparagraph (D) as 
                        subparagraph (C); and
                            (v) in subparagraph (C) (as so 
                        redesignated)--
                                    (I) in clause (i), by striking 
                                ``network station--'' and all that 
                                follows through the period at the end 
                                and inserting ``network station a list, 
                                aggregated by designated market area 
                                (as that term is defined in section 
                                122(j)), identifying (by name and 
                                address, including street or rural 
                                route number, city, State, and zip 
                                code) all subscribers to which the 
                                satellite carrier makes secondary 
                                transmissions of that primary 
                                transmission to subscribers in unserved 
                                households.'';
                                    (II) in clause (ii), by striking 
                                ``the network--'' and all that follows 
                                through the period at the end and 
                                inserting ``the network a list, 
                                aggregated by designated market area 
                                (as that term is defined in section 
                                122(j)), identifying (by name and 
                                address, including street or rural 
                                route number, city, State, and zip 
                                code) any persons who have been added 
                                or dropped as subscribers under clause 
                                (i)(I) since the last submission under 
                                clause (i).''; and
                                    (III) in clause (iv), at the end of 
                                the second sentence, by striking the 
                                ending quotation mark and semicolon;
                    (B) by striking paragraph (3);
                    (C) by redesignating paragraphs (4) through (14) as 
                paragraphs (3) through (13), respectively;
                    (D) by amending paragraph (3) (as so redesignated) 
                to read as follows:
            ``(3) Statutory license where retransmissions into local 
        market available.--
                    ``(A) Future applicability.--The statutory license 
                under paragraph (2) shall not apply to the secondary 
                transmission by a satellite carrier of a primary 
                transmission of a network station to a person who--
                            ``(i) is not a subscriber lawfully 
                        receiving such secondary transmission as of 
                        December 31, 2009; and
                            ``(ii) at the time such person seeks to 
                        subscribe to receive such secondary 
                        transmission, resides in a local market where 
                        the satellite carrier makes available to that 
                        person the secondary transmission of the 
                        primary transmission of a local network station 
                        affiliated with the same television network 
                        pursuant to the statutory license under section 
                        122, and such secondary transmission of such 
                        primary transmission can reach such person.
                    ``(B) Other provisions not affected.--This 
                paragraph shall not affect the applicability of the 
                statutory license to secondary transmissions to 
                unserved households included under paragraph (11).
                    ``(C) Waiver.--A subscriber who is denied the 
                secondary transmission of a network station under this 
                paragraph may request a waiver from such denial by 
                submitting a request, through the subscriber`s 
                satellite carrier, to the network station in the local 
                market affiliated with the same network where the 
                subscriber is located. The network station shall accept 
                or reject the subscriber's request for a waiver within 
                30 days after receipt of the request. If the network 
                station fails to accept or reject the subscriber's 
                request for a waiver within that 30-day period, that 
                network station shall be deemed to agree to the waiver 
                request. Unless specifically stated by the network 
                station, a waiver that was granted before the date of 
                the enactment of the Satellite Home Viewer Extension 
                and Reauthorization Act of 2004 under section 339(c)(2) 
                of the Communications Act of 1934 (47 U.S.C. 339(c)(2)) 
                shall not constitute a waiver for purposes of this 
                subparagraph.
                    ``(D) Available defined.--For purposes of this 
                paragraph, a satellite carrier makes available a 
                secondary transmission of the primary transmission of a 
                local station to a subscriber or person if the 
                satellite carrier offers that secondary transmission to 
                other subscribers who reside in the same nine-digit zip 
                code as that subscriber or person.'';
                    (E) in paragraph (4) (as so redesignated), by 
                striking ``section 509'';
                    (F) in paragraph (6) (as so redesignated)--
                            (i) in subparagraph (A)(ii), by striking 
                        ``$5'' and inserting ``$250''; and
                            (ii) in subparagraph (B)--
                                    (I) in clause (i), by striking 
                                ``$250,000'' and inserting 
                                ``$2,500,000''; and
                                    (II) in clause (ii), by striking 
                                ``$250,000'' and inserting 
                                ``$2,500,000'';
                    (G) by striking paragraph (15); and
                    (H) by redesignating paragraph (16) as paragraph 
                (14);
            (2) in subsection (b)--
                    (A) by striking the subsection heading and 
                inserting ``(b) Deposits and Distribution of Royalty 
                Fees.--''; and
                    (B) in paragraph (1), by striking the matter 
                following subparagraph (B);
            (3) by amending subsection (c) to read as follows:
    ``(c) Adjustment of Royalty Fees.--
            ``(1) Applicability and determination of royalty fees.--
                    ``(A) Initial fee.--The appropriate fee for 
                purposes of determining the royalty fee under 
                subsection (b)(1)(B) for the secondary transmission of 
                the primary transmissions of network stations and 
                superstations shall be the appropriate fee set forth in 
                subchapter E of chapter III of title 37, Code of 
                Federal Regulations, as in effect on July 1, 2009, as 
                modified under this paragraph.
                    ``(B) Fee set by voluntary negotiation.--On or 
                before January 4, 2010, Copyright Royalty Judges shall 
                cause to be published in the Federal Register of the 
                initiation of voluntary negotiation proceedings for the 
                purpose of determining the royalty fee to be paid by 
                satellite carriers for the secondary transmission of 
                the primary transmission of network stations and 
                superstations under subsection (b)(1)(B).
                    ``(C) Negotiations.--Satellite carriers, 
                distributors, and copyright owners entitled to royalty 
                fees under this section shall negotiate in good faith 
                in an effort to reach a voluntary agreement or 
                agreements for the payment of royalty fees. Any such 
                satellite carriers, distributors, and copyright owners 
                may at any time negotiate and agree to the royalty fee, 
                and may designate common agents to negotiate, agree to, 
                or pay such fees. If the parties fail to identify 
                common agents, Copyright Royalty Judges shall do so, 
                after requesting recommendations from the parties to 
                the negotiation proceeding. The parties to each 
                negotiation proceeding shall bear the cost thereof.
                    ``(D)(i) Agreements binding on parties; filing of 
                agreements; public notice.--Voluntary agreements 
                negotiated at any time in accordance with this 
                paragraph shall be binding upon all satellite carriers, 
                distributors, and copyright owners that are parties 
                thereto. Copies of such agreements shall be filed with 
                the Copyright Office within 30 days after execution in 
                accordance with regulations that the Register of 
                Copyrights shall prescribe.
                    ``(ii)(I) Within 10 days after publication in the 
                Federal Register of a notice of the initiation of 
                voluntary negotiation proceedings, parties who have 
                reached a voluntary agreement may request that the 
                royalty fees in that agreement be applied to all 
                satellite carriers, distributors, and copyright owners 
                without convening a proceeding pursuant to subparagraph 
                (F).
                    ``(II) Upon receiving a request under subclause 
                (I), the Copyright Royalty Judges shall immediately 
                provide public notice of the royalty fees from the 
                voluntary agreement and afford parties an opportunity 
                to state that they object to those fees.
                    ``(III) The Copyright Royalty Judges shall adopt 
                the royalty fees from the voluntary agreement for all 
                satellite carriers, distributors, and copyright owners 
                without convening a proceeding unless a party with an 
                intent to participate in the proceeding and a 
                significant interest in the outcome of that proceeding 
                objects under subclause (II).
                    ``(E) Period agreement is in effect.--The 
                obligation to pay the royalty fees established under a 
                voluntary agreement which has been filed with the 
                Copyright Office in accordance with this paragraph 
                shall become effective on the date specified in the 
                agreement, and shall remain in effect until December 
                31, 2014, or in accordance with the terms of the 
                agreement, whichever is later.
                    ``(F) Proceeding to establish royalty fees.--
                            ``(i) Notice of initiation of proceedings; 
                        voluntary agreements.--On or before May 3, 
                        2010, the Copyright Royalty Judges shall cause 
                        notice to be published in the Federal Register 
                        of the initiation of proceedings for the 
                        purpose of determining the royalty fee to be 
                        paid for the secondary transmission of primary 
                        transmission of network stations and 
                        superstations under subsection (b)(1)(B) by 
                        satellite carriers and distributors--
                                    ``(I) in the absence of a voluntary 
                                agreement filed in accordance with 
                                subparagraph (D) that establishes 
                                royalty fees to be paid by all 
                                satellite carriers and distributors; or
                                    ``(II) if an objection to the fees 
                                from a voluntary agreement submitted 
                                for adoption by the Copyright Royalty 
                                Judges to apply to all satellite 
                                carriers, distributors, and copyright 
                                owners is received under subparagraph 
                                (D) from a party with an intent to 
                                participate in the proceeding and a 
                                significant interest in the outcome of 
                                that proceeding.
                        Such proceeding shall be conducted as provided 
                        under chapter 8 of this title.
                            ``(ii) Establishment of royalty fees.--In 
                        determining royalty fees under this paragraph, 
                        the Copyright Royalty Judges shall establish 
                        fees for the secondary transmissions of the 
                        primary transmission of network stations and 
                        superstations that most clearly represent the 
                        fair market value of secondary transmissions, 
                        except that the Copyright Royalty Judges shall 
                        adjust those fees to account for the 
                        obligations of the parties under any applicable 
                        voluntary agreement filed with the Copyright 
                        Office pursuant to subparagraph (D). In 
                        determining the fair market value, the 
                        Copyright Royalty Judges shall base their 
                        decision on economic, competitive, and 
                        programming information presented by the 
                        parties, including--
                                    ``(I) the competitive environment 
                                in which such programming is 
                                distributed, the cost of similar 
                                signals in similar private and 
                                compulsory license marketplaces, and 
                                any special features and conditions of 
                                the retransmission marketplace;
                                    ``(II) the economic impact of such 
                                fees on copyright owners and satellite 
                                carriers; and
                                    ``(III) the impact on the continued 
                                availability of secondary transmissions 
                                to the public.
                            ``(iii) Period during which decision of 
                        copyright royalty judges effective.--The 
                        obligation to pay the royalty fee established 
                        under a determination which is made by the 
                        Copyright Royalty Judges under this paragraph 
                        shall be effective as of January 1, 2010.
                            ``(iv) Persons subject to royalty fee.--The 
                        royalty fee referred to clause (iii) shall be 
                        binding on all satellite carriers, 
                        distributors, and copyright owners, who are not 
                        party to a voluntary agreement filed with the 
                        Copyright Office under subparagraph (D).
            ``(2) Royalty fee annual adjustment.--The royalty fee 
        payable under subsection (b)(1)(B) for the secondary 
        transmission of the primary transmission of network stations 
        and superstations shall be adjusted annually by the Copyright 
        Royalty Judges to reflect any changes occurring during the 
        preceding 12 months in the cost of living as determined by the 
        most recent Consumer Price Index (for all consumers and items) 
        published by the Secretary of Labor prior to December 1. 
        Notification of the adjusted rates shall be published in the 
        Federal Register prior to December 1 of that year.'';
            (4) in subsection (d)--
                    (A) in paragraph (10)--
                            (i) by amending subparagraph (A) to read as 
                        follows:
                    ``(A)(i) is located in a local market in which 
                there is no primary network station affiliated with 
                such network licensed to a community within such local 
                market; or
                <DELETED>    ``(ii) cannot receive, through the use of 
                a conventional, stationary, outdoor rooftop receiving 
                antenna, an over-the-air signal of a primary network 
                station affiliated with that network that does not 
                exceed the signal intensity standard in section 
                73.622(e)(1) of title 47 of the Code of Federal 
                Regulations as in effect on January 1, 
                2010;'';</DELETED>
                    ``(ii) cannot receive through the use of a 
                conventional, stationary, outdoor rooftop receiving 
                antenna, an--
                            ``(I) over-the-air analog signal of a 
                        primary network station affiliated with that 
                        network that does not exceed Grade B intensity 
                        as defined by the Federal Communications 
                        Commission under section 73.683(a) of title 47 
                        of the Code of Federal Regulations, as in 
                        effect on January 1, 1999; or
                            ``(II) over-the-air digital signal of a 
                        primary network station located in that 
                        household's local market affiliated with that 
                        network that does not exceed the signal 
                        intensity standard in section 73.622(3)(1) of 
                        title 47 of the Code of Federal Regulations, as 
                        in effect on January 1, 2010;'';
                            (ii) in subparagraph (B), by striking 
                        ``(a)(14)'' and inserting ``(a)(13)''<DELETED>; 
                        and</DELETED>;
                            (iii) in subparagraph (D), by striking 
                        ``(a)(12)'' and inserting 
                        ``<DELETED>(a)(101</DELETED>(a)(11)'';
                    (B) in paragraph (11), by striking ``, except 
                that'' and all that follows through ``located'';
                    (C) by striking paragraph (12); and
                    (D) by redesignating paragraph (13) as paragraph 
                (12); and
            (5) by striking subsection (f).

SEC. 3. LIMITATIONS ON EXCLUSIVE RIGHTS: SECONDARY TRANSMISSIONS BY 
              SATELLITE CARRIERS WITHIN LOCAL MARKETS.

    Section 122 of title 17, United States Code, is amended--
            (1) by amending subsections (a), (b), and (c) to read as 
        follows:
    ``(a) Secondary Transmissions of Television Broadcast Stations by 
Satellite Carriers.--
            ``(1) Secondary transmissions of television broadcast 
        stations within a local market.--A secondary transmission of a 
        performance or display of a work embodied in a primary 
        transmission of a television broadcast station into the 
        station's local market shall be subject to statutory licensing 
        under this section if--
                    ``(A) the secondary transmission is made by a 
                satellite carrier to the public;
                    ``(B) with regard to secondary transmissions, the 
                satellite carrier is in compliance with the rules, 
                regulations, or authorizations of the Federal 
                Communications Commission governing the carriage of 
                television broadcast station signals; and
                    ``(C) the satellite carrier makes a direct or 
                indirect charge for the secondary transmission to--
                            ``(i) each subscriber receiving the 
                        secondary transmission; or
                            ``(ii) a distributor that has contracted 
                        with the satellite carrier for direct or 
                        indirect delivery of the secondary transmission 
                        to the public.
            ``(2) Significantly viewed and low power stations.--A 
        secondary transmission of a performance or a display of a work 
        embodied in a primary transmission of a television broadcast 
        station or low power television station to subscribers who 
        receive secondary transmissions of primary transmissions under 
        paragraph (1) shall, if the secondary transmission is made by a 
        satellite carrier that complies with the requirements of 
        paragraph (1), be subject to statutory licensing under this 
        paragraph as follows:
                    ``(A) Secondary transmissions of significantly 
                viewed signals.--The statutory license shall apply to 
                the secondary transmission of the primary transmission 
                of a network station or a superstation to a subscriber 
                who resides outside the station's local market but 
                within a community in which the signal has been 
                determined by the Federal Communications Commission, to 
                be significantly viewed in such community, pursuant to 
                the rules, regulations, and authorizations of the 
                Federal Communications Commission in effect on April 
                15, 1976, applicable to determining with respect to a 
                cable system whether signals are significantly viewed 
                in a community.
                    ``(B) Carriage of low power television stations.--
                            ``(i) In general.--The statutory license 
                        shall apply to the secondary transmission of 
                        the primary transmission of a <DELETED>network 
                        station or a superstation</DELETED>station that 
                        is licensed as a low power television station, 
                        to a subscriber who resides <DELETED>within the 
                        same local market</DELETED>within the same 
                        designated market area.
                            ``(ii) No applicability to repeaters and 
                        translators.--Secondary transmissions provided 
                        for in subparagraph (A) shall not apply to any 
                        low power television station that retransmits 
                        the programs and signals of another television 
                        station for more than 2 hours each day.
            ``(3) Special exceptions.--A secondary transmission of a 
        performance or a display of a work embodied in a primary 
        transmission of a television broadcast station to subscribers 
        who receive secondary transmissions of primary transmissions 
        under paragraph (1) shall, if the secondary transmission is 
        made by a satellite carrier that complies with the requirements 
        of paragraph (1), be subject to statutory licensing under this 
        paragraph as follows:
                    ``(A) States with single full-power network 
                station.--In a State in which there is licensed by the 
                Federal Communications Commission a single full-power 
                station that was a network station on January 1, 1995, 
                the statutory license provided for in this paragraph 
                shall apply to the secondary transmission by a 
                satellite carrier of the primary transmission of that 
                station to any subscriber in a community that is 
                located within that State and that is not within the 
                first 50 television markets as listed in the 
                regulations of the Commission as in effect on such date 
                (47 C.F.R. 76.51).
                    ``(B) States with all network stations and 
                superstations in same local market.--In a State in 
                which all network stations and superstations licensed 
                by the Federal Communications Commission within that 
                State as of January 1, 1995, are assigned to the same 
                local market and that local market does not encompass 
                all counties of that State, the statutory license 
                provided under this paragraph shall apply to the 
                secondary transmission by a satellite carrier of the 
                primary transmissions of such station to all 
                subscribers in the State who reside in a local market 
                that is within the first 50 major television markets as 
                listed in the regulations of the Commission as in 
                effect on such date (section 76.51 of title 47 of the 
                Code of Federal Regulations).
                    ``(C) Additional stations.--In the case of that 
                State in which are located 4 counties that--
                            ``(i) on January 1, 2004, were in local 
                        markets principally comprised of counties in 
                        another State; and
                            ``(ii) had a combined total of 41,340 
                        television households, according to the U.S. 
                        Television Household Estimates by Nielsen Media 
                        Research for 2004,
                the statutory license provided under this paragraph 
                shall apply to secondary transmissions by a satellite 
                carrier to subscribers in any such county of the 
                primary transmissions of any network station located in 
                that State, if the satellite carrier was making such 
                secondary transmissions to any subscribers in that 
                county on January 1, 2004.
                    ``(D) Certain additional stations.--If 2 adjacent 
                counties in a single State are in a local market 
                comprised principally of counties located in another 
                State, the statutory license provided for in this 
                paragraph shall apply to the secondary transmission by 
                a satellite carrier to subscribers in those 2 counties 
                of the primary transmissions of any network station 
                located in the capital of the State in which such 2 
                counties are located, if--
                            ``(i) the 2 counties are located in a local 
                        market that is in the top 100 markets for the 
                        year 2003 according to Nielsen Media Research; 
                        and
                            ``(ii) the total number of television 
                        households in the 2 counties combined did not 
                        exceed 10,000 for the year 2003 according to 
                        Nielsen Media Research.
                    ``(E) Networks of noncommercial educational 
                broadcast stations.--In the case of a system of 3 or 
                more noncommercial educational broadcast stations 
                licensed by a single State, political, educational, or 
                special purpose subdivision of a State, or a public 
                agency, the statutory license provided for in this 
                paragraph shall apply to the secondary transmission of 
                that system to any subscriber in any county or county 
                equivalent within that State that is located in a 
                designated market that is not otherwise eligible to 
                receive secondary transmissions of a noncommercial 
                television broadcast station located within that State 
                pursuant to paragraph (1). <DELETED>If a satellite 
                carrier makes secondary transmissions to an adjacent 
                underserved county, local noncommercial educational 
                broadcast stations shall not be repositioned in the 
                channel lineup as a consequence of these 
                retransmissions.
        </DELETED>    ``(4) Short markets.--A secondary transmission of 
        a performance of a display of a work embodied in a primary 
        transmission of a television broadcast station to subscribers 
        who receive secondary transmissions of primary transmissions 
        under paragraph (1) shall be subject to statutory licensing 
        under this paragraph if the secondary transmission is of a 
        primary transmission of a network station from a market 
        adjacent to such local market and no station affiliated with 
        such network is licensed to a community within the local 
        market.
            ``(5) Applicability of royalty rates.--The royalty rates 
        under section 119(b)(1)(B) shall apply to the secondary 
        transmissions to which the statutory license under paragraphs 
        (3) and (4) apply.
    ``(b) Reporting Requirements.--
            ``(1) Initial lists.--A satellite carrier that makes 
        secondary transmissions of a primary transmission made by a 
        network station under subsection (a) shall, within 90 days 
        after commencing such secondary transmissions, submit to the 
        network that owns or is affiliated with the network station--
                    ``(A) a list, aggregated by designated market area 
                (as that term is defined in subsection (j)), 
                identifying (by name in alphabetical order and street 
                address, including county and zip code) all subscribers 
                to which the satellite carrier makes secondary 
                transmissions of that primary transmission under 
                subsection (a); and
                    ``(B) a list, to be prepared and submitted 
                separately from the list required under subparagraph 
                (A), aggregated by designated market area (by name and 
                address, including street or rural route number, city, 
                State, and zip code), which shall indicate those 
                subscribers being served pursuant to paragraphs (2), 
                (3), or (4) of subsection (a).
            ``(2) Subsequent lists.--After the list is submitted under 
        paragraph (1), the satellite carrier shall, on the 15th of each 
        month, submit to the network--
                    ``(A) a list, aggregated by designated market area 
                (as that term is defined in subsection (j)), 
                identifying (by name in alphabetical order and street 
                address, including county and zip code) any subscribers 
                who have been added or dropped as subscribers since the 
                last submission under this subsection; and
                    ``(B) a list, to be prepared and submitted 
                separately from the list required under subparagraph 
                (A), aggregated by designated market area (by name and 
                street address, including street or rural route number, 
                city, State, and zip code), identifying those 
                subscribers whose service pursuant to paragraphs (2), 
                (3), or (4) of subsection (a) has been added or 
                dropped.
            ``(3) Use of subscriber information.--Subscriber 
        information submitted by a satellite carrier under this 
        subsection may be used only for the purposes of monitoring 
        compliance by the satellite carrier with this section.
            ``(4) Requirements of networks.--The submission 
        requirements of this subsection shall apply to a satellite 
        carrier only if the network to which the submissions are to be 
        made places on file with the Register of Copyrights a document 
        identifying the name and address of the person to whom such 
        submissions are to be made. The Register of Copyrights shall 
        maintain for public inspection a file of all such documents.
    ``(c) No Royalty Fee Required for Certain Secondary 
Transmissions.--A satellite carrier whose secondary transmissions are 
subject to statutory licensing under paragraphs (1) and (2) of 
subsection (a) shall have no royalty obligation for such secondary 
transmissions.'';
            (2) in subsection (f)--
                    (A) in paragraph (1)(B), by striking ``$5'' and 
                inserting ``$250''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (A)(ii), by striking 
                        ``$250,000'' and inserting ``$2,500,000''; and
                            (ii) in subparagraph (B)(ii), by striking 
                        ``$250,000'' and inserting ``$2,500,000''; and
            (3) in subsection (j)--
                    (A) by redesignating paragraphs (3), (4), and (5) 
                as paragraphs (4), (5), and (6), respectively; and
                    (B) by inserting after paragraph (2) the following 
                new paragraph:
            ``(3) Low power television station.--The term `low power 
        television station' means a low power television as defined 
        under section 74.701(f) of title 47, Code of Federal 
        Regulations, as in effect on June 1, 2004. For purposes of this 
        paragraph, the term `low power television station' includes a 
        low power television station that has been accorded primary 
        status as a Class A television licensee under section 
        73.6001(a) of title 47, Code of Federal Regulations.''.

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

    Section 338(a) of the Communications Act of 1934 (47 U.S.C. 338(a)) 
is amended--
            (1) by amending the first paragraph (3) to read as follows:
        <DELETED>    ``(3) Carriage of low power, significantly viewed, 
        and special exception stations optional.--No station whose 
        signal is provided under paragraph (2) or (3) of section 122(a) 
        of title 17,</DELETED>
            ``(3) Carriage of low power, significantly viewed, special 
        exception, and short market stations optional.--No station 
        whose signal is provided under paragraph (2), (3), or (4) of 
        section 122(a) of title 17, United States Code, shall be 
        entitled to insist on carriage under this section, regardless 
        of whether the satellite carrier provides secondary 
        transmissions of the primary transmissions of other stations in 
        the same local market pursuant to such section 122, nor shall 
        any such carriage be considered in connection with the 
        requirements of subsection (c) of this section.''; and
            (2) by redesignating the second paragraph (3) (relating to 
        effective date) and paragraph (4) as paragraphs (4) and (5), 
        respectively.

SEC. 5. EXTENSION OF AUTHORITY.

    Section 4(a) of the Satellite Home Viewer Act of 1994 (17 U.S.C. 
119 note; Public Law 103-369) is amended by striking ``December 31, 
2009'' and inserting ``December 31, 2014''.

SEC. 6. MODIFICATIONS TO THE CABLE STATUTORY LICENSE.

    (a) Update and Clarification of Royalty Calculation Methodology.--
Section 111(d)(1) of title 17, United States Code, is amended by 
striking subparagraphs (B), (C), and (D) and inserting the following:
                    ``(B) except in the case of a cable system whose 
                royalty fee is specified in subparagraph <DELETED>(C) 
                or (D)</DELETED>(E) or (F), a total royalty fee for the 
                period covered by the statement, computed on the basis 
                of specified percentages of the gross receipts from 
                subscribers to the cable service during said period for 
                the basic service of providing secondary transmissions 
                of primary broadcast transmitters, as follows:
                            ``(i) 1.064 per centum for the privilege of 
                        further transmitting any nonnetwork programming 
                        of a primary transmitter in whole or in part 
                        beyond the local service area of such primary 
                        transmitter, such amount to be applied against 
                        the fee, if any, payable pursuant to clauses 
                        (ii) through (iv).
                            ``(ii) 1.064 per centum of such gross 
                        receipts for the first distant signal 
                        equivalent.
                            ``(iii) 0.701 of 1 per centum of such gross 
                        receipts for each of the second, third, and 
                        fourth distant signal equivalents.
                            ``(iv) 0.330 of 1 per centum of such gross 
                        receipts for the fifth distant signal 
                        equivalent and each distant signal equivalent 
                        thereafter;
                    ``(C) in computing the amounts payable under 
                clauses (ii) through (iv) of subparagraph (B), any 
                fraction of a distant signal equivalent shall be 
                computed at its fractional value or in the case of any 
                cable system located partly within and partly without 
                the local service area of a primary transmitter, gross 
                receipts shall be limited to those gross receipts 
                derived from subscribers located without the local 
                service area of such primary transmitter;
                    ``(D) in computing the amounts payable under 
                clauses (ii) through (iv) of subparagraph (B), if a 
                cable system provides a secondary transmission of a 
                primary transmitter to some but not all communities 
                served by that cable system, the gross receipts and the 
                distant signal equivalent values for each secondary 
                transmission shall be derived solely on the basis of 
                the subscribers in those communities where the cable 
                system provides each such secondary transmission, 
                provided, however, that the total royalty fee for the 
                period paid by such system shall in no event be less 
                than the royalty fee calculated in accordance with 
                clause (i) of subparagraph (B) multiplied by the gross 
                receipts from all subscribers to the system; and 
                provided further, that a cable system that on a 
                statement submitted prior to the date of enactment of 
                the Satellite Television Modernization Act of 2009, 
                computed its royalty fee consistent with the 
                methodology in <DELETED>this subparagraph</DELETED>this 
                paragraph or that amends a statement filed prior to the 
                date of enactment of such Act to compute the royalty 
                fee due using this methodology shall not be subject to 
                an action for infringement, or eligible for any royalty 
                refund, arising out of its use of such methodology on 
                such statement;
                    ``(E) if the actual gross receipts paid by 
                subscribers to a cable system for the period covered by 
                the statement for the basic service of providing 
                secondary transmissions of primary broadcast 
                transmitters total $263,800 or less, gross receipts of 
                the cable system for the purpose of this subparagraph 
                shall be computed by subtracting from such actual gross 
                receipts the amount by which $263,800 exceeds such 
                actual gross receipts, except that in no case shall a 
                cable system's gross receipts be reduced to less than 
                $10,400. The royalty fee payable under this 
                subparagraph shall be 0.5 of 1 per centum, regardless 
                of the number of distant signal equivalents, if any; 
                and
                    ``(F) if the actual gross receipts paid by 
                subscribers to a cable system for the period covered by 
                the statement for the basic service of providing 
                secondary transmissions of primary broadcast 
                transmitters are more than $263,800 but less than 
                $527,600, the royalty fee payable under this 
                subparagraph shall be--
                            ``(i) 0.5 of 1 per centum of any gross 
                        receipts up to $263,800; and
                            ``(ii) 1 per centum of any gross receipts 
                        in excess of $263,800 but less than $527,600 
                        regardless of the number of distant signal 
                        equivalents, if any.''.
    (b) No Quinquennial Adjustments Until 2015.--Section 804(b) of 
title 17, United States Code, is amended by striking ``2005'' each 
place that term appears and inserting ``2015''.
    (c) Acceptance of Additional Deposits.--Any royalty fee payments 
received by the Copyright Office from cable systems for the secondary 
transmission of primary broadcast transmitters (as such terms are 
defined in subsection (f) of section 111 of title 17, United States 
Code) that are in addition to the payments calculated and deposited in 
accordance with subsection (d) of such section 111 shall be deemed to 
have been deposited for the particular accounting period during which 
they are received and shall be distributed as specified in subsection 
(d) of such section 111.
    (d) Effective Date of New Royalty Fee Rates.--The royalty fee rates 
established in section 111(d)(1)(B) of title 17, United States Code, as 
amended by subsection (a), shall take effect beginning with the 
statement of account covering the first accounting period in 2010.

SEC. 7. REPORT ON MARKET BASED ALTERNATIVES TO STATUTORY LICENSING.

    Not later than 1 year after the date of enactment of this Act, and 
after consultation with the Federal Communications Commission, the 
Copyright Office of the Library of Congress shall submit to the 
Committees on the Judiciary of the Senate and House of Representatives 
a report containing--
            (1) proposed mechanisms, methods, and recommendations on 
        how to implement a phase-out of the current statutory licensing 
        requirements set forth under sections 111, 119, and 122 of 
        title 17, United States Code, by making such sections 
        inapplicable to the retransmission of a performance or display 
        of a work embodied in a primary transmission of a broadcast 
        station that is authorized to license the same retransmission 
        directly with respect to all of the performances and displays 
        embodied in its primary transmission;
            (2) any recommendations for alternative means to implement 
        a timely and effective phase-out of the current statutory 
        licensing requirements set forth under sections 111, 119, and 
        122 of title 17, United States Code; and
            (3) any recommendations for legislative or administrative 
        actions as may be appropriate to achieve such a phase-out.
                                                       Calendar No. 165

111th CONGRESS

  1st Session

                                S. 1670

_______________________________________________________________________

                                 A BILL

To reform and modernize the limitations on exclusive rights relating to 
              secondary transmissions of certain signals.

_______________________________________________________________________

                           September 24, 2009

                        Reported with amendments