|Federal Communications Commission
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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).
COMMISSION ADOPTS ADJUSTMENTS TO METHODS OF MEASURING AND PREDICTING TELEVISION SIGNAL INTENSITY OF GRADE B, AS USED IN THE 1988 SATELLITE HOME VIEWER ACT, TO BETTER IDENTIFY "UNSERVED HOUSEHOLDS"
The Commission has adopted an order addressing the way it measures and predicts the strength of television signals for the purposes of the Satellite Home Viewer Act ("SHVA"). Under the SHVA, television signal intensity is the key element in determining whether a consumer is "unserved" by network television broadcast stations and, thus, is eligible to receive network service using a home satellite dish. The revised rules are designed to better identify those consumers who can and cannot get their local broadcast television stations over the air.
The order amends the Commission's rules by creating a methodology for measuring signal strength at an individual household. The measurement methodology established in the order attempts to create a standard measurement process that is practical, reasonably accurate, and no more costly than necessary. The purpose of the procedure currently specified in the rules is not to determine the receivability of a signal at a single spot, but to determine, through measurements at a series of grid intersections over a community, the nature of service to the community. Thus, the current procedure has limited use in measuring signal intensity at individual locations. Key elements of the measurement methodology include:
The Commission is also recommending an adjusted signal propagation model for purposes of predicting signal strength at individual households. The model used is the "Individual Location Longley-Rice" or "ILLR," which is similar to the point-to-point predictive model the Commission has established for digital television (DTV) allocations. This model is an accurate, practical, and readily available model for determining signal intensity at individual locations. ILLR has several characteristics that make it a useful prediction method:
The Commission believes the ILLR can be used for predicting signal strength for purposes of the SHVA as well as for other purposes that require information about signal intensity at discrete locations. The model would not supplant currently-existing approaches for depicting a field strength contour or for describing a station's service area.
This action was precipitated by an issue affecting the television broadcast industry, the direct-to-home satellite industry and consumers who subscribe to satellite carriers for their video programming. In 1988, Congress adopted the SHVA as an amendment to the copyright statute to protect broadcasters' copyrights while enabling satellite carriers to provide the broadcasters' programming to satellite subscribers who were not able to obtain network programming over-the-air. A Miami federal district court has upheld broadcasters' contention that many satellite subscribers currently receiving network programming via satellite are not within the scope of the SHVA's definition of "unserved" and thus not legally authorized to receive such signals. The Miami federal district court injunction required that the satellite carriers terminate network service to some subscribers by February 28, 1999 and to an additional group of subscribers by April 30, 1999. The total number of subscribers affected is estimated to be as many as 2.2 million. Two satellite carriers, the National Rural Telecommunications Cooperative ("NRTC") and EchoStar Communications Corporation ("EchoStar"), filed petitions for rulemaking asking the Commission to take action so that their subscribers will not be terminated.
The Commission emphasizes that only legislative changes to the SHVA will allow satellite companies to deliver network signals to all their customers. Only Congress can approve "local-into-local" (i.e. local network broadcast television signals provided through the satellite dish in the same service area as the broadcast signal) legislation or fundamentally change the definition of "unserved household." The Commission wants to ensure that consumers who are legitimately "unserved" (i.e. unable to receive broadcast network programming over-the-air) by local television stations can receive distant network signals from a satellite service. Likewise, the Commission wants to ensure that as many Americans as possible can receive network signals in some way. The Commission cannot assist any household that is receiving distant network signals illegally. Court documents from North Carolina and Florida show that the overwhelming majority of one satellite carrier's subscribers are receiving distant network signals illegally.
Action by the Commission February 1, 1999, by Report and Order (FCC 99-14). Chairman Kennard, Commissioners Ness, Powell and Tristani, with Commissioner Furchtgott-Roth dissenting in part and issuing a statement and Chairman Kennard and Commissioner Ness issuing a joint statement.News Media contact: Morgan Broman at (202) 418-2358.
Cable Services Bureau contact: Donald Fowler, Jr. at (202) 418-7200, TTY: (202) 418-7172
Today the Commission takes several steps to help ensure that those consumers who cannot receive acceptable over-the-air signals from their local broadcast stations have a lawful alternative means to receive network programming via satellite under the Satellite Home Viewer Act. The Commission's ability to make significant changes in this area is constrained by the terms of the SHVA, which says that only those viewers who cannot receive an "over-the-air signal of grade B intensity" are considered "unserved" and therefore eligible to receive distant network signals. Thus, we could not, and have not, extended the SHVA to permit delivery of satellite network broadcast signals to consumers who can receive an adequate local over-the-air signal.
By our action today, however, we have created a more accurate method of identifying those consumers who are truly unserved within the meaning of the statute, and therefore eligible for satellite-delivered network programming. Our action will help not only those individual subscribers who, under other tests, might be considered to be "served" even though they cannot receive an acceptable television picture, but will better enable the DBS industry to become a true competitor to cable, which will help all consumers.
We have tried to be as aggressive as possible -- consistent with Congressional intent -- in protecting American consumers in this order. Some commenters urged that we take the additional step of changing the confidence factor in the predictive model that we endorse from 50% to 90%. If we believed that changing the predictive model to include a 90% confidence factor would ensure that more unserved households would be able to get satellite-delivered network signals, we certainly would have voted to make this change. Indeed, at first blush, the concept of a 90% confidence factor seems appealing. However, as discussed in the Report and Order, adopting a 90% confidence factor would not ensure more accuracy, but rather would significantly overpredict the number of unserved households, undermining Congress's intent in the statute. The model the Commission endorses in this order -- which includes a 50% confidence factor -- is a more sound predictor of who is actually served and unserved. Thus, it is more likely to be relied upon by the parties and in turn will likely result in fewer actual measurements having to be taken, which is, after all, the purpose of using a predictive model.
We have gone as far as we can under the SHVA to enable consumers to receive network programming via satellite. A more comprehensive solution to this problem -- including, for example, allowing delivery of local broadcast signals into local markets -- would require Congressional action. We look forward to working with Congress to facilitate robust competition between DBS and cable service providers, bringing more choices and lower prices in video programming to the American public, while not impairing the viability of over-the-air broadcasting.
We also call on the satellite and broadcast industries to cooperate in ensuring that consumers receive the service which they are entitled to receive under the SHVA.
DISSENTING IN PART
In re: Satellite Delivery of Network Signals to Unserved Households for Purposes of the Satellite Home Viewer Act
I commend the Cable Services Bureau, the Office of Engineering and Technology, the Mass Media Bureau, and the International Bureau for their fine work on this Report & Order. Unfortunately, I cannot join Part III, which makes legislative recommendations to Congress regarding the delivery of network signals via satellite.
As I have previously explained, I do not believe that, absent an express request from Congress, making recommendations about how the law should be changed is an appropriate function for the Federal Communications Commission. See, e.g, 1997 Report on the Status of Competition, 13 FCC Rcd 1034 (1998) (separate statement of Commissioner Harold Furchtgott-Roth). The Commission is bound to take the law as Congress makes it and to implement the law objectively; yet when we criticize extant statutes, enacted by Congress and signed into law by the President, we draw that objectivity into doubt. Moreover, as a creature of Congress' delegated authority, the Commission takes it direction from that body, not the other way around.
Even if it were appropriate for the agency to suggest to Congress how it ought to legislate (or how it has erred by enacting certain legislation), such suggestions could plausibly involve, at most, communications law and policy. This item, however, ventures with its recommendations boldly into copyright law, an area in which the Commission has no expertise or authority, as the item itself implicitly acknowledges. See supra at para. 28. We simply do not know where, and on what, we tread when we recommend a particular change in intellectual property rights. We simply do not fully understand what problems such a change might trigger in that body of law. If the Copyright Office made recommendations to Congress on how to write communications statutes, I do not think anyone would give them much weight. It seems to me that the converse is equally true.
For these reasons, I would not have recommended legislative action to Congress in this item, nor would I have indicated that existing statutes are unfair or unwise.