Sec. 301. Non-facilities based multichannel video programming distributors
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Title VI of the Communications Act of 1934 ( 47 U.S.C. 521 et seq. ), as amended by title II of this Act, is further amended by adding at the end the following: In this part: The term designated market area means a designated market area as determined by Nielsen Media Research or by any successor system of dividing broadcast television licensees into local markets that the Commission determines is equivalent to the designated market area system created by Nielsen Media Research.
The term local commercial television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, any full power commercial television station licensed and operating on a channel regularly assigned to a community in the same designated market area as the subscriber. The term local noncommercial educational television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, a television broadcast station that is a noncommercial educational broadcast station (as defined in section 397 of this Act), licensed and operating on a channel regularly assigned to a community in the same designated market area as the subscriber.
The term non-local commercial television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, any full power commercial television station licensed and operating on a channel regularly assigned to a community not located in the same designated market area as the subscriber. The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, whether or not such programming is delivered using a portion of the electromagnetic frequency spectrum.
Any online video distributor that provides programming in a manner reasonably equivalent to a multichannel video programming distributor may elect to be treated as a non-facilities based multichannel video programming distributor under this part. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall establish the form and procedures for an online video distributor to make the election permitted under subsection (a).
For purposes of this section, the term reasonably equivalent — means providing multiple channels of video programming that allow a subscriber to watch that programming in a fashion comparable to the services provided by multichannel video programming distributors, regardless of the means used to transmit the multiple channels of video programming; shall be based upon the subscriber experience in using the service provided by the online video distributor, and not the underlying technology used by the online video distributor; and may include services that include the ability for a subscriber to record video programming and watch recorded programming at another time if the underlying video programming service being recorded conforms to this subsection.
Any online video distributor that elects to be treated as a non-facilities based multichannel video programming distributor under section 672 shall have all of the rights and responsibilities under this part. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall— determine whether any of its rules and regulations applicable to a multichannel video programming distributor shall also be applied, in the public interest, to a non-facilities based multichannel video programming distributor; require a non-facilities based multichannel video programming distributor to comply with the access to broadcast time requirement under section 312(a)(7) of this Act and the use of facilities requirements under section 315 of this Act; consider whether it is in the public interest for the Commission to adopt minimum technical quality standards for a non-facilities based multichannel video programming distributor; and adopt any other rules the Commission considers necessary to implement this part.
The Commission shall not require, as part of its rulemaking under subsection (a), a non-facilities based multichannel video programming distributor to comply with the basic tier and tier buy-through requirement under section 623(b)(7). The Commission shall prohibit practices, understandings, arrangements, and activities, including any exclusive contract for video programming between a multichannel video programming distributor and a video programming vendor or an online video distributor and a video programming vendor that prevents a non-facilities based multichannel video programming distributor from obtaining programming from any video programming vendor.
A multichannel video programming distributor or an online video distributor may not include in any contract with a video programming vendor any provision that requires the multichannel video programming distributor or online video distributor, as applicable, to be treated in material parity with other similarly situated multichannel video programming distributors or online video distributors with regard to pricing or other terms and conditions of carriage of video programming.
A multichannel video programming distributor or an online video distributor may not retaliate against— any video programming vendor for making its video programming available to a non-facilities based multichannel video programming distributor; any non-facilities based multichannel video programming distributor for obtaining video programming from a video programming vendor; or any entity for exercising a right under this Act. As part of the rulemaking required by section 674, the Commission shall determine what, if any, additional steps it should take, in the public interest, to allow a non-facilities based multichannel video programming vendor to offer a subscriber greater choice over the video programming that is part of the subscriber's service.
As part of the proceeding under subsection (a), the Commission shall consider whether to limit a video programming vendor's use of certain contractual terms and conditions that disincentivize or impede the ability of a subscriber to have greater choice over the video programming packages or options the subscriber can purchase from a non-facilities based multichannel video programming vendor. The Commission shall not compel a video programming vendor to sell its video programming to a non-facilities based multichannel video programming vendor as part of any rules adopted under this section.
At the request of a non-facilities based multichannel video programming distributor serving a designated market area, a local commercial television broadcast station located in that designated market area shall enter into negotiations for carriage of its content over that distributor’s system. A local commercial television station subject to the duty to negotiate under paragraph
(1)shall engage in good faith negotiations for carriage of its signal in the designated marketed area where the station is located. The Commission shall define good faith for purposes of this paragraph. A local commercial television broadcast station being carried by a non-facilities based multichannel video programming distributor under this subsection shall be responsible for delivering a good quality signal suitable for distribution by that distributor. In addition to any signal carried under subsection (a), a non-facilities based multichannel video programming distributor also may deliver to a subscriber the signal of a non-local commercial broadcast television station under this subsection and subsection (c). A signal of a non-local commercial broadcast television station delivered by a non-facilities based multichannel video programming distributor under this section shall be deemed to be significantly viewed within the meaning of section 76.54 of title 47, Code of Federal Regulations. The following regulations shall not apply to a signal that is eligible to be carried under this subsection: Section 76.92 of title 47, Code of Federal Regulations (relating to cable network non-duplication). Section 76.122 of title 47, Code of Federal Regulations (relating to satellite network non-duplication). Section 76.101 of title 47, Code of Federal Regulations (relating to cable syndicated program exclusivity). Section 76.123 of title 47, Code of Federal Regulations (relating to satellite syndicated program exclusivity). Section 76.111 of title 47, Code of Federal Regulations (relating to cable sports blackout). Section 76.127 of title 47, Code of Federal Regulations (relating to satellite sports blackout). In delivering a non-local commercial broadcast television station signal to a subscriber under this subsection, and consistent with subsection (c)— the non-facilities based multichannel video programming distributor shall provide the subscriber with information regarding all signals that the distributor is capable of making available to the subscriber under this subsection; the non-facilities based multichannel video programming distributor shall offer a subscriber the option to choose each non-local commercial television station signal the subscriber wants to receive as part of the subscriber's service; and if a subscriber does not make a choice under subparagraph (B), the non-facilities based multichannel video programming distributor shall take reasonable steps to deliver to the subscriber the signal of each non-local commercial television station that is closest in proximity. For purposes of paragraph (3), the term closest in proximity means the non-local commercial television station whose community of license is the closest in distance to the subscriber’s place of residence. For purposes of paragraph (3), the term closest in proximity includes a non-local commercial television station located in a State other than the State of the subscriber's place of residence. Notwithstanding any other provision of law, a subscriber to a non-facilities based multichannel video programming distributor shall be entitled to receive programming from not more than 2 commercial television stations that are affiliates of the same television network and not more than 1 of the affiliates may be located in a designated market area where the subscriber does not reside. A non-facilities based multichannel video programming distributor shall not be required to carry the signal of a local commercial television station under subsection
(a)as a condition to carrying and delivering to a consumer a non-local commercial broadcast television signal under subsection (b). A subscriber shall have the right to view any commercial television station signal provided to that subscriber under this section at any time and on any device, including a mobile device and any other device not permanently located in the subscriber’s place of residence, that a non-facilities based multichannel video programming distributor has made capable of delivering the distributor’s service to that subscriber. It shall be unlawful for any entity selling or otherwise providing video programming to be transmitted by a local or non-local commercial television station to include in any contract, agreement, understanding, or arrangement with that station a limitation on the ability of the station to comply with the requirements of this section. Subject to subparagraph (B), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under subparagraph (A). If a non-facilities based multichannel video programming distributor elects to carry a local commercial broadcast television signal under section 677(a), that non-facilities based multichannel video programming distributor shall carry, upon request, the signal of a local noncommercial educational television station located in the same designated market area of the local commercial television broadcast station being carried under that section. A local noncommercial educational television station shall be entitled to carriage only in the designated market area to which that station is assigned. In the case of a system of 3 or more noncommercial educational broadcast stations licensed to a single State, public agency, or political, educational, or special purpose subdivision of a State, the carriage right under this subsection shall apply to any designated market area in the State where that system is located. A local noncommercial educational television station that requests to be carried by a non-facilities based multichannel video programming distributor under paragraph
(1)shall be responsible for delivering a good quality signal suitable for distribution by that distributor. The Commission shall require a non-facilities based multichannel video programming distributor to reserve a portion of its channel capacity, equal to not less than 3.5 percent or not more than 7 percent, exclusively for noncommercial programming of an educational or informational nature. A non-facilities based multichannel video programming distributor may use for any purpose any unused channel capacity required to be reserved under this subsection pending the actual use of that channel capacity for noncommercial programming of an educational or informational nature. A non-facilities based multichannel video programming distributor shall meet the requirements of this subsection by making channel capacity available to each national educational programming supplier, upon reasonable prices, terms, and conditions, as determined by the Commission under paragraph (5). A non-facilities based multichannel video programming distributor may not exercise any editorial control over any video programming provided under this subsection. In determining reasonable prices under paragraph (3)— the Commission, among other considerations, shall consider the nonprofit character of the programming provider and any Federal funds used to support that programming; the Commission shall not permit the prices to exceed, for any channel capacity made available under this subsection, 50 percent of the total direct costs of making the channel capacity available; and in the calculation of total direct costs, the Commission shall exclude— the marketing costs, general administrative costs, and similar overhead costs of the non-facilities based multichannel video programming distributor; and the revenue that the non-facilities based multichannel video programming distributor might have obtained by making that channel capacity available to a video programming vendor. In this section, the term channel capacity means the total number of channels of video programming provided to a subscriber by the non-facilities based multichannel video programming distributor, without regard to whether that non-facilities based multichannel video programming distributor uses a portion of the electromagnetic frequency spectrum to deliver that channel of video programming. A non-facilities based multichannel video programming distributor that is carrying any broadcast television station signal under section 677 or section 678 shall— be considered to be a cable system under section 111 of title 17, United States Code; and be subject to— the statutory licensing requirements set forth in sections 111(c) and 111(e) of that title; payment of the fees required by section 111(d) of that title; and the penalties under section 111 of that title for failure to pay the fees required by that section. For purposes of the application of section 111 of title 17, United States Code, to a non-facilities based multichannel video programming distributor under this section— a local commercial television station’s local service area of a primary transmitter shall consist of the entirety of that station’s designated market area; and a local noncommercial educational television station’s local service area of a primary transmitter shall consist of the entirety of that station’s designated market area. A non-facilities based multichannel video programming distributor shall not be subject to local franchising requirements under section 621 of this Act or otherwise be regulated by any franchising authority. A non-facilities based multichannel video programming distributor shall comply with the privacy protections applicable to satellite services as set forth in section 338(i) of this Act and the Commission’s regulations under that section. Any non-facilities based multichannel video programming distributor that fails to comply with the provisions under section 338(i) of this Act, and the Commission’s regulations under that section, shall be subject to the penalties set forth in section 338(i)(7) of this Act. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall commence a proceeding to consider whether to adopt rules— to establish standards to ensure that services and platforms provided by a non-facilities based multichannel video programming distributor can interconnect and interface with— any Internet-capable television and television receiver; and any other Internet-capable consumer electronics equipment that facilitates the viewing of video programming on a television receiver; and to promote the commercial availability of other devices that will permit a consumer to access non-facilities based multichannel video programming distribution services and platforms over equipment of the consumer's choice. The number of households subscribing to a non-facilities based multichannel video programming distributor in a franchise area under this part shall not be considered for purposes of a determination by the Commission of whether a cable system is subject to effective competition in that franchise area under section 623 of this Act. Any entity aggrieved by conduct that it alleges constitutes a violation of this part, or the regulations of the Commission under this part, may commence an adjudicatory proceeding at the Commission. The Commission may authorize interim remedies during the pendency of a complaint. Upon completion of an adjudicatory proceeding under this section, 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, or prices, terms, and conditions of the transport of the content of, the aggrieved entity. The remedies provided in paragraph
(1)are in addition to and not in lieu of the remedies available under title V or any other provision of this Act. In promulgating regulations to implement this part, the Commission shall— provide for an expedited review of any complaint made under this part, including a procedural timeline to conclude the review of each complaint not later than 180 days after the date the complaint is filed; establish procedures for the Commission to collect any data, including the right to obtain copies of all contracts and documents reflecting any practice, understanding, arrangement, or agreement alleged to violate this part, as the Commission requires to carry out this part; and provide for penalties to be assessed against any person filing a frivolous complaint under this part. .
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Sec. 301
Non-facilities based multichannel video programming distributors
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