' COPY&+ z 3 A ANNOUNCEMENT from the Copyright Office, Library of Congress, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000

NOTICE OF INQUIRY.

CABLE COMPULSORY LICENSE; DEFINITION OF A NETWORK STATION

The following excerpt is taken from Volume 65, Number 29 of the Federal Register for Friday, February 11,2000 (pp. 6946-6950)

SUPPLEMENTARY INFORMATION: Whether a station is a "network station" LIBRARY OFCONGRESS also affects matters related to cable carriage. Background Most cable systems throughout the United Copyright Office When is a television station a network States have filled their quotas of permitted station? That is the question for which distant signals. If a new independent station 37 CFR Part 201 Paxson Communications Corp. ("Paxson") seeks carriage on a typical cable system, such [Docket No. RM 2000-21 has petitioned the Copyright Oftice for an carriage will trigger the 3.75% royalty fee for answer and to which this rulemaking nonpermitted distant signals which cable Cable Compulsory License; Definition of a proceeding is directed. systems are reluctant to pay. Consequently, Network Station The cable statutory license of the the signal will not be carried. However, if the AGENCY: Copyright Office, Library of Copyright Act, 17 U.S.C. I I I, provides a station is designated as a network station. Congress licensing regime for the retransmission of carriage of the station becomes considerably ACTION: Notice of inquiry. broadcast stations by cable systems. Whether more attractive to a cable system because the a particular station is a "network" station or associated royalty fees are considerably

. .. - ~ not is critical to the calculation of royalty lower. SUMMARY: The Copyright Office of the payments by cable systems for retransmis- The issue of what is a network station has L.ihrary of Congress is opening a rulemaking sion of that station because the cable arisen intermittently through the years on an proc,ccding to determine the scope and statutory license only gathers royalties for the informal basis. When the Copyright Act appl~cationof the definition of a network retransmiss~onof nonnetwork broadcast passed in 1976. it was clear that the only \tallon under the cahle statutory license of programming. In applying the royalty stations that qualified as network stations the Copyr~ghtAct. payment formula, cable systems pay a full under the section I I I license were those IIATES: Initial comments should be distant signal equivalent ("DSE) for owned and operated. or affiliated with, the rcc.c~vedno later than April I 1. 7000. Reply retransmission of an independent. "Big 3" networks: ABC, CBS, and NBC. The c.oliiliicnt\ are due by May 1 1. 2000. nonnetwork station because it is presumed Copyright Office received several informal AIIIIRESSES: It sent by mail, an original that all the programming contained on inquiries from cable systems during the early ;111dtwelve copieh of comments and reply the signal of that station is not network- 1990's regarding the status of the Fox cornnient\ 4hould br addressed to: Office of provided programming. However, cable network, but the Office declined to rule that thc Copyright Gcneral Counsel. PO Box systems must only pay one-quarter of a DSE Fox was a network for purposes of the 701)77. Southwest Station. Washington. DC for retransrn~ssionof a network station. section I I I license. Paxson is the first 20024 If hand del~vcrsd.an original and because it 15 presumed that only one-quarter broadcaster to come forward and formally tnclic copieh of comments and reply of the programrn~ngcontained on the signal petition the Office for a ruling. c,oniliients hhould be brought to: Office of the of a network station is nonnetwork programming. Consequently. as a general Definition of a Network Station 1 1 Page 69-17 1 l principle. a cable system can carry four network stations for the cost of one Section 1 I I(f)of title 17 contains the Copyright General Counsel. James Madison independent station.' This distinction in the statutory definition of a network station. It \?e~norialBuilding. Room LM-403. First and classification of stations is important to both provides: Independence Avenue. SE. Washington. DC cable systems and copyright owners: cable 20559-6000. systems. because it affects their costs; and A "network slation" is a television broadcast

I;OR FURTHER INFORMATION , copyright owners because it determines how station that is owned or operaled by. or aftilialed CONTACT: David 0. Carson. General much money will be in the cable royalty with, one or more of the television networks in the Counsel. or William J. Roberts. Jr.. Senior pool. United States providing nationwide transmissions. Atlorney for Compulsory Licenses. PO Box and that transmits a substantial part of the pro- 70977. Southwest Station, Washington, DC gramming supplied by such networks for a substantial part of that station's typical broadcast 20074. Telephone: (707) 707-8380. Fax: 'The actual coslol' such carriage can vary depending upon the royalty rate applicable to carriage of each day. (202) 707-8366. stallon.

March 2000-500 @ PRINTED ON RECYCLED PAPER Page 1 of 4 ML-657 'I 17 U.S.C. I l l(f). 3, there could be a fourth network for To that end, the Office -b

purposes of the section 11 1 license provided 1 Examination of this definition reveals that that the statutory criteria were met. Letter there are three critical elements to the from Dorothy Schrader, General Counsel, to qualification of a broadcast station as a Thomas Hendrickson (November 13, 198 1). network station. The broadcast station must Paxson also cites a passage from the 1976 be owned and operated by, or affiliated with. House report accompanying the Copyright one or more of the U.S. television networks Act as further proof that networks in addition can determine whether that provide nationwide transmissions; must to the Big 3 were contemplated under section transmit a substantial portion of the 111: programming supplied by the network; and To qualify as a network station, all of the status of the television the programming supplied by the network conditions of the definition must be met. Thus, the must constitute a substantial portion of the retransmission of a Canadian station affiliated station's typical broadcast day. There has with a Canadian network would not qualify under the definition. Funher, a station affiliated with a never been any question that stations of the regional network would not qualify, since a Big 3 networks satisfy these requirements, regional network would not provide nationwide and the Copyright Office has always treated a transmissions. However. a station affiliated with a station of one of these networks as a network network providing nationwide station for purposes of section I I 1. Nevertheless, the specific meaning of [[Page 694811 these three elements is far from clear. For example, what are "nationwide" transmissions that also occasionally carries transmissions? Does there have to be a station regional programs would qualify as a "network station." if the station transmits a substantial pan of a particular "network" in every state or of the programming supplied by the network for a television market in order to qualify that substantial pan of the station's typical broadcast organization as a network, or is something day. les5 than that sufficient? What constitutes transmitting a "substantial" portion of the H.R. Rep. No. 94-1476. at 101 (1976). programming offered by a network? Is fifty percent enough. or is more or less required? In conclusion. Paxson requests that the Does the programming supplied by the Copyright Office declare that stations owned network have to be first-run or original and operated by. or affiliated with, PaxTV be progranlmtng. or i5 syndicated programming declared network stations under section I I I, pernmi~~ible?What constitutes a "substantial" and that cable systems carrying PaxTV individual station porrton ol' ;I \tation'h typical broadcast day? It stations be permitted to report and pay for "substantial." The i\ thew quehtlon\. and the ones described such stations as network stations. the broadcast stati belou. to uhlch the Copyright Office seeks substantial part of p~~hllicomment in this Notice of Inquiry. This Proceeding Since the implementation of the section I'rtition of I'asson 11I license in 1978. the Copyright Office has IJa\\citi prcivtde\ television programming treated a broadcast station that is owned and oicr the I';lxTV Television Network operated by. or affiliated solely with, one of r "1',1\7'\"'1 to ovrr vxty owned and operated the Big 3 networks as a "network station" for allcl ;tll'~ltatedtelcvi\ton broadcast stations. section I I I purposes. All other stations have :\iiordlng to Pa\\on. 11s owned and operated been treated as independents. including those :11ii1 atltllats \tatton\ hatisfy all three of the that have dual affiliations with broadcasters itltcrta lor ;I "networh >tation" under section other than the Big 3.' As a matter of policy, I I I the Office has never questioned the netwoik f'~r\r.I'a\\or~ \ubrnit\ that PaxTV is a status of a broadcast station identified as a tclCiI\IOII t~etuorhhecau5e 11 provide5 CBS, ABC. or NBC station. It has always I~,IIIOI~N~dc trari\ml\\ton\ ol' PaxTV been assumed that such a station progranlnlttlg. ll;t\TV I\ carrted on stations in automatically took a substantial portion of 7-1 \[ate\ ;lnd the I>t\trict of Columhla. all of the network's programming and that that i\ I~tcliarc either owned and operated by. or programming made up a substantial portion ;IIL. prltnar! all'iliate\ ol. PaxTV of the station's typical broadcast day. There hczo~id.I';I\\oII a\iert\ that it\ >tation\ could be cases. however. where such a i.3rr.i .I \uh\tantial portton 01' the station does nor take a sufficient amount of progr.lrlirntng pro\ tded b> PaxTV because it5 network programming. The Office has never colirr;l~.t\u.ith thew \tatton\ require that inquired and has accepted the delineation of I':i\T\' prograrllmtn; he hroadcaht a network station at face value for stations in riltlltnlunl ol I X hour\ dail). And third. ah a the CBS. ABC. and NBC networks. It rzwlt ol th~\rcqutrenlent. Paxhon submits appears now that with the changing 1I1;tt c.1~11ol I[\ \tatton\ meets the requirement television marketplace, and with the petition 01 tr;~n\mlttinsPaxTV programming for a of Paxson. the Office must reevaluate its "\uh\tantial part" ol each stationa\ approach before it can declare whether there "l! ptcal broaclcat clay." are any new networks and network stations. In addition to meeting the three criteria. f'a\\on note> that the Copyright Office has :For example. a station that IS affiliated wlth ABC and Fox would not be considered a network stallon because pre\rou\ly statrd thal. in addhion to the Big the Office has nor determined rhac Fox is a network under seclion 1 I 1.

arch 2000-500 LML-651 1 m b will such stations be required to individually Pax TV Distribution I satisfy the new test? If the latter, how should the Office implement the test, and to what Rank and market name Call letters Station ownership interest extent should broadcasters and cable Owned & Operated. operators have input as to the determination? I New York ...... WPXN Do. Finally, there is the matter of the Paxson I New York ...... WBPT 2 Los Angeles KPXN Do. petition, which is the source of this ...... 3 Chicago ...... WCPX Do. rulemaking proceeding. We do not believe 4 Philadelphia ...... WPPX Do. that the question of PaxTV's network status 5 San Francisco-Oakland ...... KKPX Do. can be reached until a method for 6 Boston ...... WBPX Affiliated. determining when a station is a network 6 Boston ...... WPXB Owned & Operated. station is established. Nevertheless, the 7 Dallas-Ft.Wonh ...... KPXD Do. Paxson petition is useful to creating such a 8 Washington, D.C ...... WPXW Do. methodology, and PaxTV stations will 8 Washington. D.C ...... WWPX Affiliated. undoubtably be the first to which the new 9 Detroit ...... WPXD Owned & Operated. regulation is applied. The Office has already 10 Atlanta ...... WPXA Do. identified above the number of hours of I I Houston ...... KPXB Do. network programming carried daily by 12 Seattle-Tacoma ...... KWPX Do. PaxTV stations. The Appendix to this Notice 13 Cleveland ...... WVPX Do. contains a list (provided by Paxson) 14 Tampa-St. Petersburg ...... WXPX Do. identifying the stations of the Paxson 15 Minneapolis-St. Paul ...... KPXM Do. network, their market location, and Paxson's 16 Miami-Ft. Lauderdale ...... WPXM Do. ownership interest. Commenters are 17 Phoenix ...... KBPX Do. encouraged to use this information in 17 Phoenix ...... KPPX Affiliate-Pending Owned & Operated. addressing the fundamental issue of when is 18 Denver ...... KPXC Owned & Operated. a telev~sionstation a network station. 20 Sacramento-Stockton-Modesto ...... KSPX Pending Owned & Operated.' Affiliated. In addition. after rules have been adopted 21 St. Louis ...... WPXS 22 Orlando-Daytona Beach ...... WOPX Owned & Operated. for determining network station status, there 23 Portland. OR ...... KPXG Do. is the matter of how the Office should treat 25 Indianapolis ...... WlPX Affiliated. other putative broadcast networks, such as 27 Hanford 8: New Haven ...... WHPX Do. the Fox. United Paramount, and Warner 29 Raleigh-Durham ...... WRPX Do. Brothers networks? One possible approach is 29 Raleigh-Durham ...... WFPX Owned & Operated. a case-by-case basis whereby each of these 30 Nashville ...... WNPX Do. lietworks is afforded the opportunity to 32 Cincinnati ...... petition the Office for a determination of 33 Kansas C~ty...... KPXE Do. network status. such as Paxson has done. Is 36 Salt Lake City ...... KUPX TBA-Pending Owned & Operated.' thi\ appropriate. or should cable operators 36 Salt Lake Cir ...... KUWB Owned & Operated. \vho carry such stations be allowed to 37 Grand Rapids-Kalamazoo ...... WZPX Affiliated. pet~tionthe Office as well? Must each 38 San Antonlo ...... KPXL Pending Owned & Operated.' petition be addrehsed through a notice and 39 Birm~ngha~n-Tuscaloosa...... WPXH Owned & Operated. conirnent rulemaking proceeding. or is there 40 Norfol k-Portsmouth ...... WPXV Do. \ome other procedure that is permissible or 41 New Orlcan\ ...... WPXL Pending Owned & Operated.' dc\~rable'? 42 Buffalo ...... Thc Office encourages responses to the 43 Memphis ...... WPXX Pending Owned & Operated. quc\tlon podin this Not~ceof Inquiry, as 44 West Palm Bcach-FI. Pierce ...... WPXP Owned & Operated. 45 Oklahoma Ciry ...... KOPX Owned & Operated.' \vcll ;I\ another comments relevant to the ~\\ue\ri~ihed, 47 Greensboro-H. Po~n...... WGPX Owned & Operated. 48 Lou~sville...... 49 Albuquerque-Santa Fe ...... KAPX Do. Dated: February 4. 7000 50 Providence-New Bedford ...... WPXQ Do. 3lary heth Peters, 51 Wilkes-Barrc-Scranton ...... WQPX Do. Kc,yr.\ror o/'Cop\ rj,qI~t.\. 53 Albany-Schenectady-Troy ...... WYPX Do. 51 Dayton ...... WDPX Do. Note: Thl\ Append11 will not be Codified 55 Fresno-V~salia...... KPXF Do. 111 T~tlc37. Part 201. ot'the Code of Federal 57 L~ttleRock-P~ne Bluff ...... KYPX Pending Owned & Operated,' Kcg~~lat~on\ 58 Charleston-Hunt~ngron...... WLPX Owned & Operated. 59 Tuha ...... KTPX Do. The t'ollow~n~table li>t\ the owned. 62 Moh~le-Pcn\acola...... t~pcratedor afCil~ated\tatlon\ air~n~PAX TV 63 Knoxville ...... WPXK Do. 67 Lexlngton ...... 68 Roanoke-Lynchburg ...... WPXR Do. 69 Green Bay-Appleton ...... WPXG Do. 70 De\ Mo~nc\-Ames...... KFPX Do. 7 1 Honolulu ...... KPXO Do. 71 Syracuse ...... WSPX Do. 75 Shreveporc ...... KPXJ Do. 82 Champa~gn& Springfield ...... WPXU Do. 88 Cedar Rap~ds-Waterloo...... KPXR Do. 105Greenvillc-N. Bern-Washington ...... WEPX Do. NR San JuanIPoncelSan Sebastian. Puerto Rico ..... WJPX Do.

'To he acqu~red

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[FR Doc. 00-3237Filed 2-10-00, 8:45 am]

BILLING CODE 141031-P

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