[DOCID: f:sr355.109]
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109th Congress Report
SENATE
2d Session 109-355
_______________________________________________________________________
Calendar No. 652
COMMUNICATIONS OPPORTUNITY, PROMOTION, AND ENHANCEMENT ACT OF 2006
----------
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
H.R. 5252
together with
ADDITIONAL VIEWS
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<greek-l>DATE deg.September 29, 2006.--Ordered to be printed
COMMUNICATIONS OPPORTUNITY, PROMOTION, AND ENHANCEMENT ACT OF 2006
109th Congress Report
SENATE
2d Session 109-355
_______________________________________________________________________
Calendar No. 652
COMMUNICATIONS OPPORTUNITY, PROMOTION, AND ENHANCEMENT ACT OF 2006
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
H.R. 5252
together with
ADDITIONAL VIEWS
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<greek-l>DATE deg.September 29, 2006.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
second session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Kurth, Deputy Staff Director
Kenneth Nahigian, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 652
109th Congress Report
SENATE
2d Session 109-355
======================================================================
COMMUNICATIONS OPPORTUNITY, PROMOTION, AND ENHANCEMENT ACT OF 2006
_______
September 29, 2006.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5252]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill <greek-l>joint resolution deg.
(H.R. 5252) <greek-l>TITLE deg. to promote the deployment of
broadband networks and services, having considered the same,
reports favorably thereon <greek-l>without amendment with
amendments deg. with an amendment (in the nature of a
substitute) and recommends that the bill <greek-l>joint
resolution deg. (as amended) do pass.
Purpose of the Bill
The objective of this legislation is to update the Nation's
communications laws in a manner that benefits consumers and
encourages deployment of broadband infrastructure and services
throughout the country and eliminate unnecessary regulations
where appropriate.
Background and Needs
Ten years have passed since Congress conducted a
comprehensive review of the Nation's communications laws.
During that time period, technology has advanced significantly
and there is an increasing need to ensure that our
communications laws promote competitive choice and innovative
communications services for consumers. To address this need,
the Committee has reviewed and included multiple ways to
increase the deployment of broadband. Additionally, the
Committee included provisions in this bill to increase
competition in the video services market, which, in turn, will
provide additional incentives for the deployment of broadband
infrastructure.
Summary of Provisions
The provisions contained in H.R. 5252 focus on a wide variety
of communications issues. Principal among these issues are
titles in the bill designed to make needed reforms to the
universal service system and to increase competition in the
video services market, both of which will further Congress'
goal of advancing the deployment of broadband networks.
Specifically, the bill is divided into 14 separate titles which
organized as follows:
<bullet> Title I addresses several communications
issues designed to assist military personnel and
strengthen homeland security. Specifically, this title
includes provisions designed to reduce the cost of
phone service for military personnel located overseas
and to improve the interoperable communications
capabilities of our nation's federal, state and local
first responders through planning, training, and
equipment grants.
<bullet> Title II contains a variety of reforms to
the current universal service system, including
provisions that would expand the current contribution
mechanism to provide jurisdiction over all
communications service providers. It also would
establish a new fund within universal service of up to
$500 million annually to support the deployment of
broadband to unserved areas in the United States.
Additionally, the title contains other changes to
existing law that extend certain interconnection
rights, duties, and obligations to facilities-based,
IP-enabled voice service providers and including
certain obligations under the Communications Act with
respect to access for persons with disabilities to IP-
enabled voice providers and manufacturers of IP-enabled
voice equipment.
<bullet> Title III reforms the process for obtaining
a video franchise under current law and makes other
changes related to the provision of video services to
consumers. Specifically, the bill amends Title VI of
the Communications Act to require franchising
authorities to issue franchises pursuant to a standard
franchise application form that would be drafted by the
Federal Communications Commission (FCC) and to require
franchise authorities to consider standard franchise
applications within 90 days. Under the standard
franchise agreement, franchise authorities would be
permitted to require payment of up to 5 percent of
gross revenues as a franchise fee, require payment for
the support of public, educational, and governmental
access facilities and institutional networks subject to
limits established in this title, and provide certain
channel capacity for public educational, and
governmental use. In addition to provisions affecting
the process of obtaining a video franchise, Title III
also makes a number of changes to current law designed
to create greater uniformity in the regulation of video
service providers to eliminate unnecessary obligations.
To address concerns about cherry picking competitive
build-out, the bill enhances current red-lining
requirements. Finally, the new framework for video
franchising would apply not only to new entrants, but
would also be available to incumbent cable operators
either upon the expiration of their current franchise
term or upon the arrival of a new competitive video
service provider, whichever is earlier.
<bullet> Title IV addresses issues related to the
transmission of digital content. Specifically, the
title attempts to ensure that satellite carriers
providing national television and Internet service to
all or substantially all of the lower 48 States also
provide comparable services in Alaska and Hawaii to the
extent technically feasible. In addition, the title
provides the FCC with express authority to implement
regulations necessary to protect digital broadcast
television content pursuant to the FCC's previous
``Broadcast Flag'' order. With respect to digital audio
content, the title would similarly provide the FCC with
express authority to issue regulations governing the
protections of digital audio content, but may only
exercise that authority if, after 1 year (and one 6
month extension if granted by the FCC) the newly-
created Digital Audio Review Board is unable to agree
upon a consensus standard that is consistent with fair
use principles.
<bullet> Title V affirmatively preempts state laws
prohibiting public provisioning of broadband services
consistent with this title while requiring that laws
affecting the provision of such services be applied in
a neutral manner among public and private providers.
<bullet> Title VI contains provisions designed to
spur the development of new, inexpensive broadband
services by allowing unlicensed wireless devices to use
certain vacant broadcast frequencies so long as such
use protects licensees from harmful interference.
<bullet> Title VII addresses issues related to the
digital television transition, including changes that
would improve consumer education, codify the FCC's
digital tuner requirement, and permit the temporary
down conversion of digital broadcast signals by cable
and satellite operators.
<bullet> Title VIII addresses issues concerning the
impact of certain programming on children and
specifically strengthens existing laws related to child
pornography for video service providers and operators
of commercial websites.
<bullet> Title IX establishes a number of rights for
subscribers of Internet services in order to prevent an
Internet Service Provider from undermining a consumer's
experience on the Internet and from limiting the
subscriber's ability to go wherever he or she wants on
the Internet at whatever speed he or she purchased. In
addition, this title would also provide consumers with
the right to purchase stand-alone broadband service
without having to purchase other services like video or
phone service.
<bullet> Title X contains a number of miscellaneous
provisions amending current laws, including provisions
affecting the administration and enforcement powers of
the FCC, establishing a program for basic research in
advanced information and communications technologies,
preempting state regulation of the terms and conditions
of wireless services, codifying the FCC's vonage and
pulver.com orders, and permanently extending the
Internet tax moratorium, which under current law
expires on November 1, 2007.
<bullet> Title XI contains provisions that would
eliminate current restrictions limiting the licensing
of low power FM stations in order to promote localism
in broadcast radio.
<bullet> Title XII imposes a 3 year moratorium on the
imposition of any new taxes by state or local
governments that specifically target providers of
mobile services.
<bullet> Title XIII contains provisions designed to
protect consumers from the manipulation of Caller ID
information or ``spoofing''.
<bullet> Title XIV focuses on a number of wireless
licensing issues designed to improve deployment and
build-out in rural and underserved areas, including
provisions related to the use of small license areas in
future auctions.
Legislative History
Following a series of informal listening sessions that
allowed Members to learn about new technologies, the Committee
began its review of the Nation's communications laws with a
series of over 20 hearings, reviewing various policy issues
addressed in this legislation.
Upon completion of these hearings, S. 2686, the
``Communications, Consumers' Choice, and Broadband Deployment
Act of 2006,'' was introduced on May 1, 2006 by Chairman
Stevens (for himself and Co-chairman Inouye). Subsequently, the
Committee conducted three legislative hearings on May 18 and
25, and on June 13. After receiving comments from Committee
Members and interested parties, the majority released a second
draft of the bill on June 9 and a third draft on June 16. This
third draft amended H.R. 5252 by striking everything after the
enacting clause and inserting the revised language.
On June 22, 2006, the Committee began its Executive Session
during which it considered H.R. 5252. The Executive Session
continued on June 27 and 28. Each day, the Committee adopted
without objection a separate manager's package that included a
number of amendments. Additionally, the Committee considered
several individual amendments. On the final day, the Committee,
by a roll call vote of 15-7, ordered that H.R. 5252 be reported
with amendments.
AMENDMENTS TO TITLE I OF THE BILL
Several amendments were adopted with regard to title I of the
bill. The first manager's package contained an amendment by
Senator Inouye that would modify section 151(b) of the bill to
require explicitly that the Commission consider the public
interest when streamlining its process for certifying devices
allowing seamless mobility. It also contained an amendment by
Senators McCain and Boxer that would modify section 152(b) of
the bill to require that $1 billion in interoperable grant
funds be administered by the Secretary of Homeland Security
instead of the Secretary of Commerce. The McCain/Boxer
amendment was adopted as modified in Executive Session by
Senator Inouye's amendment requiring that grant funds not be
used for any purpose other than those provided in section 3006
of the Deficit Reduction Act. The Committee adopted an
amendment offered by Senators Vitter and Stevens that would
expedite the awarding of public safety interoperable
communications grants, and a second degree amendment by Senator
Stevens that would make the deadline 1 year sooner than in the
amendment. The Committee also adopted an amendment offered by
Senators Bill Nelson and Burns to require the role of public
safety answering points and automatic-location or ``E-911''
services to be considered in the awarding of interoperable
emergency communications grants, and to set aside such grant
funds for Public Safety Answering Point (PSAP) and E-911
projects.
AMENDMENTS TO TITLE II OF THE BILL
Several amendments were adopted with regard to title II of
the bill. The Committee adopted by a rollcall vote of 14 to 8
an amendment by Senator Sununu, along with a series of second
degree amendments to title II of the bill, that would codify
the Commission's rulings in FCC 04-267 and FCC 04-27 and
clarify that no consumer protection laws are preempted by this
provision. The Sununu amendment would also clarify that
intercarrier compensation charges should be applied in a
reciprocal fashion to IP-enabled voice services.
The first manager's package adopted by the Committee included
several amendments regarding title II of the bill. An amendment
by Senator Stevens would clarify that the State preemption
provisions do not affect State or local tax laws. An amendment
by Senator Burns, as modified by a second degree amendment by
Senator Stevens, would modify the rural exemption in section
251(f)(1) of the Communications Act. An amendment by Senator
Rockefeller would clarify that IP-enabled voice service
providers are subject to payphone compensation rules. An
amendment by Senators Snowe and Rockefeller would establish new
performance goals for the E-Rate program. An amendment by
Senators Bill Nelson and Allen would clarify the eligible
classes of end users for the low-volume exception authority
provided to the Commission. An amendment by Senators Bill
Nelson and McCain would ensure that customer premises equipment
is covered by the disability provisions in title II of the
Communications Act and to require that the Commission submit a
report to Congress on compliance. An amendment by Senator
Cantwell would permit the Commission to exempt non-profit
organizations offering free communications service from
universal service contributions. An amendment by Senator DeMint
would require that any E-Rate vendor that is criminally
convicted of fraud in connection with the E-Rate program be
permanently barred from participation in the program. An
amendment by Senator Ben Nelson would provide access to
Universal Service funds for certain health care providers in
rural areas.
The third manager's package adopted by the Committee included
an amendment by Senator Allen that would clarify that, for the
purposes of determining the rights and obligations of IP-
enabled voice service providers, certain facilities meet the
definition of ``facilities-based''. An amendment by Senator
Inouye, as modified, would improve Universal Service support of
high-cost services in insular areas.
The Committee also adopted an amendment by Senator Ben
Nelson, as modified by Senator Sununu, that would direct the
Commission to determine a fair allocation for communications
services offered in bundled packages between those portions
that can be assessed state universal service charges and those
that cannot. The Committee adopted an amendment by Senator
Dorgan that would require the Commission to submit its proposed
universal service contribution rules to Congress for a 90-day
review prior to implementing the rules.
AMENDMENTS TO TITLE III OF THE BILL
Several amendments were adopted with regard to title III of
the bill. The second manager's package adopted by the Committee
included several amendments regarding title III of the bill. An
amendment by Senator Stevens would address four provisions
important to local franchising authorities-increasing the
franchising period from 75 to 90 days, allowing franchising
authorities to charge a fee on other fees paid to the local
authorities, defining video services in a manner that includes
an Internet protocol television service offered by a large
incumbent telephone company, and preserving certain support
received by local franchises with respect to PEG and
Institutional Networks. Senator Allen's amendment would make a
technical clarification that entities providing video services
with open video systems pursuant to section 653 of the Act are
subject to title III. Senator Boxer's amendment would remove a
requirement that false statements made to a local franchising
authority also be ``willful and repeated'' before the offending
video service provider could be subject to franchise
revocation. Senator Lautenberg's amendment would preserve
section 601 of the Communications Act which sets forth the
purpose of title VI of that Act. Senator Pryor's amendment
would limit the amount that video service providers may charge
subscribers for terminating their service early. An amendment
by Senator Rockefeller would require the FCC to complete its
Notice of Inquiry concerning the impact of violent television
programming on children.
The third manager's package adopted by the Committee
included several amendments regarding title III of the bill. An
amendment by Senator Inouye would restate the prohibition on
regulation of direct broadcast satellite services by local
franchising authorities. Senator Inouye's amendment, as
modified in Executive Session, would provide space on the
standardized franchise application for limited, additional
information. An amendment by Senator Inouye, as modified, would
preserve certain provisions regarding use of public rights-of-
way that exist in current law. Another amendment by Senator
Inouye, as modified to apply only to Hawaii, would modify a
provision regarding PEG and Institutional Network support. An
amendment by Senators Pryor and Bill Nelson, as modified, would
provide for auxiliary enforcement of consumer protection and
customer service regulation.
AMENDMENTS TO TITLE V OF THE BILL
The first manager's package adopted by the Committee included
a bipartisan amendment by Senators Lautenberg, McCain and
Ensign that would make technical corrections to provisions in
title V of the bill regarding community broadband networks.
AMENDMENTS TO TITLE VII OF THE BILL
Several amendments were adopted with regard to title VII of
the bill. The first manager's package adopted by the Committee
included several amendments regarding title VII of the bill. An
amendment by Senator McCain would clarify that the restriction
on importing analog-only televisions into the United States, or
shipment of such sets in interstate commerce, after March 1,
2007, would apply specifically to manufacturers or importers.
An amendment by Senator Rockefeller would amend section 701 of
the bill to require that the Television Ratings Oversight
Monitoring Board and the American Association of People with
Disabilities be included in the public interest groups chosen
by the FCC to be members of the DTV Working Group required by
that section. An amendment by Senator DeMint would amend the
satellite downconversion provisions in section 701 of the bill
to clarify that carriage obligations apply only to a television
broadcast station's primary video signal. An amendment by
Senators Bill Nelson and McCain to section 701 of the bill that
would require the DTV Working Group to recommend to the FCC
procedures for contacting persons with disabilities in order to
inform them about the DTV transition.
The third manager's package included an amendment offered by
Senator Rockefeller to section 701 of the bill that would
require all television sets with a screen larger than 13
inches, measured diagonally, to be equipped with a feature
designed to enable viewers to block all programs with a common
rating. The Committee also adopted an amendment by Senator Bill
Nelson to increase consumer awareness regarding the digital
television transition.
AMENDMENTS TO TITLE VIII OF THE BILL
The second manager's package adopted by the Committee
included amendments regarding title VIII of the bill. An
amendment by Senator Rockefeller would prohibit interactivity
with commercial matter during children's programming.
The third manager's package adopted by the Committee included
amendments by Senators Burns and Kerry, as modified and
combined, that would enhance the prosecution of child
pornographers. The package also included an amendment by
Senator Dorgan which would require the FCC to study commercial
proposals to broadcast radio or television material to students
on school busses.
AMENDMENTS TO TITLE IX OF THE BILL
The third manager's package adopted by the Committee included
an amendment by Senator Stevens regarding title IX of the bill.
The Stevens amendment would increase the monetary fines for
Internet neutrality violations from $11,000 to $500,000 each.
AMENDMENTS TO TITLE X OF THE BILL
Several amendments were adopted with regard to title X of the
bill. The Committee adopted by a rollcall vote of 19 to 3 an
amendment by Senator Allen that would add a section 1013 to the
bill that would amend section 1101(a) of the Internet Tax
Freedom Act (47 U.S.C. 151 note) to make that Act permanent.
The Allen amendment would permanently extend that Act's
provisions barring State governments from taxing Internet
access services, which provisions are currently scheduled to
expire on November 1, 2007.
The second manager's package included several amendments with
regard to title X of the bill, which contains miscellaneous
provisions. An amendment by Senator Stevens would strike from
title X of the bill a provision that required that challenges
of FCC rulings or regulations be brought in the United States
District Court for the District of Columbia. An amendment by
Senator Nelson would improve public safety by requiring a
status report on the establishment of an E-911 implementation
and coordination office under the Enhanced 911 Act. An
amendment by Senator Bill Nelson would require the Commission
to study telemedicine services and report to Congress on the
availability of broadband facilities capable of providing such
services. Another amendment by Senator Bill Nelson would amend
the Children's Television Act of 1990 to apply the time
limitations on advertising to video service providers. An
amendment by Senators Nelson and Pryor would ensure that
provisions of title V of the Communications Act, regarding
forfeitures for obscenity and other violations of the Act,
would apply to companies that provide video services. Another
amendment by Senators Nelson and Pryor would ensure that
certain provisions of title VII of the Communications Act will
apply to companies that provide video services. An amendment by
Senator Ben Nelson would hold independent network affiliates
harmless from section 503(b) penalties for network programs
they have not had the opportunity to preview or with respect to
which they have no notice from the network as to objectionable
content. An amendment by Senator Inouye would require the
Commission to revisit the current speed it deems to qualify as
broadband, namely 200 kilobits per second, and to periodically
update such classification. The Committee adopted an amendment
by Senators Inouye, Cantwell and Dorgan that would add a
section 1002 to the bill that would establish an Office of
Indian Affairs within the FCC.
The third manager's package also included several amendments
with regard to title X of the bill. An amendment by Senator
Inouye would modify the regulatory forbearance provisions in
section 10 of the Communications Act. An amendment by Senators
Bill Nelson and Snowe would add a section 1003 to the bill to
establish within the Commission an Office of Consumer Advocate.
An amendment by Senators Stevens and Pryor would add to section
1006 of the bill a provision that would require the FCC to
adopt customer service and consumer protection rules for
wireless mobile service providers. An amendment by Senator
Sununu would add to title X of the bill a provision that would
codify the FCC's decisions in its vonage and pulver.com
proceedings and would dismiss any pending challenges to those
decisions. This amendment would not supersede or preempt the
consumer protection laws of any State, including any privacy or
anti-child pornography law of a State, except to the extent
that such laws regulate the rates for entry or exit by a
provider of IP-enabled voice services. The Committee adopted an
amendment by Senators Dorgan, Lott and Cantwell that would add
a provision to title X of the bill that would require that
before the FCC changes section 73.3555 of its rules, as those
regulations were in effect on June 1, 2003, the FCC must issue
a further Notice of Proposed Rulemaking with respect to any
such changes. This section added by the Dorgan/Lott/Cantwell
amendment would declare null and void the cross-media limits
rule adopted by the FCC on June 2, 2003, pursuant to its
proceeding on broadcast media ownership rules (FCC 03-127) and
would reinstate with effect from June 2, 2003, the FCC's rule
73.3555, as those rules were in effect. The Committee adopted
an amendment by Senator Dorgan that would add a provision to
title X that would prohibit the FCC from promulgating rules
regarding media ownership without first completing the
regulatory action in its section 257 proceeding initiated on
June 15, 2004, concerning diversity in media ownership.
Also with regard to title X, the Committee adopted an
amendment by Senators Bill Nelson, DeMint and Cantwell that
would require within 180 days of enactment that the FCC amend
its rules requiring collection of data twice a year through its
Form 477, which provides a snapshot of broadband deployment and
local phone competition throughout the United States. The new
provision would require that broadband service providers report
information, by zip code area where broadband service is
provided, including the percentage of households offered
service and the percentage of such households subscribing, as
well as the average price per megabyte of download and upload
speed, the broadband service's actual average throughput, and
contention ratio of the number of users sharing the same line.
The FCC would, however, be required to exempt a broadband
service provider from such reporting requirements if a
provider's compliance is cost prohibitive, as defined and
determined by the FCC. This section would further require that,
with respect to areas unserved by any broadband service
provider, the FCC use Census Bureau data to provide an annual
report to Congress with information on such area's population,
population density and average per capita income. The Committee
adopted an amendment by Senator Bill Nelson that would prohibit
FCC bureau chiefs and persons in similar positions at the FCC
from lobbying the FCC until one year after leaving the FCC.
The third manager's package adopted by the Committee included
a second degree amendment by Senator Sununu that would require
the FCC to complete within 270 days of enactment of the bill
the proceeding on special access rates in FCC Dockets No. 05-25
and 01-321.
AMENDMENTS ADOPTED AS NEW TITLES TO THE BILL
The Committee adopted by a rollcall vote of 14 to 7 an
amendment by Senator McCain that would add a new title XI to
the bill. The McCain amendment would repeal language enacted in
the 2000 Commerce, Justice, and State appropriations bill that
required the FCC to delay the licensing of low power FM (LPFM)
stations on third adjacent channels to full power FM stations.
The amendment would direct the FCC to modify its rules to
eliminate third adjacent minimum distance separation
requirements between LPFM stations and full power FM stations,
FM translator stations, and FM booster stations. The amendment
would also require interference protection for radio stations
that provide reading services over the radio frequencies to
assist the blind. Such radio reading service (RRS) stations
broadcast using a sub-carrier frequency, which is more
susceptible to LPFM interference due to its spacing on an FM
channel. The FCC currently has a temporary rule preventing LPFM
stations from operating on a third adjacent channel to a RRS.
This section would direct the FCC to make this rule permanent.
The amendment would require the FCC when licensing FM
translator stations to ensure that licenses are available to
both FM translator stations and low-power FM stations,
according to the needs of the local community.
The Committee adopted by a rollcall vote of 21 to 1 an
amendment by Senators McCain, Allen, Bill Nelson and Stevens
that would add a new title XII to the bill. This amendment
would for three years after enactment prohibit States and
localities from levying new taxes that single out wireless
phone service, but would not affect existing taxes.
The Committee adopted an amendment by Senator Bill Nelson
that would add a new title XIII to the bill. The Bill Nelson
amendment would make it unlawful to cause any caller
identification service to transmit misleading or inaccurate
caller identification information and would require the FCC to
adopt rules within 6 months of enactment to implement such
prohibition.
The Committee adopted an amendment by Senators Burns and
Snowe that would add a new title XIV to the bill. The Burns/
Snowe amendment would require the FCC to reconfigure the 700
MHz band plan, provided such action does not delay the DTV
transition or auction of recovered analog broadcast spectrum,
in order to encourage rural deployment, and to direct the FCC
to review spectrum use.
The Committee, by a rollcall vote of 15-7, ordered that H.R.
5252 be reported with amendments.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, Setpember 15, 2006.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5252, the
Communications Act of 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Susan
Willie (for federal costs), Sarah Puro (for the impact on state
and local governments), and Philip Webre (for the impact on the
private sector).
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
H.R. 5252--Communications Act of 2006
Summary: H.R. 5252 would make numerous changes to
provisions of current law that regulate telecommunications. The
act would direct how local governments may issue franchises to
providers of video service. The act also would create a new
program in the Universal Service Fund (USF) to support the
development of broadband service to unserved areas and make
other changes to existing USF programs. H.R. 5252 also would
authorize the appropriation of $250 million over the 2007-2011
period for research grants on advanced communication services.
CBO estimates that enacting H.R. 5252 would increase direct
spending by $5.2 billion over the 2007-2016 time period. Over
the same period, CBO estimates that revenues would increase by
$5.0 billion. In addition, assuming appropriation of the
authorized amounts, CBO estimates that implementing H.R. 5252
would result in discretionary outlays of $175 million over the
2007-2011 period.
H.R. 5252 contains several intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA). In
particular, the act would limit certain intergovernmental
entities from imposing certain fees on providers of cable
services, permanently extend a prohibition on certain state and
local taxation of Internet access services, and impose a three-
year moratorium on certain new state and local taxes that apply
to mobile telephone service. The act also would eliminate the
rights of certain state and local governments to appeal and
bring court cases relating to the Internet-based telephone
service known as Voice-over-Internet-Protocol (VOIP). Other
provisions of the act would preempt state and local laws and
require certain intergovernmental entities to notify and file
reports with the Federal Communications Commission (FCC).
CBO estimates that the net direct costs of these mandates
to state and local governments would exceed the threshold
established in UMRA ($64 million in 2006, adjusted annually for
inflation) in at least one of the first five years after
enactment. Those costs, in the form of forgone revenues, would
peak during the 2008-2009 period, and total at least $150
million--and perhaps as high as $400 million--in those two
years. Costs would decrease after 2009 but would likely remain
above $100 million through 2011.
H.R. 5252 also would impose numerous private-sector
mandates as defined in UMRA on providers of telecommunications
services, Internet Protocol-enabled (IP-enabled) voice
services, Internet service providers, manufacturers and
distributors of television receivers, broadcasters, video and
satellite service providers, and others. At the same time, the
act would provide some forms of regulatory and tax relief for
portions of those industries. Based on information from
government and industry sources, CBO estimates that the
aggregate costs of complying with the mandates in H.R. 5252
would exceed the annual threshold established by UMRA for
private-sector mandates ($128 million in 2006, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5252 is shown in the following table.
The costs of this legislation fall within budget functions 370
(commerce and housing credit), 250 (science, space, and
technology), and 950 (undistributed offsetting receipts).
Basis of estimate: For this estimate, CBO assumes that the
act will be enacted early in fiscal year 2007 and that the
necessary amounts will be appropriated near the start of each
fiscal year. Outlay estimates are based on historical spending
patterns for existing or similar programs. CBO estimates that
enacting H.R. 5252 would increase direct spending by $5.2
billion over the 2007-2016 period and increase revenues by $5.0
billion over the same period. In addition, assuming
appropriation of the amounts authorized, CBO estimates that
implementing H.R. 5252 would result in discretionary outlays of
$175 million over the 2007-2011 period.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------
2007 2008 2009 201O 2011 2012 2013 2014 2015 2016
----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Universal Service Fund Provisions:
Antideficiency Act Exemption:
Estimated Budget Authority........ 0 0 0 0 0 0 0 0 0 0
Estimated Outlays................. 0 107 47 3 2 1 0 0 0 0
Broadband Service Fund:
Estimated Budget Authority........ 70 400 500 500 500 500 500 500 500 500
Estimated Outlays................. 0 426 513 500 500 500 500 500 500 500
Audits:
Estimated Budget Authority........ 20 40 41 42 42 43 44 45 46 47
Estimated Outlays................. 19 39 41 42 42 43 44 45 46 47
Rural Health Care Program:
Estimated Budget Authority........ 5 8 13 13 13 13 13 14 14 14
Estimated Outlays................. 0 8 12 13 13 13 13 14 14 14
Unlicensed Use of Television--Broadband
Spectrum:
Estimated Budget Authority............ 0 25 0 0 50 25 0 0 0 0
Estimated Outlays..................... 0 25 0 0 50 25 0 0 0 0
Total Changes:
Estimated Budget Authority............ 95 473 554 555 605 580 557 559 560 561
Estimated Outlays..................... 19 605 613 558 607 581 557 559 560 561
CHANGES IN REVENUES
Estimated Revenues........................ 95 448 553 554 555 556 558 559 560 561
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level....................... 40 45 50 55 60 0 0 0 0 0
Estimated Outlays......................... 9 28 39 47 52 43 17 6 2 1
----------------------------------------------------------------------------------------------------------------
Direct spending
Several provisions of H.R. 5252 would affect direct
spending. Title II would expand or create new programs in the
Universal Service Fund. Title VI would modify terms and
conditions governing the use of certain radio frequencies by
users without licenses from the FCC.
Universal Service Fund. Created by the Telecommunications
Act of 1996, the USF redistributes income from interstate
telecommunications carriers to other carriers providing
services to high-cost areas, low-income households, schools,
libraries, and nonprofit rural health care providers. The cash
flows from the USF appear in the budget as revenues (for fund
collections, discussed below) and direct spending (for amounts
distributed from the fund).
Title II would create new programs within the Universal
Service Fund, expand an existing program, and permanently
exempt the fund from the provisions of the Antideficiency Act.
CBO estimates that enacting these provisions would increase
direct spending by about $5.1 billion over the 2007-2016 period
and increase revenue collections by $5.0 billion over the same
period.
Antideficiency Act Exemption. Section 211 would permanently
exempt the Schools and Library program with the USF from
provisions of the Antideficiency Act. Under current law, the
program has a temporary exemption from the act that will expire
at the end of calendar year 2006. Without this exemption, the
Schools and Library program would be unable to obligate funds
until sufficient resources to meet its obligation are
available.
The Schools and Libraries program distributes funds to
eligible institutions to provide affordable Internet and
telecommunications services. When the USF receives and approves
a grant application, it obligates funds to be paid to the
recipient pending compliance with certain grant conditions.
Under current law, the fund has temporary authority to obligate
funds without sufficient amounts available to meet those
obligations. H.R. 5252 would make that authority permanent,
allowing the program to obligate and spend funds faster than it
would without the exemption. CBO estimates that this provision
would increase the rate of spending and thus increase costs by
about $160 million over the 2007-2016 period.
Broadband Service Fund. Section 252 would create a new
program to promote the development of broadband service in
areas of the United States that the FCC determines to be
unserved. The program would provide financial assistance for
certain broadband service providers to install equipment and
infrastructure to offer broadband service in certain areas.
H.R. 5252 would limit the amount that could be obligated under
this program to $500 million per year. Based on the
administration of existing USF programs, CBO expects that the
proposed Broadband Service Fund would operate at the maximum
authorized level. CBO estimates that this provision would
increase direct spending by nearly $4.5 billion over the 2007-
2016 period. (The provision also would increase revenue
collections by about $4.5 billion over the same period.)
Audits. Section 258 would require the FCC to periodically
audit entities that receive funds from the Universal Service
Fund, as well as communications carriers who contribute to the
fund. The audits would be administered by the Universal Service
Administrative Company to determine how recipients use the
support received from the fund and how costs of services
provided by fund contributors differ between service areas.
Based on information from the FCC about the cost of audits, CBO
estimates that this provision would increase the expenses (and
revenue collections) of the fund by about $400 million over the
2007-2016 period.
Rural Health Care Program. Section 260 would expand the
population of eligible health care providers that could receive
support under the Rural Health Care Support Program. This
program provides reduced rates for Internet and
telecommunication services to certain rural public and
nonprofit health care providers. H.R. 5252 would increase the
pool of eligible health care providers to include critical
access hospitals, hospice providers, school health clinics, and
others. CBO estimates that this provision would increase direct
spending by about $115 million over the 2007-2016 period (and
result in increased revenue collections of $120 million over
the same period).
Unlicensed Use of Television Broadcast Spectrum. Title VI
would modify the FCC's policies regarding the use of television
broadcast spectrum by unlicensed devices. The commission's
recently announced timetable for unlicensed use of those
frequencies set a goal of having equipment deployed after the
transition to digital television is completed in 2009. Under
the FCC's plan, such devices could operate on a secondary basis
on most of the frequencies spanning channels 5 through 51. This
act would modify that plan by directing the FCC to allow
certified unlicensed devices to begin operating on channels 2
through 51 beginning within 270 days after the act is enacted,
subject to certain limitations. CBO estimates that enacting
H.R. 5252 would reduce offsetting receipts from future spectrum
auction proceeds by $100 million over the 2009-2012 period,
relative to current law.
CBO anticipates that allowing unlicensed devices on
channels 2 through 4 would result in fewer channels being
auctioned for new broadcast stations relative to current law,
thereby reducing offsetting receipts by an estimated $75
million by 2012. Although unlicensed devices would operate on a
secondary basis, experience suggests that the presence of such
incumbents would put pressure on the FCC to limit the number of
new licensees in the broadcast bands. CBO expects that this
impact would be most pronounced in major markets because of the
relative scarcity of spectrum in those areas. For this
estimate, CBO assumes that enacting this act would result in a
50 percent reduction in the $150 million CBO projects otherwise
would be collected from auctions of licenses for those
channels.
In addition, CBO expects that allowing unlicensed
operations on channels 2 through 4 would reduce demand for some
of the licenses scheduled to be offered by the FCC in 2008 as
part of the ``700 megahertz'' auction. The impact on that
auction is likely to be small, however, because of the
significant engineering constraints on use of those channels by
secondary devices. For this estimate, CBO assumes that those
three channels could serve as a substitute for only 20 percent
of the licenses being auctioned, and that the effect on the
value of those licenses would fall by no more than 1 percent.
Based on CBO's baseline projection of receipts from that
auction, which totals $12.5 billion, the net impact of this act
on the 700 megahertz auction would total about $25 million.
Revenues
As noted above, assessments made by the Universal Service
Fund to support its programs are recorded in the budget as
revenues, and are calculated to generate an amount sufficient
to cover the costs of the fund. All USF spending is supported
by assessments on telecommunications firms; thus, CBO estimates
that new revenues collected by the fund to support the proposed
Broadband Service program, program audits, and the expansion of
the Rural Health Care program would total $5.0 billion over the
2007-2016 period.
Several provisions of the act could increase federal
revenues as a result of the collection of additional civil and
forfeiture penalties assessed for violations of FCC laws and
regulations. Collections of civil penalties and forfeiture
penalties are recorded in the budget as revenues. CBO estimates
that any additional revenues that would result from enacting
H.R. 5252 would not be significant because of the relatively
small number of cases likely to be involved.
Spending subject to appropriation
Title X would establish a program within the National
Science Foundation (NSF) to support basic research in advanced
information and communications technology. The NSF would make
grants designed to improve the availability and affordability
of advanced communications services to higher education and
nonprofit research institutions. The act would authorize the
appropriation of $250 million over the 2007-2011 period for
this grant program. Based on the spending patterns of similar
programs, CBO estimates that outlays over this period would
total $175 million.
Title X would create two new administrative offices at the
FCC--the Office of Indian Affairs and the Office of Consumer
Advocate. Other provisions of the act would require the FCC to
undertake numerous rulemakings regarding the USF Broadband
program, video service and cable franchising, consumer
protection requirements for mobile services, and appropriate
use of Caller-10 services, among others. The act would also
require the FCC to prepare a number of reports for the Congress
concerning the availability of video services, proposals to
allow radio and television content to be broadcast in school
buses, the availability of broadband service, and the impact of
spectrum leasing rules. Based on information from the FCC, CBO
estimates that these new requirements would cost about $35
million over the 2007-2011 period. Under current law, the FCC
is authorized to collect fees from the telecommunications
industry sufficient to offset the cost of its regulatory and
user information programs. CBO assumes that the additional
costs of implementing these administrative provisions of H.R.
5252 would be offset by an increase in collections credited to
the FCC's annual appropriations and would have no significant
net cost.
Estimated impact on State, local, and tribal governments:
H.R. 5252 contains several intergovernmental mandates as
defined in UMRA. Specifically, the act would:
<bullet> Limit the fees that intergovernmental
entities--primarily municipal governments--may impose
on providers of cable services;
<bullet> Permanently extend a prohibition on certain
state and local taxes on the provision of certain
Internet access services;
<bullet> Impose a three-year moratorium on certain
new state and local taxes that apply to mobile
telephone service;
<bullet> Prohibit intergovernmental entities--
primarily municipal governments--from imposing certain
requirements on providers of cable services and from
negotiating future changes in franchise agreements
including, the structure of franchise fee payments and
the number of public, educational, and governmental
(PEG) channels provided by the video service provider;
<bullet> Eliminate appeals regarding two recent FCC
decisions that relate to an Internet-based telephone
service known as VOIP;
<bullet> Preempt state laws that prohibit municipal
governments from providing services for Internet
access;
<bullet> Preempt a variety of other state and local
laws with respect to the granting of franchises for
cable service, consumer protection, caller-ID, and
certain requirements that information be available to
the public;
<bullet> Require local franchise authorities to
adhere to certain timelines for granting franchises;
and
<bullet> Require certain state and local government
entities to notify and file reports with the FCC.
CBO estimates that the net direct costs of these mandates
to state and local governments would exceed the threshold
established in UMRA ($64 million in 2006, adjusted annually for
inflation) in at least one of the first five years after
enactment. Those costs, in the form of forgone revenues, would
peak during the 2008-2009 period and total at least $150
million--land perhaps as high as $400 million--in each of those
two years. Costs would decrease after 2009 but would likely
remain above $100 million through 2011. Most of those costs
would stem from the first three provisions outlined above. The
following discussion focuses on the costs of these provisions.
Estimated direct costs of Mandates to State and local governments
UMRA includes in its definition of the direct costs of a
mandate the amounts that state and local governments would be
prohibited from raising in revenues to comply with that
mandate. The most significant direct costs of H.R. 5252 would
be the revenues that state and local governments would likely
collect under current law from providers of video service,
Internet access services, and mobile phone service but would be
precluded from collecting under H.R. 5252.
Limiting Fees Paid by Providers of Video Service. Title III
would establish new provisions for the franchising of video
service providers. In doing so, the act would place
requirements on certain units of local government, preempt
their authority to regulate and negotiate with video service
providers, and prohibit some state and local governments from
charging certain fees to providers of video services. The act
also would prohibit certain local governments from imposing
franchise fees on services delivered using certain
technologies. At the same time, by increasing competition in
some markets, enacting the act likely would lead to more people
subscribing to cable services that are subject to local
franchise fees. Thus, local governments would gain new revenues
that partially offset these costs.
Under current law, Local Franchise Authorities (LFAs) in
most states negotiate compensation with cable providers seeking
to serve their franchise area. (In at least four states, the
law provides for a statewide franchise). Each agreement is
different, and the amount of forgone revenue from H.R. 5252's
prohibition would depend on the specifics of each franchise
agreement preempted by the act.
Current federal law caps fees for the franchise at 5
percent of gross revenues--a fee maintained in H.R. 5252. Local
governments, however, also negotiate fees for certain
additional services that the video service provider must
supply. These services include public, educational, and
governmental programming and a type of private network for some
public entities called an institutional network (INET). INETs
typically connect schools, police and fire stations, libraries,
and other municipal buildings. On average, these fees total
between 1 percent and 3 percent of the gross revenues of the
provider. Based on the franchise agreement that an LFA has with
cable provider, provisions of H.R. 5252 would limit fees that
those LFAs with an INET may charge video providers. There is a
great deal of uncertainty as to the number of franchise areas
with INETs, but government sources suggest that no more than
half of franchise areas have one.
By prohibiting some intergovernmental entities from
charging certain video service providers more than 1 percent of
gross revenues to provide PEG programing and other services,
H.R. 5252 would lead to a loss in state and local revenues. CBO
estimates that the net costs of this prohibition--that is, the
amount of revenues state and local governments would no longer
be able to collect, offset by franchise fees generated from
increased competition--could total about $100 million in some
years during the 2007-2011 period. Such costs, however, could
be significantly lower, depending on the pace at which there is
competition in the market for video services and the changes in
technology for the delivery of such services.
Permanent Extension of the Internet Tax Freedom Act.
Section 1013 would permanently extend the moratorium on certain
state and local taxation of Internet access and would eliminate
an exception to that prohibition that allows certain states to
continue collecting such taxes. Under current law, the
moratorium is set to expire on November 1, 2007.
The Internet Tax Freedom Act (ITFA) currently prohibits
state and local governments from imposing taxes on Internet
access until November 1, 2007. Based on information from
government and industry sources, CBO estimates that permanently
extending the ITFA would result in revenue losses for about 25
states and some local governments totaling between $100 million
and $175 million, annually, beginning in November 2007. CBO
expects that forgone revenues from this provision would peak
within the next few years and then decline due to the rapidly
decreasing prices for services that could have been subject to
tax in the absence of this provision and the relatively slower
growth of new subscribers.
Moratorium on New Taxes on Cell Phone Services. Title XII
would impose a three-year moratorium on certain new taxes
imposed by state and local governments that apply to the
provision of mobile telephone service. State and local
governments would be prohibited from raising the tax rate on
current taxes and from enacting any new statutes that would
impose other taxes or fees on mobile telephone services over
the next three years: 2007, 2008, and 2009.
There is significant uncertainty about the number of
governments that would impose taxes in the absence of this
legislation and the amount of revenue they would raise. Based
on information from industry sources, however, CBO expects that
many local governments likely would act to either raise current
tax rates or impose new taxes on mobile telephone services.
Over the past five years, subscribers to mobile phone services
have been increasing by more than 10 percent annually. At the
same time, consumer expenditures for and use of traditional
wireline phones has decreased. State and local governments have
traditionally taxed such telephone services and these market
forces have had a negative impact on state and local tax
collections. It is likely that at least some of these
governments that have not already moved to recoup those revenue
losses would do so in the absence of this legislation.
While it is difficult to predict what state and local
governments would do in the absence of the moratorium, based on
governmental and industry sources, CBO estimates that, in
aggregate, they would likely forgo between $100 million and
$150 million annually in each of the three years the moratorium
would be in effect.
Estimated impact on the private sector: H.R. 5252 would
impose numerous private-sector mandates as defined in UMRA on
providers of telecommunications services, IP-enabled voice
services, Internet service providers, manufacturers and
distributors of television receivers, broadcasters, video and
satellite service providers, and others. At the same time, the
act would provide some forms of regulatory and tax relief for
portions of those industries. Based on information from
government and industry sources, CBO estimates that the
aggregate costs of complying with the mandates in H.R. 5252
would exceed the annual threshold established by UMRA for
private-sector mandates ($128 million in 2006, adjusted
annually for inflation).
The major provisions of the act would impose private-sector
mandates by:
<bullet> Imposing new standards for multimode
devices;
<bullet> Increasing payments by telephone companies
to the Universal Service Fund;
<bullet> Imposing new regulations on interconnections
among providers of telephone services;
<bullet> Imposing new requirements on video service
providers regarding franchise applications,
interconnection with other providers, reporting and
termination fees;
<bullet> Regulating video content by:
--Requiring satellite carriers to serve
subscribers in Alaska and Hawaii;
--Requiring manufacturers to include output
control technologies in their products that
receive over-the-air digital broadcasts; and
--Making changes to certain FCC licenses
related to transmissions on digital
technologies;
<bullet> Requiring broadcasters and retailers to use
various methods to educate consumers about the
transition to digital broadcasts;
<bullet> Imposing energy standards on digital
converter boxes;
<bullet> Requiring cable companies to carry analog
video streams;
<bullet> Requiring broadcasters and multiple-channel
video programming distributors to provide video
description for the blind;
<bullet> Requiring video service providers to prevent
easy access to certain commercial matter during the
broadcast of children's programming;
<bullet> Requiring Internet service providers to meet
consumer protection guidelines;
<bullet> Prohibiting the transmission of false or
misleading information over caller-ID services; and
<bullet> Requiring some providers to comply with
reporting requirements, customer service and consumer
protection requirements, as well as other incremental
changes in industry regulations.
Based on its review of the legislation, CBO expects that
the mandates contained in the titles on Interoperability (title
I); Universal Service Reform and Interconnection (title II),
Video Franchising (title III), Video Content (title IV),
Digital Television (title VII), Protecting Children (title
VIII), Internet Consumer Bill of Rights (title IX) and Truth in
Caller ID (title XIII) would have the greatest cost to private-
sector entities as defined in UMRA. What follows is a summary
of the major provisions related to private-sector mandates.
Interoperability: Standards for multimode devices
Section 151 contains a mandate on manufacturers of
multimode devices. Multimode devices, as the term is used in
the act, refers to cell phones that contain multiple
transmitters, for example a ``Wi-Fi'' or ``Bluetooth''
transmitter. Manufacturers of such devices would be required to
meet standards governing the acceptable level of radio
frequency exposure. The cost of complying with this mandate
would depend on the regulations to be issued by the FCC.
Universal Service Fund
Contributions to the Universal Service Fund. Section 211
would impose mandates on all communications service providers.
The Universal Service Fund helps to underwrite telephone
service predominantly for rural and, low-income customers. The
act would require the FCC to develop a new contribution system
and require all telecommunications companies--including
Internet phone companies and broadband providers that currently
do not contribute to universal service support--to make
payments to the fund. Under current law, providers must pay
fees into the USF on revenues received from providing
interstate telecommunication service; revenues from intrastate
services are exempt. This section would expand the base from
which fees are derived for universal service to all forms of
revenues. In the aggregate, the level of universal service fees
is determined by the spending by the USF.
Fee Increases to the Universal Service Fund. Section 252
would establish a new program (the Broadband for Unserved Areas
Program) funded by the Universal Service Fund to encourage the
deployment of high-speed Internet access in unserved rural
areas. The program would consist of grants distributed on a
competitive basis and be administered by the Universal Service
Administrative Company. The act would cap spending for these
grants at $500 million per year with unobligated balances used
to support universal service more generally.
To pay for the program, the FCC would have to raise
universal service fees on telecommunications carriers since,
under section 254(d) of the Communications Act, universal
service fees have to be sufficient to preserve universal
service and this new program is to be funded under section
254(d). CBO estimates that the additional fees collected for
this program would exceed $400 million from fiscal 2008 onward.
Section 260 would increase the number of categories of
rural health care providers eligible for subsidies under the
Rural Health Care program of the Universal Service Fund. CBO
estimates that these added fees will cost the industry roughly
$10 million annually beginning in 2008.
Regulation of interconnection
Section 213 would prohibit an incumbent telephone service
provider from refusing to interconnect and carry the traffic of
another carrier merely because the second provider is an IP-
enabled carrier. Additionally, this section would eliminate the
current exemption on IP-enabled voice carriers from ``paying
compensation for interstate traffic owed to another provider or
carrier solely on the basis that such traffic is IP-enabled * *
* '' Based on information from government and industry sources,
the incremental cost of making interconnection available to IP-
enabled carriers would be minimal. Secondly, this section would
require IP-enabled voice carriers to pay all the traffic-
related access charges that other telephone service providers
currently must pay. According to industry estimates, IP-enabled
telephone providers would pay about $200 million in such access
charges in 2007 and increasing amounts thereafter. Those
payments would be made to other telephone companies that are
currently required to pay such charges and would represent
within-industry transfers.
Section 213 would require IP-enabled telephone providers to
notify customers detailing the customer's responsibility for
ensuring access to emergency services. According to industry
sources, the cost to provide such notices would be small.
Section 257 would require voice communications providers to
label traffic with sufficient information to allow for traffic
identification by other communication networks that transport,
transit, or terminate such traffic, including information on
the identity of the originating provider, the calling and
called parties. Currently, identifying information is often
lost as traffic is passed from network to network. Without
identifying information the carrier completing the call cannot
identify the carrier originating the call and collect payment
for the service of completing the call. CBO has no basis to
estimate the cost of this labeling requirement.
Regulation of the video services franchising process
Regulation of Franchise Agreements. Section 312 would
require video service providers to use a standard application
form when applying for a new franchise. The form would require
no additional information compared to the information
applicants currently provide to a franchise authority during
the application process. Consequently, this mandate should
impose no new costs.
Section 331 would establish requirements for franchise
agreements and place limits on the fees and contributions that
video service providers have to make under such agreements. The
act would on average lower the fees franchisees currently have
to pay. The section does permit the parties to negotiate
tradeoffs between the franchise fees and the PEG contributions.
Furthermore, under the legislation franchising authorities
could no longer require a video service provider to construct a
new institutional computer network. (Such networks are
typically used by public agencies or enterprises.)
Section 337 would prohibit discrimination by video service
providers against potential subscribers on the basis of the
race, religion, or income of that group. Discrimination based
on race or religion is currently prohibited under law. The act
would impose a mandate by prohibiting video service providers
from discriminating based on income. Existing franchise
agreements tend to have build-out requirements, requiring the
franchisee to serve all households in areas where the minimum
population density is above a certain threshold. But until now
the franchises were required to cover the entire area under the
jurisdiction of the franchising authority. Under the act, since
the applicants would be able to define their service area,
video service providers could serve only portions of a
community. While economic redlining typically occurs in non-
network goods, such as housing, some companies may try to serve
only areas with relatively higher incomes. The act would
prohibit such actions. CBO has no basis to estimate the
prevalence of such economic discrimination in the absence of
this legislation, nor the cost of ending such discrimination.
Interconnection. Section 333 would require multiple video
service providers that serve a single franchise area to
interconnect to transmit the public, educational, or
governmental use channels without material degradation. If the
video service providers cannot come to terms voluntarily on how
to implement this requirement, they would have to comply with
regulations issued by the FCC regarding interconnecting and
cost-sharing. Estimates of the costs of these connections vary
between $5 million and $30 million annually, depending on the
number of new franchises. In addition, the installation of
interconnection equipment could add another 10 percent to that
cost in a one-time expense.
Reporting Requirements for Video Service Providers. Section
315 would require companies to provide an annual report to the
FCC on the family tiers--packages of channels free of obscene
and indecent programming--the company offers, the prices,
marketing efforts and subscription levels of such family tiers.
Such a report would impose low costs on the companies.
In addition, at the request of the franchise authority, the
video service providers would have to make their books and
records available for periodic audits. Such a request would not
impose substantial cost upon the video service provider
directly.
Prohibition on Early Termination Fees. Section 336 would
amend the Communications Act to make it ``unlawful for a video
service provider to charge a subscriber an amount in excess of
one month's subscription fee as a penalty or service charge for
terminating a subscription to the video service provider's
service before the date on which the subscription term ends.''
CBO interprets this language to include only the service or
penalty fee, and not any fee for missing or damaged equipment,
which would not be a service fee.
Many video service providers have year-long agreements with
penalty fees for early termination. This provision is not
retroactive so it would not affect existing contracts. The
cable companies have already acquired their customers, paid for
their investment and are willing to concentrate on offering
month-to-month contracts. (Satellite companies are exempt.)
This provision would mostly affect over-builders: that is,
companies entering into the territory of an existing cable
franchise. Such companies often have early termination clauses
in their service agreements. Based on information from industry
sources, CBO estimates that limiting these clauses would cost
such new companies about $10 million to $12 million annually
over the next five years.
Regulation of video content
Satellite Services. Section 401 would expand the
requirements on current satellite carriers and service
resellers to provide service to subscribers in Alaska and
Hawaii that is comparable to what they provide in the
contiguous United States. This section also would require that
each satellite for which a future license is to be used ``for
service in the contiguous United States'' for direct-to-home
video services or for any other direct-to-consumer service
satisfy capability requirements. (Those requirements would be
stated in terms of earthbound signal strength and satellite
reception for providing service to Alaska and Hawaii.) Both the
specific satellite capability requirements as well as the
extent of the corresponding service provision (that is, to
large cities in Alaska and Hawaii or to the entirety of each
state) varies by type of satellite service. According to
industry sources, the cost to comply with this provision would
increase the cost of a satellite carrier to comply with a
license by about 15 percent.
Digital Content Protection. Sections 452 and 454 would
authorize and ratify earlier FCC Reports and Orders mandating
the use of output control technologies (``broadcast flags'')
and approving--based on interim criteria--a specific set of
technologies for that purpose. As a result, those sections
would impose several mandates on the private sector. In
particular, section 452 would require that an approved output
control technology be incorporated into television receivers,
digital recording equipment, and certain other devices that
directly or indirectly receive over-the-air digital televison
broadcasts. Section 454 would require the commission to
initiate a process that would impose similar controls on
digital radio.
CBO expects that the costs to the private sector of
complying with the broadcast flag requirement of section 452
would not exceed the annual threshold established in UMRA for
private-sector mandates because the expense of complying with
it is limited by the several factors, including: (i) the
approved output control technologies have already been
implemented in microelectronic components that are inexpensive
to manufacture, avoiding thereby as well expensive design
efforts for new chips; and (ii) the costs to license the
intellectual property embodied in the approved output control
technologies are limited to administrative fees. In contrast,
the costs to implement the requirements of section 454 would
depend on the outcome of FCC proceedings.
Licensing Terms for Broadcast Flag Technologies. Section
452(d)(3) would modify the terms under which the output control
technologies approved in currently-signed licenses for some of
the output control technologies considered in previous
rulemaking by the FCC (FCC 03-273--In the Matter of Digital
Broadcast Content Protection, Report and Order and Further
Notice of Proposed Rulemaking, November 4, 2003) and (FCC 04-
193--In the Matter of Digital Output Protection Technology and
Recording Method Certification, Order, August 12, 2004). This
section would thereby impose a private-sector mandate by
requiring that licenses for approved output control
technologies for equipment receiving over-the-air digital
television broadcasts be modified to remove clauses which
prevent licensees from asserting patent rights; otherwise, the
associated technologies lose their approval. CBO has no basis
to estimate the cost of this mandate.
Compulsory License Terms and Conditions. Section 453 would
create compulsory licenses for certain parties that make use of
digital audio broadcasts. It also would establish the
conditions that such entities must satisfy in order to qualify
for them. It thus would impose two mandates on the private
sector requiring that:
<bullet> Organizations that monitor digital radio
broadcasts or satellite transmissions, either for
allocating royalties due to copyright owners or for
providing other types of measurement services (e.g.,
for determining the frequency of news stories about
Members of Congress) receive a free, or de minimis-cost
license for ``access(ing) and retransmit(ing) any
content contained in such transmissions protected by
copyright protection or similar technologies'' in order
to carry out their activities; and
<bullet> Organizations benefitting from such free or
de minimis-cost licenses ``employ reasonable methods to
protect'' the digital audio content they access under
those licenses ``from further distribution.''
CBO cannot estimate the cost to the private sector of these
requirements. Currently, organizations making such use of audio
broadcasts or transmissions that are affected through existing
technology do not pay royalties, and do not incur substantial
costs to protect that content. The two provisions of section
453 would effectively maintain a no-royalty regime under a new
technology--digital audio--and private-sector sources cannot
project either forgone royalties or additional costs of
protecting the associated digital content.
Digital television education
H.R. 5252 includes several provisions to educate consumers
about the nation's transition to digital-only television
broadcasting by February 2009. Section 701 would impose
mandates by requiring manufacturers to put labels on all analog
TV sets sold in the United States warning consumers of the
pending analog switch off in February 2009. Section 701 also
would require that a retailer of analog-only television sets
that sells such television sets via direct mail, catalog, or
electronic means to include in all advertisements or
descriptions of such television set a warning about the
transition to digital-only broadcasts. The cost of such
labeling is likely to be minimal. Television sets already have
printed packaging and screen labels. Changing these labels is
not likely to be expensive.
Section 701 also would impose notification requirements on
broadcasters for their public service announcements (PSAs).
Each broadcast television licensee would be required to air two
30-second public service announcements each day for three
months beginning December 2007 to inform consumers about the
federally subsidized digital-to-analog convertor box discount
program. Beginning November 17, 2008, broadcasters would have
to start running PSAs alerting consumers to the coming switch
of analog broadcasts. Such public service announcements must be
in English, Spanish, and other languages as appropriate.
CBO assumes that the broadcasters will be making many such
announcements on their own to let their audience know of the
shift in their broadcast frequency during the transition to
digital television. CBO also assumes that the mandated public
service announcements would replace other public service
announcements during those periods. Consequently, CBO expects
that this requirement for public service announcements would
not impose substantial additional cost on broadcasters.
Section 701(b) requires the FCC to establish a consumer
outreach plan, including a requirement that all the licensed
broadcasters in a designated market area submit a joint plan to
the FCC that addresses the public outreach and public service
announcement requirements. This joint plan would include a
description of how each broadcaster intends to fulfill the PSA
requirements, market research by each broadcaster regarding
projected local consumer demand for converter boxes, and be
shared with retailers in the area to help inform their stocking
plans. CBO estimates that these requirements could be fulfilled
at a small cost for each television market. The report to the
FCC would be due July 15, 2007.
Energy standards for digital television converter boxes
Section 701 would require the Assistant Secretary of
Commerce for Communication and Information, in consultation
with the Secretary of Energy, to set the energy standards for
digital-to-analog set-top converter boxes. The new standards
would have to be set within one year of enactment. Under
current law, the converter boxes are supposed to go on sale in
January of 2008. If the energy standards do not go into effect
until a year after passage, which would be October 2007 at
earliest, the two-month gap would not give the supply chain
sufficient time to stock the stores with the requisite boxes.
The energy standards themselves could lower the costs of
the manufacturers of digital to analog set top converter boxes,
if the national standards are lower than the standards set by
various states that have such regulations. The cost of the
mandate would depend on final rules set by the Department of
Commerce.
Carriage of analog video streams
Section 701(d) would require cable operators to carry both
the original digital video stream as well as a downconverted
analog version of it. The legislation would permit such down
conversion declaring that it is not material degradation. The
section also would permit the cable companies to convert high
definition digital video streams into standard definition
digital video streams. Cable companies with capacity of less
than 550 megahertz are exempted from the requirement to carry
both streams. The National Cable and Telecommunications
Association has committed its members to carry both streams.
Consequently, the industry is already implementing the policy.
The mandate would become effective on the day that analog
television transmissions cease.
Video description rule to aid the blind
Section 702 would reinstate the video description rules of
the FCC report and order entitled Implementation of Video
Description of Video Programming (15 FCCR 15,230). Reinstating
the provisions of that report and order would constitute a new
mandate by requiring affiliates of the top four commercial
television broadcast networks in the top 25 television markets
to provide at least 50 hours per calendar quarter of prime time
or children's programming with video description. This section
also would require each multichannel video programming
distributor (MVPD) with at least 50,000 subscribers to provide
at least 50 hours per calendar quarter of prime time or
children's programming with video description on each of the
top five nationally distributed networks they carry. In
addition, all broadcast stations and MVPDs with video
description capability, regardless of market size, would be
required to ``pass through'' any video description received
from network programs they distribute. According to data from
the FCC, more than 80 percent of broadcast affiliates and
almost 70 percent of MVPDs in their top 25 respective markets
possessed video description capability by the year 2000. Based
on information from government sources, CBO estimates that the
incremental cost to the industry of implementing the mandates
in section 702 would not exceed $15 million annually over the
next five years.
Protecting children
Title VIII would impose a mandate on video service
providers by requiring them to follow new guidelines to be
established by FCC to prevent the offering of child
pornography. The cost of this mandate would depend on the
regulations established by FCC. Further, this title would make
it the responsibility of video service providers, as well as
cable operators, multichannel video programing distributors,
satellite carriers, providers of over-the-air broadcast
programming, and broadband providers to prevent interactivity
with commercial matter during the broadcast of any children's
programming. The mandate would take effect immediately. And
finally, this title contains a mandate on owners and operators
of commercial web sites that contain ``sexually explicit''
materials. Owners of these sites would be required to comply
with new requirements to be set by the FTC. The cost of
complying with these mandates would depend on the results of
future rulemaking.
Consumer Internet Bill of Rights
Section 903 contains a Consumer Internet Bill of Rights
that would direct Internet service providers to allow
subscribers to access and post lawful content, access the web
pages of the consumers' choosing, run any applications of the
consumers' choosing, connect any legal devise to the network,
and receive ``clear and conspicuous'' information about
connection speeds, capabilities, and pricing. At present, most
if not all Internet service providers provide the access
required by this section. This mandate would preempt businesses
from changing their current practices. Consequently, these
rights could be provided at little cost to the Internet service
providers.
In addition, section 905 would require Internet service
providers to offer high-speed Internet services without
requiring consumers to also subscribe to additional
telecommunications services. Currently, most Internet service
providers and cable companies offer stand-alone Internet
access. Phone companies are also offering stand-alone packages
in their fiber-optic offerings. Similarly, most wireless
companies that are in the process of rolling out Internet
access also offer stand-alone versions of the service. Such
service may require purchase of special cards to use with
computers. Because the industry is largely moving in this
direction, the incremental cost to comply with this mandate
would be relatively small.
Truth in caller-ID
By prohibiting certain transmissions of caller-ID
information, section 1302 contains a mandate on persons who
would legitimately need to transmit such information. This
section would make it illegal to transmit misleading or
inaccurate caller-ID information, but would require the FCC to
promulgate regulations to implement this section. The FCC would
have the discretion to exempt ``legitimate'' reasons to
transmit false caller-ID information (for example, battered
women's shelters). The cost of complying with this mandate, if
any, would depend on the regulations established by the FCC.
Previous CBO estimate: On May 3, 2006, CBO transmittd a
cost estimate for H.R. 5252, the Communications Opportunity,
Promotion, and Enhancement Act of 2006, as ordered reported by
the House Committee on Energy and Commerce on April 27, 2006.
That version of the legislation did not contain provisions to
add or change Universal Service Fund programs or permit the use
of unlicensed radio spectrum. The House version contained a
broader provision to cap certain fees charged by local
franchising authorities, which would result in net revenue
losses to those entities totaling between $100 million and $350
million annually by 2011. Further, the House legislation did
not contain the moratorium on new taxes placed on mobile
telephone services or the permanent extension of the Internet
Tax Freedom Act. CBO's cost estimates reflect the different
provisions in the two versions of H.R. 5252.
The Senate version of H.R. 5252 has a provision in common
with the House version of the act. Both versions of the
legislation would require Internet service providers to offer
stand-alone Internet service--broadband in the House version
and the highest Internet access speed offered in the case or
the Senate version. In both instances, CBO noted that most of
the Internet service providers already offered stand-alone
service, and thus, that the likely cost of that private-sector
mandate would be low.
Estimated prepared by: Federal costs: Susan Willie and
Kathleen Gramp; Impact on State and local and tribal
governments: Sarah Puro; Impact on the private sector: Craig
Cammarata, Fatimot Ladipo, Nathan Musick, Amy Petz, and Philip
Webre.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
<greek-l>In compliance with subsection (b)(2) of paragraph 11
of rule XXVI of the Standing Rules of the Senate, the Committee
states that, in its opinion, it is necessary to dispense with
the requirements of paragraph (1) of that subsection in order
to expedite the business of the Senate. deg.
<greek-l>Because S. ------ does not create any new programs,
the legislation will have no additional regulatory impact, and
will result in no additional reporting requirements. The
legislation will have no further effect on the number or types
of individuals and businesses regulated, the economic impact of
such regulation, the personal privacy of affected individuals,
or the paperwork required from such individuals and
businesses. deg.
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The FCC may issue regulations to implement the requirement
set forth in the reported bill that touch on a number of
aspects of communications policy with implications for large
portions of the communications industry.
ECONOMIC IMPACT
H.R. 5252 would not have an adverse economic impact on the
nation's economy. This bill would facilitate the deployment of
advanced communications networks which would trigger
significant investment by communications companies and the
competition in voice and video services facilitated by the bill
is projected to result in billions of dollars worth of savings
for American consumers.
PRIVACY
The reported bill would not materially impact the personal
privacy of U.S. citizens.
PAPERWORK
The reported bill has some reporting requirements for various
sectors of the communications industry but should not
significantly increase paperwork requirements for individuals
and businesses.
Section-by-Section Analysis
Section 1. Short title
This section would provide that the legislation may be cited
as the ``Advanced Telecommunications and Opportunities Reform
Act'' or the ``Communications Act of 2006''.
Section 2. Amendment of Communications Act of 1934
This section clarifies that unless otherwise specified, any
amendment or repeal is to the Communications Act of 1934 (47
U.S.C. 151 et seq.).
Section 3. Table of contents
This section sets forth the table of contents for this Act,
which is comprised of fourteen separate titles.
TITLE I--WAR ON TERRORISM
SUBTITLE A--CALL HOME
Section 101. Telephone rates for members of armed forces deployed
abroad
Section 101 would require the FCC to take such action as may
be necessary, except for rate regulation, to reduce phone rates
for Armed Forces personnel deployed overseas.
Subsection 101(a) would require the FCC to take such action
as may be necessary to reduce telephone rates for Armed Forces
personnel deployed overseas, including the waiver of government
fees, assessments, or other costs, but would preclude the
Commission from regulating rates to do so.
Subsection 101(b) would require that in seeking to reduce
phone rates, the Commission shall (1) evaluate and analyze the
costs of calls to and from official duty stations including
vessels whether in port or underway, (2) evaluate methods of
reducing rates including deployment of new technology such as
Voice over Internet Protocol (VoIP) or other Internet protocol
technology, (3) encourage providers of telecommunications to
adopt flexible billing procedures and policies for calls by
Armed Forces personnel or to such personnel from their
families, and (4) seek agreements with foreign governments to
reduce international surcharges on phone calls.
Subsection 101(c) defines ``armed forces'' and ``military
base'' as used in Subtitle A.
Section 102. Repeal of existing authorization
Section 102 would repeal section 213 of the
Telecommunications Authorization Act of 1992 (47 U.S.C. 201
note), which currently requires the FCC to seek to reduce phone
rates for Armed Forces personnel in certain specified
countries.
SUBTITLE B--INTEROPERABILITY
Section 151. Interoperable emergency communications
Subsection 151(a) would amend section 3006 of the Deficit
Reduction Act of 2005, Public Law 109-171 (47 U.S.C. 309 note),
by adding requirements for awarding the $1 billion in grant
funds made available under the Deficit Reduction Act for public
safety agencies to improve interoperable emergency
communications. The new subsection also would require the
allocation of funds for interoperable communications system
equipment, coordination and planning, and strategic technology
reserves that would provide key public safety officials with a
cache of emergency interoperable communications equipment
during an emergency or major disaster. This section would also
amend the Deficit Reduction Act to require that the grant
program be administered by the Secretary of Homeland Security
instead of the Secretary of Commerce as currently required
under that Act.
New subsection 3006(d) would require the Secretary of
Homeland Security to make at least 25 percent of grant funds
available for equipment that can utilize reallocated public
safety spectrum, or for equipment that can enable
interoperability with systems or networks that can utilize such
spectrum. The Secretary would be required to allocate a
majority of such funds to public safety agencies (as defined by
section 3006) based on threat and risk factors used by the
Department of Homeland Security (DHS) to allocate discretionary
grants under the heading ``Office for Domestic Preparedness,
State and Local Programs'' in the DHS Appropriations Act of
2006, P.L. 109-90. The Secretary would be required to allocate
the remainder of such funds equally to each State for
allocation by the States to public safety agencies.
New subsection 3006(e) would require the Secretary of
Homeland Security to make at least 25 percent of the grant
funds available for interoperable emergency communications
coordination, planning, and training grants. The Secretary
would be required to allocate a majority of such coordination,
planning and training grants to public safety agencies (as
defined by section 3006) based on threat and risk factors used
by DHS to allocate discretionary grants under the heading
``Office for Domestic Preparedness, State and Local Programs''
in the DHS Appropriations Act of 2006, P.L. 109-90. The
Secretary would be required to allocate the remainder of such
coordination, planning, and training grants equally to each
State for allocation by the States to public safety agencies.
New subsection 3006(f) would require the Secretary of
Homeland Security to make up to 25 percent of the grant funds
available to establish and implement a strategic technology
reserve to preposition or secure interoperable communications
systems in advance for immediate deployment in an emergency or
major disaster. In allocating grants, the Secretary would be
required to consider the continuing evolution of communications
technologies and devices and to ensure that a substantial part
of the reserve involves contracts for rapid deployment of
equipment, supplies, and systems rather than warehoused
equipment. Notwithstanding this requirement, the Secretary
would be required to ensure that reserves include equipment on
hand for the Governor of each State and other key emergency
response officials. The Secretary would be required to allocate
a portion of the strategic reserve funds for block grants to
each State to establish a reserve within its borders and a
portion for regional Federal reserves to be held in each of the
Federal Emergency Management Agency's regional offices and each
of the noncontiguous States.
New subsection 3006(g) would require the Secretary of
Homeland Security to identify and if necessary encourage the
development and implementation of consensus standards for
interoperable communications systems to the greatest extent
possible. It would condition grant eligibility on submission of
an application at such time and in such form as the Secretary
of Homeland Security may require. Such application would be
required to include a detailed explanation of how grants would
be used to improve local communications interoperability and
ensure inter-agency interoperability during an emergency or
major disaster. This section would require assurance by grant
applicants that they would purchase equipment and systems
compatible with the flexible and open architecture requirements
promulgated by DHS pursuant to the Intelligence Reform and
Terrorism Prevention Act of 2004, P.L. 108-458 (IRTPA). Grant
administrators would also be required to obtain assurances that
purchases would meet voluntary consensus standards developed by
DHS under section 7303(a)(1)(D) of IRTPA and would be
consistent with the common grant guidance established under
section 7303(a)(1)(H) of that Act.
New subsection 3006(h) would require the Secretary of
Homeland Security, in consultation with the FCC, to promulgate
regulations to implement the new provisions required by
Subsection 151(a) within 90 days of enactment, specifically
with respect to new subsections 3006(d) through (f).
Subsection 151(b) would require the FCC within 180 days of
enactment to streamline its process, if consistent with the
public interest, for certifying multi-mode devices such as a
wireless phone with more than one type of radio transmitter.
Subsection 151(c) would require the FCC, in coordination with
the Secretary of Homeland Security, within 1 year, to evaluate
the technical feasibility of creating a back-up emergency
communications system that takes into account next generation
and advanced technologies. In doing so, the Commission would be
required to evaluate all reasonable options, including
satellites, wireless and terrestrially-based communications
systems. The Commission would further be required to include in
its evaluation a survey of Federal agencies; the feasibility of
using private networks; the technical options, costs, and
deployment methods of software and equipment for public safety
entities; and the feasibility and cost of necessary changes to
network operations centers of terrestrial-based or satellite
systems. The Commission would also be required to submit to
Congress a report detailing its findings, including a full
inventory of existing public and private resources most
efficiently capable of providing emergency communications.
Subsection 151(d) would require the Secretary of Homeland
Security to take into consideration the role of PSAPs and E-911
systems, and to reserve a portion of the grant funds for
projects that enable interoperability and advance E-911
deployment.
Section 152. Transfer of Public Safety Grant Program to the Department
of Homeland Security
Section 152 would amend section 3006 of the Deficit Reduction
Act (DRA) to state that the interoperable communications grant
program requirements in that section shall be administered by
the Secretary of Homeland Security rather than the Assistant
Secretary of Commerce. This section would also prohibit DHS
from using grant funds for any purpose other than those
provided in section 3006 of the DRA.
Section 153. Public safety interoperable communications grants
Section 153 would require the Secretary of Homeland Security
to award the entire $1 billion authorized for grant funds no
later than September 30, 2006.
Section 154. Eligibility of IP-enabled services
Section 154 would amend section 158(b)(1)(A) of the National
Telecommunications and Information Administration (NTIA)
Organization Act to authorize Phase II implementation grants
under that Act to be used for services related to the migration
to an E-911 capable emergency network that uses Internet
Protocol and provides E-911 services.
TITLE II--UNIVERSAL SERVICE REFORM; INTERCONNECTION
General remarks on the importance of universal service
Through the years our nation's universal service program has
ensured that rural Americans have access to basic and advanced
communications services that are comparable in price and scope
to those available to any other American. Accordingly, today
all Americans enjoy the benefits that are afforded by the
resulting product of this policy, a nationwide integrated
communications network comprised of all forms of communications
technologies.
The concept of universal service has been an integral part of
America's communications policy for nearly 100 years. Initially
established as more of a regulatory scheme, the policy was
later enacted in statutory terms via the Communications Act of
1934. Congress more formally and extensively codified the
policy in detailed terms within the Telecommunications Act of
1996. Recently, this Committee held a series of hearings on the
subject of universal service and our nation's communications
policies. The overriding conclusion of these forums was that
our nation must not only maintain, but should move aggressively
to strengthen and enhance our national policy of universal
service to ensure it is able to help lead us through this
communications era and on to the next without faltering. The
dramatic changes we have observed take place with regard to
communications technologies in just the past decade mandates
that we do no less.
Accordingly the Committee had devoted an entire title of the
Communications Act of 2006 to effectuating this universal
service endeavor. The language provides a broad definition of
communications service that overcomes the dilemmas of viewing
services from a particular technological or regulatory
perspective, while at the same time giving the FCC the
flexibility it needs to craft a rational contribution
mechanism. And importantly the language includes a series of
provisions designed to ensure universal service support is
appropriately utilized and otherwise accounted for.
Section 201. Short title
SUBTITLE A--CONTRIBUTIONS TO UNIVERSAL SERVICE
Section 211. Stabilization of universal service funding
Subsection (a) would amend section 254(d) of the
Communications Act to expand the base of support for the
universal service program.
New section 254(d)(1)(A) would require communications service
providers (providers of telecommunications service , broadband
service and IP-enabled voice service) to contribute to
universal service.
New section 254(d)(1)(B) would require the Commission to
allocate contributions between such entities in a manner that
is as competitively and technologically neutral as possible,
and is specific, predictable and sufficient to preserve and
sustain universal service. In addition, any methodology would
not charge a particular service, transaction, or activity more
than once for universal service contributions under this
section. This language would not preclude a service,
transaction or activity from being assessed for both a Federal
and a State universal service program.
New section 254(d)(1)(C) would require the Commission to
adjust requirements for low volume users in setting its
contribution mechanism.
Proposed section 254(d)(2) would allow the Commission to
exempt providers from universal service contributions if
contributions would be de minimis; the communications service
is provided pursuant to the Lifeline Assistance Program; the
communications service is provided only to in-vehicle emergency
communications customers; or the communications service is
provided by a not-for-profit communications service provider,
which provides voice mailboxes to low income consumers and the
homeless. The Committee does not intend this section to reduce
or otherwise limit the FCC's existing authority under section
254 to assist low-income and disadvantaged populations to
receive communications services.
New section 254(d)(3)(A) would provide the Commission with
flexibility to assess contributions on the basis of total
revenue, in-use working phone numbers or any other identifier
protocol or network connections, or network capacity.
New section 254(d)(3)(B) would provide that the Commission
may use more than one methodology provided in new section
254(d)(3)(A) if no one methodology meets all of the goals of
supporting universal service.
New section 254(d)(3)(C) would provide the Commission with
authority in connection with contribution assessments over the
interstate, intrastate, and international portions of
communications service.
New section 254(d)(3)(D) would permit the Commission to
provide a discount for residential group or family plans if it
adopted a numbers based contribution mechanism.
New section 254(d)(4) would state that providers of
communications service are not exempt from contributing to
universal service solely because they do not receive funds from
universal service.
New section 254(d)(5) would allow any entity that contributes
to universal service to reflect the amount of the contribution
on its billing statements, but would prohibit including
administrative costs in such line item and would prohibit any
separate delineation of any administrative costs.
New section 254(d)(6) would define ``broadband service'',
``communications service'', ``in-vehicle emergency
communications'', ``connection'', ``IP-enabled voice service'',
and ``working phone numbers''.
New section 254(f) would provide additional flexibility to
States in administering State universal service programs.
States would be permitted to assess the revenue, in-use working
phone numbers or any other network connections, capacity, or
any combination thereof. This section would permit States to
impose universal service assessments on telecommunications
service and IP-enabled voice services.
Subsection 211(a)(2) would make a conforming amendment to
section 254(b)(4).
Subsection (b)(1) would hold the universal service funds
outside of the budget of the United States, the Congressional
budget, the Balanced Budget and Emergency Deficit Control Act
of 1985 or any other law requiring budget sequesters.
Subsection (b)(2) would exempt the collections and
disbursements of the universal service program from sections of
title 31 of the United States Code.
Subsection (c) would require that universal service accounts
be kept in accordance with generally accepted accounting
principles for Federal agencies and in accordance with the U.S.
Government Standard General Ledger. The subsection would limit
the investment of unexpended universal service balances to
Federal securities.
Subsection (d) would require the Commission to complete its
rulemaking implementing new section 254(d) within 180 days.
Subsection (e) would require that any rule issued under
subsection (d) be provided to Congress 90 days before its
effective date.
The Committee notes that nothing in this section should be
interpreted as precluding the Commission or States from taking
a similar approach with respect to collecting
telecommunications relay service funding.
Section 212. Modification of rural video service exemption
Subsection (a) would amend section 251(f)(1) so that certain
rural carriers could offer video service without losing the
exemption provided by section 251(f)(1), but would require such
carriers to interconnect.
Subsection (b) would extend the interconnection requirements
of section 251 to 2 percent carriers that would otherwise be
exempt.
Section 213. Interconnection
New section 715(a) would give facilities-based IP-enabled
voice service providers the same rights, duties, and
obligations as telecommunications carriers under sections 251
and 252 of the Communications Act as well as obligations under
section 276 of the Communications Act, if the provider elects
to assert such rights. The Commission shall apply this standard
in a manner that ensures that only bona fide providers of
services who are legitimately deploying facilities are able to
take advantage of the provision, but should not use it to
create barriers of entry for new providers who are deploying
facilities. The section would also provide that
telecommunications carriers cannot refuse traffic solely
because it is IP-enabled. Similarly, providers would not be
able to avoid paying compensation for interstate traffic owed
to other providers solely on the basis that the traffic is IP-
enabled.
New section 715(b) would extend the rights, obligations and
duties of sections 225, 255 and 710 to IP-enabled voice service
providers and manufacturers of IP-enabled voice service
equipment. As new Internet technologies change the way our
nation communicates and receives information, people with
disabilities will be presented with new opportunities to
enhance their independence and productivity provided that
safeguards are put into place to ensure that these individuals
are able to access these technologies to the same extent as
non-disabled Americans. This section would ensure that IP-
enabled technologies incorporate features that permit
disability access, while these technologies are still being
developed, rather than later, when retrofitting them could
become burdensome and expensive.
New section 715(c) would require IP-enabled voice service
providers to provide notice to customers with an emergency
response system that the IP-enabled voice service could impact
the functioning of their system.
New section 715(e) would clarify that this section does not
affect tax law.
New section 715(f) would define the terms ``emergency
response system'', ``emergency response center'', ``facilities-
based'', and ``IP-enabled voice service''.
Section 214. Treatment of substitute services under section 254(g)
New section 214 would extend the requirements of section
254(g) to services that are effective substitutes for
interexchange telecommunications service.
SUBTITLE B--DISTRIBUTIONS FROM UNIVERSAL SERVICE
Section 251. Encouraging broadband deployment
New section 251(a) would require an eligible communications
carrier to file biennial reports on broadband deployment to the
Commission and State Commissions detailing for each of its
service areas: (1) the percentage of households to which it
offers broadband service, (2) the percentage of households that
subscribe to broadband service, (3) the service plans and
speeds at which broadband service is offered, (4) the types of
technologies used in offering broadband service, and (5) any
planned upgrade or rollout of broadband service in the next 2
years.
New section 251(b) would provide for protection of sensitive
business information.
New section 251(c) would require the Commission to include
the data in its section 706 reports, but only in a manner that
complies with new section 251(b).
Section 252. Establishment of broadband program within universal
service fund
New section 254A(a) would establish a broadband for unserved
areas program to provide financial assistance for the
deployment of broadband equipment and infrastructure in
unserved areas. The program shall focus primarily on the
initial deployment, but may provide some ongoing financial
assistance for the first few years to ensure that a provider
has time to gain subscribers. In determining whether to provide
any continuing assistance, smaller carriers with 2 percent or
fewer of the Nation's broadband connections to end users should
be given preference, while providers with more than 2 percent
of the Nation's broadband connections to end users should be
presumed to not need continuing assistance.
New section 254A(b)(1) would require the Commission to
establish rules implementing the broadband for unserved areas
program and provides the Commission with guidance as to what
its rules should cover.
New section 254A(b)(2) would clarify that wired, wireless,
and satellite broadband providers are eligible and that
satellite broadband customer premise equipment would be
supported.
New section 254A(b)(3) would provide that the availability of
satellite broadband service in an area where subscribership to
such service is de minimis does not preclude an area from
eligibility.
New section 254A(b)(4) would state that multiple areas within
a State may be designated as unserved.
New section 254A(c) would limit the size of the fund to $500
million per fiscal year, would specify that unused funds be
applied to support section 254 generally, and would limit
support to 1 facilities-based service provider per unserved
area.
New section 254A(d) would specify that section 410 of the
Communications Act would not apply to this subsection.
New section 254A(e) would define ``broadband service'' and
require the Commission to review the transmission speeds in the
definition biannually.
New section 254(A)(f) would require the Commission to make
annual reports to Congress about the sufficiency of funds for
this program.
Funding clarification
The Committee wishes to make it absolutely clear that while
the funds authorized for this program are to be collected and
distributed by the Universal Service Administrative Company
(USAC) via the statutory and regulatory directives associated
with section 254(d) of the Communications Act as amended, that
just as is the case with all the other programs operated via
that section of Federal law, each has its own funding
authorizations and obligations and the committee does not
intend for funds collected for this program to result in any
decrease in funding for any other universal service program.
Section 253. Competitive neutrality principle
Section 253 would amend section 254(b) of the Communications
Act by adding a new paragraph that would state that universal
service support mechanisms and rules should be competitively
neutral. Such a provision would clarify that the Commission
should not unfairly favor one technology or provider over
another. For example, the Commission should not favor wireline
providers over wireless providers.
Section 254. Transition rules for modifications adversely affecting
carriers
This section would require the Commission to adopt transition
mechanisms of not less than 5 years in duration to alleviate
any harmful effect of changes to the support provided to
existing eligible communications carriers.
Section 255. Eligibility guidelines
This section amends section 214 of the Communications Act to
set forth eligibility guidelines for eligible communications
carriers.
New section 214(e)(7)(A)(i) would require eligible
communications carriers to commit to providing service
throughout their designated service area to all customers.
New section 214(e)(7)(A)(ii) would require eligible
communications carriers to certify the timely provisioning of
service so long as it can be done at a reasonable cost.
New section 214(e)(7)(A)(iii) would require eligible
communications carriers to submit a plan specifying proposed
upgrades or network improvements that would be accomplished
with universal service funding over the next two years.
New section 214(e)(7)(A)(iv) would require eligible
communications carriers to demonstrate their ability to remain
functional in emergencies.
New section 214(e)(7)(A)(v) would require eligible
communications carriers to commit to meeting applicable
consumer protection and service quality standards.
New section 214(e)(7)(vi) would require eligible
communications carriers to comply with annual reporting
requirements.
New section 214(e)(7)(B) would only apply the eligibility
criteria on prospective basis.
New section 214(e)(7)(C) would require that any application
for status as an eligible communications carrier be acted on
within 6 months. The Committee expects that the Commission
would acknowledge the differences in service areas tied to
existing plant and geographic licenses between different
providers.
New section 214(e)(7)(D) would define ``eligible
communications carrier''.
Section 256. Primary line
New section 214(e)(8) would prohibit the Commission from
limiting universal service support to a single connection or
primary line and ensure that all residential and business lines
are eligible for support.
Section 257. Phantom traffic
New section 254(m)(1) would require any telecommunications
service or IP-enabled voice service to identify its traffic
with the identity of the originating provider, the class of
service, the calling and called parties, and such other
information as the Commission deems appropriate to the extent
it is technically possible. It would also require such
information not be stripped during transport by any provider
unless permitted by the Commission. In the case of IP traffic,
it is not the Committee's intent that every packet be required
to include the identification information so long as the
information is conveyed within the whole of the packets
transmitted.
New section 254(m)(2) would require the Commission, in
consultation with State Commissions, to initiate a rulemaking
within 180 days to establish rules and enforcement provisions
for traffic identification.
New section 254(m)(3) would require the Commission to
establish and enforce clear penalties, fines and sanctions.
New section 254(m)(4) would define ``voice communication
service'' for this subsection.
Subsection (b) would make conforming edits to include
payphone calls within the definition in 47 U.S.C. 276(d).
Section 258. Random audits
New section 254(N) would require random audits of all
recipients of universal service funds regarding the receipt and
use of universal service funds. With respect to eligible
communications carriers, such audits would also examine its
relative costs to provide service compared to similar carriers.
The Commission would also be required to take appropriate
remedial action with respect to improper use of universal
service funds. The audits would be funded out of universal
service program funds.
Section 259. Integrity and accountability
Section 259(a) would require the Commission to--
(1) ensure the integrity and accountability of all
universal service programs established under sections
254 and 254A; and
(2) within 180 days--
(A) identify appropriate fiscal controls and
accountability standards for all universal
service programs;
(B) define the administrative structure and
processes of USAC;
(C) create performance goals and measures for
the program;
(D) create performance goals and measures for
the schools and libraries program; and
(E) establish appropriate enforcement actions
for rule violations and actions taken in
connection with the schools and libraries
program.
Specifically, the bill directs the Commission and USAC to
develop processes for measuring the progress of schools and
libraries toward achieving advances in connectivity goals, such
as speed and access. The Committee intends that such
performance measures reflect the Universal Service support
mechanism's longstanding mission to provide schools and
libraries with access to an evolving level of advanced
communications services and that the measures should
acknowledge schools' and libraries' unique, individual advanced
telecommunications requirements, which vary greatly by State,
school or library. For example, the State of Maine's laptop
program leverages E-rate supported connectivity in a different
way than the internal connection and classroom computers model
used in West Virginia. In another case, the Pribil School
District in Alaska graduated two students educated solely
through video conference provided through E-rate connectivity.
Data collection for the performance measure system should be
minimally burdensome on applicants. Such collection could occur
as a component of the existing application submission process.
Reporting progress as part of the application process would
enable USAC to measure progress over time and meet the GAO
Report 05-151 recommendation to collect data on private schools
and libraries, as well.
Subsection 259(b) would permanently ban any vendor that has
been convicted of a criminal fraud from participating in the
schools and libraries program.
Section 260. Improving effectiveness of rural healthcare support
mechanism
This section would amend section 254(h) of the Communications
Act.
Subsection (a)(1) would make formatting changes.
Subsection (a)(2) would add ``deployment of reasonable
infrastructure'' as part of what carriers must provide upon
request.
Subsection (a)(3)would clarify that carriers should be
reimbursed promptly.
Subsection (a)(4) would provide that public or nonprofit
healthcare providers in rural areas would be eligible for
discounts and would amend the definition of ``rural area''.
Subsections (a)(5) and (6) would expand the list of health
care providers.
Subsection (b) would clarify that nothing in this Act is
meant to alter the amount of support or the means of
distribution for the schools, libraries, rural health care,
life-line, link-up and toll limitation programs.
Subsection (c) would require that the American Community
Survey be expanded to collect Internet access information.
Section 261. Communications services for libraries
This section would amend section 254(h)(4) of the
Communications Act to clarify that Native American libraries or
library consortia are eligible to receive funds regardless of
the entity that provides such library or library consortia with
assistance under the Library Services and Technology Act.
Section 262. USF support for insular areas
This section would require the Federal Communications
Commission within 180 days of enactment to issue an order
establishing a predictable and sufficient support mechanism as
part of the Federal Universal Service Fund for eligible
carriers in insular areas. The areas covered by these rules
would expressly include any insular area that is a state
comprised entirely of islands, and would include assistance for
high-cost communications transport services used by carriers
whose service territory includes multiple noncontiguous service
areas.
TITLE III--STREAMLINING THE FRANCHISING PROCESS
In drafting the franchise title, the Committee attempted to
address concerns expressed by the local governments. These
changes include: (1) increasing the number of days for the
franchise application process from 75 to 90 days, (2) providing
the full amount of financial support for PEG channels that the
franchising authorities are currently receiving (including lump
sum payments from cable operators), (3) allowing local
governments to impose a franchise fee on the fee that charged
to subscribers, (4) striking the provision in the bill which
required all appeals to be filed with the United States Court
of Appeals for the District of Columbia Circuit, (5) including
a tax savings clause to clarify that franchise reform would not
limit local governments' authority to impose taxes, (6) and
clarifying that the scope of the provision does not extend to
video service providers, such as AT&T's Internet protocol video
offering, nor does it apply to video packages offered by
providers.
Section 301. Short title
This section would provide that title III of the
Communications Act of 2006 may be cited as ``Video Competition
and Savings for Consumers Act of 2006''.
SUBTITLE A--UPDATING THE 1934 ACT AND LEVELING THE REGULATORY PLAYING
FIELD
Section 311. Application of title VI to video services and video
service providers
This section replaces and updates certain terminology in
title VI (47 U.S.C. 521 et seq.). For example, instead of using
the term ``cable operator'', the new title VI would refer to
such entity as a ``video service provider''.
Section 312. Franchise applications; Scope
This section adds a new section 603 to title VI that would
require a franchising authority to grant a franchise
application within 90 calendar days after receiving a completed
franchise application. The terms of such agreement would take
effect 15 days after a video service provider receives a
completed franchise application from a franchising authority.
If, however, a video service provider rejects the franchising
authority's terms within that 15 day window, the terms of the
application would not take effect. Also, a franchising
authority would not be required to complete an application if
the video service provider's franchise had been previously
revoked. Section 603(c) would provide an appeals process for
applicants who are denied a franchise and who have previously
had a franchise revoked.
Upon applying for a franchise, a video service provider would
be required to use a standardized application form that would
be promulgated by the FCC. Upon receiving such franchise
application from a video service provider, a franchising
authority would be required to do several things. First, it
would be required to publish a public notice of the application
within 15 days of receipt of the application - if required to
do so by State or local law. Second, a franchising authority
would be required to complete and return the application within
90 calendar days after receiving the application from the video
service provider. It would be within the purview of the
franchising authority to decide and fill out the following
items on the application: (1) the franchise fee percentage, (2)
the number of PEG channels, (3) any fee percentage that may be
assessed to support PEG and institutional networks, and (4) the
point of contact for the franchising authority. A franchising
authority would be required to address such items in a manner
that is consistent with the requirements of this title. For
example, since this title would authorize a franchising
authority to collect up to five percent of the video service
provider's gross revenue as a franchise fee, a franchising
authority could not select a franchise fee percentage above
five percent.
If a franchising authority fails to return the franchise
application within the 90 day period, the franchise application
would be deemed granted on the 91st day with the following
terms: (1) the term of the franchise would be fifteen years,
(2) the percentage of gross revenue would be equal to the
percentage of gross revenue paid by the cable operator that has
the most subscribers in the franchise area (or five percent if
there is no cable operator in the area), and (3) the number of
PEG channels required subject to terms set forth in section
611.
Section 604. No effect on State laws of general
applicability.
This section would clarify that this title would not affect
State or local laws of general applicability unless such laws
are inconsistent with this title.
Section 605. Direct broadcast satellite service.
This section would clarify that no State or local government
could regulate direct broadcast satellite services. However,
the section would also clarify that this section could not be
interpreted to prevent a State from imposing taxes on a
provider of direct-to-home satellite service and could not be
interpreted to preempt State or local laws of general
applicability.
Section 313. Standard franchise application form
This section would amend section 612 (47 U.S.C. 532). Section
612 would require the FCC to promulgate a standard franchise
application form within 30 days of enactment. Section 612 would
require that the form include a statement that includes
specific compliance commitments to be signed by the video
service provider. Section 612 would also set forth the specific
provisions that would be required to be included in the form.
Section 314. Definitions
This section would amend section 602 (47 U.S.C. 522) to
include definitions. The Committee notes that the new
definitions of ``video service'' and ``video service provider''
are added. These new terms include all wireline multichannel
video distributors that use the public rights-of-way,
regardless of the technologies they employ, including Internet
protocol transmission or switched video. The Committee also
notes that all such distributors are also included under the
current definitions of ``cable operator,'' ``cable service,''
and ``cable system.'' Other than specifying the use of a
``closed transmission path,'' these definitions are technology-
neutral, and include providers that use Internet protocol
transmission or switched video. The Committee does not view
that any wireline multichannel video programming distributor
would have the legal authority to consider itself outside of
the existing franchise framework or the new framework which is
set forth in this legislation by bundling video services with
Internet access services or some other service. Additionally,
the definition of ``video service provider'' excludes any
person to the extent that person is providing satellite
service, ``including if such [satellite] service is bundled
with, or offered in conjunction with, an Internet access
service or other broadband capability.'' The Committee notes
that this language is only intended to exclude the combination
of a satellite video and broadband Internet access service
delivered to the same subscriber location. It is not intended
that this language exclude the provision of wireline
multichannel video service by any person in any franchise area,
even if that person is delivering video via satellite elsewhere
in that franchise area or in any other location. It also does
not exclude wireline multichannel video service that is bundled
with any other satellite-delivered service.
Section 315. Family tier study
This section would commend cable operators, satellite
providers and other multichannel video programming distributors
for engaging in a voluntary effort to offer family program
tiers. It would require all multichannel video programming
distributors to submit annually reports to the FCC on the
details of each family tier that is offered, including the
subscribership level for every tier and package offered. The
FCC would be required to keep such specific information
confidential but would be required to aggregate the information
and annually submit a report to Congress.
Section 316. Notice of inquiry on violent programming
This section would require, within 180 days of enactment, the
FCC to finish its Notice of Inquiry and issue its findings
regarding the matter of Violent Television Programming and Its
Impact on Children, MB Docket No. 04-261.
SUBTITLE B--STREAMLINING THE PROVISION OF VIDEO SERVICES
Section 331. Franchise requirements and related provisions
This section would amend section 621 (47 U.S.C. 541) by
striking section 621(a) and inserting new language that would
prevent a franchising authority from granting an exclusive
franchise or granting a franchise for a term shorter than 5
years or longer than 15 years. The section would also preserve
a local authority's right to manage public rights-of-way and
easements. It also would protect property owners by continuing
to allow State or local governments to require that property
owners be justly compensated by the video service provider for
any damage incurred by the video service provider in the
installation, construction, operation or removal of facilities.
It would require that the video service provider ensure the
safety of its facilities and ensure that the cost of
installation, construction, or removal of such facilities be
borne by the video service provider, subscriber or both.
This section would also amend section 622 (47 U.S.C. 452) by
inserting new language in subsections (a) and (b). It would
allow a franchising authority to impose and collect a franchise
fee but would not allow a franchising authority to discriminate
among video service providers in assessing such fees. The
franchise fee assessed for any 12 month period could not exceed
5 percent of the video service provider's gross revenue for
that period. It would allow fees to be paid on a prepaid or
deferred basis and would set forth the parameters for doing so.
And, it would allow for a State or local government to enter
into a voluntary agreement with a video service provider to
reduce the franchise fee in exchange for the video service
provider making available to the government any such
alternative valuable consideration such as equipment. It would
set forth that a franchising authority could require a video
service provider to pay a fee not more than 1 percent of its
gross revenue for support of PEG access facilities and
institutional networks or a proportional amount of such grants
and services for PEG calculated on a per subscriber basis. In
order to calculate the per subscriber amount, a video service
provider would be required to provide the franchising authority
with sufficient information which would be treated as
confidential and proprietary. This section would, however,
provide a special rule for Hawaii in that the per subscriber
calculation would not only apply to PEG access facilities but
would also apply to institutional networks.
In regard to existing institutional networks, a franchising
authority would be permitted to require a cable operator or
video service provider to continue providing its institutional
network even if the underlying franchise subsequently expires.
It would not require a video service provider to construct a
new institutional network. However, it would include a special
rule for Hawaii in that such requirement would not only apply
to situations where institutional networks were currently
required under a franchise but also in situations where a cable
operator had committed to provide an institutional network or
additional institutional network services.
This section also makes clear that nothing in this section is
intended to impact State or local taxation laws.
The section also would allow a franchising authority to
conduct an audit no more than once a year which would consist
of a review of the video service provider's business records to
ensure that the franchising authority is receiving the proper
amount of fees. Procedures would be established by the FCC for
these audits and a franchising authority would be required to
keep such information confidential. A video service provider
would be required to reimburse a franchising authority for the
cost of the audit if a franchising authority identifies an
underpayment of over 5 percent of any fee. A statute of
limitation would be imposed such that a franchising authority
would not be able to review any fee that was remitted or paid
more than 3 years prior.
Generally accepted accounting principles (GAAP) would be
applicable to this section.
This section would also provide the definition of ``franchise
fee'' and the definition of ``gross revenue''.
Section 332. Renewal; Revocation
This section would strike existing sections 625 and 626 and
insert a new section 625 that would allow a video service
provider to submit a written renewal application not more than
180 days before the franchise is set to expire. The standard
application form would be the form that a video service
provider would be required to use. Section 625 would also
include a revocation section that would allow a franchising
authority to revoke a franchise if it determines, after
providing the video service provider with an opportunity for a
hearing, that such provider: (1) violated any Federal or State
law or FCC regulation, relating to the provision of video
services in the franchise area, (2) made false statements, or
material omissions, in anything that it filed with the
franchising authority or the FCC relating to the provision of
video services in the franchise area, (3) violated the rights-
of-way management laws of the franchise area, or (4) violated
the terms of the franchise agreement including any commercial
agreement authorized under section 622(b)(3). Prior to revoking
any franchise, a franchising authority would be required to
first provide written notice to a video service provider of the
alleged violation and a reasonable opportunity to cure such
violation. Any decision made by a franchising authority
regarding revocation would be considered final for purposes of
appeal.
Section 333. PEG and institutional network obligations
This section would strike existing section 611 (47 U.S.C.
531) and inserts a new section that would require a video
service provider that obtains a franchise to provide at least
the same channel capacity for PEG use that the cable operator
or video service provider with the greatest number of PEG
channels provides in the franchise area on the date that the
video service provider's franchise goes into effect. If no
cable operator or video service provider exists in the area at
that time, then the video service provider could be required by
the franchising authority to provide up to 3 PEG channels. The
section would also provide an adjustment opportunity such that
every 15 years after a franchise is granted, a franchising
authority could require a video service provider to increase
the channel capacity by no more than the greater of 1
additional channel or 10 percent of the PEG channel capacity
required of the video service provider. Subject to section
624(d)(1), this section would make clear that a video service
provider could not exercise any editorial control over any PEG
channels except that it could refuse to transmit any PEG or
portion of a public access program that contains obscenity. The
section would also set forth the video service provider's
requirements including to whom it would have to provide PEG
programming to, its PEG transmission responsibilities, its PEG
interconnection and cost-sharing responsibilities, and its
display of the program information for the PEG channels. It
would also set forth that a franchising authority would be the
entity responsible for the production of any such programming.
Section 334. Services, facilities and equipment
This section would amend section 624 (47 U.S.C. 544) by
eliminating certain provisions regarding a franchising
authority's authority to establish requirements regarding
services, facilities, and equipment.
Section 335. Shared facilities
This section would strike existing section 627, redesignate
existing sections 628 and 629 as new sections 626 and 627 and
add a new section 628 regarding shared facilities that would
prohibit a video service programming provider that has an
attributable interest in a video service programming vendor
from refusing to provide access to video programming only
because that video service provider uses a headend for a video
service system that is also used under a shared ownership or
leasing agreement for another video service system. This
section would be of particular use to rural telephone
companies.
Section 336. Consumer protection and customer service
This section would replace existing section 632 (47 U.S.C.
552) and require the FCC to promulgate regulations within 120
days after the date of enactment regarding customer service and
consumer protection requirements for video service providers.
As part of its rulemaking, the FCC would be required to
consider comments from interested parties, which would include
national associations representing franchising authorities and
consumers. The regulations would include penalties to be paid
to subscribers. The regulations would take effect 60 days after
a final rule is promulgated. Such regulations would be enforced
by a franchising authority but a franchising authority could
refer an enforcement matter to a State attorney general or a
State consumer protection agency. A video service provider
would be permitted to appeal any enforcement action to the FCC.
Subsection (b) would prohibit an early termination fee in
excess of 1 month's subscription fee.
Section 337. Redlining
This section would provide redlining rules to be applied to
all video service providers. It would make it unlawful for a
video service provider to deny access to its video service to a
group due to the group's income, race, or religion. The
redlining complaints would be submitted by a resident of the
franchising area or submitted by a franchising authority on
behalf of residents in its area, but the decision to file such
a complaint in a court of competent jurisdiction shall be
subject to the discretion of the State's attorney general. The
State attorney general would be required to render a decision
on whether to file a complaint within 180 days of receiving
such complaint, either by filing such complaint with a court of
competent jurisdiction or notifying the resident or franchising
authority that it will not file a complaint with the court. Any
adjudication of such complaint would be based on the totality
of the video service provider's deployments in its service
areas. If a court determines that a redlining violation
occurred, it shall ensure that the video service provider
remedies the violation, and it may assess a civil penalty as
may be authorized by the State law for a violation of the
State's antidiscrimination laws. This section would provide
that a video service provider cannot be found in violation of
this redlining section if service is denied due to technical
feasibility, commercial feasibility, operational limitations,
or physical barriers precluding the effective provision of
video service. Additionally, the section would clarify that
this section would not authorize the use of quotas, goals, or
timetables as a remedy. The section would also require each
franchising authority to report to the Commission on a video
service provider's deployment in its franchise area starting 3
years after the date of enactment. In turn, the FCC would be
required to develop a standardized, electronic data-based,
report form to be used for this requirement. The video service
providers would be required to provide a franchising authority
with the appropriate information so that the report can be
completed. Starting within 4 years after enactment, and every 4
years thereafter, the FCC would be required to report such
information regarding buildout to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Energy and Commerce.
Section 338. Application of section 503(b)
This section would make video service providers subject to
the same penalties outlined in section 503(b) to which cable
television operators or cable television system operators are
subject.
Section 339. Application of title VII cable provisions to video
services
This section would amend title VII (47 U.S.C. 601) to include
the new terms used in this Act.
Section 340. Children's Television Act
This section would amend the Children's Television Act, 47
U.S.C. 303a(d), to include video service providers.
Section 351. Miscellaneous and conforming amendments
This section would clarify that no provision of this title
should be construed to prohibit a local or municipal authority
that is affiliated with a franchising authority from operating
as a multichannel video programming distributor in that area.
This section would also update certain dates within title VI,
repeal existing section 617, and strike sections 636 and 637.
This section would also amend title VI (47 U.S.C. 521 et
seq.) by adding a new section 642 that would govern the
offering or provision of IP-enabled video services by non-video
service providers. This section clarifies and preserves the
regulatory-free environment that has resulted in the recent
explosion of innovative video programming to consumers. Under
this new section, the offering or provision of an IP-enabled
video service is exclusively an interstate service subject only
to Federal regulations. The only authority preserved for a
State, local or tribal government is in new subsection (d),
which provides a narrow exception to the broad preemption for a
lawful activity of a law enforcement agency. This limited
exception is intended to preserve policing over obscene
materials, including child pornography. New subsection (b)
makes it clear that the scope of the provision does not extend
to video service providers, such as AT&T's video service
offering that uses Internet protocol offering, nor does it
apply to video packages offered by these providers. New
subsection (c) prohibits the FCC from enacting any rules,
regulations, or otherwise regulating the offering or provision
of an IP-enabled video service. Subsection (e) would clarify
that there is no effect on tax laws and subsection (g) makes
conforming edits.
Section 381. Effective dates; Phase-in
This section would cause the Act to become effective 180 days
after the date of enactment, except that the FCC would be
expected to initiate any rulemaking imposed under this Act as
soon as practicable after enactment. Any existing franchise
agreements would remain in effect for a cable operator until
the earlier of either the expiration of the current franchise
agreement or the date when a new franchise agreement replacing
the existing agreement goes into effect pursuant to new section
381(b)(2). When a franchising authority grants a franchise to a
video service provider, the video service provider would be
required to notify the franchising authority when the video
service commences in that area and the franchising authority
would be required to notify immediately any cable operator in
that franchise area that it is in receipt of such notice. Upon
receipt of the notice, a cable operator would be permitted to
submit an application for a new franchise under the new
streamlined provisions authorized by this Act. When the cable
operator's application is granted, the new terms and conditions
would supersede the cable operator's existing agreement. Basic
rate regulation would still apply in any franchise area until a
franchising authority receives notice that a video service
provider has begun to provide video service in the franchise
area.
TITLE IV--VIDEO CONTENT
SUBTITLE A--NATIONAL SATELLITE
Section 401. Availability of certain licensed services in noncontiguous
States
Subsection 401(a) would amend section 335 of the
Communications Act by adding a new subsection 335(c).
New subsection 335(c)(1) would require each satellite carrier
to provide consumer products in Alaska and Hawaii that are
comparable to those offered to subscribers in the contiguous
United States, to the extent technically feasible, given the
carrier's satellite constellation then in use.
New subsection 335(c)(2) would require the FCC to require
that, to the extent technically feasible, certain minimum
conditions be met before granting a license for a new satellite
used for service in the contiguous United States.
New subparagraph 335(c)(2)(A)(i) would require that in the
case of direct-to-home video services, the satellite for which
a new license is to be granted shall be capable of providing
services to consumers in the Alaskan cities of Anchorage,
Fairbanks and Juneau using signal power levels of at least 45
dBW effective isotropic radiated power and to consumers in the
Hawaiian islands of Oahu, Maui, Kauai, Molokai and Hawaii using
signal power levels of at least 46 dBW effective isotropic
radiated power.
New subparagraph 335(c)(2)(A)(ii)(I) would require that in
the case of direct-to-consumer satellite services, other than
direct-to-home video services, to be offered on a satellite for
which a new license is to be granted, the carrier shall make
best efforts to ensure that such services offered on beams
covering substantially the entire contiguous United States, are
offered in a manner that allows access by consumers in Alaska
and Hawaii that use a commercially available antenna.
Specifically, it would require that the carrier make best
efforts to ensure that the isotropic radiated downlink power
and, where applicable, the efficiency of the satellite receive
antenna (G/T) allows such use of commercially available
equipment in Alaska and Hawaii.
New subparagraph 335(c)(2)(A)(ii)(II) would require that in
the case of direct-to-consumer satellite services, other than
direct-to-home video services, to be offered on a satellite for
which a new license is to be granted, the carrier shall make
best efforts to ensure that such services offered on spot beams
covering portions of the contiguous United States, are offered
in a manner that allows access by consumers in Alaska and
Hawaii that use the same antenna as used in the contiguous
United States. Specifically, it would require that the carrier
make best efforts to ensure that the isotropic radiated
downlink power and, where applicable, the efficiency of the
satellite receive antenna (G/T) allows such use of the same
antenna in Alaska and Hawaii.
New subparagraph 335(c)(2)(B) would exempt a carrier from the
requirements of new subparagraph 335(c)(2)(A) in areas where a
satellite would have a look angle of less than 8.25 degrees.
New subparagraph 335(c)(3) defines ``satellite carrier'' as
used in subsection 335(c) to mean any entity that uses the
facilities of a satellite in the Fixed Satellite Service, the
Direct Satellite Broadcast Service, the Mobile Satellite
Service, or the Digital Audio Radio Service licensed by the FCC
under Part 25 of its rules, or that is licensed or authorized
by a foreign government.
Subsection 401(b) would provide that new subsection 335(c)
would take effect 36 months after enactment of the bill.
Subsection 401(c) would clarify that section 401 shall not be
construed as requiring any satellite carrier to take any action
the FCC determines will materially impact the signal quality or
availability of programming available to such carrier's
subscribers in the continental United States.
Subsection 401(d)(1) would require the FCC to adopt rules and
policies as necessary to implement and enforce new subsection
335(c).
Subsection 401(d)(2) would require that within 30 days after
enactment of the bill that the FCC amend its rules, promulgated
under section 207 of the 1996 Act, which prohibited
restrictions on the installation or use of direct-to-home video
service satellite dishes, to cover Hawaii. The FCC's rule which
applies to dishes 1 meter or less in diameter or that were in
Alaska would be extended to cover dishes in Hawaii as well.
In general, subtitle A is designed to assist consumers in
Alaska and Hawaii, who have historically had less access to
direct broadcast satellite (DBS) and direct-to-home (DTH)
satellite services that provide multichannel video, audio, and
broadband Internet services than consumers in the continental
United States. In particular, the Committee notes that an
increasing number of satellite companies are providing
multichannel video, audio, and broadband Internet services
directly to consumers using various types of DTH satellite
networks. While these services are being offered to consumers
in the continental United States, comparable DTH satellite
services are still not widely available to consumers in Alaska
and Hawaii. Therefore, to promote universal access to such
services, a statutory requirement that recognizes the
technological limitations of satellite carriers while advancing
the provision of comparable DBS and DTH video, audio, and
broadband Internet services in non-contiguous States is
appropriate.
Subtitle A includes language that is intended to place
conditions on FCC authorizations to launch and operate new
satellites, even if such satellites replace existing
satellites. It is not, however, intended to place conditions on
FCC authorizations to modify satellite licenses. Thus, the
Committee does not intend this language to apply where, for
example, a satellite carrier seeks to relocate a satellite from
one orbital location to another.
SUBTITLE B--VIDEO AND AUDIO FLAG
Section 451. Short title
Section 451 would provide the short title for Subtitle B of
the bill, ``Digital Content Protection Act of 2006.''
Section 452. Protection of digital broadcast video content
Subsection 452(a) would amend section 303 of the
Communications Act by adding at the end a new subsection 303(z)
authorizing the FCC to adopt regulations and certifications as
necessary to implement the FCC's report and order on digital
broadcast content protection, FCC 03-273, that was overturned
by the D.C. Circuit. The new subsection would limit the FCC's
authority to preventing the indiscriminate redistribution of
digital television content over the Internet or similar
distribution platforms and would also authorize the FCC to
modify any such regulations and certifications for such
purpose.
Subsection 452(b) would ratify the FCC's broadcast video flag
report and order, FCC 03-273, and its Digital Output Protection
Technology and Recording Method Certifications order, FCC 04-
193, subject to the limitations in subsection 452(d) of the
bill. Such ratification would become effective 12 months after
enactment of the bill.
Subsection 452(c) would require the FCC, within 30 days after
enactment of the bill, to initiate a proceeding for the
approval of broadcast flag protection technologies and
recording methods for use in the course of distance learning.
Such proceeding would be conducted in accordance with the
expedited procedures established for the Commission's Interim
Approval of Authorized Digital Output Protection Technologies
and Authorized Recording Methods in the Report and Order. This
subsection clarifies that such proceeding would have no effect
on certifications made pursuant to the order FCC 04-193, as
ratified by subsection 452(b).
Subsection 452(d)(1) would clarify that nothing in the bill
or section 303(z) as amended shall limit the FCC's authority to
approve digital output protection technologies and recording
methods that allow the redistribution of digital broadcast
content within the home or similar environment, or the use of
the Internet to transmit such content, where such technologies
and recording methods adequately protect such content from
indiscriminate redistribution. This subsection would also
clarify that nothing in the bill or section 303(z) shall be
construed to affect rights, remedies, limitations, or defenses
to copyright infringement, including fair use, under title 17
of the United States Code.
Subsection 452(d)(2) would prohibit television broadcast
station licensees from using the Redistribution Control
Descriptor adopted by the FCC's broadcast flag report and
order, FCC 03-273, to limit the redistribution of news and
public affairs programming the primary commercial value of
which depends on timeliness. This subsection would require the
FCC to allow each broadcaster or broadcasting network to
determine whether the primary commercial value of a particular
news program depends on timeliness and would authorize the FCC
to review such broadcaster determinations upon receipt of bona
fide complaints alleging, or if it otherwise has reason to
believe, that particular broadcast digital television content
has violated subsection 452(d)(2)'s limitation concerning
timeliness and commercial value.
Subsection 452(d)(3) would require the FCC to require that
any authorized redistribution control technology and recording
method publicly available under section 452 of the bill be
licensed on reasonable and nondiscriminatory terms and
conditions, including terms preserving a licensee's ability to
assert any patent rights necessary for implementation of the
licensed technology.
Section 453. Protection of digital audio broadcasting content
Subsection 453 would amend title III of the Communications
Act by adding at the end of Part I a new section 342 concerning
the protection of digital audio broadcasting content.
New subsection 342(a) would authorize the Commission to
promulgate regulations governing the distribution of audio
content with respect to digital radio broadcasts, satellite
digital radio transmissions, and digital radios.
New subsection 342(b) would require that the Commission
ensure that a performing rights society or mechanical rights
organization be granted a license for free or for a de minimis
fee, subject to certain conditions.
Section 454. Digital Audio Review Board
Subsection 454(a) would require the FCC to establish an
advisory committee known as the Digital Audio Review Board.
Subsection 454(b) would require members of the Digital Audio
Review Board to be appointed by the Chairman of the FCC and to
include representatives nominated by various industry, public
interest and artist organizations, or any other group the FCC
determines will be directly affected by the adoption of
broadcast flag technology regulations.
Subsection 454(c)(1) would require the Board to submit to the
FCC, within 1 year after enactment of the bill, proposed
regulations that represent a consensus of Board members and is
consistent with fair use principles.
Subsection 454(c)(2) would allow the FCC to extend, for good
cause shown, the 1-year period for the Board to propose audio
broadcast flag regulations by not more than 6 months if the FCC
determines that the Board has made substantial progress towards
developing a proposed regulation, Board members are continuing
to negotiate in good faith, and there is a reasonable
expectation that the Board will draft and submit a proposed
regulation before the expiration of the extension period.
Subsection 454(d)(1) would require the FCC to initiate,
within 30 days after receiving a proposed regulation from the
Board, a rulemaking proceeding to implement such regulation.
Subsection 454(d)(2) would require the FCC in the proceeding
required under subsection 454(d)(1) to give substantial
deference to the Board's proposed regulation and to issue a
final rule not later than 6 months after the date on which the
proceeding was initiated.
Subsection 454(d)(3) would authorize the FCC to initiate a
rulemaking proceeding, if the Board failed to submit a proposed
regulation, in order to determine what, if any, regulations are
necessary and, if such regulations are necessary, to promulgate
such implementing regulations as do not harm or delay the
continued roll-out of High-Definition Radio.
Subsection 454(e) would set forth certain administrative
provisions concerning the Digital Audio Review Board.
Subsection 454(e)(1) would require the Board to meet at the
request of the Chairman of the FCC.
Subsection 454(e)(2) would authorize the Chairman of the FCC
to appoint and terminate an Executive Director and such
additional personnel as may be necessary to enable the Board to
perform its duties.
Subsection 454(e)(3) would authorize the Board to procure
temporary and intermittent services of consultants and experts.
Subsection 454(e)(4) would authorize the head of any Federal
agency to, upon request of the Board, detail any Federal
Government employee to the Board without reimbursement, and
would clarify that such detail shall be without interruption or
loss of civil service status or privilege.
Subsection 454(e)(5) would clarify that notwithstanding
section 7(c) of the Federal Advisory Committee Act, the FCC
shall provide the Board with such administrative and support
services as are necessary to ensure it can carry out its
functions.
Subsection 454(e)(6) would require the Board to terminate on
the date on which it submits a proposed regulation to the
Commission or at the discretion of the FCC Chairman, but no
later than 18 months after its first meeting.
TITLE V--MUNICIPAL BROADBAND
Section 501. Short title
This section would establish the short title as the
``Community Broadband Act''.
Section 502. State regulation of municipal broadband networks
This section would amend section 706 of the
Telecommunications Act of 1996 to establish the framework under
which local governments may offer broadband capability or
services to the public.
Subsection (c) would prohibit States from adopting or
enforcing any statute, regulation, or other legal requirement
that would prohibit or have the effect of prohibiting any
municipality or public provider from offering advanced
telecommunications capability or any service that utilizes that
capability to itself or to the public.
Subsection (d)(1) would mandate that, to the extent a
municipality or public provider regulates competing providers,
it must apply its ordinances, rules, policies, and fees in a
competitively neutral and nondiscriminatory manner. Such
examples of ordinances, rules, fees or policies include those
related to managing the public rights-of-way, permitting fees,
performance bonding, and reporting.
Subsection (d)(2) would ensure that nothing in this section
exempts a municipality or a public provider from any Federal or
State telecommunications law or regulation that applies to all
providers of advanced telecommunications capability or any
service that utilizes that capability, including all applicable
provisions of the Communications Act of 1934, as amended, the
Telecommunications Act of 1996, and the Communications
Assistance for Law Enforcement Act (CALEA).
Subsection (e) encourages municipalities or public providers
to partner with a private provider of advanced
telecommunications capability and services before erecting a
municipally-owned or public system. Municipalities or public
providers that decide not to partner with a private entity are
subject to section 706(f).
Subsection (f)(1) would call for a municipality or public
provider to supply notice to the public of its intent to offer
advanced telecommunications capability or services and afford
private or commercial providers an opportunity to bid on the
offering of such capability or services. A municipality shall
use their existing notice procedures to announce to local
citizens, private providers and commercial vendors that it
intends to provide advanced telecommunications capability and
services. Nothing in this section, however, requires a public
provider to accept a proposal from the private sector.
Subsection (f)(2) would require that the notice offered under
subsection (f)(1) include services and capabilities to be
provided, the coverage area, planned service tiers and pricing,
and any particular geographically or demographically defined
services.
Subsection (f)(3) would require any bids received from
private providers be available for review by the public along
with information about the total cost to taxpayers of such a
proposal and to detail any potential alternatives. This
subsection would also require the solicitation of public
comments in response to the proposals to be filed within 30
days.
Subsection (f)(4) would allow a municipality or public
provider, after reviewing bids from private or commercial
providers, to proceed with a public or municipally owned
project. The project should be approved by the municipality
using the standard process routinely employed to approve
municipal projects of comparable costs.
Subsection (f)(5) would exempt a municipality or public
provider that is providing or upgrading advanced
telecommunications capability or services as of April 20, 2006,
or any municipality or public provider that has put forth a
proposal that as of such date is in the request-for-proposals
(RFP) process, is being built, or has been approved by
referendum but is the subject of a lawsuit brought before March
1, 2006. The exemption also applies to a municipality that
issued a Request for Interest to develop a state of the art
fiber-to-the-premises broadband network on May 22, 2006.
Subsection (g) would prohibit Federal funds from being spent
to reimburse or refund a municipality or public provider in the
event a public provider offering advanced telecommunications
capability or service falls into financial trouble or
bankruptcy subject to limited exceptions.
Subsection (h) would ensure that public providers can offer
and provide advanced communications capability and services
during a state of emergency. With respect to advanced
telecommunications capability and services provided to the
public, the provisions of the title would resume effectiveness
when the emergency situation has been resolved. To the extent
public providers use advanced telecommunications capability or
services solely to meet their own internal needs (such as for
traffic systems, utility monitoring, or police surveillance),
none of the provisions in this title apply. In addition,
section (h) would define ``public provider''.
TITLE VI--WIRELESS INNOVATION NETWORKS
Section 601. Short title
This section would establish the ``Wireless Innovation Act of
2006'' or the ``WIN Act of 2006'' as the short title.
Section 602. Eligible broadcast television spectrum made available for
wireless use
Section 602 would create a new section 343.
New section 343(a) would, 270 after the date of enactment of
the bill, authorize certified unlicensed devices to operate in
eligible broadcast television frequencies in a manner that
protects licensees from harmful interference. The Committee
notes that the Commission's standard for harmful interference
is higher than a showing of any technical interference.
New section 343(b) directs the Commission to establish
technical and device rules to protect licensees from harmful
interference. Since broadcasters are required to carry certain
emergency alerts over their authorized television channels, the
requirement in the WIN Act to protect television service from
harmful interference applies to protection of emergency alert
services carried over broadcast TV. The Committee notes that a
pilot project is being planned to deploy prototypes in Alaska
to provide a real world demonstration of some of the services
that might be possible. The Committee would expect the
Commission to take note of such demonstration. It is the
Committee's expectation that harmful interference will not
result from such a trial.
The Committee further notes that the Commission has stated it
will carefully consider the feasibility of any technical plan
for avoiding harmful interference from unlicensed devices to
existing authorized service to ensure that those services will
be adequately protected. To protect authorized broadcast
television service, the Committee urges the Commission to
consider a variety of means to prevent harmful interference
which may require different technical and operational solutions
for different types of certified unlicensed devices.
The Committee notes that it has been made aware that the
Commission has the following measures available to it, though
the Committee has no position on whether such measures would be
needed.
<bullet> unlicensed devices would operate only on
vacant channels and that they comply with appropriate
safeguards, such as limits on power and operating
frequency.
<bullet> protection requirements would be determined
in conjunction with the use of Commission's software
and engineering databases;
<bullet> installation of fixed/access devices would
be performed by a certified professional;
<bullet> unlicensed operations would be required to
comply with protection ratios for the particular
classes of broadcast stations consistent with the
relevant authorized signal contours;
<bullet> an unlicensed device would be required to
identify through GPS or other means its geographic
location within a specified measure of accuracy, to
access a database to determine the location of other
transmitters in its vicinity and to select the
appropriate operating frequency, or alternatively, to
use sensing receivers to detect the presence of other
signals and select the appropriate frequency;
<bullet> unlicensed devices would be required to emit
periodically a unique identifying control signal so
that its presence may be immediately locatable in the
event of harmful interference to authorized TV service.
<bullet> personal/portable devices would additionally
be required to comply with a 100 mW power limit and
have a permanently attached antenna with a maximum
permissible gain limit of 6dBi and to emit a unique
identifying signal periodically throughout the day
New section 343(b)(2) sets forth rules and procedures that
the Commission must follow in establishing a certification
process. The bill would require Commission certification of
unlicensed devices, which may include testing in a laboratory
certified by the Commission.
The bill also would require the Commission, if it determines
such devices may cause harmful interference, to require
manufacturers of unlicensed devices operating in vacant TV
channels to provide the capability to disable the devices
remotely or to modify their transmission characteristics
remotely. The industry has already experimented with remote
identification of devices, which would enable remote disabling
or modification. Since the Commission proposal requires these
devices to be self-identifying, approaches for harmful
interference mitigation include, among other methods,
communication with the devices via a base station, the
Internet, or a beacon. It is the Committee's intent that the
Commission have flexibility as to whether to require remote
disabling technology. It is also the Committee's expectation
that some devices deployed in the band would be less likely to
cause interference and would not need such remote capabilities.
The Commission would be required to immediately address any
complaints from licensees, including through verification in
the field, of the presence of harmful interference. The bill
would also require that public safety entities authorized to
operate as a primary licensee in the eligible broadcast
television frequencies be protected from harmful interference.
New section 343(c) would define ``certified unlicensed
device'', ``eligible broadcast television frequencies'', and
``licensee''.
The Committee seeks to encourage innovative and affordable
broadband services for all Americans, and particularly rural
Americans for whom wireless Internet access is very likely to
be the most cost-effective broadband service deployed in their
market. In addition, the Committee seeks to ensure that other
new and inventive uses can become a reality such as the use of
technologically advanced wireless networks and the wireless
office or home, where voice, video, music, data and other
applications are distributed from a single connection. The
Committee also seeks to promote more efficient use of the radio
spectrum for the benefit of the American public.
The Committee believes that the digital television transition
or standards activities do not adversely affect the
Commission's ability to act on this issue or to put in place
rules to protect broadcast television operations. As the
Commission stated in paragraph 2 of its May 2004 NPRM on TV
white spaces, ``We recognize that broadcasters are currently
undergoing a transition to digital operation, during which
channel availability is likely to change more frequently. Our
approach would appropriately account for these changes.'' In
paragraph 15 of the NPRM, the Commission further states: ``We
believe that with appropriate safeguards it would be possible
to allow unlicensed operation in the TV bands without causing
harmful interference to television services, disrupting the DTV
transition, or adversely affecting the other services that use
this spectrum.'' Nonetheless, the Committee notes that it
expects the FCC to rigorously enforce the requirement that an
unlicensed device not cause harmful interference to TV signals.
TITLE VII--DIGITAL TELEVISION
Section 701. Analog and digital television sets and converter boxes;
Consumer education and requirements to reduce the government
cost of the converter box program
Section 701 of the bill would amend section 330 of the
Communications Act by redesignating current sections in order
to insert a new subsection 330(d) concerning consumer education
requirements regarding analog television receivers and the
transition to digital television that will occur on February
17, 2009.
New subsection 330(d)(1) would require any analog only
television set manufactured in the United States or shipped in
interstate commerce for the purpose of retail sale to carry a
removable label on its screen that displays a consumer alert,
as well as a label on the outside of retail packaging for such
a set that is clear, conspicuous and cannot be removed.
New subsection 330(d)(2) would require, within 120 days after
enactment of the bill, that any retailer that sells analog only
television sets via direct mail, catalog or electronic means
include in all advertisements or descriptions of such
television set the product and digital television transition
information set forth in new subsection 330(d)(3).
New paragraph 330(d)(3)(A) would provide the specific
language to be included on consumer alert labels that new
subsection 330(d) would require to be attached to television
set screens, retail packaging or included in all advertisements
or descriptions for analog only sets sold via direct mail,
catalog or electronic means.
New paragraph 330(d)(3)(B) would require that all television
sets with a picture screen 13 inches in diameter (measured
diagonally) or greater shall be equipped with blocking
technology like the V-chip to enable viewers to block display
of all programs with a common rating.
New subsection 330(d)(4) would require the FCC to engage in a
public outreach program within 1 month after enactment of the
bill to educate consumers about the digital television
transition. This subsection would also direct the FCC to
maintain and publicize a consumer information website and
telephone hotline.
New subsection 330(d)(5) would require each commercial
television broadcast licensee or permittee to broadcast daily,
from December 1, 2007, through March 1, 2008, and again from
November 17, 2008, through February 17, 2009, two 30-second
public service announcements (PSAs) at such times as the
Commission may require in order to assure the widest possible
audience. Such PSAs would be required to be provided in English
and Spanish and other languages as appropriate, to notify the
public of the digital television transition and converter box
program, and to contain the address of the FCC consumer
information website and toll free number required by subsection
330(d)(4). The Committee intends that at least one Public
Service Announcement must be during primetime and must be aired
during the daytime hours.
New subsection 330(d)(6) would require the FCC, in addition
to any other civil or criminal penalty required by law, to
issue civil forfeitures for violations of the requirements of
new subsection 330(d) in an amount equal to not more than three
times the amount of penalties under section 503(a)(2)(A) of the
Communications Act.
New subsection 330(d)(7) would sunset after December 1, 2009
the requirements of new subsection 330(d), as they apply to
manufacturers and retailers, excluding the consumer labeling
provisions contained therein.
Subsection 701(b) would require the FCC to establish an
advisory committee to help consumers with the digital
television transition and would impose certain requirements and
guidelines for such advisory committee.
Subsection 701(b)(1) would require within 60 days of
enactment that the FCC establish an advisory committee, to be
known as the DTV Working Group, to consult with State and local
governments and the NTIA to promote consumer outreach and
provide logistical assistance to consumers with special needs,
including assistance relating to the converter box subsidy
program. The working group would be required to ensure that the
converter box subsidy program includes a means to reach and
assist elderly, disabled, low-income, and non-English speaking
households with delivery and installation of converter boxes.
Subsection 701(b)(2) would require the FCC to appoint to the
DTV Working Group representatives of groups involved with or
affected by the transition to digital television and clarifies
that Group members shall serve without compensation and shall
not be considered Federal employees by reason of their service
on the advisory committee.
Subsection 701(b)(3) would establish that the purpose of the
DTV Working Group is to advise the FCC in creating and
implementing a national plan to inform consumers about the
digital television transition; to ensure that the FCC's
national plan at a minimum includes recommended procedures for
broadcaster PSAs, toll-free information hotlines, and retail
displays or notices; and to ensure the FCC's national plan
includes a requirement that all broadcasters in a designated
market area submit a joint plan to the FCC addressing the
public outreach and PSA requirements required by title VII of
the bill. In addition, subparagraph 701(b)(3)(C) would require
that the television broadcaster joint plan required for each
designated market area (i) include a description of how each
television broadcaster will fulfill the PSA requirements under
new subsection 330(d)(7), include (ii) market research by each
commercial television broadcaster regarding projected consumer
demand for converter boxes in their designated market area, and
(iii) be shared with retailers inside their designated market
areas so that such retailers may stock the appropriate amount
of converter boxes to meet consumer needs.
Subparagraph 701(b)(3)(C) would require the working group to
work with the FCC and NITA to ensure that the converter box
subsidy program adequately serves those consumers with the
greatest need, including analog-only consumers.
Subparagraphs 701(b)(3)(D) and (E) would require the DTV
Working Group to provide the FCC with 2 DTV Progress Reports
that reflect private sector efforts to inform consumers about
the digital transition and to minimize potential consumer
disruption.
Subparagraph 701(b)(3)(F) would require that the DTV Working
Group recommend to the FCC procedures for contacting persons
with disabilities, which procedures shall include use of
telecommunications relay services for persons with hearing or
speech disabilities, distribution of printed materials in
braille, or other alternative formats for those with vision or
learning disabilities. This subparagraph would require the FCC
procedures to include other alternative formats, including
websites accessible to those with disabilities.
Subsection 701(c)(1) would amend Part I of title III of the
Communications Act by inserting a new section 303A that would
make it unlawful for a manufacturer or importer to import into
the United States or ship in interstate commerce for sale or
resale to the public, a television broadcast receiver (as
defined in section 15.3(w) of the FCC's rules) that is not
equipped with a tuner capable of receiving and decoding digital
signals.
Subsection 701(c)(2) would forbid the FCC from revising the
digital television reception capability implementation schedule
under section 15.117(i) of its regulations, except to conform
that section to the requirements of new section 303A of the
Communications Act.
Subsection 701(c)(3) would require, within 1 year after the
date of enactment, that the Assistant Secretary of Commerce for
Communications and Information, in consultation with the
Secretary of Energy, to set the energy standards for digital-
to-analog converter boxes, taking into consideration of the
cost of the converter box. The standards would be required to
meet the criteria specified in section 325(o) of the Energy
Policy and Conservation Act, 42 U.S.C. 6295(o). Such standards
would solely govern converter boxes manufactured or imported
for use in the United States on and after the effective date
established by the Assistant Secretary, but such limitation
would not apply after May 17, 2010.
Subparagraph 701(c)(3)(C) would amend section 3005(d) of the
Digital Television Transition and Public Safety Act of 2005, 47
U.S.C. 309 note, by making a conforming change.
Subsection 701(d)(1) would amend section 614(b)(4) of the
Communications Act by redesignating certain provisions and
inserting new provisions concerning the carriage of digital
broadcast television signals by cable operators and to allow
cable operators to down-convert such broadcast signals if the
licensee of the broadcast television station relies on section
614 or 615 for carriage of its signal and program-related
material on that cable operator's system in a relevant market.
This section is not intended to alter the current rules
requiring carriage of only the primary signal of the
broadcaster for each must-carry station. The use of the phrases
``digital video signal requiring carriage'' and ``digital video
signal'' in the language added by section 701(d) of the bill is
intended to refer to primary video, since that is the only
video stream ``requiring'' carriage under section 614 of the
Cable Act, and does not affect the digital must carry
obligations of cable operators.
New subparagraph 614(b)(4)(B) would require a cable operator
to carry without material degradation any digital video signal
and program-related material transmitted by a television
station transmitting broadcast programming exclusively in the
digital television service in a local market where the cable
operator's cable system is located.
New subparagraph 614(b)(4)(C) would allow a cable operator to
offer a broadcaster's digital video signal and program-related
materials in any analog or digital format or formats, whether
or not doing so requires conversion, so long as (i) the cable
operator offers the signal and material in the converted analog
or digital format without material degradation and (ii) also
offers such signal and material in the manner required by
paragraph 614(b)(4), as amended by the bill.
New subparagraph 614(b)(4)(D)(i) would require that,
notwithstanding the requirement in new subparagraph
614(b)(4)(B) to carry the digital signal and material in the
format transmitted by the local television station subject to
the prohibition on material degradation, until February 17,
2014 a cable operator shall offer the digital signal and
material in the format or formats necessary to be viewable on
analog and digital televisions and would permit such cable
operator to convert the digital signal and material to
standard-definition digital format.
New subparagraph 614(b)(4)(D)(ii) would require a cable
operator with a cable system with an activated capacity of 550
megahertz or less to offer the digital signal and material of
the local television station converted to an analog format but
would authorize such system operator to offer the digital video
signal and any program-related material in any digital format
or formats.
New subparagraph 614(b)(4)(E) would authorize a cable
operator to perform any conversion permitted or required under
new paragraph 614(b)(4) at any location, from the cable head-
end to the customer premises, inclusive.
New subparagraph 614(b)(4)(F) would clarify that any
conversion permitted or required by paragraph 614(b)(4), as
amended, would not by itself be treated as material
degradation.
New subparagraph 614(b)(4)(G) would clarify that the
obligation to carry program-related material under paragraph
614(b)(4) as amended would be effective only to the extent
technically feasible.
New subparagraph 614(b)(4)(H) would clarify that for purposes
of paragraph 614(b)(4), as amended, a signal shall be in
standard definition digital format if such signal meets the
criteria for such format specified in section 73.682 of the
FCC's rules or a successor regulation.
Subsection 701(d)(2) would amend clause (iii) of section
623(b)(7)(A) of the Communications Act to clarify that the
basic tier requirements in that provision would apply to any
analog signal and any digital video signal of any television
broadcast station that is provided by the cable operator to any
subscriber, instead of the current language which simply
mentions ``any signal.''
Subparagraph 701(d)(2)(B) would require that with respect to
any television broadcast station, subsection 701(d) and the
amendments made by paragraph 701(d)(2) shall take effect on the
date the broadcaster ceases transmissions in the analog
television service.
Subparagraph 701(d)(3) would amend section 614 of the
Communications Act by redesignating an existing subsection and
inserting a new subsection 614(h) that would clarify that for
purposes of sections 614 and 615, transmission of a digital
signal over a cable system in a compressed bitstream shall not
be considered material degradation as long as such compression
does not materially affect the picture quality the consumer
receives.
Subsection 701(e) would amend section 338 of the
Communications Act by adding at the end a new subsection 338(l)
in order to impose requirements concerning the carriage of
digital broadcast television primary video by satellite
carriers and to allow satellite carriers to down-convert such
broadcast primary video if the licensee of the broadcast
television station relies on section 338 for carriage of its
signal and program-related material on that satellite carrier's
system in a relevant market in the United States.
New subparagraph 338(l)(1) would require that, with respect
to any television broadcast station transmitting broadcast
programming exclusively in the digital television service in a
local market in the United States, a satellite carrier carrying
the digital signal of any other television broadcast station in
that local market shall carry the station's video signal
required to be carried and program-related material without
material degradation, if the licensee for that station relies
on section 338 to obtain carriage of the station's video signal
and program-related material on that satellite carrier's system
in that market.
New subparagraph 338(l)(2) would require that a satellite
carrier shall offer the video signal and program-related
material of a local television station broadcasting exclusively
in the digital television service in such station's format if
the satellite carrier carries the video signal of any other
local station in the same digital format and thus triggers the
carry-one, carry-all provisions of section 338.
New subparagraph 338(l)(3) would allow a satellite carrier to
offer the digital video signal and program-related material of
a local television broadcast station in any analog or digital
format or formats, whether or not doing so requires conversion,
so long as (i) the satellite carrier offers the signal and
material in the converted analog or digital format without
material degradation and (ii) also offers such signal and
material in the manner required by subsection 338(l), as
amended by the bill.
New subparagraph 338(l)(4) would require that,
notwithstanding the requirement in new paragraph 338(l)(1) or
(2), to carry the digital signal and material in the format
transmitted by the local television station subject to the
prohibition on material degradation, until February 17, 2014, a
satellite carrier shall offer the digital signal and material
in the format or formats necessary to be viewable on analog and
digital televisions and would permit the satellite carrier to
convert the digital signal and material to standard-definition
digital format in lieu of offering it in the digital format
transmitted by the local television station.
New subparagraph 338(l)(5) would authorize a satellite
carrier to perform any conversion permitted or required under
new subsection 338(l) at any location, from the local receive
facility to the customer premises, inclusive.
New subparagraph 338(l)(6) would clarify that any conversion
permitted or required by subsection 338(l), as amended, would
not by itself be treated as material degradation.
New subparagraph 338(l)(7) would clarify that the obligation
to carry program-related material under section 338, as
amended, would be effective only to the extent technically
feasible.
New subparagraph 338(l)(8) would clarify that for purposes of
subsection 338(l), as amended, a signal shall be in standard
definition digital format if such signal meets the criteria for
such format specified in section 73.682 of the FCC's rules or a
successor regulation.
New subparagraph 338(l)(9) would clarify that for purposes of
section 338, transmission of a digital signal by a satellite
carrier in a compressed bitstream shall not be considered
material degradation as long as such compression does not
materially affect the picture quality the consumer receives.
Section 702. Digital stream requirement for the blind
Section 702 would ratify the FCC's video description rules
for the blind that were overturned by the United States Court
of Appeals for the District of Columbia Circuit and would
require the FCC, within 45 days after the date of enactment, to
republish such rules and authorize it to amend, repeal or
otherwise modify such rules. This section would also require
the FCC to initiate a proceeding within 120 days after
enactment to consider incorporating accessible information
requirements in its video description rules and to complete
that proceeding within 1 year. The section would also require
the FCC to extend the video description rules to digital
broadcast programming and video programming as defined in
section 602(23) of the Communications Act, as appropriate in
the public interest.
Although this section states that the Commission may amend,
repeal or otherwise modify such rules, it is not intended that
these rules be repealed in their entirety. Rather, certain
rules may need to be repealed to the extent that they pertain
to the transmission of analog television programming, after the
transition to digital television programming is completed in
2009. For example, reliance on use of the secondary audio
program channel or analog-based video descriptions may be
replaced with rules that more appropriately apply to the
digital television environment.
Section 703. Status of international coordination
Section 703 would require the FCC to submit a report every 6
months to Congress on the status of international coordination
with Canada and Mexico of the DTV table of allotments until
such coordination is complete.
Section 704. Certain border stations
Section 704 would amend section 309(j)(14) of the
Communications Act to provide an additional 2 years for
Spanish-language stations that serve communities within 50
miles of the United States border with Mexico to complete the
transition to digital television, so long as such extension
does not prevent the auction of recovered analog spectrum,
prevent the use of recovered spectrum by public safety
services, or interfere with any channels reserved for public
safety use as designated in FCC ET Docket No. 97-157.
TITLE VIII--PROTECTING CHILDREN
Section 801. Video transmission of child pornography
This section would amend section 621 of the Communications
Act to require that all video service providers comply with the
Commission's regulations relative to child pornography and
would direct the Commission to promulgate regulations
preventing video service providers from offering child
pornography.
Section 802. Additional child pornography amendments
Subsection (a) would increase the fines under 42 U.S.C.
13032(b)(4) for failure to report a violation of the enumerated
sections of title 18 of the United States Code involving child
pornography.
Subsection (b) would require marks or notices to be included
in commercial websites that display sexually explicit material
and that the first page of a website not contain sexually
explicit material. The subsection would provide exceptions for
websites that restrict access to a specific set of individuals.
The FTC, in consultation with the Attorney General, would be
charged with establishing clearly identifiable marks or notices
to be used by websites. The subsection would also make clear
that the requirements apply to the website and not to services
that allow consumers to access websites. The terms ``website'',
``sexually explicit material'', ``Internet'' and ``Internet
Access Service'' would all be defined. A violation of this
subsection would be punishable by a fine, imprisonment of not
more than 5 years, or both.
Subsection (c) would amend Chapter 110 of title 18 by adding
a new section.
New section 2252C(a) would make it unlawful to embed anything
into the source code of a website to deceive another person
into viewing obscene material or deceive a minor into viewing
material that is harmful to minors.
New section 2252C(b) would define ``material harmful to
minors'', ``sex'' and ``source code''.
New section 2252(c) would set penalties of fine, imprisonment
of up to 2 years, or both, for obscene material; and a fine,
imprisonment of up to 4 years, or both, for material harmful to
minors.
Subsection (d) would amend section 2255(a) of title 18 to
ensure that any minor who has been a victim may bring suit even
after they are a minor and that the personal injury could also
extend pass when the victim was a minor. The section also
increases the amount of the deemed damages.
Section 803. Prevention of interactivity with commercial matter during
children's programming
This section would require each cable operator, video service
provider, multichannel video programming distributor, satellite
carrier, or any other provider of cable or over-the-air
children's programming to prevent any interactivity with such
programming for the purpose of selling or promoting a product,
service, or brand. The Committee would expect that children's
programming be defined as the FCC defines it.
Section 804. FCC study of bus-casting
This section would require the Commission to conduct a study
and report to Congress within six months on commercial
proposals to broadcast radio and television material to public
education students who ride school buses.
TITLE IX--INTERNET CONSUMER BILL OF RIGHTS ACT
Section 901. Short title
This section establishes the short title as the ``Internet
Consumer Bill of Rights Act of 2006''.
Section 902. Findings
This section sets forth Congressional findings. Among the key
findings are the Commission should preserve an approach that
favors the free market with respect to the Internet and an
approach that encourages the free-flow of ideas and
information.
Section 903. Consumer Internet bill of rights
Subsection (a) would establish that every Internet service
provider shall allow each subscriber to:
<bullet> Access and post any lawful content of that
subscriber's choosing.
<bullet> Access any web page of that subscriber's
choosing.
<bullet> Access and run any voice application,
software, or service of that subscriber's choosing.
<bullet> Access and run any video application,
software, or service of that subscriber's choosing.
<bullet> Access and run any email application,
software, or service of that subscriber's choosing.
<bullet> Access and run any search engine of that
subscriber's choosing.
<bullet> Access and run any other application,
software, or service of that subscriber's choosing.
<bullet> Connect any legal device of that
subscriber's choosing to the Internet access equipment
of that subscriber, if such device does not harm the
network of the Internet service provider.
<bullet> Receive clear and conspicuous information,
in plain language, about the estimated speeds,
capabilities, limitations, and pricing of any Internet
service offered to the public.
Subsection (b) would state that subscribers would enjoy the
rights enumerated under subsection (a) without any interference
from Federal, State or local government for lawful activities,
without interference from the Internet service provider,
subject only to the limitations of the service that the
subscriber purchased as may be clearly enumerated by the
Internet service provider. As a result, subject to the limits
of the service purchased, an Internet service provider cannot
interfere with a subscriber's access to any legal Internet
activity or slow down the subscriber's Internet service.
Section 904. Application of the First Amendment
This section would clarify that the First Amendment applies
to the Internet and ensures that no Federal, State, local
government or Internet service provider may alter a user's
Internet experience on the basis of religious views, political
views, or any other views expressed unless specifically
authorized by law.
Section 905. Stand-Alone Internet service shall be offered to the
public
This section would require that Internet service providers
offer any Internet service that it offers as part of a bundle
on an individual basis as well. This section does not require
that such service be offered at the same price. The intent of
the section is to help ensure that a robust Internet service
marketplace develops. The only limitation on this section would
be technical feasibility.
Section 905 does not require an Internet service provider to
make the transmission or transport component of its Internet
service separately available to a subscriber or to any other
person or entity. Nothing in section 905 prohibits an Internet
service provider from offering Internet service combined with
any other service offering, or requires such provider to offer
stand-alone Internet service at the same price as it offers
such service in combination with other services.
Section 906. Network security, worms, viruses, denial of service,
parental controls, and blocking child pornography
This section preserves the ability of an Internet service
provider to perform network management functions that are
related to the integrity and security of the network, to offer
parental controls, and to tailor services pursuant to a
subscriber's request.
Section 907. Enforcement
Subsection (a) would require the Commission to establish an
adjudicatory process under which subscribers may bring
complaints for the violation of section 903 against Internet
service providers.
Subsection (b) establishes that penalties for violations may
be up to $500,000.00, per violation.
Subsection (c) would establish that equitable relief is also
available to the Commission in enforcing this title.
Section 908. Commission prohibited from issuing regulations
This section would prohibit the Commission from promulgating
any regulations not tied to establishing the adjudicatory
process under this title. The Commission would also be
prohibited from enlarging or modifying the obligations imposed
on Internet service providers under this title.
Section 909. FCC review
Subsection (a) would direct the Commission to study the
Internet market and report annually to Congress on a number of
factors designed to ensure that Internet service providers are
not acting in a manner that would limit the consumer's Internet
experience or in a way that would lessen competition in any
industry segment tied to the Internet.
Subsection (b) would direct the Commission to make
appropriate recommendations to Congress as part of its report.
Section 910. Exceptions
Paragraph 910(1) would exclude advertising by an Internet
service provider as part of the Internet service from the
requirements of this title.
Paragraph 901(2) would exclude services in which Internet
service is a secondary and minor component from the
requirements of this title. For example, a video service
provider could offer an option, in conjunction with a video
service provided under title VI, that would allow consumers to
purchase products that they see on video programs, with
information needed to execute the transaction transmitted over
the Internet. If such transmission is limited to communications
needed to execute that transaction, that service would not
satisfy the definition of ``Internet service'' and would not be
subject to the requirements of this title. The Committee also
notes that simply bundling an Internet service with a video
service would not be interpreted as excluding the Internet
service from the obligations of this title.
Section 911. FCC to revisit broadband speeds
SEction 911 would require the Commission to review its
broadband speeds for definitional purposes on a biannual basis.
In doing so, the Commission shall ensure that it does not
define ``broadband'' in a way that disfavors a particular
technology. As as result, the Commission may need to, at some
point, define ``broadband'' differently for various service,
i.e., wireless versus wireline services.
Section 912. Protection of emergency communications
This section would clarify the duty of Internet providers to
ensure the necessary priority for the timely and effective
delivery of 911 and E-911 emergency communications.
Section 913. Definitions
This section would define the terms ``Internet service'' and
``subscriber''. The definition of subscriber is intended to
focus on those who use the Internet for their individual use
and does not include the Internet service that a company like
Google or Yahoo might purchase in connection with their
company's offerings to other Internet users.
TITLE X--MISCELLANEOUS
Section 1001. Commissioner participation in forums and meetings
Section 1001 would amend 47 U.S.C. Sec. 155 to allow more
flexibility for FCC Commissioners to meet with one another.
Section 1002. Office of Indian Affairs
Section 1002 would establish an Office of Indian Affairs
within the FCC and provide direction concerning the
relationship of such office to Tribal Governments. This section
would also set forth the purposes of such office.
Section 1003. Office of Consumer Advocate
Section 1003 would establish an Office of Consumer Advocate
within the FCC, to be headed by a Director appointed by the
FCC. This section provides that such office shall be
independent of other bureaus and offices of the FCC but that
its staff shall be bound by the same code of conduct, personnel
practices and other relevant practices and procedures as the
FCC. This section would also set forth the procedures for
appointing and removing the Director of such office, as well as
various characteristics of such position such as term,
qualifications, duties, responsibilities and authority.
Subsection 1003(g) would require that the Director of the
Office of Consumer Advocate, in exercising discretion as to
whether the Office will represent residential consumers in a
particular matter, shall consider the importance and extent of
the interests and whether those interests would be adequately
represented. In cases where there may be a conflict among or
between classes of residential consumers in a particular
matter, the Director would be authorized to choose to represent
one of the interests or none of the interests.
Subsection 1003(h) would establish an Advisory Committee to
assist the Director of the Office of Consumer Advocate in
carrying out the Director's duties, as appropriate and
reasonable. This subsection would set forth requirements
concerning such Advisory Committee's composition, and the
qualification of its members.
Subsection 1003(i) would provide that the FCC budget would
include an account separate from other FCC bureaus and offices,
which would be used exclusively by the Office in the
performance of its duties. It would also require that the
budget for the Office be separately identified in the FCC's
annual budget request and that $200,000 be authorized to be
made available to the Office for each fiscal year.
Subsection 1003(j) would clarify that the creation of the
Office shall in no way derogate the standing of any State
consumer advocate or any national association of State consumer
advocates to appear before the Commission.
Section 1004. Data on local competition in different product markets
Subsection 1004(a) of the bill would require that not later
than 180 days after enactment, and every year thereafter, the
FCC shall conduct an inquiry regarding the extent to which
providers of communications service have deployed their own
local transmission facilities.
Subsection 1004(b) would require all providers of
communications service to submit annual reports to the FCC
describing the extent to which they have deployed their own
local transmission facilities, and that in defining product
markets for such reports the FCC use the methodology set forth
in the U.S. Department of Justice and Federal Trade Commission
Horizontal Merger Guidelines, and distinguishing at a minimum
between the products demanded by residential customers, small
and medium-sized business customers and large business
customers.
Subsection 1004(c) would require that not later than one year
after enactment and each year thereafter, the FCC report to the
Congress on the extent to which providers of telecommunications
service, broadband service (at least 200 kilobits per second in
at least 1 direction) and IP-enabled voice service have
deployed their own local transmission facilities, with such
report analyzing separately the extent of actual facilities-
based competition in each wire center in the product markets
defined by the FCC for purposes of subsection 1004(b).
Subsection 1004(d) would define the following terms: (1)
``broadband service'', (2) ``communications service'', (3)
``IP-enabled voice service'', and (4) ``local transmission
facilities''.
Section 1005. Improved enforcement options
Section 1005 of the bill would amend section 503(b)(2)(B) of
the Communications Act by increasing ten-fold the penalties
that may be assessed against common carriers. This section
would also amend section 503(b)(6) to impose a statute of
limitations of 3 years for violations.
Subsection 1005(c) would amend section 503(b) of the
Communications Act to limit the circumstances under which an
independent network affiliate may be fined for violation of
title 18, United States Code.
Section 1006. Mobile services terms and conditions
Subsection 1006(a) of the bill would expand subparagraph (A)
of section 332(c)(3) of the Communications Act to preempt State
laws from regulating or adjudicating terms or conditions of
commercial mobile service or private mobile service except for
State laws of general applicability.
Subsection 1006(b) of the bill would require the FCC to adopt
within 1 year of enactment a final rule establishing customer
service and consumer protection requirements for providers of
commercial mobile service or private mobile service, as such
terms are defined in section 332 of the Communications Act.
Subsection 1006(c) would require that the amendments required
by subsection 1006(a) of the bill take effect 180 days after
the FCC adopts the final FCC rule required by subsection
1006(b).
Subsection 1006(d) would require the FCC to initiate and
conclude not later than 180 days after enactment a proceeding
to prevent a telecommunications carrier from listing any charge
or fee on a subscriber's billing statement as a separate charge
or fee unless it is a charge or fee (i) for telecommunications
service or other services provided to a subscriber, (ii) for
nonpayment, early termination of service, or other lawful
penalty, (iii) for Federal, State, or local sales or excise
taxes, or (iv) that is expressly authorized by law or
regulation to appear on a billing statement as a separately
stated charge or fee.
Section 1007. Severability
Section 1007 would provide that any provision in the Act held
to be unconstitutional shall not affect remaining provisions
not addressed by such holding.
Section 1008. Clarification of certain jurisdictional issues
Section 1008 would codify the FCC's decisions in the vonage
and pulver.com proceedings, WC Dockets No. 03-211 and 03-45,
and would prohibit the Commission from taking action to
undermine, alter or amend such decisions except to apply such
decisions to similar services sharing similar basic
characteristics. This section would also dismiss any pending
challenges to the vonage and pulver.com decisions and would
clarify that nothing in the section shall be construed to
supersede or preempt the consumer protection laws of any State,
including any privacy or anti-child pornography law of a State,
except to the extent that such laws regulate the rates for
entry or exit by a service provider.
Section 1009. FCC to issue a further notice of proposed rulemaking
before changing the broadcast media ownership rules
Section 1009 of the bill would require that before the FCC
changes section 73.3555 of its rules, as those regulations were
in effect on June 1, 2003, the FCC must issue a further Notice
of Proposed Rulemaking with respect to any such changes. This
section would declare null and void the cross-media limits rule
adopted by the FCC on June 2, 2003, pursuant to its proceeding
on broadcast media ownership rules, FCC 03-127, and would
reinstate with effect from June 2, 2003, the FCC's rule
73.3555, as those rules were in effect.
Section 1010. Diversity in media ownership
Section 1010 of the bill would prohibit the FCC from
promulgating rules regarding media ownership without first
completing its section 257 proceeding initiated on June 15,
2004, concerning localism and diversity in media ownership.
Section 1011. Broadband reporting requirements
Section 1011 of the bill would require that, within 180 days
of enactment, the FCC amend its rules requiring collection of
data twice a year through its Form 477, which provides a
snapshot of broadband deployment and local phone competition
throughout the United States. This section would require that
broadband service providers report information, by zip code
where broadband service is provided, including the percentage
of households offered service and the percentage of such
households subscribing, as well as the average price per
megabyte of download and upload speed, the broadband service's
actual average throughput, and contention ratio of the number
of users sharing the same line. The FCC would, however, be
required to exempt a broadband service provider from such
reporting requirements if a provider's compliance is cost
prohibitive, as defined and determined by the FCC. This section
would further require that, with respect to areas unserved by
any broadband service provider, the FCC use Census Bureau data
to provide an annual report to Congress with information on
such area's population, population density and average per
capita income.
Section 1012. Application of one-year restrictions to certain positions
Section 1012 of the bill would deem certain positions at the
FCC to be subject to the limitations on employment under 18
U.S.C. 207(c)(2)(A)(ii), regardless of basic pay. This would
prohibit FCC bureau chiefs and persons in similar positions at
the FCC from lobbying the FCC until one year after leaving the
FCC.
Section 1013. Internet Tax Freedom Act Amendment
Section 1013 of the bill would amend section 1101(a) of the
Internet Tax Freedom Act (47 U.S.C. 151 note) to make that Act
permanent. This would permanently extend that Act's provisions
barring State governments from taxing Internet access services,
which provisions are currently scheduled to expire on November
1, 2007.
Section 1014. Status of E-911 Implementation and Coordination Office
Section 1014 of the bill would require the NTIA and National
Highway Traffic Safety Administration to submit with 90 days of
enactment, a report to Congress on the progress of the E-911
Implementation and Coordination Office and plans of that Office
to meet the requirements established in P.L. 108-494.
Section 1015. Federal Communications Commission telemedicine report
Section 1015 would require the Commission to submit within
180 days of enactment a report to Congress concerning
telemedicine applications with regard to their use of broadband
connections, including price information for such connections.
Section 1016. Federal information and communications technology
research
Section 1016 of the bill would require the Director of the
National Science Foundation (NSF) to establish a program of
basic research regarding the availability and affordability of
advanced communications services to all Americans. It also
establishes a Federal Advanced Information and Communications
Technology Research Board within the NSF and authorizes
research grants.
Subsection 1016(b) would direct the Commission and NTIA to
develop a plan to increase the sharing of spectrum between
Federal and non-Federal Government users and to establish a
pilot program for that purpose. It also would direct the
Commission and NTIA to identify 10 megahertz of spectrum for
the pilot program and requires a report to Congress on the
program within 2 years.
Section 1017. Forbearance
Section 1017 of the bill would amend section 10 of the
Communications Act, which requires the FCC to forbear from
regulating telecommunications carriers or telecommunications
services, or classes thereof, under certain circumstances. This
section would change the current provision in section 10 by
which forbearance would be deemed to apply if the FCC does not
deny a forbearance petition within the statutory time limit and
insert a provision instead that requires a petition to be voted
on by the FCC within that time period. This section would also
clarify that the FCC may grant or deny a petition, but must do
so by majority vote.
Section 1018. Deadline for certain Commission proceedings
Section 1018 would require the FCC to complete, within 270
days of enactment its proceedings on special access rates in
FCC Dockets No. 05-25 and 01-321.
TITLE XI--LOCAL COMMUNITY RADIO ACT
Section 1101. Short title
Section 1101 would provide the short title for title XI of
the bill, the ``Local Community Radio Act of 2006.''
Section 1102. Repeal of prior law
Section 1102 would repeal language in the 2000 Commerce,
State, and Justice Appropriations bill that required the FCC to
delay the licensing of LPFM stations on third adjacent channels
to full power FM stations. See section 632 of the Departments
of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 2001 (Public Law 106-553; 114
Stat. 16 2762A-111).
Section 1103. Minimum distance separation requirements
Section 1103 would direct the FCC to modify its rules to
eliminate third adjacent minimum distance separation
requirements between LPFM stations and full power FM stations,
FM translator stations, and FM booster stations.
Section 1104. Protection of radio reading services
Section 1104 would provide interference protection to ``radio
reading service'' (RRS) stations that provide reading services
over the radio frequencies to assist the blind. These stations
broadcast using a sub-carrier frequency, which is more
susceptible to LPFM interference due to its spacing on an FM
channel. The FCC currently has a temporary rule preventing LPFM
stations from operating on a third adjacent channel to a RRS.
This section would direct the FCC to make this rule permanent.
Section 1105. Ensuring availability of spectrum for LPFM stations
Section 1105 would require the FCC when licensing FM
translator stations to ensure that licenses are available to
both FM translator stations and low-power FM stations,
according to the needs of the local community.
Section 1106. Federal Communications Commission rules
Section 1106 would direct the FCC to retain its third-
adjacent channel protection for full-power FM stations in
certain significantly populated States.
TITLE XII--CELL PHONE TAX MORATORIUM
Section 1201. Short title
Section 1201 would provide the short title for title XII of
the bill, the ``Cell Phone Tax Moratorium Act of 2006.''
Section 1202. Moratorium
Section 1202 would for three years after enactment prohibit
States and localities from levying new taxes that single out
wireless phone service, but would not affect existing taxes.
TITLE XIII--TRUTH IN CALLER ID
Section 1301. Short title
Section 1301 would provide the short title for title XIII of
the bill, the ``Truth in Caller ID Act of 2006.''
Section 1302. Prohibition regarding manipulation of caller
identification information
Section 1302 of the bill would make it unlawful to cause any
caller identification service to transmit misleading or
inaccurate caller identification information and would require
the FCC to adopt rules within 6 months of enactment to
implement such prohibition and to report to Congress as to
whether additional legislation is necessary.
TITLE XIV--RURAL WIRELESS AND BROADBAND SERVICE
Section 1401. Short title
Section 1402 would provide the short title for title XIV of
the bill, the ``Rural Wireless and Broadband Service Act of
2006.''
Section 1402. Small geographic licensing areas
Section 1402 would amend section 309(j)(4)(C) of the
Communications Act to require the FCC to consider licensing
spectrum in smaller geographic areas in order to encourage
wireless deployment and build-out in rural and underserved
areas.
Section 1403. Report on the impact of secondary market transactions
Section 1403 would amend subsection 309(j) of the Act by
adding a new paragraph 309(j)(17).
New subparagraph 309(j)(17) would require the FCC to within 2
years after enactment, and every 2 years thereafter, to report
to Congress analyzing and evaluating the impact of the FCC's
rules concerning spectrum leasing, as well as its spectrum
partitioning and spectrum disaggregation rules, in facilitating
the deployment of wireless services, particularly in rural and
underserved areas.
New subparagraph 309(j)(18) would require the FCC, in
coordination with NTIA, to develop an integrated national
database the provides detailed information about spectrum
assignments and licensing, but would specifically prohibit
providing public access to information protected under chapter
5 of title 5, United States Code, or information that if
disclosed would compromise national security.
Section 1404. Radio spectrum review
Section 1404 would amend Part I of title III of the
Communications Act by inserting a new section 344 that would
require the FCC to review spectrum use.
New subsection 344(a) would require that not later than 5
years after enactment, and every 5 years thereafter, the FCC
and NTIA shall conduct a band-by-band analysis of the spectrum
managed by each agency and report to Congress on any bands that
are not being effectively or efficiently utilized.
New subsection 344(b) would authorize the FCC and NTIA, in
conducting the analysis required by new subsection 344(a), to
require licensees and other spectrum users to provide spectrum
usage information and would exempt the collection of such
information from the Paperwork Reduction Act.
Section 1405. 700 MHz license areas
Section 1405 would require the FCC, within 180 days after
enactment, to initiate a rulemaking to reconfigure portions of
the 700 MHz band, including that portion that will contain
recovered analog spectrum to be auctioned beginning on January
28, 2008 under the Deficit Reduction Act, for small geographic
licenses areas. This section would require that such rulemaking
must consider the January 28, 2008 auction and the promotion of
infrastructure build-out and service to rural areas as well as
the competitive benefits, unique characteristics, and special
needs of regional and smaller wireless carriers. The FCC's
reconfiguration rulemaking would be subject to the restriction
in section 1406.
Section 1406. No interference with DTV transition
Section 1406 would prohibit the FCC from undertaking any
reconfiguration of the band plan under section 1405 if such
reconfiguration would be likely to delay the auction of
recovered spectrum or the terminations of licenses required by
section 3002(b) of the Deficit Reduction Act, P.L. 109-171.
Section 1407. Effective date
Section 1407 would provide that title XIV and the amendments
made by it would take effect 90 days after enactment.
[The Committee directs the FCC to complete action no later
than 6 months after enactment of this Act in the FCC's pending
proceeding regarding whether certain restrictions on antenna
installation are permissible under the FCC's Over-the-Air
Reception Devices (OTARD) Rules (ET Docket No. 05-247).]
Rollcall Votes in Committee
Senator Sununu offered an amendment to the bill that would
codify the FCC's decisions in the vonage and pulver.com
proceedings, WC Dockets No. 03-211 and 03-45, and would
prohibit the Commission from taking action to undermine, alter
or amend such decisions except to apply such decisions to
similar services sharing similar basic characteristics. The
amendment also would dismiss any pending challenges to the
vonage and pulver.com decisions and would clarify that nothing
in the section shall be construed to supersede or preempt the
consumer protection laws of any State, including any privacy or
anti-child pornography law of a State, except to the extent
that such laws regulate the rates for entry or exit by a
service provider. By a roll call vote of 14 yeas and 8 nays as
follows, the amendment was adopted.
YEAS--14 NAYS--8
Mr. McCain\1\ Mr. Burns
Mr. Lott\1\ Mr. Vitter
Mrs. Hutchison\1\ Mr. Inouye
Ms. Snowe Mr. Rockefeller\1\
Mr. Smith Mr. Kerry\1\
Mr. Ensign Mr. Dorgan
Mr. Allen Mr. Nelson of Nebraska
Mr. Sununu Mr. Pryor
Mr. DeMint
Mrs. Boxer
Mr. Nelson of Florida
Ms. Cantwell
Mr. Lautenberg
Mr. Stevens
\1\By proxy
Senator Dorgan offered an amendment to the bill that would
strike the preemption provisions added by the Sununu amendment.
By a roll call vote of 15 nays and 7 yeas, the amendment was
defeated.
YEAS--7 NAYS--15
Mr. Inouye Mr. McCain\1\
Mr. Rockefeller Mr. Burns
Mr. Kerry Mr. Lott
Mr. Dorgan Mrs. Hutchison\1\
Mr. Nelson of Florida\1\ Ms. Snowe\1\
Mr. Nelson of Nebraska\1\ Mr. Smith\1\
Mr. Pryor Mr. Ensign
Mr. Allen
Mr. Sununu
Mr. DeMint\1\
Mr. Vitter
Mrs. Boxer
Ms. Cantwell
Mr. Lautenberg\1\
Mr. Stevens
\1\By proxy
Senator Rockefeller offered an amendment that would make
available from the universal service fund amounts to pay for
discounted interoperable emergency communications equipment for
police, firemen, and medical response personnel. By a roll call
vote of 10 yeas and 12 nays as follows, the amendment was
defeated.
YEAS--10 NAYS--12
Mr. Inouye Mr. McCain\1\
Mr. Rockefeller Mr. Burns
Mr. Kerry Mr. Lott
Mr. Dorgan Mrs. Hutchison\1\
Mrs. Boxer Ms. Snowe\1\
Mr. Nelson of Florida\1\ Mr. Smith\1\
Ms. Cantwell Mr. Ensign
Mr. Lautenberg\1\ Mr. Allen
Mr. Nelson of Nebraska\1\ Mr. Sununu
Mr. Pryor Mr. DeMint\1\
Mr. Vitter
Mr. Stevens
\1\By proxy
Senator Dorgan offered an amendment that would preserve the
authority of local franchising authorities to review the sale
of video service providers as provided in current law. By a
roll call vote of 9 yeas and 13 nays as follows, the amendment
was defeated.
YEAS--9 NAYS--13
Mr. Inouye Mr. McCain\1\
Mr. Rockefeller Mr. Burns
Mr. Dorgan Mr. Lott
Mrs. Boxer Mrs. Hutchison\1\
Mr. Nelson of Florida Ms. Snowe
Ms. Cantwell\1\ Mr. Smith\1\
Mr. Lautenberg Mr. Ensign
Mr. Nelson of Nebraska Mr. Allen\1\
Mr. Pryor Mr. Sununu
Mr. DeMint\1\
Mr. Vitter\1\
Mr. Kerry
Mr. Stevens
\1\By proxy
Senator Lautenberg offered an amendment that would allow
States to enact consumer protection laws governing video
programmers. By a roll call vote of 10 yeas and 12 nays as
follows, the amendment was defeated.
YEAS--10 NAYS--12
Mr. Inouye\1\ Mr. McCain\1\
Mr. Rockefeller\1\ Mr. Burns
Mr. Kerry\1\ Mr. Lott
Mr. Dorgan Mrs. Hutchison\1\
Mrs. Boxer Ms. Snowe
Mr. Nelson of Florida Mr. Smith\1\
Ms. Cantwell Mr. Ensign
Mr. Lautenberg Mr. Allen
Mr. Nelson of Nebraska Mr. Sununu
Mr. Pryor Mr. DeMint
Mr. Vitter
Mr. Stevens
\1\By proxy
Senator Lautenberg offered an amendment that would
grandfather existing statewide video franchises adopted before
December 31, 2006. By a roll call vote of 8 yeas and 14 nays as
follows, the amendment was defeated.
YEAS--8 NAYS--14
Mrs. Hutchison\1\ Mr. McCain\1\
Mr. Inouye Mr. Burns
Mr. Rockefeller\1\ Mr. Lott
Mr. Kerry\1\ Ms. Snowe
Mr. Dorgan Mr. Smith\1\
Mrs. Boxer Mr. Ensign
Mr. Lautenberg Mr. Allen
Mr. Nelson of Nebraska Mr. Sununu
Mr. DeMint
Mr. Vitter
Mr. Nelson of Florida
Ms. Cantwell
Mr. Pryor
Mr. Stevens
\1\By proxy
Senator Dorgan offered an amendment that would broaden the
jurisdiction of the Federal Trade Commission to protect
consumers from unfair and deceptive acts by communications
carriers. By a roll call vote of 9 yeas and 12 nays as follows,
the amendment was defeated.
YEAS--9 NAYS--12
Ms. Snowe Mr. Burns
Mr. Inouye Mr. Lott\1\
Mr. Rockefeller\1\ Mrs. Hutchison\1\
Mr. Kerry Mr. Smith
Mr. Dorgan Mr. Ensign
Mrs. Boxer Mr. Allen\1\
Ms. Cantwell Mr. Sununu
Mr. Lautenberg\1\ Mr. DeMint
Mr. Pryor Mr. Vitter\1\
Mr. Nelson of Florida
Mr. Nelson of Nebraska
Mr. Stevens
\1\By proxy
Senators Kerry and Boxer offered an amendment that would
mandate build-out requirements for new video service providers.
By a roll call vote of 10 yeas and 12 nays as follows, the
amendment was defeated
YEAS--10 NAYS--12
Ms. Snowe Mr. McCain
Mr. Inouye Mr. Burns
Mr. Rockefeller Mr. Lott
Mr. Kerry Mrs. Hutchison\1\
Mr. Dorgan Mr. Smith
Mrs. Boxer Mr. Ensign
Mr. Nelson of Florida Mr. Allen
Ms. Cantwell Mr. Sununu
Mr. Lautenberg\1\ Mr. DeMint
Mr. Pryor Mr. Vitter\1\
Mr. Nelson of Nebraska
Mr. Stevens
\1\By proxy
Senator McCain offered an amendment that would promote
availability of LPFM radio stations that broadcast in a radius
of three to five miles. By a roll call vote of 14 yeas and 7
nays as follows, the amendment was adopted.
YEAS--14 NAYS--7
Mr. McCain Mr. Burns
Mr. Lott Ms. Snowe
Mr. Allen Mr. Smith\1\
Mr. Sununu Mr. Ensign
Mr. Vitter\1\ Mr. DeMint
Mr. Inouye Mr. Nelson of Nebraska
Mr. Rockefeller Mr. Stevens
Mr. Kerry\1\
Mr. Dorgan
Mrs. Boxer
Mr. Nelson of Florida\1\
Ms. Cantwell
Mr. Lautenberg
Mr. Pryor
\1\By proxy
Senators McCain, Allen, Bill Nelson and Stevens offered an
amendment that would impose a 3-year moratorium on cell phone-
specific taxes. By a roll call vote of 21 yeas and 1 nay as
follows, the amendment was adopted.
YEAS--21 NAYS--1
Mr. McCain Mr. Rockefeller
Mr. Burns
Mr. Lott
Mrs. Hutchison\1\
Ms. Snowe
Mr. Smith\1\
Mr. Ensign\1\
Mr. Allen
Mr. Sununu\1\
Mr. DeMint
Mr. Vitter\1\
Mr. Inouye
Mr. Kerry\1\
Mr. Dorgan
Mrs. Boxer
Mr. Nelson of Florida\1\
Ms. Cantwell
Mr. Lautenberg
Mr. Nelson of Nebraska
Mr. Pryor
Mr. Stevens
\1\By proxy
Senator McCain offered an amendment that would require that
multichannel video programming distributors offer their video
programming on an a la carte basis. By a roll call vote of 2
yeas and 20 nays as follows, the amendment was defeated.
YEAS--2 NAYS--20
Mr. McCain Mr. Burns
Ms. Snowe Mr. Lott
Mrs. Hutchison\1\
Mr. Smith\1\
Mr. Ensign
Mr. Allen
Mr. Sununu
Mr. DeMint
Mr. Vitter\1\
Mr. Inouye
Mr. Rockefeller
Mr. Kerry\1\
Mr. Dorgan
Mrs. Boxer
Mr. Nelson of Florida\1\
Ms. Cantwell
Mr. Lautenberg
Mr. Nelson of Nebraska
Mr. Pryor
Mr. Stevens
\1\By proxy
Senator Allen offered an amendment that would impose a
permanent moratorium on Internet access taxes. By a roll call
vote of 19 yeas and 3 nays as follows, the amendment was
adopted.
YEAS--19 NAYS--3
Mr. McCain\1\ Mr. Rockefeller
Mr. Burns Mr. Dorgan
Mr. Lott Mr. Lautenberg
Mrs. Hutchison\1\
Ms. Snowe
Mr. Smith\1\
Mr. Ensign
Mr. Allen
Mr. Sununu
Mr. DeMint
Mr. Vitter\1\
Mr. Inouye
Mr. Kerry\1\
Mrs. Boxer
Mr. Nelson of Florida\1\
Ms. Cantwell
Mr. Nelson of Nebraska\1\
Mr. Pryor\1\
Mr. Stevens
\1\By proxy
Senators Snowe and Dorgan offered an amendment that would
impose nondiscrimination obligations on broadband network
operators. By a roll call vote of 11 yeas and 11 nays as
follows, the amendment was defeated.
YEAS--11 NAYS--11
Ms. Snowe Mr. McCain\1\
Mr. Inouye Mr. Burns
Mr. Rockefeller Mr. Lott
Mr. Kerry Mrs. Hutchison\1\
Mr. Dorgan Mr. Smith
Mrs. Boxer Mr. Ensign
Mr. Nelson of Florida Mr. Allen
Ms. Cantwell Mr. Sununu
Mr. Lautenberg\1\ Mr. DeMint
Mr. Nelson of Nebraska\1\ Mr. Vitter\1\
Mr. Pryor Mr. Stevens
\1\By proxy
Senator Boxer offered an amendment that would retain basic
cable rate regulation in markets for a longer period than
provided for in the bill. By a roll call vote of 10 yeas and 12
nays as follows, the amendment was defeated.
YEAS--10 NAYS--12
Mr. Inouye Mr. McCain\1\
Mr. Rockefeller Mr. Burns
Mr. Kerry\1\ Mr. Lott\1\
Mr. Dorgan Mrs. Hutchison\1\
Mrs. Boxer Ms. Snowe
Mr. Nelson of Florida Mr. Smith\1\
Ms. Cantwell Mr. Ensign\1\
Mr. Lautenberg\1\ Mr. Allen
Mr. Nelson of Nebraska\1\ Mr. Sununu
Mr. Pryor Mr. DeMint
Mr. Vitter\1\
Mr. Stevens
\1\By proxy
Senator Inouye offered an amendment that would strike the
bill in its entirety and replace it with a complete substitute.
By a roll call vote of 10 yeas and 12 nays as follows, the
amendment was defeated.
YEAS--10 NAYS--12
Mr. Inouye Mr. McCain\1\
Mr. Rockefeller Mr. Burns
Mr. Kerry\1\ Mr. Lott\1\
Mr. Dorgan Mrs. Hutchison\1\
Mrs. Boxer Ms. Snowe
Mr. Nelson of Florida Mr. Smith\1\
Ms. Cantwell Mr. Ensign\1\
Mr. Lautenberg Mr. Allen
Mr. Nelson of Nebraska\1\ Mr. Sununu
Mr. Pryor Mr. DeMint
Mr. Vitter\1\
Mr. Stevens
\1\By proxy
The Full Committee ordered H.R. 5252 to be reported favorably
with amendments by a roll call vote of 15 yeas and 7 nays as
follows.
YEAS--15 NAYS--7
Mr. McCain Mr. Rockefeller
Mr. Burns Mr. Kerry\1\
Mr. Lott\1\ Mr. Dorgan
Mrs. Hutchison\1\ Mrs. Boxer
Ms. Snowe Mr. Nelson of Florida
Mr. Smith\1\ Ms. Cantwell
Mr. Ensign\1\ Mr. Lautenberg
Mr. Allen
Mr. Sununu
Mr. DeMint
Mr. Vitter\1\
Mr. Inouye
Mr. Nelson of Nebraska\1\
Mr. Pryor
Mr. Stevens
\1\By proxy
ADDITIONAL VIEWS OF SENATORS INOUYE, DORGAN, AND BOXER
While some of us opposed the Advanced Telecommunications and
Opportunity Reform Act of 2006 (H.R. 5252) and others of us
voted to report this bill out of committee, all of us agree
that the major provisions of this bill--which were virtually
unchanged through the Committee process--fail to meaningfully
advance the cause of competition without eviscerating important
consumer protections. With respect to video franchising, the
bill would adopt a new framework that would eliminate important
consumer protections, widen our nation's ``digital divide'' and
override recent State efforts to streamline entry and promote
meaningful competition.
With respect to network neutrality, the bill wholly fails to
reestablish needed protections that would prohibit broadband
network operators from unfairly discriminating against rival
providers of communications services. Such an omission ignores
the lessons of history as well as the recent statements of Bell
executives who have openly expressed their desire to use their
bottleneck control over network transmission as a means to
charge service providers for access to broadband customers.
Without stronger statutory protections, the ``rights'' granted
to consumers in this legislation will be cold comfort to
consumers whose choices will be controlled by the decisions of
network gatekeepers.
And finally, we remain concerned that a variety of provisions
in the bill preempting State authority have not received
sufficient scrutiny and represent emotional reactions to
concerns about the impact of State regulation on the growth of
communications services. As a result, we think greater care and
attention to these issues must be given by Congress in order to
avoid the unintended consequences of such actions.
While we recognize that many items in the Senate
communications bill are either noncontroversial or have been
improved through the committee amendment process, the presence
of such items does not outweigh our substantial concerns with
core components of the bill. As a result, without significant
improvements to the current bill on these key issues, we cannot
support further consideration of this legislation in the 109th
Congress.
The Senate bill fails to promote innovation and competition
by prohibiting broadband network operators from unfairly
discriminating against their rivals.
Over a relatively short period in our nation's history, the
Internet has grown from a university research project into a
robust engine for innovation, economic growth, social
discourse, and the free flow of ideas. Its rapid evolution has
been fueled not only by the ``end-to-end'' principle, which
guided its original architectural design, but also by specific
legal protections pre-dating the original Communications Act of
1934 that required operators of communications networks to
abide by principles of nondiscrimination.
These protections have been critical to the growth of the
Internet. Because networks have been managed neutrally and
without bias, they have supported a free market for innovation
and consumer choice that has encouraged entrepreneurs and
innovators to launch businesses without any fear that a
gatekeeper would prevent them from reaching potential
customers. This important safeguard against discrimination and
prohibitive access costs has prompted an explosion of
investment and innovation at the edges of the network. As one
of the fathers of the Internet, Vint Cerf, testified before
Congress: the Internet represents ``innovation without
permission.'' But that is not an accident; it is a product of
specific legal protections that were in place until August 2005
and now have been swept away.
The core value behind this principle of nondiscrimination is
that consumers and the marketplace can better decide what
content will succeed or fail on the Internet, and not a
telephone or cable company executive. With these legal
protections in place, anyone with a good idea has been able to
use the Internet to connect with consumers and to compete on a
level playing field for consumers' business. As a result, the
marketplace has picked winners and losers, and not a central
gatekeeper. This bedrock concept of connecting innovators and
consumers without interference--commonly referred to as ``net
neutrality''--has been a hallmark feature of the Internet and
is a principal reason why America leads the world in online
innovation. But had the narrowband Internet of the 1990s been
limited only to content chosen by the local telephone
companies, it never would have developed into the broadband
Internet of 2006.
There is a critical need for nondiscrimination rules to be
restored, because the market cannot solve this problem. The
broadband market is not competitive today, nor will it be for
the foreseeable future. No competition means broadband
operators can do whatever they want, and consumers have little
or no choice but to accept that bad outcome. The latest Federal
Communications Commission report on broadband shows that the
local cable and telephone companies have a 98 percent share of
the national broadband residential access market. However, even
these statistics significantly overstate the case of
competition as they rely on the assumption that providers
offering broadband to any subscriber in a zip code similarly
provide such service to all subscribers in that zip code. As
noted by Government Accountability Office in May 2006, this
methodology ``overstates the level of competition to individual
households'' and obscures the fact that the median number of
broadband providers available to consumers is two. Experts
appearing before the Committee indicated that the duopoly
situation will not change any time soon. As a consequence of
this lack of competition, the market provides no protection
against anti-competitive or discriminatory behavior. When
consumers have at best two options for broadband providers, and
many consumers have just one option, there is a market failure
and additional protections are needed.
Regrettably, provisions in the Senate bill addressing the
issue of ``net neutrality'' fall well short of providing
effective protection against unfair discrimination by broadband
network operators.
First, the Senate bill fails to include any provisions to
protect rival content and applications providers from unfair
discrimination by network operators. Under Title IX of the
bill, network operators would be free to give special treatment
to favored service providers, or no service to disfavored
providers. As a result, such power could be used to frustrate
competition through the creation of a ``two-tiered'' Internet
where network operators control which content and service
providers would be allowed to access Internet ``fast lanes''
and which providers would be relegated to an increasingly
crowded ``slow lane.''
Second, the so-called ``consumer rights'' set forth in the
Senate bill are insufficient to protect consumers' interest in
fair and open competition on the Internet. Because the newly
created ``rights'' in the bill apply only to Internet
``subscribers,'' the bill fails to recognize that
discriminatory decisions made by network operators against
rival providers have a profound impact on both the nature and
quality of the choices available to consumers. As a result, the
absence of nondiscriminatory protections in the bill seriously
undermines the value of these new rights.
Third, the Senate bill would unwisely limit the FCC's
authority to address problems of discriminatory behavior. By
expressly barring the FCC from issuing rules to remedy
discriminatory practices or from modifying the obligations
imposed on ISPs through the adjudicatory process, the bill
would unwisely curtail the authority of the Commission to act
in the public interest to remedy unanticipated problems.
During consideration of H.R. 5252 in committee, Senators
Snowe, Dorgan, Kerry, Boxer and Cantwell offered an amendment
to remedy the legislation's failure to preserve the fundamental
principle of nondiscrimination that had shaped the development
and growth of the Internet and had been in place until recent
Federal Communications Commission and Supreme Court decisions.
This amendment failed on a tie 11-11 vote.
Importantly, this amendment would have allowed broadband
operators to offer their customers differing speed or price
options for broadband services, or to prioritize certain
categories of traffic, for example, to slow down spam or
prioritize video services. However, the Snowe-Dorgan amendment
would ensure that a broadband operator could not discriminate
according to the source or ownership of Internet content.
Network operators would not be permitted to pick winners and
losers for consumers. Instead, consumers would keep the power
to choose for themselves.
The Internet has never operated on a model where a broadband
operator looks at who is sending the traffic; it should only
look at what it is--is it video, is it spam? Broadband
operators should be able to manage the network to deliver types
of traffic in an efficient manner; they should not be able to
manage the network based on the source of the content (such as
an affiliate) or how much a content provider can afford to pay
to reach the consumer.
H.R. 5252 purports to promote broadband and video
competition. Yet without provisions to protect this core
Internet freedom, the legislation will allow broadband
operators to use the networks built as a result of this bill
and then act in discriminatory and anti-competitive ways toward
Internet content, service and applications providers that rely
on these broadband networks to reach consumers. Consumers will
lose the free and open Internet that has spurred innovation and
rapid development in education, medicine, business, and
broadband deployment. Instead, it will be subject to the
demands and criteria of those that control the networks.
The Senate bill will exacerbate America's ``digital divide''
through its failure to require cable and telephone network
operators to upgrade their systems uniformly over a reasonable
period of time.
Traditional cable franchises generally contain standard terms
requiring operators to provide service to all households within
a franchise area, subject to certain density requirements. This
obligation is reasonable and appropriate given the permission
granted by the community to the operator for use of the public
rights-of way. In contrast, the Senate version of H.R. 5252
eliminates the current mode of franchising that relies on
``negotiated agreements'' and instead establishes a ``form
agreement'' that States and localities must use and that
imposes no obligation on video service providers to extend
services to all households in a community within a reasonable
period of time.
In the absence of a requirement on operators to upgrade their
networks uniformly over a reasonable period of time, such
operators will selectively pick and choose to upgrade some
neighborhoods and will ignore others where profit margins are
not as high. If such ``cherry-picking'' is allowed, it will
mean that only certain ``high-value'' households will receive
the benefits of new competition from phone companies and that
cable companies would similarly be able to target future
upgrades to particular neighborhoods.
Morever, because the framework for franchising created under
the bill applies not only to new entrants, but also to
incumbent cable operators, such operators will be allowed to
escape existing service obligations upon the expiration of
their existing terms whether or not a new competitor begins
providing competitive service in the franchise area. At best,
this will mean that future network upgrades by incumbent
operators will no longer be subject to requirements that ensure
universal availability within a franchise area. At worst, it
will permit incumbent cable operators to withdraw from less
profitable areas where they currently provide service, even
where no new competitive alternatives exist.
Finally, the likelihood of discriminatory deployment of
broadband networks is not lessened by the bill's new, anti-
redlining provisions. Indeed, anti-redlining provisions in the
past have only been effective because they exist in tandem with
the ability of local governments to require service to all
homes over time. In contrast, the new redlining provisions
weaken, rather than strengthen, protections in existing law, by
limiting enforcement to the discretion of the State Attorney
General rather than the franchise area in question, and by
creating gaping loopholes where an operator could be excused
from liability on the basis of ``commercial feasibility'' even
though redlining prohibitions emphatically state that
discrimination on the basis of household income is forbidden.
To remedy these concerns and to ensure that video providers
extend their networks to all households within their existing
network footprint, Senators Kerry and Boxer offered an
amendment during the mark-up to require video service providers
to build out service to every household in the community as
most cable companies have done for two decades.
Under the Amendment, build out obligations were tied to two
factors-time and the establishment of effective competition.
This plan would place no requirements on the new video provider
for 3 years. The operator would be free to pick and choose
where it goes and serve whomever it pleases, subject to the
anti-redlining provisions in the bill. After three years, if
the company has captured 15 percent of the market in the
service area it has chosen, it would be required to expand its
service area by 20 percent of the households in the local
franchise area served by the cable incumbent. This pattern
would be repeated every 2 years, incrementally achieving
universal availability of video competition. The FCC was
empowered to grant exemptions. This is a less aggressive build-
out schedule than what is being negotiated in the private
market. In fact, telephone companies have negotiated franchise
agreements that include robust build-out requirements. In
Fairfax County, Virginia, for example, a telephone company
agreed to the same build-out schedule as the incumbent cable
operators-full build out in 7 years.
The amendment failed by a vote of 10 to 12, and the bill
reported out of Committee includes no build out requirement of
any kind. If Congress is to federalize the franchising process,
it must include mandatory build out requirements that guarantee
that every household, regardless of income, race or location
will receive the benefits of competition and new technologies
over time. Universal affordable availability of the same
technologies and services to every family is the necessary
outcome. Our policies must deliver on that promise.
The Senate bill eliminates long-standing consumer protections
under Title VI and drastically curtails the role of State and
local governments in protecting their citizens.
In addition to creating a new, Federal ``form agreement'' for
video franchising, the bill eliminates a number of provisions
in current law that either reserve certain powers to
franchising authorities or impose specific obligations on cable
operators. Specifically, the bill: (1) eliminates requirements
to provide ``leased access'' channels (section 612); (2)
eliminates the authority of franchising authorities to review
the sale of cable systems (section 617); (3) sunsets basic rate
regulation immediately where a new entrant provides video
service to even one household (compared to current section 623
which sunsets basic rate regulation upon a finding of
``effective competition''); and (4) eliminates the authority of
States and local franchising authorities to adopt and enforce
their own consumer protection requirements (as is currently
allowed under section 632).
Perhaps most troubling is the fact that many of these
deregulatory changes are not tied to the emergence of new
competition. As a result, because the Senate bill allows
incumbent cable operators to obtain a ``form franchise'' upon
the expiration of their current franchise term, such
obligations under current law will expire regardless of whether
a new video competitor is providing service within the
franchise area.
The Senate bill overrides current efforts to streamline the
franchising process, including new State laws that promote
deployment and ensure fair treatment to consumers.
Under the current framework in title VI of the Communications
Act, a number of States have adopted procedures to promote fair
competition and streamline the process for competitive entry.
For example, in Hawaii, Alaska, and Vermont, existing State law
expedites the entry process by giving sole responsibility for
the issuance of new video franchises to a single State
authority. More recently, a number of other States, including
Virginia, New Jersey, and California, have enacted new laws
carefully crafted to balance the interests of new providers in
expediting the franchising process with the interests of
consumers in ensuring that new communications capabilities will
be made widely deployed throughout their community. As one
analyst has noted, in just the past year franchise reform
legislation has been enacted that covers roughly 60 percent of
AT&T's lines and 33 percent of Verizon's lines. Unfortunately,
the Senate bill would replace these constructive improvements
occurring at State and local levels with a new framework that
fails to protect consumers and advance the public interest.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2001
[P.L. 106-553; 114 Stat. 2762A-111]
[Sec. 632.(a)(1) The Federal Communications Commission shall
modify the rules authorizing the operation of low-power FM
radio stations, as proposed in MM Docket No. 99-25, to--
[(A) prescribe minimum distance separations for
third-adjacent channels (as well as for co-channels and
first- and second-adjacent channels); and
[(B) prohibit any applicant from obtaining a low-
power FM license if the applicant has engaged in any
manner in the unlicensed operation of any station in
violation of section 301 of the Communications Act of
1934 (47 U.S.C. 301).
[(2) The Federal Communications Commission may not--
[(A) eliminate or reduce the minimum distance
separations for third-adjacent channels
required by paragraph (1)(A); or
[(B) extend the eligibility for application
for low-power FM stations beyond the
organizations and entities as proposed in MM
Docket No. 99-25 (47 CFR 73.853),except as
expressly authorized by an Act of Congress
enacted after the date of the enactment of this
Act.
[(3) Any license that was issued by the Commission to
a low-power FM station prior to the date on which the
Commission modifies its rules as required by paragraph
(1) and that does not comply with such modifications
shall be invalid.
[(b)(1) The Federal Communications Commission shall conduct
an experimental program to test whether low-power FM radio
stations will result in harmful interference to existing FM
radio stations if such stations are not subject to the minimum
distance separations for third-adjacent channels required by
subsection (a). The Commission shall conduct such test in no
more than nine FM radio markets, including urban, suburban, and
rural markets, by waiving the minimum distance separations for
third-adjacent channels for the stations that are the subject
of the experimental program. At least one of the stations shall
be selected for the purpose of evaluating whether minimum
distance separations for third-adjacent channels are needed for
FM translator stations. The Commission may, consistent with the
public interest, continue after the conclusion of the
experimental program to waive the minimum distance separations
for third-adjacent channels for the stations that are the
subject of the experimental program.
[(2) The Commission shall select an independent
testing entity to conduct field tests in the markets of
the stations in the experimental program under
paragraph (1). Such field tests shall include--
[(A) an opportunity for the public to comment
on interference; and
[(B) independent audience listening tests to
determine what is objectionable and harmful
interference to the average radio listener.
[(3) The Commission shall publish the results of the
experimental program and field tests and afford an
opportunity for the public to comment on such results.
The Federal Communications Commission shall submit a
report on the experimental program and field tests to
the Committee on Commerce of the House of
Representatives and the Committee on Commerce, Science,
and Transportation of the Senate not later than
February 1, 2001. Such report shall include--
[(A) an analysis of the experimental program
and field testsand of the public comment
received by the Commission;
[(B) an evaluation of the impact of the
modification orelimination of minimum distance
separations for third-adjacentchannels on--
[(i) listening audiences;
[(ii) incumbent FM radio broadcasters
in general, and on minority and small
market broadcasters in particular,
including an analysis of the economic
impact on such broadcasters;
[(iii) the transition to digital
radio for terrestrial radio
broadcasters;
[(iv) stations that provide a reading
service for the blind to the public;
and
[(v) FM radio translator stations;
[(C) the Commission's recommendations to the
Congress to reduce or eliminate the minimum
distance separations for third-adjacent
channels required by subsection (a); and
[(D) such other information and
recommendations as the Commission considers
appropriate.]
UNITED STATES CODE
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 110. SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Sec. 2252C. Misleading words or images on the Internet
(a) In General.--
(1) Matter that is obscene.--It is unlawful for any
person knowingly to embed words, symbols, or digital
images into the source code of a website with the
intent to deceive another person into viewing material
that is obscene.
(2) Matter that is harmful to children.--It is
unlawful for any person knowingly to embed words,
symbols, or digital images into the source code of a
website with the intent to deceive a minor into viewing
material that is harmful to minors.
(3) Identified matter not deceptive.--For purposes of
this section, a word, symbol, or image that clearly
indicates the sexual content of a website as sexual,
pornographic, or similar terms shall not be considered
to be misleading or deceptive.
(b) Definitions.--In this section:
(1) Material harmful to minors.--The term ``material
that is harmful to minors'' means a communication
consisting of nudity, sex, or excretion that, taken as
a whole and with reference to its content--
(A) predominantly appeals to a prurient
interest of a minor;
(B) is patently offensive to prevailing
standards in the adult community as a whole
with respect to what is suitable material for
minors; and
(C) lacks serious literary, artistic,
political, or scientific value for minors.
(2) Sex.--The term ``sex'' means acts of
masturbation, sexual intercourse, or physical contact
with a person's genitals, or the condition of human
male or female genitals when in a state of sexual
stimulation or arousal.
(3) Source code.--The term ``source code'' means the
combination of text and other characters comprising the
content, both viewable and nonviewable, of a web page,
including any website publishing language, programming
language, protocol, or functional content.
(c) Penalties.--
(1) Obscene material.--Violation of subsection (a)(1)
is punishable by a fine under this title, or
imprisonment for not more than 2 years, or both.
(2) Material harmful to minors.--Violation of
subsection (a)(2) is punishable by a fine under this
title, or imprisonment for not more than 4 years, or
both.
Sec. 2255. Civil remedy for personal injuries
[(a) Any minor who is] (a) In General._Any person who, while
a minor, was a victim of a violation of section 2241(c), 2242,
2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of
this title and who suffers personal injury as a result of [such
violation] such violation, regardless of whether the injury
occurred while such person was a minor, may sue in any
appropriate United States District Court and shall recover the
actual damages [such minor] such person sustains and the cost
of the suit, including a reasonable attorney's fee. [Any minor]
Any person as described in the preceding sentence shall be
deemed to have sustained damages of no less than [$50,000]
$150,000 in value.
[(b) Any action] (b) Statute of Limitations._Any action
commenced under this section shall be barred unless the
complaint is filed within six years after the right of action
first accrues or in the case of a person under a legal
disability, not later than three years after the disability.
CRIME CONTROL ACT OF 1990
SEC. 227. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.
[42 U.S.C. 13032]
(a) Definitions.--In this section--
(1) the term ``electronic communication service'' has
the meaning given the term in section 2510 of title 18,
United States Code; and
(2) the term ``remote computing service'' has the
meaning given the term in section 2711 of title 18,
United States Code.
(b) Requirements.--
(1) Duty to report.--Whoever, while engaged in
providing an electronic communication service or a
remote computing service to the public, through a
facility or means of interstate or foreign commerce,
obtains knowledge of facts or circumstances from which
a violation of section 2251, 2251A, 2252, 2252A, 2252B,
or 2260 of title 18, United States Code, involving
child pornography (as defined in section 2256 of that
title), or a violation of section 1466A of that title,
is apparent, shall, as soon as reasonably possible,
make a report of such facts or circumstances to the
Cyber Tip Line at the National Center for Missing and
Exploited Children, which shall forward that report to
a law enforcement agency or agencies designated by the
Attorney General.
(2) Designation of agencies.--Not later than 180 days
after the date of enactment of this section, the
Attorney General shall designate the law enforcement
agency or agencies to which a report shall be forwarded
under paragraph (1).
(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National
Center for Missing and Exploited Children is authorized
to forward any such report to an appropriate official
of a state or subdivision of a state for the purpose of
enforcing state criminal law.
(4) Failure to report.--A provider of electronic
communication services or remote computing services
described in paragraph (1) who knowingly and willfully
fails to make a report under that paragraph shall be
fined--
(A) in the case of an initial failure to make
a report, not more than [$50,000;] $150,000;
and
(B) in the case of any second or subsequent
failure to make a report, not more than
[$100,000.] $300,000.
(c) Civil Liability.--No provider or user of an electronic
communication service or a remote computing service to the
public shall be held liable on account of any action taken in
good faith to comply with or pursuant to this section.
(d) Limitation of Information or Material Required in
Report.--A report under subsection (b)(1) may include
additional information or material developed by an electronic
communication service or remote computing service, except that
the Federal Government may not require the production of such
information or material in that report.
(e) Monitoring not Required.--Nothing in this section may be
construed to require a provider of electronic communication
services or remote computing services to engage in the
monitoring of any user, subscriber, or customer of that
provider, or the content of any communication of any such
person.
(f) Conditions of Disclosure of Information Contained Within
Report.--
(1) In general.--No law enforcement agency that
receives a report under subsection (b)(1) shall
disclose any information contained in that report,
except that disclosure of such information may be
made--
(A) to an attorney for the government for use
in the performance of the official duties of
the attorney;
(B) to such officers and employees of the law
enforcement agency, as may be necessary in the
performance of their investigative and
recordkeeping functions;
(C) to such other government personnel
(including personnel of a State or subdivision
of a State) as are determined to be necessary
by an attorney for the government to assist the
attorney in the performance of the official
duties of the attorney in enforcing Federal
criminal law; or
(D) where the report discloses a violation of
State criminal law, to an appropriate official
of a State or subdivision of a State for the
purpose of enforcing such State law.
(2) Definitions.--In this subsection, the terms
``attorney for the government'' and ``State'' have the
meanings given those terms in Rule 54 of the Federal
Rules of Criminal Procedure.
INTERNET TAX FREEDOM ACT
SEC. 1101. MORATORIUM.
[47 U.S.C. 151 note]
(a) Moratorium.--No State or political subdivision thereof
may impose any of the following [taxes during the period
beginning November 1, 2003, and ending November 1, 2007:]
taxes:
(1) Taxes on Internet access.--
(2) Multiple or discriminatory taxes on electronic
commerce.
(b) Preservation of State and Local Taxing Authority.--Except
as provided in this section, nothing in this title shall be
construed to modify, impair, or supersede, or authorize the
modification, impairment, or superseding of, any State or local
law pertaining to taxation that is otherwise permissible by or
under the Constitution of the United States or other Federal
law and in effect on the date of enactment of this Act.
(c) Liabilities and Pending Cases.--Nothing in this title
affects liability for taxes accrued and enforced before the
date of enactment of this Act, nor does this title affect
ongoing litigation relating to such taxes.
(d) Exception to Moratorium.--
(1) In general.--Subsection (a) shall also not apply
in the case of any person or entity who knowingly and
with knowledge of the character of the material, in
interstate or foreign commerce by means of the World
Wide Web, makes any communication for commercial
purposes that is available to any minor and that
includes any material that is harmful to minors unless
such person or entity has restricted access by minors
to material that is harmful to minors--
(A) by requiring use of a credit card, debit
account, adult access code, or adult personal
identification number;
(B) by accepting a digital certificate that
verifies age; or
(C) by any other reasonable measures that are
feasible under available technology.
(2) Scope of exception.--For purposes of paragraph
(1), a person shall not be considered to making a
communication for commercial purposes of material to
the extent that the person is--
(A) a telecommunications carrier engaged in
the provision of a telecommunications service;
(B) a person engaged in the business of
providing an Internet access service;
(C) a person engaged in the business of
providing an Internet information location
tool; or
(D) similarly engaged in the transmission,
storage, retrieval, hosting, formatting, or
translation (or any combination thereof) of a
communication made by another person, without
selection or alteration of the communication.
(3) Definitions.--In this subsection:
(A) By means of the world wide web.--The term
``by means of the World Wide Web'' means by
placement of material in a computer server-
based file archive so that it is publicly
accessible, over the Internet, using hypertext
transfer protocol, file transfer protocol, or
other similar protocols.
(B) Commercial purposes; engaged in the
business.--
(i) Commercial purposes.--A person
shall be considered to make a
communication for commercial purposes
only if such person is engaged in the
business of making such communications.
(ii) Engaged in the business.--The
term ``engaged in the business'' means
that the person who makes a
communication, or offers to make a
communication, by means of the World
Wide Web, that includes any material
that is harmful to minors, devotes
time, attention, or labor to such
activities, as a regular course of such
person's trade or business, with the
objective of earning a profit as a
result of such activities (although it
is not necessary that the person make a
profit or that the making or offering
to make such communications be the
person's sole or principal business or
source of income). A person may be
considered to be engaged in the
business of making, by means of the
World Wide Web, communications for
commercial purposes that include
material that is harmful to minors,
only if the person knowingly causes the
material that is harmful to minors to
be posted on the World Wide Web or
knowingly solicits such material to be
posted on the World Wide Web.
(C) Internet.--The term ``Internet'' means
collectively the myriad of computer and
telecommunications facilities, including
equipment and operating software, which
comprise the interconnected world-wide network
of networks that employ the Transmission
Control Protocol/Internet Protocol, or any
predecessor or successor protocols to such
protocol, to communicate information of all
kinds by wire or radio.
(D) Internet access service.--The term
``Internet access service'' means a service
that enables users to access content,
information, electronic mail, or other services
offered over the Internet and may also include
access to proprietary content, information, and
other services as part of a package of services
offered to consumers. The term ``Internet
access service'' does not include
telecommunications services, except to the
extent such services are purchased, used, or
sold by a provider of Internet access to
provide Internet access.
(E) Internet information location tool.--The
term ``Internet information location tool''
means a service that refers or links users to
an online location on the World Wide Web. Such
term includes directories, indices, references,
pointers, and hypertext links.
(F) Material that is harmful to minors.--The
term ``material that is harmful to minors''
means any communication, picture, image,
graphic image file, article, recording,
writing, or other matter of any kind that is
obscene or that--
(i) the average person, applying
contemporary community standards, would
find, taking the material as a whole
and with respect to minors, is designed
to appeal to, or is designed to pander
to, the prurient interest;
(ii) depicts, describes, or
represents, in a manner patently
offensive with respect to minors, an
actual or simulated sexual act or
sexual contact, an actual or simulated
normal or perverted sexual act, or a
lewd exhibition of the genitals or
post-pubescent female breast; and
(iii) taken as a whole, lacks serious
literary, artistic, political, or
scientific value for minors.
(G) Minor.--The term ``minor'' means any
person under 17 years of age.
(H) Telecommunications carrier;
telecommunications service.--The terms
``telecommunications carrier'' and
``telecommunications service'' have the
meanings given such terms in section 3 of the
Communications Act of 1934 (47 U.S.C. 153).
(e) Additional Exception to Moratorium.--
(1) In general.--Subsection (a) shall also not apply
with respect to an Internet access provider, unless, at
the time of entering into an agreement with a customer
for the provision of Internet access services, such
provider offers such customer (either for a fee or at
no charge) screening software that is designed to
permit the customer to limit access to material on the
Internet that is harmful to minors.
(2) Definitions.--In this subsection:
(A) Internet access provider.--The term
``Internet access provider'' means a person
engaged in the business of providing a computer
and communications facility through which a
customer may obtain access to the Internet, but
does not include a common carrier to the extent
that it provides only telecommunications
services.
(B) Internet access services.--The term
``Internet access services'' means the
provision of computer and communications
services through which a customer using a
computer and a modem or other communications
device may obtain access to the Internet, but
does not include telecommunications services
provided by a common carrier.
(C) Screening software.--The term ``screening
software'' means software that is designed to
permit a person to limit access to material on
the Internet that is harmful to minors.
(3) Applicability.--Paragraph (1) shall apply to
agreements for the provision of Internet access
services entered into on or after the date that is 6
months after the date of enactment of this Act.
TELECOMMUNICATIONS ACT OF 1996
SEC. 706. ADVANCED TELECOMMUNICATIONS INCENTIVES.
[47 U.S.C. 157 note]
(a) In General.--The Commission and each State commission
with regulatory jurisdiction over telecommunications services
shall encourage the deployment on a reasonable and timely basis
of advanced telecommunications capability to all Americans
(including, in particular, elementary and secondary schools and
classrooms) by utilizing, in a manner consistent with the
public interest, convenience, and necessity, price cap
regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other
regulating methods that remove barriers to infrastructure
investment.
(b) Inquiry.--The Commission shall, within 30 months after
the date of enactment of this Act, and regularly thereafter,
initiate a notice of inquiry concerning the availability of
advanced telecommunications capability to all Americans
(including, in particular, elementary and secondary schools and
classrooms) and shall complete the inquiry within 180 days
after its initiation. In the inquiry, the Commission shall
determine whether advanced telecommunications capability is
being deployed to all Americans in a reasonable and timely
fashion. If the Commission's determination is negative, it
shall take immediate action to accelerate deployment of such
capability by removing barriers to infrastructure investment
and by promoting competition in the telecommunications market.
(c) Local Government Provision of Advanced Communications
Capability and Services.--No State statute, regulation, or
other State legal requirement may prohibit or have the effect
of prohibiting any public provider from providing, to any
person or any public or private entity, advanced
telecommunications capability or any service that utilizes the
advanced telecommunications capability provided by such public
provider.
(d) Safeguards.--
(1) Antidiscrimination.--To the extent any public
provider regulates competing providers of advanced
telecommunications capability or any service that
utilizes the advanced telecommunications capability
provided by such providers, the public provider shall
apply its ordinances, rules, policies, and fees,
including those relating to public rights-of-way,
permitting, performance bonding, and reporting, without
discrimination in favor of itself or any other advanced
telecommunications capability provider that such public
provider owns or is affiliated with, as compared to
other providers of such capability or services.
(2) Application of general laws.--Nothing in this
subsection or subsections (e) through (g) shall exempt
a public provider from any Federal or State
telecommunications law or regulation that applies to
all providers of--
(A) advanced telecommunications capability;
or
(B) any service that utilizes the advanced
telecommunications capability provided by such
public provider.
(e) Public-Private Partnerships Encouraged.--Each public
provider that intends to provide advanced telecommunications
capability or any service that utilizes the advanced
telecommunications capability provided by such public provider
to the public shall consider the potential benefits of a
public-private partnership prior to providing such capability
or services.
(f) Notice and Opportunity to Bid for the Private Sector.--
(1) Notice and opportunity to bid required.--If a
public provider decides not to initiate a project to
provide advanced telecommunications capability or any
service that utilizes the advanced telecommunications
capability provided by such public provider to the
public through a public-private partnership, then,
before the public provider may provide such advanced
telecommunications capability or any such service that
utilizes the advanced telecommunications capability
provided by such public provider to the public, the
public provider shall--
(A)(i) publish notice of its intention in
media generally available to the public in the
area in which it intends to provide such
capability or service; or
(ii) utilize such notice procedures as such
provider already had in effect as of the date
of enactment of the Community Broadband Act, if
such notice has the effect of making such
notice generally known to the public; and
(B) provide an opportunity for commercial
enterprises to bid to provide such capability
or service during the 30-day period following
publication of the notice.
(2) Notice requirements.--The public provider shall
include in the notice required by paragraph (1) a
description of the proposed scope of the advanced
telecommunications capability or any service that
utilizes the advanced telecommunications capability
provided by such public provider to be provided,
including--
(A) the services to be provided (including
network capabilities);
(B) the coverage area;
(C) service tiers and pricing; and
(D) any proposal for providing advanced
telecommunications capability or any service
that utilizes the advanced telecommunications
capability provided by such public provider to
low-income areas, or other demographically or
geographically defined areas.
(3) Public notice and input on proposed projects.--
(A) In general.--Each public provider shall--
(i) publish notice of each proposal
to provide advanced telecommunications
capability or any service that utilizes
the advanced telecommunications
capability provided by such public
provider to the public by a commercial
enterprise under paragraph (1)(B); and
(ii) provide local citizens in the
jurisdiction of that public provider
and such commercial enterprises with
information on the specifics of each
such project, including--
(I) the cost to taxpayers,
and the benefits of, the
proposed public provider
project; and
(II) any potential
alternatives to the proposed
public provider project,
including any public-private
partnerships.
(B) 30-day period.--In order to provide local
citizens and commercial enterprises with an
adequate opportunity to be informed, a public
provider shall provide additional notice
requesting that any public comments on the
proposed public provider project be filed not
later than 30 days after the date of
publication of the notice required under
subparagraph (A).
(4) Approval process.--If a public provider decides
to proceed with its own project to provide advanced
telecommunications capability or any service that
utilizes the advanced telecommunications capability
provided by such public provider to the public despite
bids by commercial enterprises received in accordance
with paragraph (1)(B), such public provider shall
authorize that project by whatever process typically
would be utilized by such public provider to approve
projects of comparable cost in the jurisdiction of such
public provider.
(5) Application to existing arrangements and pending
proposals.--This subsection does not apply to--
(A) any contract or other arrangement under
which a public provider is providing or
upgrading advanced telecommunications
capability or any service that utilizes the
advanced telecommunications capability provided
by such public provider to the public as of
April 20, 2006; or
(B) any public provider proposal to provide
advanced communications capability or any
service that utilizes the advanced
telecommunications capability provided by such
public provider to the public that, as of April
20, 2006--
(i) is in the request-for-proposals
process;
(ii) is in the process of being
built; or
(iii) has been approved by referendum
but is the subject of a lawsuit brought
before March 1, 2006.
(g) No Receipt of Federal Funds.--If any project to provide
advanced telecommunications capability or any service that
utilizes the advanced telecommunications capability provided by
a public provider under this section fails whether due to
bankruptcy, insufficient funds, or any other reason, no Federal
funds may be provided to such public provider to assist such
public provider in maintaining, reviving, or renewing such
project, except if such failure occurred in any jurisdiction
that is subject to a declaration by the President of a major
disaster, as defined under section 102 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5122).
(h) Temporary Services During States of Emergency.--Nothing
in subsections (c) through (g) shall preclude a public provider
from--
(1) immediately deploying a temporary advanced
telecommunications capability or any service that
utilizes the advanced telecommunications capability
provided by such public provider to the public during a
state of emergency declared by the President or the
Governor of the State in which such public provider is
located; and
(2) continuing the operation of such capability or
service until the emergency situation is resolved.
[(c)] (i) Definitions.--For purposes of this subsection:
(1) Advanced telecommunications capability.--The term
``advanced telecommunications capability'' is defined,
without regard to any transmission media or technology,
as high-speed, switched, broadband telecommunications
capability that enables users to originate and receive
high-quality voice, data, graphics, and video
telecommunications using any technology.
(2) Elementary and secondary schools.--The term
``elementary and secondary school'' means elementary
and secondary schools, as defined in section 9101 of
the Elementary and Secondary Education Act of 1965.
(3) Public provider.--The term ``public provider''
means--
(A) a State or political subdivision thereof;
(B) any agency, authority, or instrumentality
of a State or political subdivision thereof;
(C) an Indian tribe (as defined in section
4(e) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b(e));
or
(D) any entity that is owned, controlled, or
otherwise affiliated with a State, political
subdivision thereof, agency, authority, or
instrumentality, or Indian tribe.
TELECOMMUNICATIONS AUTHORIZATION ACT OF 1992
[SEC. 213. TELEPHONE RATES FOR MEMBERS OF ARMED FORCES DEPLOYED ABROAD.
[47 U.S.C. 201 note]
[(a) In General.--The Federal Communications Commission shall
make efforts to reduce telephone rates for Armed Forces
personnel in the following countries: Germany, Japan, Korea,
Saudi Arabia, Great Britain, Italy, Philippines, Panama, Spain,
Turkey, Iceland, the Netherlands, Greece, Cuba, Belgium,
Portugal, Bermuda, Diego Garcia, Egypt, and Honduras.
[(b) Factors to Consider.--In making the efforts described in
subsection (a), the Federal Communications Commission, in
coordination with the Department of Defense, Department of
State, and the National Telecommunications and Information
Administration shall consider the cost to military personnel
and their families of placing telephone calls by--
[(1) evaluating and analyzing the costs to Armed
Forces personnel of such telephone calls to and from
American military bases abroad;
[(2) evaluate methods of reducing the rates imposed
on such calls;
[(3) determine the extent to which it is feasible for
the Federal Communications Commission to encourage the
carriers to adopt flexible billing procedures and
policies for members of the Armed Forces and their
families for telephone calls to and from the countries
listed in subsection (a); and
[(4) advise executive branch agencies of methods for
the United States to persuade foreign governments to
reduce the surcharges that are often placed on such
telephone calls.]
CHILDREN'S TELEVISION ACT OF 1990
SEC. 102. STANDARDS FOR CHILDREN'S TELEVISION PROGRAMMING.
[47 U.S.C. 303a]
(a) Establishment.--The Commission shall, within 30 days
after the date of enactment of this Act, initiate a rulemaking
proceeding to prescribe standards applicable to commercial
television broadcast licensees with respect to the time devoted
to commercial matter in conjunction with children's television
programming. The Commission shall, within 180 days after the
date of enactment of this Act, complete the rulemaking
proceeding and prescribe final standards that meet the
requirements of subsection (b).
(b) Advertising Duration Limitations.--Except as provided in
subsection (c), the standards prescribed under subsection (a)
shall include the requirement that each commercial television
broadcast licensee shall limit the duration of advertising in
children's television programming to not more than 10.5 minutes
per hour on weekends and not more than 12 minutes per hour on
weekdays.
(c) Review of Advertising Duration Limitations;
Modification.--After January 1, 1993, the Commission--
(1) may review and evaluate the advertising duration
limitations required by subsection (b); and
(2) may, after notice and public comment and a
demonstration of the need for modification of such
limitations, modify such limitations in accordance with
the public interest.
(d) Definition of ``Commercial Television Broadcast
Licensee''.--As used in this section, the term ``commercial
television broadcast licensee'' includes [a cable operator,]
cable operators and video service providers, as defined in
section 602 of the Communications Act of 1934 (47 U.S.C. 522).
DIGITAL TELEVISION TRANSITION AND PUBLIC SAFETY ACT OF 2005
[47 U.S.C. 309 note]
SEC. 3005. DIGITAL-TO-ANALOG CONVERTER BOX PROGRAM.
(a) Creation of Program.--The Assistant Secretary shall--
(1) implement and administer a program through which
households in the United States may obtain coupons that
can be applied toward the purchase of digital-to-analog
converter boxes; and
(2) make payments of not to exceed $990,000,000, in
the aggregate, through fiscal year 2009 to carry out
that program from the Digital Television Transition and
Public Safety Fund established under section
309(j)(8)(E) of the Communications Act of 1934 (47
U.S.C. 309(j)(8)(E)).
(b) Credit.--The Assistant Secretary may borrow from the
Treasury beginning on October 1, 2006, such sums as may be
necessary, but not to exceed $1,500,000,000, to implement this
section. The Assistant Secretary shall reimburse the Treasury,
without interest, as funds are deposited into the Digital
Television Transition and Public Safety Fund.
(c) Program Specifications.--
(1) Limitations.--
(A) Two-per-household maximum.--A household
may obtain coupons by making a request as
required by the regulations under this section
between January 1, 2008, and March 31, 2009,
inclusive. The Assistant Secretary shall ensure
that each requesting household receives, via
the United States Postal Service, no more than
two coupons.
(B) No combinations of coupons.--Two coupons
may not be used in combination toward the
purchase of a single digital-to-analog
converter box.
(C) Duration.--All coupons shall expire 3
months after issuance.
(2) Distribution of coupons.--The Assistant Secretary
shall expend not more than $100,000,000 on
administrative expenses and shall ensure that the sum
of--
(A) all administrative expenses for the
program, including not more than $5,000,000 for
consumer education concerning the digital
television transition and the availability of
the digital-to-analog converter box program;
and
(B) the total maximum value of all the
coupons redeemed, and issued but not expired,
does not exceed $990,000,000.
(3) Use of additional amount.--If the Assistant
Secretary transmits to the Committee on Energy and
Commerce of the House of Representatives and Committee
on Commerce, Science, and Transportation of the Senate
a statement certifying that the sum permitted to be
expended under paragraph (2) will be insufficient to
fulfill the requests for coupons from eligible
households--
(A) paragraph (2) shall be applied--
(i) by substituting ``$160,000,000''
for ``$100,000,000''; and
(ii) by substituting
``$1,500,000,000'' for
``$990,000,000'';
(B) subsection (a)(2) shall be applied by
substituting ``$1,500,000,000'' for
``$990,000,000''; and
(C) the additional amount permitted to be
expended shall be available 60 days after the
Assistant Secretary sends such statement.
(4) Coupon value.--The value of each coupon shall be
$40.
(d) Definition of Digital-To-Analog Converter Box.--For
purposes of this section, the term ``digital-to-analog
converter box'' means a stand-alone device that does not
contain features or functions except those necessary to enable
a consumer to convert any channel broadcast in the digital
television service into a format that the consumer can display
on television receivers designed to receive and display signals
only in the analog television service, but may also include a
clock, other incidental features, or a remote control device.
SEC. 3006. PUBLIC SAFETY INTEROPERABLE COMMUNICATIONS.
(a) Creation of Program.--[The Assistant Secretary, in
consultation with the] The Secretary of the Department of
Homeland Security--
(1) may take such administrative action as is
necessary to establish and implement a grant program to
assist public safety agencies in the acquisition of,
deployment of, or training for the use of interoperable
communications systems that utilize, or enable
interoperability with communications systems that can
utilize, reallocated public safety spectrum for radio
communication; and
(2) shall make payments of not to exceed
$1,000,000,000, in the aggregate, through fiscal year
2010 to carry out that program from the Digital
Television Transition and Public Safety Fund
established under section 309(j)(8)(E) of the
Communications Act of 1934 (47 U.S.C. 309(j)(8)(E)).
(b) Credit.--The [Assistant Secretary] Secretary of Homeland
Security may borrow from the Treasury beginning on October 1,
2006, such sums as may be necessary, but not to exceed
$1,000,000,000, to implement this section. The [Assistant
Secretary] Secretary of Homeland Security shall reimburse the
Treasury, without interest, as funds are deposited into the
Digital Television Transition and Public Safety Fund.
(c) Condition of Grants.--In order to obtain a grant under
the grant program, a public safety agency shall agree to
provide, from non-Federal sources, not less than 20 percent of
the costs of acquiring and deploying the interoperable
communications systems funded under the grant program.
(d) Interoperable Communications System Equipment
Deployment.--
(1) In general.--The Secretary of Homeland Security
shall allocate at least 25 percent of the funds made
available to carry out this section to make
interoperable communications system equipment grants
for equipment that can utilize, or enable
interoperability with systems or networks that can
utilize, reallocated public safety spectrum.
(2) Allocation of funds.--The Secretary shall
allocate--
(A) a majority of the amounts allocated under
paragraph (1) for distribution to public safety
agencies based on the threat and risk factors
used by the Secretary for the purposes of
allocating discretionary grants under the
heading ``Office for Domestic Preparedness,
State and Local Programs'' in the Department of
Homeland Security Appropriations Act, 2006; and
(B) the remainder equally to each State for
distribution by the States to public safety
agencies.
(3) Eligibility.--A State may not receive funds
allocated to it under paragraph (2) unless it has
established a statewide interoperable communications
plan approved by the Secretary.
(4) Use of funds.--A public safety agency shall use
any funds received under this subsection for the
purchase of interoperable communications system
equipment and infrastructure that is consistent with
SAFECOM guidance, including any standards that may be
referenced by SAFECOM guidance, and interoperable
communications system equipment and infrastructure that
improves interoperability that uses Internet protocol
or any successor protocol.
(e) Coordination, Planning, and Training Grant Initiative.--
(1) In general.--The Secretary of Homeland Security
shall allocate at least 25 percent of the funds made
available to carry out this section for interoperable
emergency communications coordination, planning, and
training grants. The grants shall supplement, and be in
addition to, any Federal funds otherwise made available
by grant or otherwise to the States for emergency
coordination, planning, or training.
(2) Allocation.--The Secretary shall allocate--
(A) a majority of the amounts allocated under
paragraph (1) for distribution to the States
based on the threat and risk factors used by
the Secretary for the purposes of allocating
discretionary grants under the heading ``Office
for Domestic Preparedness, State and Local
Programs'' in the Department of Homeland
Security Appropriations Act, 2006; and
(B) the remainder equally to each State for
distribution to public safety agencies.
(3) Coordination, planning, and training
guidelines.--A State shall use its emergency
communication coordination, planning, and training
grant to establish a statewide plan consistent with the
State communications interoperability planning
methodology developed by the SAFECOM program within the
Department of Homeland Security or a regional plan
established by a regional planning agency consistent
with this section and to establish training programs
designed to ensure effective implementation of
coordination and interoperability plans. In
establishing the statewide plan, the Governor or the
Governor's designee shall consult with the Secretary of
Homeland Security or the Secretary of Homeland
Security's designee. A State shall submit its statewide
plan to the Federal Communications Commission and the
Secretary of Homeland Security.
(4) Medical services.--As part of its statewide plan,
a State shall ensure that--
(A) there are effective 2-way communications
and information sharing between medical
services and other emergency response entities,
including communications among key strategic
emergency responders, emergency medical care
facilities, and Federal, State, and local
authorities in the event of a national,
regional, or other large-scale emergency, and
redundancy in the event of a failure of the
primary communications systems; and
(B) medical emergency responses are
integrated into all planning and decision-
making practices for emergency response.
(5) State-specific coordination, planning, and
training.--Grants under this section shall be available
for emergencies and disasters, such as hurricanes,
forest fires, and mining accidents.
(f) Strategic Technology Reserves Initiative.--
(1) In general.--The Secretary of Homeland Security
shall allocate up to 25 percent of the funds made
available to carry out this section to establish and
implement a strategic technology reserve to pre-
position or secure interoperable communications systems
in advance for immediate deployment in an emergency or
major disaster (as defined in section 102(2) of Public
Law 93-288 (42 U.S.C. 5122)). In carrying out this
paragraph, the Secretary shall take into consideration
the continuing technological evolution of
communications technologies and devices, with its
implicit risk of obsolescence, and ensure that, to the
maximum extent feasible, a substantial part of the
reserve involves prenegotiated contracts and other
arrangements for rapid deployment of equipment,
supplies, and systems rather than the warehousing or
storage of equipment and supplies currently available
at the time the reserve is established.
(2) Requirements and characteristics.--A reserve
established under paragraph (1) shall--
(A) be capable of re-establishing
communications when existing infrastructure is
damaged or destroyed in an emergency or a major
disaster;
(B) include appropriate current, widely-used
equipment, such as Land Mobile Radio Systems,
cellular telephones, satellite equipment,
Cells-On-Wheels, Cells-On-Light-Trucks, or
other self-contained mobile cell sites that can
be towed, backup batteries, generators, fuel,
and computers;
(C) include equipment on hand for the
Governor of each State, key emergency response
officials, and appropriate State or local
personnel;
(D) include contracts (including
prenegotiated contracts) for rapid delivery of
the most current technology available from
commercial sources; and
(E) include arrangements for training to
ensure that personnel are familiar with the
operation of the equipment and devices to be
delivered pursuant to such contracts.
(3) Additional characteristics.--Portions of the
reserve may be virtual and may include items donated on
an in-kind contribution basis.
(4) Consultation.--In developing the reserve, the
Secretary shall seek advice from the Secretary of
Defense, as well as national public safety
organizations, emergency managers, State, local, and
tribal governments, and commercial providers of such
systems and equipment.
(5) Allocation and use of funds.--The Secretary shall
allocate--
(A) a portion of the reserve's funds for
block grants to States to enable each State to
establish a strategic technology reserve within
its borders in a secure location to allow
immediate deployment; and
(B) a portion of the reserve's funds for
regional Federal strategic technology reserves
to facilitate any Federal response when
necessary, to be held in each of the Federal
Emergency Management Agency's regional offices,
including Boston, Massachusetts (Region 1), New
York, New York (Region 2), Philadelphia,
Pennsylvania (Region 3), Atlanta, Georgia
(Region 4), Chicago, Illinois (Region 5),
Denton, Texas (Region 6), Kansas City, Missouri
(Region 7), Denver, Colorado (Region 8),
Oakland, California (Region 9), Bothell,
Washington (Region 10), and each of the
noncontiguous States for immediate deployment.
(g) Consensus Standards; Applications.--
(1) Consensus standards.--In carrying out this
section, the Secretary of Homeland Security shall
identify, and if necessary encourage the development
and implementation of, consensus standards for
interoperable communications systems to the greatest
extent practicable.
(2) Applications.--To be eligible for assistance
under the programs established in this section, each
State shall submit an application, at such time, in
such form, and containing such information as the
Secretary may require, including--
(A) a detailed explanation of how assistance
received under the program would be used to
improve local communications interoperability
and ensure interoperability with other
appropriate public safety agencies in an
emergency or a major disaster; and
(B) assurance that the equipment and system
would--
(i) be compatible with the
communications architecture developed
under section 7303(a)(1)(E) of the
Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C.
194(a)(1)(E));
(ii) meet any voluntary consensus
standards developed under section
7303(a)(1)(D) of that Act (6 U.S.C.
194(a)(1)(D); and
(iii) be compatible with the common
grant guidance established under
section 7303(a)(1)(H) of that Act (6
U.S.C. 194(a)(1)(H)).
(h) Deadline for Implementation Regulations.--Within 90 days
after the date of enactment of the Advanced Telecommunications
and Opportunities Reform Act, the Secretary, in consultation
with the Federal Communications Commission, shall promulgate
regulations for the implementation of subsections (d) through
(f) of this section.
[(d)] (i) Definitions.--For purposes of this section:
(1) Public safety agency.--The term ``public safety
agency'' means any State, local, or tribal government
entity, or nongovernmental organization authorized by
such entity, whose sole or principal purpose is to
protect the safety of life, health, or property.
(2) Interoperable communications systems.--The term
``interoperable communications systems'' means
communications systems which enable public safety
agencies to share information amongst local, State,
Federal, and tribal public safety agencies in the same
area via voice or data signals.
(3) Reallocated public safety spectrum.--The term
``reallocated public safety spectrum'' means the bands
of spectrum located at 764-776 megahertz and 794-806
megahertz, inclusive.
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION ORGANIZATION
ACT
SEC. 158. COORDINATION OF E-911 IMPLEMENTATION.
[47 U.S.C. 942]
(a) E-911 Implementation Coordination Office.--
(1) Establishment.--The Assistant Secretary and the
Administrator of the National Highway Traffic Safety
Administration shall--
(A) establish a joint program to facilitate
coordination and communication between Federal,
State, and local emergency communications
systems, emergency personnel, public safety
organizations, telecommunications carriers, and
telecommunications equipment manufacturers and
vendors involved in the implementation of E-911
[services;] services and services related to
the migration to an IP-enabled emergency
network that provides E-911 services; and
(B) create an E-911 Implementation
Coordination Office to implement the provisions
of this section.
(2) Management plan.--The Assistant Secretary and the
Administrator shall jointly develop a management plan
for the program established under this section. Such
plan shall include the organizational structure and
funding profiles for the 5-year duration of the
program. The Assistant Secretary and the Administrator
shall, within 90 days after the date of enactment of
this Act, submit the management plan to the Committees
on Energy and Commerce and Appropriations of the House
of Representatives and the Committees on Commerce,
Science, and Transportation and Appropriations of the
Senate.
(3) Purpose of office.--The Office shall--
(A) take actions, in concert with
coordinators designated in accordance with
subsection (b)(3)(A)(ii), to improve such
coordination and communication;
(B) develop, collect, and disseminate
information concerning practices, procedures,
and technology used in the implementation of E-
911 services;
(C) advise and assist eligible entities in
the preparation of implementation plans
required under subsection (b)(3)(A)(iii);
(D) receive, review, and recommend the
approval or disapproval of applications for
grants under subsection (b); and
(E) oversee the use of funds provided by such
grants in fulfilling such implementation plans.
(4) Reports.--The Assistant Secretary and the
Administrator shall provide a joint annual report to
Congress by the first day of October of each year on
the activities of the Office to improve coordination
and communication with respect to the implementation of
E-911 services.
(b) Phase II E-911 Implementation Grants.--
(1) Matching grants.--The Assistant Secretary and the
Administrator, after consultation with the Secretary of
Homeland Security and the Chairman of the Federal
Communications Commission, and acting through the
Office, shall provide grants to eligible entities for
the implementation and operation of Phase II E-911
services.
(2) Matching requirement.--The Federal share of the
cost of a project eligible for a grant under this
section shall not exceed 50 percent. The non-Federal
share of the cost shall be provided from non-Federal
sources.
(3) Coordination required.--In providing grants under
paragraph (1), the Assistant Secretary and the
Administrator shall require an eligible entity to
certify in its application that--
(A) in the case of an eligible entity that is
a State government, the entity--
(i) has coordinated its application
with the public safety answering points
(as such term is defined in section
222(h)(4) of the Communications Act of
1934) located within the jurisdiction
of such entity;
(ii) has designated a single officer
or governmental body of the entity to
serve as the coordinator of
implementation of E-911 services,
except that such designation need not
vest such coordinator with direct legal
authority to implement E-911 services
or manage emergency communications
operations;
(iii) has established a plan for the
coordination and implementation of E-
911 services; and
(iv) has integrated
telecommunications services involved in
the implementation and delivery of
phase II E-911 services; or
(B) in the case of an eligible entity that is
not a State, the entity has complied with
clauses (i), (iii), and (iv) of subparagraph
(A), and the State in which it is located has
complied with clause (ii) of such subparagraph.
(4) Criteria.--The Assistant Secretary and the
Administrator shall jointly issue regulations within
180 days after the date of enactment of the ENHANCE 911
Act of 2004, after a public comment period of not less
than 60 days, prescribing the criteria for selection
for grants under this section, and shall update such
regulations as necessary. The criteria shall include
performance requirements and a timeline for completion
of any project to be financed by a grant under this
section.
(c) Diversion of E-911 Charges.--
(1) Designated e-911 charges.--For the purposes of
this subsection, the term ``designated E-911 charges''
means any taxes, fees, or other charges imposed by a
State or other taxing jurisdiction that are designated
or presented as dedicated to deliver or improve E-911
services.
(2) Certification.--Each applicant for a matching
grant under this section shall certify to the Assistant
Secretary and the Administrator at the time of
application, and each applicant that receives such a
grant shall certify to the Assistant Secretary and the
Administrator annually thereafter during any period of
time during which the funds from the grant are
available to the applicant, that no portion of any
designated E-911 charges imposed by a State or other
taxing jurisdiction within which the applicant is
located are being obligated or expended for any purpose
other than the purposes for which such charges are
designated or presented during the period beginning 180
days immediately preceding the date of the application
and continuing through the period of time during which
the funds from the grant are available to the
applicant.
(3) Condition of grant.--Each applicant for a grant
under this section shall agree, as a condition of
receipt of the grant, that if the State or other taxing
jurisdiction within which the applicant is located,
during any period of time during which the funds from
the grant are available to the applicant, obligates or
expends designated E-911 charges for any purpose other
than the purposes for which such charges are designated
or presented, all of the funds from such grant shall be
returned to the Office.
(4) Penalty for providing false information.--Any
applicant that provides a certification under paragraph
(1) knowing that the information provided in the
certification was false shall--
(A) not be eligible to receive the grant
under subsection (b);
(B) return any grant awarded under subsection
(b) during the time that the certification was
not valid; and
(C) not be eligible to receive any subsequent
grants under subsection (b).
(d) Authorization; Termination.--
(1) Authorization.--There are authorized to be
appropriated to the Department of Transportation, for
the purposes of grants under the joint program operated
under this section with the Department of Commerce, not
more than $250,000,000 for each of the fiscal years
2005 through 2009, not more than 5 percent of which for
any fiscal year may be obligated or expended for
administrative costs.
(2) Termination.--The provisions of this section
shall cease to be effective on October 1, 2009.
(e) Definitions.--As used in this section:
(1) Office.--The term ``Office'' means the E-911
Implementation Coordination Office.
(2) Administrator.--The term ``Administrator'' means
the Administrator of the National Highway Traffic
Safety Administration.
(3) Eligible entity.--
(A) In general.--The term ``eligible entity''
means a State or local government or a tribal
organization (as defined in section 4(l) of the
Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b(l))).
(B) Instrumentalities.--Such term includes
public authorities, boards, commissions, and
similar bodies created by one or more eligible
entities described in subparagraph (A) to
provide E-911 services.
(C) Exception.--Such term does not include
any entity that has failed to submit the most
recently required certification under
subsection (c) within 30 days after the date on
which such certification is due.
(4) E-911 services.--The term ``E-911 services''
means both phase I and phase II enhanced 911 services,
as described in section 20.18 of the Commission's
regulations (47 C.F.R. 20.18), as in effect on the date
of enactment of the ENHANCE 911 Act of 2004, or as
subsequently revised by the Federal Communications
Commission.
(5) Phase II E-911 services.--The term ``phase II E-
911 services'' means only phase II enhanced 911
services, as described in such section 20.18 (47 C.F.R.
20.18), as in effect on such date, or as subsequently
revised by the Federal Communications Commission.
(6) State.--The term ``State'' means any State of the
United States, the District of Columbia, Puerto Rico,
the Northern Mariana Islands, and any territory or
possession of the United States.
COMMUNICATIONS ACT OF 1934
TITLE I--GENERAL PROVISIONS
* * * * * * *
SEC. 5. COMMISSION.
[47 U.S.C. 155]
(a) Chairman; Duties; Vacancy.--The member of the Commission
designated by the President as chairman shall be the chief
executive officer of the Commission. It shall be his duty to
preside at all meetings and sessions of the Commission, to
represent the Commission in all matters relating to legislation
and legislative reports, except that any commissioner may
present his own or minority views or supplemental reports, to
represent the Commission in all matters requiring conferences
or communications with other governmental officers, departments
or agencies, and generally to coordinate and organize the work
of the Commission in such manner as to promote prompt and
efficient disposition of all matters within the jurisdiction of
the Commission. In the case of a vacancy in the office of the
chairman of the Commission, or the absence or inability of the
chairman to serve, the Commission may temporarily designate one
of its members to act as chairman until the cause or
circumstance requiring such designation shall have been
eliminated or corrected.
(b) Organization of Staff.--From time to time as the
Commission may find necessary, the Commission shall organize
its staff into (1) integrated bureaus, to function on the basis
of the Commission's principal workload operations, and (2) such
other divisional organizations as the Commission may deem
necessary. Each such integrated bureau shall include such
legal, engineering, accounting, administrative, clerical, and
other personnel as the Commission may determine to be necessary
to perform its functions.
(c) Delegation of Functions; Exceptions to Initial Orders;
Force, Effect and Enforcement of Orders; Administrative and
Judicial Review; Qualifications and Compensation of Delegates;
Assignment of Cases; Separation of Review and Investigative or
Prosecuting Functions; Secretary; Seal.--
(1) When necessary to the proper functioning of the
Commission and the prompt and orderly conduct of its
business, the Commission may, by published rule or by
order, delegate any of its functions (except functions
granted to the Commission by this paragraph and by
paragraphs (4), (5), and (6) of this subsection and
except any action referred to in sections 204(a)(2),
208(b), and 405(b)) to a panel of commissioners, an
individual commissioner, and employee board, or an
individual employee, including functions with respect
to hearing, determining, ordering, certifying,
reporting, or otherwise acting as to any work,
business, or matter; except that in delegating review
functions to employees in cases of adjudication (as
defined in the Administrative Procedure Act), the
delegation in any such case may be made only to an
employee board consisting of two or more employees
referred to in paragraph (8). Any such rule or order
may be adopted, amended, or rescinded only by a vote of
a majority of the members of the Commission then
holding office. Except for cases involving the
authorization of service in the instructional
television fixed service, or as otherwise provided in
this Act, nothing in this paragraph shall authorize the
Commission to provide for the conduct, by any person or
persons other than persons referred to in paragraph (2)
or (3) of section 556(b) of title 5, United States
Code, of any hearing to which such section applies.
(2) As used in this subsection (d) the term ``order,
decision, report, or action'' does not include an
initial, tentative, or recommended decision to which
exceptions may be filed as provided in section 409(b).
(3) Any order, decision, report, or action made or
taken pursuant to any such delegation, unless reviewed
as provided in paragraph (4), shall have the same force
and effect, and shall be made, evidenced, and enforced
in the same manner, as orders, decisions, reports, or
other actions of the Commission.
(4) Any person aggrieved by any such order, decision,
report or action may file an application for review by
the Commission within such time and in such manner as
the Commission shall prescribe, and every such
application shall be passed upon by the Commission. The
Commission, on its own initiative, may review in whole
or in part, at such time and in such manner as it shall
determine, any order, decision, report, or action made
or taken pursuant to any delegation under paragraph
(1).
(5) In passing upon applications for review, the
Commission may grant, in whole or in part, or deny such
applications without specifying any reasons therefor.
No such application for review shall rely on questions
of fact or law upon which the panel of commissioners,
individual commissioner, employee board, or individual
employee has been afforded no opportunity to pass.
(6) If the Commission grants the application for
review, it may affirm, modify, or set aside the order,
decision, report, or action, or it may order a
rehearing upon such order, decision, report, or action
in accordance with section 405.
(7) The filing of an application for review under
this subsection shall be a condition precedent to
judicial review of any order, decision, report, or
action made or taken pursuant to a delegation under
paragraph (1). The time within which a petition for
review must be filed in a proceeding to which section
402(a) applies, or within which an appeal must be taken
under section 402(b), shall be computed from the date
upon which public notice is given of orders disposing
of all applications for review filed in any case.
(8) The employees to whom the Commission may delegate
review functions in any case of adjudication (as
defined in the Administrative Procedure Act) shall be
qualified, by reason of their training, experience, and
competence, to perform such review functions, and shall
perform no duties inconsistent with such review
functions. Such employees shall be in a grade
classification or salary level commensurate with their
important duties, and in no event less than the grade
classification or salary level of the employee or
employees whose actions are to be reviewed. In the
performance of such review functions such employees
shall be assigned to cases in rotation so far as
practicable and shall not be responsible to or subject
to the supervision or direction of any officer,
employee, or agent engaged in the performance of
investigative or prosecuting functions for any agency.
(9) The secretary and seal of the Commission shall be
the secretary and seal of each panel of the Commission,
each individual commissioner, and each employee board
or individual employee exercising functions delegated
pursuant to paragraph (1) of this subsection.
(d) Meetings.--Meetings of the Commission shall be held at
regular intervals, not less frequently than once each calendar
month, at which times the functioning of the Commission and the
handling of its work load shall be reviewed and such orders
shall be entered and other action taken as may be necessary or
appropriate to expedite the prompt and orderly conduct of the
business of the Commission with the objective of rendering a
final decision (1) within three months from the date of filing
in all original application, renewal, and transfer cases in
which it will not be necessary to hold a hearing and (2) within
six months from the final date of the hearing in all hearing
cases.
(e) Managing Director; Appointment, Functions, Pay.--The
Commission shall have a Managing Director who shall be
appointed by the Chairman subject to the approval of the
Commission. The Managing Director, under the supervision and
direction of the Chairman, shall perform such administrative
and executive functions as the Chairman shall delegate. The
Managing Director shall be paid at a rate equal to the rate
then payable for level V of the Executive Schedule.
(f) Meetings.--
(1) Attendance required.--Notwithstanding 552b of
title 5, United States Code, and section 4(h) of this
Act, the Commission may conduct a meeting that is not
open to the public if the meeting is attended by--
(A) all members of the Commission; or
(B) at least 1 member of the political party
whose members are in the minority.
(2) Voting prohibited.--The Commission may not vote
or make any final decision on any matter pending before
it in a meeting that is not open to the public,
unless--
(A) otherwise authorized by section 552b(b)
of title 5, United States Code; or
(B) the Commission has moved its operations
outside Washington, D.C., pursuant to a
Continuity of Operations Plan.
(3) Publication of summary.--If the Commission
conducts a meeting that is not open to the public under
this section, the Commission shall promptly publish an
executive summary describing the matters discussed at
that meeting after the meeting ends, except for such
matters as the Commission determines may be withheld
under section 552b(c) of title 5, United States Code.
This paragraph does not apply to a meeting described in
paragraph (4).
(4) Quorum unnecessary for certain meetings.--Neither
section 552b of title 5, United States Code, nor
paragraph (1) of this subsection applies to--
(A) a meeting of 3 or more members of the
Commission with the President, any person
employed by the Office of the President, any
official of a Federal, State, or local agency,
a Member of Congress or his staff;
(B) the attendance, by 3 or more members of
the Commission, at a forum or conference to
discuss general communications issues; or
(C) a meeting of 3 or more members of the
Commission when the Continuity of Operations
Plan is in effect and the Commission is
operating under the terms of that Plan.
(5) Savings clause.--Nothing in this subsection shall
be construed to prohibit the Commission from doing
anything authorized by section 552b of title 5, United
States Code.
SEC. 10. COMPETITION IN PROVISION OF TELECOMMUNICATIONS SERVICE.
[47 U.S.C. 160]
(a) Regulatory flexibility.--Notwithstanding section
332(c)(1)(A) of this Act, the Commission shall forbear from
applying any regulation or any provision of this Act to a
telecommunications carrier or telecommunications service, or
class of telecommunications carriers or telecommunications
services, in any or some of its or their geographic markets, if
the Commission determines that--
(1) enforcement of such regulation or provision is
not necessary to ensure that the charges, practices,
classifications, or regulations by, for, or in
connection with that telecommunications carrier or
telecommunications service are just and reasonable and
are not unjustly or unreasonably discriminatory;
(2) enforcement of such regulation or provision is
not necessary for the protection of consumers; and
(3) forbearance from applying such provision or
regulation is consistent with the public interest.
(b) Competitive Effect to be Weighed.--In making the
determination under subsection (a)(3), the Commission shall
consider whether forbearance from enforcing the provision or
regulation will promote competitive market conditions,
including the extent to which such forbearance will enhance
competition among providers of telecommunications services. If
the Commission determines that such forbearance will promote
competition among providers of telecommunications services,
that determination may be the basis for a Commission finding
that forbearance is in the public interest.
(c) Petition for Forbearance.--Any telecommunications
carrier, or class of telecommunications carriers, may submit a
petition to the Commission requesting that the Commission
exercise the authority granted under this section with respect
to that carrier or those carriers, or any service offered by
that carrier or carriers. Any such petition shall be [deemed
granted] voted on by the Commission if the Commission does not
deny the petition for failure to meet the requirements for
forbearance under subsection (a) within one year after the
Commission receives it, unless the one-year period is extended
by the Commission. The Commission may extend the initial one-
year period by an additional 90 days if the Commission finds
that an extension is necessary to meet the requirements of
subsection (a). The Commission may grant or deny a petition in
whole or in part by majority vote and shall explain its
decision in writing.
(d) Limitation.--Except as provided in section 251(f), the
Commission may not forbear from applying the requirements of
section 251(c) or 271 under subsection (a) of this section
until it determines that those requirements have been fully
implemented.
(e) State Enforcement After Commission Forbearance.--A State
commission may not continue to apply or enforce any provision
of this Act that the Commission has determined to forbear from
applying under subsection (a).
TITLE II--COMMON CARRIERS
PART I. COMMON CARRIER REGULATION
* * * * * * *
SEC. 214. EXTENSION OF LINES OR DISCONTINUANCE OF SERVICE; CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY.
[47 U.S.C. 214]
(a) Exceptions; Temporary or Emergency Service or
Discontinuance of Service; Changes in Plant, Operation or
Equipment.--No carrier shall undertake the construction of a
new line or of an extension of any line, or shall acquire or
operate any line, or extension thereof, or shall engage in
transmission over or by means of such additional or extended
line, unless and until there shall first have been obtained
from the Commission a certificate that the present or future
public convenience and necessity require or will require the
construction, or operation, or construction and operation, of
such additional or extended line: Provided, That no such
certificate shall be required under this section for the
construction, acquisition, or operation of (1) a line within a
single State unless such line constitutes part of an interstate
line, (2) local, branch, or terminal lines not exceeding ten
miles in length, or (3) any line acquired under section 221 of
this Act: Provided further, That the Commission may, upon
appropriate request being made, authorize temporary or
emergency service, or the supplementing of existing facilities,
without regard to the provisions of this section. No carrier
shall discontinue, reduce, or impair service to a community, or
part of a community, unless and until there shall first have
been obtained from the Commission a certificate that neither
the present nor future public convenience and necessity will be
adversely affected thereby; except that the Commission may,
upon appropriate request being made, authorize temporary or
emergency discontinuance, reduction, or impairment of service,
or partial discontinuance, reduction, or impairment of service,
without regard to the provisions of this section. As used in
this section the term ``line'' means any channel of
communication established by the use of appropriate equipment,
other than a channel of communication established by the
interconnection of two or more existing channels: Provided,
however, That nothing in this section shall be construed to
require a certificate or other authorization from the
Commission for any installation, replacement, or other changes
in plant, operation, or equipment, other than new construction,
which will not impair the adequacy or quality of service
provided.
(b) Notification of Secretary of Defense, Secretary of State,
and State Governor.--Upon receipt of an application for any
such certificate, the Commission shall cause notice thereof to
be given to, and shall cause a copy of such application to be
filed with, the Secretary of Defense, the Secretary of State
(with respect to such applications involving service to foreign
points), and the Governor of each State in which such line is
proposed to be constructed, extended, acquired, or operated, or
in which such discontinuance, reduction, or impairment of
service is proposed, with the right to those notified to be
heard; and the Commission may require such published notice as
it shall determine.
(c) Approval or Disapproval; Injunction.--The Commission
shall have power to issue such certificate as applied for, or
to refuse to issue it, or to issue it for a portion or portions
of a line, or extension thereof, or discontinuance, reduction,
or impairment of service, described in the application, or for
the partial exercise only of such right or privilege, and may
attach to the issuance of the certificate such terms and
conditions as in its judgment the public convenience and
necessity may require. After issuance of such certificate, and
not before, the carrier may, without securing approval other
than such certificate, comply with the terms and conditions
contained in or attached to the issuance of such certificate
and proceed with the construction, extension, acquisition,
operation, or discontinuance, reduction, or impairment of
service covered thereby. Any construction, extension,
acquisition, operation, discontinuance, reduction, or
impairment of service contrary to the provisions of this
section may be enjoined by any court of competent jurisdiction
at the suit of the United States, the Commission, the State
commission, any State affected, or any party in interest.
(d) Order of Commission; Hearing; Penalty.--The Commission
may, after full opportunity for hearing, in a proceeding upon
complaint or upon its own initiative without complaint,
authorize or require by order any carrier, party to such
proceeding, to provide itself with adequate facilities for the
expeditious and efficient performance of its service as a
common carrier and to extend its line or to establish a public
office; but no such authorization or order shall be made unless
the Commission finds, as to such provision of facilities, as to
such establishment of public offices, or as to such extension,
that it is reasonably required in the interest of public
convenience and necessity, or as to such extension or
facilities that the expense involved therein will not impair
the ability of the carrier to perform its duty to the public.
Any carrier which refuses or neglects to comply with any order
of the Commission made in pursuance of this paragraph shall
forfeit to the United States $1,200 for each day during which
such refusal or neglect continues.
(e) Provision of Universal Service.--
(1) Eligible telecommunications carriers.--A common
carrier designated as an eligible telecommunications
carrier under paragraph (2), (3), or (6) shall be
eligible to receive universal service support in
accordance with section 254 and shall, throughout the
service area for which the designation is received--
(A) offer the services that are supported by
Federal universal service support mechanisms
under section 254(c), either using its own
facilities or a combination of its own
facilities and resale of another carrier's
services (including the services offered by
another eligible telecommunications carrier);
and
(B) advertise the availability of such
services and the charges therefor using media
of general distribution.
(2) Designation of eligible telecommunications
carriers.--A State commission shall upon its own motion
or upon request designate a common carrier that meets
the requirements of paragraph (1) as an eligible
telecommunications carrier for a service area
designated by the State commission. Upon request and
consistent with the public interest, convenience, and
necessity, the State commission may, in the case of an
area served by a rural telephone company, and shall, in
the case of all other areas, designate more than one
common carrier as an eligible telecommunications
carrier for a service area designated by the State
commission, so long as each additional requesting
carrier meets the requirements of paragraph (1). Before
designating an additional eligible telecommunications
carrier for an area served by a rural telephone
company, the State commission shall find that the
designation is in the public interest.
(3) Designation of eligible telecommunications
carriers for unserved areas.--If no common carrier will
provide the services that are supported by Federal
universal service support mechanisms under section
254(c) to an unserved community or any portion thereof
that requests such service, the Commission, with
respect to interstate services or an area served by a
common carrier to which paragraph (6) applies, or a
State commission, with respect to intrastate services,
shall determine which common carrier or carriers are
best able to provide such service to the requesting
unserved community or portion thereof and shall order
such carrier or carriers to provide such service for
that unserved community or portion thereof. Any carrier
or carriers ordered to provide such service under this
paragraph shall meet the requirements of paragraph (1)
and shall be designated as an eligible
telecommunications carrier for that community or
portion thereof.
(4) Relinquishment of universal service.--A State
commission (or the Commission in the case of a common
carrier designated under paragraph (6)) shall permit an
eligible telecommunications carrier to relinquish its
designation as such a carrier in any area served by
more than one eligible telecommunications carrier. An
eligible telecommunications carrier that seeks to
relinquish its eligible telecommunications carrier
designation for an area served by more than one
eligible telecommunications carrier shall give advance
notice to the State commission (or the Commission in
the case of a common carrier designated under paragraph
(6)) of such relinquishment. Prior to permitting a
telecommunications carrier designated as an eligible
telecommunications carrier to cease providing universal
service in an area served by more than one eligible
telecommunications carrier, the State commission (or
the Commission in the case of a common carrier
designated under paragraph (6)) shall require the
remaining eligible telecommunications carrier or
carriers to ensure that all customers served by the
relinquishing carrier will continue to be served, and
shall require sufficient notice to permit the purchase
or construction of adequate facilities by any remaining
eligible telecommunications carrier. The State
commission (or the Commission in the case of a common
carrier designated under paragraph (6)) shall establish
a time, not to exceed one year after the State
commission (or the Commission in the case of a common
carrier designated under paragraph (6)) approves such
relinquishment under this paragraph, within which such
purchase or construction shall be completed.
(5) Service area defined.--The term ``service area''
means a geographic area established by a State
commission (or the Commission under paragraph (6)) for
the purpose of determining universal service
obligations and support mechanisms. In the case of an
area served by a rural telephone company, ``service
area'' means such company's ``study area'' unless and
until the Commission and the States, after taking into
account recommendations of a Federal-State Joint Board
instituted under section 410(c), establish a different
definition of service area for such company.
(6) Common carriers not subject to State commission
jurisdiction.--In the case of a common carrier
providing telephone exchange service and exchange
access that is not subject to the jurisdiction of a
State commission, the Commission shall upon request
designate such a common carrier that meets the
requirements of paragraph (1) as an eligible
telecommunications carrier for a service area
designated by the Commission consistent with applicable
Federal and State law. Upon request and consistent with
the public interest, convenience and necessity, the
Commission may, with respect to an area served by a
rural telephone company, and shall, in the case of all
other areas, designate more than one common carrier as
an eligible telecommunications carrier for a service
area designated under this paragraph, so long as each
additional requesting carrier meets the requirements of
paragraph (1). Before designating an additional
eligible telecommunications carrier for an area served
by a rural telephone company, the Commission shall find
that the designation is in the public interest.
(7) Eligibility guidelines.--
(A) In general.--A common carrier may not be
designated as a new eligible communications
carrier unless it--
(i) is committed to providing service
throughout its proposed designated
service area, using its own facilities
or a combination of facilities and
resale of another carrier's facilities,
to all customers making a reasonable
request for service;
(ii) has certified to the State
commission or the Commission that it
will provide service on a timely basis
to requesting customers within its
service area, if service can be
provided at reasonable cost;
(iii) has submitted a plan to the
State commission or the Commission that
describes with specificity proposed
improvements or upgrades to its network
that will be accomplished with high-
cost support over the first 2 years
following its designation as an
eligible communications carrier;
(iv) has demonstrated to the State
commission or the Commission its
ability to remain functional in
emergency situations, including a
demonstration that it has a reasonable
amount of back-up power to ensure
functionality without an external power
source;
(v) is committed to following
applicable consumer protection and
service quality standards; and
(vi) has complied with annual
reporting requirements established by
the Commission or by State Commissions
for all carriers receiving universal
service support to ensure that such
support is used for the provision,
maintenance, and upgrading of the
facilities for which support is
intended.
(B) Application limited to post date-of-
enactment designations.--Subparagraph (A)
applies only to an entity designated as an
eligible communications carrier after the date
of enactment of the Internet and Universal
Service Act of 2006.
(C) 6-month designation deadline.--Beginning
6 months after the date of enactment of the
Internet and Universal Service Act of 2006, a
State commission or the Commission shall grant
or deny an application for designation as an
eligible communications carrier within 6 months
after the date on which it receives a complete
application.
(D) Eligible Communications Carrier.--In this
paragraph, the term ``eligible communications
carrier'' means an entity designated under
paragraph (2), (3), or (6) of this subsection.
Any reference to eligible telecommunications
carrier in this section or in section 254
refers also to an eligible communications
carrier.
(8) Primary line.--In implementing the requirements
of this Act with respect to the distribution and use of
Federal universal service support, the Commission shall
not limit such distribution and use to a single
connection or primary line, and all residential and
business lines served by an eligible communications
carrier shall be eligible for Federal universal service
support.
* * * * * * *
SEC. 227. RESTRICTIONS ON USE OF TELEPHONE EQUIPMENT.
[47 U.S.C. 227]
(a) Definitions.--As used in this section--
(1) The term ``automatic telephone dialing system''
means equipment which has the capacity--
(A) to store or produce telephone numbers to
be called, using a random or sequential number
generator; and
(B) to dial such numbers.
(2) The term ``established business relationship'',
for purposes only of subsection (b)(1)(C)(i), shall
have the meaning given the term in section 64.1200 of
title 47, Code of Federal Regulations, as in effect on
January 1, 2003, except that--
(A) such term shall include a relationship
between a person or entity and a business
subscriber subject to the same terms applicable
under such section to a relationship between a
person or entity and a residential subscriber;
and
(B) an established business relationship
shall be subject to any time limitation
established pursuant to paragraph (2)(G).
(3) The term ``telephone facsimile machine'' means
equipment which has the capacity (A) to transcribe text
or images, or both, from paper into an electronic
signal and to transmit that signal over a regular
telephone line, or (B) to transcribe text or images (or
both) from an electronic signal received over a regular
telephone line onto paper.
(4) The term ``telephone solicitation'' means the
initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is
transmitted to any person, but such term does not
include a call or message (A) to any person with that
person's prior express invitation or permission, (B) to
any person with whom the caller has an established
business relationship, or (C) by a tax exempt nonprofit
organization.
(5) The term ``unsolicited advertisement'' means any
material advertising the commercial availability or
quality of any property, goods, or services which is
transmitted to any person without that person's prior
express invitation or permission, in writing or
otherwise.
(b) Restrictions on Use of Automated Telephone Equipment.--
(1) Prohibitions.--It shall be unlawful for any
person within the United States, or any person outside
the United States if the recipient is within the United
States--
(A) to make any call (other than a call made
for emergency purposes or made with the prior
express consent of the called party) using any
automatic telephone dialing system or an
artificial or prerecorded voice--
(i) to any emergency telephone line
(including any ``911'' line and any
emergency line of a hospital, medical
physician or service office, health
care facility, poison control center,
or fire protection or law enforcement
agency);
(ii) to the telephone line of any
guest room or patient room of a
hospital, health care facility, elderly
home, or similar establishment; or
(iii) to any telephone number
assigned to a paging service, cellular
telephone service, specialized mobile
radio service, or other radio common
carrier service, or any service for
which the called party is charged for
the call;
(B) to initiate any telephone call to any
residential telephone line using an artificial
or prerecorded voice to deliver a message
without the prior express consent of the called
party, unless the call is initiated for
emergency purposes or is exempted by rule or
order by the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine,
computer, or other device to send, to a
telephone facsimile machine, an unsolicited
advertisement, unless--
(i) the unsolicited advertisement is
from a sender with an established
business relationship with the
recipient;
(ii) the sender obtained the number
of the telephone facsimile machine
through--
(I) the voluntary
communication of such number,
within the context of such
established business
relationship, from the
recipient of the unsolicited
advertisement, or
(II) a directory,
advertisement, or site on the
Internet to which the recipient
voluntarily agreed to make
available its facsimile number
for public distribution,except
that this clause shall not
apply in the case of an
unsolicited advertisement that
is sent based on an established
business relationship with the
recipient that was in existence
before the date of enactment of
the Junk Fax Prevention Act of
2005 if the sender possessed
the facsimile machine number of
the recipient before such date
of enactment; and
(iii) the unsolicited advertisement
contains a notice meeting the
requirements under paragraph (2)(D),
except that the exception under clauses
(i) and (ii) shall not apply with
respect to an unsolicited advertisement
sent to a telephone facsimile machine
by a sender to whom a request has been
made not to send future unsolicited
advertisements to such telephone
facsimile machine that complies with
the requirements under paragraph
(2)(E); or
(D) to use an automatic telephone dialing
system in such a way that two or more telephone
lines of a multi-line business are engaged
simultaneously.
(2) Regulations; exemptions and other provisions.--
The Commission shall prescribe regulations to implement
the requirements of this subsection. In implementing
the requirements of this subsection, the Commission--
(A) shall consider prescribing regulations to
allow businesses to avoid receiving calls made
using an artificial or prerecorded voice to
which they have not given their prior express
consent;
(B) may, by rule or order, exempt from the
requirements of paragraph (1)(B) of this
subsection, subject to such conditions as the
Commission may prescribe--
(i) calls that are not made for a
commercial purpose; and
(ii) such classes or categories of
calls made for commercial purposes as
the Commission determines--
(I) will not adversely affect
the privacy rights that this
section is intended to protect;
and
(II) do not include the
transmission of any unsolicited
advertisement;
(C) may, by rule or order, exempt from the
requirements of paragraph (1)(A)(iii) of this
subsection calls to a telephone number assigned
to a cellular telephone service that are not
charged to the called party, subject to such
conditions as the Commission may prescribe as
necessary in the interest of the privacy rights
this section is intended to protect;
(D) shall provide that a notice contained in
an unsolicited advertisement complies with the
requirements under this subparagraph only if--
(i) the notice is clear and
conspicuous and on the first page of
the unsolicited advertisement;
(ii) the notice states that the
recipient may make a request to the
sender of the unsolicited advertisement
not to send any future unsolicited
advertisements to a telephone facsimile
machine or machines and that failure to
comply, within the shortest reasonable
time, as determined by the Commission,
with such a request meeting the
requirements under subparagraph (E) is
unlawful;
(iii) the notice sets forth the
requirements for a request under
subparagraph (E);
(iv) the notice includes--
(I) a domestic contact
telephone and facsimile machine
number for the recipient to
transmit such a request to the
sender; and
(II) a cost-free mechanism
for a recipient to transmit a
request pursuant to such notice
to the sender of the
unsolicited advertisement; the
Commission shall by rule
require the sender to provide
such a mechanism and may, in
the discretion of the
Commission and subject to such
conditions as the Commission
may prescribe, exempt certain
classes of small business
senders, but only if the
Commission determines that the
costs to such class are unduly
burdensome given the revenues
generated by such small
businesses;
(v) the telephone and facsimile
machine numbers and the cost-free
mechanism set forth pursuant to clause
(iv) permit an individual or business
to make such a request at any time on
any day of the week; and
(vi) the notice complies with the
requirements of subsection (d);
(E) shall provide, by rule, that a request
not to send future unsolicited advertisements
to a telephone facsimile machine complies with
the requirements under this subparagraph only
if--
(i) the request identifies the
telephone number or numbers of the
telephone facsimile machine or machines
to which the request relates;
(ii) the request is made to the
telephone or facsimile number of the
sender of such an unsolicited
advertisement provided pursuant to
subparagraph (D)(iv) or by any other
method of communication as determined
by the Commission; and
(iii) the person making the request
has not, subsequent to such request,
provided express invitation or
permission to the sender, in writing or
otherwise, to send such advertisements
to such person at such telephone
facsimile machine;
(F) may, in the discretion of the Commission
and subject to such conditions as the
Commission may prescribe, allow professional or
trade associations that are tax-exempt
nonprofit organizations to send unsolicited
advertisements to their members in furtherance
of the association's tax-exempt purpose that do
not contain the notice required by paragraph
(1)(C)(iii), except that the Commission may
take action under this subparagraph only--
(i) by regulation issued after public
notice and opportunity for public
comment; and
(ii) if the Commission determines
that such notice required by paragraph
(1)(C)(iii) is not necessary to protect
the ability of the members of such
associations to stop such associations
from sending any future unsolicited
advertisements; and
(G)(i) may, consistent with clause (ii),
limit the duration of the existence of an
established business relationship, however,
before establishing any such limits, the
Commission shall--
(I) determine whether the
existence of the exception
under paragraph (1)(C) relating
to an established business
relationship has resulted in a
significant number of
complaints to the Commission
regarding the sending of
unsolicited advertisements to
telephone facsimile machines;
(II) determine whether a
significant number of any such
complaints involve unsolicited
advertisements that were sent
on the basis of an established
business relationship that was
longer in duration than the
Commission believes is
consistent with the reasonable
expectations of consumers;
(III) evaluate the costs to
senders of demonstrating the
existence of an established
business relationship within a
specified period of time and
the benefits to recipients of
establishing a limitation on
such established business
relationship; and
(IV) determine whether with
respect to small businesses,
the costs would not be unduly
burdensome; and
(ii) may not commence a proceeding to
determine whether to limit the duration
of the existence of an established
business relationship before the
expiration of the 3-month period that
begins on the date of the enactment of
the Junk Fax Prevention Act of 2005.
(3) Private right of action.--A person or entity may,
if otherwise permitted by the laws or rules of court of
a State, bring in an appropriate court of that State--
(A) an action based on a violation of this
subsection or the regulations prescribed under
this subsection to enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive $500
in damages for each such violation, whichever
is greater, or
(C) both such actions.
If the court finds that the defendant willfully or
knowingly violated this subsection or the regulations
prescribed under this subsection, the court may, in its
discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount
available under subparagraph (B) of this paragraph.
(c) Protection of Subscriber Privacy Rights.--
(1) Rulemaking proceeding required.--Within 120 days
after the date of enactment of this section, the
Commission shall initiate a rulemaking proceeding
concerning the need to protect residential telephone
subscribers' privacy rights to avoid receiving
telephone solicitations to which they object. The
proceeding shall--
(A) compare and evaluate alternative methods
and procedures (including the use of electronic
databases, telephone network technologies,
special directory markings, industry-based or
company-specific 'do not call' systems, and any
other alternatives, individually or in
combination) for their effectiveness in
protecting such privacy rights, and in terms of
their cost and other advantages and
disadvantages;
(B) evaluate the categories of public and
private entities that would have the capacity
to establish and administer such methods and
procedures;
(C) consider whether different methods and
procedures may apply for local telephone
solicitations, such as local telephone
solicitations of small businesses or holders of
second class mail permits;
(D) consider whether there is a need for
additional Commission authority to further
restrict telephone solicitations, including
those calls exempted under subsection (a)(3) of
this section, and, if such a finding is made
and supported by the record, propose specific
restrictions to the Congress; and
(E) develop proposed regulations to implement
the methods and procedures that the Commission
determines are most effective and efficient to
accomplish the purposes of this section.
(2) Regulations.--Not later than 9 months after the
date of enactment of this section, the Commission shall
conclude the rulemaking proceeding initiated under
paragraph (1) and shall prescribe regulations to
implement methods and procedures for protecting the
privacy rights described in such paragraph in an
efficient, effective, and economic manner and without
the imposition of any additional charge to telephone
subscribers.
(3) Use of database permitted.--The regulations
required by paragraph (2) may require the establishment
and operation of a single national database to compile
a list of telephone numbers of residential subscribers
who object to receiving telephone solicitations, and to
make that compiled list and parts thereof available for
purchase. If the Commission determines to require such
a database, such regulations shall--
(A) specify a method by which the Commission
will select an entity to administer such
database;
(B) require each common carrier providing
telephone exchange service, in accordance with
regulations prescribed by the Commission, to
inform subscribers for telephone exchange
service of the opportunity to provide
notification, in accordance with regulations
established under this paragraph, that such
subscriber objects to receiving telephone
solicitations;
(C) specify the methods by which each
telephone subscriber shall be informed, by the
common carrier that provides local exchange
service to that subscriber, of (i) the
subscriber's right to give or revoke a
notification of an objection under subparagraph
(A), and (ii) the methods by which such right
may be exercised by the subscriber;
(D) specify the methods by which such
objections shall be collected and added to the
database;
(E) prohibit any residential subscriber from
being charged for giving or revoking such
notification or for being included in a
database compiled under this section;
(F) prohibit any person from making or
transmitting a telephone solicitation to the
telephone number of any subscriber included in
such database;
(G) specify (i) the methods by which any
person desiring to make or transmit telephone
solicitations will obtain access to the
database, by area code or local exchange
prefix, as required to avoid calling the
telephone numbers of subscribers included in
such database; and (ii) the costs to be
recovered from such persons;
(H) specify the methods for recovering, from
persons accessing such database, the costs
involved in identifying, collecting, updating,
disseminating, and selling, and other
activities relating to, the operations of the
database that are incurred by the entities
carrying out those activities;
(I) specify the frequency with which such
database will be updated and specify the method
by which such updating will take effect for
purposes of compliance with the regulations
prescribed under this subsection;
(J) be designed to enable States to use the
database mechanism selected by the Commission
for purposes of administering or enforcing
State law;
(K) prohibit the use of such database for any
purpose other than compliance with the
requirements of this section and any such State
law and specify methods for protection of the
privacy rights of persons whose numbers are
included in such database; and
(L) require each common carrier providing
services to any person for the purpose of
making telephone solicitations to notify such
person of the requirements of this section and
the regulations thereunder.
(4) Considerations required for use of database
method.--If the Commission determines to require the
database mechanism described in paragraph (3), the
Commission shall--
(A) in developing procedures for gaining
access to the database, consider the different
needs of telemarketers conducting business on a
national, regional, State, or local level;
(B) develop a fee schedule or price structure
for recouping the cost of such database that
recognizes such differences and--
(i) reflect the relative costs of
providing a national, regional, State,
or local list of phone numbers of
subscribers who object to receiving
telephone solicitations;
(ii) reflect the relative costs of
providing such lists on paper or
electronic media; and
(iii) not place an unreasonable
financial burden on small businesses;
and
(C) consider (i) whether the needs of
telemarketers operating on a local basis could
be met through special markings of area white
pages directories, and (ii) if such directories
are needed as an adjunct to database lists
prepared by area code and local exchange
prefix.
(5) Private right of action.--A person who has
received more than one telephone call within any 12-
month period by or on behalf of the same entity in
violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or
rules of court of a State bring in an appropriate court
of that State--
(A) an action based on a violation of the
regulations prescribed under this subsection to
enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive up to
$500 in damages for each such violation,
whichever is greater, or
(C) both such actions.It shall be an
affirmative defense in any action brought under
this paragraph that the defendant has
established and implemented, with due care,
reasonable practices and procedures to
effectively prevent telephone solicitations in
violation of the regulations prescribed under
this subsection. If the court finds that the
defendant willfully or knowingly violated the
regulations prescribed under this subsection,
the court may, in its discretion, increase the
amount of the award to an amount equal to not
more than 3 times the amount available under
subparagraph (B) of this paragraph.
(6) Relation to subsection (b).--The provisions of
this subsection shall not be construed to permit a
communication prohibited by subsection (b).
(d) Technical and Procedural Standards.--
(1) Prohibition.--It shall be unlawful for any person
within the United States--
(A) to initiate any communication using a
telephone facsimile machine, or to make any
telephone call using any automatic telephone
dialing system, that does not comply with the
technical and procedural standards prescribed
under this subsection, or to use any telephone
facsimile machine or automatic telephone
dialing system in a manner that does not comply
with such standards; or
(B) to use a computer or other electronic
device to send any message via a telephone
facsimile machine unless such person clearly
marks, in a margin at the top or bottom of each
transmitted page of the message or on the first
page of the transmission, the date and time it
is sent and an identification of the business,
other entity, or individual sending the message
and the telephone number of the sending machine
or of such business, other entity, or
individual.
(2) Telephone facsimile machines.--The Commission
shall revise the regulations setting technical and
procedural standards for telephone facsimile machines
to require that any such machine which is manufactured
after one year after the date of enactment of this
section clearly marks, in a margin at the top or bottom
of each transmitted page or on the first page of each
transmission, the date and time sent, an identification
of the business, other entity, or individual sending
the message, and the telephone number of the sending
machine or of such business, other entity, or
individual.
(3) Artificial or prerecorded voice systems.--The
Commission shall prescribe technical and procedural
standards for systems that are used to transmit any
artificial or prerecorded voice message via telephone.
Such standards shall require that--
(A) all artificial or prerecorded telephone
messages (i) shall, at the beginning of the
message, state clearly the identity of the
business, individual, or other entity
initiating the call, and (ii) shall, during or
after the message, state clearly the telephone
number or address of such business, other
entity, or individual; and
(B) any such system will automatically
release the called party's line within 5
seconds of the time notification is transmitted
to the system that the called party has hung
up, to allow the called party's line to be used
to make or receive other calls.
(e) Prohibition on Provision of Inaccurate Caller
Identification Information.--
(1) In general.--It shall be unlawful for any person
within the United States, in connection with any
telecommunications service or IP-enabled voice service,
to cause any caller identification service to transmit
misleading or inaccurate caller identification
information, unless such transmission is exempted
pursuant to paragraph (3)(B).
(2) Protection for blocking caller identification
information.--Nothing in this subsection may be
construed to prevent or restrict any person from
blocking the capability of any caller identification
service to transmit caller identification information.
(3) Regulations.--
(A) In general.--Not later than 6 months
after the enactment of the Truth in Caller ID
Act of 2006, the Commission shall prescribe
regulations to implement this subsection.
(B) Content of regulations.--
(i) In general.--The regulations
required under subparagraph (A) shall
include such exemptions from the
prohibition under paragraph (1) as the
Commission determines appropriate.
(ii) Specific exemption for law
enforcement agencies, national security
activities, or court orders.--The
regulations required under subparagraph
(A) shall exempt from the prohibition
under paragraph (1) transmissions in
connection with--
(I) any authorized law
enforcement or national
security activity of an agency
of the United States, a State,
or a political subdivision of a
State; or
(II) a court order that
specifically authorizes the use
of caller identification
manipulation.
(4) Report.--Not later than 6 months after the
enactment of the Truth in Caller ID Act of 2006, the
Commission shall report to Congress whether additional
legislation is necessary to prohibit the provision of
inaccurate caller identification information in
technologies that are successor or replacement
technologies to telecommunications service or IP-
enabled voice service.
(5) Penalties.--
(A) Civil forfeiture.--
(i) In general.--Any person that is
determined by the Commission, in
accordance with paragraphs (3) and (4)
of section 503(b), to have violated
this subsection shall be liable to the
United States for a forfeiture penalty.
A forfeiture penalty under this
paragraph shall be in addition to any
other penalty provided for by this Act.
The amount of the forfeiture penalty
determined under this paragraph shall
not exceed $10,000 for each violation,
or 3 times that amount for each day of
a continuing violation, except that the
amount assessed for any continuing
violation shall not exceed a total of
$1,000,000 for any single act or
failure to act.
(ii) Recovery.--Any forfeiture
penalty determined under clause (i)
shall be recoverable pursuant to
section 504(a).
(iii) Procedure.--No forfeiture
liability shall be determined under
clause (i) against any person unless
such person receives the notice
required by section 503(b)(3) or
section 503(b)(4).
(iv) 2-year statute of limitations.--
No forfeiture penalty shall be
determined or imposed against any
person under clause (i) if the
violation charged occurred more than 2
years prior to the date of issuance of
the required notice or notice or
apparent liability.
(B) Criminal fine.--Any person who willfully
and knowingly violates this subsection shall
upon conviction thereof be fined not more than
$10,000 for each violation, or 3 times that
amount for each day of a continuing violation,
in lieu of the fine provided by section 501 for
such a violation. This subparagraph does not
supersede the provisions of section 501
relating to imprisonment or the imposition of a
penalty of both fine and imprisonment.
(6) Enforcement by states.--
(A) In general.--The chief legal officer of a
State, or any other State officer authorized by
law to bring actions on behalf of the residents
of a State, may bring a civil action, as parens
patriae, on behalf of the residents of that
State in an appropriate district court of the
United States to enforce this subsection or to
impose the civil penalties for violation of
this subsection, whenever the chief legal
officer or other State officer has reason to
believe that the interests of the residents of
the State have been or are being threatened or
adversely affected by a violation of this
subsection or a regulation under this
subsection.
(B) Notice.--The chief legal officer or other
State officer shall serve written notice on the
Commission of any civil action under
subparagraph (A) prior to initiating such civil
action. The notice shall include a copy of the
complaint to be filed to initiate such civil
action, except that if it is not feasible for
the State to provide such prior notice, the
State shall provide such notice immediately
upon instituting such civil action.
(C) Authority to intervene.--Upon receiving
the notice required by subparagraph (B), the
Commission may intervene in such civil action
and upon intervening--
(i) be heard on all matters arising
in such civil action; and
(ii) file petitions for appeal of a
decision in such civil action.
(D) Construction.--For purposes of bringing
any civil action under subparagraph (A),
nothing in this paragraph shall prevent the
chief legal officer or other State officer from
exercising the powers conferred on that officer
by the laws of such State to conduct
investigations or to administer oaths or
affirmations or to compel the attendance of
witnesses or the production of documentary and
other evidence.
(E) Venue; service of process.--
(i) Venue.--An action brought under
subparagraph (A) shall be brought in a
district court of the United States
that meets applicable requirements
relating to venue under section 1391 of
title 28, United States Code.
(ii) Service of process.--In an
action brought under subparagraph (A)--
(I) process may be served
without regard to the
territorial limits of the
district or of the State in
which the action is instituted;
and
(II) a person who
participated in an alleged
violation that is being
litigated in the civil action
may be joined in the civil
action without regard to the
residence of the person.
(F) Limitation on state action while federal
action is pending.--If the Commission has
instituted an enforcement action or proceeding
for violation of this subsection, the chief
legal officer or other State officer of the
State in which the violation occurred may not
bring an action under this section during the
pendency of the proceeding against any person
with respect to whom the Commission has
instituted the proceeding.
(7) Definitions.--For purposes of this subsection:
(A) Caller identification information.--The
term ``caller identification information''
means information provided by a caller
identification service regarding the telephone
number of, or other information regarding the
origination of, a call made using a
telecommunications service or IP-enabled voice
service.
(B) Caller identification service.--The term
``caller identification service'' means any
service or device designed to provide the user
of the service or device with the telephone
number of, or other information regarding the
origination of, a call made using a
telecommunications service or IP-enabled voice
service. Such term includes automatic number
identification services.
(C) IP-enabled voice service.--The term ``IP-
enabled voice service'' means the provision of
real-time 2-way voice communications offered to
the public, or such classes of users as to be
effectively available to the public,
transmitted through customer premises equipment
using Internet protocol, or a successor
protocol, for a fee (whether part of a bundle
of services or separately) with interconnection
capability such that the service can originate
traffic to, or terminate traffic from, the
public switched telephone network.
(8) Limitation.--Notwithstanding any other provision
of this section, subsection (f) shall not apply to this
subsection or to the regulations under this subsection.
[(e)] (f) Effect on State Law.--
(1) State law not preempted.--Except for the
standards prescribed under subsection (d) and subject
to paragraph (2) of this subsection, nothing in this
section or in the regulations prescribed under this
section shall preempt any State law that imposes more
restrictive intrastate requirements or regulations on,
or which prohibits--
(A) the use of telephone facsimile machines
or other electronic devices to send unsolicited
advertisements;
(B) the use of automatic telephone dialing
systems;
(C) the use of artificial or prerecorded
voice messages; or
(D) the making of telephone solicitations.
(2) State use of databases.--If, pursuant to
subsection (c)(3), the Commission requires the
establishment of a single national database of
telephone numbers of subscribers who object to
receiving telephone solicitations, a State or local
authority may not, in its regulation of telephone
solicitations, require the use of any database, list,
or listing system that does not include the part of
such single national database that relates to such
State.
[(f)] (g) Actions by States.--
(1) Authority of states.--Whenever the attorney
general of a State, or an official or agency designated
by a State, has reason to believe that any person has
engaged or is engaging in a pattern or practice of
telephone calls or other transmissions to residents of
that State in violation of this section or the
regulations prescribed under this section, the State
may bring a civil action on behalf of its residents to
enjoin such calls, an action to recover for actual
monetary loss or receive $500 in damages for each
violation, or both such actions. If the court finds the
defendant willfully or knowingly violated such
regulations, the court may, in its discretion, increase
the amount of the award to an amount equal to not more
than 3 times the amount available under the preceding
sentence.
(2) Exclusive jurisdiction of federal courts.--The
district courts of the United States, the United States
courts of any territory, and the District Court of the
United States for the District of Columbia shall have
exclusive jurisdiction over all civil actions brought
under this subsection. Upon proper application, such
courts shall also have jurisdiction to issue writs of
mandamus, or orders affording like relief, commanding
the defendant to comply with the provisions of this
section or regulations prescribed under this section,
including the requirement that the defendant take such
action as is necessary to remove the danger of such
violation. Upon a proper showing, a permanent or
temporary injunction or restraining order shall be
granted without bond.
(3) Rights of commission.--The State shall serve
prior written notice of any such civil action upon the
Commission and provide the Commission with a copy of
its complaint, except in any case where such prior
notice is not feasible, in which case the State shall
serve such notice immediately upon instituting such
action. The Commission shall have the right (A) to
intervene in the action, (B) upon so intervening, to be
heard on all matters arising therein, and (C) to file
petitions for appeal.
(4) Venue; service of process.--Any civil action
brought under this subsection in a district court of
the United States may be brought in the district
wherein the defendant is found or is an inhabitant or
transacts business or wherein the violation occurred or
is occurring, and process in such cases may be served
in any district in which the defendant is an inhabitant
or where the defendant may be found.
(5) Investigatory powers.--For purposes of bringing
any civil action under this subsection, nothing in this
section shall prevent the attorney general of a State,
or an official or agency designated by a State, from
exercising the powers conferred on the attorney general
or such official by the laws of such State to conduct
investigations or to administer oaths or affirmations
or to compel the attendance of witnesses or the
production of documentary and other evidence.
(6) Effect on state court proceedings.--Nothing
contained in this subsection shall be construed to
prohibit an authorized State official from proceeding
in State court on the basis of an alleged violation of
any general civil or criminal statute of such State.
(7) Limitation.--Whenever the Commission has
instituted a civil action for violation of regulations
prescribed under this section, no State may, during the
pendency of such action instituted by the Commission,
subsequently institute a civil action against any
defendant named in the Commission's complaint for any
violation as alleged in the Commission's complaint.
(8) Definition.--As used in this subsection, the term
``attorney general'' means the chief legal officer of a
State.
[(g)] (h) Junk Fax Enforcement Report.--The Commission shall
submit an annual report to Congress regarding the enforcement
during the past year of the provisions of this section relating
to sending of unsolicited advertisements to telephone facsimile
machines, which report shall include--
(1) the number of complaints received by the
Commission during such year alleging that a consumer
received an unsolicited advertisement via telephone
facsimile machine in violation of the Commission's
rules;
(2) the number of citations issued by the Commission
pursuant to section 503 during the year to enforce any
law, regulation, or policy relating to sending of
unsolicited advertisements to telephone facsimile
machines;
(3) the number of notices of apparent liability
issued by the Commission pursuant to section 503 during
the year to enforce any law, regulation, or policy
relating to sending of unsolicited advertisements to
telephone facsimile machines;
(4) for each notice referred to in paragraph (3)--
(A) the amount of the proposed forfeiture
penalty involved;
(B) the person to whom the notice was issued;
(C) the length of time between the date on
which the complaint was filed and the date on
which the notice was issued; and
(D) the status of the proceeding;
(5) the number of final orders imposing forfeiture
penalties issued pursuant to section 503 during the
year to enforce any law, regulation, or policy relating
to sending of unsolicited advertisements to telephone
facsimile machines;
(6) for each forfeiture order referred to in
paragraph (5)--
(A) the amount of the penalty imposed by the
order;
(B) the person to whom the order was issued;
(C) whether the forfeiture penalty has been
paid; and
(D) the amount paid;
(7) for each case in which a person has failed to pay
a forfeiture penalty imposed by such a final order,
whether the Commission referred such matter for
recovery of the penalty; and
(8) for each case in which the Commission referred
such an order for recovery--
(A) the number of days from the date the
Commission issued such order to the date of
such referral;
(B) whether an action has been commenced to
recover the penalty, and if so, the number of
days from the date the Commission referred such
order for recovery to the date of such
commencement; and
(C) whether the recovery action resulted in
collection of any amount, and if so, the amount
collected.
* * * * * * *
PART II. DEVELOPMENT OF COMPETITIVE MARKETS
SEC. 251. INTERCONNECTION.
[47 U.S.C. 251]
(a) General Duty of Telecommunications Carriers.--Each
telecommunications carrier has the duty--
(1) to interconnect directly or indirectly with the
facilities and equipment of other telecommunications
carriers; and
(2) not to install network features, functions, or
capabilities that do not comply with the guidelines and
standards established pursuant to section 255 or 256.
(b) Obligations of All Local Exchange Carriers.--Each local
exchange carrier has the following duties:
(1) Resale.--The duty not to prohibit, and not to
impose unreasonable or discriminatory conditions or
limitations on, the resale of its telecommunications
services.
(2) Number portability.--The duty to provide, to the
extent technically feasible, number portability in
accordance with requirements prescribed by the
Commission.
(3) Dialing parity.--The duty to provide dialing
parity to competing providers of telephone exchange
service and telephone toll service, and the duty to
permit all such providers to have nondiscriminatory
access to telephone numbers, operator services,
directory assistance, and directory listing, with no
unreasonable dialing delays.
(4) Access to rights-of-way.--The duty to afford
access to the poles, ducts, conduits, and rights-of-way
of such carrier to competing providers of
telecommunications services on rates, terms, and
conditions that are consistent with section 224.
(5) Reciprocal compensation.--The duty to establish
reciprocal compensation arrangements for the transport
and termination of telecommunications.
(c) Additional Obligations of Incumbent Local Exchange
Carriers.--In addition to the duties contained in subsection
(b), each incumbent local exchange carrier has the following
duties:
(1) Duty to negotiate.--The duty to negotiate in good
faith in accordance with section 252 the particular
terms and conditions of agreements to fulfill the
duties described in paragraphs (1) through (5) of
subsection (b) and this subsection. The requesting
telecommunications carrier also has the duty to
negotiate in good faith the terms and conditions of
such agreements.
(2) Interconnection.--The duty to provide, for the
facilities and equipment of any requesting
telecommunications carrier, interconnection with the
local exchange carrier's network--
(A) for the transmission and routing of
telephone exchange service and exchange access;
(B) at any technically feasible point within
the carrier's network;
(C) that is at least equal in quality to that
provided by the local exchange carrier to
itself or to any subsidiary, affiliate, or any
other party to which the carrier provides
interconnection; and
(D) on rates, terms, and conditions that are
just, reasonable, and nondiscriminatory, in
accordance with the terms and conditions of the
agreement and the requirements of this section
and section 252.
(3) Unbundled access.--The duty to provide, to any
requesting telecommunications carrier for the provision
of a telecommunications service, nondiscriminatory
access to network elements on an unbundled basis at any
technically feasible point on rates, terms, and
conditions that are just, reasonable, and
nondiscriminatory in accordance with the terms and
conditions of the agreement and the requirements of
this section and section 252. An incumbent local
exchange carrier shall provide such unbundled network
elements in a manner that allows requesting carriers to
combine such elements in order to provide such
telecommunications service.
(4) Resale.--The duty--
(A) to offer for resale at wholesale rates
any telecommunications service that the carrier
provides at retail to subscribers who are not
telecommunications carriers; and
(B) not to prohibit, and not to impose
unreasonable or discriminatory conditions or
limitations on, the resale of such
telecommunications service, except that a State
commission may, consistent with regulations
prescribed by the Commission under this
section, prohibit a reseller that obtains at
wholesale rates a telecommunications service
that is available at retail only to a category
of subscribers from offering such service to a
different category of subscribers.
(5) Notice of changes.--The duty to provide
reasonable public notice of changes in the information
necessary for the transmission and routing of services
using that local exchange carrier's facilities or
networks, as well as of any other changes that would
affect the interoperability of those facilities and
networks.
(6) Collocation.--The duty to provide, on rates,
terms, and conditions that are just, reasonable, and
nondiscriminatory, for physical collocation of
equipment necessary for interconnection or access to
unbundled network elements at the premises of the local
exchange carrier, except that the carrier may provide
for virtual collocation if the local exchange carrier
demonstrates to the State commission that physical
collocation is not practical for technical reasons or
because of space limitations.
(d) Implementation.--
(1) In general.--Within 6 months after the date of
enactment of the Telecommunications Act of 1996, the
Commission shall complete all actions necessary to
establish regulations to implement the requirements of
this section.
(2) Access standards.--In determining what network
elements should be made available for purposes of
subsection (c)(3), the Commission shall consider, at a
minimum, whether--
(A) access to such network elements as are
proprietary in nature is necessary; and
(B) the failure to provide access to such
network elements would impair the ability of
the telecommunications carrier seeking access
to provide the services that it seeks to offer.
(3) Preservation of state access regulations.--In
prescribing and enforcing regulations to implement the
requirements of this section, the Commission shall not
preclude the enforcement of any regulation, order, or
policy of a State commission that--
(A) establishes access and interconnection
obligations of local exchange carriers;
(B) is consistent with the requirements of
this section; and
(C) does not substantially prevent
implementation of the requirements of this
section and the purposes of this part.
(e) Numbering Administration.--
(1) Commission authority and jurisdiction.--The
Commission shall create or designate one or more
impartial entities to administer telecommunications
numbering and to make such numbers available on an
equitable basis. The Commission shall have exclusive
jurisdiction over those portions of the North American
Numbering Plan that pertain to the United States.
Nothing in this paragraph shall preclude the Commission
from delegating to State commissions or other entities
all or any portion of such jurisdiction.
(2) Costs.--The cost of establishing
telecommunications numbering administration
arrangements and number portability shall be borne by
all telecommunications carriers on a competitively
neutral basis as determined by the Commission.
(3) Universal emergency telephone number.--The
Commission and any agency or entity to which the
Commission has delegated authority under this
subsection shall designate
9-1-1 as the universal emergency telephone number
within the United States for reporting an emergency to
appropriate authorities and requesting assistance. The
designation shall apply to both wireline and wireless
telephone service. In making the designation, the
Commission (and any such agency or entity) shall
provide appropriate transition periods for areas in
which 9-1-1 is not in use as an emergency telephone
number on the date of enactment of the Wireless
Communications and Public Safety Act of 1999.
(f) Exemptions, Suspensions, and Modifications.--
(1) Exemption for certain rural telephone
companies.--
(A) Exemption.--[Subsection] Except as
provided in subparagraph (B), subsection (c) of
this section shall not apply to a rural
telephone company until (i) such company has
received a bona fide request for
[interconnection, services, or network
elements,] services or network elements and
(ii) the State commission determines [(under
subparagraph (B))] (under subparagraph (C))
that such request is not unduly economically
burdensome, is technically feasible, and is
consistent with section 254 (other than
subsections (b)(7) and (c)(1)(D) thereof).
(B) Certain carriers.--Subsection (c) (other
than paragraphs (1) and (2) thereof) of this
section shall not apply to a rural telephone
company in Alaska with fewer than 10 access
lines per square mile installed in the
aggregate in its service area (as defined in
section 214(e)(5)).
(C) Interconnection.--Notwithstanding
subparagraphs (A) and (D), paragraphs (1) and
(2) of subsection (c) of this section shall not
apply to a rural telephone company until such
company has received a bona fide request for
interconnection.
[(B)] (D) State termination of exemption and
implementation schedule.--The party making a
bona fide request of a rural telephone company
for [interconnection, services, or network
elements] services or network elements shall
submit a notice of its request to the State
commission. The State commission shall conduct
an inquiry for the purpose of determining
whether to terminate the exemption under
subparagraph (A). Within 120 days after the
State commission receives notice of the
request, the State commission shall terminate
the exemption if the request is not unduly
economically burdensome, is technically
feasible, and is consistent with section 254
(other than subsections (b)(7) and (c)(1)(D)
thereof). Upon termination of the exemption, a
State commission shall establish an
implementation schedule for compliance with the
request that is consistent in time and manner
with Commission regulations.
[(C) Limitation on exemption.--The exemption
provided by this paragraph shall not apply with
respect to a request under subsection (c) from
a cable operator providing video programming,
and seeking to provide any telecommunications
service, in the area in which the rural
telephone company provides video programming.
The limitation contained in this subparagraph
shall not apply to a rural telephone company
that is providing video programming on the date
of enactment of the Telecommunications Act of
1996.]
(2) Suspensions and modifications for rural
carriers.--A local exchange carrier with fewer than 2
percent of the Nation's subscriber lines installed in
the aggregate nationwide may petition a State
commission for a suspension or modification of the
application of a requirement or requirements of
subsection (b) or (c) (other than paragraphs (1) and
(2) of subsection (c)) to telephone exchange service
facilities specified in such petition. The State
commission shall grant such petition to the extent
that, and for such duration as, the State commission
determines that such suspension or modification--
(A) is necessary--
(i) to avoid a significant adverse
economic impact on users of
telecommunications services generally;
(ii) to avoid imposing a requirement
that is unduly economically burdensome;
or
(iii) to avoid imposing a requirement
that is technically infeasible; and
(B) is consistent with the public interest,
convenience, and necessity.
The State commission shall act upon any petition filed
under this paragraph within 180 days after receiving
such petition. Pending such action, the State
commission may suspend enforcement of the requirement
or requirements to which the petition applies with
respect to the petitioning carrier or carriers.
(g) Continued Enforcement of Exchange Access and
Interconnection Requirements.--On and after the date of
enactment of the Telecommunications Act of 1996, each local
exchange carrier, to the extent that it provides wireline
services, shall provide exchange access, information access,
and exchange services for such access to interexchange carriers
and information service providers in accordance with the same
equal access and nondiscriminatory interconnection restrictions
and obligations (including receipt of compensation) that apply
to such carrier on the date immediately preceding the date of
enactment of the Telecommunications Act of 1996 under any court
order, consent decree, or regulation, order, or policy of the
Commission, until such restrictions and obligations are
explicitly superseded by regulations prescribed by the
Commission after such date of enactment. During the period
beginning on such date of enactment and until such restrictions
and obligations are so superseded, such restrictions and
obligations shall be enforceable in the same manner as
regulations of the Commission.
(h) Definition of Incumbent Local Exchange Carrier.--
(1) Definition.--For purposes of this section, the
term ``incumbent local exchange carrier'' means, with
respect to an area, the local exchange carrier that--
(A) on the date of enactment of the
Telecommunications Act of 1996, provided
telephone exchange service in such area; and
(B) (i) on such date of enactment, was deemed
to be a member of the exchange carrier
association pursuant to section 69.601(b) of
the Commission's regulations (47 C.F.R.
69.601(b)); or
(ii) is a person or entity that, on
or after such date of enactment, became
a successor or assign of a member
described in clause (i).
(2) Treatment of comparable carriers as incumbents.--
The Commission may, by rule, provide for the treatment
of a local exchange carrier (or class or category
thereof) as an incumbent local exchange carrier for
purposes of this section if--
(A) such carrier occupies a position in the
market for telephone exchange service within an
area that is comparable to the position
occupied by a carrier described in paragraph
(1);
(B) such carrier has substantially replaced
an incumbent local exchange carrier described
in paragraph (1); and
(C) such treatment is consistent with the
public interest, convenience, and necessity and
the purposes of this section.
(i) Savings provision.--Nothing in this section shall be
construed to limit or otherwise affect the Commission's
authority under section 201.
* * * * * * *
SEC. 254. UNIVERSAL SERVICE.
[47 U.S.C. 254]
(a) Procedures to Review Universal Service Requirements.
(1) Federal-state joint board on universal service.--
Within one month after the date of enactment of the
Telecommunications Act of 1996, the Commission shall
institute and refer to a Federal-State Joint Board
under section 410(c) a proceeding to recommend changes
to any of its regulations in order to implement
sections 214(e) and this section, including the
definition of the services that are supported by
Federal universal service support mechanisms and a
specific timetable for completion of such
recommendations. In addition to the members of the
Joint Board required under section 410(c), one member
of such Joint Board shall be a State-appointed utility
consumer advocate nominated by a national organization
of State utility consumer advocates. The Joint Board
shall, after notice and opportunity for public comment,
make its recommendations to the Commission 9 months
after the date of enactment of the Telecommunications
Act of 1996.
(2) Commission action.--The Commission shall initiate
a single proceeding to implement the recommendations
from the Joint Board required by paragraph (1) and
shall complete such proceeding within 15 months after
the date of enactment of the Telecommunications Act of
1996. The rules established by such proceeding shall
include a definition of the services that are supported
by Federal universal service support mechanisms and a
specific timetable for implementation. Thereafter, the
Commission shall complete any proceeding to implement
subsequent recommendations from any Joint Board on
universal service within one year after receiving such
recommendations.
(b) Universal Service Principles.--The Joint Board and the
Commission shall base policies for the preservation and
advancement of universal service on the following principles:
(1) Quality and rates.--Quality services should be
available at just, reasonable, and affordable rates.
(2) Access to advanced services.--Access to advanced
telecommunications and information services should be
provided in all regions of the Nation.
(3) Access in rural and high cost areas.--Consumers
in all regions of the Nation, including low-income
consumers and those in rural, insular, and high cost
areas, should have access to telecommunications and
information services, including interexchange services
and advanced telecommunications and information
services, that are reasonably comparable to those
services provided in urban areas and that are available
at rates that are reasonably comparable to rates
charged for similar services in urban areas.
(4) Equitable and nondiscriminatory contributions.--
All providers of [telecommunications services]
communications services (as defined in subsection
(d)(6)(B) should make an equitable and
nondiscriminatory contribution to the preservation and
advancement of universal service.
(5) Specific and predictable support mechanisms.--
There should be specific, predictable and sufficient
Federal and State mechanisms to preserve and advance
universal service.
(6) Access to advanced telecommunications services
for schools, health care, and libraries.--Elementary
and secondary schools and classrooms, health care
providers, and libraries should have access to advanced
telecommunications services as described in subsection
(h).
(7) Competitive neutrality.--Universal service
support mechanisms and rules should be competitively
neutral. In this context, competitively neutral means
that universal service support mechanisms and rules
neither unfairly advantage nor disadvantage one
provider over another, and neither unfairly favor nor
disfavor one technology over another.
[(7)] (8) Additional principles.--Such other
principles as the Joint Board and the Commission
determine are necessary and appropriate for the
protection of the public interest, convenience, and
necessity and are consistent with this Act.
(c) Definition.--
(1) In general.--Universal service is an evolving
level of telecommunications services that the
Commission shall establish periodically under this
section, taking into account advances in
telecommunications and information technologies and
services. The Joint Board in recommending, and the
Commission in establishing, the definition of the
services that are supported by Federal universal
service support mechanisms shall consider the extent to
which such telecommunications services--
(A) are essential to education, public
health, or public safety;
(B) have, through the operation of market
choices by customers, been subscribed to by a
substantial majority of residential customers;
(C) are being deployed in public
telecommunications networks by
telecommunications carriers; and
(D) are consistent with the public interest,
convenience, and necessity.
(2) Alterations and modifications.--The Joint Board
may, from time to time, recommend to the Commission
modifications in the definition of the services that
are supported by Federal universal service support
mechanisms.
(3) Special services.--In addition to the services
included in the definition of universal service under
paragraph (1), the Commission may designate additional
services for such support mechanisms for schools,
libraries, and health care providers for the purposes
of subsection (h).
[(d) Telecommunications Carrier Contribution.--Every
telecommunications carrier that provides interstate
telecommunications services shall contribute, on an equitable
and nondiscriminatory basis, to the specific, predictable, and
sufficient mechanisms established by the Commission to preserve
and advance universal service. The Commission may exempt a
carrier or class of carriers from this requirement if the
carrier's telecommunications activities are limited to such an
extent that the level of such carrier's contribution to the
preservation and advancement of universal service would be de
minimis. Any other provider of interstate telecommunications
may be required to contribute to the preservation and
advancement of universal service if the public interest so
requires.]
(d) Universal Service Support Contributions.--
(1) Contribution mechanism.--
(A) In general.--Each communications service
provider shall contribute as provided in this
subsection to support universal service.
(B) Requirements.--The Commission shall
ensure that the contributions required by this
subsection are--
(i) applied in a manner that is as
competitively and technologically
neutral as possible;
(ii) specific, predictable, and
sufficient to sustain the funding of
networks used to preserve and advance
universal service; and
(iii) applied in such a manner that
no methodology results in a
communications services provider being
required to contribute more than once
to support Federal universal service
for the same transaction, activity, or
service.
(C) Adjustments.--The Commission shall adjust
the contribution for communication service
providers for their low-call volume, non-
business customers.
(2) Exemptions.--The Commission may exempt a
communications service provider or any class of
communications service providers from the requirements
of this subsection in the following circumstances:
(A) The services of such a provider are
limited to such an extent that the level of its
contributions would be de minimis.
(B) The communications service is provided
pursuant to the Commission's Lifeline
Assistance Program.
(C) The communications service is provided
only to in-vehicle emergency communications
customers.
(D) The communications service is provided by
a not-for-profit communications service
provider that is neither an affiliate of a for-
profit organization nor has a for-profit
affiliate and which provides voice mailboxes to
low income consumers and the homeless.
(3) Contribution assessment flexibility.--
(A) Methodology.--To achieve the principles
in this section, the Commission may base
universal service contributions upon--
(i) revenue from communications
service;
(ii) in-use working phone numbers or
any other identifier protocol or
connection to the networks; or
(iii) network capacity.
(B) Use of more than 1 methodology.--If no
single methodology employed under subparagraph
(A) achieves the principles described in this
subsection, the Commission may employ a
combination of any such methodologies.
(C) Removal of interstate/intrastate
distinction.--Notwithstanding section 2(b) of
this Act, the Commission may assess the
interstate, intrastate, and international
portions of communications service for the
purpose of universal service contributions.
(D) Group plan discount.--If the Commission
utilizes a methodology under subparagraph (A)
based in whole or in part on in-use working
phone numbers, it may provide a discount for
additional numbers provided under a group or
family pricing plan for residential customers
provided in 1 bill.
(4) Non-discriminatory eligibility requirement.--A
communications service provider is not exempted from
the requirements of this subsection solely on the basis
that such provider is not eligible to receive support
under this section.
(5) Billing.--
(A) In general.--A communications service
provider that contributes to universal service
under this section may place on any customer
bill a separate line item charge that does not
exceed the amount for the customer that the
provider is required to contribute under this
subsection that shall be identified as the
``Federal Universal Service Fee''.
(B) Limitation.--A communications service
provider may not separately bill customers for
administrative costs associated with its
collection and remission of universal service
fees under this subsection.
(6) Definitions.--In this subsection:
(A) Broadband service.--The term ``broadband
service'' means any service (whether part of a
bundle of services or offered separately) used
for transmission of information of a user's
choosing with a transmission speed of at least
200 kilobits per second in at least 1
direction, regardless of the transmission
medium or technology employed, that connects to
the public Internet directly--
(i) to the public; or
(ii) to such classes of users as to
be effectively available directly to
the public.
(B) Communications service.--The term
``communications service'' means
telecommunications service, broadband service,
or IP-enabled voice service (whether part of a
bundle of services or offered separately).
(C) Connection.--The term ``connection''
means the facilities that provide customers
with access to a public or private network,
regardless of whether the connection is
circuit-switched, packet-switched, wireline or
wireless, or leased line.
(D) In-vehicle emergency communications.--The
term ``in-vehicle emergency communications''
means services and technology, including
automatic crash notification, roadside
assistance, SOS distress calls, remote
diagnostics, navigation or location-based
services, and other driver assistance services,
which are integrated into passenger automobiles
to facilitate communications from the
automobile to emergency response professionals.
(E) IP-enabled voice service.--The term ``IP-
enabled voice service'' means the provision of
real-time 2-way voice communications offered to
the public, or such classes of users as to be
effectively available to the public,
transmitted through customer premises equipment
using Internet protocol, or a successor
protocol, for a fee (whether part of a bundle
of services or offered separately) with 2-way
interconnection capability such that the
service can originate traffic to, and terminate
traffic from, the public switched telephone
network.
(F) Working phone numbers.--The term
``working phone number'' means an assigned
number (as defined in section 52.15 of the
Commission's regulations (47 C.F.R. 52.15)) or
an intermediate number (as defined in that
section).
(e) Universal Service Support.--After the date on which
Commission regulations implementing this section take effect,
only an eligible telecommunications carrier designated under
section 214(e) shall be eligible to receive specific Federal
universal service support. A carrier that receives such support
shall use that support only for the provision, maintenance, and
upgrading of facilities and services for which the support is
intended. Any such support should be explicit and sufficient to
achieve the purposes of this section.
[(f) State Authority.--A State may adopt regulations not
inconsistent with the Commission's rules to preserve and
advance universal service. Every telecommunications carrier
that provides intrastate telecommunications services shall
contribute, on an equitable and nondiscriminatory basis, in a
manner determined by the State to the preservation and
advancement of universal service in that State. A State may
adopt regulations to provide for additional definitions and
standards to preserve and advance universal service within that
State only to the extent that such regulations adopt additional
specific, predictable, and sufficient mechanisms to support
such definitions or standards that do not rely on or burden
Federal universal service support mechanisms.]
(f) State Authority.--
(1) In general.--A State may adopt regulations not
inconsistent with the Commission's rules to preserve
and advance universal service. In adopting those rules,
a State may require telecommunications service
providers and IP-enabled voice service (as defined in
subsection (d)(6)(E)) providers to contribute to
universal service on the basis of--
(A) revenue;
(B) in-use working phone numbers or any other
identifier protocol or connection to the
networks;
(C) network capacity; or
(D) any combination of such methodologies.
(2) Disregard of interstate component.--A State may
require telecommunications service providers and IP-
enabled voice service providers to contribute under
paragraph (1) regardless of whether the service
contains an interstate component.
(3) Bundling.--If a telecommunications service or IP-
enabled voice service is offered as part of a bundle of
services, the Commission shall determine a fair
allocation of revenue between the telecommunications
service or IP-enabled voice service and other bundled
services if the primary place of use of such bundled
services is within the State.
(4) Guidelines.--Regulations adopted by a State under
this subsection shall result in a specific,
predictable, and sufficient mechanism to support
universal service and shall be competitively and
technologically neutral, equitable, and
nondiscriminatory.
(g) Interexchange and Interstate Services.--Within 6 months
after the date of enactment of the Telecommunications Act of
1996, the Commission shall adopt rules to require that the
rates charged by providers of interexchange telecommunications
services to subscribers in rural and high cost areas shall be
no higher than the rates charged by each such provider to its
subscribers in urban areas. Such rules shall also require that
a provider of interstate interexchange telecommunications
services shall provide such services to its subscribers in each
State at rates no higher than the rates charged to its
subscribers in any other State. This section shall also apply
to any services within the jurisdiction of the Commission that
can be used as effective substitutes for interexchange
telecommunications services, including any such substitute
classified as an information service that uses
telecommunications.
(h) Telecommunications Services for Certain Providers.--
(1) In general.--
(A) Health care providers for rural areas.--
(i) In general._A telecommunications
carrier shall, upon receiving a bona
fide request, provide
telecommunications services which are
necessary for the provision of health
care services in a State, including
deployment of reasonable infrastructure
and instruction relating to such
services, to any public or nonprofit
health care provider that serves
persons who reside in rural areas in
that State at rates that are reasonably
comparable to rates charged for similar
services in urban areas in that State.
A telecommunications carrier providing
service under this paragraph shall be
entitled to have an amount equal to the
difference, if any, between the rates
for services provided to health care
providers for rural areas in a State
and the rates for similar services
provided to other customers in
comparable rural areas in that State
treated as a service obligation as a
part of its obligation to participate
in the mechanisms to preserve and
advance universal [service.] service,
and to receive reimbursement promptly
of any amount in excess of such
obligations to participate in universal
service mechanisms.
(ii) Limitation.--The discount
required under clause (i) shall be
available only to a public or nonprofit
health care provider located in a rural
area.
(iii) Definition.--For purposes of
this subparagraph, the term ``rural
area'' means--
(I) any incorporated or
unincorporated area in the
United States, or in the
territories or insular
possessions of the United
States that has not more than
20,000 inhabitants based on the
most recent available
population statistics published
in the most recent decennial
census issued by the Census
Bureau;
(II) any area located outside
the boundaries of any
incorporated or unincorporated
city, county, or borough that
has more than 20,000
inhabitants based on the most
recent available population
statistics published in the
most recent decennial census
issued by the Census Bureau; or
(III) any area that qualified
as a rural area under the rules
of the Commission in effect on
December 1, 2004.
(B) Educational providers and libraries.--All
telecommunications carriers serving a
geographic area shall, upon a bona fide request
for any of its services that are within the
definition of universal service under
subsection (c)(3), provide such services to
elementary schools, secondary schools, and
libraries for educational purposes at rates
less than the amounts charged for similar
services to other parties. The discount shall
be an amount that the Commission, with respect
to interstate services, and the States, with
respect to intrastate services, determine is
appropriate and necessary to ensure affordable
access to and use of such services by such
entities. A telecommunications carrier
providing service under this paragraph shall--
(i) have an amount equal to the
amount of the discount treated as an
offset to its obligation to contribute
to the mechanisms to preserve and
advance universal service, or
(ii) notwithstanding the provisions
of subsection (e) of this section,
receive reimbursement utilizing the
support mechanisms to preserve and
advance universal service.
(2) Advanced services.--The Commission shall
establish competitively neutral rules--
(A) to enhance, to the extent technically
feasible and economically reasonable, access to
advanced telecommunications and information
services for all public and nonprofit
elementary and secondary school classrooms,
health care providers, and libraries; and
(B) to define the circumstances under which a
telecommunications carrier may be required to
connect its network to such public
institutional telecommunications users.
(3) Terms and conditions.--Telecommunications
services and network capacity provided to a public
institutional telecommunications user under this
subsection may not be sold, resold, or otherwise
transferred by such user in consideration for money or
any other thing of value.
[(4) Eligibility of users.--No entity listed in this
subsection shall be entitled to preferential rates or
treatment as required by this subsection, if such
entity operates as a for-profit business, is a school
described in paragraph (7)(A) with an endowment of more
than $50,000,000, or is a library or library consortium
not eligible for assistance from a State library
administrative agency under the Library Services and
Technology Act.]
(4) Certain users not eligible.--Notwithstanding any
other provision of this subsection, the following
entities are not entitled to preferential rates or
treatment as required by this subsection:
(A) An entity operated as a for-profit
business.
(B) A school described in paragraph (7)(A)
with an endowment of more than $50,000,000.
(C) A library or library consortium not
eligible for assistance under the Library
Services and Technology Act (20 U.S.C. 9101 et
seq.) from a State library administrative
agency.
(D) A library or library consortium not
eligible for assistance funded by a grant under
section 261 of the Library Services and
Technology Act (20 U.S.C. 9161) from an Indian
tribe or other organization.
(5) Requirements for certain schools with computers
having internet access.--
(A) Internet safety.--
(i) In general.--Except as provided
in clause (ii), an elementary or
secondary school having computers with
Internet access may not receive
services at discount rates under
paragraph (1)(B) unless the school,
school board, local educational agency,
or other authority with responsibility
for administration of the school--
(I) submits to the Commission
the certifications described in
subparagraphs (B) and (C);
(II) submits to the
Commission a certification that
an Internet safety policy has
been adopted and implemented
for the school under subsection
(l); and
(III) ensures the use of such
computers in accordance with
the certifications.
(ii) Applicability.--The prohibition
in clause (i) shall not apply with
respect to a school that receives
services at discount rates under
paragraph (1)(B) only for purposes
other than the provision of Internet
access, Internet service, or internal
connections.
(iii) Public notice; hearing.--An
elementary or secondary school
described in clause (i), or the school
board, local educational agency, or
other authority with responsibility for
administration of the school, shall
provide reasonable public notice and
hold at least 1 public hearing or
meeting to address the proposed
Internet safety policy. In the case of
an elementary or secondary school other
than an elementary or secondary school
as defined in section 14101 of the
Elementary and Secondary Education Act
of 1965 (20 U.S.C. 8801), the notice
and hearing required by this clause may
be limited to those members of the
public with a relationship to the
school.
(B) Certification with respect to minors.--A
certification under this subparagraph is a
certification that the school, school board,
local educational agency, or other authority
with responsibility for administration of the
school--
(i) is enforcing a policy of Internet
safety for minors that includes
monitoring the online activities of
minors and the operation of a
technology protection measure with
respect to any of its computers with
Internet access that protects against
access through such computers to visual
depictions that are--
(I) obscene;
(II) child pornography; or
(III) harmful to minors; and
(ii) is enforcing the operation of
such technology protection measure
during any use of such computers by
minors.
(C) Certification with respect to adults.--A
certification under this paragraph is a
certification that the school, school board,
local educational agency, or other authority
with responsibility for administration of the
school--
(i) is enforcing a policy of Internet
safety that includes the operation of a
technology protection measure with
respect to any of its computers with
Internet access that protects against
access through such computers to visual
depictions that are--
(I) obscene; or
(II) child pornography; and
(ii) is enforcing the operation of
such technology protection measure
during any use of such computers.
(D) Disabling during adult use.--An
administrator, supervisor, or other person
authorized by the certifying authority under
subparagraph (A)(i) may disable the technology
protection measure concerned, during use by an
adult, to enable access for bona fide research
or other lawful purpose.
(E) Timing of implementation.
(i) In general.--Subject to clause
(ii) in the case of any school covered
by this paragraph as of the effective
date of this paragraph under section
1721(h) of the Children's Internet
Protection Act, the certification under
subparagraphs (B) and (C) shall be
made--
(I) with respect to the first
program funding year under this
subsection following such
effective date, not later than
120 days after the beginning of
such program funding year; and
(II) with respect to any
subsequent program funding
year, as part of the
application process for such
program funding year.
(ii) Process.--
(I) Schools with internet
safety policy and technology
protection measures in place.--
A school covered by clause (i)
that has in place an Internet
safety policy and technology
protection measures meeting the
requirements necessary for
certification under
subparagraphs (B) and (C) shall
certify its compliance with
subparagraphs (B) and (C)
during each annual program
application cycle under this
subsection, except that with
respect to the first program
funding year after the
effective date of this
paragraph under section 1721(h)
of the Children's Internet
Protection Act, the
certifications shall be made
not later than 120 days after
the beginning of such first
program funding year.
(II) Schools without internet
safety policy and technology
protection measures in place.--
A school covered by clause (i)
that does not have in place an
Internet safety policy and
technology protection measures
meeting the requirements
necessary for certification
under subparagraphs (B) and
(C)--
(aa) for the first
program year after the
effective date of this
subsection in which it
is applying for funds
under this subsection,
shall certify that it
is undertaking such
actions, including any
necessary procurement
procedures, to put in
place an Internet
safety policy and
technology protection
measures meeting the
requirements necessary
for certification under
subparagraphs (B) and
(C); and
(bb) for the second
program year after the
effective date of this
subsection in which it
is applying for funds
under this subsection,
shall certify that it
is in compliance with
subparagraphs (B) and
(C).
Any school that is unable to
certify compliance with such
requirements in such second
program year shall be
ineligible for services at
discount rates or funding in
lieu of services at such rates
under this subsection for such
second year and all subsequent
program years under this
subsection, until such time as
such school comes into
compliance with this paragraph.
(III) Waivers.--Any school
subject to subclause (II) that
cannot come into compliance
with subparagraphs (B) and (C)
in such second year program may
seek a waiver of subclause
(II)(bb) if State or local
procurement rules or
regulations or competitive
bidding requirements prevent
the making of the certification
otherwise required by such
subclause. A school, school
board, local educational
agency, or other authority with
responsibility for
administration of the school
shall notify the Commission of
the applicability of such
subclause to the school. Such
notice shall certify that the
school in question will be
brought into compliance before
the start of the third program
year after the effective date
of this subsection in which the
school is applying for funds
under this subsection.
(F) Noncompliance.--
(i) Failure to submit
certification.--Any school that
knowingly fails to comply with the
application guidelines regarding the
annual submission of certification
required by this paragraph shall not be
eligible for services at discount rates
or funding in lieu of services at such
rates under this subsection.
(ii) Failure to comply with
certification.--Any school that
knowingly fails to ensure the use of
its computers in accordance with a
certification under subparagraphs (B)
and (C) shall reimburse any funds and
discounts received under this
subsection for the period covered by
such certification.
(iii) Remedy of noncompliance.--
(I) Failure to submit.--A
school that has failed to
submit a certification under
clause (i) may remedy the
failure by submitting the
certification to which the
failure relates. Upon submittal
of such certification, the
school shall be eligible for
services at discount rates
under this subsection.
(II) Failure to comply.--A
school that has failed to
comply with a certification as
described in clause (ii) may
remedy the failure by ensuring
the use of its computers in
accordance with such
certification. Upon submittal
to the Commission of a
certification or other
appropriate evidence of such
remedy, the school shall be
eligible for services at
discount rates under this
subsection.
(6) Requirements for certain libraries with computers
having Internet access.--
(A) Internet safety.--
(i) In general.--Except as provided
in clause (ii), a library having one or
more computers with Internet access may
not receive services at discount rates
under paragraph (1)(B) unless the
library--
(I) submits to the Commission
the certifications described in
subparagraphs (B) and (C); and
(II) submits to the
Commission a certification that
an Internet safety policy has
been adopted and implemented
for the library under
subsection (l); and
(III) ensures the use of such
computers in accordance with
the certifications.
(ii) Applicability.--The prohibition
in clause (i) shall not apply with
respect to a library that receives
services at discount rates under
paragraph (1)(B) only for purposes
other than the provision of Internet
access, Internet service, or internal
connections.
(iii) Public notice; hearing.--A
library described in clause (i) shall
provide reasonable public notice and
hold at least 1 public hearing or
meeting to address the proposed
Internet safety policy.
(B) Certification with respect to minors.--A
certification under this subparagraph is a
certification that the library--
(i) is enforcing a policy of Internet
safety that includes the operation of a
technology protection measure with
respect to any of its computers with
Internet access that protects against
access through such computers to visual
depictions that are--
(I) obscene;
(II) child pornography; or
(III) harmful to minors; and
(ii) is enforcing the operation of
such technology protection measure
during any use of such computers by
minors.
(C) Certification with respect to adults.--A
certification under this paragraph is a
certification that the library--
(i) is enforcing a policy of Internet
safety that includes the operation of a
technology protection measure with
respect to any of its computers with
Internet access that protects against
access through such computers to visual
depictions that are--
(I) obscene; or
(II) child pornography; and
(ii) is enforcing the operation of
such technology protection measure
during any use of such computers.
(D) Disabling during adult use.--An
administrator, supervisor, or other person
authorized by the certifying authority under
subparagraph (A)(i) may disable the technology
protection measure concerned, during use by an
adult, to enable access for bona fide research
or other lawful purpose.
(E) Timing of implementation.--
(i) In general.--Subject to clause
(ii) in the case of any library covered
by this paragraph as of the effective
date of this paragraph under section
1721(h) of the Children's Internet
Protection Act, the certification under
subparagraphs (B) and (C) shall be
made--
(I) with respect to the first
program funding year under this
subsection following such
effective date, not later than
120 days after the beginning of
such program funding year; and
(II) with respect to any
subsequent program funding
year, as part of the
application process for such
program funding year.
(ii) Process.--
(I) Libraries with internet
safety policy and technology
protection measures in place.--
A library covered by clause (i)
that has in place an Internet
safety policy and technology
protection measures meeting the
requirements necessary for
certification under
subparagraphs (B) and (C) shall
certify its compliance with
subparagraphs (B) and (C)
during each annual program
application cycle under this
subsection, except that with
respect to the first program
funding year after the
effective date of this
paragraph under section 1721(h)
of the Children's Internet
Protection Act, the
certifications shall be made
not later than 120 days after
the beginning of such first
program funding year.
(II) Libraries without
internet safety policy and
technology protection measures
in place.--A library covered by
clause (i) that does not have
in place an Internet safety
policy and technology
protection measures meeting the
requirements necessary for
certification under
subparagraphs (B) and (C)--
(aa) for the first
program year after the
effective date of this
subsection in which it
is applying for funds
under this subsection,
shall certify that it
is undertaking such
actions, including any
necessary procurement
procedures, to put in
place an Internet
safety policy and
technology protection
measures meeting the
requirements necessary
for certification under
subparagraphs (B) and
(C); and
(bb) for the second
program year after the
effective date of this
subsection in which it
is applying for funds
under this subsection,
shall certify that it
is in compliance with
subparagraphs (B) and
(C).
Any library that is unable to
certify compliance with such
requirements in such second
program year shall be
ineligible for services at
discount rates or funding in
lieu of services at such rates
under this subsection for such
second year and all subsequent
program years under this
subsection, until such time as
such library comes into
compliance with this paragraph.
(III) Waivers.--Any library
subject to subclause (II) that
cannot come into compliance
with subparagraphs (B) and (C)
in such second year may seek a
waiver of subclause (II)(bb) if
State or local procurement
rules or regulations or
competitive bidding
requirements prevent the making
of the certification otherwise
required by such subclause. A
library, library board, or
other authority with
responsibility for
administration of the library
shall notify the Commission of
the applicability of such
subclause to the library. Such
notice shall certify that the
library in question will be
brought into compliance before
the start of the third program
year after the effective date
of this subsection in which the
library is applying for funds
under this subsection.
(F) Noncompliance.--
(i) Failure to submit
certification.--Any library that
knowingly fails to comply with the
application guidelines regarding the
annual submission of certification
required by this paragraph shall not be
eligible for services at discount rates
or funding in lieu of services at such
rates under this subsection.
(ii) Failure to comply with
certification.--Any library that
knowingly fails to ensure the use of
its computers in accordance with a
certification under subparagraphs (B)
and (C) shall reimburse all funds and
discounts received under this
subsection for the period covered by
such certification.
(iii) Remedy of noncompliance.--
(I) Failure to submit.--A
library that has failed to
submit a certification under
clause (i) may remedy the
failure by submitting the
certification to which the
failure relates. Upon submittal
of such certification, the
library shall be eligible for
services at discount rates
under this subsection.
(II) Failure to comply.--A
library that has failed to
comply with a certification as
described in clause (ii) may
remedy the failure by ensuring
the use of its computers in
accordance with such
certification. Upon submittal
to the Commission of a
certification or other
appropriate evidence of such
remedy, the library shall be
eligible for services at
discount rates under this
subsection.
(7) Definitions.--For purposes of this subsection:
(A) Elementary and secondary schools.--The
term ``elementary and secondary schools'' means
elementary schools and secondary schools, as
defined in section 9101 of the Elementary and
Secondary Education Act of 1965.
(B) Health care provider.--The term ``health
care provider'' means--
(i) post-secondary educational
institutions offering health care
instruction, teaching hospitals, and
medical schools;
(ii) community health centers or
health centers providing health care to
migrants;
(iii) local health departments or
agencies;
(iv) community mental health centers;
(v) not-for-profit hospitals;
(vi) rural health clinics; [and
[(vii) consortia of health care
providers consisting of one or more
entities described in clauses (i)
through (vi).]
(vii) not-for-profit nursing homes or
skilled nursing facilities;
(viii) critical access hospitals;
(ix) emergency medical services
facilities;
(x) hospice providers;
(xi) rural dialysis facilities;
(xii) tribal health clinics;
(xiii) not-for-profit dental offices;
(xiv) school health clinics;
(xv) residential treatment
facilities;
(xvi) rural pharmacies;
(xvii) consortia of health care
providers consisting of 1 or more
entities described in clauses (i)
through (xv); and
(xviii) any other entity the
Commission determines--
(I) eligible to receive
discounted telecommunications
service under paragraph (1)(A);
and
(II) essential to the public
health.
(C) Public institutional telecommunications
user.--The term ``public institutional
telecommunications user'' means an elementary
or secondary school, a library, or a health
care provider as those terms are defined in
this paragraph.
(D) Minor.--The term ``minor'' means any
individual who has not attained the age of 17
years.
(E) Obscene.--The term ``obscene'' has the
meaning given such term in section 1460 of
title 18, United States Code.
(F) Child pornography.--The term ``child
pornography'' has the meaning given such term
in section 2256 of title 18, United States
Code.
(G) Harmful to minors.--The term ``harmful to
minors'' means any picture, image, graphic
image file, or other visual depiction that--
(i) taken as a whole and with respect
to minors, appeals to a prurient
interest in nudity, sex, or excretion;
(ii) depicts, describes, or
represents, in a patently offensive way
with respect to what is suitable for
minors, an actual or simulated sexual
act or sexual contact, actual or
simulated normal or perverted sexual
acts, or a lewd exhibition of the
genitals; and
(iii) taken as a whole, lacks serious
literary, artistic, political, or
scientific value as to minors.
(H) Sexual act; sexual contact.--The terms
``sexual act'' and ``sexual contact'' have the
meanings given such terms in section 2246 of
title 18, United States Code.
(I) Technology protection measure.--The term
``technology protection measure'' means a
specific technology that blocks or filters
Internet access to the material covered by a
certification under paragraph (5) or (6) to
which such certification relates.
(i) Consumer Protection.--The Commission and the States
should ensure that universal service is available at rates that
are just, reasonable, and affordable.
(j) Lifeline Assistance.--Nothing in this section shall
affect the collection, distribution, or administration of the
Lifeline Assistance Program provided for by the Commission
under regulations set forth in section 69.117 of title 47, Code
of Federal Regulations, and other related sections of such
title.
(k) Subsidy of Competitive Services Prohibited.--A
telecommunications carrier may not use services that are not
competitive to subsidize services that are subject to
competition. The Commission, with respect to interstate
services, and the States, with respect to intrastate services,
shall establish any necessary cost allocation rules, accounting
safeguards, and guidelines to ensure that services included in
the definition of universal service bear no more than a
reasonable share of the joint and common costs of facilities
used to provide those services.
(l) Internet Safety Policy Requirement for Schools and
Libraries.--
(1) In general.--In carrying out its responsibilities
under subsection (h), each school or library to which
subsection (h) applies shall--
(A) adopt and implement an Internet safety
policy that addresses--
(i) access by minors to inappropriate
matter on the Internet and World Wide
Web;
(ii) the safety and security of
minors when using electronic mail, chat
rooms, and other forms of direct
electronic communications;
(iii) unauthorized access, including
so-called ``hacking'', and other
unlawful activities by minors online;
(iv) unauthorized disclosure, use,
and dissemination of personal
identification information regarding
minors; and
(v) measures designed to restrict
minors' access to materials harmful to
minors; and
(B) provide reasonable public notice and hold
at least one public hearing or meeting to
address the proposed Internet safety policy.
(2) Local determination of content.--A determination
regarding what matter is inappropriate for minors shall
be made by the school board, local educational agency,
library, or other authority responsible for making the
determination. No agency or instrumentality of the
United States Government may--
(A) establish criteria for making such
determination;
(B) review the determination made by the
certifying school, school board, local
educational agency, library, or other
authority; or
(C) consider the criteria employed by the
certifying school, school board, local
educational agency, library, or other authority
in the administration of subsection (h)(1)(B).
(3) Availability for review.--Each Internet safety
policy adopted under this subsection shall be made
available to the Commission, upon request of the
Commission, by the school, school board, local
educational agency, library, or other authority
responsible for adopting such Internet safety policy
for purposes of the review of such Internet safety
policy by the Commission.
(4) Effective date.--This subsection shall apply with
respect to schools and libraries on or after the date
that is 120 days after the date of the enactment of the
Children's Internet Protection Act.
(m) Network Traffic Identification Accountability
Standards.--
(1) Network traffic identification accountability
standards.--A provider of voice communications services
shall ensure, to the degree technically possible, that
all traffic that originates on its network contains,
or, in the case of nonoriginated traffic, preserves,
sufficient information to allow for traffic
identification by other voice communications service
providers that transport or terminate such traffic,
including information on the identity of the
originating provider, the class of service of the
originating line as required under Commission orders in
effect on the date of enactment of the Internet and
Universal Service Act of 2006, the calling and called
parties, and such other information as the Commission
deems appropriate. Except as otherwise permitted by the
Commission, a provider that transports traffic between
communications service providers shall signal-forward
without altering call signaling information it receives
from another provider.
(2) Network traffic identification rulemaking.--The
Commission, in consultation with the State commissions,
shall initiate a single rulemaking no later than 180
days after the date of enactment of the Internet and
Universal Service Act of 2006 to establish rules and
enforcement provisions for traffic identification.
(3) Network traffic identification enforcement.--The
Commission shall adopt and enforce clear penalties,
fines, and sanctions under this section.
(4) Voice communications service defined.--In this
subsection, the term ``voice communications service''
means telecommunications service or IP-enabled voice
service (as defined in section 254(d)(6)(E)).
(n) Audits.--The Commission shall provide for random periodic
audits, to be administered by the Universal Service
Administrative Company, of each recipient of funds collected
pursuant to subsection (d) with respect to its receipt and use
of such support. With respect to an eligible communications
carrier, the audit shall include a review of its relative cost
to provide service compared to other, similarly situated,
universal service recipients based on their respective service
areas (as defined in section 214(e)(5)). The Commission shall
take such remedial action as it deems necessary if any audit
under this subsection reveals improper use of universal service
support, including the imposition of fines or other appropriate
remedies.
SEC. 254A. BROADBAND FOR UNSERVED AREAS PROGRAM.
(a) Program Established.--
(1) In general.--The Commission shall establish a new
separate program to be known as the ``Broadband for
Unserved Areas Program''.
(2) Purpose.--The purpose of the Program is to
provide financial assistance for the deployment of
broadband equipment and infrastructure necessary for
the deployment of broadband service (including
installation costs) to unserved areas throughout the
United States.
(3) Funding.--The Program shall be funded by amounts
collected under section 254(d).
(b) Implementation.--
(1) In general.--Within 180 days after the date of
enactment of the Internet and Universal Service Act of
2006, the Commission shall issue rules establishing--
(A) guidelines for determining which areas
may be considered to be unserved areas for
purposes of this section, which may be portions
of service areas or study areas;
(B) criteria for determining which
facilities-based providers of broadband service
and which projects are eligible for support
from the Program;
(C) procedural guidelines for awarding
assistance from the Program on a merit-based
and competitive basis;
(D) guidelines for application procedures,
accounting and reporting requirements, and
other appropriate fiscal controls for
assistance made available from the Program,
including random audits with respect to the
receipt and use of funds under this section;
(E) a procedure for making funds in the
Program available among the several States on
an equitable basis; and
(F) the Universal Service Administrative
Company as the administrator of the Program,
subject to Commission rules and oversight.
(2) Facilities-based provider eligibility.--For
purposes of this section, satellite broadband service
providers, terrestrial wireless broadband service
providers, and wireline broadband service providers
shall be considered to be facilities-based providers
eligible for support from the Program. The deployment
of satellite broadband service customer premises
equipment shall be considered to be a project eligible
for support from the Program.
(3) De minimis subscribership exception.--The
availability of satellite broadband service in an area
shall not preclude the designation of that area as an
unserved area if the Commission determines that
subscribership to broadband satellite service in the
area is de minimis.
(4) Multiple areas within state.--There may be more
than 1 unserved area within a State.
(c) Limitations.--
(1) Annual amount.--Amounts obligated or expended
under subsection (b) for any fiscal year may not exceed
$500,000,000.
(2) Unobligated balances.--To the extent that the
full amount in the program is not obligated for
financial assistance under this section within a fiscal
year, any unobligated balance shall be used to support
universal service under section 254.
(3) Support limited to single facilities-based
provider per unserved area.--Assistance under this
section may be provided only to 1 facilities-based
provider of broadband service in each unserved area.
(d) Application With Section 410.--Section 410 shall not
apply to the Broadband for Unserved Areas Program.
(e) Broadband Service Defined.--
(1) In general.--In this section, except to the
extent revised by the Commission under paragraph (2),
the term ``broadband service'' means any service used
for transmission of information of a user's choosing at
a transmission speed of at least 400 kilobits per
second in at least 1 direction, regardless of the
transmission medium or technology employed, that
connects to the public Internet directly--
(A) to the public; or
(B) to such classes of users as to be
effectively available directly to the public.
(2) Annual review of transmission speed.--The
Commission shall review the transmission speed
component of the definition in paragraph (1) biannually
and revise that component as appropriate.
(f) Report.--The Commission shall transmit an annual report
to the Senate Committee on Commerce, Science, and
Transportation and the House of Representatives Committee on
Energy and Commerce making recommendations for an increase or
decrease, if necessary, in the amounts credited to the program
under this section.
PART III. SPECIAL PROVISIONS CONCERNING BELL OPERATING COMPANIES
SEC. 276. PROVISION OF PAYPHONE SERVICE.
[47 U.S.C. 276]
(a) Nondiscrimination Safeguards.--After the effective date
of the rules prescribed pursuant to subsection (b), any Bell
operating company that provides payphone service--
(1) shall not subsidize its payphone service directly
or indirectly from its telephone exchange service
operations or its exchange access operations; and
(2) shall not prefer or discriminate in favor of its
payphone service.
(b) Regulations.--
(1) Contents of regulations.--In order to promote
competition among payphone service providers and
promote the widespread deployment of payphone services
to the benefit of the general public, within 9 months
after the date of enactment of the Telecommunications
Act of 1996, the Commission shall take all actions
necessary (including any reconsideration) to prescribe
regulations that--
(A) establish a per call compensation plan to
ensure that all payphone service providers are
fairly compensated for each and every completed
intrastate and interstate call using their
payphone, except that emergency calls and
telecommunications relay service calls for
hearing disabled individuals shall not be
subject to such compensation;
(B) discontinue the intrastate and interstate
carrier access charge payphone service elements
and payments in effect on such date of
enactment, and all intrastate and interstate
payphone subsidies from basic exchange and
exchange access revenues, in favor of a
compensation plan as specified in subparagraph
(A);
(C) prescribe a set of nonstructural
safeguards for Bell operating company payphone
service to implement the provisions of
paragraphs (1) and (2) of subsection (a), which
safeguards shall, at a minimum, include the
nonstructural safeguards equal to those adopted
in the Computer Inquiry-III (CC Docket No. 90-
623) proceeding;
(D) provide for Bell operating company
payphone service providers to have the same
right that independent payphone providers have
to negotiate with the location provider on the
location provider's selecting and contracting
with, and, subject to the terms of any
agreement with the location provider, to select
and contract with, the carriers that carry
interLATA calls from their payphones, unless
the Commission determines in the rulemaking
pursuant to this section that it is not in the
public interest; and
(E) provide for all payphone service
providers to have the right to negotiate with
the location provider on the location
provider's selecting and contracting with, and,
subject to the terms of any agreement with the
location provider, to select and contract with,
the carriers that carry intraLATA calls from
their payphones.
(2) Public interest telephones.--In the rulemaking
conducted pursuant to paragraph (1), the Commission
shall determine whether public interest payphones,
which are provided in the interest of public health,
safety, and welfare, in locations where there would
otherwise not be a payphone, should be maintained, and
if so, ensure that such public interest payphones are
supported fairly and equitably.
(3) Existing contracts.--Nothing in this section
shall affect any existing contracts between location
providers and payphone service providers or interLATA
or intraLATA carriers that are in force and effect as
of the date of enactment of the Telecommunications Act
of 1996.
(c) State Preemption.--To the extent that any State
requirements are inconsistent with the Commission's
regulations, the Commission's regulations on such matters shall
preempt such State requirements.
(d) [Definition.--] Definitions._As used in this section, the
term ``payphone service'' means the provision of public or
semi-public pay telephones, the provision of inmate telephone
service in correctional institutions, and any ancillary
[services.] services, and the term ``call'' includes any
communication coming within the definition of ``communications
service'' (as defined in section 254(d)) when it originated
from a payphone.
TITLE III--SPECIAL PROVISIONS RELATING TO RADIO
PART I. GENERAL PROVISIONS
SEC. 303. POWERS AND DUTIES OF COMMISSION.
[47 U.S.C. 303]
Except as otherwise provided in this Act, the Commission from
time to time, as public convenience, interest, or necessity
requires, shall--
(a) Classify radio stations;
(b) Prescribe the nature of the service to be
rendered by each class of licensed stations and each
station within any class;
(c) Assign bands of frequencies to the various
classes of stations, and assign frequencies for each
individual station and determine the power which each
station shall use and the time during which it may
operate;
(d) Determine the location of classes of stations or
individual stations;
(e) Regulate the kind of apparatus to be used with
respect to its external effects and the purity and
sharpness of the emissions from each station and from
the apparatus therein;
(f) Make such regulations not inconsistent with law
as it may deem necessary to prevent interference
between stations and to carry out the provisions of
this Act: Provided, however, That changes in the
frequencies, authorized power, or in the times of
operation of any station, shall not be made without the
consent of the station licensee unless the Commission
shall determine that such changes will promote public
convenience or interest or will serve public necessity,
or the provisions of this Act will be more fully
complied with;
(g) Study new uses for radio, provide for
experimental uses of frequencies, and generally
encourage the larger and more effective use of radio in
the public interest;
(h) Have authority to establish areas or zones to be
served by any station;
(i) Have authority to make special regulations
applicable to radio stations engaged in chain
broadcasting;
(j) Have authority to make general rules and
regulations requiring stations to keep such records of
programs, transmissions of energy, communications, or
signals as it may deem desirable;
(k) Have authority to exclude from the requirements
of any regulations in whole or in part any radio
station upon railroad rolling stock, or to modify such
regulations in its discretion;
(l)(1) Have authority to prescribe the qualifications
of station operators, to classify them according to the
duties to be performed, to fix the forms of such
licenses, and to issue them to persons who are found to
be qualified by the Commission and who otherwise are
legally eligible for employment in the United States;
except that such requirement relating to eligibility
for employment in the United States shall not apply in
the case of licenses issued by the Commission to (A)
persons holding United States pilot certificates; or
(B) persons holding foreign aircraft pilot certificates
which are valid in the United States, if the foreign
government involved has entered into a reciprocal
agreement under which such foreign government does not
impose any similar requirement relating to eligibility
for employment upon citizens of the United States;
(2) Notwithstanding paragraph (1) of this subsection,
an individual to whom a radio station is licensed under
the provisions of this Act may be issued an operator's
license to operate that station.
(3) In addition to amateur operator licenses which
the Commission may issue to aliens pursuant to
paragraph (2) of this subsection, and notwithstanding
section 301 of this Act and paragraph (1) of this
subsection, the Commission may issue authorizations,
under such conditions and terms as it may prescribe, to
permit an alien licensed by his government as an
amateur radio operator to operate his amateur radio
station licensed by his government in the United
States, its possessions, and the Commonwealth of Puerto
Rico provided there is in effect a multilateral or
bilateral agreement, to which the United States and the
alien's government are parties, for such operation on a
reciprocal basis by United States amateur radio
operators. Other provisions of this Act and of the
Administrative Procedure Act shall not be applicable to
any request or application for or modification,
suspension, or cancellation of any such authorization.
(m)(1) Have authority to suspend the license of any
operator upon proof sufficient to satisfy the
Commission that the licensee--
(A) has violated, or caused, aided, or abetted the
violation of, any provision of any Act, treaty, or
convention binding on the United States, which the
Commission is authorized to administer, or any
regulation made by the Commission under any such Act,
treaty, or convention; or
(B) has failed to carry out a lawful order of the
master or person lawfully in charge of the ship or
aircraft on which he is employed; or
(C) has willfully damaged or permitted radio
apparatus or installations to be damaged; or
(D) has transmitted superfluous radio communications
or signals or communications containing profane or
obscene words, language, or meaning, or has knowingly
transmitted--
(1) false or deceptive signals or communications, or
(2) a call signal or letter which has not been
assigned by proper authority to the station he is
operating; or
(E) has willfully or maliciously interfered with any
other radio communications or signals; or
(F) has obtained or attempted to obtain, or has
assisted another to obtain or attempt to obtain, an
operator's license by fraudulent means.
(2) No order of suspension of any operator's license
shall take effect until fifteen days' notice in writing
thereof, stating the cause for the proposed suspension,
has been given to the operator licensee who may make
written application to the Commission at any time
within said fifteen days for a hearing upon such order.
The notice to the operator licensee shall not be
effective until actually received by him, and from that
time he shall have fifteen days in which to mail the
said application. In the event that physical conditions
prevent mailing of the application at the expiration of
the fifteen-day period, the application shall then be
mailed as soon as possible thereafter, accompanied by a
satisfactory explanation of the delay. Upon receipt by
the Commission of such application for hearing, said
order of suspension shall be held in abeyance until the
conclusion of the hearing which shall be conducted
under such rules as the Commission may prescribe. Upon
the conclusion of said hearing the Commission may
affirm, modify, or revoke said order of suspension.
(n) Have authority to inspect all radio installations
associated with stations required to be licensed by any
Act, or which the Commission by rule has authorized to
operate without a license under section 307(e)(1); or
which are subject to the provisions of any Act, treaty,
or convention binding on the United States, to
ascertain whether in construction, installation, and
operation they conform to the requirements of the rules
and regulations of the Commission, the provisions of
any Act, the terms of any treaty or convention binding
on the United States, and the conditions of the license
or other instrument of authorization under which they
are constructed, installed, or operated.
(o) Have authority to designate call letters of all
stations;
(p) Have authority to cause to be published such call
letters and such other announcements and data as in the
judgment of the Commission may be required for the
efficient operation of radio stations subject to the
jurisdiction of the United States and for the proper
enforcement of this Act;
(q) Have authority to require the painting and/or
illumination of radio towers if and when in its
judgment such towers constitute, or there is a
reasonable possibility that they may constitute, a
menace to air navigation. The permittee or licensee,
and the tower owner in any case in which the owner is
not the permittee or licensee, shall maintain the
painting and/or illumination of the tower as prescribed
by the Commission pursuant to this section. In the
event that the tower ceases to be licensed by the
Commission for the transmission of radio energy, the
owner of the tower shall maintain the prescribed
painting and/or illumination of such tower until it is
dismantled, and the Commission may require the owner to
dismantle and remove the tower when the Administrator
of the Federal Aviation Agency determines that there is
a reasonable possibility that it may constitute a
menace to air navigation.
(r) Make such rules and regulations and prescribe
such restrictions and conditions, not inconsistent with
law, as may be necessary to carry out the provisions of
this Act, or any international radio or wire
communications treaty or convention, or regulations
annexed thereto, including any treaty or convention
insofar as it relates to the use of radio, to which the
United States is or may hereafter become a party.
(s) Have authority to require that apparatus designed
to receive television pictures broadcast simultaneously
with sound be capable of adequately receiving all
frequencies allocated by the Commission to television
broadcasting when such apparatus is shipped in
interstate commerce, or is imported from any foreign
country into the United States, for sale or resale to
the public.
(t) Notwithstanding the provisions of section 301(e),
have authority, in any case in which an aircraft
registered in the United States is operated (pursuant
to a lease, charter, or similar arrangement) by an
aircraft operator who is subject to regulation by the
government of a foreign nation, to enter into an
agreement with such government under which the
Commission shall recognize and accept any radio station
licenses and radio operator licenses issued by such
government with respect to such aircraft.
(u) Require that apparatus designed to receive
television pictures broadcast simultaneously with sound
be equipped with built-in decoder circuitry designed to
display closed-captioned television transmissions when
such apparatus is manufactured in the United States or
imported for use in the United States, and its
television picture screen is 13 inches or greater in
size.
(v) Have exclusive jurisdiction to regulate the
provision of direct-to-home satellite services. As used
in this subsection, the term ``direct-to-home satellite
services'' means the distribution or broadcasting of
programming or services by satellite directly to the
subscriber's premises without the use of ground
receiving or distribution equipment, except at the
subscriber's premises or in the uplink process to the
satellite.
(w) Prescribe--
(1) on the basis of recommendations from an
advisory committee established by the
Commission in accordance with section 551(b)(2)
of the Telecommunications Act of 1996,
guidelines and recommended procedures for the
identification and rating of video programming
that contains sexual, violent, or other
indecent material about which parents should be
informed before it is displayed to children:
Provided, That nothing in this paragraph shall
be construed to authorize any rating of video
programming on the basis of its political or
religious content; and
(2) with respect to any video programming
that has been rated, and in consultation with
the television industry, rules requiring
distributors of such video programming to
transmit such rating to permit parents to block
the display of video programming that they have
determined is inappropriate for their children.
(x) Require, in the case of an apparatus designed to
receive television signals that are shipped in
interstate commerce or manufactured in the United
States and that have a picture screen 13 inches or
greater in size (measured diagonally), that such
apparatus be equipped with a feature designed to enable
viewers to block display of all programs with a common
rating, except as otherwise permitted by regulations
pursuant to section 330(c)(4).
(y) Have authority to allocate electromagnetic
spectrum so as to provide flexibility of use, if--
(1) such use is consistent with international
agreements to which the United States is a
party; and
(2) the Commission finds, after notice and an
opportunity for public comment, that--
(A) such an allocation would be in
the public interest;
(B) such use would not deter
investment in communications services
and systems, or technology development;
and
(C) such use would not result in
harmful interference among users.
(z) Have authority with respect to digital television
receivers to adopt such regulations and certifications as are
necessary to implement the Report and Order in the matter of
Digital Broadcast Content Protection, FCC 03-273, as ratified
by the Congress in section 102(b) of the Consumer Competition
and Broadband Promotion Act, with the exclusive purpose of
limiting the indiscriminate redistribution of digital
television content over the Internet or similar distribution
platforms, including the authority to reconsider, amend,
repeal, supplement, and otherwise modify any such regulations
and certifications, in whole or in part, only for that purpose.
SEC. 303A. REQUIREMENTS FOR DIGITAL TELEVISION SETS AND CERTAIN OTHER
EQUIPMENT.
After March 1, 2007, it is unlawful for a manufacturer or
importer to import into the United States or ship in interstate
commerce for sale or resale to the public, a television
broadcast receiver (as defined in section 15.3(w) of the
Commission's regulations (47 C.F.R. 15.3(w))) that is not
equipped with a tuner capable of receiving and decoding digital
signals.
SEC. 309. APPLICATION FOR LICENSE.
[47 U.S.C. 309]
(a) Considerations in Granting Application.--Subject to the
provisions of this section, the Commission shall determine, in
the case of each application filed with it to which section 308
applies, whether the public interest, convenience, and
necessity will be served by the granting of such application,
and, if the Commission, upon examination of such application
and upon consideration of such other matters as the Commission
may officially notice, shall find that public interest,
convenience, and necessity would be served by the granting
thereof, it shall grant such application.
(b) Time of Granting Application.--Except as provided in
subsection (c) of this section, no such application--
(1) for an instrument of authorization in the case of
a station in the broadcasting or common carrier
services, or
(2) for an instrument of authorization in the case of
a station in any of the following categories:
(A) industrial radio positioning stations for
which frequencies are assigned on an exclusive
basis,
(B) aeronautical en route stations,
(C) aeronautical advisory stations,
(D) airdrome control stations,
(E) aeronautical fixed stations, and
(F) such other stations or classes of
stations, not in the broadcasting or common
carrier services, as the Commission shall by
rule prescribe,shall be granted by the
Commission earlier than thirty days following
issuance of public notice by the Commission of
the acceptance for filing of such application
or of any substantial amendment thereof.
(c) Applications not Affected by Subsection (b).--Subsection
(b) of this section shall not apply--
(1) to any minor amendment of an application to which
such subsection is applicable, or
(2) to any application for--
(A) a minor change in the facilities of an
authorized station,
(B) consent to an involuntary assignment or
transfer under section 310(b) or to an
assignment or transfer thereunder which does
not involve a substantial change in ownership
or control,
(C) a license under section 319(c) or,
pending application for or grant of such
license, any special or temporary authorization
to permit interim operation to facilitate
completion of authorized construction or to
provide substantially the same service as would
be authorized by such license,
(D) extension of time to complete
construction of authorized facilities,
(E) an authorization of facilities for remote
pickups, studio links and similar facilities
for use in the operation of a broadcast
station,
(F) authorizations pursuant to section 325(c)
where the programs to be transmitted are
special events not of a continuing nature,
(G) a special temporary authorization for
nonbroadcast operation not to exceed thirty
days where no application for regular operation
is contemplated to be filed or not to exceed
sixty days pending the filing of an application
for such regular operation, or
(H) an authorization under any of the proviso
clauses of section 308(a).
(d) Petition to Deny Application; Time; Contents; Reply;
Findings.--
(1) Any party in interest may file with the
Commission a petition to deny any application (whether
as originally filed or as amended) to which subsection
(b) of this section applies at any time prior to the
day of Commission grant thereof without hearing or the
day of formal designation thereof for hearing; except
that with respect to any classification of
applications, the Commission from time to time by rule
may specify a shorter period (no less than thirty days
following the issuance of public notice by the
Commission of the acceptance for filing of such
application or of any substantial amendment thereof),
which shorter period shall be reasonably related to the
time when the applications would normally be reached
for processing. The petitioner shall serve a copy of
such petition on the applicant. The petition shall
contain specific allegations of fact sufficient to show
that the petitioner is a party in interest and that a
grant of the application would be prima facie
inconsistent with subsection (a) (or subsection (k) in
the case of renewal of any broadcast station license).
Such allegations of fact shall, except for those of
which official notice may be taken, be supported by
affidavit of a person or persons with personal
knowledge thereof. The applicant shall be given the
opportunity to file a reply in which allegations of
fact or denials thereof shall similarly be supported by
affidavit.
(2) If the Commission finds on the basis of the
application, the pleadings filed, or other matters
which it may officially notice that there are no
substantial and material questions of fact and that a
grant of the application would be consistent with
subsection (a) (or subsection (k) in the case of
renewal of any broadcast station license), it shall
make the grant, deny the petition, and issue a concise
statement of the reasons for denying the petition,
which statement shall dispose of all substantial issues
raised by the petition. If a substantial and material
question of fact is presented or if the Commission for
any reason is unable to find that grant of the
application would be consistent with subsection (a) (or
subsection (k) in the case of renewal of any broadcast
station license), it shall proceed as provided in
subsection (e).
(e) Hearings; Intervention; Evidence; Burden of Proof.--If,
in the case of any application to which subsection (a) of this
section applies, a substantial and material question of fact is
presented or the Commission for any reason is unable to make
the finding specified in such subsection, it shall formally
designate the application for hearing on the ground or reasons
then obtaining and shall forthwith notify the applicant and all
other known parties in interest of such action and the grounds
and reasons therefor, specifying with particularity the matters
and things in issue but not including issues or requirements
phrased generally. When the Commission has so designated an
application for hearing the parties in interest, if any, who
are not notified by the Commission of such action may acquire
the status of a party to the proceeding thereon by filing a
petition for intervention showing the basis for their interest
not more than thirty days after publication of the hearing
issues or any substantial amendment thereto in the Federal
Register. Any hearing subsequently held upon such application
shall be a full hearing in which the applicant and all other
parties in interest shall be permitted to participate. The
burden of proceeding with the introduction of evidence and the
burden of proof shall be upon the applicant, except that with
respect to any issue presented by a petition to deny or a
petition to enlarge the issues, such burdens shall be as
determined by the Commission.
(f) Temporary Authorization of Operations Under Subsection
(b).--When an application subject to subsection (b) has been
filed, the Commission, notwithstanding the requirements of such
subsection, may, if the grant of such application is otherwise
authorized by law and if it finds that there are extraordinary
circumstances requiring temporary operations in the public
interest and that delay in the institution of such temporary
operations would seriously prejudice the public interest, grant
a temporary authorization, accompanied by a statement of its
reasons therefor, to permit such temporary operations for a
period not exceeding 180 days, and upon making like findings
may extend such temporary authorization for additional periods
not to exceed 180 days. When any such grant of a temporary
authorization is made, the Commission shall give expeditious
treatment to any timely filed petition to deny such application
and to any petition for rehearing of such grant filed under
section 405.
(g) Classification of Applications.--The Commission is
authorized to adopt reasonable classifications of applications
and amendments in order to effectuate the purposes of this
section.
(h) Form and Conditions of Station Licenses.--Such station
licenses as the Commission may grant shall be in such general
form as it may prescribe, but each license shall contain, in
addition to other provisions, a statement of the following
conditions to which such license shall be subject: (1) The
station license shall not vest in the licensee any right to
operate the station nor any right in the use of the frequencies
designated in the license beyond the term thereof nor in any
other manner than authorized therein; (2) neither the license
nor the right granted thereunder shall be assigned or otherwise
transferred in violation of this Act; (3) every license issued
under this Act shall be subject in terms to the right of use or
control conferred by section 706 of this Act.
(i) Random Selection.--
(1) General authority.--Except as provided in
paragraph (5), if there is more than one application
for any initial license or construction permit, then
the Commission shall have the authority to grant such
license or permit to a qualified applicant through the
use of a system of random selection.
(2) No license or construction permit shall be
granted to an applicant selected pursuant to paragraph
(1) unless the Commission determines the qualifications
of such applicant pursuant to subsection (a) and
section 308(b). When substantial and material questions
of fact exist concerning such qualifications, the
Commission shall conduct a hearing in order to make
such determinations. For the purpose of making such
determinations, the Commission may, by rule, and
notwithstanding any other provision of law--
(A) adopt procedures for the submission of
all or part of the evidence in written form;
(B) delegate the function of presiding at the
taking of the evidence to Commission employees
other than administrative law judges; and
(C) omit the determination required by
subsection (a) with respect to any application
other than the one selected pursuant to
paragraph (1).
(3)(A) The Commission shall establish rules and
procedures to ensure that, in the administration of any
system of random selection under this subsection used
for granting licenses or construction permits for any
media of mass communications, significant preferences
will be granted to applicants or groups of applicants,
the grant to which of the license or permit would
increase the diversification of ownership of the media
of mass communications. To further diversify the
ownership of the media of mass communications, an
additional significant preference shall be granted to
any applicant controlled by a member or members of a
minority group.
(B) The Commission shall have authority to
require each qualified applicant seeking a
significant preference under subparagraph (A)
to submit to the Commission such information as
may be necessary to enable the Commission to
make a determination regarding whether such
applicant shall be granted such preference.
Such information shall be submitted in such
form, at such times, and in accordance with
such procedures, as the Commission may require.
(C) For purposes of this paragraph:
(i) The term ``media of mass
communications'' includes television,
radio, cable television, multipoint
distribution service, direct broadcast
satellite service, and other services,
the licensed facilities of which may be
substantially devoted toward providing
programming or other information
services within the editorial control
of the licensee.
(ii) The term ``minority group''
includes Blacks, Hispanics, American
Indians, Alaska Natives, Asians, and
Pacific Islanders.
(4)(A) The Commission shall, after notice and
opportunity for hearing, prescribe rules establishing a
system of random selection for use by the Commission
under this subsection in any instance in which the
Commission, in its discretion, determines that such use
is appropriate for the granting of any license or
permit in accordance with paragraph (1).
(B) The Commission shall have authority to
amend such rules from time to time to the
extent necessary to carry out the provisions of
this subsection. Any such amendment shall be
made after notice and opportunity for hearing.
(C) Not later than 180 days after the date of
enactment of this subparagraph, the Commission
shall prescribe such transfer disclosures and
antitrafficking restrictions and payment
schedules as are necessary to prevent the
unjust enrichment of recipients of licenses or
permits as a result of the methods employed to
issue licenses under this subsection.
(5) Termination of authority.--
(A) Except as provided in subparagraph (B),
the Commission shall not issue any license or
permit using a system of random selection under
this subsection after July 1, 1997.
(B) Subparagraph (A) of this paragraph shall
not apply with respect to licenses or permits
for stations described in section 397(6) of
this Act.
(j) Use of Competitive Bidding.--
(1) General authority.--If, consistent with the
obligations described in paragraph (6)(E), mutually
exclusive applications are accepted for any initial
license or construction permit, then, except as
provided in paragraph (2), the Commission shall grant
the license or permit to a qualified applicant through
a system of competitive bidding that meets the
requirements of this subsection.
(2) Exemptions.--The competitive bidding authority
granted by this subsection shall not apply to licenses
or construction permits issued by the Commission--
(A) for public safety radio services,
including private internal radio services used
by State and local governments and non-
government entities and including emergency
road services provided by not-for-profit
organizations, that--
(i) are used to protect the safety of
life, health, or property; and
(ii) are not made commercially
available to the public;
(B) for initial licenses or construction
permits for digital television service given to
existing terrestrial broadcast licensees to
replace their analog television service
licenses; or
(C) for stations described in section 397(6)
of this Act.
(3) Design of systems of competitive bidding.--For
each class of licenses or permits that the Commission
grants through the use of a competitive bidding system,
the Commission shall, by regulation, establish a
competitive bidding methodology. The Commission shall
seek to design and test multiple alternative
methodologies under appropriate circumstances. The
Commission shall, directly or by contract, provide for
the design and conduct (for purposes of testing) of
competitive bidding using a contingent combinatorial
bidding system that permits prospective bidders to bid
on combinations or groups of licenses in a single bid
and to enter multiple alternative bids within a single
bidding round. In identifying classes of licenses and
permits to be issued by competitive bidding, in
specifying eligibility and other characteristics of
such licenses and permits, and in designing the
methodologies for use under this subsection, the
Commission shall include safeguards to protect the
public interest in the use of the spectrum and shall
seek to promote the purposes specified in section 1 of
this Act and the following objectives:
(A) the development and rapid deployment of
new technologies, products, and services for
the benefit of the public, including those
residing in rural areas, without administrative
or judicial delays;
(B) promoting economic opportunity and
competition and ensuring that new and
innovative technologies are readily accessible
to the American people by avoiding excessive
concentration of licenses and by disseminating
licenses among a wide variety of applicants,
including small businesses, rural telephone
companies, and businesses owned by members of
minority groups and women;
(C) recovery for the public of a portion of
the value of the public spectrum resource made
available for commercial use and avoidance of
unjust enrichment through the methods employed
to award uses of that resource;
(D) efficient and intensive use of the
electromagnetic spectrum;
(E) ensure that, in the scheduling of any
competitive bidding under this subsection, an
adequate period is allowed--
(i) before issuance of bidding rules,
to permit notice and comment on
proposed auction procedures; and
(ii) after issuance of bidding rules,
to ensure that interested parties have
a sufficient time to develop business
plans, assess market conditions, and
evaluate the availability of equipment
for the relevant services; and
(F) for any auction of eligible frequencies
described in section 113(g)(2) of the National
Telecommunications and Information
Administration Organization Act (47 U.S.C.
923(g)(2)), the recovery of 110 percent of
estimated relocation costs as provided to the
Commission pursuant to section 113(g)(4) of
such Act.
(4) Contents of regulations.--In prescribing
regulations pursuant to paragraph (3), the Commission
shall--
(A) consider alternative payment schedules
and methods of calculation, including lump sums
or guaranteed installment payments, with or
without royalty payments, or other schedules or
methods that promote the objectives described
in paragraph (3)(B), and combinations of such
schedules and methods;
(B) include performance requirements, such as
appropriate deadlines and penalties for
performance failures, to ensure prompt delivery
of service to rural areas, to prevent
stockpiling or warehousing of spectrum by
licensees or permittees, and to promote
investment in and rapid deployment of new
technologies and services;
(C) consistent with the public interest,
convenience, and necessity, the purposes of
this Act, and the characteristics of the
proposed [service, prescribe] service--
(i) prescribe area designations and
bandwidth assignments that promote [(i)
an] (I) an equitable distribution of
licenses and services among geographic
areas, [(ii)] (II) economic opportunity
for a wide variety of applicants,
including small businesses, rural
telephone companies, and businesses
owned by members of minority groups and
women, and [(iii)] (III) investment in
and rapid deployment of new
technologies and [services;] services;
and
(ii) consider the use of licensing
spectrum in smaller geographic areas in
order to encourage wireless deployment
and build-out in rural and underserved
areas of licensing spectrum in smaller
geographic areas;
(D) ensure that small businesses, rural
telephone companies, and businesses owned by
members of minority groups and women are given
the opportunity to participate in the provision
of spectrum-based services, and, for such
purposes, consider the use of tax certificates,
bidding preferences, and other procedures;
(E) require such transfer disclosures and
antitrafficking restrictions and payment
schedules as may be necessary to prevent unjust
enrichment as a result of the methods employed
to issue licenses and permits; and
(F) prescribe methods by which a reasonable
reserve price will be required, or a minimum
bid will be established, to obtain any license
or permit being assigned pursuant to the
competitive bidding, unless the Commission
determines that such a reserve price or minimum
bid is not in the public interest.
(5) Bidder and licensee qualification.--No person
shall be permitted to participate in a system of
competitive bidding pursuant to this subsection unless
such bidder submits such information and assurances as
the Commission may require to demonstrate that such
bidder's application is acceptable for filing. No
license shall be granted to an applicant selected
pursuant to this subsection unless the Commission
determines that the applicant is qualified pursuant to
subsection (a) and sections 308(b) and 310. Consistent
with the objectives described in paragraph (3), the
Commission shall, by regulation, prescribe expedited
procedures consistent with the procedures authorized by
subsection (i)(2) for the resolution of any substantial
and material issues of fact concerning qualifications.
(6) Rules of construction.--Nothing in this
subsection, or in the use of competitive bidding,
shall--
(A) alter spectrum allocation criteria and
procedures established by the other provisions
of this Act;
(B) limit or otherwise affect the
requirements of subsection (h) of this section,
section 301, 304, 307, 310, or 706, or any
other provision of this Act (other than
subsections (d)(2) and (e) of this section);
(C) diminish the authority of the Commission
under the other provisions of this Act to
regulate or reclaim spectrum licenses;
(D) be construed to convey any rights,
including any expectation of renewal of a
license, that differ from the rights that apply
to other licenses within the same service that
were not issued pursuant to this subsection;
(E) be construed to relieve the Commission of
the obligation in the public interest to
continue to use engineering solutions,
negotiation, threshold qualifications, service
regulations, and other means in order to avoid
mutual exclusivity in application and licensing
proceedings;
(F) be construed to prohibit the Commission
from issuing nationwide, regional, or local
licenses or permits;
(G) be construed to prevent the Commission
from awarding licenses to those persons who
make significant contributions to the
development of a new telecommunications service
or technology; or
(H) be construed to relieve any applicant for
a license or permit of the obligation to pay
charges imposed pursuant to section 8 of this
Act.
(7) Consideration of revenues in public interest
determinations.--
(A) Consideration prohibited.--In making a
decision pursuant to section 303(c) to assign a
band of frequencies to a use for which licenses
or permits will be issued pursuant to this
subsection, and in prescribing regulations
pursuant to paragraph (4)(C) of this
subsection, the Commission may not base a
finding of public interest, convenience, and
necessity on the expectation of Federal
revenues from the use of a system of
competitive bidding under this subsection.
(B) Consideration limited.--In prescribing
regulations pursuant to paragraph (4)(A) of
this subsection, the Commission may not base a
finding of public interest, convenience, and
necessity solely or predominantly on the
expectation of Federal revenues from the use of
a system of competitive bidding under this
subsection.
(C) Consideration of demand for spectrum not
affected.--Nothing in this paragraph shall be
construed to prevent the Commission from
continuing to consider consumer demand for
spectrum-based services.
(8) Treatment of revenues.--
(A) General rule.--Except as provided in
subparagraphs (B), (D), and (E), all proceeds
from the use of a competitive bidding system
under this subsection shall be deposited in the
Treasury in accordance with chapter 33 of title
31, United States Code.
(B) Retention of revenues.--Notwithstanding
subparagraph (A), the salaries and expenses
account of the Commission shall retain as an
offsetting collection such sums as may be
necessary from such proceeds for the costs of
developing and implementing the program
required by this subsection. Such offsetting
collections shall be available for obligation
subject to the terms and conditions of the
receiving appropriations account, and shall be
deposited in such accounts on a quarterly
basis. Such offsetting collections are
authorized to remain available until expended.
No sums may be retained under this subparagraph
during any fiscal year beginning after
September 30, 1998, if the annual report of the
Commission under section 4(k) for the second
preceding fiscal year fails to include in the
itemized statement required by paragraph (3) of
such section a statement of each expenditure
made for purposes of conducting competitive
bidding under this subsection during such
second preceding fiscal year.
(C) Deposit and use of auction escrow
accounts.--Any deposits the Commission may
require for the qualification of any person to
bid in a system of competitive bidding pursuant
to this subsection shall be deposited in an
interest bearing account at a financial
institution designated for purposes of this
subsection by the Commission (after
consultation with the Secretary of the
Treasury). Within 45 days following the
conclusion of the competitive bidding--
(i) the deposits of successful
bidders shall be paid to the Treasury,
except as otherwise provided in
subparagraph (E)(ii);
(ii) the deposits of unsuccessful
bidders shall be returned to such
bidders; and
(iii) the interest accrued to the
account shall be transferred to the
Telecommunications Development Fund
established pursuant to section 714 of
this Act.
(D) Disposition of cash proceeds.--Cash
proceeds attributable to the auction of any
eligible frequencies described in section
113(g)(2) of the National Telecommunications
and Information Administration Organization Act
(47 U.S.C. 923(g)(2)) shall be deposited in the
Spectrum Relocation Fund established under
section 118 of such Act, and shall be available
in accordance with that section.
(E) Transfer of receipts.--
(i) Establishment of fund.--There is
established in the Treasury of the
United States a fund to be known as the
Digital Television Transition and
Public Safety Fund.
(ii) Proceeds for funds.--
Notwithstanding subparagraph (A), the
proceeds (including deposits and
upfront payments from successful
bidders) from the use of a competitive
bidding system under this subsection
with respect to recovered analog
spectrum shall be deposited in the
Digital Television Transition and
Public Safety Fund.
(iii) Transfer of amount to
treasury.--On September 30, 2009, the
Secretary shall transfer $7,363,000,000
from the Digital Television Transition
and Public Safety Fund to the general
fund of the Treasury.
(iv) Recovered analog spectrum.--For
purposes of clause (i), the term
``recovered analog spectrum'' has the
meaning provided in paragraph
(15)(C)(vi).
(9) Use of former government spectrum.--The
Commission shall, not later than 5 years after the date
of enactment of this subsection, issue licenses and
permits pursuant to this subsection for the use of
bands of frequencies that--
(A) in the aggregate span not less than 10
megahertz; and
(B) have been reassigned from Government use
pursuant to part B of the National
Telecommunications and Information
Administration Organization Act.
(10) Authority contingent on availability of
additional spectrum.--
(A) Initial conditions.--The Commission's
authority to issue licenses or permits under
this subsection shall not take effect unless--
(i) the Secretary of Commerce has
submitted to the Commission the report
required by section 113(d)(1) of the
National Telecommunications and
Information Administration Organization
Act;
(ii) such report recommends for
immediate reallocation bands of
frequencies that, in the aggregate,
span not less than 50 megahertz;
(iii) such bands of frequencies meet
the criteria required by section 113(a)
of such Act; and
(iv) the Commission has completed the
rulemaking required by section
332(c)(1)(D) of this Act.
(B) Subsequent conditions.--The Commission's
authority to issue licenses or permits under
this subsection on and after 2 years after the
date of the enactment of this subsection shall
cease to be effective if--
(i) the Secretary of Commerce has
failed to submit the report required by
section 113(a) of the National
Telecommunications and Information
Administration Organization Act;
(ii) the President has failed to
withdraw and limit assignments of
frequencies as required by paragraphs
(1) and (2) of section 114(a) of such
Act;
(iii) the Commission has failed to
issue the regulations required by
section 115(a) of such Act;
(iv) the Commission has failed to
complete and submit to Congress, not
later than 18 months after the date of
enactment of this subsection, a study
of current and future spectrum needs of
State and local government public
safety agencies through the year 2010,
and a specific plan to ensure that
adequate frequencies are made available
to public safety licensees; or
(v) the Commission has failed under
section 332(c)(3) to grant or deny
within the time required by such
section any petition that a State has
filed within 90 days after the date of
enactment of this subsection;until such
failure has been corrected.
(11) Termination.--The authority of the Commission to
grant a license or permit under this subsection shall
expire September 30, 2011.
(12) Evaluation.--Not later than September 30, 1997,
the Commission shall conduct a public inquiry and
submit to the Congress a report--
(A) containing a statement of the revenues
obtained, and a projection of the future
revenues, from the use of competitive bidding
systems under this subsection;
(B) describing the methodologies established
by the Commission pursuant to paragraphs (3)
and (4);
(C) comparing the relative advantages and
disadvantages of such methodologies in terms of
attaining the objectives described in such
paragraphs;
(D) evaluating whether and to what extent--
(i) competitive bidding significantly
improved the efficiency and
effectiveness of the process for
granting radio spectrum licenses;
(ii) competitive bidding facilitated
the introduction of new spectrum-based
technologies and the entry of new
companies into the telecommunications
market;
(iii) competitive bidding
methodologies have secured prompt
delivery of service to rural areas and
have adequately addressed the needs of
rural spectrum users; and
(iv) small businesses, rural
telephone companies, and businesses
owned by members of minority groups and
women were able to participate
successfully in the competitive bidding
process; and
(E) recommending any statutory changes that
are needed to improve the competitive bidding
process.
(13) Recovery of value of public spectrum in
connection with pioneer preferences.--
(A) In general.--Notwithstanding paragraph
(6)(G), the Commission shall not award licenses
pursuant to a preferential treatment accorded
by the Commission to persons who make
significant contributions to the development of
a new telecommunications service or technology,
except in accordance with the requirements of
this paragraph.
(B) Recovery of value.--The Commission shall
recover for the public a portion of the value
of the public spectrum resource made available
to such person by requiring such person, as a
condition for receipt of the license, to agree
to pay a sum determined by--
(i) identifying the winning bids for
the licenses that the Commission
determines are most reasonably
comparable in terms of bandwidth, scope
of service area, usage restrictions,
and other technical characteristics to
the license awarded to such person, and
excluding licenses that the Commission
determines are subject to bidding
anomalies due to the award of
preferential treatment;
(ii) dividing each such winning bid
by the population of its service area
(hereinafter referred to as the per
capita bid amount);
(iii) computing the average of the
per capita bid amounts for the licenses
identified under clause (i);
(iv) reducing such average amount by
15 percent; and
(v) multiplying the amount determined
under clause (iv) by the population of
the service area of the license
obtained by such person.
(C) Installments permitted.--The Commission
shall require such person to pay the sum
required by subparagraph (B) in a lump sum or
in guaranteed installment payments, with or
without royalty payments, over a period of not
more than 5 years.
(D) Rulemaking on pioneer preferences.--
Except with respect to pending applications
described in clause (iv) of this subparagraph,
the Commission shall prescribe regulations
specifying the procedures and criteria by which
the Commission will evaluate applications for
preferential treatment in its licensing
processes (by precluding the filing of mutually
exclusive applications) for persons who make
significant contributions to the development of
a new service or to the development of new
technologies that substantially enhance an
existing service. Such regulations shall--
(i) specify the procedures and
criteria by which the significance of
such contributions will be determined,
after an opportunity for review and
verification by experts in the radio
sciences drawn from among persons who
are not employees of the Commission or
by any applicant for such preferential
treatment;
(ii) include such other procedures as
may be necessary to prevent unjust
enrichment by ensuring that the value
of any such contribution justifies any
reduction in the amounts paid for
comparable licenses under this
subsection;
(iii) be prescribed not later than 6
months after the date of enactment of
this paragraph;
(iv) not apply to applications that
have been accepted for filing on or
before September 1, 1994; and
(v) cease to be effective on the date
of the expiration of the Commission's
authority under subparagraph (F).
(E) Implementation with respect to pending
applications.--In applying this paragraph to
any broadband licenses in the personal
communications service awarded pursuant to the
preferential treatment accorded by the Federal
Communications Commission in the Third Report
and Order in General Docket 90-314 (FCC 93-550,
released February 3, 1994)--
(i) the Commission shall not
reconsider the award of preferences in
such Third Report and Order, and the
Commission shall not delay the grant of
licenses based on such awards more than
15 days following the date of enactment
of this paragraph, and the award of
such preferences and licenses shall not
be subject to administrative or
judicial review;
(ii) the Commission shall not alter
the bandwidth or service areas
designated for such licenses in such
Third Report and Order;
(iii) except as provided in clause
(v), the Commission shall use, as the
most reasonably comparable licenses for
purposes of subparagraph (B)(i), the
broadband licenses in the personal
communications service for blocks A and
B for the 20 largest markets (ranked by
population) in which no applicant has
obtained preferential treatment;
(iv) for purposes of subparagraph
(C), the Commission shall permit
guaranteed installment payments over a
period of 5 years, subject to--
(I) the payment only of
interest on unpaid balances
during the first 2 years,
commencing not later than 30
days after the award of the
license (including any
preferential treatment used in
making such award) is final and
no longer subject to
administrative or judicial
review, except that no such
payment shall be required prior
to the date of completion of
the auction of the comparable
licenses described in clause
(iii); and
(II) payment of the unpaid
balance and interest thereon
after the end of such 2 years
in accordance with the
regulations prescribed by the
Commission; and
(v) the Commission shall recover with
respect to broadband licenses in the
personal communications service an
amount under this paragraph that is
equal to not less than $400,000,000,
and if such amount is less than
$400,000,000, the Commission shall
recover an amount equal to $400,000,000
by allocating such amount among the
holders of such licenses based on the
population of the license areas held by
each licensee.The Commission shall not
include in any amounts required to be
collected under clause (v) the interest
on unpaid balances required to be
collected under clause (iv).
(F) Expiration.--The authority of the
Commission to provide preferential treatment in
licensing procedures (by precluding the filing
of mutually exclusive applications) to persons
who make significant contributions to the
development of a new service or to the
development of new technologies that
substantially enhance an existing service shall
expire on the date of enactment of the Balanced
Budget Act of 1997.
(G) Effective date.--This paragraph shall be
effective on the date of its enactment and
apply to any licenses issued on or after August
1, 1994, by the Federal Communications
Commission pursuant to any licensing procedure
that provides preferential treatment (by
precluding the filing of mutually exclusive
applications) to persons who make significant
contributions to the development of a new
service or to the development of new
technologies that substantially enhance an
existing service.
(14) Auction of recaptured broadcast television
spectrum.--
(A) Limitations on terms of terrestrial
television broadcast licenses.--A full-power
television broadcast license that authorizes
analog television service may not be renewed to
authorize such service for a period that
extends beyond February 17, 2009.
(B) Spectrum reversion and resale.--
(i) The Commission shall--
(I) ensure that, as licenses
for analog television service
expire pursuant to subparagraph
(A), each licensee shall cease
using electromagnetic spectrum
assigned to such service
according to the Commission's
direction; and
(II) reclaim and organize the
electromagnetic spectrum in a
manner consistent with the
objectives described in
paragraph (3) of this
subsection.
(ii) Licensees for new services
occupying spectrum reclaimed pursuant
to clause (i) shall be assigned in
accordance with this subsection.
(C) Certain limitations on qualified bidders
prohibited.--In prescribing any regulations
relating to the qualification of bidders for
spectrum reclaimed pursuant to subparagraph
(B)(i), the Commission, for any license that
may be used for any digital television service
where the grade A contour of the station is
projected to encompass the entirety of a city
with a population in excess of 400,000 (as
determined using the 1990 decennial census),
shall not--
(i) preclude any party from being a
qualified bidder for such spectrum on
the basis of--
(I) the Commission's duopoly
rule (47 C.F.R. 73.3555(b)); or
(II) the Commission's
newspaper cross-ownership rule
(47 C.F.R. 73.3555(d)); or
(ii) apply either such rule to
preclude such a party that is a winning
bidder in a competitive bidding for
such spectrum from using such spectrum
for digital television service.
(D) Border stations.--An analog broadcast
television station, whose programming is
broadcast entirely in the Spanish-language,
that prior to February 17, 2009, is licensed by
the Commission to serve communities located
within 50 miles of the common border with the
United Mexican States and can establish to the
satisfaction of the Federal Communications
Commission that its continued operation in
analog is in the public interest, shall be
entitled to the renewal of its television
broadcast license authorizing analog television
service and to operate on a channel between 2
and 51 that complies with the following
provisions through February 17, 2011:
(i) The channel used for analog
operation may not--
(I) prevent the auction of
recovered spectrum, as provided
for in paragraph (15) of this
subsection;
(II) prevent the use of
recovered spectrum by public
safety services, as provided
for by section 337(a)(1) of
this Act; and
(III) encumber nor interfere
with any channels reserved for
public safety use as designated
in FCC ET Docket No. 97-157.
(ii) The station shall operate on its
assigned analog channel as of February
16, 2009, if that channel--
(I) is designated between 2
and 51;
(II) has not been assigned to
the station itself or another
station for digital operation
after the digital transition;
and
(III) could be used by that
station for analog operation
after the digital transition
without causing interference to
previously authorized digital
television stations.
(iii) If the station does not meet
the criteria of clause (ii) for
operation on its assigned analog
channel as of February 16, 2009, the
station may request, and the Commission
shall promptly act upon such request,
to be assigned a new channel for its
analog operation, if the requested
channel--
(I) is shall between channels
2 and 51; and
(II) allows the station to
operate on a primary basis
without causing interference to
other analog or digital
television stations or to
stations licensed to operate in
other radio services that also
operate on channels between 2
and 51. Where mutually
exclusive applications are
submitted for analog television
operation on a channel under
the provisions of this section,
the Commission shall award the
authority to use that channel
through the application of the
procedures of this subsection
and giving due consideration to
the alternative resolution
procedures of paragraph (6)(E)
of this subsection.
(iv) The station shall, from February
16, 2009, through February 17, 2011,
regularly broadcast Spanish-language
public service announcements that serve
to educate the station's viewers to the
digital transition and the need to
secure digital converters or monitors
so that the station's viewers can
receive the station's digital signal
after February 17, 2011.
(15) Commission to determine timing of auctions.--
(A) Commission authority.--Subject to the
provisions of this subsection (including
paragraph (11)), but notwithstanding any other
provision of law, the Commission shall
determine the timing of and deadlines for the
conduct of competitive bidding under this
subsection, including the timing of and
deadlines for qualifying for bidding;
conducting auctions; collecting, depositing,
and reporting revenues; and completing
licensing processes and assigning licenses.
(B) Termination of portions of auctions 31
and 44.--Except as provided in subparagraph
(C), the Commission shall not commence or
conduct auctions 31 and 44 on June 19, 2002, as
specified in the public notices of March 19,
2002, and March 20, 2002 (DA 02-659 and DA 02-
563).
(C) Exception.--
(i) Blocks excepted.--Subparagraph
(B) shall not apply to the auction of--
(I) the C-block of licenses
on the bands of frequencies
located at 710-716 megahertz,
and 740-746 megahertz; or
(II) the D-block of licenses
on the bands of frequencies
located at 716-722 megahertz.
(ii) Eligible bidders.--The entities
that shall be eligible to bid in the
auction of the C-block and D-block
licenses described in clause (i) shall
be those entities that were qualified
entities, and that submitted
applications to participate in auction
44, by May 8, 2002, as part of the
original auction 44 short form filing
deadline.
(iii) Auction deadlines for excepted
blocks.--Notwithstanding subparagraph
(B), the auction of the C-block and D-
block licenses described in clause (i)
shall be commenced no earlier than
August 19, 2002, and no later than
September 19, 2002, and the proceeds of
such auction shall be deposited in
accordance with paragraph (8) not later
than December 31, 2002.
(iv) Report.--Within one year after
the date of enactment of this
paragraph, the Commission shall submit
a report to Congress--
(I) specifying when the
Commission intends to
reschedule auctions 31 and 44
(other than the blocks excepted
by clause (i)); and
(II) describing the progress
made by the Commission in the
digital television transition
and in the assignment and
allocation of additional
spectrum for advanced mobile
communications services that
warrants the scheduling of such
auctions.
(v) Additional deadlines for
recovered analog spectrum.--
Notwithstanding subparagraph (B), the
Commission shall conduct the auction of
the licenses for recovered analog
spectrum by commencing the bidding not
later than January 28, 2008, and shall
deposit the proceeds of such auction in
accordance with paragraph (8)(E)(ii)
not later than June 30, 2008.
(vi) Recovered analog spectrum.--For
purposes of clause (v), the term
``recovered analog spectrum'' means the
spectrum between channels 52 and 69,
inclusive (between frequencies 698 and
806 megahertz, inclusive) reclaimed
from analog television service
broadcasting under paragraph (14),
other than--
(I) the spectrum required by
section 337 to be made
available for public safety
services; and
(II) the spectrum auctioned
prior to the date of enactment
of the Digital Television
Transition and Public Safety
Act of 2005.
(D) Return of payments.--Within one month
after the date of enactment of this paragraph,
the Commission shall return to the bidders for
licenses in the A-block, B-block, and E-block
of auction 44 the full amount of all upfront
payments made by such bidders for such
licenses.
(16) Special auction provisions for eligible
frequencies.--
(A) Special regulations.--The Commission
shall revise the regulations prescribed under
paragraph (4)(F) of this subsection to
prescribe methods by which the total cash
proceeds from any auction of eligible
frequencies described in section 113(g)(2) of
the National Telecommunications and Information
Administration Organization Act (47 U.S.C.
923(g)(2)) shall at least equal 110 percent of
the total estimated relocation costs provided
to the Commission pursuant to section 113(g)(4)
of such Act.
(B) Conclusion of auctions contingent on
minimum proceeds.--The Commission shall not
conclude any auction of eligible frequencies
described in section 113(g)(2) of such Act if
the total cash proceeds attributable to such
spectrum are less than 110 percent of the total
estimated relocation costs provided to the
Commission pursuant to section 113(g)(4) of
such Act. If the Commission is unable to
conclude an auction for the foregoing reason,
the Commission shall cancel the auction, return
within 45 days after the auction cancellation
date any deposits from participating bidders
held in escrow, and absolve such bidders from
any obligation to the United States to bid in
any subsequent reauction of such spectrum.
(C) Authority to issue prior to
deauthorization.--In any auction conducted
under the regulations required by subparagraph
(A), the Commission may grant a license
assigned for the use of eligible frequencies
prior to the termination of an eligible Federal
entity's authorization. However, the Commission
shall condition such license by requiring that
the licensee cannot cause harmful interference
to such Federal entity until such entity's
authorization has been terminated by the
National Telecommunications and Information
Administration.
(17) Report on the impact of secondary market
transactions.--Not later than 2 years after the date of
enactment of the Rural Wireless and Broadband Service
Act of 2006, and every 2 years thereafter until the
database developed under paragraph (18) is available to
the public, the Commission shall submit a report to
Congress analyzing and evaluating the impact of the
Commission's--
(A) spectrum leasing; and
(B) spectrum partitioning and disaggregation
rules in facilitating, through the development
of secondary markets, the deployment of
spectrum-based services to the public,
particularly to those members of the public
residing in rural and underserved areas.
(18) Publicly accessible integrated data base.--The
Commission, in coordination with the Assistant
Secretary of Commerce for Communications and
Information, shall develop an integrated national
database, accessible by the public, that identifies by
name, address, and contact information for each
licensee, the spectrum assigned to each such licensee,
and the geographic area to which the spectrum is
assigned or licensed. The database may not provide
public access to information protected from public
disclosure under chapter 5 of title 5, United States
Code, or the disclosure of which would compromise
national security.
(k) Broadcast Station Renewal Procedures.--
(1) Standards for renewal.--If the licensee of a
broadcast station submits an application to the
Commission for renewal of such license, the Commission
shall grant the application if it finds, with respect
to that station, during the preceding term of its
license--
(A) the station has served the public
interest, convenience, and necessity;
(B) there have been no serious violations by
the licensee of this Act or the rules and
regulations of the Commission; and
(C) there have been no other violations by
the licensee of this Act or the rules and
regulations of the Commission which, taken
together, would constitute a pattern of abuse.
(2) Consequence of failure to meet standard.--If any
licensee of a broadcast station fails to meet the
requirements of this subsection, the Commission may
deny the application for renewal in accordance with
paragraph (3), or grant such application on terms and
conditions as are appropriate, including renewal for a
term less than the maximum otherwise permitted.
(3) Standards for denial.--If the Commission
determines, after notice and opportunity for a hearing
as provided in subsection (e), that a licensee has
failed to meet the requirements specified in paragraph
(1) and that no mitigating factors justify the
imposition of lesser sanctions, the Commission shall--
(A) issue an order denying the renewal
application filed by such licensee under
section 308; and
(B) only thereafter accept and consider such
applications for a construction permit as may
be filed under section 308 specifying the
channel or broadcasting facilities of the
former licensee.
(4) Competitor consideration prohibited.--In making
the determinations specified in paragraph (1) or (2),
the Commission shall not consider whether the public
interest, convenience, and necessity might be served by
the grant of a license to a person other than the
renewal applicant.
(l) Applicability of Competitive Bidding to Pending
Comparative Licensing Cases.--With respect to competing
applications for initial licenses or construction permits for
commercial radio or television stations that were filed with
the Commission before July 1, 1997, the Commission shall--
(1) have the authority to conduct a competitive
bidding proceeding pursuant to subsection (j) to assign
such license or permit;
(2) treat the persons filing such applications as the
only persons eligible to be qualified bidders for
purposes of such proceeding; and
(3) waive any provisions of its regulations necessary
to permit such persons to enter an agreement to procure
the removal of a conflict between their applications
during the 180-day period beginning on the date of
enactment of the Balanced Budget Act of 1997.
SEC. 325. FALSE, FRAUDULENT, OR UNAUTHORIZED TRANSMISSIONS.
[47 U.S.C. 325]
(a) False Distress Signals; Rebroadcasting Programs.--No
person within the jurisdiction of the United States shall
knowingly utter or transmit, or cause to be uttered or
transmitted, any false or fraudulent signal of distress, or
communication relating thereto, nor shall any broadcasting
station rebroadcast the program or any part thereof of another
broadcasting station without the express authority of the
originating station.
(b) Consent to Retransmission of Broadcasting Station
Signals.--
(1) No [cable system] video service provider or other
multichannel video programming distributor shall
retransmit the signal of a broadcasting station, or any
part thereof, except--
(A) with the express authority of the
originating station;
(B) under section 614, in the case of a
station electing, in accordance with this
subsection, to assert the right to carriage
under such section; or
(C) under section 338, in the case of a
station electing, in accordance with this
subsection, to assert the right to carriage
under such section.
(2) This subsection shall not apply--
(A) to retransmission of the signal of a
noncommercial television broadcast station;
(B) to retransmission of the signal of a
television broadcast station outside the
station's local market by a satellite carrier
directly to its subscribers, if--
(i) such station was a superstation
on May 1, 1991;
(ii) as of July 1, 1998, such station
was retransmitted by a satellite
carrier under the statutory license of
section 119 of title 17, United States
Code; and
(iii) the satellite carrier complies
with any network nonduplication,
syndicated exclusivity, and sports
blackout rules adopted by the
Commission under section 339(b) of this
Act;
(C) until December 31, 2009, to
retransmission of the signals of network
stations directly to a home satellite antenna,
if the subscriber receiving the signal--
(i) is located in an area outside the
local market of such stations; and
(ii) resides in an unserved
household;
(D) to retransmission by a cable operator or
other multichannel video provider, other than a
satellite carrier, of the signal of a
television broadcast station outside the
station's local market if such signal was
obtained from a satellite carrier and--
(i) the originating station was a
superstation on May 1, 1991; and
(ii) as of July 1, 1998, such station
was retransmitted by a satellite
carrier under the statutory license of
section 119 of title 17, United States
Code; or
(E) during the 6-month period beginning on
the date of the enactment of the Satellite Home
Viewer Improvement Act of 1999, to the
retransmission of the signal of a television
broadcast station within the station's local
market by a satellite carrier directly to its
subscribers under the statutory license of
section 122 of title 17, United States Code.
The term ``video service provider'' has the
meaning given it in section 602(25) of this
Act.
For purposes of this paragraph, the terms ``satellite
carrier'' and ``superstation'' have the meanings given
those terms, respectively, in section 119(d) of title
17, United States Code, as in effect on the date of the
enactment of the Cable Television Consumer Protection
and Competition Act of 1992, the term ``unserved
household'' has the meaning given that term under
section 119(d) of such title, and the term ``local
market'' has the meaning given that term in section
122(j) of such title.
(3)(A) Within 45 days after the date of enactment of
the Cable Television Consumer Protection and
Competition Act of 1992, the Commission shall commence
a rulemaking proceeding to establish regulations to
govern the exercise by television broadcast stations of
the right to grant retransmission consent under this
subsection and of the right to signal carriage under
section 614, and such other regulations as are
necessary to administer the limitations contained in
paragraph (2). The Commission shall consider in such
proceeding the impact that the grant of retransmission
consent by television stations may have on the rates
for the basic service tier and shall ensure that the
regulations prescribed under this subsection do not
conflict with the Commission's obligation under section
623(b)(1) to ensure that the rates for the basic
service tier are reasonable. Such rulemaking proceeding
shall be completed within 180 days after the date of
enactment of the Cable Television Consumer Protection
and Competition Act of 1992.
(B) The regulations required by subparagraph
(A) shall require that television stations,
within one year after the date of enactment of
the Cable Television Consumer Protection and
Competition Act of 1992 and every three years
thereafter, make an election between the right
to grant retransmission consent under this
subsection and the right to signal carriage
under section 614. If there is more than one
cable system which services the same geographic
area, a station's election shall apply to all
such cable systems.
(C) The Commission shall commence a
rulemaking proceeding to revise the regulations
governing the exercise by television broadcast
stations of the right to grant retransmission
consent under this subsection, and such other
regulations as are necessary to administer the
limitations contained in paragraph (2). Such
regulations shall--
(i) establish election time periods
that correspond with those regulations
adopted under subparagraph (B) of this
paragraph;
(ii) until January 1, 2010, prohibit
a television broadcast station that
provides retransmission consent from
engaging in exclusive contracts for
carriage or failing to negotiate in
good faith, and it shall not be a
failure to negotiate in good faith if
the television broadcast station enters
into retransmission consent agreements
containing different terms and
conditions, including price terms, with
different multichannel video
programming distributors if such
different terms and conditions are
based on competitive marketplace
considerations; and
(iii) until January 1, 2010, prohibit
a multichannel video programming
distributor from failing to negotiate
in good faith for retransmission
consent under this section, and it
shall not be a failure to negotiate in
good faith if the distributor enters
into retransmission consent agreements
containing different terms and
conditions, including price terms, with
different broadcast stations if such
different terms and conditions are
based on competitive marketplace
considerations.
(4) If an originating television station elects under
paragraph (3)(B) to exercise its right to grant
retransmission consent under this subsection with
respect to a cable system, the provisions of section
614 shall not apply to the carriage of the signal of
such station by such cable system. If an originating
television station elects under paragraph (3)(C) to
exercise its right to grant retransmission consent
under this subsection with respect to a satellite
carrier, section 338 shall not apply to the carriage of
the signal of such station by such satellite carrier.
(5) The exercise by a television broadcast station of
the right to grant retransmission consent under this
subsection shall not interfere with or supersede the
rights under section 338, 614, or 615 of any station
electing to assert the right to signal carriage under
that section.
(6) Nothing in this section shall be construed as
modifying the compulsory copyright license established
in section 111 of title 17, United States Code, or as
affecting existing or future video programming
licensing agreements between broadcasting stations and
video programmers.
(7) For purposes of this subsection, the term--
(A) ``network station'' has the meaning given
such term under section 119(d) of title 17,
United States Code; and
(B) ``television broadcast station'' means an
over-the-air commercial or noncommercial
television broadcast station licensed by the
Commission under subpart E of part 73 of title
47, Code of Federal Regulations, except that
such term does not include a low-power or
translator television station.
(c) Broadcast to Foreign Countries for Rebroadcast to United
States; Permit.--No person shall be permitted to locate, use,
or maintain a radio broadcast studio or other place or
apparatus from which or whereby sound waves are converted into
electrical energy, or mechanical or physical reproduction of
sound waves produced, and cause to be transmitted or delivered
to a radio station in a foreign country for the purpose of
being broadcast from any radio station there having a power
output of sufficient intensity and/or being so located
geographically that its emissions may be received consistently
in the United States, without first obtaining a permit from the
Commission upon proper application therefor.
(d) Application for Permit.--Such application shall contain
such information as the Commission may by regulation prescribe,
and the granting or refusal thereof shall be subject to the
requirements of section 309 hereof with respect to applications
for station licenses or renewal or modification thereof, and
the license or permission so granted shall be revocable for
false statements in the application so required or when the
Commission, after hearings, shall find its continuation no
longer in the public interest.
(e) Enforcement Proceedings Against Satellite Carriers
Concerning Retransmissions of Television Broadcast Stations in
the Respective Local Markets of Such Carriers.--
(1) Complaints by television broadcast stations.--If
after the expiration of the 6-month period described
under subsection (b)(2)(E) a television broadcast
station believes that a satellite carrier has
retransmitted its signal to any person in the local
market of such station in violation of subsection
(b)(1), the station may file with the Commission a
complaint providing--
(A) the name, address, and call letters of
the station;
(B) the name and address of the satellite
carrier;
(C) the dates on which the alleged
retransmission occurred;
(D) the street address of at least one person
in the local market of the station to whom the
alleged retransmission was made;
(E) a statement that the retransmission was
not expressly authorized by the television
broadcast station; and
(F) the name and address of counsel for the
station.
(2) Service of complaints on satellite carriers.--For
purposes of any proceeding under this subsection, any
satellite carrier that retransmits the signal of any
broadcast station shall be deemed to designate the
Secretary of the Commission as its agent for service of
process. A television broadcast station may serve a
satellite carrier with a complaint concerning an
alleged violation of subsection (b)(1) through
retransmission of a station within the local market of
such station by filing the original and two copies of
the complaint with the Secretary of the Commission and
serving a copy of the complaint on the satellite
carrier by means of two commonly used overnight
delivery services, each addressed to the chief
executive officer of the satellite carrier at its
principal place of business, and each marked ``URGENT
LITIGATION MATTER'' on the outer packaging. Service
shall be deemed complete one business day after a copy
of the complaint is provided to the delivery services
for overnight delivery. On receipt of a complaint filed
by a television broadcast station under this
subsection, the Secretary of the Commission shall send
the original complaint by United States mail, postage
prepaid, receipt requested, addressed to the chief
executive officer of the satellite carrier at its
principal place of business.
(3) Answers by satellite carriers.--Within five
business days after the date of service, the satellite
carrier shall file an answer with the Commission and
shall serve the answer by a commonly used overnight
delivery service and by United States mail, on the
counsel designated in the complaint at the address
listed for such counsel in the complaint.
(4) Defenses.--
(A) Exclusive defenses.--The defenses under
this paragraph are the exclusive defenses
available to a satellite carrier against which
a complaint under this subsection is filed.
(B) Defenses.--The defenses referred to under
subparagraph (A) are the defenses that--
(i) the satellite carrier did not
retransmit the television broadcast
station to any person in the local
market of the station during the time
period specified in the complaint;
(ii) the television broadcast station
had, in a writing signed by an officer
of the television broadcast station,
expressly authorized the retransmission
of the station by the satellite carrier
to each person in the local market of
the television broadcast station to
which the satellite carrier made such
retransmissions for the entire time
period during which it is alleged that
a violation of subsection (b)(1) has
occurred;
(iii) the retransmission was made
after January 1, 2002, and the
television broadcast station had
elected to assert the right to carriage
under section 338 as against the
satellite carrier for the relevant
period; or
(iv) the station being retransmitted
is a noncommercial television broadcast
station.
(5) Counting of violations.--The retransmission
without consent of a particular television broadcast
station on a particular day to one or more persons in
the local market of the station shall be considered a
separate violation of subsection (b)(1).
(6) Burden of proof.--With respect to each alleged
violation, the burden of proof shall be on a television
broadcast station to establish that the satellite
carrier retransmitted the station to at least one
person in the local market of the station on the day in
question. The burden of proof shall be on the satellite
carrier with respect to all defenses other than the
defense under paragraph (4)(B)(i).
(7) Procedures.--
(A) Regulations.--Within 60 days after the
date of the enactment of the Satellite Home
Viewer Improvement Act of 1999, the Commission
shall issue procedural regulations implementing
this subsection which shall supersede
procedures under section 312.
(B) Determinations.--
(i) In general.--Within 45 days after
the filing of a complaint, the
Commission shall issue a final
determination in any proceeding brought
under this subsection. The Commission's
final determination shall specify the
number of violations committed by the
satellite carrier. The Commission shall
hear witnesses only if it clearly
appears, based on written filings by
the parties, that there is a genuine
dispute about material facts. Except as
provided in the preceding sentence, the
Commission may issue a final ruling
based on written filings by the
parties.
(ii) Discovery.--The Commission may
direct the parties to exchange
pertinent documents, and if necessary
to take prehearing depositions, on such
schedule as the Commission may approve,
but only if the Commission first
determines that such discovery is
necessary to resolve a genuine dispute
about material facts, consistent with
the obligation to make a final
determination within 45 days.
(8) Relief.--If the Commission determines that a
satellite carrier has retransmitted the television
broadcast station to at least one person in the local
market of such station and has failed to meet its
burden of proving one of the defenses under paragraph
(4) with respect to such retransmission, the Commission
shall be required to--
(A) make a finding that the satellite carrier
violated subsection (b)(1) with respect to that
station; and
(B) issue an order, within 45 days after the
filing of the complaint, containing--
(i) a cease-and-desist order
directing the satellite carrier
immediately to stop making any further
retransmissions of the television
broadcast station to any person within
the local market of such station until
such time as the Commission determines
that the satellite carrier is in
compliance with subsection (b)(1) with
respect to such station;
(ii) if the satellite carrier is
found to have violated subsection
(b)(1) with respect to more than two
television broadcast stations, a cease-
and-desist order directing the
satellite carrier to stop making any
further retransmission of any
television broadcast station to any
person within the local market of such
station, until such time as the
Commission, after giving notice to the
station, that the satellite carrier is
in compliance with subsection (b)(1)
with respect to such stations; and
(iii) an award to the complainant of
that complainant's costs and reasonable
attorney's fees.
(9) Court proceedings on enforcement of Commission
order.--
(A) In general.--On entry by the Commission
of a final order granting relief under this
subsection--
(i) a television broadcast station
may apply within 30 days after such
entry to the United States District
Court for the Eastern District of
Virginia for a final judgment enforcing
all relief granted by the Commission;
and
(ii) the satellite carrier may apply
within 30 days after such entry to the
United States District Court for the
Eastern District of Virginia for a
judgment reversing the Commission's
order.
(B) Appeal.--The procedure for an appeal
under this paragraph by the satellite carrier
shall supersede any other appeal rights under
Federal or State law. A United States district
court shall be deemed to have personal
jurisdiction over the satellite carrier if the
carrier, or a company under common control with
the satellite carrier, has delivered television
programming by satellite to more than 30
customers in that district during the preceding
4-year period. If the United States District
Court for the Eastern District of Virginia does
not have personal jurisdiction over the
satellite carrier, an enforcement action or
appeal shall be brought in the United States
District Court for the District of Columbia,
which may find personal jurisdiction based on
the satellite carrier's ownership of licenses
issued by the Commission. An application by a
television broadcast station for an order
enforcing any cease-and-desist relief granted
by the Commission shall be resolved on a highly
expedited schedule. No discovery may be
conducted by the parties in any such
proceeding. The district court shall enforce
the Commission order unless the Commission
record reflects manifest error and an abuse of
discretion by the Commission.
(10) Civil action for statutory damages.--Within 6
months after issuance of an order by the Commission
under this subsection, a television broadcast station
may file a civil action in any United States district
court that has personal jurisdiction over the satellite
carrier for an award of statutory damages for any
violation that the Commission has determined to have
been committed by a satellite carrier under this
subsection. Such action shall not be subject to
transfer under section 1404(a) of title 28, United
States Code. On finding that the satellite carrier has
committed one or more violations of subsection (b), the
District Court shall be required to award the
television broadcast station statutory damages of
$25,000 per violation, in accordance with paragraph
(5), and the costs and attorney's fees incurred by the
station. Such statutory damages shall be awarded only
if the television broadcast station has filed a binding
stipulation with the court that such station will
donate the full amount in excess of $1,000 of any
statutory damage award to the United States Treasury
for public purposes. Notwithstanding any other
provision of law, a station shall incur no tax
liability of any kind with respect to any amounts so
donated. Discovery may be conducted by the parties in
any proceeding under this paragraph only if and to the
extent necessary to resolve a genuinely disputed issue
of fact concerning one of the defenses under paragraph
(4). In any such action, the defenses under paragraph
(4) shall be exclusive, and the burden of proof shall
be on the satellite carrier with respect to all
defenses other than the defense under paragraph
(4)(B)(i). A judgment under this paragraph may be
enforced in any manner permissible under Federal or
State law.
(11) Appeals.--
(A) In general.--The nonprevailing party
before a United States district court may
appeal a decision under this subsection to the
United States Court of Appeals with
jurisdiction over that district court. The
Court of Appeals shall not issue any stay of
the effectiveness of any decision granting
relief against a satellite carrier unless the
carrier presents clear and convincing evidence
that it is highly likely to prevail on appeal
and only after posting a bond for the full
amount of any monetary award assessed against
it and for such further amount as the Court of
Appeals may believe appropriate.
(B) Appeal.--If the Commission denies relief
in response to a complaint filed by a
television broadcast station under this
subsection, the television broadcast station
filing the complaint may file an appeal with
the United States Court of Appeals for the
District of Columbia Circuit.
(12) Sunset.--No complaint or civil action may be
filed under this subsection after December 31, 2001.
This subsection shall continue to apply to any
complaint or civil action filed on or before such date.
SEC. 330. PROHIBITION AGAINST SHIPMENT OF CERTAIN TELEVISION RECEIVERS.
[47 U.S.C. 330]
(a) No person shall ship in interstate commerce, or import
from any foreign country into the United States, for sale or
resale to the public, apparatus described in paragraph (s) of
section 303 unless it complies with rules prescribed by the
Commission pursuant to the authority granted by that paragraph:
Provided, That this section shall not apply to carriers
transporting such apparatus without trading in it.
(b) No person shall ship in interstate commerce, manufacture,
assemble, or import from any foreign country into the United
States, any apparatus described in section 303(u) of this Act
except in accordance with rules prescribed by the Commission
pursuant to the authority granted by that section. Such rules
shall provide performance and display standards for such built-
in decoder circuitry. Such rules shall further require that all
such apparatus be able to receive and display closed captioning
which have been transmitted by way of line 21 of the vertical
blanking interval and which conform to the signal and display
specifications set forth in the Public Broadcasting System
engineering report numbered E-7709-C dated May 1980, as amended
by the Telecaption II Decoder Module Performance Specification
published by the National Captioning Institute, November 1985.
As new video technology is developed, the Commission shall take
such action as the Commission determines appropriate to ensure
that closed-captioning service continues to be available to
consumers. This subsection shall not apply to carriers
transporting such apparatus without trading it.
(c)(1) Except as provided in paragraph (2), no person shall
ship in interstate commerce or manufacture in the United States
any apparatus described in section 303(x) of this Act except in
accordance with rules prescribed by the Commission pursuant to
the authority granted by that section.
(2) This subsection shall not apply to carriers transporting
apparatus referred to in paragraph (1) without trading in it.
(3) The rules prescribed by the Commission under this
subsection shall provide for the oversight by the Commission of
the adoption of standards by industry for blocking technology.
Such rules shall require that all such apparatus be able to
receive the rating signals which have been transmitted by way
of line 21 of the vertical blanking interval and which conform
to the signal and blocking specifications established by
industry under the supervision of the Commission.
(4) As new video technology is developed, the Commission
shall take such action as the Commission determines appropriate
to ensure that blocking service continues to be available to
consumers. If the Commission determines that an alternative
blocking technology exists that--
(A) enables parents to block programming based on
identifying programs without ratings,
(B) is available to consumers at a cost which is
comparable to the cost of technology that allows
parents to block programming based on common ratings,
and
(C) will allow parents to block a broad range of
programs on a multichannel system as effectively and as
easily as technology that allows parents to block
programming based on common ratings,
the Commission shall amend the rules prescribed pursuant to
section 303(x) to require that the apparatus described in such
section be equipped with either the blocking technology
described in such section or the alternative blocking
technology described in this paragraph.
(d) Consumer Education Requirements Regarding Analog
Receivers.--
(1) Requirements for manufacturers.--The manufacturer
of any analog only television set manufactured in the
United States or shipped in interstate commerce shall--
(A) place the appropriate removable label
described in paragraph (3) on the screen of
such television set; and
(B) display the label required by paragraph
(3) on the outside of the retail packaging of
the television set--
(i) in a clear and conspicuous
manner; and
(ii) in a manner that cannot be
removed.
(2) Requirements for retailers.--
(A) In general.--A retailer of analog only
television sets that sells such television sets
via direct mail, catalog, or electronic means,
shall include in all advertisements or
descriptions of such television set the product
and the information described in paragraph (3)
within 120 days after the date of enactment of
the Advanced Telecommunications and
Opportunities Reform Act.
(B) Duty to adequately inform consumers.--
Notwithstanding the requirement in subparagraph
(A), it shall be a violation of this Act for
any retailer of analog-only television sets--
(i) to fail to adequately inform
consumers about the availability of
digital-to-analog converter boxes; or
(ii) to provide misleading
information about the availability and
cost of such converter boxes.
(3) Product and digital television transition
information.--
(A) Label requirement.--The following product
and digital television transition information
shall be displayed as a label on analog
television sets, in both English and Spanish:
``CONSUMER ALERT
``This TV has only an
`analog' broadcast tuner and
will require a converter box
after February 17, 2009 to
receive over-the-air broadcasts
with an antenna because of the
Nation's transition to digital
broadcasting on that date as
required by Federal law. It
should continue to work as
before with cable and satellite
TV services, gaming consoles,
VCRs, DVD players, and similar
products.''.
(B) Blocking technology.--All television
sets, analog or digital, that have a picture
screen 13 inches or greater in size (measured
diagonally), shall be equipped with a feature
designed to enable viewers to block display of
all programs with a common rating. For
additional information on such technology,
visit http://www.tvguidelines.org.
(4) Commission outreach.--
(A) In general.--Beginning within 1 month
after the date of enactment of the Advanced
Telecommunications and Opportunities Reform
Act, the Commission shall initiate a public
outreach program the purpose of which is to
educate consumers about the digital television
transition. Not later than October 15, 2007,
the Commission shall complete and submit a
national plan to Congress on how to best carry
out such public outreach program. Such plan
shall include a description of how such public
outreach program will carry out the purposes,
recommendations, and requirements described in
subparagraphs (A), (B), and (C) of section
701(b)(3) of the Advanced Telecommunications
and Opportunities Reform Act.
(B) Website.--The Commission shall maintain
and publicize a website, or an easily
accessible page on its website, containing such
consumer information as well as any links to
other websites the Commission determines to be
appropriate.
(C) Telephone information hotline.--The
Commission shall establish, maintain, and make
public a toll-free information hotline
regarding the digital television transition.
(5) Public service announcements.--
(A) In general.--Each television broadcast
licensee or permittee shall broadcast at least
2 30-second public service announcements
daily--
(i) during the 3-month period
beginning December 1, 2007, such date
being 1 month prior to the commencement
of the digital-to-analog converter box
subsidy program authorized under 3005
of the Digital Television Transition
and Public Safety Act of 2005 (Public
Law 109-171; 120 Stat. 24); and
(ii) during the 3-month period
beginning on November 17, 2008, such
date being 3 months prior to the
Nation's transition to digital
broadcasting as required under section
309(j)(14) of the Communications Act of
1934 (47 U.S.C. 309(j)(14)).
(B) Multilingual notices.--The information
required to be provided to consumers under this
paragraph shall be provided in English and
Spanish and may be provided in such other
languages as may be appropriate to the
marketing segments of the public to which the
information is addressed.
(C) Time of broadcast.--The public service
announcements required under subparagraph (A)
shall be broadcast at such times as the
Commission, in accordance with the Working
Group established under section 701(b)(3) of
the Advanced Telecommunications and
Opportunities Reform Act, may require in order
to assure the widest possible audience.
(D) Content of broadcast.--The public service
announcements required under subparagraph (A)
shall, at least--
(i) notify the public of the--
(I) date of the digital
transition; and
(II) starting date of the
digital-to-analog converter box
subsidy program described in
subparagraph (A); and
(ii) contain the address of the
website and toll-free information
hotline provided by the Commission
under subparagraphs (B) and (C) of
paragraph (4).
(6) Penalty.--In addition to any other civil or
criminal penalty provided by law, the Commission shall
issue civil forfeitures for violations of the
requirements of this subsection in an amount equal to
not more than 3 times the amount of the forfeiture
penalty established by section 503(a)(2)(A).
(7) Sunset.--The requirements of this subsection,
excluding the consumer alert labeling provision
described in paragraph (3), shall cease to apply to
manufacturers and retailers on December 1, 2009.
[(d)] (e) For the purposes of this section, and sections
303(s), 303(u), and 303(x)--
(1) The term ``interstate commerce'' means (A)
commerce between any State, the District of Columbia,
the Commonwealth of Puerto Rico, or any possession of
the United States and any place outside thereof which
is within the United States, (B) commerce between
points in the same State, the District of Columbia, the
Commonwealth of Puerto Rico, or possession of the
United States but through any place outside thereof, or
(C) commerce wholly within the District of Columbia or
any possession of the United States.
(2) The term ``United States'' means the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, and the possessions of the United States,
but does not include the Canal Zone.
SEC. 332. MOBILE SERVICES.
[47 U.S.C. 332]
(a) Factors Which Commission Must Consider.--In taking
actions to manage the spectrum to be made available for use by
the private mobile services, the Commission shall consider,
consistent with section 1 of this Act, whether such actions
will--
(1) promote the safety of life and property;
(2) improve the efficiency of spectrum use and reduce
the regulatory burden upon spectrum users, based upon
sound engineering principles, user operational
requirements, and market-place demands;
(3) encourage competition and provide services to the
largest feasible number of users; or
(4) increase interservice sharing opportunities
between private mobile services and other services.
(b) Advisory Coordinating Committees.--
(1) The Commission, in coordinating the assignment of
frequencies to stations in the private mobile services
and in the fixed services (as defined by the Commission
by rule), shall have authority to utilize assistance
furnished by advisory coordinating committees
consisting of individuals who are not officers or
employees of the Federal Government.
(2) The authority of the Commission established in
this subsection shall not be subject to or affected by
the provisions of part III of title 5, United States
Code, or section 3679(b) of the Revised Statutes (31
U.S.C. 665(b)).
(3) Any person who provides assistance to the
Commission under this subsection shall not be
considered, by reason of having provided such
assistance, a Federal employee.
(4) Any advisory coordinating committee which
furnishes assistance to the Commission under this
subsection shall not be subject to the provisions of
the Federal Advisory Committee Act.
(c) Regulatory Treatment of Mobile Services.--
(1) Common carrier treatment of commercial mobile
services.--
(A) A person engaged in the provision of a
service that is a commercial mobile service
shall, insofar as such person is so engaged, be
treated as a common carrier for purposes of
this Act, except for such provisions of title
II as the Commission may specify by regulation
as inapplicable to that service or person. In
prescribing or amending any such regulation,
the Commission may not specify any provision of
section 201, 202, or 208, and may specify any
other provision only if the Commission
determines that--
(i) enforcement of such provision is
not necessary in order to ensure that
the charges, practices,
classifications, or regulations for or
in connection with that service are
just and reasonable and are not
unjustly or unreasonably
discriminatory;
(ii) enforcement of such provision is
not necessary for the protection of
consumers; and
(iii) specifying such provision is
consistent with the public interest.
(B) Upon reasonable request of any person
providing commercial mobile service, the
Commission shall order a common carrier to
establish physical connections with such
service pursuant to the provisions of section
201 of this Act. Except to the extent that the
Commission is required to respond to such a
request, this subparagraph shall not be
construed as a limitation or expansion of the
Commission's authority to order interconnection
pursuant to this Act.
(C) The Commission shall review competitive
market conditions with respect to commercial
mobile services and shall include in its annual
report an analysis of those conditions. Such
analysis shall include an identification of the
number of competitors in various commercial
mobile services, an analysis of whether or not
there is effective competition, an analysis of
whether any of such competitors have a dominant
share of the market for such services, and a
statement of whether additional providers or
classes of providers in those services would be
likely to enhance competition. As a part of
making a determination with respect to the
public interest under subparagraph (A)(iii),
the Commission shall consider whether the
proposed regulation (or amendment thereof) will
promote competitive market conditions,
including the extent to which such regulation
(or amendment) will enhance competition among
providers of commercial mobile services. If the
Commission determines that such regulation (or
amendment) will promote competition among
providers of commercial mobile services, such
determination may be the basis for a Commission
finding that such regulation (or amendment) is
in the public interest.
(D) The Commission shall, not later than 180
days after the date of enactment of this
subparagraph, complete a rulemaking required to
implement this paragraph with respect to the
licensing of personal communications services,
including making any determinations required by
subparagraph (C).
(2) Non-common carrier treatment of private mobile
services.--A person engaged in the provision of a
service that is a private mobile service shall not,
insofar as such person is so engaged, be treated as a
common carrier for any purpose under this Act. A common
carrier (other than a person that was treated as a
provider of a private land mobile service prior to the
enactment of the Omnibus Budget Reconciliation Act of
1993) shall not provide any dispatch service on any
frequency allocated for common carrier service, except
to the extent such dispatch service is provided on
stations licensed in the domestic public land mobile
radio service before January 1, 1982. The Commission
may by regulation terminate, in whole or in part, the
prohibition contained in the preceding sentence if the
Commission determines that such termination will serve
the public interest.
(3) State preemption.--
(A) [Notwithstanding sections 2(b) and
221(b), no State or local government shall have
any authority to regulate the entry of or the
rates charged by any commercial mobile service
or any private mobile service, except that this
paragraph shall not prohibit a State from
regulating the other terms and conditions of
commercial mobile services.] (i)
Notwithstanding sections 2(b) and 221(b) or any
other provision of law, a State or local
government shall not regulate or adjudicate--
(I) the entry of or the rates charged
by any provider of commercial mobile
service or private mobile service for
any such mobile service or any or any
other service that is primarily
intended for receipt on or use with a
wireless device that is utilized by a
customer of such mobile service in
connection with such mobile service; or
(II) any terms and conditions of such
mobile service or any other such
service, except pursuant to a law or
regulation generally applicable to
businesses in the State other than a
law or regulation that regulates or has
the effect of regulating the entry or
rates for any such service.
(ii) Nothing in this section shall affect the
authority of the Commission under this Act to
adopt consumer protection requirements
applicable to providers of commercial mobile
service or private mobile services.
(iii) Nothing in this subparagraph shall
exempt providers of commercial mobile services
(where such services are a substitute for land
line telephone exchange service for a
substantial portion of the communications
within such State) from requirements imposed by
a State commission on all providers of
telecommunications services necessary to ensure
the universal availability of
telecommunications service at affordable rates.
Notwithstanding the first sentence of this
subparagraph, a State may petition the
Commission for authority to regulate the rates
for any commercial mobile service and the
Commission shall grant such petition if such
State demonstrates that--
[(i)] (I) market conditions with
respect to such services fail to
protect subscribers adequately from
unjust and unreasonable rates or rates
that are unjustly or unreasonably
discriminatory; or
[(ii)] (II) such market conditions
exist and such service is a replacement
for land line telephone exchange
service for a substantial portion of
the telephone land line exchange
service within such State.
The Commission shall provide reasonable opportunity for public
comment in response to such petition, and shall, within 9
months after the date of its submission, grant or deny such
petition. If the Commission grants such petition, the
Commission shall authorize the State to exercise under State
law such authority over rates, for such periods of time, as the
Commission deems necessary to ensure that such rates are just
and reasonable and not unjustly or unreasonably discriminatory.
(B) If a State has in effect on June 1, 1993,
any regulation concerning the rates for any
commercial mobile service offered in such State
on such date, such State may, no later than 1
year after the date of enactment of the Omnibus
Budget Reconciliation Act of 1993, petition the
Commission requesting that the State be
authorized to continue exercising authority
over such rates. If a State files such a
petition, the State's existing regulation
shall, notwithstanding subparagraph (A), remain
in effect until the Commission completes all
action (including any reconsideration) on such
petition. The Commission shall review such
petition in accordance with the procedures
established in such subparagraph, shall
complete all action (including any
reconsideration) within 12 months after such
petition is filed, and shall grant such
petition if the State satisfies the showing
required under subparagraph (A)(i) or (A)(ii).
If the Commission grants such petition, the
Commission shall authorize the State to
exercise under State law such authority over
rates, for such period of time, as the
Commission deems necessary to ensure that such
rates are just and reasonable and not unjustly
or unreasonably discriminatory. After a
reasonable period of time, as determined by the
Commission, has elapsed from the issuance of an
order under subparagraph (A) or this
subparagraph, any interested party may petition
the Commission for an order that the exercise
of authority by a State pursuant to such
subparagraph is no longer necessary to ensure
that the rates for commercial mobile services
are just and reasonable and not unjustly or
unreasonably discriminatory. The Commission
shall provide reasonable opportunity for public
comment in response to such petition, and
shall, within 9 months after the date of its
submission, grant or deny such petition in
whole or in part.
(4) Regulatory treatment of communications satellite
corporation.--Nothing in this subsection shall be
construed to alter or affect the regulatory treatment
required by title IV of the Communications Satellite
Act of 1962 of the corporation authorized by title III
of such Act.
(5) Space segment capacity.--Nothing in this section
shall prohibit the Commission from continuing to
determine whether the provision of space segment
capacity by satellite systems to providers of
commercial mobile services shall be treated as common
carriage.
(6) Foreign ownership.--The Commission, upon a
petition for waiver filed within 6 months after the
date of enactment of the Omnibus Budget Reconciliation
Act of 1993, may waive the application of section
310(b) to any foreign ownership that lawfully existed
before May 24, 1993, of any provider of a private land
mobile service that will be treated as a common carrier
as a result of the enactment of the Omnibus Budget
Reconciliation Act of 1993, but only upon the following
conditions:
(A) The extent of foreign ownership interest
shall not be increased above the extent which
existed on May 24, 1993.
(B) Such waiver shall not permit the
subsequent transfer of ownership to any other
person in violation of section 310(b).
(7) Preservation of local zoning authority.--
(A) General authority.--Except as provided in
this paragraph, nothing in this Act shall limit
or affect the authority of a State or local
government or instrumentality thereof over
decisions regarding the placement,
construction, and modification of personal
wireless service facilities.
(B) Limitations.--
(i) The regulation of the placement,
construction, and modification of
personal wireless service facilities by
any State or local government or
instrumentality thereof--
(I) shall not unreasonably
discriminate among providers of
functionally equivalent
services; and
(II) shall not prohibit or
have the effect of prohibiting
the provision of personal
wireless services.
(ii) A State or local government or
instrumentality thereof shall act on
any request for authorization to place,
construct, or modify personal wireless
service facilities within a reasonable
period of time after the request is
duly filed with such government or
instrumentality, taking into account
the nature and scope of such request.
(iii) Any decision by a State or
local government or instrumentality
thereof to deny a request to place,
construct, or modify personal wireless
service facilities shall be in writing
and supported by substantial evidence
contained in a written record.
(iv) No State or local government or
instrumentality thereof may regulate
the placement, construction, and
modification of personal wireless
service facilities on the basis of the
environmental effects of radio
frequency emissions to the extent that
such facilities comply with the
Commission's regulations concerning
such emissions.
(v) Any person adversely affected by
any final action or failure to act by a
State or local government or any
instrumentality thereof that is
inconsistent with this subparagraph
may, within 30 days after such action
or failure to act, commence an action
in any court of competent jurisdiction.
The court shall hear and decide such
action on an expedited basis. Any
person adversely affected by an act or
failure to act by a State or local
government or any instrumentality
thereof that is inconsistent with
clause (iv) may petition the Commission
for relief.
(C) Definitions.--For purposes of this
paragraph--
(i) the term ``personal wireless
services'' means commercial mobile
services, unlicensed wireless services,
and common carrier wireless exchange
access services;
(ii) the term ``personal wireless
service facilities'' means facilities
for the provision of personal wireless
services; and
(iii) the term ``unlicensed wireless
service'' means the offering of
telecommunications services using duly
authorized devices which do not require
individual licenses, but does not mean
the provision of direct-to-home
satellite services (as defined in
section 303(v)).
(8) Mobile services access.--A person engaged in the
provision of commercial mobile services, insofar as
such person is so engaged, shall not be required to
provide equal access to common carriers for the
provision of telephone toll services. If the Commission
determines that subscribers to such services are denied
access to the provider of telephone toll services of
the subscribers' choice, and that such denial is
contrary to the public interest, convenience, and
necessity, then the Commission shall prescribe
regulations to afford subscribers unblocked access to
the provider of telephone toll services of the
subscribers' choice through the use of a carrier
identification code assigned to such provider or other
mechanism. The requirements for unblocking shall not
apply to mobile satellite services unless the
Commission finds it to be in the public interest to
apply such requirements to such services.
(d) Definitions.--For purposes of this section--
(1) the term ``commercial mobile service'' means any
mobile service (as defined in section 3) that is
provided for profit and makes interconnected service
available (A) to the public or (B) to such classes of
eligible users as to be effectively available to a
substantial portion of the public, as specified by
regulation by the Commission;
(2) the term ``interconnected service'' means service
that is interconnected with the public switched network
(as such terms are defined by regulation by the
Commission) or service for which a request for
interconnection is pending pursuant to subsection
(c)(1)(B); and
(3) the term ``private mobile service'' means any
mobile service (as defined in section 3) that is not a
commercial mobile service or the functional equivalent
of a commercial mobile service, as specified by
regulation by the Commission.
SEC. 335. DIRECT BROADCAST SATELLITE SERVICE OBLIGATIONS.
[47 U.S.C. 335]
(a) Proceeding Required to Review DBS Responsibilities.--The
Commission shall, within 180 days after the date of enactment
of this section, initiate a rulemaking proceeding to impose, on
providers of direct broadcast satellite service, public
interest or other requirements for providing video programming.
Any regulations prescribed pursuant to such rulemaking shall,
at a minimum, apply the access to broadcast time requirement of
section 312(a)(7) and the use of facilities requirements of
section 315 to providers of direct broadcast satellite service
providing video programming. Such proceeding also shall examine
the opportunities that the establishment of direct broadcast
satellite service provides for the principle of localism under
this Act, and the methods by which such principle may be served
through technological and other developments in, or regulation
of, such service.
(b) Carriage Obligations for Noncommercial, Educational, and
Informational Programming.--
(1) Channel capacity required.--The Commission shall
require, as a condition of any provision, initial
authorization, or authorization renewal for a provider
of direct broadcast satellite service providing video
programming, that the provider of such service reserve
a portion of its channel capacity, equal to not less
than 4 percent nor more than 7 percent, exclusively for
noncommercial programming of an educational or
informational nature.
(2) Use of unused channel capacity.--A provider of
such service may utilize for any purpose any unused
channel capacity required to be reserved under this
subsection pending the actual use of such channel
capacity for noncommercial programming of an
educational or informational nature.
(3) Prices, terms, and conditions; editorial
control.--A provider of direct broadcast satellite
service shall meet the requirements of this subsection
by making channel capacity available to national
educational programming suppliers, upon reasonable
prices, terms, and conditions, as determined by the
Commission under paragraph (4). The provider of direct
broadcast satellite service shall not exercise any
editorial control over any video programming provided
pursuant to this subsection.
(4) Limitations.--In determining reasonable prices
under paragraph (3)--
(A) the Commission shall take into account
the nonprofit character of the programming
provider and any Federal funds used to support
such programming;
(B) the Commission shall not permit such
prices to exceed, for any channel made
available under this subsection, 50 percent of
the total direct costs of making such channel
available; and
(C) in the calculation of total direct costs,
the Commission shall exclude--
(i) marketing costs, general
administrative costs, and similar
overhead costs of the provider of
direct broadcast satellite service; and
(ii) the revenue that such provider
might have obtained by making such
channel available to a commercial
provider of video programming.
(5) Definitions.--For purposes of this subsection--
(A) The term ``provider of direct broadcast
satellite service'' means--
(i) a licensee for a Ku-band
satellite system under part 100 of
title 47 of the Code of Federal
Regulations; or
(ii) any distributor who controls a
minimum number of channels (as
specified by Commission regulation)
using a Ku-band fixed service satellite
system for the provision of video
programming directly to the home and
licensed under part 25 of title 47 of
the Code of Federal Regulations.
(B) The term ``national educational
programming supplier'' includes any qualified
noncommercial educational television station,
other public telecommunications entities, and
public or private educational institutions.
(c) Alaska and Hawaii Obligations.--
(1) In general.--Each satellite carrier shall, to the
extent technically feasible given the carrier's
satellite constellation in use, provide a comparable
consumer product to subscribers in Alaska and Hawaii at
prices and terms comparable to those made available to
subscribers in the contiguous United States.
(2) Conditions on new licenses.--
(A) In general.--Before the Commission grants
a license for a new satellite used for service
in the contiguous United States to a satellite
carrier, it shall ensure that, to the extent
technically feasible, the following minimum
conditions are met:
(i) If the satellite is used for
direct-to home video services, the
satellite shall be--
(I) capable of providing
services to consumers in the
cities of Anchorage, Fairbanks,
and Juneau, Alaska, using
signal power levels of at least
45 dBW effective isotropic
radiated power; and
(II) capable of providing
services to consumers in the
islands of Oahu, Maui, Kauai,
Molokai, and Hawaii, Hawaii,
using signal power levels of at
least 46 dBW effective
isotropic radiated power.
(ii) If the satellite is used for any
other direct-to-consumer service--
(I) with respect to services
offered on beams covering
substantially the entire
contiguous United States, the
carrier must make best efforts
to ensure that the effective
isotropic radiated power of the
satellite on the downlink and,
where applicable, the
efficiency of the satellite
receive antenna (G/T) can allow
the use of a commercially
available antenna in Alaska and
Hawaii with a gain that is no
more than 4 dB greater than
that used to provide the
service in the contiguous
United States; and
(II) with respect to services
offered over spot beams
covering portions of the
contiguous United States, the
carrier must make best efforts
to ensure that the effective
isotropic radiated power of the
satellite on the downlink and,
where applicable, the
efficiency of the satellite
receive antenna (G/T) shall
allow the use of the same
antenna in Alaska and Hawaii as
provided in the contiguous
United States for the service.
(B) Technical feasibility.--It is deemed not
technically feasible for a satellite with a
look angle to any area of less than 8.25
degrees to provide service to such area at the
signal power levels described in subparagraph
(A).
(3) Satellite carrier defined.--In this subsection,
the term ``satellite carrier'' means an entity that
uses the facilities of a satellite in the Fixed-
Satellite Service, the Direct Broadcast Satellite
service, the Broadcast Satellite Service, the Mobile-
Satellite Service, or the Digital Audio Radio Service
that is licensed by the Commission under part 25 of
title 47, Code of Federal Regulations, or is licensed
or authorized by a foreign government.
SEC. 336. BROADCAST SPECTRUM FLEXIBILITY.
[47 U.S.C. 336]
(a) Commission Action.--If the Commission determines to issue
additional licenses for advanced television services, the
Commission--
(1) should limit the initial eligibility for such
licenses to persons that, as of the date of such
issuance, are licensed to operate a television
broadcast station or hold a permit to construct such a
station (or both); and
(2) shall adopt regulations that allow the holders of
such licenses to offer such ancillary or supplementary
services on designated frequencies as may be consistent
with the public interest, convenience, and necessity.
(b) Contents of Regulations.--In prescribing the regulations
required by subsection (a), the Commission shall--
(1) only permit such licensee or permittee to offer
ancillary or supplementary services if the use of a
designated frequency for such services is consistent
with the technology or method designated by the
Commission for the provision of advanced television
services;
(2) limit the broadcasting of ancillary or
supplementary services on designated frequencies so as
to avoid derogation of any advanced television
services, including high definition television
broadcasts, that the Commission may require using such
frequencies;
(3) apply to any other ancillary or supplementary
service such of the Commission's regulations as are
applicable to the offering of analogous services by any
other person, except that no ancillary or supplementary
service shall have any rights to carriage under
[section 614 or 615 or be deemed a multichannel video
programming distributor for purposes of section 628;]
section 614 or 615;
(4) adopt such technical and other requirements as
may be necessary or appropriate to assure the quality
of the signal used to provide advanced television
services, and may adopt regulations that stipulate the
minimum number of hours per day that such signal must
be transmitted; and
(5) prescribe such other regulations as may be
necessary for the protection of the public interest,
convenience, and necessity.
(c) Recovery of License.--If the Commission grants a license
for advanced television services to a person that, as of the
date of such issuance, is licensed to operate a television
broadcast station or holds a permit to construct such a station
(or both), the Commission shall, as a condition of such
license, require that either the additional license or the
original license held by the licensee be surrendered to the
Commission for reallocation or reassignment (or both) pursuant
to Commission regulation.
(d) Public Interest Requirement.--Nothing in this section
shall be construed as relieving a television broadcasting
station from its obligation to serve the public interest,
convenience, and necessity. In the Commission's review of any
application for renewal of a broadcast license for a television
station that provides ancillary or supplementary services, the
television licensee shall establish that all of its program
services on the existing or advanced television spectrum are in
the public interest. Any violation of the Commission rules
applicable to ancillary or supplementary services shall reflect
upon the licensee's qualifications for renewal of its license.
(e) Fees.--
(1) Services to which fees apply.--If the regulations
prescribed pursuant to subsection (a) permit a licensee
to offer ancillary or supplementary services on a
designated frequency--
(A) for which the payment of a subscription
fee is required in order to receive such
services, or
(B) for which the licensee directly or
indirectly receives compensation from a third
party in return for transmitting material
furnished by such third party (other than
commercial advertisements used to support
broadcasting for which a subscription fee is
not required),the Commission shall establish a
program to assess and collect from the licensee
for such designated frequency an annual fee or
other schedule or method of payment that
promotes the objectives described in
subparagraphs (A) and (B) of paragraph (2).
(2) Collection of fees.--The program required by
paragraph (1) shall--
(A) be designed (i) to recover for the public
a portion of the value of the public spectrum
resource made available for such commercial
use, and (ii) to avoid unjust enrichment
through the method employed to permit such uses
of that resource;
(B) recover for the public an amount that, to
the extent feasible, equals but does not exceed
(over the term of the license) the amount that
would have been recovered had such services
been licensed pursuant to the provisions of
section 309(j) of this Act and the Commission's
regulations thereunder; and
(C) be adjusted by the Commission from time
to time in order to continue to comply with the
requirements of this paragraph.
(3) Treatment of revenues.--
(A) General rule.--Except as provided in
subparagraph (B), all proceeds obtained
pursuant to the regulations required by this
subsection shall be deposited in the Treasury
in accordance with chapter 33 of title 31,
United States Code.
(B) Retention of revenues.--Notwithstanding
subparagraph (A), the salaries and expenses
account of the Commission shall retain as an
offsetting collection such sums as may be
necessary from such proceeds for the costs of
developing and implementing the program
required by this section and regulating and
supervising advanced television services. Such
offsetting collections shall be available for
obligation subject to the terms and conditions
of the receiving appropriations account, and
shall be deposited in such accounts on a
quarterly basis.
(4) Report.--Within 5 years after the date of
enactment of the Telecommunications Act of 1996, the
Commission shall report to the Congress on the
implementation of the program required by this
subsection, and shall annually thereafter advise the
Congress on the amounts collected pursuant to such
program.
(f) Preservation of Low-Power Community Television
Broadcasting.--
(1) Creation of class a licenses.--
(A) Rulemaking required.--Within 120 days
after the date of the enactment of the
Community Broadcasters Protection Act of 1999,
the Commission shall prescribe regulations to
establish a class A television license to be
available to licensees of qualifying low-power
television stations. Such regulations shall
provide that--
(i) the license shall be subject to
the same license terms and renewal
standards as the licenses for full-
power television stations except as
provided in this subsection; and
(ii) each such class A licensee shall
be accorded primary status as a
television broadcaster as long as the
station continues to meet the
requirements for a qualifying low-power
station in paragraph (2).
(B) Notice to and certification by
licensees.--Within 30 days after the date of
the enactment of the Community Broadcasters
Protection Act of 1999, the Commission shall
send a notice to the licensees of all low-power
televisions licenses that describes the
requirements for class A designation. Within 60
days after such date of enactment, licensees
intending to seek class A designation shall
submit to the Commission a certification of
eligibility based on the qualification
requirements of this subsection. Absent a
material deficiency, the Commission shall grant
certification of eligibility to apply for class
A status.
(C) Application for and award of licenses.--
Consistent with the requirements set forth in
paragraph (2)(A) of this subsection, a licensee
may submit an application for class A
designation under this paragraph within 30 days
after final regulations are adopted under
subparagraph (A) of this paragraph. Except as
provided in paragraphs (6) and (7), the
Commission shall, within 30 days after receipt
of an application of a licensee of a qualifying
low-power television station that is acceptable
for filing, award such a class A television
station license to such licensee.
(D) Resolution of technical problems.--The
Commission shall act to preserve the service
areas of low-power television licensees pending
the final resolution of a class A application.
If, after granting certification of eligibility
for a class A license, technical problems arise
requiring an engineering solution to a full-
power station's allotted parameters or channel
assignment in the digital television Table of
Allotments, the Commission shall make such
modifications as necessary--
(i) to ensure replication of the
full-power digital television
applicant's service area, as provided
for in sections 73.622 and 73.623 of
the Commission's regulations (47 CFR
73.622, 73.623); and
(ii) to permit maximization of a
full-power digital television
applicant's service area consistent
with such sections 73.622 and 73.623,
if such applicant has filed an application for
maximization or a notice of its intent to seek
such maximization by December 31, 1999, and
filed a bona fide application for maximization
by May 1, 2000. Any such applicant shall comply
with all applicable Commission rules regarding
the construction of digital television
facilities.
(E) Change applications.--If a station that
is awarded a construction permit to maximize or
significantly enhance its digital television
service area, later files a change application
to reduce its digital television service area,
the protected contour of that station shall be
reduced in accordance with such change
modification.
(2) Qualifying low-power television stations.--For
purposes of this subsection, a station is a qualifying
low-power television station if--
(A)(i) during the 90 days preceding the date
of the enactment of the Community Broadcasters
Protection Act of 1999--
(I) such station broadcast a minimum
of 18 hours per day;
(II) such station broadcast an
average of at least 3 hours per week of
programming that was produced within
the market area served by such station,
or the market area served by a group of
commonly controlled low-power stations
that carry common local programming
produced within the market area served
by such group; and
(III) such station was in compliance
with the Commission's requirements
applicable to low-power television
stations; and
(ii) from and after the date of its
application for a class A license, the station
is in compliance with the Commission's
operating rules for full-power television
stations; or
(B) the Commission determines that the public
interest, convenience, and necessity would be
served by treating the station as a qualifying
low-power television station for purposes of
this section, or for other reasons determined
by the Commission.
(3) Common ownership.--No low-power television
station authorized as of the date of the enactment of
the Community Broadcasters Protection Act of 1999 shall
be disqualified for a class A license based on common
ownership with any other medium of mass communication.
(4) Issuance of licenses for advanced television
services to television translator stations and
qualifying low-power television stations.--The
Commission is not required to issue any additional
license for advanced television services to the
licensee of a class A television station under this
subsection, or to any licensee of any television
translator station, but shall accept a license
application for such services proposing facilities that
will not cause interference to the service area of any
other broadcast facility applied for, protected,
permitted, or authorized on the date of filing of the
advanced television application. Such new license or
the original license of the applicant shall be
forfeited after the end of the digital television
service transition period, as determined by the
Commission. A licensee of a low-power television
station or television translator station may, at the
option of licensee, elect to convert to the provision
of advanced television services on its analog channel,
but shall not be required to convert to digital
operation until the end of such transition period.
(5) No preemption of section 337.--Nothing in this
subsection preempts or otherwise affects section 337 of
this Act.
(6) Interim qualification.--
(A) Stations operating within certain
bandwidth.--The Commission may not grant a
class A license to a low-power television
station for operation between 698 and 806
megahertz, but the Commission shall provide to
low-power television stations assigned to and
temporarily operating in that bandwidth the
opportunity to meet the qualification
requirements for a class A license. If such a
qualified applicant for a class A license is
assigned a channel within the core spectrum (as
such term is defined in MM Docket No. 87-286,
February 17, 1998), the Commission shall issue
a class A license simultaneously with the
assignment of such channel.
(B) Certain channels off-limits.--The
Commission may not grant under this subsection
a class A license to a low-power television
station operating on a channel within the core
spectrum that includes any of the 175
additional channels referenced in paragraph 45
of its February 23, 1998, Memorandum Opinion
and Order on Reconsideration of the Sixth
Report and Order (MM Docket No. 87-268). Within
18 months after the date of the enactment of
the Community Broadcasters Protection Act of
1999, the Commission shall identify by channel,
location, and applicable technical parameters
those 175 channels.
(7) No interference requirement.--The Commission may
not grant a class A license, nor approve a modification
of a class A license, unless the applicant or licensee
shows that the class A station for which the license or
modification is sought will not cause--
(A) interference within--
(i) the predicted Grade B contour (as
of the date of the enactment of the
Community Broadcasters Protection Act
of 1999, or November 1, 1999, whichever
is later, or as proposed in a change
application filed on or before such
date) of any television station
transmitting in analog format; or
(ii)(I) the digital television
service areas provided in the DTV Table
of Allotments; (II) the areas protected
in the Commission's digital television
regulations (47 CFR 73.622(e) and (f));
(III) the digital television service
areas of stations subsequently granted
by the Commission prior to the filing
of a class A application; and (IV)
stations seeking to maximize power
under the Commission's rules, if such
station has complied with the
notification requirements in paragraph
(1)(D);
(B) interference within the protected contour
of any low-power television station or low-
power television translator station that--
(i) was licensed prior to the date on
which the application for a class A
license, or for the modification of
such a license, was filed;
(ii) was authorized by construction
permit prior to such date; or
(iii) had a pending application that
was submitted prior to such date; or
(C) interference within the protected contour
of 80 miles from the geographic center of the
areas listed in section 22.625(b)(1) or 90.303
of the Commission's regulations (47 CFR
22.625(b)(1) and 90.303) for frequencies in--
(i) the 470-512 megahertz band
identified in section 22.621 or 90.303
of such regulations; or
(ii) the 482-488 megahertz band in
New York.
(8) Priority for displaced low-power stations.--Low-
power stations that are displaced by an application
filed under this section shall have priority over other
low-power stations in the assignment of available
channels.
(g) Evaluation.--Within 10 years after the date the
Commission first issues additional licenses for advanced
television services, the Commission shall conduct an evaluation
of the advanced television services program. Such evaluation
shall include--
(1) an assessment of the willingness of consumers to
purchase the television receivers necessary to receive
broadcasts of advanced television services;
(2) an assessment of alternative uses, including
public safety use, of the frequencies used for such
broadcasts; and
(3) the extent to which the Commission has been or
will be able to reduce the amount of spectrum assigned
to licensees.
(h) Provision of Digital Service by Low-Power Television
Stations.--
(1) Within 60 days after receiving a request (made in
such form and manner and containing such information as
the Commission may require) under this subsection from
a low-power television station to which this subsection
applies, the Commission shall authorize the licensee or
permittee of that station to provide digital data
service subject to the requirements of this subsection
as a pilot project to demonstrate the feasibility of
using low-power television stations to provide high-
speed wireless digital data service, including Internet
access to unserved areas.
(2) The low-power television stations to which this
subsection applies are as follows:
(A) KHLM LP, Houston, Texas.
(B) WTAM LP, Tampa, Florida.
(C) WWRJ LP, Jacksonville, Florida.
(D) WVBG LP, Albany, New York.
(E) KHHI LP, Honolulu, Hawaii.
(F) KPHE LP (K19DD), Phoenix, Arizona.
(G) K34FI, Bozeman, Montana.
(H) K65GZ, Bozeman, Montana.
(I) WXOB LP, Richmond, Virginia.
(J) WIIW LP, Nashville, Tennessee.
(K) A station and repeaters to be determined
by the Federal Communications Commission for
the sole purpose of providing service to
communities in the Kenai Peninsula Borough and
Matanuska Susitna Borough.
(L) WSPY LP, Plano, Illinois.
(M) W24AJ, Aurora, Illinois.
(3) Notwithstanding any requirement of section 553 of
title 5, United States Code, the Commission shall
promulgate regulations establishing the procedures,
consistent with the requirements of paragraphs (4) and
(5), governing the pilot projects for the provision of
digital data services by certain low power television
licensees within 120 days after the date of enactment
of LPTV Digital Data Services Act. The regulations
shall set forth--
(A) requirements as to the form, manner, and
information required for submitting requests to
the Commission to provide digital data service
as a pilot project;
(B) procedures for testing interference to
digital television receivers caused by any
pilot project station or remote transmitter;
(C) procedures for terminating any pilot
project station or remote transmitter or both
that causes interference to any analog or
digital full-power television stations, class A
television station, television translators or
any other users of the core television band;
(D) specifications for reports to be filed
quarterly by each low power television licensee
participating in a pilot project;
(E) procedures by which a low power
television licensee participating in a pilot
project shall notify television broadcast
stations in the same market upon commencement
of digital data services and for ongoing
coordination with local broadcasters during the
test period; and
(F) procedures for the receipt and review of
interference complaints on an expedited basis
consistent with paragraph (5)(D).
(4) A low-power television station to which this
subsection applies may not provide digital data service
unless--
(A) the provision of that service, including
any remote return-path transmission in the case
of 2-way digital data service, does not cause
any interference in violation of the
Commission's existing rules, regarding
interference caused by low power television
stations to full-service analog or digital
television stations, class A television
stations, or television translator stations;
and
(B) the station complies with the
Commission's regulations governing safety,
environmental, and sound engineering practices,
and any other Commission regulation under
paragraph (3) governing pilot program
operations.
(5)(A) The Commission may limit the provision of
digital data service by a low-power television station
to which this subsection applies if the Commission
finds that--
(i) the provision of 2-way digital
data service by that station causes any
interference that cannot otherwise be
remedied; or
(ii) the provision of 1-way digital
data service by that station causes any
interference.
(B) The Commission shall grant any such
station, upon application (made in such form
and manner and containing such information as
the Commission may require) by the licensee or
permittee of that station, authority to move
the station to another location, to modify its
facilities to operate on a different channel,
or to use booster or auxiliary transmitting
locations, if the grant of authority will not
cause interference to the allowable or
protected service areas of full service digital
television stations, National Television
Standards Committee assignments, or television
translator stations, and provided, however, no
such authority shall be granted unless it is
consistent with existing Commission regulations
relating to the movement, modification, and use
of non-class A low power television
transmission facilities in order--
(i) to operate within television
channels 2 through 51, inclusive; or
(ii) to demonstrate the utility of
low-power television stations to
provide high-speed 2-way wireless
digital data service.
(C) The Commission shall require quarterly
reports from each station authorized to provide
digital data services under this subsection
that include--
(i) information on the station's
experience with interference complaints
and the resolution thereof;
(ii) information on the station's
market success in providing digital
data service; and
(iii) such other information as the
Commission may require in order to
administer this subsection.
(D) The Commission shall resolve any
complaints of interference with television
reception caused by any station providing
digital data service authorized under this
subsection within 60 days after the complaint
is received by the Commission.
(6) The Commission shall assess and collect from any
low-power television station authorized to provide
digital data service under this subsection an annual
fee or other schedule or method of payment comparable
to any fee imposed under the authority of this Act on
providers of similar services. Amounts received by the
Commission under this paragraph may be retained by the
Commission as an offsetting collection to the extent
necessary to cover the costs of developing and
implementing the pilot program authorized by this
subsection, and regulating and supervising the
provision of digital data service by low-power
television stations under this subsection. Amounts
received by the Commission under this paragraph in
excess of any amount retained under the preceding
sentence shall be deposited in the Treasury in
accordance with chapter 33 of title 31, United States
Code.
(7) In this subsection, the term ``digital data
service'' includes--
(A) digitally-based interactive broadcast
service; and
(B) wireless Internet access, without regard
to--
(i) whether such access is--
(I) provided on a one-way or
a two-way basis;
(II) portable or fixed; or
(III) connected to the
Internet via a band allocated
to Interactive Video and Data
Service; and
(ii) the technology employed in
delivering such service, including the
delivery of such service via multiple
transmitters at multiple locations.
(8) Nothing in this subsection limits the authority
of the Commission under any other provision of law.
(i) Definitions.--As used in this section:
(1) Advanced television services.--The term
``advanced television services'' means television
services provided using digital or other advanced
technology as further defined in the opinion, report,
and order of the Commission entitled ``Advanced
Television Systems and Their Impact Upon the Existing
Television Broadcast Service'', MM Docket 87-268,
adopted September 17, 1992, and successor proceedings.
(2) Designated frequencies.--The term ``designated
frequency'' means each of the frequencies designated by
the Commission for licenses for advanced television
services.
(3) High definition television.--The term ``high
definition television'' refers to systems that offer
approximately twice the vertical and horizontal
resolution of receivers generally available on the date
of enactment of the Telecommunications Act of 1996, as
further defined in the proceedings described in
paragraph (1) of this subsection.
SEC. 338. CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.
[47 U.S.C. 338]
(a) Carriage Obligations.--
(1) In general.--Each satellite carrier providing,
under section 122 of title 17, United States Code,
secondary transmissions to subscribers located within
the local market of a television broadcast station of a
primary transmission made by that station shall carry
upon request the signals of all television broadcast
stations located within that local market, subject to
section 325(b).
(2) Remedies for failure to carry.--In addition to
the remedies available to television broadcast stations
under section 501(f) of title 17, United States Code,
the Commission may use the Commission's authority under
this Act to assure compliance with the obligations of
this subsection, but in no instance shall a Commission
enforcement proceeding be required as a predicate to
the pursuit of a remedy available under such section
501(f).
(3) Low power station carriage optional.--No low
power television station whose signals are provided
under section 119(a)(14) 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 section 122 of such title, nor shall
any such carriage be considered in connection with the
requirements of subsection (c) of this section.
(3) Effective date.--No satellite carrier shall be
required to carry local television broadcast stations
under paragraph (1) until January 1, 2002.
(4) Carriage of signals of local stations in certain
markets.--A satellite carrier that offers multichannel
video programming distribution service in the United
States to more than 5,000,000 subscribers shall (A)
within 1 year after the date of the enactment of the
Satellite Home Viewer Extension and Reauthorization Act
of 2004, retransmit the signals originating as analog
signals of each television broadcast station located in
any local market within a State that is not part of the
contiguous United States, and (B) within 30 months
after such date of enactment retransmit the signals
originating as digital signals of each such station.
The retransmissions of such stations shall be made
available to substantially all of the satellite
carrier's subscribers in each station's local market,
and the retransmissions of the stations in at least one
market in the State shall be made available to
substantially all of the satellite carrier's
subscribers in areas of the State that are not within a
designated market area. The cost to subscribers of such
retransmissions shall not exceed the cost of
retransmissions of local television stations in other
States. Within 1 year after the date of enactment of
that Act, the Commission shall promulgate regulations
concerning elections by television stations in such
State between mandatory carriage pursuant to this
section and retransmission consent pursuant to section
325(b), which shall take into account the schedule on
which local television stations are made available to
viewers in such State.
(b) Good Signal Required.--
(1) Costs.--A television broadcast station asserting
its right to carriage under subsection (a) shall be
required to bear the costs associated with delivering a
good quality signal to the designated local receive
facility of the satellite carrier or to another
facility that is acceptable to at least one-half the
stations asserting the right to carriage in the local
market.
(2) Regulations.--The regulations issued under
subsection (g) shall set forth the obligations
necessary to carry out this subsection.
(c) Duplication not Required.--
(1) Commercial stations.--Notwithstanding subsection
(a)(1), a satellite carrier shall not be required to
carry upon request the signal of any local commercial
television broadcast station that substantially
duplicates the signal of another local commercial
television broadcast station which is secondarily
transmitted by the satellite carrier within the same
local market, or to carry upon request the signals of
more than one local commercial television broadcast
station in a single local market that is affiliated
with a particular television network unless such
stations are licensed to communities in different
States.
(2) Noncommercial stations.--The Commission shall
prescribe regulations limiting the carriage
requirements under subsection (a) of satellite carriers
with respect to the carriage of multiple local
noncommercial television broadcast stations. To the
extent possible, such regulations shall provide the
same degree of carriage by satellite carriers of such
multiple stations as is provided by cable systems under
section 615.
(d) Channel Positioning.--No satellite carrier shall be
required to provide the signal of a local television broadcast
station to subscribers in that station's local market on any
particular channel number or to provide the signals in any
particular order, except that the satellite carrier shall
retransmit the signal of the local television broadcast
stations to subscribers in the stations' local market on
contiguous channels and provide access to such station's
signals at a nondiscriminatory price and in a nondiscriminatory
manner on any navigational device, on-screen program guide, or
menu.
(e) Compensation for Carriage.--A satellite carrier shall not
accept or request monetary payment or other valuable
consideration in exchange either for carriage of local
television broadcast stations in fulfillment of the
requirements of this section or for channel positioning rights
provided to such stations under this section, except that any
such station may be required to bear the costs associated with
delivering a good quality signal to the local receive facility
of the satellite carrier.
(f) Remedies.--
(1) Complaints by broadcast stations.--Whenever a
local television broadcast station believes that a
satellite carrier has failed to meet its obligations
under subsections (b) through (e) of this section, such
station shall notify the carrier, in writing, of the
alleged failure and identify its reasons for believing
that the satellite carrier failed to comply with such
obligations. The satellite carrier shall, within 30
days after such written notification, respond in
writing to such notification and comply with such
obligations or state its reasons for believing that it
is in compliance with such obligations. A local
television broadcast station that disputes a response
by a satellite carrier that it is in compliance with
such obligations may obtain review of such denial or
response by filing a complaint with the Commission.
Such complaint shall allege the manner in which such
satellite carrier has failed to meet its obligations
and the basis for such allegations.
(2) Opportunity to respond.--The Commission shall
afford the satellite carrier against which a complaint
is filed under paragraph (1) an opportunity to present
data and arguments to establish that there has been no
failure to meet its obligations under this section.
(3) Remedial actions; dismissal.--Within 120 days
after the date a complaint is filed under paragraph
(1), the Commission shall determine whether the
satellite carrier has met its obligations under
subsections (b) through (e). If the Commission
determines that the satellite carrier has failed to
meet such obligations, the Commission shall order the
satellite carrier to take appropriate remedial action.
If the Commission determines that the satellite carrier
has fully met the requirements of such subsections, the
Commission shall dismiss the complaint.
(g) Carriage of Local Stations on a Single Dish.--
(1) Single dish.--Each satellite carrier that
retransmits the analog signals of local television
broadcast stations in a local market shall retransmit
such analog signals in such market by means of a single
reception antenna and associated equipment.
(2) Exception.--If the carrier retransmits signals in
the digital television service, the carrier shall
retransmit such digital signals in such market by means
of a single reception antenna and associated equipment,
but such antenna and associated equipment may be
separate from the single reception antenna and
associated equipment used for analog television service
signals.
(3) Effective date.--The requirements of paragraphs
(1) and (2) of this subsection shall apply on and after
18 months after the date of enactment of the Satellite
Home Viewer Extension and Reauthorization Act of 2004.
(4) Notice of disruptions.--A carrier that is
providing signals of a local television broadcast
station in a local market under this section on the
date of enactment of the Satellite Home Viewer
Extension and Reauthorization Act of 2004 shall, not
later than 15 months after such date of enactment,
provide to the licensees for such stations and the
carrier's subscribers in such local market a notice
that displays prominently and conspicuously a clear
statement of--
(A) any reallocation of signals between
different reception antennas and associated
equipment that the carrier intends to make in
order to comply with the requirements of this
subsection;
(B) the need, if any, for subscribers to
obtain an additional reception antenna and
associated equipment to receive such signals;
and
(C) any cessation of carriage or other
material change in the carriage of signals as a
consequence of the requirements of this
paragraph.
(h) Additional Notices to Subscribers, Networks, and Stations
Concerning Signal Carriage.--
(1) Notices to and elections by subscribers
concerning grandfathered signals.--Any carrier that
provides a distant signal of a network station to a
subscriber pursuant section 339(a)(2)(A) shall--
(A) within 60 days after the local signal of
a network station of the same television
network is available pursuant to section 338,
or within 60 days after the date of enactment
of the Satellite Home Viewer Extension and
Reauthorization Act of 2004, whichever is
later, send a notice to the subscriber--
(i) offering to substitute the local
network signal for the duplicating
distant network signal; and
(ii) informing the subscriber that,
if the subscriber fails to respond in
60 days, the subscriber will lose the
distant network signal but will be
permitted to subscribe to the local
network signal; and
(B) if the subscriber--
(i) elects to substitute such local
network signal within such 60 days,
switch such subscriber to such local
network signal within 10 days after the
end of such 60-day period; or
(ii) fails to respond within such 60
days, terminate the distant network
signal within 10 days after the end of
such 60-day period.
(2) Notice to station licensees of commencement of
local-into-local service.--
(A) Notice required.--Within 180 days after
the date of enactment of the Satellite Home
Viewer Extension and Reauthorization Act of
2004, the Commission shall revise the
regulations under this section relating to
notice to broadcast station licensees to comply
with the requirements of this paragraph.
(B) Contents of commencement notice.--The
notice required by such regulations shall
inform each television broadcast station
licensee within any local market in which a
satellite carrier proposes to commence carriage
of signals of stations from that market, not
later than 60 days prior to the commencement of
such carriage--
(i) of the carrier's intention to
launch local-into-local service under
this section in a local market, the
identity of that local market, and the
location of the carrier's proposed
local receive facility for that local
market;
(ii) of the right of such licensee to
elect carriage under this section or
grant retransmission consent under
section 325(b);
(iii) that such licensee has 30 days
from the date of the receipt of such
notice to make such election; and
(iv) that failure to make such
election will result in the loss of the
right to demand carriage under this
section for the remainder of the 3-year
cycle of carriage under section 325.
(C) Transmission of notices.--Such
regulations shall require that each satellite
carrier shall transmit the notices required by
such regulation via certified mail to the
address for such television station licensee
listed in the consolidated database system
maintained by the Commission.
(i) Privacy Rights of Satellite Subscribers.--
(1) Notice.--At the time of entering into an
agreement to provide any satellite service or other
service to a subscriber and at least once a year
thereafter, a satellite carrier shall provide notice in
the form of a separate, written statement to such
subscriber which clearly and conspicuously informs the
subscriber of--
(A) the nature of personally identifiable
information collected or to be collected with
respect to the subscriber and the nature of the
use of such information;
(B) the nature, frequency, and purpose of any
disclosure which may be made of such
information, including an identification of the
types of persons to whom the disclosure may be
made;
(C) the period during which such information
will be maintained by the satellite carrier;
(D) the times and place at which the
subscriber may have access to such information
in accordance with paragraph (5); and
(E) the limitations provided by this section
with respect to the collection and disclosure
of information by a satellite carrier and the
right of the subscriber under paragraphs (7)
and (9) to enforce such limitations.In the case
of subscribers who have entered into such an
agreement before the effective date of this
subsection, such notice shall be provided
within 180 days of such date and at least once
a year thereafter.
(2) Definitions.--For purposes of this subsection,
other than paragraph (9)--
(A) the term ``personally identifiable
information'' does not include any record of
aggregate data which does not identify
particular persons;
(B) the term ``other service'' includes any
wire or radio communications service provided
using any of the facilities of a satellite
carrier that are used in the provision of
satellite service; and
(C) the term ``satellite carrier'' includes,
in addition to persons within the definition of
satellite carrier, any person who--
(i) is owned or controlled by, or
under common ownership or control with,
a satellite carrier; and
(ii) provides any wire or radio
communications service.
(3) Prohibitions.--
(A) Consent to collection.--Except as
provided in subparagraph (B), a satellite
carrier shall not use any facilities used by
the satellite carrier to collect personally
identifiable information concerning any
subscriber without the prior written or
electronic consent of the subscriber concerned.
(B) Exceptions.--A satellite carrier may use
such facilities to collect such information in
order to--
(i) obtain information necessary to
render a satellite service or other
service provided by the satellite
carrier to the subscriber; or
(ii) detect unauthorized reception of
satellite communications.
(4) Disclosure.--
(A) Consent to disclosure.--Except as
provided in subparagraph (B), a satellite
carrier shall not disclose personally
identifiable information concerning any
subscriber without the prior written or
electronic consent of the subscriber concerned
and shall take such actions as are necessary to
prevent unauthorized access to such information
by a person other than the subscriber or
satellite carrier.
(B) Exceptions.--A satellite carrier may
disclose such information if the disclosure
is--
(i) necessary to render, or conduct a
legitimate business activity related
to, a satellite service or other
service provided by the satellite
carrier to the subscriber;
(ii) subject to paragraph (9), made
pursuant to a court order authorizing
such disclosure, if the subscriber is
notified of such order by the person to
whom the order is directed;
(iii) a disclosure of the names and
addresses of subscribers to any
satellite service or other service,
if--
(I) the satellite carrier has
provided the subscriber the
opportunity to prohibit or
limit such disclosure; and
(II) the disclosure does not
reveal, directly or indirectly,
the--
(aa) extent of any
viewing or other use by
the subscriber of a
satellite service or
other service provided
by the satellite
carrier; or
(bb) the nature of
any transaction made by
the subscriber over any
facilities used by the
satellite carrier; or
(iv) to a government entity as
authorized under chapter 119, 121, or
206 of title 18, United States Code,
except that such disclosure shall not
include records revealing satellite
subscriber selection of video
programming from a satellite carrier.
(5) Access by subscriber.--A satellite subscriber
shall be provided access to all personally identifiable
information regarding that subscriber which is
collected and maintained by a satellite carrier. Such
information shall be made available to the subscriber
at reasonable times and at a convenient place
designated by such satellite carrier. A satellite
subscriber shall be provided reasonable opportunity to
correct any error in such information.
(6) Destruction of information.--A satellite carrier
shall destroy personally identifiable information if
the information is no longer necessary for the purpose
for which it was collected and there are no pending
requests or orders for access to such information under
paragraph (5) or pursuant to a court order.
(7) Penalties.--Any person aggrieved by any act of a
satellite carrier in violation of this section may
bring a civil action in a United States district court.
The court may award--
(A) actual damages but not less than
liquidated damages computed at the rate of $100
a day for each day of violation or $1,000,
whichever is higher;
(B) punitive damages; and
(C) reasonable attorneys' fees and other
litigation costs reasonably incurred.The remedy
provided by this subsection shall be in
addition to any other lawful remedy available
to a satellite subscriber.
(8) Rule of construction.--Nothing in this title
shall be construed to prohibit any State from enacting
or enforcing laws consistent with this section for the
protection of subscriber privacy.
(9) Court orders.--Except as provided in paragraph
(4)(B)(iv), a governmental entity may obtain personally
identifiable information concerning a satellite
subscriber pursuant to a court order only if, in the
court proceeding relevant to such court order--
(A) such entity offers clear and convincing
evidence that the subject of the information is
reasonably suspected of engaging in criminal
activity and that the information sought would
be material evidence in the case; and
(B) the subject of the information is
afforded the opportunity to appear and contest
such entity's claim.
(j) Regulations by Commission.--Within 1 year after the date
of the enactment of this section, the Commission shall issue
regulations implementing this section following a rulemaking
proceeding. The regulations prescribed under this section shall
include requirements on satellite carriers that are comparable
to the requirements on cable operators under sections 614(b)(3)
and (4) and 615(g)(1) and (2).
(k) Definitions.--As used in this section:
(1) Distributor.--The term ``distributor'' means an
entity which contracts to distribute secondary
transmissions from a satellite carrier and, either as a
single channel or in a package with other programming,
provides the secondary transmission either directly to
individual subscribers or indirectly through other
program distribution entities.
(2) Local receive facility.--The term ``local receive
facility'' means the reception point in each local
market which a satellite carrier designates for
delivery of the signal of the station for purposes of
retransmission.
(3) Local market.--The term ``local market'' has the
meaning given that term under section 122(j) of title
17, United States Code.
(4) Low power television station.--The term ``low
power television station'' means a low power television
station 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.
(5) Satellite carrier.--The term ``satellite
carrier'' has the meaning given such term under section
119(d) of title 17, United States Code.
(6) Secondary transmission.--The term ``secondary
transmission'' has the meaning given such term in
section 119(d) of title 17, United States Code.
(7) Subscriber.--The term ``subscriber'' has the
meaning given that term under section 122(j) of title
17, United States Code.
(8) Television broadcast station.--The term
``television broadcast station'' has the meaning given
such term in section 325(b)(7).
(l) Specific Carriage Obligations After Digital Transition.--
(1) Digital video signal.--With respect to any
television broadcast station that is transmitting
broadcast programming exclusively in the digital
television service in a local market in the United
States, a satellite carrier carrying the digital signal
of any other television broadcast station in that local
market shall carry the station's primary video required
to be carried and program-related material without
material degradation, if the licensee for that station
relies on this section to obtain carriage of the
station's video signal and program-related material on
that satellite carrier's system in that market.
(2) Formatting of primary video.--A satellite carrier
shall offer the primary video and program-related
material of a local television station described in
paragraph (1) in the digital format transmitted by the
station if the satellite carrier carries the primary
video of any other television broadcast station in that
local market in the same digital format.
(3) Multiple formats permitted.--A satellite carrier
may offer the primary video and program-related
material of a local television broadcast station
described in paragraph (1) in any analog or digital
format or formats, whether or not doing so requires
conversion from the format transmitted by the local
television broadcast station, so long as--
(A) the satellite carrier offers the primary
video and program-related material in the
converted analog or digital format or formats
without material degradation; and
(B) also offers the primary video and
program-related material in the manner or
manners required by this paragraph.
(4) Transitional conversions.--Notwithstanding any
requirement in paragraph (1) or (2) to carry the
primary video and program-related material in the
digital format transmitted by the local television
station, but subject to the prohibition on material
degradation, until February 17, 2014, a satellite
carrier--
(A) shall offer the primary video and
program-related material of any local
television broadcast station required to be
carried under paragraph (1) in the format or
formats necessary for such primary video and
program-related material to be viewable on
analog and digital televisions; and
(B) may convert the primary video and
program-related material to standard-definition
digital format in lieu of offering it in the
digital format transmitted by the local
television station.
(5) Location and method of conversion.--A satellite
carrier may perform any conversion permitted or
required by this paragraph at any location, from the
local receive facility to the customer premises,
inclusive.
(6) Conversions not treated as degradation.--Any
conversion permitted or required by this paragraph
shall not, by itself, be treated as a material
degradation.
(7) Carriage of program-related material.--The
obligation to carry program-related material under this
paragraph is effective only to the extent technically
feasible.
(8) Definition of standard-definition format.--For
purposes of this subsection, the primary video shall be
in standard definition digital format if such primary
video meets the criteria for such format specified in
the standard recognized by the Commission in section
73.682 of its rules (47 C.F.R. 73.682) or a successor
regulation.
(9) Material degradation.--For purposes of this
subsection, transmission of a digital signal over a
satellite system in a compressed bitstream shall not be
considered material degradation as long as such
compression does not materially affect the picture
quality the consumer receives.
* * * * * * *
SEC. 342. PROTECTION OF DIGITAL AUDIO BROADCASTING CONTENT.
(a) In General.--Subject to section 454(d)(2) of the Digital
Content Protection Act of 2006, the Commission may promulgate
regulations governing the distribution of audio content with
respect to--
(1) digital radio broadcasts;
(2) satellite digital radio transmissions; and
(3) digital radios.
(b) Monitoring Organizations.--
(1) In general.--The Commission shall ensure that a
performing rights society or a mechanical rights
organization, or any entity acting on behalf of such a
society or organization, is granted a license for free
or for a de minimis fee to cover only the reasonable
costs to the licensor of providing the license, and on
reasonable, nondiscriminatory terms and conditions, to
access and retransmit as necessary any content
contained in such transmissions protected by content
protection or similar technologies, if--
(A) the license is used to carry out the
activities of such society, organization, or
entity in monitoring the public performance or
other uses of copyrighted works; and
(B) such society, organization, or entity
employs reasonable methods to protect any such
content accessed from further distribution.
(2) Protected activities.--Nothing shall preclude or
prevent a performing rights organization, a mechanical
rights organization, a monitoring service, a measuring
service, or any entity owned in whole or in part by, or
acting on behalf of, such an organization or service,
from monitoring or measuring public performances or
other uses of copyrighted works, advertisements, or
announcements contained in performances or other uses,
or other information concerning the content or audience
of such performances or other uses.
(3) Alternative licensing language.--The Commission
may require that any such organization, service, or
entity be given a license on either a gratuitous basis
or for a de minimis fee to cover only the reasonable
costs to the licensor of providing the license, and on
reasonable, nondiscriminatory terms, to access, record,
and retransmit as necessary any content contained in
any such performance or use protected by content
protection or similar technology, if--
(A) the license is used for carrying out the
activities of such organizations, services, or
entities in monitoring or measuring the public
performance or other use of copyrighted works,
advertisements, or announcements, or other
information concerning the content or audience
of such performances or uses; and
(B) the organizations, services, or entities
employ reasonable methods to protect any such
content accessed from further distribution.
SEC. 343. ELIGIBLE BROADCAST TELEVISION SPECTRUM MADE AVAILABLE FOR
WIRELESS USE.
(a) In General.--Effective 270 days after the date of
enactment of the WIN Act of 2006, a certified unlicensed device
may use eligible broadcast television frequencies in a manner
that protects licensees from harmful interference.
(b) Commission To Facilitate Use.--Within 270 days after the
date of enactment of that Act, the Commission shall adopt
technical and device rules in ET Docket No. 04-186 to
facilitate the efficient use of eligible broadcast television
frequencies by certified unlicensed devices, which shall
include rules and procedures--
(1) to protect licensees from harmful interference
from certified unlicensed devices;
(2) to require certification of unlicensed devices
designed to be operated in the eligible broadcast
television frequencies that includes testing, which may
include testing in an independent laboratory certified
by the Commission and field testing, that
demonstrates--
(A) compliance with the requirements set
forth pursuant to this paragraph; and
(B) that such compliance effectively protects
licensees from harmful interference;
(3) to require manufacturers of such devices to
include a means of disabling or modifying the device
remotely if the Commission determines that certain
certified unlicensed devices may cause harmful
interference to licensees;
(4) to act immediately on any bona fide complaints
from licensees that a certified unlicensed device
causes harmful interference including verification, in
the field, of actual harmful interference; and
(5) to limit the operation or use of certified
unlicensed devices within any geographic area in which
a public safety entity is authorized to operate as a
primary licensee within the eligible broadcast
television frequencies.
(c) Definitions.--In this section:
(1) Certified unlicensed device.--The term
``certified unlicensed device'' means a device
certified under subsection (b)(2).
(2) Eligible broadcast television frequencies.--The
term ``eligible broadcast television frequencies''
means the following frequencies:
(A) All frequencies between 54 and 72
megaHertz, inclusive.
(B) All frequencies between 76 and 88
megaHertz, inclusive.
(C) All frequencies between 174 and 216
megaHertz, inclusive.
(D) All frequencies between 470 and 608
megaHertz, inclusive.
(E) All frequencies between 614 and 698
megaHertz, inclusive.
(3) Licensee.--The term ``licensee'' means a
licensee, as defined in section 3(24), that is
operating in a manner that is not inconsistent with its
license.
SEC. 344. RADIO SPECTRUM REVIEW.
(a) In General.--Not later than 5 years after the date of
enactment of the Rural Wireless and Broadband Service Act of
2006, and every 5 years thereafter, the Federal Communications
Commission and the National Telecommunications and Information
Administration shall--
(1) conduct a band-by-band analysis of the spectrum
managed by each such agency; and
(2) report to the Congress any such bands identified,
in the determination of each such agency, as not being
utilized in an effective or efficient manner.
(b) Agency Authority.--
(1) Collection of information.--In conducting the
analysis required under subsection (a)(1), the Federal
Communications Commission and the National
Telecommunications and Information Administration may
require licensees and other spectrum users to provide
information regarding spectrum usage.
(2) Exemption from paperwork reduction act.--The
collection of any information required under paragraph
(1) shall be exempt from the provisions of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
* * * * * * *
TITLE V--PENAL PROVISIONS; FORFEITURES
SEC. 503. FORFEITURES.
[47 U.S.C. 503]
(a) Rebates and Offsets.--Any person who shall deliver
messages for interstate or foreign transmission to any carrier,
or for whom as sender or receiver, any such carrier shall
transmit any interstate or foreign wire or radio communication,
who shall knowingly by employee, agent, officer, or otherwise,
directly or indirectly, by or through any means or device
whatsoever, receive or accept from such common carrier any sum
of money or any other valuable consideration as a rebate or
offset against the regular charges for transmission of such
messages as fixed by the schedules of charges provided for in
this Act, shall in addition to any other penalty provided by
this Act forfeit to the United States a sum of money three
times the value of any other consideration so received or
accepted, to be ascertained by the trial court; and in the
trial of said action all such rebates or other considerations
so received or accepted for a period of six years prior to the
commencement of the action, may be included therein, and the
amount recovered shall be three times the total amount of
money, or three times the total value of such consideration, so
received or accepted, or both, as the case may be.
(b) Activities Constituting Violations Authorizing Imposition
of Forfeiture Penalty; Amount of Penalty; Procedures
Applicable; Persons Subject to Penalty; Liability Exemption
Period.--
(1) Any person who is determined by the Commission,
in accordance with paragraph (3) or (4) of this
subsection, to have--
(A) willfully or repeatedly failed to comply
substantially with the terms and conditions of
any license, permit, certificate, or other
instrument or authorization issued by the
Commission;
(B) willfully or repeatedly failed to comply
with any of the provisions of this Act or of
any rule, regulation, or order issued by the
Commission under this Act or under any treaty,
convention, or other agreement to which the
United States is a party and which is binding
upon the United States;
(C) violated any provision of section 317(c)
or 508(a) of this Act; or
(D) violated any provision of section 1304,
1343, or 1464 of title 18, United States
Code;shall be liable to the United States for a
forfeiture penalty. A forfeiture penalty under
this subsection shall be in addition to any
other penalty provided for by this Act; except
that this subsection shall not apply to any
conduct which is subject to forfeiture under
title II, part II or III of title III, or
section 506 of this Act.
(2)(A) If the violator is (i) a broadcast station
licensee or permittee, (ii) a cable television
operator, or (iii) an applicant for any broadcast or
cable television operator license, permit, certificate,
or other instrument or authorization issued by the
Commission, the amount of any forfeiture penalty
determined under this section shall not exceed $25,000
for each violation or each day of a continuing
violation, except that the amount assessed for any
continuing violation shall not exceed a total of
$250,000 for any single act or failure to act described
in paragraph (1) of this subsection.
(B) If the violator is a common carrier
subject to the provisions of this Act or an
applicant for any common carrier license,
permit, certificate, or other instrument of
authorization issued by the Commission, the
amount of any forfeiture penalty determined
under this subsection shall not exceed
[$100,000] $1,000,000 for each violation or
each day of a continuing violation, except that
the amount assessed for any continuing
violation shall not exceed a total of
[$1,000,000] $10,000,000 for any single act or
failure to act described in paragraph (1) of
this subsection.
(C) Notwithstanding subparagraph (A), if the
violator is--
(i) (I) a broadcast station licensee
or permittee; or
(II) an applicant for any
broadcast license, permit,
certificate, or other
instrument or authorization
issued by the Commission; and
(ii) determined by the Commission
under paragraph (1) to have broadcast
obscene, indecent, or profane language,
the amount of any forfeiture penalty
determined under this subsection shall
not exceed $325,000 for each violation
or each day of a continuing violation,
except that the amount assessed for any
continuing violation shall not exceed a
total of $3,000,000 for any single act
or failure to act.
(D) In any case not covered in subparagraph
(A), (B), or (C), the amount of any forfeiture
penalty determined under this subsection shall
not exceed $10,000 for each violation or each
day of a continuing violation, except that the
amount assessed for any continuing violation
shall not exceed a total of $75,000 for any
single act or failure to act described in
paragraph (1) of this subsection.
(E) The amount of such forfeiture penalty
shall be assessed by the Commission, or its
designee, by written notice. In determining the
amount of such a forfeiture penalty, the
Commission or its designee shall take into
account the nature, circumstances, extent, and
gravity of the violation and, with respect to
the violator, the degree of culpability, any
history of prior offenses, ability to pay, and
such other matters as justice may require.
(3)(A) At the discretion of the Commission, a
forfeiture penalty may be determined against a person
under this subsection after notice and an opportunity
for a hearing before the Commission or an
administrative law judge thereof in accordance with
section 554 of title 5, United States Code. Any person
against whom a forfeiture penalty is determined under
this paragraph may obtain review thereof pursuant to
section 402(a).
(B) If any person fails to pay an assessment
of a forfeiture penalty determined under
subparagraph (A) of this paragraph, after it
has become a final and unappealable order or
after the appropriate court has entered final
judgment in favor of the Commission, the
Commission shall refer the matter to the
Attorney General of the United States, who
shall recover the amount assessed in any
appropriate district court of the United
States. In such action, the validity and
appropriateness of the final order imposing the
forfeiture penalty shall not be subject to
review.
(4) Except as provided in paragraph (3) of this
subsection, no forfeiture penalty shall be imposed
under this subsection against any person unless and
until--
(A) the Commission issues a notice of
apparent liability, in writing, with respect to
such person;
(B) such notice has been received by such
person, or until the Commission has sent such
notice to the last known address of such
person, by registered or certified mail; and
(C) such person is granted an opportunity to
show, in writing, within such reasonable period
of time as the Commission prescribes by rule or
regulation, why no such forfeiture penalty
should be imposed.
Such a notice shall (i) identify each specific
provision, term, and condition of any Act, rule,
regulation, order, treaty, convention, or other
agreement, license, permit, certificate, instrument, or
authorization which such person apparently violated or
with which such person apparently failed to comply;
(ii) set forth the nature of the act or omission
charged against such person and the facts upon which
such charge is based; and (iii) state the date on which
such conduct occurred. Any forfeiture penalty
determined under this paragraph shall be recoverable
pursuant to section 504(a) of this Act.
(5) No forfeiture liability shall be determined under
this subsection against any person, if such person does
not hold a license, permit, certificate, or other
authorization issued by the Commission, and if such
person is not an applicant for a license, permit,
certificate, or other authorization issued by the
Commission, unless, prior to the notice required by
paragraph (3) of this subsection or the notice of
apparent liability required by paragraph (4) of this
subsection, such person (A) is sent a citation of the
violation charged; (B) is given a reasonable
opportunity for a personal interview with an official
of the Commission, at the field office of the
Commission which is nearest to such person's place of
residence; and (C) subsequently engages in conduct of
the type described in such citation. The provisions of
this paragraph shall not apply, however, if the person
involved is engaging in activities for which a license,
permit, certificate, or other authorization is
required, or is a cable television system operator, if
the person involved is transmitting on frequencies
assigned for use in a service in which individual
station operation is authorized by rule pursuant to
section 307(e), or in the case of violations of section
303(q), if the person involved is a nonlicensee tower
owner who has previously received notice of the
obligations imposed by section 303(q) from the
Commission or the permittee or licensee who uses that
tower. Whenever the requirements of this paragraph are
satisfied with respect to a particular person, such
person shall not be entitled to receive any additional
citation of the violation charged, with respect to any
conduct of the type described in the citation sent
under this paragraph.
(6) No forfeiture penalty shall be determined or
imposed against any person under this subsection if--
(A) such person holds a broadcast station
license issued under title III of this Act and
if the violation charged occurred--
(i) more than 1 year prior to the
date of issuance of the required notice
or notice of apparent liability; or
(ii) prior to the date of
commencement of the current term of
such license,whichever is earlier; [or]
(B) such person is a common carrier subject to the
provisions of this Act or an applicant for any common
carrier license, permit, certificate, or other
instrument of authorization issued by the Commission
and if the violation charged occurred more than 3 years
prior to the date of issuance of the required notice or
notice of apparent liability; or
[(B)] (C) such person does not hold a
broadcast station license issued under title
III of this Act and if the violation charged
occurred more than 1 year prior to the date of
issuance of the required notice or notice of
apparent liability.
For purposes of this paragraph, ``date of commencement
of the current term of such license'' means the date of
commencement of the last term of license for which the
licensee has been granted a license by the Commission.
A separate license term shall not be deemed to have
commenced as a result of continuing a license in effect
under section 307(c) pending decision on an application
for renewal of the license.
(7) Application to video service providers.--In this section
the terms ``cable television operator'' and ``cable television
system operator'' include a video service provider (as defined
in section 602 of this Act).
(8) Independent network affiliates.--
(A) In general.--No forfeiture penalty shall
be determined or imposed under paragraph (2) of
this subsection against an independent network
affiliate for a violation of any section of
title 18, United States Code, referred to in
paragraph (1)(D) with respect to network-
originated programming--
(i) that the affiliate has not been
afforded the reasonable opportunity to
preview prior to its scheduled air
time; or
(ii) for which the network has failed
to advise the affiliate prior to the
scheduled air time that the programming
contains content that could be in
violation of any such section.
(B) Independent network affiliate defined.--
In this paragraph, the term ``independent
network affiliate'' means a television
broadcast station licensee that is neither
owned nor controlled by a television network
(as defined in section 340(d)(5) of this Act.
TITLE VI--[CABLE COMMUNICATIONS] VIDEO SERVICES
PART I--GENERAL PROVISIONS
SEC. 601. PURPOSES.
[47 U.S.C. 521]
The purposes of this title are to--
(1) establish a national policy concerning [cable]
video service communications;
(2) establish franchise procedures and standards
which encourage the growth and development of [cable]
video service systems and which assure that [cable]
video service systems are responsive to the needs and
interests of the local community;
(3) establish guidelines for the exercise of Federal,
State, and local authority with respect to the
regulation of [cable] video service systems;
(4) assure that [cable] video service communications
provide and are encouraged to provide the widest
possible diversity of information sources and services
to the public;
(5) establish an orderly process for franchise
renewal which protects [cable operators] video service
providers against unfair denials of renewal where the
[operator's] provider's past performance and proposal
for future performance meet the standards established
by this title; and
(6) promote competition in [cable] video service
communications and minimize unnecessary regulation that
would impose an undue economic burden on [cable] video
service systems.
SEC. 602. DEFINITIONS.
[47 U.S.C. 522]
For purposes of this [title--] title:
(1) Activated channels._[the] The term ``activated
channels'' means those channels engineered at the
headend of a [cable system] video service system for
the provision of services generally available to
residential subscribers of the cable system, regardless
of whether such services actually are provided,
including any channel designated for public,
educational, or governmental [use;] use.
(2) Affiliate._[the] The term ``affiliate'', when
used in relation to any person, means another person
who owns or controls, is owned or controlled by, or is
under common ownership or control with, such [person;]
person.
(3) Basic cable service._[the] The term ``basic cable
service'' means any service tier which includes the
retransmission of local television broadcast [signals;]
signals.
(4) Cable channel._[the] The terms ``cable channel''
or ``channel'' means a portion of the electromagnetic
frequency spectrum which is used in a cable system and
which is capable of delivering a television channel (as
television channel is defined by the Commission by
[regulation);] regulation) or its equivalent (as
determined by the Commission).
(5) Cable operator._[the] The term ``cable operator''
means any person or group of persons (A) who provides
cable service over a cable system and directly or
through one or more affiliates owns a significant
interest in such cable system, or (B) who otherwise
controls or is responsible for, through any
arrangement, the management and operation of such a
cable [system;] system.
(6) Cable service._[the] The term ``cable service''
means--
(A) the one-way transmission to subscribers
of (i) video programming, or (ii) other
programming service, and
(B) subscriber interaction, if any, which is
required for the selection or use of such video
programming or other programming [service;]
service.
(7) Cable system._[the] The term ``cable system''
means a facility, consisting of a set of closed
transmission paths and associated signal generation,
reception, and control equipment that is designed to
provide cable service which includes video programming
and which is provided to multiple subscribers within a
community, but such term does not include (A) a
facility that serves only to retransmit the television
signals of 1 or more television broadcast stations; (B)
a facility that serves subscribers without using any
public right-of-way; (C) a facility of a common carrier
which is subject, in whole or in part, to the
provisions of title II of this Act, except that such
facility shall be considered a cable system (other than
for purposes of section 621(c)) to the extent such
facility is used in the transmission of video
programming directly to subscribers, unless the extent
of such use is solely to provide interactive on-demand
services; (D) an open video system that complies with
section 653 of this title; or (E) any facilities of any
electric utility used solely for operating its electric
utility [systems;] systems.
(8) Federal agency._[the] The term ``Federal agency''
means any agency of the United States, including the
[Commission;] Commission.
(9) Franchise._[the] The term ``franchise'' means an
initial authorization, or renewal thereof (including a
renewal of an authorization which has been granted
subject to section 626), issued by a franchising
authority, whether such authorization is designated as
a franchise, permit, license, resolution, contract,
certificate, agreement, or otherwise, which authorizes
the construction or operation of a [cable system] video
service [system;] system.
(10) Franchising authority._[the] The term
``franchising authority'' means any governmental entity
empowered by Federal, State, or local law to grant a
[franchise;] franchise.
(11) Grade B contour._[the] The term ``grade B
contour'' means the field strength of a television
broadcast station computed in accordance with
regulations promulgated by the [Commission;]
Commission.
(12) Headend.--The term ``headend'' means the headend
of a cable system or its equivalent as determined by
the Commission.
[(12)] (13) Interactive on-demand services._[the] The
term ``interactive on-demand services'' means a service
providing video programming to subscribers over
switched networks on an on-demand, point-to-point
basis, but does not include services providing video
programming prescheduled by the programming [provider;]
provider.
(14) Institutional network.--The term ``institutional
network'' means a communication network constructed by
a cable operator that is generally available only to
subscribers who are not residential subscribers.
[(13)] (15) Multichannel video programming
distributor._[the] The term ``multichannel video
programming distributor'' means a person such as, but
not limited to, a cable operator, a multichannel
multipoint distribution service, a direct broadcast
satellite service, or a television receive-only
satellite program distributor, who makes available for
purchase, by subscribers or customers, multiple
channels of video [programming;] programming.
[(14)] (16) Other programming service._[the] The term
``other programming service'' means information that a
[cable operator] video service provider makes available
to all subscribers [generally;] generally.
[(15)] (17) Person._[the] The term ``person'' means
an individual, partnership, association, joint stock
company, trust, corporation, or governmental [entity;]
entity.
[(16)] (18) Public, educational, or governmental
access facilities._[the] The term ``public,
educational, or governmental access facilities''
means--
(A) channel capacity designated for public,
educational, or governmental use; and
(B) facilities and equipment for the use of
such channel [capacity;] capacity.
(19) Satellite carrier.--The term ``satellite
carrier'' means an entity that uses the facilities of a
satellite or satellite service licensed by the
Commission and operates in the Fixed-Satellite Service
under part 25 of title 47, Code of Federal Regulations,
or the Direct Broadcast Satellite Service under part
100 of title 47, Code of Federal Regulations, to
establish and operate a channel of communications for
point-to-multipoint distribution of television station
signals, and that owns or leases capacity or service on
a satellite in order to provide such point-to-
multipoint distribution, except to the extent that such
entity provides such distribution pursuant to tariff
under this Act, for purposes other than for private
home viewing.
[(17)] (20) Service tier._[the] The term ``service
tier'' means a category of [cable service] video
service or other services provided by a [cable
operator] video service provider and for which a
separate rate is charged by the [cable operator] video
service [provider;] provider.
[(18)] (21) State._[the] The term ``State'' means any
State, or political subdivision, or agency [thereof;]
thereof.
[(19)] (22) Usable activated channels._[the] The term
``usable activated channels'' means activated channels
of a cable system, except those channels whose use for
the distribution of broadcast signals would conflict
with technical and safety regulations as determined by
the [Commission; and] Commission.
[(20)] (23) Video programming._[the] The term ``video
programming'' means programming provided by, or
generally considered comparable to programming provided
by, a television broadcast station.
(24) Video service.--The term ``video service''
means--
(A) the transmission to subscribers of--
(i) video programming;
(ii) interactive on-demand service;
or
(iii) other programming service; and
(B) subscriber interaction, if any, required
for the selection or use of such video
programming, interactive on-demand service, or
other programming service regardless of the
transmission technology used and regardless of
how the subscriber interacts with the service.
(25) Video service provider.--The term ``video
service provider''--
(A) means a facilities-based (as determined
by the Commission) provider of video service
that utilizes a public right-of-way in the
provision of such service (including cable
operators and providers offering open video
systems under section 653), regardless of the
transmission technology used and regardless of
how the subscriber interacts with the service;
but
(B) does not include any person to the extent
that the person is providing--
(i) satellite service, including if
such service is bundled with, or
offered in conjunction with, an
Internet access service or other
broadband capability;
(ii) video programming using radio
communication directly to the
recipient's premises; or
(iii) service via commercial mobile
service (as defined in section 332(d)).
SEC. 603. FRANCHISE APPLICATIONS.
(a) In General.--
(1) Expedited process.--Except as otherwise provided
in this subsection, a franchising authority shall grant
a franchise to provide video service within its
franchise area to a video service provider within 90
calendar days after receiving a franchise application
that is complete from the video service provider except
for--
(A) the franchise fee percentage, as provided
by section 622(b)(1);
(B) the number of public, educational, or
governmental use channels required by section
611;
(C) any fee percentage that may be assessed
under section 622(b)(4); and
(D) the point of contact for the franchising
authority.
(2) Standardized application form.--A video service
provider shall use the standard franchise application
form promulgated by the Commission under section 612.
(3) Responsibilities of franchising authority--After
receiving a franchise application under paragraph (1),
a franchising authority shall--
(A) publish public notice of the application
within 15 days after receiving a complete
application from a video service provider if
public notice is required by State or local
law; and
(B) complete and return the application form
by providing the information described in
subparagraphs (A), (B), (C), and (D) of
paragraph (1) in a manner that is consistent
with the requirements of this title within 90
calendar days after the date on which it was
received.
(4) Acceptance of terms.--A franchising agreement
shall take effect 15 calendar days after the date that
the completed franchise application is received by the
applicant under paragraph (3)(B) unless the applicant
notifies the franchising authority within that 15-day
period that the terms offered are not accepted.
(5) Exception.--This subsection does not require a
franchising authority to approve or complete an
application from a video service provider if a
franchise held by that provider has been revoked under
section 625(b) by the franchising authority.
(b) Deemed Approval.--Except as provided in subsection
(a)(5), if a franchising authority fails to act on a franchise
application that meets the requirements of this title within
the 90-day period described in subsection (a)(3)(B), the
franchise application shall be deemed granted--
(1) effective on the 91st day after the franchising
authority received the application;
(2) for a term of 15 years;
(3) with--
(A) the same percentage of gross revenue paid
by the cable operator with the most subscribers
offering cable service in the franchise area;
or
(B) if there is no cable operator offering
cable service in the franchise area, 5 percent
of gross revenue; and
(4) with an obligation to provide the number of
public, educational, or governmental use channels
required by section 611.
(c) Procedure.--If an application is not granted within the
90-day period described in subsection (a)(3)(B) because of
subsection (a)(5), the applicant may avail itself of the
procedures in section 635 of this Act.
SEC. 604. NO EFFECT ON STATE LAWS OF GENERAL APPLICABILITY.
Nothing in this title is intended to affect State or local
laws of general applicability, except to the extent that such
laws are inconsistent with this title.
SEC. 605. DIRECT BROADCAST SATELLITE SERVICE.
No State or local government may regulate direct broadcast
satellite services (as that term is used in section 335 of this
Act). This section shall not be construed to prevent taxation
of a provider of direct-to-home satellite service by a State,
to the extent otherwise permissible, and shall not preempt
State or local laws of general applicability.
[PART II--USE OF CABLE CHANNELS AND CABLE OWNERSHIP RESTRICTIONS]
PART II_USE OF VIDEO SERVICES; RESTRICTIONS
[SEC. 611. CABLE CHANNELS FOR PUBLIC, EDUCATIONAL, OR GOVERNMENTAL USE.
[47 U.S.C. 531]
[(a) A franchising authority may establish requirements in a
franchise with respect to the designation or use of channel
capacity for public, educational, or governmental use only to
the extent provided in this section.
[(b) A franchising authority may in its request for proposals
require as part of a franchise, and may require as part of a
cable operator's proposal for a franchise renewal, subject to
section 626, that channel capacity be designated for public,
educational, or governmental use, and channel capacity on
institutional networks be designated for educational or
governmental use, and may require rules and procedures for the
use of the channel capacity designated pursuant to this
section.
[(c) A franchising authority may enforce any requirement in
any franchise regarding the providing or use of such channel
capacity. Such enforcement authority includes the authority to
enforce any provisions of the franchise for services,
facilities, or equipment proposed by the cable operator which
relate to public, educational, or governmental use of channel
capacity, whether or not required by the franchising authority
pursuant to subsection (b).
[(d) In the case of any franchise under which channel
capacity is designated under subsection (b), the franchising
authority shall prescribe--
[(1) rules and procedures under which the cable
operator is permitted to use such channel capacity for
the provision of other services if such channel
capacity is not being used for the purposes designated,
and
[(2) rules and procedures under which such permitted
use shall cease.
[(e) Subject to section 624(d), a cable operator shall not
exercise any editorial control over any public, educational, or
governmental use of channel capacity provided pursuant to this
section, except a cable operator may refuse to transmit any
public access program or portion of a public access program
which contains obscenity, indecency, or nudity.
[(f) For purposes of this section, the term ``institutional
network'' means a communication network which is constructed or
operated by the cable operator and which is generally available
only to subscribers who are not residential subscribers.]
SEC. 611. CHANNELS FOR PUBLIC, EDUCATIONAL, OR GOVERNMENTAL USE.
(a) In General.--A video service provider that obtains a
franchise shall provide channel capacity for public,
educational, or governmental use that is not less than the
channel capacity required of the cable operator or video
service provider with the greatest number of public,
educational, or governmental use channels in the franchise area
on the effective date of the franchise. If there is no other
video service provider in the franchise area on the effective
date of the franchise, the video service provider may be
required to provide up to 3 channels.
(b) Adjustment.--Every 15 years after the commencement of a
franchise granted after April 30, 2006, a franchising authority
may require a video service provider to increase the channel
capacity designated for public, educational, or governmental
use, and the channel capacity designated for such use on any
institutional networks required under subsection (a). The
increase may not exceed the greater of--
(1) 1 channel; or
(2) 10 percent of the public, educational, or
governmental channel capacity required of the video
service provider before the required increase.
(c) Editorial Control.--Subject to section 624(a)(1), a video
service provider shall not exercise any editorial control over
any public, educational, or governmental use of channel
capacity provided pursuant to this section, but a video service
provider may refuse to transmit any public access program or
portion of a public access program which contains obscenity.
(d) Transmission and Production of Programming.--
(1) PEG programming.--A video service provider shall
ensure that all subscribers receive any public,
educational, or governmental programming carried by the
video service provider within the subscriber's
franchise area.
(2) Production responsibility.--The production of any
programming provided under this subsection shall be the
responsibility of the franchising authority.
(3) Transmission responsibility.--The video service
provider shall be responsible for the transmission from
the signal origination point (or points) of the
programming, or from the point of interconnection with
another video service provider already offering the
public, educational, or governmental programming under
paragraph (4), to the video service provider's
subscribers, or any public, educational, or
governmental programming produced by or for the
franchising authority and carried by the video service
provider pursuant to this section.
(4) Interconnection; cost-sharing.--Unless 2 video
service providers otherwise agree to the terms for
interconnection and cost sharing, such video service
providers shall comply with regulations prescribed by
the Commission providing for--
(A) the interconnection between 2 video
service providers in a franchise area for
transmission of public, educational, or
governmental programming, without material
degradation in signal quality or functionality;
and
(B) the reasonable allocation of the costs of
such interconnection between such video service
providers.
(5) Display of program information.--The video
service provider shall display the program information
for public, educational, or governmental programming in
any print or electronic program guide in the same
manner in which it displays program information for
other video programming in the franchise area. The
video service provider may not omit public,
educational, or governmental programming from any
navigational device, guide, or menu containing other
video programming that is available to subscribers in
the franchise area if the franchising authority
provides such programming to the video service provider
at a location, in the data format, and in sufficient
time normally required for the programming to be
displayed on such device, guide, or menu.
[SEC. 612. CABLE CHANNELS FOR COMMERCIAL USE.
[47 U.S.C. 532]
[(a) The purpose of this section is to promote competition in
the delivery of diverse sources of video programming and to
assure that the widest possible diversity of information
sources are made available to the public from cable systems in
a manner consistent with growth and development of cable
systems.
[(b)(1) A cable operator shall designate channel capacity for
commercial use by persons unaffiliated with the operator in
accordance with the following requirements:
[(A) An operator of any cable system with 36 or more
(but not more than 54) activated channels shall
designate 10 percent of such channels which are not
otherwise required for use (or the use of which is not
prohibited) by Federal law or regulation.
[(B) An operator of any cable system with 55 or more
(but not more than 100) activated channels shall
designate 15 percent of such channels which are not
otherwise required for use (or the use of which is not
prohibited) by Federal law or regulation.
[(C) An operator of any cable system with more than
100 activated channels shall designate 15 percent of
all such channels.
[(D) An operator of any cable system with fewer than
36 activated channels shall not be required to
designate channel capacity for commercial use by
persons unaffiliated with the operator, unless the
cable system is required to provide such channel
capacity under the terms of a franchise in effect on
the date of the enactment of this title.
[(E) An operator of any cable system in operation on
the date of the enactment of this title shall not be
required to remove any service actually being provided
on July 1, 1984, in order to comply with this section,
but shall make channel capacity available for
commercial use as such capacity becomes available until
such time as the cable operator is in full compliance
with this section.
[(2) Any Federal agency, State, or franchising authority may
not require any cable system to designate channel capacity for
commercial use by unaffiliated persons in excess of the
capacity specified in paragraph (1), except as otherwise
provided in this section.
[(3) A cable operator may not be required, as part of a
request for proposals or as part of a proposal for renewal,
subject to section 626, to designate channel capacity for any
use (other than commercial use by unaffiliated persons under
this section) except as provided in sections 611 and 637, but a
cable operator may offer in a franchise, or proposal for
renewal thereof, to provide, consistent with applicable law,
such capacity for other than commercial use by such persons.
[(4) A cable operator may use any unused channel capacity
designated pursuant to this section until the use of such
channel capacity is obtained, pursuant to a written agreement,
by a person unaffiliated with the operator.
[(5) For the purposes of this section, the term ``commercial
use'' means the provision of video programming, whether or not
for profit.
[(6) Any channel capacity which has been designated for
public, educational, or governmental use may not be considered
as designated under this section for commercial use for purpose
of this section.
[(c)(1) If a person unaffiliated with the cable operator
seeks to use channel capacity designated pursuant to subsection
(b) for commercial use, the cable operator shall establish,
consistent with the purpose of this section and with rules
prescribed by the Commission under paragraph (4), the price,
terms, and conditions of such use which are at least sufficient
to assure that such use will not adversely affect the
operation, financial condition, or market development of the
cable system.
[(2) A cable operator shall not exercise any editorial
control over any video programming provided pursuant to this
section, or in any other way consider the content of such
programming, except that a cable operator may refuse to
transmit any leased access program or portion of a leased
access program which contains obscenity, indecency, or nudity
and may consider such content to the minimum extent necessary
to establish a reasonable price for the commercial use of
designated channel capacity by an unaffiliated person.
[(3) Any cable system channel designated in accordance with
this section shall not be used to provide a cable service that
is being provided over such system on the date of the enactment
of this title, if the provision of such programming is intended
to avoid the purpose of this section.
[(4)(A) The Commission shall have the authority to--
[(i) determine the maximum reasonable rates that a
cable operator may establish pursuant to paragraph (1)
for commercial use of designated channel capacity,
including the rate charged for the billing of rates to
subscribers and for the collection of revenue from
subscribers by the cable operator for such use;
[(ii) establish reasonable terms and conditions for
such use, including those for billing and collection;
and
[(iii) establish procedures for the expedited
resolution of disputes concerning rates or carriage
under this section.
[(B) Within 180 days after the date of enactment of this
paragraph, the Commission shall establish rules for determining
maximum reasonable rates under subparagraph (A)(i), for
establishing terms and conditions under subparagraph (A)(ii),
and for providing procedures under subparagraph (A)(iii).
[(d) Any person aggrieved by the failure or refusal of a
cable operator to make channel capacity available for use
pursuant to this section may bring an action in the district
court of the United States for the judicial district in which
the cable system is located to compel that such capacity be
made available. If the court finds that the channel capacity
sought by such person has not been made available in accordance
with this section, or finds that the price, terms, or
conditions established by the cable operator are unreasonable,
the court may order such system to make available to such
person the channel capacity sought, and further determine the
appropriate price, terms, or conditions for such use consistent
with subsection (c), and may award actual damages if it deems
such relief appropriate. In any such action, the court shall
not consider any price, term, or condition established between
an operator and an affiliate for comparable services.
[(e)(1) Any person aggrieved by the failure or refusal of a
cable operator to make channel capacity available pursuant to
this section may petition the Commission for relief under this
subsection upon a showing of prior adjudicated violations of
this section. Records of previous adjudications resulting in a
court determination that the operator has violated this section
shall be considered as sufficient for the showing necessary
under this subsection. If the Commission finds that the channel
capacity sought by such person has not been made available in
accordance with this section, or that the price, terms, or
conditions established by such system are unreasonable under
subsection (c), the Commission shall, by rule or order, require
such operator to make available such channel capacity under
price, terms, and conditions consistent with subsection (c).
[(2) In any case in which the Commission finds that the prior
adjudicated violations of this section constitute a pattern or
practice of violations by an operator, the Commission may also
establish any further rule or order necessary to assure that
the operator provides the diversity of information sources
required by this section.
[(3) In any case in which the Commission finds that the prior
adjudicated violations of this section constitute a pattern or
practice of violations by any person who is an operator of more
than one cable system, the Commission may also establish any
further rule or order necessary to assure that such person
provides the diversity of information sources required by this
section.
[(f) In any action brought under this section in any Federal
district court or before the Commission, there shall be a
presumption that the price, terms, and conditions for use of
channel capacity designated pursuant to subsection (b) are
reasonable and in good faith unless shown by clear and
convincing evidence to the contrary.
[(g) Notwithstanding sections 621(c) and 623(a), at such time
as cable systems with 36 or more activated channels are
available to 70 percent of households within the United States
and are subscribed to by 70 percent of the households to which
such systems are available, the Commission may promulgate any
additional rules necessary to provide diversity of information
sources. Any rules promulgated by the Commission pursuant to
this subsection shall not preempt authority expressly granted
to franchising authorities under this title.
[(h) Any cable service offered pursuant to this section shall
not be provided, or shall be provided subject to conditions, if
such cable service in the judgment of the franchising authority
or the cable operator is obscene, or is in conflict with
community standards in that it is lewd, lascivious, filthy, or
indecent or is otherwise unprotected by the Constitution of the
United States. This subsection shall permit a cable operator to
enforce prospectively a written and published policy of
prohibiting programming that the cable operator reasonably
believes describes or depicts sexual or excretory activities or
organs in a patently offensive manner as measured by
contemporary community standards.
[(i)(1) Notwithstanding the provisions of subsections (b) and
(c), a cable operator required by this section to designate
channel capacity for commercial use may use any such channel
capacity for the provision of programming from a qualified
minority programming source or from any qualified educational
programming source, whether or not such source is affiliated
with the cable operator . The channel capacity used to provide
programming from a qualified minority programming source or
from any qualified educational programming source pursuant to
this subsection may not exceed 33 percent of the channel
capacity designated pursuant to this section. No programming
provided over a cable system on July 1, 1990, may qualify as
minority programming or educational programming on that cable
system under this subsection.
[(2) For purposes of this subsection, the term ``qualified
minority programming source'' means a programming source which
devotes substantially all of its programming to coverage of
minority viewpoints, or to programming directed at members of
minority groups, and which is over 50 percent minority-owned,
as the term ``minority'' is defined in section
309(i)(3)(C)(ii).
[(3) For purposes of this subsection, the term ``qualified
educational programming source'' means a programming source
which devotes substantially all of its programming to
educational or instructional programming that promotes public
understanding of mathematics, the sciences, the humanities, and
the arts and has a documented annual expenditure on programming
exceeding $15,000,000. The annual expenditure on programming
means all annual costs incurred by the programming source to
produce or acquire programs which are scheduled to be
televised, and specifically excludes marketing, promotion,
satellite transmission and operational costs, and general
administrative costs.
[(4) Nothing in this subsection shall substitute for the
requirements to carry qualified noncommercial educational
television stations as specified under section 615.
[(j)(1) Within 120 days following the date of the enactment
of this subsection, the Commission shall promulgate regulations
designed to limit the access of children to indecent
programming, as defined by Commission regulations, and which
cable operators have not voluntarily prohibited under
subsection (h) by--
[(A) requiring cable operators to place on a single
channel all indecent programs, as identified by program
providers, intended for carriage on channels designated
for commercial use under this section;
[(B) requiring cable operators to block such single
channel unless the subscriber requests access to such
channel in writing; and
[(C) requiring programmers to inform cable operators
if the program would be indecent as defined by
Commission regulations.
[(2) Cable operators shall comply with the regulations
promulgated pursuant to paragraph (1).]
SEC. 612. STANDARD FRANCHISE APPLICATION FORM.
(a) In General.--Within 30 days after the date of enactment
of the Video Competition and Savings for Consumers Act of 2006,
the Commission shall promulgate a standard franchise
application form, the use of which by franchising authorities
shall be mandatory.
(b) Compliance Commitments.--The franchise application form
shall include a statement, to be signed by the video service
provider--
(1) that it agrees to comply with all applicable
Federal and State statutes and regulations that are
consistent with this title;
(2) that it agrees to comply with all applicable
municipal regulations regarding the use and occupation
of public rights-of-way in the delivery of video
service, including the police powers of the
municipalities in which the service is delivered that
are consistent with this title;
(3) geographically identifying the franchise area in
which the provider intends to offer cable service
pursuant to the standard franchise; and
(4) certifying that the information contained in the
notice is accurate and correct and that the provider
will immediately notify the franchise authority of any
material changes in that information during the
franchise term.
(c) Provisions To Be Supplied.--The franchise application
form shall include only the following blank spaces to be filled
in by the video service provider and the franchising authority,
as appropriate:
(1) The name of the video service provider.
(2) The name and business address of each director
and principal executive officer.
(3) A point of contact for the video service
provider.
(4) A point of contact for the franchising authority.
(5) The franchise fee percentage under section
622(b)(1).
(6) Any fee percentage that may be assessed under
section 622(b)(4).
(7) The period during which the franchising agreement
shall be in effect.
(8) The public, educational, or governmental capacity
to be provided.
(9) The physical location of the headend.
(10) A description of the video service to be
provided.
(11) Signatures.
(12) Dates for each signature.
SEC. 613. OWNERSHIP RESTRICTIONS.
[47 U.S.C. 533]
[(a) It shall be unlawful for a cable operator to hold a
license for multichannel multipoint distribution service, or to
offer satellite master antenna television service separate and
apart from any franchised cable service, in any portion of the
franchise area served by that cable operator's cable system.
The Commission--
[(1) shall waive the requirements of this paragraph
for all existing multichannel multipoint distribution
services and satellite master antenna television
services which are owned by a cable operator on the
date of enactment of this paragraph;
[(2) may waive the requirements of this paragraph to
the extent the Commission determines is necessary to
ensure that all significant portions of a franchise
area are able to obtain video programming; and
[(3) shall not apply the requirements of this
subsection to any cable operator in any franchise area
in which a cable operator is subject to effective
competition as determined under section 623(l).]
[Subsection (b) was repealed by section 302(b)(1) of the
Telecommunications Act of 1996 (P.L. 104-104), 110 Stat. 124.]
[(c)] (a) The Commission may prescribe rules with respect to
the ownership or control of [cable] video service systems by
persons who own or control other media of mass communications
which serve the same community served by a [cable] video
service system.
[(d)] (b) Any State or franchising authority may not prohibit
the ownership or control of a [cable] video service system by
any person because of such person's ownership or control of any
other media of mass communications or other media interests.
Nothing in this section shall be construed to prevent any State
or franchising authority from prohibiting the ownership or
control of a [cable] video service system in a jurisdiction by
any person (1) because of such person's ownership or control of
any other [cable] video service system in such jurisdiction; or
(2) in circumstances in which the State or franchising
authority determines that the acquisition of such a [cable]
video service system may eliminate or reduce competition in the
delivery of [cable service] video service in such jurisdiction.
[(e)] (c)(1) Subject to paragraph (2), a State or franchising
authority may hold any ownership interest in any [cable] video
service system.
(2) Any State or franchising authority shall not exercise any
editorial control regarding the content of any [cable service]
video service on a [cable] video service system in which such
governmental entity holds ownership interest (other than
programming on any channel designated for educational or
governmental use), unless such control is exercised through an
entity separate from the franchising authority.
[(f)] (d)(1) In order to enhance effective competition, the
Commission shall, within one year after the date of enactment
of the Cable Television Consumer Protection and Competition Act
of 1992, conduct a proceeding--
(A) to prescribe rules and regulations establishing
reasonable limits on the number of [cable] video
service subscribers a person is authorized to reach
through [cable] video service systems owned by such
person, or in which such person has an attributable
interest;
(B) to prescribe rules and regulations establishing
reasonable limits on the number of channels on a
[cable] video service system that can be occupied by a
video programmer in which a [cable operator] video
service provider has an attributable interest; and
(C) to consider the necessity and appropriateness of
imposing limitations on the degree to which
multichannel video programming distributors may engage
in the creation or production of video programming.
(2) In prescribing rules and regulations under paragraph (1),
the Commission shall, among other public interest objectives--
(A) ensure that no [cable operator] video service
provider or group of [cable operators] video service
providers can unfairly impede, either because of the
size of any individual [operator] provider or because
of joint actions by a group of [operators] providers of
sufficient size, the flow of video programming from the
video programmer to the consumer;
(B) ensure that [cable operators] video service
providers affiliated with video programmers do not
favor such programmers in determining carriage on their
[cable] video service systems or do not unreasonably
restrict the flow of the video programming of such
programmers to other video distributors;
(C) take particular account of the market structure,
ownership patterns, and other relationships of the
[cable] video service television industry, including
the nature and market power of the local franchise, the
joint ownership of [cable] video service systems and
video programmers, and the various types of non-equity
controlling interests;
(D) account for any efficiencies and other benefits
that might be gained through increased ownership or
control;
(E) make such rules and regulations reflect the
dynamic nature of the communications marketplace;
(F) not impose limitations which would bar [cable
operators]video service providers from serving
previously unserved rural areas; and
(G) not impose limitations which would impair the
development of diverse and high quality video
programming.
[(g)] (e) This section shall not apply to prohibit any
combination of any interests held by any person on [July 1,
1984,] the date of enactment of the Video Competition and
Savings for Consumers Act of 2006 to the extent of the
interests so held as of such date, if the holding of such
interests was not inconsistent with any applicable Federal or
State law or regulations in effect on that date.
[(h)] (f) For purposes of this section, the term ``media of
mass communications'' shall have the meaning given such term
under section 309(i)(3)(C)(i) of this Act.
SEC. 614. CARRIAGE OF LOCAL COMMERCIAL TELEVISION SIGNALS.
[47 U.S.C. 534]
(a) Carriage Obligations.--Each [cable operator] video
service provider shall carry, on the [cable] video service
system of that [operator,] provider, the signals of local
commercial television stations and qualified low power stations
as provided by this section. Carriage of additional broadcast
television signals on such system shall be at the discretion of
such [operator,] provider, subject to section 325(b).
(b) Signals Required.--
(1) In general.--(A) A [cable operator] video service
provider of a [cable] video service system with 12 or
fewer usable activated channels shall carry the signals
of at least three local commercial television stations,
except that if such a system has 300 or fewer
subscribers, it shall not be subject to any
requirements under this section so long as such system
does not delete from carriage by that system any signal
of a broadcast television station.
(B) A [cable operator] video service provider of a
[cable] video service system with more than 12 usable
activated channels shall carry the signals of local
commercial television stations, up to one-third of the
aggregate number of usable activated channels of such
system.
(2) Selection of signals.--Whenever the number of
local commercial television stations exceeds the
maximum number of signals a [cable] video service
system is required to carry under paragraph (1), the
[cable operator] video service provider shall have
discretion in selecting which such stations shall be
carried on its [cable] video service system, except
that--
(A) under no circumstances shall a [cable
operator] video service provider carry a
qualified low power station in lieu of a local
commercial television station; and
(B) if the [cable operator] video service
provider elects to carry an affiliate of a
broadcast network (as such term is defined by
the Commission by regulation), such [cable
operator] video service provider shall carry
the affiliate of such broadcast network whose
city of license reference point, as defined in
section 76.53 of title 47, Code of Federal
Regulations (in effect on January 1, 1991), or
any successor regulation thereto, is closest to
the principal headend of the [cable] video
service system.
(3) Content to be carried.--(A) A [cable operator]
video service provider shall carry in its entirety, on
the [cable] video service system of that [operator,]
provider, the primary video, accompanying audio, and
line 21 closed caption transmission of each of the
local commercial television stations carried on the
[cable] video service system and, to the extent
technically feasible, program-related material carried
in the vertical blanking interval or on subcarriers.
Retransmission of other material in the vertical
blanking internal or other nonprogram-related material
(including teletext and other subscription and
advertiser-supported information services) shall be at
the discretion of the [cable operator.] video service
provider. Where appropriate and feasible, [operators]
providers may delete signal enhancements, such as
ghost-canceling, from the broadcast signal and employ
such enhancements at the system headend or headends.
(B) The [cable operator] video service provider shall
carry the entirety of the program schedule of any
television station carried on the [cable] video service
system unless carriage of specific programming is
prohibited, and other programming authorized to be
substituted, under section 76.67 or subpart F of part
76 of title 47, Code of Federal Regulations (as in
effect on January 1, 1991), or any successor
regulations thereto.
(4) Signal quality.--
(A) Nondegradation; technical
specifications.--The signals of local
commercial television stations that a [cable
operator] video service provider carries shall
be carried without material degradation. The
Commission shall adopt carriage standards to
ensure that, to the extent technically
feasible, the quality of signal processing and
carriage provided by a [cable] video service
system for the carriage of local commercial
television stations will be no less than that
provided by the system for carriage of any
other type of signal.
[(B)] Digital video signal.--With respect to
any television station that is transmitting
broadcast programming exclusively in the
digital television service in a local market, a
cable operator of a cable system in that market
shall carry any digital video signal requiring
carriage under this section and program-related
material in the digital format transmitted by
that station, without material degradation, if
the licensee for that station relies on this
section or section 615 to obtain carriage of
the digital video signal and program-related
material on that cable system in that market.
(C) Multiple formats permitted.--A cable
operator of a cable system may offer the
digital video signal and program-related
material of a local television station
described in subparagraph (A) in any analog or
digital format or formats, whether or not doing
so requires conversion from the format
transmitted by the local television station, so
long as--
(i) the cable operator offers the
digital video signal and program-
related material in the converted
analog or digital format or formats
without material degradation; and
(ii) also offers the digital video
signal and program-related material in
the manner or manners required by this
paragraph.
(D) Transitional conversions.--
Notwithstanding the requirement in subparagraph
(B) to carry the digital video signal and
program-related material in the digital format
transmitted by the local television station,
but subject to the prohibition on material
degradation, until February 17, 2014--
(i) a cable operator--
(I) shall offer the digital
video signal and program-
related material in the format
or formats necessary for such
signal and material to be
viewable on analog and digital
televisions; and
(II) may convert the digital
video signal and program-
related material to standard-
definition digital format in
lieu of offering it in the
digital format transmitted by
the local television station;
and
(ii) notwithstanding clause (i), a
cable operator of a cable system with
an activated capacity of 550 megahertz
or less--
(I) shall offer the digital
video signal and program-
related material of the local
television station described in
subparagraph (A), converted to
an analog format; and
(II) may, but shall not be
required to, offer the digital
video signal and program-
related material in any digital
format or formats.
(E) Location and method of conversion.--A
cable operator of a cable system may perform
any conversion permitted or required by this
paragraph at any location, from the cable head-
end to the customer premises, inclusive.
(F) Conversions not treated as degradation.--
Any conversion permitted or required by this
paragraph shall not, by itself, be treated as a
material degradation.
(G) Carriage of program-related material.--
The obligation to carry program-related
material under this paragraph is effective only
to the extent technically feasible.
(H) Definition of standard-definition
format.--For purposes of this paragraph, a
signal shall be in standard definition digital
format if such signal meets the criteria for
such format specified in the standard
recognized by the Commission in section 73.682
of its rules (47 C.F.R. 73.682) or a successor
regulation.
[(B)] (I) Advanced television.--At such time
as the Commission prescribes modifications of
the standards for television broadcast signals,
the Commission shall initiate a proceeding to
establish any changes in the signal carriage
requirements of [cable] video service
television systems necessary to ensure [cable]
video service carriage of such broadcast
signals of local commercial television stations
which have been changed to conform with such
modified standards.
(5) Duplication not required.--Notwithstanding
paragraph (1), a [cable operator] video service
provider shall not be required to carry the signal of
any local commercial television station that
substantially duplicates the signal of another local
commercial television station which is carried on its
[cable] video service system, or to carry the signals
of more than one local commercial television station
affiliated with a particular broadcast network (as such
term is defined by regulation). If a [cable operator]
video service provider elects to carry on its [cable]
video service system a signal which substantially
duplicates the signal of another local commercial
television station carried on the [cable] video service
system, or to carry on its system the signals of more
than one local commercial television station affiliated
with a particular broadcast network, all such signals
shall be counted toward the number of signals the
[operator] provider is required to carry under
paragraph (1).
(6) Channel positioning.--Each signal carried in
fulfillment of the carriage obligations of a [cable
operator] video service provider under this section
shall be carried on the [cable] video service system
channel number on which the local commercial television
station is broadcast over the air, or on the channel on
which it was carried on July 19, 1985, or on the
channel on which it was carried on January 1, 1992, at
the election of the station, or on such other channel
number as is mutually agreed upon by the station and
the [cable operator.] video service provider. Any
dispute regarding the positioning of a local commercial
television station shall be resolved by the Commission.
(7) Signal availability.--Signals carried in
fulfillment of the requirements of this section shall
be provided to every subscriber of a [cable] video
service system. Such signals shall be viewable via
[cable] video service on all television receivers of a
subscriber which are connected to a [cable] video
service system by a [cable operator] video service
provider or for which a [cable operator] video service
provider provides a connection. If a [cable operator]
video service provider authorizes subscribers to
install additional receiver connections, but does not
provide the subscriber with such connections, or with
the equipment and materials for such connections, the
[operator] provider shall notify such subscribers of
all broadcast stations carried on the [cable] video
service system which cannot be viewed via [cable] video
service without a converter box and shall offer to sell
or lease such a converter box to such subscribers at
rates in accordance with section 623(b)(3).
(8) Identification of signals carried.--A [cable
operator] video service provider shall identify, upon
request by any person, the signals carried on its
system in fulfillment of the requirements of this
section.
(9) Notification.--A [cable operator] video service
provider shall provide written notice to a local
commercial television station at least 30 days prior to
either deleting from carriage or repositioning that
station. No deletion or repositioning of a local
commercial television station shall occur during a
period in which major television ratings services
measure the size of audiences of local television
stations. The notification provisions of this paragraph
shall not be used to undermine or evade the channel
positioning or carriage requirements imposed upon
[cable operators] video service providers under this
section.
(10) Compensation for carriage.--A [cable operator]
video service provider shall not accept or request
monetary payment or other valuable consideration in
exchange either for carriage of local commercial
television stations in fulfillment of the requirements
of this section or for the channel positioning rights
provided to such stations under this section, except
that--
(A) any such station may be required to bear
the costs associated with delivering a good
quality signal or a baseband video signal to
the principal headend of the [cable] video
service system;
(B) a [cable operator] video service provider
may accept payments from stations which would
be considered distant signals under section 111
of title 17, United States Code, as
indemnification for any increased copyright
liability resulting from carriage of such
signal; and
(C) a [cable operator] video service provider
may continue to accept monetary payment or
other valuable consideration in exchange for
carriage or channel positioning of the signal
of any local commercial television station
carried in fulfillment of the requirements of
this section, through, but not beyond, the date
of expiration of an agreement thereon between a
[cable operator] video service provider and a
local commercial television station entered
into prior to June 26, 1990.
(c) Low Power Station Carriage Obligation.--
(1) Requirement.--If there are not sufficient signals
of full power local commercial television stations to
fill the channels set aside under subsection (b)--
(A) a [cable operator] video service provider
of a [cable] video service system with a
capacity of 35 or fewer usable activated
channels shall be required to carry one
qualified low power station; and
(B) a [cable operator] video service provider
of a [cable] video service system with a
capacity of more than 35 usable activated
channels shall be required to carry two
qualified low power stations.
(2) Use of public, educational, or governmental
channels.--A [cable operator] video service provider
required to carry more than one signal of a qualified
low power station under this subsection may do so,
subject to approval by the franchising authority
pursuant to section 611, by placing such additional
station on public, educational, or governmental
channels not in use for their designated purposes.
(d) Remedies.--
(1) Complaints by broadcast stations.--Whenever a
local commercial television station believes that a
[cable operator] video service provider has failed to
meet its obligations under this section, such station
shall notify the [operator] provider, in writing, of
the alleged failure and identify its reasons for
believing that the [cable operator] video service
provider is obligated to carry the signal of such
station or has otherwise failed to comply with the
channel positioning or repositioning or other
requirements of this section. The [cable operator]
video service provider shall, within 30 days of such
written notification, respond in writing to such
notification and either commence to carry the signal of
such station in accordance with the terms requested or
state its reasons for believing that it is not
obligated to carry such signal or is in compliance with
the channel positioning and repositioning and other
requirements of this section. A local commercial
television station that is denied carriage or channel
positioning or repositioning in accordance with this
section by a [cable operator] video service provider
may obtain review of such denial by filing a complaint
with the Commission. Such complaint shall allege the
manner in which such [cable operator] video service
provider has failed to meet its obligations and the
basis for such allegations.
(2) Opportunity to respond.--The Commission shall
afford such [cable operator] video service provider an
opportunity to present data and arguments to establish
that there has been no failure to meet its obligations
under this section.
(3) Remedial actions; dismissal.--Within 120 days
after the date a complaint is filed, the Commission
shall determine whether the [cable operator] video
service provider has met its obligations under this
section. If the Commission determines that the [cable
operator] video service provider has failed to meet
such obligations, the Commission shall order the [cable
operator] video service provider to reposition the
complaining station or, in the case of an obligation to
carry a station, to commence carriage of the station
and to continue such carriage for at least 12 months.
If the Commission determines that the [cable operator]
video service provider has fully met the requirements
of this section, it shall dismiss the complaint.
(e) Input Selector Switch Rules Abolished.--No [cable
operator] video service provider shall be required--
(1) to provide or make available any input selector
switch as defined in section 76.5(mm) of title 47, Code
of Federal Regulations, or any comparable device; or
(2) to provide information to subscribers about input
selector switches or comparable devices.
(f) Regulations by Commission.--Within 180 days after the
date of enactment of this section, the Commission shall,
following a rulemaking proceeding, issue regulations
implementing the requirements imposed by this section. Such
implementing regulations shall include necessary revisions to
update section 76.51 of title 47 of the Code of Federal
Regulations.
(g) Sales Presentations and Program Length Commercials.--
(1) Carriage pending proceeding.--Pending the outcome
of the proceeding under paragraph (2), nothing in this
Act shall require a [cable operator] video service
provider to carry on any tier, or prohibit a [cable
operator] video service provider from carrying on any
tier, the signal of any commercial television station
or video programming service that is predominantly
utilized for the transmission of sales presentations or
program length commercials.
(2) Proceeding concerning certain stations.--Within
270 days after the date of enactment of this section,
the Commission, notwithstanding prior proceedings to
determine whether broadcast television stations that
are predominantly utilized for the transmission of
sales presentations or program length commercials are
serving the public interest, convenience, and
necessity, shall complete a proceeding in accordance
with this paragraph to determine whether broadcast
television stations that are predominantly utilized for
the transmission of sales presentations or program
length commercials are serving the public interest,
convenience, and necessity. In conducting such
proceeding, the Commission shall provide appropriate
notice and opportunity for public comment. The
Commission shall consider the viewing of such stations,
the level of competing demands for the spectrum
allocated to such stations, and the role of such
stations in providing competition to nonbroadcast
services offering similar programming. In the event
that the Commission concludes that one or more of such
stations are serving the public interest, convenience,
and necessity, the Commission shall qualify such
stations as local commercial television stations for
purposes of subsection (a). In the event that the
Commission concludes that one or more of such stations
are not serving the public interest, convenience, and
necessity, the Commission shall allow the licensees of
such stations a reasonable period within which to
provide different programming, and shall not deny such
stations a renewal expectancy solely because their
programming consisted predominantly of sales
presentations or program length commercials.
(h) Material Degradation.--For purposes of this section and
section 615, transmission of a digital signal over a cable
system in a compressed bitstream shall not be considered
material degradation as long as such compression does not
materially affect the picture quality the consumer receives.
[(h)] (i) Definitions.--
(1) Local commercial television station.--
(A) In general.--For purposes of this
section, the term ``local commercial television
station'' means any full power television
broadcast station, other than a qualified
noncommercial educational television station
within the meaning of section 615(l)(1),
licensed and operating on a channel regularly
assigned to its community by the Commission
that, with respect to a particular [cable]
video service system, is within the same
television market as the [cable] video service
system.
(B) Exclusions.--The term ``local commercial
television station'' shall not include--
(i) low power television stations,
television translator stations, and
passive repeaters which operate
pursuant to part 74 of title 47, Code
of Federal Regulations, or any
successor regulations thereto;
(ii) a television broadcast station
that would be considered a distant
signal under section 111 of title 17,
United States Code, if such station
does not agree to indemnify the [cable
operator] video service provider for
any increased copyright liability
resulting from carriage on the [cable]
video service system; or
(iii) a television broadcast station
that does not deliver to the principal
headend of a [cable] video service
system either a signal level of -45dBm
for UHF signals or -49dBm for VHF
signals at the input terminals of the
signal processing equipment, if such
station does not agree to be
responsible for the costs of delivering
to the [cable] video service system a
signal of good quality or a baseband
video signal.
(C) Market determinations.--(i) For purposes
of this section, a broadcasting station's
market shall be determined by the Commission by
regulation or order using, where available,
commercial publications which delineate
television markets based on viewing patterns,
except that, following a written request, the
Commission may, with respect to a particular
television broadcast station, include
additional communities within its television
market or exclude communities from such
station's television market to better
effectuate the purposes of this section. In
considering such requests, the Commission may
determine that particular communities are part
of more than one television market.
(ii) In considering requests filed pursuant
to clause (i), the Commission shall afford
particular attention to the value of localism
by taking into account such factors as--
(I) whether the station, or other
stations located in the same area, have
been historically carried on the
[cable] video service system or systems
within such community;
(II) whether the television station
provides coverage or other local
service to such community;
(III) whether any other television
station that is eligible to be carried
by a [cable] video service system in
such community in fulfillment of the
requirements of this section provides
news coverage of issues of concern to
such community or provides carriage or
coverage of sporting and other events
of interest to the community; and
(IV) evidence of viewing patterns in
[cable] video service and [noncable]
non-video service households within the
areas served by the [cable] video
service system or systems in such
community.
(iii) A [cable operator] video service
provider shall not delete from carriage the
signal of a commercial television station
during the pendency of any proceeding pursuant
to this subparagraph.
(iv) Within 120 days after the date
on which a request is filed under this
subparagraph (or 120 days after the
date of enactment of the
Telecommunications Act of 1996, if
later), the Commission shall grant or
deny the request.
(2) Qualified low power station.--The term
``qualified low power station'' means any television
broadcast station conforming to the rules established
for Low Power Television Stations contained in part 74
of title 47, Code of Federal Regulations, only if--
(A) such station broadcasts for at least the
minimum number of hours of operation required
by the Commission for television broadcast
stations under part 73 of title 47, Code of
Federal Regulations;
(B) such station meets all obligations and
requirements applicable to television broadcast
stations under part 73 of title 47, Code of
Federal Regulations, with respect to the
broadcast of nonentertainment programming;
programming and rates involving political
candidates, election issues, controversial
issues of public importance, editorials, and
personal attacks; programming for children; and
equal employment opportunity; and the
Commission determines that the provision of
such programming by such station would address
local news and informational needs which are
not being adequately served by full power
television broadcast stations because of the
geographic distance of such full power stations
from the low power station's community of
license;
(C) such station complies with interference
regulations consistent with its secondary
status pursuant to part 74 of title 47, Code of
Federal Regulations;
(D) such station is located no more than 35
miles from the [cable] video service system's
headend, and delivers to the principal headend
of the [cable] video service system an over-
the-air signal of good quality, as determined
by the Commission;
(E) the community of license of such station
and the franchise area of the [cable] video
service system are both located outside of the
largest 160 Metropolitan Statistical Areas,
ranked by population, as determined by the
Office of Management and Budget on June 30,
1990, and the population of such community of
license on such date did not exceed 35,000; and
(F) there is no full power television
broadcast station licensed to any community
within the county or other political
subdivision (of a State) served by the [cable]
video service system.
Nothing in this paragraph shall be construed to change
the secondary status of any low power station as
provided in part 74 of title 47, Code of Federal
Regulations, as in effect on the date of enactment of
this section.
SEC. 615. CARRIAGE OF NONCOMMERCIAL EDUCATIONAL TELEVISION.
[47 U.S.C. 535]
(a) Carriage Obligations.--In addition to the carriage
requirements set forth in section 614, each [cable operator]
video service provider of a [cable] video service system shall
carry the signals of qualified noncommercial educational
television stations in accordance with the provisions of this
section.
(b) Requirements To Carry Qualified Stations.--
(1) General requirement to carry each qualified
station.--Subject to paragraphs (2) and (3) and
subsection (e), each [cable operator] video service
provider shall carry, on the [cable] video service
system of that [cable operator,] video service
provider, any qualified local noncommercial educational
television station requesting carriage.
(2)(A) Systems with 12 or fewer channels.--
Notwithstanding paragraph (1), a [cable operator] video
service provider of a [cable] video service system with
12 or fewer usable activated channels shall be required
to carry the signal of one qualified local
noncommercial educational television station; except
that a [cable operator] video service provider of such
a system shall comply with subsection (c) and may, in
its discretion, carry the signals of other qualified
noncommercial educational television stations.
(B) In the case of a [cable] video service system
described in subparagraph (A) which operates beyond the
presence of any qualified local noncommercial
educational television station--
(i) the [cable operator] video service
provider shall import and carry on that system
the signal of one qualified noncommercial
educational television station;
(ii) the selection for carriage of such a
signal shall be at the election of the [cable
operator;] video service provider; and
(iii) in order to satisfy the requirements
for carriage specified in this subsection, the
[cable operator] video service provider of the
system shall not be required to remove any
other programming service actually provided to
subscribers on March 29, 1990; except that such
[cable operator] video service provider shall
use the first channel available to satisfy the
requirements of this subparagraph.
(3) Systems with 13 to 36 channels.--(A) Subject to
subsection (c), a [cable operator] video service
provider of a [cable] video service system with 13 to
36 usable activated channels--
(i) shall carry the signal of at least one
qualified local noncommercial educational
television station but shall not be required to
carry the signals of more than three such
stations, and
(ii) may, in its discretion, carry additional
such stations.
(B) In the case of a [cable] video service system
described in this paragraph which operates beyond the
presence of any qualified local noncommercial
educational television station, the [cable operator]
video service provider shall import and carry on that
system the signal of at least one qualified
noncommercial educational television station to comply
with subparagraph (A)(i).
(C) The [cable operator] video service provider of a
[cable] video service system described in this
paragraph which carries the signal of a qualified local
noncommercial educational station affiliated with a
State public television network shall not be required
to carry the signal of any additional qualified local
noncommercial educational television stations
affiliated with the same network if the programming of
such additional stations is substantially duplicated by
the programming of the qualified local noncommercial
educational television station receiving carriage.
(D) A [cable operator] video service provider of a
system described in this paragraph which increases the
usable activated channel capacity of the system to more
than 36 channels on or after March 29, 1990, shall, in
accordance with the other provisions of this section,
carry the signal of each qualified local noncommercial
educational television station requesting carriage,
subject to subsection (e).
(c) Continued Carriage of Existing Stations.--Notwithstanding
any other provision of this section, all [cable operators]
video service providers shall continue to provide carriage to
all qualified local noncommercial educational television
stations whose signals were carried on their systems as of
March 29, 1990. The requirements of this subsection may be
waived with respect to a particular [cable operator] video
service provider and a particular such station, upon the
written consent of the [cable operator] video service provider
and the station.
(d) Placement of Additional Signals.--A [cable operator]
video service provider required to add the signals of qualified
local noncommercial educational television stations to a
[cable] video service system under this section may do so,
subject to approval by the franchising authority pursuant to
section 611, by placing such additional stations on public,
educational, or governmental channels not in use for their
designated purposes.
(e) Systems With More Than 36 Channels.--A [cable operator]
video service provider of a [cable] video service system with a
capacity of more than 36 usable activated channels which is
required to carry the signals of three qualified local
noncommercial educational television stations shall not be
required to carry the signals of additional such stations the
programming of which substantially duplicates the programming
broadcast by another qualified local noncommercial educational
television station requesting carriage. Substantial duplication
shall be defined by the Commission in a manner that promotes
access to distinctive noncommercial educational television
services.
(f) Waiver of Nonduplication Rights.--A qualified local
noncommercial educational television station whose signal is
carried by a [cable operator] video service provider shall not
assert any network nonduplication rights it may have pursuant
to section 76.92 of title 47, Code of Federal Regulations, to
require the deletion of programs aired on other qualified local
noncommercial educational television stations whose signals are
carried by that [cable operator.] video service provider.
(g) Conditions of Carriage.--
(1) Content to be carried.--A [cable operator] video
service provider shall retransmit in its entirety the
primary video, accompanying audio, and line 21 closed
caption transmission of each qualified local
noncommercial educational television station whose
signal is carried on the [cable] video service system,
and, to the extent technically feasible, program-
related material carried in the vertical blanking
interval, or on subcarriers, that may be necessary for
receipt of programming by handicapped persons or for
educational or language purposes. Retransmission of
other material in the vertical blanking interval or on
subcarriers shall be within the discretion of the
[cable operator.] video service provider.
(2) Bandwidth and technical quality.--A [cable
operator] video service provider shall provide each
qualified local noncommercial educational television
station whose signal is carried in accordance with this
section with bandwidth and technical capacity
equivalent to that provided to commercial television
broadcast stations carried on the [cable] video service
system and shall carry the signal of each qualified
local noncommercial educational television station
without material degradation.
(3) Changes in carriage.--The signal of a qualified
local noncommercial educational television station
shall not be repositioned by a [cable operator] video
service provider unless the [cable operator,] video
service provider, at least 30 days in advance of such
repositioning, has provided written notice to the
station and all subscribers of the [cable] video
service system. For purposes of this paragraph,
repositioning includes (A) assignment of a qualified
local noncommercial educational television station to a
[cable] video service system channel number different
from the [cable] video service system channel number to
which the station was assigned as of March 29, 1990,
and (B) deletion of the station from the [cable] video
service system. The notification provisions of this
paragraph shall not be used to undermine or evade the
channel positioning or carriage requirements imposed
upon [cable operators] video service providers under
this section.
(4) Good quality signal required.--Notwithstanding
the other provisions of this section, a [cable
operator] video service provider shall not be required
to carry the signal of any qualified local
noncommercial educational television station which does
not deliver to the [cable] video service system's
principal headend a signal of good quality or a
baseband video signal, as may be defined by the
Commission.
(5) Channel positioning.--Each signal carried in
fulfillment of the carriage obligations of a [cable
operator] video service provider under this section
shall be carried on the [cable] video service system
channel number on which the qualified local
noncommercial educational television station is
broadcast over the air, or on the channel on which it
was carried on July 19, 1985, at the election of the
station, or on such other channel number as is mutually
agreed upon by the station and the [cable operator.]
video service provider. Any dispute regarding the
positioning of a qualified local noncommercial
educational television station shall be resolved by the
Commission.
(h) Availability of Signals.--Signals carried in fulfillment
of the carriage obligations of a [cable operator] video service
provider under this section shall be available to every
subscriber as part of the [cable] video service system's lowest
priced service tier that includes the retransmission of local
commercial television broadcast signals.
(i) Payment for Carriage Prohibited.--
(1) In general.--A [cable operator] video service
provider shall not accept monetary payment or other
valuable consideration in exchange for carriage of the
signal of any qualified local noncommercial educational
television station carried in fulfillment of the
requirements of this section, except that such a
station may be required to bear the cost associated
with delivering a good quality signal or a baseband
video signal to the principal headend of the [cable]
video service system.
(2) Distant signal exception.--Notwithstanding the
provisions of this section, a [cable operator] video
service provider shall not be required to add the
signal of a qualified local noncommercial educational
television station not already carried under the
provision of subsection (c), where such signal would be
considered a distant signal for copyright purposes
unless such station indemnifies the [cable operator]
video service provider for any increased copyright
costs resulting from carriage of such signal.
(j) Remedies.--
(1) Complaint.--Whenever a qualified local
noncommercial educational television station believes
that a [cable operator] video service provider of a
[cable] video service system has failed to comply with
the signal carriage requirements of this section, the
station may file a complaint with the Commission. Such
complaint shall allege the manner in which such [cable
operator] video service provider has failed to comply
with such requirements and state the basis for such
allegations.
(2) Opportunity to respond.--The Commission shall
afford such [cable operator] video service provider an
opportunity to present data, views, and arguments to
establish that the [cable operator] video service
provider has complied with the signal carriage
requirements of this section.
(3) Remedial actions; dismissal.--Within 120 days
after the date a complaint is filed under this
subsection, the Commission shall determine whether the
[cable operator] video service provider has complied
with the requirements of this section. If the
Commission determines that the [cable operator] video
service provider has failed to comply with such
requirements, the Commission shall state with
particularity the basis for such findings and order the
[cable operator] video service provider to take such
remedial action as is necessary to meet such
requirements. If the Commission determines that the
[cable operator] video service provider has fully
complied with such requirements, the Commission shall
dismiss the complaint.
(k) Identification of Signals.--A [cable operator] video
service provider shall identify, upon request by any person,
those signals carried in fulfillment of the requirements of
this section.
(l) Definitions.--For purposes of this section--
(1) Qualified noncommercial educational television
station.--The term ``qualified noncommercial
educational television station'' means any television
broadcast station which--
(A)(i) under the rules and regulations of the
Commission in effect on March 29, 1990, is
licensed by the Commission as a noncommercial
educational television broadcast station and
which is owned and operated by a public agency,
nonprofit foundation, corporation, or
association; and
(ii) has as its licensee an entity which is
eligible to receive a community service grant,
or any successor grant thereto, from the
Corporation for Public Broadcasting, or any
successor organization thereto, on the basis of
the formula set forth in section 396(k)(6)(B);
or
(B) is owned and operated by a municipality
and transmits predominantly noncommercial
programs for educational purposes.
Such term includes (I) the translator of any
noncommercial educational television station with five
watts or higher power serving the franchise area, (II)
a full-service station or translator if such station or
translator is licensed to a channel reserved for
noncommercial educational use pursuant to section
73.606 of title 47, Code of Federal Regulations, or any
successor regulations thereto, and (III) such stations
and translators operating on channels not so reserved
as the Commission determines are qualified as
noncommercial educational stations.
(2) Qualified local noncommercial educational
television station.--The term ``qualified local
noncommercial educational television station'' means a
qualified noncommercial educational television
station--
(A) which is licensed to a principal
community whose reference point, as defined in
section 76.53 of title 47, Code of Federal
Regulations (as in effect on March 29, 1990),
or any successor regulations thereto, is within
50 miles of the principal headend of the
[cable] video service system; or
(B) whose Grade B service contour, as defined
in section 73.683(a) of such title (as in
effect on March 29, 1990), or any successor
regulations thereto, encompasses the principal
headend of the [cable] video service system.
SEC. 616. REGULATION OF CARRIAGE AGREEMENTS.
[47 U.S.C. 536]
(a) Regulations.--Within one year after the date of enactment
of this section, the Commission shall establish regulations
governing program carriage agreements and related practices
between [cable operators] video service providers or other
multichannel video programming distributors and video
programming vendors. Such regulations shall--
(1) include provisions designed to prevent a [cable
operator] video service provider or other multichannel
video programming distributor from requiring a
financial interest in a program service as a condition
for carriage on one or more of such [operator's]
provider's systems;
(2) include provisions designed to prohibit a [cable
operator] video service provider or other multichannel
video programming distributor from coercing a video
programming vendor to provide, and from retaliating
against such a vendor for failing to provide, exclusive
rights against other multichannel video programming
distributors as a condition of carriage on a system;
(3) contain provisions designed to prevent a
multichannel video programming distributor from
engaging in conduct the effect of which is to
unreasonably restrain the ability of an unaffiliated
video programming vendor to compete fairly by
discriminating in video programming distribution on the
basis of affiliation or nonaffiliation of vendors in
the selection, terms, or conditions for carriage of
video programming provided by such vendors;
(4) provide for expedited review of any complaints
made by a video programming vendor pursuant to this
section;
(5) provide for appropriate penalties and remedies
for violations of this subsection, including carriage;
and
(6) provide penalties to be assessed against any
person filing a frivolous complaint pursuant to this
section.
(b) Definition.--As used in this section, the term ``video
programming vendor'' means a person engaged in the production,
creation, or wholesale distribution of video programming for
sale.
[SEC. 617. SALES OF CABLE SYSTEMS.
[47 U.S.C. 537]
[A franchising authority shall, if the franchise requires
franchising authority approval of a sale or transfer, have 120
days to act upon any request for approval of such sale or
transfer that contains or is accompanied by such information as
is required in accordance with Commission regulations and by
the franchising authority. If the franchising authority fails
to render a final decision on the request within 120 days, such
request shall be deemed granted unless the requesting party and
the franchising authority agree to an extension of time.]
[PART III--FRANCHISING AND REGULATION]
PART III_FRANCHISING
SEC. 621. GENERAL FRANCHISE REQUIREMENTS.
[47 U.S.C. 541]
[(a)(1) A franchising authority may award, in accordance with
the provisions of this title, 1 or more franchises within its
jurisdiction; except that a franchising authority may not grant
an exclusive franchise and may not unreasonably refuse to award
an additional competitive franchise. Any applicant whose
application for a second franchise has been denied by a final
decision of the franchising authority may appeal such final
decision pursuant to the provisions of section 635 for failure
to comply with this subsection.
[(2) Any franchise shall be construed to authorize the
construction of a cable system over public rights-of-way, and
through easements, which is within the area to be served by the
cable system and which have been dedicated for compatible uses,
except that in using such easements the cable operator shall
ensure--
[(A) that the safety, functioning, and appearance of
the property and the convenience and the safety of
other persons not be adversely affected by the
installation or construction of facilities necessary
for a cable system;
[(B) that the cost of the installation, construction,
operation, or removal of such facilities be borne by
the cable operator or subscriber, or a combination of
both; and
[(C) that the owner of the property be justly
compensated by the cable operator for any damages
caused by the installation, construction, operation, or
removal of such facilities by the cable operator.
[(3) In awarding a franchise or franchises, a franchising
authority shall assure that access to cable service is not
denied to any group of potential residential cable subscribers
because of the income of the residents of the local area in
which such group resides.
[(4) In awarding a franchise, the franchising authority--
[(A) shall allow the applicant's cable system a
reasonable period of time to become capable of
providing cable service to all households in the
franchise area;
[(B) may require adequate assurance that the cable
operator will provide adequate public, educational, and
governmental access channel capacity, facilities, or
financial support; and
[(C) may require adequate assurance that the cable
operator has the financial, technical, or legal
qualifications to provide cable service.]
(a) In General.--
(1) Award of franchise.--A franchising authority may
not--
(A) grant an exclusive franchise; or
(B) grant a franchise for a term shorter than
5 years or longer than 15 years as provided in
section 603.
(2) Preservation of local government authority to
manage public rights-of-way; easements.--
(A) In general.--Except as provided in this
title, no State or local law may prohibit, or
have the effect of prohibiting, a video service
provider from offering video service.
(B) Hold harmless.--A State or local
government shall apply its laws or regulations
in a manner that is reasonable, competitively
neutral, nondiscriminatory, and consistent with
State police powers, including permitting,
payments for bonds, security funds, letters of
credit, insurance, indemnification, penalties,
or liquidated damages to ensure compliance with
such laws and regulations. Any permitting fees
imposed by a State or local government shall be
for the purpose of compensating that government
for the costs incurred in managing public
rights-of-way. Any law or regulation that meets
the requirements of this subparagraph shall not
be held to violate subparagraph (A).
(C) Property owners.--Nothing in this title
precludes a State or local government from
requiring that a property owner be justly
compensated by a video service provider for
damage caused by the installation,
construction, operation, or removal of
facilities by the video service provider.
(D) Dispute resolution.--If a dispute arises
concerning the application of subparagraph (A),
(B), or (C), the sole recourse of any party to
the dispute shall be to file an action in a
court of competent jurisdiction.
(3) Use of public rights-of-way.--Any franchise shall
be construed to authorize the construction of a video
service system over public rights-of-way, and through
easements, which is within the area to be served by the
video service system and which have been dedicated for
compatible uses, except that in using such easements
the video service provider shall ensure--
(A) that the safety and functioning of the
property and the safety of other persons not be
adversely affected by the installation or
construction of facilities necessary for a
video service system; and
(B) that the cost of the installation,
construction, operation, or removal of such
facilities be borne by the video service
provider or subscriber, or a combination of
both.
(b)[(1) Except to the extent provided in paragraph (2) and
subsection (f), a cable operator may not provide cable service
without a franchise.] (1) Except to the extent provided in
subsection (f), a video service provider may not provide video
service without a franchise.
(2) Paragraph (1) shall not require any person lawfully
providing [cable service] video service without a franchise on
July 1, 1984, to obtain a franchise unless the franchising
authority so requires.
(3)(A) If a [cable operator] video service provider or
affiliate thereof is engaged in the provision of
telecommunications services--
(i) such [cable operator] video service provider or
affiliate shall not be required to obtain a franchise
under this title for the provision of
telecommunications services; and
(ii) the provisions of this title shall not apply to
such [cable operator] video service provider or
affiliate for the provision of telecommunications
services.
(B) A franchising authority may not impose any requirement
under this title that has the purpose or effect of prohibiting,
limiting, restricting, or conditioning the provision of a
telecommunications service by a [cable operator] video service
provider or an affiliate thereof.
(C) A franchising authority may not order a [cable operator]
video service provider or affiliate thereof--
(i) to discontinue the provision of a
telecommunications service, or
(ii) to discontinue the operation of a [cable] video
service system, to the extent such [cable] video
service system is used for the provision of a
telecommunications service, by reason of the failure of
such [cable operator] video service provider or
affiliate thereof to obtain a franchise or franchise
renewal under this title with respect to the provision
of such telecommunications service.
(D) Except as otherwise permitted by sections 611 and 612, a
franchising authority may not require a [cable operator] video
service provider to provide any telecommunications service or
facilities, other than institutional networks, as a condition
of the initial grant of a franchise, a franchise renewal, or a
transfer of a franchise.
(c) Any [cable] video service system shall not be subject to
regulation as a common carrier or utility by reason of
providing any [cable service.] video service.
(d)(1) A State or the Commission may require the filing of
informational tariffs for any intrastate communications service
provided by a [cable] video service system, other than [cable
service,] video service, that would be subject to regulation by
the Commission or any State if offered by a common carrier
subject in whole or in part, to title II of this Act. Such
informational tariffs shall specify the rates, terms, and
conditions for the provision of such service, including whether
it is made available to all subscribers generally, and shall
take effect on the date specified therein.
(2) Nothing in this title shall be construed to affect the
authority of any State to regulate any [cable operator] video
service provider to the extent that such [operator] provider
provides any communication service other than [cable service,]
video service, whether offered on a common carrier or private
contract basis.
(3) For purposes of this subsection, the term ``State'' has
the meaning given it in section 3.
(e) Nothing in this title shall be construed to affect the
authority of any State to license or otherwise regulate any
facility or combination of facilities which serves only
subscribers in one or more multiple unit dwellings under common
ownership, control, or management and which does not use any
public right-of-way.
[(f) No provision of this Act shall be construed to--
[(1) prohibit a local or municipal authority that is
also, or is affiliated with, a franchising authority
from operating as a multichannel video programming
distributor in the franchise area, notwithstanding the
granting of one or more franchises by such franchising
authority; or
[(2) require such local or municipal authority to
secure a franchise to operate as a multichannel video
programming distributor.]
(f) Municipal Operators.--No provision of this title shall be
construed to prohibit a local or municipal authority that is
also, or is affiliated with, a franchising authority from
operating as a multichannel video programming distributor in
the franchise area, notwithstanding the granting of one or more
franchises by the franchising authority.
(g) Child Pornography.--
(1) In general.--A video service provider authorized
to provide video service in a local franchise area
shall comply with the regulations on child pornography
promulgated pursuant to paragraph (2).
(2) Regulations.--Not later than 180 days after the
date of enactment of the Advanced Telecommunications
and Opportunities Reform Act, the Commission shall
promulgate regulations to require a video service to
prevent the offering of child pornography (as such term
is defined in section 254(h)(7)(F)).
SEC. 622. FRANCHISE FEES.
[47 U.S.C. 542]
[(a) Subject to the limitation of subsection (b), any cable
operator may be required under the terms of any franchise to
pay a franchise fee.
[(b) For any twelve-month period, the franchise fees paid by
a cable operator with respect to any cable system shall not
exceed 5 percent of such cable operator's gross revenues
derived in such period from the operation of the cable system
to provide cable services. For purposes of this section, the
12-month period shall be the 12-month period applicable under
the franchise for accounting purposes. Nothing in this
subsection shall prohibit a franchising authority and a cable
operator from agreeing that franchise fees which lawfully could
be collected for any such 12-month period shall be paid on a
prepaid or deferred basis; except that the sum of the fees paid
during the term of the franchise may not exceed the amount,
including the time value of money, which would have lawfully
been collected if such fees had been paid per annum.]
(a) In General.--A franchising authority may impose and
collect a franchise fee from a video service provider that
provides video services within the local franchise area of that
authority. A franchising authority may not discriminate among
video service providers in imposing or collecting any fee
assessed under this section.
(b) Amount.--
(1) In general.--The franchise fee imposed by a
franchising authority under subsection (a) for any 12-
month period may not exceed 5 percent of the video
service provider's gross revenue derived in such
period. For purposes of this section, the 12-month
period shall be the 12-month period applicable under
the franchise for accounting purposes.
(2) Prepaid or deferred payment arrangements.--
Nothing in this subsection prohibits a franchising
authority and a video service provider from agreeing
that franchise fees which lawfully could be collected
for any such 12-month period shall be paid on a prepaid
or deferred basis, except that the sum of the fees paid
during the term of the franchise may not exceed the
amount, including the time value of money, which would
have lawfully been collected if such fees had been paid
per annum.
(3) Franchising authority and video service provider
agreements.--Nothing in this section precludes a State
or local government and a video service provider from
entering into a voluntary commercial agreement, whereby
in consideration for a mutually agreed upon reduction
in the franchise fee under paragraph (1), the video
service provider makes available to the local unit of
government services, equipment, capabilities, or other
valuable consideration.
(4) PEG and institutional network financial
support.--
(A) In general.--Except as provided in
subparagraph (D), a video service provider may
be required to pay a fee equal to--
`(i) not more than 1 percent of the
video service provider's gross revenue
in the franchise area to the
franchising authority for the support
of public, educational, and
governmental access facilities and
institutional networks; or
(ii) the value, on a per subscriber
basis, of all monetary grants or in-
kind services or facilities for public,
educational, or governmental access
facilities provided by the cable
operator in the franchise area with the
most cable service subscribers in the
calendar year preceding the date of
enactment of the Video Competition and
Savings for Consumers Act of 2006,
pursuant to that cable operator's
existing franchise in effect on the
date of enactment of that Act.
(B) Calculation data.--A franchising
authority may require a cable operator to
provide information sufficient to calculate the
per-subscriber equivalent fee allowed by
subparagraph (A)(ii). The information shall be
treated as confidential and proprietary
business information. The payments made by a
video service provider pursuant to subparagraph
(A) shall be assessed and collected in a manner
consistent with this section.
(C) Existing institutional networks.--
(i) Continued service.--Except as
provided in subparagraph (D), a
franchising authority may require a
cable operator or video service
provider with a franchise in effect on
the date of enactment of the Video
Competition and Savings for Consumers
Act of 2006 to continue to provide any
institutional network it was required
to provide on the date of enactment of
that Act notwithstanding the expiration
or termination of that franchise
pursuant to section 381(b) of the Video
Competition and Savings for Consumers
Act of 2006.
(ii) New network not required.--A
franchising authority may not require a
video service provider to construct a
new institutional network.
(D) Special rule.--In Hawaii--
(i) subparagraph (A)(ii) shall be
applied by inserting ``and
institutional networks'' after
``governmental access facilities''; and
(ii) subparagraph (C)(i) shall be
applied by inserting ``or had committed
to provide'' after ``required to
provide''.
(c) Each [cable operator] video service provider may
identify, consistent with the regulations prescribed by the
Commission pursuant to section 623, as a separate line item on
each regular bill of each subscriber, each of the following:
(1) The amount of the total bill assessed as a
franchise fee and the identity of the franchising
authority to which the fee is paid.
(2) The amount of the total bill assessed to satisfy
any requirements imposed on the [cable operator] video
service provider by the franchise agreement to support
public, educational, or governmental channels or the
use of such channels.
(3) The amount of any other fee, tax, assessment, or
charge of any kind imposed by any governmental
authority on the transaction between the [operator]
provider and the subscriber.
[(d) In any court action under subsection (c), the
franchising authority shall demonstrate that the rate structure
reflects all costs of the franchise fees.
[(e) Any cable operator shall pass through to subscribers the
amount of any decrease in a franchise fee.
[(f) A cable operator may designate that portion of a
subscriber's bill attributable to the franchise fee as a
separate item on the bill.
[(g) For the purposes of this section--
[(1) the term ``franchise fee'' includes any tax,
fee, or assessment of any kind imposed by a franchising
authority or other governmental entity on a cable
operator or cable subscriber, or both, solely because
of their status as such;
[(2) the term ``franchise fee'' does not include--
[(A) any tax, fee, or assessment of general
applicability (including any such tax, fee, or
assessment imposed on both utilities and cable
operators or their services but not including a
tax, fee, or assessment which is unduly
discriminatory against cable operators or cable
subscribers);
[(B) in the case of any franchise in effect
on the date of the enactment of this title,
payments which are required by the franchise to
be made by the cable operator during the term
of such franchise for, or in support of the use
of, public, educational, or governmental access
facilities;
[(C) in the case of any franchise granted
after such date of enactment, capital costs
which are required by the franchise to be
incurred by the cable operator for public,
educational, or governmental access facilities;
[(D) requirements or charges incidental to
the awarding or enforcing of the franchise,
including payments for bonds, security funds,
letters of credit, insurance, indemnification,
penalties, or liquidated damages; or
[(E) any fee imposed under title 17, United
States Code.
[(h)(1) Nothing in this Act shall be construed to limit any
authority of a franchising authority to impose a tax, fee, or
other assessment of any kind on any person (other than a cable
operator) with respect to cable service or other communications
service provided by such person over a cable system for which
charges are assessed to subscribers but not received by the
cable operator.
[(2) For any 12-month period, the fees paid by such person
with respect to any such cable service or other communications
service shall not exceed 5 percent of such person's gross
revenues derived in such period from the provision of such
service over the cable system.]
(d) Other Taxes, Fees, and Assessments Not Affected.--Except
as otherwise provided in this section, nothing in this section
shall be construed to modify, impair, supersede, or authorize
the modification, impairment, or supersession of, any State or
local law pertaining to taxation.
(e) Annual Review.--
(1) Franchising authority audit procedure.--A
franchising authority may, upon reasonable written
request, but no more than once in any 12-month period,
review the business records of a video service provider
to the extent reasonably necessary to ensure payment of
the fees required by this section. The review may
include the methodology used by the video service
provider to assign portions of the revenue from video
service that may be bundled or functionally integrated
with other services, capabilities, or applications. The
review shall be conducted in accordance with procedures
established by the Commission.
(2) Availability of books and records.--Upon request
under paragraph (1), a video service provider shall
make available its books and records for periodic audit
by a franchising authority. The franchising authority
shall treat information obtained in the course of such
an audit as confidential and proprietary and protect
sensitive information from public disclosure.
(3) Cost recovery.--To the extent that the review
under paragraph (1) identifies an underpayment of more
than 5 percent of any fee required by this section for
the period of review, the video service provider shall
reimburse the franchising authority the reasonable
costs of any such review conducted by an independent
third party with respect to such fee. The costs of any
contingency fee arrangement between the franchising
authority and the independent reviewer shall not be
subject to reimbursement.
(4) Limitation.--Any fee that is not reviewed by a
franchising authority within 3 years after it is paid
or remitted shall not be subject to later review by the
franchising authority under this subsection and shall
be deemed accepted in full payment by the franchising
authority.
(f) GAAP Standards.--For purposes of this section, all
financial determinations and computations shall be made in
accordance with generally accepted accounting principles except
as otherwise provided.
(g) Definitions.--In this section:
(1) Franchise fee.--The term ``franchise fee''--
(A) includes any tax, fee, or assessment of
any kind imposed by a franchising authority or
a State or local governmental entity on a video
service provider or subscriber, or both, solely
because of their status as such; but
(B) does not include--
(i) any tax, fee, or assessment of
general applicability (including any
such tax, fee, or assessment imposed on
both utilities and video service
providers or their services but not
including a tax, fee, or assessment
which is unduly discriminatory against
video service providers or
subscribers);
(ii) any fee that is required by the
franchise under subsection (b)(4);
(iii) requirements or charges
incidental to the use of public rights-
of-way, including payments for bonds,
security funds, letters of credit,
insurance, indemnification, penalties,
or liquidated damages;
(iv) costs of fines, penalties, or
recoupment; or
(v) any fee imposed under title 17,
United States Code.
(2) Gross revenue.--
(A) In general.--The term ``gross revenue''
means all consideration of any kind or nature
including cash, credits, property, and in-kind
contributions (services or goods) received by a
video service provider from the provision of
video service within a franchise area
including--
(i) all charges and fees paid by
subscribers for the provision of video
service, including fees attributable to
video service when that service is sold
individually or as part of a package or
bundle, or is functionally integrated
with services other than video service;
(ii) revenue received by a video
service provider as compensation for
carriage of video programming on the
provider's system;
(iii) compensation received by a
video service provider as compensation
for promotion or exhibition of any
product or service on the provider's
video service, such as a home shopping
or similar channel, subject to
subparagraph (D)(vi); and
(iv) a pro rata portion of all
revenue derived by a video service
provider or an affiliate thereof
pursuant to a compensation arrangement
for advertising derived from the
operation of the provider's video
service or the video service within a
franchise area subject to subparagraph
(D)(ii).
(B) Affiliates.--The gross revenue of a video
service provider includes gross revenue of an
affiliate to the extent the exclusion of the
affiliate's gross revenue would have the effect
of permitting the video service provider to
evade the payment of franchise fees which would
otherwise be paid by that video service
provider for video services provided within the
franchise area of the franchising authority
imposing the fee.
(C) Revenue from bundled or functionally
integrated service.--In the case of a video
service that is packaged, bundled, or
functionally integrated with other services,
capabilities, or applications, gross revenue
shall include only the revenue attributable to
the video service, which shall be reflected on
the books and records of the video service
provider kept in the regular course of
business.
(D) Exclusions.--Gross revenue of a video
service provider (or an affiliate to the extent
otherwise included in the gross revenue of the
video service provider under subparagraph (B))
does not include--
(i) any revenue not actually
received, even if billed, such as bad
debts, net of any recoveries of bad
debts;
(ii) refunds, rebates, credits, or
discounts to subscribers or a
municipality to the extent not already
excluded under clause (i);
(iii) subject to subparagraph (C),
any revenues received by a video
service provider or its affiliates from
the provision of services or
capabilities other than video service,
including--
(I) voice, Internet access,
or other broadband-enabled
applications that are not video
service; and
(II) services, capabilities,
and applications that are sold
or provided as part of a
package or bundle of services
or capabilities, or that are
functionally integrated with
video service;
(iv) any revenues received by a video
service provider or its affiliates for
the provision of directory or Internet
advertising, including yellow pages,
white pages, banner advertisement, and
electronic publishing;
(v) any costs attributable to the
provision of video services to
subscribers at no charge, including the
provision of such services to public
institutions without charge;
(vi) any revenue paid by subscribers
to a home shopping programmer directly
from the sale of merchandise through
any home shopping channel offered as
part of the video service provider's
video services, but not excluding any
commissions that are paid to the video
service provider as compensation for
promotion or exhibition of any product
or service on the provider's video
service, such as a home shopping or
similar channel;
(vii) any revenue forgone from the
provision of video service at no charge
to any person other than forgone
revenue exchanged for trades, barters,
services, or other items of value;
(viii) any tax, fee, or assessment of
general applicability imposed on a
subscriber or transaction by Federal,
State, or local government that is
required to be collected by the video
service provider and remitted to the
taxing authority, including sales
taxes, use taxes, and utility user
taxes;
(ix) any revenue from the sale of
capital assets or surplus equipment;
(x) the reimbursement by programmers
for marketing costs actually incurred
by a video service provider for the
introduction of new programming; or
(xi) any revenue from the sale of
video services for resale to the extent
that the purchaser certifies in writing
that it will--
(I) resell the service; and
(II) pay any applicable
franchise fee with respect
thereto.
[(i)] (h) Any Federal agency may not regulate the amount of
the franchise fees paid by a [cable operator,] video service
provider, or regulate the use of funds derived from such fees,
except as provided in this section.
SEC. 623. REGULATION OF RATES.
[47 U.S.C. 543]
(a) Competition Preference; Local and Federal Regulation.--
(1) In general.--No Federal agency or State may
regulate the rates for the provision of [cable service]
video service except to the extent provided under this
section and section 612. Any franchising authority may
regulate the rates for the provision of [cable
service,] video service, or any other communications
service provided over a [cable] video service system to
[cable] video service subscribers, but only to the
extent provided under this section. No Federal agency,
State, or franchising authority may regulate the rates
for [cable service] video service of a [cable] video
service system that is owned or operated by a local
government or franchising authority within whose
jurisdiction that [cable] video service system is
located and that is the only [cable] video service
system located within such jurisdiction.
(2) Preference for competition.--If the Commission
finds that a [cable] video service system is subject to
effective competition, the rates for the provision of
[cable service] video service by such system shall not
be subject to regulation by the Commission or by a
State or franchising authority under this section. If
the Commission finds that a [cable] video service
system is not subject to effective competition--
(A) the rates for the provision of basic
[cable service] video service shall be subject
to regulation by a franchising authority, or by
the Commission if the Commission exercises
jurisdiction pursuant to paragraph (6), in
accordance with the regulations prescribed by
the Commission under subsection (b); and
(B) the rates for [cable] video service
programming services shall be subject to
regulation by the Commission under subsection
(c).
(3) Qualification of franchising authority.--A
franchising authority that seeks to exercise the
regulatory jurisdiction permitted under paragraph
(2)(A) shall file with the Commission a written
certification that--
(A) the franchising authority will adopt and
administer regulations with respect to the
rates subject to regulation under this section
that are consistent with the regulations
prescribed by the Commission under subsection
(b);
(B) the franchising authority has the legal
authority to adopt, and the personnel to
administer, such regulations; and
(C) procedural laws and regulations
applicable to rate regulation proceedings by
such authority provide a reasonable opportunity
for consideration of the views of interested
parties.
(4) Approval by commission.--A certification filed by
a franchising authority under paragraph (3) shall be
effective 30 days after the date on which it is filed
unless the Commission finds, after notice to the
authority and a reasonable opportunity for the
authority to comment, that--
(A) the franchising authority has adopted or
is administering regulations with respect to
the rates subject to regulation under this
section that are not consistent with the
regulations prescribed by the Commission under
subsection (b);
(B) the franchising authority does not have
the legal authority to adopt, or the personnel
to administer, such regulations; or
(C) procedural laws and regulations
applicable to rate regulation proceedings by
such authority do not provide a reasonable
opportunity for consideration of the views of
interested parties.
If the Commission disapproves a franchising authority's
certification, the Commission shall notify the
franchising authority of any revisions or modifications
necessary to obtain approval.
(5) Revocation of jurisdiction.--Upon petition by a
[cable operator] video service provider or other
interested party, the Commission shall review the
regulation of [cable] video service system rates by a
franchising authority under this subsection. A copy of
the petition shall be provided to the franchising
authority by the person filing the petition. If the
Commission finds that the franchising authority has
acted inconsistently with the requirements of this
subsection, the Commission shall grant appropriate
relief. If the Commission, after the franchising
authority has had a reasonable opportunity to comment,
determines that the State and local laws and
regulations are not in conformance with the regulations
prescribed by the Commission under subsection (b), the
Commission shall revoke the jurisdiction of such
authority.
(6) Exercise of jurisdiction by commission.--If the
Commission disapproves a franchising authority's
certification under paragraph (4), or revokes such
authority's jurisdiction under paragraph (5), the
Commission shall exercise the franchising authority's
regulatory jurisdiction under paragraph (2)(A) until
the franchising authority has qualified to exercise
that jurisdiction by filing a new certification that
meets the requirements of paragraph (3). Such new
certification shall be effective upon approval by the
Commission. The Commission shall act to approve or
disapprove any such new certification within 90 days
after the date it is filed.
(7) Aggregation of equipment costs.--
(A) In general.--The Commission shall allow
[cable operators,] video service providers,
pursuant to any rules promulgated under
subsection (b)(3), to aggregate, on a
franchise, system, regional, or company level,
their equipment costs into broad categories,
such as converter boxes, regardless of the
varying levels of functionality of the
equipment within each such broad category. Such
aggregation shall not be permitted with respect
to equipment used by subscribers who receive
only a rate regulated basic service tier.
(B) Revision to commission rules; forms.--
Within 120 days of the date of enactment of the
Telecommunications Act of 1996, the Commission
shall issue revisions to the appropriate rules
and forms necessary to implement subparagraph
(A).
(b) Establishment of Basic Service Tier Rate Regulations.--
(1) Commission obligation to subscribers.--The
Commission shall, by regulation, ensure that the rates
for the basic service tier are reasonable. Such
regulations shall be designed to achieve the goal of
protecting subscribers of any [cable] video service
system that is not subject to effective competition
from rates for the basic service tier that exceed the
rates that would be charged for the basic service tier
if such [cable] video service system were subject to
effective competition.
(2) Commission regulations.--Within 180 days after
the date of enactment of the Cable Television Consumer
Protection and Competition Act of 1992, the Commission
shall prescribe, and periodically thereafter revise,
regulations to carry out its obligations under
paragraph (1). In prescribing such regulations, the
Commission--
(A) shall seek to reduce the administrative
burdens on subscribers, [cable operators,]
video service providers, franchising
authorities, and the Commission;
(B) may adopt formulas or other mechanisms
and procedures in complying with the
requirements of subparagraph (A); and
(C) shall take into account the following
factors:
(i) the rates for [cable] video
service systems, if any, that are
subject to effective competition;
(ii) the direct costs (if any) of
obtaining, transmitting, and otherwise
providing signals carried on the basic
service tier, including signals and
services carried on the basic service
tier pursuant to paragraph (7)(B), and
changes in such costs;
(iii) only such portion of the joint
and common costs (if any) of obtaining,
transmitting, and otherwise providing
such signals as is determined, in
accordance with regulations prescribed
by the Commission, to be reasonably and
properly allocable to the basic service
tier, and changes in such costs;
(iv) the revenues (if any) received
by a [cable operator] video service
provider from advertising from
programming that is carried as part of
the basic service tier or from other
consideration obtained in connection
with the basic service tier;
(v) the reasonably and properly
allocable portion of any amount
assessed as a franchise fee, tax, or
charge of any kind imposed by any State
or local authority on the transactions
between [cable operators] video service
providers and [cable] video service
subscribers or any other fee, tax, or
assessment of general applicability
imposed by a governmental entity
applied against [cable operators] video
service providers or [cable] video
service subscribers;
(vi) any amount required, in
accordance with paragraph (4), to
satisfy franchise requirements to
support public, educational, or
governmental channels or the use of
such channels or any other services
required under the franchise; and
(vii) a reasonable profit, as defined
by the Commission consistent with the
Commission's obligations to subscribers
under paragraph (1).
(3) Equipment.--The regulations prescribed by the
Commission under this subsection shall include
standards to establish, on the basis of actual cost,
the price or rate for--
(A) installation and lease of the equipment
used by subscribers to receive the basic
service tier, including a converter box and a
remote control unit and, if requested by the
subscriber, such addressable converter box or
other equipment as is required to access
programming described in paragraph (8); and
(B) installation and monthly use of
connections for additional television
receivers.
(4) Costs of franchise requirements.--The regulations
prescribed by the Commission under this subsection
shall include standards to identify costs attributable
to satisfying franchise requirements to support public,
educational, and governmental channels or the use of
such channels or any other services required under the
franchise.
(5) Implementation and enforcement.--The regulations
prescribed by the Commission under this subsection
shall include additional standards, guidelines, and
procedures concerning the implementation and
enforcement of such regulations, which shall include--
(A) procedures by which [cable operators]
video service providers may implement and
franchising authorities may enforce the
regulations prescribed by the Commission under
this subsection;
(B) procedures for the expeditious resolution
of disputes between [cable operators] video
service providers and franchising authorities
concerning the administration of such
regulations;
(C) standards and procedures to prevent
unreasonable charges for changes in the
subscriber's selection of services or equipment
subject to regulation under this section, which
standards shall require that charges for
changing the service tier selected shall be
based on the cost of such change and shall not
exceed nominal amounts when the system's
configuration permits changes in service tier
selection to be effected solely by coded entry
on a computer terminal or by other similarly
simple method; and
(D) standards and procedures to assure that
subscribers receive notice of the availability
of the basic service tier required under this
section.
(6) Notice.--The procedures prescribed by the
Commission pursuant to paragraph (5)(A) shall require a
[cable operator] video service provider to provide 30
days' advance notice to a franchising authority of any
increase proposed in the price to be charged for the
basic service tier.
(7) Components of basic tier subject to rate
regulation.--
(A) Minimum contents.--Each cable operator of
a cable system shall provide its subscribers a
separately available basic service tier to
which subscription is required for access to
any other tier of service. Such basic service
tier shall, at a minimum, consist of the
following:
(i) All signals carried in
fulfillment of the requirements of
sections 614 and 615.
(ii) Any public, educational, and
governmental access programming
required by the franchise of the cable
system to be provided to subscribers.
[(iii) Any signal of any television
broadcast station that is provided by
the cable operator to any subscriber,
except a signal which is secondarily
transmitted by a satellite carrier
beyond the local service area of such
station.]
(iii) Any analog signal and any
digital video signal of any television
broadcast station that is provided by
the cable operator to any subscriber,
except a signal which is secondarily
transmitted by a satellite carrier
beyond the local service area of such
station.
(B) Permitted additions to basic tier.--A
[cable operator] video service provider may add
additional video programming signals or
services to the basic service tier. Any such
additional signals or services provided on the
basic service tier shall be provided to
subscribers at rates determined under the
regulations prescribed by the Commission under
this subsection.
(8) Buy-through of other tiers prohibited.--
(A) Prohibition.--A [cable operator] video
service provider may not require the
subscription to any tier other than the basic
service tier required by paragraph (7) as a
condition of access to video programming
offered on a per channel or per program basis.
A [cable operator] video service provider may
not discriminate between subscribers to the
basic service tier and other subscribers with
regard to the rates charged for video
programming offered on a per channel or per
program basis.
(B) Exception; limitation.--The prohibition
in subparagraph (A) shall not apply to a
[cable] video service system that, by reason of
the lack of addressable converter boxes or
other technological limitations, does not
permit the [operator] provider to offer
programming on a per channel or per program
basis in the same manner required by
subparagraph (A). This subparagraph shall not
be available to any [cable operator] video
service provider after--
(i) the technology utilized by the
[cable] video service system is
modified or improved in a way that
eliminates such technological
limitation; or
(ii) 10 years after the date of
enactment of the Cable Television
Consumer Protection and Competition Act
of 1992, subject to subparagraph (C).
(C) Waiver.--If, in any proceeding initiated
at the request of any [cable operator,] video
service provider, the Commission determines
that compliance with the requirements of
subparagraph (A) would require the [cable
operator] video service provider to increase
its rates, the Commission may, to the extent
consistent with the public interest, grant such
[cable operator] video service provider a
waiver from such requirements for such
specified period as the Commission determines
reasonable and appropriate.
(c) Regulation of Unreasonable Rates.--
(1) Commission regulations.--Within 180 days after
the date of enactment of the Cable Television Consumer
Protection and Competition Act of 1992, the Commission
shall, by regulation, establish the following:
(A) criteria prescribed in accordance with
paragraph (2) for identifying, in individual
cases, rates for [cable] video service
programming services that are unreasonable;
(B) fair and expeditious procedures for the
receipt, consideration, and resolution of
complaints from any franchising authority (in
accordance with paragraph (3)) alleging that a
rate for [cable] video service programming
services charged by a [cable operator] video
service provider violates the criteria
prescribed under subparagraph (A), which
procedures shall include the minimum showing
that shall be required for a complaint to
obtain Commission consideration and resolution
of whether the rate in question is
unreasonable; and
(C) the procedures to be used to reduce rates
for [cable] video service programming services
that are determined by the Commission to be
unreasonable and to refund such portion of the
rates or charges that were paid by subscribers
after the filing of the first complaint filed
with the franchising authority under paragraph
(3) and that are determined to be unreasonable.
(2) Factors to be considered.--In establishing the
criteria for determining in individual cases whether
rates for [cable] video service programming services
are unreasonable under paragraph (1)(A), the Commission
shall consider, among other factors--
(A) the rates for similarly situated [cable]
video service systems offering comparable
[cable] video service programming services,
taking into account similarities in facilities,
regulatory and governmental costs, the number
of subscribers, and other relevant factors;
(B) the rates for [cable] video service
systems, if any, that are subject to effective
competition;
(C) the history of the rates for [cable]
video service programming services of the
system, including the relationship of such
rates to changes in general consumer prices;
(D) the rates, as a whole, for all the
[cable] video service programming, [cable]
video service equipment, and [cable services]
video services provided by the system, other
than programming provided on a per channel or
per program basis;
(E) capital and operating costs of the
[cable] video service system, including the
quality and costs of the customer service
provided by the [cable] video service system;
and
(F) the revenues (if any) received by a
[cable operator] video service provider from
advertising from programming that is carried as
part of the service for which a rate is being
established, and changes in such revenues, or
from other consideration obtained in connection
with the [cable] video service programming
services concerned.
(3) Review of rate changes.--The Commission shall
review any complaint submitted by a franchising
authority after the date of enactment of the
Telecommunications Act of 1996 concerning an increase
in rates for [cable] video service programming services
and issue a final order within 90 days after it
receives such a complaint, unless the parties agree to
extend the period for such review. A franchising
authority may not file a complaint under this paragraph
unless, within 90 days after such increase becomes
effective it receives subscriber complaints.
(4) Sunset of upper tier rate regulation.--This
subsection shall not apply to [cable] video service
programming services provided after March 31, 1999.
(d) Uniform Rate Structure Required.--A [cable operator]
video service provider shall have a rate structure, for the
provision of [cable service,] video service, that is uniform
throughout the geographic area in which [cable service] video
service is provided over its [cable] video service system. This
subsection does not apply to (1) a [cable operator] video
service provider with respect to the provision of [cable
service] video service over its [cable] video service system in
any geographic area in which the video programming services
offered by the [operator] provider in that area are subject to
effective competition, or (2) any video programming offered on
a per channel or per program basis. Bulk discounts to multiple
dwelling units shall not be subject to this subsection, except
that a [cable operator] video service provider of a [cable]
video service system that is not subject to effective
competition may not charge predatory prices to a multiple
dwelling unit. Upon a prima facie showing by a complainant that
there are reasonable grounds to believe that the discounted
price is predatory, the [cable] video service system shall have
the burden of showing that its discounted price is not
predatory.
(e) Discrimination; Services for the Hearing Impaired.--
Nothing in this title shall be construed as prohibiting any
Federal agency, State, or a franchising authority from--
(1) prohibiting discrimination among subscribers and
potential subscribers to [cable service,] video
service, except that no Federal agency, State, or
franchising authority may prohibit a [cable operator]
video service provider from offering reasonable
discounts to senior citizens or other economically
disadvantaged group discounts; or
(2) requiring and regulating the installation or
rental of equipment which facilitates the reception of
[cable service] video service by hearing impaired
individuals.
(f) Negative Option Billing Prohibited.--A [cable operator]
video service provider shall not charge a subscriber for any
service or equipment that the subscriber has not affirmatively
requested by name. For purposes of this subsection, a
subscriber's failure to refuse a [cable operator's] video
service provider's proposal to provide such service or
equipment shall not be deemed to be an affirmative request for
such service or equipment.
(g) Collection of Information.--The Commission shall, by
regulation, require [cable operators] video service providers
to file with the Commission or a franchising authority, as
appropriate, within one year after the date of enactment of the
Cable Television Consumer Protection and Competition Act of
1992 and annually thereafter, such financial information as may
be needed for purposes of administering and enforcing this
section.
(h) Prevention of Evasions.--Within 180 days after the date
of enactment of the Cable Television Consumer Protection and
Competition Act of 1992, the Commission shall, by regulation,
establish standards, guidelines, and procedures to prevent
evasions, including evasions that result from retiering, of the
requirements of this section and shall, thereafter,
periodically review and revise such standards, guidelines, and
procedures.
(i) Small System Burdens.--In developing and prescribing
regulations pursuant to this section, the Commission shall
design such regulations to reduce the administrative burdens
and cost of compliance for [cable] video service systems that
have 1,000 or fewer subscribers.
(j) Rate Regulation Agreements.--During the term of an
agreement made before July 1, 1990, by a franchising authority
and a [cable operator] video service provider providing for the
regulation of basic [cable service] video service rates, where
there was not effective competition under Commission rules in
effect on that date, nothing in this section (or the
regulations thereunder) shall abridge the ability of such
franchising authority to regulate rates in accordance with such
an agreement.
(k) Reports on Average Prices.--The Commission shall annually
publish statistical reports on the average rates for basic
[cable service] video service and other [cable] video service
programming, and for converter boxes, remote control units, and
other equipment, of--
(1) [cable] video service systems that the Commission
has found are subject to effective competition under
subsection (a)(2), compared with
(2) [cable] video service systems that the Commission
has found are not subject to such effective
competition.
(l) Definitions.--As used in this section--
(1) The term ``effective competition'' means that--
(A) fewer than 30 percent of the households
in the franchise area subscribe to the [cable
service] video service of a [cable] video
service system;
(B) the franchise area is--
(i) served by at least two
unaffiliated multichannel video
programming distributors each of which
offers comparable video programming to
at least 50 percent of the households
in the franchise area; and
(ii) the number of households
subscribing to programming services
offered by multichannel video
programming distributors other than the
largest multichannel video programming
distributor exceeds 15 percent of the
households in the franchise area;
(C) a multichannel video programming
distributor operated by the franchising
authority for that franchise area offers video
programming to at least 50 percent of the
households in that franchise area; or
(D) a local exchange carrier or its affiliate
(or any multichannel video programming
distributor using the facilities of such
carrier or its affiliate) offers video
programming services directly to subscribers by
any means (other than direct-to-home satellite
services) in the franchise area of an
unaffiliated [cable operator] video service
provider which is providing [cable service]
video service in that franchise area, but only
if the video programming services so offered in
that area are comparable to the video
programming services provided by the
unaffiliated [cable operator] video service
provider in that area.
(2) The term ``cable programming service'' means any
video programming provided over a [cable] video service
system, regardless of service tier, including
installation or rental of equipment used for the
receipt of such video programming, other than (A) video
programming carried on the basic service tier, and (B)
video programming offered on a per channel or per
program basis.
(m) Special Rules for Small Companies.--
(1) In general.--Subsections (a), (b), and (c) do not
apply to a small [cable operator] video service
provider with respect to--
(A) [cable] video service programming
services, or
(B) a basic service tier that was the only
service tier subject to regulation as of
December 31, 1994,
in any franchise area in which that [operator] provider
services 50,000 or fewer subscribers.
(2) Definition of small [cable operator] video
service provider.--For purposes of this subsection, the
term ``small [cable operator] video service provider''
means a [cable operator] video service provider that,
directly or through an affiliate, serves in the
aggregate fewer than 1 percent of all subscribers in
the United States and is not affiliated with any entity
or entities whose gross annual revenues in the
aggregate exceed $250,000,000.
(n) Treatment of Prior Year Losses.--Notwithstanding any
other provision of this section or of section 612, losses
associated with a [cable] video service system (including
losses associated with the grant or award of a franchise) that
were incurred prior to September 4, 1992, with respect to a
[cable] video service system that is owned and operated by the
original franchisee of such system shall not be disallowed, in
whole or in part, in the determination of whether the rates for
any tier of service or any type of equipment that is subject to
regulation under this section are lawful.
SEC. 624. REGULATION OF SERVICES, FACILITIES, AND EQUIPMENT.
[47 U.S.C. 544]
[(a) Any franchising authority may not regulate the services,
facilities, and equipment provided by a cable operator except
to the extent consistent with this title.
[(b) In the case of any franchise granted after the effective
date of this title, the franchising authority, to the extent
related to the establishment or operation of a cable system--
[(1) in its request for proposals for a franchise
(including requests for renewal proposals, subject to
section 626), may establish requirements for facilities
and equipment, but may not, except as provided in
subsection (h), establish requirements for video
programming or other information services; and
[(2) subject to section 625, may enforce any
requirements contained within the franchise--
[(A) for facilities and equipment; and
[(B) for broad categories of video
programming or other services.
[(c) In the case of any franchise in effect on the effective
date of this title, the franchising authority may, subject to
section 625, enforce requirements contained within the
franchise for the provision of services, facilities, and
equipment, whether or not related to the establishment or
operation of a cable system.]
[(d)] (a)(1) Nothing in this title shall be construed as
prohibiting a franchising authority and a [cable operator]
video service provider from specifying, in a franchise or
renewal thereof, that certain [cable services] video services
shall not be provided or shall be provided subject to
conditions, if such [cable services] video services are obscene
or are otherwise unprotected by the Constitution of the United
States.
(2) In order to restrict the viewing of programming which is
obscene or indecent, upon the request of a subscriber, a [cable
operator] video service provider shall provide (by sale or
lease) a device by which the subscriber can prohibit viewing of
a particular [cable service] video service during periods
selected by that subscriber.
(3)(A) If a [cable operator] video service provider provides
a premium channel without charge to [cable] video service
subscribers who do not subscribe to such premium channel, the
[cable operator] video service provider shall, not later than
30 days before such premium channel is provided without
charge--
(i) notify all [cable] video service subscribers that
the [cable operator] video service provider plans to
provide a premium channel without charge;
(ii) notify all [cable] video service subscribers
when the [cable operator] video service provider plans
to offer a premium channel without charge;
(iii) notify all [cable] video service subscribers
that they have a right to request that the channel
carrying the premium channel be blocked; and
(iv) block the channel carrying the premium channel
upon the request of a subscriber.
(B) For the purpose of this section, the term ``premium
channel'' shall mean any pay service offered on a per channel
or per program basis, which offers movies rated by the Motion
Picture Association of America as X, NC-17, or R.
[(e) Within one year after the date of enactment of the Cable
Television Consumer Protection and Competition Act of 1992, the
Commission shall prescribe regulations which establish minimum
technical standards relating to cable systems' technical
operation and signal quality. The Commission shall update such
standards periodically to reflect improvements in technology.
No State or franchising authority may prohibit, condition, or
restrict a cable system's use of any type of subscriber
equipment or any transmission technology.]
[(f)] (b)(1) Any Federal agency, State, or franchising
authority may not impose requirements regarding the provision
or content of [cable services,] video services, except as
expressly provided in this title.
(2) Paragraph (1) shall not apply to--
(A) any rule, regulation, or order issued under any
Federal law, as such rule, regulation, or order (i) was
in effect on September 21, 1983, or (ii) may be amended
after such date if the rule, regulation, or order as
amended is not inconsistent with the express provisions
of this title; and
(B) any rule, regulation, or order under title 17,
United States Code.
[(g)] (c) Notwithstanding any such rule, regulation, or
order, each [cable operator] video service provider shall
comply with such standards as the Commission shall prescribe to
ensure that viewers of video programming on [cable] video
service systems are afforded the same emergency information as
is afforded by the emergency broadcasting system pursuant to
Commission regulations in subpart G of part 73, title 47, Code
of Federal Regulations.
[(h) A franchising authority may require a cable operator to
do any one or more of the following:
[(1) Provide 30 days' advance written notice of any
change in channel assignment or in the video
programming service provided over any such channel.
[(2) Inform subscribers, via written notice, that
comments on programming and channel position changes
are being recorded by a designated office of the
franchising authority.]
[(i)] (d) Within 120 days after the date of enactment of this
subsection, the Commission shall prescribe rules concerning the
disposition, after a subscriber to a [cable] video service
system terminates service, of any cable or wire installed by
the [cable operator] video service provider within the premises
of such subscriber.A
SEC. 624A. CONSUMER ELECTRONICS EQUIPMENT COMPATIBILITY.
[47 U.S.C. 544a]
(a) Findings.--The Congress finds that--
(1) new and recent models of television receivers and
video [cassette] recorders often contain premium
features and functions that are disabled or inhibited
because of [cable] video service scrambling, encoding,
or encryption technologies and devices, including
converter boxes and remote control devices required by
[cable operators] video service providers to receive
programming;
(2) if these problems are allowed to persist,
consumers will be less likely to purchase, and
electronics equipment manufacturers will be less likely
to develop, manufacture, or offer for sale, television
receivers and video [cassette] recorders with new and
innovative features and functions;
(3) [cable operators] video service providers should
use technologies that will prevent signal thefts while
permitting consumers to benefit from such features and
functions in such receivers and recorders; and
(4) compatibility among televisions, video [cassette]
recorders, and [cable] video service systems can be
assured with narrow technical standards that mandate a
minimum degree of common design and operation, leaving
all features, functions, protocols, and other product
and service options for selection through open
competition in the market.
(b) Compatible Interfaces.--
(1) Report; regulations.--Within 1 year after the
date of enactment of this section, the Commission, in
consultation with representatives of the [cable] video
service industry and the consumer electronics industry,
shall report to Congress on means of assuring
compatibility between televisions and video [cassette]
recorders and [cable] video service systems, consistent
with the need to prevent theft of [cable service,]
video service, so that [cable] video service
subscribers will be able to enjoy the full benefit of
both the programming available on [cable] video service
systems and the functions available on their
televisions and video [cassette] recorders. Within 180
days after the date of submission of the report
required by this subsection, the Commission shall issue
such regulations as are necessary to assure such
compatibility.
(2) Scrambling and encryption.--In issuing the
regulations referred to in paragraph (1), the
Commission shall determine whether and, if so, under
what circumstances to permit [cable] video service
systems to scramble or encrypt signals or to restrict
[cable] video service systems in the manner in which
they encrypt or scramble signals, except that the
Commission shall not limit the use of scrambling or
encryption technology where the use of such technology
does not interfere with the functions of subscribers'
television receivers or video [cassette] recorders.
(c) Rulemaking Requirements.--
(1) Factors to be considered.--In prescribing the
regulations required by this section, the Commission
shall consider--
(A) the need to maximize open competition in
the market for all features, functions,
protocols, and other product and service
options of converter boxes and other [cable]
video service converters unrelated to the
descrambling or decryption of [cable] video
service television signals;
(B) the costs and benefits to consumers of
imposing compatibility requirements on [cable
operators] video service providers and
television manufacturers in a manner that,
while providing effective protection against
theft or unauthorized reception of [cable
service,] video service, will minimize
interference with or nullification of the
special functions of subscribers' television
receivers or video [cassette] recorders,
including functions that permit the
subscriber--
(i) to watch a program on one channel
while simultaneously using a video
[cassette] recorder to [tape] record a
program on another channel;
(ii) to use a video [cassette]
recorder to [tape] record two
consecutive programs that appear on
different channels; and
(iii) to use advanced television
picture generation and display
features; and
(C) the need for [cable operators] video
service providers to protect the integrity of
the signals transmitted by the [cable operator]
video service provider against theft or to
protect such signals against unauthorized
reception.
(2) Regulations required.--The regulations prescribed
by the Commission under this section shall include such
regulations as are necessary--
(A) to specify the technical requirements
with which a television receiver or video
[cassette] recorder must comply in order to be
sold as ``cable compatible'' or ``cable
ready'';
(B) to require [cable operators] video
service providers offering channels whose
reception requires a converter box--
(i) to notify subscribers that they
may be unable to benefit from the
special functions of their television
receivers and video [cassette]
recorders, including functions that
permit subscribers--
(I) to watch a program on one
channel while simultaneously
using a video [cassette]
recorder to [tape] record a
program on another channel;
(II) to use a video
[cassette] recorder to [tape]
record two consecutive programs
that appear on different
channels; and
(III) to use advanced
television picture generation
and display features; and
(ii) to the extent technically and
economically feasible, to offer
subscribers the option of having all
other channels delivered directly to
the subscribers' television receivers
or video [cassette] recorders without
passing through the converter box;
(C) to promote the commercial availability,
from [cable operators] video service providers
and retail vendors that are not affiliated with
[cable] video service systems, of converter
boxes and of remote control devices compatible
with converter boxes;
(D) to ensure that any standards or
regulations developed under the authority of
this section to ensure compatibility between
televisions, video [cassette] recorders, and
[cable] video service systems do not affect
features, functions, protocols, and other
product and service options other than those
specified in paragraph (1)(B), including
telecommunications interface equipment, home
automation communications, and computer network
services;
(E) to require a [cable operator] video
service provider who offers subscribers the
option of renting a remote control unit--
(i) to notify subscribers that they
may purchase a commercially available
remote control device from any source
that sells such devices rather than
renting it from the [cable operator;]
video service provider; and
(ii) to specify the types of remote
control units that are compatible with
the converter box supplied by the
[cable operator;] video service
provider; and
(F) to prohibit a [cable operator] video
service provider from taking any action that
prevents or in any way disables the converter
box supplied by the [cable operator] video
service provider from operating compatibly with
commercially available remote control units.
(d) Review of Regulations.--The Commission shall periodically
review and, if necessary, modify the regulations issued
pursuant to this section in light of any actions taken in
response to such regulations and to reflect improvements and
changes in [cable] video service systems, television receivers,
video [cassette] recorders, and similar technology.
[SEC. 625. MODIFICATION OF FRANCHISE OBLIGATIONS.
[47 U.S.C. 545]
[(a)(1) During the period a franchise is in effect, the cable
operator may obtain from the franchising authority
modifications of the requirements in such franchise--
[(A) in the case of any such requirement for
facilities or equipment, including public, educational,
or governmental access facilities or equipment, if the
cable operator demonstrates that (i) it is commercially
impracticable for the operator to comply with such
requirement, and (ii) the proposal by the cable
operator for modification of such requirement is
appropriate because of commercial impracticability; or
[(B) in the case of any such requirement for
services, if the cable operator demonstrates that the
mix, quality, and level of services required by the
franchise at the time it was granted will be maintained
after such modification.
[(2) Any final decision by a franchising authority under this
subsection shall be made in a public proceeding. Such decision
shall be made within 120 days after receipt of such request by
the franchising authority, unless such 120-day period is
extended by mutual agreement of the cable operator and the
franchising authority.
[(b)(1) Any cable operator whose request for modification
under subsection (a) has been denied by a final decision of a
franchising authority may obtain modification of such franchise
requirements pursuant to the provisions of section 635.
[(2) In the case of any proposed modification of a
requirement for facilities or equipment, the court shall grant
such modification only if the cable operator demonstrates to
the court that--
[(A) it is commercially impracticable for the
operator to comply with such requirement; and
[(B) the terms of the modification requested are
appropriate because of commercial impracticability.
[(3) In the case of any proposed modification of a
requirement for services, the court shall grant such
modification only if the cable operator demonstrates to the
court that the mix, quality, and level of services required by
the franchise at the time it was granted will be maintained
after such modification.
[(c) Notwithstanding subsections (a) and (b), a cable
operator may, upon 30 days' advance notice to the franchising
authority, rearrange, replace, or remove a particular cable
service required by the franchise if--
[(1) such service is no longer available to the
operator; or
[(2) such service is available to the operator only
upon the payment of a royalty required under section
801(b)(2) of title 17, United States Code, which the
cable operator can document--
[(A) is substantially in excess of the amount
of such payment required on the date of the
operator's offer to provide such service, and
[(B) has not been specifically compensated
for through a rate increase or other
adjustment.
[(d) Notwithstanding subsections (a) and (b), a cable
operator may take such actions to rearrange a particular
service from one service tier to another, or otherwise offer
the service, if the rates for all of the service tiers involved
in such actions are not subject to regulation under section
623.
[(e) A cable operator may not obtain modification under this
section of any requirement for services relating to public,
educational, or governmental access.
[(f) For purposes of this section, the term ``commercially
impracticable'' means, with respect to any requirement
applicable to a cable operator, that it is commercially
impracticable for the operator to comply with such requirement
as a result of a change in conditions which is beyond the
control of the operator and the nonoccurrence of which was a
basic assumption on which the requirement was based.
[SEC. 626. RENEWAL.
[47 U.S.C. 546]
[(a)(1) A franchising authority may, on its own initiative
during the 6-month period which begins with the 36th month
before the franchise expiration, commence a proceeding which
affords the public in the franchise area appropriate notice and
participation for the purpose of (A) identifying the future
cable-related community needs and interests, and (B) reviewing
the performance of the cable operator under the franchise
during the then current franchise term. If the cable operator
submits, during such 6-month period, a written renewal notice
requesting the commencement of such a proceeding, the
franchising authority shall commence such a proceeding not
later than 6 months after the date such notice is submitted.
[(2) The cable operator may not invoke the renewal procedures
set forth in subsections (b) through (g) unless--
[(A) such a proceeding is requested by the cable
operator by timely submission of such notice; or
[(B) such a proceeding is commenced by the
franchising authority on its own initiative.
[(b)(1) Upon completion of a proceeding under subsection (a),
a cable operator seeking renewal of a franchise may, on its own
initiative or at the request of a franchising authority, submit
a proposal for renewal.
[(2) Subject to section 624, any such proposal shall contain
such material as the franchising authority may require,
including proposals for an upgrade of the cable system.
[(3) The franchising authority may establish a date by which
such proposal shall be submitted.
[(c)(1) Upon submittal by a cable operator of a proposal to
the franchising authority for the renewal of a franchise
pursuant to subsection (b), the franchising authority shall
provide prompt public notice of such proposal and, during the
4-month period which begins on the date of the submission of
the cable operator's proposal pursuant to subsection (b), renew
the franchise or, issue a preliminary assessment that the
franchise should not be renewed and, at the request of the
operator or on its own initiative, commence an administrative
proceeding, after providing prompt public notice of such
proceeding, in accordance with paragraph (2) to consider
whether--
[(A) the cable operator has substantially complied
with the material terms of the existing franchise and
with applicable law;
[(B) the quality of the operator's service, including
signal quality, response to consumer complaints, and
billing practices, but without regard to the mix or
quality of cable services or other services provided
over the system, has been reasonable in light of
community needs;
[(C) the operator has the financial, legal, and
technical ability to provide the services, facilities,
and equipment as set forth in the operator's proposal;
and
[(D) the operator's proposal is reasonable to meet
the future cable-related community needs and interests,
taking into account the cost of meeting such needs and
interests.
[(2) In any proceeding under paragraph (1), the cable
operator shall be afforded adequate notice and the cable
operator and the franchise authority, or its designee, shall be
afforded fair opportunity for full participation, including the
right to introduce evidence (including evidence related to
issues raised in the proceeding under subsection (a)), to
require the production of evidence, and to question witnesses.
A transcript shall be made of any such proceeding.
[(3) At the completion of a proceeding under this subsection,
the franchising authority shall issue a written decision
granting or denying the proposal for renewal based upon the
record of such proceeding, and transmit a copy of such decision
to the cable operator. Such decision shall state the reasons
therefor.
[(d) Any denial of a proposal for renewal that has been
submitted in compliance with subsection (b) shall be based on
one or more adverse findings made with respect to the factors
described in subparagraphs (A) through (D) of subsection
(c)(1), pursuant to the record of the proceeding under
subsection (c). A franchising authority may not base a denial
of renewal on a failure to substantially comply with the
material terms of the franchise under subsection (c)(1)(A) or
on events considered under subsection (c)(1)(B) in any case in
which a violation of the franchise or the events considered
under subsection (c)(1)(B) occur after the effective date of
this title unless the franchising authority has provided the
operator with notice and the opportunity to cure, or in any
case in which it is documented that the franchising authority
has waived its right to object, or the cable operator gives
written notice of a failure or inability to cure and the
franchising authority fails to object within a reasonable time
after receipt of such notice.
[(e)(1) Any cable operator whose proposal for renewal has
been denied by a final decision of a franchising authority made
pursuant to this section, or has been adversely affected by a
failure of the franchising authority to act in accordance with
the procedural requirements of this section, may appeal such
final decision or failure pursuant to the provisions of section
635.
[(2) The court shall grant appropriate relief if the court
finds that--
[(A) any action of the franchising authority, other
than harmless error, is not in compliance with the
procedural requirements of this section; or
[(B) in the event of a final decision of the
franchising authority denying the renewal proposal, the
operator has demonstrated that the adverse finding of
the franchising authority with respect to each of the
factors described in subparagraphs (A) through (D) of
subsection (c)(1) on which the denial is based is not
supported by a preponderance of the evidence, based on
the record of the proceeding conducted under subsection
(c).
[(f) Any decision of a franchising authority on a proposal
for renewal shall not be considered final unless all
administrative review by the State has occurred or the
opportunity therefor has lapsed.
[(g) For purposes of this section, the term ``franchise
expiration'' means the date of the expiration of the term of
the franchise, as provided under the franchise, as it was in
effect on the date of the enactment of this title.
[(h) Notwithstanding the provisions of subsections (a)
through (g) of this section, a cable operator may submit a
proposal for the renewal of a franchise pursuant to this
subsection at any time, and a franchising authority may, after
affording the public adequate notice and opportunity for
comment, grant or deny such proposal at any time (including
after proceedings pursuant to this section have commenced). The
provisions of subsections (a) through (g) of this section shall
not apply to a decision to grant or deny a proposal under this
subsection. The denial of a renewal pursuant to this subsection
shall not affect action on a renewal proposal that is submitted
in accordance with subsections (a) through (g).
[(i) Notwithstanding the provisions of subsections (a)
through (h), any lawful action to revoke a cable operator's
franchise for cause shall not be negated by the subsequent
initiation of renewal proceedings by the cable operator under
this section.]
SEC. 625. RENEWAL; REVOCATION.
(a) Renewal.--A video service provider may submit a written
application for renewal of its franchise to a franchising
authority not more than 180 days before the franchise expires.
Any such application shall be made on the standard application
form promulgated by the Commission under section 612 and shall
be treated under section 603 in the same manner as any other
franchise application.
(b) Revocation.--Notwithstanding any other law of general
applicability, a franchising authority may revoke a video
service provider's franchise if it determines, after notice and
an opportunity for a hearing, that the video service provider
has--
(1) violated any Federal or State law, or any
Commission regulation, relating to the provision of
video services in the franchise area;
(2) made false statements, or material omissions, in
any filing with the franchising authority or the
Commission relating to the provision of video service
in the franchise area;
(3) violated the rights-of-way management laws or
regulations of any franchising authority in the
franchise area relating to the provision of video
service in the franchise area; or
(4) violated the terms of the franchise agreement
(including any commercial agreement permitted under
section 622(b)(3)).
(c) Notice; Opportunity To Cure.--A franchising authority may
not revoke a franchise unless it first provides--
(1) written notice to the video service provider of
the alleged violation in which the revocation would be
based; and
(2) a reasonable opportunity to cure the violation.
(d) Finality of Decision.--Any decision of a franchising
authority to revoke a franchise under this section is final for
purposes of appeal. A video service provider whose franchise is
revoked by a franchising authority may avail itself of the
procedures in section 635 of this Act.
[SEC. 627. CONDITIONS OF SALE.
[47 U.S.C. 547]
[(a) If a renewal of a franchise held by a cable operator is
denied and the franchising authority acquires ownership of the
cable system or effects a transfer of ownership of the system
to another person, any such acquisition or transfer shall be--
[(1) at fair market value, determined on the basis of
the cable system valued as a going concern but with no
value allocated to the franchise itself, or
[(2) in the case of any franchise existing on the
effective date of this title, at a price determined in
accordance with the franchise if such franchise
contains provisions applicable to such an acquisition
or transfer.
[(b) If a franchise held by a cable operator is revoked for
cause and the franchising authority acquires ownership of the
cable system or effects a transfer of ownership of the system
to another person, any such acquisition or transfer shall be--
[(1) at an equitable price, or
[(2) in the case of any franchise existing on the
effective date of this title, at a price determined in
accordance with the franchise if such franchise
contains provisions applicable to such an acquisition
or transfer.]
SEC. [628.] 626. DEVELOPMENT OF COMPETITION AND DIVERSITY IN VIDEO
PROGRAMMING DISTRIBUTION.
[47 U.S.C. 548]
(a) Purpose.--The purpose of this section is to promote the
public interest, convenience, and necessity by increasing
competition and diversity in the multichannel video programming
market, to increase the availability of satellite [cable] video
service programming and satellite broadcast programming to
persons in rural and other areas not currently able to receive
such programming, and to spur the development of communications
technologies.
(b) Prohibition.--It shall be unlawful for a [cable
operator,] video service provider, a satellite [cable] video
service programming vendor in which a [cable operator] video
service provider has an attributable interest, or a satellite
broadcast programming vendor to engage in unfair methods of
competition or unfair or deceptive acts or practices, the
purpose or effect of which is to hinder significantly or to
prevent any multichannel video programming distributor from
providing satellite [cable] video service programming or
satellite broadcast programming to subscribers or consumers.
(c) Regulations Required.--
(1) Proceeding required.--Within 180 days after the
date of enactment of this section, the Commission
shall, in order to promote the public interest,
convenience, and necessity by increasing competition
and diversity in the multichannel video programming
market and the continuing development of communications
technologies, prescribe regulations to specify
particular conduct that is prohibited by subsection
(b).
(2) Minimum contents of regulations.--The regulations
to be promulgated under this section shall--
(A) establish effective safeguards to prevent
a [cable operator] video service provider which
has an attributable interest in a satellite
[cable] video service programming vendor or a
satellite broadcast programming vendor from
unduly or improperly influencing the decision
of such vendor to sell, or the prices, terms,
and conditions of sale of, satellite [cable]
video service programming or satellite
broadcast programming to any unaffiliated
multichannel video programming distributor;
(B) prohibit discrimination by a satellite
[cable] video service programming vendor in
which a [cable operator] video service provider
has an attributable interest or by a satellite
broadcast programming vendor in the prices,
terms, and conditions of sale or delivery of
satellite [cable] video service programming or
satellite broadcast programming among or
between [cable] video service systems, [cable
operators,] video service providers, or other
multichannel video programming distributors, or
their agents or buying groups; except that such
a satellite [cable] video service programming
vendor in which a [cable operator] video
service provider has an attributable interest
or such a satellite broadcast programming
vendor shall not be prohibited from--
(i) imposing reasonable requirements
for creditworthiness, offering of
service, and financial stability and
standards regarding character and
technical quality;
(ii) establishing different prices,
terms, and conditions to take into
account actual and reasonable
differences in the cost of creation,
sale, delivery, or transmission of
satellite [cable] video service
programming or satellite broadcast
programming;
(iii) establishing different prices,
terms, and conditions which take into
account economies of scale, cost
savings, or other direct and legitimate
economic benefits reasonably
attributable to the number of
subscribers served by the distributor;
or
(iv) entering into an exclusive
contract that is permitted under
subparagraph (D);
(C) prohibit practices, understandings,
arrangements, and activities, including
exclusive contracts for satellite [cable] video
service programming or satellite broadcast
programming between a [cable operator] video
service provider and a satellite [cable] video
service programming vendor or satellite
broadcast programming vendor, that prevent a
multichannel video programming distributor from
obtaining such programming from any satellite
[cable] video service programming vendor in
which a [cable operator] video service provider
has an attributable interest or any satellite
broadcast programming vendor in which a [cable
operator] video service provider has an
attributable interest for distribution to
persons in areas not served by a [cable
operator] video service provider as of the date
of enactment of this section; and
(D) with respect to distribution to persons
in areas served by a [cable operator,] video
service provider, prohibit exclusive contracts
for satellite [cable] video service programming
or satellite broadcast programming between a
[cable operator] video service provider and a
satellite [cable] video service programming
vendor in which a [cable operator] video
service provider has an attributable interest
or a satellite broadcast programming vendor in
which a [cable operator] video service provider
has an attributable interest, unless the
Commission determines (in accordance with
paragraph (4)) that such contract is in the
public interest.
(3) Limitations.--
(A) Geographic limitations.--Nothing in this
section shall require any person who is engaged
in the national or regional distribution of
video programming to make such programming
available in any geographic area beyond which
such programming has been authorized or
licensed for distribution.
(B) Applicability to satellite
retransmissions.--Nothing in this section shall
apply (i) to the signal of any broadcast
affiliate of a national television network or
other television signal that is retransmitted
by satellite but that is not satellite
broadcast programming, or (ii) to any internal
satellite communication of any broadcast
network or [cable] video service network that
is not satellite broadcast programming.
(4) Public interest determinations on exclusive
contracts.--In determining whether an exclusive
contract is in the public interest for purposes of
paragraph (2)(D), the Commission shall consider each of
the following factors with respect to the effect of
such contract on the distribution of video programming
in areas that are served by a [cable operator] video
service provider:
(A) the effect of such exclusive contract on
the development of competition in local and
national multichannel video programming
distribution markets;
(B) the effect of such exclusive contract on
competition from multichannel video programming
distribution technologies other than [cable]
video service;
(C) the effect of such exclusive contract on
the attraction of capital investment in the
production and distribution of new satellite
[cable] video service programming;
(D) the effect of such exclusive contract on
diversity of programming in the multichannel
video programming distribution market; and
(E) the duration of the exclusive contract.
(5) Sunset provision.--The prohibition required by
paragraph (2)(D) shall cease to be effective [10 years
after the date of enactment of this section,] on
October 5, 2012, unless the Commission finds, in a
proceeding conducted during the [last year of such 10-
year period,] 12-month period ending on that date, that
such prohibition continues to be necessary to preserve
and protect competition and diversity in the
distribution of video programming.
(d) Adjudicatory Proceeding.--Any multichannel video
programming distributor aggrieved by conduct that it alleges
constitutes a violation of subsection (b), or the regulations
of the Commission under subsection (c), may commence an
adjudicatory proceeding at the Commission.
(e) Remedies for Violations.--
(1) Remedies authorized.--Upon completion of such
adjudicatory proceeding, the Commission shall have the
power to order appropriate remedies, including, if
necessary, the power to establish prices, terms, and
conditions of sale of programming to the aggrieved
multichannel video programming distributor.
(2) Additional remedies.--The remedies provided in
paragraph (1) are in addition to and not in lieu of the
remedies available under title V or any other provision
of this Act.
(f) Procedures.--The Commission shall prescribe regulations
to implement this section. The Commission's regulations shall--
(1) provide for an expedited review of any complaints
made pursuant to this section;
(2) establish procedures for the Commission to
collect such data, including the right to obtain copies
of all contracts and documents reflecting arrangements
and understandings alleged to violate this section, as
the Commission requires to carry out this section; and
(3) provide for penalties to be assessed against any
person filing a frivolous complaint pursuant to this
section.
(g) Reports.--The Commission shall, beginning not later than
18 months after promulgation of the regulations required by
subsection (c), annually report to Congress on the status of
competition in the market for the delivery of video
programming.
(h) Exemptions for Prior Contracts.--
(1) In general.--Nothing in this section shall affect
any contract that grants exclusive distribution rights
to any person with respect to satellite [cable] video
service programming and that was entered into on or
before June 1, 1990, except that the provisions of
subsection (c)(2)(C) shall apply for distribution to
persons in areas not served by a [cable operator.]
video service provider.
(2) Limitation on renewals.--A contract that was
entered into on or before June 1, 1990, but that is
renewed or extended after the date of enactment of this
section shall not be exempt under paragraph (1).
(i) Definitions.--As used in this section:
(1) The term ``satellite [cable] video service
programming'' has the meaning provided under section
705 of this Act, except that such term does not include
satellite broadcast programming.
(2) The term ``satellite [cable] video service
programming vendor'' means a person engaged in the
production, creation, or wholesale distribution for
sale of satellite [cable] video service programming,
but does not include a satellite broadcast programming
vendor.
(3) The term ``satellite broadcast programming''
means broadcast video programming when such programming
is retransmitted by satellite and the entity
retransmitting such programming is not the broadcaster
or an entity performing such retransmission on behalf
of and with the specific consent of the broadcaster.
(4) The term ``satellite broadcast programming
vendor'' means a fixed service satellite carrier that
provides service pursuant to section 119 of title 17,
United States Code, with respect to satellite broadcast
programming.
(j) Common Carriers.--Any provision that applies to a [cable
operator] video service provider under this section shall apply
to a common carrier or its affiliate that provides video
programming by any means directly to subscribers. Any such
provision that applies to a satellite [cable] video service
programming vendor in which a [cable operator] video service
provider has an attributable interest shall apply to any
satellite [cable] video service programming vendor in which
such common carrier has an attributable interest. For the
purposes of this subsection, two or fewer common officers or
directors shall not by itself establish an attributable
interest by a common carrier in a satellite [cable] video
service programming vendor (or its parent company).
SEC. [629.] 627. COMPETITIVE AVAILABILITY OF NAVIGATION DEVICES.
[47 U.S.C. 549]
(a) Commercial Consumer Availability of Equipment Used To
Access Services Provided by Multichannel Video Programming
Distributors.--The Commission shall, in consultation with
appropriate industry standard-setting organizations, adopt
regulations to assure the commercial availability, to consumers
of multichannel video programming and other services offered
over multichannel video programming systems, of converter
boxes, interactive communications equipment, and other
equipment used by consumers to access multichannel video
programming and other services offered over multichannel video
programming systems, from manufacturers, retailers, and other
vendors not affiliated with any multichannel video programming
distributor. Such regulations shall not prohibit any
multichannel video programming distributor from also offering
converter boxes, interactive communications equipment, and
other equipment used by consumers to access multichannel video
programming and other services offered over multichannel video
programming systems, to consumers, if the system [operator's]
provider's charges to consumers for such devices and equipment
are separately stated and not subsidized by charges for any
such service.
(b) Protection of System Security.--The Commission shall not
prescribe regulations under subsection (a) which would
jeopardize security of multichannel video programming and other
services offered over multichannel video programming systems,
or impede the legal rights of a provider of such services to
prevent theft of service.
(c) Waiver.--The Commission shall waive a regulation adopted
under subsection (a) for a limited time upon an appropriate
showing by a provider of multichannel video programming and
other services offered over multichannel video programming
systems, or an equipment provider, that such waiver is
necessary to assist the development or introduction of a new or
improved multichannel video programming or other service
offered over multichannel video programming systems,
technology, or products. Upon an appropriate showing, the
Commission shall grant any such waiver request within 90 days
of any application filed under this subsection, and such waiver
shall be effective for all service providers and products in
that category and for all providers of services and products.
(d) Avoidance of Redundant Regulations.--
(1) Commercial availability determinations.--
Determinations made or regulations prescribed by the
Commission with respect to commercial availability to
consumers of converter boxes, interactive
communications equipment, and other equipment used by
consumers to access multichannel video programming and
other services offered over multichannel video
programming systems, before the date of enactment of
the Telecommunications Act of 1996 shall fulfill the
requirements of this section.
(2) Regulations.--Nothing in this section affects
section 64.702(e) of the Commission's regulations (47
C.F.R. 64.702(e)) or other Commission regulations
governing interconnection and competitive provision of
customer premises equipment used in connection with
basic common carrier communications services.
(e) Sunset.--The regulations adopted under this section shall
cease to apply when the Commission determines that--
(1) the market for the multichannel video programming
distributors is fully competitive;
(2) the market for converter boxes, and interactive
communications equipment, used in conjunction with that
service is fully competitive; and
(3) elimination of the regulations would promote
competition and the public interest.
(f) Commission's Authority.--Nothing in this section shall be
construed as expanding or limiting any authority that the
Commission may have under law in effect before the date of
enactment of the Telecommunications Act of 1996.
SEC. 628. ACCESS TO PROGRAMMING FOR SHARED FACILITIES.
(a) In General.--A video service programming vendor in which
a video service provider has an attributable interest may not
deny a video service provider with a franchise under this title
access to video programming solely because that video service
provider uses a headend for its video service system that is
also used, under a shared ownership or leasing agreement, as
the headend for another video service system.
(b) Video Service Programming Vendor Defined.--The term
``video service programming vendor'' means a person engaged in
the production, creation, or wholesale distribution for sale of
video programming that is primarily intended for receipt by
video service providers for retransmission to their video
service subscribers.
PART IV--MISCELLANEOUS PROVISIONS
SEC. 631. PROTECTION OF SUBSCRIBER PRIVACY.
[47 U.S.C. 551]
(a)(1) At the time of entering into an agreement to provide
any [cable service] video service or other service to a
subscriber and at least once a year thereafter, a [cable
operator] video service provider shall provide notice in the
form of a separate, written statement to such subscriber which
clearly and conspicuously informs the subscriber of--
(A) the nature of personally identifiable information
collected or to be collected with respect to the
subscriber and the nature of the use of such
information;
(B) the nature, frequency, and purpose of any
disclosure which may be made of such information,
including an identification of the types of persons to
whom the disclosure may be made;
(C) the period during which such information will be
maintained by the [cable operator;] video service
provider;
(D) the times and place at which the subscriber may
have access to such information in accordance with
subsection (d); and
(E) the limitations provided by this section with
respect to the collection and disclosure of information
by a [cable operator] video service provider and the
right of the subscriber under subsections (f) and (h)
to enforce such limitations.
In the case of subscribers who have entered into such an
agreement before the effective date of this section, such
notice shall be provided within 180 days of such date and at
least once a year thereafter.
(2) For purposes of this section, other than subsection (h)--
(A) the term ``personally identifiable information''
does not include any record of aggregate data which
does not identify particular persons;
(B) the term ``other service'' includes any wire or
radio communications service provided using any of the
facilities of a [cable operator] video service provider
that are used in the provision of [cable service;]
video service; and
(C) the term ``[cable operator] video service
provider'' includes, in addition to persons within the
definition of [cable operator] video service provider
in section 602, any person who (i) is owned or
controlled by, or under common ownership or control
with, a [cable operator,] video service provider, and
(ii) provides any wire or radio communications service.
(b)(1) Except as provided in paragraph (2), a [cable
operator] video service provider shall not use the [cable]
video service system to collect personally identifiable
information concerning any subscriber without the prior written
or electronic consent of the subscriber concerned.
(2) A [cable operator] video service provider may use the
[cable] video service system to collect such information in
order to--
(A) obtain information necessary to render a [cable
service] video service or other service provided by the
[cable operator] video service provider to the
subscriber; or
(B) detect unauthorized reception of [cable] video
service communications.
(c)(1) Except as provided in paragraph (2), a [cable
operator] video service provider shall not disclose personally
identifiable information concerning any subscriber without the
prior written or electronic consent of the subscriber concerned
and shall take such actions as are necessary to prevent
unauthorized access to such information by a person other than
the subscriber or [cable operator.] video service provider.
(2) A [cable operator] video service provider may disclose
such information if the disclosure is--
(A) necessary to render, or conduct a legitimate
business activity related to, a [cable service] video
service or other service provided by the [cable
operator] video service provider to the subscriber;
(B) subject to subsection (h), made pursuant to a
court order authorizing such disclosure, if the
subscriber is notified of such order by the person to
whom the order is directed;
(C) a disclosure of the names and addresses of
subscribers to any [cable service] video service or
other service, if--
(i) the [cable operator] video service
provider has provided the subscriber the
opportunity to prohibit or limit such
disclosure, and
(ii) the disclosure does not reveal, directly
or indirectly, the--
(I) extent of any viewing or other
use by the subscriber of a [cable
service] video service or other service
provided by the [cable operator,] video
service provider, or
(II) the nature of any transaction
made by the subscriber over the [cable]
video service system of the [cable
operator;] video service provider; or
(D) to a government entity as authorized under
chapters 119, 121, or 206 of title 18, United States
Code, except that such disclosure shall not include
records revealing [cable] video service subscriber
selection of video programming from a [cable operator.]
video service provider.
(d) A [cable] video service subscriber shall be provided
access to all personally identifiable information regarding
that subscriber which is collected and maintained by a [cable
operator.] video service provider. Such information shall be
made available to the subscriber at reasonable times and at a
convenient place designated by such [cable operator.] video
service provider. A [cable] video service subscriber shall be
provided reasonable opportunity to correct any error in such
information.
(e) A [cable operator] video service provider shall destroy
personally identifiable information if the information is no
longer necessary for the purpose for which it was collected and
there are no pending requests or orders for access to such
information under subsection (d) or pursuant to a court order.
(f)(1) Any person aggrieved by any act of a [cable operator]
video service provider in violation of this section may bring a
civil action in a United States district court.
(2) The court may award--
(A) actual damages but not less than liquidated
damages computed at the rate of $100 a day for each day
of violation or $1,000, whichever is higher;
(B) punitive damages; and
(C) reasonable attorneys' fees and other litigation
costs reasonably incurred.
(3) The remedy provided by this section shall be in addition
to any other lawful remedy available to a [cable] video service
subscriber.
(g) Nothing in this title shall be construed to prohibit any
State or any franchising authority from enacting or enforcing
laws consistent with this section for the protection of
subscriber privacy.
(h) Except as provided in subsection (c)(2)(D), a
governmental entity may obtain personally identifiable
information concerning a [cable] video service subscriber
pursuant to a court order only if, in the court proceeding
relevant to such court order--
(1) such entity offers clear and convincing evidence
that the subject of the information is reasonably
suspected of engaging in criminal activity and that the
information sought would be material evidence in the
case; and
(2) the subject of the information is afforded the
opportunity to appear and contest such entity's claim.
[SEC. 632. CONSUMER PROTECTION AND CUSTOMER SERVICE.
[47 U.S.C. 552]
[(a) Franchising Authority Enforcement.--A franchising
authority may establish and enforce--
[(1) customer service requirements of the cable
operator ; and
[(2) construction schedules and other construction-
related requirements, including construction-related
performance requirements, of the cable operator .
[(b) Commission Standards.--The Commission shall, within 180
days of enactment of the Cable Television Consumer Protection
and Competition Act of 1992, establish standards by which cable
operators may fulfill their customer service requirements. Such
standards shall include, at a minimum, requirements governing--
[(1) cable system office hours and telephone
availability;
[(2) installations, outages, and service calls; and
[(3) communications between the cable operator and
the subscriber (including standards governing bills and
refunds).
[(c) Subscriber Notice.--A cable operator may provide notice
of service and rate changes to subscribers using any reasonable
written means at its sole discretion. Notwithstanding section
623(b)(6) or any other provision of this Act, a cable operator
shall not be required to provide prior notice of any rate
change that is the result of a regulatory fee, franchise fee,
or any other fee, tax, assessment, or charge of any kind
imposed by any Federal agency, State, or franchising authority
on the transaction between the operator and the subscriber.
[(d) Consumer Protection Laws and Customer Service
Agreements.--
[(1) Consumer protection laws.--Nothing in this title
shall be construed to prohibit any State or any
franchising authority from enacting or enforcing any
consumer protection law, to the extent not specifically
preempted by this title.
[(2) Customer service requirement agreements.--
Nothing in this section shall be construed to preclude
a franchising authority and a cable operator from
agreeing to customer service requirements that exceed
the standards established by the Commission under
subsection (b). Nothing in this title shall be
construed to prevent the establishment or enforcement
of any municipal law or regulation, or any State law,
concerning customer service that imposes customer
service requirements that exceed the standards set by
the Commission under this section, or that addresses
matters not addressed by the standards set by the
Commission under this section.]
SEC. 632. CONSUMER PROTECTION AND CUSTOMER SERVICE.
(a) Regulations.--
(1) In general.--Not later than 120 days after the
date of enactment of the Video Competition and Savings
for Consumers Act of 2006, the Commission, after
receiving comments from interested parties, including
national associations representing franchising
authorities or consumers, shall promulgate regulations,
which shall include penalties to be paid to subscribers
with respect to customer service and consumer
protection requirements for video service providers.
(2) Effective date of regulations.--The regulations
required by subsection (a) shall take effect 60 days
after the date on which a final rule is promulgated by
the Commission.
(b) Maximum Penalty for Early Termination of Subscription.--
It is unlawful for a video service provider to charge a
subscriber an amount in excess of 1 month's subscription fee as
a penalty or service charge for terminating a subscription to
the video service provider's service before the date on which
the subscription term ends.
(c) Enforcement.--The regulations promulgated by the
Commission under subsection (a) and the provisions of
subsection (b) shall be enforced by franchising authorities. A
franchising authority may refer a matter for enforcement to the
State attorney general or the State consumer protection agency
on a case-by-case basis.
(d) Review by Commission.--A video service provider may
appeal any enforcement action taken against that provider by a
franchising authority to the Commission.
SEC. 633. UNAUTHORIZED RECEPTION OF [CABLE] VIDEO SERVICE.
[47 U.S.C. 553]
(a)(1) No person shall intercept or receive or assist in
intercepting or receiving any communications service offered
over a [cable] video service system, unless specifically
authorized to do so by a [cable operator] video service
provider or as may otherwise be specifically authorized by law.
(2) For the purpose of this section, the term ``assist in
intercepting or receiving'' shall include the manufacture or
distribution of equipment intended by the manufacturer or
distributor (as the case may be) for unauthorized reception of
any communications service offered over a [cable] video service
system in violation of subparagraph (1).
(b)(1) Any person who willfully violates subsection (a)(1)
shall be fined not more than $1,000 or imprisoned for not more
than 6 months, or both.
(2) Any person who violates subsection (a)(1) willfully and
for purposes of commercial advantage or private financial gain
shall be fined not more than $50,000 or imprisoned for not more
than 2 years, or both, for the first such offense and shall be
fined not more than $100,000 or imprisoned for not more than 5
years, or both, for any subsequent offense.
(3) For purposes of all penalties and remedies established
for violations of subsection (a)(1), the prohibited activity
established herein as it applies to each such device shall be
deemed a separate violation.
(c)(1) Any person aggrieved by any violation of subsection
(a)(1) may bring a civil action in a United States district
court or in any other court of competent jurisdiction.
(2) The court may--
(A) grant temporary and final injunctions on such
terms as it may deem reasonable to prevent or restrain
violations of subsection (a)(1);
(B) award damages as described in paragraph (3); and
(C) direct the recovery of full costs, including
awarding reasonable attorneys' fees to an aggrieved
party who prevails.
(3)(A) Damages awarded by any court under this section shall
be computed in accordance with either of the following clauses:
(i) the party aggrieved may recover the actual
damages suffered by him as a result of the violation
and any profits of the violator that are attributable
to the violation which are not taken into account in
computing the actual damages; in determining the
violator's profits, the party aggrieved shall be
required to prove only the violator's gross revenue,
and the violator shall be required to prove his
deductible expenses and the elements of profit
attributable to factors other than the violation; or
(ii) the party aggrieved may recover an award of
statutory damages for all violations involved in the
action, in a sum of not less than $250 or more than
$10,000 as the court considers just.
(B) In any case in which the court finds that the violation
was committed willfully and for purposes of commercial
advantage or private financial gain, the court in its
discretion may increase the award of damages, whether actual or
statutory under subparagraph (A), by an amount of not more than
$50,000.
(C) In any case where the court finds that the violator was
not aware and had no reason to believe that his acts
constituted a violation of this section, the court in its
discretion may reduce the award of damages to a sum of not less
than $100.
(D) Nothing in this title shall prevent any State or
franchising authority from enacting or enforcing laws,
consistent with this section, regarding the unauthorized
interception or reception of any [cable service] video service
or other communications service.
SEC. 634. EQUAL EMPLOYMENT OPPORTUNITY.
[47 U.S.C. 554]
(a) This section shall apply to any corporation, partnership,
association, joint-stock company, or trust engaged primarily in
the management or operation of any [cable] video service
system.
(b) Equal opportunity in employment shall be afforded by each
entity specified in subsection (a), and no person shall be
discriminated against in employment by such entity because of
race, color, religion, national origin, age, or sex.
(c) Any entity specified in subsection (a) shall establish,
maintain, and execute a positive continuing program of specific
practices designed to ensure equal opportunity in every aspect
of its employment policies and practices. Under the terms of
its program, each such entity shall--
(1) define the responsibility of each level of
management to ensure a positive application and
vigorous enforcement of its policy of equal
opportunity, and establish a procedure to review and
control managerial and supervisory performance;
(2) inform its employees and recognized employee
organizations of the equal employment opportunity
policy and program and enlist their cooperation;
(3) communicate its equal employment opportunity
policy and program and its employment needs to sources
of qualified applicants without regard to race, color,
religion, national origin, age, or sex, and solicit
their recruitment assistance on a continuing basis;
(4) conduct a continuing program to exclude every
form of prejudice or discrimination based on race,
color, religion, national origin, age, or sex, from its
personnel policies and practices and working
conditions; and
(5) conduct a continuing review of job structure and
employment practices and adopt positive recruitment,
training, job design, and other measures needed to
ensure genuine equality of opportunity to participate
fully in all its organizational units, occupations, and
levels of responsibility.
(d)(1) Not later than 270 days after the date of enactment of
the Cable Television Consumer Protection and Competition Act of
1992, and after notice and opportunity for hearing, the
Commission shall prescribe revisions in the rules under this
section in order to implement the amendments made to this
section by such Act. Such revisions shall be designed to
promote equality of employment opportunities for females and
minorities in each of the job categories itemized in paragraph
(3).
(2) Such rules shall specify the terms under which an entity
specified in subsection (a) shall, to the extent possible--
(A) disseminate its equal opportunity program to job
applicants, employees, and those with whom it regularly
does business;
(B) use minority organizations, organizations for
women, media, educational institutions, and other
potential sources of minority and female applicants, to
supply referrals whenever jobs are available in its
operation;
(C) evaluate its employment profile and job turnover
against the availability of minorities and women in its
franchise area;
(D) undertake to offer promotions of minorities and
women to positions of greater responsibility;
(E) encourage minority and female entrepreneurs to
conduct business with all parts of its operation; and
(F) analyze the results of its efforts to recruit,
hire, promote, and use the services of minorities and
women and explain any difficulties encountered in
implementing its equal employment opportunity program.
(3)(A) Such rules also shall require an entity specified in
subsection (a) with more than 5 full-time employees to file
with the Commission an annual statistical report identifying by
race, sex, and job title the number of employees in each of the
following full-time and part-time job categories:
(i) Corporate officers.
(ii) General Manager.
(iii) Chief Technician.
(iv) Comptroller.
(v) General Sales Manager.
(vi) Production Manager.
(vii) Managers.
(viii) Professionals.
(ix) Technicians.
(x) Sales Personnel.
(xi) Office and Clerical Personnel.
(xii) Skilled Craftspersons.
(xiii) Semiskilled Operatives.
(xiv) Unskilled Laborers.
(xv) Service Workers.
(B) The report required by subparagraph (A) shall be made on
separate forms, provided by the Commission, for full-time and
part-time employees. The Commission's rules shall sufficiently
define the job categories listed in clauses (i) through (vi) of
such subparagraph so as to ensure that only employees who are
principal decisionmakers and who have supervisory authority are
reported for such categories. The Commission shall adopt rules
that define the job categories listed in clauses (vii) through
(xv) in a manner that is consistent with the Commission
policies in effect on June 1, 1990. The Commission shall
prescribe the method by which entities shall be required to
compute and report the number of minorities and women in the
job categories listed in clauses (i) through (x) and the number
of minorities and women in the job categories listed in clauses
(i) through (xv) in proportion to the total number of qualified
minorities and women in the relevant labor market. The report
shall include information on hiring, promotion, and recruitment
practices necessary for the Commission to evaluate the efforts
of entities to comply with the provisions of paragraph (2) of
this subsection. The report shall be available for public
inspection at the entity's central location and at every
location where 5 or more full-time employees are regularly
assigned to work. Nothing in this subsection shall be construed
as prohibiting the Commission from collecting or continuing to
collect statistical or other employment information in a manner
that it deems appropriate to carry out this section.
(4) The Commission may amend such rules from time to time to
the extent necessary to carry out the provisions of this
section. Any such amendment shall be made after notice and
opportunity for comment.
(e)(1) On an annual basis, the Commission shall certify each
entity described in subsection (a) as in compliance with this
section if, on the basis of information in the possession of
the Commission, including the report filed pursuant to
subsection (d)(3), such entity was in compliance, during the
annual period involved, with the requirements of subsections
(b), (c), and (d).
(2) The Commission shall, periodically but not less
frequently than every five years, investigate the employment
practices of each entity described in subsection (a), in the
aggregate, as well as in individual job categories, and
determine whether such entity is in compliance with the
requirements of subsections (b), (c), and (d), including
whether such entity's employment practices deny or abridge
women and minorities equal employment opportunities. As part of
such investigation, the Commission shall review whether the
entity's reports filed pursuant to subsection (d)(3) accurately
reflect employee responsibilities in the reported job
classification.
(f)(1) If the Commission finds after notice and hearing that
the entity involved has willfuly or repeatedly without good
cause failed to comply with the requirements of this section,
such failure shall constitute a substantial failure to comply
with this title. The failure to obtain certification under
subsection (e) shall not itself constitute the basis for a
determination of substantial failure to comply with this title.
For purposes of this paragraph, the term ``repeatedly'', when
used with respect to failures to comply, refers to 3 or more
failures during any 7-year period.
(2) Any person who is determined by the Commission, through
an investigation pursuant to subsection (e) or otherwise, to
have failed to meet or failed to make best efforts to meet the
requirements of this section, or rules under this section,
shall be liable to the United States for a forefeiture penalty
of $500 for each violation. Each day of a continuing violation
shall constitute a separate offense. Any entity defined in
subsection (a) shall not be liable for more than 180 days of
forfeitures which accrued prior to notification by the
Commission of a potential violation. Nothing in this paragraph
shall limit the forfeiture imposed on any person as a result of
any violation that continues subsequent to such notification.
In addition, any person liable for such penalty may also have
any license under this Act for [cable] video service auxiliary
relay service suspended until the Commission determines that
the failure involved has been corrected. Whoever knowingly
makes any false statement or submits documentation which he
knows to be false, pursuant to an application for certification
under this section shall be in violation of this section.
(3) The provisions of paragraphs (3) and (4), and the last 2
sentences of paragraph (2), of section 503(b) shall apply to
forfeitures under this subsection.
(4) The Commission shall provide for notice to the public and
appropriate franchising authorities of any penalty imposed
under this section.
(g) Employees or applicants for employment who believe they
have been discriminated against in violation of the
requirements of this section, or rules under this section, or
any other interested person, may file a complaint with the
Commission. A complaint by any such person shall be in writing,
and shall be signed and sworn to by that person. The
regulations under subsection (d)(1) shall specify a program,
under authorities otherwise available to the Commission, for
the investigation of complaints and violations, and for the
enforcement of this section.
(h)(1) For purposes of this section, the term ``[cable
operator] video service provider'' includes any [operator]
provider of any satellite master antenna television system,
including a system described in section 602(7)(A) and any
multichannel video programming distributor.
(2) Such term does not include any [operator] provider of a
system which, in the aggregate, serves fewer than 50
subscribers.
(3) In any case in which a [cable operator] video service
provider is the owner of a multiple unit dwelling, the
requirements of this section shall only apply to such [cable
operator] video service provider with respect to its employees
who are primarily engaged in [cable] video service
telecommunications.
(i)(1) Nothing in this section shall affect the authority of
any State or any franchising authority--
(A) to establish or enforce any requirement which is
consistent with the requirements of this section,
including any requirement which affords equal
employment opportunity protection for employees;
(B) to establish or enforce any provision requiring
or encouraging any [cable operator] video service
provider to conduct business with enterprises which are
owned or controlled by members of minority groups (as
defined in section 309(i)(3)(C)(ii) or which have their
principal operations located within the community
served by the [cable operator;] video service provider;
or
(C) to enforce any requirement of a franchise in
effect on the effective date of this title.
(2) The remedies and enforcement provisions of this section
are in addition to, and not in lieu of, those available under
this or any other law.
(3) The provisions of this section shall apply to any [cable
operator,] video service provider, whether operating pursuant
to a franchise granted before, on, or after the date of the
enactment of this section.
SEC. 635. JUDICIAL PROCEEDINGS.
[47 U.S.C. 555]
(a) Any [cable operator] video service provider adversely
affected by any final determination made by a franchising
authority under section 621(a)(1), 625 or 626 may commence an
action within 120 days after receiving notice of such
determination, which may be brought in--
(1) the district court of the United States for any
judicial district in which the [cable] video service
system is located; or
(2) in any State court of general jurisdiction having
jurisdiction over the parties.
(b) The court may award any appropriate relief consistent
with the provisions of the relevant section described in
subsection (a) and with the provisions of subsection (a).
(c)(1) Notwithstanding any other provision of law, any civil
action challenging the constitutionality of section 614 or 615
of this Act or any provision thereof shall be heard by a
district court of three judges convened pursuant to the
provisions of section 2284 of title 28, United States Code.
(2) Notwithstanding any other provision of law, an
interlocutory or final judgment, decree, or order of the court
of three judges in an action under paragraph (1) holding
section 614 or 615 of this Act or any provision thereof
unconstitutional shall be reviewable as a matter of right by
direct appeal to the Supreme Court. Any such appeal shall be
filed not more than 20 days after entry of such judgment,
decree, or order.A
SEC. [635A.] 636 LIMITATION OF FRANCHISING AUTHORITY LIABILITY.
[47 U.S.C. 555a]
(a) Suits for Damages Prohibited.--In any court proceeding
pending on or initiated after the date of enactment of this
section involving any claim against a franchising authority or
other governmental entity, or any official, member, employee,
or agent of such authority or entity, arising from the
regulation of [cable service] video service or from a decision
of approval or disapproval with respect to a grant, renewal,
transfer, or amendment of a franchise, any relief, to the
extent such relief is required by any other provision of
Federal, State, or local law, shall be limited to injunctive
relief and declaratory relief.
(b) Exception for Completed Cases.--The limitation contained
in subsection (a) shall not apply to actions that, prior to
such violation, have been determined by a final order of a
court of binding jurisdiction, no longer subject to appeal, to
be in violation of a [cable operator's] video service
provider's rights.
(c) Discrimination Claims Permitted.--Nothing in this section
shall be construed as limiting the relief authorized with
respect to any claim against a franchising authority or other
governmental entity, or any official, member, employee, or
agent of such authority or entity, to the extent such claim
involves discrimination on the basis of race, color, sex, age,
religion, national origin, or handicap.
(d) Rule of Construction.--Nothing in this section shall be
construed as creating or authorizing liability of any kind,
under any law, for any action or failure to act relating to
[cable service] video service or the granting of a franchise by
any franchising authority or other governmental entity, or any
official, member, employee, or agent of such authority or
entity.
[SEC. 636. COORDINATION OF FEDERAL, STATE, AND LOCAL AUTHORITY.
[47 U.S.C. 556]
[(a) Nothing in this title shall be construed to affect any
authority of any State, political subdivision, or agency
thereof, or franchising authority, regarding matters of public
health, safety, and welfare, to the extent consistent with the
express provisions of this title.
[(b) Nothing in this title shall be construed to restrict a
State from exercising jurisdiction with regard to cable
services consistent with this title.
[(c) Except as provided in section 637, any provision of law
of any State, political subdivision, or agency thereof, or
franchising authority, or any provision of any franchise
granted by such authority, which is inconsistent with this Act
shall be deemed to be preempted and superseded.
[(d) For purposes of this section, the term ``State'' has the
meaning given such term in section 3.
[SEC. 637. EXISTING FRANCHISES.
[47 U.S.C. 557]
[(a) The provisions of--
[(1) any franchise in effect on the effective date of
this title, including any such provisions which relate
to the designation, use, or support for the use of
channel capacity for public, educational, or
governmental use, and
[(2) any law of any State (as defined in section 3)
in effect on the date of the enactment of this section,
or any regulation promulgated pursuant to such law,
which relates to such designation, use or support of
such channel capacity,
shall remain in effect, subject to the express provisions of
this title, and for not longer than the then current remaining
term of the franchise as such franchise existed on such
effective date.
[(b) For purposes of subsection (a) and other provisions of
this title, a franchise shall be considered in effect on the
effective date of this title if such franchise was granted on
or before such effective date.]
SEC. [638.] 637. CRIMINAL AND CIVIL LIABILITY.
[47 U.S.C. 558]
Nothing in this title shall be deemed to affect the criminal
or civil liability of [cable] video service programmers or
[cable operators] video service providers pursuant to the
Federal, State, or local law of libel, slander, obscenity,
incitement, invasions of privacy, false or misleading
advertising, or other similar laws, except that [cable
operators] video service providers shall not incur any such
liability for any program carried on any channel designated for
public, educational, governmental use or on any other channel
obtained under section 612 or under similar arrangements unless
the program involves obscene material.
SEC. [639.] 638. OBSCENE PROGRAMMING.
[47 U.S.C. 559]
Whoever transmits over any [cable] video service system any
matter which is obscene or otherwise unprotected by the
Constitution of the United States shall be fined under title
18, United States Code, or imprisoned not more than 2 years, or
both.
SEC. [640.] 639. SCRAMBLING OF [CABLE] VIDEO CHANNELS FOR
NONSUBSCRIBERS.
[47 U.S.C. 560]
(a) Subscriber Request.--Upon request by a [cable service]
video service subscriber, a [cable operator] video service
provider shall, without charge, fully scramble or otherwise
fully block the audio and video programming of each channel
carrying such programming so that one not a subscriber does not
receive it.
(b) Definition.--As used in this section, the term
``scramble'' means to rearrange the content of the signal of
the programming so that the programming cannot be viewed or
heard in an understandable manner.
SEC. [641.] 640. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
[47 U.S.C. 561]
(a) Requirement.--In providing sexually explicit adult
programming or other programming that is indecent on any
channel of its service primarily dedicated to sexually-oriented
programming, a multichannel video programming distributor shall
fully scramble or otherwise fully block the video and audio
portion of such channel so that one not a subscriber to such
channel or programming does not receive it.
(b) Implementation.--Until a multichannel video programming
distributor complies with the requirement set forth in
subsection (a), the distributor shall limit the access of
children to the programming referred to in that subsection by
not providing such programming during the hours of the day (as
determined by the Commission) when a significant number of
children are likely to view it.
(c) Definition.--As used in this section, the term
``scramble'' means to rearrange the content of the signal of
the programming so that the programming cannot be viewed or
heard in an understandable manner.
SEC. 641. REDLINING.
(a) In General.--A video service provider may not deny access
to its video service to any group of potential residential
video service subscribers because of the income, race, or
religion of that group.
(b) Enforcement.--
(1) State attorney general enforcement.--This section
may be enforced by the State attorney general through a
complaint-initiated adjudication process under which a
complaint may be filed by a resident of the franchising
area who is aggrieved by a violation of subsection (a)
or by a franchising authority on behalf of residents of
its franchise area. Within 180 days after receiving the
resident's or franchising authority's complaint, a
State attorney general shall act on such a complaint
either by filing a complaint with a court of competent
jurisdiction or notifying the resident or franchising
authority that the State attorney general will not file
such a complaint.
(2) Evaluation of complaint.--The totality of the
video service provider's deployments in its service
areas shall be considered in any adjudication pursuant
to an enforcement action under this subsection.
(c) Remedies.--If a court determines that a video service
provider has violated subsection (a) it--
(1) shall ensure that the video service provider
remedies any violation of subsection (a); and
(2) may assess a civil penalty in such amount as may
be authorized under State law for the franchising area
in which the violation occurred for violation of that
State's antidiscrimination laws.
(d) Limitations.--
(1) Natural and technological barriers.--It is not a
violation of subsection (a) if video service is denied
because technical feasibility, commercial feasibility,
operational limitations, or physical barriers preclude
the effective provision of video service.
(2) Quotas, goals, or timetables.--Nothing in this
section authorizes the use of quotas, goals, or
timetables as a remedy.
(e) Reports.--
(1) Annual reports to commission.--Beginning 3 years
after the date of enactment of the Video Competition
and Savings for Consumers Act of 2006, each franchising
authority shall report to the Commission on video
service provider deployment in its franchise area. The
Commission shall develop and make available to
franchising authorities a standardized, electronic
data-based, report form to be used in complying with
the requirements of this paragraph. A video service
provider shall provide such information to the
franchising authority as is needed to complete the
report.
(2) Commission report to congress.--Beginning 4 years
after the date of enactment of the Video Competition
and Savings for Consumers Act of 2006, and every 4
years thereafter, the Commission shall report to the
Senate Committee on Commerce, Science, and
Transportation and the House of Representatives
Committee on Energy and Commerce on the buildout of
video service.
SEC. 642. IP-ENABLED VIDEO SERVICE.
(a) In General.--Notwithstanding any other provision of law,
IP-enabled video service is an interstate service and is
subject only to Federal regulations.
(b) IP-enabled Video Service Defined.--In this section, the
term ``IP-enabled video service'' means a video service
provided over the public Internet utilizing Internet protocol,
or any successor protocol that is not offered by, or not
offered as part of a package of video services offered by, a
video service provider or its affiliate.
(c) Commission Authority.--The commission may not impose any
rule on, apply any regulation to, or otherwise regulate the
offering or provision of IP-enabled video service.
(d) Law Enforcement.--Nothing in this section shall be
construed to interfere with any lawful activity of a law
enforcement agency or to limit the application of any law the
violation of which is punishable by a fine, imprisonment, or
both.
(e) No Effect on Tax Laws.--Nothing in this section shall be
construed to modify, impair, supersede, or authorize the
modification, impairment, or supersession of, any State or
local tax law.
TITLE VII--MISCELLANEOUS PROVISIONS
SEC. 705. UNAUTHORIZED PUBLICATION OR USE OF COMMUNICATIONS.
[47 U.S.C. 605]
(a) Practices Prohibited.--Except as authorized by chapter
119, title 18, United States Code, no person receiving,
assisting in receiving, transmitting, or assisting in
transmitting, any interstate or foreign communication by wire
or radio shall divulge or publish the existence, contents,
substance, purport, effect, or meaning thereof, except through
authorized channels of transmission or reception, (1) to any
person other than the addressee, his agent, or attorney, (2) to
a person employed or authorized to forward such communication
to its destination, (3) to proper accounting or distributing
officers of the various communicating centers over which the
communication may be passed, (4) to the master of a ship under
whom he is serving, (5) in response to a subpena issued by a
court of competent jurisdiction, or (6) on demand of other
lawful authority. No person not being authorized by the sender
shall intercept any radio communication and divulge or publish
the existence, contents, substance, purport, effect, or meaning
of such intercepted communication to any person. No person not
being entitled thereto shall receive or assist in receiving any
interstate or foreign communication by radio and use such
communication (or any information therein contained) for his
own benefit or for the benefit of another not entitled thereto.
No person having received any intercepted radio communication
or having become acquainted with the contents, substance,
purport, effect, or meaning of such communication (or any part
thereof) knowing that such communication was intercepted, shall
divulge or publish the existence, contents, substance, purport,
effect, or meaning of such communication (or any part thereof)
or use such communication (or any information therein
contained) for his own benefit or for the benefit of another
not entitled thereto. This section shall not apply to the
receiving, divulging, publishing, or utilizing the contents of
any radio communication which is transmitted by any station for
the use of the general public, which relates to ships,
aircraft, vehicles, or persons in distress, or which is
transmitted by an amateur radio station operator or by a
citizens band radio operator
(b) Exceptions.--The provisions of subsection (a) shall not
apply to the interception or receipt by any individual, or the
assisting (including the manufacture or sale) of such
interception or receipt, of any satellite cable programming for
private viewing if--
(1) the programming involved is not encrypted; and
(2)(A) a marketing system is not established under
which--
(i) an agent or agents have been lawfully
designated for the purpose of authorizing
private viewing by individuals, and
(ii) such authorization is available to the
individual involved from the appropriate agent
or agents; or
(B) a marketing system described in subparagraph (A)
is established and the individuals receiving such
programming has obtained authorization for private
viewing under that system.
(c) Scrambling of Public Broadcasting Service Programming.--
No person shall encrypt or continue to encrypt satellite
delivered programs included in the National Program Service of
the Public Broadcasting Service and intended for public viewing
by retransmission by television broadcast stations; except that
as long as at least one unencrypted satellite transmission of
any program subject to this subsection is provided, this
subsection shall not prohibit additional encrypted satellite
transmissions of the same program.
(d) Definitions.--For purposes of this section--
(1) the term ``satellite cable programming'' means
video programming which is transmitted via satellite
and which is primarily intended for the direct receipt
by [cable operators for their retransmission to cable
subscribers;] cable operators or video service
providers (as defined in section 602 of this Act) for
their retransmission to subscribers;
(2) the term ``agent'', with respect to any person,
includes an employee of such person;
(3) the term ``encrypt'', when used with respect to
satellite cable programming, means to transmit such
programming in a form whereby the aural and visual
characteristics (or both) are modified or altered for
the purpose of preventing the unauthorized receipt of
such programming by persons without authorized
equipment which is designed to eliminate the effects of
such modification or alteration;
(4) the term ``private viewing'' means the viewing
for private use in an individual's dwelling unit by
means of equipment, owned or operated by such
individual, capable of receiving satellite cable
programming directly from a satellite;
(5) the term ``private financial gain'' shall not
include the gain resulting to any individual for the
private use in such individual's dwelling unit of any
programming for which the individual has not obtained
authorization for that use; and
(6) the term ``any person aggrieved'' shall include
any person with proprietary rights in the intercepted
communication by wire or radio, including wholesale or
retail distributors of satellite cable programming,
and, in the case of a violation of paragraph (4) of
subsection (e), shall also include any person engaged
in the lawful manufacture, distribution, or sale of
equipment necessary to authorize or receive satellite
cable programming.
(e) Penalties; Civil Actions; Remedies; Attorney's Fees and
Costs; Computation of Damages; Regulation by State and Local
Authorities.--
(1) Any person who willfully violates subsection (a)
shall be fined not more than $2,000 or imprisoned for
not more than 6 months, or both.
(2) Any person who violates subsection (a) willfully
and for purposes of direct or indirect commercial
advantage or private financial gain shall be fined not
more than $50,000 or imprisoned for not more than 2
years, or both, for the first such conviction and shall
be fined not more than $100,000 or imprisoned for not
more than 5 years, or both, for any subsequent
conviction.
(3)(A) Any person aggrieved by any violation of
subsection (a) or paragraph (4) of this subsection may
bring a civil action in a United States district court
or in any other court of competent jurisdiction.
(B) The court--
(i) may grant temporary and final
injunctions on such terms as it may
deem reasonable to prevent or restrain
violations of subsection (a);
(ii) may award damages as described in
subparagraph (C); and
(iii) shall direct the recovery of full
costs, including awarding reasonable attorneys'
fees to an aggrieved party who prevails.
(C)(i) Damages awarded by any court under this
section shall be computed, at the election of the
aggrieved party, in accordance with either of the
following subclauses;
(I) the party aggrieved may recover the
actual damages suffered by him as a result of
the violation and any profits of the violator
that are attributable to the violation which
are not taken into account in computing the
actual damages; in determining the violator's
profits, the party aggrieved shall be required
to prove only the violator's gross revenue, and
the violator shall be required to prove his
deductible expenses and the elements of profit
attributable to factors other than the
violation; or
(II) the party aggrieved may recover an award
of statutory damages for each violation of
subsec. (a) involved in the action in a sum of
not less than $1,000 or more than $10,000, as
the court considers just, and for each
violation of paragraph (4) of this subsection
involved in the action an aggrieved party may
recover statutory damages in a sum not less
than $10,000, or more than $100,000, as the
court considers just.
(ii) In any case in which the court finds that the
violation was committed willfully and for purposes of
direct or indirect commercial advantage or private
financial gain, the court in its discretion may
increase the award of damages, whether actual or
statutory, by an amount of not more than $100,000 for
each violation of subsection (a).
(iii) In any case where the court finds that the
violator was not aware and had no reason to believe
that his acts constituted a violation of this section,
the court in its discretion may reduce the award of
damages to a sum of not less than $250.
(4) Any person who manufactures, assembles, modifies,
imports, exports, sells, or distributes any electronic,
mechanical, or other device or equipment, knowing or
having reason to know that the device or equipment is
primarily of assistance in the unauthorized decryption
of satellite cable programming, or direct-to-home
satellite services, or is intended for any other
activity prohibited by subsection (a), shall be fined
not more than $500,000 for each violation, or
imprisoned for not more than 5 years for each
violation, or both. For purposes of all penalties and
remedies established for violations of this paragraph,
the prohibited activity established herein as it
applies to each such device shall be deemed a separate
violation.
(5) The penalties under this subsection shall be in
addition to those prescribed under any other provision
of this title.
(6) Nothing in this subsection shall prevent any
State, or political subdivision thereof, from enacting
or enforcing any laws with respect to the importation,
sale, manufacture, or distribution of equipment by any
person with the intent of its use to assist in the
interception or receipt of radio communications
prohibited by subsection (a).
(f) Rights, Obligations, and Liabilities Under Other Laws
Unaffected.--Nothing in this section shall affect any right,
obligation, or liability under title 17, United States Code,
any rule, regulation, or order thereunder, or any other
applicable Federal, State, or local law.
(g) Universal Encryption Standard.--The Commission shall
initiate an inquiry concerning the need for a universal
encryption standard that permits decryption of satellite cable
programming intended for private viewing. In conducting such
inquiry, the Commission shall take into account--
(1) consumer costs and benefits of any such standard,
including consumer investment in equipment in
operation;
(2) incorporation of technological enhancements,
including advanced television formats;
(3) whether any such standard would effectively
prevent present and future unauthorized decryption of
satellite cable programming;
(4) the costs and benefits of any such standard on
other authorized users of encrypted satellite cable
programming, including cable systems and satellite
master antenna television systems;
(5) the effect of any such standard on competition in
the manufacture of decryption equipment; and
(6) the impact of the time delay associated with the
Commission procedures necessary for establishment of
such standards.
(h) Rulemaking for Encryption Standard.--If the Commission
finds, based on the information gathered from the inquiry
required by subsection (g), that a universal encryption
standard is necessary and in the public interest, the
Commission shall initiate a rulemaking to establish such a
standard.
SEC. 712. SYNDICATED EXCLUSIVITY.
[47 U.S.C. 612]
(a) The Federal Communications Commission shall initiate a
combined inquiry and rulemaking proceeding for the purpose of--
(1) determining the feasibility of imposing
syndicated exclusivity rules with respect to the
delivery of syndicated programming (as defined by the
Commission) for private home viewing of secondary
transmissions by satellite of broadcast station signals
similar to the rules issued by the Commission with
respect to syndicated exclusivity [and cable
television;] cable television, and video service (as
defined in section 602 of this Act); and
(2) adopting such rules if the Commission considers
the imposition of such rules to be feasible.
(b) In the event that the Commission adopts such rules, any
willful and repeated secondary transmission made by a satellite
carrier to the public of a primary transmission embodying the
performance or display of a work which violates such Commission
rules shall be subject to the remedies, sanctions, and
penalties provided by title V and section 705 of this Act.
SEC. 714. TELECOMMUNICATIONS DEVELOPMENT FUND.
[47 U.S.C. 614]
(a) Purpose of Section.--It is the purpose of this section--
(1) to promote access to capital for small businesses
in order to enhance competition in the
telecommunications industry;
(2) to stimulate new technology development, and
promote employment and training; and
(3) to support universal service and promote delivery
of telecommunications services to underserved rural and
urban areas.
(b) Establishment of Fund.--There is hereby established a
body corporate to be known as the Telecommunications
Development Fund, which shall have succession until dissolved.
The Fund shall maintain its principal office in the District of
Columbia and shall be deemed, for purposes of venue and
jurisdiction in civil actions, to be a resident and citizen
thereof.
(c) Board of Directors.--
(1) Composition of board; chairman.--The Fund shall
have a Board of Directors which shall consist of 7
persons appointed by the Chairman of the Commission.
Four of such directors shall be representative of the
private sector and three of such directors shall be
representative of the Commission, the Small Business
Administration, and the Department of the Treasury,
respectively. The Chairman of the Commission shall
appoint one of the representatives of the private
sector to serve as chairman of the Fund within 30 days
after the date of enactment of this section, in order
to facilitate rapid creation and implementation of the
Fund. The directors shall include members with
experience in a number of the following areas: finance,
investment banking, government banking, communications
law and administrative practice, and public policy.
(2) Terms of appointed and elected members.--The
directors shall be eligible to serve for terms of 5
years, except of the initial members, as designated at
the time of their appointment--
(A) 1 shall be eligible to service for a term
of 1 year;
(B) 1 shall be eligible to service for a term
of 2 years;
(C) 1 shall be eligible to service for a term
of 3 years;
(D) 2 shall be eligible to service for a term
of 4 years; and
(E) 2 shall be eligible to service for a term
of 5 years (1 of whom shall be the
Chairman).Directors may continue to serve until
their successors have been appointed and have
qualified.
(3) Meetings and functions of the board.--The Board
of Directors shall meet at the call of its Chairman,
but at least quarterly. The Board shall determine the
general policies which shall govern the operations of
the Fund. The Chairman of the Board shall, with the
approval of the Board, select, appoint, and compensate
qualified persons to fill the offices as may be
provided for in the bylaws, with such functions,
powers, and duties as may be prescribed by the bylaws
or by the Board of Directors, and such persons shall be
the officers of the Fund and shall discharge all such
functions, powers, and duties.
(d) Accounts of Fund.--The Fund shall maintain its accounts
at a financial institution designated for purposes of this
section by the Chairman of the Board (after consultation with
the Commission and the Secretary of the Treasury). The accounts
of the Fund shall consist of--
(1) interest transferred pursuant to section
309(j)(8)(C) of this Act;
(2) such sums as may be appropriated to the
Commission for advances to the Fund;
(3) any contributions or donations to the Fund that
are accepted by the Fund; and
(4) any repayment of, or other payment made with
respect to, loans, equity, or other extensions of
credit made from the Fund.
(e) Use of Fund.--All moneys deposited into the accounts of
the Fund shall be used solely for--
(1) the making of loans, investments, or other
extensions of credits to eligible small businesses in
accordance with subsection (f);
(2) the provision of financial advice to eligible
small businesses;
(3) expenses for the administration and management of
the Fund (including salaries, expenses, and the rental
or purchase of office space for the fund);
(4) preparation of research, studies, or financial
analyses; and
(5) other services consistent with the purposes of
this section.
(f) Lending and Credit Operations.--Loans or other extensions
of credit from the Fund shall be made available to an eligible
small business on the basis of--
(1) the analysis of the business plan of the eligible
small business;
(2) the reasonable availability of collateral to
secure the loan or credit extension;
(3) the extent to which the loan or credit extension
promotes the purposes of this section; and
(4) other lending policies as defined by the Board.
(g) Return of Advances.--Any advances appropriated pursuant
to subsection (d)(2) shall be disbursed upon such terms and
conditions (including conditions relating to the time or times
of repayment) as are specified in any appropriations Act
providing such advances.
(h) General Corporate Powers.--The Fund shall have power--
(1) to sue and be sued, complain and defend, in its
corporate name and through its own counsel;
(2) to adopt, alter, and use the corporate seal,
which shall be judicially noticed;
(3) to adopt, amend, and repeal by its Board of
Directors, bylaws, rules, and regulations as may be
necessary for the conduct of its business;
(4) to conduct its business, carry on its operations,
and have officers and exercise the power granted by
this section in any State without regard to any
qualification or similar statute in any State;
(5) to lease, purchase, or otherwise acquire, own,
hold, improve, use, or otherwise deal in and with any
property, real, personal, or mixed, or any interest
therein, wherever situated, for the purposes of the
Fund;
(6) to accept gifts or donations of services, or of
property, real, personal, or mixed, tangible or
intangible, in aid of any of the purposes of the Fund;
(7) to sell, convey, mortgage, pledge, lease,
exchange, and otherwise dispose of its property and
assets;
(8) to appoint such officers, attorneys, employees,
and agents as may be required, to determine their
qualifications, to define their duties, to fix their
salaries, require bonds for them, and fix the penalty
thereof; and
(9) to enter into contracts, to execute instruments,
to incur liabilities, to make loans and equity
investment, and to do all things as are necessary or
incidental to the proper management of its affairs and
the proper conduct of its business.
(i) Accounting, Auditing, and Reporting.--The accounts of the
Fund shall be audited annually. Such audits shall be conducted
in accordance with generally accepted auditing standards by
independent certified public accountants. A report of each such
audit shall be furnished to the Secretary of the Treasury and
the Commission. The representatives of the Secretary and the
Commission shall have access to all books, accounts, financial
records, reports, files, and all other papers, things, or
property belonging to or in use by the Fund and necessary to
facilitate the audit.
(j) Report on Audits by Treasury.--A report of each such
audit for a fiscal year shall be made by the Secretary of the
Treasury to the President and to the Congress not later than 6
months following the close of such fiscal year. The report
shall set forth the scope of the audit and shall include a
statement of assets and liabilities, capital and surplus or
deficit; a statement of surplus or deficit analysis; a
statement of income and expense; a statement of sources and
application of funds; and such comments and information as may
be deemed necessary to keep the President and the Congress
informed of the operations and financial condition of the Fund,
together with such recommendations with respect thereto as the
Secretary may deem advisable.
(k) Definitions.--As used in this section:
(1) Eligible small business.--The term ``eligible
small business'' means business enterprises engaged in
the telecommunications industry that have $50,000,000
or less in annual revenues, on average over the past 3
years prior to submitting the application under this
section.
(2) Fund.--The term ``Fund'' means the
Telecommunications Development Fund established
pursuant to this section.
(3) Telecommunications industry.--The term
``telecommunications industry'' means communications
businesses using regulated or unregulated facilities or
services and includes broadcasting, telecommunications,
cable, video service, computer, data transmission,
software, programming, advanced messaging, and
electronics businesses.
SEC. 715. RIGHTS AND OBLIGATIONS OF IP-ENABLED VOICE SERVICE PROVIDERS.
(a) In General.--A facilities-based IP-enabled voice service
provider shall have the same rights, duties, and obligations,
including any obligation imposed under section 276, as a
requesting telecommunications carrier under sections 251 and
252, if the provider elects to assert such rights. A
telecommunications carrier may not refuse to transport or
terminate IP-enabled voice traffic solely on the basis that it
is IP-enabled. A provider originating, transmitting, or
terminating IP-enabled voice traffic shall not be exempted from
paying compensation for interstate traffic owed to another
provider or carrier solely on the basis that such traffic is
IP-enabled, and any obligations to pay compensation with
respect to traffic that originates or terminates on the public
switched telephone network shall be reciprocal, including any
payment to an IP-enabled voice service provider that receives
traffic from, or sends traffic to, the public switched
telephone network.
(b) Disabled Access.--An IP-enabled voice service provider or
a manufacturer of IP-enabled voice service equipment shall have
the same rights, duties, and obligations as a
telecommunications carrier or telecommunications equipment
manufacturer, respectively, under sections 225, 255, and 710 of
the Act. Within 1 year after the date of enactment of the
Internet and Universal Service Act of 2006, the Commission, in
consultation with the Architectural and Transportation Barriers
Compliance Board, shall prescribe such regulations as are
necessary to implement this section. In prescribing the
regulations, the Commission shall take into account the
differences between IP-enabled voice service and circuit-
switched communications, and the functionalities required by
the disabled community. Every 2 years after the date of
enactment of the Internet and Universal Service Act of 2006,
the Commission shall submit a report to the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Energy and Commerce of the House of
Representatives that assesses the level of compliance with this
section and evaluates the extent to which any accessibility
barriers still exist with respect to new technologies and
hearing aid compatibility.
(c) IP-enabled Emergency Response Systems.--Prior to
installation or activation of an IP-enabled voice service for a
customer, an IP-enabled voice service provider shall provide
clear and conspicuous notice to the customer that--
(1) such customer should arrange with his or her
emergency response system provider, if any, to test
such system after installation;
(2) such customer should notify his or her emergency
response system provider as soon as the IP-enabled
voice service is installed; and
(3) a battery backup may be required for customer
premises equipment installed in connection with the IP-
enabled voice service in order for the signaling of
such system to function in the event of a power outage.
(e) No Effect on Tax Laws.--Nothing in this section shall be
construed to modify, impair, supersede, or authorize the
modification, impairment, or supersession of, any State or
local tax law.
(f) Definitions.--In this section:
(1) Emergency response system.--The term ``emergency
response system'' means an alarm or security system, or
personal security or medical monitoring system, that is
connected to an emergency response center by means of a
telecommunications carrier or IP-enabled voice service
provider.
(2) Emergency response center.--The term ``emergency
response center'' means an entity that monitors
transmissions from an emergency response system.
(3) Facilities-based.--The term ``facilities-based''
includes an IP-enabled voice service provider with
control and operation within a local access transport
area of--
(A) communications switching and routing
equipment;
(B) long-haul trunks; or
(C) local transmission facilities.
(4) IP-Enabled Voice Service.--The term ``IP-enabled
voice service'' means the provision of real-time 2-way
voice communications offered to the public, or such
classes of users as to be effectively available to the
public, transmitted through customer premises equipment
using Internet protocol, or a successor protocol, for a
fee (whether part of a bundle of services or offered
separately) with interconnection capability such that
the service can originate traffic to, and terminate
traffic from, the public switched telephone network.
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