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U.S. Code as of:
01/19/04
Section 548. Development of competition and diversity in video programming distribution
(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 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, a satellite cable
programming vendor in which a cable operator 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 programming or satellite
broadcast programming to subscribers or consumers.
(c) Regulations required
(1) Proceeding required
Within 180 days after October 5, 1992, 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) of this
section.
(2) Minimum contents of regulations
The regulations to be promulgated under this section shall -
(A) establish effective safeguards to prevent a cable
operator which has an attributable interest in a satellite
cable 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 programming or satellite broadcast
programming to any unaffiliated multichannel video programming
distributor;
(B) prohibit discrimination by a satellite cable programming
vendor in which a cable operator has an attributable interest
or by a satellite broadcast programming vendor in the prices,
terms, and conditions of sale or delivery of satellite cable
programming or satellite broadcast programming among or between
cable systems, cable operators, or other multichannel video
programming distributors, or their agents or buying groups;
except that such a satellite cable programming vendor in which
a cable operator 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 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
programming or satellite broadcast programming between a cable
operator and a satellite cable programming vendor or satellite
broadcast programming vendor, that prevent a multichannel video
programming distributor from obtaining such programming from
any satellite cable programming vendor in which a cable
operator has an attributable interest or any satellite
broadcast programming vendor in which a cable operator has an
attributable interest for distribution to persons in areas not
served by a cable operator as of October 5, 1992; and
(D) with respect to distribution to persons in areas served
by a cable operator, prohibit exclusive contracts for satellite
cable programming or satellite broadcast programming between a
cable operator and a satellite cable programming vendor in
which a cable operator has an attributable interest or a
satellite broadcast programming vendor in which a cable
operator 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
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:
(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;
(C) the effect of such exclusive contract on the attraction
of capital investment in the production and distribution of new
satellite cable 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 October 5, 1992, unless the Commission
finds, in a proceeding conducted during the last year of such
10-year period, 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)
of this section, or the regulations of the Commission under
subsection (c) of this section, 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 subchapter V of this
chapter or any other provision of this chapter.
(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) of this
section, 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 programming and that was entered into on or
before June 1, 1990, except that the provisions of subsection
(c)(2)(C) of this section shall apply for distribution to persons
in areas not served by a cable operator.
(2) Limitation on renewals
A contract that was entered into on or before June 1, 1990, but
that is renewed or extended after October 5, 1992, shall not be
exempt under paragraph (1).
(i) Definitions
As used in this section:
(1) The term "satellite cable programming" has the meaning
provided under section 605 of this title, except that such term
does not include satellite broadcast programming.
(2) The term "satellite cable programming vendor" means a
person engaged in the production, creation, or wholesale
distribution for sale of satellite cable 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 with respect to satellite broadcast
programming.
(j) Common carriers
Any provision that applies to a cable operator 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 programming vendor in
which a cable operator has an attributable interest shall apply to
any satellite cable 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 programming vendor (or its parent company).
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