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U.S. Code as of:
01/19/04
Section 325. False, fraudulent, or unauthorized transmissions
(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 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 534 of this title, 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 of this title, 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; 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
title;
(C) until December 31, 2004, 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; or
(E) during the 6-month period beginning on November 29, 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.
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, as in effect on October 5, 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 October 5, 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 534 of this title, 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 543(b)(1) of this title to ensure that the rates for the
basic service tier are reasonable. Such rulemaking proceeding shall
be completed within 180 days after October 5, 1992.
(B) The regulations required by subparagraph (A) shall require
that television stations, within one year after October 5, 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 534 of this title. 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) Within 45 days after November 29, 1999, 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). The Commission shall
complete all actions necessary to prescribe such regulations within
1 year after November 29, 1999. Such regulations shall -
(i) establish election time periods that correspond with those
regulations adopted under subparagraph (B) of this paragraph; and
(ii) until January 1, 2006, 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.
(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 534 of this title 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 of this title 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, 534, or
535 of this title 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
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; 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 caused 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 of this title
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) of this section 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) of this section, 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) of this
section 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) of
this section 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 of this title 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) of this section.
(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 November 29, 1999, the Commission shall
issue procedural regulations implementing this subsection which
shall supersede procedures under section 312 of this title.
(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) of this section 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) of this section with
respect to such station;
(ii) if the satellite carrier is found to have violated
subsection (b)(1) of this section 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) of this section 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. On finding that the satellite
carrier has committed one or more violations of subsection (b) of
this section, 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.
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