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Notice

Rate Adjustment for the Satellite Carrier Compulsory License

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AGENCY:

Copyright Office, Library of Congress.

ACTION:

Notice of voluntary negotiation period.

SUMMARY:

The Copyright Office of the Library of Congress is announcing the voluntary negotiation period for the purpose of determining the royalty fees for the retransmission of digital over-the-air television broadcast signals by satellite carriers under the statutory license.

DATES:

The voluntary negotiation period commences on March 25, 2005 and concludes on April 25, 2005. Voluntary agreements must be submitted no later than April 25, 2005.

ADDRESSES:

If hand delivered by a private party, an original and five copies of voluntary agreements should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Copyright Office General Counsel/CARP, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000. If delivered by a commercial courier, an original and five copies of voluntary agreements must be delivered to the Congressional Courier Acceptance Site located at 2nd and D Streets, N.E. between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Office General Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, S.E., Washington, D.C. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of voluntary agreements should be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 20024. Voluntary agreements may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.

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FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or Gina Giuffreda, Attorney Advisor, Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 252-3423.

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SUPPLEMENTARY INFORMATION:

Background

The satellite carrier compulsory license establishes a statutory copyright licensing scheme for satellite carriers that retransmit over-the-air television broadcast signals to satellite dish owners. 17 U.S.C. 119. Congress created the license in 1988 with the passage of the Satellite Home Viewer Act of 1988. Congress reauthorized the satellite license for additional five-year periods in 1994 and 1999, and the license was slated to expire on December 31, 2004. However, Congress again reauthorized the satellite license for another five years with the passage of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”) (as part of the Consolidated Appropriations Act, 2005), Pub. L. 108-447, which was signed into law by the President on December 8, 2004.

Rates for the statutory license were initially set by Congress in the Satellite Home Viewer Act of 1988 and then later adjusted by a three-person arbitration panel convened by the former Copyright Royalty Tribunal. 57 FR 19052 (May 1, 1992). When the license was reauthorized in 1994, Congress directed that the rates be adjusted by the Librarian of Congress using the system that replaced the Copyright Royalty Tribunal, namely, a Copyright Arbitration Royalty Panel (“CARP”). Accordingly, the Librarian adjusted the rates in 1997. 62 FR 55742 (October 28, 1997). In the Satellite Home Viewer Improvement Act of 1999, which reauthorized the license for an additional five years, Congress reduced the rates set by the Librarian. 17 U.S.C. 119(c)(4).

SHVERA adopts the rates as reduced by Congress in 1999 for the retransmission of analog signals but calls for the adjustment of those rates.[1] In addition, SHVERA calls for the setting of rates, for the first time, for the retransmission of the primary digital transmissions of network stations and superstations. SHVERA provides that the rates to be paid by satellite carriers for the retransmission of digital signals shall be the rates set by the Librarian in 1997 for the retransmission of analog signals, 37 CFR 258.3(b)(1)&(2), reduced Start Printed Page 15369by 22.5 percent but provides for a rate adjustment in accordance with the

procedures set forth in section 119(c)(1) of the Copyright Act.

On March 8, 2005, the Copyright Office received a letter from EchoStar Satellite L.L.C., DirecTV, Inc., Program Suppliers, and the Joint Sports Claimants requesting that the Office begin the process of setting the rates for the retransmission of digital broadcast signals by initiating a voluntary negotiation period so that rates for both digital and analog signals “will be in place before the July 31, 2005 deadline for satellite carriers to pay royalties for the first accounting period of 2005.” [2] Letter at 2. The Office sees no reason not to grant this request. Accordingly, today's notice begins the process mandated by statute.

Voluntary Negotiation Period

Section 119(c)(2) of the Copyright Act, 17 U.S.C., provides that “[t]he process and requirements for establishing the royalty fee payable . . . for the secondary transmission of the primary digital transmissions of network stations and superstations shall be the same” as that set forth in section 119(c)(1) for the amendment of the rates paid for the retransmission of analog signals. Section 119(c)(1) provides that “the Librarian of Congress shall cause to be published in the Federal Register [notice] of the initiation of the voluntary negotiation proceedings for the purpose of determining the royalty fee to be paid by satellite carriers” for the retransmission of digital broadcast signals. This notice initiates the voluntary negotiation period.

The statute does not specify how long the voluntary negotiation period is to last. However, the regulations governing CARP proceedings provide for a “30-day period for negotiation of a settlement” when adjusting rates under the cable, phonorecord and jukebox statutory licenses. 37 CFR 251.63(a). Since the rates will be determined under the current CARP system[3]  should parties be unable to negotiate a voluntary agreement or an objection to such agreement is raised, the Library sees no reason not to adopt the period set forth in § 251.63(a) here. Therefore, the voluntary negotiation period commences today, March 25, 2005, and concludes April 25, 2005.

If a voluntary agreement is reached by the end of the negotiation period, the parties can request that the Librarian publish the agreement for notice and comment in accordance with section 119(c)(1)(D)(ii)(II) and adopt the rates in the voluntary agreement if no objections are received from a party with a significant interest and an intention to participate in a CARP proceeding. 17 U.S.C. 119(c)(1)(D)(ii)(III). Voluntary agreements must be submitted no later than April 25, 2005. If no agreements are received by that time, the Library will proceed in accordance with the rules and regulations of 37 CFR part 251.

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Dated: March 22, 2005

David O. Carson,

General Counsel.

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Footnotes

1.  The Library has begun the process to adjust the rates paid for the retransmission of analog signals. See 69 FR 78482 (December 30, 2004); 70 FR 3656 (January 26, 2005).

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2.  We note that the letter referenced Docket No. 2004-9 CARP SRA, which is the proceeding to adjust the rates for the retransmission of analog signals. As the parties state in their letter, “the analog rates and digital rates are distinct and separate.” Letter at 1. We agree. Therefore, we have assigned a separate docket number to this proceeding.

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3.  On November 30, 2004, the President signed into law the Copyright Royalty and Distribution Act of 2004, Pub. L. 108-419, which phases out the CARP system and replaces it with three permanent Copyright Royalty Judges. However, SHVERA calls for satellite royalty rates to be determined “under chapter 8 as in effect on the day before the date of enactment of the Copyright Royalty and Distribution Act of 2004.” 17 U.S.C. 119(c)(1)(F).

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[FR Doc. 05-5953 Filed 3-24-05; 8:45 am]

BILLING CODE 1410-33-S